Judge David S. Cunningham, Case 19STCV10434 2023-01-12 Tentative Ruling

Judge: David S. Cunningham, Case: 19STCV10434, Date: 2023-01-12 Tentative Ruling

Tentative Ruling Re: Motion to Compel Further Re: Document Requests 22 and 23

The hearing is continued as to request 22. The Court orders the parties to meet and confer.

Defendants provide veterinary services. Plaintiff brought her cat to one of Defendants’ facilities for treatment. She alleges that non-board-certified veterinarians treated her cat despite Defendants’ representation that they only employ board-certified veterinarians. She seeks to represent a class of similarly situated customers.

Defendants contend Plaintiff failed to meet and confer prior to filing the instant motion. (See Opposition, pp. 11-14.)

The evidence tends to support the contention. Plaintiff’s counsel and defense counsel talked by phone on 10/24/22, two days before Plaintiff filed the motion. Plaintiff’s counsel declares, conclusively, that the call was “unproductive[.]” (Reply Pomerantz Decl., ¶ 3; see also Pomerantz Decl., ¶ 29 [“On October 24, I spoke telephonically with counsel for Defendants concerning the discovery in order to meet and confer. Counsel for Defendants has not made any suggestions on how to narrow or amend the keyword Request No. 22 to make it acceptable to Defendants. (Counsel did ask to limit the time frame on the searches on the six email accounts, which Plaintiff would agree to if Defendants would produce the emails.)”].) In addition, he attaches correspondence from 10/26/22, which includes a letter from defense counsel that states:

[B]ased on our call, you failed to state what if any responses are deficient and you failed to describe which objections are improper. During our October 24, 2022 call you stated that you had not read all of the RFP responses. It is not possible to meaningfully meet and confer without having read Defendants’ discovery responses. It should also be noted that you refused to provide us with an extension in which to respond to the RFPs, Set Two, and we nevertheless timely responded. Furthermore, you also failed to transmit any case law supporting your assertion during our call that we needed to produce documents on the date of the deadline to respond to the RFPs. Because you failed to specify which responses and objections are apparently improper, we have no understanding or idea of the grounds for your motion to compel. Moreover, any motion to compel is premature without properly meeting and conferring. [Citations.]

(Pomerantz Decl., Ex. T [attaching defense counsel’s 10/26/22 letter], emphasis added.) The italicized words indicate that Plaintiff’s counsel failed to prepare for the call and was unable to discuss the responses. This is a reason for continuing the hearing.

Defendants also assert that they produced 2,000 responsive documents on 10/25/22, yet Plaintiff filed the motion the next day without meeting and conferring about the documents. (See Opposition, p. 12.)

The assertion appears correct given that the attorneys met a day earlier by phone on 10/24/22. (See, e.g., Obregon v. Superior Court (1998) 67 Cal.App.4^th 424, 428-433.) It is another reason for continuing the hearing.

The dispute here is an ongoing discovery dispute that the Court has tried to resolve via multiple informal discovery conferences. As explained infra, the Court believes the efficient approach is to continue the hearing as to request 22 (not request 23) so the parties can meet and confer regarding the search terms.

Defendants claim the motion is defective because Plaintiff filed it under section 2031.310 instead of section 2031.320. Since Plaintiff requests an order requiring Defendants to produce further documents, Defendants say section 2031.320 is the proper statute. (See Opposition, pp. 16-17.)

“Where a response has been made, but the demanding party is not satisfied with it, the remedy is a motion to compel further responses” under section 2031.310. (Edmon & Karnow, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group June 2022 Update) ¶ 8:1490, emphasis in original.) The motion can be used to challenge responses containing “[o]bjections[,]” “[a]n agreement to comply that is incomplete[,]” or “[a] statement of inability to comply that is incomplete or evasive.” (Ibid.)

“Where an agreement to comply has been made, but compliance is not forthcoming, the motion is to compel compliance” under section 2031.320. (Id. at ¶ 8:1482; see also id. at ¶ 8:1503 [instructing that, “[i]f the responding party agrees to comply with a [section] 2031.010 demand but then fails to do so, compliance may be compelled on appropriate motion” under section 2031.320], emphasis in original; id. at ¶ 8:1508 [citing section 2031.320 for the proposition that, “[i]f the responding party fails to permit inspection “in accordance with its agreement to comply with an inspection demand, the demanding party's remedy is to file a motion compelling compliance”], emphasis in original.)

In light of these rules, Defendants’ argument is half right. Plaintiff’s notice asks the Court to compel “full and complete responses without objections . . . and full and complete production without redactions[.]” (Notice of Motion, p. 2.) Because Plaintiff only moved pursuant to section 2031.310, the request for further production is procedurally defective. Further responses to Defendants’ written responses to requests 22 and 23 is the most Plaintiff can get here; consequently, the Court’s analysis is limited to the written responses.

Defendants argue that the motion is untimely because Plaintiff filed and served the separate statement and supporting declaration one court day after the 10/26/22 filing deadline. (See Opposition, pp. 17-18.)

“A motion filed without the supporting papers upon which it is based is treated as an ‘incomplete motion’ and may be continued, placed off calendar or denied without prejudice.” (Edmon & Karnow, supra, at ¶ 9:28.1 [citing Weinstein v. Blumberg (2018) 25 Cal.App.5^th 316 and stating that “filing notice of motion and motion without supporting papers does not comply with [Code of Civil Procedure section] 1010 and does not constitute making motion, so discovery motion was untimely even if notice was timely filed”], emphasis in original.)

The Court disagrees with Defendants. At the 7/28/22 further status conference, the Court set 10/26/22 for a non-appearance case review regarding filing of the instant motion. (See 7/28/22 Minute Order, p. 1.) Plaintiff filed the notice and the motion on 10/26/22, but she filed the separate statement and her attorney’s declaration on 10/27/22. The motion was incomplete at that time; however, since the hearing date is 1/12/23, Defendants received well more than the normal 16 court days of notice. Denying the motion, placing it off calendar, or continuing the hearing is unnecessary and inappropriate under these circumstances.

[Pursuant to discussions with the Court and the parties] Any and all email correspondence including attachments thereto in YOUR possession, custody or control containing the following keywords that include as a sender or recipient any of the DESIGNATED EXECUTIVES:

(As used herein, the term “DESIGNATED EXECUTIVES” shall refer to Shannon Brown, Fabian Venter, Leah Basanais, Richard Mills, Elena Parshuto, Howard Liberson.)

Defendants claim the request fails to comply with the Code because it just lists search terms and does not identify the category or type of documents Plaintiff seeks. (See Opposition, p. 14.) Defendants contend the search terms result in countless irrelevant documents being swept up in the search. (See id. at pp. 14-15.)

The Court disagrees. The Court suggested the “search terms” approach as far back as December 2021. (See Reply, p. 2.) The purpose of the approach was to locate information that Plaintiff needs while narrowing the burden for both sides. As drafted, request 22 is limited to a specific category/type of documents (emails), to and from six executives, that contain the search terms. It satisfies the Code, especially in the context of the several informal discovery conferences between the Court and the parties.

Nevertheless, the Court finds that the hearing should be continued before a final decision is made. Plaintiff’s reply brief intimates a willingness on Plaintiff’s part to modify some search terms and remove others as to particular executives. (See, e.g., id. at pp. 2-3 [mentioning “primary,” “specialist,” “marketing,” Shannon Brown, and Elana Parshuto and asserting that Defendants “did not make any meaningful attempt to negotiate the replacement of any keywords or make any suggestions”].) The Court is inclined to order the attorneys to meet, negotiate specific terms and limitations, and draft a new, final version of request 22 that Defendants will be expected to respond to without objections (the parties should submit a proposed order memorializing any agreements they make for the Court to sign). Of course, privileged documents can be withheld as long as Defendants produce a privilege log.

Defendants’ argument – responding to the current request is too burdensome (see, e.g., Opposition, pp. 18-19) – is unnecessary to decide. The Court needs to see the result of the negotiations first. The Court hopes that the parties will agree to an amended request that resolves the purported burden issue.

Any and all email correspondence in YOUR possession, custody or control referring or relating to the frequency or nature of referrals from YOUR referral sources – including but not limited to emails attaching referral source reports (as discussed by multiple deponents).

Defendants contend the motion is moot as to request 23 because they already produced the responsive documents. (See Opposition, pp. 5, 6.)

Responding Party incorporates the above listed general objections as though each was set forth in full.

Objection, the request seeks the production of documents that are neither relevant to instant matter nor reasonably calculated to lead to the discovery of admissible evidence.

Objection, the request seeks the production of documents which are not in the possession, custody, or control of Responding Party.

Objection, this request improperly seeks the confidential trade secrets and proprietary and financial information of Responding Party, in violation of Responding Party’s privacy rights and is not reasonably calculated to lead to the discovery of admissible evidence.

Objection, the request is unduly burdensome, without reasonable scope, harassing, and oppressive.

Objection, the request is objectionable to the extent it seeks the production of documents that are protected by the attorney-client privilege and/or the work product doctrine under California Evidence Code Sections 2018.010, et seq., or otherwise.

Subject to and without waiving the aforementioned objections, Responding Party states: This request is vastly overbroad as to time and scope as the request uses “all” and no limitation on time or the number of custodians.

Defendants will meet and confer with plaintiff in an attempt to determine what emails plaintiffs are seeking. Defendants will then conduct a reasonably diligent search for the requested email correspondence. The search will be limited to the “DESIGNATED EXECUTIVES” email accounts for a reasonable time period. Defendants will produce this email correspondence to the extent it exists and can be located and that is responsive and not privileged.

(Id. at pp. 5-6, emphasis added.) The italicized words demonstrate that Defendants agreed to produce responsive documents that (1) exist, (2) can be located, and (3) are not privileged, but more is required. Did Defendants produce all responsive documents? Were they unable to locate some of them? Do some of them no longer exist? If yes, what happened to them? Did Defendants withhold some of them based on privilege? An amended response is needed to answer these questions. (See Cal. Code Civ. Proc. §§ 2031.210, 2031.220, 2031.230, 2031.240.)

Plaintiff’s request for monetary sanctions is denied without prejudice. Plaintiff can reraise the request later if Defendants fail to provide a compliant response to the amended request 22.

Tentative Ruling Re: Renewed Motions to Compel Further Re: 19STCV10434
(Spornik)

Defendants provide veterinary
services. Plaintiff brought her cat to
one of Defendants’ facilities for treatment. She alleges that non-board-certified
veterinarians treated her cat despite Defendants’ representation that they only
employ board-certified veterinarians.
She seeks to represent a class of similarly situated customers.

On 8/17/21, Judge Ann Jones held
an IDC and permitted Plaintiff to file motions to compel. (See 8/17/21 Minute Order, p. 1.)[1]

On 9/30/21, Plaintiff filed a
motion to compel further responses to special interrogatories and a motion to
compel further responses to document requests.

On 10/22/21, this Court vacated
the hearing on the motions to compel further and set an OSC concerning the
parties’ failure to appear at the 10/22/21 IDC.
(See 10/22/21 Minute Order, p. 1.)[2]

On 12/8/21, the Court held an
IDC, made discovery rulings, and vacated the OSC. (See 12/8/21 Minute Order, p. 1.)

On 3/21/22, 5/26/22, 7/28/22, and
12/12/22, the Court held additional status conferences related to discovery
issues and made rulings. (See 3/21/22
Minute Order, p. 1; see also 5/26/22 Minute Order, p. 1; 7/28/22 Minute Order,
p. 1; 12/12/22 Minute Order, p. 1.)

On 12/19/22, Plaintiff filed the
instant motion to renew the 9/30/21 motions to compel further.

* the Court
vacated the hearing on the motions to compel further “[d]ue to a
misunderstanding,” namely, the Court did not know that Judge Jones had
conducted an IDC prior to allowing Plaintiff to file the motions to compel
further (Notice of Motion, p. 2; see also Motion, p. 1; Reply, pp. 2-3);

* Defendants
waived their objections to the special interrogatories and document requests
(see Motion, p. 1 [arguing that Defendants served late responses]; see also
Reply, pp. 4-6).

Alternatively, Plaintiff asks the
Court to enter a nunc pro tunc order to correct the 10/22/21 minute order by
restoring the hearing date on the motions to compel further. (See Notice of Motion, p. 2.)

* the motion to
renew constitutes an untimely motion for reconsideration (see ibid.);

* Plaintiff
failed to file a declaration or other evidence in support of the motion to
renew (see id. at p. 4);

* Plaintiff
“waived any issues regarding inadequate discovery by failing to raise them in a
timely fashion” (id. at p. 5);

* Plaintif
failed to meet and confer before filing the motion to renew (see id. at p. 7);

* Defendants did
not waive their objections to the special interrogatories and document requests
(see id. at pp. 7-9).

The Court agrees with Defendants
that nunc pro tunc relief is unavailable.
The purpose of a nunc pro tunc order is to “correct[] clerical errors
and omissions, and it does not extend beyond such function.” (Hamilton v. Laine (1997) 57 Cal.App.4^th
885, 891 [“A court can always
correct a clerical, as distinguished from a judicial error which appears on the
face of a decree by a nunc pro tunc order. [Citations.] It cannot, however,
change an order which has become final even though made in error, if in fact
the order made was that intended to be made. . . . The function of a nunc pro
tunc order is merely to correct the record of the judgment and not to alter the
judgment actually rendered — not to make an order now for then, but to enter
now for then an order previously made. . . . It is only when the form of
the judgment fails to coincide with the substance thereof, as intended at the
time of the rendition of the judgment, that it can be reached by a corrective
nunc pro tunc order.”], emphasis added; see also Bell v. Farmers Ins.
Exchange (2006) 135 Cal.App.4^th 1138, 1144 [“The test which
distinguishes clerical error from possible judicial error is simply whether the
challenged portion of the judgment was entered inadvertently (which is clerical
error) versus advertently (which might be judicial error, but is not clerical
error). [Citation.] Unless the challenged portion of the judgment was
entered inadvertently, it cannot be changed post judgment under the guise of
correction of clerical error.”].) The
10/22/21 minute order does not contain a clerical error and accurately reflects
the Court’s intention at the time.

The Court also agrees with Defendants’ procedural
arguments. One, as either a motion to
renew or a motion for reconsideration, it is untimely. Plaintiff did not try to
correct the alleged misunderstanding in October 2021 and intentionally waited
more than a year to request putting the motions to compel further back on
calendar because she preferred the Court’s informal resolution process. (See Notice of Motion, p. 2 [“Plaintiff did
not seek a new Hearing date on the Motions because the Court was working
informally and diligently with the parties to resolve their discovery disputes
through multiple IDC’s and status conferences.”]; see also Reply, pp. 3-4.) During that whole time, she never secured a
stipulation or order to extend the time to bring the motions to compel further
in case the informal resolution process ended up failing. (See also Opposition, pp. 4-7 [arguing that,
under the circumstances, Plaintiff failed to raise her discovery issues in a
timely fashion].) Two, she did not file
a declaration or other supporting evidence with the moving papers; she just
filed a one-page memorandum of points and authorities. Three, she fails to show that she met and
conferred prior to filing. The motion to
renew is denied for these reasons.

It is unnecessary – and the Court declines – to address
whether Defendants waived their objections.

[1] “IDC”
means informal discovery conference.

[2] “OSC”
means order to show cause.