2011-00111027-CU-WT

Joshua Franks vs. Michael N. Douglas Investments

Nature of Proceeding: Motion to Compel Production of Documents

Filed By: Williams, Jr., Donald R.

The Court rules upon Plaintiff’s Motion to Compel Production of Documents, as follows.

Plaintiff originally served the instant motion on April 23, 2018, with hearing set for May 17, 2018. The notice of motion, motion and supporting documents were served on Defendant via overnight mail in accordance with Code of Civil Procedure section 1005 (b), which requires that motions to compel be served 16 court days prior to hearing, adding five days for service by mail and two days for service via overnight mail. With a May 17, 2018 hearing date, the last day for Plaintiff to serve the motion via overnight mail was April 23, 2018. Plaintiff then filed an amended notice of hearing, which kept the date of hearing the same but changed the time and court department; the amended notice was served via overnight mail on April 25, 2018.

Rather than file a substantive opposition to the merits of Plaintiff’s motion, Defendant filed a “special objection” to the amended notice. Defendant argued that the motion was not timely served due to the amended notice of motion. The Court concluded that service was timely because the amended notice did not change the hearing date from the date originally noticed.

Defendant also argued that the Court lacked jurisdiction to grant any relief regarding the motion because the hearing date is beyond the time limits of Code of Civil Procedure section 2024.020 (requiring fact discovery to be complete 30 days before trial and any discovery-related motions heard 15 days before trial). According to defense counsel, Mr. Kass, on October 9, 2017, the Parties entered into a stipulation to continue the previous trial date of November 6, 2017, to April 30, 2018. The stipulation contained a provision that all statutory deadlines, including discovery deadlines, wouldnot run from the new trial date. The discovery at issue here was served February 2, 2018. Despite no obligation to do so in light of the stipulation and in light of CCP section 2024.050 (continuance or postponement of trial date does not operate to reopen discovery proceedings), Defendant objected but nevertheless timely responded to the discovery on March 9, 2018, thereby waiving any true objection it may have had based on the prior stipulation. The Court concluded that by participating in and responding to the requested discovery, Defendant waived any

such argument and opened itself to the possibility of a related motion to compel. (See Meat Dept., Inc. v. Keeney(1991) 230 Cal. App. 3d 1482, 1492 [a discovery right may be waived].)

Having filed only a special objection and not a substantive opposition, Defendant requested that if the Court overruled the foregoing [procedural] objections, the hearing be continued and Defendant be permitted to substantively respond the merits of Plaintiff’s motion. The Court found that this was an appropriate course of action and continued the hearing on Plaintiff’s motion to today’s date.

The Court has now reviewed the moving papers, as well as Defendant’s substantive opposition, and Plaintiff’s reply thereto. In large measure, Defendant appears to object to the most recent set of document requests on the grounds that the requests are duplicative and/or cumulative of Plaintiff’s prior first and second sets of discovery requests in this case. To a certain extent, the Court agrees and rules as follows.

Request Nos. 78-89

Request Nos. 78-89 in Set Three pertain to documents supportive of Defendant’s affirmative defenses. Plaintiff already sought all documents in support of Defendant’s affirmative defenses in RPD Sets One and Two. Other than believing that Defendant somehow has not produced everything Plaintiff desires, Plaintiff has not articulated any reason for yet another set of requests seeking documents tending to support Defendant’s affirmative defenses. Accordingly, Plaintiff’s motion as to Request Nos. 78-89 in RPD Set Three is DENIED.

Request Nos. 90-92, 94, 96, 98, 100, and 102-110

Request Nos. 90-91 seek production of all text messages and written correspondence between Plaintiff and Michael Douglas. In prior discovery requests, Plaintiff sought production of all emails between Plaintiff and Douglas and any and all complaints by Plaintiff to Douglas. While the prior production of emails may be encompassed within the current request for all written correspondence, the prior requests were, by their stated terms, far more limited in scope. Plaintiff’s motion as to Nos. 90-92 is GRANTED to the extent the requests seek documents that have not previously been the subject of prior discovery requests.

Request Nos. 92 and 94 seek all text messages between Douglas and “Jacquee” and emails between Douglas and “Zenia,” and text messages between Douglas and “Zenia,” respectively, as alleged in Plaintiff’s First Amended Complaint. Defendant refers the Court to Plaintiff’s prior discovery requests, which sought identification of “any and all email communication which reference [sic] to Plaintiff” (Set One, No. 26), “all email communications pertaining to the allegations of Plaintiff’s complaint” (Set One, No. 28), and “any email communication which pertains to the allegations in Plaintiff’s complaint” (Set Two, No. 51.) Plaintiff’s request to produce text messages is different than production of all email communications. Accordingly, Plaintiff’s motion as to Request No. 92 is GRANTED. The Court concludes, however, that Request No. 94 is encompassed within the prior discovery requests and therefore is DENIED.

Request No. 96 seeks “all communications” between Plaintiff and “Jacquee.” Again, Defendant cites to prior discovery requests seeking all emails pertaining to Plaintiff. To the extent Request No. 96 pertains to emails, it is duplicative and therefore

DENIED. To the extent, however, the Request pertains to any other type of communication, such communications are not encompassed within the prior discovery requests and the motion is GRANTED.

Request No. 98 also seeks email correspondence between Plaintiff and “Zenia,” as referenced in Plaintiff’s First Amended Complaint and the Motion is GRANTED; however, to the extent that such documents have already been produced in response to prior discovery requests, they need not be produced again.

Request No. 100 seeks all emails between Jacquee and Zenia pertaining to Plaintiff.

This request is duplicative of prior discovery requests, and the motion is DENIED.

Request Nos. 102 and 103 seeks Plaintiff’s performance evaluation from 2010 and 2011. These requests are duplicative of prior requests and the motion therefore is DENIED in this regard.

Request Nos. 104, 105, and 106 seek documents pertaining to “monthly inspections” conducted by Defendant in 2009, 2010, and 2011. Again, the Court concludes that these requests are duplicative of prior requests. Accordingly, the motion as to these Requests is DENIED.

Request Nos. 107 and 108 seek documents pertaining to Plaintiff’s work performance in 2009 and 2010. Defendant has referenced prior discovery requests in which Plaintiff sought performance appraisals, evaluations, and reviews, Plaintiff’s personnel file, documents related to the termination of Plaintiff’s employment, and all communications pertaining to Plaintiff. The Court concludes that the prior discovery requests were sufficiently specific and exhaustive to include the documents now sought by Request Nos. 107 and 108. Accordingly, the motion as to these Requests is DENIED.

Request No. 109 seeks documents provided to Plaintiff during Plaintiff’s employment with Defendant. Defendant refers to prior discovery requests that sought production of payroll records, time card records, documents pertaining to the terms and conditions of Plaintiff’s employments, documents Plaintiff signed as part of his employment, documents pertaining to employment benefits, Plaintiff’s personnel file, email communications referencing Plaintiff or pertaining the allegations of the Complaint, and documents related to Plaintiff’s termination. The Court DENIES Plaintiff’s motion to the extent it seeks to recover any of the foregoing documents or documents which have already been produced. The motion is GRANTED to the limited extent Defendant may have any documents that were not addressed in the prior discovery requests.

Request No. 110 seeks all documents that Plaintiff provided to Defendant during Plaintiff’s employment. Defendant refers to the same prior Requests as were noted in Request No. 109, above, as well as prior requests seeking documents pertaining to all complaints made by Plaintiff, all email communications between Plaintiff and named Defendants, and Plaintiff’s requests for absences. Again, the Court DENIES Plaintiff’s motion to the extent it seeks to recover any from any of the foregoing categories documents sought in prior requests. Plaintiff’s motion is GRANTED to the limited extent Defendant may have any responsive documents that were not addressed in these prior discovery requests.

Defendant has not opposed the motion with regard to Request Nos. 95, 97, 99, and

101. The Court deems Defendant’s lack of opposition in regard to these Requests as a concession to the merits of the motion. That said, if Defendant has already identified and/or produced any and all documents that may responsive to these specific requests, Defendant may so state and the response shall be sufficient.

The Court declines to impose sanctions on any party. The Court recognizes that Code of Civil Procedure section 2031.310(h) provides for imposition of sanctions against “nay party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand[.]” That statutory authorization, however, grants the court discretion to deny sanctions where the court “finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” Here, the Court finds that Defendant’s opposition to motion to compel was substantially justified in light of the specific procedural facts of this case, as well as the substantial portion of Plaintiff’s requests that were duplicative of prior requests. The motion for sanctions therefore is DENIED.

Defendant’s further responses in accordance with the foregoing shall be served on or before June 25, 2018.