Judge: Richard S. Whitney, Case: 37-2019-00025832-CU-BC-CTL, Date: 2023-11-17 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - November 15, 2023

11/17/2023  10:30:00 AM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited  Breach of Contract/Warranty Discovery Hearing 37-2019-00025832-CU-BC-CTL NEAL ELECTRIC CORP VS PETER VANDER WERFF CONSTRUCTION INC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: PLAINTIFF NEAL ELECTRIC CORP.'S MOTION TO COMPEL DEFENDANT PETER VANDER WERFF CONSTRUCTION TO COMPLY AND PRODUCE RESPONSIVE DOCUMENTS PURSUANT TO ITS VERIFIED RESPONSES AND THE COURT'S ORDER AND FOR MONETARY SANCTIONS OF $4,920 is GRANTED, in part.

Plaintiff Neal Electric Corp. ('Plaintiff') moves to compel Peter Vander Werff Construction, Inc. ('PVW') to provide comply and produce responsive documents pursuant to its verified responses to Plaintiff's requests for production. On September 26, 2022, this Court granted Plaintiff's motion to compel further responses and compliance. PVW served further responses by October 7, 2022, representing that responsive documents would be produced. Subsequently, documents were produced, but Plaintiff believes the production is not complete. Plaintiff's position is based on, inter alia, the fact other entities have produced emails showing PVW was included on the emails, but no such emails were produced.

Further, Plaintiff finds it dubious that PVW does not use email for internal communications, as represented by PVW. PVW represents that it has made multiple attempts to ensure that it does not possess any further documents that are responsive and has confirmed that it has already produced all responsive documents. PVW represents that as a small business with no IT department it does not have a networked computer system, a document management system, or project management software.

Further, PVW represents that it does not have cloud backup and that data has been lost has a result of an employee's laptop being stolen.

Given the representations of PVW and the absence of direct evidence from Plaintiff to the contrary, the Court cannot conclude that PVW has failed to produce all responsive documents of which it has possession and/or control. The motion to compel is denied. However, the Court is convinced that PVW could have been more forthcoming so as to avoid the need for this motion. Plaintiff is awarded $2,500 in sanctions against PVW. Sanctions are to be paid within twenty (20) calendar days. PVW's requests for judicial notice are granted, to the extent permissible. (See Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117; see also Big Valley Band of Pomo Indians v. Superior Court (2005) 133 Cal.App.4th 1185, 1192.) Calendar No.: Event ID:  TENTATIVE RULINGS

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