Judge: Armen Tamzarian, Case: 21STCV33200, Date: 2023-05-04 Tentative Ruling

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Case Number: 21STCV33200    Hearing Date: May 4, 2023    Dept: 52

Plaintiff Ugo O. Asobie’s Motions to Compel Further Responses: (I) By Defendant Paramount Plaza, LLC to Requests for Production, Set Two; (II) By Defendant Crown Building Maintenance Co. to Requests for Production, Set One; and (III) By Defendant Crown Building Maintenance Co. to Special Interrogatories, Set One

(I) Requests for Production, Set Two to Paramount Plaza, LLC

            Plaintiff Ugo O. Asobie moves to compel further responses by defendant Paramount Plaza, LLC (Paramount) to requests for production Nos. 153, 154, 157, 161, and 162.  (Plaintiff’s reply states the parties resolved their disputes over other requests.)

            Because Paramount served supplemental responses, the motion is moot as to the substance of its responses.  The court declines to rule on the merits of the supplemental responses to requests Nos. 153, 154, 157, 161, and 162.

Plaintiff also did not make an adequate attempt to informally resolve this dispute.  A motion to compel further responses to requests for production “shall be accompanied by a meet and confer declaration under Section 2016.040.”  (CCP § 2031.310(b)(2).)  “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.”  (CCP § 2016.040.) 

            Plaintiff’s moving papers and separate statement do not include defendant’s supplemental responses.  His supporting declaration, however, acknowledges that Paramount sent him unverified supplemental responses at 8:45 a.m. on January 30, the day before he filed this motion.  (Asobie Decl., ¶¶ 6-7, Ex. B.)  Plaintiff replied that the supplemental responses were not verified and did not include a privilege log.  (Id.,  Ex. B.)  Paramount replied, “We will provide a verification as soon as possible.  No privilege log is necessary…  .”  (Ibid.)  At 10:07 a.m., plaintiff replied, “I disagree.  Defendant is withholding documents based on attorney/client/work product privilege.  So, a privilege log is required.”  (Ibid.) 

Plaintiff filed this motion at 5:14 p.m. on January 31, about 32 hours after Paramount sent him its unverified supplemental responses.  Paramount served its verification four minutes later at 5:18 p.m.  (Asobie Reply Decl., ¶¶ 16-17, Ex. E.)  Twice, Paramount asked plaintiff to amend or withdraw the motion to include the supplemental responses.  (Weisburst Decl., ¶¶ 7, 9.)  He did not.  Plaintiff later filed a reply arguing several of the supplemental responses were insufficient. 

Plaintiff did not make “a reasonable and good faith attempt at an informal resolution” (CCP § 2016.040) of this motion.  He knew Paramount already served supplemental responses, but he filed this motion 32 hours later because Paramount had not yet served a new verification.  Plaintiff hastily filed this motion to seek a ruling about responses he knew would likely be superseded long before this hearing.  He prematurely ended the attempt at informal resolution even though it had just resulted in substantial progress.  Doing so was not reasonable.

Sanctions

            In its opposition, Paramount seeks $2,915 in sanctions against plaintiff.  The Civil Discovery Act provides that courts shall impose a monetary sanction against one “unsuccessfully makes or opposes a motion to compel further response to a demand, 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.”  (CCP § 2031.310(h).)  Plaintiff unsuccessfully moved to compel further responses to his requests for production.  The court finds he did not act with substantial justification.  Sanctions are just under the circumstances. 

Plaintiff is also subject to sanctions for not meeting and conferring in good faith.  “Notwithstanding 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.”  (CCP § 2023.020.)

Paramount reasonably incurred $2,915 in expenses opposing this motion and as a result of plaintiff’s failure to meet and confer as required.

Disposition 

            Plaintiff Ugo O. Asobie’s motion to compel further responses by defendant Paramount Plaza, LLC to requests for production, set two is denied.

            Plaintiff Ugo O. Asobie is ordered to pay Paramount Plaza, LLC $2,915 in sanctions within 30 days.

(II) Requests for Production, Set One to Crown Building Maintenance Co.

            Plaintiff Ugo O. Asobie moves to compel further responses by defendant Crown Building Maintenance Co. (Crown) to requests for production Nos. 1-30. 

A requesting party may move to compel further responses if “[a] statement of compliance with the demand is incomplete,” “[a] representation of inability to comply is inadequate, incomplete, or evasive,” or “[a]n objection in the response is without merit or too general.”  (CCP § 2031.310(a).)

Verification

Crown did not properly verify its responses.  When the responding party is an entity, “one of its officers or agents shall sign the response under oath on behalf of that party.”  (CCP § 2031.250(b).) 

Crown’s verification is signed by “David Espinoza, Former Manager at Able Building Maintenance.”  (Schwarz Decl., Ex. F.)  Espinoza states, “Until its acquisition by another entity in or around September of 2021, I was a manager employed by CROWN BUILDING MAINTENANCE CO. dba, ABLE BUILDING MAINTENANCE CO. a party to this action.  I am authorized to make this verification for and on its behalf, and I make this verification for that reason.”  (Ibid.)

Without citing any evidence in the record, defendant argues it cannot provide a verification by any current officer or agent because Crown Building Maintenance Co. “was dissolved in or about September of 2021.”  (Opp., p. 3.)  Plaintiff, however, shows Crown Building Maintenance Co. is an active entity.  It filed a statement of information with the Secretary of State on January 3, 2023.  (Asobie Reply Decl., ¶ 4, Ex. B.)  The statement of information identifies Crown’s secretary, chief financial officer, and chief executive officer.  The record therefore shows Crown has current officers or agents who could verify its discovery responses.

Responses to Requests for Production

            In response to requests for production Nos. 1-30, Crown made various boilerplate objections, which it did not attempt to defend, except for objections for attorney-client privilege and attorney work product.  Substantively, Crown responded to all 30 requests by stating, “Despite a diligent search and reasonable inquiry, no documents responsive to this request are in Responding Party’s custody, control, or possession.” 

A responding party who objects must “[i]dentify with particularity any document … falling within any category… to which an objection is being made” and “[s]et forth clearly the extent of, and the specific ground for, the objection.”  (CCP § 2031.240(b)(1) & (2).)  The response must “provide sufficient factual information for other parties to evaluate the merits of” these objections, “including, if necessary, a privilege log.”  (CCP § 2031.240(c)(1).)  Crown objected but did not identify any documents being withheld or provide any factual information to support its objections.

In its opposition, Crown argues, “Memorandum and correspondence between retained counsel and its clients are the only documents that exist relating to this Plaintiff and his allegations, and these are protected from disclosure.”  (Opp., p. 3.)  That may be correct, but Crown must identify any documents being withheld and provide information to permit others to evaluate the merits of Crown’s objections. 

All of Crown’s objections to requests for production Nos. 1-30 except for attorney-client privilege and work product are overruled.  Crown’s objections based on attorney-client privilege and work product are not waived and are not overruled.  (Catalina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, 1120.)

Disposition

            Plaintiff Ugo O. Asobie’s motion to compel further responses by defendant Crown Building Maintenance Co. to requests for production is granted. 

Defendant Crown Building Maintenance Co. is ordered to serve further verified responses, including a privilege log identifying any documents withheld based on attorney-client privilege or work product and providing factual information on the merits of those objections, to requests for production Nos. 1-30 within 30 days.  The responses shall be verified by a current officer or agent of Crown Building Maintenance Co.

(III) Special Interrogatories, Set One to Crown Building Maintenance Co.

            Plaintiff Ugo O. Asobie moves to compel further responses by defendant Crown Building Maintenance Co. (Crown) to special interrogatories Nos. 1-90. 

A party may move to compel further responses to interrogatories when an answer “is evasive or incomplete” (CCP § 2030.300(a)(1) or an objection “is without merit or too general” (CCP § 2030.300(a)(3)).  “Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits.”  (CCP § 2030.220(a).)   

The 90 special interrogatories consist of a set of primary questions asking Crown to “identify each and every person that you assigned to” pick up the trash or do other janitorial services at 3550 Wilshire Blvd. on specified dates, along with numerous follow-up questions about any people identified in answers to other interrogatories.

Defendant Crown’s responses were incomplete or evasive.  Crown responded with numerous boilerplate objections, which it did not try to justify.  Substantively, Crown responded to the primary interrogatories by stating, “Responding Party did not have a contract for services at the Property, and therefore did not employ any individuals at the property.” 

That answer is not as straightforward as possible.  The questions ask whom Crown “assigned” to do various tasks.  Crown’s answers that it “did not have a contract for services” and “did not employ any individuals at the property” are evasive.  These answers incorporate the legal conclusions that Crown had no “contract for services” or “did not employ” anybody at the building without giving a straightforward answer to the factual questions.  Crown’s answer suggests that it means “no” but fails to say that.  That Crown did not have a contract for services at the building or did not employ anybody there does not necessarily mean it did not “assign” a non-employee to perform tasks there.

Crown responded that the follow-up interrogatories were not applicable, which was correct based on the initial responses.  Crown must supplement these follow-up responses if its supplemental responses identify any people it assigned to do the specified work.

Crown’s objections to special interrogatories Nos. 1-90 are overruled.

Moreover, Crown’s verification was insufficient for the same reasons discussed above.

Disposition

            Plaintiff Ugo O. Asobie’s motion to compel further responses by defendant Crown Building Maintenance Co. to special interrogatories is granted. 

Defendant Crown Building Maintenance Co. is ordered to serve further verified responses without objections to special interrogatories Nos. 1-90 within 30 days.  The responses shall be verified by a current officer or agent of Crown Building Maintenance Co.