Judge: Mark E. Windham, Case: 21STLC05714, Date: 2022-12-12 Tentative Ruling
Case Number: 21STLC05714 Hearing Date: December 12, 2022 Dept: 26
MOTIONS TO COMPEL FURTHER RESPONSES TO REQUEST
FOR PRODUCTION OF DOCUMENTS AND REQUEST FOR ADMISSIONS
(CCP §§ 2031.310. 2033.290)
TENTATIVE
RULING:
Plaintiff Law Offices of Rafi Moghadam, APC’s Motion for
Order Compelling Further Responses to Request for Production of Documents, Set
One is GRANTED AS TO NO. 1 AND DENIED AS TO NO. 2.
Plaintiff Law Offices of Rafi Moghadam, APC’s Motion for
Order Compelling Further Responses to Request for Admissions, Set One is
GRANTED AS TO NOS. 1 AND 2.
DEFENDANT GOOGLE, LLC IS TO SERVE FURTHER RESPONSES TO
REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE, NO. 1, AND REQUEST FOR
ADMISSIONS, SET ONE, NOS. 1 AND 2, WITHIN 20 DAYS’ SERVICE OF THIS ORDER.
ANALYSIS:
On August 20,
2021, Plaintiff Law Offices of Rafi Moghadam, APC (“Plaintiff”) filed this
action for damages and forfeiture against Defendant Google, LLC (“Defendant”). Defendant filed an Answer on Janaury
18, 2022.
On September
6, 2022, Plaintiff filed the instant (1) Motion for Order Compelling Further
Responses to Request for Admission, Set One; and (2) Motion for Order
Compelling Further Responses to Request for Production of Documents, Set One
(“the Motions”) against Defendant. Defendant filed oppositions on November 10,
2022. Although Defendant filed a purported response to Plaintiff’s evidentiary
objections on November 22, 2022, Plaintiff did not file evidentiary objections
in connection with these Motions.
Discussion
Notice of the
motion to compel further must be given “within 45 days of service of the
verified response, or any supplemental verified response, or any specific later
date to which the requesting party and the responding party have agreed in
writing,” otherwise, the propounding party waives any right to compel a further
response. (Code Civ. Proc., § 2031.310, subd. (c); § 2033.290, subd. (c).) Plaintiff
served Defendant with Form Interrogatories, Set One, and Special Interrogatories,
Set One, on June 17, 2022. (Motions, Moghadam Decl., Exh. A.) Defendant served
responses by electronic mail on July 19, 2022. (Id. at Exh. B.) The
Motions were timely filed and served on September 6, 2022.
Next, the Motion must
be accompanied by a meet and confer declaration demonstrating a good faith
effort at informal resolution. (Code Civ. Proc., § 2031.310, subd. (b); §
2033.290, subd. (b).) The parties dispute whether Plaintiff’s meet and confer
effort was in good faith. Plaintiff called defense counsel to discuss the
discovery responses on September 2, 2022, two court days before the deadline to
file the instant Motions. (Motions, Moghadam Decl., ¶8.) Plaintiff contends
they fully discussed the discovery responses and it thereafter sent defense
counsel a written summary of the issues. (Id. at ¶8 and Exh. C, pp.
1-6.) Also, during the phone call, defense counsel raised concerns with
Plaintiff’s responses to Defendant’s discovery. (Opp., John Decl., ¶6.) In the
follow-up letter to the phone call, Plaintiff asked Defendant to supplement its
responses or provide an extension of the time to file these Motions by
September 6, 2022 at 11 am. (Motions, Moghadam Decl., Exh. C.) On the morning
of September 6, 2022, defense counsel sought further discussions by phone but
could not reach Plaintiff. (Opp., John Decl., ¶¶8-9 and Exhs. B-C; Motions,
Moghadm Decl., Exh. C, p. 8.) Plaintiff responded in the afternoon of September
6, 2022 that because no unconditional extension of the time to file these
Motions was offered and the 45-day deadline was imminent, the Motions would be
filed. (Opp., John Decl., ¶¶11-12 and Exhs. C-D; Motion, Moghadam Decl., Exh.
C, pp. 9-14.)
The Court agrees
with Defendant that Plaintiff’s meet and confer effort should have started earlier.
Plaintiff sought to meet and confer just two court days prior to the deadline
to file the instant Motions, with a long weekend in between. Plaintiff cannot
then complain to defense counsel that it was unavailable for discussions
because September 6, 2022 was a very busy day. (See Motion, Moghadam Decl.,
Exh. C, p. 14.) Indeed, Plaintiff’s communications on September 6, 2022 pushing
for an extension of the motion deadline appear disingenuous because they were
sent starting at 3:36 pm, yet the instant Motions had already been filed three
hours earlier. (See Motions, Moghadam Decl., Exh. C, p. 8; Motion, p. 1, filing
stamp.) Had Plaintiff sought to meet and confer at an earlier date—it had
Defendant’s responses from July 19, 2022—there would have been sufficient time
to further flush out the parties’ discovery disputes. However, this alone does
not make the meet and confer inadequate. As Plaintiff points out, the parties
held a robust meet and confer about the issues. Now that parties’ papers have
been filed, the Court exercises its discretion to rule on the Motions.
Finally, Cal. Rules
of Court Rule 3.1345 requires all motions or responses involving further
discovery contain a separate statement with the text of each request, the
response, and a statement of factual and legal reasons for compelling further
responses. (Cal. Rules of Court, Rule 3.1345, subd. (a).) Alternatively, “the court
may allow the moving party to submit a concise outline of the discovery request
and each response in dispute.” (Code Civ. Proc., § 2031.310, subd. (b)(3); §
2033.290, subd. (b)(2).) The Motions are accompanied by separate statements.
(Separate Statements, filed 09/06/22.)
Discussion
Plaintiff moves to compel further responses to Request for
Production of Documents, No. 1 and 2; and Request for Admission, Nos. 1 and 2.
Evidentiary Objections
Request for Production of Documents, Set One
Request for Production of Documents, Set One, Nos. 1 and 2
ask Defendant to produce all documents that support its responses to Form
Interrogatories, Set One, and Special Interrogatories, Set One, respectively.
Defendant responded that it would produce “relevant, non-privileged documents
responsive” to the request for documents that support its responses to Form
Interrogatories, Set One. This is not a proper response. Under Code of Civil
Procedure section 2031.210, a party must state that it will comply with the
demand, that it lacks the ability to comply with the demand, or object to the
demand. Including a conditional statement of compliance using the term
“relevant” is not permitted. As for producing documents that support
Defendant’s responses to Special Interrogatories, Set One, Defendant reiterates
its objections to the Special Interrogatories. The Court previously ruled that
Defendant’s objections to the Special Interrogatories were valid, and
therefore, the objections to the corresponding document requests are upheld.
Plaintiff’s request for an order compelling Defendant’s
further responses to Request for Production of Documents, Set One, is granted
as to Request for Production No. 1 and denied as to Request for Production No.
2.
Request for Admissions, Set One
Plaintiff moves to compel further responses to Request for
Admission, Set One, Nos. 1 and 2. These requests ask Defendant to admit that “[w]hen
an email is deleted from a Gmail account, the deleted email remains on Google’s
server(s) for a period of time after its deletion” and that “[n]o employee of
Google LLC who spoke to Rafi Moghadam at any time in 2020 ever claimed that
Rafi Moghadam ‘accosted her over the phone.’” (Motion, Separate Statement, pp.
3:11-5:3.) Other than Defendant’s boilerplate objections, which it does not
mention in the opposition, Defendant objected to both requests on the grounds
that they have no relevance to the claims and defenses in this action and are
not reasonably calculated to lead to the discovery of admissible evidence.
Defendant’s non-nuisance objections are without merit. The
scope of discovery is extremely broad, as set forth in Code of Civil Procedure
section 2017.010, and includes any non-privileged matter “that is relevant to
the subject matter involved in the pending action or to the determination of
any motion made in that action . . . .” What happens after an email is deleted
from a Gmail account, even generally, is relevant to Defendant’s response or
lack thereof to the subpoena in the underlying action, which is the basis of
this forfeiture action. Also, Plaintiff’s request for admission regarding a
conversation Rafi Moghadam had with Defendant’s employee is relevant to the
discovery motions in this action, as demonstrated by Defendant’s own attempt to
introduce evidence of harassment of its employees by Plaintiff. (See Opp., pp.
2:21-3:4.)
Plaintiff’s request for an order compelling Defendant’s
further responses to Request for Admission, Set One, Nos. 1 and 2, therefore,
is granted.
Conclusion
Plaintiff Law Offices of Rafi Moghadam, APC’s Motion for
Order Compelling Further Responses to Request for Production of Documents, Set
One is GRANTED AS TO NO. 1 AND DENIED AS TO NO. 2.
Plaintiff Law Offices of Rafi Moghadam, APC’s Motion for
Order Compelling Further Responses to Request for Admissions, Set One is GRANTED
AS TO NOS. 1 AND 2.
DEFENDANT GOOGLE, LLC IS TO SERVE FURTHER RESPONSES TO REQUEST
FOR PRODUCTION OF DOCUMENTS, SET ONE, NO. 1, AND REQUEST FOR ADMISSIONS, SET
ONE, NOS. 1 AND 2, WITHIN 20 DAYS’ SERVICE OF THIS ORDER.
Plaintiff to give notice.