Judge: Mark E. Windham, Case: 22STLC00767, Date: 2022-08-31 Tentative Ruling

Case Number: 22STLC00767    Hearing Date: August 31, 2022    Dept: 26

PROCEEDINGS:     MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE, AND REQUEST FOR SANCTIONS

MOVING PARTY:   Plaintiff Gerald V. Selvo

RESP. PARTY:         None

MOTIONS TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS; REQUEST FOR SANCTIONS

(CCP § 2031.310)

TENTATIVE RULING:

Plaintiff Gerald V. Selvo’s Motion to Compel Further Responses to Request for Production of Documents, Set One, and Request for Sanctions is GRANTED. DEFENDANT JOSEPH SABET IS TO SERVE FURTHER RESPONSES, INCLUDING A CODE-COMPLIANT PRIVILEGE LOG, TO REQUEST NOS. 1-14 WITHIN 20 DAYS’ SERVICE OF THIS ORDER. DEFENDANT JOSEPH SABET AND COUNSEL OF RECORD ARE ALSO JOINTLY ORDERED TO PAY SANCTIONS OF $100.00 TO PLAINTIFF WITHIN 20 DAYS’ SERVICE OF THIS ORDER.

TRIAL SETTING CONFERENCE IS SET FOR NOVEMBER 2, 2022 AT 8:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

SERVICE:                              

[X] Proof of Service Timely Filed (CRC 3.1300) OK

[X] Correct Address (CCP 1013, 1013a) OK

[X] 16/21 Day Lapse (CCP 12c and 1005 (b)) OK

BACKGROUND: Action for violation of Consumer Legal Remedies Act, misrepresentation and unfair competition. Cross-action for promissory fraud and quantum meruit. 

REQUEST FOR RELIEF: Compel Defendant Sabet to serve further responses to Request for Production of Documents, Set One. Defendant Sabet’s initial responses consist solely of boilerplate and meritless objections. Award Plaintiff sanctions of $100.00.  

OPPOSITION: None filed as of August 29, 2022.

REPLY: None filed as of August 29, 2022.

ANALYSIS:

On February 4, 2022, Plaintiff Gerald V. Selvo (“Plaintiff”) filed the instant action for violation of Consumer Legal Remedies Act, misrepresentation and unfair competition against Defendants Joseph Sabet and Sabet Dental Corporation (“Defendants”). On April 26, 2022, Defendants filed a Special Motion to Strike the Complaint and Motion to Reclassify Action. Defendant Sabet then filed a Cross-Complaint on May 2, 2022.

On May 18, 2022, the Court took the Special Motion to Strike and Motion to Reclassify under submission. (Minute Order, 05/18/22.) On May 19, 2022, the clerk filed a notice of reclassification, reassigning the action from the limited jurisdiction court to the unlimited jurisdiction court. (Notice of Reclassification, 05/19/22.) As a result, the trial date in this department was vacated. Also, on May 19, 2022, the Court issued its ruling by placing the Special Motion to Strike off calendar, continuing the Motion to Reclassify, and striking the Cross-Complaint on its own motion. (Minute Order, 05/19/22.) The Motion to Reclassify is now set for hearing on September 8, 2022.

On June 2, 2022, the case was reassigned back to the limited jurisdiction court.

On July 28, 2022, Plaintiff filed the instant Motion to Compel Further Responses to Request for Production of Documents, Set One, and Request for Sanctions. No opposition has been filed to date.

Discussion

Procedural Requirements

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., § 2030.310, subd. (c).) Plaintiff served Defendant Sabet with the Request for Production of Documents, Set One, on June 7, 2022. (Motion, Separate Statement, Exh. 9.) Defendant Sabet served responses on July 7, 2022. (Id. at Exh. 10.) The instant Motion, therefore, was timely filed and served on July 28, 2022.

Also, the Motion must be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2030.300, subd. (b)(1).) The parties exchanged meet and confer letters from July 17-21, 2022 but could not resolve the discovery dispute. (Id. at Exhs. 2-4.) The meet and confer requirement is satisfied.

Next, 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., § 2030.300, subd. (b)(2).) The Motion is accompanied by a separate statement. (Separate Statement, filed 07/28/22.)

Request for Production of Documents, Nos. 1-14

Defendant Sabet first asserts a boilerplate “global objection” that the request is vague, ambiguous, overbroad, unduly burdensome, or not proportional to the needs of the case. The global objection also contends out that the requests fail to specify an applicable time period and extends to time periods that are unduly burdensome and irrelevant. The global objection is without merit. The Request for Production is limited to documents dated from August 1, 2021 to the date of production. (Motion, Separate Statement, Exh. 9, p. 6:9-11.) The objection does not address this narrow time period to explain why it is overbroad, burdensome or non-proportional, which is the objecting party’s burden given the broad scope of discovery. (Code Civ. Proc., §§ 2017.010, 2017.020; Williams v. Superior Court (2017) 3 Cal.5th 531, 549.) Furthermore, the objection does not indicate what terms in the Requests, if any, are overbroad, vague or ambiguous. All the terms are defined in the Request for Production. (Motion, Separate Statement, Exh. 9, pp. 2:1-4:3.) The objections do not address these definitions. Finally, the objections based on attorney-client and work production privilege contend, without explanation, that a privilege log is “not feasible,”

Defendant Sabet also objects that Request Nos. 3-14 are “irrelevant as to Plaintiff’s defective amended complaint.” It appears that Plaintiff sought to file an amended complaint on June 7, 2022, but that document is not in the Court’s online system. (Motion, Separate Statement, Exh. 8.) Regardless, the relevance of Request Nos. 3-14 to the non-existent amended complaint does not render them beyond the scope of discovery. (See Code Civ. Proc., § 2017.010.) The scope of discovery is dictated by the operative pleadings in this action, of which there is only the original Complaint filed on February 4, 2022. Defendant Sabet does not object that the requests are irrelevant as to the original Complaint. The defective amended complaint objection, therefore, lacks merit.

To the extent Request Nos. 4-14 seek documents relating to allegations in the stricken Cross-Complaint, Defendant Sabet objects that the requests improperly refer to the First Amended Cross-Complaint as stricken. (Motion, Separate Statement, Exh. 9, Response Nos. 4-14.) This objection is also invalid. The characterization of the Cross-Complaint (no First Amended Cross-Complaint was ever filed) as “stricken” is accurate. (See Minute Order, 05/18/22.)

Defendant Sabet next objects to Request Nos. 4-14 on the grounds that they prematurely seek expert discovery. None of these Requests, however, appear to seek expert discovery and the objection does not identify what expert discovery is sought. This objection is also overruled.

The last objection is asserted only to Request No. 8 on the grounds that “ESI definitions are not provided and that any ESI would cause undue burden and expense to Responding Party.” Electronic Stored Information (ESI), however, is defined in the Request for Production. (Motion, Separate Statement, Exh. 9, pp. 4:15-17, 7:25-8:2.) Nor does Defendant Sabet articulate the burden and expense he would bear responding to the request. Therefore, the Court finds that this objection also lacks merit.

Based on the foregoing, Plaintiff’s request for Defendant Sabet to serve further responses to the Request for Production of Documents, Set One, is granted. The further responses are to include a privilege log pursuant to Code of Civil Procedure section 2031.240, subdivision (c)(1).

Plaintiff is also entitled to an award of sanctions, which have been properly noticed. (Code Civ. Proc., §§ 2023.010, 2023.030.) Plaintiff’s request for monetary sanctions is granted in the amount of $100.00 based on costs incurred. (Motion, Selvo Decl., ¶5.) The sanctions are awarded jointly and severally against Defendant Sabet and counsel of record.

Conclusion

Plaintiff Gerald V. Selvo’s Motion to Compel Further Responses to Request for Production of Documents, Set One, and Request for Sanctions is GRANTED. DEFENDANT JOSEPH SABET IS TO SERVE FURTHER RESPONSES, INCLUDING A CODE-COMPLIANT PRIVILEGE LOG, TO REQUEST NOS. 1-14 WITHIN 20 DAYS’ SERVICE OF THIS ORDER. FURTHERMORE, DEFENDANT JOSEPH SABET AND COUNSEL OF RECORD ARE JOINTLY ORDERED TO PAY SANCTIONS OF $100.00 TO PLAINTIFF WITHIN 20 DAYS’ SERVICE OF THIS ORDER.

TRIAL SETTING CONFERENCE IS SET FOR NOVEMBER 2, 2022 AT 8:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

Plaintiff to give notice.