Judge: Teresa A. Beaudet, Case: 20STCV40761, Date: 2023-05-02 Tentative Ruling

Case Number: 20STCV40761    Hearing Date: May 2, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

On October 23, 2020, Plaintiff Pedram Salimpour (“Plaintiff”) filed this action against, inter alia, Defendant Vivera Pharmaceuticals, Inc., dba Sentar Pharmaceuticals (“Vivera”). Plaintiff filed the operative First Amended Complaint (“FAC”) on August 18, 2021. The FAC asserts ten causes of action.

On February 22, 2023, the parties participated in an Informal Discovery Conference (“IDC”) in this matter. The Court’s February 22, 2023 minute order provides, inter alia, “[t]he parties agreed and the Court ordered as follows: 1. Defendant will Bates label the document production and supplement the response to the first request for production on or before February 24, 2023. 2. By the same date, Defendant will supplement the response to request for production number 67 and special interrogatory number 71 to modify the response to be code complaint rather than stating ‘not applicable’…”

            Plaintiff’s counsel states that “[o]n February 24, 2023, Defendant Vivera reproduced the documents with bates labels, but did not supplement its discovery responses. Instead, counsel for Defendant Vivera merely identified which documents were responsive to which requests via email – notably, however, counsel for Defendant Vivera did not identify any documents responsive to Requests Nos. 37 and 38.” (Kirk Decl., ¶ 7.) Plaintiff’s counsel also states that as of the date of the filing of the instant motion, “Vivera has not produced any documents in compliance with its Supplemental Responses to Requests Nos. 37 and 68.” (Kirk Decl., ¶ 8.)

Plaintiff now moves for order compelling Vivera “to comply with Defendant’s Responses to Plaintiff’s Supplemental Request for Inspection and Production of Documents (Set One).” Counsel for Vivera and two other defendants filed a declaration in opposition to the motion.

Discussion

Plaintiff seeks an order compelling Vivera to “produce documents in compliance with its Supplemental Responses.” (Mot. at p. 7:16-18.) Plaintiff asserts that “Vivera agreed to produce documents responsive to Requests Nos. 37 and 68 but, to date, has yet to produce such responsive documents without excuse or justification.” (Mot. at p. 6:2-4.) 

Plaintiff notes that “[i]f a party filing a response to a demand for inspection, copying, testing, or sampling under Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280 thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that party’s statement of compliance, the demanding party may move for an order compelling compliance.” (Code Civ. Proc., § 2031.320, subd. (a).)

As both sides acknowledge, they participated in an IDC regarding the document production and related responses that are the subject of the instant motion. In the Declaration of Vivera’s counsel, he acknowledges that his client was obligated to Bates stamp the documents that had been produced and to provide supplemental responses to the document production by February 24, 2023.  (Yrungaray Decl., ¶¶ 3-4; Minute Order dated February 22, 2023.) Although in paragraph 5 of his Declaration, counsel for Vivera states that his client “provided the supplemental responses,” he does not describe the format of such responses.  According to Plaintiff’s counsel, Mr. Kirk, the supplemental responses that he received were in the form of a cover email and they did not cover two document requests, nos. 37 and 68. (Kirk Decl. ¶7.)     Mr. Kirk emailed Mr. Yrungaray on February 27, 2023 asking him to provide actual supplemental responses. (Ex. 6.) It appears that there eventually was a conversation between the two counsel sometime prior to March 14, 2023, which was followed by an email from Mr. Kirk to Mr. Yrungaray indicating that he would try to work around Mr. Yrungaray’s. travel dates. (Ex. 7.) However, Mr. Yrungaray asserts that “[w]hile Defense counsel was out of the country, Plaintiff demanded further edits to the supplemental responses,” and that “[b]efore Plaintiff had an opportunity to address these responses, Plaintiff’s counsel brought this motion to compel.” (Yrungaray Decl., ¶¶ 9-10.) Nevertheless, Vivera supplemented the responses on April 10, 2023.

Plaintiff acknowledges in the reply that “the requested documents have now been produced,” and “Vivera resolved the discovery deficiencies.” (Reply at p. 2:3-4.) From Plaintiff’s point of view, “the issue is that Defendant Vivera did not do so until Plaintiff filed and served the present Motion, and the law is clear that a Court is still empowered to award sanctions in such a situation.” (Reply at p. 2:3-6.) From Defendant’s point of view, Plaintiff should have given him some time when he returned from his trip and Plaintiff should have requested a further IDC before proceeding with this motion. The Court agrees with the first assertion but does not agree with the second assertion.  The point of the IDC was to eliminate the need for a motion; that purpose was fulfilled when the parties agreed to an order that governed their dispute. A proper supplemental response to the document production should have been provided rather than a cover email. No further order was needed.

In the motion, Plaintiff cites to Code of Civil Procedure section 2031.320, subdivision (b), which provides, “[e]xcept as provided in subdivision (d), the 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 compliance with 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.” Plaintiff seeks sanctions in the amount of $8,520.00. (Kirk Decl., ¶ 10.) As the discovery issue that is the subject of the motion has been resolved and no actual opposition brief was filed by Vivera, the Court does not find that Vivera unsuccessfully opposed the instant motion. Thus, the Court does not find that monetary sanctions are warranted under Code of Civil Procedure section 2031.320, subdivision (b).

Plaintiff also notes that a monetary sanction may be imposed against one engaging in the misuse of the discovery process. (Code Civ. Proc., § 2023.030, subd. (a).) “Failing to respond or to submit to an authorized method of discovery” is a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (d).) Under these unique circumstances, the Court does not find that monetary sanctions are warranted against Vivera here.

Conclusion

Based on the foregoing, Plaintiff’s motion is denied. Plaintiff’s request for sanctions is also denied.  

Vivera is ordered to provide notice of this Order.

DATED:  May 2, 2023                                   ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court