Judge Kerry Bensinger, Case Number: 23STCV01144, Date: 2024-08-12 Tentative Ruling

MOTIONS TO COMPEL DEFENDANTS CLIENTIVITY LLC AND BRETT TALLA TO COMPLY WITH STATEMENTS INDICATING COMPLIANCE IN RESPONSE TO REQUESTS FOR PRODUCTION OF DOCUMENTS

On August 21, 2023, Plaintiff, Alta Concierge Services LLC, served Defendants, Clientivity LLC and Bret Talla, with Requests for Production of Documents (RFP), Set One. On January 11, 2024, Defendants served responses which, as relevant here, indicated it would comply with RFP Nos. 2, 6, 7, 8, 9, 10, 14, 15, 16, 17, 21, 22, 23, 24, 25, 27, 30, 31, 32, 33, 35, 39, 40, 46, 47, 49, 50, 51, 53, 54, 55, 56, 57.

On March 20, 2024, after having not received the production, Plaintiff filed these motions to compel Defendants to comply with their statements of compliance. Plaintiff requests monetary sanctions against Defendants.

On May 30, 2024, Defendants filed oppositions[1] arguing the motions are moot because Defendants produced the responsive documents which were served on the same day of filing the oppositions.

On June 5, 2024, Plaintiff filed a consolidated reply[2] arguing the document production was incomplete.

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.¿ (Code Civ. Proc., § 2031.320, subd. (a).)¿

Except as provided in subdivision (d), 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 compliance with 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., § 2031.320, subd. (c).)¿

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.¿¿¿

There is no dispute Defendants served responses stating they would comply with Plaintiff’s RFP Nos. 2, 6, 7, 8, 9, 10, 14, 15, 16, 17, 21, 22, 23, 24, 25, 27, 30, 31, 32, 33, 35, 39, 40, 46, 47, 49, 50, 51, 53, 54, 55, 56, 57. At the time of the filing of these motions, Defendants had yet to provide any documents. In their oppositions, Defendants state they served the documents. As such, Defendants contend the motions are moot.

In reply, Plaintiff argues the motions should be granted for four reasons: (1) Defendants did not produce all responsive documents within Defendants’ possession, custody, or control; (2) the document production is accompanied only by the declaration of defense counsel stating, “Upon information and belief, Defendants’ document production contains all documents responsive to Plaintiff’s Requests that are in Defendant's possession, custody, and/or control.” There is no declaration from a Defendant or Defendants’ custodian of records stating under oath all documents have been produced; (3) the documents were not produced in native format with all accompanying metadata; and (4) the documents were produced with unexplained redactions.

The court agrees in considerable part with Plaintiff’s arguments in reply. The RFPs requested production of documents in native format with metadata yet Defendants produced redacted PDFs with unreadable data. (See Supp. Shennk Decl., ¶¶ 4-7, Exs. H-L.) Plaintiff also submit the declaration of its CEO, Kruthika Raman, who states that he exchanged emails and text messages with Defendants and other employees of Clientivity, LLC that would be responsive to several production requests, but were not produced. (Raman Decl., ¶ 7.) Based on the foregoing, the court finds Plaintiff is entitled to an order compelling Defendants’ compliance.

Given that the court has granted this motion, which the Defendants unsuccessfully opposed, the court finds monetary sanctions are warranted. Accordingly, monetary sanctions are imposed against Defendants in the sum of $2,700 consisting of four hours at Plaintiff’s counsel’s hourly rate.

The motions are GRANTED. Defendants are ordered to comply with their statements of compliance to RFP Nos. 2, 6, 7, 8, 9, 10, 14, 15, 16, 17, 21, 22, 23, 24, 25, 27, 30, 31, 32, 33, 35, 39, 40, 46, 47, 49, 50, 51, 53, 54, 55, 56, and 57 within 30 days of the date of this order.

The request for monetary sanctions is GRANTED. Defendants Clientivity, LLC and Brett Talla, are ordered to pay, jointly and severally, sanctions in the sum of $2,700 to Plaintiff, by and through its counsel, within 30 days of the date of this order.

Kerry Bensinger

Judge of the Superior Court

[1] The oppositions are substantively identical. The court therefore considers the oppositions together.

[2] Plaintiff concurrently filed an evidentiary objection to the Declaration of William O. Stein. The court declines to rule on the objection because it does not impact the disposition of these motions.