Judge Cynthia A Freeland, Case 37-2022-00026146-CU-FR-NC 2023-10-06 Tentative Ruling

Judge: Cynthia A Freeland, Case: 37-2022-00026146-CU-FR-NC, Date: 2023-10-06 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - October 05, 2023

10/06/2023 01:30:00 PM N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited Fraud Motion Hearing (Civil) 37-2022-00026146-CU-FR-NC CALVERT VS WIGHT [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Compel Discovery, 08/08/2023

Plaintiff Janie Calvert ('Plaintiff')'s motion to compel Defendant Kelly Wight ('Defendant') to provide further responses to Demand for Production of Documents (Set One) (the 'Discovery Request'), and for sanctions, is granted.

A party upon whom a request for production of documents has been served must respond separately to each item propounded by one of the following: (1) an agreement to comply; (2) a representation of an inability to comply; or (3) objections to all or part of the demand. See Cal. Code Civ. P. § 2031.210(a). A statement of compliance must indicate that the production 'will be allowed in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.' Cal. Code Civ. P. § 2031.220. If a party responds by noting an inability to respond, the responding party must articulate that a diligent search and reasonable inquiry has been made in an effort to locate the item requested and must articulate the reason why the party cannot comply with the request as well as the names of, and contact information for, the individual(s) or entity(s) known or believed by the responding party to be in possession, custody, or control of item requested. See Cal. Code Civ. P. § 2031.230. If only part of an item or category of item is objectionable, the response must contain a statement of compliance, or a representation of an inability to comply with respect to the remainder of that item or category. See Cal. Code Civ. P. § 2031.240(a). If a responding party asserts objections, the party must identify with particularity the specific document/evidence as to which the objection is made and must set forth the specific ground for the objection. See Cal. Code Civ. P. § 2031.240(b).

3006319 CASE NUMBER: CASE TITLE: CALVERT VS WIGHT [IMAGED] 37-2022-00026146-CU-FR-NC particularity the specific document/evidence as to which the objection is made and must set forth the specific ground for the objection. See Cal. Code Civ. P. § 2031.240(b).

California Code of Civil Procedure ('CCP') § 2031.310(a) provides that '[o]n receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move 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[;] [or] (3) An objection in the response is without merit or too general.' Cal. Code Civ. P. §§ 2031.310(a)(1)-(3). The propounding party bears the burden of establishing good cause for demanding further responses under CCP § 2031.310(a). See Cal. Code Civ.

P. § 2031.310(b)(1). This requires a showing of: (1) the discovery request's relevance; and (2) specific facts justifying the discovery request. See Kirkland v. Sup. Ct. (2002) 95 Cal. App. 4th 92, 98; Glenfed Development Corp. v. Sup. Ct. (1997) 53 Cal. App. 4th 1113, 1117.

The court construes Defendant's lack of opposition as a concession of the motion's merits. See San Diego Rules of Court, Rule 2.1.19.B. In addition, the uncontroverted evidence establishes that on March 3, 2023, Plaintiff served Defendant with the Discovery Request via overnight delivery. See Skophammer Decl., Exs. 1-2. Defendant's responses were initially due by April 4, 2023. See Cal. Code Civ. P. §§ 1013(c), 2031.260(a). Defendant served her responses to the Discovery Request on April 2, 2023. See Skophammer Decl., ¶ 5. On May 1, 2023, Plaintiff's counsel sent Defendant's counsel a meet and confer correspondence regarding the perceived deficiencies in Defendant's responses. Ibid., Ex. C. The parties subsequently agreed to extend Defendant's deadline to provide amended responses to May 22, 2023.

Ibid., Exs. 4-5. Defendant served her amended responses on May 22, 2023. Ibid., ¶ 7. On May 31, 2023, Plaintiff's counsel sent Defendant's counsel a further meet and confer correspondence to discussed alleged continued deficiencies in Defendant's responses. Ibid., Ex. 6. The parties subsequently agreed to extend Defendant's deadline to provide further amended responses to June 23, 2023. Ibid., Ex. 7.

Defendant served her further amended responses on June 23, 2023. Ibid., ¶ 10. On July 28, 2023, Plaintiff's counsel sent Defendant's counsel another meet and confer correspondence asking that a further response to RFP No. 112 be provided by August 4, 2023. Ibid., Ex. 8. Defendant did not respond or provide a further response.

That being said, RFP No. 112 is the sole demand for production that is at issue in this motion. RFP No.

112 asks Defendant to produce '[a]ny and all DOCUMENTS provided to YOU from the San Diego County District Attorney's office RELATED TO criminal case number CD297297.' Defendant responded to RFP No. 112 with a myriad of objections. For the following reasons, the court finds Defendant's objections unavailing.

First, objections based upon ambiguity, confusion, or overbreadth are typically unavailing unless the discovery request is so unintelligible that the responding party cannot in good faith respond. See Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771, 783; Cembrook v. Sup. Ct. (1961) 56 Cal. 2d 423, 428.

Defendant makes no such showing, and the court does not find the request to be vague or ambiguous.

Second, RFP No. 112 does not require Defendant to speculate – the San Diego County District Attorney's Office either has or has not provided her with documents related to criminal case number CD297297. Such information would be within Defendant's personal knowledge.

Third, to the extent Defendant argues that RFP No. 112 violates the attorney-client privilege and/or work product doctrine, she is required to state with specificity the particular privilege she is invoking and, at a minimum, identify and describe the documents she believes the privilege protects. See Hernandez v. Super. Ct. (2003) 112 Cal. App. 4th 285, 293; Cal. Code Civ. P. § 2031.240(b)(2), (c)(1). She has failed to do so.

Fourth, Defendant's objection that RFP No. 112 seeks information equally available to Plaintiff is not well taken. Plaintiff has a right to seek discovery to understand Defendant's contentions in this lawsuit and the factual underpinnings of those contentions.

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3006319 CASE NUMBER: CASE TITLE: CALVERT VS WIGHT [IMAGED] 37-2022-00026146-CU-FR-NC Fifth, to the extent Defendant contends that responding to RFP No. 112 calls for a legal conclusion or would require information from an expert witness, the objection is not well taken. Simply put, RFP No.

112 does not call for a legal conclusion or implicate expert witness testimony; rather, it merely asks for all documents the San Diego County District Attorney's Office has provided to Defendant relating to criminal case number CD297297.

Finally, Defendant's objection based upon the privilege against self-incrimination is overruled. In determining whether a civil defendant may invoke the privilege against self-incrimination, the court must conduct 'a particularized inquiry, deciding, in connection with each specific area that the questioning party seeks to explore, whether or not the privilege is well founded.' Fuller v. Sup. Ct. (2001) 87 Cal. App. 4th 299, 305. The party claiming the privilege must object with specificity to the information sought so that the court can make this determination. See Blackburn v. Sup. Ct. (1993) 21 Cal. App. 4th 414, 428. Such objection must include a demonstration that the testimony or other evidence could tend to incriminate the objecting party. See Warford v. Medeiros (1984) 160 Cal. App. 3d 1035, 1045. In this case, Defendant has not provided Plaintiff or the court with sufficient and particular information so that it can be determined whether Defendant is entitled to invoke the privilege. By failing to do so, either as part of her discovery response or in a written opposition to the motion, Defendant has failed to meet her burden and the objection must be overruled.

The court may award sanctions to the party seeking to compel discovery even though no opposition to the motion was filed. See Cal. R. Ct. 3.1348(a). Additionally, 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 instance, Defendant, by failing to oppose the motion, has not met her burden of demonstrating that she was substantially justified in objecting to the Discovery Request and by failing to produce a substantive Code-compliant response or that other circumstances are present which would render the imposition of sanctions unjust.

In light of the foregoing, the court grants the motion and: (1) orders Defendant to serve a further verified Code-compliant response to RFP No. 112 within fourteen (14) days of this hearing, and (2) awards Plaintiff $2,310.00 in sanctions (which omits unnecessary fees anticipated to prepare for and attend the hearing on this unopposed motion) against Defendant, due within thirty (30) days of this hearing.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, October 6, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of October 6, 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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