Judge Douglas W. Stern, Case BC682157 2022-09-12 Tentative Ruling

Defendant Starr Indemnity and Liability Company’s Motions: (I) To Compel Further Responses and Compliance to Produce Documents to Supplemental Requests for Production; and (II) For Terminating Sanctions or, in the Alternative, Evidentiary Sanctions and an Order Compelling Compliance with the Court’s Orders

Defendant Starr Indemnity and Liability Company moves to compel plaintiffs Zoriall LLC, Anne Kihagi, and Christina Mwangi to serve further responses to supplemental requests for production, set one, No. 1, which asks:

Pursuant to Code of Civil Procedure section 2031.050, [each plaintiff/cross-defendant]is asked to review all requests for production of documents previously served on Responding Party by Starr, as well as the responses that were made to those requests and all documents previously produced, and to amend said responses and produce any and all later acquired or discovered documents in the possession, custody, or control of the Responding Party. If any response is no longer complete, regardless of the reason, and/or there are documents that were not previously produced, including without limitation all documents the Responding Party created, acquired or discovered following the response to a prior request, please identify the response and provide a verified complete response and all documents necessary to make the production complete as of the date of the verification. If there are no other documents or changes to a prior response, please provide a verified response to that effect.

Objection. This request is vague and ambiguous, overbroad, compound, unduly burdensome and oppressive, prematurely seeking expert discovery, calling for a legal conclusion and/or expert opinion, seeking information and documents protected by the attorney-client privilege and attorney work product doctrine, and seeking information and documents which are confidential and private, and which are irrelevant and not reasonably calculated to lead to the discovery of admissible evidence.

In their opposition, plaintiffs contend they properly objected because defendant failed to identify any requests for production that require a supplemental response. CCP § 2031.050(a) provides, “In addition to the demands for inspection, copying, testing, or sampling permitted by this chapter, a party may propound a supplemental demand to inspect, copy, test, or sample any later acquired or discovered documents, tangible things, land or other property, or electronically stored information in the possession, custody, or control of the party on whom the demand is made.”

Defendant properly asked plaintiffs to review their responses and to “all requests for production of documents previously served.” Only the responding parties know what documents, tangible things, property, or electronically stored information they have acquired or discovered since their prior responses. Only the responding parties can determine which answers to amend based on later acquired information.

Defendant moves for $2,965 in sanctions against plaintiffs and their counsel. Making meritless objections (CCP § 2023.010(e)) and unsuccessfully opposing a motion to compel further responses (CCP § 2031.310(h)) are misuses of the discovery process subject to monetary sanctions. The court finds plaintiffs did not act with substantial justification and sanctions are just under the circumstances.

The court finds defendant did not reasonably incur $2,965 in expenses. Defendant seeks 9 hours of attorney fees at $205 hourly and 4 hours at $270 hourly. (Mandegary Decl., ¶ 21, p. 7.) This motion concerns only one simple request for production. Significant portions of the moving papers are also similar or identical to those in the defendant’s other motions. The court finds defendant reasonably incurred $925 in expenses: 3 hours at $205 hourly, 1 hour at $270 hourly, plus a $40 filing fee.

Defendant Starr Indemnity & Liability Company’s motion to compel further responses to supplemental requests for production, set one is granted.

Plaintiffs Zoriall LLC, Anne Kihagi, and Christina Mwangi are ordered to serve verified responses without objections to supplemental requests for production, set one, No. 1, within 30 days. Plaintiffs are ordered to produce any responsive documents concurrently with their responses to the supplemental requests for production.

Plaintiffs Zoriall LLC, Anne Kihagi, and Christina Mwangi are ordered to pay defendant Starr Indemnity & Liability Company $925 in sanctions within 30 days. Plaintiffs Zoriall LLC, Anne Kihagi, and Christina Mwangi shall be jointly and severally liable for the sanctions.

(II) Motion for Terminating Sanctions or, in the Alternative, Evidentiary Sanctions and an Order Compelling Compliance with the Court’s June 19, 2019 and May 24, 2022 Orders

Defendant Starr Indemnity & Liability Company moves for terminating sanctions or evidence sanctions against plaintiffs.

Discovery sanctions should be imposed incrementally, “starting with monetary sanctions and ending with the ultimate sanction of termination.” (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604 (Lopez).) “[A] terminating sanction should generally not be imposed until the court has attempted less severe alternatives and found them to be unsuccessful and/or the record clearly shows lesser sanctions would be ineffective.” (Ibid.) Appropriate sanctions are those “such as are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks, but [not] which are designed not to accomplish the objects of discovery but to impose punishment.” (Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 488.)

On June 19, 2019, the court ordered plaintiffs to provide further verified responses to requests for production, set one, Nos. 1-20 and set two, Nos. 1-8 and to produce responsive documents within 20 days.

Defendant argues plaintiffs failed to produce all documents within their possession, custody, or control—which is difficult to prove. Defense counsel states, “Based on a comparison of documents that were produced in the Federal Court Lawsuit in 2021 and a comparison of e-mail communications, some of which are in Starr’s document production, with the documents produced by the Kihagi Parties and other documents Starr obtained through subpoenas, it became evident that the Kihagi Parties had not produced all responsive documents in their possession, custody or control.” (Mandegary Decl., ¶ 22.)

In his supplemental declaration, defense counsel states, “The productions by the Bledsoe Diestel firm and Uchiyama firm unequivocally confirmed that the Kihagi Parties’ affirmative statements that they had produced all documents in compliance with this Court’s 2019 Order were false. In comparison to the Kihagi Parties’ document production, which consisted of just 5,407 selective pages, the Bledsoe Diestel firm produced over 12,000 pages of documents and the Uchiyama firm produced additional thousands of pages of documents.” (Supp. Mandegary Decl., ¶ 20.)

Plaintiffs’ correspondence indicates they did not produce all responsive documents. On July 11, 2022, plaintiffs’ counsel sent defense counsel an email stating she was “endeavoring to serve the supplemental responses today, which will include the identification of additional responsive documents.” (Supp. Mandegary Decl., Ex. BB.)

Failing to produce documents in the custody of the Bledsoe Diestel firm did not violate the court’s June 19, 2019 order. In that order, the court stated, “To the extent that documents from Bledsoe [Diestel, Treppa & Crane, LLP] are equally available to Starr, Plaintiffs do not have to provide such documents.” (June 19, 2019 Order, p. 3.)

Though plaintiffs failed to some produce documents in their possession, custody or control that defendant discovered via the federal action or from Uchiyama’s firm, defendant now has those documents. Defendant does not establish that plaintiffs are withholding other documents that defendant does not have. No further order is necessary for defendant to accomplish the objects of discovery. And if defendant can prove plaintiffs falsely stated under oath that they produced all responsive documents, that would serve as valuable impeachment evidence.

On May 24, 2022, the court ordered plaintiffs Anne Kihagi, Christina Mwangi, and Zoriall LLC to appear for their depositions and produce all documents responsive to the categories included in the deposition notices within 15 days.

Plaintiffs violated that order. Plaintiffs’ opposition concedes that Mwangi has not appeared for her deposition. (Opp., pp. 7, 9.) Plaintiffs argue only that “scheduling her deposition is problematic because of her childcare obligations.” (Opp., p. 9.) That may be a practical reason for not testifying at deposition but it does not excuse disobeying the order.

In addition, though Kihagi testified on July 29, 2022, the deposition was not completed. The parties agreed to continue her deposition on August 12. (Supp. Mandegary Decl., ¶ 33, Ex. FF, 410:15-412:3; Ex. GG.) Kihagi did not appear for her deposition that day. (Supp. Mandegary Decl., ¶¶ 40-41, Ex. HH.)

The court finds that neither terminating nor evidence sanctions are appropriate now. As an alternative to terminating sanctions, Starr seeks evidence sanctions prohibiting plaintiffs from calling plaintiff Anne Kihagi, plaintiff Christina Mwangi, or a representative from plaintiff Zoriall LLC to testify at trial and to prevent plaintiffs from producing any documents at trial responsive to Starr’s requests for production included in the notices of their depositions.

Courts impose discovery sanctions incrementally, beginning with monetary sanctions. (Lopez, supra, 246 Cal.App.4th at p. 604.) The court did not impose monetary sanctions against plaintiffs when granting defendant’s motions to compel their depositions. Moreover, pursuant to the court’s order, plaintiff Anne Kihagi appeared for deposition, though she failed to appear to complete it on August 12. The court’s order thus resulted in substantial progress toward defendants accomplishing the objects of their discovery. It is not clear that monetary sanctions would be ineffective.

At this point, prohibiting plaintiffs from testifying at trial would cross the line dividing punishment from assisting defendant in accomplishing the ends of discovery. It would be impractical or even impossible to enforce evidence sanctions prohibiting plaintiffs from introducing unspecified documents they should have produced in response to the requests for production included in their deposition notices.

The court finds that the appropriate sanction is an order that plaintiffs pay defendant’s reasonable expenses of $4,730.

Defendant is entitled to depose the plaintiffs. The court will therefore also require plaintiffs to appear and complete their depositions and produce the documents requested within 30 days. Failing to produce the requested documents and complete their depositions may result in further sanctions against them, including but not limited to an evidence sanction prohibiting them from testifying at trial. Plaintiff Anne Kihagi, however, would still be permitted to testify only as to what is contained in the portion of her deposition that was taken.

Plaintiffs Zoriall LLC, Anne Kihagi, and Christina Mwangi are ordered to pay defendant Starr Indemnity & Liability Company $4,730 in sanctions within 30 days. Plaintiffs Zoriall LLC, Anne Kihagi, and Christina Mwangi shall be jointly and severally liable for the sanctions.

Plaintiffs Zoriall LLC and Anne Kihagi are ordered to appear and testify at their continued depositions and produce all documents requested in the notices of their depositions within 30 days. Plaintiff Christina Mwangi is ordered to appear and testify at deposition and produce all documents requested in the notice of her deposition within 30 days.