Judge Thomas D. Long, Case Number: 22STCV31501, Date: 2024-12-31 Tentative Ruling

Before bringing a motion to compel further responses to any discovery request, the moving party is required to make efforts to meet and confer in good faith and must submit a declaration attesting to those efforts. (Code Civ. Proc., §§ 2031.310(b)(2), 2030.300(b), 2033.290(b).) “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc. § 2016.040.) Plaintiff provides a meet and confer declaration for both motions. (Yeghiayan Decl., ¶ 6, Exh. B.)

Notice of a motion to compel further responses must be given within 45 days of service of the verified response, or on or before any specific later date to which the parties have agreed in writing. (CCP §§ 2030.300(c), 2033.290(c).) If such notice is not given, the propounding party waives any right to compel a further response. (Id.)

Here, on April 2, 2024, Gervasi served responses to the Requests for Production of Documents and Requests for Inspection. (Yeghiayan Decl., ¶ 8-9, Exhs. B, D.) After multiple extensions, the notices for the motions to compel were to be filed by September 13, 2024. (Yeghiayan Decl., ¶¶ 21.) However, Plaintiff filed the motions four days late on September 17, 2024.

When there is a delay in service, “it is incumbent upon plaintiff to establish reasonable or excusable delay in service.” (Hilliard v. Lobley¿(1989) 216 Cal.App.3d 638, 642.) Once plaintiff establishes excusable delay, courts may consider other factors, such as any prejudice or insufferable harm to a defendant from the delay in service. (Putnam v. Clague¿(1992) 3 Cal.App.4th 542, 549; Board of Supervisors v. Superior Court (1994) 23 Cal.App.4th 830, 848-849.)

Plaintiff’s Counsel states that the delay in service and lack of personal service was due to Counsel’s excusable neglect. (Reply, Yeghiayan Decl., ¶¶ 4-8.) However, to prevent any prejudice to Defendant, Plaintiff’s Counsel served an amended notice rescheduling the hearing to provide Defendant Gervasi with additional time to submit any supplemental opposition.

The Court agrees and finds that Counsel’s mistake was reasonable or excusable, given the hearing was rescheduled and Defendant failed to provide any evidence showing how he was prejudiced. The Court also finds that Defendant was subject to little to no prejudice from the four day delay.

Motion to Compel Further Responses to Requests for Production of Documents - Requests Nos. 52-65

A propounding party may move for an order compelling further responses to interrogatories if the responding party produced an evasive or incomplete answer or a meritless or overly general objection in response to an interrogatory. (Code Civ. Proc., § 2030.300(a).) A motion to compel further responses to interrogatories lies where the party to whom the interrogatories were directed gave responses deemed improper by the propounding party; e.g., objections, or evasive or incomplete answers. (Code Civ. Proc., § 2030.300.) The moving party must also include reasons why further answers should be ordered: legal or factual arguments why the answers given were incomplete or nonresponsive, or the objections invalid. (California Rules of Court, rule 3.1020(c).) “The statement of reasons is required to help the judge prepare for the hearing. But this does not change the burden of persuasion at the hearing-i.e., the responding party still has the burden of justifying at the hearing each objection raised to discovery.” (Weil & Brown, Cal. Prac. Guide: Civil Pro. Before Trial (The Rutter Group 2011) ¶ 8:1157, 8:1179.)

REQUEST FOR PRODUCTION NO. 52: All DOCUMENTS and/or COMMUNICATIONS RELATING TO the LANDS IME, including but not limited to, the LANDS IME being emailed to third parties.

REQUEST FOR PRODUCTION NO. 53: All DOCUMENTS and COMMUNICATIONS with Rowena Arguelles RELATING TO LANDS.

REQUEST FOR PRODUCTION NO. 54: All DOCUMENTS and COMMUNICATIONS with Sean Perrone RELATING TO LANDS.

REQUEST FOR PRODUCTION NO. 55: All DOCUMENTS and COMMUNICATIONS with Nina Lederman RELATING TO LANDS.

REQUEST FOR PRODUCTION NO. 56: All DOCUMENTS and COMMUNICATIONS with James Garavente RELATING TO LANDS.

REQUEST FOR PRODUCTION NO. 57: All DOCUMENTS and COMMUNICATIONS with Maya McLaughlin RELATING TO LANDS.

REQUEST FOR PRODUCTION NO. 58: All DOCUMENTS and COMMUNICATIONS with Alison Edmond RELATING TO LANDS.

REQUEST FOR PRODUCTION NO. 59: All DOCUMENTS and COMMUNICATIONS with John B. Pearson RELATING TO LANDS.

REQUEST FOR PRODUCTION NO. 60: All DOCUMENTS and COMMUNICATIONS with Lionel Arguelles RELATING TO LANDS.

REQUEST FOR PRODUCTION NO. 61: All DOCUMENTS and COMMUNICATIONS with Jeff Klein RELATING TO LANDS.

REQUEST FOR PRODUCTION NO. 62: All DOCUMENTS and COMMUNICATIONS with Lidija Wigram RELATING TO LANDS.

REQUEST FOR PRODUCTION NO. 63: All DOCUMENTS and COMMUNICATIONS with Liseanna Frankfurt RELATING TO LANDS.

REQUEST FOR PRODUCTION NO. 64: All DOCUMENTS and/or COMMUNICATIONS between YOU and any third party RELATING TO LANDS.

REQUEST FOR PRODUCTION NO. 65: All direct messages exchanged through any software application, including but not limited to, text messages, WhatsApp messages, iMessages, social media messaging, or any other messaging service, RELATING TO LANDS.

Plaintiff argues that (1) the discovery at issue relates directly to Lands’ contentions in the Complaint in this action; (2) Gervasi’s responses to the RFP, Set Three are inadequate, incomplete, and evasive; and (3) Gervasi has without substantial justification refused to produce certain documents, asserted meritless objections and withheld production of documents in response to the RFP, Set Three; and (4) good cause exists for the production of the documents demanded. (Not. of Mot. at p. 1.)

In opposition, Defendant argues that the requests are overbroad in both time and scope under the Court’s November 2023 Ruling. Specifically, Requests Nos. 53-65 seek Gervasi’s communications with various third parties about Plaintiff without limitation. (Opp. at p. 8.) Defendant further argues that Plaintiff’s RFP No. 52 fails to seek relevant information discoverable at this time.

As to Requests Nos. 53-65, the Court notes that Plaintiff’s requests are grossly overbroad because they are not restricted to a certain time period. The Court is inclined to grant the requests with a limitation of time and scope surrounding the alleged sexual assaults to a year before and a year after the alleged sexual assaults. For instance, Plaintiff showed good cause in the requests because she notes that any messages Defendant sent to third parties prior to any of the assaults stating that he was going to commit such acts, that information would go to Defendant’s mental state in committing the assaults. Thus, the Requests Nos. 53-65 are GRANTED IN PART.

As to Request No. 52, Defendant unilaterally limited the response to Request No. 52 when he stated that “Responding Party has conducted a reasonably diligent search for communications emailing the Lands IME to third parties after the date that Lands requested it be treated as Highly Confidential under the Protective Order in this matter. Responding Party located no responsive documents and he reasonably believes that no such responsive documents ever existed.” (emphasis added.) (Response to Sep. Statement at p. 2.) Defendant failed to cite to any legal authority showing that agreeing to a Protective Order would limit discovery to only communications after the date the parties entered into the Protective Order. Thus, the Court also GRANTS the motion as to Request No. 52.

The motion is GRANTED IN PART. Within 30 days, Defendant is ordered to provide further responses to Requests Nos. 52-65. However, as to Requests Nos. 53-65, the requests are limited to a year before and a year after the alleged sexual assaults.

A party may demand to inspect, copy, test, or sample electronically stored information in the possession, custody, or control of the party on whom demand is made. (Code Civ. Proc., § 2031.010, subd. (d).) Upon receipt of a response, the demanding party may move to compel a further response if a statement of compliance with the demand is incomplete; a 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 demanding party must set forth specific facts showing good cause justifying the discovery sought by the demand. (Code Civ. Proc., § 2031.310, subd. (b)(1).)

RFI No. 1. seeks to inspect Defendant Gervasi’s devices for communications relating to Lands from 2016 through present, and RFI, No.2 seeks to inspect Gervasi’s devices for communications relating to the Complaint. Defendant Gervasi objected on multiple grounds: including but not limited to, the attorney-client privilege, relevancy, overbroad, unduly burdensome, and oppressive. However, Plaintiff later agreed to limit the requests to one year before and one year after the alleged sexual assaults. (Separate Statement at p. 3.)

As to any privilege objections, Defendant may file a privilege log and a protective order has already been agreed to. Moreover, Defendant failed to provide any evidence showing that the requests would be unduly burdensome except for the broadness of the requests.

Thus, the Court limits the scope of the inspections to one year before and one year after the alleged sexual assaults.

The motion is GRANTED IN PART. Within 60 days, Defendant must permit inspection of his devices (as defined by the Request for Inspection) for messages relating to (1) Plaintiff’s allegations that Defendant assaulted, falsely imprisoned, inappropriately touched, and/or made sexual advances towards her on July 9, 2021, and January 3, 2022; and/or (2) any damages Plaintiff claims that she suffered in this action as a result of any conduct by Defendant.

Code of Civil Procedure Section 2031.320(b) provides, in pertinent part, that “the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes . . . 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.” Code of 2023.10(h) further provides that it is a misuse of the discovery process to “ make[] . . ., unsuccessfully and without substantial justification, a motion to compel . . . discovery.”

Plaintiff Lands requests sanctions against Defendant Gervasi and his counsel in the amount of $4,876.65 for each motion. (Yeghiayan Decl., ¶ 37.) Defendant Gervasi requests sanctions in the amount of $4,770 be awarded against Plaintiff Lands and her counsel for each motion. (Elsea Decl., ¶ 28.) However, the Court finds sanctions are unwarranted because the motions were granted in part. Thus, sanctions would be unjust.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court