Judge: Nathan R. Scott, Case: Alvarez v. Abi-Najm, Date: 2022-12-16 Tentative Ruling

Cross-complainant Johnny Tannous Abi-Najm’s sanctions motion was continued from 9/9/22 to today for cross-defendant Sheila Alvarez to provide additional, clarifying responses and for the parties to submit additional briefing.  (See 10/28/22 and 12/9/22 orders.)

The motion is now further granted.

Alvarez shall serve a further supplemental response and pay $3270 in discovery sanctions to Abi-Najm.

The Second Amended Response still contain deficiencies that Alvarez must address.

• The response to Request #116 contains a blank that must be filled in.  (see Abi-Najm’s 10/14/22 brief at p. 5:21)

• Responses that no further responsive documents exist must use statutory language.  (See Abi-Najm’s 10/14/22 brief at p. 8:16.)  Contrary to Alvarez’s claim (see Alvarez’s 1027/22 brief at p. 3), a response stating an inability to comply does require some explanation.  But the explanation need use only the statutory language.  (Code Civ. Proc., § 2031.010.)  Thus, it is not sufficient for Alvarez to state no further responsive documents “exist.”  She must also state whether further responsive documents have “never existed” or otherwise provide a statutorily compliant explanation – “lost,” “stolen,” etc.

• Similarly, Alvarez must supplement her responses to identify which requests have responsive documents that were lost in her email hack.

• As Alvarez states she has now found the original deed of trust, she must supplement her response accordingly and verify it.

As compelling a further supplemental response and imposing additional monetary sanctions are “‘“appropriate to the dereliction”’” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992), the court declines to impose evidentiary, issue, or terminating sanctions or to further the hearing.

Most of Abi-Najm’s concerns do not require any further response from Alvarez.

Most notably, Abi-Najm contends the Second Amended Responses are wrong because they contradict Alvarez’s prior responses, because Alvarez actually has responsive documents, or because Alvarez’s explanation for the lack of responsive documents is false.  (See Abi-Najm’s 10/14/22 brief at pp. 3:6 [asserting contradiction], 3:12 [asserting response to #118 is false], 3:27 [asserting Alvarez must have communicated with third parties], 4:10 [asserting Alvarez must have Navarro property documents], 5:8 [disputing Alvarez’s claim that the Navarro property was a gift], 5:24 [asserting Alvarez must have responsive documents], 6:17 [asserting contradiction], 8:4 [asserting contradiction], 12:3 [asserting Alvarez must still have the documents she provided for recording], 13:8 [asserting Alvarez must still have the documents she provided for recording].)

The court can compel a verification under penalty of perjury but it cannot compel honest responses in the first place.  Abi-Najm’s remedy for any false discovery responses is impeachment at trial.

Production of some non-responsive documents, without more, is more likely to show an abundance of caution rather than discovery abuse.  (See Abi-Najm’s 10/14/22 brief at p. 6:22.)

As these are post-production supplemental responses, there is no need for Alvarez to state she will produce responsive documents if she states she has already produced them.  (See Abi-Najm’s 10/14/22 brief at p. 7:22.)

Abi-Najm’s request for judicial notice is granted.

Abi-Najm shall give notice.