Judge: Nathan Vu, Case: 30-2021-01224730, Date: 2023-07-24 Tentative Ruling
Motion to Compel Discovery
Plaintiff Rafael C. Ramos’ Motion to Compel Further Responses to Plaintiff’s Request for Production of Documents, Set One is DENIED.
Plaintiff Rafael C. Ramos’ Request for Monetary Sanctions is DENIED.
The court declines to rule on Plaintiff Rafael C. Ramos’ evidentiary objections to the Declarations of Matthew Fyie and Jodi Schebel and Plaintiff’s request that Matthew Fyie and Jodi Schebel testify at an evidentiary hearing because their declarations are immaterial to the court’s ruling.
Plaintiff Rafael C. Ramos moves to compel further responses to Request for Production of Document, Set One and for monetary sanctions against Defendant Ford Motor Company (Defendant Ford).
Standard to Compel 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. (Code Civ. Proc., § 2031.310, subd. (a).)
Meet and Confer on Motions to Compel Further Responses
A motion to compel further responses to a request for production must include a meet and confer declaration consistent with Civil Procedure Code section 2016.040. (Code Civ. Proc., § 2031.310, subd. (b)(2).) In turn, Section 2016.040 requires that the moving party have made “a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc., § 2016.040.)
The meet-and-confer requirement “is designed ‘to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order . . . .’ This, in turn, will lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes.” (Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1435, quoting McElhaney v. Cessna Aircraft Co. (1982) 134 Cal.App.3d 285, 289.) This “requires that there be a serious effort at negotiation and informal resolution” and “that counsel attempt to talk the matter over, compare their views, consult, and deliberate.” (Townsend v. Superior Court, supra, 61 Cal.App.4th at pp. 1438-1439.)
As the Court of Appeal has explained:
A determination of whether an attempt at informal resolution is adequate also involves the exercise of discretion. The level of effort at informal resolution which satisfies the “reasonable and good faith attempt” standard depends upon the circumstances. In a larger, more complex discovery context, a greater effort at informal resolution may be warranted. In a simpler, or more narrowly focused case, a more modest effort may suffice. The . . . nature of the issues, the type and scope of discovery requested, the prospects for success and other similar factors can be relevant. Judges have broad powers and responsibilities to determine what measures and procedures are appropriate in varying circumstances. Judges also have broad discretion in controlling the course of discovery and in making the various decisions necessitated by discovery proceedings.
A single letter, followed by a response which refuses concessions, might in some instances be an adequate attempt at informal resolution, especially when a legitimate discovery objective is demonstrated. The time available before the motion filing deadline, and the extent to which the responding party was complicit in the lapse of available time, can also be relevant. An evaluation of whether, from the perspective of a reasonable person in the position of the discovering party, additional effort appeared likely to bear fruit, should also be considered. Although some effort is required in all instances, the level of effort that is reasonable is different in different circumstances, and may vary with the prospects for success. These are considerations entrusted to the trial court’s discretion and judgment, with due regard for all relevant circumstances.
(Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431-433, citations omitted.)
In this case, Plaintiff takes the position that he made two efforts to meet and confer prior to bringing this Motion to Compel. However, the first communication was sent the same day that Plaintiff served his discovery requests and cannot be a serious effort to resolve the parties’ difference because there were no differences at that point. (See Decl. Rebecca E. Neubauer in Supp. of Pltf.’s Mot. to Compel Further Responses (Neubauer Decl.), ¶¶ 20, 29.)
The second communication sent on January 30, 2023 was an adequate effort to initiate negotiations and informal resolution. (See id., ¶ 30, Exh. 8.) However, Plaintiff failed to follow up when Defendant Ford responded with its explanations for its positions and also offered to supplement some of its responses. (See id., ¶ 32, Exh. 10.)
Despite this fact, Defendant Ford unilaterally served supplemental responses and Plaintiff complained that the supplemental responses were deficient. (See Decl. of Hannah H. Biemann in Supp. of Def. Ford Motor Co. and Villa Ford of Orange’s Opp’n (Biemann Decl.), ¶¶ 4-5, Exhs. D-E.) Defendant Ford then offered to further supplement its production with thousands of additional pages. (See id. ¶¶ 4-5, Exh. F.) Plaintiff failed to respond to this offer to produce more documents.
Plaintiff’s efforts, or lack thereof, were not sufficient to comply with the meet-and confer requirement. Defendant Ford’s offers to supplement its responses could have resolved the issues if Plaintiff had responded to the offers. However, Plaintiff failed to respond to two offers to supplement the production and thus, cannot be said to have put in a “a serious effort at negotiation and informal resolution.” (Townsend v. Superior Court, supra, 61 Cal.App.4th at pp. 1438-1439.)
Deadline for Motions to Compel Further Responses
A motion to compel a further response must be served within 45 days after service of a verified response. (Code Civ. Proc., § 2031.310, subd. (c).) The 45-day deadline is mandatory and “jurisdictional” such that the court has no authority to grant a late-filed motion. (See Sexton v. Superior Court (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].)
In this case, Defendant Ford electronically served verified discovery responses on January 12, 2023. (See Neubauer Declaration, ¶ 23; Exh. 6.) Thus, Plaintiff had to file his motion no later than February 28, 2023, or 45 days after service of the verified discovery responses plus two court days because Plaintiff was served electronically. (See Code Civ. Proc., § 1010.6, subd. (a)(3)(B).)
Plaintiff did not file or serve this Motion to Compel until March 22, 2023. While Plaintiff could have sought an extension of the 45-day deadline while meeting and conferring, there is no evidence that Plaintiff sought, much less secured, such an extension.
Further, while Defendant Ford served verified supplemental responses on April 13, 2023, that would started the 45-day deadline to compel further responses to the supplemental responses. The instant Motion to Compel was filed before the supplemental responses were served and thus, it seeks further responses to the initial responses only.
Mootness
Finally, by this Motion to Compel, Plaintiff sought further responses to the initial responses. Defendant Ford has provided those further responses on April 13, 2023. Defendant Ford’s service of the verified supplemental responses rendered this Motion to Compel moot.
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 further responses, “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., § 2031.310, subd. (h).)
Here, Plaintiff is not entitled to monetary sanctions because Defendant Ford did not unsuccessfully oppose this Motion to Compel.
To the extent that Defendant Ford’s service of supplement responses means that it unsuccessfully opposed the motion, the court would still deny sanctions because Plaintiff’s meet and confer efforts were not sufficient, because the results of the motion were mixed, and because the requested attorney’s fees of $5,940 are excessive. (See Mattco Valley Forge v. Arthur Young & Co. (1990) 223 Cal.App.3d 1429, 1437 [trial court has discretion to apportion sanctions or award no sanctions on any terms as may be just].)
Defendant Ford shall give notice of this ruling.