Case Name: John Morales v. Tanya Moore, et al.

Case No.: 16CV303328

I. Background and Discovery Dispute

This cases arises out of purported breaches that occurred over the course of an attorney-client relationship between plaintiff John Morales (“Plaintiff”), the former client, and defendants Tanya Moore aka Tanya Levinson aka Tanya Levinson Moore (“Moore”), Randolph Kenneth Moore aka Randy Moore, Moore Law Firm, P.C., and Mission Law Firm (collectively “Defendants”), the attorneys or law firms that represented him.

According to the allegations in the Complaint, the parties entered into an agreement whereby Defendants would file approximately 32 disability access lawsuits against local businesses in Plaintiff’s area on his behalf and pay him between $500 and $1,000 for each case they settled. (Complaint, ¶¶ 12-13.) Whenever a case settled, Defendants would inform Plaintiff and send him only the signature page of the settlement agreement. (Id. at ¶ 13.) At no point did Defendants communicate settlement offers to him in advance or provide an accounting regarding the final disbursement amount. (Id. at ¶¶ 13, 15.) However, Plaintiff believes Defendants received over $320,000 in settlements on his cases and paid him less than ten percent of that amount. (Id. at ¶ 19.) He alleges, among other things, that Defendants wrongfully failed to provide him with complete copies of fee and settlement agreements over the course of their attorney-client relationship. (Id. at ¶¶ 25, 40). Plaintiff therefore filed a complaint, alleging a range of causes of action, including contract, tort and declaratory relief claims.

On or around October 25, 2016, Moore sought information related to Plaintiff’s claim that he did not receive copies of fee and settlement agreements from Defendants by serving a subpoena on Yahoo, Inc. (“Yahoo”). (Inouye Decl., ¶ 5.) In the subpoena, Moore requested the production of all e-mail communications between Plaintiff’s Yahoo account and all e-mail accounts associated with Moore’s law firm. (Ibid.) Yahoo refused to produce the e-mails unless it received a stipulation from the parties authorizing the release. (Id. at ¶ 6.)

Nearly a year later, Moore served Plaintiff with Request for Production of Documents, Set Two (“RPD”), which included a single request – RPD No. 53 – that he produce all e-mails between him and Moore’s law firm. (Id. at ¶ 7; Exh. C.) Two days later, Plaintiff’s counsel executed a stipulation in which he authorized Yahoo to release the e-mails that were the subject of the earlier subpoena. (Id. at ¶ 8.) Moore’s counsel forwarded the stipulation to Yahoo. (Ibid.) Yahoo then agreed to produce the e-mails once Plaintiff complied with an account verification process that included e-mailing Yahoo an authorization (“Yahoo Authorization”) from the subject e-mail account, which included the following language:

“I hereby give my express consent and authorization to [Moore’s counsel] to receive, review, copy, and otherwise obtain access to all information of any kind held by Yahoo relating to my account, including but not limited to information about my identity, my online activities, and the contents of all electronic files and communications maintained by Yahoo related to me or my Yahoo ID.” (Id. at ¶ 9; Exh. E.)

The Yahoo Authorization also stated Plaintiff was further authorizing the disclosure of all e-mails exchanged between Plaintiff and Defendants. (Ibid.) Plaintiff did not respond at the time to Moore’s requests that he send the Yahoo Authorization. (Id. at ¶¶ 9, 10.) Instead, Plaintiff responded to RPD No. 53 objecting to the request and stating that the subject e-mails were not in his possession, custody and/or control and/or had been previously produced. (Inouye Decl., ¶ 11; Exh. G.)

About a month later, Moore’s counsel sent a meet and confer letter disputing Plaintiff’s contention he did not have possession, custody or control of responsive documents. (Id. at ¶ 12; Exh. H.) Counsel asserted Plaintiff did, in fact, have control over the Yahoo e-mails because it was within his power to send the Yahoo Authorization. (Ibid.) In response, Plaintiff’s counsel asserted Plaintiff did not possess the responsive documents and any e-mails between the parties would also be in Moore’s possession. (Id. at ¶¶ 12-13; Exhs. H, I.) The parties were unable to resolve the dispute.

Moore filed the present motion to compel a further response and production in response to RPD No. 53. Plaintiff opposes the motion. Each party seeks monetary sanctions from the other.

II. Motion to Compel

Upon receipt of a response to a request for production, the requesting party may move for an order compelling a further response if the party deems the responding party’s objections are too general or lack merit or its substantive responses are inadequate, incomplete or evasive. (Code Civ. Proc., § 2031.310, subd. (a)(1)-(3).) The propounding party must first demonstrate good cause for the discovery sought. (Code Civ. Proc., § 2031.310, subd. (b)(1).) Once good cause is established, the burden shifts to the responding party to justify any objections and responses. (Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.)

A. Preliminary Issue

At the outset, the Court observes that both parties seem to misconstrue the purpose of a motion to compel further responses to an inspection demand. Moore seemingly attempts to use her motion to both compel a further response to RPD No. 53 and compel Plaintiff to sign the Yahoo Authorization in connection with the subpoena she previously served on Yahoo. For example, she requests that the Court compel Plaintiff to “produce the Yahoo emails” and further asserts Plaintiff has control over these e-mails because he has the ability to send Yahoo the requested authorization. (Mtn. at p. 6:27-7:1, 8-9.) Similarly, in her reply, Moore requests that the Court “compel Plaintiff to authorize the release of the Yahoo e-mails” directly to her so Yahoo can fulfill its discovery obligations. (Reply at p. 6:19-21.) As for Plaintiff, he includes a section in his opposition titled “Defendant’s Request Was So Broad, It Amounted to an Invasion of Privacy” but the discussion pertains solely to the overbreadth and privacy implications of the Yahoo Authorization language. (Opp. at p. 5:19-6:17.) As such, he seems to interpret RPD No. 53’s request for e-mails as amounting to a request that he sign the Yahoo Authorization. Both parties err in this regard.

The Yahoo Authorization relates to a completely separate discovery device Moore employed in this litigation in an earlier attempt to obtain the subject e-mails directly from Yahoo. As such, the issue of whether or not Plaintiff should be compelled to sign the authorization does not fall within the parameters of the motion to compel a further response to RPD No. 53. For purposes of this motion, the Court will only evaluate the sufficiency of Plaintiff’s response to the subject request.

B. Good Cause

To satisfy its burden of demonstrating good cause for the discovery sought, the moving party must make “a fact-specific showing of relevance.” (Glenfeld Development Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117.) Discovery is allowed for any matters not privileged that are either relevant to the subject matter involved in the action or reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.010.) Information is relevant to the subject matter if it might reasonably assist a party in evaluating its case, preparing for trial, or facilitating settlement. (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.) “Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence.” (Ibid.) Courts liberally construe the relevance standard and any doubts as to whether a request seeks information within the scope of discovery are generally resolved in favor of discovery. (Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 790.)

RPD No. 53 seeks all documents and e-mails exchanged between Plaintiff’s Yahoo e-mail account and any e-mail address associated with Moore’s law firm. Moore argues good cause exists for the production of these e-mails because they are directly related to Plaintiff’s allegations he failed to receive complete copies of fee and settlement agreements from Defendants. She further asserts she has no other means of obtaining these e-mails because Yahoo refused to produce them in response to the subpoena, Plaintiff refused to send Yahoo the requested authorization and she deleted the employee e-mail account from which many of the e-mails were sent after that employee left the law firm. The latter arguments are misplaced because they do not address the issue of the relevance of the documents sought in RPD No. 53. The first argument, however, is well-taken.

Given that Plaintiff repeatedly alleges in the Complaint that Defendants failed to provide him with copies of fee and settlement agreements, the e-mails between the parties will reasonably assist Moore in evaluating the truth of this contention. Plaintiff also does not dispute that good cause exists for the discovery sought.

Accordingly, Moore has demonstrated good cause for the discovery sought and the burden shifts to Plaintiff to justify his objections and substantive responses.

C. Objections

Plaintiff objected to RPD No. 53 on the grounds it is vague and ambiguous; is overbroad; is burdensome, harassing and oppressive; causes unwarranted annoyance and embarrassment; seeks irrelevant information; seeks information whose probative value is outweighed by the burden and expense of production; requires him to respond on behalf of or review documents, information and files maintained by another entity; and violates the right to privacy. In his opposition, he only attempts to justify his objection on the ground of overbreadth. As to the undefended objections, they are overruled. (See Kirkland, supra, 95 Cal.App.4th at 98 [responding party must justify its objections].)

With respect to the overbreadth objection, Plaintiff argues RPD No. 53 is overbroad because it seeks e-mails between him and all e-mail addresses affiliated with Moore’s law firm when the motion to compel makes clear she only lacks access to e-mails sent from one employee’s e-mail whose account was deleted. This argument is misplaced.

Plaintiff appears to misconstrue the concept of overbreadth in discovery. In the discovery context, overbreadth necessarily relates to the subject of relevance. (Williams v. Superior Court (2017) 3 Cal.5th 531, 542.) A discovery request is overbroad if it encompasses irrelevant information but is not wholly irrelevant. For example, a request may be deemed overbroad as to subject matter, time, or geography. In contrast, Plaintiff’s overbreadth objection has nothing to do with whether RPD No. 53 seeks some irrelevant information. Rather, it is premised on his assertion that Moore is seeking more documents than she needs. This is not a proper application of the overbreadth objection.

Taken on its face, RPD No. 53 is not overbroad. Plaintiff alleges in his Complaint that Defendants failed to send him complete copies of fee and settlement agreements relating to the cases they filed for him. Moore states she is seeking production of the e-mails between her law firm and Plaintiff to see if he did, in fact, receive copies of the agreements he claimed not to have received. To that end, she is only seeking e-mails between Plaintiff’s e-mail account and any e-mail accounts associated with her law firm. This request does not encompass irrelevant information and is not overbroad as to subject matter, time or geography.

Accordingly, the overbreadth objection to RPD No. 53 is overruled.

D. Substantive Response

In addition, without waiving his objections, Plaintiff provided the following substantive response to RPD No. 53: “Responding Party has conducted a good faith, diligent search of materials, but he is unable to comply with the request because no responsive documents are within his possession, custody and/or control and/or Responding Party has already produced to Propounding Party all of the responsive non-privileged documents located following a good faith, diligent search of materials within his possession, custody and/or control to the extent any responsive documents exist.” (Inouye Decl., Exh. G.)

In substantively responding to an inspection demand, a party may agree to comply or represent he or she is unable to comply. (Code Civ. Proc., § 2031.210, subd. (a)(1)-(2).) If a party agrees to comply, he or she must state whether the production will be allowed in whole or in part and whether all demanded documents that are in the possession, custody, or control of that party will be included in the production. (Code Civ. Proc., § 2031.220.) If a party represents he or she is unable to comply, he or she must indicate a diligent search and reasonable inquiry was undertaken, state the reason the documents could not be located (e.g., not in possession, custody or control of responding party), and identify any individuals he or she believes might have the requested documents. (Code Civ. Proc., § 2031.230.)

Moore contends the response is evasive and incomplete but does not squarely explain how it is not code-compliant. Instead, she seems to focus on whether Plaintiff was truthful in his statement that the responsive documents are not within his control. According to Moore, Plaintiff clearly has control over the Yahoo e-mails because it is within his power to send Yahoo an authorization to release them. As such, her primary issue seems to be that she believes his representation of inability to comply is false.

The purported falsity of a representation of inability to comply is not a ground upon which a party can move to compel a further response to an inspection demand. (See Code Civ. Proc., § 2031.310, subd. (a).) That being said, the argument the response is evasive has merit.

Plaintiff’s response to RPD No. 53 does reflect internal inconsistency as Plaintiff both states he does not possess responsive documents and/or has already produced responsive documents to the extent that he had them. As such, it is not clear what his actual position is. Coupled with this is the fact that Plaintiff represents in his opposition he has since provided Moore with supplemental document production consisting of the e-mails that are the subject of RPD No. 53. He states that though he previously did not send the Yahoo Authorization because its language was overbroad and granted Moore access to information outside the scope of RPD No. 53, after the motion to compel was filed, he contacted Yahoo directly and was able to obtain and produce the e-mails sought. (Kharazi Decl., ¶¶ 6, 9.) This fact suggests that the response to RPD No. 53 in its current state does not reflect Plaintiff’s position relative to this request as it appears he has now attempted to comply.

For this reason, a further response to RPD No. 53 is warranted and the motion to compel is GRANTED. Plaintiff shall serve Moore with a verified code-compliant further response to RPD No. 53, without objections, within 20 calendar days of this Order.

III. Request for Sanctions

A. Plaintiff’s Request

Plaintiff requests monetary sanctions from Moore in the amount of $1,626.60. (Kharazi Decl., ¶¶ 13, 14.) As a threshold matter, his request is defective because he does not cite the statute pursuant to which he is seeking sanctions. (See Cal. Rules of Court, rule 3.1113(b) [memorandum must include statute relied on in support of position advanced].) Furthermore, Plaintiff was not successful in opposing the motion.

Accordingly, Plaintiff’s request for sanctions is DENIED.

B. Moore’s Request

Moore requests monetary sanctions from Plaintiff and his counsel in the amount of $1,460, representing five hours spent preparing the motion and two hours preparing the reply at an hourly rate of $200.00 along with the $60 filing fee. (Inouye Decl., ¶ 15.) His request is made pursuant to Code of Civil Procedure section 2031.310, subdivision (h), which provides that sanctions shall be imposed against any party who unsuccessfully makes or opposes a motion to compel further responses to inspection demands unless the party subject to sanctions acted with substantial justification or other circumstances would make imposing sanctions unjust.

Moore was successful in bringing this motion, Plaintiff did not act with substantial justification and there are no other circumstances that would make imposing sanctions unjust. Therefore, she is entitled to an award of sanctions. Though Plaintiff argues sanctions are not warranted because he was not aware Moore only needed e-mails from the deleted employee account until after the motion to compel was filed, the Court does not find this to be adequate ground for denying an award of sanctions.

Moore’s request for monetary sanctions is therefore GRANTED in the amount of $1,460 (7 hours x $200.00 + $60.00). Plaintiff shall pay this sanction to Moore’s counsel within 20 calendar days of this Order.