Judge: Mark H. Epstein, Case: 20SMCV00596, Date: 2023-04-24 Tentative Ruling

Case Number: 20SMCV00596    Hearing Date: April 24, 2023    Dept: R

The unopposed motion to compel is GRANTED.

Plaintiff filed this action against the HOA and George Lohan alleging that they breached the CC&R’s.  Currently before the court is the HOA’s motion to compel further responses to two sets of RFP’s.  As to set 2, the court previously granted two motions regarding plaintiff’s failure to provide responses.  As to set 3, the court previously granted one motion.  In the minute orders of January 11, 2023 (which pertained to both sets) the court gave specific directions as to what was required under the code.  And given the number of discovery motions in this case—filed by both sides—the court believes that plaintiff is well aware of those requirements independently.

On January 26, 2023, plaintiff served further responses to both sets.  But they remain non-compliant.  As to each request, plaintiff stated that “The responding party has already produced all available documents in his possession regarding this request.”  But the HOA has stated that not all documents were produced, or at least not identified.  As to the former, plaintiff has not stated under oath that all responsive documents were produced and he has not stated under oath whether production was in full or in part.  This is important because if some documents were not produced because they were in plaintiff’s possession, custody, or control (which is the proper phrase, not just “possession”) at one point but are not presently, then plaintiff must so state and explain what happened to the documents.  (Code Civ. Proc. §2031.230.)  And he must do so by way of a verified response.  Further, plaintiff has never identified the specific documents responsive to the specific requests.  The HOA attempted to meet and confer on this issue (and it has provided the metadata showing that its emails were indeed delivered), but plaintiff has not responded.

Frankly, this is the sort of thing that a meet and confer ought to solve even with these parties, who typically do not get along.  But according to defendants, they tried to do so and plaintiff simply ignored the emails. 

Accordingly, plaintiff has to serve code-compliant responses.  The court’s January 11, 2023 order was pretty specific as to what is required.

All of that said, the court is fast reaching the conclusion that defendants are bringing motions in part for the sake of bringing motions.  At this point, the court is somewhat hard-pressed to see the value to the defense of the additional compliance, except, perhaps, to stop some kind of surprise at trial should plaintiff attempt to introduce a trove of newly-discovered evidence.  But there are better ways of dealing with that.

For now, though, the court must order plaintiff to provide compliant responses within 5 days and identify what documents previously produced pertain to what categories.  The court, somewhat reluctantly, agrees that there is no substantial justification for plaintiff’s failure in this regard, especially in light of the court’s January 11, 2023 order.  The sanctions appear reasonable and the court therefore imposes sanctions of $1312.77 for the motion directed to set 2 and $535.77 for the set 3 motion.  The sanctions are payable within 30 days.  The court requests that the defense refrain from bringing additional discovery motions unless there is some real need to do so.