Case Number: BC516184    Hearing Date: July 23, 2014    Dept: 32

CASE NAME: Cupertino Electric, Inc. v. Rubicon Professional Services, et al.
CASE NO.: Lead Case No. BC500334 [related and consolidated with BC516184]
HEARING DATE: 07/23/14
DEPARTMENT: 32
CALENDAR NO.: 1
SUBJECT: (1) Motion to be Relieved as Counsel
(2) Motion for an Order Compelling Production of Documents in Compliance with Response of Internap Network Services Corp. to Request for Production
(3) Motion for an Order Compelling Defendant Rubicon Professional Services Corp.’s Responses to Requests for Production
MOVING PARTY: (1) James Newland and Andrea Anapolsky of Seyfarth Shaw LLP, counsel for Defendant Rubicon Professional Services Corp.; (2) Plaintiff Gaff Group, Inc. (“Plaintiff”); (3) Defendant Internap Network Services Corp.
RESP. PARTY: (1), (2) None; (3) Defendant Internap Network Services Corp.

COURT’S TENTATIVE RULING

Motion to be Relieved as Counsel GRANTED. The court sets an OSC re: status of new corporate legal representation for Defendant Rubicon for a date to be selected at the hearing.

Motion for an Order Compelling Production of Documents in Compliance with Response of Internap Network Services Corp. to Request for Production GRANTED subject to modification based on arguments or updates provided by the parties at the hearing regarding Internap’s production of documents. Request for monetary sanctions against Defendant Internap GRANTED in the reduced amount of $1,000.

Motion for an Order Compelling Defendant Rubicon Professional Services Corp.’s Responses to Requests for Production GRANTED. Request for monetary sanctions against Defendant Rubicon GRANTED in the reduced amount of $500.

ANALYSIS

Rubicon’s Motion to be Relieved as Counsel

Service and notice

The notice of motion and motion must be served on the client and on all other parties who have appeared in the case. (CRC 3.1362(d).) Rubicon’s counsel submits proof of service showing that it served Rubicon and all other parties personally with the motion on June 30, 2014. Therefore, service on Rubicon was proper.

Merits

In a declaration, Rubicon’s counsel states hat Rubicon has consented to the withdrawal after discussion with counsel. Counsel further declares that Rubicon lacks the assets to pay counsel after it executed an assignment for the benefit of its creditors. Counsel further states that Rubicon has consented to withdrawal after being informed of the risk that a default judgment will be taken if Rubicon does not timely engage new counsel. Based on the foregoing, and since Rubicon cannot file a substitution to represent itself pro se, counsel has shown good cause for withdrawal.

Upcoming Dates/Deadlines

• Final Status Conference, 10/21/14
• Trial, 10/28/14

OSC Re: Defendant’s Legal Representation

Defendant Rubicon is a corporate entity that may not represent itself in pro per. (Caressa Camille, Inc. v. Alcoholic Beverage Control Appeals Bd. (2002) 99 Cal. App. 4th 1094, 1101.) Accordingly, the court sets an OSC re status of new corporate legal representation, as stated in the above ruling. If new counsel is not retained for the corporate defendant, the court will entertain a motion for entry of default.

Plaintiff’s Motion to Compel Compliance

A party may move for an order compelling compliance with a responding party’s statement of compliance with a request for production of documents. (CCP § 2031.320(a).)

Plaintiff submits evidence that Defendant Internap objected to each of Plaintiff’s RFPs on the grounds that they are overbroad, unduly burdensome, harassing, and irrelevant. Subject to those objections, Defendant stated for each RFP that it would “produce all relevant, non-privileged documents in its custody, possession or control.” (Mot. Exh. 3; see Murray Decl. ¶¶ 10-11.) Plaintiff’s counsel represents that, to date, Defendant has not produced any responsive documents in compliance with these responses. (Id. ¶ 14.) Although not required for a motion to compel compliance (see CCP § 2031.320), Plaintiff submits evidence that it met and conferred with Defendant regarding the failure to produce documents. (Murray Decl. ¶¶ 12-13, Exh. 4.) Defendant has not opposed the motion to show that documents have been produced in compliance with Defendant’s responses. Defendant’s objections, which appear boilerplate, would not be a sufficient basis to withhold all production of documents. Accordingly, the motion is GRANTED.

The CCP provides for monetary sanction for discovery related conduct. In the context of a discovery dispute, sanctions effectively serve the function of cost shifting, i.e., the monetary costs of the resolving the dispute is borne by the party whose conduct improperly caused the dispute. Sanctions are not appropriate in a close case or where a party’s conduct is substantially justified.

Monetary sanctions are warranted against Defendant as the losing party on this motion. Plaintiff’s request for $1,875 in sanctions is excessive given the nature and scope of the motion. The Court reduces that amount and imposes total monetary sanctions of $1,000 (4 hrs x $250/hr) on Defendant. (See Murray Decl. ¶ 15.)

At the first hearing on this motion, on June 23, 2014, the court indicated in its minute order that “Counsel for Cross-Defendant Internap Network Services,
Corp informs the Court that 19 Gigabytes of documents have been produced to the Plaintiff with additional production to follow.” The court has not received any further update from the parties on this issue. Therefore, the court’s prior tentative ruling stands, subject to modification based on arguments or updates provided by the parties at the hearing regarding Internap’s production of documents.

Defendant Internap’s Motion to Compel

Untimely Opposition Brief

Rubicon served its “non-opposition” by regular mail on July 16, 2014. Thus, the opposition brief was not served 9 court days prior to the hearing date as required by CCP § 1005(b). However, because the opposition discusses a recent production of documents pursuant to a confidentiality stipulation, the court will consider the opposition and allow Internap to respond at the hearing.

Merits

If a party fails to timely respond to a request for production and inspection of documents, “[t]he party to whom the inspection demand is directed waives any objection to the demand….” (CCP § 2031.300(a).) “The party making the demand may move for an order compelling response to the inspection demand.” (CCP § 2031.300(b).)

Internap submits evidence that it served the RFPs on Rubicon on November 19, 2013, and that Rubicon failed to respond by the statutory deadline. (Holley Decl. ¶¶ 2-9.)

In an untimely opposition, Rubicon contends that it produced documents in response to the RFPs on June 20, 2014. Rubicon argues that the production was delayed so that the parties could execute a confidentiality stipulation, which was fully executed on June 9, 2014. (Oppo. 4.) These arguments are not verified in a declaration by Rubicon or its counsel. Thus, Rubicon has not shown that it has actually produced all responsive documents.

Also, the court notes that Rubicon does not claim to have provided a written response to the RFPs pursuant to CCP §§ 2031.210, 2031.220, and 2031.230. By statute, Rubicon is required to state in a written response whether it has or will comply with the RFPs or that it lacks the ability to do so. Without such a response, Internap will not know if Rubicon claims to have produced documents in response to all or some of the RFPs.

For the reasons stated above, monetary sanctions are warranted against Rubicon as the unsuccessful party on this motion. Internap’s request for $2,532.50 in sanctions is excessive in light of the nature and scope of the motion. The court reduces that amount and imposes a total monetary sanction of $500 (2 hours x $250/hour) on Rubicon.