Judge: Margaret L. Oldendorf, Case: 21BBCV00944, Date: 2022-10-14 Tentative Ruling

Case Number: 21BBCV00944    Hearing Date: October 14, 2022    Dept: P

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

NORTHEAST DISTRICT

I.         INTRODUCTION

            Plaintiff Thomas Jenkins (Jenkins) sues for fraud, financial elder abuse, conversion, breach of fiduciary duty, and other related claims in connection with the production of a screenplay that he wrote. The screenplay was made into a film called “Bed & Breakfast.” Jenkins alleges that Defendant Judith Bell (Bell) convinced him she had the experience to the form necessary limited liability company and manage the production of the film.

            The allegations are detailed but in sum, apparently the project did not go well and both parties believe they were treated unfairly. Bell has filed a cross-complaint against Jenkins for fraud, breach of contract/implied covenant, bad faith denial of contract, and related claims.

            Before the Court are two motions by Jenkins to compel Bell to provide further responses to discovery. For the reasons that follow, the motions are granted in part and denied in part.

II.        LEGAL STANDARD

            A. Inspection Demands

            1. Format of Responses to Requests for Production

A party responding to a demand for inspection must comply with the requirements of Code Civ. Proc. §2031.210, which provides as follows:

“(a) The party to whom a demand for inspection, copying, testing, or sampling has been directed shall respond separately to each item or category of item by any of the following:

(1) A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling pursuant to paragraph (2) of subdivision (c) of Section 2031.030 and any related activities.

(2) A representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item.

(3) An objection to the particular demand for inspection, copying, testing, or sampling.

(b) In the first paragraph of the response immediately below the title of the case, there shall appear the identity of the responding party, the set number, and the identity of the demanding party.

(c) Each statement of compliance, each representation, and each objection in the response shall bear the same number and be in the same sequence as the corresponding item or category in the demand, but the text of that item or category need not be repeated.

(d) If a party objects to the discovery of electronically stored information on the grounds that it is from a source that is not reasonably accessible because of undue burden or expense and that the responding party will not search the source in the absence of an agreement with the demanding party or court order, the responding party shall identify in its response the types or categories of sources of electronically stored information that it asserts are not reasonably accessible. By objecting and identifying information of a type or category of source or sources that are not reasonably accessible, the responding party preserves any objections it may have relating to that electronically stored information.”

To sum up, a party responding to a request for production of documents may respond three ways: (1) by saying the party will produce responsive documents (called a statement of compliance); (2) by saying the party lacks the ability to comply with the demand; or (3) by raising an objection to the demand.

If a responding party opts for (2), that party must also “affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with the demand,” and must also identify the name and address of any person or organization who has possession, custody, or control of the requested item. §2031.230.

If a responding party raises an objection but only part of the request is objectionable, the responding party must provide a statement of compliance as to the part that is not objected to and identify the document or electronically stored information being withheld, along with the objection pursuant to which it is being withheld. §2031.240.

            2. Motions to Compel Further Responses

Code Civ. Proc. §2031.310 (a) provides that if, on receipt of a response to a demand for inspection, the demanding party deems a statement of compliance incomplete, a representation of inability to comply inadequate, or an objection to be without merit, the demanding party may more for an order compelling a further response to the demand. Procedurally, the motion must set forth specific facts showing good cause justifying the discovery sought, must be supported by a declaration demonstrating an attempt at informal resolution, and must be accompanied by a separate statement. Notice of the motion must be provided within 45 days of service of the verified response or any supplemental verified response. (Subds. (b)(c).)  Sanctions are to be imposed against a party who unsuccessfully makes or opposes a motion to compel further responses unless the court finds that the one subject to sanctions acted with substantial justification or other circumstances make the imposition of sanctions unjust. (Subd. (h).)

B. Requests for Admission

            1. Format of Responses

The formatting requirements are set forth in Code Civ. Proc. §2033.210:

(a) The party to whom requests for admission have been directed shall respond in writing under oath separately to each request.

(b) Each response shall answer the substance of the requested admission, or set forth an objection to the particular request.

(c) In the first paragraph of the response immediately below the title of the case, there shall appear the identity of the responding party, the set number, and the identity of the requesting party.

(d) Each answer or objection in the response shall bear the same identifying number or letter and be in the same sequence as the corresponding request. The text of that request need not be repeated, except as provided in paragraph (6) of subdivision (e).

 . . .

§2033.220 provides:

(a) Each answer in a response to requests for admission shall be as complete and straightforward as the information reasonably available to the responding party permits.

(b) Each answer shall:

(1) Admit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by the responding party.

(2) Deny so much of the matter involved in the request as is untrue.

(3) Specify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge.

(c) If a responding party gives lack of information or knowledge as a reason for a failure to admit all or part of a request for admission, that party shall state in the answer that a reasonable inquiry concerning the matter in the particular request has been made, and that the information known or readily obtainable is insufficient to enable that party to admit the matter.

Finally, §2033.230 provides:

(a) If only a part of a request for admission is objectionable, the remainder of the request shall be answered.

(b) If an objection is made to a request or to a part of a request, the specific ground for the objection shall be set forth clearly in the response. If an objection is based on a claim of privilege, the particular privilege invoked shall be clearly stated. If an objection is based on a claim that the matter as to which an admission is requested is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted.

            2. Motions to Compel Further Responses

Code Civ. Proc. §2033.290(a) provides that if, on receipt of a response to requests for admission, the requesting party deems that either an answer is evasive or incomplete or an objection is without merit, the requesting party may move for an order compelling a further response. Subdivisions (b) requires there be a declaration regarding an attempt at informal resolution and a separate statement. Subdivision (c) mandates that notice of the motion be provided within 45 days of the service of the verified response or any supplemental verified response. Subdivision (d) provides for sanctions.

III.      ANALYSIS

            A. Procedural History

            As an initial matter, it necessary to clarify which motions are at issue. On September 6, 2022, Jenkins filed a single motion to (a) compel Bell to provide responses to Form Interrogatories, Set One, (b) compel Bell to provide further responses to Requests for Production, Set One, and (c) compel Bell to provide further responses to Requests for Admission, Set One. The motion was set for hearing October 7, 2022. Bell filed her opposition to the motion on September 27, 2022. Appended to the opposition brief is an ex parte request to change the hearing date as she was not available on October 7.

            The next day, September 28, 2022, Jenkins filed two motions (captioned “Amended” Motions), one to compel further responses to Requests for Production, Set One, and the other to compel further responses to Requests for Admission, Set One. The amended motions were set for hearing November 18, 2022. The hearing on those two motions was moved to today’s date per ex parte order of October 4, 2022.

            As to Form Interrogatories, the parties reached informal resolution. (Notice of Stipulated Agreement Between Plaintiff and Defendant, filed October 10, 2022.)

            B. Requests for Production

Bell’s responses to the Requests for Production are not code-complaint. For example, in response to RFP No. 1 (“Please produce all documents which include any reference to the incident”), Bell responded, “Many documents have been provided in the Dropbox link. Discovery and investigation are ongoing, and Respondent reserves the right to amend and produce more documents as she can locate them, as time permits, and as facts develop.” In response to the RFP, Bell was required to either (1) provide a statement of compliance, (2) indicate she lacks the ability to comply with the demand (and why), or (3) objection to the demand. Jenkins is entitled to a further response containing either a statement of compliance or inability to comply as the time for objecting has expired.

Bell’s response to RFP Nos. 3, 4, 5, 6, 8, 9, 10, 11, 15, 16, 17, 19, 20, 22-39, and 41-57 is the same and further responses are required for the same reason.

In response to RFP No. 58 (“Please produce all reports, memorandum, forms, correspondence, and writings, relating to Interlude Entertainment, LLC’s interaction with the Screen Actor’s Guild”), Bell responded, “Everything produced for this Request is identical to what Bell would provide for Request No. 7.” This response does not comply with the Discovery Act either. Bell must provide a response that states whether she will comply or cannot comply and why.

The parties both spend quite a lot of time discussing the various methods Bell has used in her attempts to produce responsive documents, including via DropBox. But production is not before the Court. The Discovery Act requires that first a responding party must provide responses to the requests for production and then, as to those to which a statement of compliance has been made, the responding party must produce the responsive documents. If a party responds to a request for production by indicating that responsive documents will be provided and thereafter fails to produce responsive documents, the demanding party must follow-up with a motion to compel compliance.  Code Civ. Proc. §2031.320. This motion concerns only step one, the sufficiency of the responses.

The gist of Bell’s opposition brief is that she is trying her best to produce the documents but has had technical difficulties of one kind and another. To the extent this means she intends to comply with the RFPs at issue, and to the extent the parties are seeking guidance regarding the production of documents, an Informal Discovery Conference may be useful. Oral argument is invited on this topic.

C. Requests for Admission

Before analyzing the Requests for Admission at issue, it is important to recall what purpose RFAs are meant to serve.

“California courts have recognized that requests for admission differ in purpose from other commonly used discovery devices, such as interrogatories, document demands, or depositions. [fn. 5] Although the requests for admission mechanism is included in the Civil Discovery Act (Code Civ. Proc., § 2016.010 et seq.), it has long been recognized that requests for admission are ‘not really a discovery procedure.’ (Citations.)” City of Glendale v. Marcus Cable Associates, LLC (2015) 235 Cal.App.4th 344, 352.

“Requests for admissions differ fundamentally from other forms of discovery. Rather than seeking to uncover information, they seek to eliminate the need for proof. (Demyer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393, 401, 42 Cal.Rptr.2d 260 [also observing that elimination of need for proof can be achieved by stipulation at any time before trial], disapproved of on other grounds in Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 983, fn. 12, 90 Cal.Rptr.2d 260, 987 P.2d 727.) It reasonably follows that the aims of the statutes are different. [¶] ‘The primary purpose of requests for admissions is to set at rest triable issues so that they will not have to be tried; they are aimed at expediting trial. [Citation.]’” Stull v. Sparrow (2001) 92 Cal.App.4th 860, 864-865, bolding added. See also Orange County Water Dist. v. The Arnold Engineering Co. (2018) 31 Cal.App.5th 96, 115-116.

Jenkins requests further responses to Requests for Admission Nos. 6, 10, 17, 18, 23, 24, and 26. One consideration in the analysis of an RFA is whether it appears to be aimed at setting to rest a triable issue and eliminate the need for Jenkins to prove that issue. Also, Jenkins challenges several of Bell’s responses on the basis of improper objection. While Bell’s responses sometimes take issue with the wording, she in fact raised no objections.

RFA No. 6 asks Bell to admit or deny that she has “no ownership rights to the screenplay.” Bell responded, “Neither, based on the phrasing of the question. As an individual I do not have an ownership right in the screenplay. But as a partner in Interlude Entertainment, LLC, I do have rights to the screenplay because those rights were assigned to the LLC prior to the start of Principal Photography, as is required by SAG in order to become a SAG-signatory production. The plaintiff is aware of this and consented to the assignment of the screenplay copyright to the LLC, knowing I was a partner in the LLC. Without this consent, we could not have made the film.”

Jenkins argues that this response does not comply with the code because it neither admits nor denies the fact. But Section 2033.220 instructs that responses to RFAs are to be as complete and straightforward as the information permits; this section also allows a responding party to admit so much of the matter as is true and deny so much of the matter as is untrue. Bell’s response fairly well does just that. She explains that the ownership interest she asserts is not direct but through the LLC, so she can neither admit nor deny that she has an ownership interest in the screenplay. No further response is needed.

RFA No. 10 asks Bell to admit or deny that “at no time did Plaintiff agree with you to a specific ownership interest in Interlude.” Bell responded, “Neither. During the course of our business relationship surrounding ‘Bed & Breakfast’ which began in 2015, Jenkins and Bell had discussed a few different ownership interest splits between the two of them regarding the LLC formed for the purpose of producing the film.” This sounds like there was no agreement as to a specific ownership interest. If so, Bell cannot avoid responding with an admission. If this is not the case, if Bell contends the parties did agree on a specific ownership interest, Bell should deny the RFA. Either way, a further response is required.

RFA No. 17 asks Bell to admit or deny that “prior to forming Interlude, [Bell] did not disclose to [Jenkins] that [Bell] intended to obtain for [herself] an ownership interest in the screenplay.” Bell responded, “Neither. Question is poorly and inaccurately phrased. Refer to my answer to Request for Admission No. 6. The chain of title of the screenplay was discussed and agreed upon by Jenkins and Bell in order to facilitate the production of the film.” Here again, Bell is stating as clearly as she can that her ownership interest is not direct but through Interlude; further, she denies that Jenkins was not aware this would be the case, stating instead it was discussed and agreed upon. No further response is required.

RFA No. 18 asks Bell to admit or deny that “you intended for Plaintiff to rely on you to form Interlude.” Bell responded, “Neither. I did not intend for the Plaintiff to rely upon me to form Interlude. I formed Interlude at Plaintiff’s request, after years of discussion surrounding LLC formation, and as part of my duties as Line Producer and Producer.” It is not clear what issue Jenkins intends to put to rest with the RFA. Oral argument is invited.

RFA No. 23 asks Bell to admit or deny that “no verification of the genuineness of Plaintiff’s digital signature exists.” Bell responded, “I don’t understand what you mean by ‘verification of genuineness.’” The Court also does not understand what is meant by this RFA. Oral argument is invited.

RFA No. 24 asks Bell to admit or deny that “Plaintiff never agreed with you to the terms of the OPAGMT.” (RFA No. 20 makes clear that OPAGMT refers to an operating agreement.) Bell responded, “There was so much going on in preparation for production that I don’t recall if EVERY term and word in the OPAGMT was agreed on between Bell and Jenkins. But some of the terms had been discussed and agreed upon between Bell and Jenkins.” This response is sufficient in that it admits so much of the RFA as can be admitted (i.e., Bell does not recall whether every term was agreed upon) and denies so much of the RFA as can be denied (i.e., Bell contends that some terms had been agreed upon). No further response is required.

RFA No. 26 asks Bell to admit or deny that “Plaintiff made capital contributions to Interlude to be used exclusively to produce the film.” Bell responded, “Neither. The money used to initially finance the production of the film was transferred into the joint LLC bank account by Jenkins as an INVESTOR with the intention of receiving ROI and Backend Points, NOT as a Capital Contribution by a Member of the LLC. This is an important distinction in filmmaking and film financing.” This is in essence a denial. Bell’s response clarifies that her contention is Jenkin’s financial contribution was not a capital contribution by a member. No further response is required.

            D. Monetary Sanctions

            Jenkins requests monetary sanctions against Bell in connection with each of his motions. As to the RFA motion the request is denied on the basis that the motion was largely denied.

            As to the RFP motion, the request is granted. Code Civ. Proc. §2031.310(h) requires that sanctions be issued where a motion for further responses is granted except where the party subject to sanctions acted with substantial justification or where the imposition of sanctions would be unjust. Bell’s opposition largely focuses on the fact that she is not represented by counsel and that she has a fee waiver. The former argument has little merit because “the rules of civil procedure must apply equally to parties represented by counsel and those who forgo attorney representation.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.) The latter argument is entitled to at least some weight. Where a party is impoverished and monetary sanctions would cause a hardship, at least one case has held that this condition satisfies the condition that the imposition of sanctions would be unjust. (Kwan Software Engineering, Inc. v. Hennings (2020) 58 Cal.App.5th 57, 77.)

            Jenkins has supported his request for monetary sanctions in the amount of $717.90 with evidence. (Declaration of Nino Posella, ¶14.) Posella’s hourly rate of $375 is reasonable and the time requested for preparation of this motion, separate statement, and declaration (1.75) is also reasonable. Given Bell’s fee waiver, the Court will cut this to one hour ($375) and also return to Jenkins the filing fee of $61.65, for a total of $436.65.

IV.      CONCLUSION AND ORDER

Jenkins’s motion to compel further responses to Requests for Production, Set One, is granted. Bell is ordered to provide further verified responses to Requests for Production Nos. 1, 3, 4, 5, 6, 8, 9, 10, 11, 15, 16, 17, 19, 20, 22-39, and 41-58 that comply with the requirements of Code Civ. Proc.  Sections 2031.210 and 2031.230. Bell is ordered to pay monetary sanctions in the amount of $436.65 to Bell. To the extent the parties desire the Court’s assistance with the issue of production, they are urged to request an Informal Discovery Conference.

Jenkins’s motion to compel further responses to Requests for Admission, Set One, is granted as to RFA No. 10 and denied as to RFA Nos. 6, 17, 24, and 26. Based on oral argument, further responses as to RFA No. 18 is _____________, and as to RFA No. 22 is ___________.

Bell is ordered to provide all further verified responses within 10 days of service of this order. Jenkins is ordered to provide notice of this order.

Dated:                                                                        _______________________________

                                                                                          MARGARET OLDENDORF

                                                                                 JUDGE OF THE SUPERIOR COURT