Judge: Yolanda Orozco, Case: 21STCV09943, Date: 2023-02-21 Tentative Ruling

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Case Number: 21STCV09943    Hearing Date: February 21, 2023    Dept: 31

MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION 

TENTATIVE RULING 

Plaintiffs’ Motion to Compel Further responses to Request for Production of Documents 1, 2, 3, 5, 6 7, 8, 9, 17, 29, and 34 is GRANTED. 

Plaintiffs’ request for monetary sanctions is GRANTED IN PART in the amount of $2,540.65 against London Town Center, LLC.  

Background 

On March 12, 2021, Plaintiffs 910 Torrance Blvd., LLC, Leslie H. Winner, and Lynda Winner, individually and as trustee of the Winner Family Living Trust (collectively, “Plaintiffs”) initiated the instant action by filing a Complaint against London Towne Center, LLC and Thomas Norris (collectively, “Defendants”).  The Plaintiffs’ Complaint alleges the following causes of action: (1) Partition of Real Property; (2) Accounting; (3) Breach of Fiduciary Duty’ (4) Constructive Trust; (5) Declaratory and Injunctive Relief; and (6) Unfair Business Practices (Civil Code § 17200).  

On April 22, 2022, the Plaintiffs filed a Motion to Compel Further Responses to Requests for Production of Documents as to Defendant London Towne Center (“LTC”). 

Defendant LTC filed an opposition on October 10, 2022. 

Plaintiffs filed a reply on October 14, 2022. 

The Informal Discovery Conference (IDC) held on December 05, 2022, failed to resolve the issue. 

On January 23, 2023, Erick S. McIntosh was relieved as defense counsel. 

MEET AND CONFER  

Plaintiffs’ counsel asserts he attempted to meet and confer with defense counsel regarding the deficiencies in Defendant LTC’s served response. (Breman Decl. ¶¶ 3, 7, Ex. B, F, G.) Thus, the meet and confer requirement is met.   

Legal Standard 

Under Code of Civil Procedure section 2031.310(a), parties may move for a further response to request for production where an answer to the requests was evasive or incomplete or where an objection is without merits or too general. ¿ 

Notice of the motions must be given within 45 days of service of the verified response, otherwise, the propounding party waives any right to compel a further response. (Code Civ. Proc. § 2031.310(c).)  The motions must also be accompanied by a meet and confer declaration. (Code Civ. Proc. § 2031.310(b).) ¿ 

Finally, California Rules of Court, rule 3.1345 requires that all motions or responses involving further discovery contain a separate statement with the text of each request, the response, and a statement of factual and legal reasons for compelling further responses. (Cal. Rules of Court, Rule 3.1345, subd. (a)(3)). 

Discussion 

The Discovery Dispute 

Plaintiff 910 Torrance Blvd, LLC owns a one-third (1/3) interest as a tenant in common of the subject property located in Redondo Beach. Defendant London Towne Center, LLC (“LTC”) owns a two-thirds (2/3) interest in the subject property with Defendant Thomas Norris being the sole member and manager of LTC. 

Plaintiffs allege Defendants LTC and Norris had exclusive control over the subject property’s accounts and finances. Plaintiffs now seeks an accounting of the finances. 

Request for Further RPD 

Plaintiffs’ request further responses to Request for Production of Documents (RPD) Nos. 1, 2, 3, 5, 6 7, 8, 9, 17, 29, and 34. 

Defendant LTC refuses to comply with the RPD on the basis it has already provided supplemental responses and that Plaintiffs’ meet and confer efforts have been insufficient. 

The RPD was served on Defendant on November 23, 2021, and responses were served on February 08, 2022. Plaintiffs assert that the responses were deficient. On March 07, 2022, Defendants retained new counsel, and Plaintiffs reached out to Defense counsel on March 17, 2022, to try to obtain supplemental responses. (Mot. Ex. F.) Plaintiff granted Defendants an extension to serve supplemental response due on April 08, 2022, but instead of complying, Defendant requested additional time to meet and confer, which Plaintiff rejected. The IDC failed to resolve the issue. Accordingly, the Court finds that Plaintiffs’ meet and confer efforts were appropriate. 

Defendant LTC asserts that prior defense counsel, Christine Brunner, informally provided Plaintiffs’ counsel with voluminous amounts of documents, including bank statements dating back to February 2018, general ledgers, balance sheets, income statements and other accounting documents that date to LTC taking over the collection of rents. (McIntosh Decl. ¶ 8, Ex. 1.) 

Defendant LTC asserts that Plaintiffs’ RPD asks in essence for the same documents Defendants’ prior counsel had informally provided. Consequently, LTC’s written responses to the RPD states that the documents are already in possession of Plaintiffs. Plaintiffs disputes this. The Court notes that the informal production of documents occurred before the appointment of the current Defense counsel. 

Plaintiffs assert that Defendant LTC’s responses are not code compliant. Therefore, Plaintiffs do not have sufficient information to know if all bank account information that is solely within LTC’s knowledge has been produced. 

Plaintiffs assert that Defendant LTC’s responses are incomplete, evasive, and do not comply with CCP section 2031.210 because LTC fails to respond separately to each item or category of item because the response fails to include: 

·       a statement that the party will comply with the particular demand and any related activities, or·       a representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item, or (3) an objection to the particular demand. 

If LTC is unable to comply, section 2031.010 requires the response to state: 

·       That a diligent search and reasonable inquiry has been made in an effort to locate the item demanded; and

·       The reason the party is unable to comply e.g., the document never existed; has been lost or stolen; has been destroyed; or is not in the possession, custody or control of the responding party ... in which case, the response must state the name and address of anyone believed to have the document. 

Defendant’s response is that LTC has produced the document informally, which Plaintiffs dispute. 

Plaintiffs point out that the deposition of Defendant LTC’s person most knowledgeable, who is Co-Defendant Thomas Norris, revealed that as of July 27, 2022, Mr. Norris had taken no steps to investigate and locate records. (Breman Decl. ¶ 9, Ex. B.) Moreover, the deposition testimony of Mr. Norris suggests that not all documents were informally produced. (Id.) 

The Court agrees that Plaintiffs are entitled to code-compliant responses under oath that specify whether Defendant LTC will or will not comply with the RPD. 

The Court grants Plaintiffs’ Motion for Further responses to RPD Nos. 1, 2, 3, 5, 6 7, 8, 9, 17, 29, and 34. 

Request for Sanctions 

Code of Civil Procedure section 2031.310, subdivision (h) provides that “the court shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to 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.”¿ 

The Court finds that sanctions are warranted because Defendant LTC did not act with substantial justification in refusing to provide further responses and the objections were without merit. The Court denies Defendant’s request for sanctions against Plaintiffs and Plaintiffs’ counsel of Record in the amount of $4,725.00.

Plaintiffs’ notice for sanctions stated that it sought sanctions in the amount $3,765.96 against Defendant London Towne Center, LLC (“LTC”).¿ Accordingly, sanctions are only appropriate against LTC. (See Civ. Proc., § 2023.040.) 

Plaintiffs’ counsel’s hourly rate for this matter is $350.00 per hour. (Breman Decl. ¶ 9.) Plaintiffs’ counsel asserts she spent 1.5 hours on meet and confer efforts, 6.0 hours researching and drafting this motion, and the accompanying Separate statement. (Id.) Plaintiffs’ counsel anticipates spending another 3.0 hours reviewing the opposition and drafting a reply and an additional 1.0 hour attending the hearing. (Id.) 

Plaintiffs’ counsel also seeks reimbursement for costs in the amount of $90.65 ($61.65 for hearing fees and $29.00 for e-filing service. ((Breman Decl. ¶ 9.) 

The Court awards sanctions in the reduced amount of $1,750.00 for 5.0 hours of work, plus $90.65 in costs, for a total of $1,840.65. 

Conclusion 

Plaintiffs’ Motion to Compel Further responses to Request for Production of Documents 1, 2, 3, 5, 6 7, 8, 9, 17, 29, and 34 is GRANTED. 

Plaintiffs’ request for monetary sanctions is GRANTED IN PART in the amount of $1,840.65 against London Town Center, LLC.  

Moving party to give notice.