Judge: Elaine Lu, Case: 21STCV30869, Date: 2022-09-13 Tentative Ruling

Case Number: 21STCV30869    Hearing Date: September 13, 2022    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Procedural Background

On August 20, 2021, Plaintiff Joann Kendall (“Plaintiff”) filed the partition action against Defendant Daniel Ruiz (“Defendant”). On November 24, 2021, Defendant filed a Cross-Complaint against Plaintiff and Emma Kendall.  On January 28, 2022, Defendant filed the operative Second Amended Cross-Complaint against Plaintiff and Emma Kendall.  The Second Amended Cross-Complaint alleges four causes of action for (1) Quiet Title, (2) Cancellation of Deed of Trust, (3) Fraud and Deceit, and (4) Declaratory Relief.

On April 26, 2022, Defendant filed the instant motion to compel Plaintiff’s further responses to Request for Production, Set One (“RPDs”).  No opposition or reply has been filed.

Legal Standard

Requests for Production of Documents

Code of Civil Procedure section 2031.310 provides, in pertinent part, as follows:

(a) On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response 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.

(3) An objection in the response is without merit or too general.

(b) A motion under subdivision (a) shall comply with both of the following:

(1) The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand.

(2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040.

Code Complaint Response

A code-compliant response to a request for production consists of any of the following: (1) a statement that the party will comply, (2) a representation that the party lacks the ability to comply, or (3) an objection.  (CCP § 2031.210.)  A statement that the party will comply must state that the Request for Production (“RPD”) “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.)  “If only part of an item or category of item in a demand for inspection, copying, testing, or sampling is objectionable, the response shall contain a statement of compliance, or a representation of inability to comply with respect to the remainder of that item or category.”  (CCP § 2031.240(a).)  If an objection is made, the responding party must “[i]dentify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made.”  (CCP § 2031.240(b)(1).)

Discussion

            Defendant moves to compel Plaintiff’s further responses to RPDs Nos. 1-17.

Meet and Confer

Pursuant to Code of Civil Procedure section 2031.310(b)(2) a motion to compel further responses to a request for production “shall be accompanied by a meet and confer declaration under Section 2016.040.”  (CCP § 2031.310(b)(2).)  “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.”  (CCP § 2016.040.) 

Defendant has adequately met and conferred.  (Potier Decl. ¶¶ 7-8, Exh. C.) 

RPDS Nos. 1-2

            “All DOCUMENTS CONCERNING all COMMUNICATIONS between YOU and [Defendant] CONCERNING the PROPERTY from January 1, 1990 to the present.”  (RPD No. 1.)

            “All DOCUMENTS CONCERNING all COMMUNICATIONS between YOU and [Defendant] CONCERNING the 1993 GRANT DEED from August 1, 1993 to the present.”  (RPD No. 2.)

In response to each of these requests, Plaintiff responds identically stating: “Will comply and will produce all such documents that can be located after a diligent search. Plaintiff believes that [Defendant] may have Documents she does not have or cannot locate.” (Response to RPDs Nos. 1-2.)

These Responses are not Code Compliant

As noted above, a code-compliant response to a request for production consists of any of the following: (1) a statement that the party will comply, (2) a representation that the party lacks the ability to comply, or (3) an objection.  (CCP § 2031.210.)  A statement that the party will comply must state that the Request for Production (“RPD”) “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.) 

Here, Plaintiff’s responses do not indicate whether Plaintiff will comply in full or in part and produce the responsive documents in Plaintiff’s possession, custody, or control.  To the extent that Plaintiff no longer has the documents, the response Plaintiff must state that she is unable to comply and specify whether the inability to comply is to all or only some of the documents.  A statement of an inability to comply requires Plaintiff to “affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand.”  (CCP § 2031.230.)  A statement that Plaintiff will conduct a diligent search is improper as the diligent search must occur before the response.  The response must “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.”  (CCP § 2031.230.)

RPDs. No. 3

            “All DOCUMENTS CONCERNING all COMMUNICATIONS between YOU and any PERSON CONCERNING the 1993 GRANT DEED from August 1, 1993 through the present.”  (RPD No. 3.)

            In response, Plaintiff states that “Plaintiff cannot comply other than Documents provided regarding Nos 1 and 2 because she knows of no such documents.”  (Response to RPD No. 3.)

            The Response Is Not Code Compliant

            Here, Plaintiff’s response is an inability to comply.  However, a response stating an inability to comply requires that Plaintiff “affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand.”  (CCP § 2031.230.)  The response must “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.”  (CCP § 2031.230.) Finally, a response that Plaintiff is unable to comply must “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.)  Plaintiff’s response here fails to comply with any of these requirements.  Plaintiff’s response to RPD No. 3 is not code compliant.

RPD No. 4

            “All DOCUMENTS CONCERNING all expenses YOU paid for the maintenance of the PROPERTY from August 1, 1993 to the present.”  (RPD No. 4.)

            “Will comply and will produce all such documents that can be located after a diligent search.”  (Response to RPD No. 4.)

Response is not Code Compliant

Here, the response does not indicate whether Plaintiff is going to comply in full or in part and produce the responsive documents in Plaintiff’s possession, custody, or control.  (CCP § 2031.220.)  To the extent that Plaintiff no longer has the documents, the response Plaintiff must state that she is unable to comply and specify whether the inability to comply is to all or only some of the documents.  A statement of an inability to comply requires Plaintiff to “affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand.”  (CCP § 2031.230.)  A statement that Plaintiff will conduct a diligent search is improper as the diligent search must occur before the response.  The response must “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.”  (CCP § 2031.230.)  Accordingly, the response to RPD No. 4 is not code compliant.

RPDs No. 5-17

            In response to each of these requests Plaintiff failed to provide a response.  This is improper.  Plaintiff is required to provide a code complaint response consisting of any of the following: (1) a statement that the party will comply, (2) a representation that the party lacks the ability to comply, or (3) an objection.  (CCP § 2031.210.)  Accordingly, a proper response is required.

Sanctions

            Defendant requests sanctions against Plaintiff and Plaintiff’s Counsel totaling $1996.65 to compensate Defense Counsel for 3.5 hours in drafting and preparing the motion, 1 hour appearing at the hearing and drafting a reply at $430 an hour and filing fees of $61.65.  (Potier Decl. ¶ 11.)

For a motion to compel further responses, “[t]he court shall impose a monetary sanction … against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to [request for production], 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.”  (CCP § 2031.300(c), [italics added].) Further, it is an abuse of discovery to make an evasive response or fail to respond to discovery. 

The Court finds that sanctions are warranted as Plaintiff provided evasive, improper, responses to discovery and failed to respond to some of the discovery requests.  However, the Court finds that the amount requested – $1,996.65 – is unreasonable in light of the circumstances as there were no objections, the motion was simple, and no opposition was filed. The Court finds that $1,674.15 reasonably compensates Defendant for attorney’s fees and costs incurred in bringing these motions.

Plaintiff Joann Kendall and her attorney of record, Richard Wideman, are jointly and severally liable and ordered to pay monetary sanctions in the amount of $1,674.15 to Defendant Daniel Ruiz by and through counsel, within thirty (30) days of notice of this order.

Conclusion and ORDER

Based on the foregoing, Defendant Daniel Ruiz’s motion to compel further responses to request for production of documents, set one from Plaintiff Joann Kendall is GRANTED.

Plaintiff is ordered to serve further, verified, code compliant responses to Requests No. 1-17 without objection within thirty (30) days of notice of this order. 

Defendant’s request for sanctions is GRANTED AS MODIFIED.

Plaintiff Joann Kendall and her attorney of record, Richard Wideman, are jointly and severally liable and ordered to pay monetary sanctions in the amount of $1,674.15 to Defendant Daniel Ruiz by and through counsel, within thirty (30) days of notice of this order.

            Moving Party is to give notice and file proof of service of such.

DATED:  September 13, 2022                                                          ___________________________

Elaine Lu

                                                                                    Judge of the Superior Court