Judge: David B. Gelfound, Case: 23CHCV00696, Date: 2024-03-18 Tentative Ruling

Case Number: 23CHCV00696    Hearing Date: March 18, 2024    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE

Motion filed: 2/13/24

MOVING PARTY: Defendant Wendy M. Taylor and Jag Tax Management & Financial Services (“Defendants”) 

RESPONDING PARTY: Plaintiff W.H.S. Humble & Associates, LLC (“Plaintiff”) 

NOTICE: ok 

RELIEF REQUESTED: An order compelling Plaintiff to provide further verified responses, without objections, to Request for Production of Documents, Set One, which was served on Plaintiff on September 13, 2023; additionally, awarding Defendants monetary sanctions in the amount of $5,311.65.

TENTATIVE RULING: The motion is GRANT IN PART. The request for sanctions is DENIED.

BACKGROUND

On March 8, 2023, Plaintiff initiated this action against Defendants and Does 1 to 25, alleging the following causes of action: (1) breach of contract; (2) intentional misrepresentation; 3) negligent; (4) breach of fiduciary duty; (5) constructive fraud; (6) unfair business practices; and (7) accounting. Subsequently, on May 10, 2023, Defendants filed their Answer to the Complaint.

On February 13, 2024, Defendants file the instant Motion to Compel Plaintiff’s Further Responses to their Request for Production of Documents, Set One (the “Motion”), which was served on Plaintiff on September 13, 2023. Additionally, Defendants seek monetary sanctions in the amount of 45,311.65.

Subsequently, on March 5, 2024, Plaintiff filed its Opposition to the Motion. Following this, on March 11, 2024, Defendants replied.

ANALYSIS

Code of Civil Procedure section 2031.310 subdivision (a) provides, “On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: (1) A statement of compliance with the demand is incomplete. (2) A representation of inability to comply is inadequate, incomplete, or evasive. (3) An objection in the response is without merit or too general.”

Code of Civil Procedure section 2031.310 subdivision (h) provides, in part, that “Except as provided in subdivision (j) [inapplicable here], 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.”

A.    Procedural Requirements

1.)    45-Day Rule

“Unless notice of this motion [to compel further responses to production of documents] 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 propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the demand for productions.” (Code Civ. Proc., § 2031.310, subd. (c).)

Plaintiff served its responses to Defendants’ Request for Production of Documents, Set One, on November 29, 2023. (Sisco Decl., ¶ 3.) Subsequently, Plaintiff granted Defendants 30-day extension to file the Motion to Compel (Id., Ex. “C”), establishing February 13, 2024, as the deadline for Defendants to file the motion under Code of Civil Procedure section 2031.310 subdivision (c).

Defendant filed the instant Motion on February 13, 2024, meeting the established deadline.

2.)    Meet and Confer

A motion to compel further responses to demand for productions must be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2031.310, subd. (b)(2).)

            Defendant engaged in the required meet and confer process with Plaintiff before filing the instant Motion. Efforts made include several sessions of meet and confer before Plaintiff granted the 30-day extension to file the motion to compel. (Sisco Decl., ¶ 3.) Furthermore, on January 30, 2024, Defendant sent a meet and confer letter outlining the issues related to the responses. (Id., ¶ 5.)

            Therefore, the meet and confer requirements as specified in Code of Civil Procedure section 2031.310 subdivision (b)(2) are satisfied.

3.)    Separate Statement

A motion to compel further responses to a demand for production must be accompanied by a separate statement. (Cal. Rules of Court, rule 3.1345(a)(3).) “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.” (Cal. Rules of Court, rule 3.1345(c).)

Defendant has met the above requirement by filing a separate statement explaining the demand for production at issue, Plaintiff’s responses, and why further responses are necessary.

B.     Code of Civil Procedure Section 2031.280 Subdivision (a) Requirements

“Any documents or category of documents produced in response to a demand for inspection, copying, testing, or sampling shall be identified with the specific request number to which the documents respond.” (Code Civ. Proc., § 2031.280, subd. (a).)

In their Motion, Defendants assert that Plaintiff produced over 900 pages of documents but failed to properly identify the specific request number each document was responding to. (Mot., at 9.) However, after the filing of the instant Motion, Plaintiff produced a chart that clearly identifies each document and the individual request it responds to. (Lake Decl., ¶ 2., Ex. “A,” Reply, at 2.)

Given this development, the Court concludes that Plaintiff’s action in providing the chart satisfied the requirements under Code of Civil Procedure section 2031.280 subdivision (a), rendering Defendants’ argument moot.

C.    Plaintiff’s Responses to Request for Production of Documents Nos. 1-2, 4-6, 40-46, 54, 56-59, 67, 69, 71-72, 75-76, 79, and 85-86

Code of Civil Procedure section 2031.220 provides that “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.”

For Requests Nos. 1-2, 4-6, 40-46, 54, 56-59, 67, 69, 71-72, 75- 76, 79, and 85-86, Plaintiff’s responses state, “Responding Party will produce the responsive documents in its possession, custody, or control.”

The Court finds that such statements satisfy the requirements under Code of Civil Procedure section 2031.220. Defendant has not contended that Plaintiff failed to produce these documents as promised in compliance with the requests. Therefore, the Court concludes that Plaintiff’s responses to the above-listed Nos. are in compliance with the code.

Therefore, the Court DENIES the Motion to Compel Further Responses to Request for Production of Documents Nos. 1-2, 4-6, 40-46, 54, 56-59, 67, 69, 71-72, 75- 76, 79, and 85-86.

D.    Plaintiff’s Responses to Request for Production of Documents Nos. 49, 51-53, 55, 60-66, 70, 73-74, and 77-78

Code of Civil Procedure section 2031.230 states, “A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling 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.”

            For Nos. 49, Plaintiff answers, “Responding Party is unable to respond to this request because there are no responsive documents in its possession, custody or control, nor have any such documents ever been within Responding Party's possession, custody, or control as payments were not made to Responding Party.”

            For Nos. 51, Plaintiff responds, “Responding Party is unable to respond to this request because there are no responsive documents in its possession, custody or control, nor have any such documents ever been within Responding Party's possession, custody, or control as payments were not made to WENDY.”

            For Nos. 52, 53, Plaintiff’s responses are “Responding Party is unable to respond to this request because there are no responsive documents in its possession, custody or control, nor have any such documents ever been within Responding Party's possession, custody, or control as payments were not made by Shared Clients to Responding Party.”

            For Nos. 55, Plaintiff responds, “Responding Party is unable to respond to this request because there are no responsive documents in its possession, custody or control, nor have any such documents ever been within Responding Party's possession, custody, or control as expenses were not incurred by "RAPPORT" but rather by Responding Party.”

            For Nos. 60, Plaintiff’s response states, “Responding Party is unable to respond to this request because there are no responsive documents in its possession, custody or control, nor have any such documents ever been within Responding Party's possession, custody, or control as there is no money due from Responding Party.”

            For Nos. 61, Plaintiff answers, “Responding Party is unable to respond to this request because there are no responsive documents in its possession, custody or control, nor have any such documents ever been within Responding Party's possession, custody, or control as expenses were not reimbursed to "RAPPORT" but rather to Responding Party.”

            For Nos. 62, Plaintiff’s answer states, “Responding Party is unable to respond to this request because there are no responsive documents in its possession, custody or control, nor have any such documents ever been within Responding Party's possession, custody, or control as expenses would not be due to "RAPPORT" but rather to Responding Party.”

            For Nos. 63, Plaintiff responds, “Responding Party is unable to respond to this request because there are no responsive documents in its possession, custody or control, nor have any such documents ever been within Responding Party's possession, custody, or control as money was not paid by "RAPPORT" but rather to Responding Party.”

            For Nos. 64, Plaintiff’s response states, “Responding Party is unable to respond to this request because there are no responsive documents in its possession, custody or control, nor have any such documents ever been within Responding Party's possession, custody, or control as money would not be due from "RAPPORT" to Defendants.”

            For Nos. 65, Plaintiff responds, “Responding Party is unable to respond to this request because there are no responsive documents in its possession, custody or control, nor have any such documents ever been within Responding Party's possession, custody, or control as "RAPPORT" would not reimburse expenses to Responding Party.”

            For Nos. 66, Plaintiff’s response states, “Responding Party is unable to respond to this request because there are no responsive documents in its possession, custody or control, nor have any such documents ever been within Responding Party's possession, custody, or control as "RAPPORT" would not owe expenses to Responding Party.”

            For Nos. 70, Plaintiff responds, “Responding Party is unable to respond to this request because there are no responsive documents in its possession, custody or control, nor have any such documents ever been within Responding Party's possession, custody, or control as "RAPPORT" would not communicate with Responding Party.”

            For Nos. 73, 74, 77, 78, Plaintiff’s responses state, “Responding Party is unable to respond to this request because there are no responsive documents in its possession, custody or control, nor have any such documents ever been within Responding Party's possession, custody, or control as none exist.”

Here, the Court finds that Plaintiff’s responses are compliant with Code of Civil Procedure section 2031.230, representing a code-compliant assertion of inability to comply with the specified demands. These responses explicitly state that Plaintiff “is unable to respond,” and they specify the reason for this inability to comply, namely that the requested documents “have [never] been within its possession, custody, or control.”

Therefore, the Court DENIES the Motion to Compel Further Responses to Request for Production of Documents Nos. 47-49, 51-53, 55, 60-66, 70, 73-74, and 77-78.

E.     Plaintiff’s Responses to Request for Production of Documents Nos. 7-39, 47-48, and 84

For Nos. 7-39, and 84, Plaintiff responds, “Responding Party will produce the responsive documents in its possession, custody, or control if it is able to access them. Access may not be possible as responsive documents, if they exist, would be within Propounding Party's email system which Responding Party no longer has access to.” (Underlines added.)

For Nos. 47, 48, Plaintiff’s responses state, “There are no agreements to which Responding Party is a party, but Responding Party will produce the responsive documents to which Propounding Party is a party which are in its possession, custody, or control if it is able to access them. Access may not be possible as responsive documents, if they exist, would be within Propounding Party's computer system which Responding Party no longer has access to.” (Underlines added.)

            The Court finds that Plaintiff’s conditional statement of compliance does not meet the requirements set forth under Code of Civil Procedure section 2031.220. Nor do such conditional responses constitute a valid representation of Plaintiff’s inability to comply under Code of Civil Procedure section 2031.230. When Plaintiff states it will comply with the particular demand in part, a compliant response necessitates that Plaintiff to identify the information it will comply with and affirm its inability to comply with the remaining requests, providing specific reasons. This approach is necessary to satisfy the requirements of both Code of Civil Procedure sections 2031.220 and 2031.230.

            Therefore, the Court GRANTS the Motion to Compel Further Responses to Request for Production of Documents Nos.  7-39, 47-48, and 84.

F.     Plaintiff’s Responses to Request for Production of Documents Nos. 3, 50, 68, and 80-83

Code of Civil Procedure section 2031.240 subdivision (b) provides, in pertinent part, that:

“If the responding party objects to the demand for inspection, copying, testing, or sampling of an item or category of item, the response shall do both of the following:

(1) Identify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made.

(2) Set forth clearly the extent of, and the specific ground for, the objection. If an objection is based on a claim of privilege, the particular privilege invoked shall be stated. If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted.”

Plaintiff objects to Request Nos. 3, 50, 68, and 80-83 in their entirety.

Plaintiff’s objection to No. 3 states, “Responding Party objects to this request on the grounds set forth in the General Objections as though fully set forth herein. Responding Party further objects to this request on the grounds that it is vague and ambiguous as drafted, including the undefined term "communication." Responding Party further objects to this request on the grounds that it is overbroad and unduly burdensome and made such by the use of the defined terms and the absence of any subject matter. Responding Party further objects to this request on the grounds that it seeks documents which are neither relevant nor reasonably calculated to lead to the discovery of admissible evidence.”

            Plaintiff objects to Nos. 68, stating “Responding Party objects to this request on the grounds set forth in the General Objections as though fully set forth herein. Responding Party further objects to this request on the grounds that it is vague and ambiguous as drafted, including its use of the term "RAPPORT" which although capitalized is not defined. Responding Party further objects to this request on the grounds that it is overbroad and unduly burdensome and made such by the use of the defined terms. Responding Party further objects to this request on the grounds that it seeks documents which are neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. Responding Party further objects to this request on the grounds that it is overbroad and unduly burdensome in that it does not limit itself in terms of time or subject matter.”

            For Nos. 3 and 68, Plaintiff contends, in its response, that the terms “communication” and “RAPPORT” are not defined, arguing that the requests are therefore overbroad and unduly burdensome. Contrary to Plaintiff’s assertion, the Court notes that “communication” is explicitly defined as the first term under the DEFINITIONS section of the Request for Production. (Sisco Decl., Ex. “A,” at 6.) Regarding “RAPPORT,” the Court finds that the term has an apparent meaning in this context, referring to “Plaintiff’s principal, Andrew Rapport (‘Rapport’)” as introduced in the Complaint. (Compl., at 2.) Despite “RAPPORT” not being listed under the DEFINITIONS section of the Request for Production, the Court finds Plaintiff’s argument – that use of its principal’s name in a demand renders the demand vague or ambiguous – is unpersuasive. The Court concludes that Plaintiff should be able to sufficient provide responses to Nos. 3 and 68, based on the defined term or the apparent meaning of “RAPPORT”.

            Accordingly, the Court OVERRULES the objections and GRANTS the Motion to Compel Further Responses to Request for Production of Documents Nos. 3, and 68.

Plaintiff’s objection to Nos. 50, 80, 81, 82 states, “Responding Party objects to this request on the grounds set forth in the General Objections as though fully set forth herein. Responding Party further objects to this request on the grounds that it is vague and ambiguous as drafted, including the phrase "after Defendants were introduced to RAPPORT" and the term "RAPPORT" which although capitalized is not defined. Responding Party further objects to this request on the grounds that it is overbroad and unduly burdensome and made such by the use of the defined terms. Responding Party further objects to this request on the grounds that it seeks documents which are neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. Responding Party further objects to this request on the grounds that it invades the rights of privacy afforded to Responding Party and/or third-parties under the United States Constitution, California Constitution and Federal and California statutory law and case law.”

Plaintiff objects to Nos 83, stating, “Responding Party objects to this request on the grounds set forth in the General Objections as though fully set forth herein. Responding Party further objects to this request on the grounds that it is vague and ambiguous as drafted, including the phrase "YOUR opening an account." Responding Party further objects to this request on the grounds that it is overbroad and unduly burdensome and made such by the use of the defined terms. Responding Party further objects to this request on the grounds that it seeks documents which are neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. Responding Party further objects to this request on the grounds that it invades the rights of privacy afforded to Responding Party and/or third-parties under the United States Constitution, California Constitution and Federal and California statutory law and case law.”

            For Requests Nos. 50, 80-83, Plaintiff further objects on the grounds of relevancy and privacy. However, the Court finds these objections unsubstantiated.

Request No. 50 pertains to information about shared clients of the joint venture between Plaintiff and Defendants. Request Nos. 80-83 relate to transactions with a third-party financier/lender with whom the joint venture opened a merchant service account. (Compl., ¶ 16.) Defendants argue that this information is relevant and material to the business dispute and supporting their affirmative defenses, particularly regarding Plaintiff’s conduct and operations within the joint venture.

The Court determines that Defendants have met their burden to show good causes exist for compelling responses as to Requests Nos. 50, and 80-83 (Code of Civil Procedure section 2031.310 subdivision (b)(1).)

            Regarding privacy, the Court references the criteria established in Hill v. National Collegiate Athletic Assn. (1994) 7 Cal. 4th 1, which necessitates a demonstrable legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a serious threat of intrusion. (Id., at 35-37.) Here, Plaintiff’s broad claim of privacy interest falls short of these standards, failing to substantiate a legally protected interest or a reasonable expectation of privacy.

            Consequently, the Court GRANTS the Motion to Compel Further Responses to Request for Production of Documents Nos. 50, and 80-83.

G.    Sanctions

            Defendants has requested monetary sanctions against Plaintiff pursuant to Code of Civil Procedure sections 2023.010, 2023.030, and 2031.310. (Mot., at 11.)

            Considering the Court’s decision to GRANT IN PART and DENY IN PART the Motion, the mandatory sanctions, under Code of Civil Procedure section 2031.310, against a party who unsuccessfully makes or opposes a motion to compel further response does not apply in this instance.

            Furthermore, the Court exercises its discretion by refraining from imposing permissive sanctions under Code of Civil Procedure section 2023.030. This decision is due to a lack of sufficient evidence of any misuses of the discovery process by the parties.

            Consequently, Defendants’ Request for Monetary Sanctions is DENIED.

CONCLUSION

Defendant’s Motion to Compel Further Responses to Request for Production of Documents, Set One, is GRANTED IN PART.

Defendant’s Request for Monetary Sanction is DENIED.

Plaintiff is ordered to provide supplemental responses to Request for Production of Documents, Set One, Nos. 3, 7-39, 47-48, 50, 68, and 80-84.

Moving party is ordered to provide notice of this order.