Judge: Elaine Lu, Case: 22STCV00356, Date: 2023-11-01 Tentative Ruling

Case Number: 22STCV00356    Hearing Date: March 5, 2024    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Procedural Background

            On January 5, 2022, Plaintiff Coachella Valley Water District (“CVWD”) filed the instant breach of contract action against Defendant Imperial Irrigation District (“IID”).  On August 4, 2023, CVWD filed the operative First Amended Complaint (“FAC”) against IID.  The FAC asserts four causes of action for (1) Declaratory Relief, (2) Breach of Contract, (3) Accounting, and (4) Breach of Fiduciary Duty.

            On February 6, 2024, CVWD filed the instant motion to compel IID’s compliance with its agreement to produce all documents responsive to CVWD’s first, second, and supplemental Requests for Production of Documents (“RPDs”).  On February 21, 2024, IID filed an opposition.  On February 27, 2024, CVWD filed a reply.

Legal Standard

Monetary Sanctions for Failing to Comply with a Court Order

Code of Civil Procedure section 2023.030 provides that, “[t]o the extent authorized by the chapter governing any particular discovery method . . . , the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose . . . [monetary, issue, evidence, or terminating] sanctions against anyone engaging in conduct that is a misuse of the discovery process . . . .”  Code of Civil Procedure section 2023.010 provides that “[m]issues of the discovery process include, but are not limited to, the following: . . . (d) Failing to respond or to submit to an authorized method of discovery. . . . (g) Disobeying a court order to provide discovery . . . .”

Motion to Compel Compliance

            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).)

Discussion

            On February 14, 2022, CVWD served RPDs, Set One Nos. 1-2.  (Bakaly IV Decl. ¶ 4.)  On March 21, 2022, IID served its initial responses to the RPDs, Set One.  (Bakaly IV Decl. ¶ 4.)  On October 4, 2022, CVWD served RPDs, Set Two Nos. 3-76.  (Bakaly IV Decl. ¶ 4.)  On November 11, 2022, IID served its initial responses to the RPDs, Set Two.  (Bakaly IV Decl. ¶ 4.) 

            On January 23, 2023 – in response to a pending motion to compel further responses – IID served supplemental responses agreeing to produce all documents responsive to RPDs No. 1-39, 41-61, and 63-76.  (Bakaly IV Decl. ¶ 5; see also Order 11/1/23 at p.2:10-13.)  However, IID failed to produce all responsive documents in compliance with its supplemental responses to the RPDs Set One and Set Two.  (Bakaly IV Decl. ¶ 6.)  Accordingly, on July 10, 2023, CVWD moved to compel IID’s compliance with its supplemental responses agreeing to produce all documents responsive to RPDs No. 1-39, 41-61, and 63-76.  (Bakaly IV Decl. ¶ 7.)

            Before the initial hearing for CVWD’s motion, on August 1, 2023, IID represented that, due to the number of documents, it may take up until November 2023 to go through and produce all of the responsive documents.  (Minute Order 8/1/23; see also Order 11/1/23 at p.2:15-17.)  Accordingly, the Court continued the motion to be heard on November 1, 2023.  (Minute Order 8/1/23; see also Order 11/1/23 at p.2:17-19.) 

            In addition, on August 1, 2023, the parties stipulated to the filing of the FAC which would add the years 2021 and 2022 to the parties’ dispute regarding the net proceeds arising from 1934 Compromise Agreement between CVWD and IID.  (Griffin Decl. ¶ 6, Exh. 5.)  On October 2, 2023, CVWD served supplemental RPDs asking IID to produce additional documents for the years 2021 and 2022.  (Bakaly IV Decl. ¶ 8; Griffin Decl. ¶ 7.) 

            On November 1, 2023, as the documents responsive to RPDs No. 1-39, 41-61, and 63-76 had not been produced in compliance with IID’s response, the Court ordered IID to produce the responsive documents within thirty days of notice of the order and for CVWD to give notice.  (Order 11/1/23 at p.3:2-6; Bakaly IV Decl. ¶ 9, Exh. B; Griffin Decl. ¶ 5.)  On November 2, 2023, CVWD gave notice on IID by electronic service of the Court’s November 1, 2023 Order.  (Bakaly IV Decl. ¶ 9, Exh. C.) 

            On November 3, 2023, IID served responses to the Supplemental RPDs agreeing to produce documents. (Bakaly IV Decl. ¶ 10, Exh. D; Griffin Decl. ¶ 7, Exh. 6.)  On November 14, 2023, CVWD’s Counsel emailed IID’s Counsel for clarification on the responses to the Supplemental RPDs.  (Bakaly IV Decl. ¶ 11, Exh. E.)  On November 21, 2023, IID’s Counsel clarified that for the Supplemental RPDs, “where [IID] agreed to produce documents, it will be for all years at issue.”  (Bakaly IV Decl. ¶ 11, Exh. E.) 

            On November 30, 2023, IID’s Counsel emailed CVWD’s Counsel to tell them that a sizable production was coming on December 4, 2023 and inquired whether CVWD would agree to extend the deadline to produce the deadline by two weeks to make it a rolling production, and that it was working on the Net Proceeds Statement for 2022 and would be producing it as soon as possible.  (Bakaly IV Decl. ¶ 11, Exh. E.)  On December 4, 2023, CVWD’s Counsel responded by email, denying the request for two additional weeks on the grounds that that IID had requested the additional two weeks at the November 1, 2023 hearing, and the Court denied it.  (Bakaly IV Decl. ¶ 11, Exh. E.)

            On December 4, 2023, IID served approximately 545,201 documents.  (Bakaly IV Decl. ¶ 12.)  On December 19, 2023, CVWD’s Counsel sent a meet and confer letter noting that CVWD could not confirm if IID had produced all the documents because IID had failed to serve a production log and failed to confirm whether all the documents had been produced.  (Bakaly IV Decl. ¶ 13, Exh. F.)  On January 4, 2024, IID served a response including the production log and claimed that all the documents had been produced.  (Bakaly IV Decl. ¶ 14, Exhs. G-H.)  IID also noted that it anticipated producing documents requested in the Supplemental RPDs no later than January 31, 2024.  (Bakaly IV Decl. ¶ 14, Exh. G.)  On January 26, 2024, CVWD’s Counsel sent an email noting that CVWD still needed (1) the 2022 General Ledger; (2) general ledger trial balances for 2022; (3) the 2022 GL Financial Statement Mapping, and (4) the 2022 Net Proceeds Statement.  (Bakaly IV Decl. ¶ 15, Exh. I.)  CVWD’s Counsel further requested that IID confirm that all outstanding documents would be produced by January 31, 2024.  (Bakaly IV Decl. ¶ 15, Exh. I.)

            CVWD’s Counsel attempted to contact IID’s Counsel by phone between February 1 and February 5, 2024 but did not receive a response.  (Bakaly IV Decl. ¶ 16.)  As IID’s Counsel notes, CVWD’s Counsel only called once on February 5, 2024 when IID’s Counsel was out of office, and CVWD’s Counsel’s voicemail did not refer to any potential discovery motion.  (Griffin Decl. ¶ 11.) 

            CVWD contends that (1) IID violated the November 1, 2023 Order and that (2) IID failed to produce documents compliant with its response to the Supplemental RPDs. 

Failure to Comply with the November 1, 2023 Order

            CVWD contends that IID violated the November 1, 2023 Order by not producing the documents until December 4, 2023 and by not including the 2021 and 2022 related documents in the initial production. 

            The November 1, 2023 Order ordered IID to produce documents compliant with IID’s responses RPDs No. 1-39, 41-61, and 63-76 “within thirty (30) days of notice of th[e] order[,]” and ordered CVWD to give notice.  (Order 11/1/23 at p.3:5-6, [Bold, Italics, Underline Added].)  As noted above, CVWD gave notice by electronic service on November 2, 2023.  (Bakaly IV Decl. ¶ 9, Exh. C.)  As notice was provided by electronic service, the deadline to comply with the Order was extended by two court days.  (CCP § 1010.6.)  Therefore, IID had until December 5, 2023 to timely produce the requested documents.

            Moreover, the failure to include the 2021 and 2022 related documents does not violate the November 1, 2023 Order.  The November 1, 2023 Order merely granted the requests specified in CVWD’s July 10, 2023 motion – which was before the parties stipulated to expand the action to include the net proceeds from 2021 and 2022.  Thus, the November 1, 2023 Order did not encompass documents beyond those requested in the original July 10, 2023 motion – i.e., documents up to 2020. 

            However, IID did fail to comply with the November 1, 2023 Order in another aspect.  Though a “production log” is not necessarily required – nor was it specified in the November 1, 2023 Order – a party cannot merely provide a large quantity of unidentified documents.  Rather, “[a]ny documents … produced in response to a [RPD] shall be identified with the specific request number to which the documents respond.”  (CCP § 2031.280(a), [Bold, Italics, Underline Added].)  Thus, it is essential that the produced documents clearly identify the RPD to which each document is responsive in some manner such as a production log. 

            Here, it is clear that the December 4, 2023 Document production did not identify which documents were responsive to each specific RPD.  (See e.g., Bakaly IV Decl. ¶ 13, Exh. F.)  It was not until January 4, 2024 – a month later – that a production log identifying the specific responsive documents was produced.  (Bakaly IV Decl. ¶ 14, Exh. H.)  Therefore, IID failed to comply with the November 1, 2023 Order by failing to timely identify the documents responsive to each request as required with a code compliant production of documents. 

Compel Compliance with the Response to the Supplemental RPD

            As the moving papers note, CVWD contends that an order compelling compliance is warranted because IID failed to produce (1) the 2022 General Ledger; (2) general ledger trial balances for 2022; (3) the 2022 GL Financial Statement Mapping, and (4) the 2022 Net Proceeds Statement.   

Here, the supplemental RPD requested that:

Please review each of your responses to all [RPD]s previously served on you in this action by CVWD, and if, for any reason (including, but not limited to, the parties' stipulation and order authorizing the filing of CVWD's First Amended Complaint expanding this case to include the years 2020 and 2021) any response is no longer correct and complete, identify the response, produce any and all additional documents, and state whatever information is necessary to make it correct and complete as of this date. In supplementing responses to the [RPD]s, IID shall furnish all responsive documents and/or information available to IID from any source, including, but not limited to, IID's knowledge and any documents and/or information that can be acquired through a diligent search of records, statements, and other documents in IID's possession, custody or control.

(Bakaly IV Decl. ¶ 10, Exh. D, [Bold, Italics, Underline Added].)

In response, IID stated that:

Responding Party objects to this Supplemental Request by incorporating the above General Objections, as well as its objections to each of the prior Requests for Production previously served by Propounding Party, as though fully set forth herein. Responding Party further objects on the grounds that this Supplemental Request goes beyond the scope of CCP § 2031.050, and because a significant amount of time is necessary to assess and review relevant records and produce documents, if any, that are responsive to this Supplemental Request, additional time may be needed to complete this process. Without waiving the foregoing objections, Responding Party responds as follows:

Responding Party will review its prior responses to Propounding Party's Requests for Production, and will produce, for those specific Requests where Responding Party has agreed to produce documents, any later acquired or discovered non-privileged documents responsive to such Requests in its possession, custody, or control to the extent that such documents have not already been produced.

(Bakaly IV Decl. ¶ 10, Exh. D.)

            In relevant part, the Supplemental RPD only requests documents from 2020 through 2021, and the verified response only identifies that IID will produce responsive documents up to that date.  While this may be a typographical error, and the parties informally agreed in emails that “where [IID] agreed to produce documents, it will be for all years at issue[,]” (Bakaly IV Decl. ¶ 11, Exh. E), the formal verified response only identifies the request as requiring production through the years 2020 and 2021.  Thus, IID’s failure to produce documents from 2022 did not violate its verified response.  The Court can only compel produce compliant with the response. (CCP § 2031.320(a).)  The moving papers fails to identify any documents not produced in compliant with IID’s response to the Supplemental RPDs.

            Moreover, many of these documents have been produced.  “IID produced its 2022 Trial Balances and Financial Statement Mapping on June 16, 2023, as IID122477.”  (Griffin Decl. ¶ 9.)  Further, after the instant motion was filed, on February 16, 2024, IID produced the 2022 General Ledger, as IID688954-IID688965.  (Griffin Decl. ¶ 9; Supp. Bakaly IV Decl. ¶ 8.)  Thus, of the documents identified in the moving papers, only the 2022 Net Proceeds Statement remains outstanding.

Reply Contentions

            In reply, CVWD raises for the first time, that IID failed to produce the 2018-2021 General Ledgers in native format as requested in the RPD. (Supp. Bakaly IV Decl. ¶ 4.)

            Unless ordered otherwise, “[i]f a demand for production does not specify a form or forms for producing a type of electronically stored information, the responding party shall produce the information in the form or forms in which it is ordinarily maintained or in a form that is reasonably usable.”  (CCP § 2031.280(d)(1).)  Here, the RPDs at issue specified that the documents should be produced in native format.  (Supp. Bakaly IV Decl. ¶ 2, Exh. J.)  Moreover, IID’s responses to the RPDs do not specify that the documents would be produced in a different format than requested.  Accordingly, IID was required to produce the 2018-2021 General Ledgers in native format. 

            CVWD also notes for the first time in reply that IID failed to produce executed copies of the following board resolutions: Resolution Nos. 28-2016, 29-2016, and 30-2016.  (Supp. Bakaly IV Decl. ¶ 7.)  As these would be responsive documents, IID was required to produce said resolutions. 

            While these issues raised in the reply are significant, CVWD failed to raise them in the moving papers as required.  New arguments and issues cannot be raised in reply as they raise significant due process concerns.  “To withhold a point until the closing brief would deprive the [opposing part] of his [or her] opportunity to answer it or require the effort and delay of an additional brief by permission. Hence the rule is that points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before.”  (High Sierra Rural Alliance v. County of Plumas (2018) 29 Cal.App.5th 102, 112, Fn. 2.)

            Accordingly, sanctions cannot be awarded based on these issues raised in reply.

Sanctions

            CVWD requests sanctions against IID and its counsel of record of $4,644. CVWD’s Counsel claims to have spent 8.9 hours researching and drafting the instant motion and another 4 hours on the reply at a claimed billing rate of $360 an hour.  (Bakaly IV Decl. ¶ 18.)

            “If a party then fails to obey an order compelling further response [to a request for production], the court may … impose a monetary sanction under [CCP § 2023.030.]”  (CCP § 2031.310(i).)  Under Code of Civil Procedure section 2023.030(a), the court may impose sanction covering the costs of “reasonable expenses, including attorney’s fees”.  (CCP § 2023.030(a).) 

            Here, some sanctions are warranted for failing to timely identify the documents responsive to each request produced on December 4, 2023 and delaying until January 4, 2024 to serve the production log.  However, the requested amount of $4,644 is plainly excessive.  Most of the instant motion is unsupported.  The only identified issue warranting sanctions had been resolved over a month before the instant was filed.  Further, the claimed time is plainly excessive given the simplicity of identifying that IID failed to timely produce a production log.  Accordingly, based on the totality of the circumstances sanctions of $1,500 are warranted.

            Defendant Imperial Irrigation District and its counsel of record, Allen Matkins Leck Gamble Mallory & Natsis LLP, are jointly and severally liable and ordered to pay monetary sanctions in the amount of $1,500.00 to Plaintiff Coachella Valley Water District by and through counsel, within thirty (30) days of notice of this order. 

CONCLUSION AND ORDER

Based on the foregoing, Plaintiff Coachella Valley Water District’s motion to compel Imperial Irrigation District’s compliance is GRANTED IN PART.

Defendant Imperial Irrigation District is to produce executed copies of board resolutions Nos. 28-2016, 29-2016, and 30-2016, and the 2018-2021 General Ledgers in native format within fifteen (15) days of notice of this order.

            Defendant Imperial Irrigation District and its counsel of record, Allen Matkins Leck Gamble Mallory & Natsis LLP, are jointly and severally liable and ordered to pay monetary sanctions in the amount of $1,500.00 to Plaintiff Coachella Valley Water District by and through counsel, within thirty (30) days of notice of this order. 

Moving Party is to provide notice of this order and file proof of service of such.

DATED: March ___, 2024                                                     ___________________________

                                                                                          Elaine Lu

                                                                                          Judge of the Superior Court