Judge Katherine Chilton, Case 22STLC01369 2023-04-03 Tentative Ruling

Judge: Katherine Chilton, Case: 22STLC01369, Date: 2023-04-03 Tentative Ruling

Case Number: 22STLC01369 Hearing Date: April 3, 2023 Dept: 25

PROCEEDINGS: MOTIONS TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION; REQUEST FOR SANCTIONS

MOVING PARTY: Defendant David W. Gordon

RESP. PARTY: Plaintiff Howard Mochayoff

MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION;

REQUEST FOR SANCTIONS

(CCP § 2031.310)

TENTATIVE RULING:

The Motion to Compel Plaintiff Howard Mochayoff’s Further Responses to Defendant’s Request for Production is GRANTED in part and DENIED in part.

Plaintiff Mochayoff is ordered to provide further responses to Requests Nos. 1, 2, 5, 6, 9, within fifteen (15) days of notice of the Court Order. Plaintiff is NOT required to provide further responses to Requests Nos. 7, 8, 10, 12.

The Court also DENIES Defendant’s request for sanctions and Plaintiff’s request for sanctions.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on March 14, 2023. [ ] Late [ ] None

REPLY: Filed on March 17, 2023. [ ] Late [ ] None

ANALYSIS:

I. Background

On March 1, 2022, Plaintiff Howard Mochayoff dba Opti-Lite Optical (“Mochayoff” or “Plaintiff”) filed an action against Defendant Howard W. Gordan (“Defendant”) for (1) breach of written contract, (2) fraud and deceit based upon on intentional misrepresentation, (3) breach of the implied covenant of good faith and fair dealing, and (4) unjust enrichment.

On April 7, 2022, Plaintiff filed an Amendment to the Complaint correcting Defendant’s name to David W. Gordon aka Dr. David William Gordon, OD (“Gordon” or “Defendant”). (4-7-22 Amendment.)

On June 20, 2022, Defendant filed an Answer to the Complaint.

On March 1, 2023, Defendant filed the instant Motion Compelling Plaintiff to Provide Further Responses to Requests for Production (Set One) and Request for Monetary Sanctions (“Motion”). Plaintiff filed an Opposition to the Motion (“Opposition”) on March 14, 2023. On March 17, 2023, Defendant filed a Reply to the Opposition (“Reply”).

On March 21, 2023, Defendant filed an Ex Parte Application to Specially Set Plaintiff’s Deposition. The Court denied the Ex Parte Application on March 27, 2023. (3-27-23 Minute Order.) The Court also continued the hearing on the Motion Compelling Further Responses to April 3, 2023. (3-27-23 Minute Order.)

II. Legal Standard

“Any party may obtain discovery . . . by inspecting, copying, testing, or sampling documents, tangible things, land or other property, and electronically stored information in the possession, custody, or control of any other party to the action.”¿ (Code Civ. Proc., § 2031.010(a).)

“The party to whom a demand for inspection, copying, testing, or sampling has been directed shall respond separately to each item or category of item by any of the following:

(1) A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling pursuant to paragraph (2) of subdivision (c) of Section 2031.030 and any related activities.

(2) A representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item.

(3) An objection to the particular demand for inspection, copying, testing, or sampling.”

(Code Civ. Proc., § 2031.210(a).)

“On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply:

(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.”

(Code Civ. Proc., § 2031.310(a).)¿

A demanding party’s motion for an order compelling a further response must “set forth the facts showing good cause justifying the discovery sought by the demand.”¿ (Code Civ. Proc., § 2031.310(b)(1).)¿ Further, a demanding party’s motion for an order compelling a further response must “be accompanied by a meet and confer declaration under Section 2016.040.”¿ (Ibid. at § 2031.310(b)(2).) ¿ Pursuant to Section 2016.040, “[a] meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.”¿ (Ibid., § 2016.040.)¿

A demanding party’s motion for an order compelling a further response must, additionally, be accompanied by a separate statement.¿ (Cal. Rules of Court, rule 3.1345(a)(3).)¿ The separate statement must comply with the requirements set forth in California Rules of Court, rule 3.1345(c).¿ (Ibid.)

Further, “[u]nless 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.”¿ (Code Civ. Proc., § 2031.310(c).)

“Except as provided in subdivision (j), the court shall 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.”¿ (Code Civ. Proc., § 2031.310(h).)

III. Discussion

A. Motion to Compel Further Responses

Defendant moves to compel Plaintiff’s further responses and production of documents in response to Defendant’s Request for Production, Set One. (Mot. p. 2.) Defendant specifically requests additional responses to Requests Nos. 1, 2, 5, 6, 7, 8, 9, 10, 12. (Ibid.) Defendant also seeks monetary sanctions against Plaintiff and his counsel in the amount of $2,811.65. (Ibid.)

Defendant has attached declaration of counsel Michael C. Murphy, Jr., Esq. demonstrating counsel’s attempts to meet and confer with Plaintiff’s counsel regarding the responses to the Request for Production. (See Murphy Decl.) Defendant served the Request on Plaintiff on November 4, 2022. (Murphy Decl. ¶ 2, Ex. 1.) Defendant granted Plaintiff several extensions; however, on January 19, 2023, Plaintiff served “nothing but objections” in response. (Ibid. ¶ 3, Ex. 2.) Defendant’s counsel emailed Plaintiff’s counsel about these responses and subsequently, on January 23, 2023, sent a meet and confer letter to avoid filing the discovery motion. (Ibid. at ¶¶ 4-5, Ex. 3.) Defense counsel also offered to stipulate for a protective order to protect any confidential information; however, Plaintiff’s counsel never responded. (Ibid. at ¶ 6, Ex. 4.) On the same day, Plaintiff’s counsel sent defense counsel an email stating that the requests for production “fail to comply with the rules as to form and substance” and are “objectionable.” (Ibid. at ¶ 7, Ex. 4.) On January 31, 2023, Plaintiff served further discovery responses, which still contained objections “to about half of the requests for production.” (Ibid. at ¶ 8, Ex. 5.) Later that day, Plaintiff’s counsel produced seven different PDF documents in response to the discovery request. (Ibid. at ¶ 9.) Defense counsel wrote to Plaintiff’s counsel requesting that Plaintiff’s counsel bate stamp the documents for discovery and trial purposes, but Plaintiff’s counsel refused. (Ibid.) On February 10, 2023, defense counsel sent another meet and confer letter to Plaintiff’s counsel and asked for a response by February 17, 2023. (Ibid. at ¶ 10, Ex. 6.) On February 22, 2023, Plaintiff’s counsel wrote an email “accusing [defense counsel’s office] of ‘bad lawyering’ or ‘an intentional act to increase the burdens and expense of litigation’ through these ‘nonsensical demands’” and refusing to supplement the responses. (Ibid. at ¶ 11, Ex. 7.)

On the same day, defense counsel asked Plaintiff’s counsel for dates to depose Plaintiff. (Ibid. ¶ 12.) Plaintiff’s counsel responded that he would need at least 3-4 hours to question his own client if a deposition was scheduled. (Ibid., Ex. 8.) Defense counsel responded stating that this would take away from Defendant’s time to depose Plaintiff. (Ibid. at ¶ 13, Ex. 9.) Defense counsel states that “[t]his behavior,” in addition to refusing to bate stamp documents, further demonstrates Plaintiff’s counsel’s “lack of cooperation and hostility.” (Ibid. at ¶ 13.)

Defendant seeks additional responses because all of the documents requested in the Request for Production “are relevant to the subject matter of this lawsuit and/or are reasonably calculated to lead to the discovery of admissible evidence.” (Ibid. at ¶ 14.) These documents pertain to Plaintiff’s claims for fraud and breach of contract and Defendant’s affirmative defenses, including unclean hands. (Ibid.) Defendant suspects that Plaintiff had entered into an arrangement with Defendant’s former employee, who was preparing duplicate invoices for prescription lenses and Defendant was being billed for these orders. (Ibid. at ¶ 14-15, Ex. 10.) Defendant also argues that the documents he has requested are also required to substantiate Plaintiff’s request for attorney’s fees in the instant case. (Ibid. at ¶ 14.)

Finally, Defendant requests a Court order requiring Plaintiff to bate stamp all records Plaintiff has produced “as it could create confusion at trial as to which records were or were not produced during discovery.” (Mot. pp. 2-3.) However, Defendant has not cited any legal authority that would allow the Court to order Plaintiff to bate stamp the records produced. Thus, the Court declines to make any such ruling.

The Court also finds that the Notice and Motion filed on March 1, 2023, are filed timely as they were filed within 45 days of January 31, 2023, the date Plaintiff served further discovery responses to the Request for Production. (Murphy Decl. ¶ 8.)

Plaintiff opposes the Motion and requests monetary sanctions against Defendant and his counsel in the amount of $2,520.00 for “their bad faith discovery tactics and failure to meet and confer.” (Oppos. p. 2.) Plaintiff repeatedly argues that Defendant has not met and conferred regarding the responses and has not addressed Plaintiff’s objections during the meet and confer process. (Ibid. at pp. 5-7.) Having reviewed Defendant’s meet and confer letters and correspondence between the attorneys, the Court finds that Defendant has satisfied the meet and confer requirement by making a “reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Murphy Decl. ¶¶ 5, 7, 10-13, Exs. 3-4, 6-9.) For this reason, the Court does not grant Plaintiff’s request for sanctions against Defendant and his counsel.

Plaintiff also opposes the Motion for failing to comply with California Rules of Court, rule 3.1345(c). (Oppos. p. 7.) Plaintiff argues that the Separate Statement is defective due to its title and drafted without discussion of the issues with opposing party. (Ibid.) Moreover, defense counsel has not included the relevant portions of plaintiff’s responses and has not drafted the Statement “in proper form.” (Ibid.) Having reviewed the Separate Statement, the Court finds that Defendant has set forth the text of each request, the text of Plaintiff’s response, a statement of factual and legal reasons for compelling further responses, and other information as required by California Rules of Court, rule 3.1345(c).

In his Reply, Defendant addresses Plaintiff’s arguments regarding his lack of knowledge that Defendant was attempting to reconcile lab orders and statements from July 2015 to the present in order to make arrangements to pay off the balance to Plaintiff. (Oppos. pp. 2-3.) Defendant also reiterates that Plaintiff has failed to produce any evidence demonstrating that it is entitled to recovery of attorney’s fees, which is part of the requests for production sought by Defendant. (Ibid. at pp. 3-4.) Finally, Defendant reiterates his extensive efforts to meet and confer and explains that he stopped communicating with Plaintiff’s counsel after Plaintiff’s counsel made personal attacks and accusations and repeatedly stated that his client would provide no further responses. (Reply p. 6.)

a. Request for Production

In a Separate Statement, Defendant sets forth the Requests for Production for which he seeks an order compelling further responses. Plaintiff has filed an Opposition to Defendant’s Motion. Defendant has filed a reply to Plaintiff’s Opposition.

Request No. 1:

Defendant requests “all statements and invoices for Ophthalmic labor work between January 1, 2015 and the present.” (Sep. St. p. 4.) In his Meet and Confer letter, sent on February 10, 2023, Defendant limited this request to “statements and invoices for Ophthalmic labor work pertaining to the Defendant’s business between January 1, 2025 and the present” and requested code-compliant responses. (Murphy Decl. ¶ 10, Ex. 6.)

Plaintiff objects to the request stating that it “invades the right of privacy of non-party litigants” protected by Article I of the California and U.S. Constitution, as it demands personal and confidential information. (Ibid.) The request is also “grossly overbroad and not relevant to the subject matter of this suit as it fails describe with specifically the items sought as it pertains to a certain group, client, customer, account or otherwise. Instead, propounding party seeks to obtain the entirety of the plaintiff’s business records and accounts receivable.” (Ibid.)

Defendant argues that Plaintiff has not provided a code-compliant response. (Ibid.) He has not stated whether he will comply or the reasons he is unable to comply, pursuant to Code of Civil Procedure §§ 2031.210, 2031.220, 2031.230. (Ibid.) Plaintiff has not provided a privilege log, per § 2031.240, or identified “any documents or category of documents being produced that are responsive to this request for production,” per § 2031.280. (Ibid.) Defendant offered a stipulation for protective order to protect confidential information, but Plaintiff did not respond to this offer. (Ibid.) Defendant argues that the statements and invoices sought are relevant and reasonably calculated to lead to discovery of admissible evidence, as “[t]hey go directly to the heart of Plaintiff’s claim.” (Ibid.) They are also relevant to Defendant’s affirmative defense of unclean hands, as Defendant believes these documents will demonstrate Plaintiff’s wrongdoing. (Ibid. at pp. 4-5.) Specifically, Defendant believes that Plaintiff entered into an arrangement with Defendant’s former employee, Victor Vaca, who would receive payment from Plaintiff for duplicating orders that Defendant would have to pay for. (Ibid. at p. 5.) For this reason, Defendant requests that the Court order Plaintiff to provide a code-compliant response and production of these records. (Ibid.)

Plaintiff opposes the Request arguing that Defendant is attempting to obtain all of Plaintiff’s statements and invoices from 2015 to the present, which includes patient’s confidential medical information and “information between Plaintiff and its other customers, which is proprietary in nature.” (Reply p. 4.) It is a “bad faith discovery tactic used to increase the burdens and expenses of litigation in an attempt to force an unfavorable settlement.” (Ibid. at p. 5.) The meet and confer letter does not “make issue any of the objections raised” and thus, “no issue is taken on the validity of the objections raised” and Defendant is prevented from seeking further discovery. (Ibid.) Furthermore, Defendant has not presented all of its arguments in the meet and confer letter and the Separate Statement is substantively defective because it fails to include all relevant information necessary. (Ibid. at p. 6.)

According to Code of Civil Procedure § 2031.060, a party that receives a discovery request “may promptly move for a protective order” that will protect the party from “unwarranted annoyance, embarrassment, or oppression, or undue burden and expense” or having to divulge confidential information. Here, Plaintiff has not moved for a protective order and has not stipulated to an order to protect any private or proprietary information, as offered by Defendant. The Court finds that Defendant has good cause for seeking production of documents requested, particularly as limited by its February 10, 2023, meet and confer letter. Thus, Plaintiff is ordered to provide a code-compliant response to the request and produce records in response to the limited request. Plaintiff may stipulate to a protective order to protect the rights of non-litigants and other confidential and personal information.

Request No. 2:

Defendant requests “ALL COMMUNICATIONS between Victor Vaca and YOU [Plaintiff] between January 1, 2015 and the present.” (Sep. St. p. 5.) Plaintiff objects to the request stating that it “invades the right of privacy of non-party litigants” protected by Article I of the California and U.S. Constitution, as it demands personal and confidential information. (Ibid.) The request is also “grossly overbroad and not relevant to the subject matter of this suit as it fails describe with specifically the items sought.” (Ibid.)

Defendant argues that Plaintiff has not provided a code-compliant response. He has not stated whether he will comply or the reasons he is unable to comply, pursuant to Code of Civil Procedure §§ 2031.210, 2031.220, 2031.230. (Ibid.) Plaintiff has not provided a privilege log, per § 2031.240, or identified “any documents or category of documents being produced that are responsive to this request for production,” per § 2031.280. (Ibid. at pp. 5-6.) Defendant offered a stipulation for protective order to protect confidential information, but Plaintiff did not respond to this offer. (Ibid.) Defendant argues that the statements and invoices sought are relevant and reasonably calculated to lead to discovery of admissible evidence, as “[t]hey go directly to the heart of Plaintiff’s claim.” (Ibid. at p. 6.) They are also relevant to Defendant’s affirmative defense of unclean hands, as Defendant believes these documents will demonstrate Plaintiff’s wrongdoing. (Ibid. at p. 6.) Specifically, Defendant argues that he is entitled to see these communications as he believes his former employee has been assisting Plaintiff and has also admitted to discussing the case with Plaintiff. (Ibid.) For this reason, Defendant requests that the Court order Plaintiff to provide a code-compliant responses and production of these records. (Ibid.)

Plaintiff argues that this demand would require a subpoena and notice to the consumer because Mr. Vaca is now employed by Plaintiff and any communication during this employment would be part of Mr. Vaca’s file and not subject to disclosure. (Oppos. p. 7.) Moreover, Defendant did not raise any issues with Plaintiff’s objections in the meet and confer letter as he did not state a proper grounds for disclosure and did not respond to Plaintiff’s February 20, 2023, reply or February 27, 2023, letter checking if the responses were satisfactory. (Ibid. at pp. 7-8.) Furthermore, Defendant has not presented all of its arguments in the meet and confer letter and the Separate Statement is substantively defective because it fails to include all relevant information necessary. (Ibid.)

According to Code of Civil Procedure § 2031.060(a)-(b), a party that receives a discovery request “may promptly move for a protective order” that will protect the party from “unwarranted annoyance, embarrassment, or oppression, or undue burden and expense” or having to divulge confidential information. Here, Plaintiff has not promptly moved for a protective order and has not stipulated to a protective order to protect any private or proprietary information, as offered by Defendant. Furthermore, Plaintiff has not provided a privilege log, per § 2031.240, or identified “any documents or category of documents being produced that are responsive to this request for production,” per § 2031.280. (Ibid. at pp. 5-6.) The Court finds that Defendant has good cause for seeking production of documents requested. Thus, Plaintiff is ordered to provide a code-compliant response to the request. Plaintiff may stipulate to a protective order to protect the rights of non-litigants and other confidential and personal information and may provide a privilege log, as set forth in Code of Civil Procedure § 2031.240.

Request No. 5:

Defendant requests “ALL DOCUMENTS reflecting Opti-Lite Optical price lists for wholesale lab work between January 1, 2015 and December 31, 2018.” (Sep. St. p. 6.) Plaintiff objects to the request stating that it “invades the right of privacy of non-party litigants” and “falls under trade secrets and proprietary information not known to the general public.” (Ibid.)

Defendant argues that Plaintiff has not provided a code-compliant response. (Ibid. at p. 7.) He has not stated whether he will comply or the reasons he is unable to comply, pursuant to Code of Civil Procedure §§ 2031.210, 2031.220, 2031.230. (Ibid.) Plaintiff has not provided a privilege log, per § 2031.240, or identified “any documents or category of documents being produced that are responsive to this request for production,” per § 2031.280. (Ibid.) Defendant offered a stipulation for protective order to protect confidential information, but Plaintiff did not respond to this offer. (Ibid.) Defendant argues that the pricing information is relevant and reasonably calculated to lead to discovery of admissible evidence, as “[t]hey go directly to the heart of Plaintiff’s claim.” (Ibid.) Plaintiff has not produced a contract between Plaintiff and Defendant and is likely going to seek fair market value of the services and products allegedly ordered, thus, these price lists are relevant to the case. (Ibid.) As an optometrist, “Defendant is entitled to know what Plaintiff’s pricing would have been for the invoices where he is claiming that Defendant still owes him money.” (Ibid.) Furthermore, Defendant is entitled to see communications between Plaintiff and his former employee given the possibility that his former employee and Plaintiff had an arrangement to double charge Defendant. (Ibid.) For this reason, Defendant requests that the Court order Plaintiff to provide a code-compliant response and production of these records. (Ibid. at p. 8.)

Plaintiff argues that “[t]his is yet another broad and irrelevant request made in bad faith.” (Oppos. p. 11.) He states that Defendant has not provided any proper basis for disclosure of Plaintiff’s proprietary price list and has not addressed Defendant’s objections. (Ibid.) Plaintiff’s wholesale pricelist is for buying of raw materials and is irrelevant to Defendant. (Ibid.) Defendant is attempting to obtain information about Plaintiff’s costs and business vendors, which are proprietary trade secrets. (Ibid.) The meet and confer letter does not “make issue any of the objections raised” and thus, “no issue is taken on the validity of the objections raised” and Defendant is prevented from seeking further discovery. (Ibid.) Furthermore, Defendant has not presented all of its arguments in the meet and confer letter and the Separate Statement is substantively defective because it fails to include all relevant information necessary. (Ibid.)

According to Code of Civil Procedure § 2031.060(a)-(b), a party that receives a discovery request “may promptly move for a protective order” that will protect the party from “unwarranted annoyance, embarrassment, or oppression, or undue burden and expense,” and may also protect the party from having to divulge trade secrets or other confidential or commercial information. Here, Plaintiff has not promptly moved for a protective order and has not stipulated to a protective order to protect any private or proprietary information, as offered by Defendant. Furthermore, Plaintiff has not provided a privilege log, per § 2031.240, or identified “any documents or category of documents being produced that are responsive to this request for production,” per § 2031.280. (Ibid. at pp. 5-6.) The Court finds that Defendant has good cause for seeking production of documents requested. Thus, Plaintiff is ordered to provide a code-compliant response to the request. Plaintiff may stipulate to a protective order to protect any trade secrets and business and proprietary information and may provide a privilege log in response.

Request No. 6:

Defendant requests “ALL DOCUMENTS CONCERNING Opti-Lite Optical’s policy (written or non-written) relating to discounts extended to wholesale accounts due to RE-DO ORDERS.” (Sep. St. p. 8.) Plaintiff has responded to this Request without objection, stating that “a diligent search and reasonable inquiry has been made in an effort to comply with this demand. The inability to comply to this demand is because Responding party does not keep any such documents in its usual course of business; to that extent no such documents exist.” (Ibid. at p. 8.)

Defendant argues that Plaintiff has not provided a code-compliant response. (Ibid. at p. 8.) He has not stated whether he will comply or the reasons he is unable to comply, pursuant to Code of Civil Procedure §§ 2031.210, 2031.220, 2031.230. (Ibid.) Plaintiff has not provided a privilege log, per § 2031.240, or identified “any documents or category of documents being produced that are responsive to this request for production,” per § 2031.280. (Ibid.) Defendant offered a stipulation for protective order to protect confidential information, but Plaintiff did not respond to this offer. (Ibid.) Defendant argues that information about discounts provided to wholesale accounts for re-do orders is relevant and reasonably calculated to lead to discovery of admissible evidence, as “[t]hey go directly to the heart of Plaintiff’s claim.” (Ibid.) Plaintiff has not produced a contract between Plaintiff and Defendant and is likely going to seek fair market value of the services and products allegedly ordered, thus, this pricing information is relevant and can also help determine whether Plaintiff was overcharging Defendant for these orders. (Ibid. at pp. 8-9.) For this reason, Defendant requests that the Court order Plaintiff to provide a code-compliant response and production of these records. (Ibid. at p. 9.)

Plaintiff states that Defendant’s February 10, 2023, letter requested additional information about the records, including whether they were lost, misplaced or destroyed, and contact information for those who might have access to this information. (Ibid. at pp. 13-14.) Plaintiff opposes this request, arguing that he has already stated that these documents do not exist. (Ibid.) Plaintiff argues that this is another bad faith discovery tactic used to harass and improperly burden Plaintiff. (Ibid. at p. 14.) Defendant’s meet and confer letters do not make issue of Plaintiff’s objection, and Plaintiff has “[n]othing new” to produce. (Ibid.) Furthermore, Defendant has not presented all of its arguments in the meet and confer letter and the Separate Statement is substantively defective because it fails to include all relevant information necessary. (Ibid.)

The Court finds that Plaintiff’s response is not code compliant, as Code of Civil Procedure § 2031.230 requires:

A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has 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. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.

Accordingly, Plaintiff is ordered to provide a further code-compliant response to this request.

Request No. 7:

Defendant requests “ALL DOCUMENTS evidencing any contract or agreement between YOU and DEFENDANT relating to YOU providing wholesale ophthalmic labor work for Dr. David W. Gordon’s optometry practice.” (Sep. St. p. 9.) Plaintiff objects to this request for being “unintelligible and ambiguous as it requires responding party to have special knowledge of propounding party’s practice, or otherwise, which responding party does not.” (Ibid.) Without waiting these objections, Plaintiff states that “[a] diligent search and reasonable inquiry has been made in an effort to comply with this demand. The inability to comply to this demand is because Responding party does not make ant [sic] categoric distinctions, i.e., ‘wholesale’, nor limited to ‘labor work’ in the orders placed. Responding party’s provides materials, products and other tangible items that are custom made for sale to the general public. Therefore, no such documents exist.” (Ibid.)

Defendant argues that Plaintiff has not provided a code-compliant response. (Ibid.) He has not stated whether he will comply or the reasons he is unable to comply, pursuant to Code of Civil Procedure §§ 2031.210, 2031.220, 2031.230. (Ibid.) Plaintiff has not provided a privilege log, per § 2031.240, or identified “any documents or category of documents being produced that are responsive to this request for production,” per § 2031.280. (Ibid.) Defendant offered a stipulation for protective order to protect confidential information, but Plaintiff did not respond to this offer. (Ibid.) Defendant further argues that Plaintiff’s breach of contract and breach of implied covenant of good faith and fair dealing causes of action are based on written agreements. (Ibid.) However, Plaintiff has not produced any of these agreements, except invoices and a summary billing sheet from 2017. (Ibid. at p. 10.) Plaintiff’s qualified response does not make it clear whether any agreements do exist. (Ibid.) These agreements are relevant and “go directly to the heart of Plaintiff’s claim in this lawsuit” as they are based on agreements between Plaintiff and Defendant. (Ibid.) For this reason, Defendant requests that the Court order Plaintiff to provide a code-compliant response and production of these documents. (Ibid.)

Plaintiff argues that he has already responded to this request through his response to the special interrogatories and Defendant is asking a “rhetorical question that plaintiff is under no obligation to answer.” (Ibid. at p. 16.) Plaintiff does not distinguish its sales under a wholesale distinction and thus, no documents exist and “[t]here is nothing to compel under this category.” (Ibid.) The meet and confer letter does not “make issue any of the objections raised” and thus, “no issue is taken on the validity of the objections raised” and Defendant is prevented from seeking further discovery. (Ibid.) Furthermore, Defendant has not presented all of its arguments in the meet and confer letter and the Separate Statement is substantively defective because it fails to include all relevant information necessary. (Ibid.)

The Court finds that Plaintiff’s response is code-compliant as he has provided an explanation regarding his inability to comply with this request. Although Plaintiff’s action is premised on agreements between Plaintiff and Defendant, Defendant requests evidence of agreements pertaining to “wholesale ophthalmic labor work for Dr. David W. Gordon’s optometry practice.” Plaintiff’s response indicates that there are no documents to produce in response to this specific category of documents. Accordingly, Defendant’s Motion is DENIED as to Request No. 7.

Request No. 8:

Defendant requests “All invoices that reflect orders placed by Victor Vaca through DEFENDANT’s Opti-Lite Optical account from September 30, 2017 to March 2, 2022.” (Sep. St. p. 10.) Plaintiff objects to this request because it “invades the right of privacy of non-party litigants” and “falls under trade secrets and proprietary information not known to the general public.” (Ibid.) Without waving these objections, Plaintiff states that “[a] diligent search and reasonable inquiry has been made in an effort to comply with this demand. The inability to comply to this demand is because Responding party does not keep such documents in its ordinary course of business.” (Ibid.) The order forms are submitted under the name of the account, not the name of the individual or employee and thus, these documents do not exist and this information could be better determined by the Defendant. (Ibid. at p. 10.)

Defendant further argues that Plaintiff, under penalty of perjury, claims that it does not distinguish orders; however, an invoice that Plaintiff sent to Defendant specifically shows his former employee’s name and phone number on the invoice. (Ibid., see Murphy Decl., Ex. 10.) These Invoices are relevant and “go directly to the heart of Plaintiff’s claim in this lawsuit.” (Ibid.) They are also relevant for Defendant’s affirmative defense of unclean hands as Defendant believes they will help uncover an arrangement between Plaintiff and Defendant’s former employee and allow Defendant to file a potential cross-complaint. (Ibid.) For this reason, Defendant requests that the Court order Plaintiff to provide a code-compliant response and production of these records. (Ibid.)

Plaintiff states that Defendant’s former employee Victor Vaca was the main contact person for the account and “[a]ny orders placed was done by anyone of defendant’s employees, who has defendant, Dr. Gordon’s prescription and signature on it.” (Ibid. at p. 19.) Plaintiff is unaware who placed each order as all orders were “deemed to be made by defendant or defenants’ [sic] employees.” (Ibid. at p. 19.) Plaintiff also questions Defendant’s defense and allegations against Plaintiff and Victor Vaca and claims that they are “false and fabricated allegations that defendant has made up during the course of this litigation.” (Ibid. at p. 19.) Plaintiff states that he “is not required to go through documents and investigate and produce a list for the defense.” (Ibid.) Moreover, Defendant’s explanations were never provided to Plaintiff prior to filing the instant Motion and were not presented through the meet and confer process. (Ibid.) Defendant has not presented all of its arguments in the meet and confer letter and the Separate Statement is substantively defective because it fails to include all relevant information necessary. (Ibid.)

Defendant has provided a specific invoice that contains Victor Vaca’s name and phone number. (Murphy Decl., Ex. 10.) However, based on this single invoice, the Court cannot discern whether Plaintiff could categorize all other invoices based on the employee who prepared the order.

Thus, the Court finds that Plaintiff’s response is code-compliant as it explains Plaintiff’s inability to distinguish orders based on the name of the individual who prepared them and prevents Plaintiff from being able to produce any more documents in response to this request. For this reason, Defendant’s Motion as to Request No. 8 is DENIED.

Request 9:

Defendant requests “All DOCUMENTS that reflect RE-DO ORDERS placed through DEFENDANT’s Opti Lite Optical account between January 1, 2015 to March 2, 2022.” (Sep. St. p. 12.) Plaintiff objects to the request for being “vague and ambiguous as to term ‘re-do orders.’” (Ibid.) Moreover, the “demand is overbroad and unduly burdensome since due to the excessive time restraints, and thus a nuisance.” (Ibid.) Plaintiff responds that he is “not required to prepare defendant’s case, nor obligated to research and thereafter compile a list for defendant.” (Ibid.) Without waiving these objections, Plaintiff states that “[a] diligent search and reasonable inquiry has been made in an effort to comply with this demand. The inability to comply to this demand is because Responding party is unable to comply with this request because Responding party does not keep such document, as described, in its ordinary course of business. Therefore, the documents sought have never existed. However, any corrections to any orders or otherwise produces another request order. Kindly refer to Exhibit A, Order Forms where you can determine for yourself which order you deem is a “redo order”.” (Ibid. at p. 12.)

Defendant argues that Plaintiff has only partially complied with this production request because Exhibit A only includes a partial production of invoices from the year 2017. (Ibid.) Plaintiff acknowledges that that there were corrections to orders but has not produced any of the other records and “and then claims that they do not exist.” (Ibid.) For this reason, Defendant requests that the Court order Plaintiff to produce all records requested in this demand from January 1, 2015, to the present. (Ibid.)

Plaintiff argues that no documents can be produced in response to this request because they do not exist. (Oppos. p. 21.) Defendant’s meet and confer letter did not make an issue of this objection and thus, no objection was presumed. (Ibid.) Defendant did not provide the explanations set forth in the Motion in the meet and confer process. (Ibid.) Furthermore, Defendant has not presented all of its arguments in the meet and confer letter and the Separate Statement is substantively defective because it fails to include all relevant information necessary. (Ibid.)

The Court finds that Plaintiff has not provided a code-compliant response. Plaintiff has produced records from 2017 and acknowledged that there are corrections to certain orders. Plaintiff is ordered to provide code-compliant responses and further production of documents in response to Request No. 9.

Request 10:

Defendant requests “All DOCUMENTS reflecting any form of employment relationship between YOU and Victor Vaca between January 1, 2015 and March 2, 2022, including but not limited to, employment contracts, independent contractor agreements, service contracts, commission records, etc.” (Sep. St. pp. 12-13.) Plaintiff objects to the request stating that it “invades the right of privacy of non-party litigants” protected by Article I of the California and U.S. Constitution, as it demands personal and confidential information. (Ibid. at p. 13.) The request is also “grossly overbroad and not relevant to the subject matter of this suit.” (Ibid.) On February 19, 2023, Plaintiff provided an Amended Response stating “[w]ithout waiving all objections previously raised to this demand, responding party responses to the following items enumerated in the demand: as to independent contractor agreements, and service contracts – A diligent search and a reasonable inquiry has been made in an effort to comply with that demand; however, responding party lacks the ability to comply with the demand because the documents sough do not exist. In regard to the portion of the demand seeking employment contracts or records, plaintiffs original objections stand. Similarly, any private financial information sought, are subject to the original objections raised by plaintiff.” (Eshraghi Decl. ¶ 5, Ex. B.)

Defendant argues that Plaintiff has not provided a code-compliant response. He has not stated whether he will comply or the reasons he is unable to comply, pursuant to Code of Civil Procedure §§ 2031.210, 2031.220, 2031.230. (Ibid.) Plaintiff has not provided a privilege log, per § 2031.240, or identified “any documents or category of documents being produced that are responsive to this request for production,” per § 2031.280. (Ibid.) Defendant offered a stipulation for protective order to protect confidential information, but Plaintiff did not respond to this offer. (Ibid.) Defendant argues that the statements and invoices sought are relevant and reasonably calculated to lead to discovery of admissible evidence. (Ibid. at p. 13.) They are also relevant to Defendant’s affirmative defense of unclean hands, as Defendant believes these documents will demonstrate Plaintiff’s wrongdoing and arrangement with Defendant’s former employee. (Ibid.) For this reason, Defendant requests that the Court order Plaintiff to provide a code-compliant response and production of these records. (Ibid.)

Plaintiff argues that he has served an amended response and the Separate Statement does not incorporate this response. (Oppos. p. 23.) The meet and confer letter does not “make issue any of the objections raised” and thus, “no issue is taken on the validity of the objections raised” and Defendant is prevented from seeking further discovery. (Ibid.) Furthermore, Defendant has not presented all of its arguments in the meet and confer letter and the Separate Statement is substantively defective because it fails to include all relevant information necessary. (Ibid.)

California Rules of Court, rule 3.1345 states that “[t]he separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and the full response.” Here, Defendant has not incorporated Plaintiff’s amended responses. For this reason, the Court denies Defendant’s Motion as to Request No. 10.

Request 12:

Defendant requests “All DOCUMENTS (including contracts, agreements, invoices, purchase orders, etc.) between YOU and the DEFENDANT that allows for the recovery of attorney’s fees in this action.” (Sep. St. p. 14.) Plaintiff states that “[a] diligent search and reasonable inquiry have been made in an effort to comply with this demand. The inability to comply to this demand is because the documents sought are lost. If found, responding will produce those documents.” (Ibid.) On February 19, 2023, Plaintiff provided an Amended Response stating “[a] diligent search and a reasonable inquiry has been made in an effort to comply with that demand; however, responding party lacks the ability to comply with the demand because the documents sought do not exist.” (Eshraghi Decl. ¶ 5, Ex. B.)

Defendant argues that Plaintiff has not provided a code-compliant response. He has not stated “whether he will comply, is unable to comply after a good faith and search along with the reasons supporting the inability to comply (lost, destroyed, misplaced, etc.) and the name and address of any person or organization that would have those records.” (Ibid.) Plaintiff has not provided a privilege log to support his objections or identified “any documents or category of documents being produced that are responsive to this request for production.” (Ibid.) Plaintiff’s counsel insists that Plaintiff is entitled to attorney’s fees but has not produced any documents to justify the recovery of attorney’s fees, while Plaintiff cannot locate these documents. (Ibid.) Plaintiff’s counsel has also threatened recovery of “substantial attorney’s fees” against Defendant if the case is not settled immediately. (Ibid.) Defense counsel has made settlement offers which have been rejected. (Ibid.) Defendant has repeated asked for these documents to substantiate Plaintiff’s request for attorney’s fees, which also affects settlement discussions, but no documents allowing for attorney’s fees have been produced. (Ibid. at p. 15.)

Plaintiff states that his supplemental responses clearly show that Plaintiff will not be pursuing attorney’s fees and the Separate Statement does not incorporate these responses. (Oppos. p. 25.) The meet and confer letter does not “make issue any of the objections raised” and thus, “no issue is taken on the validity of the objections raised” and Defendant is prevented from seeking further discovery. (Ibid.) Furthermore, Defendant has not presented all of its arguments in the meet and confer letter and the Separate Statement is substantively defective because it fails to include all relevant information necessary. (Ibid.)

In his Reply, Defendant argues that Plaintiff first stated that the contract was lost and then, in the supplemental response stated that the contract does not exist. (Reply p. 7.) If the contract ever did exist, Plaintiff must provide further information pursuant to Code of Civil Procedure § 2031.230. (Ibid.)

B. Sanctions

Plaintiff requests monetary sanctions in the amount of $2,811.65. (Murphy Decl. ¶ 17.) Plaintiff argues that sanctions are warranted under Code of Civil Procedure §§ 2030.010(d)-(f), 2031.310(h), because “Plaintiff’s failure to provide code-compliant responses to requests for production and providing evasive responses and/or objections without substantial justification are misuses of the discovery process.” (Mot. p. 20.) Moreover, § 2031.310(h) also authorizes monetary sanctions to be imposed against a party, person, or attorney who unsuccessfully opposes a motion to compel unless he or she acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Ibid.)

Plaintiff’s counsel requests attorney’s fees, at a rate of $275.00 per hour, and costs as follows: ten (10) hours for drafting the instant Motion and supporting papers, two (2) hours for preparing for and attending the hearing on the Motion, and a filing fee of $61.65, for a total of $2,811.65. (Murphy Decl. ¶ 17.) Defendant requests an additional $825.00 for preparing the Reply. (Reply p. 9.)

Given that the Motion is granted in part and denied in part, the Court does not find that Plaintiff has unsuccessfully opposed the Motion. Moreover, Code of Civil Procedure §§ 2023.010 and 2023.030 list the available discovery sanctions but do not independently authorize a court to impose specific sanctions. (City of Los Angeles v. PricewaterhouseCoopers (2022) 84 Cal.App.5^th 466, 503-504.) Thus, a court’s authority to impose the sanctions specified in §§ 2023.010 and 2023.030 must arise from a statute governing a particular method of discovery. (Ibid.) Here, Defendant has not cited to any authority giving the Court the ability to impose monetary sanctions for misuse of discovery. For this reason, the Court does not grant sanctions for misuse of discovery solely based on § 2023.010.

As discussed above, the Court also denies Plaintiff’s request for sanctions against Defendant and his attorney as the Court finds that Defendant has satisfied the meet and confer requirement.

IV. Conclusion & Order

For the foregoing reasons,

The Motion to Compel Plaintiff Howard Mochayoff’s Further Responses to Defendant’s Request for Production is GRANTED in part and DENIED in part.

The Court also DENIES Defendant’s request for sanctions and Plaintiff’s request for sanctions.

Moving parties are ordered to give notice.