Case Number: 18STCV06073 Hearing Date: December 19, 2019 Dept: 47

Evelin Russell v. Five Star Home Health Inc., et al.

MOTION TO COMPEL COMPLIANCE WITH DEMAND FOR PRODUCTION OF DOCUMENTS AND TANGIBLE ITEMS, SET ONE; REQUEST FOR SANCTIONS

MOVING PARTY: Defendant Park Place Ford, LLC d/a/a Ford of Upland

RESPONDING PARTY(S): No opposition on eCourt as of December 16, 2019

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that she was harassed and discriminated against after she ended a romantic relationship with Defendant Anthony Nieves, her supervisor at Defendant Five Star Home Health, and that she was retaliated against for reporting the harassment and discrimination.

Plaintiff moves to compel compliance with demand for production of documents and tangible items, set one, and for sanctions.

TENTATIVE RULING:

If not mooted prior to the hearing on this motion, Plaintiff Evelin Russell’s motion to compel compliance with demand for production of documents and tangible items, set one, demand nos. 1-18, 20-27, 29, 34-45, and 45-51 is GRANTED. Defendant Five Star Home Health, Inc. is to produce the responsive documents within 30 days.

Plaintiff’s request for sanctions is DENIED.

DISCUSSION:

Motion To Compel Compliance With Demand for Production of Documents and Tangible Items, Set One

Plaintiff moves to compel compliance with demand for production of documents and tangible items, set one, demand nos. 1-18, 20-27, 29, 34-45, and 48-51, as to which Defendant had indicated that it would produce all responsive documents within its possession, custody, or control.[1]

A motion to compel compliance pursuant to CCP § 2031.320 does not have a 45-day time limit; nor does it contain a meet and confer requirement or a good cause requirement. However, this type of motion is only proper where the responding party represented in its response that it would comply with the request for production and failed to do so. (CCP § 2031.320(a).) A proper response to a request for production is “[a] statement that the party will comply with the particular demand for inspection, copying, testing, or sampling” by the date set forth in CCP § 2031.030(c)(2) (within a reasonable time, at least 30 days after service of the demand).

In its supplemental responses to demand nos. 1-18, 20-27, 29, 34-45, and 48-51, Defendant represented that, subject to objections, it would “produce all responsive documents within its possession, custody or control.” (E.g., Declaration of Brooke C. Bellah, Exh. B, at p. 3.) However, Defendant has not done so and has not moved for a protective order. Nor has Defendant demonstrated that the requested documents contain attorney-client or work product privileged information.

Accordingly, the motion to compel compliance re: request for production nos. 1-18, 20-27, 29, 34-45, and 48-51 is GRANTED. Defendant is to produce the responsive documents within 30 days.

Plaintiff’s request for sanctions is DENIED. Although the Court would have been inclined to award sanctions against Defendant’s attorney, Plaintiff did not “identify each person, party, and attorney against whom the sanction is sought,” as due process requires. (CCP § 2023.040.) Because Defendant’s attorney was not expressly identified, this Court lacks the power to award any monetary sanctions against her, despite the fact that sanctions would have been warranted. Plaintiff also requested sanctions against Defendant itself, but it does not appear from the correspondence between Plaintiff’s counsel and Defendant’s counsel that the failure to produce the responsive documents could be properly attributed to Defendant itself.

The Court also notes that Plaintiff did not specify in the caption of the motion that she was seeking sanctions, stated in her heading for the section of her motion about sanctions that she was seeking sanctions against “Plaintiff/Defendant and Their Counsel” (Motion, at p. 5, bold emphasis added), and requested sanctions in her conclusion only “against Defendant” (Motion, at p. 6.) In light of the due process concerns that are relevant to any request for monetary sanctions, Plaintiff would do well to clearly and unambiguously give notice of any future request for sanctions. This would include ensuring that the declaration of the messenger, if serving the documents that way, is completely filled out, signed, and dated.

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated: November 21, 2019 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.

[1] As to demand nos. 19, 28, 30-33, and 46-47, Defendant responded only with objections or indicated that responsive documents never existed. (Bellah Decl., Exh. B.) To the extent that Plaintiff is dissatisfied with those responses, a motion to compel further responses would be necessary. (See Judge Randolph M. Hammock, Common Mistakes and Pitfalls in Responses to Requests for Production of Documents, Advocate (July 2019), available at https://www.plaintiffmagazine.com/recent-issues/item/common-mistakes-and-pitfalls-in-responses-to-requests-for-production-of-documents.) Plaintiff’s arguments here relate only to the demands as to which Defendant indicated that documents would be produced.