2010-00088210-CU-CL

AV Builder Corp vs. Glen Allen Van Dyke

Nature of Proceeding: Motion to Compel Request for Production

Filed By: Taylor, Wendy A.

Defendant/cross-complainant Salinger Van Dyke’s (“SVD”) motion to compel
plaintiff/cross-defendant AV Builder Corp.’s (“AVB”) further response to Requests for
Production of Documents, Set One, is GRANTED, as follows.

According to the moving papers, SVD served its Requests for Production of
Documents, Set One, in order to obtain the “backup” documentation for various
invoices issued by AVB which SVD’s cross-complaint now alleges were fraudulent. In
response to each of the 33 individual requests for production, AVB asserted only
objections including that the requests are overly broad, unduly burdensome, not
reasonably calculated to lead to admissible evidence and invasive of the financial
privacy rights of AVB, its employees and its contractors, as well as that SVD waived its
right to dispute AVB’s invoices by failing to timely notify AVB of any dispute regarding
the invoices. This motion was filed when AVB refused to provide further responses to
the requests despite SVD’s meet-and-confer attempts. SVD now contends that AVB’s
asserted objections are without merit, that SVD has “good cause” to obtain the
discovery via the requested documents and that the motion for further responses
should therefore be granted.

AVB opposes the motion, arguing first that SVD’s cross-complaint is frivolous and that
SVD either fails to understand what previously-produced “backup” documentation says
or does not care what it says. (Oppos., p.3:7-10.) Additionally, AVB insists that SVD
has conducted only limited discovery to date and has not even bothered to take any
depositions, including AVB’s person most knowledgeable (“PMK”) regarding the
“backup” documentation which has already been produced, thereby revealing SVD’s
intent to stall this litigation as long as possible. (Id., at p.3:10-21.) AVB maintains that if
SVD would only look closer at the documents already produced, SVD would realize
the cross-complaint is without factual support. (Id., at p.4:4-17.) AVB also notes that
SVD’s own discovery responses confirm SVD has no facts on which to base its fraud
allegations against AVB. (Id., at p.6:19-p.7:17.)

Furthermore, the opposition estimates that responding to SVD’s requests for
production will involve the retrieval of hundreds, if not thousands, of pages, some of
which are kept in AVB’s off-site storage facility but insists this burden could be
eliminated if SVD would simply examine the documents already in its possession and
realize there was no fraud. (Id., at p.4:19-24; p.7:18-24.) Since AVB believes the
production of these additional documents will do nothing to convince SVD its fraud
claims are baseless, AVB suggests that SVD be required to depose the former’s PMK
regarding the “backup” documentation which has already been produced so that SVD
can see for itself there was no fraud. (Id., at p.8:13-23.) The opposition requests that if
SVD is entitled to the documents sought here, AVB be reimbursed for “its
administrative costs” including the time spent “processing the documents.” (Id., at p.8:5
-9.)

At the outset, the Court must remind both counsel that given the number of motions
such as this which must be addressed on a daily basis, there are simply not enough
judicial resources available to resolve each and every discovery dispute that could
have and should have been resolved informally. That this is just such a dispute only
serves to highlight the critical need for legitimate, reasonable and good faith meet-and-
confer efforts by both counsel before filing any discovery motion. Although it dealt with
a motion to compel answers to deposition questions, the decision of Townsend v.
Superior Court (1998) 61 Cal.App.4th 1431 is instructive in that the meet-and-confer
process is not intended to be some perfunctory formality but rather it “requires…a
serious effort at negotiation and informal resolution.” (Id., at 1438.)

Turning now to the merits, the Court finds this motion to be effectively unopposed
since the opposition papers are largely non-responsive to the issues raised. The
opposition fails to discuss in any meaningful manner AVB’s asserted objections to the
requests for production but even assuming these objections might have some
theoretical merit, none of them justifies a complete refusal to respond at all to any of
the requests at issue here. For instance, had AVB properly substantiated its “undue
burden” objection with a competent declaration explaining the time/cost involved with
retrieving the responsive documents, the Court likely would have considered requiring
SVD to reimburse some or all of this amount but the Court will not do so now as AVB
has effectively waived this objection by failing to support it with appropriate evidence.

While AVB may be frustrated with the progress of this litigation, this Court is not
inclined to micromanage the discovery conducted in this or any other particular case
since it simply does not have the resources to do so and since AVB has other
remedies available. If circumstances warrant and “good cause” exists, AVB may
promptly seek an appropriate protective order regarding discovery and if AVB
contends SVD’s cross-complaint lacks evidentiary support, it may file a summary
judgment motion. But in the present case, the Court finds that SVD is generally
entitled to conduct discovery on issues raised by its cross-complaint in order to gather
evidence to support its claims of fraud and the mere fact AVB believes SVD will
ultimately be unable to prove any fraud is not a valid basis on which to refuse to
respond to otherwise legitimate discovery.

For all these reasons, the motion to compel is granted and AVB shall provide further
responses, without objections, to SVD’s Requests for Production of Documents, Set
One, no later than 10/21/2013.

SVD is awarded monetary sanctions against AVB and/or its counsel in the amount of
$1,320, representing seven (7) hours of attorney time at the reasonable hourly rate of
$180 plus the $60 filing fee. Sanctions to be paid no later than 11/8/2013 and if not
paid by that date, SVD may prepare for the Court’s signature a formal order granting
the sanctions, which may then be enforced as a separate judgment. (Newland v.
Superior Court (1995) 40 Cal.App.4th 608, 615.)

This minute order is effective immediately. No formal order or other notice is required.
(Code Civ. Proc. §1019.5; CRC Rule 3.1312.)