Judge: Curtis A. Kin, Case: 21STCV18285, Date: 2023-03-21 Tentative Ruling

Case Number: 21STCV18285    Hearing Date: March 21, 2023    Dept: 72

MOTION TO COMPEL COMPLIANCE AND AMENDED RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS

Date:               3/21/23 (9:30 AM)

Case:               Nicole Watson v. Star Pro Security Patrol Inc. (21STCV18285)

TENTATIVE RULING:

Plaintiff Nicole Watson’s Motion to Compel Compliance and Amended Responses is DENIED.

Plaintiff Nicole Watson moves for an order compelling defendants: (1) to produce all documents responsive to plaintiff’s requests for production of documents; (2) for requests where defendants previously claimed an inability to comply, to serve verified, amended responses to the extent responsive documents are found after a diligent search and reasonable inquiry; and (3) to serve a sworn declaration from the individual who supervised the search detailing the sources searched, how the search was conducted, and an explanation why requested documents could not be retrieved.

This motion concerns plaintiff’s Requests for Production of Documents, Set One served on defendant Star Pro Security Patrol Inc (“Star Pro”) and Requests for Production of Documents, Set One served on defendant Terry Covington. (Hames Decl. ¶ 2 & Exs. A, B.) For certain requests, Star Pro responded that it would produce all documents in its possession, custody, and control. (Id. ¶ 5.) For other requests, Star Pro and Covington responded that they are unable to comply because the requested documents have never existed or are no longer in defendants’ possession, custody, or control. (Id. ¶¶ 6, 7.)

Plaintiff maintains that the production of documents is incomplete and that defendants’ representations of inability to comply are false. In support of these assertions, plaintiff refers to the November 30, 2022 deposition of defendant Covington, in which Covington testified that certain email accounts, computers, files, and phones were not searched for responsive documents. (Id. ¶ 10 & Ex. H.)

With respect to plaintiff’s first request in this motion, after the filing of the instant motion, defendants produced additional documents on March 1, 2023. (Hames Reply Decl. ¶ 4.) Plaintiff maintains that certain requested documents were not produced. However, for the requests where defendant Star Pro provided statements of compliance, Star Pro stated in verified responses that it would produce all documents in its possession, custody, and control in compliance with CCP § 2031.220. These responses are binding on Star Pro. If plaintiff unearths evidence indicating Star Pro has not been diligent and reasonable and/or intentionally failed to search certain places to conceal responsive documents in connection with Star Pro’s most recent production, then plaintiff may seek any relief to which she believes she is entitled at that time, including a jury instruction for willful suppression of evidence and/or other appropriate sanction(s). Plaintiff’s first request is DENIED.

With respect to plaintiff’s second request in this motion, plaintiff maintains defendants’ representation of inability to comply is inadequate or evasive based on Covington’s deposition testimony. CCP § 2031.310 states that a demanding party deeming representations of inability to comply to be inadequate or evasive has 45 days from service of verified responses to move to compel a further response. The most recent verified responses to the subject document requests were served on April 4, 2022 by email. (Id. ¶ 4 & Exs. E, F.) Accordingly, plaintiff had until May 20, 2022 to file the instant motion. (CCP §§ 2031.310(c) [45 days from service of response], 1010.6(a)(3)(B) [two court days added with email service].) The motion seeking amended responses was filed afterward on January 5, 2023. Accordingly, the Court has no jurisdiction to rule on a motion seeking amended responses. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410 [“We do not believe the 45–day limitation is ‘jurisdictional’ in the fundamental sense, but is only ‘jurisdictional’ in the sense that it renders the court without authority to rule on motions to compel other than to deny them.”].)

Even though the need for this motion arose after the 45-day period set forth in CCP § 2031.310(c) elapsed, plaintiff fails to cite a statute allowing the Court to compel further responses based on later-discovered information. Plaintiff’s second request for an order compelling further responses is DENIED.

With respect to the third request in this motion, Star Pro’s statements of compliance are sufficient. CCP § 2031.220 does not require defendants to indicate their search methods. With respect to defendants’ representations of inability to comply, plaintiff is not entitled to a further explanation of why requested documents cannot be retrieved, because, as discussed above, a motion to compel further responses is untimely. Plaintiff’s third request for a declaration is DENIED.

The motion is DENIED. With respect to plaintiff’s request for monetary sanctions, even though defendants produced documents after the filing of the instant motion, given the overall denial of the motion, the request for monetary sanctions is DENIED.