Judge: Michael E. Whitaker, Case: 21SMCV00498, Date: 2024-11-21 Tentative Ruling
Case Number: 21SMCV00498 Hearing Date: November 21, 2024 Dept: 207
TENTATIVE
RULING
DEPARTMENT |
207 |
HEARING DATE |
November
21, 2024 |
CASE NUMBER |
21SMCV00498 |
MOTIONS |
Motion
to Compel Further Production to Request for Production set 2, Nos. 60, 61,
and 62 |
MOVING PARTY |
Plaintiff
Myriad Pictures, Inc. |
OPPOSING PARTIES |
Defendants
Jake Seal, Orwo Film Distribution LLC, and PVS Studios |
MOTION
This case arises from a dispute concerning the production and
distribution of the fourth movie in the “Jeepers Creepers” movie franchise.
Plaintiff Myriad Pictures, Inc. (“Plaintiff”) now moves for an order
compelling Defendants Jake Seal (“Seal”), Orwo Film Distribution LLC (“Orwo”),
and PVS Studios (“PVS”) (collectively, “Defendants”) to provide a further
production, or in the alternative, to provide further, code-compliant responses
to Request for Production, set 2, numbers 60, 61, and 62 (“RFP”). Defendants belatedly oppose the motion, and Plaintiff
replies. Defendants subsequently filed an
application for leave for the late filing of the opposition, which Plaintiff
objects to as an improper sur-reply.
PROCEDURAL
REQUIREMENTS
Timeliness of Motion
A notice of motion to compel further
responses must be given within 45 days of the service of the responses, or any
supplemental responses, or on or before any specific later date to which the
parties have agreed in writing. (Code Civ. Proc., §§ 2031.310, subd. (c).)
Failure to file such a motion within this time period constitutes a waiver of
any right to compel further responses to interrogatories or requests for
production of documents. (Ibid.)
In support of the Motion, Plaintiff
has provided the Declaration of Robert Paredes, which indicates that Defendants
were each electronically served with a copy of the RFP on February 23, 2024. (Ex. D to Paredes Decl.) Defendants served unverified objections and
responses on April 19, 2024. (Paredes
Decl. ¶ 7 and Ex. F.) No verifications
were served. (Paredes Decl. ¶ 8.)
As such, the Court finds the motion timely.
Separate Statement
California
Rules of Court, rule 3.1345 requires that any motion involving the content of
discovery contain a separate statement with the text of each request, the
response, and a statement of factual and legal reasons for why an order
compelling further responses is warranted.
Plaintiff
has provided a separate statement with respect to the RPD in compliance with
the Rules of Court.
Untimely
Opposition/Improper Sur-Reply
The Court
has discretion whether to consider late-filed papers. (Cal. Rules of Court, rule 3.1300(d).)
Here, Defendants’ opposition was due November 7, but Defendants
inadvertently filed it one day late, on November 8, because they forgot to
factor in the court holiday of Veteran’s Day when calculating the opposition
deadline. The Court is generally
inclined to consider papers that were filed only one day late, especially
where, as here, there is a reasonable explanation for the delay.
Further, the reply brief was originally
due by November 14, 2024, yet Plaintiff still filed the reply two days early,
on November 12. Thus, the Court does not
find that Plaintiff has been prejudiced by the slightly late Opposition. Therefore, the Court considers the
Opposition.
Further, the Court disagrees with Plaintiff’s
characterization of Defendants’ “Application for Leave for Late Filing of
Opposition” as an improper sur-reply.
Rather, Defendants merely explain the reason their Opposition brief was
untimely filed by one day. As such, the
Court considers and accepts Defendants’ explanation contained therein.
ANALYSIS
1. RPD
60, 61, and 62
“The purpose of the discovery rules is to enhance the truth-seeking
function of the litigation process and eliminate trial strategies that focus on
gamesmanship and surprise. In other
words, the discovery process is designed to make a trial less a game of
blindman's bluff and more a fair contest with the basic issues and facts
disclosed to the fullest practicable extent.”
(Juarez v. Boy Scouts of Am., Inc.
(2000) 81 Cal.App.4th 377, 389 [cleaned up].)
Where a party objects, or responds
inadequately, to discovery requests, a motion lies to compel further responses,
and that party has the burden to justify the objections or inadequate
responses. (Fairmont Ins. Co. v. Superior
Court (2000) 22 Cal.4th 245, 255; Code Civ. Proc., § 2031.310, subd. (a)
[motion to compel further responses lies “[o]n receipt of a response to a
demand for inspection”].) “A trial
court's determination of a motion to compel discovery is reviewed for abuse of
discretion. However, when the facts
asserted in support of and in opposition to the motion are in conflict, the
trial court's factual findings will be upheld if they are supported by
substantial evidence.” (Costco Wholesale
Corp. v. Superior Court (2009) 47 Cal.4th 725, 733 [cleaned up].)
Plaintiff seeks the following:
DOCUMENT REQUEST NO. 60. YOUR FINANCIAL RECORDS that
reflect, refer, or relate to the MOTION PICTURES, including but not limited to,
trial balances.
DOCUMENT REQUEST NO. 61. YOUR FINANCIAL RECORDS for any
Jeepers Creepers motion picture in development.
DOCUMENT REQUEST NO. 62. All bank statements, general
ledgers, and financial documents that reflect, refer, or relate to YOUR ability
to finance film projects including but not limited to the MOTION PICTURES.[1]
Defendants objected
to the requests on the grounds of attorney work product privilege, that it
seeks confidential business information subject to the protective order, that
disclosure would invade the privacy rights of non-parties to this action,
relevance, and overbreadth/undue burden, and provide unverified responses as
follows:
Defendants respond to
RFP Nos. 60 that no financial records or trial balances pertaining to Jeepers
Creepers Reborn are in their custody or control and no financial records exist pertaining
to the development of Jeepers Creepers V.
Defendants respond to
RFP No. 61 that Jeepers Creepers Reborn is not a subsequent production based on
the motion picture JC3, and there do not exist financial records pertaining to
the development of the motion picture “Jeepers Creepers V” or any other Jeepers
Creepers motion picture on which this pending lawsuit is based.
Defendants respond to
RFP No. 62 that no financial records are in their possession, custody, or
control and Defendants’ ability to finance projects “generically” is not
relevant to this lawsuit, which pertains only to motion pictures derived from
JC3.
The Court agrees with
Plaintiff, that to the extent Defendants have not served verifications for the
responses, such verifications are due. The
Court also agrees with Plaintiff that Defendants must serve code-compliant
responses, including an indication that a diligent search and inquiry has been
made and that either no such financial records exist, or that no such financial
records are in Defendants’ possession, custody, or control, to the extent
applicable. Further, the Court agrees
that to the extent Defendants intend to withhold documents on the basis of
attorney work-product, Defendants should provide a privilege log.
Further, the Court
notes that Defendants’ unverified responses indicate that the requested
financial records regarding Jeepers Creepers Reborn are not in Defendants’
possession, custody, or control.
Defendants contend that Co-Defendant Screen Media distributed Jeepers
Creepers Reborn and received the financial proceeds, and would be the entity in
possession, custody, and control of the requested financial records, along with
non-party to this litigation, JC4 IP LLC.
(Sigelman Decl. ¶ 3.)
However, the Sigelman Declaration also indicates
that Defendants have obtained consent to third party financial documents
regarding the financing and distribution of Jeepers Creepers Reborn that are in
Defendants’ possession, and Defendants will provide supplemental responses and
a production of such records. (Id.
at ¶¶ 2, 4.) Thus, it appears that contrary to Defendants’ discovery responses,
the requested financial records regarding Jeepers Creepers Reborn are
in Defendants’ possession.
Therefore, the Court grants Plaintiffs’ motion to
compel further, verified, code-compliant responses to the RPD.
However, to the
extent Plaintiff requests an actual further production, such a request
is premature, as Plaintiff has not yet received verified, code-compliant
responses. Without those verified
responses, neither Plaintiff nor the Court can ascertain whether production of the
requested financial records is warranted.
Thus, the Court
denies as premature Plaintiff’s motion to the extent Plaintiff seeks to compel
a further production.
2.
Sanctions
A trial court may sanction a party
for engaging in the misuse of discovery, which includes: failure to respond or
submit to an authorized method of discovery; making an evasive response to
discovery; making, without substantial justification, an unmeritorious
objection to discovery; and making or opposing, unsuccessfully and without
substantial justification, a motion to compel or to limit discovery. (Code Civ.
Proc., § 2023.010.)
In addition, Code of Civil Procedure section 2031.310, subdivision (h)
provides: “The court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) against any party, person, or attorney who
unsuccessfully makes or opposes a motion to compel a further response to a
demand, unless it finds that the one subject to the sanction acted with
substantial justification or that other circumstances make the imposition of
the sanction unjust.”
The Court finds Defendants’ service
of unverified responses indicating that the requested documents are not in
their possession, custody, or control, when the Sigelman declaration indicates
that the requested documents are in Defendants’ possession constitutes
a misuse of the discovery process, warranting monetary sanctions.
As such, the Court grants in part Plaintiff’s
motion for monetary sanctions in the amount of $2,910, representing 6 hours of
attorney time to prepare the three motions at the hourly rate of $455, plus
$180 in filing fees at $60 per motion.
CONCLUSION AND ORDER
For the foregoing reasons, the Court
grants in part and denies in part Plaintiff’s motion to compel further
responses to RPD. Defendants are
compelled to provide further, code-compliant verified responses to the three
RPD at issue in accordance with this order within 20 days of notice of the
Court’s order. The Court denies as
premature Plaintiff’s motion to compel a further production.
Further, the Court grants in part Plaintiff’s request for monetary sanctions,
and orders Defendants Jake Seal, Orwo Film Distribution LLC, and PVS Studios
and Defendants’ counsel Paul Sigelman, jointly and severally, to pay Plaintiff monetary
sanctions in the amount of $2,910, by and through counsel for Plaintiff, within
20 days of notice of the Court’s order.
Plaintiff shall provide notice of
the Court’s order and file the notice with a proof of service forthwith.
DATED:
November 21, 2024 ___________________________
Michael
E. Whitaker
Judge
of the Superior Court