Judge Walter P. Schwarm, Case 30-2021-01183125 2022-10-18 Tentative Ruling

Judge: Walter P. Schwarm, Case: 30-2021-01183125, Date: 2022-10-18 Tentative Ruling

Defendants’ (Gina Kim, Anna Kim, Kyong Su Kim, Myong Kil Kim, and May Enterprise, LLC) Notice of Motion and Motion to Compel Further Response to Requests for Production of Documents Set No. 1 (Notice), filed on 6-6-22 under ROA No. 106, is GRANTED.

Initially, the court notes that Defendants did not file a supporting memorandum with their Notice as required by California Rules of Court, rule 3.1113(a). California Rules of Court, rule 3.1113(a), states, “A party filing a motion, except for a motion listed in rule 3.1114, must serve and file a supporting memorandum. The court may construe the absence of a memorandum as an admission that the motion or special demurrer is not meritorious and cause for its denial and, in the case of a demurrer, as a waiver of all grounds not supported.” Quantum Cooking Concepts, Inc. v. LV Associates, Inc. (2011) 197 Cal.App.4th 927, 934 (Quantum), explains, “Rule 3.1113 rests on a policy-based allocation of resources, preventing the trial court from being cast as a tacit advocate for the moving party's theories by freeing it from any obligation to comb the record and the law for factual and legal support that a party has failed to identify or provide. On the record in this case, the trial court was justified in declining to look beyond that failure.” Defendants, however, filed a Separate Statement (SS) on 6-6-22 under ROA No. 102. Plaintiff (Mira Kim) filed Plaintiff’s Opposition to Motion to Compel Further Response to Request for Production of Documents Set No. 1 Propounded by Defendants (Opposition) on 10-5-22 under ROA No. 184. Since the SS contains Defendants’ contentions as to why Plaintiff’s responses were insufficient and Plaintiff’s Opposition does not address California Rules of Court, rule 3.1113(a), the court will address the merits of the Motion because it appear that the parties have narrowed the issue to the application of Code of Civil Procedure section 2031.280.

Code of Civil Procedure section 2031.310 provides: “(a) On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: [¶] (1) A statement of compliance with the demand is incomplete. [¶] (2) A representation of inability to comply is inadequate, incomplete, or evasive. [¶] (3) An objection in the response is without merit or too general. [¶] (b) A motion under subdivision (a) shall comply with each of the following: [¶] (1) the motion shall set forth specific facts showing good cause justifying the discovery sought by the demand. [¶] (2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040. . . [¶] (c) Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand.”

Code of Civil Procedure section 2031.280 provides, “(a) (a) Any documents or category of documents produced in response to a demand for inspection, copying, testing, or sampling shall be identified with the specific request number to which the documents respond.”

Defendants move to compel a further response from Plaintiff to Requests for Production, Set One served by each Defendant. (Notice; 1:25-2:11.) Plaintiff’s response to each request is substantially identical and includes following statement after objections: “To the extent not already produced by any party or third party in related Case No. 30-2020-01152798-CU-BC-CJC, Mira will produce documents in her possession, custody, or control. . . After a reasonable search, Mira has not located additional documents in her possession, custody, or control responsive to this Request outside of documents already produced in related in Case No. 30-2020-01152798-CU-BC-CJC.” (SS.)

The Notice states, “This motion is brought pursuant to Code of Civil Procedure §§ 2023.010 et seq. and § 2033.290 et seq. on the grounds that Plaintiff’s responses are not Code-compliant in that they do not identify the documents which are response [sic] to each request. The written discovery is relevant to the subject matter of this action and is not objectionable or improper. There is good cause for this motion pursuant to Code Civ. Proc. §§ 2023.010, et seq., and §2033.290 et seq.” (Notice, 2:12-18; Italics in Notice.)

The SS states as to each request: “Legal and Factual Reasons why Identification is Insufficient: The Identification does not comply with Code Civ. Proc. § 2031.280(a): ‘Any documents or category of documents produced in response to a demand for inspection, copying, testing, or sampling shall be identified with the specific request number to which the documents respond.’ ” (For example, see SS at 3:14-16; Italics and underscore in SS.)

The Opposition states, “Where the parties still diverge is the requirement of CCP Section 2031.280(a).” (Opposition; 7:8.) “The purpose of CCP Section 2031.280(a) demonstrates that it was not meant to be used to require a party to identify documents produced by other parties or third parties in response to different requests. Instead, it was meant to change a party produced its own documents . . . There was no intention that the provision create a new requirement to identify documents produced by other parties and third parties in response to different discovery requests . . . [¶] Mira has good reasons why she does not want to create the list of Bates labels requested by Defendants First, Mira already has described documents supporting her allegations. Creating a separate list would be unnecessary make-work. Again, if there are concerns with her descriptions, Mira is ready to address them. Second, Mira has described the documents in a response with additional narrative. Requiring her just to list Bates labels – devoid of any explanation or narrative – could create confusion or be misinterpreted.” (Opposition 7:19-8:7.)

Code of Civil Procedure section 2031.280, subdivision (a) requires that Plaintiff specifically identify documents responsive to each request. Plaintiff’s responses that she would produce all documents to the extent that Plaintiff had not produced them in Case No. 30-2020- 01152798-CU-BC-CJC by any “party or third party” is insufficiently specific because these responses refer to potentially many different documents. Although Plaintiff asserts that Code of Civil Procedure section 2013.280, subdivision (a), was meant to “change a party produced its own documents,” Plaintiff has cited no authority for this argument. The court is not persuaded by Plaintiff’s interpretation of Code of Civil Procedure section 2031.280, subdivision (a). Plaintiff’s responses are incomplete because Code of Civil Procedure section 2031.280 requires Plaintiff to connect the responsive documents to the request number that corresponds to the documents produced. Without the corresponding request number, Defendants cannot determine which documents are responsive to a particular request.

Based on the above, the court GRANTS Defendants’ (Gina Kim, Anna Kim, Kyong Su Kim, Myong Kil Kim, and May Enterprise, LLC) Notice of Motion and Motion to Compel Further Response to Requests for Production of Documents Set No. 1 filed on 6-6-22 under ROA No. 106. The court orders Plaintiff to produce the documents Plaintiff has agreed to produce or has already produced in compliance with Code of Civil Procedure section 2031.280, subdivision (a) no later than 11-15-22.

Defendants are to give notice.