Judge: Sandy N. Leal, Case: 2022-01259354, Date: 2023-07-27 Tentative Ruling
1) Motion to Compel Answers to Form Interrogatories
2) Motion to Compel Answers to Form Interrogatories
3) Motion to Compel Answers to Special Interrogatories
4) Motion to Compel Answers to Special Interrogatories
5) Motion to Compel Production
6) Motion to Compel Production
7) Motion to Compel Response to Requests for Admissions
8) Motion to Compel Response to Requests for Admissions
The following motions are MOOT in light of Defendants’ supplemental responses and second supplemental responses attached as Exhibits 1 and 4 to Defendants’ Omnibus Responsive brief filed on 7/21/23:
1. Plaintiff’s Motion to Compel Further Responses to Special Interrogatories (Set One) to James Howard [ROA 113]
2. Plaintiff’s Motion to Compel Further Responses to Special Interrogatories (Set One) to Defendant Maggie Howard [ROA 117]
3. Plaintiff’s Motion to Compel Further Responses to Form Interrogatories (Set One) to Defendant Maggie Howard [ROA 129]
4. Plaintiff’s Motion to Compel Further Responses to Form Interrogatories (Set One) to Defendant James Howard [ROA 135]
5. Plaintiff’s Motion to Compel Further Responses to Requests for Admissions (Set One) to Defendant James Howard [ROA 136]
The following motions are GRANTED in part:
6. Plaintiff’s Motion to Compel Further Responses to Requests for Production of Documents (Set One) to Defendant Maggie Howard [ROA 121]
7. Plaintiff’s Motion to Compel Further Responses to Requests for Production of Documents (Set One) to Defendant James Howard [ROA 125]
Plaintiffs’ Omnibus Supplemental Sur-Reply Brief filed on 7/24/23 contends Defendants’ responses to Plaintiffs’ requests for production, set one (RFPs) are deficient because (1) Defendants have not produced documents in response to RFPs 8, 10, 14, and 15; (2) Defendants have not identified by bates number documents responsive to RFPs 8, 10, 14, 15, 17, 18, 19, 30, 44, 39, 40, 41, and 52; and (3) Defendants have refused to provide a privilege log.
As for Defendants’ failure to produce documents responsive to RFPs 8, 10, 14, and 15, the 7/21/23 declaration of Defendants’ counsel states at paragraph 6, “Our firm is currently reviewing email correspondence between James Howard, various Colony Cove HOA board members and others in connection with a planned further production of documents to Plaintiffs’ counsel.” Defendants shall serve their further production of documents within 15 days of this order. Plaintiffs may file a motion to compel compliance under Code of Civil Procedure section 2031.320 if Defendants fail to produce responsive documents.
Regarding Defendants’ failure to identify by bates number documents responsive to RFPs 8, 10, 14, 15, 17, 18, 19, 30, 44, 39, 40, 41, and 52, Defendants shall produce an updated chart identifying all responsive documents by bates number concurrently with their further production of documents.
As to Plaintiffs’ request for a privilege log, Defendants’ supplemental responses do not state that documents are being withheld on the basis of privilege. However, Defendants’ statements of compliance in the RFPs state they will “produce all non-privileged documents,” which could be interpreted to mean that responsive documents are being withheld on the basis of privilege. Defendants contend, “the only documents withheld based on privilege, ‘are direct communications between James and Maggie Howard and their attorneys in this case and any work-product by those attorneys.’” (Defendants’ Omnibus Responsive Brief, 4:13-15.) Within 15 days of this order, Defendants shall serve supplemental responses to RFPs clearly specifying whether any privileged responsive documents, other than communications between Defendants and their counsel regarding this case, are being withheld. If any privileged documents other than communications between Defendants and their counsel regarding this case are being withheld, Defendants shall identify such documents in a privilege log pursuant to Code of Civil Procedure section 2031.240(c)(1). (See Catalina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, 1130 [privilege log should provide the identity and capacity of all individuals who authored, sent, or received each allegedly privileged document, the document's date, a brief description of the document and its contents or subject matter sufficient to determine whether the privilege applies, and the precise privilege or protection asserted].)
Plaintiffs’ request for sanctions is DENIED. Plaintiffs’ counsel did not make reasonable efforts to meet and confer with Defendants’ counsel before filing the motions. (Code Civ. Proc. § 2016.040.) Plaintiffs’ counsel acted unreasonably by filing the motions shortly after Defendant’s senior counsel took bereavement leave and while discussions were ongoing which would likely have resolved or narrowed the issues. On the other hand, Defendants’ counsel failed to promptly serve verifications and supplemental responses. Because both parties failed to make reasonable efforts to resolve the dispute before seeking court intervention, the Court finds that awarding sanctions to either side would be unjust. (See Code Civ. Proc. § 2031.310(h).) In future, the parties shall exhaust all efforts to meet and confer, including telephonic or in-person conferences of counsel, before filing discovery motions. The parties shall ensure that discovery is reasonable in scope given the narrow issues in this case under Code Civ. Proc. §§ 2017.010, 2030.030, and 2033.030.