Judge: Steven A. Ellis, Case: 22STCV31002, Date: 2024-10-15 Tentative Ruling

Case Number: 22STCV31002    Hearing Date: October 15, 2024    Dept: 29

Aranda v. Starpoint Property Management
22STCV31002
Plaintiff’s Motion to Compel Further Response to Request for Production (Set Two)

Tentative

The motion is granted in part and denied in part.

Background

On September 22, 2022, Juan Fernando Sanchez Aranda (“Plaintiff”) filed a complaint against Starpoint Property Management, LLC (“Defendant”) and Does 1 through 50, asserting causes of action for negligence and premises liability arising out of an incident in which, Plaintiff alleges, he was injured on December 20 or December 30, 2021, by an explosion of his apartment’s furnace.

Defendant filed an answer on February 3, 2023. 

On September 16, 2024, Plaintiff filed a combined motion to compel Defendant to serve further responses to Plaintiff’s request for production and to produce the subject furnace for inspection.  Plaintiff also seeks sanctions.

Defendant filed an opposition on October 2.  On October 8, Plaintiff filed a reply.

An Informal Discovery Conference (IDC) was conducted on August 27, 2024.  The dispute was not resolved.

Legal Standard

“On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: (1) A statement of compliance with the demand is incomplete.  (2) A representation of inability to comply is inadequate, incomplete, or evasive.  (3) An objection in the response is without merit or too general.”  (Code Civ. Proc., § 2031.310, subd. (a).)

Notice of a motion to compel further responses must be 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 propounding party and the responding party have agreed in writing.” (Id., subd. (c).)

A motion to compel further responses must set forth specific facts showing good cause for the discovery and must be accompanied by a meet-and-confer declaration and a separate statement or, in the discretion of the Court, a “concise outline of the discovery request and each response in dispute.” (Id., subd. (b)(1)-(3); Cal. Rules of Court, rule 3.1345.)

“[T]he court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) 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).)

In Chapter 7 of the Civil Discovery Act, Code of Civil Procedure section 2023.030, subdivision (a) provides, in pertinent part, that the court may impose a monetary sanction ordering that any person “engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” A “misuse of the discovery process” includes (among other things) failing to respond or to submit to an authorized method of discovery; making, without substantial justification, an unmeritorious objection to discovery; making an evasive response to a discovery request; disobeying a court order to provide discovery; and making or opposing, unsuccessfully, a motion to compel without substantial justification. (Code Civ. Proc., § 2023.010, subds. (d)-(h).)

Discussion

As a threshold matter, the Court notes that Plaintiff seeks both (1) a further response to Request for Production No. 53 (seeking production of the furnace at issue) and (2) an order compelling Defendant to produce the furnace for inspection.

Beginning with the second request for relief, the Civil Discovery Act provides for three separate types of motions relating to inspection demands: (1) a motion to compel a code compliant initial written response (when no response has been provided) (Code Civ. Proc., § 2031.300); (2) a motion to compel a further response (when a response has been provided but it is not code compliant or contains unmeritorious objections) (Code Civ. Proc., § 2031.310); and (3) a motion to compel compliance with a response stating that the inspection will be allowed (Code Civ. Proc., § 2031.320).

No matter how critical the evidence may be, a party cannot skip over the steps established by the Civil Discovery Act.  A motion to compel the production of an item for inspection can be granted only under Code of Civil Procedure section 2031.320, after a party has stated in a verified response that the inspection will be allowed.  Defendant has not at this time made such a response.  Accordingly, Plaintiff’s request for an order compelling Defendant to product the furnace for inspection is denied without prejudice as premature.

Turning to Plaintiff’s request for a further response, Plaintiff served the request for production at issue on June 26, 2024.  (Doucette Decl., Exh. D.)  Defendant served an unverified response on July 31, 2024.  (Id., Exh. E.) 

In its opposition – filed more than two months later – Defendant concedes that no verification was provided, stating that it “appears to be an oversight” (Nervez Decl., ¶ 3.)  Defendant “anticipates” that a verified response will be served “shortly.”  (Opp. at p. 3.) 

For this reason alone, the motion is granted.  Responses must be verified.  (Code Civ. Proc., § 2031.250, subd. (a).)  An unverified response is not code compliant. 

The request for sanctions is granted in part.  The motion to compel is granted in part, and serving unverified responses – responses that remain unverified even more than two months later – is not substantially justified, and the imposition of sanctions would not be unjust. 

The Court sets sanctions in the amount of $700, based on two hours of attorney work multiplied by a reasonable billing rate of $350 per hour for work on a discovery motion of this nature.  (See Doucette Decl., ¶¶ 16-17.)

To provide guidance to the parties, the Court makes two additional observations.

First, Defendant’s response is unverified, and therefore not code compliant.  But if it were verified, it would appear to be code compliant.  Defendant states it is unable to comply; that it conducted a diligent search and reasonable inquiry; that Defendant transferred the furnace to Trinity Air Conditioning & Heating, Inc. (at an address and telephone number included in the response), such that it is no longer within Defendant’s possession, custody or control.  That complies with the requirements of Code of Civil Procedure section 2031.230.  Either party may proceed to subpoena Trinity Air Conditioning & Heating to determine whether the furnace remains in Trinity’s possession and, if so, to demand an inspection.

Second, much of Plaintiff’s briefing relates to the question of spoliation.  Spoliation, when it occurs, “is a grave affront to the cause of justice” and constitutes a misuse of the discovery process.  (Cedars-Sinai Medical Center v. Super. Ct. (1998) 18 Cal.4th 1, 4, 12.)  But a motion seeking sanctions for spoliation is separate and distinct from a motion to compel further responses.  Plaintiff has filed the latter.  If he seeks spoliation sanctions, he must file a separate and different motion for that relief.  To the extent that Plaintiff seeks spoliation sanctions in this motion, the request is denied without prejudice.

Conclusion

The Court GRANTS in part and DENIES in part Plaintiff’s motion.

The Court ORDERS Defendant to serve a written, verified, code compliant response to Plaintiff’s Request for Production No. 53, without objection, within 10 days of notice.

The Court ORDERS Defendant to pay monetary sanctions under the Civil Discovery Act in the amount of $700 to Plaintiff (through Plaintiff’s counsel) within 30 days of notice.

The Court DENIES the remainder of the motion.

Moving party is ordered to give notice.