Judge Ashfaq G. Chowdhury, Case Number: 23GDCV00389, Date: 2023-09-29 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 23GDCV00389, Date: 2023-09-29 Tentative Ruling

Case Number: 23GDCV00389 Hearing Date: September 29, 2023 Dept: E

Hearing Date: 09/29/2023 – 10:00am
Case No: 23GDCV00389
Trial Date: 01/21/2025
Case Name: GARY BUNKOFSKE, an individual, v. YVETTE J. KELLEY, an individual; and DOES 1-25 inclusive

TENTATIVE RULINGS ON

PLAINTIFF’S MOTIONS TO

COMPEL FURTHER RESPONSES

MOTION 1 – Compel Further Responses – RFP, Set One

RELIEF REQUESTED

Plaintiff Gary Bunkofske moves, pursuant to CCP § 2031.310, for an order compelling defendant Yvette Kelley to provide further and supplemental responses to the first set of requests for production served upon Defendant in this matter (“RFP1”), in particular request numbers 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43 & 44, and for an order directing Defendant to produce all responsive documents in her possession, custody, or control.

Kelley objected to each of the requests on the sole ground of lack of relevance and, after meeting and conferring with Bunkofske’s counsel, has stated and confirmed that she will be standing by those objections and will not respond to any of these requests despite the well-recognized broad scope which applies to civil discovery.

Bunkofske therefore requests an order compelling further responses be provided and for the responsive documents to be produced.

For the reasons set out below, Bunkofske’s motion to compel further responses to his RFPs is DENIED.

Procedural

Moving Party: Plaintiff, Gary Bunkofske
Responding Party: Defendant, Yvette J. Kelley

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): Uncertain – Plaintiff’s moving papers were served via electronic service to legalyjk@gmail.com and yjkelley@gmail.com. Defendant is pro per, and eCourt does not list Defendant’s email address. So it is unclear what is the proper electronic service address. Further, although two opposition documents were submitted, which would seem to imply that Defendant received the moving papers, problematic with that assumption is that Defendant does not indicate which of the two motions on calendar for 9/29/2023 the Opposition papers apply to. Plaintiff is to demonstrate at the hearing that the moving papers were properly served.

Moving Papers: Notice/Motion; Separate Statement

Opposition Papers: Two documents were submitted in Opposition by Defendant. However, it is not entirely clear if these Opposition documents were submitted for the motion to compel further responses to RFP, Set One, or if the Opposition documents were submitted for the motion to compel further responses to SROG, Set One. One document submitted in Opposition was titled “Defendant’s Response in Opposition to Plaintiff’s Motion to Compel Discovery.” Another document is untitled and is simply a letter addressed to the Court apologizing for the Opposition being late and asking the Court to consider the opposition document.

This statement would seem to infer that the Opposition is directed toward the RFP motion because the statement references documents. However, on pages 3-4 of the Opposition, Defendant states, “(3) The Defendant substantially complied with Plaintiff’s discovery requests by responding to 442 of 443 interrogatories. Defendant provided “Further and Supplemental” responses to Plaintiff on July 25, 2023.” This statement would seem to indicate that Defendant may think the Opposition applies to the SROG motion.

Reply Papers: No Reply

BACKGROUND

Plaintiff Bunkofske filed a Complaint on 02/24/2023 alleging four causes of action: (1) Violation of Civil Code §1590, (2) Fraud (Intentional Misrepresentation), (3) Negligent Misrepresentation, and (4) Conversion.

This action stems from Bunkofske alleging that he gave Kelley a ring in contemplation of marriage, the engagement was later terminated, Kelley did not return the ring, and Kelley misrepresented to Bunkofske that Kelley valued family as much as he did.

On 04/07/2023, Kelley filed a Cross-Complaint alleging: (1) Breach of Civil Code §1590, (2) Conversion, (3) Fraud (Intentional Misrepresentation), (4) Negligent Representation, (5) Intentional Infliction of Emotional Distress, (6) Negligent Infliction of Emotional Distress, and (7) Abuse of Process.

On 06/07/2023, Kelley filed a First Amended Cross-Complaint (FACC) alleging one cause of action for Conversion.

As to the allegations in the FACC, Kelley alleges that in 2017 she and Bunkofske and were engaged and began living together.

Kelley alleges that in 2020, the two decided to renovate Bunkofske’s property located at 1135 Kildonan Dr. in Glendale, CA. Since renovations could have taken over a year to complete, Kelley alleges she purchased a duplex for the couple to live in temporarily while the house at Kildonan Dr. was being renovated.

Kelley alleges that in 2021 the couple moved into the duplex that Kelley bought, located at 1305 E. Broadway in Glendale, CA.

Kelley alleges that the couple moved some of their possessions into the duplex, but left most of their property in the three-car garage of the home on Kildonan Drive because they planned to move back after the renovations were complete.

Kelley alleges that some of her personal property was left in Bunkofske’s garage. Kelley further alleges that some of her valuable possessions were also left in Bunkofske’s safe.

Kelley alleges that in addition to the items left in Bunkofske’s garage and safe, Bunkofske has not compensated her for furniture and rugs they acquired together during their engagement. Kelley alleges that her personal property is being held hostage and that Bunkofske is using the personal property as leverage to try and force her to return the engagement ring.

The instant two motions pertain to compelling further responses to RFP, Set One, and SROG, Set One, that was propounded on Kelley on April 18, 2023.

ANALYSIS

LEGAL STANDARD – COMPEL FURTHER – REQUESTS FOR PRODUCTION

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.”

CCP § 2031.310(a) provides that a party demanding a document inspection may move for an order compelling further responses to the demand if the demanding party deems that:

“(1) A statement of compliance with the demand is incomplete.

(2) A representation of inability to comply is inadequate, incomplete, or evasive.

(3) An objection in the response is without merit or too general.”

Under CCP § 2031.310 (b)(1), “The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand.”

“In the more specific context of a demand for production of a tangible thing, the party who asks the trial court to compel production must show “good cause” for the request—but unless there is a legitimate privilege issue or claim of attorney work product, that burden is met simply by a fact-specific showing of relevance.” (TBG Ins. Services Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 448.)

ANALYSIS

As a preliminary matter, Bunkofske’s notice of motion indicates that he is seeking further responses to RFPs 33-44. However, Bunkofske’s Separate Statement only includes RFPs 33-43. Since his Separate Statement did not include RFP 44, the Court will assume RFP 44 is not at issue in this motion. (See Cal. Rules of Court, Rule, 3.1345(c).)

RFPs 33-43

Since Kelley’s responses to RFPs 33-43 were all the same, the Court will first set out what RFPs 33-43 requested, and then the Court will only set out Kelley’s response once because her responses to RFPs 33-43 were identical.

RFP 33
All DOCUMENTS that evidence or reflect YOUR COMMUNICATIONS with Gary Bunkofske regarding the CONDO (“CONDO” as used herein means the condominium property located at Perla 1503 in Rosarita Beach, Mexico).

RFP 34
All DOCUMENTS that evidence or reflect YOUR COMMUNICATIONS with any PERSON other than Gary Bunkofske regarding the CONDO.

RFP 35
All DOCUMENTS that evidence or reflect YOUR contribution of any money towards the purchase of the CONDO

RFP 36
All DOCUMENTS that evidence or reflect YOUR visits to the CONDO since the end of YOUR engagement to Gary Bunkofske.

RFP 37
All DOCUMENTS that evidence or reflect YOUR COMMUNICATIONS with anyone other than Gary Bunkofske about YOUR visits to the CONDO since the end of YOUR engagement to Gary Bunkofske.

RFP 38
All DOCUMENTS that evidence or reflect any PERSON other than YOU or Gary Bunkofske who visited the CONDO since it was purchased.

RFP 39
All DOCUMENTS that evidence or reflect any PERSON other than YOU or Gary Bunkofske who visited the CONDO since the end of YOUR engagement to Gary Bunkofske.

RFP 40
All DOCUMENTS that evidence or reflect YOUR payment of money towards the MAINTENANCE (“MAINTENANCE” as used herein means maintenance, repair, upkeep, or improvements) of the CONDO.

RFP 41
All DOCUMENTS that evidence or reflect YOUR payment of money towards the MAINTENANCE (“MAINTENANCE” as used herein means maintenance, repair, upkeep, or improvements) of the CONDO since the end of YOUR engagement to Gary Bunkofske.

RFP 42
All DOCUMENTS that evidence or reflect YOUR payment of money towards taxes associated with the CONDO since the end of YOUR engagement to Gary Bunkofske.

RFP 43
All DOCUMENTS that evidence or reflect YOUR payment of money towards taxes associated with the CONDO.

Response to RFPs 33-43
Defendant objects on the ground that the interrogatory is irrelevant to the subject matter and not reasonable calculated to lead to the discovery of admissible evidence.

Again, Kelley’s response to RFPs 33-43 was identical.

TENTATIVE RULING

Plaintiff’s reason to compel further responses for each RFP was as follows:

For purposes of discovery, information is considered relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement thereof. Gonzalez v. Sup. Ct. (City of San Fernando), 33 Cal.App.4th 1539, 1546 (1995); Lipton v. Sup. Ct. (Lawyers’ Mut. Ins. Co.), 48 Cal.App.4th 1599, 1611 (1996); Stewart v. Colonial W. Agency, 87 Cal.App.4th 1006, 1013 (2001). These rules are applied liberally in favor of discovery. Colonial Life & Accident Ins. Co. v. Sup. Ct., 31 Cal.3d 785, 790 (1982). It should be noted that “relevance” as it pertains to discovery is much broader than that which pertains to evidence for trial. Relevance certainly exists here.

The information is important not just because it is directly relevant, but because they allow the parties to assess their exposure, if any, and to make intelligent decisions about how to handle the litigation. The Civil Discovery Act is designed to remove from litigation the elements of surprise or gamesmanship and allow the parties to fully understand the claims and defenses so that they may assess their position and encourage settlement or, if settlement cannot be had, to be prepared to address the issues at trial. See Puerto v. Superior Court, 158 Cal.App.4th 1242 (2008), citing Greyhound Corp. v. Superior Court, 56 Cal.2d 355, 376 (1961) and Garamendi v. Golden Eagle Ins. Co., 116 Cal.App.4th 694, 712, fn. 8 (2004).

“California’s pretrial discovery procedures are designed to minimize the opportunities for fabrication and forgetfulness, and to eliminate the need for guesswork about the other side’s evidence, with all doubts about discoverability resolved in favor of disclosure.” Glenfed Dev. Corp. v. Superior Court, 53 Cal.App.4th 1113, 1119 (1997). As stated in Norton v. Superior Court, 24 Cal.App.4th 1750, 1761 (1994):

As a practical matter, it is difficult to define at the discovery stage what evidence will be relevant at trial. Therefore, the party seeking discovery is entitled to substantial leeway. (Pacific Tel. & Tel. Co., supra, 2 Cal.3d at p. 172.) Furthermore, California's liberal approach to permissible discovery generally has led the courts to resolve any doubt in favor of permitting discovery. (Id. at p. 173.) In doing so, the courts have taken the view if an error is made in ruling on a discovery motion, it is better that it be made in favor of granting discovery of the nondiscoverable rather than denying discovery of information vital to preparation or presentation of the party’s case or to efficacious settlement of the dispute.

Defendant should be ordered to provide supplemental responses.

The subject questions in RFP1 are rather pointed and are well within the scope of discovery in terms of relevance. The action centers on a gift given to Defendant in contemplation of marriage and the return of that gift in light of the facts and circumstances giving rise to the end of that engagement. Defendant’s view and position with respect to these issues, and not just with respect to the engagement ring which is at the heart of this case, is certainly relevant as it may reveal inconsistencies and contradictions that will impact the claims being made as well as Defendant’s credibility. Documents related to these issues are thus relevant.

In addition to the engagement ring, a condominium in Rosarita Beach, Mexico was acquired during the relationship and the nature and disposition of that property is the subject of a separate dispute between the parties in Mexico. Plaintiff purchased that property, but title to the property is in both parties’ names. Requests 33 through 44 seek to obtain documentation related to that property and Defendant’s position with respect thereto – in particular whether she contends it was or was not a gift in contemplation of marriage – as well as the identity of potential witnesses (those who have visited the property with Defendant and possibly had communications with her regarding the nature of the property) and whether she has contributed to any of the expenses associated with the property either during or post-engagement. Lake Decl., Exhibit A.

Despite the clear relevance of the questions, and the well-recognized scope of discovery, Defendant has objected to each of them and has refused to answer them based upon a purported lack of relevance.

(Pl. Sep. Stmt. p. 2-4.)

Under CCP § 2031.310 (b)(1), “The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand.”

Here, the Court finds that Bunkofske has not demonstrated good cause for the discovery at issue.

Bunkofske states that the discovery at issue pertains to a property in Mexico that was allegedly purchased by Bunkofske, but title allegedly is in both parties’ names. He admits that the property in Mexico is the subject of a separate dispute between the parties in Mexico. It is unclear how those requests are relevant to the instant action when Bunkofske admits that the requests pertain to a property in Mexico that is the subject of a separate dispute in Mexico.

Neither the Complaint nor the FACC discuss a property located in Mexico. The Complaint predominantly focuses on a ring, and the FACC mentions two properties in Glendale, CA.

Therefore, based partly on Plaintiff’s own admission that this discovery pertains to a separate dispute between the parties in Mexico, the Court finds that Bunkofske has not demonstrated good cause for the instant requests.

Plaintiff’s motion to compel further responses to RFP, Set One, Numbers 33-44 is DENIED. RFPs 33-43 lacked good cause, and RFP 44 was not included in Plaintiff’s separate statement.

SANCTIONS

Except as provided in subdivision (j), 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 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).)

“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).)

Here, neither party requested sanctions. Therefore, sanctions are not granted.

MOTION 2 – Compel Further Responses – SROG, Set One

RELIEF REQUESTED

Bunkofske also moves, pursuant to CCP § 2030.300, for an order compelling Kelley to provide further and supplemental responses to the first set of special interrogatories served upon Kelley in this matter (“SROG1”), in particular, special interrogatory numbers 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93 & 94.

Kelley objected to each of the interrogatories on the sole ground of lack of relevance and, after meeting and conferring with Bunkofske’s counsel, has stated and confirmed that she will be standing by those objections and will not respond to any of these questions despite the well-recognized broad scope which applies to civil discovery.

Bunkosfke therefore requests an order compelling further responses be provided.

For the reasons set out above, and for reasons similar to the reasons set out with respect to Bunkofske’s motion to compel further responses to his RFPs, the Court will DENY this motion as well.

Procedural

Moving Party: Plaintiff, Gary Bunkofske
Responding Party: Defendant, Yvette J. Kelley

Moving Papers: Notice/Motion; Separate Statement

Further, it is unclear if “Defendant’s Response in Opposition to Plaintiff’s Motion to Compel Discovery” applies to the RFP or the SROG motion because the first paragraph of the Opposition on page 2 of the Opposition states, “Defendant opposes Plaintiff’s Motion for an Order to Compel on the grounds that (1) the documents requested are not relevant to the lawsuit; (2) certain documents are protected from disclosure by the Defendant’s privacy rights; and (3) the Defendant has substantially complied with Plaintiff’s discovery requests.” (Oppo. p.2.) This statement would seem to infer that the Opposition is directed toward the RFP motion because the statement references documents. However, on pages 3-4 of the Opposition, Defendant states, “(3) The Defendant substantially complied with Plaintiff’s discovery requests by responding to 442 of 443 interrogatories. Defendant provided “Further and Supplemental” responses to Plaintiff on July 25, 2023.” This statement would seem to indicate that Defendant may think the Opposition applies to the SROG motion.

Reply Papers: No Reply

LEGAL STANDARD - COMPEL FURTHER RESPONSES TO INTERROGATORIES

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.)

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).)

ANALYSIS

Below the Court will first list SROGs 81-94, then the Court will list Kelley’s response. Since Kelley provided identical responses to SROGs 81-94, the Court will list just that one response.

SROG 81
Do YOU contend that the CONDO (“CONDO” as used herein means the condominium property located at Perla 1503 in Rosarita Beach, Mexico) was not a gift in contemplation of marriage?

SROG 82
If YOUR response to interrogatory 81 is in the affirmative, state all facts that support YOUR contention that the CONDO was not a gift in contemplation of marriage.

SROG 83
Did YOU contribute any money towards the purchase of the CONDO?

SROG 84
If YOUR response to interrogatory 83 is in the affirmative, state with precision the amount of money you contributed towards the purchase of the CONDO.

SROG 85
If YOUR response to interrogatory 83 is in the negative, state all facts that support YOUR contention that the CONDO was a gift in contemplation of marriage.

SROG 86
Have YOU visited the CONDO since the end of YOUR engagement to Gary Bunkofske?

SROG 87
If YOUR response to interrogatory 86 is in the affirmative, state the dates on which YOU have visited the CONDO since the end of YOUR engagement to Gary Bunkofske.

SROG 88
If YOUR response to interrogatory 86 is in the affirmative, provide the CONTACT INFORMATION for any PERSON who visited the CONDO with YOU since the end of YOUR engagement to Gary Bunkofske.

SROG 89
Have YOU paid any money towards the MAINTENANCE (“MAINTENANCE” as used herein means maintenance, repair, upkeep, or improvements) of the CONDO since the end of YOUR engagement to Gary Bunkofske?

SROG 90
If YOUR response to interrogatory 89 is in the affirmative, state with precision the amount of money YOU have paid towards the MAINTENANCE of the CONDO since the end of YOUR engagement to Gary Bunkofske.

SROG 91
If YOUR response to interrogatory 89 is in the affirmative, state with precision the dates on which YOU paid money towards the MAINTENANCE of the CONDO since the end of YOUR engagement to Gary Bunkofske.

SROG 92
Have YOU paid any money towards taxes associated with the CONDO since the end of YOUR engagement to Gary Bunkofske?

SROG 93
If YOUR response to interrogatory 92 is in the affirmative, state with precision the amount of money YOU have paid towards taxes associated with the CONDO since the end of YOUR engagement to Gary Bunkofske.

SROG 94
If YOUR response to interrogatory 92 is in the affirmative, state with precision the dates on which YOU have paid money taxes associated with the CONDO since the end of YOUR engagement to Gary Bunkofske.

Responses to SROGs 81-94
Cross-Complainant objects on the ground that the interrogatory is irrelevant to the subject matter and not reasonable calculated to lead to the discovery of admissible evidence.

TENTATIVE RULING

Bunkofske’s reason to compel further responses as to each SROG was as follows:

Defendant should be ordered to provide supplemental responses.

The subject questions in SROG1 are rather pointed and are well within the scope of discovery in terms of relevance. The action centers on a gift given to Defendant in contemplation of marriage and the return of that gift in light of the facts and circumstances giving rise to the end of that engagement. Defendant’s view and position with respect to these issues, and not just with respect to the engagement ring which is at the heart of this case, is certainly relevant as it may reveal inconsistencies and contradictions that will impact the claims being made as well as Defendant’s credibility.

In addition to the engagement ring, a condominium in Rosarita Beach, Mexico was acquired during the relationship and the nature and disposition of that property is the subject of a separate dispute between the parties in Mexico. Plaintiff purchased that property, but title to the property is in both parties’ names. Interrogatories 81 through 94 seek to obtain information related to that property and Defendant’s position with respect thereto – in particular whether she contends it was or was not a gift in contemplation of marriage – as well as the identity of potential witnesses (those who have visited the property with Defendant and possibly had communications with her regarding the nature of the property and whether she has contributed to any of the expenses associated with the property post-engagement. Lake Decl., Exhibit A.

(Pl. Sep. Stmt. p. 2-4.)

Unlike a motion to compel further responses with respect to requests for production, a motion to compel further responses with respect to SROGs does not require good cause by movant. Here, Kelley either did not submit Opposition, or he Opposition is entirely unresponsive. Kelley stated only that “ The Defendant substantially complied with Plaintiff’s discovery requests by responding to 442 of 443 interrogatories. Defendant provided “Further and Supplemental” responses to Plaintiff on July 25, 2023.” (Def. Oppo. p. 3.)

All of that said, and even though the burden is on Kelley to justify any objections and the Opposition did not stand behind its objections, the Court finds, for reasons similar to the ones set out above with respect to the first motion to compel, that Kelley’s responses are valid objections as to irrelevancy

For the reasons already discussed in the first motion, the Court finds that Defendant asserted valid objections. The Mexican condo appears irrelevant to the claims in the Complaint and the First Amended Cross-Complaint.

Plaintiff’s motion to compel further responses to SROGs 81-94 is DENIED.

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).)

Here, neither party requested sanctions, so no sanctions are awarded.