Lawzilla Additional Information:
Per the Los Angeles court records defendant is represented by attorney Chris Kroes of McCarthy and Kroes.

Case Number: BC669803 Hearing Date: June 04, 2018 Dept: 73

6/4/18
Dept. 73
Rafael Ongkeko, Judge presiding

KELLY CASTLE v. WFG NATIONAL TITLE INSURANCE CO. et al. (BC669803)

Counsel for plaintiff/moving party: William Waldo; Devin Mikulka (Bononi, etc.)
Counsel for defendant/opposing party Mahoney: R. Chris Kroes (McCarthy, etc.)
Other counsel: Omitted.

PLAINTIFF’S MOTION TO COMPEL COMPLIANCE OF DEFENDANT MAHONEY WITH HIS RESPONSES TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE; REQUEST SANCTIONS ($16,835) (fled 4/30/18)

TENTATIVE RULING

Plaintiff’s motion to compel compliance is GRANTED. No later than June 15, 2018, Defendant is ordered to produce all emails and complete email chains sent to or from Defendant Mahoney concerning Plaintiff. Defendant must Bates-number all documents he produces. Further, Defendant must prepare and serve a meaningful privilege log for any documents withheld under a claim of privilege.

Plaintiff’s request for sanctions is GRANTED, but reduced to $2,500.

Defendant’s request for sanctions is DENIED.

Plaintiff’s and Defendant’s evidentiary objections are DENIED.

Discussion

On October 9, 2017, Plaintiff served Defendant Mahoney with Plaintiff’s Requests for Production of Documents, Set One. Plaintiff requested Defendant Mahoney produce:

• Emails and complete email chains between Mahoney and Plaintiff pertaining to Plaintiff after September 2013 (Nos. 1 and 2);

• Emails and other documents referring or relating to any conversation between Mahoney and Plaintiff (No. 4);

• Emails and other documents referring, relating, or pertaining to any conversation between Toney Dikerson and Mahoney about Plaintiff (No. 6); and

• Emails and other documents referring, relating, or pertaining to any conversation between Karl Emrick and Mahoney about Plaintiff (No. 8).

On January 3, 2018, Defendant Mahoney served verified responses, which provided the following response for each request: “Defendant will produce all such emails within his control, custody and/or possession except those protected by the attorney-client privilege and or work product.” (Waldo Decl. ¶ 10, Ex. B.)

On January 5, 2018, Defendant Mahoney served Plaintiff with a document production. A dispute exists as to what documents were included. Plaintiff claims no emails were enclosed, but Defendant claims emails were enclosed. Defendant claims he produced emails on January 5, 2018, in addition to the text messages. Plaintiff states otherwise. Both attach as exhibits each’s purported version of the entirety of the exhibit. Notably, Defendant’s exhibit does not include a proof of service for its own document production. In contrast, Plaintiff’s exhibit does include a proof of service for Defendants’ document production. Ultimately, because Defendant’s responses were statements of compliance, whether or not the emails were produced on January 5 carries little weight.

On April 30, 2018, Plaintiff filed this motion to compel compliance under Code of Civil Procedure section 2031.320. Plaintiff seeks the documents that Defendant agreed to produce in response Request Nos. 1, 2, 4, 6, and 8. Plaintiff requests a $16,835 sanction award against Defendant Mahoney and his counsel. Plaintiff requests Defendant be ordered to comply within 10 days.

On May 21, 2018, Defendant Mahoney filed an opposition claiming Plaintiff failed to comply with the procedural requirements for a motion to compel further responses (e.g., attempt to meet and confer, filing a separate statement, and file within 45-days). Defendant argues the emails requested were produced on January 5, 2018. Defendant accuses Plaintiff for not producing emails in response to Defendant’s document request. Defendant requests a $3,375 sanction award against Plaintiff and her counsel.

On May 25, 2018, Plaintiff filed a reply. Plaintiff maintains that her motion is timely and that she did not need to attempt to meet and confer or file a separate statement because Plaintiff moves to compel compliance, not for further responses. Plaintiff uses Defendant’s opposition to illustrate that he has failed to produce complete email chains. Plaintiff points out that her responses to Defendant’s discovery request are irrelevant to this motion.

Merits

Evidentiary Objections

Both parties filed evidentiary objections attacking each other’s declarations. The court declines to consider these objections as they are not necessary to the determination of this motion.

Whether Plaintiff’s Motion is Proper?

The threshold issue is whether Plaintiff’s motion to compel compliance is proper or if Plaintiff should have filed a motion to compel further responses. If it is the latter, Plaintiff’s motion is arguably untimely, procedurally defective (e.g., lack of a separate statement), and not establish the requisite good cause.

A party may move for an order compelling further responses if the responding party provides: (1) an incomplete statement of compliance; (2) a representation of an inability to comply that is inadequate, evasive or incomplete; or (3) unmerited or overly generalized objections. (See Code Civ. Proc., § 2031.310.) When a motion to compel further responses is filed, the court is entirely unconcerned with actual production of documents.

But when a responding party provides a verified statement of compliance, the other party may move for an order compelling compliance. (See Code Civ. Proc., §§ 2031.210, subd. (a)(1), 2031.320, subd. (a) [“If a party filing a response to a demand for inspection … thereafter fails to permit the inspection … in accordance with that party’s statement of compliance, the demanding party may move for an order compelling compliance.”].) When a motion to compel compliance is filed, the court is concerned with only what the responding party has already promised to produce as part of its verified response.

Per Defendant’s January 3, 2018 verified responses to all requests, Defendant promised to “produce all such emails within his control, custody and/or possession except those protected by the attorney-client privilege and or work product.” Plaintiff thus has the right under Code of Civil Procedure 2031.320, subdivision (a), to compel compliance with the statement. (See generally Standon Co. v. Superior Court (1990) 225 Cal.App.3d 898, 902-903; New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1427-1428.)

Merits of Motion to Compel Compliance

Per Code of Civil Procedure section 2031.320: “If a party filing a response to a demand for inspection, copying, testing, or sampling under Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280 thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that party’s statement of compliance, the demanding party may move for an order compelling compliance.” Unlike a motion to compel a further response under CCP § 2031.310, this section does not provide a time limit, not require a meet and confer or a separate statement.

The court finds that defendant has wrongfully withheld documents he promised to produce. Specifically, Request Nos. 1 and 2 seek “emails and complete email chains” between Plaintiff and Defendant after September 2013. But Defendant produced only parts of email chains. (See, e.g., Opp., Ex. 2 [March 6, 2014 email re: Del Norte].) And while one email appears responsive to Request No. 6 (which seeks emails/documents related to any conversation between Toney Dikerson and Mahoney about Plaintiff) suggests Defendant may be withholding other emails. (Opp., Ex. 2 [October 21, 2016 email from Mahoney to Dikerson re: Kelly Castle].) In the email produced, Defendant ends the correspondence with “More details to follow.” Defendant has not submitted a privilege log. Further, it does not appear that any emails or documents responsive to the remaining requests. Defendant thus has not followed through with his statement of compliance.

Plaintiff’s motion to compel compliance is GRANTED. No later than June 15, 2018, Defendant is ordered to produce all emails and complete email chains sent to or from Defendant Mahoney concerning Plaintiff. Defendant must Bates-number all documents he produces. Further, Defendant must prepare and serve a meaningful privilege log for any documents withheld under a claim of privilege.

Sanctions

Per Code of Civil Procedure sections 2023.030, subdivision (a), and 2031.320, subdivision (b), Plaintiff requests sanctions be imposed against Defendant and his counsel in the amount of $16,835. This amount is based on the 29 hours incurred by counsel (Mr. Waldo spending 19 hours at $715/hour and Ms. Mikulka spending 10 hours at $325/hour) for meeting and conferring, analyzing documents, reviewing deposition transcripts, and drafting this motion. (Waldo Decl. ¶¶ 54, 55; Mikulka Decl. ¶¶ 22-23.)

Code of Civil Procedure section 2031.320 provides: “(a) If a party filing a response to a demand for inspection, copying, testing, or sampling under Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280 thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that party’s statement of compliance, the demanding party may move for an order compelling compliance. (b) Except as provided in subdivision (d), the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with 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.”

Based on the above, Defendant did not act with substantial justification or that other circumstances make the imposition of sanctions unjust. Accordingly, Plaintiff’s request for sanctions against Defendant and his counsel is GRANTED, but in the reduced amount of $2,500 for approximately 8 hours, a reasonable time expended for this motion.

Defendant’s request for sanctions is DENIED.

Unless waived, notice of ruling by moving party.