Case Number: BC666775 Hearing Date: May 14, 2018 Dept: 34

SUBJECT: Motions to compel compliance with agreement to produce documents.

Moving Party: Plaintiff Cleve Pell

Resp. Party: Defendants Montebello Unified School District; Benjamin Cardenas; Lani Cupchoy; Joanna Flores; and Edgar Cisneros

The motion is GRANTED. The Court sanctions defendant MUSD and its counsel in the amount of $2,500.

BACKGROUND:

Plaintiffs commenced this action on 6/29/17 against defendants for: (1) retaliation (Labor Code section 1102.5); (2) retaliation (Labor Code section 98.6); (3) violation of Bane Act; (4) violation of Government Code sections 8547.3 and 8547.8; (5) violation of Education Code sections 44113 and 44114; (6) violation of Government Code section 12653(a); and (7) injunctive relief. Plaintiff Contreras Smith was employed as Superintendent of Schools for MUSD and Pell was MUSD’s Chief Financial and Operations Officer. Plaintiffs allege that they discovered that Ruben J. Rojas, MUSD’s Chief Business Officer, had obtained his position through false statements on his application and was directing MUSD contracts to others in violation of public contracting laws. When plaintiffs brought this to the attention of MUSD’s Board of Education, the Board, including the individual defendants who were all Board members, sought to protect Rojas and voted to terminate plaintiffs for their whistleblowing.

ANALYSIS:

Plaintiff Cleve Pell moves the Court for an order compelling defendants to provide supplemental documents in response to his First Set of Requests for Production related to: “(1) all documents withheld on the basis of any privilege; (2) documents responsive to Request Nos. 5, 119, and 120; and (3) all responsive text messages.” (Notice of Motion, p. 2:7-11.) Plaintiff also seeks sanctions against defendant MUSD and its attorney in the amount of $2,500.00 “for the reasonable expenses and attorneys’ fees incurred by plaintiffs in connection with this proceeding.” (Id. at p. 2:12-16.)

Relevant Law

The California Code of Civil Procedure requires a response from the party to whom requests for production are propounded within 30 days after service of the requests. (Code Civ. Proc., § 2031.260(a).) “Failure to timely respond waives all objections, including privilege and work product. So, unless the party to whom the demand was directed obtains relief from waiver, he or she cannot raise objections to the documents demanded.” (Edmon & Karnow, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2017) ¶ 8:1483.) Code of Civil Procedure section 2031.300 provides, in relevant part:

“If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it, the following rules shall apply:

The party to whom the demand for inspection, copying, testing, or sampling is directed waives any objection to the demand, including one based on privilege or on the protection for work product under Chapter 4 . . . . The court, on motion, may relieve that party from this waiver on its determination that both of the following conditions are satisfied:

The party has subsequently served a response that is in substantial compliance with Sections 2031.210, 2031.220, 2031.230, 2031.250, and 2031.280.

The party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.”

(Code Civ. Proc. § 2031.300, subd. (a)(1)-(2).) Thus, in or to obtain relief from the waiver, “the party to whom the demand is directed must have: Belatedly served a response that is in ‘substantial compliance’ with [the Code] and filed a noticed motion supported by declarations showing that the delay resulted from ‘mistake, inadvertence or excusable neglect.” (See Id.; Edmon & Karnow, supra, at ¶ 8:1465.) In evaluating that motion, “the same standards apply as for relief from default under CCP § 473(b).” (Edmon & Karnow, supra, at ¶ 8:1465.1.)

Discussion

The discovery request at issue in this motion has already been the subject of a previous motion to compel. On 10/26/17, plaintiff propounded his first set of Request for Production to all defendants. (Motion, p. 2:8-9; King Decl., ¶ 2, Exh. A-B.) Later, plaintiff granted defendants a three-week extension so that their responses would be due on 12/21/17. (King Decl., ¶ 3.) Defendants did not serve their responses by 12/21/17, “[i]n fact, it was only after receiving Plaintiff’s Motion to Compel Responses that MUSD finally provided its responses.” (Id. at ¶ 4.)

Plaintiff’s previous motions to compel were heard on 02/13/18. In its ruling, this Court accepted defense counsel’s declaration that responses to the Requests for Production had been served on 01/18/18. (See Minute Order of 02/13/18, p. 6, ¶ 1.) As a result, the Court concluded:

“Because defendant has served responses that are in substantial compliance with Code of Civil Procedure section 2031.210(a) prior to the hearing, the motion is DENIED as MOOT.” (Id. at p. 6, ¶ 2.)

Here, plaintiff argues that defendants’ subsequent production of documents is inadequate because defendants have withheld documents on the basis of privilege and privacy despite the fact that their untimely responses waived these objections. (See Motion, p. 2:8-6.)

In their opposition, defendants argue that the Court’s 02/13/18 ruling makes it clear that they have not waived any privileges or objections. (See Opposition, p. 4:24-5:14.) They argue that:

“The Court’s ruling on these Motions was clear, Defendants responded to Plaintiffs’ discovery, preserving any objections, and rendering Plaintiff’s Motions moot. The District did not waive attorney client privilege, nor has it waived any other objection reasonably contained within its timely responses.” (Id. at p. 5:10-13.)

Defendants’ argument misconstrues the Court’s previous ruling and mistakenly characterizes their discovery responses as “timely.” The Court did not rule that defendants’ responses were timely or that any privileges or objections had been preserved. The Court simply ruled that the motions were moot. Plaintiff’s reply accurately summarizes the meaning of the Court’s ruling:

“the Court simply concluded that: (1) Defendants had failed to timely submit their responses, which was sufficient to support the motions to compel responses; (2) because defendants had subsequently submitted responses that were substantially code compliant prior to the hearing, that the motion was moot since Plaintiff Pell had now received the responses that were the impetus for this motion.” (Reply, p. 2:10-15.)

Plaintiff is correct that the Court expressed no opinion and reached no conclusion about the waiver of privileges and objections.

The statute is clear: by failing to serve discovery responses within 30 days, or by any other agreed-upon deadline, defendants waived all of their objections to the Requests for Production. (See Code Civ. Proc. § 2031.300, subd. (a).) Convincing the Court that they have served code-compliant responses is only the first step to reinstating their right to object to the discovery requests. In order to reinstate their objections, defendants must move for relief from the waiver and show the Court that their failure to serve timely responses was due to “mistake, inadvertence, or excusable neglect.” (Id. at subd. (a)(1)-(2).)

Defendants have not filed a motion for relief; their objections remain waived.

Plaintiff alternatively argues that:

“Defendants have waived any claims of attorney -client privilege by specifically placing the adequacy of the investigative reports, as well as the underlying communications with the attorneys conducting the investigations directly at issue in this litigation.” (Motion, p. 9:6-8.)

Plaintiff is certainly correct that the attorney-client privilege cannot be used both as a sword and a shield. Had defendants asserted the appropriate attorney-client objection and refused to produce investigative documents, plaintiff would be justified in bringing a Motion in Limine to preclude defendant’s use of these documents at trial. (See, e.g., Wellpoint Health Networks v. Superior Court (1997) 59 Cal.App.4th 110.) However, because defendants have not properly asserted this objection in a timely response, the Court need not reach these alternative basis for its decision.

Plaintiff seeks sanctions in the amount of $2,500.00 to cover the expenses and attorney fees incurred in bringing this motion. (See Motion, p. 14:20-15:15.) This sum represents 6 hours of attorney fees to prepare the motion as well as an anticipated 4 hours to review the opposition, draft a reply, and attend the hearing. (King Decl., ¶ 24.) Plaintiff’s counsel bills $550 per hour and believes that “the total cost to resolve the issues presented in the Motion will be approximately $5,500. (Id. at ¶¶ 23-24.) However, counsel believes that sanctions of $2,500 “would offset the costs of seeking relief from the Court on a motion that should not have been necessary, and will send an appropriate message to Defendants and his counsel that they cannot ignore their discovery obligations.” (Id. at ¶ 24.)

The motion is GRANTED. The Court sanctions defendant MUSD and its counsel of record in the amount of $2,500.

The Court concludes its tentative decision with two comments:

Defendants argues that “Plaintiff seeks all text messages sent and received by individual Defendants and have been unwilling to accept anything less.” (Opposition, p. 15: 15-16.) Certainly, a request for “all text messages” would violate the individual defendants’ rights of privacy. However, the Court does not read the demand for production in this manner. Rather, the Court understands plaintiff to be demanding documents – including text messages – that are responsive to various categories of requests. They are not demanding all text messages – regardless of the subject – of the individual defendants.

As indicated above, the Court finds that defendant has waived its objections by failing to timely respond. This Court is puzzled that defendant – upon realizing that it possibly waived its objections based on the attorney-client privilege – did not immediately move this court for relief from waiver. Such relief is often granted. This is especially true because investigative reports – prepared by counsel – would normally be protective by the attorney-client privilege and Courts are loath to require production of attorney-client privileged documents.

The Court is open to hearing argument on these issues from both parties.