Case Name: Ma Laboratories, Inc., et al. v. eWiz Express Corporation, et al.

Case No.: 16CV293438

Defendants eWiz Express Corporation and Christine Rao’s Motion to Compel Plaintiff Great World Real Estate LLC and Abraham C. Ma’s Responses to Request for Production of Documents, Set One and for Sanctions

Discovery Dispute

On December 29, 2017, defendants eWiz Express Corporation (“eWiz”) and Christine Rao (“Rao”) served plaintiffs Great World Real Estate LLC (“Great World”) and Abraham Ma (“Ma”) each separately with a request for production of documents (“RPD”), set one.

Ma’s counsel requested and eWiz/Rao’s counsel granted an extension of time for Ma and Great World to provide responses. On February 7, 2018, Ma and Great World served their responses to defendants’ RPD, set one.

After receiving the responses, eWiz/Rao’s counsel emailed Great World/Ma’s counsel on February 12, 2018 inquiring as to when defendants would produce responsive documents. eWiz/Rao’s counsel and Great World/Ma’s counsel met and conferred telephonically on February 16, 2018. eWiz/Rao’s counsel inquired again as to when defendants would produce responsive documents and also inquired as to whether defendants were withholding any documents based on privilege. Great World/Ma’s counsel did not provide a response to either question and instead promised a response the following week. Having received no response, eWiz/Rao’s counsel emailed Great World/Ma’s counsel on February 27, 2018 and March 1, 2018 but did not receive any response.

On March 1, 2018, eWiz/Rao’s counsel wrote a letter to Great World/Ma’s counsel to meet and confer on the adequacy of Great World and Ma’s responses to the RPD and to further inquired as to when responsive documents would be produced. On March 7, 2018, eWiz/Rao’s counsel learned lead counsel for Great World/Ma changed firms and an associate of the new firm would continue to meet and confer with regard to outstanding discovery issues.

On March 28, 2018, Great World/ Ma’s new counsel responded to eWiz/Rao’s counsel’s meet and confer letter of March 1, 2018. In that letter response, Great World/ Ma’s counsel held a mistaken belief that responsive documents had already been provided.

On April 3, 2018, eWiz/Rao’s counsel wrote a further meet and confer letter to Great World/ Ma’s counsel requesting a telephone conference.

On April 18, 2018, Great World/ Ma’s counsel informed eWiz/ Rao’s counsel that supplemental responses to the RPD would be forthcoming.

On April 23, 2018, the parties held another telephone conference followed by an email confirmation that Great World and Ma would serve supplemental responses and produce responsive documents on or by May 4, 2018.

On May 4, 2018, defendants did not receive the supplemental responses. At the request of eWiz/Rao’s counsel, Great World/ Ma’s counsel agreed to extend the deadline for a motion to compel until May 16, 2018.

On May 15, 2018, on the eve of the extended deadline for a motion to compel, eWiz/Rao’s counsel emailed Great World/Ma’s counsel who responded stating supplemental responses have been drafted and offered to further extend the deadline for a motion to compel one additional week.

Great World and Ma did not serve supplemental responses or produce any responsive documents to RPD, set one.

On May 23, 2018, eWiz and Rao filed the motion now before the court, a motion to compel Great World and Ma’s response to RPD, set one, numbers 14, 27, and 39 ; a further response to RPD, set one, numbers 3, 6, 7, 8, 11, 30, and 38; production of documents responsive to RPD, set one, numbers 1, 2, 4, 5, 9, 10, 12, 13, 15 – 26, 28, 29, 31 – 37, and 40 – 42; and for monetary sanctions against Ma.

On May 23, 2018, Great World/Ma’s counsel received eWiz/Rao’s motion to compel. According to Great World/Ma’s counsel, this was the first indication that eWiz/Rao had not received Great World/Ma’s supplemental responses. Great World/Ma’s counsel immediately sent eWiz/Rao’s counsel, by e-mail, a copy of Great World and Ma’s supplemental responses which Great World/Ma’s counsel believed were already delivered on May 11, 2018. Great World/ Ma’s counsel later discovered that the failure to deliver the supplemental responses was the result of clerical error. In light of the instant motion, Great World/Ma’s counsel states Great World and Ma served a second supplemental response to the RPD on July 13, 2018.

I. Motion to Compel Further Responses.

Upon receipt of a response to a demand for inspection, including requests for the production of documents, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply:

1. A statement of compliance with the demand is incomplete.
2. A representation of inability to comply is inadequate, incomplete, or evasive.
3. An objection in the response is without merit or too general.

(Code Civ. Proc., §2031.310, subd. (a)(1) – (3).)

The motion for order compelling further responses “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.” (Code Civ. Proc., §2031.310, subd. (b)(1); see also Code Civ. Proc., §2025.450, subd. (b)(1); Kirkland v. Sup. Ct. (2002) 95 Cal.App.4th 92, 98 (Kirkland).) To establish “good cause,” the burden is on the moving party to show both relevance to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case) and specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). (Glenfed Develop. Corp. v. Sup. Ct. (1997) 53 Cal.4th 1113, 1117.) Where the moving party establishes “good cause,” the burden shifts to the responding party to justify its objections. (Kirkland, supra, 95 Cal.App.4th at p. 98.)

In reviewing eEwiz and Rao’s motion to compel, the court finds eWiz and Rao have adequately demonstrated good cause to justify the discovery sought by the RPD. Great World and Ma do not dispute the existence of good cause.

When discovery responses are served after a motion to compel is filed, the court has substantial discretion in deciding how to rule in light of the particular circumstances presented. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408-409 (Sinaiko).) Through this discretion, the court might deny the motion to compel as moot and just impose sanctions, or examine the responses to determine if they are code-compliant. (Sinaiko, supra, 148 Cal.App.4th at p. 409.)

Here, Great World and Ma provided supplemental and second supplemental responses to eWiz and Rao’s RPD, set one, after the filing of the instant motion to compel. Consequently, the court deems the motion to compel Great World and Ma’s further responses to RPD, set one, nos. 3, 6, 7, 8, 11, 14, 27, 30, 38, and 39 is MOOT and is, for that reason, DENIED.

II. Motion to Compel Compliance.

“If the responding party agrees to comply with a CCP §2031.310 demand but then fails to do so, compliance may be compelled on appropriate motion.” (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2018) ¶8:1503, p. 8H-45 citing Code Civ. Proc., §2031.320.) Code of Civil Procedure section 2031.320, subdivision (a) states, “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.”

There is no fixed time limit on this motion. (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2017) ¶ 8:1508.1, p. 8H-45.) Moreover, no “attempt to resolve informally” need be shown. (Ibid.) All that has to be shown is the responding party’s failure to comply as agreed. (Ibid., citing Code Civ. Proc., § 2031.320, subd. (a); Standon Co., Inc. v. Superior Court (1990) 225 Cal.App.3d 898, 903.)

Defendants eWiz and Rao have adequately demonstrated plaintiffs Great World and Ma’s failure to comply as agreed. In opposition, Great World and Ma argue that they have “begun producing documents responsive to all document requests in this action on a rolling basis, pursuant to an agreement with Defendants. … to date, [plaintiffs] have produced over 3,000 pages of documents in response to the requests at issue here and are continuing to produce documents on a weekly basis, pursuant to a further agreement with Defendants’ counsel.” However, there is no admissible evidence before this court to support this assertion.

Accordingly, eWiz and Rao’s motion to compel Great World and Ma’s compliance is GRANTED. Plaintiffs Great World and Ma shall produce documents responsive to eWiz and Rao’s RPD, set one, numbers 1, 2, 4, 5, 9, 10, 12, 13, 15 – 26, 28, 29, 31 – 37, and 40 – 42 within 20 calendar days of notice of entry of this order or by a later time agreed upon by the parties in writing.

III. Sanctions.

Code of Civil Procedure section 2031.310, subdivision (h) mandates an award of monetary sanctions “against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, unless [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.”

“Except as provided in subdivision (d), the court shall impose a monetary sanction … 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.” (Code Civ. Proc., §2031.320, subd. (b).)

In conjunction with their motion to compel, eWiz and Rao request the court impose monetary sanctions against plaintiff Ma. The notice of motion does not request the imposition of sanctions against Great World. In opposition, Ma argues sanctions are not appropriate under the circumstances as the failure to deliver the supplemental responses was the result of clerical error. While the court has no reason to question the veracity of this statement, the court finds the motion was necessitated by Great World and Ma’s counsel failure to recognize and rectify the clerical error and had an opportunity to do so when eWiz and Rao’s counsel emailed on May 15, 2018. Great World and Ma’s counsel argue further that production of documents has been delayed due to the large volume of documents at issue. As noted above, Great World and Ma provide no admissible evidence in support of this factual assertion. Great World and Ma also ask the court to consider eWiz and Rao’s failure to respond to discovery as a basis for denying sanctions in this case. eWiz and Rao’s discovery conduct is not properly before this court nor is it a factor in the court’s consideration.

The court finds sanctions are appropriate. In support, eWiz and Rao’s counsel declares she and another attorney spent 14 hours and 3.5 hours, respectively, in the preparation of this motion and in attempting to informally resolve this discovery dispute at the hourly rates of $285 and $410, respectively. eWiz and Rao’s counsel further declares she anticipates several more hours to review the opposition and prepare a reply. The court awards sanctions only for expenses actually incurred, not for anticipated expenses. (See Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551.)

According to the court’s calculation, eWiz and Rao request a total of $5,425 in monetary sanctions. Since the motion at issue concerns RPD to both Great World and Ma, it would be inappropriate for sanctions to be borne by Ma alone. However, eWiz and Rao’s notice of motion seeks sanctions against Ma only. Accordingly, eWiz and Rao’s request for sanctions is GRANTED, in part. Plaintiff Ma shall pay $2,712.50 to defendants eWiz and Rao within 20 calendar days of notice of entry of this order.