Judge David A. Rosen, Case 20BBCV00280 2022-08-26 Tentative Ruling

Judge: David A. Rosen, Case: 20BBCV00280, Date: 2022-08-26 Tentative Ruling

Case Number: 20BBCV00280 Hearing Date: August 26, 2022 Dept: E

Hearing Date: 8-26-2022 – 10:00am
Case No: 20BBCV00280
Trial Date: 04/24/2023
Case Name: SALLES CONSTRUCTION INC., a California corporation v. 13003 VENTURA LLC, et al.

TENTATIVE RULINGS ON TWO MOTIONS TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION

RELIEF REQUESTED
Motion 1

Plaintiff, Salles Construction Inc., moves for an order compelling Defendant Masoud Aka Max Netty (“Defendant”) to provide supplemental verified responses to Request for Production of Documents (Set One) Nos. 6-7, 8-29, and 32-33.

Plaintiff also seeks monetary sanctions pursuant to CCP §2023 et seq. and 2031 et seq. in the amount of $997.50 against Defendant and its counsel of record, jointly and severally for attorneys’ fees and costs incurred by Plaintiff in connection with this motion.

Motion 2
Plaintiff, Salles Construction Inc., moves for an order compelling Defendant, 13003 Ventura LLC, to provide supplemental verified responses to Request for Production of Documents (Set One) Nos. 6-7, 8-29, and 32-33.

Plaintiff also seeks monetary sanctions pursuant to CCP §2023 et seq. and 2031 et seq. in the amount of $2,966.25 against Defendant and its counsel of record, jointly and severally for attorneys’ fees and costs incurred by Plaintiff in connection with this motion.

MOTION 1

Moving Party: Plaintiff, Salles Construction Inc.
Responding Party: Defendant, Masoud aka Max Netty

Opposition and Reply Submitted

Proof of Service Timely Filed (CRC Rule 3.1300): ok
16/21 Court Days Lapsed (CCP 1005(b)): ok
Proper Address: ok

BACKGROUND
Plaintiff’s Argument

Plaintiff argues that the instant requests were served nearly one year ago on September 23, 2021, and after receiving several extensions, Defendant finally served its responses on or about November 9, 2021. Plaintiff states that after extensive meet and confer efforts to resolve this dispute without resorting to motion practice, Defendant only supplemented seven out of the 33 requests. Plaintiff argues it had no other choice but to file this motion because Defendant indicated it would provide supplemental responses but repeatedly failed to do so.

Defendant’s Opposition
Defendant argues that it has agreed to produce documents responsive to all of the requests except two, because those two requests impermissibly ask for the production of documents protected by the work-product privilege. Defendant states that for the documents that have not been produced, Netty has been sifting though emails and text messages in an attempt to locate all documents, and that it is an arduous task given the size of the project.

Defendant argues there was no reason for Salles to file this motion since Netty has agreed to produce the requested documents except for the two objectionable categories. Defendant also argues there is no immediate need for Salles to obtain the documents requested from Netty as trial is not until April 2023, and there are no impending dates for this case. Defendant states there are no depositions scheduled and the only thing looming is a mediation at the end of November, which is months away. Defendant also states that Salles did not first proceed with an Informal Discovery Conference to resolve the issues before filing this motion.

Defendant states that Netty is agreeable to the court issuing an order for Netty’s production to occur on or before a date certain, but given the facts of this dispute, sanctions are not warranted and instead sanctions should be imposed against Salles and its attorneys for continuing to demand production of documents that clearly constitute attorney work-product.

Plaintiff’s Reply
Plaintiff argues that eight months have passed during which Plaintiff has made numerous attempts to meet and confer and resolve this dispute without resorting to motion practice. Plaintiff argues that even though Defendant states there is no “immediate need” for these documents and that even though Defendant has agreed to supplement its responses, this does not extinguish Defendant’s duties to in fact supplement its responses.

Plaintiff states the discovery sought is required for Plaintiff to prepare for the upcoming mediation on November 28, 2022, to depose Defendant, and to prepare for trial. Plaintiff states it has had to delay conducting Defendant’s deposition for many months due to Defendant’s failures to produce all relevant and discoverable documents.

Plaintiff also points out how it is irrelevant that Plaintiff did not first proceed with an IDC prior to filling the instant motion because this Court does not have an IDC requirement prior to filing a motion to compel. Plaintiff also points out how an IDC would be a waste of time since Defendant has agreed it must provide supplemental responses.

PROCEDURAL ANALYSIS

45 Days
Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand. (CCP §2031.310(c).)

As a preliminary matter, moving party did not address whether the instant motion is timely. The Court had to sift through the 85-page declaration to attempt to figure out if the instant motion is timely. It appears that the instant motion is timely, but clarification is needed at the hearing on this motion.

The confusion as to the timeliness of this motion stems from several factors. Based on Exhibit 2 in the Kangavari Declaration, Defendant Masoud Netty’s responses were served on November 12, 2021. In Exhibit E of the Kangavari Declaration, while meeting and conferring, Plaintiff’s counsel states that it has a motion to compel deadline for January 31, 2022, and the deadline would need to be pushed back to give Defendants an opportunity to complete supplementation and document production. The Court is unclear how Plaintiff arrived at a deadline of January 31, 2022, when moving party only has 45 days and the responses were served on November 12, 2021.

Further, in Exhibit G of the Kangavari Declaration, it appears that the parties agreed to the motion to compel deadline as to all of Plaintiff’s discovery remaining open until the document production and supplementation is complete. However, it is unclear who said what and who agreed to what based on the formatting of the emails in Exhibit G.

Meet and Confer
“The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (CCP §2031.310(b)(2).)

Defendants stated that they would provide supplemental responses and production after Plaintiff met and conferred with Defendants, but Plaintiff could never get the supplemental responses it was requesting. (Decl. Kangavari ¶.7.) The meet and confer requirement was met.

LEGAL STANDARD – COMPEL FURTHER – REQUESTS FOR PRODUCTION

Under §2031.210, the party to whom a demand for inspection, copying, testing, or sampling has been directed shall respond separately to each item or category of item by any of the following:

(1)¿A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling pursuant to paragraph (2) of subdivision I of Section 2031.030 and any related activities.

(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.

(3)¿An objection to the particular demand for inspection, copying, testing, or sampling.

(CCP §2031.210(a).)

A statement that the party to whom a demand for inspection, copying, testing, or sampling has been directed will comply with the particular demand shall state that the production, inspection, copying, testing, or sampling, and related activity demanded, will be allowed 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. (CCP §2031.220.)

Under Code of Civil Procedure section 2031.310, the Court may order a responding party to serve a further response to a request for production when the Court finds that any of the following apply:

A statement of compliance with the demand is incomplete;

A representation of inability to comply is inadequate, incomplete, or evasive.

An objection in the response is without merit or too general.

Unlike with requests to compel further interrogatories, a moving party seeking to compel further responses for requests for production must show good cause along with satisfaction of the meet and confer requirement. (CCP§ 2031.310(b.) “Good cause” is shown when a moving party provides sufficient facts that the requests are [discovery] relevant, (Kirkland v. Superior Court (2002) 95 Cal.App.4^th 92, 97.) that is, reasonably calculated to lead to the discovery of admissible evidence. Plaintiff has shown good cause, for the most part, here.

ANLAYSIS

6-7, 10-29, and 32-33
In Opposition to the instant motion to compel further responses to numbers 6-7, 10-29, and 32-33, Defendant states as follows:

Salles’ document request nos. 6, 7, 10-29, 32 and 33 ask Netty to produce a variety of documents such as emails, texts and other written communications regarding the project. A large volume of written communications are already in Salles’ possession. As for the other written communications that have not yet been produced, as told to Salles’ counsel many times, Netty is in the process of locating these documents to the extent they still exist, and as soon as he does and they can be organized, etc., they will be produced to Salles forthwith. Given this promise to produce, there is no dispute about these requests, and this motion was unnecessary. Even so, Netty does not object to the court issuing an order setting forth a date certain for the further production to occur.

(Opposition, p.3.)

TENTATIVE RULING 6-7, 10-29, and 32-33
Since Defendant has agreed to produce further documents for the instant requests, motion to compel further supplemental responses and document production for numbers 6-7, 10-29, and 32-33 is GRANTED. Defendant is ordered to provide under oath, without objections, further code complaint responses, CCP 2031.210 – 2031.240, noting, inter alia, which documents it has or will now produce in response to which Requests. Defendant is to so respond and produce the responsive documents within twenty days.

8-9
RPD 8
Produce all DOCUMENTS YOU will admit into evidence at trial.

RESPONSE TO RPD 8
Objection, this request: (1) prematurely seeks to elicit the opinions and conclusions of expert(s) prior to any timely demand for the exchange of expert witness lists pursuant to Code of Civil Procedure Section 2034; (2) in whole or in part, seeks to elicit information protected from disclosure by the attorney-client privilege and/or attorney work product doctrine as the Court of Appeal held in Nacht & Lewis Architects, Inc. v. Superior Court, 47 Cal.App.4th 214and City of Long Beach v. Sup.Ct. (1976) 64 Cal.App.3d 65, 73; (3) is overly broad, unduly burdensome and harassing as the documents are equally available and/or already in the possession of Propounding Party; and (4) violates first and third rights of privacy as guaranteed by the U.S. and California Constitutions.

RPD 9
Produce all DOCUMENTS YOU will show the trier of fact at trial.

RESPONSE TO RPD 9
Objection, this request: (1) prematurely seeks to elicit the opinions and conclusions of expert(s) prior to any timely demand for the exchange of expert witness lists pursuant to Code of Civil Procedure Section 2034; (2) in whole or in part, seeks to elicit information protected from disclosure by the attorney-client privilege and/or attorney work product doctrine as the Court of Appeal held in Nacht & Lewis Architects, Inc. v. Superior Court, 47 Cal.App.4th 214and City of Long Beach v. Sup.Ct. (1976) 64 Cal.App.3d 65, 73; (3) is overly broad, unduly burdensome and harassing as the documents are equally available and/or already in the possession of Propounding Party; and (4) violates first and third rights of privacy as guaranteed by the U.S. and California Constitutions.

DISCUSISON 8-9
In addition to Plaintiff arguing that the instant requests are relevant and discoverable, Plaintiff argues further responses and documents should be compelled for RPD 8-9 because:

Plaintiff is entitled to serve discovery seeking information about percipient witnesses including the identities and locations of people who have knowledge of any discoverable matter. Cal. Code Civ. Proc. §§ 2017.010, 2030.010(b); see also Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807, 816; Williams, 3 Cal.5th at 544. Plaintiff is also entitled to seek information and documents supporting another party’s legal or factual contentions or defenses. See CCP § 2017.010; Rifkind v. Superior Ct. (1994) 22 Cal.App.4th 1255, 1261. Thus, the requests are within the scope of discovery.

Defendant should be compelled to produce any documents being withheld on the basis of its meritless and boilerplate objections. Courts generally do not sustain objections based on vagueness or ambiguity unless the request is totally unintelligible, and these Requests clearly are not totally unintelligible. Deyo v. Kilbourne, 84 Cal.App.3d at 783. Defendant has a duty not to deliberately misconstrue discovery requests in order to provide evasive answers. Id. Even if a request is somewhat ambiguous, if “the nature of the information sought is apparent, the proper solution is to provide an appropriate response.” Id. Defendant owes Plaintiff a duty to respond in good faith, as best as it can. See Id; Standon v. Superior Court (1990) 225 Cal.App.3d 898, 901.

Moreover, Plaintiff has sufficiently defined the scope of the requests and narrowly tailored the Requests to documents arising out a reasonable period of time. During the meet and confer process, Plaintiff also provided elucidation as to what was being sought. Accordingly, none of Defendant’s objections, including its objections that the Requests are vague and ambiguous or that they violate privileges and privacy, are valid, and Defendant appears to agree given that its counsel previously indicated in writing that Defendant will provide supplemental responses and produce documents. Defendant, however, has failed to do so again and again, and intervention by the Court is necessary.

(Pl. Sep. Stmt. p.13-17.)

In Opposition, Defendant argues as follows:

Salles’ request nos. 8 and 9 are objectionable based on the work-product privilege. Specifically, request nos. 8 and 9 ask for documents Netty intends to introduce as evidence at trial and show the trier of fact. Such requests are inappropriate because they implicate Netty’s counsel’s opinion of the strength and weakness of the case as represented by the group identification of documents selected by counsel as being important enough to introduce at trial and/or show to a jury. Since the production of documents involve the mental impressions, conclusions, opinions, or legal theories of Netty’s attorney concerning the litigation, the court should deny Salles’ request to compel with respect to request nos. 8 and 9.

(Oppo. p. 3.)

In Reply, Plaintiff argues that:

A party is entitled to seek information and documents supporting another party’s legal or factual contentions or defenses. See Code Civ. Proc. § 2017.010; Rifkind v. Superior Court, 22 Cal.App.4th 1255, 1261 (Cal. Ct. App. 1994). Thus, the requests are within the scope of discovery.

Moreover, even if Defendant believes these Requests are objectionable “based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.” Code Civ. Proc. § 2031.240(c). Defendant has a duty to provide a privilege log, which Plaintiff has asked for numerous times during the extensive meet and confer process conducted by Plaintiff’s counsel. The “Instructions” included in Plaintiff’s Requests for Production, Set One, also clearly outline and require Defendant to provide a privilege log. Accordingly, the Court should order Defendant to provide a Code-compliant privilege log if it has withheld any documents on the basis of privilege.

(Reply, p.3-4.)

TENTATIVE RULING 8-9
While these two Requests by Plaintiff may conceptually seek discovery relevant documents, the Requests are poorly phrased and thus appear to seek to invade the work product doctrine. Defendants plans and strategies as to Trial, to which these Requests are expressly directed, are not discoverable in this fashion. Originally, Defendant asserted four objections in its response to the instant requests. However, in Opposition, the only objection that Defendant continues to maintain is the objection based on the attorney work-product privilege. Further, Plaintiff’s argument that a privilege log is necessary, is not supported by our law. “If an objection is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.” (CCP §2031.240(c)(1).) Defendant provided sufficient information such that a privilege log re: work product is not necessary, especially given the text of Requests 8 and 9.

The Motion to Compel as to Requests 8 and 9 is Denied.

TENTATIVE RULING SANCTIONS
Except as provided in subdivision (j), the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) 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. (CCP §2031.310(h).)

“The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.” (Cal. Rules of Court 3.1348(a).)

Plaintiff requests sanctions of $997.50 based on the following:

Plaintiff’s counsel has a billing rate of $375 per hour. (Kangavari Decl. ¶8.) One hour was spent preparing this motion, and an additional 30 minutes reviewing the Opposition and drafting a reply. Counsel expects to spend at least 1 hour traveling to and from the hearing and attending the hearing on Plaintiff’s motion. Also, a $60 filling fee.

Opposition notes sanctions are not warranted because there is no dispute about Salles’ right to the vast majority of documents requested since Netty has agreed to produce the requested documents. Opposition argues sanctions should be imposed against Plaintiff for demanding production of documents that clearly constitute attorney work-product.

Reply argues that sanctions are warranted based on the abuse of the discovery process and the fact that the motion was opposed without substantial justification. Reply further argues sanctions are warranted because eight months has passed since Plaintiff began a seemingly futile attempt to obtain Defendant’s compliance with discovery requests.

In Reply, Plaintiff also cited the following:

“It is a central precept to the Civil Discovery Act of 1986 . . . that civil discovery be essentially self-executing” See Townsend v. Superior Court, 61 Cal.App.4th 1431, 1434-35 (Cal. Ct. App. 1998). “Conduct frustrates the goal of a self-executing discovery system when it requires the trial court to become involved in discovery because a dispute leads a party to move for an order compelling [compliance with a discovery mechanism].” See Clement v. Alegre, 177 Cal.App.4th 1277, 1291 (Cal. Ct. App. 2009).

(Reply, p.2.)

If the Court determines at the hearing that this Motion to Compel further responses and production is timely, the Court awards reasonable sanctions of $660.00 to Plaintiff, payable jointly and severally by Defendant and its counsel of record. Sanctions to be paid in full within 30 days of the hearing hereon.

MOTION 2

PRELIMINARY MATTER
Technically no Opposition was filed. However, on 08/17/2022, a notice of errata was filed by Defendant stating that the Opposition that was filed only under the name of Defendant Max Netty, but the motion should have also been submitted on behalf of both defendants in responses to both motions to compel. The notice of errata was not filed in a timely fashion in the sense that it was not filed when Opposition was due.

In reply, Plaintiff argues as follows:

Plaintiff’s Motion to Compel and Request for Sanctions as to Defendant Ventura should be granted in its entirety because no opposition has been filed in response to the moving papers, and the notice of errata filed by Defendants on August 17, 2022, does not cure Defendant Ventura’s failure to file a separate opposition to Plaintiff’s motion against Defendant Ventura. A notice of errata is used to correct minor errors or omissions in declarations, motions, or other pleadings such as the late submission of a missing page or a replacement page made necessary by a glitch. Failing to file an opposition is not a “minor” error, and Defendant Ventura has not cited to any authority that it does not have to file a separate opposition to Plaintiff’s motion to compel against it.

(Reply, p.4.)

Actually, only a Reply was submitted by Plaintiff to the Opposition and two Replies weren’t submitted. However, an objection to the notice of errata was submitted arguing the same points that the notice of errata should be rejected and the motion to compel as to 13003 Ventura should be granted in its entirety, with sanctions of $2,996.25 awarded.

TENTATIVE RULING 6-7, 8-29, 32-33
The Court adopts the same ruling from Motion 1 for Motion 2 as to requests 6-7, 8-29, and 32-33.

TENTATIVE RULING SANCTIONS

Plaintiff requests sanctions in the amount of $2,996.25. Plaintiff bases its sanction request on the following:

A billing rate of $375 per hour. (Decl. Kangavari ¶8.) Four and a quarter (4.25) hours preparing the motion, 1.5 hours reviewing Opposition and drafting a reply, 2 hours traveling to and from the hearing and attending the hearing on the motion, and a $60.00 filling fee.

The Court awards reasonable sanctions to Plaintiff of $2,122.00, payable within 30 days by Defendant and its counsel of record, jointly and severally.