Judge: Cynthia A Freeland, Case: 37-2022-00001387-CU-CO-NC, Date: 2023-09-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - September 14, 2023

09/15/2023  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  Contract - Other Motion Hearing (Civil) 37-2022-00001387-CU-CO-NC APOLLO SENIOR CARE LLC VS NOVESTA FINANCIAL & CONSULTING INC CAUSAL DOCUMENT/DATE FILED: Motion - Other, 07/25/2023

Defendant/Cross-Complainant Novesta Finance and Consulting, Inc. ('Cross-Complainant')'s motion to compel Plaintiff/Cross-Defendant Apollo Senior Care, LLC ('Cross-Defendant') to provide further responses to Request for Production of documents (Set One) (the 'Discovery Request') is denied without prejudice.

Cross-Complainant has failed to demonstrate that it engaged in sufficient meet and confer efforts before filing the motion. A motion to compel further responses to a demand for inspection, copying, testing, or sampling, the demanding part must be accompanied by a meet and confer declaration under California Code of Civil Procedure ('CCP') § 2016.040. See Cal. Code Civ. P. § 2031.310(b)(2).

Cross-Complainant did not attach the requisite meet and confer declaration to the motion. Seeming to acknowledge the foregoing, Cross-Complainant, in its reply, points to the 'meet and confer' correspondence attached to Mr. Saccuzzo's declaration in support of Cross-Defendant's opposition as evidence that any meet and confer efforts would have been futile. The court must respectfully disagree.

A proper meet and confer process involves a reasonable and good faith effort to resolve each issue presented by the motion. See Cal. Code Civ. P. § 2016.040. Whether this was accomplished depends upon the case's circumstances. See Obregon v. Sup. Ct. (1998) 67 Cal. App. 4th 424, 431. '[T]he parties must present to each other the merits of their respective positions with the same candor, specificity, and support during informal negotiations as during the briefing of discovery motions . . . A reasonable and good-faith attempt at informal resolution entails something more than bickering . . . Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.' Townsend v. Sup. Ct. (1998) 61 Cal. App. 4th 1431, 1435, 1439; Clement v. Alegre (2009) 177 Cal. App. 4th 1277, 1294. In this case, the evidence shows that on June 26, 2023, Ms. Frostrom sent Mr.

Saccuzzo a meet and confer e-mail regarding Cross-Defendant's initial responses to the Discovery Request. In that e-mail, Ms. Frostrom indicates that Cross-Defendant's responses are not well taken as the Discovery Request seeks relevant information. She concludes by stating '[p]lease advise if you are willing to rethink your position or if motion practice will be needed.' See Saccuzzo Decl., Ex. A. On June 30, 2023, Mr. Saccuzzo responded by further explaining his client's objections to the Discovery Request and indicating his willingness to further meet and confer telephonically. Ibid., Ex. B. Ms. Frostrom did not respond. The foregoing does not constitute a sufficient meet and confer effort on Cross-Complainant's part. Simply put, it is insufficient to: (1) send a short e-mail demanding that the responding party capitulate or face a motion to compel, and then (2) not respond to the responding party's meet and confer response. To the extent Cross-Complainant contends that further meet and confer efforts would not have been fruitful, the court again must respectfully disagree. Mr. Saccuzzo plainly states in his June 30, 2023 correspondence that he was willing to further meet and confer to potentially narrow the issues subject to the Discovery Request. No subsequent discussions were had.

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2995783 CASE NUMBER: CASE TITLE:  APOLLO SENIOR CARE LLC VS NOVESTA FINANCIAL &  37-2022-00001387-CU-CO-NC Notwithstanding the foregoing, the court also finds that the motion is procedurally deficient in several respects. First, the Notice of Motion indicates that the motion is predicated upon, inter alia, the declaration of Jeffrey Lubin. No such declaration was submitted with the moving papers. Second, Cross-Complainant's Memorandum of Points and Authorities ('MPA'), which consists of a single paragraph, does not comply with the pertinent Rules of Court. More specifically, California Rules of Court, Rule 3.1113(b), which governs the contents of a memorandum, states that '[t]he memorandum must contain a statement of facts, concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.' Cal. R. Ct.

3.1113(b). Cross-Complainants MPA does not comply with the foregoing because it fails to cite any legal authority(s) upon which the motion is based.

The court must impose sanctions '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.' See Cal. Code Civ. P. § 2031.310(h). The party subject to sanctions bears the burden of proving that he or she acted with substantial justification. See Doe v. U.S. Swimming, Inc. (2011) 200 Cal. App. 4th 1424, 1435 (citing Cal. Evid. Code §§ 500 and 550; Kohan v. Cohan (1991) 229 Cal. App. 3d 967, 971). Substantial justification means justification that is clearly reasonable because it is well grounded in both law and fact. See Doe, 200 Cal. App. 4th at 1434 (citing Nader Automotive Group, LLC v. New Motor Vehicle Bd. (2009) 178 Cal. App. 4th 1478, 1480). In this case, neither Cross-Complainant nor Cross-Defendant has requested sanctions in conjunction with this matter. Consequently, the court finds that the imposition of sanctions is not warranted under the totality of the facts and circumstances.

In light of the foregoing, the court denies the motion without prejudice.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, September 15, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of September 15, 2023.

If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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