Judge Michael E. Whitaker, Case Number: 21SMCV00991, Date: 2023-10-18 Tentative Ruling

Judge: Michael E. Whitaker, Case: 21SMCV00991, Date: 2023-10-18 Tentative Ruling

This lawsuit arises from a dispute between the owners of adjoining residential properties. Plaintiff 1059Corning, LLC (“Plaintiff”) alleges that construction defects in Defendant Marmar Corning, LLC’s (“Defendant”) adjoining building caused damage to Plaintiff’s building.

Before initiating litigation, Plaintiff hired third party consultants Soil Pacific, Inc. (“Soil Pacific”) and PSFEG, Inc. (“PSFEG”) to evaluate the damage. Also prior to initiating litigation, Plaintiff sent Defendant copies of the consultant reports. Defendants have served business record subpoenas on both Soil Pacific and PSFEG, seeking their respective records pertaining to Plaintiff’s retention of each of them and records pertaining to their prelitigation analyses of the subject properties.

Plaintiff previously moved to quash the business record subpoenas at issue, which the Court denied. (See November 9, 2023 Minute Order.)

On November 17, Soil Pacific produced records. (Navarrette Decl. ¶ 10, Ex. F.) Defendant addressed the perceived deficiencies in the production via telephone and in writing, before filing the instant motion to compel further production of business records from Soil Pacific. (Navarrette Decl. ¶¶ 11-14, Exs. G and H.)

Defendant contends Soil Pacific’s Opposition should be disregarded as untimely.

Code of Civil Procedure section 1005, subdivision (b) provides, “All papers opposing a motion […] shall be filed with the court and a copy served on each party at least nine court days, and all reply papers at least five court days before the hearing.” The court has discretion whether to consider late-filed papers. (California Rules of Court, rule 3.1300(d).)

The hearing on this motion is January 8, making the Opposition due December 22, yet Soil Pacific did not file its Opposition until December 27, 2023. However, the late opposition does not appear to have prejudiced Defendant, as Defendant filed a timely, comprehensive Reply on December 29, 2023. Therefore, the Court exercises its discretion and considers the late-filed Opposition brief.

Soil Pacific contends that the motion should be denied because Defendant failed to meet and confer before seeking to compel compliance with the subject subpoena.

Although a requirement to meet and confer is not mandated under Code of Civil Procedure section 1987.1, or under Code of Civil Procedure sections 220.010 et seq., before a motion to compel compliance is heard, Defendant has provided declaratory and documentary evidence that Defendant attempted to meet and confer, both by telephone, and outlining its issues with the production via emails and a formal letter sent via email. (Navarrete Decl. ¶¶ 10-13 and Exs. G-H.) Soil Pacific argues that Defendant never met and conferred with it, but has proffered no evidence of its own to counter the evidence Defendant provided.

Therefore, the Court finds that Defendant met and conferred with Soil Pacific in an attempt to informally resolve the issues set forth in the motion.

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.

Here, Defendant has filed a separate statement related to its motion, which complies with Rule 3.1345.

Soil Pacific argues that “the numbering and requests are grossly out of order” in the separate statement and is therefore indecipherable. (Opposition at p. 2.) The Court disagrees that the separate statement is indecipherable. Although the Court acknowledges that the numbering of the requests in the Separate Statement does not correspond to the numbering in the document requests, the wording of each request is identical. Therefore, Defendant has satisfied the Separate Statement requirement.

A party seeking discovery from a person who is not a party to the action may obtain discovery by oral deposition, written deposition, or deposition for production of business records. (Code Civ. Proc., § 2020.010.) Pursuant to Code of Civil Procedure section 1987.1, “the court, upon motion reasonably made [by a party] . . . may make an order . . . directing compliance with [a subpoena] upon those terms or conditions as the court shall declare . . .” (Code Civ. Proc., § 1987.1, subd. (a).) Further, pursuant to Code of Civil Procedure section 2017.010, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action.” “Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action.” (Code Civ. Proc., § 2017.010.)

Here, Defendant served Soil Pacific with the Deposition Subpoena on August 23, 2023, indicating a production date of September 8, 2023. (Navarette Decl. ¶ 5 and Exs. B & C.) [1] Plaintiff moved to quash the subpoena, which the Court denied. (See November 9, 2023 Minute Order.) On November 17, Soil Pacific produced two documents: (1) a proposal/agreement dated September 25, 2020; and (2) a report dated October 15, 2020. (Navarrette Decl. ¶¶ 10, 13 Exs. F, H.)

After receiving the initial production, Defendant’s counsel called Soil Pacific on November 17 “to discuss the deficiencies in Soil Pacific’s record production[.]” (Navarette Decl. ¶ 11.) Soil Pacific responded by email that it would not provide further responses. (Navarette Decl. ¶ 12 and Ex. G.)

That same day, Defendant’s counsel sent Soil Pacific a “meet and confer letter” requesting a further production by November 24, 2023. (Navarette Decl. ¶ 13 and Ex. H.) The meet and confer letter explained that the emailed production was “not accompanied by a signed custodian of records affidavit certifying that all records responsive to the August 23, 2023 subpoena in Soil Pacific’s possession, custody or control were in fact produced” and appeared to be missing “any field notes, photographs, videos, communications (including written, email and text), notes, data and any other information relied on to prepare the October 15, 2020 report.” (Navarette Decl. ¶ 12 and Ex. G.) Having not received any subsequent production, Defendant filed the instant motion on November 30, 2023. (Navarette Decl. ¶ 14.)

Subsequent to the filing of this motion, Soil Pacific made a subsequent production on December 26, 2023. (Navarrete Reply Decl. ¶ 3-6 and Exs. A-B.)

Defendant argues in reply that the Motion is still necessary, even after the supplemental December 26 production, because “[e]mail communications produced in Soil Pacific’s further record production identify additional records that are potentially responsive to Marmar’s business record subpoenas which were not produced in Soil Pacific’s initial record production or subsequent record production.” (Reply at p. 3.)

Specifically, one of the newly-produced emails from Jason Hampton of Quakestrong to Soil Pacific on October 5, 2020 appears to contain an attachment titled “1059 S Corning – Signed Proposal” which was not produced. (Reply at p. 3; Navarrete Reply Decl. ¶ 6 and Ex. B.) Similarly, an email from Soil Pacific to Mr. Hampton on October 30, 2020 appears to include an attachment titled, “a-8098-inv.pdf” which appears to be an invoice for work Soil Pacific performed on the subject property, which was also not produced. (Ibid.)

Further, Defendant contends that it has still not received an affidavit signed by the custodian of records, and that the verification sheet accompanying the supplemental December 26 production was unsigned.

The Court agrees that the missing attachments to emails that were produced on December 26 Defendant has identified appear relevant and responsive to the requests, do not appear to be privileged, and therefore should be produced. The Court also agrees that Soil Pacific must provide an affidavit from the custodian of records, certifying that all responsive, nonprivileged documents have been produced.

In ruling on a motion to compel compliance with a subpoena, “the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney's fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.” (Code Civ. Proc., § 1987.2, subd. (a).)

Here, both Defendant and Soil Pacific seek monetary sanctions. Because the Court grants Defendant’s motion to compel compliance with the subpoena, Defendant was substantially justified in bringing it. As such, the Court denies Soil Pacific’s request for monetary sanctions.

Conversely, the Court finds that Soil Pacific’s initial refusal to produce the documents that were ultimately produced on December 26, necessitating the instant motion, constitutes a misuse of the discovery process. Therefore, the Court grants Defendant’s request for monetary sanctions in the amount of $1,505, representing 7 hours of attorney time to prepare the moving and reply papers, and to attend the hearing, at $215 per hour.

Accordingly, the Court grants Defendant’s motion to compel compliance with business records subpoena.

Further, the Court orders, within 20 days of notice of the Court’s order, the following:

1. Soil Pacific shall produce the attachments to emails Soil Pacific produced on December 26, 2023, as well as any other responsive, nonprivileged documents in Soil Pacific’s possession, custody, or control, that Soil Pacific has not yet produced regarding the subject business records subpoena;

2. Soil Pacific shall serve a custodian of records affidavit and/or a signed verification, as required; and

3. Soil Pacific shall pay monetary sanctions to Defendant, by and through Defendant’s Counsel, in the amount of $1,505.

Defendant shall provide notice of the Court’s orders and file a proof of service of such.

[1] The Court notes that the Deposition Subpoena for Personal Appearance attached as Exhibit C has an appearance/production date of December 5, 2023. As such, the Court is uncertain whether Exhibit C is a correct copy of the subpoena referenced in Navarrette’s Declaration at paragraphs 5 and 6.

DEPARTMENT	207
HEARING DATE	January 8, 2024
CASE NUMBER	21SMCV00991
MOTION	Motion To Compel Compliance With Business Records Subpoena And Produce Documents Requested
MOVING PARTY	Defendant Marmar Corning, LLC
OPPOSING PARTY	Third Party Soil Pacific, Inc.