Judge: Craig Griffin, Case: Fortune Management Systems v. Brusch, Date: 2022-07-18 Tentative Ruling

Plaintiff moves “for an order compelling Defendant, Aesthetic Development Group (“ADG”), to produce additional documents responsive to Requests for Production of Documents, Set One (Nos. 7-14, 16-25, 27-35, and 37-58) propounded by Plaintiff pursuant to CCP § 2031.310.” It also moves “for an order imposing sanctions against Defendant ADG in the amount of $12,030 pursuant to CCP § 2031.310(h).” The notice of motion also indicates that it “is made on the ground that ADG has failed to produce relevant and responsive documents in compliance with CCP 2031.240.”

Plaintiff submitted a separate statement with the motion (dated 4-8-22, which is before some of defendants’ document productions). (See ROA 132.)

However, Code of Civil Procedure section 2031.310 does not provide authority for a motion to compel production of documents. Rather, it authorizes a party to bring a motion “for an order compelling further response to the demand if the demanding party deems that any of the following apply: [¶] (1) A statement of compliance with the demand is incomplete. [¶] (2) A representation of inability to comply is inadequate, incomplete, or evasive. [¶ ] (3) An objection in the response is without merit or too general.” Thus, if a party propounds a set of requests and the responding party gives an answer to a request that does not comply with the Code, the propounding party may bring a motion to compel supplemental answers that comply (and seek sanctions). A look at the separate statement references the answers and supplemental answers to particular requests and then gives argument by the moving party as to why defendant’s production is inadequate and why “further production is necessary.” (Ironically, the separate statement references Code Civ. Proc. § 2031.320, which provides for a motion to compel compliance with a statement of production.)  Although moving party’s notice of motion apparently cites the incorrect code section, the thrust of the motion is clear: to enforce compliance with ADG’s statement of compliance in each of the cited responses.  The Court will proceed in its analysis accordingly.

ADG contends it has produced all responsive documents in its possession except for documents relating to the identities of current customers of ADG and its current financial and tax records. It contends that any additional documents are in the hands of third parties and that plaintiff can obtain those documents through subpoenas.

But ADG’s statement of compliance as to the foregoing requests does not contain an objection of the type lodged in its opposition, or any forward time limitation.  Accordingly, ADG must produce these documents in their entirety, with the exception to those categories that contain a express limitation on the documents to be produced.  For example, the response to Category No. 8 contains the caveat “except as to persons who were never affiliated with FMS.”  A similar caveat is found in the responses to Categories 10, 12, 13, and 18.  Because Plaintiff is not moving to compel further responses, but to compel production in accordance with ADG’s statement of compliance, the Court cannot order the production of documents that fall within the exceptions set forth in these responses.

With the foregoing limitations, the motion to compel is GRANTED.  

The Court declines to award sanctions.

Moving party to give notice.