Case Name: Western Stone & Metal Corporation dba Shane Co. v. 190 West St. James, LLC, et al.
Case No.: 2015-1-CV-283242

Factual and Procedural Background

This lawsuit involves a dispute over premises leased to plaintiff Western Stone & Metal Corporation, dba Shane Company (“Plaintiff”) at The Oaks Shopping Center located in Cupertino, California. Plaintiff alleges that defendants 190 West St. James, LLC and Modena Investment LP (“Modena”) (collectively, “Defendants”) breached the lease by failing to repair and replace the roof at the leased premises, resulting in leaks into Plaintiff’s retail store and disruption of Plaintiff’s business. Plaintiff also claims that Defendants overcharged Plaintiff for its share of common area maintenance and taxes through January 31, 2015.

On July 17, 2015, Plaintiff filed a complaint against Defendants setting forth the following causes of action: (1) declaratory relief; (2) breach of lease; (3) specific performance; (4) breach of contract; (5) declaratory relief; and (6) accounting.

On October 21, 2015, Plaintiff served Modena with Request for Production of Documents, Set One (“RPD”). (See Declaration of William W. Huckins at ¶ 2; Exhibit 1.) The parties agreed that Modena would serve RPD responses on or before January 29, 2016. (Id. at ¶ 3; Exhibit 2.)

On February 1, 2016, Modena served untimely RPD responses. (See Declaration of William W. Huckins at ¶ 4; Exhibit 3.) Thereafter, the parties exchanged meet and confer letters with respect to objections and responses to RPD Nos. 1, 2, 4, 5, 10-18, 20, and 21 and thus Plaintiff requested amended responses and production of any additional responsive documents. (See Declaration of William W. Huckins at ¶¶ 5-7; Exhibits 4-6.)

On February 29, 2016, Modena served amended RPD responses interposing objections with factual answers. (See Declaration of William W. Huckins at ¶ 8; Exhibit 7.) Following receipt of the amended responses, Plaintiff sent multiple emails to Modena requesting production of any further documents. (Id. at Exhibits 8 and 9.) Plaintiff did not receive any response to the emails or additional documents and thus seeks Court intervention to resolve the discovery dispute.

Currently before the Court is Plaintiff’s motion to compel compliance with the RPD. (Code Civ. Proc., § 2031.320.) In conjunction with the motion, Plaintiff requests judicial notice of certain documents. Both sides request an award of monetary sanctions. Modena filed written opposition. Plaintiff filed reply papers.

Motion to Compel Compliance with RPD

Plaintiff moves to compel compliance with RPD Nos. 1, 2, 4-5, 10-18, 20 and 21 because Modena agreed to produce all responsive documents and failed to do so.

Request for Judicial Notice

Plaintiff requests judicial notice of the following documents: (1) Plaintiff’s complaint in this action (Exhibit 1); (2) Declaration of Rordan Shane filed on December 4, 2015 in this action (Exhibit 2); and (3) Plaintiff’s Case Management Conference Statement filed on May 23, 2016 (Exhibit 3).

“Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter.” (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.)

With respect to these exhibits, the request for judicial notice is GRANTED as these documents constitute court records subject to judicial notice under Evidence Code section 452, subdivision (d). While the Court is free to take judicial notice of the existence of a document in a court file, the Court may not take judicial notice of the truth of hearsay statements in decisions and court files. (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882.) Thus, the request for judicial notice is granted only as to the existence and contents of the document, not the truth of the matters asserted therein.

Legal Standard

If a responding party agrees to comply with a document demand pursuant to Code of Civil Procedure section 2031.010 and then fails to do so, the propounding party may bring a motion to compel compliance. (Code Civ. Proc., § 2031.320, subd. (a).) There is no time limit for bringing a motion to compel compliance. Additionally, there is no requirement to “meet and confer” in an attempt to resolve the matter informally. The moving party only needs to show that the responding party agreed to produce the documents and then failed to do so. (Ibid.; see Standon Co., Inc. v. Sup. Ct. (1990) 225 Cal.App.3d 898, 903.)

RPD Nos. 1, 2, 4-5, 10-17, and 21

With respect to RPD Nos. 1, 2, 4-5, 10-17 and 21, Modena agreed to produce all non-privileged responsive documents in its possession, custody, or control. However, as Modena failed to serve timely responses, all objections are waived, including those based on privilege. (See Code Civ. Proc., § 2031.300, subd. (a).) Modena concedes that its RPD responses were untimely but argues that it should be entitled to relief from waiver of objections. This is because Modena has since submitted responses that are in substantial compliance with the code and any such delay was the result of mistake, inadvertence, or excusable neglect. (See OPP at pp. 6-8.) However, Modena cannot request a waiver of objections in its opposition. Instead, such a request requires the filing and service of a noticed motion. (See Code Civ. Proc., § 2031.300, subd. (a).) No such motion is before the Court. Upon the filing of such motion, the Court will consider whether Modena is entitled to relief from waiver of objections.

Consequently, the motion to compel compliance with RPD Nos. 1, 2, 4-5, 10-17, and 21 is GRANTED.

RPD Nos. 18 and 20

RPD No. 18 seeks production of all copies of tenant leases at the center in effect from January 1, 2008 to the present. RPD No. 20 requests all documents evidencing, referring or relating to monthly rent rolls for the center since January 1, 2008.

Modena responds to RPD Nos. 18 and 20 claiming that, following a diligent search and reasonable inquiry that it is unable to fully respond to the requests. Unlike the prior RPD, there is no agreement to comply by Modena. Thus, there is no basis for a motion to compel compliance.

Alternatively, Plaintiff may be seeking to compel a further response to RPD Nos. 18 and 20 because the responses are inadequate. (See Code Civ. Proc., § 2031.310.) However, such a motion must be accompanied by a meet and confer declaration. (See Code Civ. Proc., § 2031.310, subd.(b)(2).) Plaintiff fails to include any evidence showing that the parties met and conferred with respect to the amended responses to RPD Nos. 18 and 20. Furthermore, a motion to compel further responses requires specific facts showing good cause to justify the discovery sought by the demand. (See Code Civ. Proc., § 2031.310, subd.(b)(1).) Plaintiff’s motion is devoid of any specific facts establishing good cause to justify production of RPD Nos. 18 and 20.

Accordingly, the motion to compel compliance or compel a further response to RPD Nos. 18 and 20 is DENIED.

Request for Monetary Sanctions

Both sides request an award of monetary sanctions. The Court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance or compel a further response to 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., §§ 2031.310, subd. (h), 2031.320, subd. (b).)

Modena’s request for monetary sanctions is DENIED as it was not substantially justified in opposing the motion.

Plaintiff’s request for monetary sanctions is GRANTED IN PART. Plaintiff makes a code-compliant request for sanctions and requests more than $5,000 for expenses incurred in connection with the motion. The Court finds this amount to be excessive given the relatively straightforward issues in this motion. Also, Plaintiff would not be entitled to the full amount of sanctions as it did not prevail on the motion with respect to RPD Nos. 18 and 20. Therefore, the Court will award Plaintiff with $1,200 in monetary sanctions in connection with the motion.

Disposition

Plaintiff’s request for judicial notice is GRANTED.

Plaintiff’s motion to compel compliance with RPD Nos. 1, 2, 4-5, 10-17, and 21 is GRANTED. Modena shall serve a verified code compliant response, without objections, and produce all responsive documents within 20 calendar days of this Order.

Plaintiff’s motion to compel compliance or compel a further response to RPD Nos. 18 and 20 is DENIED.

Modena’s request for monetary sanctions is DENIED.

Plaintiff’s request for monetary sanctions is GRANTED IN PART. Counsel for Modena shall pay $1,200 to Plaintiff’s counsel within 20 calendar days of this Order.