Judge Randy Rhodes, Case 20CHCP00146 2023-02-28 Tentative Ruling

RESPONDING PARTY: Defendant Intellectual Capital Management & Servicer, Inc. (“Defendant”)

RELIEF REQUESTED: An order compelling Defendant to provide supplemental responses to Plaintiff’s Request for Production of Documents (“RFPs”), Set One. Plaintiff also requests monetary sanctions against Defendant in an amount to be determined. Defendant requests in opposition sanctions against Plaintiff in the amount of $1,750.00.

TENTATIVE RULING: Plaintiff’s motion is denied. The Court imposes sanctions against Plaintiff in the amount of $750.00.

The parties are again reminded to review the 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil. When e-filing documents, parties must comply with the “TECHNICAL REQUIREMENTS” which are set forth at page 4, line 4 through page 5, line 12 of the Court’s 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil (particularly bookmarking declarations and exhibits). (CRC 3.1110(f)(4).) Failure to comply with these requirements in the future may result in papers being rejected, matters being placed off calendar, matters being continued so documents can be resubmitted in compliance with these requirements, documents not being considered and/or the imposition of sanctions.

On 6/18/20, Plaintiff filed his original complaint against nine named defendants, seeking to set aside allegedly fraudulent transfers made to avoid satisfying a judgment in a previous action where a jury awarded Plaintiff a total of $126,000 against defendant L&J Assets, LLC. On 5/26/22 and 9/30/22, Plaintiff filed his first and second amended complaints, respectively.

On 6/1/22, Plaintiff served Defendant with his Requests for Production of Documents, Set One. (Ex. A to Pl.’s Mot.) On 8/15/22, Defendant served Plaintiff by mail with its responses to the Plaintiff’s Requests for Production of Documents, Set One. (Ex. 2 to Def.’s Opp.)

On 11/28/22, Plaintiff filed the instant motion to compel Defendant’s further responses to his Requests for Production of Documents, Set One. On 1/26/23, Defendant filed its opposition. No reply has been filed to date.

A propounding party may move for an order compelling further response to a request for production of documents if he decides that: “(1) A statement of compliance with the demand 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).)

Here, Plaintiff seeks to compel additional responses to his entire first set of RFPs, arguing that Defendant failed to provide any responses or objections to the discovery requests whatsoever. (Pl.’s Mot., 3:12–13.)[1] To this extent, the Court notes that the instant motion would be improper, and should instead be brought as a motion to compel initial responses under Code of Civil Procedure section 2031.300. However, as Defendant served responses to Plaintiff’s discovery requests by mail on 8/15/22, the instant motion to compel further responses is nevertheless proper notwithstanding Plaintiff’s contention that no responses were served. (Ex. 2 to Def.’s Opp.)

A motion to compel further responses to RFPs must be accompanied by a meet and confer declaration stating “facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc. §§ 2031.310, subd. (b)(2); 2016.040.)

Here, on 11/13/22, Plaintiff emailed Defendant’s counsel a meet and confer letter raising the issues discussed in the instant motion. (Ex. B to Pl.’s Mot.) On 11/15/22, Defendant’s counsel replied to Plaintiff by email. (Ex. 4 to Def.’s Opp.) Despite their correspondence, the parties were unable to informally resolve the dispute. Accordingly, Plaintiff has satisfied the preliminary meet and confer requirement under Code of Civil Procedure section 2031.310, subdivision (b)(2).

“Unless notice of this motion is given 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, the demanding party waives any right to compel a further response to the demand.” (Code Civ. Proc. § 2031.310, subd. (c).)

Here, Defendant served its responses to Plaintiff’s Requests for Production of Documents, Set One by mail on 8/15/22. (Ex. 2 to Def.’s Opp.) Therefore, without any stipulation between the parties, the deadline for Plaintiff to file the instant motion was 10/4/22 (45 days plus 5 extra days for mailing). (Code Civ. Proc. §§ 2031.310, subd. (c), 1013, subd. (a).) As Plaintiff filed the instant motion on 11/28/22, 55 days past the deadline set forth under Code of Civil Procedure section 2031.310, subdivision (c), the Court finds that the motion was untimely filed. Accordingly, the motion is denied on this basis. (See also Standon Co. v Superior Court (1990) 225 Cal.App.3d 898, 902.)

A motion to compel further responses to RFPs must be accompanied by a separate statement listing each demand to which a further response is requested, the responses given, and the factual and legal reasons for compelling it. (Cal. Rules. of Ct., rules 3.1345(a)(3), (c).)

Here, as Defendant observes, Plaintiff’s separate statement fails to substantively address any of Defendant’s responses to Plaintiff’s Requests for Production of Documents, Set One. (Def.’s Mot, 4:25–28.) Instead, Plaintiff’s separate statement consists solely of Plaintiff’s own declaration. (Pl’s Sep. Stmt.) Therefore, Plaintiff’s motion fails to meet the procedural requirements set forth under rule 3.1345 of the California Rules of Court. Accordingly, the motion is denied on this basis in addition to the above.

“The 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).)

Here, Plaintiff requests sanctions in an unspecified amount, to be imposed on Defendant and its counsel. The requested amount includes 5 hours of Plaintiff’s time spent working on the instant motion, at his hourly rate of $50.00 per hour as a paralegal. (Pl.’s Sep. Stmt., ¶ 7.)

In opposition, Defendant requests sanctions to be issued against Plaintiff in the total amount of $1,750.00. (Decl. of Vincent Quigg, ¶ 9.) This amount includes 5 hours of Defendant’s attorney’s time spent reviewing the instant motion and drafting Defendant’s opposition, at counsel’s hourly rate of $350.00 per hour. (Ibid.)

In denying the instant motion to compel further, the Court finds it reasonable to award Plaintiff sanctions against Plaintiff in the amount of $750.00.

Plaintiff’s motion is denied. The Court imposes sanctions against Plaintiff in the amount of $750.00.

[1] The Court notes that Plaintiff has failed to paginate his motion. Accordingly, the Court cites to the numbers of the entire document’s pages as filed.