Judge: Deirdre Hill, Case: 21TRCV00847, Date: 2023-01-18 Tentative Ruling

Case Number: 21TRCV00847    Hearing Date: January 18, 2023    Dept: M

Hearing Date:                         January 18, 2023

Moving Parties:                      Plaintiff Leap Investments, LLC

Responding Party:                  Defendant 527 W. Hyde Park, LLC

Motion to Compel Further Responses

            The court considered the moving, opposition, and reply papers. 

RULING

            The motion to compel further responses is DENIED WITHOUT PREJUDICE.  Counsel are ordered to meet and confer as to any further deficiencies, if any, and to contact the court to arrange for an IDC.

Plaintiff is ordered to pay additional filing fees in the amount of $120.

The court orders that the 45-day deadline does not apply to motions to compel further responses as to the further second supplemental responses as the original hearing date for the motion to compel further responses was scheduled for November 18, 2022 and continued by the court on November 17, 2022 (no judge available) to January 18, 2023, and thus, the continuance acts as a stay.

BACKGROUND

On November 16, 2021, plaintiff Leap Investments, LLC filed a complaint against 527 W. Hyde Park, LLC, James Capital Advisers, Inc., John Katnik, and Chase Gardner for (1) negligence, (2) breach of fiduciary duty, (3) constructive fraud, (4) fraud, (5) negligent misrepresentation, (6) breach of written contract, and (7) breach of covenant of good faith and fair dealing.

On March 29, 2022, the court overruled defendant 527 W. Hyde Park, LLC’s demurrer to the 4^th and 5^th causes of action.  As to the motion to strike, the court denied it as to the 4^th cause of action and granted it without leave to amend as to the 5^th cause of action.

On April 8, 2022, defendant 527 W. Hyde Park, LLC filed a cross-complaint against James Capital Advisers, Inc., John Katnik, and Chase Gardner for indemnity, declaratory relief, contribution, and breach of fiduciary duty.

On May 5, 2022, cross-defendants James Capital Advisers, Inc., John Katnik, and Chase Gardner filed a cross-complaint against 527 W. Hyde Park, LLC for indemnification, contribution, and declaratory relief.

LEGAL AUTHORITY

45-Day Rule:  “Unless notice of this motion 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 demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand.”  CCP §2031.310(c).  The 45-day time limit is mandatory and jurisdictional.  Sexton v. Superior Court (1997) 58 Cal. App. 4th 1403, 1410.

Meet-and-Confer Requirement:  The motion to compel further responses must be accompanied by a declaration showing “a reasonable and good faith attempt” to resolve the issues outside of court (so-called “meet and confer”).  CCP §§2016.040, 2031.310(b)(2).

Separate Statement:  Any motion involving the content of a discovery request or the responses to such a request shall be accompanied by a separate statement.  This includes a motion to compel further responses to demand for inspection of documents or tangible things.  CRC Rule 3.1020(a)(3). 

Interrogatories

CCP §2030.300 states:  “(a) On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply:   (1) An answer to a particular interrogatory is evasive or incomplete. . . . (3) An objection to an interrogatory is without merit or too general.  (b) A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040. (c) Unless notice of this motion 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 interrogatories. . . .”

Request for Production of Documents

On receipt of a response to an inspection demand, the demanding party may move for an order compelling further responses 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; or (3) an objection in the response is without merit or too general.  CCP §2031.310(a).  A statement of compliance shall state that the production, inspection, 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.  CCP §2031.220.  “A representation of inability to comply with [a] particular demand for inspection . . . shall affirm that a diligent search and 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.  This 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.”  CCP §2031.230.

A motion to compel further response to requests for production “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.”  CCP § 2031.310(b)(1).  “To establish ‘good cause,’ the burden is on the moving party to show both:  [1] Relevance to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case); and [2] Specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial).  The fact that there is no alternative source for the information sought is an important factor in establishing ‘good cause’ for inspection.  But it is not essential in every case.”  Weil & Brown, Civil Procedure Before Trial, 8:1495.6 (citations omitted).  “Declarations are generally used to show the requisite ‘good cause’ for an order to compel inspection.  The declarations must contain ‘specific facts’ rather than mere conclusions.”  Id. at 8:1495.7 (citation omitted).  “The declarations may be on information and belief, if necessary.  However, in such cases, the ‘specific facts’ supporting such information and belief (the sources of the information) must also be alleged.”  Id. at 8:1495.8 (citation omitted).  “Most declarations are made by the attorney for the moving party, who is usually more familiar with the relevancy and ‘specific facts’ constituting ‘good cause’ for inspection.”  Id. at 8:1495.9.

“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 (the same as on motions to compel answers to interrogatories or deposition questions. . . ).”  Id. at 8:1496 (citation omitted). 

Request for Admissions

Under CCP §2033.290, “(a) On receipt of a response to request for admissions, the party requesting admissions may move for an order compelling a further response if that party deems that either or both of the following apply:  (1) An answer to a particular request is evasive or incomplete.  (2) An objection to a particular request is without merit or too general. . . . (d) 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 responses, 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.”

DISCUSSION

Plaintiff Leap Investments requests an order compelling defendant and cross-complainant 527 W. Hyde Park, LLC to respond further to Requests for Production of Documents, Nos. 1-30; Requests for Admission, Nos. 2-13, 15, 17-19; and Form Interrogatories, No. 15.1.

The court notes that plaintiff improperly combined three motions into one and is ordered to pay $120 in additional filing fees.

Plaintiff served its discovery requests on May 6, 2022.  On June 20, 2022, defendant served objections.  Counsel met and conferred.  On July 28, 2022, defendant served supplemental responses and produced documents.  Counsel again met and conferred.  On September 16, 2022, defendant served further supplemental responses to form interrogatories.  Plaintiff does not state that counsel met and conferred after defendant served the further supplemental responses. 

In the opposition, defendant argues that the motion was filed and served untimely.  It also argues that the motion is moot because it served further second supplemental responses on November 4, 2022 and produced additional documents.  Defendant does not argue that any of its objections have merit or responses are sufficient.

The court finds that the motion was timely filed and served.  As defendant served its supplemental responses on July 28, 2022 via electronic service, the deadline to file the motions was September 13, 2022.  On August 22, 2022, in an email, defense counsel stated, “you may have an additional 30 day period to file any appropriate Motions to Compel while we continue to meet and confer,” which would have been October 13, 2022.  Timothy Baumann decl., Exh. K.  eCourt shows that the motion was served and filed on October 17, 2022.  In the reply, plaintiff’s counsel’s paralegal Chrisly Parra explains in her declaration that on October 13, 2022 she “caused” the motion to be filed with the court and served on defense counsel (via email) but “[d]ue to the CRS reservation receipt being inadvertently omitted, the clerk rejected the filing with an instruction to resubmit with the requisite CRS reservation information” and that she “promptly corrected such minor clerical error and refiled the reserved moving papers on October 17, 2022.”  See Parra decl., exhibits.  Defense counsel’s email correspondence indicates that he had received service of the motion on October 13, 2022 and another service on October 17, 2022.  Plaintiff also showed evidence that the efiling had been submitted to the court on October 13, 2022 at 4:34 p.m. and that the reject was for an error that was insubstantial.  See, e.g., Carlson v. Dep’t of Fish & Game (1998) 68 Cal. App. 4^th 1268, 1270 (“the local superior court may not condition the filing of a complaint on local rule requirements.  Instead, so long as a complaint complies with state requirements, the clerk has a ministerial duty to file.  In legal effect, a complaint is ‘filed’ when it is presented to the clerk for filing in the form required by state law.”); Rojas v. Cutsforth (1998) 67 Cal. App. 4^th 774, 777 (“Where as here, the defect, if any, is insubstantial, the clerk should file the complaint and notify the attorney or party that the perceived defect should be corrected at the earliest opportunity. . . . The functions of the clerk are purely ministerial.  The clerk has no discretion to reject a complaint that substantially conforms to the local rules.”) (citations omitted).

The court finds that the motion is MOOT in light of the further second supplemental responses served in November 2022.  Counsel are to meet and confer as to any further deficiencies, if any, and to contact the court for a date to participate in an IDC, if necessary.

            Sanctions

Under CCP § 2023.030(a), “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. . . . If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction 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.”  Under CCP § 2023.010, an example of the misuse of the discovery process is “(d) Failing to respond or to submit to an authorized method of discovery.” 

Sanctions are mandatory in connection with motions to compel further responses against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel unless the court “finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”  CCP § §2030.300(d), 2031.310(h).

Cal. Rules of Court, Rule 3.1348(a) states:  “The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.”

Plaintiff requests sanctions in the amount of $8,100 against defendant.  The notice did not seek sanctions against defense counsel.  The court finds that sanctions are not warranted as defendant acted with substantial justification in serving supplemental responses in September (and where it appears that plaintiff’s counsel did not engage in further meet and confer) and in filing its opposition.  Also, defendant indicates that it had provided an additional extension to filing a motion a couple days before the motion was filed.  The request is thus denied.

Defendant is ordered to give notice of ruling.