Case Name: Marolda v. Can, et al.
Case No.: 16CV295203
I. Background and Discovery Dispute
This is a breach of contract action brought by plaintiff Frank Marolda (“Plaintiff”) against defendants Kendrick Can, DDS; Kendrick Can dba Unident (“Unident”); Victoria Goh, DDS; and Victoria Goh & Associates (“Goh & Associates”) (collectively “Defendants”). As alleged in the Complaint, on or around January 1, 2008, Plaintiff entered into an independent contractor agreement whereby Unident and Goh & Associates would pay him monthly fees and expenses in exchange for his procurement of new patients for four dental offices. (Complaint, p. 3; Exh. A.) Defendants breached the agreement by failing to pay his fees and expenses. (Ibid.) The Complaint alleges causes of action for breach of contract and common counts. Defendants filed a cross-complaint averring claims for fraud, unjust enrichment and declaratory relief.
The instant matter involves a discovery dispute. Around January 2018, Defendants served Plaintiff with a deposition notice that included 21 requests for production of documents (“RPD”). (Martinez Decl., Exh. A.) Plaintiff appeared for his deposition and, though he was deposed, the deposition was later suspended due to a document production dispute. (Id. at ¶¶ 8, 11.) Plaintiff had brought only one document to the deposition – a copy of his original contract with Defendants, which was responsive to RPD No. 5. (Id. at ¶ 3.) Plaintiff stated he did not see the deposition notice and was unaware he was required to bring documents with him to the deposition. (Id. at ¶ 4.) He nonetheless indicated he had documents responsive to the production requests. (Id. at ¶ 5.) At no point did Plaintiff or his counsel object to any of the RPD. (Id. at ¶ 4.)
At the end of the deposition, Plaintiff’s counsel informed Defendants’ counsel that documents responsive to the production requests were in his office. (See Id. at ¶ 8.) Because his office was located in the same building as the deposition, he offered to provide Defendants’ counsel with the documents at that time. (See Id. at ¶¶ 8, 10.) Defendants’ counsel did not accept this offer and sent an e-mail to Plaintiff’s counsel several days later, indicating Defendants would be filing a motion to compel if Plaintiff refused to make himself available for another deposition, produce the requested documents and pay for the costs of the second deposition. (See Id. at ¶ 11; Exh. B.) No further meet and confer efforts occurred.
Currently before the Court is Defendants’ motion to compel the production of documents requested in their deposition notice and for an award of sanctions. Plaintiff opposes the motion.
II. Motion to Compel Document Production
At the outset, the Court cannot understand why the parties were unable to resolve this dispute on their own. It is not clear why moving party did not accept the offer to provide the documents at the time of the deposition, particularly when the deposition notice was a near complete duplication of prior document requests, for which documents were produced. It is also difficult to evaluate the merits of the instant motion and determine the proper outcome for a variety of reasons.
First, there is a significant deficiency in Defendants’ presentation. The motion is brought pursuant to Code of Civil Procedure sections 2025.450 and 2025.480 (“Section 2025.450” and “Section 2025.480” respectively), which permit a party to move for an order compelling the production of documents for inspection if the party who was served with a deposition notice fails to produce the requested documents. (See Code Civ. Proc., §§ 2025.450, subd. (a); 2025.480, subd. (a).) Subdivision (b) of Section 2025.450 mandates that a motion to compel “set forth specific facts showing good cause justifying the production for inspection of any document…described in the deposition notice.” To satisfy its burden of demonstrating good cause for the discovery sought, the moving party must make “a fact-specific showing of relevance.” (See Glenfeld Development Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117.)
Here, Defendants’ motion does not even apprise the Court of what documents are requested out of the approximately 20 items in the RPD much less the relevance these documents have to the subject matter of this action. Defendants only discuss good cause relative to RPD No. 6 and are otherwise silent as to whether good cause exists for the remaining requests.
On the other hand, Plaintiff does not take issue with Defendants’ failure to establish good cause for most of the production sought and it is unclear if he even has any objection to complying with the RPD. Though he states in his opposition that RPD No. 6 is “irrational” and irrelevant, which would tend to suggest an objection on the ground of relevance, he also represents that he previously searched for and produced documents related to similar “non-issue[s]” in the litigation. (See Opp. at p. 2:17-20; 3:17-21.) Plaintiff also does not dispute that he did not object to RPD No. 6 at the deposition and his counsel even offered to have Defendants’ counsel go to his office to procure any responsive documents. (See Opp. at p. 4:4-13.) He otherwise seems to express willingness in his opposition to cooperate with Defendants and focuses primarily on the insufficiency of their meet and confer efforts before bringing this motion.
Further, though Defendants seek to compel production in response to all the RPD they also acknowledge that, aside from RPD No. 6, the requests in the deposition notice are substantially similar to if not entirely duplicative of those in an inspection demand previously served on Plaintiff around December 2016. (See Motion to Compel (“Mtn.”) at p. 4:9-10.) This fact is confirmed by Plaintiff in his opposition. (See Opposition (“Opp.”) at p. 2:28-3:4.) Moreover, the parties do not appear to dispute that Plaintiff responded to the prior inspection demand by producing the documents requested. In an attempt to justify the duplicative document requests in the deposition notice, Defendants argue “it is reasonable to determine if there are further responsive documents a year later.” (Mtn. at p. 4:10-11.) However, the requests as drafted in the deposition notice indicate no such time limitation and do not communicate Defendants are only seeking documents that may have been discovered or acquired since the last round of document production in December 2016.
Lastly, Plaintiff suggests that, aside from the contract between the parties, there were no more documents to produce after 2016, his lawyer also appears to confirm that additional responsive documents may have been in his counsel’s office. (See Opp. at p. 3:3-6; 4:9-11.) Though the opposition also indicates that Plaintiff objects to the RPD on the ground the requests were duplicative, this objection was not raised at the deposition and seems otherwise contradicted by his conduct in offering to have Defendants’ counsel go to his counsel’s office to cull through the “entire file and all the documents [which] were a few steps away.” (See Opp. at 4:9-11.) On the other hand, the Court sees no purpose in ordering production of documents already produced.
For these reasons, the Court declines to rule on the merits of the motion at this time. Unless the parties have resolved their issues before the hearing, the Court ORDERS counsel, Carlos Martinez and Louis Silver, to personally appear in Court to further meet and confer regarding this matter. No CourtCall will be permitted for this hearing. In the Court’s opinion, there is no reason the parties should not be able to resolve this discovery dispute. If the parties resolve this matter in full, they are directed to notify the Court prior to the hearing that the motion is taken off calendar. If the matter is not resolved by the meet and confer by the end of the calendar, the Court intends to continue this hearing.
The Court will prepare the Order.