Judge Lee W. Tsao, Case Number: 23NWCV00778, Date: 2023-11-07 Tentative Ruling

Judge: Lee W. Tsao, Case: 23NWCV00778, Date: 2023-11-07 Tentative Ruling

Case Number: 23NWCV00778 Hearing Date: November 7, 2023 Dept: C

Janet Villalobos vs Zoila Madrigal, et al.

NO.: 23NWCV00778

HEARING: 11/07/23

TENTATIVE ORDER

Defendant Primrose is ordered to provide further response within 20 days of this order.

Sanctions are awarded to Plaintiff in the reasonable total amount of $1,460.00.

Moving party to give notice.

Background

This is a property damages matter relating to damages suffered by Plaintiff Janet Villalobos (hereinafter, “Plaintiff”) caused by water intrusion into Plaintiff’s condominium. Plaintiff alleges that Defendants were negligent, causing the water intrusion, and that certain Defendants breached contractual agreements requiring them to repair Plaintiff’s condominium. Plaintiff filed a complaint on March 14, 2023 alleging various causes of action against Defendants Zoila Madrigal, HPK Property Management, Inc. and Primrose Condominium Association (“Primrose”).

On July 10, 2023, Plaintiff served her Request for Production, Set One on Defendant Primrose (Hariri Decl., ¶2; Ex. A.) Defendant TrendSource timely served responses on August 10, 2023, but verifications for the responses were not provided until August 24, 2023. (Hariri Decl., Ex. B.)

On September 15, 2023, Plaintiff’s counsel sent a meet and confer email to counsel for Defendant Primrose, outlining a number of issues with the discovery responses. (Hariri Decl, Ex. C.) On September 27, 2023, counsel for Primrose responded to the meet and confer, indicating that they would be providing one additional document. (Hariri Decl., Ex. D.)

On October 4, 2023, Plaintiff’s counsel sent a meet and confer email informing Defendant Primrose that their response to the meet and confer was insufficient, and that further responses would be necessary to avoid a motion to compel. (Hariri Decl., Ex. E.) Counsel Primrose responded to this email on October 4, 2023, with no indication that any further responses would be served. (Hariri Decl., Ex. F.)

On October 9, 2023, Plaintiff’s counsel sent one final meet and confer. (Hariri Decl., Ex. G.)

As of the date of this motion, Plaintiff argues insufficient responsive documents have been produced by Defendant Primrose.

Analysis

A. Meet and Confer Requirement

A motion¿to compel further responses to requests for production “shall be accompanied by a meet and confer declaration.”¿ (Code Civ. Proc. § 2031.310(b)(2).)¿ The declaration must state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented in the motion.¿ (Code Civ. Proc. § 2016.040.)¿

“The Discovery Act requires that, prior to the initiation of a motion to compel, the moving party declare that he or she has made a serious attempt to obtain 'an informal resolution of each issue.” (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1016) (internal quotations and citations omitted). This rule is designed “to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order....”

(McElhaney v. Cessna Aircraft Co. (1982) 134 Cal.App.3d 285, 289.) “This, in turn, will lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes.” (Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1435.)

On October 9, 2023, Plaintiff’s counsel sent one final meet and confer. (Hariri Decl., Ex. G.)

As of the date of this motion, Plaintiff argues insufficient responsive documents have been produced by Defendant Primrose.

Accordingly, the meet and confer element has been met.

B. Separate Statement

A motion to compel further responses requires a separate statement. (Cal. Rules of Court, rule 3.1345(a).) Plaintiff properly filed separate statements.

C. Motion to Compel Further Responses to Request for Production.

CCP § 2031.310(a) provides that on receipt of a response to a request for production of documents, the demanding party may move for an order compelling further responses if:¿¿

(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.¿¿

In responding to a demand for production of documents, a party must either provide one of the following: (1) a legally adequate statement of compliance; (2) a statement of inability to comply; or (3) an objection to the particular demand.¿ (See Code Civ. Proc., § 2031.210, subd. (a).) If any objections are made, they must: (1) “[i]dentify with particularity any document … falling within any category of item in the demand to which an objection is being made”; and (2) “[s]et forth clearly the extent of, and the specific ground for, the objection.”¿ (Id., § 2031.240, subd. (b).)¿¿

To prevail, a party moving for an order compelling further responses to a document production demand must first offer facts demonstrating “good cause justifying the discovery sought by the demand.”¿ (Code Civ. Proc., § 2031.310, subd. (b)(1).) This burden “is met simply by a fact-specific showing of relevance.”¿ (TBG Ins. Servs. Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 448.)¿ If “good cause” is shown by the moving party, the burden shifts to the responding party to justify any objections made to document disclosure.¿ (Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.)

i. Movant arguments

Plaintiff is seeking further production to Requests Nos. 6, 13, 27, and 29. The primary issue in dispute is Defendant Primrose’s lack of production of communications between itself and Plaintiff. Plaintiff contacted Primrose numerous times about leaks in her apartment, including a major leak that took place in April 2022, and communicated with them via email and text. In response to Plaintiff’s requests, Primrose only produced two emails and no text messages. Plaintiff has personal knowledge that more communications exist, and presumably, there are numerous communications at issue that Plaintiff has no personal knowledge about. In addition, Defendant Primrose did not produce any documents related to prior similar lawsuits, or documents showing HOA fees paid by Plaintiff to Primrose.

ii. Defendant’s opposition

Defendant contends that on September 27, 2023, a response to the meet and confer was sent. Counsel attached a copy of the insurance policy and states all other responsive documents had been previously sent.

Defendant also contends that on October 4, 2023, it informed Plaintiff that the cross defendant filed for bankruptcy and therefore a stay is in place so further discovery must be halted.

iii. Reply

In Reply, Plaintiff argues that the opposition is not responsive. Request No. 6 was for communications between the two Defendants, not Plaintiff. As to Request No. 29, Defendant Primrose offers another weak argument that Plaintiff “should” have the documents in question. However, Plaintiff states it does not. Plaintiffs argues that Primrose concedes that this document was not produced by saying the document “will be produced” and argues that at the time the motion was filed, it was not produced.

Plaintiff also asserts that Defendant Primrose has continued to litigate this case by sending an October 9, 2023, email to all parties indicating that they wish to take the deposition of Defendant Madrigal and Plaintiff. (Hariri Reply Decl., Ex. A.)

The Court finds that Defendant Primrose must serve further responses. This Court has not yet made a ruling on whether to stay the proceedings. Parties have not stipulated to a stay of the proceedings. In fact, the October 9, 2023, email shows that Defendant Primrose is still attempting to litigate the instant action. Therefore, the argument that the proceedings are stayed and thus discovery should be unpermitted is unpersuasive.

Moreover, the promise of a future sending of documents is not enough to warrant the Court does not compel responses. Additionally, the few responses without reasoning for why such few messages were sent does not pass muster.

Sanctions

California Rules of Civil Procedure state that “The court must impose a monetary sanction under Section 2023.030 of the Code of Civil Procedure against any party, person, or attorney who unsuccessfully opposes a motion to compel a response to an inspection 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. (CCP §§ 2023.030(a), 2031.300(c)). CCP § 2023.010 (d)-(f) lists a number of misuses of the discovery process, including “[f]ailing to respond or to submit to an authorized method of discovery;” “[m]aking, without substantial justification, [of] a objection to discovery;” and “[m]aking an evasive response to discovery.”

Plaintiff seeks reasonable attorney fees and costs in the amount of $1,460.00 for the preparation and filing of this motion. (Hariri Dec. ¶ 10.) Counsel attests that he has spent approximately 1.5 hours preparing this motion and the accompanying documents, anticipates that he will spend an additional 1.0 hour drafting a reply, and another hour attending the hearing on this motion to compel at a rate of $400.00 per hour. Plaintiff also seeks reimbursement of the $60.00 filing fee. For a total of $1,460.00. The Court finds the request reasonable and awards sanctions in the full amount.

Conclusion

Accordingly, Defendant Primrose is ordered to provide further response within 20 days of this order.

Sanctions are awarded to Plaintiff in the reasonable total amount of $1,460.00.

Moving party to give notice.