Judge: Nathan Vu, Case: 30-2019-01107010, Date: 2022-10-31 Tentative Ruling
Please Note: The hearing on this matter has been changed to 8:30 A.M.
Motion to Compel
Defendant Avalonbay Communities, Inc.’s motion to compel production of documents in response to requests for production of documents (set two) is DENIED.
Both parties’ requests for sanctions are DENIED.
Defendant Avalonbay Communities, Inc. moves to compel Plaintiff Alma Nunez to produce documents in compliance with Plaintiff’s responses to requests for production (set two) numbers 23-25.
Responses to Requests for Production
A party responding to a request for production must respond with one of the following: 1) an agreement to comply, 2) a representation of an inability to comply, or 3) objections. (Civil Proc. Code, § 2031.210(a).)
If a party responds with an agreement to comply and then fails to produce the documents in accordance with that party’s statement of compliance, the requesting party may move for an order compelling compliance. (Civil Proc. Code § 2031.320(a).) There is no fixed time limit for a motion to compel compliance as agreed. (Standon Co., Inc. v. Superior Court (1990) 225 Cal.App.3d 898, 903.)
In this case, Plaintiff responded to each of the three requests for production at issue as follows:
Objection. Propounding party is in possession, custody, and control of the requested documents. In addition, plaintiff has been examined and treated by the following medical provider:
Jan M. Eckermann, MD, FAANS, 1617 Westcliff Dr., Ste 203, Newport Beach, CA 92660 949.514.7456.
A summary or compilation of plaintiff’s medical records is necessary in order to answer the interrogatory and no such compilation or summary exists. The cost or expense of preparing or making the summary or compilation would be substantially the same for the propounding party as for the responding party, which plaintiff offers to propounding party pursuant to Code of Civil Procedure section 2031.230, for those medical records not presently in propounding party’s possession, custody, and control.
This response is ambiguous at best and nonsensical at worst. The initial portion is an objection that the Defendant already has possession, custody, and control of the requested documents, which is an allowed response.
However, the next portion appears to be a response to an interrogatory (rather than a request for production) as it includes the statement “A summary or compilation of plaintiff’s medical records is necessary in order to answer the interrogatory . . . “
In addition, the response refers to Civil Procedure Code section 2031.230, which requires a party to set forth ”the name and address of any natural person or organization known or believed by that party to ha0ve possession, custody, or control of that item or category of item” if the party asserts that it cannot comply with a request for production. While the response does not assert that Plaintiff cannot comply with the request for production, it does give the name and address of a physician.
Although the response is largely unintelligible, it contains no agreement to comply with the requests for production. Thus, the motion is denied insofar as Defendant is seeking to compel Plaintiff to fulfill an agreement to comply with the requests.
Compelling Further Responses to Requests for Production
A party may move for an order compelling further responses to requests for the production of documents on the grounds that: (1) a statement of compliance with the request is incomplete; (2) a representation of inability to comply is inadequate, incomplete, or evasive; or (3) an objection in the response is without merit or too general. (Civil Proc. Code, § 2031.310, subd. (a).) In light of Plaintiff’s inadequate and incomplete responses, the motion to compel could be read as one for further responses pursuant to Section 2031.310(a).
However, a motion to compel a further response must be served within 45 days after service of a verified response. (Civil Proc. Code, § 2031.310, subd. (c).) The 45-day deadline is mandatory and “jurisdictional” such that the court has no authority to grant a late motion. (See Sexton v. Superior Ct. (1997) 58 Cal.App.4th 1403, 1410 [late-filed motion to compel must be denied where objection raised at hearing even if omitted in opposition papers].)
The amended responses at issue were served on 05/27/2022. (See Delashaw Decl., ¶ 5 and Exh. B.) Defendant filed this motion 125 days later on 09/29/2022. Thus, the motion to compel must be denied to the extent it seeks further responses.
Sanctions
The Civil Procedure Code requires the court to impose monetary sanctions against a party, person, or attorney who unsuccessfully makes or opposes a motion to compel, “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.” (Civil Proc. Code, §§ 2031.310, subd. (h), 2031.320, subd. (b).)
Here, although the court denies the motion to compel, Defendant acted with substantial justification and other circumstances make the imposition of a sanction unjust. Plaintiff’s responses were difficult to interpret and, if not for the mandatory 45-day deadline, a motion to compel further responses would have been meritorious.
Plaintiff shall give notice of this ruling.