Case Number: 17STLC01405 Hearing Date: June 07, 2018 Dept: 94

Plaintiff Meena Shahani’s Motion for Order Compelling Further Responses to Demands for Inspection and Production and Request for Monetary Sanctions is GRANTED. Akhoon is ordered to provide further responses to Plaintiff’s Demands for Inspection and Production Nos. 1-9. The Court awards Plaintiff $1,285 in monetary sanctions against Akhoon. Sanctions are to be paid within thirty (30) days from the date of serving notice of this Order by Plaintiff.

On February 3, 2017, Plaintiff Meena Shahani (“Plaintiff”) filed this breach-of-contract action against Defendants Saleh M. Akhoon (“Akhoon”) and Fashion of Planet, Inc. (collectively, “Defendants”).

Pursuant to this Court’s February 28, 2018 Minute Order granting Plaintiff’s motions to compel discovery responses without objections, Akhoon served his responses to Plaintiff’s Demands for Inspection and Production on April 6, 2018. (Motion, Butler Decl. ¶ 4.)

On May 1, 2018, Plaintiff filed a Motion for Order Compelling Further Responses to Demands for Inspection and Production and Request for Monetary Sanctions (the “Motion”), seeking an order to compel Akhoon to further respond to her Demands for Inspection and Production Nos. 1-9. On March 18, 2018, Akhoon filed an opposition. On May 24, 2018, Plaintiff filed a reply.

45-Day Requirement

Notice of a motion to compel further responses to written discovery must be “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” or the moving party “waives any right to compel a further response to the demand.” (Id. § 2030.300(c).)

Here, Akhoon’s responses to Plaintiff’s Demands for Inspection and Production were served on April 6, 2018; the Motion was filed on May 1, 2018—less than 45 days apart. Therefore, the Motion is timely under CCP § 2030.300(c).

Meet and Confer

Before bringing a motion to compel further responses to any discovery request, the moving party is required to make efforts to meet and confer in good faith and must submit a declaration attesting to those efforts. (Id. § 2031.310(b)(2).)

Plaintiff submits an electronic mail, dated April 11, 2018, that he sent to Akhoon to show that she attempted to meet and confer with Akhoon about his responses to her Demands for Inspection and Production Nos. 1-9. (See Motion, Exh. 2.)

In opposition, Akhoon argues that Plaintiff failed to meet and confer in good faith because the meet and confer was not made by a telephone call, a letter, or in person. (Oppo. pp. 3-5.) The Court notes that CCP § 2031.310(b)(2) states: “The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” CCP § 2016.040 states: “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” Neither CCP § 2031.310(b)(2) nor § 2016.040 requires a meet and confer be made by a telephone call, a letter, or in person. Akhoon also cites to CCP § 2023.010 for the proposition that a meet and confer made my electronic mail is subject to monetary sanctions because such method of meet and confer is somehow per se bad faith; Akhoon also requests that the Court impose sanctions on Plaintiff for violation of Section 2023.010. (Oppo. pp. 3-5.) As far as the Court is aware, no courts have ever made such an outlandish interpretation of CCP § 2023.010. Akhoon failed to respond to Plaintiff’s April 11, 2018 electronic mail and now claims that Plaintiff did not make a good faith effort to meet and confer because the meet-and-confer effort was only made by electronic mail. This argument is unavailing. Further, the Court also exercises its discretion not to impose sanctions on Plaintiff as requested by Akhoon.

The Court notes that the meet-and-confer electronic mail discusses Akhoon’s responses to Demands for Inspection and Production Nos. 1-9. Accordingly, the Court considers Plaintiff’s request to further compel Akhoon’s responses to Demands for Inspection and Production Nos. 1-9.

Legal Standard

“A party may demand that any other party produce . . . a document that is in the possession, custody, or control of the party on whom the demand is made.” (CCP § 2031.010(b).) The demanding party may move for an order compelling further response to the demand if the demanding party deems that (1) a statement of compliance with the demand is incomplete, (2) a representation of inability to comply is inadequate, incomplete, or evasive, or (3) an objection in the response is without merit or too general. (Id., § 2031.310(a).) If the motion is granted, the Court shall impose monetary sanctions, “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.” (Id., § 2031.310(h).)

A motion to compel a further response to an inspection demand must set forth specific facts showing “good cause” justifying the discovery sought by the inspection demand. (Id., §2031.310(b)(1); Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.) Unless there is a legitimate privilege issue or claim of attorney work product, that burden is met simply by a fact-specific showing of relevance. (TBG Ins. Services Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 444.) Once the moving party demonstrates good cause for the discovery, the burden is on the responding party to justify any objection or failure to fully respond to the inspection demand. (Cal. Judges Benchbook: Civ Proceedings—Discovery (2nd ed. 2012), § 19.27; see Coy v. Superior Court (1962) 58 Cal.2d 210, 220.)

Discussion

Plaintiff argues that Akhoon’s responses to Demands for Inspection and Production Nos. 1-9 failed “to provide a proper representation of inability to comply, and provided incomplete, evasive responses.” (Motion p. 4.)

In opposition, Akhoon first argues that the Demands for Inspection and Production are “not reasonably calculated to lead to the discovery of admissible evidence.” (Oppo. p. 6.) In essence, Akhoon is objecting to the discovery requests for being overbroad. Pursuant to this Court’s February 28, 2018, all objections, including one base on the discovery requests being overbroad, are waived.

Akhoon secondly argues that his discovery responses are not “evasive” because “he simply has no documents to produce.” (Id.) Akhoon’s responses to Demands for Inspection and Production Nos. 1-9 are the same: “After a due diligent search of my records, the documents requested do not exist at this time. However, discovery is in its early stages and Respondent will provide any document responsive to the Request as soon as it becomes available.” (Separate Statement RFP, pp. 4-9.) As Plaintiff correctly points out, CCP § 2031.230 requires: “A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.”

The Court finds that Akhoon’s responses to Demands for Inspection and Production Nos. 1-9 fail to satisfy CCP § 2031.230. The Motion is, therefore, GRANTED under CCP § 2031.010. Akhoon is ordered to provide further responses to Plaintiff’s Demands for Inspection and Production Nos. 1-9.

Plaintiff requests $2,170 in monetary sanctions against Akhoon. (Notice of Motion pp. 1-2.) Plaintiff requests an hourly rate of $350 for one (1) hour to draft this Motion, one and a half (1.5) hours to prepare the separate statement, half (.5) an hour to prepare the reply, three (3) hours and appear for the hearing of this Motion, along with $60 in filing fee and $10 in parking costs. (Motion, Butler Decl. ¶ 7.) In opposition, Akhoon argues that monetary sanctions are unjust because Plaintiff did not meet and confer with him only by electronic mail. (Oppo. pp. 7-8.) As discussed above, Akhoon’s argument is unpersuasive as Akhoon did not respond Plaintiff’s meet-and-confer effort. Accordingly, the Court finds that imposing monetary sanctions on Akhoon to be appropriate and mandatory under CCP § 2031.310(d).

The Court finds that that one (1) hour to draft this Motion, one (1) hour to draft the Separate Statement, half (.5) an hour to prepare the reply, and one (1) hour to appear at the hearing for the Motion, at a reasonable rate of $350 per hour, along with $60 in filing fee, to be sufficient to compensate Plaintiff. The Court, therefore, awards Plaintiff $1,285 in monetary sanctions against Akhoon. Sanctions are to be paid within thirty (30) days from the date of serving notice of this Order by Plaintiff.

Moving party to give notice.