Judge Michael E. Whitaker, Case Number: 23SMCV01691, Date: 2024-03-07 Tentative Ruling

Judge: Michael E. Whitaker, Case: 23SMCV01691, Date: 2024-03-07 Tentative Ruling

Plaintiff Faith Strongheart (“Plaintiff”) asserts in the First Amended Complaint against Defendants Nonfiction Unlimited, Inc., Michael Degan and Patrick Degan claims of violations of the Labor Code. including failing to pay overtime and reimburse Plaintiff for certain business expenses.

Plaintiff moves the Court for an order compelling Defendant Nonfiction Unlimited Inc. (“Defendant”) to serve further responses to the following discovery requests:

1. Requests For Production of Documents (“RFP”), Set 1, Propounded to Defendant

A notice of motion to compel further responses must be “given within 45 days of the service of the verified response, or any supplemental verified response, 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 demands for production of documents. (Ibid.)

Here, Plaintiff filed the motion on the date set forth above. Defendant has not objected to the timeliness of the motion.

A motion to compel must be accompanied by a meet and confer declaration under Code of Civil Procedure section 2016.040. (Code Civ. Proc., § 2031.310, subd. (b)(2).) A meet and confer declaration must state facts showing a reasonable and good-faith attempt at an informal resolution of each issue presented in the motion. (Code Civ. Proc., § 2016.040.)

“The Discovery Act requires that, prior to the initiation of a motion to compel, the moving party declare that he or she has made a serious attempt to obtain an informal resolution of each issue. This rule is designed ‘to encourage the parties to work out their differences informally so as to avoid the necessity of a formal order. . . . This, in turn, will lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes.” (Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1434-1435, citations omitted [cleaned up].) To comply, “A reasonable and good-faith attempt at informal resolution entails something more than bickering with [opposing counsel]. Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.” (Townsend, supra, 61 Cal.App.4th at p. 1439; see also Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294 [to satisfy the attempt at informal resolution required in section 2016.040 opposing parties must do more than try to persuade each other of their errors].) In short, the Discovery Act “requires that there be a serious effort at negotiation and informal resolution.” (Townsend, supra, 61 Cal.App.4th at p. 1438.)

To that end, trial courts are entrusted with discretion and judgment to determine the necessary effort required to satisfy the requirement of an informal resolution. (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 433.) In determining if parties have satisfied Section 2016.040, judges may consider “the history of the litigation, the nature of the interaction between counsel, the nature of the issues, the type and scope of discovery requested, the prospects for success and other similar factors can be relevant.” (Id. at pp. 431-432 [holding that the trial court was correct in determining that sending a letter with oppositions was an insufficient attempt at an informal resolution].) In sum, meet and confer efforts should go beyond merely sending letters to each other stating each party’s respective positions.

Here, as set forth in the Declaration Nina Montoya (“Montoya”), counsel for Plaintiff, Plaintiff asserts she has engaged in a reasonable and good faith attempt at an informal resolution of the issues presented in the motion as follows:

· On September 26, 2023, Plaintiff sent a meet and confer letter in response to Defendant’s discovery responses. (See Declaration of Nina Montoya, Exhibit B.)

· Emails from November 19, 2023 through November 22, 2023 between Plaintiff and Defendant regarding the scheduling of, and participation in, an Informal Discovery Conference. (See Declaration of Nina Montoya, Exhibit C.)

· Emails from December 18, 2023 and January 3, 2024 between Plaintiff and Defendant addressing Defendant’s discovery responses. (See Declaration of Nina Montoya, Exhibit D.)

Although the Court finds Plaintiff’s meet and confer efforts to be wanting, those efforts do meet the minimal requirements under the Discovery Act especially when Defendant does not object to the motion based upon Plaintiff’s failure to meet and confer in a meaningful manner in an effort to resolve the underlying discovery issues informally.

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, Plaintiff has filed a separate statements related to the motion which complies with Rule 3.1345.

“Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc., § 2017.010.)

“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].)

With respect to demands for inspection of documents or other items, the Discovery Act provides as follows:

The party to whom a demand for inspection, copying, testing, or sampling has been directed shall respond separately to each item or category of item by any of the following: (1) A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling pursuant to paragraph (2) of subdivision (c) of Section 2031.030 and any related activities. (2) A representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item. (3) An objection to the particular demand for inspection, copying, testing, or sampling.

(Code Civ. Proc., § 2031.210, subd. (a).) “A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.” (Code Civ. Proc., § 2031.230.)

Defendant agrees to either produce the privilege log as requested or to produce the subject documents unredacted. (See Declaration of Michael J. Khouri, ¶ 16.) As such, the Court denies Plaintiff’s motion, in part, as moot.

(a) The party to whom the demand for inspection, copying, testing, or sampling is directed shall sign the response under oath unless the response contains only objections.

(b) If that party is a public or private corporation or a partnership or association or governmental agency, one of its officers or agents shall sign the response under oath on behalf of that party. If the officer or agent signing the response on behalf of that party is an attorney acting in that capacity for a party, that party waives any lawyer-client privilege and any protection for work product under Chapter 4 (commencing with Section 2018.010) during any subsequent discovery from that attorney concerning the identity of the sources of the information contained in the response.

(Code Civ. Proc., § 2031.250, subds. (a)-(c); see generally Steele v. Totah (1986) 180 Cal.App.3d 545, 550 [“attorney verification of requests for admissions under section 2033 is insufficient”].)

Here, Plaintiff argues that Defendant’s responses are unverified. (See Plaintiff’s Separate Statement in Support.) “Unsworn responses are tantamount to no responses at all.” (Appleton v. Superior Court (1998) 206 Cal.App.3d 632, 636.)

In response, Defendant tacitly concedes that it did not verify its responses but instead its counsel of record, Michael J. Khouri, signed the verification. (See Defendant’s Separate Statement in Opposition.) Yet, Defendant contends that under California Rules of Court, rule 7.103, the verification signed by counsel is sufficient. The Court disagrees.

First, Code of Civil Procedure section 2031.250 is the controlling authority regarding verifying responses to requests for production of documents. Second, Rule 7.103 applies to the execution of pleadings in probate and mental health cases, not in civil cases.

In response to both requests, Defendant states: “I will allow this request in whole and will provide the documents or things as requested.” Although the responses are not couched in legalese, the Court finds the responses to be compliant under Code of Civil Procedure section 2031.210. There is no ambiguity that Defendant intends to produce responsive documents or things as requested.

Yet Plaintiff contends that under Code of Civil Procedure section 2031.280 that the actual production of the responsive documents or things by Defendant is faulty. Section 2031.280 in relevant part states: “Any documents or category of documents produced in response to a demand for inspection, copying, testing, or sampling shall be identified with the specific request number to which the documents respond.” (Code Civ. Proc., § 2031.280, subd. (a).)

Defendant identified in response to the underlying Form Interrogatories two documents: (1) Letter from Edward Kerns with attachments (43 pages) and (2) Internal Audit of Company Credit Card. Plaintiff does not contend that Defendant failed to produce the responsive documents, but Plaintiff quarrels with the lack of identification (“bates stamping”) and contends that the copies produced are largely illegible.

With respect to the lack of identification, the Court finds that Plaintiff is correct. The documents should have been identified by “bate stamping” them as they relate to specific requests to which Defendant is producing such documents.

With respect to the illegible copies, Defendant should permit Plaintiff to inspect the “original” versions of the responsive documents in its possession, custody and control and allow for Plaintiff to make copies of such documents which are readable.

As such, the Court grants in part Plaintiff’s motion to compel a further production and/or inspection of documents or things responsive to Requests for Production Nos. 2-3.

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: “”Except as provided in subdivision (j), 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.” (See also Code. Civ. Proc., § 2031.320, subd. (b).)

Here, Plaintiff seeks monetary sanctions in connection with the motion based upon Defendant’s failure to produce responsive documents or things under Code of Civil Procedure section 2031.280. The Court finds Defendant’s failure, in part, to comply with Section 2031.280 to be an abuse of the discovery process, warranting monetary sanctions. Accordingly, the Court will impose monetary sanctions against Defendant, in the amount of $2774.00 which represents four hours of attorney time to prepare the moving and reply papers, and attend the hearing, at $675 per hour, plus the motion filing fee of $74.[1]

Therefore, the Court grants Plaintiff’s motion to compel further responses per Code of Civil Procedure sections 2031.310, 2031.280 and 2031.320, and orders Defendant to serve verified and code compliant responses to the Requests for Production of Documents, Set 1, as noted above, within 30 days of notice of the Court’s orders. In addition, the Court orders Defendant to identify all responsive documents or things, and/or permit Plaintiff to inspect such responsive documents or things, as noted above, within 30 days of notice of the Court’s orders.

Further, the Court orders Defendant to pay monetary sanctions in the amount of $2774.00 to Plaintiff, by and through counsel for Plaintiff, within 30 days of notice of the Court’s orders.

Plaintiff shall provide notice of the Court’s orders and file a proof of service regarding the same.

[1] “Where sanctions are sought against the opposing party's counsel, the notice of motion must expressly so state. It is not enough simply to attach declarations or a transcript showing that the deponent refused to appear or answer questions on counsel's advice.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2023) ¶ 8:1985 (citing Blumenthal v. Superior Court (1980) 103 CA3d 317; Marriage of Fuller (1985) 163 CA3d 1070); see also id. at ¶ 8:1986 [“Where an award is sought against the attorney for advising the opposing party not to answer or respond, the notice of motion must identify the opposing counsel and state that sanctions are being sought against such counsel personally”].) Here, Plaintiff’s notice of motion fails to identify Defendant’s counsel. Consequently, Plaintiff’s request for monetary sanctions against Defendant’s counsel of record is procedurally defective.

DEPARTMENT	207
HEARING DATE	March 7, 2023
CASE NUMBER	23SMCV01691
MOTION	Motions to Compel Further Responses to Requests for Production of Documents, Set 1
MOVING PARTY	Plaintiff Faith Strongheart
OPPOSING PARTY	Defendant Nonfiction Unlimited Inc.