Judge Latrice A. G. Byrdsong, Case Number: 21STCV32611, Date: 2024-02-22 Tentative Ruling

Judge: Latrice A. G. Byrdsong, Case: 21STCV32611, Date: 2024-02-22 Tentative Ruling

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Case Name: AAA T.L.C. HEALTH CARE, INC. v. ARTHUR GLICK; DORIS GLICK; LAURIE GLICK; JOAN GLICK EMERY; and DOES 1-20

Motion: Motion to Compel Further Responses to Requests for Production, Set Two and Request for Monetary Sanctions

Tentative Ruling: Plaintiff’s Motion to Compel Further Responses to Requests for Production, Set Two, and for Monetary Sanctions is DENIED WITHOUT PREJUDICE.

On September 2, 2021, AAA T.L.C. Health Care, Inc. (“Plaintiff”) filed a complaint against Arthur Glick (“Arthur”), Doris Glick (“Doris”), Laurie Glick (“Laurie”)[1], and Joan Glick Emery (“Joan”) (collectively “Defendants”), alleging causes of action for: (1) breach of contract, (2) goods and services rendered, (3) account stated, (4) open book account, (5) unjust enrichment, and (6) interference with contractual relations. The complaint arises from an alleged breach of contract to provide home care services for Defendant Laurie’s parents, Defendant Arthur and Defendant Doris.

On November 1, 2021, Defendant Laurie filed a cross-complaint against Plaintiff, Priscilla Roque Manzaneres, and DOES 1 through 20.

On April 20, 2023, Defendant Laurie filed an amended cross-complaint against Plaintiff, Priscilla Roque Manzaneres, and DOES 1 through 20, inclusive, alleging causes of action for: (1) breach of contract, (2) breach of the implied covenant of good faith and fair dealing, and (3) unlawful and unfair business practices.

On September 7, 2023, Plaintiff filed the instant motion to compel Defendant Laurie to provide code-compliant responses, without objection, to Plaintiff’s Request for Production, Set Two, which were propounded on Defendant Laurie by Plaintiff on or about July 10, 2023 (the “Motion”). Plaintiff also requests monetary sanctions against Defendant Laurie and her attorneys of record in the amount of $7,499.15.

On November 21, 2023, after hearing oral argument, the Honorable Timothy Patrick Dillon sitting in Department 73 of this Court, granted the motion for summary adjudication filed by Defendants Laurie and Joan as to the portion of Plaintiff’s first cause of action based on the liquidated damages provision, paragraph 45, and the entirety of Plaintiff’s sixth cause of action for interference with contractual relations. (11/21/23 Minute Order at p. 15.) At the November 7, 2023, hearing on the motion to compel Defendant Laurie’s compliance with notice of depositions and to compel further testimony, the Court inquired as to the extent of damages and the parties agreed that this action should be reclassified as a limited civil action if the motion for summary adjudication was granted. (11/21/23 Minute Order at p. 15.) The Court reclassified this action “as limited because the amount in controversy is less than $25,000.” (11/21/23 Minute Order at p. 15.)

On November 22, 2023, Department 1 of this Court issued an order reassigning this action to the limited civil hub in Department 26 at the Spring Street Courthouse before the Honorable Mark E. Windham. (11/22/23 Minute Order.) Plaintiff filed a peremptory challenge to the Honorable Mark E. Windham and, on December 1, 2023, this action was reassigned to the Honorable Latrice A.G. Byrdsong sitting in Department 25 at the Spring Street Courthouse.

On January 24, 2024, the Court continued the hearing on the Motion, which was scheduled for January 24, 2024, to February 22, 2024 due to the hearing on the Motion not being rescheduled on Department 25’s motion calendar. (01/24/24 Minute Order.)

On February 7, 2024, Defendant Laurie filed and served an opposition to the Motion.

On February 13, 2024, Plaintiff filed and served an objection to Defendant Laurie’s opposition brief. The objection states that while Defendant “Laurie’s opposition is indeed predictable, and thus contains arguments that [Plaintiff] was able to anticipatorily address in its January 17, 2024 Reply (particularly as they relate to issues of unlimited versus limited jurisdiction cases), there are still several arguments raised in [Defendant] Laurie’s late-filed opposition that [Plaintiff] has not had the opportunity to address due solely to [Defendant] Laurie’s flagrant violations of the rules and her ‘strategic’ late filing of the opposition brief.” (Objection to Opposition, p. 1:12-17.)

Although filed and served late, the Court will consider Defendant Laurie’s opposition to the Motion. (Cal. Rules of Court, Rule 3.1300, subd. (d).)

Plaintiff contends that it is entitled to proper and code-compliant responses to the Requests for Production of Document and Things it propounded. Plaintiff argues that Defendant Laurie’s discovery responses fail to comply with CCP §§ 2031.280, 2031.230, and 2031.240. Plaintiff further argues that sanctions for discovery violations are mandatory. Moreover, Plaintiff indicates that meet and confer efforts were fruitless.

In opposition to the Motion, Defendant Laurie argues that Plaintiff’s discovery is improper for a case subject to limited jurisdiction. Defendant Laurie further argues that Plaintiff has not shown that it will be unable to prosecute or defend the action effectively without the discovery sought. Lastly, Defendant Laurie argues that her responses are substantively proper and there is no basis for compelling a further response.

On reply, Plaintiff argues that the Court’s November 21, 2023 order did not vacate the Motion, and the discovery obligations at issue in the instant motion arose during the unlimited phase of this case. Plaintiff asserts that no late opposition should be permitted and the failure to oppose a motion is tantamount to consent of the granting of that motion.

In its objection to the late-filed opposition of Defendant Laurie, Plaintiff argues that Defendant Laurie referred to Plaintiff as a “he” belying Defendant Laurie’s counsel targeting Plaintiff’s counsel in this litigation rather than Plaintiff. Plaintiff contends the discovery standard applicable to this motion is the very liberal approach to discovery outline in Tien v. Superior Court. Plaintiff also contends that Defendant Laurie flagrantly and willfully misrepresents the status of the arguments related to the first amended cross-complaint in that discovery was not closed when Plaintiff propounded the requests at issue. Plaintiff argues that Defendant Laurie fails to address Plaintiff’s contention that her responses failed to comply with CCP §§ 2031.280, 2031.230, and 2031.240. Plaintiff contends that the opposition also fails to address the argument that general objections are not permissible. Next, Plaintiff asserts that Defendant Laurie fails to address Plaintiff’s contention that Defendant Laurie failed to meet and confer regarding the instant motion. Lastly, Plaintiff asserts that Defendant Laurie did not address any of the issues underlying its request for mandatory sanctions.

A motion made pursuant to CCP § 2031.310 “shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc. § 2031.310(b)(2).) “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at informal resolution of each issue presented by the motion.” (Code Civ. Proc. § 2016.040.)

In support of the Motion, Neal S. Zaslavsky, Esq. (“Zaslavsky”) declares that after reviewing Defendant Laurie’s responses to Plaintiff’s Requests for Production, Set Two, Nos. 88-139, he initiated the meet and confer process with Defendant Laurie’s counsel on August 14, 2023. (Zaslavsky Decl., ¶ 5; Exh. C.) Zaslavsky states that he sent an e-mail explaining the defects in the responses and inviting counsel to a meet and confer teleconference. (Id.) Defendant Laurie’s counsel never followed up on his meet and confer letter or indicated her availability for a meet and confer conference. (Id., ¶¶ 6-9.)

Thus, the Court finds that Plaintiff has complied with the meet and confer requirement pursuant to CCP § 2031.310(b)(2).

In California, discovery statutes “must be construed liberally in favor of disclosure unless the request is clearly improper.” Williams v. Superior Court (2017) 3 Cal.5th 531, 541. “Under the discovery statutes, information is discoverable if it is unprivileged and is either relevant to the subject matter of the action or reasonably calculated to reveal admissible evidence.” John B. v. Superior Court (2006) 38 Cal.4th 1177, 1186. “Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action.” Ibid.

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; or (3) an objection to the response is without merit or too general. (Code Civ. Proc. § 2031.310(a)(1)-(3).) A motion brought pursuant to CCP § 2031.310 “shall set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc. § 2031.310(b)(1).)

“To establish good cause, a discovery proponent must identify a disputed fact that is of consequence in the action and explain how the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact.” Digital Music News LLC v. Superior Court (2014) 226 Cal.App.4th 216, 224. “In law and motion practice, factual evidence is supplied to the court by way of declarations.” Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 224.

Code Civ. Proc. § 2023.010(d) provides that a misuse of the discovery process is failing to respond or to submit to an authorized method of discovery. Code Civ. Proc. § 2023.010(h) states that a misuse of the discovery process includes making or opposing, unsuccessfully and without substantial justification, a motion to compel or limit discovery. A court may impose a monetary sanction against a party engaging in the misuse of the discovery process or any attorney advising such conduct under Code Civ. Proc. § 2023.030(a). A court has discretion to fix the amount of reasonable monetary sanctions. Cornerstone Realty Advisors, LLC v. Summit Healthcare Reit, Inc. (2020) 56 Cal.App.5th 771.

Plaintiff propounded the discovery at issue on July 10, 2023, to which Defendant Laurie provided responses on August 9, 2023. (Zaslavsky Decl., ¶¶ 2-3; Exhibits A-B.) Plaintiff contends that Defendant Laurie’s responses are defective. (Zaslavsky Decl., ¶ 5.) On November 21, 2023, pursuant to the stipulation of the parties, this action was reclassified from an unlimited civil jurisdiction action to one of limited jurisdiction. (11/21/23 Minute Order at p. 15.) The instant motion was filed when this action was classified as an unlimited civil jurisdiction action.

In a limited civil action, as to an adverse party, a party can use any combination of 35 of the following: (1) interrogatories with no subparts; (2) demands to produce documents or things; and (3) requests for admission with no subparts. (Code Civ. Proc. § 94(a)(1)-(3).) In a limited civil action “[d]iscovery is permitted only to the extent provided by [Section 94] and Section 95.” (Code Civ. Proc. § 94.) “The court may, on a noticed motion and subject to such terms and conditions as are just, authorize a party to conduct additional discovery, but only upon a showing that the moving party will be unable to prosecute or defend the action effectively without the additional discovery.” (Code Civ. Proc. § 95.) “In making a determination under this section, the court shall take into account whether the moving party has used all applicable discovery in good faith, and whether the party has attempted to secure the additional discovery by stipulation or by means other than formal discovery.” (Code Civ. Proc. § 95(a).)

The Court finds that although the discovery at issue was propounded when this action was classified as unlimited civil jurisdiction, this action is now one of limited jurisdiction. Plaintiff’s objection to Defendant Laurie’s late-filed opposition does not dispute the contention of Defendant Laurie that “Plaintiff has already propounded and Defendant Laurie . . . has already responded to 87 Requests for Production in Set One; 153 Requests for Admission in Set One; Form Interrogatories, Set One, which included multiple subparts; [and] 96 Special Interrogatories in Set One.” (Opposition, p. 3:4-6.)

Plaintiff’s citations to Sauer v. Superior Court (1987) 195 Cal.App.3d 213 and City of Los Angeles v. PricewaterhouseCoopers, LLC (2022) 84 Cal.App.5th 466 are inapposite as: (1) neither case referenced CCP §§ 94 and 95, and (2) neither case stands for the proposition that discovery propounded when a case is classified as unlimited jurisdiction is operative when a case is reclassified pursuant to CCP §§ 94 and 95. The issue in City of Los Angeles v. PricewaterhouseCoopers, LLC, supra, 84 Cal.App.5th 466 was whether discovery sanctions could be imposed “nine months after the case was dismissed with prejudice . . . for egregious misuse of the discovery process while the litigation was pending.” City of Los Angeles v. PricewaterhouseCoopers, LLC, supra, 84 Cal.App.5th 466, 475. Here, there has been no dismissal of this action. Moreover, Sauer v. Superior Court, supra, 195 Cal.App.3d 213 concerned a discovery referee’s order granting a motion to compel discovery and recommending the imposition of monetary sanctions thereto. Sauer v. Superior Court, supra, 195 Cal.App.3d 213, 216-17. Here, Plaintiff is seeking to compel further discovery responses and there has been no discovery referee involved in this action.

Rather, this action is currently a limited civil jurisdiction action and Plaintiff is seeking to compel further responses to 52 requests for production. It is undisputed that Plaintiff has exceeded the amount of discovery allowed under CCP § 94, as Plaintiff has already propounded more than 35 discovery requests consisting of interrogatories, requests for production of documents, and requests for admission on Defendant Laurie. Although the discovery at issue was propounded when this action was classified as unlimited, this action is now a limited civil action and Plaintiff is seeking “to conduct additional discovery” by obtaining further responses from Defendant Laurie. (Code Civ. Proc. § 95.)

Plaintiff does not provide any applicable legal authority indicating that Plaintiff can proceed with obtaining previously propounded discovery—above the amount which is allowed under CCP § 94—when a case is reclassified from an unlimited civil jurisdiction action to a limited civil jurisdiction action.

If Plaintiff would like to compel further responses, the Court will allow Plaintiff to follow the procedure in CCP § 95 by filing a noticed motion to conduct additional discovery.

Irrespective of such fact, and as will be explained below, the Motion cannot be granted due to Plaintiff failing to meet its burden in showing good cause.

The instant motion seeks to “compel further responses . . . pursuant to California Code of Civil Procedure § 2031.310.” (Motion, p. i:13-14.) As such, Plaintiff was required “to set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc. § 2031.310(b)(1).)

The Court finds that Plaintiff has not met its burden in showing good cause to warrant further responses to its second set of Requests for Production of Documents. The declaration of Zaslavsky in support of the Motion does not mention good cause or even attempt to explain “how the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact.” Digital Music News LLC v. Superior Court, supra, 226 Cal.App.4th 216, 224. Additionally, the memorandum of points and authorities does not attempt to articulate whether good cause exists to compel Defendant Laurie’s further responses. Plaintiff has not met its burden in showing good cause to compel further responses. Calcor Space Facility, Inc. v. Superior Court, supra, 53 Cal.App.4th 216, 223-24. The declaration of Zaslavsky is essentially a recitation of meet and confer efforts between the parties and articulates counsel’s qualifications in support of Plaintiff’s request for monetary sanctions. (Zaslavsky Decl., ¶¶ 5-11.)

Thus, even if this case was not reclassified as one of limited jurisdiction after Plaintiff propounded the discovery at issue, the Court would be unable to grant the Motion due to Plaintiff’s failure to show good cause.

Based on the foregoing, Plaintiff’s Motion to Compel Defendant Laurie’s Further Responses to Set Two of its Request for Production and for Monetary Sanctions is DENIED WITHOUT PREJUDICE.

[1] Where necessary, the Court will refer to the respective Defendants by their first names as they share a common last name. The Court does not do so out of disrespect but rather to avoid any confusion in nomenclature. The Court does not intend any disrespect by referring to any of the Defendants by their first names.