Judge Holly J. Fujie, Case Number: 23STCV25701, Date: 2024-12-23 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 is a breach of contract action. On October 20, 2023, Plaintiff filed a complaint against Defendant and Does 1 through 50. Plaintiff filed the operative first amended complaint (the “FAC”) on February 20, 2024 alleging causes of action for: (1) breach of contract; and (2) promissory estoppel.

On November 4, 2024, Defendant filed the instant motion to compel further responses to requests for production of documents (“RFPs”) and request for monetary sanctions (the “Motion”). On December 10, 2024, Plaintiff filed an opposition to the Motion (the “Opposition”) and on December 16, 2024, Defendant replied (the “Reply”).

Defendant also filed a Supplemental Declaration on December 16. The Court declines to consider it, as it constitutes improperly submitted new arguments on reply, thereby violating the Plaintiff’s due process right to respond.

A motion to compel a further response is used when a party gives unsatisfactory answers or makes untenable objections to interrogatories, demands to produce, or requests for admission. (Code of Civil Procedure (“CCP”), § 2031.310, subd. (a); Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403.)

To request further production, a movant must establish: (1) good cause for the production (CCP, § 2031.310, subd. (b)(1); Sinaiko, supra, at p. 403); and (2) that a further response is needed because (a) the responding party’s statement of compliance with the demand to produce is incomplete CCP, § 2031.310, subd. (a)(1)), (b) the responding party’s representation that it is unable to comply is inadequate, incomplete, or evasive (CCP, § 2031.310, subd. (a)(2)), (c) the responding party’s objection in the response is without merit or is too general (CCP, § 2031.310, subd. (a)(3); Catalina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, 1127), or (d) if the responding party objected to the production of ESI on the ground that it is not reasonably accessible the movant can show that the (i) ESI is reasonably accessible or (ii) there is good cause for production of the ESI regardless of its accessibility (CCP, § 2031.310, subd. (e)).

Defendant seeks to compel further response to RFPs, set one, Nos. 4, 5, 8, 10, 11 and 12. Specifically, Defendant seeks to compel Plaintiff to provide a settlement agreement between Plaintiff and third-party Abraham Assil (the “Settlement Agreement”). Plaintiff and Defendant entered into an agreement to settle litigation which included a provision in which Defendant agreed to deposit certain funds with a mutual friend. (FAC ¶ 7) Plaintiff alleges that in reliance on that promise, he entered into the Settlement Agreement with Assil. (FAC ¶ 8) Defendant argues that the Settlement Agreement and related communications pertaining to it, are therefore relevant discovery to which they are entitled. (Mot. p. 4:17-28)

In opposition, Plaintiff argues that the Settlement Agreement was made pursuant to a confidential mediation and contains a confidentiality clause. (Opp. p. 1:6-8.) Plaintiff asserts that he cannot disclose the Settlement Agreement or any related communications without the consent of the third-party signatories, who have not consented to the disclosure. (Opp. p. 1:8-13.)

In this case, the Court agrees that the Settlement Agreement is relevant because the Plaintiff alleges in the FAC that he only entered into the Settlement Agreement based upon Defendant's promise to deposit potential settlement funds with a mutual friend. Thus, the amount, terms and conditions of the Settlement Agreement are relevant to Plaintiff’s contention. Considering the compelling privacy rights of the other parties to the Settlement Agreement, who are not parties to this litigation, the Court will grant Defendant’s motion to produce the Settlement Agreement with the condition that the parties submit a confidentiality stipulation that the Settlement Agreement shall only be used in this action.

Thus, Defendant’s Motion to compel further responses is GRANTED as to RFP Nos. 8, 10, 11, and 12. The Motion is DENIED, as moot, as to RFP Nos. 4 and 5.

Except in certain circumstances involving electronic stored information, the court must 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 further response to 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. (CCP, § 2031.310, subd. (h).)

The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed. (Rules of Court, rule 3.1348, subd. (a).)

Defendant requests sanctions for the motion to compel further responses to RFPs against Plaintiff in the total amount of $11,425.76 based upon counsel’s rate of $550/hour for: (1) 2.9 hours meeting and conferring with opposing counsel; (2) 1.4 hours for the Informal Discovery Conference (“IDC”); (3) 14.8 hours drafting the instant Motion and accompanying documents; (4) 1.5 hours preparing for and attending the hearing on this matter; and (5) $95.76 in filing fees for the IDC and Motion. (Mot., Lebedev Decl. ¶ 27.) The Court does not award sanctions based upon either meet and confer efforts or participation in an IDC and finds the amount of time claimed to have been consumer in preparing this Motion is excessive, and that the time to attend the hearing is also excessive. The Court also only awards the actual Court filing fee of $60 for the Motion. The Court therefore finds reasonable sanctions to be in the amount of four hours at $550 per hour, plus the $60 filing fee, for a total of $2,260 and the request for sanctions is GRANTED in the reduced amount of $2,260.00.

Thus, Defendant’s Motion to compel further responses is GRANTED as to RFP Nos. 8, 10, 11, and 12. The Motion is DENIED, as moot, as to RFP Nos. 4 and 5. The parties shall submit a stipulated Protective Order in the form for Confidential Documents on the Court’s website within twenty days of the date of this order. Once the stipulated Protective Order is submitted to the Court, the parties are to so inform the Court of its submission so that the Court can sign it as soon as possible after submission. The documents ordered to be served as set forth above shall be produced within ten days of the date of the signing of the Protective Order.

Defendant is ordered to pay sanctions in the total amount of $2,260.00 to Plaintiff within 20 days of this order.

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