Judge: Daniel M. Crowley, Case: 22STCV23950, Date: 2023-10-13 Tentative Ruling

Case Number: 22STCV23950    Hearing Date: October 13, 2023    Dept: 71

New Chinese Theater, etc., v. Zurich, etc.

22STCV23950

Defendant’s Motions to Compel Further Discovery Responses

Motion to Compel Further Responses to Requests for Production

A response to a demand for production must contain

1.      A statement that the party will comply with the particular demand,

2.      a representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item, or

3.      an objection to the request.  (Code Civ. Proc., § 2031.210.)

The statement that the party is complying with the demand must state that the party to whom a demand for inspection has been directed will comply with the particular demand either 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.  (Code Civ. Proc., § 2031.220.) (Emphasis added.)

A representation of inability to comply with the particular demand for inspection shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.  (Code Civ. Proc., § 2031.230.)

Plaintiff’s responses to Defendant's Demands for Production Nos. 2-17, 19, and 22 fail to meet these requirements.  Plaintiff’s response does not indicate that Plaintiff is complying with the demand in whole or in part.  Plaintiff argues that it has made an unequivocal statement that “all responsive documents have been produced,” but Plaintiff’s response is anything but unequivocal.  Plaintiff limits its response to those items within Plaintiff’s possession, custody, or control.  Plaintiff’s response suggests that there are responsive documents not within Plaintiff’s possession, custody or control that Plaintiff is not producing.  In fact, Plaintiff indicates that it will produce subsequently located documents. 

Plaintiff’s responses must indicate that either it is producing the universe responsive documents or that it is not.  If Plaintiff is not, it must verify that a diligent search and a reasonable inquiry has been made in an effort to comply with the demand. Plaintiff must attest either that the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party.  If the latter, Plaintiff’s responses must set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.

The Court finds Plaintiff’s objection to Demand No. 18 to be well taken except that, the response should indicate that, with the exercise of the retainer agreement, no items responsive to the Demand “has ever existed.” 

The Court orders Plaintiff to provide Code of Civil Procedure-compliant responses to these demands by October 31, 2023.

The Court awards Defendant sanctions in the amount of $2,370 pursuant to Code of Civ. Proc., 2031.310(h), payable by Plaintiff and its counsel.  The sanctions are payable to Defendant by October 31, 2023.

Motion to Compel Further Responses to Special Interrogatories           

The Court finds Plaintiff’s supplemental responses to the interrogatories sufficient.  This motion is denied.

Defendant’s request for sanctions on this motion is denied.