Judge: Martha K. Gooding, Case: 2022-01249288, Date: 2022-11-07 Tentative Ruling
Motion to Compel Production
Defendant Diamond Business Community Association (“Defendant”) moves to compel further responses and documents from Plaintiff Maxwell M. Nazari DDS Inc. (“Plaintiff”) to Defendant’s Requests for Production of Documents, Set One, Nos. 1, 3, and 4-20.
For the reasons set forth below, the Motion is GRANTED as to Nos. 3, 17, 18, 19, and 20. As to these requests, Plaintiff is ordered to provide supplemental verified responses, without objections, and to produce all responsive documents in Plaintiff’s possession, custody, or control within 15 days of this Order.
Otherwise, the Motion is DENIED.
All requests for sanctions are DENIED.
Legal Standard
Code of Civil Procedure section 2031.220 requires a party responding to an inspection demand to respond with (1) a statement that it will comply, (2) a representation that it does not have the ability to comply, or (3) an objection. (Code Civ. Proc., § 2031.220.) An agreement to comply must be rather specific as to what it agrees to produce. It must specify that the production and inspection will be allowed (in whole or in part); and that the documents or things in the demanded category that are in the responding party's possession, custody, or control will be produced. (Code Civ. Proc., § 2031.220.)
On receipt of the response, the demanding party may move to compel further response if any of the following apply: (1) a statement of compliance is incomplete; (2) a representation of inability to comply is inadequate, incomplete or evasive; (3) an objection is without merit or too general. (Code Civ. Proc., § 2031.310, subd. (a).) The motion must set forth specific facts showing good cause justifying the requested discovery. (Code Civ. Proc., § 2031.310, subd. (b).)
Absent a claim of privilege or attorney work product, the burden of showing good cause may be met simply by a fact-specific showing of relevance. “If ‘good cause’ is shown by the moving party, the burden is then on the responding party to justify any objections made to document disclosure.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020) ¶ 8:1496, citing Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.)
Merits
As an initial matter, the Court rejects Plaintiff arguments that there was no adequate meet and confer and that the Motion violates the rules of court by including exhibits in a separately-filed document. Neither has merit.
The Court also notes that statutes and cases should not be cited by reference to “https://codes.findlaw.com/ca/code-of-civil-procedure/ccp-sect-2031-240.html.” They should be cited in the format used herein and/or as set forth in the California Style Manual: A Handbook of Legal Style for California Courts and Lawyers or in Blue Book citation form.
Request No. 1 asks for “All documents related to the purchase of 618 N. Diamond Bar Boulevard, Diamond Bar, CA 91765.”
Plaintiff responded with objections.
The motion for order compelling further responses “shall set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310(b)(1) (emphasis added); Kirkland v. Sup.Ct. (Guess?, Inc.) (2002) 95 Cal.App.4th 92, 98 (citing text).)
Here, Defendant argues that latent and patent defects may have been disclosed as part of the sale and reflected in the purchase price and Plaintiff may have contemplated a build-out suitable for a dental office, which could belie some of the claims in the Complaint.
The Court finds that Defendant has not met its burden to show good cause for the breadth of this request, which include financial information of Plaintiff and its shareholder(s). While some documents from the sale may be relevant, every document is likely not.
The Motion is denied as to this request.
Requests Nos. 3, 17, 18, and 19 ask for documents constituting or reflecting disclosures made to Plaintiff relating to the property, Plaintiff’s plans for any build-out/construction of the property, cost estimates for the build-out/construction, and invoices for build-out/construction, respectively.
The Court finds Defendant has shown good cause for these narrow categories of documents.
Plaintiff objects to each of these Requests and then indicates that it has no responsive documents, stating “No such documents are in the possession, custody or control of the plaintiff.”
A response stating inability to comply with a section 2031.010 demand shall state the following:
— never existed; or
— has been lost or stolen; or
— has been destroyed; or
— is not in the possession, custody or control of the responding party, in which case, the response must state the name and address of anyone believed to have the document.
Plaintiff’s responses to these requests are not Code-compliant.
Moreover, Plaintiff does not meet its burden to justify any of its objections as to Requests Nos. 3, 17, 18, and 19.
Further, Plaintiff indicates that amended responses were served, but fails to supply those to the Court, so the Court is unable to determine if they are Code-compliant. Moreover, Defendant contends on Reply that the responses are still deficient.
Thus, the Motion is granted as to these Requests.
Request Number 20 asks for phone records that relate to, reflect, or support the “75 calls” Plaintiff made to Diamond (i.e., Defendant).
The party to whom the CCP § 2031.010 demand is directed must respond separately to each item in the demand by one of the following:
• Agreement to comply: A statement that the party will comply by the date set for inspection with the particular demand for inspection, testing, etc.; or
• Representation of inability to comply: A statement that the party lacks the ability to comply with the particular demand; or
• Objections: An objection to all or part of the demand.
[Code Civ. Proc., § 2031.210(a)]
Here, Plaintiff responded to Number 20 only with “See Attachment 1.” That is not Code-compliant.
In opposition to this Motion, Plaintiff argues he does not have any of the phone records. Plaintiff is therefore ordered to provide a further Code-compliant response to this request, including but not limited to, identifying who has (or may have) custody of these documents.
The Court notes that the Request does not ask for phone numbers from which calls were made.
Request Nos. 4-16 appear to be moot given Plaintiff’s representation, in his Opposition, that he is not seeking damages for future loss of wages and future business interruptions/disruption.
Sanctions
If a party properly asks for monetary sanctions, such sanction “shall” be imposed unless the court finds that party made or opposed the motion “with substantial justification” or other circumstances make the sanction “unjust.” (Code Civ. Proc., §§ 2031.310(h) (document production statute), 2023.030(a) (general sanctions statute); see Kravitz v. Sup.Ct. (Milner) (2001) 91 Cal.App.4th 1015, 1021 (citing text).)
The Court denies both parties’ requests for sanctions.
Plaintiff’s request for sanctions is denied. Plaintiff’s responses are deficient and he is not entitled to sanctions. Plaintiff cannot minimize the deficient responses by characterizing the defects as “ministerial issues.” Further, Plaintiff did not even attempt to file amended responses until after this Motion was filed. This is true even though the first meet and confer letter, dated August 3, 2022, pointed out that the responses were not Code-compliant because they did not state what was required if responsive documents could not be located, per Code of Civil Procedure Section 2031.230.
Defendant, in turn, has not provided the Court with an itemization of the reasonable attorney’s fees and costs expended as part of this Motion. It simply asks for a flat sum of $1,500.
The Court is authorized to award, as sanctions, the moving party's reasonable expenses including attorney fees on the motion to compel. “Reasonable expenses” include the time moving party's counsel spent in research and preparation of the motion and court time in connection with the motion. (See Ghanooni v. Super Shuttle of Los Angeles (1993) 20 Cal.App.4th 256, 262; Cornerstone Realty Advisors, LLC v. Summit Healthcare REIT, Inc. (2020) 56 Cal.App.5th 771, 790—“Reasonable expenses may include attorney fees, filing fees, referee fees, and other costs incurred”)
Given Defendant’s failure to provide the Court with information it needs to determine an appropriate award of sanctions, Defendant’s request for sanctions is denied.
Defendant is ordered to give notice.