MAJOR ONI VS SADIQ ESHAQ

Tentative Rulings

Case Number: 19STLC09014    Hearing Date: August 12, 2020    Dept: 26

Oni v. Eshaq, et al.

MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS, REQUEST FOR SANCTIONS

(CCP § 2031.310)

TENTATIVE RULING:

Plaintiff Major Oni’s Motion To Compel Further Responses To Requests For Production, Set Two; Request For Monetary Sanctions is GRANTED. DEFENDANT SADIQ ESHAQ IS ORDERED TO SERVE FURTHER RESPONSIVE DOCUMENTS TO THE REQUEST FOR PRODUCTION, SET TWO, NO. 4 WITHIN 20 DAYS’ NOTICE OF THIS ORDER.

SANCTIONS ARE AWARDED JOINTLY AND SEVERALLY AGAINST DEFENDANT SADIQ ESHAQ AND COUNSEL OF RECORD IN THE AMOUNT OF $1,860.00 AND ARE TO BE PAID TO PLAINTIFF’S COUNSEL WITHIN 30 DAYS’ NOTICE OF THIS ORDER.

ANALYSIS:

Plaintiff Major Oni (“Plaintiff”) filed the instant action for violation of wage and hours laws against Defendant Sadiq Eshaq (“Defendant”) on September 30, 2019. Plaintiff filed the instant Motion to Compel Further Responses to Request for Production of Documents and Request for Sanctions (“the Motion”) on April 27, 2020. Defendant filed an opposition on August 3, 2020 and Plaintiff replied on August 5, 2020.

Legal Standard

Code of Civil Procedure section 2031.310 provides that “[o]n receipt of a response to demand for inspection . . ., the demanding party may move for an order compelling further response if the demanding party deems that (1) [a] statement of compliance with the demand is incomplete; (2) [a] representation of inability to comply is inadequate, incomplete, or evasive; [or] (3) [a]n objection in the response is without merit or too general.” (Code Civ. Proc., § 2031.310, subd. (a).)

Notice of the motion must be given within 45 days of service of the verified response, otherwise, the propounding party waives any right to compel a further response. (Code Civ. Proc., § 2031.300, subd. (c).) The motion must also be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2030.310, subd. (b).)

Finally, Cal. Rules of Court, Rule 3.1345 requires that all motions for responses involving further discovery contain a separate statement with the text of each request, the response, and a statement of factual and legal reasons for compelling further responses. (Cal. Rules of Court, Rule 3.1345, subd. (a)(3)). A separate statement is not required “[w]hen a court has allowed the moving party to submit--in place of a separate statement--a concise outline of the discovery request and each response in dispute.” (Code Civ. Proc., § 2030.310, subd. (b)(3); Cal. Rules of Court, Rule 3.1345, subd. (b)(2).)

Discussion

The Motion complies with the procedural requirements. Defendant served initial responses to the Request for Production, Set Two on March 13, 2020. (Motion, Exh. B.) The instant Motion and notice of the same was timely filed and served less than 45 days later on April 27, 2020. The Motion is also supported by a meet and confer declaration demonstrating that counsel for Plaintiff and defense counsel exchanged numerous emails in an effort to resolve the dispute. (Id. at Exhs. D-O.)

Plaintiff moves to compel further responses and production of documents with respect to Request for Production of Documents, Set Two, No. 4. Pursuant to Code of Civil Procedure section 2031.210, subdivision (a), a response to a request for production must either be a statement of compliance by the production date, a statement that the party lacks the ability to comply, or a valid objection. (Code Civ. Proc., § 2030.210, subd. (a).) Here, Defendant initially responded that the documents sought “have never been in responding party’s possession, or have never existed.” (Motion, Exh. B.) As Plaintiff pointed out in the first meet and confer email, Defendant is obligated to explain whether the documents were never in his possession or whether the documents never existed. (Id. at Exh. C.) On March 13, 2020, Defense counsel agreed over email that amended responses had to be served. (Id. at Exh. E.) Despite Plaintiff’s counsel’s repeated attempts, Defendant never served amended responses. (Id. at Exhs. F-O.)

Plaintiff is entitled to an order compelling further responses to the Request for Production, Set Two within 20 days. (Code Civ. Proc., § 2031.310, subd. (a).) The Court is not persuaded by Defendant’s arguments in opposition to the Motion. Specifically, the fact that defense counsel was suspended from March 21, 2020 to May 4, 2020 does not excuse Defendant’s failure to serve proper responses. (See Opp., Kaplunovsky Decl., Exh. C.) Amended responses could have been provided in the week before the suspension began on May 21, 2020. Defense counsel could informed Plaintiff’s counsel that a suspension was impending or Defendant could have obtained new counsel. Defendant appears to argue that Plaintiff should be deprived of proper responses due to conduct solely attributable to Defendant and defense counsel. The burden to resolve the issues surrounding defense counsel’s suspension is not borne by Plaintiff or Plaintiff’s counsel.

Nor is there any evidence Plaintiff sought to take advantage of defense counsel’s suspension. The deadline to file a motion to compel further is statutory and jurisdictional. Plaintiff’s counsel made numerous attempts resolve this discovery dispute prior to the deadline to file the Motion. Finally, Defendant’s argument in opposition that his responses are adequate is disingenuous. Defense counsel already agreed, and correctly the Court may point out, that Defendant’s responses to Request for Production, Set Two, No. 4 was inadequate because it did not specify if the documents ever existed or were never in Defendant’s possession. The response must specify which of these two scenarios is true; merely parroting the statutory language is non-sensical and non-compliant.

Therefore, Plaintiff is also entitled to an award of sanctions, which are properly noticed. (Code Civ. Proc., § 2023.030, subd. (a).) Using a lodestar calculation, Plaintiff is awarded sanctions of $1,860.00 based on four hours of attorney time billed at $450.00 per hour, plus the $60.00 motion filing fee. (Motion, Kernan Decl., ¶18.)

Conclusion

Plaintiff Major Oni’s Motion To Compel Further Responses To Requests For Production, Set Two; Request For Monetary Sanctions is GRANTED. DEFENDANT SADIQ ESHAQ IS ORDERED TO SERVE FURTHER RESPONSIVE DOCUMENTS TO THE REQUEST FOR PRODUCTION, SET TWO, NO. 4 WITHIN 20 DAYS’ NOTICE OF THIS ORDER.

SANCTIONS ARE AWARDED JOINTLY AND SEVERALLY AGAINST DEFENDANT SADIQ ESHAQ AND COUNSEL OF RECORD IN THE AMOUNT OF $960.00 AND ARE TO BE PAID TO PLAINTIFF’S COUNSEL WITHIN 30 DAYS’ NOTICE OF THIS ORDER.

Moving party to give notice.