Judge: Yolanda Orozco, Case: 21STCV09943, Date: 2023-03-03 Tentative Ruling
Case Number: 21STCV09943 Hearing Date: March 3, 2023 Dept: 31
MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODCTION AND SANCTIONS
TENTATIVE RULING
Plaintiffs’ Motion to Compel Further responses to Request for Production of Documents 1, 2, 4, 5, 6 7, 17, 25, 26 and 33 is GRANTED.
Plaintiffs’
request for
monetary sanctions is GRANTED IN PART in the amount of $1840.65. against Defendant Norris.
Background
On March 12, 2021, Plaintiffs 910 Torrance Blvd., LLC, Leslie H. Winner, and Lynda Winner, individually and as trustees 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, Plaintiffs filed a Motion to Compel Further Responses to Requests for Production of Documents and Demand for Inspection as to Thomas Norris (“Norris”) and also to pay a monetary sanction to said moving party in the sum of $3,765.96 for Plaintiff's attorney's fees, expenses and costs incurred in connection with this motion.
Norris 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/TIMING/SePARATE STATEMENT
Plaintiffs’ counsel attempted to meet and confer with defense counsel regarding the deficiencies in Norris’s served response on numerous occasions. (Breman Decl. ¶¶ 3, 6, 7, Ex. B, F, G.) Thus, the meet and confer requirement is met.
On November 24, 2021, Plaintiff served Norris with Requests for Inspection and Production of Documents (Set One). (Breman Decl. ¶ 2, Ex. A.) Norris served responses on February 8, 2022. (Breman Decl. ¶ 5, Ex. E.) After a meet and confer exchange, the parties agreed to give Norris until April 8, 2022 to serve further responses and to give Plaintiff until April 22, 2022 to file motions to compel should they be necessary. (Breman Decl. ¶ 7, Ex. G.) Norris did not file further responses. (Breman Decl. ¶ 8, Ex. H.) Because Plaintiff filed this motion on April 22, 2022, the motion is timely pursuant to the agreement between the parties.
Both Plaintiff and
Norris filed separate statements in conjunction with their moving papers.
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 seek accounting of the finances.
Request for Further RPD
Plaintiffs request further responses to Request for Production of Documents (RPD) Nos. 1, 2, 4, 5, 6 7, 17, 25, 26, and 33.
Norris refuses to comply with the RPD on the basis he has already provided supplemental responses and that Plaintiffs’ meet and confer efforts have been insufficient.
As discussed above, Plaintiffs’ meet and confer efforts were sufficient. The RPD was served on Norris on November 24, 2021, responses were served on February 08, 2022. Plaintiffs assert that the responses were deficient. On March 07, 2022, Defendants appointed new counsel, and Plaintiffs reached out to Defense counsel on March 17, 2022, to try to obtain supplemental responses. (Mot. Ex. F.) Plaintiffs granted Norris an extension to serve supplemental responses due on April 08, 2022, but instead of complying, Norris requested additional time to meet and confer, which Plaintiffs rejected. The IDC failed to resolve the issue. Accordingly, the Court finds that Plaintiffs meet and confer efforts were sufficient.
Norris asserts that prior defense counsel, Christine Brunner, informally provided Plaintiffs’ counsel with voluminous amounts of documents, including bank statements dating back to 2-18 years, 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.)
Norris asserts that Plaintiffs’ RPD asks in essence for the same documents Defendants’ prior counsel had informally provided. Consequently, Norris’s written responses to the RPD states that the documents are already in possession of Plaintiff. Plaintiff disputes this. The Court notes that the informal production of documents occurred before the appointment of the current Defense counsel.
Plaintiffs assert that Norris’s responses are not code compliant and, therefore, that Plaintiffs do not have sufficient information to know whether all bank account information that is solely within Norris’ knowledge has been produced.
Specifically, Plaintiffs assert that Norris’s responses are boilerplate, incomplete, evasive, and do not comply with section 2031.210 because Norris 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 Norris 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.
Norris’s response is that Norris has produced the documents informally, which Plaintiffs dispute.
Plaintiffs point out that the deposition of Defendant LTC’s person most knowledgeable, who is Norris, revealed that as of July 27, 2022, Norris had taken no steps to investigate and locate records. Moreover, the deposition testimony of Norris suggests that not all documents were informally produced.
The Court agrees that Plaintiffs are entitled to responses under oath that Norris will or will not comply with the RPD, and if not, why.
The Court grants
Plaintiffs’ Motion
for Further responses to RPD Nos. 1, 2, 4, 5, 6 7, 17, 25, 26 and 33.
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 Norris did not act with substantial justification in refusing to provide further responses and the objections were without merit. The Court denies Norris’s request for sanctions against Plaintiffs and Plaintiffs’ counsel of Record.
Plaintiffs’
notice for
sanctions stated that it sought sanctions in the amount $3,765.96 against
Norris.¿ Accordingly,
sanctions are only appropriate against Norris. (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.)
The Court awards sanctions in a reduced amount of $1,750.00 for 5.0 hours of work plus $90.65 in costs, for a total of $1840.65.
Conclusion
Plaintiffs’ Motion to Compel Further responses to Request for Production of Documents 1, 2, 4, 5, 6 7, 17, 25, 26 and 33 is GRANTED.
Plaintiffs’ request for monetary sanctions is GRANTED IN PART in the amount of $1840.65. against Norris.
Moving party to
give notice.