MOSLEY, et al. vs MCAFEE, LLC

A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will be forward the form to the Court Reporter’s Office and an official reporter will be provided.

TENTATIVE RULING:

Defendant McAfee, LLC’s (“Defendant”) unopposed motion for sanctions and to compel compliance with the Court’s order for Plaintiffs to produce documents is ruled upon as follows.

Background

In this action, Plaintiffs Aaron Mosley, Angel Hernandez, Beth Bruns, Lisa Alexander, Markieda Hollier, Ross Jones, Ryan Willoughby, Sabrina Machari, Sydney Pearl, and Tameckia Cook (“Plaintiffs”) allege that Defendant has violated California’s restrictions on unsolicited commercial e-mail under Business and Professions Code section 17529.5. On May 20, 2025, the Court granted in part and denied in part Defendant’s unopposed motion to compel Plaintiffs’ initial responses to Defendant’s demand for inspection. The motion was unopposed and granted.

On June 5, 2024, Plaintiffs served written responses to Defendant’s demands for inspection. (Declaration of Benjamin Williams (“William Decl.”), ¶ 3, 5. Exs. A, C.) Defendant’s counsel subsequently sent a meet and confer letter to Plaintiffs’ counsel regarding Plaintiffs’ responses

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV016009: MOSLEY, et al. vs MCAFEE, LLC 02/09/2026 Hearing on Motion for Sanctions and to Compel Compliance with Court's Order to Produce Documents in Department 28

on June 26, 2025 and included his availability for further meet and confer discussions. (Id., ¶ 7.) Defendant’s counsel attempted to meet and confer with Plaintiff’s counsel between June 27, 2025 and July 10, 2025, but did not receive a response from Plaintiff’s counsel indicating his availability to meet and confer regarding the responses. (Id., ¶ 8.)

Defendant now moves for sanctions, including monetary, evidentiary, and terminating sanctions, against Plaintiffs under Code of Civil Procedure sections 2023.010, 2023.020, 2023.030, 2031.300 and 2031.310. Defendant seeks $50,600.38 in money sanctions against Plaintiffs and Plaintiffs’ counsel. (Notice at 2:10-14; 2:15-16.) Defendant also moves to compel Plaintiffs to produce further documents responsive to Defendant’s Demands for Inspection Nos. 1, 2, 3, 7, 8, 11, 14, 17, 18, 19, 21, 22, and 23. (Id. at 2:14-17.) Plaintiffs did not file an opposition to the motion.

Further Responses

Although not styled as a motion to compel further responses to the demand for inspection in the caption of the motion, Defendant provides sufficient notice of its motion to compel further responses to Demands for Inspection Nos. 1, 2, 3, 7, 8, 11, 14, 17, 18, 19, 21, 22, and 23 pursuant to Code of Civil Procedure section 2031.310 in its notice of motion. Thus, the Court addresses Defendant’s request for relief as follows.

Plaintiffs do not oppose the motion. A party’s failure to oppose a motion is construed as a concession on the merits of the motion. (See D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 728, n.4.)

Accordingly, Plaintiffs shall serve further verified, written responses by no later than February 23, 2026, unless the parties agree in writing to a later date.

To the extent Defendant requests issue, evidentiary and/or terminating sanctions pursuant to Code of Civil Procedure section 2031.310, subdivision (i), the request is denied. Code of Civil Procedure section 2031.310 states, in relevant part, “If a party then fails to obey an order compelling further response, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction . . .” (Code Civ. Proc. § 2031.310, subd. (i) [emphasis added].) Here, Defendant has not previously moved for an order compelling further responses to its inspection demand. Thus, Plaintiffs have not yet disobeyed the Court’s order to provide further responses such that sanctions would be warranted under Code of Civil Procedure section 2031.310, subdivision (e).

To the extent Defendant seeks monetary sanctions pursuant to Code of Civil Procedure section

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV016009: MOSLEY, et al. vs MCAFEE, LLC 02/09/2026 Hearing on Motion for Sanctions and to Compel Compliance with Court's Order to Produce Documents in Department 28

2031.300, subdivision (c), the request is denied as the motion was unopposed. (See Code Civ. Proc. § 2030.300, subd. (c) [“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 a further response to interrogatories”].)

Sanctions

For misuse of the discovery process, including disobeying a court order to provide discovery, the Court may impose issue, evidence, terminating, or monetary sanctions. (See Code of Civil Procedure §§ 2023.010, subds. (d) and (g), 2023.030, subds. (a)-(d).) The Court has broad discretion in the selection of the appropriate sanction to be applied under the factual circumstances. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 991-992.) The Court may impose sanctions that are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks, but the Court may not impose sanctions which are designed not to accomplish the objects of the discovery but to impose punishment. (Caryl Richards, Inc. v.

Superior Court (1961) 188 Cal.App.2d 300, 304.) “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.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793.) Sanctions are generally imposed in an incremental approach, with terminating sanctions being a last resort. (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604.)

As a threshold issue, Defendant’s counsel’s declaration and the Separate Statement both indicate that Plaintiffs served further responses to Defendant’s demands for inspection. Although the responses may be unsatisfactory or non-compliant with the Court’s order in some respects, the Court finds that issue, evidentiary, and termination sanctions are not yet warranted. No sanctions have been previously imposed and Plaintiffs substantially complied with the Court’s order to provide initial responses.

Defendant also did not seek to compel further responses to address any purported deficiencies in Plaintiffs’ responses, except at stated above, prior to filing the instant motion. Thus, imposing the requested sanctions would be punitive in light of the above circumstances and would be inconsistent with the incremental approach to discovery sanctions. Therefore, Defendant’s request for sanctions is denied for this reason.

There are additional grounds to Defendant’s request for sanctions. The Court notes that Defendant requests issue, evidentiary and/or terminating sanctions pursuant to Code of Civil Procedure section 2031.300, which governs initial responses to inspection demands. This provision states, “If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it, the following rules shall apply: (a) he party to whom the demand for inspection, copying, testing, or sampling is directed waives any objection

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV016009: MOSLEY, et al. vs MCAFEE, LLC 02/09/2026 Hearing on Motion for Sanctions and to Compel Compliance with Court's Order to Produce Documents in Department 28

to the demand, including one based on privilege or on the protection for work product . . .” (Code Civ. Proc., § 2031.300, subd. (a).) Sanctions under this provision are authorized only “against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to a demand for inspection, copying, testing, or sampling.” (Id., subd. (c).) The Court already ordered Plaintiffs to provide initial responses, which Plaintiffs did provide on June 5, 2025. (Williams Decl., ¶¶ 3, 5; See, generally, Separate Statement.)

Thus, this cannot be characterized as a motion to compel initial response, nor is the motion opposed. Therefore, Defendant’s request for sanctions pursuant to Code of Civil Procedure section 2031.300 is denied. To the extent Defendant contends Plaintiffs’ responses are insufficient or unsatisfactory, Defendant was required to seek further responses (Code Civ. Proc. § 2031.310) to the interrogatories, which is did so only with respect to Nos. 1, 2, 3, 7, 8, 11, 14, 17, 18, 19, 21, 22, and 23, discussed above.

Sanctions are also not available pursuant to Code of Civil Procedure section 2023.010, as that provision provides a list of misuses of the discovery process and does not provide an independent basis for sanctions. Nor are sanctions permitted pursuant to Code of Civil Procedure section 2023.030, as that provision authorizes sanctions “To the extent authorized by the chapter governing any particular discovery method or any other provision of this title . . .” As discussed above, the Court has denied Defendant’s requests for sanctions pursuant to Code of Civil Procedure sections 2031.300 and 2030.310, which are the more specific statutes governing discovery with respect to the instant motion. Thus, Section 2023.030 does not provide an independent basis upon which to award sanctions.

Finally, Defendant requests sanctions pursuant to Code of Civil Procedure section 2023.020 due to Plaintiffs’ counsel failure to meet and confer. Code of Civil Procedure section 2023.020 states, “[n]otwithstanding the outcome of the particular discovery motion, the court shall impose a monetary sanction ordering that any party or attorney who fails to confer as required pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct.” Here, the record indicates that Plaintiffs’ counsel failed to appropriately respond to Defendant’s attempts to meet and confer.

Although sanctions pursuant to Section 2023.020 appear warranted, the requested amount of $50,600.38, which represents the work of two separate attorneys and a paralegal on the two straightforward discovery motions on today’s calendar, is grossly excessive and appears to include duplicative efforts by the legal professional. Additionally, counsel’s declaration failure to provide sufficient information for the Court to ascertain the reasonableness of counsel’s rates. Thus, the Court awards Defendant sanctions from Plaintiff’s counsel only in the amount of $1,200 (3 hrs at $400/hr) for the instant motion.

Sanctions are to be paid on or before March 2, 2026. If sanctions are not paid by that date, Defendant may prepare a formal order granting sanctions for the Court's signature, and the order

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV016009: MOSLEY, et al. vs MCAFEE, LLC 02/09/2026 Hearing on Motion for Sanctions and to Compel Compliance with Court's Order to Produce Documents in Department 28

may be enforced as a separate judgment. (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615.)

Disposition

Defendant’s motion to compel responses to Demands for Inspection Nos. 1, 2, 3, 7, 8, 11, 14, 17, 18, 19, 21, 22, and 23 is granted. Plaintiffs shall serve further verified, written responses by no later than February 23, 2026, unless the parties agree in writing to a later date.

Defendant’s requests for sanctions pursuant to Code of Civil Procedure sections 2023.010, 2023.030, 2031.300, and 2031.310 are denied.

Defendant’s requests for sanctions pursuant to Code of Civil Procedure section 2023.020 is granted in the amount of $1,200. Sanctions to be paid by Plaintiffs’ counsel by March 2, 2026.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc., § 1019.5; Cal. Rules of Court, rule 3.1312.)