Judge: Israel Claustro, Case: 22D008777, Date: 2023-08-11 Tentative Ruling
Motion: Further Request for Production of Documents
Moving Party: Respondent, Tania Rubio (“W/MP”)
Responding Party: Petitioner Robert Rubio (“H/RP”)
PROCEDURAL ANALYSIS:
Timeliness:
Per § 2031.310(c) Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand.
The time to give notice is extended by the manner of service. [5 days for mail; 2 court days for electronic]. The deadline to bring a motion for furthers is jurisdictional as to the right to compel further responses and applies, even if not raised in the written opposition. Sexton v. Super Ct (1997) 58 Cal.App4th 1403.
Here there was a written agreement extending the time for W to bring the motion to 04/25/23. The motion was timely filed.
Declaration Re Good Cause, Meet and Confer, and Separate Statement:
Per subsection 2031.310(b) there shall be 1) a declaration re good cause justifying the discovery sought in the demand; 2) a meet and confer declaration and 3) outline of the discovery response and each response in dispute, in lieu of a separate statement under the CRC. CRC Rule 3.1345 requires moving party to provide a separate statement of discovery items in dispute for each item of discovery at issue when the text of the demand or response is at issue. A separate statement is not required under (b)(2) When a court has allowed the moving party to submit--in place of a separate statement--a concise outline of the discovery request and each response in dispute.
Here there was meet and confer and H counsel even agreed to serve supplemental responses, so there was meet and confer.
The motion was accompanied by a separate statement attached to the FL 300 filed on 04/26/23.
SUBSTANTIVE ANALYSIS
H argues that the motion is moot as supplemental responses were served. The motion sought furthers as to the following demands of Set One: 1, 2, 3, 4, 6, 7, 8, 10, 11, 14, 26 and 36. Generally the service of supplemental responses would moot the motion and there should be a new round of meet and confer as to what remains to be resolved, updated separate statements and authorities. However, that does not appear to be a hard and fast rule if, as here, the supplemental responses did not address all the RPDs at issue and also the supplemental responses were not substantively different that the original responses at issue here.
The response to an RPD must comply with the rules for a response found at CCP § 2031.210 through § 2031.240 as follows:
§ 2031.210-the response must state an agreement to comply, an inability to comply or an objection.
§ 2031.220-the response must state whether the compliance will be in whole or in part and that the documents in the control, custody or possession will be produced.
§ 2031.230-if there is an inability to comply, the statement must state that a reasonable inquiry was made and the inability to comply was because the documents never existed, has been destroyed, has been lost, misplaced or stolen or has never been, or is no longer, in the possession, custody or control of the responding party. It shall also state the identity and contact information of anyone who know by the party to have possession, custody or control.
§ 2031.240, if only a portion of the demand is objectionable, the response shall contain a statement of ability or inability to comply with respect to the remainder of the demand.
Bottom line, the response must state clearly that the production is in whole or in part and if partial why and to the extent they exist but not produced the identify of who may have responsive documents must be stated. A response that simply states that all non-objectionable documents will be produced is not sufficient. A response that simply states all documents in the responding party’s possession, custody and control is not a full response. A mix of the two is not a proper response. Such responses make it impossible to know if the responsive documents actually produced amount to a full production.
Many of the initial responses do not amount to a proper statement of compliance. Despite alleging full compliance, that full compliance is tempered by the objections and to the extent H has possession. H’s opposition does not appear to establish a diligent search for documents such as Wells Fargo documents only going back to 02/2019 to the present or asking from what appears to be his own accountant for responsive documents. H’s claim that Wells Fargo required him to submit a subpoena for his own documents going back beyond two years does not appear likely and H should have requested a Wells Fargo letter to that effect.
H claims the two sets of supplemental responses mooted the motion but they did not address all demands. The supplemental responses ignored 1-4, 11 and 26. Many of the initial and second supplemental responses basically restated the initial inadequate response [#s 7, 8, 14 and 36]. As to #6 the supplemental responses allege no such docs exist, despite the initial response identifying Arribarr Income Tax Services as potentially having responsive docs.
As to the Specific Demands At Issue:
Demands #1- #4
#1-4 asked for specified types of documents related to H’s finances, tax returns, W-2 statements, schedule K’s. H objected to the demands as overly broad. Per CCP § 2031.030(c)(1), demands must state the specific identify of a document or identify a reasonably particularized category of documents. Whenever a demand ask for any and all documents related to a subject like finances, it will draw an objection as overly broad. However, if within the demand the categories were particularized by including a specified list of categories of documents such as specified types of documents the demand can be enforced as to those specified types of documents. Also Per CCP § 2031.240(a), if only part of the demand is objectionable, H has a duty to respond to the part of the demand that is not objectionable. Here the demands sufficiently identified categories of documents related to particular subjects and were not overly broad.
The Court overrules objections raised by H/RP.
In addition, the response purported to promise to fully comply and produce all documents in H’s possession custody and control. That is not a clear statement of full compliance. There may be other documents that exist that were not produced because they are not currently in H’s possession custody or control. To the extent it is not a full production of all responsive documents, the Court requires H/RP to conduct a reasonably diligent search for these documents. The supplemental responses did not address the first four demands.
The Court orders H/RP to provide a further response that are code compliant responses that clearly state whether the production was in full and if not why and who may have the documents.
Demand #6
#6 H’s response stated that no such documents existed, but if they did, Arribar Income Tax would have them. H’s 1st Supp response stated after a reasonable diligent search no such documents are known to exist. H’s 2nd amended response alleges after a reasonable diligent search no such documents exist and/or are not in his possession and or not in his possession, custody or control. Given the progression of the response, it is not clear if they exist but not in his custody possession or control. If they may exist and are held by his tax preparer/CPA then he has control of the documents and can get them.
H objected to the demand as overly broad. H has the burden to establish the validity of the objection. H failed to do so here. The demand asked for any financial statements or loan applications from 01/01/19 to the present. No other objection appears to apply.
The Court overrules H/RP’s objection and orders H/RP to provide a further response to this request.
Demand #7
#7 sought financial documents such as cancelled checks and deposit slips for all checking and savings accounts held by H. The response over the three iterations is that H will fully produce all documents in his possession custody and control and subject to his objections. That is not a clear statement of full compliance. In addition, in the first supplemental response, H identifies Wells Fargo as potentially having additional documents that may not have been produced, which again appears to be an admission that he has control over documents at his bank, so there should be no equivocation on whether the production was in fact a full production.
Again, H raised the same objections as in #6. Per CCP § 2031.030(c)(1), demands must state the specific identify of a document or identify a reasonably particularized category of documents. Whenever a demand ask for any and all documents related to a subject like finances, it will draw an objection as overly broad. However, within the demand here, the categories were particularized by including a specified list of categories of documents such as account statements, cancelled checks. H has a duty to provide responses to that part of the demand that was properly stated.
Lastly, H apparently only produced the last three months of bank statements going back to 2019. No good cause for failing to produce the entire years was provided.
The Court overrules H/RP’s objections as to the categories of documents identified in the demand, such as accounts statements and orders H/RP to provide a further response to this request.
Demand #8
#8 Asked for any and all documents, including but not limited to monthly statements and account applications for all credit cards and line of credit accounts held by H. The responses were basically the same as for #7, except the 2nd response alleged Wells Fargo wouldn’t give H records going back more than two years without a subpoena and some accounts don’t produce statements for months where there is inactivity. This response does not make logical sense.
As to the objections the same analysis for #6 applies here.
The Court orders a further response that clearly states the production to be made and overrules the objections as to identified categories of documents sought.
Demand #10
#10 sought similar documents as to pay services like Zelle, Apple Pay etc. The same analysis applies as to #6 and #7. In the second supplemental response, H identifies Zelle as the only service that may have docs and claims he produced all docs in his custody and control which is not a sufficient response, as leaves questions to whether additional documents exist. In fact, H alleges Wells Fargo statements may have responsive information. The same analysis as to objections as above.
The Court orders H/RP to provide a further written response that strictly complies with the requirements for a response.
Demand #11
#11 asked for documents related to crypto currencies H may have. H alleged no documents exist without the qualifiers addressed above.
The Court orders H/RP to provide a further response.
Demand #14
#14 asked for all writings related to insurance policies relating to insurable interests in various forms of property. This demand is overly broad as not limited to specified categories of documents like, policies, statements, etc. H objected and produced documents in his custody and control and referred W to his insurance agent, Farmer’s Insurance.
The Court denies the motion for a further response.
Demand #26
#26 sought specified types of documents related to extracurricular activities for the minor children. the response basically states H will produce what he has in his possession and W can go ask the Carlos Gracie for additional documents. Technically H appears to have control of those documents held by Gracie and could produce them himself. Therefore, the response is not an adequate written response.
The Court orders H/RP to provide a further response.
Demand #36
#36 asked for documents related to H’s responses to W’s Form Rog, Set One, Rog #16. H basically refers to his responses to demands 7&8 as his response to this demand. The Court required further written responses to those demands.
The Court orders H/RP to provide a further response.
Further Responses to Form Interrogatories
The notice of motion as stated in the FL 300 and the proposed order asked for a further response to the subject RPDs, Set One and to H’s response to Form Interrogatories Set One. The declaration and memorandum only addressed the RPDs. W’s separate statement also did not address the alleged subject Interrogatories and/or make a showing that a further response to that Interrogatories or other Interrogatories should be ordered.
The Court limits the relief here to the RPDs at issue.
Sanctions:
Per CCP § 2031.310(h) the court shall issue a monetary sanctions against the party who unsuccessfully makes or opposes the motion unless the court finds that the party subject to sanctions acted with substantial justification or other circumstances makes the imposition of a sanctions unjust.
H cites to Fam C § 2107(b) and (c) to be considered on the sanctions issue, but that code section does not apply to CCP discovery disputes. CCP § 2031.310 controls here on the merits and as to sanctions.
Here the Court granted the motion to compel furthers as to most of the demands. While H claims his supplemental responses should have mooted the motion and it should have been withdrawn, a review of the responses shows that the supplemental responses for the most part did not add anything materially new to the initial responses.
The Court finds that the supplemental responses were intended to cause further delay by requiring W to refile a motion, which by now may be untimely as to the last supplemental response. Under the circumstances here, the Court proceeds on the merits and grants relief sought by W/MP. While H has provided some documents, as analyzed above, it appears H sought to provide what he had in his possession and force W to get the remainder from third parties identified by H, which does not satisfy H’s duty to reasonably diligently search for documents that while not in his custody were within his control and obtainable by him for production.
As to the amount of sanctions, the $7,666 sought by MP is excessive on its face. W/MP requested the cost of considering and collating supplemental responses which was not done. MP counsel’s declaration sets forth that attorney time and cost to bring the motion to compel are $3,860, which is reasonable. MP counsel estimated preparation for and appearing at the at the hearing will be 3.5 hours ($1,137.50).
The Court, therefore orders H/RP to pay sanctions of $5,000.00 to MP’s counsel within 30 days.
TENTATIVE RULING:
In Summary, the Court GRANTS W/MP’s motion to compel H/RP to serve further written responses to RPDs, Set One, Demands 1, 2, 3, 4, 6, 7, 8, 10, 14, 26 and 36. Denied as to RPD Demand #11. The Court orders RP/H to serve strictly code compliant responses as to specified types of documents identified in each demand on or before close of business September 11, 2023. [CCP § 2031.210 through § 2031.240]
The Court DENIES the request as to Form Interrogatories.
The Court ORDERS H/RP to pay W/MP a monetary sanction of $5,000.00.
Court orders Moving Party to give notice.