Judge: Mark H. Epstein, Case: 23SMCV01341, Date: 2023-11-07 Tentative Ruling

Case Number: 23SMCV01341    Hearing Date: November 21, 2023    Dept: I

The unopposed motion to compel further responses is GRANTED IN PART AND DENIED IN PART.  This case was initially brought against Brighton Therapy and also against Pouilloux individually.  Brighton is in default.

Plaintiff seeks to compel further responses to RFPs 1-12 and 15-16.  Plaintiff must demonstrate good cause for the discovery propounded even in the absence of an opposition.  Once that is done, it is the objecting party’s burden to establish the basis of any objection raised.  Given that there is no opposition to the motion, defendant has not met that burden.  So the motion stands or falls on whether plaintiff has shown cause.

Plaintiff asserts that the discovery is relevant to affirmative defenses and to test credibility.  As to the former justification, that is sufficient where it applies.  The latter is not so clear.  Taken to its logical conclusion, demanding documents because it could undermine credibility goes too far.  It could be used to get love letters sent from one person to another in an effort to prove that the author did not really love the recipient and therefore is not credible.  Rather, the “credibility” issue must have some more direct bearing on the case.

The RFPs are sufficient for the affirmative defenses, and therefore supports the motion as to RFPs 1-4, 6-8, 12, and 15-16.  The court believes that the motion is moot, however, as to RFPs 3-4 and 6-7 inasmuch as defendant has agreed to produce those documents without objection. 

RFPs 5 and 9-11 seek the production of documents showing correspondence with a tax professional.  That calls for privileged information on its face, not only accountant-client, but also information relating to tax returns.  (Schnabel v. Superior Court (1993) 5 Cal.4th 704.)  Even though the privilege is not absolute, there has been no showing by plaintiff to go around it.  That said, as with any privilege, it can be waived.  The court will not hold the defendant to have waived the privilege.  If defendant wants to assert the privilege defendant must do so expressly, and include a log, within the time frame set forth below.  If defendant fails to do so, then the court will view the privilege as waived and documents must be provided within the same time frame.  RFP 9-11 have similar problems.  Therefore, the motion is GRANTED as to RFPs 1-2, 8, 12, and 15-16.  It is GRANTED IN PART as to RFPs 5 and 9-11.  It is DENIED AS MOOT as to RFPs 3-4 and 6-7. 

The court also notes that defendant states that documents have been produced, but does not say that there has been full compliance.  The code requires that the response state that production will be made in full as requested or, if the responding party cannot make a full production, then under 2031.230 the responding party must explain why—that is, whether the documents never existed or, if they did, whether they were lost or destroyed or are now out of the responding party’s possession, custody, or control (and in who’s possession, custody, or control the documents are in).

Further verified responses without objection and conforming to the foregoing will be served within 15 days and the corresponding documents will be served within 30 days thereafter.  The court also notes that there is some doubt in the court’s mind as to whether there was a meaningful meet and confer effort here.