Joanne Snyder Davidson vs Robert A Hopps
Case No: 17CV02310
Hearing Date: Fri May 25, 2018 9:30

Nature of Proceedings: Motion Compel Further Document Demand Responses and Sanctions

TENTATIVE RULING: The motion is granted in part, as outlined below; sanctions of $750 ordered payable by defendant Hopps to plaintiff.

This is a legal malpractice action, based upon the representation of plaintiff Joanne Snyder Davidson by defendant Robert Hopps, in prior litigation. That litigation was dismissed when the trial court granted terminating sanctions against Davidson, based upon her failure to respond to discovery, after several successful motions to compel. Davidson contends that defendant Hopps never advised her of the filing of the motions to compel or motion for terminating sanctions, nor did he advise her that the latter motion had been granted and the action dismissed. That dismissal was later reversed on appeal, but plaintiff in this action seeks from defendant the expenses necessarily incurred in obtaining the reversal. Defendant Hopps has cross-complained against Davidson in this action, seeking unpaid fees from his representation of her.

Plaintiff served requests for production of documents upon defendant on February 1, 2018. The demand sought the contract between the parties, invoices sent, e-mails and documents sent to or received from plaintiff, checks received from plaintiff, documents and emails sent to or received from Barry Snyder (defendant in the underlying action), all documents filed in or received from the superior court in that action, all discovery or pleadings sent to or received from Barry Snyder, all documents created from information received from plaintiff, all documents created regarding plaintiff, and all documents sent to anyone on plaintiff’s behalf.

When responses were not timely received, plaintiff’s counsel sent correspondence to defendant on March 13, 2018, demanding responses without objections by March 20, 2018, in order to avoid a motion to compel. Hopps responded by contending that he had not received the document demands until February 19, 2018, and that Davidson had presented a false proof of service. Responses were received via e-mail on March 25, 2018, most of which included objections that the documents were equally available to plaintiff, and that the requests were vague and unduly burdensome. Hopps also contended that many of the items had either already been copied from the court file by Davidson, or had been forwarded to her.

By letter dated March 27, 2018, plaintiff’s counsel sought further responses to each of the document demands, explaining the bases for requiring further responses. Hopps responded by e-mail, that he would need more time to respond. He then further responded by e-mail on April 12, declining to provide any further responses, and contending that his objections had not been waived because he had not timely received the demand.

Motion: Plaintiff has moved to compel further responses to the demand for production of documents. She asserts that all objections were waived by the failure to timely respond, but that even if they were not waived, the responses were not code compliant, and further responses are required. Only responses to Nos. 1, 4 & 10 indicated that any documents would be produced.

While No. 1 sought the contract between the two, Hopps produced only an unexecuted copy, did not state he had made any effort to locate the contract, or to indicate that it was no longer in his possession, custody or control. No. 4 sought the bills that were subject of the cross-complaint, and Hopps indicated only that he had e-mailed the most recent bill to plaintiff’s counsel, and objected to producing any others as equally available to plaintiff. Many other responses claimed the documents were equally available to Davidson (2-9, 11-18), but Davidson does not already have the documents. He further contended that many of the requests were vague and unduly burdensome (Nos. 2-9, 12-21). Plaintiff asserts that the demands sought the work product (discovery, correspondence, pleadings) that constitute the basis for Hopps’ cross-complaint for breach of contract by failing to pay for services rendered. She contends she is entitled to see if the work was performed that supports the cross-complaint.

Plaintiff seeks $2,000 in sanctions for the motion, consisting of 2.5 hours (@ $350/hour) to prepare motion papers, plus the $60 filing fee. Counsel expects to spend 1 hour reviewing opposition and preparing a reply, and 2-3 hours to attend the hearing.

Defendant has not opposed the motion.

ANALYSIS: The motion is granted in part, as outlined below.

As stated by the California Supreme Court in Williams v. Superior Court (2017) 3 Cal.5th 531, 541, in the absence of contrary court order, a civil litigant’s right to discovery is broad. Any 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. (Ibid.) Statutes governing discovery must be liberally construed in favor of disclosure unless the request is clearly improper by virtue of well-established causes for denial. This means that disclosure is a matter of right unless statutory or public policy considerations clearly prohibit it. (Ibid.)

In moving to compel further responses to a demand for inspection, the motion “shall set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).) In making the required showing, the burden is on the moving party to show both relevance to the subject matter, and specific facts justifying discovery, e.g., why the information is necessary for trial preparation or to prevent surprise at trial. (Glenfed Develop. Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117.) That there is no alternative source for the information sought is an important factor in establishing good cause for inspection, but is not essential in every case. (Associated Brewers Distrib. Co., Inc. v. Superior Court (1967 Cal.2d 583, 588.)

Code of Civil Procedure section 2017.020(a) permits a trial court to limit the scope of discovery if it determines that the burden, expense, or intrusiveness of the discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. (Williams, supra, 3 Cal.5th at 549.) However, the party opposing discovery has an obligation to supply the basis for the determination, and an objection based upon burden must be sustained by evidence showing the quantum of work required. (Ibid.)

Regardless of whether Hopps’ objections were waived, he not opposed the motion and has therefore failed to meet the burden of supporting any of them. He has not shown the quantum of work that would be required to respond to the demands, in order to support a burden objection. He has not provided any explanation whatsoever to support his contention that the demands were vague. His contention that the documents were equally available to plaintiff does not justify wholesale failure to comply, although it is relevant to the existence of good cause for production.

As a result, the Court will make the following orders:

The motion is denied as to Nos. 7, 12, and 13. Hopps has sufficiently responded to No. 7 by providing a verified response that he did not retain copies of the checks he received from plaintiff. Further, Nos. 12 and 13 seek production of documents filed with the Court in the underlying action. Plaintiff’s current counsel now represents her in that action as well as this one. As her attorney of record, he has access to all filed documents in that action through the Odyssey portal. Because plaintiff therefore has easy access to the filed documents, plaintiff has not established good cause for their production by defendant.

With respect to all other requests, defendant shall provide further verified responses, and shall produce all responsive documents either in the manner they are kept in the usual course of business, or sorted and labeled to correspond with the categories in the document demand, as required by Code of Civil Procedure section 2031.280(a). If defendant Hopps is unable to comply with the demand in any way, his verified response shall provide the information set forth in Code of Civil Procedure section 2031.230.

With respect to Nos. 8, 9, and 19, to the extent the responsive documents include documents that were filed with the court, the documents can be identified by title and date, and need not be physically produced; all other responsive documents shall be physically provided.

With respect to Nos. 16 and 18, which seeks all pleadings sent to or received from Barry Snyder in the underlying action, the further response need only identify and produce pleadings that were not actually filed with the court, if any exist. If no pleadings were exchanged which were not also filed with the Court, Hopps may respond that no responsive documents exist.

Defendant’s further verified responses shall be served no later than June 8, 2018, and shall include the documents being produced. Because the results are somewhat mixed, the Court will award sanctions of $750 to plaintiff, payable by defendant Hopps.