Judge: Mark A. Young, Case: 20STCV40792, Date: 2022-08-12 Tentative Ruling

Case Number: 20STCV40792    Hearing Date: August 12, 2022    Dept: M

CASE NAME:           Rusek v. 8767 Wilshire Blvd. LP, et al.

CASE NO.:                20STCV40792 

MOTION:                  Motion to Compel Further Responses to Request for Production Set Two

HEARING DATE:   8/12/2022

BACKGROUND

On October 23, 2020, Plaintiff Krystyna Rusek filed a complaint against Defendants 8767 Wilshire Blvd., L.P. (“8767 Wilshire”), Thyssenkrupp Elevator Corporation, Thyssenkrupp Elevator Manufacturing, Inc., and 5 Star Elevator Service, Inc. (Doe 1). Plaintiff alleges that on November 5, 2018, she was injured by an elevator door and that Defendants were responsible for the maintenance and operation of that elevator.  

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. (Code Civ. Proc., § 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 ISSUES

The Court finds that the procedural requirements have been met.

Analysis

This motion pertains to request for productions (RFP), set two nos. 113-115, through which Plaintiff seek all communications and documents exchanged between 8767 Wilshire and 5 Star regarding the Subject Elevator or its maintenance.

As set forth in the motion, 5 Star contractually promised to submit and/or maintain on 8767 Wilshire’s Property detailed reports relating to its routine inspection, maintenance, and repair work to the Subject Elevator. (Muller Decl., Ex. 1.) 8767 Wilshire produced none of those inspection, maintenance, or repair reports despite having them on-site at their Property in the elevator room and/or with its agent/contractor 5 Star. (Muller Decl., ¶ 4.) In response to a request for admission, 5 Star denies that these contractually required documents were never generated and never existed. (Muller Decl., ¶ 5, Ex. 2.) As such, there is evidence before the Court that these documents exist (or existed) and are within 8767 Wilshire’s custody, possession or control.

On September 13, 2021, Plaintiff served her RFPs on 8767 Wilshire. (Muller Decl., ¶ 6, Ex 3.) Plaintiff requested 8767 Wilshire for copies of all documents and communications exchanged between 8767 Wilshire and 5 Star relating to the November 2018 incident.  On November 24, 2021, Plaintiff filed a motion to compel responses to her RFP and for sanctions in the amount of $2,660. Defendant served responses on December 23, 2021, and concurrently served a few dozen pages of documents that were identical to documents produced in February 2021 in response to RPD Set One. (Muller Decl., ¶ 9, Ex. 4.) The parties agreed to an IDC, which was held on March 22, 2022. (Id., ¶ 11.)

At the IDC, 8767 Wilshire did not dispute that they owed a further response, but instead agreed to “serve supplemental responses . . . to clearly bring its responses to specific compliance with code . . ..” (Id., ¶ 12, Ex 5.) 8767 Wilshire’s counsel agreed, amongst other things, to provide a response that (1) they could not find the file that 5 Star claims to have created, (2) cure the gap in the maintenance records produced, and (3) produce all records from 2015 to date. (Id., Ex. 6.) The parties also stipulated to reduced sanctions in the amount of $750.

On April 20, 2022, 8767 Wilshire served supplemental responses to RFP Set Two. (Muller Decl., ¶ 15; Ex. 7.) Supplemental Responses to Requests Nos. 113-115 were near identical to the original deficient responses. The supplemental responses state that 8767 Wilshire will comply with RPDs 113-115, and attached responsive documents as Exhibits A and B. The parties engaged in further meet and confer efforts regarding the deficiencies, but 8767 Wilshire never provided the promised further responses. (Muller Decl., ¶ 16, Ex. 8.)

Based on the record, the Court grants Plaintiff’s request for further production.  Plaintiff demonstrates good cause justifying the demands. The maintenance agreements suggest that 8767 Wilshire has control of the requested documents either through 5 Star or their own records. For instance, co-Defendant TKEC conducted routine inspection, repair, and maintenance of the Subject Elevator until June 30, 2018, when 5 Star undertook such duties. 5 Star was similarly required to maintain these documents at 8767 Wilshire’s property. (Muller Decl., Ex. 1 ¶¶ 1.02, 2.01, 2.02, 3.04, 3.12, and 4.03.) Given that the elevator allegedly injured Plaintiff in November 2018, the records are critical to the resolution of this action.

Furthermore, 8767 Wilshire does not dispute that it has not produced all documents in its possession, custody, and/or control responsive to this Request. This conclusion is reinforced by 8767 Wilshire’s meet and confer efforts.  In any event, 8767 Wilshire has not explained their inability to obtain the documents per section 2031.220.

Accordingly, the motion is GRANTED. 8767 Wilshire is to serve verified further supplemental responses to Plaintiff’s RFP, Set Two, Nos. 113 – 115, without objection within ten (10) days.

Plaintiff further requests an award of $3,850 in monetary sanctions, jointly and severally, against Defendant 8787 Wilshire and its counsel Law Offices of Kirk & Myers. Sanctions are mandatory. Any party that unsuccessfully makes or opposes a motion to compel a further response must be sanctioned “unless [the Court] finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (CCP, § 2031.310(h).) As 8767 Wilshire failed to oppose, 8767 Wilshire failed to show that they acted with substantial justification. That said, the Court finds the request excessive because it includes an anticipated 2.0 hours responding the opposition, when the motion was ultimately unopposed. Therefore, the Court grants sanctions in the reduced amount of $2,492.50, inclusive of costs, against 8767 Wilshire and its counsel of record payable within 30 days.