Filippini Wealth Management, Inc. v. Max Baril, et al.
Case No: 18CV04339
Hearing Date: Mon Sep 23, 2019 9:30

Nature of Proceedings: Motion Compel Defendant Meridian to Produce Responsive Documents

Filippini Wealth Management, Inc., v. Max Baril, et al., #18CV04339, Judge Sterne

Hearing Date: September 23, 2019

Matter:

Motion to Compel Defendant Meridian Group Real Estate Management, Inc. to Produce Responsive Documents

Attorneys:

For Plaintiff: Matthew M. Clarke (Kelley Clarke, PLLC)

For Defendant: Steve R. Belilove (Kaufman, Dolowich & Voluck – Los Angeles

Tentative Ruling: The court denies plaintiff Filippini Wealth Management, Inc.’s motion to compel production of documents and request for a monetary sanction.

Background: This action arises out of plaintiff Filippini Wealth Management, Inc.’s lease of commercial property from defendant and cross-complainant Max Baril. Defendant Meridian Group Real Estate Management, Inc., manages the property for Baril. A CMC is scheduled for December 16, 2019.

Motion: Filippini moves for an order compelling Meridian to produce documents responsive to nine categories of documents, for appointment of a referee to gather responsive documents from “Meridian’s system,” for an order that Meridian and its employees stop destroying evidence, and for a monetary sanction of $3,080. Meridian opposes the motion.

1. Waiver of Objections: Filippini contends that Meridian waived objections to requests for production by not serving a timely response. Filippini says that Meridian was served with a request for production of documents on March 10, 2019. But service is problematic. In a declaration dated March 10, 2019, Caitlyn Furbush attests that she personally served Meridian on March 11—an impossibility given that the declaration was executed before the service date. Also, Furbush says she personally served the corporate defendant but does not say where or through whom. (Counsel for Meridian did not appear in the case until April 4.) There is no other admissible evidence establishing the time, manner, or place of service of the request for production. Given the lack of sufficient evidence of service, the court will not consider objections waived pursuant to CCP § 2030.300(a).

2. Meet and Confer: There was extensive correspondence between counsel regarding production of documents. (Unfortunately, this correspondence was not easy to find as counsel for Filippini did not provide electronic bookmarks for exhibits as required by CRC 3.1110(f)(4).) Filippini’s counsel sent a letter regarding the responses on June 11. On June 17, Meridian’s counsel responded. Later than day, Filippini’s counsel responded, narrowing the scope of the documents requested. On July 26, Filippini’s counsel wrote regarding Tiffany Adams’s July 2 deposition at which she testified that she did not produce text messages and did not look for certain documents. On July 29, Meridian’s counsel responded that he was working with his client to get the requested documents. He also extended the time to file a motion to compel to August 30. There was no further correspondence before Filippini filed and served this motion on August 27.

Meridian argues that Filippini “jumped the gun” by filing the motion. Meridian filed the motion three days before the extended deadline. The court does not require parties to wait until the last possible day to move to compel. Nor was Filippini required to ask for another extension to file a motion given that nothing had happened in the 29 days since Meridian’s July 29 email promising to get requested documents. It had also been over two and a half months since the meeting and conferring had begun.

3. Referee and Order Against Destruction of Evidence: Filippini alleges destruction of evidence. Charles Uribe, a maintenance worker for Meridian, testified at his May 15 deposition that he gets email communications and work orders from Meridian on his phone. He deletes his emails because he does not like “keeping stuff” on his phone. He then deletes them from his deleted folder to clean his phone out. Nobody at Meridian told him to do this. Since the lawsuit was filed, he received a couple of emails regarding “the common area, lights and stuff.” He deleted these as well.

Based on the actions of this one employee, Filippini wants a referee to search Meridian’s system for documents. One employee’s management of his data on his personal phone does not suggest Meridian is destroying evidence. Filippini has not demonstrated that it has been unsuccessful seeking emails sent to Mr. Uribe from others at Meridian. The court finds no justification for appointment of a referee or an order against destruction of evidence. The court assumes Meridian’s counsel has informed his client that it is not to destroy evidence.

4. S ubsequent Production: On September 6, Meridian’s counsel provided documents to Filippini’s counsel. The court will not order further production until it is clear whether the most recent production has resolved the outstanding issues. If they have not, the parties must again meet and confer. Only if they cannot resolve outstanding issues should Filippini file another motion.

In its reply, Filippini says that the court should order Meridian to respond under oath to the requests and produce all responsive documents. But, in its motion, Filippini did not ask for an order compelling further responses, only an order compelling production of documents. A party cannot change the relief requested in a reply.

5. Monetary Sanction: CCP § 2031.310(h) provides that the court shall impose a monetary sanction against the party who unsuccessfully opposes a motion to compel further responses to requests for production, unless it finds that the party acted with substantial justification or that other circumstances make the imposition of the sanction unjust. The court may award sanctions “in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or the opposition was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.” CRC 3.1348(a).

The circumstances do not warrant a monetary sanction. Filippini overreached seeking the appointment of a referee and an injunctive order. Also, the lack of compliance with CRC 3.1110(f)(4) militates against a monetary sanction.

6. Order: The court denies plaintiff Filippini Wealth Management, Inc.’s motion to compel production of documents and request for a monetary sanction.