Judge: Michael P. Linfield, Case: 20STCV36221, Date: 2023-05-10 Tentative Ruling
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Case Number: 20STCV36221 Hearing Date: May 10, 2023 Dept: 34
SUBJECT: Motion to
Compel Further Responses and Compliance from Defendant Mario Beltran to
Plaintiff From The Earth, LLC’s Request for Production of Documents, Set One
[and] Request for Sanctions in the Amount of $6,935.00 Against Defendant Mario
Beltran and Its Counsel
Moving Party: Plaintiff
From The Earth, LLC
Resp. Party: Defendant Mario Beltran
Plaintiff’s
RPDs Motion is GRANTED as to Requests for Production of Documents Nos. 1, 3, 4,
9 and 12.
Monetary sanctions are AWARDED in favor of Plaintiff and against
Defendant and his Counsel in the amount of $4,953.57.
BACKGROUND:
On September 22,
2020, Plaintiff From The Earth, LLC filed its Complaint against Defendants City
of Commerce and Mario Beltran on causes of action for violation of the
Fourteenth Amendment of the United States Constitution and extortion.
On October 28, 2020,
Defendant City of Commerce filed its Answer to the Complaint.
On March 17, 2023,
Defendant Mario Beltran filed his Answer to the Complaint.
On April 13, 2023,
Plaintiff filed its Motion to Compel Further Responses and Compliance from
Defendant Mario Beltran to Plaintiff From The Earth, LLC’s Request for
Production of Documents, Set One [and] Request for Sanctions in the Amount of
$6,935.00 Against Defendant Mario Beltran and Its Counsel (“RPDs Motion”).
Plaintiff concurrently filed its Separate Statement.
On April 25, 2023,
Defendant Mario Beltran (“Defendant”) filed his Opposition. Defendant
concurrently filed his POS-050/EFS-050, Proof of Service. The Opposition
includes a request for sanctions.
On May 3, 2023,
Plaintiff filed its Reply.
ANALYSIS:
I.
Legal
Standard
On receipt of a
response to form interrogatories, special interrogatories, and/or demand
requests, the propounding and/or demanding party “may move for an order
compelling further response” if: (1) the response is evasive or incomplete; (2)
the representation of inability to comply is inadequate, incomplete, or
evasive; or (3) the objection is without merit or too general. (Code Civ.
Proc., §§ 2030.300, subd. (a), 2031.310, subd. (a).)¿¿¿¿
“Unless notice of this motion is 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 demanding party and the
responding party have agreed in writing, the demanding party waives any right
to compel a further response” to the demands or interrogatories. (Code Civ.
Proc., §§ 2030.300, subd. (c), 2031.310, subd. (c).)
The court shall
impose monetary sanctions against any party, person, or attorney who
unsuccessfully makes or opposes a motion to compel further interrogatories
and/or a motion to compel further production of documents, unless the Court
finds that the one subject to sanction acted with substantial justification or
that other circumstances make the imposition of the sanction unjust. (Code Civ.
Proc., §§ 2030.300, subd. (d), 2031.310, subd. (h).)¿
¿¿
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 further response, 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. (Code Civ. Proc., § 2033.290, subd. (d).)
II.
Discussion
A. The Requests for Production of Documents
On October 27, 2022, Plaintiff
propounded its requests for production of documents (“RPDs”) on Defendant.
(RPDs Motion, p. 3:17–21 and Exh. A.) Plaintiff now seeks further responses to
the following RPDs. (Separate Statement.)
REQUEST FOR PRODUCTION #1
Produce all DOCUMENTS that
reference or refer to plaintiff From The Earth, LLC, (“FTE”).
REQUEST FOR PRODUCTION #3
Produce all DOCUMENTS identified
in Form Interrogatories, Set No. 1, served upon defendant Mario Beltran
(‘BELTRAN") by FTE in this lawsuit.
REQUEST FOR PRODUCTION #4
Produce all DOCUMENTS that support
defendant BELTRAN’s affirmative defenses in this lawsuit.
REQUEST FOR PRODUCTION #9
Produce all written
communications, including, without limitation, text messages and emails,
between BELTRAN and FTE from January 1, 2017, through October 27, 2022.
REQUEST FOR PRODUCTION #11
Produce all DOCUMENTS that
reference or refer to all commercial cannabis applicants for which BELTRAN
acted as a lobbyist from January 1, 2017, through October 27, 2022.
REQUEST FOR PRODUCTION #12
Produce all DOCUMENTS that support
the BELTRAN’s contention that BELTRAN is not liable to FTE for violation of
extortion.
REQUEST FOR PRODUCTION #17
Produce all DOCUMENTS that
reference or refer to any cannabis license applications filed with that CITY
for which BELTRAN acted as the applicant’s lobbyist.
B. The Parties’ Arguments
Plaintiff argues: (1) that
Plaintiff is entitled to an order compelling Defendant’s compliance with his
agreement to produce documents responsive to RPD Nos. 1, 3, 4, 9, 12, and 17;
(2) that Plaintiff has good cause for an order compelling Defendant to provide
a further responses to RPD No. 11; and (3) that Plaintiff has met and conferred
with Defendant to informally resolve this discovery dispute. (RPDs Motion, pp.
6:2–4, 7:5–7, 10:22–23.)
Defendant argues: (1) that
Defendant has substantially complied in providing three Bates Numbers
responsive to the RPDs in which he agreed to provide documents; (2) that
Defendant is asserting his First Amendment privilege regarding his lobbying
activity; and (3) that if the Court does compel any information, that it should
be made with a protective order that contains a provision for attorney eyes
only. (Opposition, pp. 2:18–19, 4:1–4, 5:8–11.)
In its Reply, Plaintiff argues: (1)
that there is no evidence that Defendant engaged in protected petitioning activity;
(2) that Defendant only produced one single-paged invoice and two voice
messages, which is insufficient as that is not all possible documents responses
to the RPDs; (3) that Defendant has not complied with the Code of Civil
Procedure, including by not properly asserting why no further responses can be
made; (4) that Defendant’s citation to St. Mary v. Superior Court (2014)
223 Cal.App.4th 762 does not help Defendant; and (5) that Defendant’s privilege
log is deficient in that it does not provide any information that would allow
one to evaluate what is the claimed privilege. (Reply, pp. 2:3–6,
C. Discussion
Defendant cites
St. Mary, supra, at 778 for the proposition that Defendant has
substantially complied. (Opposition, p. 3:2–17.) Defendant quotes St. Mary
as stating that “Where there is compliance as to all matters of substance
technical deviations are not to be given the stature of noncompliance.” (See Opposition, p. 2:7-9.) But the submission of one document and two
voice messages is not “substantial compliance” to the RPDs when it appears that
Defendant is withholding a significant amount of documents.
The Court
agrees with Defendant that lobbying local governments (which is what Defendant
claims to have been doing) is an activity protected by the First Amendment.
However, the protection of private associational rights is not an absolute bar
to discovery.
For example, Defendant cites Britt
v. Superior Court (1978) 20 Cal.3d 844. (Opposition, p. 4:18–24.) In
relevant part, Britt states:
“Of course, as
with all other First Amendment rights, the right of
associational privacy is not absolute, and past cases recognize that under some
circumstances disclosure may permissibly be compelled. Because of the
constitutional interests at stake, however, the authorities establish that
private association affiliations and activities such as those at issue here are
presumptively immune from inquisition, and thus the government bears the burden
of demonstrating the justification for compelling disclosure. Moreover, the
cases also make clear that in this context the government's burden is a
particularly heavy one: To justify any impairment there must be present a
compelling state interest which justifies the substantial infringement of First
Amendment rights. It is basic that no showing merely of a rational relationship
to some colorable state interest would suffice; in this highly sensitive constitutional
area only the gravest abuses, endangering paramount interests, give occasion
for permissible limitation.”
(Britt, supra, at p. 855 [cleaned
up].) Notably, the Court of Appeal in Britt denied a discovery request
for private associational information of multiple types and a complete medical
history when the causes of action merely involved issues with diminution of
property values, personal injuries and emotional disturbances allegedly cause
by the noise, vibrations, air pollution and smoke associated with the operation
of an airport.
Here,
Plaintiff has generally met the compelling interest standard. Plaintiff has
alleged that Defendant is liable for extortion, based on the same activities
that Defendant is now claiming are protected activity. The documents Plaintiff
requests in discovery are the same materials that would assist Plaintiff in
discovering whether there is evidence of Defendant extorting Plaintiff.
Moreover, with
the exception of RPDs Nos. 11 and 17, they requests are sufficiently narrow as
to not require any further piercing of Defendant’s First Amendment rights than
is necessary. (Britt, supra, at p. 856.) Unlike in Britt,
the RPDs are not requesting information about Defendant’s unrelated political
affiliations, medical information, or other areas that Defendant retains the
right to protect. Nor does Plaintiff request in the RPDs information about
Defendant’s non-cannabis lobbying.
However, the Court
finds that RPDs Nos. 11 and 17 are overbroad.
They require production of all documents that “reference
or refer” to any other cannabis applications “for which BELTRAN acted as the
applicant’s lobbyist.” This would include
any invoice or bill, note, message or other communication involving third
parties. The Court will not require
production of documents in response to these requests.
Finally,
Defendant requests a protective order in case the Court grants the motion and
compels a further response to the RPDs. At this time, the Court declines to
issue such a protective order. Defendant has not provided sufficient evidence
for the Court to determine that a protective order would be appropriate. The
Parties may file a stipulation on the issue of a protective order if they so
choose.
The Court
GRANTS the RPDs Motion as to Requests for Production of Documents Nos. 1, 3, 4,
9 and 12.
The Court
notes that the papers include a discussion of privilege logs. To the extent any
documents are withheld, the withholding party must provide the other party with
a privilege log. The privilege log must include the basis upon which any
documents are being withheld.
D. Sanctions
Both Plaintiff and Defendant
request sanctions. Plaintiff requests $6,935.00 in monetary sanctions against
Defendant his Counsel. (RPDs Motion, p. 11:10–1.) Defendant requests the same
amount of monetary sanctions that Defendant requests. (Opposition, p. 5:12–14.)
The Court granted the majority of Plaintiff’s
RPDs Motion. The Court does not find that Defendant acted with substantial
justification or that other circumstances make the imposition of a monetary
sanction unjust on Defendant. Thus, the Court is required to impose a monetary
sanction on Defendant and his Counsel.
It is not
uncommon for courts to compare opposing counsel’s fees to help determine
whether the moving party’s fees are reasonable. That is because a “comparative
analysis of each side’s respective litigation costs may be a useful check on
the reasonableness of any fee request.”¿¿(Mountjoy v. Bank of Am., N.A.¿(2016)
245 Cal.App.4th 266, 273, 281, quoting¿Donahue v. Donahue¿(2010) 182
Cal.App.4th 259, 272.)¿“[T]here is one particularly good indicator of how much
time is necessary [for the purpose of determining reasonableness of attorneys’
fees] . . . and that is how much time the other side’s lawyers spent . . .
[S]uch a comparison is a useful guide in evaluating the appropriateness of time
claimed. If the time claimed by the prevailing party is of a substantially
greater magnitude than what the other side spent, that often indicates that too
much time is claimed. Litigation has something of the tennis game, something of
war, to it; if one side hits the ball, or shoots heavy artillery, the other
side necessarily spends time hitting the ball or shooting heavy artillery
back.” (Democratic Party of Washington State v. Reed¿(9th¿Cir. 2004) 388
F.3d 1281, 1287.)¿
Here, Plaintiff requested $6,935.00 in
monetary sanctions, and Defendant requested the exact same amount. While the
Court might normally find that $6,935.00 is an unreasonably large lodestar for
these filings, the Parties’ Counsel appear to agree that the value of their
work is worth at least that amount.
However, since Plaintiff was only successful
on 5 of its 7 Requests for Production of Documents, the Court is going to
reduce the requested sanctions by 5/7.
The Court AWARDS monetary sanctions in favor
of Plaintiff and against Defendant and his Counsel in the amount of $4,953.57.
III.
Conclusion
Plaintiff’s
RPDs Motion is GRANTED as to Requests for Production of Documents Nos. 1, 3, 4,
9 and 12.
Monetary sanctions are AWARDED in favor of Plaintiff and against
Defendant and his Counsel in the amount of $4,953.57.