Judge: Monica Bachner, Case: BC638152, Date: 2023-03-03 Tentative Ruling

Case Number: BC638152    Hearing Date: March 3, 2023    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Defendant Philippine Foodtrade Corporation’s motion to compel Plaintiff Consumer Advocacy Group, Inc. to provide further code-compliant responses to Inspection Demands (Set One) Nos. 1-7 and a privilege log pursuant to this Court’s 12/9/2022 Minute Order is granted.  Plaintiff is to produce responsive documents and provide Defendant with code-compliant responses within 15 days of this Court’s ruling.

Defendant’s request for sanctions against Plaintiff is granted in the reduced amount of $2,000.00. 

Plaintiff’s request for sanctions against Defendant is denied.

          Defendant Philippine Foodtrade Corporation (“PFC”) (“Defendant”) moves for an order compelling Plaintiff Consumer Advocacy Group, Inc. (“CAG”) (“Plaintiff”) to provide further code-compliant responses to Defendant’s Inspection Demands (Set One) Nos. 1-7 and a code-compliant privilege log in compliance with this Court’s 12/9/2022 Minute Order. (Notice of Motion, pg. 1; C.C.P. §§2023.010, 2023.020, 2023.040, 2023.050(a)-(c), 2031.300(b), 2031.310, 2031.320.)  Defendant also requests an award of sanctions against Plaintiff in the amount of $12,675.00.  (Notice of Motion, pg. 1; C.C.P. §§2023.010(g), 2023.030(a), 2030.300(c).)  In opposition, Plaintiff requests an award of sanctions against Defendant in the amount of $4,000.00.  (Opposition, pg. 11.)

Background

On July 21, 2022, Defendant served Inspection Demands with seven (7) requests related to Defendant’s laboratory testing of the product at issue (i.e., agar agar), the purchase of the product, the labels on the product, the data and information submitted to California’s Attorney General’s office, the average serving size of product, and frequency of consumption of the product.  (Decl. of Chung ¶2, Exh. A.).  On August 23, 2023, Plaintiff served responses to the Inspection Demand which consisted entirely of boilerplate objections. (Decl. of Chung ¶3, Exh. B.)  On September 23, 2023, Plaintiff served unverified supplemental responses and produced eleven documents.  (Decl. of Chung ¶5, Exh. D.)  On October 21, 2022, Plaintiff served its second supplemental responses. (Decl. of Chung ¶7, Exh. F.)  Although this second supplemental responses were verified, Defendant noted they were deficient, not code-compliant, and asserted objections based on privilege.  (Decl. of Chung ¶7, Exh. F.)  On December 9, 2022, this Court conducted an Informal Discovery Conference (“IDC”) and ordered Plaintiff based on the parties agreement to serve “code-compliant responses, within two weeks, and if attorney-client privilege or work product is being claimed, provide an appropriate log.” (12/9/22 Minute Order.)  This Court further noted that “This agreement has the force and effect of a Court order.”  (12/9/22 Minute Order.)  On December 23, 2022, Plaintiff served its unverified third Supplemental Responses to Plaintiff’s Inspection Demands.  (Decl. of Chung ¶9, Exh. H.)  Plaintiff included a privilege log with a single entry for an unknown number of withheld documents described as “Documents Supporting Certificate of Merit.”  (Decl. of Chung ¶9, Exh. H.)  

Defendant filed the instant motion on February 3, 2023.  Plaintiff filed its opposition on February 17, 2023.  Defendant filed its reply on February 24, 2023.

Meet and Confer

Motions to compel further responses must always be accompanied by meet-and confer-declarations per C.C.P. §2016.040 demonstrating a “reasonable and good faith attempt of an informal resolution of each issue presented by the motion.”  (C.C.P. §§2030.300(b), 2031.310(b)(2).)  Defendant’s counsel declares she sent a meet and confer letter to Plaintiff’s counsel, Reuben Yeroushalmi, dated September 21, 2022, regarding Plaintiff’s deficient responses to Defendant’s Inspection Demand, Set No. One.  (Decl. of Chung ¶4, Exh. C.)  Defendant’s counsel declares she sent a second meet and confer letter to Plaintiff’s counsel dated October 14, 2022, regarding Plaintiff’s unverified supplemental responses to Defendant’s Inspection Demand, Set No. One.  (Decl. of Chung ¶6, Exh. E.)  Parties also attended an IDC on December 9, 2022.  (Decl. of Chung ¶¶8, 12, Exhs. G, K.)  Defendant demonstrated a reasonable and good faith attempt of an informal resolution of each issue presented by the motion.

Motion to Compel Further

          Request No. 1

          This request seeks all documents reflecting the results of laboratory testing of agar agar manufactured, distributed, imported, or sold by Defendant. (5) (6) (7) the frequency that persons in California consume a dessert or other food containing agar agar.  (Separate Statement, pg. 1.)

Request No. 2

This request seeks all documents reflecting the purchase of any agar agar manufactured, distributed, imported, or sold by Defendant, including but not limited to the receipt for purchase.  (Separate Statement, pg. 2.)

Request No. 3

This request seeks copies of every label on every container of agar agar in Plaintiff’s possession, and manufactured, distributed, imported, or sold by Defendant, including but not limited to labels reflecting the lot number, the product number, and expiration date, and such that the lot number, product number, and expiration date, and all writing are readable.  (Separate Statement, pg. 4.)

Request No. 4

This request seeks all documents, including but not limited to data, lab reports, studies, analysis, and opinion, submitted to the California Attorney General’s office with the 60-day notice served on Defendant by Plaintiff and pertaining to exposure to lead by users of agar agar manufactured, distributed, imported, or sold by Defendant, and/or the likelihood of cancer or reproductive toxicity from use of agar agar manufactured, distributed, imported, or sold by Defendant.  (Separate Statement, pg. 6.)

Request Nos. 5, 6, & 7

These requests seek (5) all documents pertaining to the amount of agar agar in the average serving of a dessert or other food where agar agar is an ingredient; (6) all documents pertaining to the average serving size of a dessert or other food that contains agar agar as an ingredient; and (7) all documents pertaining to the frequency that persons in California consume a dessert or other food containing agar agar.  (Separate Statement, pgs. 10, 13, 17.)

Plaintiff failed to serve code-compliant responses to Nos. 1-7 as ordered by the Court in its 12/9/22 minute order. Also, no signed verification was served with Plaintiff’s responses as required by C.C.P. §2031.250. The verification on information and belief is improper.  Plaintiff is directed to produce responsive documents and provide Defendant with a code-complaint verified response. 

In addition, Plaintiff’s objection to Request No. 4 on the basis of California Health and Safety Code §25249.7(h) has been waived as Plaintiff untimely raised the objection for the first time in its unverified Second Supplemental Responses served on December 23, 2022, when responses were initially due on August 23, 2022.  (C.C.P §2031.300(a); Brown v. Superior Court (1986) 180 Cal.App.3d 701, 709 [“Numerous cases have held if an objection to interrogatories is not raised within that 30-day period, the objection is waived, absent good cause for relief.”].) 

Plaintiff failed to comply with C.C.P §2031.240(c)(1) by failing to produce a privilege log with “sufficient factual information” to enable Defendant to evaluate the merits of Plaintiff’s attorney-client privilege and work product objections. Here, the information provided by Plaintiff in its privilege log is limited to a single entry describing the documents collectively “Documents Supporting Certificate of Merit,” authored by “Consultant/Expert; Yeroushalmi & Yeroushalmi” and sent to the Office of California Attorney General.  This description does not provide sufficient information about each document and the type of documents to allow Defendant or this Court to evaluate Plaintiff’s privilege or work product protections.  (Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 130 [“The information in the privilege log must be sufficiently specific to allow a determination of whether each withheld document is or is not [in] fact privileged.”]; see Catalina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, 1130 n.5 [privilege log deficient due to failure to describe documents or contents since not all communications with attorneys are privileged.].)

To the extent Plaintiff claims an inability to produce documents because “All documents responsive to this analysis are in the possession of CAG’s expert,” C.C.P. §2031.230 requires Plaintiff to state, “that a diligent search and reasonable inquiry has been made in an effort to comply with that demand.”  (C.C.P. §2031.230.)  Plaintiff is required to provide a statement specifying that “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 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.”  (C.C.P. § 2031.230.)  Plaintiff is required to provide a statement specifying that “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 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.”  (C.C.P §2031.230.)

Plaintiff waived objections based on premature expert disclosure by failing to timely raise this objection in its initial responses served on August 23, 2022. (C.C.P. §2031.300(a).)

          Conclusion

          Based on the foregoing, Defendant’s motion to compel further is granted as to Request Nos. 1-7.  Plaintiff is ordered to produce responsive documents and provide code-compliant verified responses and a privilege log pursuant to this Court’s 12/9/22 Minute Order.  Plaintiff is to provide Defendant with responses within 15 days of this Court’s ruling.

          Sanctions

C.C.P §2023.010(g) provides that “disobeying a court order to provide discovery” is a “misuse of the discovery process” and the Court may order the payment of reasonable expenses, including attorney fees, incurred because of the failure to comply with the Court’s order.  (C.C.P §2023.030(a).)  The imposition of sanctions is mandatory on a party who fails to comply with a court order.  (C.C.P. §2023.030(a).)

C.C.P. §2031.300(c) provides a “court shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully . . . opposes a motion to compel further response to a demand, unless it finds that one subject to the sanction acted with substantial justification or that other circumstances make the imposition of sanction unjust.”  (C.C.P. §2031.300(c).)

Here, Plaintiff argues it believed that it supplied a code-compliant privilege log and engaged in multiple meet and confer efforts to comply with its obligations.  However, Plaintiff failed to provide verified responses as ordered by this Court’s 12/9/22 Minute Order.

Defendant requests an award of sanctions against Plaintiff in the amount of $12,675.00.  The Court grants Defendant’s request for sanctions in the reduced amount of $2,000.00.

Plaintiff’s request for sanctions against Defendant is denied.

Dated: March _____, 2023

Hon. Monica Bachner

Judge of the Superior Court