J & J Lundstrom Brothers etc. v. Willie Wong, et al.		CASE NO. 113CV255487
DATE: 8 August 2014	TIME: 9:00	LINE NUMBER: 14

This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 7 August 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 8 August 2014, the motion of defendants/ cross-complainants Willie Wong and Mauricio Iraheta dba Car Care Autobody & Refinishing (“Defendants”) to compel further responses to requests for production of documents and for monetary sanctions was argued and submitted. Plaintiff / cross-defendant J & J Lundstrom Brothers dba East Bay Color Service (“Plaintiff”) filed a formal opposition to the motion.

All parties are reminded that all papers must comply with California Rules of Court, rule 3.1110(f).[1]

Statement of Facts

This action involves a contractual dispute. Due to unavailability of the court file, a more detailed review of the factual allegations and procedural history is not set forth.

Discovery Dispute

On 7 March 2014, Defendants served Plaintiff with a first and second set of requests for production of documents (“RPD”). At issue in this motion is Defendants’ RPD, Set Two, Nos. 12 and 13 which ask Plaintiff to produce:

1. All price lists for all PPG products sold by East Bay Color Service for the period beginning October 2011 and ending July 15, 2013.
2. All price lists for all 3M products sold by East Bay Color Service for the period beginning October 2011 and ending July 15, 2013.

On 10 April 2014, Plaintiff requested and Defendants granted a two-week extension of time to respond to the RPDs.

On 28 April 2014, Defendants received Plaintiff’s responses to RPD, Set One and Two. In response to Defendants’ RPD, Set Two, Nos. 12 and 13, Plaintiff provided the following response:

1. Plaintiff has in its possession and control the following PPG price list for the following years: 1. 2011; 2. 2012; 3. 2013. Plaintiff has a set of CD-ROMs with price lists from PPG and 3M for the period requested [October 2011 and ending July 15, 2013]. Plaintiff will place these electronic files onto a separate CD or other medium, and will produce them in that form. Plaintiff does not possess the price list in any other form.
2. Plaintiff has in its possession and control the following 3M price list for the following years: 1. 2011; 2. 2012; 3. 2013. Plaintiff has a set of CD-ROMs with price lists from PPG and 3M for the period requested [October 2011 and ending July 15, 2013]. Plaintiff will place these electronic files onto a separate CD or other medium, and will produce them in that form. Plaintiff does not possess the price list in any other form.

On 5 May 2014, Defendants received a CD-ROM disc purportedly containing the electronic version of the documents responsive to Defendants’ RPD, Set Two, Nos. 12 and 13.

On 13 May 2014, unable to comprehend the data produced on the CD-ROM, Defendants’ counsel sent a meet and confer letter to Plaintiff’s counsel, raising various perceived deficiencies with Plaintiff’s responses.

On 19 May 2014, Plaintiff’s counsel sent a meet and confer letter to Defendants’ counsel indicating Defendants would provide a supplemental response the following week.

On 29 May 2014, Defendants’ counsel sent a meet and confer letter to Plaintiff’s counsel indicating Defendants had not received a supplemental response. On that same date, Plaintiff’s counsel responded stating supplemental responses were being prepared and would be delivered to Defendants before 3 June 2014.

On 4 June 2014, Plaintiff provided an unverified supplemental response stating, “the price lists are in a common industry format and thus have been fully produced.”

On 5 June 2014, unsatisfied with the supplemental response, Defendants’ counsel sent a further meet and confer letter asking Plaintiff to provide the responsive documents in a different format or a guide/ instructions.

On 12 June 2014, having received no further response from Plaintiff, Defendants filed the motion presently before the Court, seeking further responses to RPD, Set Two, Nos. 12 – 13, and requesting monetary sanctions.

On 25 July 2014, Plaintiff filed an opposition to the motion and, on 1 August 2014, Defendants filed a reply brief.

Discussion

I.             Motion to Compel Further Responses to RPD

               A.           Legal Standard

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. [“CCP”], § 2031.310, subd. (a)(1) – (3).)

The motion for order compelling further responses “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.” (CCP, § 2031.310, subd. (b)(1); Kirkland v. Sup. Ct. (2002) 95 Cal.App.4th 92, 98.) 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.)

B.           Reasonably Usable Form

Defendants seek further responses to RPD, Set Two, Nos. 12 – 13. In general, these two requests ask Plaintiff to produce price lists for PPG and 3M products for a particular time frame. Defendants explain that one of the contractual disputes at issue in this case is whether Plaintiff provided Defendants with a 20 percent discount on PPG/ 3M products as required by the governing contract. The price lists would be relevant to establish whether Plaintiff complied with this contractual provision. Based on this explanation, Defendants have made a sufficient showing of good cause.

According to Defendants, the information contained on the CD-ROM “appear to be an unorganized and unlabeled collection of numbers and abbreviations that, without more, are not comprehendible [sic].”

Code of Civil Procedure section 2031.280, subdivision (a) states, “Any documents produced in response to a demand for inspection, copying, testing, or sampling shall either be produced as they are kept in the usual course of business, or be organized and labeled to correspond with the categories in the demand.”

Code of Civil Procedure section 2031.280, subdivision (d) states, “Unless the parties otherwise agree or the court otherwise orders, the following shall apply: (1) If a demand for production does not specify a form or forms for producing a type of electronically stored information, the responding party shall produce the information in the form or forms in which it is ordinarily maintained or in a form that is reasonably usable. (2) A party need not produce the same electronically stored information in more than one form.”

Code of Civil Procedure section 2031.280, subdivision (e) states, “If necessary, the responding party at the reasonable expense of the demanding party shall, through detection devices, translate any data compilations included in the demand into reasonably usable form.”

In opposition, Plaintiff contends it has produced the price lists “in the form in which it is ordinarily maintained” as required by Code of Civil Procedure section 2031.280, subdivision (d). Plaintiff submits the declaration of one of its owners, Jim Lundstrom, who states that Plaintiff uses an invoicing software program called “Perfection,” an auto body industry invoice generation system, which uses electronic forms of the price lists from PPG and 3M, which include specific price points, and specific product description, product numbers, and specific price of products. (See ¶9, Declaration of Jim Lundstrom in Support of Opposition, etc.) Plaintiff only has an electronic version of the price lists from its Perfection software program and does not maintain a printed version of the price list. (See ¶11, Declaration of Jim Lundstrom in Support of Opposition, etc.)

Defendants attach, as exhibit A to their motion, samples of the data contained on the CD-ROM. An example of the data is as follows:

In this motion, Defendants contend a usable price list “would have clearly labeled or designated columns giving, in the very least, a product’s name and its full retail price.” From the above example, this court can discern the first two lines to identify a product (gallon mixing lid) and price ($17.41). Similarly, the next line identifies a product (5 gallon unlined pail) and price ($3.95).

Unquestionably, more information is necessary to fully and correctly interpret all of the information, but the court finds Plaintiff has provided responses to Defendants’ RPD, Set Two, Nos. 12 – 13 which are in compliance with the Code of Civil Procedure. The information is in a reasonably usable form as Defendants can elicit the desired interpretation of the information by propounding special interrogatories or questioning Plaintiff about the information at a deposition.

Accordingly, Defendants’ motion to compel further responses to Defendants’ RPD, Set Two, Nos. 12 – 13 is DENIED.

II.            Request for Sanctions

Defendants seek monetary sanctions against Plaintiff and/or its attorneys of record pursuant to Code of Civil Procedure section 2031.310, subdivision (h), among other provisions. That section provides that “the court shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further responses 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.”

Since Defendants did not prevail on this motion, their request for attorney’s fees is DENIED.

Plaintiff makes a counter request for attorney’s fees. However, the court finds Defendants acted with substantial justification in making the instant motion. The court understands Defendants’ desire to obtain a further interpretation of the information, but the more appropriate vehicle is to conduct further discovery.

Plaintiff’s request for monetary sanctions is DENIED.

Conclusion and Order

Defendants’ motion to compel further responses to Defendants’ RPD, Set Two, Nos. 12 – 13 is DENIED.

All requests for monetary sanctions are DENIED.

 

 

________________­­­____________ DATED:

_________________________­­­________________________ HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara