Judge Michael E. Whitaker, Case Number: 24SMCV00440, Date: 2024-10-29 Tentative Ruling

Judge: Michael E. Whitaker, Case: 24SMCV00440, Date: 2024-10-29 Tentative Ruling

This case arises from a dispute over the construction of a single family home in Malibu. On January 30, 2024, Plaintiff Daniel Albertstone (“Plaintiff”) brought suit against Defendants Peterbuilt, Inc. (“Defendant” or “Peterbuilt”); Peter Berman; and Suzanne Berman alleging four causes of action for (1) breach of contract; (2) fraud; (3) negligent misrepresentation; and (4) negligence.

Plaintiff now moves to compel further production of financial documents in response to the Requests for Production of Documents, Set one (“RPD”) against Defendant.[1] Defendant opposes the motion and Plaintiff replies.

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.; see also Vidal Sassoon, Inc. v. Superior Court (1983) 147 Cal.App.3d 681, 683 [“This statute is mandatory and the court may not entertain a belated motion to compel”]; Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410 [the trial court is without authority to rule on motions to compel further discovery responses that are untimely].)

In support of the Motion, Plaintiff has provided the Declaration of Daniel Albertstone, which indicates:

5. Plaintiff served his First Set of Requests for Production of Documents on PeterBuilt on March 21, 2024. A true and correct copy is attached hereto as Exhibit 1.

6. Defendant PeterBuilt served its Responses and Objections to Plaintiff’s Requests for Production of Documents, Set One on April 2, 2024. A true and correct copy is attached hereto as Exhibit 2.

7. The requests at issue here are requests numbers 10 and 11, which seek documents that “evidence, refer, or relate to any transfer of money between [the Bermans and PeterBuilt].”

8. Unfortunately, Defendants initially refused to produce any documents in response to these requests on the basis that the requests violated Civil Code 3295(c).

9. I subsequently requested Defendants’ counsel, Sterling Tipton, to supplement his client’s production of responsive documents. However, he refused to do so on the grounds that the requests violated Civil Code section 3295(c). I tried, unsuccessfully, to persuade Mr. Tipton that his client’s position was untenable, in that Civil Code section 3295 (c) did not constitute a bar to Plaintiff requesting documents to support his alter ego allegations against Defendants.

10. Because of this impasse, I requested the Court to schedule an Informal Discovery Conference. An Informal Discovery Conference with the Court followed on July 30, 2024. During that conference, I informed the Court that to resolve the dispute I would consider dropping my claim for punitive damages provided only the parties could reach agreement on the documents Defendants were willing to produce. The Court advised the parties that if the matter could not be informally resolved that Plaintiff was authorized to file a motion to compel. Unfortunately, as described below, I was unable to later reach agreement with Defendants.

11. Since the Informal Discovery Conference, the parties engaged in multiple efforts to resolve the dispute. Due to the length of time it was taking to complete the meet and confer process, Mr. Tipton informed me that he was providing Plaintiff with an open extension to file a motion to compel should the parties be unable to resolve the dispute. As a result, I continued to engage in an effort to avoid judicial intervention.

Defendant objects to the timeliness of the motion. In support, it provides the Declaration of Christine D. Barker, which provides:

7. On August 2, 2024, Defendants served supplement responses to the prior discovery including Requests for Production of Documents.[2]

8. Through August and September of 2024, counsel for Defendants attempted to meet and confer with Plaintiff and offered a to produce 1) the corporate account statements showing transfers to the Bermans during the contract period, and 2) the Project account in exchange for the dismissal of punitive damages claim. Attached as Exhibit 1 is a true and correct copy of meet and confer email communications between Plaintiff and Defendants’ counsel.

Thus, the evidence demonstrate Defendant served its responses to the RPD on April 2, 2024. (See Albertstone Decl., Exh. 2.) The proof of service attached to the responses does not indicate the manner of service (see ibid.), but assuming service by mail, which extends Plaintiff’s time to move to compel by five calendar days, Plaintiff’s deadline to move to compel further responses to May 22, 2024. Yet, Plaintiff did not move to compel further responses until October 2, 2024.

Plaintiff contends the delay is permissible by virtue of Defendants’ counsel’s “open extension to file a motion to compel should the parties be unable to resolve the dispute.” (Alberstone Decl. ¶ 11.) However, in order to extend the deadline, the statute requires (1) a specific later date to which the parties agreed (2) in writing.

An open or indefinite extension is not a specific later date. Further, there is no evidence that the agreement was made in writing. The Court has reviewed the correspondence attached to the Barker Declaration, and although Defendants’ counsel discusses the possibility of further productions, there is no mention of an extension.

Therefore, the Court finds that Plaintiff has not met his burden of proof to demonstrate that he obtained an extension of time to file a motion to compel further in writing by a specific later date.

As such, the Court finds the motion untimely and the Court is without jurisdiction to rule on the motion under Code of Civil Procedure section 2031.310, subdivision (c).

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.”

Here, Defendant seeks monetary sanctions in connection with the motion, but Defendant does not base its request for monetary sanctions specifically upon Plaintiff bringing an untimely motion. (See Opposition, § E, pp. 9-10.) Accordingly, the Court declines to impose monetary sanctions against Plaintiff on the basis of an untimely motion.

For the foregoing reasons, the Court denies Plaintiff’s motion in its entirety as untimely. Nonetheless, the Court denies Defendant’s request for monetary sanctions.

Plaintiff shall provide notice of the Court’s ruling and file the notice with a proof of service forthwith.

[1] Although Plaintiff styles the motion as one to compel production, the Court determines that Plaintiff has not brought a motion to compel production under Code of Civil Procedure section 2031.320 as Defendant in its responses to the RPD, Nos. 10 and 11, did not indicate it was producing responsive documents but then failed to do so. (See Plaintiff’s Separate Statement in support of motion.) Instead, the Court construes Plaintiff’s motion as one to compel further responses under Code of Civil Procedure section 2031.310.

[2] Although Defendant refers to Supplemental Responses being served on August 2, 2024, the Court finds no reference to, or proof of, such supplemental responses in the record, including Plaintiff’s Separate Statement and the Declaration of Daniel Albertstone.

DEPARTMENT	207
HEARING DATE	October 29, 2024
CASE NUMBER	24SMCV00440
MOTION	Motion to Compel Further Production to Requests for Production of Documents, Set 1, Nos. 10 and 11
MOVING PARTY	Plaintiff Daniel Albertstone
OPPOSING PARTIES	Defendants Peterbuilt, Inc.; Peter Berman; and Suzanne Berman