Lawzilla Additional Information:
Per the Santa Clara court records defendant is represented by attorney Krsto Mijanovic of Haight Brown and Bonesteel. Note the following is republished from a tentative ruling posted by the judge. From the court’s online records we believe the motion was granted in a final order, but we have not yet confirmed if the final order was changed in any aspect, such as the awarding of sanctions or the amount.

Case Name: AMCO Insurance Company v. Broan-Nutone LLC, et al.

Case No.: 16CV297457

Motion by Plaintiff AMCO Insurance Company to Compel Further Responses to First Request for Production of Documents and the Production of the Documents Requested and Request for Sanctions Against Defendant Broan-Nutone LLC and its Attorneys Haight Brown & Bonesteel LLP in the Amount of $8,560.00

Factual and Procedural Background

In this subrogation action, plaintiff AMCO Insurance Company (“AMCO”) insured the premises located at 831-833 North 15th Street in San Jose (“Premises”) pursuant to a duly issued insurance policy. (Complaint, ¶7.) Maria Santos owned the duplex located on the Premises and, on or about January 7, 2013, leased the front portion of the duplex to defendants William V. Ojeda aka Will Ojeda and Ruth Ojeda (collectively, “Ojedas”). (Complaint, ¶8.) On or about May 4, 2014, an overhead ceiling fan in the duplex occupied by the Ojedas burst into flames causing substantial damage to the Premises. (Complaint, ¶9.) Defendant Broan-Nutone LLC (“Broan”) manufactured and assembled the ceiling fan. (Id.) Pursuant to the terms of the insurance policy, plaintiff AMCO paid $213,395.12 in connection with property damages. (Complaint, ¶52.) Santos assigned plaintiff AMCO her right to recover sums for which she had been responsible. (Complaint, ¶53.)

On July 11, 2016, plaintiff AMCO filed a complaint against defendants Broan and Ojedas asserting causes of action for:

(1) Subrogation – Strict Products Liability [versus Broan]
(2) Subrogation – Negligence [versus Broan]
(3) Subrogation – Negligence [versus Ojedas]
(4) Money Paid

On September 2, 2016, defendant Ojedas separately filed answers to plaintiff AMCO’s complaint. On September 13, 2016, defendant Broan filed its answer to plaintiff AMCO’s complaint.

Discovery Dispute

On March 24, 2017, plaintiff AMCO served, by mail, defendant Broan with a Request for Production of Documents (“RPD”), set one.

At defendant Broan’s request, plaintiff AMCO’s counsel granted defendant Broan several additional weeks to respond to RPD, set one.

On May 19, 2017, defendant Broan served an unverified response to RPD, set one, but did not produce a single document. In response to 17 of the RPD, defendant Broan stated it would produce documents subject to a protective order. Defendant Broan also claimed certain RPD sought privileged information but did not provide a privilege log.

On June 15, 2017, plaintiff AMCO’s counsel sent defendant Broan’s counsel a meet and confer letter detailing deficiencies in defendant Broan’s response. Plaintiff AMCO’s counsel declares that despite giving defendant Broan numerous extensions of time, defendant Broan has not provided a verification of its response, a privilege log, or a signed protective order. Between June 2, 2017 and October 4, 2017, plaintiff AMCO’s counsel met and conferred with defendant Broan’s counsel. In the beginning of October 2017, plaintiff AMCO’s counsel received 98 documents purportedly responsive to RPD, set one. Defendant Broan’s counsel instructed plaintiff AMCO’s counsel not to forward the documents to anyone until a protective order was in place.

On October 25, 2017, plaintiff AMCO filed the motion now before the court, a motion to compel defendant Broan’s further response to RPD, set one, numbers 2 – 27, 39 – 41, 43 – 46, 51 – 52, 54 – 56, and 58 – 61, compel defendant Broan’s production of responsive documents, and request for sanctions.

On January 11, 2018, defendant Broan provided verifications to its initial responses to RPD, set one, and a verified supplemental response to RPD, set one. Pursuant to a stipulation and order dated January 24, 2018, the parties continued hearing of this motion from January 25, 2018 until February 22, 2018.

On or about February 13, 2018, defendant Broan’s counsel emailed to plaintiff AMCO’s counsel further supplemental responses.

I. Meet and confer.

“‘The Discovery Act requires that, prior to the initiation of a motion to compel, the moving party declare that he or she has made a serious attempt to obtain ‘an informal resolution of each issue.’ [Citations.] This rule is designed “to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order….” [Citation.] This, in turn, will lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes. [Citations.]’ [Citation.]” (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1293.)

In opposition, defendant Broan argues plaintiff AMCO’s motion to compel should be denied because plaintiff AMCO did not adequately meet and confer in advance of the filing of this motion. Defendant Broan’s counsel declares plaintiff AMCO’s counsel did not engage in further meet and confer after October 3, 2017 and filed the instant motion prematurely despite being given until October 31, 2017 to file a motion to compel.

Defendant Broan’s argument ignores plaintiff AMCO’s meet and confer efforts prior to October 3, 2017. While the court would prefer the parties have engaged in further meet and confer efforts, in reviewing the totality of the circumstances, the court finds plaintiff AMCO adequately met and conferred.

II. Plaintiff AMCO’s motion to compel a further response to RPD, set one, numbers 2 – 27, 39 – 41, 43 – 46, 51 – 52, 54 – 56, and 58 – 61 is DENIED as MOOT.

Upon receipt of a response to a demand for inspection, including requests for the production of documents, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply:

1. A statement of compliance with the demand is incomplete.
2. A representation of inability to comply is inadequate, incomplete, or evasive.
3. An objection in the response is without merit or too general.

(Code Civ. Proc., §2031.310, subd. (a)(1) – (3); emphasis added.)

The motion for order compelling further responses “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.” (Code Civ. Proc., §2031.310, subd. (b)(1); see also Code Civ. Proc., §2025.450, subd. (b)(1); Kirkland v. Sup. Ct. (2002) 95 Cal.App.4th 92, 98 (Kirkland).) To establish “good cause,” the burden is on the moving party to show both relevance to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case) and specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). (Glenfed Develop. Corp. v. Sup. Ct. (1997) 53 Cal.4th 1113, 1117.) Where the moving party establishes “good cause,” the burden shifts to the responding party to justify its objections. (Kirkland, supra, 95 Cal.App.4th at p. 98.)

When discovery responses are served after a motion to compel is filed, the court has substantial discretion in deciding how to rule in light of the particular circumstances presented. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408-409 (Sinaiko).) Through this discretion, the court might deny the motion to compel as moot and just impose sanctions, or examine the responses to determine if they are code-compliant. (Sinaiko, supra, 148 Cal.App.4th at p. 409.)

Here, defendant Broan served a verified supplemental response on or about January 11, 2018 and emailed a further supplemental response on or about February 13, 2018, after plaintiff AMCO filed the instant motion to compel. Consequently, the court deems the motion to compel further responses to be MOOT and is, for that reason, DENIED.

On the issue of sanctions, Code of Civil Procedure section 2031.310, subdivision (h) mandates an award of monetary sanctions “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 may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.” (Cal. Rules of Court, rule 3.1348, subd. (a); emphasis added.)

Although defendant Broan provided supplemental responses which rendered plaintiff AMCO’s motion moot, the court has discretion to award sanctions. Plaintiff’s counsel declares she and a contract attorney spent in excess of 20 hours in connection with meet and confer efforts/ preparing this motion to compel at the billing rate of $425.00 per hour and incurred a $60 filing fee. Plaintiff AMCO is entitled to an award of monetary sanctions against defendant Broan. However, the court finds the requested amount to be unreasonable. Plaintiff AMCO’s request for monetary sanctions is GRANTED in the amount of $6,435. Defendant Broan shall pay $6,435 to plaintiff AMCO within 20 days of the date of the filing of this order.