Judge: Mark H. Epstein, Case: 20SMCV00596, Date: 2023-01-11 Tentative Ruling

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Case Number: 20SMCV00596    Hearing Date: January 11, 2023    Dept: R

There are two motions on calendar for today.  One is a motion to compel by plaintiff; one is a motion to compel by defendant (actually two motions, but the court discusses them together).

Plaintiff’s motion is opposed.  Plaintiff is seeking to compel responses to a document request seeking 3 categories of documents.  Defendant’s opposition argues that plaintiff jumped the gun; because the discovery was served electronically, the responses that were produced were timely and that the motion was actually filed two days before the responses were due.  Plaintiff does not really deal with that issue and would not withdraw the motion.

Unless the parties have stipulated (or the court has ordered) that electronic service counts as personal service, defendant is correct that the motion was filed prematurely and that the responses were timely. 

For future guidance and to try to avoid further motion practice, the court has looked at the actual responses.  The first category requests documents pertaining to key fobs issued to plaintiff for his unit.  After raising a number of objections, defendant states that it will produce documents not previously produced.  The court would want defendant to clarify whether any documents are being withheld on the basis of the objection.  If so, defendant needs to be clear as to what is being produced and what is not being produced.  If nothing is withheld, then the response is appropriate and the court presumes that the documents have already been produced.  The second category is for certain bank records for a six month period in 2018.  Defendant objects to that production on privacy grounds.  The parties need to meet and confer on this.  Bank records often do contain confidential information that implicates third party privacy rights.  On the other hand, it is likely that most of that information is information that plaintiff would agree could be redacted.  The parties need to discuss what information plaintiff really seeks through these records and whether the privacy concerns can be alleviated by way of redactions.  If not, then a motion to compel further will lie and the court is giving no indication on how it would rule on such a motion.  The third category seeks phone, intercom, and email logs.  Defendant contends that it cannot produce those documents because the documents have never existed.  The court believes defendant needs to clarify if it is withholding any documents based on its objections.  If it is not then the response is proper.  Defendant need not create a document in response to a document demand, so if there are no such documents and never were defendant’s response is code compliant.  Plaintiff is correct that the verification of one of the witnesses is undated, which makes it improper.  But that is the sort of thing that ought to be resolved through an email pointing it out to the defense, which, presumably, would then rectify the problem.  This court’s time ought not be wasted on what appears to be an oversight unless defendant intends to stand by the undated verification.

Defendant seeks sanctions on the ground that the motion was unripe when made and plaintiff refused to take it off calendar.  If plaintiff cannot explain why it is that the extra two days should not apply here, the court must grant the motion and impose fees as a sanction in the amount of $684.12 payable within 30 days.  However, if plaintiff has a reason, the sanctions will be denied.  The court also notes, however, that even if the two days were not properly added, rather than rush to file a motion plaintiff should have sent an email to defense counsel pointing out the fact that the responses were overdue, which would have yielded the responses.  In short, the motion was potentially improper and almost certainly unnecessary.

Defendant seeks to compel responses for the second and third sets of requests for production.  Defendant propounded the third set and served them by email on September 6, 2022.  Responses were due on October 10, 2022 (30 days plus two court days).  According to the defense, the response was timely, but consisted of only two pages—one was supposedly not responsive and one was responsive.  No actual responses were provided—just the two pages.  On November 15, 2022, defense counsel sent plaintiff a letter but got no response.  The court sees no reason why full and complete responses were not provided.  Plaintiff must provide code compliant verified responses without objection within 15 days of today along with any documents not yet produced.

The second set of RFP’s were served in May.  Defendant filed a motion to compel, which was granted on October 27, 2022.  Plaintiff was ordered to produce no later than November 15, 2022.  Although notice of the order was given, plaintiff provided no responses; only a verification without any responses and some documents.  The documents that were provided were purportedly legal papers and letters from plaintiff’s PI suit concerning the dog bite and some related records.  While those documents appear to be responsive, they do not appear to defendant to be complete.  For example, defendant notes that there are no documents that would support the contention that the lien ruined plaintiff’s standing or the damages plaintiff claims he suffered.  Code compliant, verified responses, without objection will be provided within 15 days of today along with the documents.  The responses, presumably, will say that all documents within plaintiff’s possession, custody, or control have been (or are being contemporaneously with the responses) produced.

Plaintiff filed no opposition to defendant’s motions.  The court agrees that defendant has made out its prima facie case on the motions. 

Defendant also seeks sanctions.  The court believes sanctions are appropriate.  Defendant seeks sanctions of $1018.77 for each motion.  The amounts requested do not include any time for filing a reply, which is appropriate since no reply was required.  The amount appears to be reasonable and sanctions are imposed in the amount of $1018.77 per motion, payable within 30 days.