Case Name: Manuel Gonzalez Lopez, et al. v. Gilbane Building Company, et al.
Case No.: 2015-1-CV-284269

This is a wrongful death case brought by plaintiffs Manuel Gonzalez Lopez, Leonel Gonzalez Lopez and Angela Gonzalez Bailon (collectively “Plaintiffs”) against defendant Gilbane Building Company (“Gilbane”) and nominal defendants Isidro Nuno, Jr., and Luzia Nuno.

I. Background

This matter arises out of an accident that occurred on the San Jose City College campus. On August 13, 2013, Magda Gonzalez, Plaintiffs’ and nominal defendants’ mother, was struck and killed by a front end loader as it was backing up on the campus. (Def’s opposition, at pp. 1:27-2:3.)At that time, Gilbane supervised all construction on the campus. (Id. at p. 1:27-28.) Plaintiffs seek recovery for Gilbane’s negligence.

II. Discovery Dispute

On September 1, 2016, Plaintiffs served Request for Production of Documents (“RPD”) Set Four on Gilbane. (Dolinski Set Four Decl., ¶ 4 & Exh. C.) The next day, they served RPD Set Five on it. (Dolinski Set Five Decl., ¶ 2 & Exh. A.)
Gilbane served responses to both sets consisting of objections and verified substantive responses. (Dolinksi Set Four Decl, ¶ 5 & Exh. D; Dolinski Set Five Decl., ¶ 3 & Exh. B.) In the substantive responses to RPD Set Four, Gilbane stated it would do a reasonable search for responsive documents it may have with regard to a project identified in the demand and will produce responsive documents if any are found. (Dolinksi Set Four, Decl., Exh. D.) For each of its substantive responses to RPD Set Five, Gilbane responded in one of the following two ways: (1) Gilbane has not located responsive documents for the identified project; or (2) Gilbane will do a reasonable search for the identified project and produce responsive documents if any are found. (Dolinksi Set Five Decl., Exh. B.) In addition to serving responses, Gilbane produced responsive documents on November 2, 2016. On November 8, 2016, a paralegal for Gilbane’s counsel sent a CD to Plaintiffs including additional responsive documents. (Dolinksi Set Five Decl., ¶ 4 & Exh. C.) Gilbane then produced more documents on December 7.

On November 21, 2016, Plaintiffs sent a letter to Gilbane to meet and confer about the responses to Set Four. (Dolinski Set Four Decl., ¶ 9 & Exh. H.) The next day, Plaintiffs sent a similar letter regarding the responses to Set Five. (Dolinski Set Five Decl., ¶ 5 & Exh. D.) The letters identified Plaintiffs’ concerns that Gilbane’s responses did not satisfy the statutory requirements for a statement of compliance. (Dolinski Set Four Decl., Exh H; Dolinski Set Five Decl., Exh. D.) Gilbane responded stating it was continuing its search and would produce additional documents or inform Plaintiffs if no other documents were found. (Dolinksi Set Five Decl., ¶ 6 & Exh. E.) On December 8, 2016, Gilbane served a “Supplemental Response” to RPD, Set Five stating it had located additional documents which may be responsive and would produce them. (Dolinksi Set Five Decl., ¶ 7 & Exh. F.) Plaintiffs responded by stating the responses still were not compliant with the discovery statutes and they also lacked a statement that all documents were produced. (Dolinksi Set Four Decl., ¶ 11 & Exh. I; Dolinksi Set Five Decl., ¶ 8 & Exh. G.) Gilbane replied stating it has produced what it was able to locate, but it would take more time to confirm no other responsive documents existed. (Dolinksi Set Four Decl., ¶ 12 & Exh. J; Dolinski Set Five Decl., ¶ 9 & Exh. H.) In response, Plaintiffs asked for an extension to the deadline to file a motion to compel further responses. (Dolinski Set Four Decl., ¶ 13 & Exh. K; Dolinski Set Five Decl., ¶ 10 & Exh. I.) Gilbane did not respond to this letter. (Dolinksi Set Four Decl., ¶ 14; Dolinksi Set Five Decl., ¶ 11.)

Plaintiffs move to compel Gilbane to provide further responses to RPD Set Four and RPD Set Five and request monetary sanctions. Gilbane opposes the motions and requests monetary sanctions.

III. Motions to Compel Further Responses

Plaintiffs move to compel Gilbane to provide further responses to RPD Set Four, Nos. 18-50. Separately, Plaintiffs move to compel Gilbane to provide further responses to RPD Set Five, Nos. 52-57, 59-64, 66-71, 73-78, 80-85, 87-92, 94-99, 101-106, 108-113, 115-120, and 122-127.

A. Meet and Confer

As an initial matter, Gilbane contends Plaintiffs failed to adequately meet and confer prior to filing their motion because the communications between counsel did not address all the issues Plaintiffs now raise in their motions. Gilbane also argues the meet and confer efforts were not in good faith because some of the deadlines Plaintiffs imposed on it were unreasonable.
Prior to filing a motion to compel further responses for the production of documents, the moving party must meet and confer in a reasonable and good faith attempt to informally resolve each issue presented by the motion and file a declaration stating as much. (Code Civ. Proc., §§ 2016.040, 2031.310, subd. (b)(2).) The purpose of meeting and conferring is to encourage the parties to work out their differences informally and lessen the burden on both the court and the parties. (Townsend v. Superior Ct. (1998) 61 Cal.App.4th 1431, 1435.) The effort necessary to satisfy the “reasonable and good faith attempt” depends on the circumstances of the case. (Obregon v. Superior Ct. (1998) 67 Cal.App.4th 424, 431.)

Here, Plaintiffs’ motions challenge Gilbane’s objections to the discovery responses, the adequacy of the substantive responses pursuant to Code of Civil Procedure sections 2031.220 and 2031.230, and the organization of the documents Gilbane produced pursuant to Code of Civil Procedure section 2031.280. The correspondence between the parties, beginning November 21, 2016, only refers to defects in the substantive responses. It does not address any of the objections raised to the RPD. It also does not indicate any problems with the form the production took. Consequently, Plaintiffs did not attempt to meet and confer over each issue raised in the motion.

Regarding Gilbane’s assertions that Plaintiffs’ deadlines were unreasonable, the initial meet and confer attempt on November 21 and 22 each gave seven days to respond. Gilbane timely responded. The following communication, dated December 15 permitted a single day to respond. The December 16 communication, requesting an extension to the filing deadline, demanded a response that day. The filing deadline was December 22. The initial communications clearly provided time for opposing counsel to consider its position and respond. While it is clear the filing deadline was approaching, necessitating shorter response times, a day or less is typically not enough time to expect a response. Thus, Plaintiffs do not appear to have meaningfully attempted to meet and confer.

Upon a finding that the moving party failed to adequately meet and confer, the court is within its discretion to “specify additional efforts which will be required before [it] will turn to the merits of the discovery dispute.” (Obregon v. Superior Ct., supra, 67 Cal.App.4th at pp. 434-435.) Here, it appears Plaintiff’s need to file the motion when it did was due to Gilbane’s lack of reply to the request for an extension to the filing deadline, precluding further meet and confer efforts. (Plaintiffs’ MPA Set Five, at p. 1:7-8.) The parties are ordered to meet and confer to see if a resolution can be had without further requiring the Court’s intervention.

In meeting and conferring, the parties should explicitly discuss what language is needed to satisfy the statutory requirements of Code of Civil Procedure sections 2031.220 and 2031.230. They should also discuss Gilbane’s supplemental response and what effect, if any, it fulfilled Gilbane’s responsibilities to produce documents.

B. Conclusion

For the reasons set forth above, the motions are CONTINUED until March 9, 2017. The parties are ordered to meet and confer to discuss the issues identified above. The parties are to file supplemental briefs outlining the steps they have taken to meet and confer and narrow down the matters at issue for the motion by February 27, 2017.
The Court will prepare the order.