Judge: Richard S. Whitney, Case: 37-2022-00038297-CU-PO-CTL, Date: 2023-08-04 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - August 03, 2023

08/04/2023  10:30:00 AM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited  PI/PD/WD - Other Discovery Hearing 37-2022-00038297-CU-PO-CTL PRECIADO VS PIZZERIA LUIGI INC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: PRECIADO'S MOTION TO COMPEL PIZZERIA LUIGI TO PROVIDE FURTHER RESPONSES TO DEMANDS FOR PRODUCTION, SET ONE is GRANTED.

Plaintiff Roberto Preciado ('Plaintiff') seeks to compel further response to demand number one, which seeks 'all videos which taken on, or capture any portion of, the PROPERTY on September 5, 2022,' from Defendant PIZZERIA LUIGI, INC. ('Defendant'). Defendant's response to demand number one was: 'Defendant has made a diligent search for the requested discovery and a reasonable inquiry in an effort to comply with this demand, however, at this time, the Defendant does not have possession or control of the subject matter of this discovery. Discovery is continuing.' This motion centers on CCP section 2031.230. CCP section 2031.230 provides: A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall 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. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.

(Code Civ. Proc., § 2031.230 [Emphasis added].) Defendant asserts it complied with CCP section 2031.230. The Court disagrees. Defendant does not specify if the requested video is 'no longer' in its possession or if it never was in its possession. Rather, Defendant represented that 'at this time, the Defendant does not have possession or control.' This is important because the response evades disclosing whether Defendant possessed any video previously.

If Defendant specifies that it was in its possession previously, then Plaintiff could further inquire as to why it no longer possesses the video and demand that Defendant also represent 'the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.' Defendant is ordered to provide a further response with ten (10) calendar days. No sanctions are awarded.

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