Judge Cynthia A Freeland, Case 37-2022-00033658-CU-FR-NC 2024-02-23 Tentative Ruling

Judge: Cynthia A Freeland, Case: 37-2022-00033658-CU-FR-NC, Date: 2024-02-23 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - February 22, 2024

02/23/2024 01:30:00 PM N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited Fraud Discovery Hearing 37-2022-00033658-CU-FR-NC WALTER VS THOMPSON [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Compel Discovery, 09/05/2023

Plaintiff David D. Walter ('Plaintiff')'s motion to compel Defendant Jeffrey Thompson ('Defendant') to provide further responses to Form Interrogatories – General (Set One) and Request for Production of Documents (Set One) (collectively, the 'Discovery Requests') is denied without prejudice. Defendant's request for sanctions is denied.

The court finds that that parties' meet and confer efforts in this matter, while robust to a certain point, nevertheless have been insufficient and/or incomplete. Before bringing a motion to compel further responses to interrogatories or a request for production of documents, a party must make a reasonable and good faith effort to resolve each issue presented by the motion. See Cal. Code Civ. P. §§ 2016.040, 2030.300(b)(1), 2031.310(b)(2). 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.

The evidence shows that on March 31, 2023, Plaintiff served Defendant with the Discovery Requests.

See Walter Decl., ¶ 3. On May 22, 2023, Defendant served incomplete and unverified responses to the Discovery Requests. Ibid. On June 19, 2023, Plaintiff e-mailed Defendant's counsel regarding a separate dispute over Plaintiff's responses to Defendant's Special Interrogatories. See Lorenzo Decl., Ex. 1. In that e-mail, Plaintiff also suggested that the parties meet and confer regarding Defendant's initial responses to the Discovery Requests. On June 20, 2023, Plaintiff sent Defendant's counsel a further meet and confer e-mail identifying outstanding issues with Defendant's responses to Form Interrogatories Nos. 3.7, 12.1, 12.4, and 15.1, as well as Request for Production No. 5. Ibid. Later that day, after the parties met and conferred telephonically, Plaintiff sent Defendant's counsel another meet and confer e-mail clarifying Form Interrogatories Nos. 3.7 and 12.1. Ibid. On June 28, 2023, Defendant provided the verifications to his initial responses to the Discovery Requests. Ibid., Ex. 2; Walter Decl., ¶ 5. On July 20, 2023, Plaintiff sent Defendant's counsel another meet and confer e-mail regarding Form Interrogatories Nos. 3.7, 12.1, and 12.4, as well as Request for Production No. 5, and asking that the parties resolve their issue(s) by July 28, 2023. See Lorenzo Decl., Ex. 3. On July 28, 2023, Defendant served supplemental verified responses to the Discovery Requests along with a further explanation of his responses. Ibid., Ex. 4; Walter Decl., ¶ 6. On August 26, 2023, Plaintiff sent Defendant's counsel another meet and confer e-mail to address ongoing issues regarding Defendant's responses to Form Interrogatories Nos. 3.7, 12.1, 12.4, and Request for Production No. 5. Plaintiff's August 26, 2023 Calendar No.: Event ID: TENTATIVE RULINGS

3076698 CASE NUMBER: CASE TITLE: WALTER VS THOMPSON [IMAGED] 37-2022-00033658-CU-FR-NC correspondence did not set a deadline by which Plaintiff would file a motion to compel, with Plaintiff merely concluding, '[g]iven the number of times we have discussed this matter, through both email and our phone meet and confer, I am not optimistic about resolving this without a motion to compel.' See Lorenzo Decl., Ex. 5. Plaintiff filed and served the pending motion on September 5, 2023. See ROA No.

42.

On September 11, 2023, Defendant's counsel expressed surprise that Plaintiff had filed the motion but indicated a willingness to continue meeting and conferring. See Lorenzo Decl., Ex. 6. On September 12, 2023, Plaintiff explained his reasoning for filing the motion yet also stated that he was willing to meet and confer further and take the matter off calendar should the parties reach an informal resolution. Ibid., Ex. 7. On September 27, 2023, the parties met and conferred telephonically during which the parties remained at an impasse, particularly regarding Form Interrogatory No. 3.7. Ibid., ¶ 10. On December 11, 2023, Defendant served a further supplemental response clarifying and amending his previous responses to Form Interrogatories Nos. 12.1 and 12.4. Ibid., ¶ 11. On January 18, 2024, Plaintiff served Defendant with Special Interrogatories (Set Two). Plaintiff asserts that he propounded Special Interrogatory No. 13 as a means to narrow the scope of Form Interrogatory No. 3.7 and to resolve that aspect of the pending motion. See Plaintiff's Reply, Ex. A; Lorenzo Decl., ¶ 12. On January 23, 2024, the parties met and conferred telephonically during which Plaintiff advised that: (1) he was limiting Form Interrogatory No. 3.7 only to businesses related to the Automated Biotuning System; (2) he would withdraw the motion as to Form Interrogatory No. 3.7 if Defendant responded to Special Interrogatory No. 13; (3) he would withdraw the motion as to the issue of the persons who attended the December 2020 session provided Defendant could provide a satisfactory response to Special Interrogatory No. 11; and (4) he would provide Defendant with a hard drive for videos which would resolve Request for Production No. 5. See Lorenzo Decl., ¶ 12. On February 6, 2024, Defendant served his responses to the Special Interrogatories. See Plaintiff's Reply, Ex. B; Lorenzo Decl., ¶ 13.

Curiously, the parties have chosen to inextricably intertwine Plaintiff's first set of Form Interrogatories and Request for Production of Documents (both of which are subjects of the pending motion) with Plaintiff's second set of Special Interrogatories (which is not properly before the court). Indeed, it is Defendant's position that the motion is now moot in light of his responses to the Special Interrogatories.

Plaintiff, on the other hand, believes that Defendant's responses remain deficient. That being said, it appears that a successful resolution of the issues raised by the motion is now contingent on the parties resolving perceived deficiencies with Defendant's February 6, 2024 responses to the Special Interrogatories. There presently is no evidence that the parties engaged in any meet and confer efforts as to those responses. Consequently, the court concludes that the parties' meet and confer efforts on the issues underlying the motion, at best, were incomplete, and thus denies the motion without prejudice.

In addition, the court finds that the motion is procedurally deficient. The parties, in essence, are asking the court to rule on a moving target. Under California law, a separate statement must accompany a motion to compel further responses to interrogatories or to a demand for inspection of documents or tangible things. See Cal. R. Ct. 3.1345(a)(2)-(3). California Rules of Court ('CRC'), Rule 3.1345(c) states that: A separate statement is a separate document filed and served with the discovery motion that provides all the information necessary to understand each discovery request and all the responses to it that are at issue. The separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and the full response. Material must not be incorporated into the separate statement by reference. The separate statement must include-for each discovery request (e.g., each interrogatory, request for admission, deposition question, or inspection demand) to which a further response, answer, or production is requested-the following: (1) The text of the request, interrogatory, question, or inspection demand; (2) The text of each response, answer, or objection, and any further responses or answers; Calendar No.: Event ID: TENTATIVE RULINGS

3076698 CASE NUMBER: CASE TITLE: WALTER VS THOMPSON [IMAGED] 37-2022-00033658-CU-FR-NC (3) A statement of the factual and legal reasons for compelling further responses, answers, or production as to each matter in dispute; (4) If necessary, the text of all definitions, instructions, and other matters required to understand each discovery request and the responses to it; (5) If the response to a particular discovery request is dependent on the response given to another discovery request, or if the reasons a further response to a particular discovery request is deemed necessary are based on the response to some other discovery request, the other request and the response to it must be set forth; and (6) If he pleadings, other documents in the file, or other items of discovery are relevant to the motion, the party relying on them must summarize each relevant document.

Cal. R. Ct. 3.1345(c).

The motion does not comply with the prescriptions of CRC, Rule 3.1345(c). Plaintiff's September 5, 2023 Separate Statement of Items in Dispute: (1) identifies the Form Interrogatories (Nos. 3.7, 12.1, and 12.4) and Request for Production (No. 5) that are in dispute; (2) sets forth Defendant's May 2023 initial responses and July 2023 supplemental responses to the Discovery Requests; (3) cites excerpts from Defendant's counsel's July 28, 2023 meet and confer e-mail; and (4) provides the legal and factual reasons for why further responses should be compelled. See ROA No. 44. However, as set forth above, various developments since Plaintiff filed the pending motion (some of which are highlighted in Defendant's February 9, 2024 Response to Plaintiff's Statement of Disputed Responses in Opposition to Motion to Compel Defendant[']s Further Responses to Plaintiff's Discovery Requests (see ROA No. 78)) reveal that Plaintiff's Separate Statement is no longer an accurate reflection of the issues germane to the pending motion. Again, the purpose of the separate statement is to provide the court, without having to review any other document, all the information it needs to rule on the motion. The motion is deficient in that regard. More specifically, it appears that a resolution of the motion is contingent upon the court making findings with regards to the propriety of Defendant's February 6, 2024 responses to Plaintiff's second set of Special Interrogatories. That matter is not properly before the court. Moreover, the court would have to review separate documents (i.e., the Special Interrogatories and responses attached to Plaintiff's reply) to determine whether further responses are warranted as to the Form Interrogatories and Request for Production of Documents. That is not procedurally proper.

Furthermore, and just as important, it is unclear what, exactly, the parties want from the court at this juncture. For example, Defendant's opposition suggests that the motion is moot as to Form Interrogatory No. 12.4 and Request for Production No. 5 because Plaintiff has agreed to supply Defendant with a hard drive to which Defendant may attach the requested videos. Plaintiff, in his reply, states that the videos he sought by way of Form Interrogatory No. 12.4 and Request for Production No. 5 were destroyed except for a single training video which Defendant has agreed to produce. Plaintiff, however, does not explicitly state whether: (1) he is still seeking a further response as to Form Interrogatory No. 12.4, or (2) the motion is moot as to Request for Production No. 5 in light of Defendant's agreement to produce the training video.

The court must impose sanctions against any party who unsuccessfully makes or opposes a motion to compel a further response to interrogatories or to a request for production of documents '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.' Cal. Code Civ. P. §§ 2030.300(d), 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 Calendar No.: Event ID: TENTATIVE RULINGS

3076698 CASE NUMBER: CASE TITLE: WALTER VS THOMPSON [IMAGED] 37-2022-00033658-CU-FR-NC case, the court finds that sanctions against either party are not warranted under the totality of the facts and circumstances.

In light of the foregoing, the court denies: (1) the motion without prejudice, and (2) Defendant's sanctions request.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, February 23, 2024. If no party appears at the hearing, this tentative ruling will become the order of the court as of February 23, 2024. 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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