Judge Gregory Keosian, Case 21STCV39849 2023-01-12 Tentative Ruling

Judge: Gregory Keosian, Case: 21STCV39849, Date: 2023-01-12 Tentative Ruling

Case Number: 21STCV39849 Hearing Date: January 12, 2023 Dept: 61

Defendant Network Access Solutions, Inc.’s Motions to Compel Further Responses to Special Interrogatories, General and Employment Form Interrogatories, Requests for Production, and Requests for Admission from Plaintiff Eric Stewart are:

· GRANTED as to Request for Admission No. 31;

· GRANTED as to Form Interrogatories No. 2.5, 2.7, 11.1, and 17.1;

· GRANTED as to Form Interrogatories – Employment No. 200.6, 207.2, 209.1, and 217.1;

· GRANTED as to Special Interrogatories No. 3, 6, 9, 12, 15, 18, 21, 24, 27, 30, 33, 36, 39, 42, 45, 48, 51, 54, 57, 60, 63, 66, 69, 72, 75, 78, 81, 85, 89, 95, and 99; and

· GRANTED as to Requests for Production No. 3–20, 23–30, 33–38, 40, 43–68, 71, and 72.

The motions are otherwise DENIED. No sanctions are awarded.

I. MOTION TO COMPEL FURTHER – PRODUCTION OF DOCUMENTS

“A party may demand that any other party produce . . . a document that is in the possession, custody, or control of the party on whom the demand is made.” (Code Civ. Proc., § 2031.010(b).) The demanding party may move for an order compelling further response to the demand if the demanding party deems that (1) a statement of compliance with the demand is incomplete, (2) a representation of inability to comply is inadequate, incomplete, or evasive, or (3) an objection in the response is without merit or too general. (Code Civ. Proc., § 2031.310(a).) “The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand,” and “[t]he motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2031.310(b).)

A motion to compel a further response to an inspection demand must set forth specific facts showing “good cause” justifying the discovery sought by the inspection demand. (Code Civ. Proc., § 2031.310(b)(1); Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.) Unless there is a legitimate privilege issue or claim of attorney work product, that burden is met simply by a fact-specific showing of relevance. (TBG Ins. Services Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 444.) Once the moving party demonstrates good cause for the discovery, the burden is on the responding party to justify any objection or failure to fully respond to the inspection demand. (Coy v Superior Court (1962) 58 Cal.2d 210, 220.)

“Any party may obtain discovery . . . by propounding to any other party to the action written interrogatories to be answered under oath.” (Code Civ. Proc. § 2030.010, subd. (a).) A propounding party may move for an order compelling further responses if the party believes the answers are incomplete, evasive, or the objections are without merit. (See Cal. Code Civ. Proc. § 2030.300, subd. (d).)

A motion to compel further responses to requests for admissions may be made on the grounds that an answer is incomplete or evasive, or an objection is without merit. (Code Civ. Proc. § 2033.290, subd. (a)(1)–(2).)

Defendant Network Access Solutions (Defendant) moves to compel further responses to the following discovery from Plaintiff Eric Stewart (Plaintiff): Requests for Production No. 1–72; Requests for Admission No. 4, 5, 11–15, 19, 24, and 31; Employment Form Interrogatories No. 200.6, 207.2, 209.1, and 217.1; General Form Interrogatories No. 2.3–2.7, 11.1, and 17.1; and Special Interrogatories No. 1–3, 6, 9, 12, 15, 18, 21, 24, 27, 30, 33, 36, 39, 42, 45, 48, 51, 54, 57, 60, 61, 63, 66, 69, 72, 75, 77, 78, 81, 85, 89, 95, and 99.

This discovery was served on June 28, 2022, with a due date set by agreement to August 15, 2022. (Sterling Decl. ¶¶ 3–4.) No responses were served by that date, and after Defendant made various attempts to secure responses via meet-and-confer communications, Plaintiff served them, tardily, on September 19, 2022. (Sterling Decl. ¶¶ 5– 10.) Defendant contends these responses contained waived objections and evasive responses. (Sterling Decl. ¶ 11.) Additionally, when Plaintiff served document production on October 26, 2022, the production was incomplete and non-compliant, as it made no differentiation as to which response the documents corresponded to, and contained references to other documents which were not produced. (Sterlin Decl. ¶¶ 19–21.) The parties agreed to extend the deadline to bring a motion to compel to December 6, 2022. (Sterling Decl. Exh. F.)

Plaintiff has filed an untimely opposition, in which Plaintiff’s counsel contends that the initial delay in serving responses was caused by the failure of her associate to prepare the same. (Duel Decl. ¶ 3.) Plaintiff’s counsel argues that she was prevented from providing supplemental responses prior to the motion to compel deadline because the associate left the firm in September 2022, because household was sick, and because her own illness was complicated by her pregnancy. (Duel Decl. ¶¶ 9–12.) Plaintiff claims that supplementary discovery responses without objection were served on December 13, 2022, and that Plaintiff’s counsel offered to pay the filing fee associated with the motions to allow them to be withdrawn. (Duel Decl. ¶¶ 13–15.)

Defendant in opposition contends that the following discovery requests still require additional responses, despite the supplemental responses served by Plaintiff:

· General Form Interrogatories No. 2.5, 2.7, 11.1, and 17.1

· Employment Form Interrogatories No. 200.6, 207.2, 209.1, and 217.1

· All Special Interrogatories except No. 1, 2, and 61;

· Requests for Admission No. 31;

· Requests for Production No. 3–20, 23–30, 33–38, 40, 43–68, 71, and 72.

(Reply at p. 3.) Defendant further claims that it would have been amenable to a further extension of time in which to provide supplemental responses, but that Plaintiff never communicated that a further extension was necessary. (Reply at p. 2.)

A further response is required to Request for Admission No. 31. Plaintiff served no supplemental response to this request, and the initial request contained waived objections and neither an admission nor a denial, but rather a statement of lack of personal knowledge, without the assurance that a reasonable inquiry into the matter had been conducted prior to the response, as required in Code of Civil Procedure § 2033.220, subd. (c). (Separate Statement at p. 28.) The motion is therefore GRANTED as to Request for Admission No. 31.

Further responses are appropriate for Form Interrogatories – General, No. 2.5, 2.7, 11.1, and 17.1. For interrogatories No. 2.5 and 2.7, Plaintiff provided education details and what appears to be his present residential address, but neither listed the degrees obtained from such education nor the dates of residence at the address provided, when such matters were specifically called for in the interrogatories. (Duel Decl. Exh. 9.) Interrogatory No. 11.1 received no supplemental response, and proposed waived objections, and further denied that Plaintiff had filed any prior actions within the past ten years, when in fact he had filed another prior action against Defendant in 2020. (Separate Statement at pp. 10–11; See LASC Case No. 20STCV15243.) Further response is finally required as to Form Interrogatory No. 17.1, particularly as it requests further facts and evidence supporting Plaintiff’s responses to Requests for Admission No. 1 and 3, for although Plaintiff has clarified somewhat the factual basis for each response, Plaintiff identifies no specific documents that support his response. (Duel Decl. Exh. 9.) The motion is therefore GRANTED as to Form Interrogatories No. 2.5, 2.7, 11.1, and 17.1.

Further responses are required for Form Interrogatories – Employment, No. 200.6, 207.2, 209.1, and 217.1. Although Plaintiff has provided the information requested in connection with Interrogatories No. 200.6, 207.2, and 209.1, these responses were offered subject to objections, which have been waived. (Duel Decl. Exh. 10.) Additionally, Plaintiff’s response to Interrogatory No. 217.1 suffers from the same infirmities as Form Interrogatory – General No. 17.1. Accordingly, the motion is GRANTED as to Form Interrogatories – Employment No. 200.6, 207.2, 209.1, and 217.1.

Further responses are also required as to Special Interrogatories No. 3, 6, 9, 12, 15, 18, 21, 24, 27, 30, 33, 36, 39, 42, 45, 48, 51, 54, 57, 60, 63, 66, 69, 72, 75, 78, 81, 85, 89, 95, and 99. Plaintiff has provided supplemental responses to Interrogatories No. 1, 2, 61, and 77, which effectively answer the interrogatories posed. But the additional response to Interrogatory No. 99 sought identification of documents related to Plaintiff’s dismissal of the prior action against Defendants, to which Plaintiff responded only with the broadest generality. (Duel Decl. Exh. 8.) In this respect, Plaintiff mimicked the original responses to all other special interrogatories at issue in this motion, as these interrogatories sought the identification of documents relating to particular contentions or facts at issue, and Plaintiff responded only by objections, which have been waived, and broad citation to unspecified “[e]mails, texts, and screenshots.” (Separate Statement.) These responses are non-responsive, and the motion is GRANTED as to Special Interrogatories No. 3, 6, 9, 12, 15, 18, 21, 24, 27, 30, 33, 36, 39, 42, 45, 48, 51, 54, 57, 60, 63, 66, 69, 72, 75, 78, 81, 85, 89, 95, and 99.

Finally, as to requests for production, Plaintiff has produced supplemental responses that either state an inability to comply (for which Defendant seeks no further response) or that certain identified documents shall be produced. (Duel Decl. Exh. 12.) However, these responses rectify only one of the deficiencies addressed in Defendant’s motion: the failure to identify which documents are responsive to which requests under Code of Civil Procedure § 2031.280, subd. (a). The only statements of compliance offered pursuant Code of Civil Procedure § 2031.220, state that “non-privileged documents within [Plaintiff’s] custody, possession, or control” will be produced, without stating whether production will be in whole, and seeming to indicate rather that the production will be limited by reference to already-waived objections. (Duel Decl. Exh. 12.) The supplemental responses, though more specific, do not fix this defect. Therefore the motion is GRANTED as to Requests for Production No. 3–20, 23–30, 33–38, 40, 43–68, 71, and 72.

In summary, the motions to compel further are:

· GRANTED as to Request for Admission No. 31;

· GRANTED as to Form Interrogatories No. 2.5, 2.7, 11.1, and 17.1;

· GRANTED as to Form Interrogatories – Employment No. 200.6, 207.2, 209.1, and 217.1;

· GRANTED as to Special Interrogatories No. 3, 6, 9, 12, 15, 18, 21, 24, 27, 30, 33, 36, 39, 42, 45, 48, 51, 54, 57, 60, 63, 66, 69, 72, 75, 78, 81, 85, 89, 95, and 99; and

· GRANTED as to Requests for Production No. 3–20, 23–30, 33–38, 40, 43–68, 71, and 72.

The motions are otherwise DENIED.

II. SANCTIONS

Statute provides that the court shall impose sanctions upon a party who unsuccessfully makes or opposes a motion to compel further response to interrogatories, requests for production of documents, or requests for admission, absent substantial justification otherwise. (Code Civ. Proc. §§ 2030.300, subd. (d); 2031.310, subd. (h); 2033.290, subd. (d).)

Defendant here seeks $13,375.00 in sanctions, representing 15.5 hours of attorney work at $450 per hour plus 16 hours of attorney work at $400 per hour. (Sterlin Decl. ¶¶ 29–34; Supp. Sterling Decl. ¶¶ 18–21.)

Plaintiff in opposition argues that sanctions are inappropriate because the notices of motion do not identify the person to be targeted with sanctions, as required under Code of Civil Procedure § 2023.040. (Opposition at pp. 5–6.) Plaintiff also argues that the motions were opposed with substantial justification, as Plaintiff always attempted to comply with discovery obligations in good faith, but was impeded by illness and loss of staff. (Duel Decl. ¶¶ 9–15.)

No sanctions are appropriate here. The failure to provide timely, compliant responses here was the product of illness and loss of supporting staff. While Defendant prevails upon the motions, the same motions have been partially addressed by Plaintiff’s provision of supplemental responses. Additionally, Plaintiff is correct that the notices accompanying the motions here do not identify the person or entity against whom sanctions are sought, as required under Code of Civil Procedure § 2023.040.

Accordingly, no sanctions are awarded.