Judge: Colin Leis, Case: 21STCV09247, Date: 2023-04-28 Tentative Ruling

Case Number: 21STCV09247    Hearing Date: April 28, 2023    Dept: 74

SUPERIOR COURT OF CALIFORNIA 

COUNTY OF LOS ANGELES – CENTRAL DISTRICT 

DEPARTMENT 74 

MOVING PARTIES:             Defendant Gavin Han

RESPONDING PARTY:       Plaintiff AGF Group, Inc.

Motion to Compel Further Discovery and Request for Sanctions.

BACKGROUND

            This action arises from a contractual dispute.

            On March 9, 2021, Plaintiff AGF Group, Inc. (Plaintiff) filed a complaint against Defendant Gavin Han (Defendant) and others. In it, Plaintiff alleged causes of action for breach of oral contract, conversion, “claim and delivery,” and “declaratory relief.”

            On May 5, 2022, Defendant served Plaintiff with Requests for Production (RFP).

            On June 13, 2022, Plaintiff served Defendant with responses, which Defendant claims were incomplete and inadequate.

            On October 13, 2022, Plaintiff emailed Defendant supplemental responses, which Defendant claims are incomplete and inadequate.

            On November 8, 2022, Defendant filed this motion to compel further discovery and request for sanctions.

LEGAL STANDARD 

            A motion to compel is the procedure to enforce compliance with a demand under Code of Civil Procedure section 2031.010. Where responses have been made but they are not satisfactory to the demanding party, the motion is to compel further responses. (Code Civ. Proc., § 2031.310.) The demanding party can use the motion to attack a response containing objections, an agreement to comply that is incomplete, or a state of inability to comply that is incomplete or evasive. (Code of Civ. Proc., § 2031.310, subd. (a).)  

DISCUSSION

            As a preliminary matter, the court notes that Defendant’s separate statement was contained within the motion to compel. The court also notes that Defendant has satisfied the meet and confer requirement.

            RFP Nos. 50-57.

            Plaintiff has provided supplemental responses to each of these RFPs as follows: “After a diligent search and reasonable enquiry [sic] the Responding Party is not in possession of any responsive documents which are not protected by the attorney-client privilege.” As Defendant notes, under Code of Civil Procedure section 2031.240, subdivision (c)(1), “If an objection is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.” The court finds Plaintiff’s responses to these RFPs deficient and orders Plaintiff to produce a privilege log.

            RFP Nos. 82-87.

            Plaintiff has provided a supplemental response to RFP Nos. 82, 83, 86, and 87 as follows:    “Objection, the documents and information sought are not relevant to this matter and are overly invasive of the privacy rights of third parties (customers) and the trade secret and business operations of an entity not related to this matter.” Plaintiff provides the same response to RFP Nos. 84 and 85 but adds, “Responding Party was not handling warehousing during this time period.” However, in its Opposition, Plaintiff has stated it is willing to produce responsive information under a protective order. Code of Civil Procedure section 2031.060, subdivision (a), requires that the affected party move promptly for a protective order. A noticed motion is required, including a declaration showing a “reasonable and good faith” attempt to resolve the disputed issues outside of court. (Code Civ. Proc., §§ 2016.040, 2031.060, subd. (a).) Thus, the court finds that further response will be necessary, subject to the outcome of Plaintiff’s motion for a protective order.

            RFP Nos. 107-108.

            Plaintiff has provided a supplemental response to RFP No. 107 as follows: “After a diligent search and reasonable enquiry [sic] the Responding Party is not in possession of any responsive documents which are not protected by spousal and attorney-client privilege. No goods were left in the house.” As to RFP No. 108, Plaintiff has responded as follows: “After a diligent and reasonable enquiry [sic] the Responding Party is not in possession of any responsive documents which are not protected by spousal and attorney-client privilege.” The court finds these responses deficient. First, “If an objection is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.” (Code Civ. Proc., § 2031.240, subd. (c)(1).) Accordingly, the court orders Plaintiff to produce a privilege log. Second, “[a] representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.” (Code Civ. Proc. § 2031.230.) For RFP No. 107, then, Plaintiff must provide the name and address or who it believes might be in possession of the goods in question.

            Sanctions

            “The court shall impose a monetary sanction … against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2031.310, subd. (h).)

            The court finds that sanctions are warranted. However, Defendant’s counsel has failed to substantiate his request for $5,000. The court will grant sanctions when Defendant provides his hourly rate, along with a calculation of how many hours of work Plaintiff’s deficient responses necessitated and the nature of the work performed.

CONCLUSION

                Based on the foregoing, the court grants Defendant’s motion to compel further responses as to RFP Nos. 50-57 and 107-108. The court also grants Defendant’s motion to compel further responses as to RFP Nos. 82-87, subject to the outcome of Plaintiff’s motion for a protective order. The court grants Defendant’s request for sanctions, subject to an adequate showing of attorney fees incurred.

            Defendant is ordered to give notice of this ruling. 

IT IS SO ORDERED. 

DATED:  ¿April 28, 2023

_____________________________ 

Colin Leis 

Judge of the Superior Court