Judge Deborah C. Servino, Case 30-2018-01021773 2023-01-06 Tentative Ruling

Judge: Deborah C. Servino, Case: 30-2018-01021773, Date: 2023-01-06 Tentative Ruling

Plaintiff Kelly Allen moves for orders compelling Defendants to provide further responses to requests for production (“RFPs”) as follows: (1) Defendant Thomas M. Champieux, set 1; (2) Defendant Todd T. Tillman, set 2; (3) Defendant Anthony T. Abercrombie, set 3; and (4) Defendant Andrew A. Talley, set 3. The motions are granted.

Request for Judicial Notice

Plaintiff’s requests for judicial notice in support of each motion 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 four motions overlap entirely with the Plaintiff’s motions to compel further responses to RFPs set 12 from Defendant Tally LLP and set 1 from Defendant Talley & Company, Inc. (See 12/9/2022 Minute Order; compare Plaintiff’s Sep. Stmts. (ROA 588, 590, 594, 598, 610, 612).) Here, the responses are not Code-compliant. 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 Defendants are 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.) The responses are insufficient. Defendants have not met their burden to justify any objections. Defendants have agreed to provide supplemental responses in advance of the hearing. (Opp., at pp. 4-5.) But, as of the date of the reply, Plaintiff asserts that they have not. (Reply, at p. 5.)

Thus, the motions are granted. Within 20 days of the notice of the rulings, Champieux, Tillman, Abercrombie, and Talley are each ordered to serve verified, Code-compliant further responses and all responsive documents to the subject RFPs, without further objections. The document production must comply with Code of Civil Procedure section 2031.280, subdivision (a). If Defendants are withholding any documents based upon privilege or a claim of protected work product, Defendants must serve a privilege log pursuant to Code of Civil Procedure section 2031.240, subdivision (c)(1).

Plaintiff is awarded sanctions against Defendants. Within 30 days of the notice of rulings, Champieux shall pay $592 to Callahan & Blaine, APLC. Within 30 days of the notice of rulings, Tillman shall pay $592 to Callahan & Blaine, APLC. Within 30 days of the notice of rulings, Abercrombie shall pay $592 to Callahan & Blaine, APLC. Within 30 days of the notice of rulings, Andrew A. Talley shall pay $592 to Callahan & Blaine, APLC.

Plaintiff shall give notice of the rulings.