Judge Elaine Lu, Case Number: 22STCV13261, Date: 2023-10-24 Tentative Ruling

On April 20, 2022, Plaintiffs Total Management Services America, Inc., Global Data Innovators, Inc., Takako Shimakage, and Mayo Ono (collectively “Plaintiffs”) filed the instant declaratory relief action against Defendants E-Shop Labo LLC (“E-Shop”), Miwa Tamura (“Tamura”), and Keisuke Shimada (“Shimada”) (collectively, “Defendants”).

On April 4, 2023, Plaintiffs filed the operative First Amended Complaint (“FAC”) against Defendants. The FAC asserts six causes of action for (1) Breach of Contract, (2) Breach of Contract, (3) Intentional Misrepresentation, (4) Promissory Estoppel, (5) Quantum Meruit, and (6) Declaratory Relief.

On October 2, 2023, Plaintiffs filed the instant “motion” seeking to compel further responses to Form Interrogatories (“FROGs”) from Defendant E-Shop, Special Interrogatories (“SROGs”) from Defendant E-Shop, Request for Production of Documents (“RPDs”) from Defendant E-Shop, FROGs from Defendant Tamura, SROGs from Defendant Tamura, RPDs from Defendant Tamura, FROGs from Defendant Shimada, SROGs from Defendant Shimada, and RPDs from Defendant Shimada. On October 11, 2023, Defendants filed an opposition. On October 17, 2023, Plaintiffs filed a reply and a “Notice of Errata re Separate Statement”.

As a preliminary matter, the notice of the instant “motion” reflects that Plaintiff is seeking resolution of at least nine separate discovery issues involving three separate defendants. This is completely improper. There is no legal authority or rule of Court permitting Plaintiffs to improperly combine nine separate motions to be heard together absent a Court order permitting such. The California Rules of Court only permit the combining of the papers in support of the same motion. (Cal. Rules of Court, Rule 3.1112(c).) Rather, each motion requires a separate notice and memorandum in support. (Cal. Rules of Court, Rule 3.1112(a).) Nor is there a basis for these motions to be combined as the discovery disputes involve various different parties and types of discovery disputes. Moreover, Plaintiffs have failed to make a separate online Court Reservation System (CRS) reservation pay the required filing fees for each motion.

For purposes of the instant “motion,” the Court will consider the merits. However, any improper filings in the future will be stricken and taken off calendar, such as the untimely errata to the separate statement filed with the reply.

The moving party generally may not rely on additional evidence filed with its reply papers. (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316.) Evidence filed for the first time in a reply may violate the opposing party’s due process rights if considered by the Court. (Ibid.) Thus, evidence and exhibits presented in support of a reply are not generally allowed. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 249.) Accordingly, the separate statement filed with the reply is STRICKEN AS AN IMPROPER FILING.

Code of Civil Procedure section 2030.300 provides that “[o]n receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (1) An answer to a particular interrogatory is evasive or incomplete; [or] (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate; [or] (3) An objection to an interrogatory is without merit or too general.” (CCP § 2030.300(a).)

Notice of the motion must be given within 45 days of service of the verified response, or upon a later date agreed to in writing. Otherwise, the propounding party waives any right to compel a further response. (CCP § 2031.310(c).) The motion must also be accompanied by a meet and confer declaration. (CCP § 2031.310(b)(2).)

The burden is on the responding part to justify any objection or failure fully to answer the interrogatories. (Fairmont Ins. Co. v. Superior Court (Stendell) (2000) 22 Cal. 4th 245, 255.)

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:

(2) A representation of inability to comply is inadequate, incomplete, or evasive.

(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.

Pursuant to Code of Civil Procedure section 2030.300(b)(1) a motion to compel further responses to interrogatories “shall be accompanied by a meet and confer declaration under Section 2016.040.” (CCP § 2030.300(b)(1).) Similarly, under 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.) “The level of effort at informal resolution which satisfies the ‘reasonable and good faith attempt’ standard depends upon the circumstances. In a larger, more complex discovery context, a greater effort at informal resolution may be warranted. In a simpler, or more narrowly focused case, a more modest effort may suffice. The history of the litigation, the nature of the interaction between counsel, the nature of the issues, the type and scope of discovery requested, the prospects for success and other similar factors can be relevant.” (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431.)

Here, on February 17, 2023, Plaintiffs served the FROGs, SROGs, and RPDs on each of the Defendants. (Flores Decl. ¶ 2.) On March 21, 2023, Defendants each served verified responses to the FROGs, SROGs, and RPDs at issue. (Flores Decl. ¶ 3.)

On March 30, 2023, Plaintiffs’ Counsel sent a meet and confer letter to then Defense Counsel and subsequently telephonically conferred with Defense Counsel regarding the discovery responses at issue. (Flores Decl. ¶ 4, Exh. 1.) Through emails between Counsel, the parties agreed to extend the deadline to compel. (Flores Decl. ¶¶ 5-20, Exhs. 2-12.) On September 22, 2023, Defendants filed supplemental responses to most of the discovery requests at issue except for the FROGs as to E-Shop. (Flores Decl. ¶ 21.)

On September 27, 2023, Plaintiffs’ Counsel emailed Defense Counsel requesting to meet and confer telephonically. (Flores Decl. ¶ 22, Exh. 13.) However, the parties were only able to briefly meet and confer telephonically regarding the requests and briefly email regarding the discussion. (Flores Decl. ¶¶ 23-27, Exhs. 14-17.)

On October 2, 2023, Defendants served verifications to the supplemental responses. (Keech Decl. ¶ 17, Exhs. B-C.) On October 3, 2023, Defendant E-Shop served its supplemental responses to the FROGs at issue. (Keech Decl. ¶ 18, Exh. D.) On October 4, 2023, Defendant E-Shop served verifications for the at issue FROGs at issue. (Keech Decl. ¶ 19, Exh. E.)

Plaintiffs contend that all of the objections to the discovery responses have been waived because (1) Defense Counsel “agreed” to waive objections, and (2) the supplemental responses were “untimely.”

Under Code of Civil Procedure section 2030.260 subdivision (a), a party must respond to interrogatories within 30 days of service. Under Code of Civil Procedure section 2031.260 subdivision (a), a party must respond to requests for production of documents within 30 days of service. However, these time limits are extended if served by mail, overnight delivery, fax, or electronically. (See CCP §§ 1010.6(a)(4), 1013.) Failure to timely respond waives all objections including privilege or on the protection of work product. (See CCP § 2031.300(a); see CCP § 2030.290(a).)

Here, Plaintiffs concede that Defendants timely provided verified responses to the discovery requests at issue. (Flores Decl. ¶ 3.) Thus, the objections raised in those requests are not waived by statute.

The alleged “agreement” to waive objections consists of Plaintiffs’ Counsel agreeing to extend the time to provide supplemental responses before a motion to compel further responses would be brought stating that “[t]he extra week is fine — you can even have two weeks, with the corresponding motion to compel deadline being extended — so long as there are no objections.” (Flores Decl., Exh. 9.) Defense Counsel never responded to this request. (Flores Decl., Exh. 9.) This is not an agreement to waive objections. This is merely a request by Plaintiffs’ Counsel that Defendant not serve any objections to the discovery requests at issue.

Similarly, a supplemental response cannot be untimely under the relevant statutes. The waiver of objection occurs with the initial response to the request -- not on the arbitrary deadline agreed to by the parties to provide supplemental responses before a motion to compel further responses is filed.

“[A]ny motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement. The motions that require a separate statement include a motion: [¶] (1) To compel further responses to requests for admission; … [¶] (3) To compel further responses to a demand for inspection of documents or tangible things; …” (Cal. Rules of Court, Rule 3.1345(a).) “A separate statement is not required under the following circumstances: [¶] (1) When no response has been provided to the request for discovery; or [¶] (2) When a court has allowed the moving party to submit--in place of a separate statement--a concise outline of the discovery request and each response in dispute.” (Cal. Rules of Court, Rule 3.1345(b), [bold and italics added].) The statutes permitting a motion to compel further responses provide that a separate statement is required unless the Court orders a concise outline. (CCP §§ 2030.300(b), 2031.310(b).) Failure to comply with this requirement is grounds for denial of the sought discovery motion. (Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 893.)

Here, as noted by Defendants in opposition, Plaintiffs failed to file a separate statement as to the FROGs, SROGs, and RPDs at issue with regard to Defendant Tamura. Moreover, the Court did not authorize nor permit a concise outline nor was one filed. Accordingly, as there was no separate statement, as to Defendant Tamura, the instant motion is DENIED.

As noted above, on October 4, 2023, Defendant E-Shop provided a further verified response to the FROGs at issue. Pursuant to Code of Civil Procedure § 2030.300 “[o]n 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” [.] (Id., [italics added].) Here, Defendant E-Shop has served a further response since the filing of the instant motion, and thus, there is nothing further to compel from the original response. Accordingly, the instant motion is MOOT as to FROGs to Defendant E-Shop.[1]

Here, the responses to the SROGs contain various objections including that they are overbroad, vague and ambiguous, burdensome, and that they are protected by attorney client/work product privilege.

As to the overbroad objection “any party may obtain discovery regarding any matters, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (CCP § 2017.010.) “[A]n implicit waiver of a party's constitutional rights encompasses only discovery directly relevant to the plaintiff's claim and essential to the fair resolution of the lawsuit.” (Vinson v. Superior Court (1987) 43 Cal.3d 833, 842.) However, discovery should not be denied if the information sought has any relevance to the subject matter. Thus, while relevancy is a possible ground for an objection, it is difficult to adequately justify it. (See generally Coy v. Superior Court of Contra Costa County (1962) 58 Cal.2d 210, 217.) “These rules are applied liberally in favor of discovery, and (contrary to popular belief), fishing expeditions are permissible in some cases.” (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546 [internal citation omitted].)

Here, the SROGs at issue are relevant to the action. Moreover, as to ambiguity, the Court of Appeal in Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, noted that “where the question is somewhat ambiguous, but the nature of the information sought is apparent, the proper solution is to provide an appropriate response.” (Id. at p.783.) Here, the supplemental responses properly respond to the request despite any claimed ambiguity.

As to burden, “burden must be sustained by evidence showing the quantum of work required” and “to support an objection of oppression there must be some showing either of an intent to create an unreasonable burden or that the ultimate effect of the burden is incommensurate with the result sought.” (West Pico Furniture Co. of Los Angeles v. Superior Court In and For Los Angeles County (1961) 56 Cal.2d 407, 417.) Moreover, even if [discovery requests] are found to be “burdensome and oppressive,” the Court should not simply sustain the objection and thereby excuse any answer. Rather, the Court should limit the question to a reasonable scope. (Borse v. Superior Court (Southern Pac. Co.) (1970) 7 Cal.App.3d 286, 289.)

Here, Defendant Eshop has failed to substantiate any burden such as to warrant a refusal to respond to the requests. Moreover, Defendant E-Shop has provided proper responses to the request at issue despite the claimed burden.

“In general, when a party asserts the attorney-client privilege, that party has the burden of showing the preliminary facts necessary to support the privilege.” (Venture Law Group v. Superior Court (2004) 118 Cal.App.4th 96, 102.) “The party asserting the privilege need only present facts which ‘support a prima facie claim of privilege.” (OXY Resources California LLC v. Superior Court (2004) 115 Cal.App.4th 874, 894.) “After this burden is met, or where there is no dispute concerning the preliminary facts, the burden shifts to the party opposing the privilege to show either the claimed privilege does not apply, an exception exists, or there has been an express or implied waiver.” (Venture Law Group, supra, 118 Cal.App.4th at p.102.)

Here, given the broad requests, attorney-client privilege/work product privilege could be applicable. However, despite raising attorney-client privilege, Defendant E-Shop appears to fully respond to the request.

As to SROGs Nos. 3, 6, 9, 12, and 15, Defendant E-Shop incorporates a reference to documents. As explained in Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, “[a]nswers must be complete and responsive. Thus, it is not proper to answer by stating, ‘See my deposition,’ ‘See my pleading,’ or ‘See the financial statement.’ Indeed, if a question does require the responding party to make reference to a pleading or document, the pleading or document should be identified and summarized so the answer is fully responsive to the question.” (Id. at pp.783–784, [italics added].) The responding party must also identify the documents with sufficient particularity so they can be easily located. (See Fuss v. Superior Court for Los Angeles County (1969) 273 Cal.App.2d 807, 815-817.)

Here, while the substantive responses somewhat describe the documents at issue, Defendant E-Shop merely notes that they have been produced in discovery and are in Plaintiffs’ possession. This is insufficient as Defendant E-Shop should identify the responsive documents by bates number. Accordingly, a further response as to SROGs Nos. 3, 6, 9, 12, and 15 is required. As to the remaining requests, the substantive responses appear fully responsive and complete. Accordingly, as there is nothing further to compel, nor does there appear to be any good cause, Plaintiffs’ motion is denied as to SROGS 1-2, 4-5, 7-8, 10-11, and 13-14.

Plaintiffs seek to compel further responses as to all of the RPDs; however, Plaintiffs failed to provide a separate statement as to RPD No. 6 for E-Shop and Shimada. Accordingly, the instant motion is DENIED as to RPD No. 6.

Here, the supplemental responses to the RPDs contain various objections including that they are overbroad, vague and ambiguous, burdensome, and that they are protected by attorney client/work product privilege.

As noted above, discovery should not be denied if the information sought has any relevance to the subject matter. Thus, while relevancy is a possible ground for an objection, it is difficult to adequately justify it. (See generally Coy v. Superior Court of Contra Costa County (1962) 58 Cal.2d 210, 217.) “These rules are applied liberally in favor of discovery, and (contrary to popular belief), fishing expeditions are permissible in some cases.” (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546 [internal citation omitted].) Further, objections as to “burden must be sustained by evidence showing the quantum of work required[.]” (West Pico Furniture Co. of Los Angeles v. Superior Court In and For Los Angeles County (1961) 56 Cal.2d 407, 417.)

Here, the requests are relevant, not too ambiguous to avoid a substantive response, and there is no evidence supporting the claimed burden. Accordingly, these objections are overruled.

As to the claims of privilege such as attorney-client privilege, “[t]he party asserting the privilege need only present facts which ‘support a prima facie claim of privilege.” (OXY Resources California LLC v. Superior Court (2004) 115 Cal.App.4th 874, 894.) Given the breadth of the requests, the request could invoke documents that could involve attorney-client/work product privilege, these objections do appear supported.

However, Defendant E-Shop’s substantive responses are not code compliant. First, E-Shop’s substantive response is unclear stating that “[s]ubject to and without in any way waiving the foregoing specific and general objections, and to the extent it understands this Request, E-Shop responds as follows: E-Shop has produced all relevant, non-privileged responsive documents in its possession, custody, or control located after a reasonably diligent search, Bates labeled E-Shop 000001-000151.” (See e.g., E-Shop Supp. Response to RPD No. 4.) The responses do not specify that all responsive documents in its possession, custody, and control are being produced. Defendant E-Shop has not waived any objections. Thus, it is unclear whether documents are being withheld based on such objections. Therefore, Defendant E-Shop was required to identify the documents being withheld and the basis for the withholding. (See CCP § 2031.240(b)(1-2), [“b) If the responding party objects to the demand for inspection, copying, testing, or sampling of an item or category of item, the response shall do both of the following: (1) Identify 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. (2) Set forth clearly the extent of, and the specific ground for, the objection. If an objection is based on a claim of privilege, the particular privilege invoked shall be stated. If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted.”] [Italics added.].)

Accordingly, a further response identifying whether all responsive documents are being compelled and a privilege log identifying specific documents being withheld and the basis for such withholding is required as to RPDs No. 1-5, 7-50.

As the requests and responses to Shimada are identical as to the SROGs and RPDs to E-Shop, the instant motion is GRANTED IN PART as specified as to Defendant E-Shop.

As to the FROGs, the supplemental responses are mostly code compliant for the reasons set forth as to the discussion regarding the SROGs. However, the supplemental responses to RPDs Nos. 15.1 and 50.1 incorporate a reference to documents.

As explained in Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, “[a]nswers must be complete and responsive. Thus, it is not proper to answer by stating, ‘See my deposition,’ ‘See my pleading,’ or ‘See the financial statement.’ Indeed, if a question does require the responding party to make reference to a pleading or document, the pleading or document should be identified and summarized so the answer is fully responsive to the question.” (Id. at pp.783–784, [italics added].) The responding party must also identify the documents with sufficient particularity so they can be easily located. (See Fuss v. Superior Court for Los Angeles County (1969) 273 Cal.App.2d 807, 815-817.)

Here, while the substantive responses somewhat describe the documents at issue, Defendant Shimada merely notes that the documents have been produced in discovery and are in Plaintiffs’ possession. This is insufficient as Defendant Shimada should identify the responsive documents by bates number. Accordingly, as to FROGs No. 15.1 and 50.1 a further response identifying the responsive documents by bates is required. Plaintiffs’ motion is otherwise DENIED.

Plaintiffs seek sanctions of $5,400.00 for bringing the instant motion against Defense Counsel. (Flores Decl. ¶ 31.)

“The 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); CCP § 2030.290(c).)

Here, given the mixed result, the imposition of sanctions would be unjust. Accordingly, the request for sanctions is DENIED.

Based on the foregoing, Plaintiffs Total Management Services America, Inc., Global Data Innovators, Inc., Takako Shimakage, and Mayo Ono’s motion to compel further responses is GRANTED IN PART.

Defendant E-Shop Labo LLC is ordered to serve a further code compliant responses to Special Interrogatories, Set One Nos. 2, 6, 9, 12, and 15 specifying the referenced responsive documents by Bates Number within 30 days.

Defendant E-Shop Labo LLC is ordered to serve verified, code compliant further responses, without objections– except as to attorney client privilege – to Requests for Production, Set One, Nos. 1-5, 7-50 within 30 days. Defendant is to simultaneously provide a privilege log specifically identifying any documents withheld based on attorney client privilege/work product and enough information to clearly denote that the respective withheld document is subject to attorney client/work product privilege. (CCP § 2031.240(b).)

Defendant Keisuke Shimada is ordered to serve a further code compliant response to Form Interrogatories, Set One Nos. 15.1 and 50.1 and Special Interrogatories, Set One Nos. 2, 6, 9, 12, and 15 specifying the referenced responsive documents by Bates Number within 30 days.

Defendant Keisuke Shimada is ordered to serve verified, code compliant further responses, without objections – except as to attorney client privilege – to Request for Production, Set One Nos. 1-5, 7-50 within 30 days. Defendant is to simultaneously provide a privilege log specifically identifying any documents withheld based on attorney client privilege/work product and enough information to clearly denote that the respective withheld document is subject to attorney client/work product privilege. (CCP § 2031.240(b).)

[1] To the extent that Plaintiff is not satisfied with Defendant E-Shop’s further response, Plaintiff must meet and confer with Defendant E-Shop and if the disputes are not resolved, file a new, properly noticed motion to compel further with a new separate statement.

County of Los Angeles

Department 26