Judge: Daniel S. Murphy, Case: 21STCV27665, Date: 2022-08-08 Tentative Ruling

Case Number: 21STCV27665    Hearing Date: August 8, 2022    Dept: 32

BACKGROUND

            On July 28, 2021, Plaintiff Northern California Collection Service, Inc. filed a complaint for open book monies due against Defendant Jaime Huete. This is a collections case where Defendant became indebted to the State Compensation Insurance Fund (SCIF) for unpaid insurance premiums. SCIF assigned the account to Plaintiff for collection purposes. After receiving unsatisfactory responses to requests for production, Defendant filed the instant motion to compel further responses.

LEGAL STANDARD

On receipt of a response to a request for inspection, the demanding party may move for an order compelling further responses to the demand if the demanding party deems that (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. (Code Civ. Proc., § 2031.310, subd. (a).)

MEET AND CONFER

            Motions to compel further responses must be accompanied by a meet and confer declaration demonstrating an attempt to resolve the issue informally. (Code Civ. Proc., §§ 2030.300(b)(1), 2031.310(b)(2), 2033.290(b)(1).) The Court finds that Plaintiff has satisfied the meet and confer requirement. (See Small Decl. ¶ 4.)

DISCUSSION

            This motion concerns only two requests for production, which simply asked for documents supporting each of Plaintiff’s two causes of action: (1) open book account; and (2) account stated. As explained below, all of Plaintiff’s objections are without merit.

            Plaintiff first objected that service of the requests was defective because it did not contain certain information about the person making the service as required by Code of Civil Procedure section 1013b, subdivision (a)(3). However, Section 1013b provides that “[p]roof of electronic service may be made by any of the following methods” and prescribes four methods. The proof of service here complies with the requirements set forth in subdivision (a)(1). (See LeLievre Decl., Ex. B, p. 5.) In any case, substantial compliance with a statute is sufficient if the purpose of the proof of service is fulfilled. (L.A. Chem. Co. v. Superior Court (1990) 226 Cal.App.3d 703, 712; see also St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 779 [“Where there is compliance as to all matters of substance technical deviations are not to be given the stature of noncompliance”].)

            Plaintiff then objected that the requests called for an improper date of production of May 6, 2022. Plaintiff argues the correct date of production is May 9, 2022 based on a service by mail date of April 1, 2022. However, as discussed above, Defendant properly served the requests by email. Giving Plaintiff approximately 36 days to produce the documents was proper. (See Code Civ. Proc., § 1010.6, subd. (a)(4)(B).)

            Plaintiff next objected that the requests are vague and unintelligible because they request documents supporting the “claims asserted” even though Plaintiff has asserted “causes of action,” not claims. Plaintiff cannot credibly argue that the use of “claim” rather than “cause of action” made the requests too ambiguous to respond to.

            Plaintiff objected that the requests failed to specify whether the inspection would permanently alter or destroy the items involved. (Code Civ. Proc., § 2031.030, subd. (c)(4).) For a basic request for production of documents, the failure to include this technical requirement does not negate the requests or absolve Plaintiff’s duty to respond properly. (See St. Mary, supra, 223 Cal.App.4th at p. 779.) There is no indication of any risk of destruction or alteration.

            Plaintiff objected based on work product privilege but fails to identify the documents affected or explain how those documents are protected. (See Code Civ. Proc., § 2031.240, subd. (c)(1).) Documents are not privileged merely because they are provided to counsel. (Wellpoint Health Networks v. Superior Court (1997) 59 Cal.App.4th 110, 119.)

            Lastly, Plaintiff objected on grounds that the documents are equally available to Defendant, who can subpoena them directly from SCIF. However, Defendant cannot know which documents support Plaintiff’s claims. That is the very purpose of this discovery. The possibility of obtaining the documents from another source does not absolve Plaintiff of the duty to respond to discovery. Plaintiff has not demonstrated that production would result in undue burden or expense. (See Code Civ. Proc., § 2031.310, subd. (d).)

            Plaintiff’s purported statement of compliance is defective. Plaintiff stated that it will “produce all non-derivative documents in its possession, custody, and control, it received from it assignor State Compensation Insurance Fund.” The response improperly limits production to only those documents received from SCIF, even if there are other documents responsive to the requests. It is also unclear what Plaintiff means by “non-derivative.” Either Plaintiff will produce all responsive documents in its possession, or it will not. There is no legal basis for making a statement of compliance only as to “non-derivative” documents.

CONCLUSION

            Defendant’s motion to compel further responses is GRANTED. Plaintiff is to provide further responses within 15 days. Sanctions are awarded against Plaintiff in the amount of $1,500  to be paid within 30 days.