Judge Margaret L. Oldendorf, Case Number: 22AHCV00035, Date: 2023-05-25 Tentative Ruling

Judge: Margaret L. Oldendorf, Case: 22AHCV00035, Date: 2023-05-25 Tentative Ruling

This is an Unruh action by a visually impaired person who requires screen-reading software in order to access the internet. Plaintiff Perla Mageno alleges that Defendant Pixi, Inc. offers its products on a publicly available website that is not fully accessible to legally blind persons such as herself.

Pixi served an inspection demand of the computer Mageno used to access its website. In a prior motion, Pixi’s motion to compel a further response to that inspection demand was granted, subject to certain limitations on the inspection itself. Mageno’s further response indicated that she would allow the inspection, subject only to an agreement as to a date and time. But when Pixi attempted to schedule the inspection, Mageno refused to permit it until the parties could come to an agreement on the vendor who would perform the inspection. This is an improper refusal to comply with her prior statement of compliance. Pixi is entitled to the relief requested, as well as to an award of monetary sanctions for having to bring this motion.

(a) If a party filing a response to a demand for inspection thereafter fails to permit the inspection in accordance with that party’s statement of compliance, the demanding party may move for an order compelling compliance.

(b) Except as provided in subdivision (d) [regarding loss of electronically stored information], the court shall impose a monetary sanction 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.

In a previous motion, Pixi sought and obtained an order requiring Mageno to provide a further response to RFP #1, which sought inspection of all devices she used to visit the website at issue in this litigation. Mageno had objected to the RFP on the grounds it (1) violated her constitutional, statutory, and common law right to privacy; (2) deprived her (a person who is legally blind) of her primary ability to access the world; (3) was a burdensome, harassing, and oppressive request; and (4) sought irrelevant information. In ruling on the prior motion, the Court took into consideration objections (1) and (2) in fashioning an order. The order that the Court ultimately issued overruled Mageno’s objections within the confines of a more narrowly tailored inspection request. Specifically, the order provided:

“RFP# 1 is understood to be a request to inspect Mageno’s devices on a very limited basis. The inspection is limited to a remote search of the devices’ web browser history. With that limitation in place, Mageno’s objections are overruled. Mageno is ordered to provide a further response within 10 days.”

On February 10, 2023, Mageno served her further response. The response improperly raises the same objections that were previously overruled. Following those improper objections, Mageno responded, “Subject to and without waiving said objections, Responding Party responds as follows: ‘Pursuant to the Court’s February 2, 2023 Order that considered Defendant’s representations regarding the limited scope of an inspection of Plaintiff’s computer, at Defendant’s cost Plaintiff will allow a remote search of her web browser on her computer to look for visits to Defendant’s website at a date and time mutually agreed by the parties.’”

On March 15, 2023, Pixi’s counsel wrote to Mageno’s counsel, stating that Pixi would like to schedule the remote inspection of Mageno’s computer. The letter indicates that Pixi was finalizing an agreement with Dan Loper of Granite Discovery to perform the inspection and that he was available on March 24, 2023. Mageno’s counsel responded on March 28, 2023, stating that Mageno did not agree to Granite, and sought to impose additional conditions on the inspection. In further email exchanges, Pixi’s counsel argued that none of these conditions were appropriate given the Court order. Mageno’s counsel has insisted that she has some say in selecting the vendor who will perform the inspection. See generally the meet and confer letters attached as Exhibit C to the Declaration of Scott L. Menger.

Mageno has refused to make her computer available for inspection unless and until there is an agreement about who will perform the inspection. Mageno cites no legal authority supporting the argument that a party subject to an inspection demand has a say in who performs the inspection.

Pixi, as the party demanding inspection, is required to select a vendor and pay the cost of the inspection.[1] Pixi identified a vendor (Granite Discovery) in late March 2023. Mageno was free to conduct her own research into the qualifications of the vendor and, if she had found anything objectionable, raise that concern to Pixi. In that hypothetical situation, if the parties were unable to resolve the matter informally, Mageno could have sought a protective order by ex parte application.

Mageno’s refusal to agree on a date for inspection until the parties agree on the vendor is therefore a refusal to comply with her prior statement of compliance. Thus, pursuant to Code Civ. Proc. §2031.320(a), the motion is granted.

Mageno raises other unpersuasive arguments in opposition to this motion. There is no meet and confer requirement for a motion to compel compliance pursuant to Code Civ. Proc. §2031.320. And, Pixi was not required to re-notice its inspection demand and provide new location and date information following the issuance of the February 2, 2023 order. The location (remote) was incorporated in the prior order. The time for inspection would be as soon as the parties could reasonably arrange it, because the 30-day “reasonable time” for compliance (Code Civ. Proc. §2031.030(c)(2)) had expired long ago.

Pixi requests monetary sanctions in the amount of $6,860. This amount includes monetary sanctions that were requested in connection with the prior motion, but not awarded. While sanctions are appropriate and provided for by statute, they are awarded only for the cost of the present motion.

The Menger motion indicates that Pixi’s counsel spent 6 hours drafting this motion and expects to spend an additional 2 hours drafting a reply and appearing at the hearing. The Court finds that 5 hours for drafting the initial papers, plus 2 for reply and appearance at the hearing is reasonable. The Court also finds that Menger’s $490 hourly rate is reasonable. Seven hours at $490 is $3,430.

Mageno’s request for monetary sanctions is denied for both procedural and substantive reasons. Substantively, the request is denied because Pixi’s motion is being granted. Procedurally it would have been denied anyway, as the declaration offered in support of the request for sanctions, while captioned as the “Declaration of Tristan P. Jankowski,” states in the opening sentence, “I, David Fitzgerald, declare as follows.” It is then signed by Jankowski. This document is of no evidentiary value.

Pixi’s motion for an order compelling Mageno to comply with her statement of compliance is granted. Mageno is ordered to make her computer available for remote inspection within ten days of notice of this order. Mageno and her attorneys of record, jointly and severally, are ordered to pay monetary sanctions in the amount of $3,430 to Pixi within 30 days of notice of this order.

[1] San Diego Unified Port Dist. v. Douglas E. Barnhart, Inc. (2002) 59 Cal.App.4th 1400, 1405 [although parties are expected to bear “expenses typically involved in responding to discovery requests,” “When a party demands discovery involving significant ‘special attendant’ costs beyond those typically involved in responding to routine discovery, the demanding party should bear those costs.”].