Judge: Gregory Keosian, Case: 21STCV35126, Date: 2022-08-04 Tentative Ruling

Case Number: 21STCV35126    Hearing Date: August 4, 2022    Dept: 61

Cross-Complainant My Life Foundation, Inc.’s Motion to Compel Compliance with Statements of Compliance against Cross-Defendants Tim DeHaven, Erik Duzell, and 3D Supports LLC, is DENIED.

No sanctions are awarded.

I.                   MOTION TO COMPEL COMPLIANCE

“If 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.” (Code Civ. Proc. § 2031.320, subd. (a).)

My Life Foundation moves to compel the compliance of Cross-Defendants Tim DeHaven, Erik Duzell, and 3D Supports, LLC with respect to statements of compliance served in response to Requests for Production No. 1, 2, 5, 9–13, and 17. Foundation contends that for each of the requests at issue, Cross-Defendants stated that it would comply with the demand “subject to the entry of an acceptable protective order.” (Separate Statement.) Because such a protective order has been stipulated and entered on May 10, 2022, Foundation argues that there is nothing holding back document production. Yet no production has been made. (Motion at p. 5.)

Cross-Defendants in opposition contend that production has been made as of June 10, 2022, the day after the motion was filed, in accordance with Cross-Defendants’ repeated promise to make production. (Kron Decl. ¶¶ 23–24.) Cross-Defendants therefore argue that the motion is moot. (Opposition at p. 1.)

In reply, Foundation argues that the motion is not moot, as in the 232-page production made by Cross-Defendants, they include only 14 pages of communications, and omit any text messages. (Supp. Parnes Decl. ¶¶ 10–11.) Foundation argues that further production must be compelled, as it may only access Cross-Defendants text messages by employing an expensive computer recovery service to unlock the phones of Cross-Defendant Duzell, which has software installed on it that prevents anyone without administrative privileges from unlocking it. (Fidler Decl. ¶ 8.)

Foundation’s cross-complaint rests to a large extent upon text messages exchanged between DeHaven and Duzell. (XC ¶¶ 6–7.) However, Foundation does not present admissible evidence that Cross-Defendants are in possession of text messages or communications that have not been produced. It is not apparent that Cross-Defendants possess communications or other responsive documents that Foundation can only access through costly imaging procedures enacted on Duzell’s phone.

The motion is therefore DENIED.

II.                SANCTIONS

“Except as provided in subdivision (d), the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) 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.” (Code Civ. Proc. § 2031.320, subd. (b).)[1]

Foundation asks for $6,220.00 in sanctions, representing 15.4 hours of attorney work at $400 per hour, plus a $60 filing fee. (Parnes Decl. ¶ 20.)

Cross-Defendants ask for $4,314.27 in sanctions, representing 12.3 hours of attorney work at $350 per hour, plus a $9.27 e-filing fee. (Kron decl. ¶ 26.)

No sanctions are appropriate. The motion was filed when no responses were provided, and has largely been mooted by the provision of supplemental responses and concurrent production. Although Foundation claims that the motion is not moot and that further documents remain to be produced, no evidence has been submitted on that point.