Judge: Thomas D. Long, Case: 22STCV06941, Date: 2023-02-01 Tentative Ruling

Case Number: 22STCV06941    Hearing Date: February 1, 2023    Dept: 48

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On February 25, 2022, Plaintiff Marcus Peter Khaddor filed this action against Defendant FCA US LLC, arising from Plaintiff’s purchase of an allegedly defective vehicle.  On October 26, 2022, Defendant filed a motion to compel responses to Requests for Production of Documents (“RFPs”).

A party may move to compel a further response to a demand for production of documents if the demanding party deems that the statement of compliance with the demand is incomplete; the representation of inability to comply is inadequate, incomplete, or evasive; or an objection in the response is without merit or too general.  (Code Civ. Proc., § 2031.310, subd. (a).)  The court shall impose a monetary sanction against any party who unsuccessfully makes or opposes a motion to compel further responses 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).)

Defendant served the RFPs on Plaintiff on July 29, 2022.  (Dao Decl. ¶ 3 & Ex. 1.)  Defendant also served discovery requests in 29 other cases.  (Sogoyan Decl. ¶ 11.)  On August 23, 2022, Plaintiff’s counsel requested a thirty-day extension in all 30 cases.  (Sogoyan Decl. ¶ 12 & Ex. 1.)  Plaintiff’s counsel followed up twice the next day.  (Sogoyan Decl. ¶¶ 13-14 & Exs. 2-3.)  On August 26, 2022, Plaintiff served responses, which were mostly meritless and irrelevant objections.  (Dao Decl. ¶ 4 & Ex. 2.)  Defendant believed the responses were deficient, and it sent a meet-and-confer letter on September 10, 2022.  (Dao Decl. ¶ 5 & Ex. 3.)  On October 7, 10, and 12, 2022 (before the October 12, 2022 deadline for a motion to compel), Defendant sent emails attempting to schedule a time to meet and confer telephonically.  (Dao Decl. ¶ 6 & Ex. 4; see Sogoyan Decl. ¶¶ 17-18.)  On October 12, 2022, Plaintiff’s counsel stated they would meet and confer, and granted a two-week extension for filing a motion to compel.  (Sogoyan Decl. ¶ 19 & Ex. 7.)  On October 19, 2022, Plaintiff’s counsel responded to Defendant’s counsel that they were “looking into this.”  (Dao Decl., Ex. 5.)  Defendant filed this motion on October 26, 2022.

On October 31, 2022, Plaintiff served amended responses and responsive documents.  (Sogoyan Decl. ¶ 21 & Ex. 9.)  On December 12, 2022, Defendant’s counsel sent an email detailing additional deficiencies with the amended responses.  (Sogoyan Decl., Ex. 10.)

Defendant contends that the responses still contain “the same boilerplate objections that were at issue in the original responses.”  (Sogoyan Decl., Ex. 10.)  The Court finds that all of the amended responses’ objections are without merit.  But, although Plaintiff does reassert the objections in his amended responses, he also provides further responses.  For example, in the amended response to RFP No. 1 (copy of any lease agreement or sales contract,” Plaintiff responded, “However, without waiving the foregoing objections, Plaintiff responds as follows: Plaintiff will comply with this request to the extent responsive, non-privileged documents are in Plaintiff’s possession, custody, and control by producing: Plaintiff’s purchase and/or lease agreement, attached hereto as Exhibit ‘A.’  Discovery is still ongoing, and Plaintiff reserves the right to supplement or amend this response should additional information become available.”  In the amended response to RFP No. 9 (all documents relating to repairs, maintenance, and service work), Plaintiff responded, “However, without waiving the foregoing objections, Plaintiff responds as follows: Plaintiff will comply with this request to the extent responsive, non-privileged documents are in Plaintiff’s possession, custody, and control by producing: the repair invoices for the Subject Vehicle, attached hereto as Exhibit ‘B.’  Discovery is still ongoing, and Plaintiff reserves the right to supplement or amend this response should additional information become available.”  Thus, despite the repeated objections, Plaintiff still fully responded, and there is nothing further to compel (except as discussed below).

Defendant contends that Plaintiff improperly states that he does not have possession, custody, or control of the current registration, current payoff statement, and payment history.  (Sogoyan Decl., Ex. 10.)  For RFP No. 2 (current registration), Plaintiff’s amended response states, “Plaintiff will comply with this request to the extent responsive, non-privileged documents are in Plaintiff’s possession, custody, and control.”  (Sogoyan Decl., Ex. 9 at p. 6.)  For RFP Nos. 5-6 (current payoff statement) and No. 7 (payment history), Plaintiff’s amended responses state, “After a diligent search, and a reasonable inquiry, Plaintiff cannot comply with this request because the documents sought are not in Plaintiff’s possession, custody, or control.”  (Sogoyan Decl., Ex. 9 at pp. 8-9.)  Defendant argues that actual possession, custody, or control is not required, and because Plaintiff has a right to access and obtain these documents, he should be ordered to produce them.  (Sogoyan Decl., Ex. 10.)  Defendant’s email to Plaintiff cites non-binding federal authority and one California Court of Appeal case regarding the enforceability of a civil subpoena served on a third party.  Defendant provides no binding authority for its argument.

Defendant also contends that the responses to RFP Nos. 5, 6, 7, and 8 “fail to 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,” and “fail to 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.”  (Sogoyan Decl., Ex. 10.)  Plaintiff must serve responses that fully comply with Code of Civil Procedure section 2031.230.

The motion is GRANTED as to RFP Nos. 5, 6, 7, and 8.  Plaintiff is ordered to serve verified and code-compliant responses, without objection, to RFP Nos. 5, 6, 7, and 8 within ten days.

The motion is otherwise DENIED.

The requests for sanctions are DENIED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit.  Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

         Dated this 1st day of February 2023