Judge: Katherine Chilton, Case: 21STLC05003, Date: 2022-08-16 Tentative Ruling

Case Number: 21STLC05003    Hearing Date: August 16, 2022    Dept: 25

PROCEEDINGS:      MOTION TO COMPEL RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE

MOVING PARTY:   Defendant Pagiel Shechter, in pro per

RESP. PARTY:         Plaintiff Laboratory Corporation of America

MOTION TO COMPEL

RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS

(CCP §§ 2031.300)

TENTATIVE RULING:

Defendant Pagiel Shechter’s Motion to Compel Responses (Not Further) to Request for Production of Documents is DENIED.

SERVICE: 

[X] Proof of Service Timely Filed (CRC, rule 3.1300)                 NONE

[X] Correct Address (CCP §§ 1013, 1013a)                                                 NO

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     NO

OPPOSITION:          Filed on July 19, 2022.                                    [   ] Late                      [   ] None

REPLY:                     None filed as of August 12, 2022.               [   ] Late                      [X] None

ANALYSIS:

I.                Background

On July 8, 2021, Plaintiff Laboratory Corporation of America (“Plaintiff”) filed an action against Defendant Pagiel Schecter (“Defendant”) for 1) breach of contract, 2) open book account, and 3) account stated.  On September 20, 2021, Defendant filed a General Denial, but no Proof of Service as to the General Denial.

On March 25, 2022, Plaintiff filed an Amendment to the Complaint, correcting Defendant’s name to “Pagiel Shechter, M.D..”

On July 6, 2022, Defendant, in pro per, filed the instant initial Motion to Compel Responses to Requests for Production of Documents, Set One, and Request for Monetary Sanctions in the amount of $2,000.  On July 19, 2022, Plaintiff filed an Opposition to Defendant’s Motion.  On July 27, 2022, parties stipulated to continue the hearing on the Motion from August 2 to August 16, 2022.

II.              Legal Standard

A party must respond to requests for production of documents within 30 days after service. (Code Civ. Proc. § 2031.260(a).)  If a party to whom requests for production of documents is directed does not provide timely responses, the requesting party may move for an order compelling response to the discovery.  (Code Civ. Proc. § 2031.300(c).)  The party also waives the right to make any objections, including ones based on privilege or work-product protection.  (Code Civ. Proc. § 2031.300(a).)  There is no time limit for a motion to compel responses to production of documents other than the cut-off on hearing discovery motions 15 days before trial.  (Code Civ. Proc. §§ 2024.020(a), 2031.300.)  No meet and confer efforts are required before filing a motion to compel responses to the discovery.  (Code Civ. Proc., § 2031.300; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 411.)

Code of Civil Procedure § 2023.030(a) provides, in pertinent part, that the court may impose a monetary sanction on a party engaging in the misuse of the discovery process to pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.  A misuse of the discovery process includes failing to respond or submit to an authorized method of discovery.  (Code Civ. Proc. § 2023.010(d).)

III.            Discussion

Defendant contends that he served his Requests for Production, Set 1, on Plaintiff on April 7, 2022.  (Shechter Decl. ¶ 2; Ex. A.)  Defendant’s Exhibit A, however, is a Deposition Subpoena for Production of Business Records, a form that is used for third parties.  Defendant did not state to whom the Deposition Subpoena was directed – that line of the Deposition Subpoena is blank. Defendant also has attached a set of Form Interrogatories as an exhibit, but he listed Plaintiff’s lawyer at the top of the form rather than his own name and address. He also failed to provide a proof of service for the Form Interrogatories. However, since this Motion does not relate to  the form interrogatories, the Court will not address that discovery request.

 Defendant states that he did not receive any response to his Deposition Subpoena.  (Shecter Decl.. at ¶ 3.)  Accordingly, on May 31, 2022, Defendant served a meet and confer letter on Plaintiff and asked that Plaintiff respond by July 1, 2022.  Defendant admits that he received responses on June 1 and again on June 13, 2022 but states that he “received irrelevant material that does not address any of my questions directed to the Plaintiff” which had been provided to Defendant previously.  (Ibid. ¶ 4.) 

Accordingly, Defendant filed his Motion to Compel on July 6, 2022.  The Court notes that Defendant has failed to file Proof of Service of the Notice of the Motion and Motion with the Court.

            In Opposition, Plaintiff states that it provided responses to Defendant’s Requests via mail to Defendant’s home address on June 1, 2022, and via email on June 13, 2022.  (Mot. p. 2; Dye Decl. ¶ 3; Exs. A-B.)  Plaintiff admits that the responses provided were not timely, but states that its “responses are complete, self-explanatory and entirely proper.”  (Dye Decl. ¶ 7.)  Plaintiff states it “cannot produce documents that do not exist,” such as documents from an insurance company when no insurance company was billed.  (Dye Decl. ¶ 4.)  Moreover, Plaintiff has objected to requests it cannot answer.  (Ibid. at ¶¶ 5-6.)

            Once a party has failed to provide a timely response to a request for production, the party “waives any objection to the demand.”  (Code of Civ. Proc. § 2031.300(a).)  Here, Plaintiff’s response was served on June 1 and again on June 13, beyond the 30-day deadline; thus Plaintiff had waived its right to object to any of the requests.  However, “[t]he court, on motion, may relieve that party from this waiver” if the responding party has “subsequently served a response that is in substantial compliance with [Code of Civil Procedure] Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280.”  (Code of Civ. Proc. § 2031.300(a).)  The party must also show that its failure to respond on time “was the result of mistake, inadvertence, or excusable neglect.”  (Ibid.)  The Court finds that Plaintiff’s responses are in substantial compliance with statutory requirements, as Plaintiff has either produced documents or objected to requests based on lack of relevance or inability to produce certain documents.  Defendant also admitted he already had been given these documents (but apparently was not satisfied with them).  In addition, given that Defendant used an incorrect form for a request for production of documents and did not state that the Deposition Subpoena was directed to Plaintiff, as well as the fact that Plaintiff responded and produced documents the day after the meet and confer letter was sent, the Court hereby excuses Plaintiff’s failure to respond to the requests on time. 

            Defendant is reminded to file proofs of service for all pleadings in this case. 

IV.           Conclusion & Order

For the foregoing reasons, Defendant Pagiel Shechter’s Motion to Compel Responses (Not Further) to Request for Production of Documents is DENIED. 

Moving party to give notice.