Judge Peter A. Hernandez, Case Number: 23PSCV01913, Date: 2024-07-17 Tentative Ruling

2. Plaintiff Claremont Stars Soccer Club’s Motion to Compel Defendant Carlos Morrell to Provide a Supplemental Response to Request Nos. 3, 16, 24-26, and 28 of the Request for Production of Documents, Set One is GRANTED. Morrell is ordered to provide further, Code-compliant responses within 20 days from the date of the notice of ruling. Sanctions are awarded against Morell in the reduced amount of $1,460.00 and are payable within 30 days from the date of the notice of ruling.

3. Defendant Brian Wiesner’s Motion for Leave to File Documents Under Seal for In Camera Review is DENIED.

Club is a non-profit organization governed by a Board of Directors (“Board”). Brian Wiesner (“Wiesner”) and Carlos Morrell (“Morell”) formerly served as President and Treasurer, respectively, of the Club. Starting in approximately March 2022, Wiesner and Morrell decided to increase Club fees charged for each participant without providing any justification. On February 22, 2023, the Board elected to remove Weisner as Club President. Five of the Board members responsible for Weisner’s removal and notification of removal, were subsequently notified by an attorney, who had been hired by Wiesner and Morrell with Club funds, that they were expelled from the Club. On March 8, 2023, the Board held its meeting, voted to confirm their removal of Weisner and Morrell as President and Treasurer, respectively, and elected a new set of officers. Wiesner and Morrell opened a new Team Snap account to directly compete with the Club’s Team Snap account and create confusion among the parents as to who was actually running the Club. Wiesner and Morrell have refused to recognize the newly elected officers of the Club and have falsely represented to the community and parents that they are still officers of the Club. The Board has since found evidence that Wiesner and Morrell have stolen Club funds of over $250,000.00.

On June 27, 2023, Club filed a complaint, asserting causes of action against Wiesner, Morrell and Does 1-10 for:

1. Motion to Compel Furthers Re: Request for Production of Documents (i.e., as to Wiesner)

“[T]he demanding party may move for an order compelling further response to the demand if the demanding party deems that. . . (1) A statement of compliance with the demand is incomplete[,] (2) A representation of inability to comply is inadequate, incomplete, or evasive [and/or that] (3) An objection in the response is without merit or too general.” (Code Civ. Proc., § 2031.310, subd. (a).)

The moving party must demonstrate a “reasonable and good faith attempt” at an informal resolution of each issue presented. (Code Civ. Proc., §§ 2016.040, 2031.310, subd. (b)(2).) “In lieu of a separate statement required under the California Rules of Court, the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute.” (Code Civ. Proc., § 2031.310, subd. (b)(3).) A motion to compel further responses to a demand for inspection or production of documents must “set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).)

Notice of the motion must be provided “within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing . . .” (Code Civ. Proc., § 2030.310, subd. (c).)

“[T]he court shall impose a monetary sanction. . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, 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).)

Plaintiff moves the court for an order compelling Wiesner to provide further supplemental responses, without objections, and responsive documents to Plaintiff’s Request for Production of Documents, Set No. One (i.e., Nos. 25 and 26). Plaintiff also seeks sanctions against Wiesner in the amount of $3,970.00.

On September 20, 2023, the subject discovery was served. (Hafif Decl., ¶ 2, Exh. A.) On November 6, 2023, Wiesner served responses. (Id., ¶ 3, Exh. B.) On December 7, 2023, Hafif asked Weisner’s counsel Chris Hellmich (“Hellmich”), for a 4-week extension to file any needed motion to compel furthers, to which Hellmich agreed. (Id., ¶ 7, Exh. C.) On January 9, 2024, counsel agreed to another extension of the motion deadline, through January 31, 2024. (Id., ¶ 3, Exh. D.) On January 29, 2024, counsel agreed to a third extension of the motion deadline, until the end of February 2024. (Id., ¶ 9, Exh. E). The court required that an Informal Discovery Conference (“IDC”) be held before the instant motion could be filed. (Id., ¶ 13). On March 4, 2024, Morell provided supplemental responses to Requests Nos. 25 and 26, which did not cure the deficiencies noted in the original responses. (Id., ¶ 14, Exh. F) The IDC was held on March 25, 2023, but did not resolve the issues. (Id., ¶ 16).

Request No. 25 asks for all emails and text messages between Wiesner and Morrell from January 1, 2020 through December 31, 2023. Request No. 26 asks for all emails and texts between Wiesner and Jeff George (“George”).

Wiesner initially objected to No. 25 on the basis of work product, burden, privacy, relevancy and overbreadth and to No. 26 on the basis of attorney-client communication, work product, burden, equally available, privacy and relevance. Both responses stated, “[d]iscovery is continuing and Plaintiff reserves the right to supplement and/or amend her response to this request at any time.” Wiesner’s response to No. 26 further stated that “Mr. George is the former attorney for the Club and, as such, all such documents are already within the Club’s possession.”

Wiesner’s supplemental response to No. 25 advised that he lacked the ability to comply with the request for emails because he no longer had access to the Club email account he would have used for official Club business. Wiesner advised, with respect to the request for texts, that he would make his personal cell phone available for inspection and copying of relevant text messages to Plaintiff’s counsel at Plaintiff’s counsel’s office pursuant to Code of Civil Procedure § 2031.220.

Wiesner’s supplemental response to No. 26 advised that he lacked the ability to comply with the request because he no longer had access to the Club email account he would have used for official Club business. Wiesner also advised that Plaintiff had the ability to recover any responsive emails from George, inasmuch as George was counsel to Plaintiff.

Hellmich, in his declaration accompanying Wiesner’s opposition, represents that Wiesner has since provided second supplemental responses. (Hellmich Decl., ¶ 13, Exh. 3.) Hellmich further represents that he and Wiesner have reviewed the texts contained in Weisner’s personal cell phone and identified approximately 700 text messages, which have since been exported to an Excel spreadsheet, that they are nearly all irrelevant because they are personal messages unrelated to the subject of the litigation, that the vast majority of the messages pertain to Defendants’ new soccer team and the minor girls on it and, as such, are irrelevant and implicate third party privacy rights, that 8 messages pertain to this lawsuit but are protected by the Defendants’ common interest agreement and that Wiesner has reserved a June 11, 2024 hearing regarding a motion for leave to file text messages under seal and to request an in camera review. (Id., ¶¶ 8-11). With respect to the issue of emails, Wiesner contends that any responsive communications would be contained in a Club account that he can no longer access and that Plaintiff has access to same. (Opp., 7:12-15).[1]

The motion is granted as to Nos. 25 and 26 (i.e., as to the request for emails), to the extent that the court orders Wiesner to provide a further response furnishing his username and password for the Club email account Wiesner used for official Club business. Wiesner is also ordered to provide a further response clarifying his statement made in his second supplemental response as to text messages (i.e., that “Subject to and without waiving Defendant’s prior objections, after a diligent search and a reasonable inquiry has been made in an effort to comply with this Request, the Defendant lacks the ability to comply with the request because to the extent any responsive documents existed and were in the Defendant’s possession, he is no longer in the possession, custody or control of the items as he does not have possession, custody or control over any text messages with Mr. George. Indeed, Mr. George’s contact information does not even appear in the Defendant’s IPhone Contact list”), Wiesner must provide a response compliant with Code of Civil Procedure § 2031.230 (i.e., specifying the reason for the inability to comply).

The motion is otherwise granted as to No. 25 (i.e., as to the request for text messages); however, the court believes that Wiesner’s objections regarding relevancy and overbreadth are well-taken and limit any further response and production to documents regarding Morrell’s and Wiesner’s communications regarding Club activities or business. The court determines that any third-party privacy concerns may be addressed via redaction.

The court notes that Wiesner did, in fact, assert a “work product objection” in his initial response to No. 25; however, it is unclear to the court how communications between two co-defendants would implicate the attorney work product doctrine, defined as “[a] writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories.” (See Code Civ. Proc., § 2018.030.). Although Wiesner claims that the aforesaid texts are protected by a common interest doctrine, “a party seeking to rely on the common interest doctrine does not satisfy its burden to justify a claim of privilege simply by demonstrating that a confidential communication took place between parties who purportedly share a common interest. Rather, the party seeking to invoke the doctrine must first establish that the communicated information would otherwise be protected from disclosure by a claim of privilege.” (OXY Resources California LLC v. Superior Court (2004) 115 Cal.App.4th 874, 890.) “[T]he common interest doctrine cannot be invoked unless there is an underlying claim of privilege.” (Id. at 893). Wiesner has not satisfied his burden.

Wiesner is ordered to provide further, Code-compliant responses, subject to the above limitations, within 20 days from the date of the notice of ruling.

Again, Plaintiff seeks sanctions against Weisner in the amount of $3,970.00 [calculated as follows: 0.5 hours reviewing motion, plus 0.5 hours reviewing opposition, plus 1 hour attending hearing at $425.00/hour, plus 5.2 hours preparing motion and 2 hours reviewing opposition and preparing reply at $425.00/hour, plus $60.00 filing fee].

Utilizing a Lodestar approach, and in view of the totality of the circumstances, the court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motion is $1,110.00 (i.e., 3 hours at $350.00/hour, plus $60.00 filing fee). Sanctions are payable within 30 days from the date of the notice of ruling.

2. Motion to Compel Furthers Re: Request for Production of Documents (i.e., as to Morrell)

Plaintiff moves the court for an order compelling Morrell to provide further supplemental responses, without objections, and responsive documents to Plaintiff’s Request for Production of Documents, Set No. One (i.e., Nos. 3, 16, 24-26 and 28). Plaintiff also seeks sanctions against Morrell in the amount of $3,842.50.

On September 20, 2023, the subject discovery was served. (Hafif Decl., ¶ 2, Exh. A.) On February 2, 2024, Morrell provided responses. (Id., ¶ 3, Exh. B.) Hafif met and conferred with Morrell’s counsel Scott Doonan (“Doonan”), but Doonan did not agree to provide any further responses or to produce responsive documents. (Id., ¶ 23). The court required that an IDC be held before the instant motion could be filed. (Id., ¶ 25). The IDC was held on March 25, 2023, but did not resolve the issues. (Id., ¶ 26).

Request No. 3 asks for all documents that show who Desiree Ashcrft (“Ashcrft”) is and why she received certain payments on 10/01/2021, 10/04/2021, 11/01/2021 and 11/03/2021.

Morrell’s response to Request No. 3 was that, after a reasonable and diligent search, he was unable to comply with this request “in whole,” that he was not in possession, custody or control of any documents responsive to this request and believed Plaintiff was in possession, custody and/or control of responsive documents, that all entries to Ashcrft were for payments for the purchase of field lights and that Morrell believed that Ashcrft was previously contacted by a member of Plaintiff after the current administration of Plaintiff took over.

Plaintiff is entitled to a further response to Request No. 3. Code of Civil Procedure § 2031.230 requires that a representation of inability to comply with a demand “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.” Morrell’s inclusion of the phrase “in whole” is not problematic to the court for this instant response, since he provided substantive information identifying Ashcrft.

Request No. 16 asks for all documents that show why Elite Group Investments, LLC (“Elite Group”) received certain identified payments between 09/01/2020 and 12/29/2022.

Request No. 24 asks for all bank statements for Elite Group from January 1, 2020 to the present.

Request No. 25 asks for all emails and text messages between Wiesner and Morrell from January 1, 2020 through December 31, 2023.

Request No. 28 asks for any documents that show the username, password and any other login credentials for the Club Quickbooks account.

Morrell’s response to Requests Nos. 16, 24-26 and 28 was that, after a reasonable and diligent search, he was unable to comply with this request “in whole,” that he was not in possession, custody or control of any documents responsive to this request and believed Plaintiff was in possession, custody and/or control of responsive documents.

Again, Plaintiff is entitled to further responses to Requests Nos. 16, 24-26 and 28, for the same reasons identified as to Request No. 3. Additionally, Morrell’s inclusion of the phrase “in whole” suggests that Morrell is at least able to comply in part with the request.

The motion, then, is granted. Morrell is ordered to provide further, Code-compliant responses within 20 days from the date of the notice of ruling.

Morrell’s request for sanctions is summarily denied. Again, Plaintiff seeks sanctions against Morrell in the amount of $3,842.50 [calculated as follows: 4.4 hours preparing motion, plus 2 hours reviewing opposition and preparing reply at $425/hour, plus 1 hour preparing part of separate statement and reviewing motion, plus 0.5 hours reviewing opposition and 1 hour attending hearing at $425/hour, plus $60 filing fee].

Utilizing a Lodestar approach, and in view of the totality of the circumstances, the court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motion is $1,460.00 (i.e., 4 hours at $350.00/hour, plus $60.00 filing fee). Sanctions are payable within 30 days from the date of the notice of ruling.

California Rules of Court Rules 2.550 and 2.551 “apply to records sealed or proposed to be sealed by court order.” (Cal. Rules of Court, rule 2.550(a)(1).) “These rules do not apply to discovery motions and records filed or lodged in connection with discovery motions or proceedings. However, the rules do apply to discovery materials that are used at trial or submitted as a basis for adjudication of matters other than discovery motions or proceedings.” (Cal. Rules of Court, rule 2.550(a)(3).)

Wiesner moves the court for leave to file an Excel spreadsheet containing approximately 700 text communications between Morell and Wiesner (the “Texts”) under seal and for an in camera review.

The court rules on Plaintiff’s objections to the Hellmich declaration as follows: Overruled.[2]

California Rules of Cout rules 2.550 and 2.551 are not applicable in the context of a discovery dispute. (See Cal. Rules of Court, rule 2.550(a)(3).) Wiesner’s motion is summarily denied on this basis.

[1] Plaintiff, in turn, asserts that it does not have Weisner’s username and password for Weisner’s Club account. (Reply, 3:16-18).

[2] Hellmich has attested, in his declaration supporting Wiesner’s opposition to Motion #1, that he and Wiesner “reviewed the voluminous number of texts contained in Wiesner’s personal cell phone and identified approximately 700 text messages.” (Hellmich Decl., ¶ 8). Hellman’s supporting declaration states that he has personal knowledge of the facts set forth therein.