Judge: Mark C. Kim, Case: 22LBCV00043, Date: 2023-05-11 Tentative Ruling
Case Number: 22LBCV00043 Hearing Date: May 11, 2023 Dept: S27
Plaintiffs, Milan V. Balejka and
Maria Riza Balejka filed this action against Defendants, Theresa Hertzog, Kiat
Chan, and all persons claiming right, etc., to the subject property. Plaintiffs filed the action on 1/26/22. The complaint includes causes of action for
quiet title, fraud, negligent misrepresentation, and cancellation of
instruments.
On 2/1023, Defendants filed a
cross-complaint. The cross-complaint
includes causes of action for partition, fraud, breach of fiduciary duty, beach
of contract, unfair business practices, unjust enrichment, quiet title,
declaratory relief, and accounting.
a.
Procedural History
Defendants propounded demands for
production on Plaintiffs in September of 2022.
Plaintiffs retained an attorney in October of 2022, and extensions were
granted. Plaintiffs served responses to the
RPDs in December of 2022. The responses
indicated Plaintiffs would produce all non-privileged requested documents in
their possession, custody, or control.
Plaintiffs did not produce documents, and on 3/03/23, Defendants filed
this motion to compel production in compliance with the responses.
b. Opposition
Plaintiffs oppose the motion on the
grounds that (a) there should have been an attempt to meet and confer prior to
filing the motion, (b) Plaintiffs are producing documents on a rolling basis,
and (c) Defendants have failed to cooperate in drafting a mutually agreeable
protective order governing financial documents.
c. Meet
and Confer
A motion to compel compliance is
governed by CCP §2031.320. In Standon
Co., Inc. v. Superior Court (1990) 225 Cal.App.3d 898, 903, the Court explained
that there is no fixed time limit on a motion to compel compliance, and there is
no meet and confer requirement. Oddly,
there is also no specified time period, per the Code, for production of
documents after a statement of intent to produce. That being said, Plaintiffs served their
responses in December of 2022, Defendants emailed Plaintiffs on 1/05/23 and
indicated, among other things, that no documents had been received, and
Defendants did not file this motion until two months later. Also of note, Plaintiffs admit, in their
opposition, that not all documents have been produced to date. Because the promise to produce was made approximately
four months ago, the Court finds the motion is ripe despite any purported
failure to meet and confer.
d. Production
Ongoing
Plaintiffs also argue the motion is
unnecessary because production is ongoing.
However, as discussed above, it has been four months since Plaintiffs
promised to produce documents, and seven months since Defendants propounded
their demand for documents. This is more
than ample time for production to take place.
e. Protective
Order
The more difficult issue is whether
Defendants should be required to enter into a protective order in order to
obtain trust and other financial documents.
Defendants argue they cannot be required to do so because Plaintiffs
promised to produce documents subject only to a privilege objection, which is
not being asserted.
Plaintiffs’ responses are a bit
more complicated than Defendants maintain.
Plaintiffs’ responses included a variety of objections, then stated, “Subject
to, and without waiving, the foregoing objections, Responding Party responds as
follows: Responding Party will produce all non-privileged responsive documents
in his possession, custody, or control.”
Plaintiffs specifically indicated
they were asserting and not waiving their objections, which included a privacy objection. It is clear that Defendants are seeking private
financial documents. Defendants must
work with Plaintiffs to draft a mutually agreeable protective order before
Plaintiffs are obligated to provide the subject financial documents.
f. Sanctions
Both parties seek sanctions with the
moving and opposing papers. The Court
finds Plaintiffs should not be sanctioned because they acted with substantial
justification in seeking a protective order re: their private financial
documents. The Court finds Defendants
should not be sanctioned because they acted with substantial justification in
waiting many months to obtain documents that were promised and then ultimately
filed their moving papers when no documents had been produced.
Defendants are ordered to give notice.
Parties who intend to submit
on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as
directed by the instructions provided on the court website at www.lacourt.org. If the department
does not receive an email indicating the parties are submitting on the
tentative and there are no appearances at the hearing, the motion may be placed
off calendar. If a party submits on
the tentative, the party’s email must include the case number and must identify
the party submitting on the tentative. If any party does not submit on the
tentative, the party should make arrangements to appear remotely at the hearing
on this matter.