Judge: Loren G. Freestone, Case: 37-2021-00041828-CU-PO-CTL, Date: 2023-09-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - September 28, 2023

09/29/2023  10:30:00 AM  C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited  PI/PD/WD - Other Discovery Hearing 37-2021-00041828-CU-PO-CTL KULHANEK VS ATRIA RANCHO PENASQUITOS [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Defendant Atria Management Company LLC's motion to compel Plaintiff Suzanne Hock (individually and as successor-in-interest to William D. Kulhanek) to provide further responses to its requests for production is DENIED.

The court cannot compel further responses. Hock served verified responses to the requests for production of documents on April 11, 2023. If Hock's responses are deficient or otherwise not code-compliant, Atria was obligated to file a motion to compel further responses within 45 days. (Code Civ. Proc., 2031.310, subd. (c).) Atria did not file a timely motion to compel further responses, and therefore it waived its right to compel such further responses or to compel the production of any documents that might have been identified in such a further response. (See New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1427–1428 [plaintiff requested all photographs or other visual or digital records showing condition of aisle on day of the incident; defendant objected but agreed to produce photographs of the snack aisle that were taken after the incident; by not moving to compel a further code-complaint response within 45 days, plaintiff waived the right to compel production of video recordings testified to in later depositions].) Atria can, however, compel the production of any documents that Plaintiff agreed to produce but never did. (See Code Civ. Proc., § 2031.320, subd. (a).) Unlike a motion to compel further responses, a motion to compel compliance does not have a 45-day deadline. (Standon Co. v. Superior Court (1990) 225 Cal.App.3d 898, 903.) To succeed, Atria must show that Hock failed to produce any documents 'in accordance with [her] statement of compliance.' (Code Civ. Proc., § 2031.320, subd. (a).) In response to RFP 3 (documents sent by Atria regarding the decedent), Hock identified 'medical records of Mr. Kulhanek from Atria Grand Oaks and Atria Rancho Penasquitos (KUL 119-178; and Defendants' bates numbers 1-350; 3511-3959), and the Declaration and Exhibits of Apryl McLaughlin in Support of Plaintiffs' Opposition to Defendant's Motion to Compel Arbitration, which includes correspondence from David Reeves of Atria Senior Living, Inc.' Hock did not respond, generally, that she would produce all responsive documents, nor did she respond, specifically, that she would produce emails between William S. Kulhanek and Atria. As such, Atria cannot compel their production now (although Hock voluntarily chose to produce them anyway).

In response to RFP 5 (text messages sent by Atria), Hock stated that she would 'produce all non-privileged, relevant, documents responsive to this request when they have been obtained to the Calendar No.: Event ID:  TENTATIVE RULINGS

3012639  40 CASE NUMBER: CASE TITLE:  KULHANEK VS ATRIA RANCHO PENASQUITOS [IMAGED]  37-2021-00041828-CU-PO-CTL extent that they exist.' The text messages Hock testified at deposition fall within the scope of this request. However, Hock produced the text message within a week of the deposition. Atria's reply states that the documents produced 'omit certain portions of text strings.' The reply does not indicate which portions are purportedly missing. The only reference to a missing text string is in Atria's September 15, 2023 meet and confer letter, which states 'KUL000199 appears to have a message with Marissa at Atria at 2:40 pm which is not produced.' Yet Hock produced that cut-off message within a week of that letter.

As such, all text messages have now been produced and Hock has fully complied, and there is nothing left to compel.

For the reasons set forth above, the motion to compel is denied. Hock's request for sanctions is denied.

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