Judge Michael D. Washington, Case Number: 37-2023-00035623-CU-CO-NC, Date: 2024-05-10 Tentative Ruling

Judge: Michael D. Washington, Case: 37-2023-00035623-CU-CO-NC, Date: 2024-05-10 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - May 09, 2024

05/10/2024 01:30:00 PM N-31 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Michael D Washington

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Civil - Unlimited Contract - Other Discovery Hearing 37-2023-00035623-CU-CO-NC INDEPENDENT NATURAL FOOD BROKERS, LLC VS LIVING WELLNESS PARTNERS LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Compel Discovery, 02/05/2024

There are four discovery motions presently on-calendar in this matter. The hearings on all four motions are continued to Friday, June 14, 2024 at 1:30 p.m. in Department N-31. Defendant Living Wellness Partners LLC (Defendant) is ORDERED to engage in further meaningful and good faith meet and confer efforts prior to that hearing date. Both parties may file supplemental briefing apprising the Court of the progress made as a result of the subsequent meet and confer efforts as follows: --Friday, May 31, 2024 – supplemental briefing due filed and served by Defendant, said briefing shall be limited to 5 pages, and if any disputes remain about actual discovery items, an 'outline' in lieu of a separate statement shall be provided in an omnibus fashion to enable the Court to go, item-by-item through the discovery issues that remain --Friday, June 7, 2024 – supplemental briefing due filed and served by plaintiff Independent Natural Food Brokers LLC (Plaintiff), said briefing shall be limited to 5 pages, and if an 'outline' in lieu of a separate statement has been filed by Defendant, Plaintiff may file a responsive 'outline' with item-by-item responses embedded within to enable the Court to go, item-by-item through the discovery issues that remain While it appears that there may be some substantive discovery disputes at issue between the parties in this case, those issues are currently clouded by the threshold procedural issue of failure to conduct meaningful meet and confer in good faith. Defendant, which is the party that propounded the discovery and is now moving to compel it, claims that it satisfied its meet and confer requirement by sending a singular letter to opposing counsel. Plaintiff's counsel indicates that they responded to this effort with a letter of their own that: --requested specificity as to which electronic folders were not opening properly for Defendant in electronically-produced documents --offered to amend Requests for Admission responses using Defendant's requested language --offered to 'do my best to address what was propounded in light of this...' (with 'this' being a reference to purported reframing of Plaintiff's legal claims) While the Court does not necessarily condone the mere 'offering' to supplement responses when the act of providing actual supplemental responses would prove more fruitful in moving the proverbial 'ball' forward in terms of resolving discovery disputes, the Court nonetheless views this language as at least Calendar No.: Event ID: TENTATIVE RULINGS

3091031 CASE NUMBER: CASE TITLE: INDEPENDENT NATURAL FOOD BROKERS, LLC VS LIVING 37-2023-00035623-CU-CO-NC relatively engaged in a meaningful meet and confer process in a good faith manner – one that could be followed-up on by the other side.

Defendant, however, characterizes Plaintiff's responsive letter as a dead-end using the following argument: Plaintiff provided unsworn testimony and offered to supplement nothing beyond RFA wording. Future engagement would have resulted in more acrimony and argument. Neither party would benefit from this process, and this would have just added more attorney's fees to inevitable motion practice.

...The Code does not require a minimum number of letters to be written before resorting to motion practice. The Code requires an 'attempt' in the singular, and it does not require a party to write multiple letters, especially when the response states an unwillingness to supplement, but only an eagerness to argue and attack. [Defendant] made a good faith effort to resolve the dispute, but the tone and substance of the response indicated that further engagement would not be fruitful.

The meet and confer response was sent on January 22, 2024, and [Defendant] waited until February 2, 2024, to file the instant motions. The filing date is exactly 47 days after the responses were served.

Plaintiff did not supplement anything, and [Defendant] literally waited until the last minute to file the motions. Plaintiff's claim that [Defendant] 'jumped the gun' therefore defies credulity. (Reply, pp.

2:28-3:13.) The Court responds to Defendant's argument as follows.

First, litigation is contentious. The fact that meet and confer efforts may be difficult or 'result[] in more acrimony and argument' is not a sufficient grounds for failing to engage in the process meaningfully and in good faith. The Code requires that opposing counsel meet and confer on discovery disputes prior to resorting to motion practice even though such process is often contentious given that it is part of a larger adversarial proceeding. This argument could be applied to any discovery dispute, and it rings particularly hollow as raised here.

Second, to summarily conclude that '[n]either party would benefit from this process' also rings hollow as a conclusory excuse to avoid a process that the law requires. Whether or not the parties will benefit from the process remains speculative until the parties actually engage in the process in a meaningful and good faith manner. Moreover, the Court – and the law in general – are not solely concerned with the interest of 'the parties' in terms of whether they will 'benefit' from the process – the process is designed to facilitate a broader discovery procedure that is to be self-executing for purposes of judicial efficiency.

Engaging in the process, even if it does not 'benefit' the parties directly, enables the issues to be sharpened-up for resolution when the matter comes before the Court. The back-and-forth nature off the meet and confer process assists with drilling down to the real issue in dispute by cutting through surface-level arguments. This 'benefits' judicial economy, and arguments focused solely on the 'benefits' of the parties are short-sighted at best.

Third, except in rare and exceptional circumstances, time spent meeting and conferring is not compensable as a monetary sanction. If it were, such policy would defeat the self-executing nature of the discovery process – i.e. the meet and confer process is designed to keep discovery practice out of court, but if the meet and confer process itself triggers a right to attorney fees that in and of itself would cause more motion practice to obtain an order for monetary sanctions after the act of meeting and conferring. As such, the argument that meet and confer 'would have just added more attorney's fees to inevitable motion practice' rings hollow.

Fourth, the argument that '[t]he Code does not require a minimum number of letters to be written before resorting to motion practice. The Code requires an 'attempt' in the singular, and it does not require a party to write multiple letters... ' strikes the Court as lacking in understanding about the requirement that the meet and confer process be engaged-in in a manner that is meaningful and in good faith. The Court Calendar No.: Event ID: TENTATIVE RULINGS

3091031 CASE NUMBER: CASE TITLE: INDEPENDENT NATURAL FOOD BROKERS, LLC VS LIVING 37-2023-00035623-CU-CO-NC categorically rejects this argument that a party engaged in the discovery process should ever look at the meet and confer requirements as 'send one letter and you're done.' The spirit of the self-executing discovery process, and the meet and confer requirement built to help enforce it, requires that a party vigilantly attempt to resolve matters out-of-court using the meet and confer process whenever a good faith opportunity for doing so exists.

Fifth, the characterization of Plaintiff's responsive argument as one that 'states an unwillingness to supplement' appears to be untrue. Plaintiff's opposition demonstrates that Plaintiff expressed a willingness to modify certain language as requested by Defendant, and, while this Court has already noted above that the offering to make modifications is not as strong or persuasive as actually providing such modifications, the fact that Defendant failed to follow-up and request that Plaintiff actually provide said modifications is a deficiency that lies with Defendant. Perhaps even more problematic here is the fact that on the very same page of its brief, Defendant frames Plaintiff's responsive letter as 'stat[ing] an unwillingness to supplement' (Reply, p. 3:7 (emphasis added)), but then admits: 'Despite arguing over the propriety of the responses, Plaintiff did offer to supplement...' (Reply, p. 3:26 (emphasis added).) Defendant's own characterization are internally inconsistent, and that inconsistency seems to belie what Plaintiff is arguing – that Defendants 'deliberately truncated [the] meet and confer process' (Oppo., p. 2:17) so that could 'unreasonabl[y]... prematurely burden this Court seeking $13,229.30 in sanctions[]' (Oppo., p. 2:15-17.) In light this failure by Defendant to meaningfully meet and confer in good faith, the Court continues the matter to provide time for the parties to do so. The Court further notes that Plaintiff has provided supplemental responses on or before the filing of the opposition brief. As the Court's analysis above depicts the weakness and failure in the meet and confer process, the Court does not view the supplemental documents that have been produced as the byproduct of motion practice – it appears to the Court that this production is the 'low hanging fruit' that could have been obtained relatively easily had meet and confer efforts followed-up by Defendant. As such, the Court is not inclined to award any monetary sanctions for the current briefing or for any 'catalyst' effect the motion may have had in triggering the supplemental production that was made prior to the opposition. In short, the Court finds that other circumstances make the imposition of a sanction unjust up to this point and/or that Plaintiff had substantial justification for opposing the motion up to this point such that monetary sanctions need not be awarded up through the filing of the reply brief and, potentially, any appearance at the hearing on this matter.

It is, however, presently unknown whether Defendant's supplemental production was adequate. To be clear, the parties are ORDERED to further meet and confer regarding where the discovery stands after that production and regarding any other outstanding discovery issues within the scope of the instant motion. While the meet and confer efforts themselves will not be compensable as monetary sanctions, if those subsequent meet and confer efforts do not resolve the issue entirely, such that supplemental briefing becomes necessary, the Court will consider an award of monetary sanctions for the supplemental briefing under the respective discovery code provisions. Any such award may factor in the quality and good faith nature of subsequent meet and confer efforts, but is highly unlikely to award compensation for the time spent meeting and conferring.

Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue the motion(s) are encouraged to give notice to the Court and each other of their intention not to appear.

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