Judge Donald F. Gaffney, Case Corey v. M.P. Construction 2022-12-21 Tentative Ruling

Judge: Donald F. Gaffney, Case: Corey v. M.P. Construction, Date: 2022-12-21 Tentative Ruling

TENTATIVE RULING:

For the reasons set forth below, Defendant Seal Beach Mutual 10’s motion to compel further responses to its request for production nos. 8-12 and 15, including its request for $600.00 in sanctions, is GRANTED.

A 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).) A party may demand that any other party produce and permit the demanding party to inspect, copy, photograph, or sample the documents or tangible things that are in the possession, custody, or control of the party on whom the demand is made. (Code Civ. Proc., § 2031.010, subds. (b) & (c).) Any doubt about discovery is to be resolved in favor of disclosure. (Advanced Modular Sputtering, Inc. v. Superior Court (2005) 132 Cal.App.4th 826, 835-837.)

A party responding to a request for production of documents must provide complete and straightforward responses to the written discovery requests; to the extent it objects to the request, is unable to comply with the discovery request, or lacks sufficient information or knowledge to provide a complete and straightforward response, it must so state. (Code Civ. Proc., §§2031.210-2031.240.)

“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.” (Code Civ. Proc., § 2031.230; see Manlin v. Milner (2022) 82 Cal.App.5th 1004, 1016-1017, 1025 [failure to comply with section 2031.230, and failure to produce responsive documents, constituted willful disobedience of court order, which warranted monetary sanctions]; see Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 978 [where party has not produced responsive documents that necessarily exist, and where its response does not comply with section 2031.230, an arbiter of a discovery dispute is justified in finding there is good reason to believe the responding party is either withholding documents, or has failed to conduct a diligent search to find them].)

Upon receipt of the discovery responses, the propounding party may move for an order compelling further responses if it deems the responses to be evasive, inadequate or incomplete, or the objections to be without merit or too general. (Code Civ. Proc., § 2031.310, subd. (a).) Prior to filing the motion, the moving party must adequately meet and confer with the responding party. (Code Civ. Proc., § 2031.310, subd. (b)(2).) A motion to compel further responses generally has to be filed within 45 days of the service of the verified response, or any supplemental verified response, or as otherwise agreed to by the parties. (Code Civ. Proc., § 2031.310, subd. (c).)

Monetary sanctions against the party who unsuccessfully makes or opposes a motion to compel is mandatory, unless the Court finds the party subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2031.310, subd. (h).)

Seal Beach’s April 12, 2022, requests for production of documents sought documents pertaining to Plaintiff’s claims of loss of income (RFP nos. 8-12), as well as proof of insurance coverage (RFP no. 15). (Exhibit 1 to Declaration of Edwin Noah.)

After being provided a number of extensions, Plaintiff finally served his responses on August 18, 2022. (Declaration of Edwin Noah, ¶ 3.) In response to each of the foregoing requests, Plaintiff stated, notwithstanding his objections, he was “in the process of collecting any and all documents respons[ive] to this request and will produce same once they are in receipt of same. Discovery and investigation are continuing.” (Exhibit 2 to Declaration of Edwin Noah.)

These responses do not comply with section 2031.210, as they are not a statement of an intent to comply, an inability to comply, or an objection.

To the extent the responses were intended to convey an inability to comply, they do not comply with section 2031.230, as they do not affirm a diligent search and reasonable inquiry had been made to comply with the demand. The responses also do not specify whether the inability to comply is because the particular items have never existed, have been destroyed, have been lost, misplaced or stolen, or have never been, or are no longer, in Plaintiff’s possession, custody or control.

While Plaintiff appears to have supplemented his responses to the Requests for Production on November 14, 2022, he has not provided said responses for the Court’s review, nor has he filed an Opposition to the motion. This is relevant because “untimely responses might completely or substantially resolve the issues raised by a motion to compel responses….” (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408-409; see also Sinaiko, supra, 148 Cal.App.4th at pp. 407-408, 411-412 [untimely responses could resolve motion to compel further responses to interrogatories and requests for production of documents, as one of the goals of the statutes is to encourage the parties to informally resolve their own discovery disputes]; Cal. Rules of Court, rule 3.1348(a) [court has authority to award sanctions even if discovery provided after motion filed].)

Finally, Plaintiff did not serve his supplemental responses until November 14, 2022, approximately three months after he served his initial discovery responses, and nearly two months after Seal Beach Mutual 10 attempted to meet-and-confer with Plaintiff.

Plaintiff has not articulated any substantial justification for his delay, nor has he presented any other circumstances that would make the imposition of the sanction unjust, particularly since Plaintiff’s delay forced Seal Beach to incur attorneys’ fees and costs in filing the present Motion. (Code Civ. Proc., § 2031.310, subd. (h).)

Moving party to give notice.