Judge Ashfaq G. Chowdhury, Case Number: 21GDCV01033, Date: 2024-08-02 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 21GDCV01033, Date: 2024-08-02 Tentative Ruling

Case Number: 21GDCV01033 Hearing Date: August 2, 2024 Dept: E

Hearing Date: 08/02/2024 – 8:30am
Case No: 21GDCV01033
Trial Date: 05/12/2025
Case Name: 846 E. Valley Blvd. LLC v. 860 E & A LLC, et al.

TENTATIVE RULINGS ON MOTION TO COMPEL FURTHER RESPONSES

RELIEF REQUESTED
“Defendant/Cross-Complainant EGL ASSOCIATES, INC.’s (hereinafter “EGL ASSOCIATES”) will, and hereby does, move for an order compelling Cross-Defendant JE TSU KAO (“KAO”) to fully respond to Defendant/Cross Complainant’s first set of Form Interrogatories – Construction Litigation, served by Defendant/Cross Complainant on November 21, 2023. EGL ASSOCIATES will also move for an order to impose a monetary sanction in the amount of $2,274.22 against Cross Defendant KAO and/or her attorneys of record, pursuant to Code of Civil Procedure Sections 2023.010–2023.040 and 2030.300.

The motion will be made on the grounds that the KAO’s answers to EGL ASSOCIATES Form Interrogatories – Construction Litigation, Set One number(s) 324.1, and 325.1 are evasive and/or incomplete and the objections are without merit and/or too general.

The motion will be based on this notice of motion, the memorandum in support, the attached declaration of Nicholas L. D’Amico, Esq., separate statement and the papers, records, and file in this action, and such oral and documentary evidence as may be presented at the hearing of the motion.”

(Def. Not. p. 2.)

Procedural

Moving Party: Defendant/Cross-Complainant, EGL Associates, Inc. (Cross-Complainant or EGL Associates or Movant)

Responding Party: Defendant/Cross-Defendant, Je Tsu Kao

Proof of Service Timely Filed (CRC Rule 3.1300): Ok
16/21 Court Days Lapsed (CCP 1005(b)): Ok
Proper Address (CCP §1013, §1013a, §1013b): Ok

Moving Papers: Notice; Memo; Separate Statement; D’Amico Decl.; Proof of Service

Opposition Papers: Opposition; Yarling Declaration; Proof of Service

Reply Papers: Reply; D’Amico Declaration; Proof of Service

PROCEDURAL ANALYSIS

45-Day Requirement
“Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories.” (CCP §2030.300(c).)

Here, it is not entirely clear to this Court how this motion is timely; however, the Opposition does not make any argument that this motion is untimely. Therefore, the Court finds this motion timely.

Meet and Confer
“A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040.” (CCP §2030.300(b)(1).)

Je Tsu Kao served responses to Movant’s counsel on May 20, 2024. After receiving initial responses, Movant’s counsel, D’Amico, sent a meet and confer on May 28, 2024.

On June 18, 2024, Movant received supplemental responses, and then filed this motion on July 8, 2024.

Opposition’s motion and declaration (Matthew Yarling) argues that Movant never attempted a meet and confer after receiving the supplemental responses on June 18, 2024 because Movant never informed Opposition that it had a problem with the supplemental responses.

Movant explains that it did not attempt to meet and confer after the supplemental responses because the supplemental responses did not address the issues that were brought up in the first meet and confer. Movant also explains that it did not meet and confer because the supplemental responses did not provide any supplemental responses to the discovery items at issue. [The Court does not understand Movant’s argument about how supplemental responses were not provided to the items at issue because Movant itself attached the supplemental responses to the items at issue.]

Movant further explains it did not attempt to meet and confer after the supplemental responses were sent because the deadline to file a motion to compel further was about to expire. [The Court also does not understand Movant’s argument here because the supplemental responses were provided on June 18, 2024, and the instant motion was not filed until July 8, 2024. Therefore, it appears as if Movant had plenty of time to further meet and confer on the issues it had with the supplemental responses of June 18, 2024 before filing this motion on July 8, 2024.]

As stated in Indio Police Command Unit Assn. v. City of Indio (2014) 230 Cal.App.4th 521, 539:

“[W]hether a party actually engaged in meetings in good faith is generally a factual question, and the fact-finder's express or implicit determination will be upheld on appeal if supported by substantial evidence. [Citations.]” (Santa Clara County Correctional Peace Officers' Assn. v. County of Santa Clara (2014) 224 Cal.App.4th 1016, 1027, 169 Cal.Rptr.3d 228.) “ ‘In general, good faith is a subjective attitude and requires a genuine desire to reach agreement [citations]. The parties must make a serious attempt to resolve differences and reach a common ground [citation]. The effort required is inconsistent with a “predetermined resolve not to budge from an initial position.” [Citations.]’ [Citation.] However, adamantly insisting on a position does not necessarily establish bad faith. [Citation.]” (Id. at p. 1044, 169 Cal.Rptr.3d 228.)

(Indio Police Command Unit Assn. v. City of Indio (2014) 230 Cal.App.4th 521, 539.)

The Court will hear argument.

LEGAL STANDARD - COMPEL FURTHER RESPONSES TO INTERROGATORIES
Under CCP § 2017.010, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action..., if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” The Section specifically provides that “[d]iscovery may relate to the claim or defense of the party seeking discovery or of any other party to the action,” and that discovery “may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition and location of any document, electronically stored information, tangible thing, or land or other property.”

On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply:

(1) An answer to a particular interrogatory is evasive or incomplete.

(2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate.

(3) An objection to an interrogatory is without merit or too general.

(CCP §2030.300(a).

If a timely motion to compel has been filed, the¿burden is on the responding party¿to justify any objection or failure fully to answer.¿(Coy v. Superior Court of Contra Costa County (1962) 58 Cal.2d 210, 220–221 [addressing a motion to compel further responses to interrogatories]; see also¿Fairmont Ins. Co. v. Superior Court¿(2000) 22 Cal.4th 245, 255.)

“While the party propounding interrogatories may have the burden of filing a motion to compel if it finds the answers it receives unsatisfactory, the burden of justifying any objection and failure to respond remains at all times with the party resisting an interrogatory.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 541 citing Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221.)

Furthermore, to the extent there is any doubt in whether these records should be discoverable, California’s liberal approach to discovery provides that doubt should be resolved in favor of permitting discovery. (Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 173.)

The party to whom interrogatories have been propounded shall respond in writing under oath separately to each interrogatory by any of the following:

(1) An answer containing the information sought to be discovered.

(2) An exercise of the party’s option to produce writings.

(3) An objection to the particular interrogatory.

(CCP §2030.210(a).)

TENTATIVE RULING

Movant seeks to compel further responses to Form Interrogatories 324.1 and 325.1 from Defendant/Cross-Complainant’s first set of Form Interrogatories – Construction Litigation propounded on Je Tsu Kao on November 21, 2023.

Although the burden of justifying any objections remains with the opposing party to this motion, the Opposition indicates that second supplemental responses were served on July 18, 2024, after the filing of this motion on July 8, 2024, to avoid wasting judicial resources or burdening the Court. Therefore, Opposition argues that this motion is moot.

The Reply to this motion does not address the fact that the Opposition stated how second supplemental responses were served after the filing of this motion. The Reply instead only focuses on how it was forced to file this motion because once it received supplemental responses, the deadline to file a motion to compel further was about to expire.

Based on Reply’s nonresponsive-response to the Opposition mentioning how second supplemental responses were served after the filing of this motion, this Court is inclined to find that this motion should be denied as moot with respect to compelling further responses. However, the issue of sanctions would not be moot.

Sanctions

“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, 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 §2030.300(d).)

“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(a).)

Movant requests sanctions in the amount of $2,274.22 against Cross-Defendant Je Tsu Kao and/or his attorneys of record. Movant’s counsel’s (D’Amico) sanction’s requested is based on: (1)An hourly rate of $400; (2) 3.5 hours for the preparation of this motion; (3) 2 hours for reviewing and replying to the opposition and appearing at the hearing for this motion; and (4) $74.22 for costs of filing this motion.

Opposition argues that sanctions should not be imposed because Kao participated in a meet and confer after submitting its responses, submitted supplemental responses after the meet and confer, and because Kao submitted second supplemental responses after the filing of this motion. Opposition argues that Kao never engaged in a misuse of the discovery process.

The Court will hear argument.

[The Court notes that the instant motion on hearing today ends with the Res ID of 3498. This motion is the only motion reserved and scheduled on the court reservation system. It appears that on the same date that the instant motion was filed, Defendant/Cross-Complainant, EGL Associates, Inc. also filed a motion to compel Cross-Defendant Je Tsu Kao’s Responses to Form Interrogatories – General, Set One. That motion ends with a Res ID of 0471; however, that motion is not scheduled on eCourt. Therefore, it is unclear to the Court if Movant also wanted its motion ending in Res ID 0471 to be heard at the instant hearing, or if Movant removed/withdrew the motion ending in 0471. If Movant wants the motion heard ending in Res ID 0471, Movant needs to reserve and schedule a hearing on the Court’s reservation system.]