Judge: David A. Hoffer, Case: 30-2019-11177449, Date: 2022-09-19 Tentative Ruling

Plaintiff, Avalon Funding Corporation’s (“Plaintiff”) Motion to Compel Further Responses to Demand for Production of Documents from the Deposition of Bradley Lowe (ROA 391) is MOOT.

As Plaintiff concedes in its reply brief, the motion is moot because Defendant, Aptim Environmental & Infrastructure, LLC (“Aptim”), produced all documents responsive to Request for Production of Documents Nos. 4 and 5 contained in the Notice of Deposition of Bradley Lowe, which are at issue in this motion.  (Mtn., Ex. A; Reply at 1:28-2:2; Miner Decl., ¶ 10, Ex. 4.)

However, there is still the matter of sanctions.  Where monetary sanctions are sought in connection with a motion to compel an answer or production at deposition, the court is required to impose such sanctions against the losing party unless it finds the losing party acted with “substantial justification” or “other circumstances make the imposition of the sanction unjust.”  (Code Civ. Proc. §§ 2023.030(a), 2025.480(j).)

The Court finds that sanctions against Aptim and its counsel are not warranted here.  The meet and confer correspondence demonstrates that Aptim properly engaged in meet and confer efforts regarding the document requests at issue.   (See Miner Decl. ¶ 10, Ex. 5.)  The correspondence shows that Aptim intended to produce any additional responsive documents and that it was attempting to locate said documents, but its client contact who was responsible for compiling the documents was out sick with COVID.  (Id.)  Further, Aptim’s counsel stated on May 13, 2022, that its client contact was back in the office and searching for documents and that Aptim expected to produce any responsive documents by the end of the following week.  The responsive documents were then produced within the time frame stated by Aptim’s counsel in the May 13, 2022 email. Under these circumstances, the Court finds that sanctions are not warranted.

Accordingly, Plaintiff’s request for sanctions is denied.

Aptim’s request for sanctions against Plaintiff is also denied as the Court finds that Plaintiff’s motion was not entirely unmeritorious given the over one month delay in producing the additional responsive documents.

Plaintiff is ordered to give notice.