Case Number: KC065940 Hearing Date: June 04, 2014 Dept: J

Re: Partee Insurance Associates, Inc. v. Charles Jimison (KC065940)

MOTION TO COMPEL COMPLIANCE WITH STATEMENT OF COMPLIANCE TO INSPECTION DEMAND

Moving Party: Defendant Charles Jimison

Respondent: Plaintiff Partee Insurance Associates, Inc.

POS: Moving OK; Opposing served by regular mail contrary to CCP § 1005(c)

Plaintiff alleges that Defendant, who was formerly employed by Plaintiff as an insurance broker, misappropriated Plaintiff’s client and proprietary information, and also earned secret commissions. Plaintiff commenced this action on 4/12/13. The First Amended Complaint, filed on June 10, 2013, asserts causes of action for:

1. Breach of Contract
2. Conversion
3. Wrongful Use of Thing or Knowledge Acquired in Employment
4. Uniform Trade Secrets Acts Violation
5. Interference with Prospective Economic Advantage
6. Unfair Business Practices
7. Breach of Oral Contract
8. Fraud

A jury trial is set for 10/7/14.

Defendant Charles Jimison (“Jimison”) moves the court to compel Plaintiff Partee Insurance Associates, Inc. (“Partee”) to comply with its statement of compliance to Inspection Demand (Set One). The motion is made on the following grounds: (1) that Partee has still not provided its counsel with all of the requested documents; and (2) that documents are supposed to be produced, but no specific date has been identified.

On August 9, 2013, Jimison propounded his initial request for production of documents to Partee, who served supplemental responses and agreed to produce documents as long as an “acceptable protective order has been entered in the court’s records.” Defendant submitted a proposed stipulation and protective order which was returned by Plaintiff’s counsel with revisions, but the revisions was not only unacceptable but not enforceable. On 12/10/13, Defendant forwarded a revised stipulation and protective order. On 3/10/14, Jimison moved to compel compliance with the statement of compliance, and to adopt the protective order. The final version of the protective order was adopted by the court on 3/10/14, and the Motion to Compel Compliance was therefore denied without prejudice.

Where the court denies a motion without prejudice to renewing it, the ensuing motion is not governed by the requirements for reconsideration under Code of Civil Procedure § 1008. Clausing v. San Francisco Unif. School Dist. (1990) 221 Cal. App. 3d 1224, 1232.

Here, Plaintiff argues that “[t]his Court already denied the same motion when it was heard on March 10, 2014. However, the court granted the Protective Order that date, but denied the Motion to Compel Compliance with Statement of Compliance to Inspection Demand without prejudice believing the issuance of the Protective Order would resolve the issue. Therefore, this motion is properly before the court, and is not governed by the requirements of a motion for reconsideration.

CCP § 2031.320 authorizes this Court to enter an order upon motion where, after a party fails to comply with its statement of compliance, the propounding party moves for an order compelling compliance. In this case, Jimison moves again to compel compliance with a Statement of Compliance. Partee refuses to provide its counsel with all of the requested documents on grounds that the Protective Order is not acceptable to Partee. However, the Protective Order is an order of this court, and the parties are required to follow the order. A party may seek to clarify or reconsider an order under CCP § 1008, but Partee did not timely move to do so. CCP § 1008(e) states in relevant part, “[n]o application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.” Partee’s opposition does not constitute a motion for reconsideration because it fails to comply with the procedural requirements of a reconsideration motion. Further, it has been more than ten days since the court’s order of 3/10/14, so the motion would be untimely.

For all of the foregoing reasons, the motion is granted. Partee is ordered to produce the documents referenced in its Supplemental Response to Request for Production of Documents, Set One, within 10 days.

Sanctions:

Under CCP § 2031.300(c), “a party that unsuccessfully opposes a motion” to compel a response may be sanctioned. Plaintiff and its counsel of record are jointly ordered to pay to counsel for Defendant discovery sanctions in the sum of $960.00 within 10 days.