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TENTATIVE RULINGS – FAMILY LAW DEPT. 21
LAW AND MOTION CALENDAR
Friday, January 15, 2021 at 9:30 a.m.
COURTROOM #21 – Hon. Lawrence E. Ornell
(3055 Cleveland Avenue, Santa Rosa, CA)
PLEASE NOTE: In accordance with the Addendum to First Amended Omnibus Order of the Presiding Judge issued May 27, 2020, only those persons with court hearings in criminal actions shall enter a Sonoma County Superior Court facility. Until further notice, all matters set for hearing in this courtroom shall be heard remotely through Zoom. No party or representative of a party may appear personally in Courtroom 21. CourtCall is not permitted for this calendar.
TO JOIN “ZOOM” ONLINE,
D21 – Family Law – Law and Motion 9:30am Friday
TO JOIN “ZOOM” BY PHONE,
By Phone (same meeting ID and password as listed for each calendar):
Friday, January 15, 2021
Judge Lawrence E. Ornell
Petitioner’s May 18, 2020 Request No. 12 specifically asks for “Any and all quarterly and year-end financial statements, including but not limited to, Profit and Loss Statements and Balance Sheets, relating to any BUSINESS (partnership, corporation, limited liability company, sole proprietorship, etc.) in which you have or had any ownership interest for each calendar year beginning with January 1, 2011 and continuing through DATE OF PRODUCTION.” (See, Petitioner’s Sep. St. at 2:5-12; see also, Craig Dec. at Ex. A, No. 12.) In his verified response, Respondent stated in relevant part that “Respondent will comply with this demand in whole and is producing all documents in Respondent’s possession, custody, and control that are responsive to this request…Following a diligent search and reasonable inquiry, Respondent produces existing P&L during the period 2011 through date of production.” (Petitioner’s Sep. St. at 2:12-16.) Respondent did not assert any objections and did not contend he was unable to provide any or all of the documents. He simply agreed to produce them. Despite this agreement, Respondent failed to produce the requested documents and now argues that Petitioner is not entitled to them because Respondent has already produced his “business tax returns and bank statements” and therefore, Petitioner already “possesses the source documents and the summary of the information.” (Opp. at 1:22-23.) Thus, Respondent contends that the requested documents “do not contain any additional information, just the same information in another format.” (Id. at 23-34.)
However, a party responding to discovery cannot unilaterally determine that he need not produce specifically requested documents simply because he believes the “source” information or a “summary” of the information is contained in other documents already produced. In fact, the Code provides that the party responding to a request for documents can include: “(1) A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling pursuant to paragraph (2) of subdivision (c) of Section 2031.030 and any related activities[;] (2) A representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item[; or] (3) An objection to the particular demand for inspection, copying, testing, or sampling.” (Code Civ. Proc. §2031.210(a)(1)-(3).) The Code specifically provides that if a party responds with a statement that they will comply and “thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that party's statement of compliance, the demanding party may move for an order compelling compliance.” (Code Civ. Proc. §2031.320(a).) This appears to be exactly what occurred in this case. To the extent Respondent seeks to raise objections not asserted in his responses, those objections have been waived. (See, Scottsdale v. Superior Court (1997) 59 Cal.App.4th 263, 273-274 [failure to raise a particular objection in a timely initial response waives that objection.].) Accordingly, Petitioner’s motion is granted and Respondent must produce the requested documents.
Additionally, the Court notes that Respondent’s counsel’s September 30, 2020 meet and confer letter addresses some of Petitioner’s concerns about missing documents and states in part that certain documents “do not exist” and that this fact is “confirmed by Respondent’s verified statement that he produced all documents in his possession and the statements themselves.” However, the Code specifically provides that “[a] representation of inability to comply with the particular demand for inspection…shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand” and “shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party.” (Code Civ. Proc. §2031.230.) (emphasis added.) Thus, if Respondent is not producing responsive documents because the documents don’t exist, he must state as much in verified responses. (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636 [“Unsworn responses are tantamount to no responses at all.].)
Finally, with respect to sanctions, the Code states in part that “the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc. §2031.320(b); see also, Code Civ. Proc. §2031.310(h).) However, while sanctions are warranted for the costs and attorneys’ fees related to this motion, i.e., $2,695.00, Petitioner has not shown that the additional $10,033.34 in attorneys’ fees incurred “wading through [Respondent’s] haphazard document production” ($9,333.34) or “trying to gain access to [Respondent’s] documents” ($700) are permissible under the Code. Accordingly, Respondent is ordered to pay Petitioner $2,695 in sanctions.
Petitioner’s counsel shall submit a written order to the Court that is consistent with this tentative ruling and in compliance with Rule of Court 3.1312.
2. SFL-084949, Kinahan v. Donovan
TENTATIVE RULING: Counsel’s motion to withdraw as attorney of record is GRANTED. Counsel shall submit a written order to the Court that is consistent with this tentative ruling and in compliance with Rule of Court 3.1312.
*This is the end of these Tentative Rulings*