Judge: Anne Richardson, Case: 22STCV18504, Date: 2024-02-13 Tentative Ruling

Case Number: 22STCV18504    Hearing Date: March 4, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Pleadings

Plaintiff Janet Weiss—individually and as trustee of the Janet Weiss Separate Property Trust Dated August 10, 2020—sues Defendants Nurbeh Baravarian and Does 1 through 20 pursuant to a June 6, 2022 Complaint alleging claims of (1) IIED/NIED, (2) Violation of Easement, (3) Violation of Covenant of Good Faith and Fair Dealing, and (4) Negligence.

The claims arise from the following allegations. Plaintiff Weiss owns Unit 705 at 321 North Oakhurst, Beverly Hills, California (the Weiss Condo; the Condominium Project). Plaintiff Weiss’s downstairs neighbor at Unit 605 is Defendant Baravarian (the Baravarian Condo). In violation of the Condominium Project’s Covenants, Codes, and Restrictions (CC&Rs), Defendant Baravarian refused to permit Plaintiff Weiss rightful access to a bathroom in Defendant Baravarian’s condominium unit to effect a repair on a leaking water pipe housed between the Weiss Condo and the Baravarian Condo, which was more accessible through Defendant Baravarian’s unit as opposed to Plaintiff Weiss’s adjoining upstairs unit, resulting in damages to Plaintiff Weiss.

Motion to Compel Further Responses

On November 11, 2023, Plaintiff Weiss filed (1) a motion to compel further admission responses to Plaintiff’s Requests for Admission, Set One (RFAs, Set One), Nos. 1-80 from Defendant Baravarian (2) a motion to compel further admission responses to Plaintiff’s Form Interrogatories, Set Two (FROGs, Set Two), Nos. 22.7 and 17.1 from Defendant Baravarian, and (3) a motion to compel further admission responses to Plaintiff’s Requests for Production of Documents, Set One (RPDs, Set One), Nos. 50-55 from Defendant Baravarian.

The motions also request monetary sanctions against Defendant Baravarian and counsel.

On February 20, 2024, Defendant Baravarian filed oppositions to Plaintiff Weiss’s motions.

On February 26, 2024, Plaintiff Weiss filed replies to Defendant Baravarian’s oppositions.

Plaintiff Weiss’s motions are now before the Court.

Motion to Compel Further Responses

Legal Standard

A motion to compel a further response is used when a party gives unsatisfactory answers or makes untenable objections to interrogatories, demands to produce, or requests for admission. (See Code Civ. Proc., §§ 2030.300, subd. (a), 2031.310, subd. (a), 2033.290, subd. (a).)

To obtain further responses to requests for admission, the movant must establish that (1) the response to an RFA is evasive or incomplete (Code Civ. Proc., § 2033.290, subd. (a)(1)) or (2) the objection to an RFA is without merit or too general (Code Civ. Proc., § 2033.290, subd. (a)(2)).

To compel a further response to interrogatories, the movant can show that: (1) the responding party’s answer to a particular interrogatory is evasive or incomplete (Code Civ. Proc., § 2030.300, subd. (a)(1)); (2) the responding party’s exercise of the option to produce documents in response to an interrogatory was unwarranted or the required specification of those documents was inadequate (Code Civ. Proc., § 2030.300, subd. (a)(2)); and (3) the responding party’s objection to an interrogatory is without merit or too general (Code Civ. Proc., § 2030.300, subd. (a)(3); see, e.g., Williams v. Superior Court (2017) 3 Cal.5th 531, 550 (Williams) [defendant’s argument that plaintiff was required to establish good cause or prove merits of underlying claim before propounding interrogatories without merit]).

To request further production, a movant must establish: (1) good cause for the production (Code Civ. Proc., § 2031.310, subd. (b)(1); Sinaiko, supra, at p. 403); and (2) that a further response is needed because (a) the responding party’s statement of compliance with the demand to produce is incomplete Code Civ. Proc., § 2031.310, subd. (a)(1)), (b) the responding party’s representation that it is unable to comply is inadequate, complete, or evasive (Code Civ. Proc., § 2031.310, subd. (a)(2)), (c) the responding party’s objection in the response is without merit or is too general (Code Civ. Proc., § 2031.310, subd. (a)(3); Catalina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, 1127 (Catalina Island)), or (d) if the responding party objected to the production of ESI on the ground that it is not reasonably accessible the movant can show that the (i) ESI is reasonably accessible or (ii) there is good cause for production of the ESI regardless of its accessibility (Code Civ. Proc., § 2031.310, subd. (e)).

Orders Compelling Further Responses: DENIED AS MOOT.

After review, the Court determines that Defendant Baravarian’s December 4, 2023 supplemental responses to RFAs, Set One, Nos. 1-80 and December 12, 2023 supplemental responses to FROGs, Set Two, Nos. 22.7 and 17.1, and RPDs, Set Two, Nos. 50-55, served by Defendant Baravarian on Plaintiff Weiss mooted Plaintiff Weiss’s motions. (Opp’ns, Mandell Decl., Ex. D.)

A motion to compel further responses was the proper method of challenging those supplemental admission, interrogatory, and production responses. As of the December 6, 2023 Informal Discovery Conference (IDC), the parties were aware that the November 9, 2023 responses would be served by Defendant Baravarian by December 20, 2023. (Mot., Mandell Decl., Ex. C, p. 1.) The time window to file motions to compel further responses expired on Monday, January 22, 2024 for the RFA responses, and on Tuesday, January 30, 2024 for the interrogatory and production responses. (See Code Civ. Proc., §§ 10, 12, 12a, 1010.6, subd. (a)(3)(B), 2030.300, subd. (c), 2031.310, subd. (c), 2033.290, subd. (c); see Opp’ns, Mandell Decl., Ex. D, Proof of Service [service via email].)

Plaintiff’s motions are therefore DENIED AS MOOT as to compelling further responses to RFAs, Set One, Nos. 1-80, FROGs, Set Two, Nos. 22.7 and 17.1, and RPDs, Set Two, Nos. 50-55.

Orders Granting Sanctions: DENIED.

The Court must impose monetary sanctions against anyone (party, non-party, or attorney) who unsuccessfully makes or opposes a motion to compel further responses to requests for admission, unless it finds that the person to be sanctioned acted with substantial justification or other circumstances make the imposition of sanctions unjust. (Code Civ. Proc., §§ 2033.290, subd. (d); § 2030.300, subd. (d), § 2031.310, subd. (h).).)

The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed. (Cal. Rules of Court, rule 3.1348, subd. (a).)

Here, while Defendant Baravarian served supplemental responses on December 4, 2023 and December 12, 2023 (Opp’ns, Mandell Decl., Ex. D, Proofs of Service), this took place 56 and 64 days after Defendants’ Baravarian’s service of the October 9, 2023 objection-only responses to RFAs, Set One, Nos. 1-80, FROGs, Set Two, Nos. 22.7 and 17.1, and RPDs, Set Two, Nos. 50-55. (Mots., Jaroscak Decl., Ex. B, Proofs of Service.) This service was effected beyond what would have been the statutory timeframe for motions to compel further responses had the October 9th responses been verified and contained substantive responses. (Mots., Jaroscak Decl., Ex. B [unverified objection-only responses]; Code Civ. Proc., §§ 2033.290, subd. (c), 2030.300, subd. (c), 2031.310, subd. (c).)

However, while the October 9th responses were not verified and did not contain substantive responses (Mots., Jaroscak Decl., Ex. B [unverified objection-only responses]), the parties were aware as of the December 6, 2023 IDC that verified responses would be served by Defendant Baravarian by December 20, 2023 (Opp’n, Mandell Decl., Ex. C, p. 1), and the statutory period to compel further responses was triggered as of December 4, 2023 (Opp’ns, Mandell Decl., Ex. D), thus expiring on Monday, January 22, 2024 for the RFA responses, and on Tuesday, January 30, 2024 for the interrogatory and production responses. (See Code Civ. Proc., §§ 10, 12, 12a, 1010.6, subd. (a)(3)(B), 2030.300, subd. (c), 2031.310, subd. (c), 2033.290, subd. (c); see Opp’ns, Mandell Decl., Ex. D, Proof of Service [service via email].)

Under these circumstances, the Court determines that sanctions would be unjust. The most proper response would have been for Plaintiff Weiss to file a motion to compel further responses after the service of the supplemental responses within the statutory window and thus preserve her rights. It would be unjust to impose sanctions for late responses to RFAs, FROGs, and RPDs, Set One, under circumstances where Plaintiff Weiss herself was dilatory in enforcing her rights to sufficient supplemental responses to RFAs, Set One, Nos. 1-80, FROGs, Set Two, Nos. 22.7 and 17.1, and RPDs, Set Two, Nos. 50-55.

To conclude, while the Court does not condone Defendant’s tardy filing of responses after a motion to compel has been filed, neither does it condone Plaintiff’s counsel’s failure to provide a requested one-week courtesy extension of time (without conditions) or failure to take this motion off calendar and file one tailored to the responses actually provided.

Conclusion

I.

Plaintiff Janet Weiss’s Motion to Compel Further Responses to 8-19-23 Requests for Admission, Set One, and Request for Sanctions of $2,439.98 Against Defendant Nurbeh Baravarian and Counsel Barbara Mandell [CRS# 9659] is:

(1) DENIED AS MOOT as to compelling further responses; and

(2) DENIED as to sanctions.

II.

Plaintiff Janet Weiss’s Motion to Compel Further Responses to 8-19-23 For Interrogatories, Set Two, and Request for Sanctions of $2,054.98 Against Defendant Nurbeh Baravarian and Counsel Barbara Mandell [CRS# 1482] is:

(1) DENIED AS MOOT as to compelling further responses; and

(2) DENIED as to sanctions.

III.

Plaintiff Janet Weiss’s Motion to Compel Further Responses to 8-19-23 Requests for Production, Set Two, and Request for Sanctions of $2,374.98 Against Defendant Nurbeh Baravarian and Counsel Barbara Mandell [CRS# 8014] is:

(1) DENIED AS MOOT as to compelling further responses; and

(2) DENIED as to sanctions.