Judge: Mark A. Young, Case: 19SMCV01861, Date: 2023-02-10 Tentative Ruling
Case Number: 19SMCV01861 Hearing Date: February 10, 2023 Dept: M
CASE NO.: 19SMCV01861
MOTION: Motion
to Compel Further Responses to Requests for Production
HEARING DATE: 2/10/2023
Legal
Standard
In
the absence of contrary court order, a civil litigant’s right to discovery is broad.
“[A]ny party may obtain discovery regarding any matter, not privileged, that is
relevant to the subject matter involved in the pending action . . . if the
matter either is itself admissible in evidence or appears reasonably calculated
to lead to the discovery of admissible evidence.” (CCP § 2017.010; see Davies v. Superior Court (1984)
36 Cal.3d 291, 301.)
If a party to whom a demand for
inspection, copying, testing, or sampling is directed fails to serve a timely
response, the propounding party may move for an order compelling response to
the demand. (CCP § 2031.300(b); see Sinaiko
Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007)
148 Cal.App.4th 390, 403-404.) However, when responses are served, the proper
motion is a motion to compel further responses, which is governed by CCP §§
2030.300 and 2031.310. A motion to compel further responses must set forth
specific facts showing “good cause” justifying the discovery sought by the
demand and must be accompanied by a declaration showing a “reasonable and good
faith attempt” to resolve the issues outside of court. (CCP §§ 2016.040,
2031.310(b)(2).)
A motion to compel further responses
to a demand for inspection or production of documents may be brought based on:
(1) incomplete statements of compliance; (2) inadequate, evasive or incomplete
claims of inability to comply; or (3) unmerited or overly generalized
objections. (CCP, § 2031.310(c).) A motion for order compelling
further responses “shall set forth specific facts showing good cause justifying
the discovery sought by the demand.” (CCP § 2031.310(b)(1).) Absent a claim of
privilege or attorney work product, the moving party meets its burden of
showing good cause by a fact-specific showing of relevance. (Kirkland v. Superior Court (2002)
95 Cal.App.4th 92, 98.) If the moving party has shown good cause for the RPDs,
the burden is on the objecting party to justify the objections. (Ibid.)
PROCEDURAL DEFECTS
Separate Statement
Motions to compel further responses
must always be accompanied by a separate statement containing the
requests and the responses, verbatim, as well as reasons why a further response
is warranted. (CRC, Rule 3.1345(a).) The separate statement must also be complete
in itself; no extrinsic materials may be incorporated by reference. (CRC, Rule
3.1345(c).)
Here,
Murrey failed to serve a separate statement. Instead, a statement was
appended to his declaration in support of the motion. Thus, Murrey has failed
to comply with the procedural requirements of his motion. Murrey is reminded to comply with this
requirement in any future filings.
Notice
Murrey
also failed to properly notice this motion. Murrey noticed this motion for
February 9, 2023. The motion was set for February 10, 2023. Thus, Murrey did
not meet the notice requirements. This defect alone would not require denial of
the motion since Lee has not been prejudiced.
Analysis
Substantively, Murrey requests further
responses as to RPDs, set 2, nos. 3-13, 15, and 17-22. Murrey contends
that these requests concern critical evidence, including comments and private
Facebook groups of Lee’s and Lee’s “many anonymous identities” (e.g., Chase
Hern).
A demand under Code of Civil Procedure
§ 2031.010 may be used to obtain inspection, copying, testing or sampling of “documents,
tangible things, land or other property, and electronically stored information”
(ESI) in the possession, custody or control of a party. (CCP § 2031.010(a).) Many
of the cited RPDs are hopelessly vague to support the demands. Most of the RPDs
are more akin to interrogatories than requests for production, since they do
not seek cognizable categories of documents, ESI, or tangible things For example:
RPD no. 3 request that Lee “Identify
the name(s), address(es), telephone number(s), email address(es) and any and
all other contact information of all the persons identified as users of the
anonymous “Chase Herran” email account…”
A request for Lee to identify such
information is not a request for documents, tangible things, land or other
property, or ESI. RPD nos. 4, and 20-22 also requests Lee to “Identify” certain
people or information. Thus, these RPDs each fail to
meet the basic requirement of section 2031.010(a).
RPD no. 5 requests “Any and all evidence
of private Facebook groups wherein plaintiff is a topic of discussion.”
This request likewise does not
request any documents, ESI, etc. Instead, it vaguely refers to evidence
generally, which could mean anything. RPDs nos. 7-8, 11-13, 15 and 19 all share
this defect. Similarly, RPD no. 9 vaguely requests “comments about Plaintiff’s
behavior in public places.” This does not apparently target any documents, ESI,
etc. (Cf. RPD no. 10: “Any and all comments about plaintiff’s behavior in
public places as mentioned in private Facebook groups.” Emphasis added.)
Thus, these RPDs also fail to meet the basic requirement of section
2031.010(a).
Only four RPDs seek concrete categories
of documents, ESI, etc.: RPDs nos. 6, 10, 17 and 18. As to RPD no. 10, the Court would not require
a further response. RPD no. 10 requests “Any and all comments about
plaintiff’s behavior in public places as mentioned in private Facebook groups.”
However, in response, Lee provided that “Without waiving objections, Defendant
will produce the documents as they come.” Murrey does not explain why this
response is not code compliant. Thus, no further response is necessary.
RPD no. 6 requests “Any and all comments
about plaintiff in private Facebook groups.” (Emphasis added.)
RPD no. 17 requests “Any and all comments
about plaintiff you have obtained from social media.” (Emphasis added.)
RPD no. 18 requests “Any and all images
of plaintiff you have obtained from social media.” (Emphasis added.)
Comments (within the context of
Facebook/social media) are ESI and properly sought via RPDs. Images are also
documents, tangible things, or ESI, and thus properly sought via these RPDs. These
requests could lead to the discovery of admissible evidence concerning Murrey’s
defamation claims against Lee. Thus, further responses are required as to RPDs
nos. 6, 17 and 18.
Relevantly, in opposition, Lee
states that she “has already responded. Defendant has produced any and all
comments and images of Plaintiff that she can find, anywhere, that relates to
this case.” Lee does not provide a declaration indicating that new responses
were served as to these RPDs. In reply, Murrey does not seem to take issue with
responses to RPDs 17-18. Instead, Murrey focuses on RPDs nos. 3, 4-7, 13, 15, and
19-22. Thus, the Court is uncertain whether documents were produced as to nos.
17-18. If Lee has made production as to those requests, then Lee should provide
a code-compliant statement indicating as such. That statement will be due within 10 days.
Additionally, Lee contends that she
is not a member of unspecified Facebook groups. Of course, Lee would only have
an obligation to produce ESI that she has access to (i.e., “possession, custody
or control”). If Lee cannot access certain comments or images, then Lee does
not have custody or control of that ESI. The Code accounts for such a
possibility. (See CCP § 2031.210(a)(1)-(2).) As such, Lee may respond as required
the code.
Accordingly, the Court requires
further responses as to RPDs no. 6, 17 and 18.
SANCTIONS
Sanctions are mandatory. The Court must
sanction any party that unsuccessfully makes or opposes a motion to compel a
further response, “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.” (See, e.g., CCP, § 2030.300(d).)
Given the mixed success of the
motion, the vagueness of most of the requests, and that Lee has apparently
produced the images/comments sought, the Court finds that the imposition of
sanctions would be unjust.