Judge Holly J. Fujie, Case Number: 24STCV00684, Date: 2024-08-20 Tentative Ruling

This action arises from an alleged landlord-tenant relationship concerning approximately 40 residential apartment homes located in Westchester, California. The operative First Amended Complaint asserts the following causes of action: 1) breach of contract; 2) wrongful eviction; 3) forcible entry (violation of CCP § 1159); 4) forcible detainer (violation of CCP § 1160); 5) trespass to land; 6) tenant harassment; 7) breach of the implied covenant of quiet enjoyment; 8) intentional interference with contractual relations; 9) intentional interference with prospective economic relations; 10) negligent interference with prospective economic relations; 11) conversion; 12) trespass to chattels; and 13) declaratory relief.

On May 22, 2024, Defendant filed the instant Motion to Compel Production of Documents and Further Responses (the “Motion”), seeking an order compelling Plaintiff to (i) produce all responsive documents; (ii) provide further, verified responses to its Request for Production (“RFPs”); and (iii) provide a privilege log. Additionally, Defendant requests monetary sanctions.

Plaintiff filed an opposition to the Motion on August 5, 2024, and Defendant filed a reply on August 13, 2024.

Defendant’s objections to the Declaration of Michelangelo Tatone are ruled upon as follows:

SUSTAINED as to Objection Nos. 1-2, with respect to the characterization of the case; Objection Nos. 3-4, and 6-8 with respect to the characterization of the documents.

Defendant’s objection to the Declaration of Ray Hernandez is SUSTAINED only as to Objection No.1 with respect to the characterization of the documents. The remaining objections are OVERRULED.

California law requires a responding party to respond to each request for production of documents with either a statement of compliance, a representation that the party lacks the ability to comply, or an objection to the demand. (Code of Civil Procedure (“CCP”) § 2031.210, subd. (a).)

CCP section 2031.310(a) provides that on receipt of a response to a request for production of documents, the demanding party may move for an order compelling further responses if: (1) A statement of compliance with the demand is incomplete; (2) A representation of inability to comply is inadequate, incomplete, or evasive; (3) An objection in the response is without merit or too general.

“If a party filing a response to a demand for inspection, copying, testing, or sampling … 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.” (CCP § 2031.320, subd. (a).)

Here, Defendant served RFPs upon Plaintiff on February 9, 2024. (Declaration of Daniel E. French in Support of Motion (“French Decl.”), ¶ 2; Exh. 1.) On March 22, 2024, Plaintiff served its written responses to the RFPs, along with its first and only production of documents. (French Decl., ¶ 3; Exh. 2.) The production of documents consisted of 493 pages of documents, four (4) Excel spreadsheets with embedded text messages and email communications, invoices and payments among Plaintiff’s contractors, tenants, and staff. (Declaration of Michelangelo Tatone (“Tatone Decl.”), ¶ 6; Exh. 2.)

Plaintiff responded to 24 out of 27 RFPs (RFP Nos. 1-12, 15-22, 24-27) with a statement of compliance, along with objections, that reads: “Plaintiff will comply with this request and produce responsive documents in Plaintiff’s possession, custody, and/or control.” (French Decl.; Exh. 2.) It then indicated the Bates numbers of the documents it has produced in response to those requests. Plaintiff responded that it is unable to produce as to two requests (RFP Nos. 13 and 14) for the reason that those documents are not in its possession, custody and control, and provided straight objections to one request (RFP No. 23). (Id.)

Defendant brings the Motion pursuant to (i) CCP section 2031.320(a), on the grounds that Plaintiff has not produced all responsive documents in accordance with its statement of compliance; (ii) section 2031.310(a), on the grounds that Plaintiff’s responses to the RFPs (a) include statements of compliance that are incomplete, (b) include representations of inability to comply that are inadequate, incomplete, or evasive, and (c) assert objections that are without merit or are too general; (iii) section 2031.240(c), on the grounds that Plaintiff has not produced a privilege log; and (iv) sections 2031.310(h) and 2031.320(b), on the grounds that Plaintiff and its counsel withheld responsive documents without substantial justification for doing so and failed to meet and confer in good faith.

In opposition, Plaintiff contends, among others, that the Motion is time-barred since it was filed beyond the 45-day deadline for Defendant to file a motion to compel further responses. Defendant did not request an extension to file its motion to compel, and there was no agreement between Plaintiff and Defendant to extend the deadline for Defendant to file its motion. (Tatone Decl., ¶ 15.)

Plaintiff further contends that it has provided code-compliant responses, asserted valid objections and produced all the documents in its possession, custody and control. Plaintiff asserts that it served 493 pages of responsive documents, four (4) Excel spreadsheets with numerous embedded text messages and email communications, invoices and payments among Plaintiff’s contractors, tenants and staff. Plaintiff also produced twenty (20) videos. (Id., ¶¶ 6-7; Exh. 2.) Plaintiff pointed out that as it has stated in its responses to RFPs, its meet and confer letter dated April 16, 2024, and during Plaintiff’s counsel’s telephone call with Defendant’s counsel, that Plaintiff is diligently seeking documents from third parties, such as Airbnb and Booking, and that Plaintiff would produce those responsive documents upon receipt from the third parties. (Id., ¶ 7.)

In reply, Defendant argues that the Motion is brought primarily under CCP section 2031.320, on the ground that Meticulous has not produced all responsive documents in accordance with its statements of compliance. Defendant asserts that unlike in a motion seeking further responses (CCP section 2031.310), there is no time limit on a motion brought pursuant to section 2031.320. Defendant points out that regarding 24 of 27 RFPs, Plaintiff has responded that it “will comply with this request and produce responsive documents in Plaintiff’s possession, custody, and/or control.” Defendant also points out that Plaintiff confirmed in its Opposition that it has indeed agreed to provide documents in response to these RFPs. Defendant contends that Plaintiff has not, however, produced a single document since March 2024 when it made its first incomplete and inadequate production.

The Court notes that Defendant’s Motion mainly seeks two separate types of relief: (1) an order compelling further responses brought under CCP section 2031.310(a), on the grounds that Plaintiff’s responses to the RFPs (a) include statements of compliance that are incomplete, (b) include representations of inability to comply that are inadequate, incomplete, or evasive, and (c) assert objections that are without merit or are too general; and (2) an order compelling compliance with Plaintiff’s statements of compliance pursuant to CCP section 2031.320(a), on the ground that Plaintiff has not produced all responsive documents in accordance with its statement of compliance.

Motions to compel further responses to demands for production of documents must be brought within 45 days of service of the verified response, supplemental verified response, or on a date to which the propounding and responding parties have agreed to in writing; otherwise, the propounding party waives the right to compel further responses. (CCP § 2031.310, subd. (c).) If service of the responses is made electronically, section 1010.6 of the CCP extends the 45-day deadline by two court days. (CCP § 1010.6, subd. (a)(3)(B) [extending by two court days “any right or duty to do any act or make any response within any period or on a date certain after the service of the document … by electronic means …”]; Kahn v. The Dewey Group (2015) 240 Cal.App.4th 227, 235-236 [stating the same].)

Thus, in the absence of a written agreement between the parties, a motion to compel further responses to RFPs must be filed within 45 days after the insufficient response, otherwise it is waived. (CCP § 2031.310, subd. (c).) This deadline is jurisdictional and “renders the court without authority to rule on motions to compel other than to deny them.” (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1409-1410.)

Here, Plaintiff served its responses upon Defendant on March 22, 2024, by email. (Tatone Decl., ¶ 6.) Forty-five (45) days from that date was May 6, 2024. Since Plaintiff served the responses electronically, the deadline for Defendant to file motions to compel further responses to the demand for production was increased by two (2) days to May 8, 2024. Defendant filed the instant Motion on May 22, 2024. Therefore, the Motion is untimely to the extent it seeks an order compelling further responses to the RFPs.

Accordingly, the Court DENIES the Motion to the extent it seeks to compel further responses. The 45-day deadline “is ‘jurisdictional’ in the sense that “it renders the court without authority to rule on motions to compel other than to deny them.” (Sexton, supra.)

If a party filing a response to a demand for inspection, copying, testing or sampling 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. (CCP § 2031.320(a); Board of Registered Nursing v Superior Court (2021) 59 Cal.App.5th 1011, 1033.) Because CCP § 2031.320 sets no time limit on the making of the motion, the general time limitations on discovery apply. All motions are required to be heard at least 15 days before the date initially set for trial (CCP § 2024.020(a)), unless the judge, on motion, approves a later date (CCP § 2024.050).) (Board of Registered Nursing v Superior Court, supra, 59 Cal.App.5th at 1033.)

Thus, the Motion is not time-barred to the extent Defendant requests an order compelling compliance with Plaintiff’s statements of compliance in its responses.

Here, Plaintiff’s responses to RFP Nos. 1-12, 15-22, 24-27 states that: “Plaintiff will comply with this request and produce responsive documents in Plaintiff’s possession, custody, and/or control.” (French Decl.; Exh. 2.) Plaintiff also represented on multiple occasions that it is diligently seeking additional documents from third parties, such as Airbnb and Booking, and that Plaintiff would produce those responsive documents upon receipt. (Tatone Decl., ¶ 7.)

Now, Defendant seeks an order that would compel Plaintiff to comply with its statements of compliance. Thus, the fundamental issue before the Court is determining whether Plaintiff has complied with its statements of compliance. (Code Civ. Proc., § 2031.320, subd. (a).)

Plaintiff points to multiple documents it has produced, including 493 pages of responsive documents, four (4) Excel spreadsheets with numerous embedded text messages and email communications, invoices and payments among Plaintiff’s contractors, tenants and staff. Plaintiff also produced twenty (20) videos. (Id., ¶¶ 6-7; Exh. 2.)

The Court has been presented with some evidence of compliance as to those documents in its possession, custody or control at this time and thus finds that Plaintiff has complied with its statement of compliance. Although Plaintiff has represented that it is actively seeking additional documents for production, absent evidence that it has obtained such documents to date, the Court DENIES the Motion, as it has not been established that Plaintiff currently has in its possession, custody or control any additional responsive documents at this time. To the extent that any documents have been withheld on the ground of privilege as of this date, however, the Court orders that Plaintiff serve a privilege log on Defendant within twenty days of the date of this order.

The parties’ respective requests for monetary sanctions are DENIED as the imposition of sanctions would be unjust under the circumstances.

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