Case Name: Stephen Weekly v. Sima Hariran, et al.
Case No.: 17CV308326 (lead case)

These consolidated actions arise out of an April 17, 2015 incident in which a motor vehicle driven by Defendant Sima Haririan struck and injured Plaintiff Stephen Weekly (and others) as he was walking out of a Trader Joe’s store located at 22310 Homestead Road, Los Altos, California. Currently before the Court is a discovery dispute between Defendants Sima Hariran and Abdolaziz Arjomand (an alleged co-owner of the vehicle) and Defendant Trader Joe’s Company, Inc. (“Trader Joe’s”). Several of the defendants in these consolidated actions have made cross-claims against other defendants. Defendants Sima Hariran and Abdolaziz Arjomand (hereafter “Defendants” for purposes of this motion) have filed a cross-complaint against Trader Joe’s and Trader Joe’s has filed a cross-complaint against Defendants.

A. Background of the discovery dispute
On January 9, 2019 Defendants served their requests for the production of documents (“RFPDs”), set two, on Trader Joe’s. (See Declaration of Trader Joe’s Counsel Kristin Mathis at ¶ 3 and attached exhibit A; Declaration of Defense Counsel Andrew Lauderdale at ¶ 1 and attached exhibit A.)

On February 13, 2019, counsel for Trader Joe’s requested an extension of time to respond and received no response. As a result of not receiving an extension (according to Trader Joe’s), the initial responses to the four RFPDs (Nos. 8-11) dated February 13, 2019 consisted solely of objections. (See Mathis Decl. at ¶ 4 and exhibits B & C; Lauderdale Decl. at ¶ 2 and exhibit B.)

On February 18, 2019 Defense Counsel sent Trader Joe’s a letter objecting to the receipt of “boilerplate objections.” Trader Joe’s responded on February 20, 2019, asserting that the objections were the result of the lack of response to its request for an extension of time, and it again requested an extension. (See Mathis Decl. at ¶ 5 and exhibit D; Lauderdale Decl. at ¶ 2 and exhibit C.)

No extension of time was granted. Thereafter, in the course of other discussions in late February and early March, Defendants continued to demand further responses without objections and Trader Joe’s continued to request more time, claiming no motion was necessary and suggesting it was reviewing “voluminous” documents. (See Lauderdale Decl., exhibit C [selected emails between counsel and staff].)

On March 28, 2019 Trader Joe’s served further responses to the RFPDs. The supplemental responses for RFPDs nos. 8-10 stated in pertinent part that Trader Joe’s continued to “investigate and search for responsive documents.” The supplemental response to RFPD no. 11 stated in pertinent part that Trader Joe’s “has previously produced any and all responsive documents.” (See Mathis Decl. at ¶ 6 exhibit E; exhibit D to Lauderdale Decl.) Defendants apparently had no response to these supplemental responses.

On May 7, 2019 Trader Joe’s served further supplemental responses to RFPDs nos. 8-10, accompanied by a verification. The supplemental response to RFPD no. 8 stated that after a diligent search Trader Joe’s could not comply “as it is not in possession of any responsive documents and does not believe they have ever existed.” Trader Joe’s unilaterally limited RFPD nos. 9 and 10 to only apply “to the subject store” and then stated that after a diligent search it was unable to comply because it was “not in possession of any responsive documents and does not believe they have ever existed.” (Mathis Decl. at ¶ 7 and exhibit F.)

Defendants apparently had no response to the May 7, 2019 supplemental responses either and their motion to compel was filed on May 29, 2019. After receiving the motion Trader Joe’s sent Defendants a letter on June 5, 2019, noting that the motion failed to address the supplemental responses and complaining that there had been no meet and confer discussions on the supplemental responses prior to the motion being filed. (See Mathis Decl. at 8 at exhibit G.)

B. Analysis of the Merits
Motions to compel further responses to RFPDs require the filing of a separate statement. (Cal. Rules of Court, rule 3.1345(a)(3).) The separate statement must provide “all the information necessary to understand each discovery request and all the responses to it that are at issue.” (Cal. Rules of Court, rule 3.1345(c), Court’s emphasis.) The separate statement must also be “full and complete so that no person is required to review any other document in order to determine the full request and the full response.” (Cal. Rules of Court, rule 3.1345(c), Court’s emphasis.) Finally, separate statements must include: 1) the text of the discovery request, 2) the text of the response or objection and any supplemental responses if given, and 3) a statement of the factual and legal reasons for compelling further responses. (Cal. Rules of Court, rule 3.1345(c)(1)-(3), Court’s emphasis.)

A deficient separate statement provides a ground to deny a motion to compel further responses, even where the moving party provides the text of the discovery requests and responses in a separate document from the separate statement. (Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 894.) As the separate statement submitted by Defendants here is clearly deficient, the motion to compel is DENIED.

Defense Counsel Lauderdale omitted the most recent further responses received from Trader Joe’s (to RFPDs 8-10), which were served approximately three weeks before the motion was filed, from the separate statement. Because of this omission the statement also fails to state the factual and legal reasons why further responses, above and beyond the initial and supplemental responses already received before the motion was filed, should be compelled as to RFPD nos. 8-10. While the most recent response to RFPD no. 11 (later verified, stating that all responsive documents had already been provided) is included, even as to that RFPD no legal reasons why a further response should be compelled are stated.

The most recent further verified responses to RFPD nos. 8-10 (served May 7, 2019) and the further response to RFPD no. 11 (served March 28, 2019 also now verified) are only mentioned in passing in the motion itself at p. 4:21-22 (“After a meet and confer process Trader Joe’s served two more responses, the last one verified, but never produced a single document in response to our request.”) and in Mr. Lauderdale’s supporting declaration at ¶ 2 (“[A]t the end of March, their office sent out a further boilerplate non-response (Exhibit D) and then another boilerplate nonresponse the first week of May (Exhibit E).” As there is no evidence of any discussion of the March 28 or May 7 supplemental responses before the motion was filed, Mr. Lauderdale’s declaration does not show “a reasonable and good faith” attempt to resolve the issues outside of court. (See CCP §2016.040.)

A motion to compel cannot be granted based on such a showing. A party moving to compel further responses is not permitted to pick and choose which of several responses received to disclose in the supporting separate statement. If Defendants wished to challenge the sufficiency of the March 28, 2019 further response to RFPD no. 11 and the May 7, 2019 further responses to RFPD nos. 8-10 (including Trader Joe’s unilateral decision to limit their verified responses to RFPD nos. 9 & 10 “to the subject store”) they needed to file a motion that squarely addressed those responses accompanied by a separate statement that included the full text of those responses and stated the factual and legal reasons for compelling further responses, as required by Cal. Rule of Court 3.1345.

Monetary Sanctions
Both sides request monetary sanctions. Where sanctions are sought in conjunction with a motion to compel the notice of motion must name all parties and attorneys against whom sanctions are sought, specify the type of sanction sought, and cite the authority for such sanctions. (See CCP §2023.040.)

As Defendants’ motion is denied their request for a monetary sanction is also DENIED.

Trader Joe’s requests that the Court “sanction Defendants and their attorneys of record Stratmean Pedersen & Lauderdale in the amount of $2,700.00 for Defendants’ failure to meet and confer prior to the filing of the Motion to Compel.” (Opp. at ii:6-8.) This request is DENIED as the Court finds it would be unjust to sanction Defendants under the circumstances. (See CCP §§2031.310(h), 2023.030(a).)