Judge: Armen Tamzarian, Case: 22STCV18556, Date: 2023-04-13 Tentative Ruling
Case Number: 22STCV18556 Hearing Date: April 13, 2023 Dept: 52
Tentative Ruling
Defendant Calvin Lovick’s Motions: (1) To Compel Further Responses to Requests for Production; (2) To Compel Further Responses to Requests for Admission; (3) To Compel Further Responses to Special Interrogatories; and (4) To Compel Compliance with Requests for Production
(1-3) Motions to Compel Further Responses to Discovery Requests
Defendant Calvin Lovick moves to compel plaintiff Barbara Okonkwo to serve further responses to requests for production Nos. 1-3 and 11, to requests for admission Nos. 1-33, and to special interrogatories Nos. 1-11.
These three motions are untimely. “Unless notice of this motion is given within 45 days of the service” of the response, the moving “party waives any right to compel a further response.” (CCP § 2030.300(c) [interrogatories]; § 2031.310(c) [requests for production]; § 2033.290(c) [requests for admission].) The 45-day deadline “renders the court without authority to rule on [late] motions to compel other than to deny them.” (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)
Plaintiff served her responses to defendant’s requests for production, requests for admission, and special interrogatories on December 12, 2022. On January 25, 2023—44 days later—defendant filed three notices of motions for these three motions to compel further responses. Each notice states, “The motion will be based upon this notice; a Memorandum of Points and Authorities and Declaration of Freddie Fletcher to be filed with the motion; upon the records and files in this action; and upon such further evidence and argument as may be presented prior to or at the time of hearing on the motion.” (Notices, p. 2.)
Defendant did not serve and file the memoranda of points and authorities, supporting declarations, and separate statements with the notices of motions. Defense counsel’s declarations acknowledge that he filed the initial notices of motions on January 25 “in order to meet the 45-day jurisdictional deadline.” (Fletcher Decl., ¶ 21.) Then on March 21, 2023, defendant served and filed an “amended notice of motion and motion” for these motions, including a supporting declaration and memorandum of points and authorities for each, plus a separate statement for each motion.
A party who seeks to compel further responses cannot simply serve and file a notice of motion—without the required supporting papers—to meet the deadline, then wait indefinitely to serve and file the other papers. “Notices must be in writing, and the notice of a motion … 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.” (CCP § 1010.) The memoranda of points and authorities, supporting declarations, and separate statements did not accompany the notices of these motions. Furthermore, the notices of motions stated each motion would be based on a memorandum of points and authorities and a supporting declaration but did not mention the separate statements required under California Rules of Court rule 3.1345.
The Court of Appeal has applied Code of Civil Procedure section 1010 in equivalent circumstances for a motion to compel further responses to a deposition notice. (Weinstein v. Blumberg (2018) 25 Cal.App.5th 316, 319-321.) The statute on the specific discovery motion does not “excuse[] compliance with section 1010.” (Id. at p. 320.) “[T]he plain language of section 1010” does not allow the “interpretation that a notice of motion and motion alluding to other papers but not attaching them somehow satisfies section 1005.5,” which states when a motion is “made.” (Ibid.) “Serving a notice of motion and motion to compel on December 6, 2016 without the supporting papers identified therein rendered the motion untimely.” (Id. at p. 321.)
Code of Civil Procedure section 1010’s requirements for a notice of motion apply equally to the provision that the requesting party waives any right to compel further responses “[u]nless notice of this motion is given within 45 days” of the responses. (CCP §§ 2030.300(c), 2031.310(c), 2033.290(c).) Defendant’s motions are therefore untimely.
Defendant’s reliance on Karz v. Karl (1982) 137 Cal.App.3d 637 is misplaced. That case dealt with a different issue: delay between service and filing. “Plaintiff’s answers to the interrogatories were served by mail on October 23, 1979. Defendants’ motion was likewise served by mail on November 27, 1979. Though received by the clerk November 30, the motion was not stamped ‘Filed’ until December 11, 1979.” (Id. at p. 645.) The court reasoned that former Code of Civil Procedure section 2030 required “ ‘notice given within 30 days’ ” but “contains no requirement as to when the motion shall be filed.” (Id. at p. 646.) Unlike the present case, the moving party in Karz had not served only a bare notice of motion without the required supporting papers. Everything he filed was first timely served. Timely and concurrently serving all moving papers fulfilled the purpose of giving notice to the opposing party.
Sanctions
In her oppositions, plaintiff seeks monetary sanctions against defendant for each of these three motions. The court finds that, though these three motions were procedurally defective, defendant acted with substantial justification and sanctions would not be just under the circumstances. Defendant lost only because he did not follow the procedural requirements for these motions. The motions are almost entirely correct on the substance of plaintiff’s discovery responses. Many of the responses were egregiously inadequate or made frivolous objections.
For example, special interrogatories Nos. 1 to 5, 7, 9, and 10 ask plaintiff to “[i]dentify the paragraph number of the Lease Agreement” or the “option agreement” that state various things about the parties’ rights surrounding “the property.” The questions are straightforward. Proper answers would simply be, for example, “12” or “none.”
Plaintiff objected that the interrogatories did not define the term “property.” This entire case is about “the real property located at 8825 Penridge Place, Inglewood, California 90305 (the ‘subject property’).” (SAC, ¶ 1.) Any reasonable person knows that is what “the property” means. Plaintiff also repeatedly objected that the requests “assume[] facts not in evidence.” That is an objection to questions in oral examination, not a valid objection to discovery requests. (See West Pico Furniture Co. of Los Angeles v. Superior Court In and For Los Angeles County (1961) 56 Cal.2d 407, 421.)
Requests for production No. 11 serves as another example. It asks for “[a]ll documents evidence that Defendant induced you to make improvements to the property.” Plaintiff responded only by objecting that “the term ‘induced’ is argumentative.” It is only argumentative because it incorporates plaintiff’s argument. The second amended complaint alleges, “Defendants, and each of them, having induced Plaintiff to make the improvements and having ratified” them “are estopped to Deny the Option to Purchase” the property. (SAC, ¶ 16.) This request for production asks plaintiff to produce documents supporting her allegations and her theory of the case. That is a typical and appropriate subject for a request for production of documents.
Plaintiff made numerous frivolous objections to defendant’s requests for production, requests for admission, and special interrogatories. Except for the crucial procedural error, these motions were justified. Sanctioning defendant for unsuccessfully making these motions would be unjust under the circumstances.
(4) Motion to Compel Compliance with Responses to Requests for Production
Defendant Calvin Lovick moves to compel plaintiff Barbara Okonkwo to comply with her responses to requests for production Nos. 1, 4-10, and 12-14. This motion is also procedurally defective. Unlike a motion to compel further responses to requests for production (CCP § 2031.310(c)), a motion to compel compliance with the responding party’s statement of compliance has no time limit (CCP § 2031.320). But unlike the other motions, defendant never filed any supporting papers or “amended notice of motion.” “A party filing a motion … must serve and file a supporting memorandum. The court may construe the absence of a memorandum as an admission that the motion … is not meritorious and cause for its denial.” (Cal. Rules of Court, rule 3.1113(a).)
Moreover, without any supporting evidence, the court has no basis to find that plaintiff “fail[ed] to permit the inspection … in accordance with [her] statement of compliance.” (CCP § 2031.320(a).)
Sanctions
In her opposition to defendant’s motion to compel compliance with requests for production, plaintiff seeks $750 in sanctions against defendant Calvin Lovick and defendant’s counsel Freddie Fletcher. “[T]he court shall impose a monetary sanction” against anyone “who unsuccessfully makes or opposes a motion to compel compliance with 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 § 2031.320(b).)
Defendant unsuccessfully moved to compel compliance with his demands for production. He did not act with substantial justification, and sanctions are just under the circumstances. Defendant filed no supporting papers for this motion. He failed to show that this motion, though unsuccessful, was substantially justified. The court will therefore impose $750 in sanctions against defendant and his counsel.
Disposition
Defendant Calvin Lovick ‘s motion to compel further responses to requests for production is denied.
Defendant Calvin Lovick ‘s motion to compel further responses to requests for admission is denied.
Defendant Calvin Lovick ‘s motion to compel further responses to special interrogatories is denied.
Defendant Calvin Lovick ‘s motion to compel compliance with responses to requests for production is denied. Defendant Calvin Lovick and defendant’s counsel Freddie Fletcher are ordered to pay plaintiff Barbara Okonkwo $750 in sanctions within 15 days. Defendant Calvin Lovick and defendant’s counsel Freddie Fletcher shall be jointly and severally liable for the sanctions.
Tentative Ruling
Defendant
Calvin Lovick’s Motion to Strike Portions of Plaintiff’s Second Amended
Complaint
Defendant
Calvin Lovick moves to strike three portions of plaintiff Barbara Okonkwo’s
second amended complaint regarding the purported written option to purchase the
subject property for the sum of $700,000.
Courts may strike “any irrelevant, false, or improper matter inserted in
any pleading” or “any part of any pleading not drawn or filed in conformity
with the laws of this state, a court rule, or an order of the court.” (CCP § 436(a) & (b).)
Defendant
argues, “These portions are irrelevant, false, improper, and/or not drawn in
conformity with law in that each of the” challenged portions “alleges a
written Option to Purchase agreement for a $700,000 purchase price for the
subject property, but no such purchase price, nor any other purchase price, is
stated in the attached and incorporated written Option to Purchase agreement.” (Motion, p. 5.) In other words, defendant contends the
attached option agreement (SAC, Ex. C) contradicts the factual allegations in
paragraphs 12, 13, and 16 of the second amended complaint.
Defendant
provides no authority that any such contradiction is grounds for striking
allegations as false or improper. Generally,
when an exhibit contradicts the complaint’s allegations, that impacts what the
court accepts as true on demurrer. “While the ‘allegations [of a complaint]
must be accepted as true for purposes of demurrer,’ the ‘facts appearing in exhibits
attached to the complaint will also be accepted as true and, if contrary to the
allegations in the pleading, will be given precedence.’ ” (Brakke v. Economic Concepts, Inc. (2013)
213 Cal.App.4th 761, 767; accord Kalnoki v. First American Trustee Servicing
Solutions, LLC (2017) 8 Cal.App.5th 23, 39.)
Even if the court accepted the premise of defendant’s motion (or
treated it as a demurrer), the court would still deny it. “ ‘Where a complaint is based on a written
contract which it sets out in full, a general demurrer to the complaint admits
not only the contents of the instrument but also any pleaded meaning to which
the instrument is reasonably susceptible.’ ”
(Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223
Cal.App.4th 221, 229.) “[W]here an
ambiguous contract is the basis of an action, it is proper, if not essential,
for a plaintiff to allege its own construction of the agreement.” (Ibid., internal quotes omitted.)
The option to purchase contract attached to the second amended complaint
(SAC, Ex. C) is ambiguous enough to permit plaintiff to plead her own
construction of it. The contract is
reasonably susceptible to her interpretation that it constitutes an option to
purchase the subject property for $700,000.
The motion is denied.
Defendant Calvin Lovick is ordered to answer the second amended
complaint within 20 days.