Judge Holly J. Fujie, Case 21STCV24488 2023-03-10 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

This order concerns: (1) a motion to compel further responses to Plaintiff’s Requests for Production (“RFP”), Set Four (the “MTCF”); (2) a motion to compel responses to Plaintiff’s Requests for Production, Set Five (the “MTC”) (collectively, the “Motions to Compel”) filed by Plaintiff; and (3) a motion for protective order (the “MPO”) filed by Defendants Michael Theodore and Casa Theodore, Inc. (collectively, “Defendants”).

The Court has considered the moving, opposition and reply papers. The MTC is unopposed. Any opposition papers were required to be filed at least nine court days before the hearing under California Code of Civil Procedure (“CCP”) section 1005, subdivision (b). No reply papers to the MPO were filed. Any reply papers were required to have been filed and served at least five days before the hearing under CCP section 1005, subdivision (b).

The currently operative fourth amended complaint (the “4AC”) alleges: (1) statutory voidable transfers; and (2) common law voidable transfers.

On January 9, 2023, Plaintiff filed the Motions to Compel and Defendants filed the MPO. The MPO seeks an order that excuses Defendants from responding to RFP, Set 5 (the discovery requests at issue in the MTC).

Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, 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.) For discovery purposes, information is regarded as relevant “if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement thereof.” (City of Los Angeles v. Superior Court (2017) 9 Cal.App.5th 272, 288.)

When an inspection, copying, testing, or sampling of documents, tangible things, places, or electronically stored information has been demanded, the party to whom the demand has been directed, and any other party or affected person, may promptly move for a protective order. (CCP § 2031.060, subd. (a).) The court, for good cause shown, may make any order that justice requires to protect any party or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. (CCP § 2061.060, subd. (b).) Where a party must resort to the courts, the burden is on the party seeking the protective order to show good cause for whatever order is sought. (Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 318.) In law and motion practice, factual evidence is provided to the court by way of declarations. (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 224.)

Defendants seek a protective order that excuses them from responding to RFP, Set 5 on the grounds that Plaintiffs have propounded excessive discovery in this matter. (See MPO Declaration of Joshua P. Friedman (“Friedman Decl.”) ¶ 2, Exhibits A-X.)

The Court finds that the MPO does not set forth sufficient facts to demonstrate good cause for issuing a protective order. First, the Court notes that the Friedman Declaration includes duplicate copies of some discovery requests as well as discovery requests directed toward other parties to this lawsuit. Further, the MPO does not provide specific facts as to why the particular documents at issue in RFP, Set 5 are excessive, duplicative, or oppressive. The Court therefore DENIES the MPO.

A motion to compel further responses to a demand for inspection or production of documents may be brought based on: (1) incomplete statements of compliance; (2) inadequate, evasive or incomplete claims of inability to comply; or (3) unmerited or overly generalized objections. (CCP § 2031.310, subd. (c).) A motion to compel further production must set forth specific facts showing good cause justifying the discovery sought by the inspection demand. (See CCP § 2031.310 subd. (b)(1); Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 234-35.) To establish good cause, a discovery proponent must identify a disputed fact that is of consequence in the action and explain how the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact. (Digital Music News LLC v. Superior Court (2014) 226 Cal.App.4th 216, 224.)

If the moving party has shown good cause for the requests for production, the burden is on the objecting party to justify the objections. (Kirkland v. Superior Court (2002) 95 Cal. App.4th 92, 98.) The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. (CCP § 2017.020, subd. (a).) To support an objection to a request for production of documents, the objecting party must establish the validity of its objections with supporting facts in order to meet its burden. (Southern Pac. Co. v. Superior Court (1969) 3 Cal.App.3d 195, 198.)

Where there has been no timely response to a demand for inspection, copying, testing or sampling, the demanding party may seek an order compelling a response. (CCP § 2031.300, subd. (b).) Failure to timely respond waives all objections, including privilege and work product. (CCP § 2031.300, subd. (a).)

As a preliminary matter, with respect to the MTC, it is undisputed that Defendants have not provided responses to RFP, Set 5. Because Defendants have not set forth good cause for issuing a protective order and the MTC is unopposed, the Court GRANTS the MTC. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) Defendants are ordered to provide responses to RFP, Set 5 within 20 days of this order.

With respect to the MTCF, on November 23, 2022, following an Informal Discovery Conference, the Court issued an order requiring Defendants to provide further responses to RFP, Set 4. Defendants argue that the MTCF is moot because they produced further responses on January 6, 2023. (MTCF Friedman Decl. ¶ 7.) Defendants’ MTCF Opposition does not respond to Plaintiff’s arguments about the sufficiency of earlier responses. Plaintiff provides evidence that Defendants’ supplemental responses were initially served by mail and were not received until after the MTCF was filed. (See MTCF Declaration of Lyle R. Mink (“Mink Decl.”) ¶ 2.)

Defendants submitted only six further responses. (See id.) Defendants’ responses are not code-compliant and do not include Bates stamped numbers identifying the documents. The Court therefore GRANTS the MTCF. Defendants are ordered to submit further, code-compliant responses to RFP, Set 4 within 20 days of this order.

Plaintiff seeks sanctions in the amount of $4,061.65 in connection to the MTCF. This amount represents: (1) three hours preparing the moving papers at a rate of $500 per hour; (2) an anticipated two hours preparing reply papers; (3) an anticipated three hours attending the hearing; and (4) a $61.65 filing fee. (MTCF Mink Decl. ¶ 17.)

In connection to the MTCF, Plaintiff seeks $1,061.65. This amount represents: (1) one hour preparing the moving papers at a rate of $500 per hour; (2) an anticipated one hour attending the hearing; and (3) a $61.65 filing fee. (MTC Mink Decl. ¶ 4.)

The Court exercises its discretion and awards Plaintiff monetary sanctions in the reasonable amount of $1,623.30, which represents three hours spent on the Motions to Compel collectively and $123.30 in filing fees, which is to be paid within 20 days of this order. (Moran v. Oso Valley Greenbelt Assn. (2004) 117 Cal.App.4th 1029, 1034.)

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative. If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org stating your intention to appear in person. The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date. This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court