Case Number: GC044707    Hearing Date: November 07, 2014    Dept: B

NOTICE: Department B will be dark on November 7, 2014. Please review the following tentative ruling. If you wish to have oral argument, please contact opposing counsel and agree upon one of the following dates for argument: November 21 or December 5. Then, please send an email to lmcfarlane@lacourt.org stating your case number, the agreed upon date for argument, and which party will give notice. The email must be received by 4:30 p.m. on November 7, 2014, or the Court’s tentative ruling will be the ruling and order of the Court. You may also send an email if you submit to the tentative ruling.

TENTATIVE RULING:

Motion for:
1. Order compelling Cross-Defendant to serve further responses to Cross-
Complainant’s requests for production, numbers 1, 9 to 10, 12, 14 to 16, 28 to 34, 36, 38, 39, and 41 to 44.
2. Order imposing monetary sanctions of $3,195

This case arises from Plaintiff’s claim that he was not paid for grading work he did on property for Maximus Developing, Inc. The Plaintiff sought to foreclose on a mechanic’s lien. Since the property had been sold to TL Property, Inc., the Plaintiff named TL Property, Inc. in order to foreclose on the mechanic’s lien. TL Property, Inc. brought a Cross-Complaint for indemnity against Maximus Developing, Inc.

Trial is set for December 15, 2014.

This hearing concerns the motion of TL Property, Inc. for an order compelling further responses to its requests for production from Maximus Developing, Inc.

First, TL Property, Inc. sought relief under the incorrect statute. The notice of motion and the memorandum cite to CCP section 2031.300. Section 2031.300 is ground to order a party to serve responses when it did not serve any responses. However, TL Property, Inc. is seeking an order compelling further responses because Maximus Developing, Inc. served inadequate responses on August 1, 2014. The correct authority for seeking an order compelling further responses is CCP section 2031.310.

Second, TL Property, Inc. did not comply with the requirements of CCP section 2031.310. CCP section 2031.310(b)(1) requires the motion to set forth specific facts showing good cause justifying the discovery sought by the demand for production. In law and motion practice, factual evidence is supplied to the court by way of declarations. Calcor Space Facility v. Superior Court (1997) 53 Cal. App. 4th 216, 224 (rejecting facts supporting the production of documents that were in a separate statement because the document was not verified and did not constitute evidence). In Calcor, the Court of Appeal issued a writ of mandate issue directing the trial court to vacate its order compelling the defendant to produce records because the plaintiff had failed to provide specific facts showing good cause for their production.

The same problem exists here. The declaration of the Defendant’s attorney, Anita Jain, lacks any specific facts showing good cause for the inspection of any of the documents sought in requests for production, numbers 1, 9 to 10, 12, 14 to 16, 28 to 34, 36, 38, 39, and 41 to 44. Ms. Jain does not discuss each request for production at issue or explain the need for the documents sought in each request for production.

Notwithstanding these defects, no opposition to this motion has been filed. It is noted however, that Plaintiff’s responses were months late, and all objections are deemed waived. Nevertheless, Plaintiff objected to numerous document requests. These are Requests 1,2,10,16,32,33,34,36,37,38,39,40,41,43, and 44. Since objections were waived as to these Requests, the Court Orders, pursuant to Defendants’ motion, full responses to Requests 1,10,16, 32-34,36,39, 41 and 44 within 10 days. However, the Court must deny the motion as to Requests 9,12,14 and 15 pursuant to the mandate of Calcor.

CCP §2031.320 provides for sanctions of attorney’s fees and costs against any party who unsuccessfully makes or opposes a motion to compel further response to a demand. In this case, Plaintiff did not oppose the motion. Accordingly, the provision does not give the Court authority to order sanctions.