Caron Vranish vs Raytheon Company

Case Number

20CV00645

Case Type

Hearing Date / Time

Fri, 01/12/2024 - 10:00

Nature of Proceedings

Motion Compel; Motion for Issue, Evidence and/or Terminating Sanctions, etc.

Tentative Ruling

(1)       As set forth herein, the motion of plaintiff Caron Vranish for issue or other sanctions is granted in part and the court makes the findings discussed herein that defendant Raytheon Company has willfully disobeyed the court’s orders to produce all documents responsive to requests for production Nos. 104 and 105, and that such disobedience has had the effect of suppressing discoverable evidence. These findings will be considered by the court in determining appropriate jury instructions and in ruling on appropriate motions in limine at the time of trial. The court additionally grants monetary sanctions in favor of plaintiff Vranish and against defendant Raytheon and its counsel, Gordon Rees Scully Mansukhani, LLP, jointly and severally, in the amount of $12,410.00, to be paid to counsel for plaintiff on or before February 13, 2024. In all other respects, the motion is denied, including Raytheon’s request for an award of sanctions.

(2)       For the reasons set forth herein , the motion of plaintiff Vranish to compel further responses to request for production of documents, set five, is denied without prejudice. All parties’ requests for awards of sanctions are denied.

Background:

Plaintiff Caron Vranish asserts in her second amended complaint causes of action against defendant Raytheon Company (Raytheon) for violation of the California Fair Housing and Employment Act (FEHA) (Gov. Code, § 12900 et seq.) and other statutes, alleging, among other things, that she was not paid as much as other comparable employees on account of her age and gender.

On July 29, 2021, Vranish served on Raytheon plaintiff’s requests for production of documents, set two (RFP2). (Secrest decl. re Issue Sanctions, ¶ 5 & exhibit A.)

On November 17, 2021, Vranish timely filed a motion to compel further responses to the RFP2 and for an award of monetary sanctions. (Secrest decl. re Issue Sanctions, ¶ 7.) On February 25, 2022, the court granted plaintiff’s motion to compel, ordering further responses and production of documents. The court also awarded monetary sanctions against Raytheon.

On July 7, 2022, Vranish filed plaintiffs’ first motion for issue, evidence, or terminating sanctions for failure to comply with the February 25, 2022, order. (Secrest decl. re Issue Sanctions, ¶ 15.) The court granted the motion in part on September 16, 2022, again ordering further responses and production of documents.

On November 2, 2023, Vranish filed her second motion for issue, evidence, or terminating sanctions for failure to comply with the February 15, 2022, and September 16, 2022, orders (Issue Sanctions Motion). The motion is opposed by Raytheon.

On November 8, 2023, Vranish served her requests for production of documents, set five (RFP5), on Raytheon. (Secrest decl. re Motion to Compel, dated Dec. 19, 2023, ¶ 2 & exhibit A.)

On December 8, 2023, the court heard several motions, including the Issue Sanctions Motion. As elaborated below, the court continued the hearing on this motion to allow the parties to file supplemental briefing. The parties have filed supplemental briefs and declarations.

On December 12, 2023, Raytheon served its responses to the RFP5. (Secrest decl. re MTC, ¶ 3 & exhibit B.) On December 18, 2023, counsel for Vranish, attorney David S. Secrest, sent a letter to counsel for Raytheon asserting deficiencies in the responses and requesting a telephone call immediately. (Id. at ¶ 4 & exhibit C.) Counsel had a telephone conversation on December 18, which led to an email exchange between counsel. (Id. at ¶¶ 6, 7 & exhibit D.) In that email exchange, counsel for Raytheon stated that it would supplement its responses by January 5, an earlier response being complicated by Raytheon’s holiday shut-down and holiday schedules. (Id. at exhibit D.) Secrest responded that the only available hearing date prior to trial was January 12 and that he needed to file a motion to compel by December 19. (Ibid.) No reply to this email response was received. (Id. at ¶ 11.)

On December 19, 2023, Vranish filed this motion to compel further responses to the RFP5 (MTC). The motion is opposed both procedurally and substantively by Raytheon.

Analysis:

(1)       Vranish Motion for Issue and Other Sanctions

            (A)       Prior Orders and Tentative Ruling

For continuity, the court repeats its tentative ruling on this motion from the December 8, 2023, hearing (without quotation marks):

The two RFP2 requests at issue in this motion are RFP2 Nos. 104 and 105.

RFP2 No. 104 is: “All DOCUMENTS reflecting or consisting of complaints about workplace behavior of RVS GM Michael Norman by other RAYTHEON employees (other than Plaintiff), from April 2020 to the present date, including all DOCUMENTS reflecting the response, if any, by RAYTHEON, such as investigative materials, emails, reports, notes, interviews, investigatory conclusions, and all COMMUNICATIONS about such complaints and responses.”

The original response to RFP2 No. 104 is: “Responding Party objects to this request on the ground that it is overly broad as to time and scope. Responding Party objects to this request on the grounds it is vague and ambiguous, as well as compound. Responding Party objects to this request on the grounds that it is unduly burdensome and harassing. Responding Party objects to this request to the extent it seeks information neither relevant to the claims or defenses on file in the present action, nor admissible, nor reasonably calculated to lead to the discovery of admissible evidence. Responding Party objects to this request to the extent it seeks information which constitutes trade secrets, proprietary, or other confidential commercial information. Responding Party further objects to this request to the extent that it seeks information and/or documents that are protected by the attorney-client privilege, the work-product doctrine, and/or other applicable privileges. Responding Party further objects to the request to the extent it seeks to violate third parties’ right to privacy.”

RFP2 No. 105 is: “All DOCUMENTS reflecting or consisting of COMMUNICATIONS and notes reflecting complaints about workplace behavior of RVS GM Michael Norman from April 2020 to the present date, including, but not limited to, COMMUNICATIONS by and between RTX President Roy Azevedo, ISRS VP Barbara Borgonovi, Ethics and RAYTHEON HR representatives.”

The original response to RFP2 No. 105 is identical to the response to RFP2 No. 104.

In its February 25, 2022, order, the court overruled Raytheon’s objections to RFP2 Nos. 104 and 105 except as to privilege. (Minute Order, filed Feb. 25, 2022, at pp. 7-8.) The court made orders including:

“(1)      For the reasons set forth herein, the motion of plaintiff Caron Vranish to compel further responses to plaintiff’s request for production of documents, set two, is granted in part and denied in part. Subject to the exceptions and qualifications set forth herein, the motion is granted to require defendant Raytheon Company to serve further verified responses, without objection except as to privilege, on or before March 14, 2022, to request Nos. 96 through 105. To the extent that defendant asserts an objection on the grounds of privilege, defendant shall also serve a privilege log identifying each responsive document withheld on the ground of privilege and the request(s) for which the document is responsive, and providing sufficient additional information for the court to evaluate the claim of privilege. …

(2)       On or before March 14, 2022, defendant Raytheon shall provide notice to each of the individuals identified in request Nos. 97, 99, and 101 through 105 including: (1) a copy of plaintiff’s RFP; (2) a copy of the stipulated protective order; (3) an identification of the documents to be produced to plaintiff (also identifying any permissible redactions); and (4) a statement that the documents will be produced to plaintiff on April 1, 2022, unless prior to that date the employee files and serves a motion for a protective order seeking to prevent disclosure of specific documents. Defendant shall concurrently serve on plaintiff a declaration from a person with personal knowledge stating that this notice with all required items was timely provided.

(3)       Except as to any documents that are the subject of a timely-filed protective order or are identified as withheld on the grounds of privilege in the defendant’s privilege log, defendant Raytheon shall produce all responsive documents to request Nos. 96 through 105 on April 1, 2022.

(4) The request of plaintiff for an award of monetary sanctions is granted in favor of plaintiff Caron Vranish and against defendant Raytheon Company and its counsel, Gordon Rees Scully Mansukhani, LLP, jointly and severally, in the amount of $5,280.00, to be paid to counsel for plaintiff on or before March 14, 2022. The request of defendant for an award of monetary sanctions is denied.” (Minute Order, filed Feb. 25, 2022, at pp. 1-2.)

On March 14, 2022, Raytheon served its further response to the RFP2.

The further response to RFP2 No. 104 is: “Responding Party objects to this request on the ground that it is overly broad as to time and scope. Responding Party objects to this request on the grounds it is vague and ambiguous, as well as compound. Responding Party objects to this request on the grounds that it is unduly burdensome and harassing. Responding Party objects to this request to the extent it seeks information neither relevant to the claims or defenses on file in the present action, nor admissible, nor reasonably calculated to lead to the discovery of admissible evidence. Responding Party objects to this request to the extent it seeks information which constitutes trade secrets, proprietary, or other confidential commercial information. Responding Party further objects to this request to the extent that it seeks information and/or documents that are protected by the attorney-client privilege, the work-product doctrine, and/or other applicable privileges. Responding Party further objects to the request to the extent that it seeks to violate third parties’ right to privacy. Subject to and without waiving the foregoing objections, Responding Party responds as follows: Responding Party will produce all documents responsive to this request that is within its possession, custody, or control. No privileged documents have been withheld but Responding Party asserts and includes this objection in order to reserve its rights. Discovery and investigation continue.”

The further response to RFP2 No. 105 is identical to the further response to RFP2 No. 104.

In its September 16, 2022, order, the court ruled:

“Plaintiff’s motion is granted in part. Raytheon Company shall serve verified further responses to plaintiff’s request for production nos. 97, 99, 101, 102, 103, 104, and 105, without objections except as to privilege, on or before September 28, 2022, in full compliance with this ruling. To the extent Raytheon has withheld production of any document based on any improperly asserted objections, it shall produce any such document to plaintiff on or before September 28, 2022. In addition, the Court awards sanctions in favor of plaintiff against Raytheon in the amount of $5,910, payable to plaintiff’s counsel. Payment of sanctions is due by October 16, 2022.”

The court explained in its tentative ruling (adopted by reference in its Minute Order):

“In its opposition, Raytheon addresses its further production of documents but does not address the objections asserted in the further responses, or explain why it included objections in its further responses despite the court’s ruling as stated in the Minute Order. [Citation.] Raytheon therefore has not shown that it acted with substantial justification in asserting objections other than those based on privilege. [Citation.] With the exception of objections based on privilege, the court finds that Raytheon’s assertion of objections in its further responses to RFP Nos. 97, 99, 101, 102, 103, 104, and 105 violates the Minute Order. Raytheon’s violation of the court’s Minute Order warrants the imposition of sanctions, among other things, as further discussed below.” (Secrest decl. re Issue Sanctions, exhibit G, pp. 91-92.)

The court further noted that Vranish had presented evidence that responsive documents had not been produced notwithstanding the representation in the further response that all responsive documents would be produced. (Secrest decl. re Issue Sanctions, exhibit G, pp. 92-93.) The court concluded:

“Based on available information, the court cannot definitively determine whether Raytheon has withheld any documents based on improper objections, or whether Raytheon cannot comply with a request because a particular item or category does not or has never existed. The court will, therefore, order Raytheon to serve verified further responses as further discussed below to clarify and resolve any remaining issues regarding Raytheon’s further responses and production of documents. The court will also order Raytheon to produce any documents it has withheld based on any improperly asserted objection.” (Secrest decl. re Issue Sanctions, exhibit G, p. 93.)

In response to the September 16, 2022, order, Raytheon served a second further response to the RFP2 on September 28.

The second further response to RFP2 No. 104 is: “Responding Party has produced all documents responsive to this request within Responding Party’s possession, custody, or control.” The second further response to RFP2 No. 105 is identical.

According to Vranish, in the course of conducting discovery, plaintiff has acquired evidence from an independent source of emails in possession of defendants’ agents and managers responsive to RFP Nos. 104 and 105 that were not produced by Raytheon. (Secrest decl. re Issue Sanctions, ¶¶ 19-20.) In particular, Vranish points to email chains between October 12 and November 8, 2021, including Borgonovi discussing, among other things, issues with Michael Norman (the Kelly Email). (Vranish decl., ¶¶ 2-3 & exhibit A.) This email appears as responsive to RFP Nos. 104 and 105.

In opposition to the motion (which opposition does not have the required tables), Raytheon argues that it produced a number of emails and “[i]f Raytheon’s stringent search did not uncover one October 12, 2021, email from Ms. Kelly to Ms. Borgonovi, it was certainly not willful.” (Opposition, at p. 7.) Raytheon further argues that the issue or evidence sanctions sought in the motion are disproportionate to the claimed failure by Raytheon, and thus would improperly punish Raytheon and provide an evidentiary windfall to Vranish. The opposition is supported by the declaration of Raytheon counsel, attorney Erika L. Shao, which discusses the meet and confer discussions and time spent in opposing this motion. No evidence is presented as to the nature of the search for responsive documents.

In a further supplemental declaration of counsel for Vranish, attorney David S. Secrest, filed on December 1, 2023, Secrest discusses and attaches testimony of Borgonovi at her deposition on November 15, 2023. In deposition testimony, Borgonovi testified that she provided documents to counsel in response to a request and, although she does not recall specifically the Kelly Email, that it is probable that the Kelly Email was collected either off of her device or from her. (Borgonovi depo., at pp. 44-45.)

Because of the late filing of the further supplemental declaration, Raytheon has not had the opportunity to respond to this evidence. The court is troubled by the implications of Borgonovi’s testimony. Borgonovi testifies that she recognized the Kelly Email, that the Kelly Email was probably obtained from her in the course of gathering documents in response to this litigation, and that in a general sense Borgonovi recognized the subject matter of the Kelly Email (so as to make the Kelly Email responsive to the RFP2). In written verified responses to the RFP2, Raytheon confirmed that no responsive documents were withheld from production, on the grounds of privilege or otherwise. There is therefore no explanation as to why the Kelly Email was not produced. There are numerous negative inferences that the court could draw from Raytheon’s failures first to produce the Kelly Email and then to explain why it was not produced after the court’s two orders. Raytheon should be provided with the opportunity to respond to this evidence before the court reaches a conclusion.

At the same time, the court is also concerned about the scope of the issue or evidence sanctions requested by Vranish. When the court has the benefit of a full discussion of the evidence, the court may conclude that it is appropriate to draw inferences upon which the granting of issue or evidence sanctions may be appropriate.

“The penalty should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery. Where a motion to compel has previously been granted, the sanction should not operate in such a fashion as to put the prevailing party in a better position than he would have had if he had obtained the discovery sought and it had been completely favorable to his cause.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793.)

A non-monetary sanction, if awarded, would not be to punish Raytheon, but to address the failure of Raytheon to make discovery as twice ordered by the court. One of the negative inferences that the court could draw is that there exist other responsive documents, including emails, that have not been produced in apparent disobedience to the court’s orders. It does not appear to the court, however, that the prejudice from the absence of further responsive documents to RFP2 Nos. 104 and 105 reach as broadly as the requested issue or evidence sanctions. The court requests further discussion from the parties of how issue or evidence sanctions, if awarded, could be more narrowly tailored so as to address the specific evidentiary gap asserted by Vranish from the disobedience to the court’s orders.

(End of quotation from the December 8, 2023, order.)

            (B)       Sanctions

In response to the court’s request for supplemental briefing, both parties have submitted additional briefs and declarations.

In its initial supplemental brief, Raytheon argues that Vranish has misrepresented Borgonovi’s deposition testimony by Vranish’s assertion that Borgonovi provided the Kelly Email to counsel and that Borgonovi agreed that the Kelly Email reflected complaints about the workplace behavior of Norman. Raytheon points out that Borgonovi testified that she did not know if she had actually produced the Kelly Email and that Borgonovi testified that the emails “raises concerns” about Norman. Neither of these points effectively address the points identified by the court in the December 8 order. In that order, the court summarized Borgonovi’s testimony about the Kelly Email, including the absence of the testimony of actual knowledge. The difference between “raises concerns” and “reflecting … complaints about workplace behavior” is a semantic distinction without a difference here. The court in its December 8 order determined that Kelly Email appeared as responsive to the RFPs here at issue, a point that had been raised by Vranish with Raytheon. (See Secrest decl. re Issue Sanctions, dated Nov. 2, 2023, ¶ 13 & exhibit F.) The court finds nothing in Raytheon’s supplemental papers to vary from the court’s initial impressions of the testimony and the fact of the failure to produce responsive documents.

“ ‘Only two facts are absolutely prerequisite to imposition of the sanction: (1) there must be a failure to comply ... and (2) the failure must be wilful....’ [Citation.]” (R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 496.) The court finds that Raytheon has failed to comply with the court’s prior orders to produce all documents responsive to RFP Nos. 104 and 105.

With respect to the issue of willfulness, the court has recognized that a reasonable inquiry and diligent search (see Code Civ. Proc., § 2031.230) may not discover all responsive documents, particular ESI, and thus the failure to produce all responsive documents may not be the result of any intentional disobedience to court orders to produce. In requesting further briefing, the court noted that no evidence was presented as to the nature of the search conducted to discover responsive documents. In responding to this issue, counsel for Raytheon, attorney Erika L. Shao, declares that plaintiff did not provide any ESI proposals, search terms, or ESI custodians. (Shao supp. decl., dated Dec. 20, 2023, ¶ 3.) (Note: The court overrules plaintiff’s objection No. 1 as to paragraph 3 of that declaration.) Shao explains the search as follows:

“It is my understanding that when searching for documents responsive to RFP Nos. 104 and 105, Raytheon ran a diligent search and reasonable inquiry pursuant to its obligations set forth in CCP §2031.230, by searching Raytheon’s Ethics Department database for any complaints and investigations into Michael Norman’s workplace behavior. Any and all investigations related to any complaints about Mr. Norman or about any employee would have been handled by the Ethics Department. All documents found in the Ethics database, including investigations, emails, etc. related to any complaints about Mr. Norman, that were responsive to RFP Nos. 104 and 105 were produced to Plaintiff, including emails to Ms. Borgonovi, and Plaintiff’s own email to Ms. Borgonovi reflecting her complaint about Mr. Norman. Raytheon also naturally searched the emails of Brian Vander May, the Human Resources contact for RVS. Mr. Norman and Plaintiff both worked for RVS and thus, any complaints would be sent to Mr. Vander May. All of Mr. Vander May’s emails related to complaints about Mr. Norman’s purported workplace behavior were also produced to Plaintiff. Aaron Holzer is not the HR contact for RVS, but was Ms. Borgonovi’s HR lead and thus all emails he had regarding his involvement in working with Ms. Borgonovi in connection with Mr. Norman, have been produced.” (Shao supp. decl., dated Dec. 20, 2023, ¶ 4.)

This declaration testimony is fine insofar as it expresses counsel’s understanding, but is hearsay and without personal knowledge as to the underlying facts of the search. (Note: Accordingly, the court sustains plaintiff’s evidentiary objections to paragraph 4 of this declaration as to the truth of the underlying facts stated.) Because the statement is limited to counsel’s understanding, it is clear that counsel neither conducted nor directed the search. The court is therefore left with the question of whether the second-hand information sufficiently demonstrates that a reasonable and diligent search was conducted. In response, plaintiff Vranish provides a declaration disputing whether the underlying assertions are true. The court need not resolve that dispute (or consider the factual assertions of Vranish). Raytheon’s explanation provides a sufficient basis, together with the admissible evidence presented, to resolve the present issue.

The court concludes and finds from the admissible evidence presented by the parties and from the absence of evidence from those with personal knowledge of the search (see Evid. Code, § 412 [“If weaker and less satisfactory evidence is offered when it was within the power of the party to produce stronger and more satisfactory evidence, the evidence offered should be viewed with distrust.”]), that Raytheon has willfully disobeyed the court’s orders to produce all documents responsive to RFP Nos. 104 and 105. It is apparent that Raytheon has taken a deliberately narrow approach to searching for responsive documents. A reasonable inference is that Raytheon has taken this deliberately narrow approach so as to unreasonably and improperly narrow the universe of documents produced as responsive to the RFPs. There is therefore reason to believe that had a reasonable inquiry and a diligent search been undertaken, additional responsive documents would have been discovered and produced. Raytheon’s deliberate approach is neither consistent with Raytheon’s obligations under the Civil Discovery Act nor consistent with the court’s orders to produce all responsive documents. Raytheon’s persistence in failing to conduct a reasonable inquiry and diligent search has had the effect of suppressing discoverable evidence.

With respect to the appropriate sanction for this disobedience, the court notes that this finding of willful disobedience of a court order so as to suppress evidence is a sufficient finding to support giving CACI No. 204 (“You may consider whether one party intentionally concealed or destroyed evidence. If you decide that a party did so, you may decide that the evidence would have been unfavorable to that party.”) as a jury instruction. (See Evid. Code, § 413; Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1051.) Evidence of suppression of evidence is sufficient for this instruction; it is not necessary to show that evidence was destroyed. The giving of this instruction provides a basis for the jury to determine the relative evidentiary significance of Raytheon’s failure to conduct a reasonable and diligent search in response to discovery requests and court orders.

Raytheon argues in its supplemental reply that because the notice of the Issue Sanctions Motion did not include CACI No. 204 as a requested sanction, that sanction is not available. In particular, Raytheon argues that its due process rights would be violated by the absence of this notice. While Vranish did not specifically request CACI No. 204 as a sanction, the issue and evidence sanctions requested are all premised upon a factual finding that Raytheon willfully violated court orders to produce all responsive documents to the RFPs. Raytheon has substantively opposed the court making this finding. The court’s making of that factual finding here is entirely within the scope of the requested relief. By the giving of CACI No. 204, the jury may weigh the evidentiary significance of Raytheon’s failure to make discovery and may, or may not, conclude that evidentiary significance has the ultimate effect of one or more of the requested issue or evidentiary sanctions.

In any case, the court has not determined jury instructions at this point and only finds that this discovery abuse forms a sufficient factual premise for the giving of CACI No. 204. CACI No. 204 may or may not need to be modified when jury instructions are finalized, and the court will consider arguments specific to CACI No. 204 at that time. (Thus, the court does not now consider the emails or other documents raised by Vranish in supplemental papers not otherwise discussed in this ruling.) Similarly, this factual finding may be a sufficient foundation for the granting of a motion in limine to preclude the introduction of specific evidence that was not, but should have, been produced pursuant to the court’s discovery orders. The court does not make any such orders at this time and will determine what orders, if any, are appropriate based upon the specific evidence at issue in any such future motion and the arguments and evidence of the parties presented at that time.

Monetary sanctions may be awarded in addition to non-monetary sanctions. (Code Civ. Proc., §§ 2031.310, subd. (i), 2031.320, subd. (c).) In plaintiff’s initial motion, plaintiff sought monetary sanctions for this motion in the amount of $11,435.00. (Secrest decl., dated Nov. 2, 2023, ¶¶ 34-36.) In reply supplemental papers, plaintiff requests an additional $14,950.00. (Secrest decl., dated Jan. 4, 2024, ¶¶ 21-26.) After considering all of the evidence and arguments of the parties, the court finds that 19 hours of attorney time to be reasonable for this motion under all of the circumstances, including the expected time for appearance at this hearing. At the reasonable hourly rate of $650, the total monetary sanction as compensation for reasonable attorney time spent on this motion is $12,350.00. With a $60 filing fee as added costs, the total monetary sanction to be awarded is $12,410.00.

The court has considered Raytheon’s argument as to the manner in which the Kelly Email was acquired. The court does not find that argument to be a basis for refusing or mitigating any of the rulings herein. Insofar as the evidence before the court is insufficient for the court to make any affirmative findings, this ruling is without prejudice to any motion by which any party seeks otherwise procedurally appropriate affirmative protective or other orders from the court.

(2)       Vranish Motion to Compel

Vranish additionally moves to compel further responses to RFP5.

“On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply:

“(1)      A statement of compliance with the demand is incomplete.

“(2)      A representation of inability to comply is inadequate, incomplete, or evasive.

“(3)      An objection in the response is without merit or too general.” (Code Civ. Proc., § 2031.310, subd. (a).)

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

“(1)      The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand.

“(2)      The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2031.310, subd. (b).)

Raytheon makes a number of procedural objections to this motion, including that service was two days late because it failed to account for the non-personal service extension of time, that Vranish has failed to meaningfully meet and confer, and that Vranish failed to set forth the specific facts showing good cause.

“[A]bsent a claim of privilege or attorney work product, the party who seeks to compel production has met his burden of showing good cause simply by a fact-specific showing of relevance.” (Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.) As an influential treatise explains: “Declarations are generally used to show the requisite ‘good cause’ for an order to compel inspection. The declarations must contain ‘specific facts’ rather than mere conclusions.” (Edmon & Karnow, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2023) ¶ 8:1495.7.)

The statutory requirement of section 2031.310, subdivision (b)(1) is that the motion sets forth the specific facts showing good cause. The memorandum in support of the motion states that the specific facts are set forth in the separate statement required by California Rules of Court, rule 3.1345 that was filed concurrently with the motion. (Motion, at p. 5.) The separate statement does not contain a fact-specific showing of relevance. The section following each request under “Reasons to Compel Further Response” discusses Vranish’s assertions regarding the insufficiency of the objections and the response, but does not discuss the relevance of the request apart from a conclusory statement that the documents are relevant. Vranish attempts to remedy this omission, and tacitly admits the failure to provide the required information earlier, in its reply. (Reply, at pp. 3-9.)

As section 2031.310, subdivision (b)(1) states, the “motion” must include the required statement of good cause. “Notices must be in writing, and the notice of a motion, other than for a new trial, must state when, and the grounds upon which it will be made, and the papers, if any, upon which it is to be based. If any such paper has not previously been served upon the party to be notified and was not filed by him, a copy of such paper must accompany the notice.” (Code Civ. Proc., § 1010.) This motion thus failed to comply with section 2031.310 at least until the reply was filed on January 8, 2024, four court days prior to this hearing. (Note: Raytheon additionally objects to the reply as served untimely on Saturday, January 6.)

“ ‘The general rule of motion practice ... is that new evidence is not permitted with reply papers.’ [Citation] Strictly speaking, Attorneys’ reply presented new argument rather than new evidence. But the principle explained in [Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537]—which is based upon the unfairness to the opponent of not being able to address the new matter raised in a reply [citation]—applies here, particularly where the circumstances giving rise to the argument (i.e., an asserted pleading defect) were known to Attorneys when their … motion was filed.”

(Maleti v. Wickers (2022) 82 Cal.App.5th 181, 227–228.)

The motion is either untimely filed and served by the failure to include all statutory requisites until the January 8 filing (see also Weinstein v. Blumberg (2018) 25 Cal.App.5th 316, 320), or fails to comply with section 2031.310, subdivision (b)(1) as filed and served. Here, this problem is compounded by the failure to address this fact-specific issue of relevance, which was raised in the written objections to each request at issue, in the hasty meet and confer discussion. (Secrest decl. re MTC, ¶¶ 4-8 & exhibits C, D.)

The court also notes that part of what Vranish asserts as insufficient in Raytheon’s response relates to the failure of Raytheon to identify a date of production of the documents. Although Raytheon has stated in its response an agreement to produce responsive documents, the response does not include a date of production.

“The documents shall be produced on the date specified in the demand pursuant to paragraph (2) of subdivision (c) of Section 2031.030, unless an objection has been made to that date. If the date for inspection has been extended pursuant to Section 2031.270, the documents shall be produced on the date agreed to pursuant to that section.” (Code Civ. Proc., § 2031.280, subd. (b).)

“Each demand in a set shall be separately set forth, identified by number or letter, and shall do all of the following: [¶] … [¶] (2) Specify a reasonable time for the inspection, copying, testing, or sampling that is at least 30 days after service of the demand, unless the court for good cause shown has granted leave to specify an earlier date.” (Code Civ. Proc., § 2031.030, subd. (c)(2).)

The RFP5 demand contains no date for production. Instead, the demand states: “the responding party produce all DOCUMENTS, and allow the inspection of all original DOCUMENTS and tangible things which are itemized herein, which are responsive to any of the following numbered requests, on the date specified herein or as otherwise required under applicable provisions of the California Code of Civil Procedure, in accordance with the definitions and instructions below.” (Secrest decl. re MTC, exhibit A.) The remainder of the demand identifies no date. Presumably, the date for production would be another subject of meet and confer discussions that did not take place.

Because of the procedural problems of the motion and the need for a further meet and confer, the court will deny the motion without prejudice. Under the circumstances here, the court finds that the circumstances here make the imposition of sanctions as to any party unjust. (See Code Civ. Proc., § 2031.310, subd. (h).)