Judge: Michael E. Whitaker, Case: 21SMCV00498, Date: 2024-11-21 Tentative Ruling

Case Number: 21SMCV00498    Hearing Date: November 21, 2024    Dept: 207

TENTATIVE RULING

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