Case Number: BC493024    Hearing Date: April 23, 2014    Dept: 34

Moving Party: Plaintiffs Dobrila Pavlovich, Simon Motamed, Eric Dela Merced, Jocelyn Dela Merced, 4315 Lenox LLC, and 11370 Sunset Inc. (“plaintiffs”)

Resp. Party: Defendant Kiewit Infrastructure West Co. (“defendant” or “Kiewit”)

Plaintiffs’ motion to compel Kiewit to produce documents in response to request for production numbers 1-16, 20, 22, 24, 26-28, and 40 is GRANTED.

The Court imposes sanctions against Kiewit and its counsel of record, jointly and severally, in the total amount of $4,060.00

BACKGROUND:

Plaintiffs commenced this action on October 9, 2012, against defendants for: (1) inverse condemnation; (2) trespass; and (3) nuisance.

Plaintiffs owned separate interests condominiums in the subject property and resided therein. (Compl., ¶ 1.) Plaintiffs allege that defendants have been constructing a public project on the northbound I-405 on and off ramps at Sunset Boulevard, which has rendered deficient the support required for the subject property. (Id., ¶¶ 9-10.) The project and defendants’ related activities have allegedly damaged and interfered with plaintiffs’ ability to use and enjoy the subject property. (Id., ¶ 11.)

ANALYSIS:
Plaintiffs seek to compel Kiewit to produce documents pursuant to Kiewit’s statements of compliance in response to plaintiffs’ first set of requests for production, request numbers 1-16, 20, 22, 24, 26-28, and 40.

Kiewit’s opposition erroneously views the motion as a motion to compel further responses under Code of Civil Procedure section 2031.310. Plaintiffs bring this motion under Code of Civil Procedure section 2031.320 (failure to produce documents after stating compliance). Pursuant to section 2031.320, “[t]here is no fixed time limit on this motion. And, no ‘attempt to resolve informally’ need be shown. All that has to be shown is the responding party’s failure to comply as agreed.” (Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2013) ¶ 8:1508.1 [italics in original].) Plaintiffs provide a separate statement.

“If a party filing a response to a demand for inspection, copying, testing, or sampling under Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280 thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that party’s statement of compliance, the demanding party may move for an order compelling compliance.” (Code Civ. Proc., § 2031.320(a).) Kiewit served responses to plaintiffs’ first set of requests for production on 8/16/13. (See Schwar Decl., Exh. B.) Kiewit responded to request numbers 1-16, 20, 22, 24, 26-28, and 40 with boilerplate objections and a substantive response: “Responding party will produce any and all responsive documents in its possession, custody, or control.” (See id., pp. 6-15, 20.) This is a statement of compliance under Code of Civil Procedure section 2031.210(a)(1). The Court rejects defense counsel’s declaration that she never promised that Kiewit would agree to produce all documents sought; such a promise is expressed in the statements of compliance in Kiewit’s verified responses to the document requests. (See Sullinger Decl., ¶ 11.)

Plaintiffs’ counsel declares that defendant has not produced documents responsive to numbers 1-16, 20, 22, 24, 26-28, or 40. (See Schwar Decl., ¶ 6.) Defendant fails to dispute this fact in its opposition. Defense counsel declares that hundreds of pages of documents have been produced, but fails to state whether these documents were produced in response to the requests at issue in this motion (as opposed to the other document requests). (See Sullinger Decl., ¶¶ 5, 9.) There is no showing that the documents produced are all of the documents in Kiewit’s possession, custody, or control. (See, e.g., id., ¶ 12 [acknowledging that Kiewit is in possession of other documents that it will not release to defense counsel].)

Plaintiffs’ motion to compel Kiewit to produce documents in response to request for production numbers 1-16, 20, 22, 24, 26-28, and 40 is GRANTED.

Plaintiffs request sanctions against Kiewit and/or its attorneys of record in the amount of $4,060.00. This request is properly made in the notice and supported in the memorandum and declaration. “Except as provided in subdivision (d), the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with 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.” (Code Civ. Proc., § 2031.320(b).)

The amount of sanctions is based on 8 hours spent preparing the instant motion, an anticipated 3 hours to review an opposition and prepare a reply, and 2 hours to attend the hearing, all at an hourly rate of $450.00, plus the $60.00 filing fee. (See Schwar Decl., ¶¶ 7-8.) The court finds both the hourly rate and the time spent to be reasonable.

The Court imposes sanctions against Kiewit and its counsel of record, jointly and severally, in the total amount of $4,060.00

Kiewit is to comply with the request for production of documents, and pay sanctions, by June 15, 2014, or as otherwise agreed between counsel.