Judge: Michael Shultz, Case: 22CMCV00144, Date: 2023-12-14 Tentative Ruling
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Case Number: 22CMCV00144 Hearing Date: March 26, 2024 Dept: A
22CMCV00144
Amcor Lighting, Inc. dba Jiao Guang USA Group v. Parmida, LLC et al.
[TENTATIVE] ORDER
I.
BACKGROUND
The
complaint alleges that Plaintiff, Amcor Lighting, Inc., delivered custom
lighting and fixtures to Defendants pursuant to a written contract. Defendants allegedly
failed to pay the balance due of $684,625.77 for the delivered merchandise. Plaintiff
alleges claims for breach of contract, account stated, common counts and unjust
enrichment. Defendant Parmida, LLC, filed a cross-complaint against Plaintiff
for false advertising and unfair competition contending that Plaintiff
overstated the lumen output and energy efficiency of the products.
II.
ARGUMENTS
Defendant
Parmida served Plaintiff with a first demand for production of documents on September
28, 2023. Plaintiff did not timely respond
resulting in a waiver of objections. By
agreement, Plaintiff subsequently served responses on December 6, 2023, that
improperly asserted objections according to Defendant. Plaintiff agreed to
produce records, but the document production was incomplete. After the parties
met and conferred, Plaintiff produced additional documents, but the production
remains incomplete.
Plaintiff
argues that its production of documents is complete. Defendant did not meet and
confer after Plaintiff’s supplemental document production on February 11, 2024.
In
reply, Defendant contends that the responses are not credible. Plaintiff’s
contention that it does not have records is undermined by representations made
on Plaintiff’s website.
III.
DISCUSSION
A
motion to compel further responses to a document request is proper where the
requesting party believes the statement of compliance is incomplete, or a
representation of inability to comply is inadequate, incomplete, or evasive
and/or an objection in the response is without merit or too general. (Code Civ. Proc., § 2031.310.) The parties
have met and conferred informally and with the Court without resolution.
A.
Nos. 1-16, 20, 21, and 34. Documents
related to Plaintiff’s efforts to mitigate damages.
Plaintiff
agreed to provide responsive documents to these requests with the exception of
No. 20, which requests documents showing the location of the
already-manufactured goods. Plaintiff stated it was unable to comply because
such documents do not exist. Plaintiff disclosed that the goods are located at
Plaintiff’s factory in Taizhou City, Zhejiang Province China.
Defendant
contends that Plaintiff’s response is “frankly unbelievable” and that Plaintiff
“must have” business records reflecting the location of the goods. Defendant’s
disbelief does not establish that Defendant has a right to a different answer. (Holguin
v. Superior Court (1972) 22 Cal.App.3d 812, 821 [“We
do not see, however, how any court can force a litigant to admit any particular
fact if he is willing to risk a perjury prosecution or financial sanctions."
(Holguin
at 820.].) Plaintiff’s response is verified
and Code-complaint.
While
Plaintiff agreed to provide responsive documents to the other requests
concerning mitigation of damages, Defendant generally contends that the
documents produced are incomplete or nonresponsive because other documents
Defendant wants must “necessarily exist.” (Opp. Sep. Stmt. 2:18-21.) Defendant is
unsatisfied with Plaintiff’s production to No. 2 because Plaintiff produced invoices
concerning sale of other goods, none of which match the custom goods at issue. Defendant
contends Plaintiff should explain the discrepancy and explain other questions
raised by the production.
Plaintiff’s
response is Code-compliant. That the response raises other questions in
Defendant’s mind does not entitle Defendant to different answers or answers to
those particular questions.
Defendant
is dissatisfied with Plaintiff’s production because it is “litigation-created”
and not responsive. (No. 3, 34).
However, Plaintiff agreed to comply with the requests and produced ledgers and
photographs of its inventory among other responsive documents. While Defendant
may believe that the documents produced do not answer all of Defendant’s
questions, this belief does not impose a duty on Plaintiff to find “more
responsive” documents. Plaintiff is obligated to produce what it has after
diligent search and inquiry. The propounding of discovery does not obligate a responding
party to “prepare his opponent’s case” even if facts learned “are antagonistic
to their trial posture.” (Holguin at
821.)
Defendant
incorporates the same argument to Plaintiff’s production in response to
Requests 4-20. Plaintiff agreed to comply and did comply. That is all it is
obligated to do, notwithstanding Defendant’s belief, or that the production
raises other questions. Defendant has not established why it is entitled to
different answers.
Plaintiff
agreed to produce documents concerning testing performed on the goods delivered
to Defendant and produced testing and sampling reports, and inspection records for
the goods for purposes of quality control. (Req. 21.) The records produced are
not satisfactory to Defendant because they do not specifically explain what testing
was performed. Again, Defendant has not shown why Plaintiff is required to
answer additional questions as part of a document production or even to create
documents that answer Defendant’s specific questions.
Plaintiff
produced all communications with “Energy Star” as requested by Defendant. (Req.
22). Defendant now asks particularly for Plaintiff’s communications with
“Energy Star.” The request was for “all documents.” Plaintiff agreed to comply
and produced records. Defendant can conduct supplemental discovery if the
request was not specific enough.
B.
No. 33 Request
for model samples ready for delivery.
Plaintiff
did not expressly object to the request, but asserted that it could not comply
because the model samples were in China and not “readily available.” Plaintiff
stated that Defendant could obtain samples by paying for shipping costs.
Defendant believes Plaintiff is objecting based on undue burden and expense, an
objection it has waived, and therefore, Plaintiff should bear the burden of
costs.
Plaintiff
is not objecting to the production, but is making the exemplars available for
inspection in China. As the demanding
party, Defendant bears the burden of any “special attendant costs” of
production based on principles of fundamental fairness and equity. (San
Diego Unified Port Dist. v. Douglas E. Barnhart, Inc.
(2002) 95 Cal.App.4th 1400, 1404 [“When a party
demands discovery involving significant ‘special attendant’ costs beyond those
typically involved in responding to routine discovery, the demanding party
should bear those costs.”].)
While
the discovery at issue in San Diego Unified involved destructive
testing, the Court of Appeal concluded that the cost of the discovery "is
to be shared equally by the parties who have either affirmatively requested
such testing or voluntarily agreed to contribute to its cost." (San
Diego Unified at 1406.) The trial
court abused its discretion in forcing all parties to share in costs.
Accordingly,
Parmida, as the demanding party, bears the burden of attendant costs associated
with inspecting exemplars in China.
C.
Requests 23-32 relevant to Parmida’s
cross-complaint
The
parties do not dispute the relevance of the documents sought. The requests seek
documents in Plaintiff’s possession concerning the lumen output of its product
and related information. Plaintiff
responded that it was either unable to comply because the document did not
exist, or may have existed but cannot be found. Plaintiff’s response under
these circumstances requires the following:
“A representation of inability to comply with the particular
demand for inspection 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 believes Plaintiff should
identify the exact document that used to exist, what happened to the documents
and when. Defendant, however, specifically described the document to be
produced which Plaintiff disclosed was either lost or never existed. Defendant
asks for more than the Code requires.
IV.
CONCLUSION
Based
on the foregoing, Defendant’s motion to compel further responses to Defendant’s
document request is DENIED.