Beach Front Construction Company Inc et al vs Ply Gem Pacific Windows Corporation

Case Number

19CV01517

Case Type

Hearing Date / Time

Fri, 01/19/2024 - 10:00

Nature of Proceedings

Motion to Compel

Tentative Ruling

For the reasons set forth below: plaintiff’s motion to compel responses to request for production of documents attached to notice of taking deposition of Brad Myrick is denied.

Background:

On March 21, 2019, plaintiffs Beach Front Construction Company, Inc. (Beach Front), and Uptown Center, LLC (Uptown) (collectively, plaintiffs) filed their original complaint in this action against defendants Ply Gem Pacific Windows Corporation (Ply Gem) and Homer T. Hayward Lumber Co. (Hayward) alleging six causes of action: (1) breach of contract; (2) breach of express warranty; (3) breach of implied warranty of merchantability; (4) product liability— design defect; (5) product liability—manufacturing defect; and (6) negligent misrepresentation. (Complaint, ¶¶ 8, Prod. L-4, Prod. L-5, Prod. L-6 & Attachments BC-2, BC-2a.) As alleged in the complaint:

Ply Gem and Hayward (collectively, defendants) are, respectively, a commercial manufacturer and supplier of vinyl clad slider and casement windows at issue in this litigation (the windows). (Compl., ¶ Prod. L-1, Prod. L-4; Attachment BC-2a.) On March 23, 2016, plaintiffs purchased the windows from Hayward. (Compl., ¶¶ 7.g, BC-1; Attachment BC-2 & Exh. A.) The windows were installed at the Uptown Center Project (the project) owned by Uptown and located at 3328 Spring Street in Paso Robles, California (the property). (Comp., ¶ BC-1, Attachment BC-2 & Exh. A.)

Within several months of installation, plaintiffs noticed that the windows were leaking in numerous locations permitting water and moisture to enter and collect on the interior of residences and structures at the property. (Compl., Attachment BC-2a.) The water leaking caused the sills and surrounding framing and structures to rot, caused trim to fail and fall, caused warping, and caused the window glass to break. (Compl., Attachments BC-2 & BC-2a.) Ply Gem had received complaints for similar defects in their vinyl clad windows in 2014. (Compl., Attachment BC-2.) Though defendants represented that the windows were safe and reliable, defendants failed to inspect or test the windows in their anticipated environments before selling the windows to the public. (Compl., Attachments BC-2 & BC-2a.)

On July 12, 2019, Ply Gem filed its answer to plaintiffs’ complaint, generally denying its allegations and asserting sixty-five affirmative defenses. Also on July 12, 2019, Ply Gem filed a cross-complaint for indemnity and contribution against defendants fictitiously named as Roes 1 through 100.

In May 2023, Beach Front noticed the deposition of the person most qualified (PMK) of Ply Gem with requests for production of documents (RFP). (Mdinaradze Dec., ¶ 14 & Exh. A.) The notice includes 35 categories of documents to be produced.

On June 5, 2023, Ply Gem served its objections to the deposition notice and response to the RFP. (Mdinaradze Dec., ¶ 15 & Exh. 15.)

On June 19, 2023, Beach Front served an amended notice of deposition and RFP. (Mdinaradze Dec., ¶ 18 & Exh. A.)

Ply Gem produced Brad Myrick, Director of Engineering for Ply Gem, as the PMK and the deposition took place on June 22, 2023.

Beach Front now moves to compel responses to the RFP attached to the notice of taking deposition of Myrick and for monetary sanctions. Beach Front brings the motion pursuant to Code of Civil Procedure sections 2023.010, et seq. and 2031.310, et seq. (Notice of Motion, p. 2, ll. 3-7.)

Ply Gem opposes the motion on the following grounds: (1) Beach Front is not entitled to relief under Code of Civil Procedure section 2031.310; (2) The motion is not supported by admissible evidence; (3) The motion is vague and ambiguous; (4) Beach Front fails to establish good cause to compel further responses by failing to show relevance as well as specific facts; (5) Ply Gem has produced the non-privileged documents in its possession, custody, and control; (6) Ply Gem’s responses to the RFP at deposition were code-compliant; (7) Beach Front’s RFP is duplicative of previously propounded requests and Ply Gem has already produced documents responsive to those requests; and (8) Ply Gem did not withhold any documents based on attorney client privilege or work product.

Analysis:

“A trial court must be mindful of the Legislature’s preference for discovery over trial by surprise, must construe the facts before it liberally in favor of discovery, may not use its discretion to extend the limits on discovery beyond those authorized by the Legislature, and should prefer partial to outright denials of discovery.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 540.)

“Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property.” (Code Civ. Proc., § 2017.010.)

            Request for Production of Documents at Deposition

“A party desiring to take the oral deposition of any person shall give notice in writing. The deposition notice shall state all of the following, in at least 12-point type: . . . The specification with reasonable particularity of any materials or category of materials, including any electronically stored information, to be produced by the deponent.” (Code Civ. Proc., § 2025, subd. (a)(4).)

Code of Civil Procedure section 2025.450, subdivisions (a) & (b) provide:

“(a) If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent's attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.

“(b) A motion under subdivision (a) shall comply with both of the following:

“(1) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.

“(2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”

Beach Front’s entire motion is based upon the incorrect sections of the Code of Civil Procedure. The sections relied upon by Beach Front are applicable to RFPs that are made pursuant to Code of Civil Procedure section 2031.010, et seq. RFPs that are included in a notice of taking deposition are governed by the code sections quoted above. The requirements are not the same. Ply Gem had no obligation to file any written response to the deposition notice other than objections it wished to assert.

Because the motion is brought under the incorrect code section, and an incorrect argument is set forth by Beach Front, the motion will be denied.

Further, even if the motion had been brought under the correct code section, and proper argument presented, the motion would still fail for the reasons set forth below.

            Lack of Evidence and Failure to Establish Good Cause

Beach Front fails to present any evidence of what was, or was not, produced at deposition. To the extent that Beach Front would argue that the deposition transcript would show what is lacking, Beach Front did not comply with Code of Civil Procedure section 2025.480, subdivision (h) which requires: “Not less than five days prior to the hearing on this motion, the moving party shall lodge with the court a certified copy of any parts of the stenographic transcript of the deposition that are relevant to the motion. If a deposition is recorded by audio or video technology, the moving party is required to lodge a certified copy of a transcript of any parts of the deposition that are relevant to the motion.”

Without any evidence, or for that matter any representation of what Beach Front contends is being withheld, it is not possible to determine the scope of the motion and fashion an appropriate order.

Further, Beach Front merely attacks the objections made by Ply Gem, claims that responsive documents exist, and incorrectly argues that Ply Gem is required to respond pursuant to Code of Civil Procedure section 2031.210 et seq. Yet Beach Front does not even attempt to set forth specific facts showing good cause justifying the production of documents as required by Code of Civil Procedure section 2025.450, subdivision (b)(1). The requirement that the moving party show good cause for the production is the same under the incorrect code sections under which Beach Front brought their motion.

To establish good cause, the burden is on the moving party to make a “fact-specific showing of relevance.” (Glenfed Development Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117.) Plaintiff did not do so.

As such, even if the motion were brought under the correct code sections, it would be denied.           

            Sanctions

Beach Front seeks sanctions in the amount of $2,250 for bringing this motion. Ply Gem seeks sanctions in the amount of $6,500. Ply Gem argues that Beach Front did not meet and confer in good faith.

Code of Civil Procedure section 2023.030, subdivision (a) provides: “The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction 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.

The court finds that Beach Front’s motion was not brought in bad faith but is rather the result of a fundamental misunderstanding of the Code of Civil Procedure, and the imposition of sanctions would be unjust under the circumstances. No sanctions will be ordered against or in favor of either party.

            Protective Order Requested by Ply Gem

The court will decline to issue a protective order requested by Ply Gem, without prejudice. Should Ply Gem believe that a protective order is necessary it will be required to file a noticed motion seeking one.