Judge Kerry Bensinger, Case Number: 22STCV27463, Date: 2024-04-09 Tentative Ruling

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On August 23, 2022, Plaintiff, Ian W. Brooks, filed this legal malpractice action against Defendants, Russell S. Balisok (“Balisok”) and Balisok & Associates, Inc., arising out of Defendants’ legal representation of Plaintiff in an underlying elder abuse action.

On September 27, 2023, Plaintiff served Balisok with Set Two of basic discovery, including Request for Production of Documents (“RFP”).

On December 27, 2023, Balisok served unverified responses to the RFPs. Plaintiff took issue with the lack of verification and with Balisok’s responses to RFP Nos. 17-20. Thereafter, Plaintiff sought verifications and further responses to Nos. 17-20 in meet and confer efforts. On February 8, 2024, Balisok served Plaintiff with verifications for the RFP responses, but did not provide further responses.

On February 27, 2024, Plaintiff filed this motion to compel Balisok to provide further responses to RFP Nos. 17-20. Plaintiff requests sanctions against Balisok.

On March 12, 2024, Balisok filed an opposition. He requests sanctions against Plaintiff.

Under Code of Civil Procedure section 2031.310, parties may move for a further response to requests for production of documents where an answer to the request is evasive or incomplete or where an objection is without merit or too general.¿ A motion to compel further response to requests for production “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.”¿ (Code Civ. Proc., § 2031.310, subd. (b)(1).)¿¿¿

Notice of the motions must be given within 45 days of service of the verified response, otherwise, the propounding party waives any right to compel a further response.¿ (Code Civ. Proc., § 2031.310, subd. (c).)¿ The motions must also be accompanied by a meet and confer declaration.¿ (Code Civ. Proc., § 2031.310, subd. (b)(2).)¿¿¿

Finally, California Rules of Court, Rule 3.1345 requires that all motions or responses involving further discovery contain a separate statement with the text of each request, the response, and a statement of factual and legal reasons for compelling further responses.¿ (Cal. Rules of Court, rule 3.1345(a)(3).)¿¿

Code of Civil Procedure section 2023.030 is a general statute authorizing the Court to impose discovery sanctions for “misuse of the discovery process,” which includes (without limitation) a variety of conduct such as: making, without substantial justification, an unmeritorious objection to discovery; making an evasive response to discovery; and unsuccessfully and without substantial justification making or opposing a motion to compel or limit discovery.¿ (Code Civ. Proc., § 2023.010.)¿¿¿¿

If sanctions are sought, Code of Civil Procedure section 2023.040 requires that the notice specify the identity of the person against whom sanctions are sought and the type of sanction requested, that the motion be supported in the points and authorities, and the facts be set forth in a declaration supporting the amount of any monetary sanction.¿¿¿

If the court finds that a party has unsuccessfully made or opposed a motion to compel responses to inspection demands, the court “shall impose a monetary sanction . . . 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, subd. (h).)¿¿¿¿¿

Unless notice of the motion is given within 45 days of the service of the verified response, or any supplemental verified response, or any specific later date to which the requesting party and the responding party have agreed in writing, the requesting party waives any right to compel further response to the demand for inspection.¿ (Code Civ. Proc., § 2031.290, subd. (c).)¿ Here, Balisok served verifications to the at-issue discovery requests on February 8, 2024. This motion followed less than 45 days later. Accordingly, the court finds that the motion is timely.¿

RFP Nos. 17, 19, and 20 seek any and all non-privileged communications that Balisok had concerning Plaintiff. RFP No. 18 seeks any and all notes Balisok took in connection with the representation of Plaintiff in the underlying action.

Balisok provided the following blanket response to Nos. 17-20: “Defendant has already produced all documents (with exceptions noted below) responsive to these requests informally by copying his entire file at his own considerable expense at the informal request of Mr. McGonigle.”

Plaintiff argues this is not a code compliant response. Balisok contends otherwise. The court agrees with Plaintiff. A demanding party may move for an order compelling further response to a demand if a statement of compliance with the demand is incomplete. (Code Civ. Proc., § 2031.310, subd. (a)(1).) Here, Balisok’s response is incomplete. It does not identify the documents which are responsive to the request.

In a sparsely worded opposition,[1] Balisok argues the motion should be denied because Plaintiff’s Separate Statement did not include definitions of capitalized terms within the requests. The capitalized terms include “PLAINTIFF”, “COMMUNICATIONS”, “YOU”, and “YOUR”. The argument is not well taken. First, there is no authority provided to support Balisok’s argument. Second, the definitions for these terms are unnecessary to understand the requests.

Balisok next argues a further response is not warranted because the discovery at issue relates to the issue of Defendants’ negligence, which Defendants have conceded in responding to Plaintiff’s Requests for Admission. Again, Balisok’s argument is unsupported. Defendants’ responses to Plaintiff’s Requests for Admission have not been submitted to the court. Further, Plaintiff contends there is no response admitting that Defendants were negligent.

Balisok makes one last argument. He argues all responsive documents have been produced and that it would be unduly burdensome to require Defendants to cull through those documents to identify which is responsive to the requests at issue. The court is not persuaded. “The purpose of the discovery statutes is to enable a party to obtain evidence under the control of his adversary in order to further the efficient and economical disposition of a lawsuit.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793.) Producing documents (which, according to Plaintiff, amounts to 6-8 boxes) without indicating which are responsive is out of compliance with the code and cuts against the economical disposition of the action. Balisok must provide a further response to RFP Nos. 17-20.

The motion is GRANTED. Defendant is ordered to provide further responses to Plaintiff’s Request for Production of Documents, Set Two, Nos. 17-20, within 30 days of this order.

Kerry Bensinger

Judge of the Superior Court

[1] Curiously, Balisok contends there are only three RFPs at issue (RFP Nos. 17-19) despite Plaintiff’s motion clearly identifying four RFPs. The court addresses all four.