Judge: Virginia Keeny, Case: 20VECV00119, Date: 2022-10-28 Tentative Ruling

Case Number: 20VECV00119    Hearing Date: October 28, 2022    Dept: W

Hsiu-Fang Lai, et al., v. Paradise Lodge Winnetka, Inc., et al.,

motion to compel further responses to discovery

Date of Hearing:          October 28, 2022                    Trial Date: None set.  

Department:               W                                             Case No.: 20VECV00119        

Moving Party: Plaintiff Hsiu-Fang Lai

Responding Party: Martin Kuo and Mulan Kuo         

BACKGROUND

On January 28, 2020, Plaintiffs Hsiu-Fang Lai and Hsin-Hsiao Wang filed a Complaint.  The operative pleading is the First Amended Complaint (“FAC”) and asserts causes of action for (1) partition of real property, (2) accounting, (3) breach of fiduciary duty,  (4) breach of partnership agreement, (5) declaratory relief, and (6) unjust enrichment against several defendants, including defendants Martin Kuo and Mulan Kuo (collectively “Defendants”)

Plaintiff Lai moves to compel Defendants to provide further responses to Requests for Production of Documents (Sets One & Two)

[Tentative] Ruling

Plaintiff’s Motion to Compel Further Responses to Requests for Production of Documents (Set one) is MOOT.  No sanctions are awarded. 

Plaintiff’s Motion to Compel Further Responses to Requests for Production of Documents (Set Two) is DENIED.  Plaintiff is ordered to pay $900 in sanctions.

In addition, Plaintiff is ordered to pay $184.95 ($61.65 x 3), which is the filing fee for three additional motions within 10 days.

LEGAL STANDARD

A motion to compel further production must set forth specific facts showing good cause justifying the discovery sought by the inspection demand.  (See Code Civ. Proc., § 2031.310(b)(1).)  It is not necessary for the motion to show that the material sought will be admissible in evidence. “Good cause” may be found to justify discovery where specific facts show that the discovery is necessary for effective trial preparation or to prevent surprise at trial.  (See Associated Brewers Dist. Co. v. Superior Court (1967) 65 Cal.2d 583, 586-588; see also CCP §§ 2017.010, 2019.030(a)(1) [Information is discoverable if it is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence and it is not unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive.]; Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1611-1612 [noting a party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence].)

ANALYSIS

Improper Filings

Multiple motions should not be combined into a single filing. (See Govt. Code § 70617(a)(4) (setting forth the required filing fee for each motion, application, or any other paper or request requiring a hearing); see also Weil & Brown, Civil Procedure Before Trial, [8:1140.1] at 8F-60 (The Rutter Group 2011) (“Motions to compel compliance with separate discovery requests ordinarily should be filed separately.”)) 

Here, Plaintiff improperly filed one motion to compel further responses for what should have been four separate motions for the four separate discovery requests (two sets for two defendants).

Thus, Plaintiff is ordered to pay $184.95 ($61.65 x 3), which is the filing fee for three additional motions. 

Request for Judicial Notice

Defendants’ Request for Judicial Notice Nos. 1-3 are GRANTED.

Requests for Production (Sets One)

Plaintiff moves to Compel Defendants to provide further responses to Request for Production Requests (Sets One) (hereinafter (the “Requests”)).

Defendants represent that the Motion is now moot, as they provided responses to the Requests on September 28, 2022. 

The Court agrees that the Motion is now moot; however, the Court will analyze if sanctions are warranted.  To the extent the further responses are deficient, Plaintiff may file a motion to compel further responses as to the responses that continue to be deficient.

The Motion was filed on September 28, 2022.  Based on date the Motion was filed, and Plaintiff’s representation that further responses had not been received in the declaration in support of the Motion, the responses at issue were provided after the Motion was filed.  (See Venezia Decl., ¶ 18.)  In the declaration in support of the Opposition, Defendants’ counsel represents that she was not able to provide the further responses on time because she was out sick from September 20, 2022 through September 25, 2022.  (Rosen Decl., ¶¶  16-17.)  A review of the documents submitted in support of the Motion by Plaintiff reveal that on September 23, 2022, Defendants’ counsel’s colleague informed Plaintiff that she was out sick and responses could not be provided that day, but “hopefully in the coming week after [Defendants’ counsel] is back in the office.”  (Venezia Decl., Exh. N.)  Defendants’ counsel provides a declaration under penalty of perjury that she was out sick at the time the responses were due, and that she promptly prepared and executed the responses upon her return.  (Rosen Decl., ¶¶ 17-18.)  The Court has no reason to believe that Defendants’ counsel is making misrepresentations in her declaration, and the Court finds that it would have been reasonable for Plaintiff to grant an additional extension, so that she could prepare the responses.  Accordingly, the Court finds that Defendants’ counsel acted with substantial justification and that sanctions against Defendants are not warranted.

Thus, Plaintiff’s request for sanctions is DENIED.   

The Court also DENIES, Defendants’ Request for sanctions, as Defendants’ counsel failed to inform Plaintiff that she was finalizing the responses when she returned to the office on September 26, 2022, which could have avoided the filing of the Motion all together.

Requests for Production of Documents (Set Two)

Plaintiff moves to Compel Defendants to provide further responses to Request for Production Requests (Set Two) (hereinafter (the “Requests”)).  Plaintiff moves to compel further responses because Defendants provided objection only responses.

Defendants contends that Plaintiff’s Motion is untimely.  Plaintiff contends that the Motion is timely because Defendants objection only responses are not verified, and, therefore, 45-day clock to file a motion to compel further responses was not triggered.

Plaintiff is mistaken that unverified objection only responses do not trigger the 45-day clock to file a motion to compel further responses. 

“If answers or objections are on file, and the propounding party deems that further response is required, he must file a motion to compel further answers within [45] days after the date of service of answers or objections, unless there is a stipulation extending time, or the court, on motion and notice, and for good cause shown, enlarges the time. Otherwise, the party is deemed to have waived the right to compel further answers.”  (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 788 (emphasis added).)  pursuant to Code of Civil Procedure 2031.250 and Deyo no verification was required, and the 45-day clock started running at the time the objections were served.  (Code Civ. Proc. § 2030.250(a) [“The party to whom he demand for inspection, copying, testing, or sampling is directed shall sign the response under oath unless the response contains only objections.”])  In addition, Code of Civil Procedure section 2031.310(a)(3) specifically provides that a party may move for an order compelling further responses if an “objection in the response is without merit.”  Accordingly, to the extent that Plaintiff believed that Defendants’ objections were without merit, then Plaintiff should have filed the motions within 45-days of receiving responses (unless there were any extensions).

Plaintiff served the Requests on Defendants on May 3, 2022.  (Venezia Decl., ¶ 7.)  On June 6, 2022,  Defendants served their responses to the Requests.  (Id. at ¶ 8.)  Plaintiff fails to provide any evidence that the Parties agreed to extend the deadline to file a motion to compel further for the Requests.  Here, Defendants served their responses by email, so Plaintiff had until July 26, 2022 (45 days + 2 court days) to request an IDC or file the instant Motion.  (See Code Civ. Proc §§ 1010.6, 1013(e).)  Plaintiff did not request the IDC until August 22, 2022.  Accordingly, Plaintiff’s Motion is untimely.

Thus, Plaintiff’s Motion to Compel Further Responses to Requests for Production of Documents (Set Two) is DENIED.

The Court finds that sanctions against Plaintiff are proper in light of the ruling above.  The Court finds that sanctions in the amount of $900 (representing 2 hours at a rate of $450/hour) are reasonable and appropriate.  (Rosen Decl., ¶ 26.)

CONCLUSION

Plaintiff’s Motion to Compel Further Responses to Requests for Production of Documents (Set one) is MOOT.

Plaintiff’s Motion to Compel Further Responses to Requests for Production of Documents (Set Two) is DENIED.  Plaintiff is ordered to pay $900 in sanctions.

In addition, Plaintiff is ordered to pay $184.95 ($61.65 x 3), which is the filing fee for three additional motions.