Judge: Theodore R. Howard, Case: 21-1186508, Date: 2023-01-05 Tentative Ruling

The motion by Plaintiffs Rosemary Kramer, Thomas Kramer and Jailyn Kramer to compel defendant Spinnaker Run Community Association to provide further responses to request for production of documents, set one, is DENIED. 

With respect to motions to compel further responses to requests for production of documents, Code Civ. Proc., § 2031.310(b)(1) requires the moving papers to set forth specific facts showing good cause justifying the discovery sought by the inspection demand.  To establish good cause, "the burden is on the moving party to show both: (1) relevance to the subject matter (e.g., how the information in the document would tend to prove or disprove some issue in the case); and (2) specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial)." (Glenfed Develop. Corp. v. Superior Court (National Union Fire Ins. Co. of Pittsburgh, Pa.) (1997) 53 Cal.App.4th 1113, 1117; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2016) ¶ 8:1495.6.)

As stated by the Fourth District Court of Appeal, Division 3, CCP §2031 “requires a party seeking to compel such production to ‘set forth specific facts showing good cause justifying the discovery sought by the inspection demand.’ …  In law and motion practice, factual evidence is supplied to the court by way of declarations.” (Calcor Space Facility, Inc. v. Super. Ct. (1997) 53 Cal.App.4th 216, 223-224.)  In Calcor, the Court reversed the trial court’s order granting plaintiff’s motion to compel production.  There, the moving plaintiff provided argument regarding good cause via its Separate Statement and Opposition but failed to submit admissible evidence in the form of a declaration.  The Court held that “Neither document is verified, and thus they do not constitute evidence.”  Calcor Space Facility, Inc. v. Super. Ct. (1997) 53 Cal.App.4th 216, 224.) 

Only if good cause is shown by the moving party does the burden then shift to the responding party to justify any objections made to document disclosure. (Kirkland v. Super. Ct. (2002) 95 Cal.App.4th 92, 98.)  Since arguments made in the moving papers or in a separate statement are insufficient to establish good cause, the plaintiffs have not met their burden.  Accordingly, the defendant does not have an obligation to justify its objections.

Further, plaintiffs have failed to submit a Separate Statement that complies with California Rule of Court Rule 3.1345(c) which states in pertinent part:  “A separate statement is a separate document filed and served with the discovery motion that provides all the information necessary to understand each discovery request and all the responses to it that are at issue. The separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and the full response. Material must not be incorporated into the separate statement by reference. The separate statement must include--for each discovery request (e.g., each interrogatory, request for admission, deposition question, or inspection demand) to which a further response, answer, or production is requested--the following:  … (2) The text of each response, answer, or objection, and any further responses or answers.”

On August 27, 2021 Defendant served verified responses to the subject discovery. (Exh. 3 to Motion)   On Oct. 28, 2021, Defendant served Supplemental Responses, plus privilege log. (Exh. 5 to Motion)  On Mar. 7, 2022, Defendant served Further Supplemental Responses (Exh. 9 to Motion)  On June 30, 2022, Defendant served Supplemental Responses, plus privilege log.  (Exh. 15 to Motion)  Plaintiff’s separate statement contains only the latter and therefore fails to comply with the requirement of Rule 3.1345(c)(2) that “the text of each response…and any further responses” be stated.  Failure to include a separate statement that conforms to the California Rules of Court is grounds for the court to deny moving party’s discovery motion. (See Mills v. U.S. Bank (2008) 166 Cal. App. 4th 871, 893; Neary v. Regents of University of California (1986) 185 Cal.App.3d 1136, 1145.)

Plaintiffs’ request for sanctions is also DENIED

The Court orders the defendant to give notice of this ruling.