Judge: Thomas D. Long, Case: 22STCV13627, Date: 2024-03-05 Tentative Ruling

Case Number: 22STCV13627    Hearing Date: March 7, 2024    Dept: 48

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

BACKGROUND

On April 25, 2022, Plaintiff Cohaus LLC filed this action against Defendants Charles Westphal, Hamilton Von Watts, Family Living Vineyard Avenue, LLC, Family Living Avenue 53, LLC, Family Living Berryman Avenue, LLC (collectively “Defendants”), LWH Properties, LLC, and Does 1-100 alleging causes of action for (1) breach of contract, (2) intentional misrepresentation, (3) negligent misrepresentation, (4) quantum meruit, (5) accounting, (6) unfair business practices, and (7) declaratory relief.

On September 12, 2023, Family Living Vineyard Avenue, LLC, Family Living Avenue 53, LLC, Family Living Berryman Avenue, LLC (collectively “Family Living”) filed a cross-complaint against Cohaus LLC, David Chun, Sung Ki Min, Lindon Shiao (collectively “Cohaus”) and Does 1-100 alleging causes of action for (1) breach of contract, (2) fraud, (3) breach of covenant of good faith and fair dealing, (4) unfair business practices and (5) accounting.

On January 11, 2024, Family Living filed its First Amended Cross-Complaint (the “FAXC”).

On February 1, 2024, Defendants filed the instant motion under CCP § 2031.320, subd. (a) to compel Cohaus’ compliance with their response to Defendants’ demand for inspection.

On February 9, 2024, Cohaus filed a demurrer to the FAXC.

On February 26, 2024, Cohaus filed their opposition to the instant motion. Family Living replied on February 29, 2024.

MOTION TO COMPEL COMPLIANCE UNDER CCP § 2031.320(a)

Legal Standard

Code Civ. Proc., § 2031.320, subd. (a) provides: “If 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.” Unlike most discovery motions, a motion under CCP § 2031.320(a) to compel compliance need not be accompanied by a declaration that the parties have met and conferred and attempted to resolve the issues informally. (Cal. Judges Benchbook, Civil Proceedings – Discovery, § 19.32.) A motion under CCP § 2031.320(a) need not be accompanied by a separate statement. (Id.)

Analysis

On April 13, 2023, Family Living propounded requests for production to Cohaus. (Declaration of Carl Alan Roth (“Roth Decl.”), ¶ 3, Exh. 1.) After requesting additional time for a response (Id. ¶ 4, Exh. 2), in its formal responses served in June 2023, Cohaus agreed to produce documents responsive to Request Nos. 9, 10, 11, 12, 16, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 33, 34, 35, 36, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, and 49, notwithstanding objections. (Id., ¶ 5, Exh. 3.) Cohaus’ responses and promise to produce are undisputed. As of June 21, 2023, Cohaus had produced 112 pages of documents, a production that Family Living deems deficient. (Id., ¶ 6; Exh. 4.) On June 23, Cohaus’ counsel represented that a “good faith attempt to produce further documents responsive to the requests for production” will be made. (Id., ¶ 7; Exh. 5. Emphasis added.) On July 6, Cohaus counsel represented that “supplemental documents and responses” will be served by July 21. (Id. Emphasis added.) Despite multiple reminders and extensions on behalf of Family Living, as of the date of filing of this motion, Cohaus had not provided additional responses to the requests for production. (Id., ¶¶ 8-20.) Cohaus concedes that “a second document production” only occurred on February 8, 2024, after this motion was filed. (Bloch Decl., ¶ 2; Exhs. A & B.)

As a preliminary matter, the Court notes that it is not obligated to consider Cohaus’ opposition papers, which were untimely filed. Under CCP § 1005(b), papers opposing a motion must be filed, and a copy served on each party, at least nine court days before the hearing. Here, the hearing is set for March 7, 2024, but Cohaus filed their opposition papers only on February 26. Moreover, Cohaus’ procedural arguments articulated in opposition are improper because they are based on the mistaken characterization that this motion was made pursuant to CCP § 2031.310 instead of § 2031.320(a), which provides a different ground to compel production. No separate statement is required to bring this motion.

In opposition, Cohaus makes a series of unusual arguments. First, Cohaus argues that CCP § 2031.310(a) does not allow Family Living’s request that Cohaus either produce supplemental documents or certify that they have already produced all relevant documents in their possession. As discussed above, this motion is made pursuant to § 2031.320, not § 2031.310. Moreover, it is common practice for courts to ask parties to certify that their productions are complete.

Second, Cohaus argues specifically as to requests nos. 46-48 that it is not obligated to research zoning documents because those documents are publicly available. This argument does nothing to relieve Cohaus of the obligation to respond to the many other requests. Moreover, Cohaus had represented in its formal responses to the requests for production that it would “produce non-privileged documents concerning the referenced property.” (Roth Decl., Exh. 3, Responses to Requests for Production Nos. 46-48.)

Interestingly, and fatally, nowhere does Cohaus dispute that (1) it has agreed to produce additional documents pursuant to Living Family’s requests, (2) it has not made a complete production pursuant to the requests.

Accordingly, Living Family’s motion is GRANTED.  Cohaus is ordered to produce supplemental documents in conformity with its Responses to Defendant Hamilton Von Watts’ First Set of Demands for Production of Documents dated June 6, 2023, without further objection, within 10 days.

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 7th day of March 2024