Judge: Elaine Lu, Case: 21STCV18508, Date: 2023-02-17 Tentative Ruling

Case Number: 21STCV18508    Hearing Date: February 17, 2023    Dept: 26

On May 17, 2021, Plaintiff Dongsoo Chang (“Plaintiff”) filed the instant action for breach of contract and fraud against Defendants Eric Fullilove (“Fullilove”), Yumi Ryoo (“Ryoo”); Rick Juarez (“Juarez”) and PWS, Inc. (“PWS”) (collectively “Defendants”).  On September 9, 2021, Plaintiff filed the operative First Amended Complaint (“FAC”) against Defendants.  The FAC asserts four causes of action for (1) Breach of Contract, (2) Breach of Fiduciary Duty, (3) Negligence, and (4) Fraud.

On February 7, 2023, Defendant PWS filed the instant motion to compel Plaintiff’s compliance with Defendant PWS’s Request for Production (Set Two) Request for Production Number 43.  On February 10, 2022, the Court granted Defendant PWS’ request to advance the instant motion to February 17, 2023.  (Minute Order 2/10/23.)

As Plaintiff represented that Plaintiff has served the responsive documents, the Court ordered the parties to meet and confer regarding the instant motion and if the matter is not resolved to file a joint statement by February 14, 2023 describing the meet and confer efforts and identify what request are still at issue with any opposition due February 14, 2023 and any reply due February 15, 2023.  (Minute Order 2/10/23.) 

On February 14, 2023, Defendant PWS filed a statement indicating that there were still outstanding documents remaining.  On February 15, 2023, Plaintiff filed an opposition.  On February 16, 2023, Defendant PWS filed a reply.

Pursuant to Code of Civil Procedure section 2031.320(a), “[i]f a party filing a response to a demand for inspection, copying, testing, or sampling under Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280 thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that party's statement of compliance, the demanding party may move for an order compelling compliance.”  (CCP § 2031.320(a).)

Here, the only request at issue is Request 43, which seeks:

All DOCUMENTS that identify income of any type, for the time period of August 30, 2019, through the present, as recorded by the ESD electronic payment system at the Subject Laundry.

In response, Plaintiff stated that:

After a diligent search and reasonable inquiry, Responding party will comply and will produce all responsive documents. In addition to Responding party's documents, the documents produced by the propounding party are also responsive to this request incorporated herein produced as bates 1-246, plus Plaintiff will produce bank statements and ESD reports to the extent possible.

Defendant PWS states that pursuant to the parties discussions “there are additional documents (including electronically stored information) that are in the possession of Plaintiff, who is in the possession and control of the subject laundry’s ESD payment system. Defense counsel provided exemplar reports (PWS Bates 3355-3429) depicting information that can be retrieved from the ESD system and requested that Plaintiff produce all information and data available from July 2019 to present from the ESD system showing income by source type.”  (Wayne Decl. ¶ 4.)  “Defendant PWS also believes that there are additionl [sic] documents from the ESD system showing income from the years 2022 and 2023.”  (Wayne Decl. ¶ 5.) 

In opposition, Plaintiff claims that the “allegedly missing bank statements were produced” and are irrelevant.  (Biggins Decl. ¶ 4.)  However, as Defendant PWS notes, bank statements have not been at issue.  Rather, what Plaintiff has failed to produce is the information from the ESD electronic payment system showing income by source type and ESD electronic payment system data showing income from 2022 and 2023. 

As Plaintiff has not fully complied with his response to request for production, Defendant PWS’ motion is GRANTED.  Plaintiff is ordered to produce within 15 days all documents and information in compliance with his response to request for production 43, including information from the ESD electronic payment system showing income by source type and ESD electronic payment system data showing income from 2022 and 2023. 

Sanctions:

Pursuant to Code of Civil Procedure section 2031.320(b), “the court shall impose a monetary sanction … against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with a demand, 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.”  (Id., [italics added].)  Accordingly, sanctions are mandatory unless the circumstances make the imposition of sanctions unjust. 

Here, Defendant PWS seeks sanctions for the filing fees of $60 against Plaintiff.  The Court finds that these sanctions are warranted given the need for the instant motion.

Plaintiff Dongsoo Chang is ordered to pay monetary sanctions in the amount of $60.00 to Defendant PWS, Inc. by and through counsel, within thirty (30) days of notice of this order. 

Defendant PWS is to give notice and file proof of service of such within 2 court days.