Judge: Mark A. Young, Case: 21SMCV01472, Date: 2023-03-09 Tentative Ruling

Case Number: 21SMCV01472    Hearing Date: March 9, 2023    Dept: M

CASE NAME:           Strategic Legal Practices, APC, v. Consumer Law Experts, P.C., et al.

CASE NO.:                21SMCV01472

MOTION:                  Motion to Compel Compliance

HEARING DATE:   3/9/2023

LEGAL STANDARD

Code of Civil Procedure section 2031.320 sets forth the conditions to make a motion to compel compliance with an inspection demand. That section provides, “If a party filing a response to a demand for inspection, copying, testing, or sampling … thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that party’s statement of compliance, the demanding party may move for an order compelling compliance.” (CCP § 2031.320(a).) The Civil Discovery Act places no time limit on such motions. (Standon Co. v. Superior Court (1990) 225 Cal.App.3d 898, 903.) 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. (CCP § 2031.320(b).)

Analysis

Plaintiff SLP moves to compel the following:

1. For an Order compelling Beck to produce all non-privileged documents responsive to Request Nos. 34-37, 39-41, and 43-44 within ten days of the Court’s Order on this Motion;

2. For an Order compelling Beck to serve, within ten days of the Court’s Order on this Motion on Plaintiff, written confirmation, verified under oath, that all documents responsive to Request Nos. 34-37, 39-41, and 43-44 have been produced;

3. For an Order compelling Kim, Santos, and Garza to produce all non-privileged documents responsive to Request Nos. 19-23 and 30;

4. For an Order compelling Kim, Santos, and Garza to serve, within ten days of the Court’s Order on this Motion on Plaintiff, written confirmation, verified under oath, that all documents responsive to Request Nos. 19-23 and 30 have been produced; and

5. For an award of monetary sanctions in the amount of $6,925.00 against Beck, Kim, Santos, and Garza.

Motion to Compel: Beck

The motion to compel as to Beck seeks to compel compliance with a statement that Beck has agreed to produce documents pursuant to Request Nos. 34-37, 39-41, and 43-44. (CCP § 2031.320(a).)  On October 18, 2022, Beck served responses and objections, agreeing to produce documents in response to several Requests, including Request Nos. 34-37, 39-41, and 43-44. (Eagan Decl., Ex. B.) As of the date the motion was filed, no production was made.

In opposition, Beck’s counsel admits that he mistakenly forgot to share Beck’s production via Dropbox, despite his initial representation that he would do so. (Long Decl. ¶¶ 8-9, Ex. E.) It was not until counsel for Beck read Plaintiff’s Motion that he realized he had forgotten to share a Dropbox folder containing Beck’s production. Counsel for Beck copied the production onto a USB drive and had it messengered to Plaintiff’s counsel on February 10, 2023, and notified Plaintiff’s counsel of the status and that the documents were being delivered via messenger that day. (Long Decl. ¶ 10, Ex. F.)  Thus, the motion to compel Beck’s compliance is substantively mooted by his submission of responses to the above discovery.

Counsel’s mistake resulted in Plaintiff having to file this motion.  As such, the Court believes sanctions are warranted against counsel only.  Accordingly, Plaintiff’s request for sanctions is GRANTED in the reasonable amount of $1,625.00 against Beck’s counsel of record, Geoffrey S. Long, only.

Motion to Compel: Kim, Santos, and Garza

Plaintiff requests that Kim, Santos, and Garza produce all non-privileged documents responsive to Request Nos. 19-23 and 30, and provide written, verified confirmation that all documents responsive documents have been produced.  Plaintiff propounded its Requests for Production of Documents, Set One to Defendants Garza, Kim and Santos on September 14, 2023. (Eagan Decl., ¶ 5, Exs. D, E, & F.) Defendants responded with objections to Request nos. 19-23 and 30. 

On January 17, 2023, the parties meet and conferred regarding these discovery responses.  On January 17, 2023, Plaintiff’s counsel sent amended requests that limited the time frame of the responses sought. (Id. ¶ 7.) In response, counsel for Garza, Kim and Santos (Mr. Long) purportedly agreed to produce responsive documents. Specifically, counsel stated that he found all the demands “acceptable with the exception of No. 24 re phone records. You have not narrowed it at all, and even if narrowed my clients are not inclined to search for phone records 5 years ago and I do not believe they are obligated to. That said, if you want to try to narrow down No. 24 I am open to considering proposals.” (Id., Ex. J.)

Later, on February 7, 2023, Mr. Long stated:

“I see that you also finally, after almost 3 weeks, responded to the other portion of my below email re RFP No. 24 to Garza, Kim and Santos, so I need to review that. My clients are not serving more than one supplemental response to this set of RFPs, so I want to resolve No. 24, if possible, first. As such, I have not even asked my clients to look to see if they have documents responsive to revised RFP Nos. 19-23 and 30, and am not producing documents, if there are any, prior to serving the supplemental written responses. That all said, the earliest I expect this will be done is the end of next week.”

(Id., Ex. J.)

Nowhere in the record does Plaintiff provide that Garza, Kim and Santos made any statement of compliance as to Request Nos. 19-23 and 30, i.e., that they would produce documents pursuant to such requests. At best, counsel represented during meet and confer efforts that they would provide a written response, not production. Simply put, this is not the proper subject of a compel compliance motion.

Accordingly, the motion is DENIED and sanctions will not be awarded in favor of Plaintiff.

The Court further notes that Plaintiff filed two discovery motions as one.  In the future, Plaintiff must file separate motions.  In addition, the notice of motions should set forth the code section forming the basis for the motion.