Judge: Deborah C. Servino, Case: 30-2018-01021773, Date: 2022-12-02 Tentative Ruling
Plaintiff Kelly Allen moves for orders compelling Defendants to provide further responses to requests for production (“RFPs”) as follows: (1) Defendant Anthony Abercrombie, further response to RFPs, set 2; (2) Defendant Talley & Company, further responses to RFPs, set 4; and (3) Defendant Talley LLP, further responses to RFPs, set 11. The motions are granted in part and denied in part, as set forth below.
Request for Judicial Notice
Plaintiff’s request for judicial notice is unnecessary as the documents are in the court’s file in this action. It is not necessary to ask the court to take judicial notice of materials previously filed in the case. All that is necessary is to call the court's attention to such papers. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) ¶ 9.53.1a.)
Applicable Law
Code of Civil Procedure section 2031.010 provides, in relevant part, that “any party may obtain discovery” by “inspecting, copying, testing, or sampling documents, tangible things, land or other property, and electronically stored information in the possession, custody, or control of any other party to the action.” (Code Civ. Proc., § 2031.010, subd. (a).) Section 2031.210 requires a party responding to an inspection demand to respond with (1) a statement that it will comply, (2) a representation that it does not have the ability to comply, or (3) an objection. (Code Civ. Proc., § 2031.210.) An agreement to comply must be rather specific. If the party responds with a statement of compliance, it must specify whether production “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.” (Code Civ. Proc., § 2031.220.) If the party responds with a representation that it does not have the ability to comply, it “shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand.” Additionally, it “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.” (Code Civ. Proc., § 2031.230.)
On receipt of the response, the demanding party may move to compel a further response if any of the following apply: (1) a statement of compliance is incomplete; (2) a representation of inability to comply is inadequate, incomplete or evasive; (3) an objection is without merit or too general. (Code Civ. Proc., § 2031.310, subd. (a).) The motion must set forth specific facts showing good cause justifying the discovery, and it must be accompanied by a separate statement. (Code Civ. Proc., § 2031.310, subd. (b); Cal. Rules of Court, rule 3.1345.) Absent a claim of privilege or attorney work product, the burden of showing good cause may be met by a fact-specific showing of relevance. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) ¶ 8:1495.6.) “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.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) ¶ 8:1496 [citing Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98].)
Merits
The subject RFPs and responses are the same as to each Defendant. After the motions were filed but prior to hearing, Defendants each served supplemental responses to all the RFPs. In Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, the court ruled that service of discovery responses while a motion to compel responses was pending did not divest the trial court of jurisdiction to hear the motion to compel responses. (Id. at p. 396.) It remains within the trial court’s discretion whether to proceed with the motion when a response is served after the motion to compel has been filed. (Id. at pp. 405-407.) The court exercises its discretion to proceed with the motions.
On the merits, Defendants’ supplemental responses are insufficient as they do not comply with the requirements of the Code of Civil Procedure. First, Defendants had a general objection that the RFPs “are vague, ambiguous, overly broad, and unintelligible as drafted.” (Nelson Decls., Exh. 2 [General Objection (f)].) With their supplemental responses, however, Defendants added vagueness and ambiguity objections to specific terms in the RFPs. (See, e.g., Spach Decl. [ROA 741], Exh. 3 [Amended Response to RFP no. 195].) These additional objections are improper because any objection not timely asserted in the original response was waived.
Second, contrary to Defendants’ arguments it is not possible to determine from their responses whether documents are being withheld on the basis of the asserted objections. The responses do not clearly state whether the defendant is complying in whole or in part with the request or, if documents cannot be produced, why they cannot. (Code Civ. Proc., §§ 2031.220, 2031.230.)
Defendants point to no authority that they can simply state that they will not identify or produce copies of any documents that had already been produced in response to other discovery requests. For these reasons, the motion is granted insofar as requiring further responses that are compliant with the Code. Within 20 days of the notice of ruling, Defendants are to serve further, verified Code-compliant responses that are consistent with this ruling.
That leaves the issue of the metadata apparently sought by Plaintiff. Plaintiff seeks the audit trails in Talley’s desktop QuickBooks and online QuickBooks. Plaintiff has not made the required showing of good cause for production of this information. Plaintiff concededly had access to the QuickBooks showing the transactions and financial information relevant to his claims. He argues that he does not trust Defendants and thinks that they have changed information and entries to defeat his claims. But he did not explain why he thinks this or provide evidence that establishes grounds for this suspicion. He failed to justify the further expense and intrusion of broader and deeper access into Defendants’ QuickBooks. Plaintiff points to one apparent discrepancy, but without description or context to provide authentication and understanding as to what the documents show, why that discrepancy is relevant to his claims, and how the audit trail would be relevant to his claims. For this reason, the motion is denied as to further production of metadata/audit trails in QuickBooks.
Plaintiff is awarded sanctions against Defendants. Within 30 days of the notice of ruling, Defendant Anthony Abercrombie shall pay $1,360 to Callahan & Blaine, APLC. Within 30 days of the notice of ruling, Talley & Company shall pay $1,360 to Callahan & Blaine, APLC. Within 30 days of the notice of ruling, Talley, LLP shall pay $1,360 to Callahan & Blaine, APLC.
Plaintiff shall give notice of the ruling.