Judge: David B. Gelfound, Case: 23CHCV01029, Date: 2025-01-06 Tentative Ruling

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Case Number: 23CHCV01029    Hearing Date: January 6, 2025    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

MOTION TO COMPEL FURTHER RESPONSES AND PRODUCTION TO REQUESTS FOR PRODUCTION, NO. 22, SET TWO

Motion filed: 2/29/24

MOVING PARTY: Defendant/Cross-Complainant L.A. Hardwood Flooring, Inc.

RESPONDING PARTY: Plaintiff K L Ventures Inc. (“Plaintiff”)

NOTICE: OK.

RELIEF REQUESTED: An order from this Court compelling Plaintiff to provide further responses to Defendant/Cross-Complainant’s Requests for Production, No. 22, Set Two.

TENTATIVE RULING: The motion is DENIED. Plaintiff’s request for monetary sanctions is DENIED.

BACKGROUND

On April 11, 2023, Plaintiff K L Ventures Inc. (“Plaintiff”) filed its Complaint against Defendant/Cross-Complainant L.A. Hardwood Flooring Inc. d/b/a Eternity Floors (“LAHF” or “Defendant/Cross-Complainant”), and Does 1 through 20, alleging the following causes of action: (1) Breach of Express Warranty, (2) Breach of Implied Warranty - Merchantability, (3) Breach of Implied Warranty – Fitness of Purpose, and (4) Fraud. On May 16, 2023, LAHF filed its Answer to the Complaint. Subsequently, on September 17, 2024, Plaintiff substituted Defendant Elliot Goldstein for Doe 1.

On May 16, 2023, Defendant/Cross-Complainant LAHF filed its Cross-Complaint against Roes 1 through 100, alleging: (1) Implied Equitable Indemnity, (2) Breach of Implied Warranties, (3) Contribution, and (4) Declaratory Relief.

On February 29, 2024, LAHF filed the instant Motion to Compel Further Responses to Request for Production, No. 22, Set Two (the “Motion”). Subsequently, on April 4, 2024, Plaintiff filed its Opposition.

On April 24, 2024, the Court continued the hearing on the Motion to allow the parties more time to meet and confer.

No Reply papers have been received by the Court.

ANALYSIS

A motion to compel further responses to a demand for inspection or production of documents may be brought based on: (1) incomplete statements of compliance; (2) inadequate, evasive or incomplete claims of inability to comply; or (3) unmerited or overly generalized objections. (Code Civ. Proc., § 2031.310(a).)

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).)

A court lacks jurisdiction to rule on untimely motions to compel further responses. (See Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1408-1410 (Sexton); Vidal Sassoon, Inc. v. Superior Court (1983) 147 Cal.App.3d 681, 683 [The statutory deadline for filing motions to compel further responses is “mandatory and the court may not entertain a belated motion to compel.”]

Here, Plaintiff’s responses to LAHF’s Requests for Production, Set Two, were served via email on January 2, 2024 (Netzah Decl., ¶ 3), thereby establishing the deadline for LAHF to file a motion to compel further responses as February 20, 2024, pursuant to Code of Civil Procedure sections 2031.310 subdivision (a) and applicable extension per Code of Civil Procedure section 1010.6 subdivision (a).

Furthermore, LAHF’s counsel attests that on February 1, 2024, “I wrote to Plaintiff’s attorney, requesting an extension to until and including February 29, 2024, to file any necessary motions to compel relative to the discovery responses served by Plaintiff. Plaintiff’s counsel granted the extension.” (Netzah Decl. ¶ 5.)

Here, Plaintiff does not dispute the time extension asserted by Netzah. Accordingly, the instant Motion was timely, as it was filed on February 29, meeting the extended deadline.

Consequently, the Court concludes that the instant Motion was filed timely. 

2.      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).)

LAHF has met the above requirement by filing a separate statement that elucidates the demand for production at issue, details Plaintiff’s responses, and explains why further responses are necessary.

3.      Meet and Confer

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

Here, LAHF’s counsel, Raviv Netzah (“Netzah”) acknowledges that a meet and confer session did not occur prior to the filing of the instant Motion. (Netzah Decl., ¶ 12.) Netzah explains that he sustained a second-degree burn injury on February 16, 2024, which impeded his ability during the pre-filing period. (Id., ¶¶ 6-10.) Additionally, Netzah attempted to request another extension from Plaintiff on February 29, 2024; however, his request was denied. (Id., ¶ 11.)

Based on the above records, the Court determines that the requirement for in-person or telephonic meet and confer has not been satisfied. (Opp’n., at pp. 4-6.)

i.                    The Court’s Jurisdiction

Plaintiff contends that the Court has no jurisdiction to decide the Motion due to LAHF’s failure to meet and confer before filing the Motion, citing Sexton, supra, 58 Cal.App.4th, at p. 1410.

The Sexton case addresses the statutory requirement for a 45-day limitation and held that “although the 45-day limitation is not ‘jurisdictional’ in the fundamental sense, it is ‘jurisdictional’ in the sense that it renders the trial court without authority to rule on motions to compel other than to deny them.” (Id., at 1403.) However, Sexton did not suggest that this determination extends to other requirements, such as meet and confer.

As the Court of Appeal noted in Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 411 (Sinaiko), “[a]lthough the ‘meet and confer’ requirement is an express prerequisite to moving to compel further responses to interrogatories [Citation], and inspection demands [Citation], no such requirement appears in the statues permitting sanctions based on a party’s violation of a court order compelling responses [Citations] or for misuse of discovery [Citation].”

In line with the observation by the Sinaiko court, the Court finds that the ruling in Obregon v. Superior Court (1998) 67 Cal.App.4th 424 (Obregon) is directly relevant to the meet and confer requirement. According to Obregon, an inadequate effort at informal resolution does not require complete denial of the requested discovery. (Id., at p. 433.) (Underlines added.) The Obregon court stated, “[N]ot every finding that additional informal resolution efforts are required can be categorized as a failure so egregious as to justify summary denial of discovery. Such categorical rulings should be reserved for cases of clear intent to burden or harass, cases of clear flaunting of statutory responsibilities, cases of established track records of lack of good faith, and the like. The range of a judge's discretion is broad, and litigants cannot always predict exactly where on that broad range a particular judge might alight in a particular case.” (Id., at p. 434.)

Based on the aforementioned records, the Court, in its discretion, determines that LAHF’s failure to fulfill the pre-filing meet and confer requirement was not motivated by any intent to burden or harass, nor was it indicative of a lack of good faith.

Consequently, in accordance with the Obregon ruling, the Court concludes that a complete denial of the Motion based solely on the insufficient meet and confer efforts is not warranted.

The Court now proceeds to examine the merits of the Motion.

B.     Moving Party’s Showing of Good Cause

A motion to compel further responses to requests for production shall “set forth specific facts showing good cause”. (Code Civ. Proc., § 2031.310(b)(1).) To establish “good cause,” the moving party must show (1) the items demanded are relevant to the subject matter and (2) specific facts justify discovery of the requested items (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). (Code Civ. Proc., § 2031.310(b)(1); see Glenfed Develop. Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117.) If “good cause” is shown by the moving party, the burden is then on the responding party to justify any objections made to document disclosure. (Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.)

            The Request for Production, No. 22, Set Two, specifies:

“That Units. Please note that this inspection demand includes not only the physical inspection of the Units, but also destructive testing as may otherwise be required, to establish whether the Product was properly installed at each Unit and whether the Product was installed with a moisture barrier at each such Unit. It further includes the complete photographing of the Units by still photos in addition to videotape or other film recording and reproduction.

Pursuant to C.C.P. §2031.030(c)(4) propounding party anticipates that the referenced activity will involve a permanent removal of a single flooring plank at each Unit, to examine the installation of the Product and to determine whether or not a moisture barrier was installed at each Unit. Propounding party expressly reserves the right to have the attendance at the inspection of any and all experts (designated or otherwise) so chosen by propounding party.”

(LAHF’s Separate Statement, at pp. 1-2.)

Here, LAHF argues that its Request No. 22 is highly relevant as the inspection may lead to evidence establishing that Plaintiff’s own failure to install a moisture barrier in any and all of the units of the project is the cause of the flooring’s failure in 32 units. (Mot., at p. 3.) LAHF further asserts that inspection of the units is essential for the preparation of a proper defense at trial. (Id., at p. 4.)

Based on these arguments, the Court concludes that LAHF has sufficiently met the threshold for demonstrating good cause. The burden now shifts to Plaintiff to justify its objections.

C.    Opposing Party’s Justification of Objections

1)      No longer in the Possession, Custody, or Control of Plaintiff

Plaintiff’s Opposition states, “Plaintiff will not address other objections made in response to the production of the homes because Defendant’s failure to meet and confer and the impossibility of producing that which Plaintiff does not own, possess or have custody of, are dispositive of this motion.” (Opp’n., fn. 3.)

The Court considers Plaintiff’s objection that the Motion should be denied because Plaintiff has no possession, custody, or control of the homes where the floors were installed. (Opp’n., at p. 6.) Plaintiff maintains that discovery of documents and other property that are in the possession, custody or control of any other party to the action is not permitted under Code of Civil Procedure section 2031.010, subdivision (a). (Ibid.)

            Code of Civil Procedure section 2031.010 provides, in pertinent part, that “[a] party may demand that any other party produce and permit the party making the demand, or someone acting on the demanding party’s behalf, to inspect and to copy a document that is in the possession, custody, or control of the party on whom the demand is made.”

Furthermore, a code-compliant response is detailed under Code of Civil Procedure section 2031.230, which specifies, “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.” (Underlines added.)

Here, Plaintiff correctly states that the information sought by Request No. 22 is no longer in its possession, custody, or control. However, Plaintiff objects to producing the names and addresses of the homeowners based on two grounds: (1) Request No. 22 does not demand Plaintiff to identify the owners of each unit, and (2) the names of the homeowners are a matter of public record that is available to LAHF once the addresses are revealed by Plaintiff. (Opp’n., at p. 3.)

While the Court rejects Plaintiff’s first basis for objection, as the requirement to provide names and addresses known to the responding party is mandated by the Code, it notes that as to the second ground, LAHF does not contest that such public records are available to it, nor does it address whether Plaintiff has refused to provide the addresses of the homes.

Following established law, the Court agrees with Plaintiff’s second basis for objection insofar as the names and addresses information are equally available to Defendant. (See Pantzalas v. Superior Court (1969) 272 Cal.App.2d 499, 503, [“If the information which is sought is not in the possession of the party served or of its agent, then it is a sufficient answer to indicate that the information is unavailable or to refer to the person or entity which can provide the information. Where the information sought is equally available to the propounder of the interrogatory, the burden and expense of any research which may be required should be borne by the party seeking the information. [Citation.]”])

Consequently, the Court SUSTAINS Plaintiff’s objection on this ground, finding that Plaintiff’s response sufficiently complies with Code requirement.

Therefore, the Court DENIES the Motion.

D.    Monetary Sanctions

Plaintiff, in its Opposition, seeks monetary sanctions against LAHF under the authority of Code of Civil Procedure sections 2031.320, subdivision (b) and 2023.010, subdivision (i).

            Code of Civil Procedure section 2031.320, subdivision (b) outlines mandatory sanctions in case of a motion to compel compliance, which differs from the instant Motion to Compel Further Responses. Consequently, Plaintiff cites a code section that does not provide applicable authority for sanctioning the instant Motion.

            Code of Civil Procedure section 2023.010 states, “Misuses of the discovery process include, but are not limited to, the following: ... (i) Failing to confer in person, by telephone, or by letter with an opposing party or attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery, if the section governing a particular discovery motion requires the filing of a declaration stating facts showing that an attempt at informal resolution has been made.” Furthermore, Code of Civil Procedure section 2023.030 authorizes the Court to impose discretionary sanctions for misuse of the discovery process. (Code Civ. Proc., § 2023.030, subd. (a).)

            The Court has reviewed the declarations filed by both parties and finds that LAHF’s failure to sufficiently meet and confer was not motivated by any bad faith.

            Accordingly, the Court, in exercising its discretion, DENIES Plaintiff’s request for monetary sanctions.

CONCLUSION

The Motion to Compel Further Responses to Request for Production, No. 22, Set Two, filed by Defendant/Cross-Complainant L.A. Hardwood Flooring, Inc., is DENIED.

Plaintiff K L Ventures Inc.’s Request for Monetary Sanctions is DENIED.

Moving party to give notice.