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1-2.      24CV07555, Stewart v. Fay Servicing, LLC

Defendant Fay Servicing, LLC (“Fay”) and U.S. Bank Trust National Association (“U.S. Bank”) (together as “Defendants”) move to compel Plaintiffs Kara Stewart and Christopher Stewart’s (“Plaintiffs”) compliance with Request for Production of Documents, Set One (“RFPDs”) and sanctions against Plaintiffs and their counsel. The motion is GRANTED pursuant to C.C.P. section 2031.320(a). Sanctions are GRANTED in the reduced amount of $907.50 pursuant to C.C.P. section 2031.320(b).

Plaintiffs are ORDERED to produce all responsive documents no later than five (5) days from notice of the Court’s order on this motion along with a code-compliant privilege log and a verified statement that all responsive documents have been produced to those requests for which they have responsive documents.

Monetary sanctions in the reduced amount of $907.50 are ORDERED in favor of Defendant Fay and against Plaintiffs and their counsel, jointly and severally, and payable no later than 30 days from notice of the order on this motion.

       I.            Procedural History

On January 2, 2026, Fay propounded RFPDs, Set One on Plaintiffs via email. (Tom Decls., ¶ 5.) Plaintiffs served responses electronically to the RFPDs on February 24, 2026, which included objections but also responded that they would produce responsive documents. (Tom Decls., ¶ 6 and Exhibit 2.) Having not received any responsive documents, Fay’s counsel requested Plaintiffs’ counsel to provide the document production on February 26, 2026, and March 3, 2026. (Tom Decls., ¶ 7, Exhibit 3.) On March 4, 2026, Plaintiffs’ counsel responded that they were working on production but still did not produce any documents. (Tom Decls., ¶ 7, Exhibit 3.) After meet and confer between counsel, Fay gave Plaintiffs until April 13, 2026, to produce further documents and Plaintiffs never responded. (Tom Decls., ¶¶ 8–10.) Fay moves to compel Plaintiffs to produce all responsive documents and a privilege log.

On April 28, 2026, the Court included the parties in its Discovery Facilitator Program and appointed Michael Brook on May 5, 2026, as the Discovery Facilitator for Fay’s motions. (See Notice and Order of Appointment of Discovery Facilitator, filed May 5, 2026.) The Facilitator stated that on May 7, 2026, Plaintiffs served an amended written response (with documents identified by Bates number) and amended the responses to RFPD Nos. 17, 20, 22, 23, 24, 25, 26, 27, 32, and 33. These amended responses rephrased previously asserted objections and omitted the previously promised relevant documents. Plaintiffs did produce some responsive documents, but unilaterally redacted certain documents and reduced the time period for certain requests. During the facilitation, the parties discussed a stipulation for a protective order related to financial information, but this was not resolved. Overall, the Facilitator recommends that Plaintiffs should be compelled to produce all responsive documents subject to a protective order relating to financial information and Plaintiffs should be compelled to provide an amended response that all responsive documents have been produced to those requests for which they have responsive documents. (See Discovery Facilitator’s Report, filed  July 24, 2026.)

While Plaintiffs participated in the discovery facilitation process with Mr. Brook, they have failed to oppose the instant motion to compel. On July 24, 2026, Fay filed a notice of non-opposition, asking the Court to compel Plaintiff to fully comply with their initial responses to RFPDs, Set One, and produce all documents and an award of monetary sanctions jointly and severally against Plaintiffs and their counsel of record for at least $1,425.00.

    II.            Governing Law

A party to whom a document demand is directed must respond to each item in the demand with an agreement to comply, a representation of inability to comply, or an objection. (C.C.P. §2031.210(a).)  If a responding party is not able to comply with a particular request, or part thereof, that party “shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand.” (C.C.P. § 2031.230.)  The statement must 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” and set forth “the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.” (Ibid.) Otherwise, if a responding party is objecting to a demand only, then the responding party must identify the demanded document, tangible thing, land, or electronically stored information to which an objection is being made, set forth the grounds for objection, and if privileged, provide a privilege log for the demanded items that are privileged. (C.C.P. § 2031.240.) If a responding party fails to produce documents in accordance with that party’s statement of compliance, the demanding party may move for an order compelling compliance and the court shall impose a monetary sanction against any person who unsuccessfully makes or opposes a motion to compel compliance with a demand unless the court finds the party subject to sanction acted with substantial justification. (C.C.P. §§ 2031.320, subds. (a) and (b).)

 III.            Analysis

A.    Plaintiffs Shall Produce All Responsive Documents

As highlighted by the Discovery Facilitator, the Court is unaware of a provision in the Discovery Act that authorizes a party’s unilateral amendments to RFPDs. By failing to respond to the instant motion to compel, Plaintiffs have failed to explain to the Court the basis for their May 7th amended responses, such as a mistake of fact. While the Court does not have a copy of Plaintiffs’ May 7th responses that omits the phrase that Plaintiffs’ “will produce all relevant and non-privileged documents” to certain RPFDs, this statement was originally included in all 34 of Plaintiffs’ February 24th verified responses to RFPDs, Set One. (Toms Decls., Exhibit 1.) The February 24th responses are the responses in front of the Court and Plaintiffs have failed to comply with the document production. Any unilateral amendment to RFPD responses to exclude production is highly prejudicial to Fay. Furthermore, by failing to respond to the instant motion, the Court is unaware of what documents have been produced and which RFPDs such documents may be responsive to. The Court finds that Plaintiffs have not complied with their February 24th responses to RFPDs, Set One to produce all relevant and non-privileged documents. The motion to compel Plaintiffs’ compliance with their February 24th responses to RFPDs, Set One is GRANTED.

While certain RFPDs request financial information, there is no protective order or motion for a protective order currently in front of the Court or in the docket for this case. Therefore, Plaintiffs are ORDERED to produce all responsive documents within five (5) days of the Court’s order on this motion along with a code-compliant privilege log and a verified statement that all responsive documents have been produced to those requests for which they have responsive documents.

B.     Fay is Entitled to Sanctions

Fay is entitled to sanctions pursuant to C.C.P. section 2031.320(b). Counsel Toms requests $1,365.00 in attorney’s fees for 2.6 hours of work (0.6 hours researching and preparing the motion, 0.5 hours review of opposition, 1 hour drafting the reply, and 0.5 hours preparing for and attending the hearing at $525 per hour) and the $60 filing fee. (Toms Decls., ¶ 4.) The Court finds that counsel’s rate is reasonable based on her experience but that the hours requested are not. Notably, no opposition was filed and the hearing on this motion has not yet occurred, so these are not actual costs. (See Kwan Software Engineering, Inc. v. Hennings (2020) 58 Cal.App.5th 57, 74; Argaman v. Ratan (1999) 73 Cal.App.4th 1173, 1181 [costs must be both actual and reasonable].) Counsel did not file a reply considering no opposition being filed but instead filed a notice of Plaintiffs’ non-opposition consisting of two short paragraphs. Furthermore, while the motions to compel were filed separately, the language in each motion and the accompanying declarations are identical. Thus, the Court will award counsel’s fees for a total of 1.5 hours of work for both motions at $525 per hour plus $120 for the filing fee for both motions, totaling $907.50.

 IV.            Conclusion

The motion is GRANTED pursuant to C.C.P. section 2031.320(a).

Plaintiffs are ORDERED to produce all responsive documents no later than five (5) days from notice of the Court’s order on this motion along with a code-compliant privilege log and a verified statement that all responsive documents have been produced to those requests for which they have responsive documents.

Monetary sanctions in the reduced amount of $907.50 are ORDERED in favor of Defendant Fay and against Plaintiffs and their counsel, jointly and severally, and payable no later than 30 days from notice of the order on this motion.

Fay’s counsel shall submit a written order on its motion to the Court consistent with this tentative ruling and in compliance with Rule of Court 3.1312(a) and (b).

**This is the end of the Tentative Rulings.***