Case Name: Kathy Hughes v. Target Corporation
Case No.: 2017-CV-317411

Motion to Compel Further Responses to Request for Production of Documents and Request for Sanctions by Plaintiff Kathy Hughes

Factual and Procedural Background

On October 14, 2015, defendant Target Corporation’s (“Target”) security profiled, approached, and confronted plaintiff Kathy Hughes (“Plaintiff”) while she was shopping in defendant Target’s store on El Camino Real in Santa Clara, causing Plaintiff to suffer personal injuries. (Third Amended Complaint [“TAC”] at ¶GN-1; see also TAC at ¶IT-1.) Defendant Target’s personnel intentionally profiled and confronted Plaintiff because of her race and gender. (Id. at ¶IT-1.) Defendant Target thereafter kicked Plaintiff out of the store and banned her from returning to shop at the store. (Ibid.) In addition, defendant Target improperly trained store security and store management as a means to deny Plaintiff the full and equal privileges/services at the store. (Ibid.)

On November 1, 2018, Plaintiff filed the operative Judicial Council Form TAC against defendant Target alleging causes of action for: (1) general negligence; (2) intentional infliction of emotional distress; and (3) violations of the Unruh Civil Rights Act.

On December 3, 2018, defendant Target filed its Answer alleging a general denial and various affirmative defenses.

Discovery Dispute

On January 8, 2019, Plaintiff served defendant Target with request for production of documents (set two) (“RPD”). (Watson Decl. at ¶ 4, Ex. 1.) Defendant Target served various objections and factual responses to the requests. (Id. at ¶ 5, Ex. 2.)

Plaintiff’s attorney thereafter attempted to meet and confer with defense counsel regarding the objections to the RPD. (Watson Decl. at ¶ 6, Ex. 3.) Those attempts include letters from Plaintiff’s counsel dated February 15, March 6, and March 15, 2019. (Ibid.) During this time, defendant Target granted multiple extensions of time for Plaintiff to file any motion to compel should it become necessary. (Ibid.) Following mediation, the parties agreed to extend the deadline to file any motion to compel to July 27, 2019. (Van Der Putten Decl. at ¶ 2.) Ultimately, the parties were unable to informally resolve this discovery dispute and no supplemental responses or documents have been served. Plaintiff therefore seeks intervention from the Court.

Currently before the Court is Plaintiff’s motion to compel further responses to RPD. (Code Civ. Proc., § 2030.310.) Plaintiff requests an award of sanctions in conjunction with the motion. Defendant Target filed written opposition and a request for judicial notice. Plaintiff filed reply papers. No trial date has been set.

Motion to Compel Further Responses to RPD

Plaintiff moves to compel a further response to RPD Nos. 1, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 18, 19, 20, 21, and 22.

Request for Judicial Notice

In opposition, defendant Target requests judicial notice of two prior discovery orders in this case. (See Request for Judicial Notice [“RJN”] at Exs. 1-2.) The Court may take judicial notice of its own orders as records of the superior court under Evidence Code section 452, subdivision (d). (See Stepan v. Garcia (1974) 43 Cal.App.3d 497, 500 [the court may take judicial notice of its own file].)

Therefore, the request for judicial notice is GRANTED.

Meet and Confer

As a preliminary matter, it is not clear if Plaintiff adequately met and conferred before filing her motion to compel.

A motion to compel further responses must be accompanied by a meet and confer declaration under Code of Civil Procedure section 2016.040. (Code Civ. Proc., § 2031.310, subd. (b)(2).) Section 2016.040 requires that a moving party make a “reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” A determination of whether an attempt at informal resolution was adequate depends upon the particular circumstances and involves the exercise of discretion. (Obregon v. Super. Ct. (1998) 67 Cal.App.4th 424, 431; see Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1016 [meet and confer rule is designed to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order]; see also Townsend v. Super. Ct. (1998) 61 Cal.App.4th 1431, 1439 [meet and confer contemplates that counsel attempt to talk the matter over, compare their views, consult, and deliberate].)

With respect to the meet and confer efforts, Plaintiff’s attorney submits three letters that were sent to defense counsel regarding the RPD. While counsel identifies the requests which are the subject of the motion in at least one of these letters, Plaintiff fails to explain why either (1) the responses are inadequate or (2) the objections are meritless. This is particularly troublesome given the number of requests and the variety of objections raised by defendant Target. The letters do not represent a good faith attempt at an informal resolution of each issue presented by the motion to compel.

Plaintiff’s attorney however does claim he attempted to meet and confer with defense counsel during the deposition of Chris Beagle but was unable to do so as counsel exited and did not return to the deposition. (Watson Decl. at ¶ 6; Reply at Ex. 1.) It is not clear from the papers whether the parties did in fact engage in other forms of meet and confer outside of these written letters and the deposition to address the RPD. But the papers do suggest the parties communicated about this discovery as Plaintiff received several extensions of time to file her motion to compel. While meet and confer efforts could have been better, the Court will not deny the motion on that basis but proceed to address the matter. As a reminder, both parties are required to engage in meaningful meet and confer efforts going forward to resolve discovery disputes before filing any motion to compel.

Legal Standard

A responding party to an inspection demand must respond separately to each item in the demand by stating one of the following: (1) an agreement to comply; (2) a representation of inability to comply, or (3) objections. (Code Civ. Proc., § 2031.210.) If a party demanding a response to an inspection demand deems: (1) a statement of compliance with the demand is incomplete; (2) a representation of inability to comply is inadequate, incomplete, or evasive; or (3) an objection in the response is without merit or too general, that party may move for an order compelling further response to the demand. (Code Civ. Proc., § 2031.310-320; Weil & Brown, California Practice Guide: Civil Procedure Before Trial (Rutter Group 2019) at § 8:1490 (“Weil & Brown”).)

Motion to Compel Further Responses to RPD is DENIED.

“Any motion involving the content of a discovery request or the responses to such request must be accompanied by a separate statement.” (Cal. Rules of Court, rule 3.1345(a).) “A separate statement is a separate document filed and served with the discovery motion that provides all the information necessary to understand each discovery request and all the responses to it that are at issue. The separate statement must be full and complete so that no person is required to review any other document to determine the full request and the full response. Material must not be incorporated into the separate statement by reference.” (Cal. Rules of Court, rule 3.1345 (c).)

The separate statement must include: (1) the text of the request or interrogatory; (2) the text of each response, answer or objection; and (3) a statement of the factual and legal reasons for compelling further responses or answers as to each matter in dispute. (Cal. Rules of Court, rule 3.1345 (c)(1) – (3).)

The rules of court here require Plaintiff to provide a statement of the factual and legal reasons for compelling a further response to inspection demands. For purposes of a motion to compel, this means explaining the objections are meritless or the discovery responses are evasive or inadequate supported by legal authority. (Cal. Rules of Court, rule 3.1345(c); see Weil & Brown, supra, at § 8:1151 [separate statement includes the reason why further responses should be ordered by the court (i.e., the factual or legal reason why the objection is invalid or the answer given is incomplete)].) Plaintiff’s separate statement does not carry this burden. Rather, Plaintiff submits a summary of facts regarding the third cause of action for violations of the Unruh Civil Rights Act for each RPD. The response does not provide any factual or legal reasons with supporting legal authority for compelling a further response for the RPD in dispute in the motion. The Court therefore concludes the motion is deficient as it does not set forth an adequate basis for relief in compliance with the rules of court.

Finally, the propounding party may move for an order compelling a further response to an inspection demand if the responding party’s substantive response or objection is inadequate. (Code Civ. Proc., § 2031.310, subd. (a).) But when moving to compel a further response to an inspection demand, the propounding party must first “set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).) “To establish good cause, a discovery proponent must identify a disputed fact that is of consequence in the action and explain how the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact.” (Digital Music News, LLC v. Super. Ct. (2014) 226 Cal.App.4th 216, 224 (Digital Music News), disapproved on another ground in Williams v. Super. Ct. (2017) 3 Cal.5th 531, 557, fn. 8.) In other words, the moving party must first show there is a nexus between relevant, discoverable facts and the discovery propounded. (See Kirkland v. Super. Ct. (2002) 95 Cal.App.4th 92, 97–98.) If the demanding party establishes good cause, the responding party must, then, justify his or her objections. (Id. at p. 98.)

The motion to compel is completely devoid of any good cause for production. As stated above, the separate statement includes mostly factual summaries related to the third cause of action for violations of the Unruh Civil Rights Act. While the separate statement includes random statements of relevance, Plaintiff fails to identify a disputed fact that is of consequence in the action and explain how the discovery sought will tend to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact. (Digital Music News, supra, 226 Cal.App.4th at p. 224.) Having failed to establish good cause, the Court need not consider whether defendant Target has justified its objections to production.

Plaintiff attempts to cure these deficiencies by filing, on October 15, 2019, an amended separate statement and a supplemental declaration from counsel. However, as stated above, the parties agreed that any motion to compel would be filed on or before July 27, 2019. (Van Der Putten Decl. at ¶ 2.) As a consequence, these papers are untimely filed and served. Plaintiff has not cited any legal authority which allows for the filing of such papers. In reply, Plaintiff argues the amended separate statement and supplemental declaration are timely filed as they relate back to the initial filing of the moving papers on July 23, 2019. (See Reply at p. 2:31-32.) Plaintiff’s position is not supported by citation to legal authority and thus this contention is waived. (See In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 [“absence of cogent legal argument or citation to authority allows this court to treat the contentions as waived”]; see also T.P. v. T.W. (2011) 191 Cal.App.4th 1428, 1440, fn. 12 [court may decline to consider argument that is not sufficiently developed and is unsupported by citation to authority].) Nor has Plaintiff received permission from the Court to file and serve these late papers. The Court therefore declines to consider the late papers in conjunction with the motion to compel.

Accordingly, the motion to compel a further response to RPD Nos. 1, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 18, 19, 20, 21, and 22 is DENIED.

Request for Sanctions

Plaintiff’s request for sanctions is DENIED as she did not prevail on the motion to compel further responses.

Disposition

The motion to compel a further response to RPD Nos. 1, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 18, 19, 20, 21, and 22 is DENIED.

The request for sanctions is DENIED.

The Court will prepare the Order.