Case Number: BC656614 Hearing Date: March 09, 2018 Dept: 50

Superior Court of California

County of Los Angeles

Department 50

california taxpayers action network,

Plaintiff,

vs.

gdl best contractors, inc., et al.

Defendants.

Case No.:

BC 656614 (r/w BS 161779)

Hearing Date:

March 9, 2018

Hearing Time:

8:30 a.m.

[TENTATIVE] ORDER RE:

DEFENDANTS’ MOTION TO COMPEL FURTHER WRITTEN RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE

Background

Plaintiff California Taxpayers Action Network (“CTAN”) filed a Complaint for Declaratory and Injunctive Relief to Recover Illegal Expenditures of Public Funds on April 5, 2017 against Defendants GDL Best Contractors, Inc. (“GDL”), Francisco M. Lopez, Jose C. Lopez, and Benjamin Lopez (collectively, “Defendants”). The operative First Amended Complaint (“FAC”) was filed on November 8, 2017. The gravamen of the FAC is the allegation by CTAN that GDL entered into an illegal or invalid contract with Real Party in Interest Montebello Unified School District (“MUSD”) for performance of a certain project within the district and thus should have the monies paid under that contract disgorged.

On May 31, 2017, Defendants served Request for Production of Documents, Set One on CTAN. (Sloan Decl., ¶ 3) CTAN served its responses on July 18, 2017. (Sloan Decl., ¶ 6.)

On July 27, 2017, Defendants’ counsel sent meet and confer correspondence to CTAN regarding certain deficiencies in CTAN’s responses. (Sloan Decl., ¶ 7, Ex. 4.) After no response was received, on August 25, 2017, Defendants’ counsel sent a follow-up letter. (Sloan Decl., ¶ 8.) On August 29, 2017, Defendants’ counsel received an email from a paralegal for CTAN’s counsel granting a thirty-day extension to file a motion to compel and indicating an intention to meet and confer. (Sloan Decl., ¶ 9, Ex. 5.) As of October 6, 2017, Defendants have not received any further communication or further verified responses from CTAN. (Sloan Decl., ¶ 10.)

Defendants now move to compel further responses from CTAN to the Request for Production of Documents and also request monetary sanctions. CTAN opposes.

Discussion

If a party demanding inspection, on receipt of a response to an inspection demand, 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, that party may move for an order compelling further response to the demand. (See Code Civ. Proc., § 2031.310(a)(1)-(3).)

A motion to compel further production must set forth specific facts showing good cause justifying the discovery sought by the inspection demand. ((Code Civ. Proc., § 2031.310(b)(1).) It is not necessary for the motion to show that the material sought will be admissible in evidence. “Good cause” may be found to justify discovery where specific facts show that the discovery is necessary for effective trial preparation or to prevent surprise at trial. ((See Associated Brewers Distributing Co. v. Superior Court of Los Angeles County (1967) 65 Cal.2d 583, 586-588); (see also Code Civ. Proc., §§ 2017.010, 2019.030(a)(1) [information is discoverable if it is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence and it is not unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive].); Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1611-1612 [noting a “party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action . . . if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence . . . .”].)

Defendants’ motion fails to set forth the requisite good cause justifying the discovery sought. It appears that Defendants realized their error belatedly and filed a reply that included its argument that good cause exists for the discovery sought. However, the Court does not consider new evidence or arguments first raised in reply papers. ((See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538 [under general rule of motion practice, new evidence not permitted with reply papers and is only allowed in exceptional case].) In any event, the reply also fails to make the requisite showing of good cause. “To establish good cause, a discovery proponent must identify a disputed fact that is of consequence in the action and explain how the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact.” ((Digital Music News LLC v. Superior Court (2014) 226 Cal.App.4th 216, 224 [disapproved on other grounds].) Defendants’ good cause argument is made generally as to all of the Requests for Production of Documents. Specific facts as to the disputed Requests for Production of Documents are missing. There is also no evidence of the specific facts justifying the discovery, either in the Declaration of Kelly C. Sloan or elsewhere.

Conclusion

For the foregoing reasons, Defendants’ motion to compel further responses to Request for Production of Documents, Set One is denied.

CTAN is ordered to provide notice of this ruling.

DATED: March 9, 2018 ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court