Judge Mark A. Young, Case Number: 23SMCV00918, Date: 2024-08-30 Tentative Ruling

Judge: Mark A. Young, Case: 23SMCV00918, Date: 2024-08-30 Tentative Ruling

Case Number: 23SMCV00918 Hearing Date: August 30, 2024 Dept: M

CASE NAME: Nourmand v. Marva General Construction Inc., et al.

CASE NO.: 23SMCV00918

MOTION: Motion to Compel Further Discovery

HEARING DATE: 8/30/2024

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.) Section 2017.020(a) vests the Court with authority to limit the scope of discovery if the burden, expense, or intrusiveness of the discovery sought “clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” Code of Civil Procedure section 2019.030 directs the Court to consider the needs of the case, amount in controversy, and the importance of the issues at stake in the litigation, and to consider whether the discovery being sought is unreasonably cumulative or duplicative, or is obtainable by a more convenient or less expensive or less burdensome way, when deciding whether to restrict the frequency of extent of use of an authorized discovery method.

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. (See 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.)

Analysis

Defendant Marva General Construction Inc. moves to compel Plaintiff Stephen Said Nourmand to provide further verified responses and production of responsive documents to Defendant’s Request for Production of Documents, Set One, Nos. 1-6, 8, 9, 10, 11, 12-29, 30, 31-34, 35, 36-43, and 45-46, within ten days. Defendant seeks monetary sanctions against Plaintiff and his counsel of record, Michael E. Friedman, Esq, and Law Office of Steven R. Friedman, in the amount of $2,060.00. Plaintiff has filed a late opposition, indicating that he has served further responses, and requesting reduced sanctions against himself and his counsel.

On November 21, 2023, Defendant propounded the subject discovery which sought information and documents regarding Plaintiff’s liability and damages claims. (Farkhondeh Decl., ¶ 2., Ex. A.) Following several extensions, Plaintiff electronically served his responses to the subject discovery on February 26, 2024. (Farkhondeh Decl., ¶ 7., Ex. F.) Plaintiff asserted boilerplate, unmeritorious objection-only responses to request nos. 1-6, 8, 9, 12-29, 30, 31-34, 36-43, and 45-46 and did not produce any responsive documents. Plaintiff asserted that he would produce documents responsive to Nos. 10, 11, 30, and 35, but failed to produce any documents. (Id., ¶ 8.) On March 1, 2024, regarding his responses to written discovery, including RFP Nos. Nos. 1-6, 8, 9, 10, 11, 12-29, 30, 31-34, 35, 36-43, and 45-46, the parties met and conferred and participated in an Informal Discovery Conference. During the IDC, Plaintiff agreed to provide further responses and documents by June 28, 2024. (Id., ¶ 11., Ex. H.) Plaintiff reiterated this agreement in writing. (Id., ¶ 12., Ex. I.) Despite these agreements, Plaintiff did not provide any further responses or production of responsive documents by that date. (Id., ¶ 13.) Counsel also provides good cause for production. The subject RPDs seek information that is material and reasonably necessary to prepare a defense in this case. (Farkhondeh Decl., ¶ 14.) Plaintiff therefore has the burden to justify his objections-only responses.

In opposition, Plaintiff proffers supplemental responses. Defendant claims that several issues remain with the supplemental responses. Defendant argues that Plaintiff failed to produce documents in response to several requests. Defendant argues that Plaintiff’s responses to nos. 31-33 are not code compliant. Defendant claims to have not received any responsive documents in response to nos. 38-42. (Supp. Farkhondeh Decl., ¶ 3.)

As to RPD nos. 31-33, Plaintiff provides the repeated response: “After a diligent search and reasonable inquiry, Responding party is not in possession, custody, or control of any such documents except those related to the injury which is the subject of this action. Plaintiff has produced on August 19, 2024, all responsive documents in his possession, custody, or control.” (Emphasis added.). Plaintiff claims that, after a diligent search, he does not have possession of responsive documents, except for those relevant documents in his possession. Ignoring the contradiction, if Plaintiff does not have possession, custody, or control of any responsive documents, Plaintiff still must provide certain information on the nature of this inability (whether the documents never existed, have been destroyed, etc.) and on any persons or organizations believed to have such documents. (CCP §§ 2031.230, 2031.240.) Plaintiff has failed to provide such information. Therefore, further responses are required. If there are relevant documents that have been produced, they must be identified by bates number.

As to RPD nos. 38-39, Defendant sought documents related to Plaintiff’ claim for wage loss and loss of earning capacity. Plaintiff provides the following response: “Plaintiff has produced on August 19, 2024 all responsive documents in his possession, custody or control except for attorney client privileged documents and attorney work product document. If additional information is requested, Plaintiff is willing to meet and confer regarding any additional documents sought.” These responses are facially code-compliant, and state that Plaintiff served all responsive documents.

As to RPD nos. 40-42, Plaintiff has not provided code-compliant responses. Plaintiff provided the following relevant responses:

RPD no. 40: Plaintiff is self employed, but is not producing Plaintiff’s tax returns. Plaintiff has produced documents responsive to his damages claim on August 19, 2024.

RPD nos. 41-42: Plaintiff has produced on August 19, 2024 responsive documents in his possession, custody or control except for attorney client privileged documents and attorney work product document and those documents protected by the taxpayer privilege and other financial privacy. If additional information is requested, Plaintiff is willing to meet and confer regarding any additional documents sought, though Plaintiff has provided the documents reflecting the income and loss.

Simply put, the responses to RPD nos. 40-42 are incomplete statements of compliance. In each response, Plaintiff claims to have produced responsive documents in his possession, custody or control except for privileged documents. This does not state that he will or has produced all responsive documents in his possession, custody or control. Also, the responses imply that other documents exist or are being withheld, as Plaintiff limited his production to only documents reflecting “damages” or “income and loss,” even though the RPDs had no such limitations. Plaintiff has not provided a privilege log or otherwise shown any basis for his claim of attorney-client privilege, taxpayer privilege, or foundation for other privacy concerns. (CCP § 2031.240(c).) Further responses are therefore required as to RPD nos. 40-42.

Defendant contends that further production is necessary as to RPD no. 38-42, because Plaintiff did not serve any responsive documents to these RPDs. (Supp. Farkhondeh Decl., ¶ 3.) Plaintiff, on the other hand, avers in the discovery responses that he produced the responsive documents on August 19, 2024. Neither party strongly evidences their claim that there was or was not any production on these RPDs. That said, the Court will hold Plaintiff to his IDC agreement, and require that all responsive, non-privileged documents to RPD nos. 38-42 be produced. The Court will discuss with counsel whether any documents are being withheld as to these RPDs.

Accordingly, the motion to compel further responses is GRANTED as to RPD nos. 31-33, 40-42. Further production is ordered as to RPD nos. 38-42. Plaintiff must provide further responses and production within 10 days.

Defendant seeks monetary sanctions against Plaintiff and his counsel of record in the amount of $2,060.00, which accounts for 8 hours of counsel’s work at $250.00 per hour. (Farkhondeh Decl., ¶ 17.) 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.” (CCP, § 2031.310(h).) The above record shows that mandatory sanctions are appropriate against Plaintiff and counsel of record. Plaintiff’s counsel merely claims that he was busy with a long cause trial during winter 2023-2024. (Friedman Decl., ¶¶10-12.) This does not excuse Plaintiff’s discovery obligations. At best, this explains some of the delays experienced in February 2024. Counsel, however, does not explain why Plaintiff did not respond to the instant discovery in June 2024, months after the long cause trial ended in March 2024. Sanctions are therefore imposed in the noticed amount of $2,060.00 against Plaintiff and counsel of record. Sanctions are to be paid to Defendant’s counsel of record within 30 days.