2018-00235555-CU-MC

Mary Castex vs. Eskaton Properties Incorporated

Nature of Proceeding: Motion to Compel Compliance with Plaintiff’s Notices to Appear and

Filed By: Garcia, Stephen M.

Plaintiff Mary Castex’s motion for order compelling Defendants Eskaton Properties

Inc., Todd Murch, Betsy Donovan and Bill Pace to comply with Plaintiff’s notice to appear and produce at trial pursuant to CCP § 1987 is denied without prejudice.

In this elder abuse case, Plaintiff seeks to compel Defendants to comply with a notice to appear and produce documents in connection with a trial which is set for November 5, 2019, some seven plus months from now. The notice seeks documents related to Defendants’ financial condition which Plaintiff argues are material to the punitive damages claim because Plaintiff will be required to present that evidence if Defendants are found liable for punitive damages. Defendants served objections to the notices. Plaintiff argues that she offered a proposed stipulation making clear that no documents will be produced unless and until there is a finding that Defendants are liable for punitive damages and yet Defendants failed to accept that reasonable solution and instead are persisting with objections.

The motion is denied without prejudice to its reassertion before the trial judge. Any issues with respect to Defendants’ compliance with a notice to appear at trial and produce documents in connection with a November 5, 2019 trial is not an issue for this Court at this time. This is a trial motion, not a law and motion matter. By denying this motion without prejudice to its reassertion to the trial judge, this Court is not in any way indicating that the documents need not ultimately be produced at trial but simply indicating that the trial judge is the one who should deal with the issue at the appropriate trial if the matter ultimately proceeds to trial and a claim for punitive damages still exists.

To the extent that Plaintiff would seek to classify this a discovery motion, than the motion would need to be heard by the discovery referee who was appointed by the Court on November 6, 2018 for all discovery disputes. Though in reply, Plaintiff argues that this is not a discovery motion.

Given the above, the Court need not address Defendants’ other argument that Plaintiffs failed to meet and confer.

Moreover, even if the Court could theoretically entertain this motion, Plaintiff failed to adequately meet and confer. Here, Plaintiffs sent Defendants a meet and confer letter on February 7, 2019 and gave Defendants until February 13, 2019 to respond or Plaintiff would proceed with a motion to compel. However, Plaintiff nevertheless served the instant motion on February 11, 2019, two days before the deadline. Moreover, Defendants did respond with a meet and confer letter on February 13, 2019 as requested by Plaintiff. While the motion was not filed until February 19, 2019, the service of the motion two days prior to the date Plaintiff requested a response by reflects a lack of a good faith intent to meet and confer. This was not a “reasonable and good faith attempt” to resolve the issues. (Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1439 [court has discretion to deny motion to compel based on failure to meet and confer].)

The motion is denied without prejudice to its reassertion to either the trial judge or the discovery referee.

This minute order is effective immediately. No formal order pursuant to CRC rule 3.1312 or other notice is required.