Judge: Blaine K. Bowman, Case: 37-2022-00050178-CU-MC-NC, Date: 2023-11-17 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - November 16, 2023

11/17/2023  01:30:00 PM  N-31 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Blaine K. Bowman

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Civil - Unlimited  Misc Complaints - Other Discovery Hearing 37-2022-00050178-CU-MC-NC LIFE CARE RESIDENCIES VS. TORREY PINES DEVELOPMENT [IMAGED] CAUSAL DOCUMENT/DATE FILED: Amended Motion, 08/28/2023

An appearance is necessary to discuss, precisely, the status of what discovery remains to be produced with respect to the requests at issue. To provide context for the parties to prepare for said discussion, after having reviewed the briefing, the Court's impression of the matter is as set forth below.

First, as all parties and this Court know, there is a related matter also pending in this Court entitled Life Care Residences, Inc. v. Affordable Senior Housing Foundation (S.D. Sup. Ct. No. 18-58858). On its own motion, this Court takes judicial notice of the entire publicly-available record and files in that action pursuant to Evidence Code § 451, et seq.

The underlying case involves a dispute between buyers and sellers in a complex sale-of-a-business transaction. The instant case is a case by the same sellers against the company (and some related individuals) that was hired to perform a due diligence investigation before escrow closed on the complex sale. In the instant action, which is a legally-separate and independent action (though deemed 'related'), the seller (plaintiff Life Care Residences Inc. – Plaintiff, the Seller, or Life Care) propounded discovery on the due diligence entities, which include defendants Torrey Pines Development Group LLC (Torrey Pines), Matthew Parks (Parks), and Scott Kirby (Kirby) (collectively, Defendants). Defendants responded to that request, but Plaintiff now claims those responses were inadequate.

The heart of the dispute presently between the parties appears to be that Defendants take the position that they have already responded to these requests in the other litigation such that responding to them again is burdensome, duplicative, and wasteful. Plaintiff responds that this is a separate lawsuit such that it is entitled to re-propound the same discovery in any event, but even if it was not, Plaintiff further claims that the scope of the present discovery is different from the prior discovery. The Court finds little merit in the positions of either side, and, in particular, does not see evidence that either side has engaged in a meaningful meet and confer process.

For Defendants, their own counsel has produced a declaration presenting two things that are in contradiction. First, defense counsel declares: 'I indicated that Defendants could produce the duplicative discovery, but it would be the same as that already produced. Defendants are still willing to do so.' (ROA 102, ¶ 3 (emphasis added)). However, a mere two paragraphs down, defense counsel also declares: 'We both agreed we would discuss this item later. We never discussed this issue again since we are at an impasse whether to product the documents that have already been produced.' (ROA 102, ¶ 5 (emphasis added).) It does not make much sense, from the Court's perspective, for there to have been any 'impasse' at all if, as defense counsel expressly declares and represents, Defendants were 'willing to' 'produce the duplicative discovery.' Whether or not the duplicative nature of the Calendar No.: Event ID:  TENTATIVE RULINGS

3010507 CASE NUMBER: CASE TITLE:  LIFE CARE RESIDENCIES VS. TORREY PINES DEVELOPMENT  37-2022-00050178-CU-MC-NC response would have been burdensome, it appears that it was already largely prepared – having been produced in a prior lawsuit. As such, given that discovery is to be self-executing and parties are to meet and confer to resolve discovery issues in good faith the notion that there was a legitimate 'impasse' lacks merit when all Defendants had to do to resolve the so-called 'impasse' was what they stated they were willing to do: produce the duplicate documents. This circular and confusing nomenclature (labeling an event an 'impasse' over something a party was 'willing' to do), lends some credence to Plaintiff's argument that Defendants are attempting to stonewall or evade discovery.

However, for Plaintiffs, there does not appear to have been any good faith effort to narrow the issue in light of the fact that significant discovery had already been produced. In other words, if Defendants were indicating in their meet and confer papers that they had already produced the responsive documents in some other litigation, it would seem that a good faith effort to meet and confer and resolve the issue would have included, at the very least, an offer by the propounding party to accept responses that refer to the responsive documents by Bates Number based on the prior production. In other words, to the extent that Defendant was indicating it was a 'burden' to reproduce the same discovery, Plaintiff should have countered that to the extent that certain responsive documents have already been produced, it was acceptable to produce them by reference rather than by formal reproduction.

That, however, seems to bury the real issue. Though both parties' briefing discusses the prior production, Plaintiff takes the position that the discovery propounded in the instant case is different in scope than the prior discovery. That is not a dispute the Court is here to resolve. The law places the burden on the responding party (here, Defendants) to provide adequate responses to the requests being propounded. If Defendants' position is that all of the previously-produced responses and nothing else extra is responsive to the new requests, then so be it. Should this turn out not to be the case at a later stage of the case, appropriate sanctions can be imposed if Defendants failed to produced responsive documents – as long as they have appropriately responded, with the right language and with verifications.

Thus, it appears that the parties are disputing the scope – or, more specifically, the overlap (or lack thereof) of the scope – between the prior discovery in the related case and the current discovery that is at issue in the instant case. Answering that question will require a more nuanced approach of analyzing, request by request, the overlap of each discovery demand. The present moving papers do not sufficiently itemize, precisely, what is being requested in terms of where there is overlap and where the scope of the requests cover new material. Thus, in order to prepare for the appearance on this matter, counsel for both parties are ORDERED to meet and confer prior to the hearing to discuss specific itemization of where the requests may overlap and where they do not. The parties should come to the hearing prepared to set forth that specific list of itemized disputes as to where there is or is not overlap of the requests.

While the Court will consider and hear-out that itemization at the hearing, because the Court is familiar with the extensive nature of this litigation (including the related case which is now hitting the five-year mark), and because the case involves sophisticated parties with high-quality and experienced counsel, should the itemized list of precise disputes over which requests overlap and which do not prove lengthy or burdensome, the Court would be inclined to continue the hearing on this matter, order further meet and confer, and set the matter for hearing on an Order to Show Cause re Appointment of a Discovery Referee so that the parties can potentially have a dedicated officer focus on the precise nuances of each scope-of-discovery-request dispute that is at issue.

Finally, the Court is mindful that Plaintiff is requesting the following monetary sanctions in connection with each of the three motions pending: --as to Torrey Pines - $4,600.00 --as to Matthew Parks - $1,105.00 --as to Scott Kirby - $1,150.00 Calendar No.: Event ID:  TENTATIVE RULINGS

3010507 CASE NUMBER: CASE TITLE:  LIFE CARE RESIDENCIES VS. TORREY PINES DEVELOPMENT  37-2022-00050178-CU-MC-NC Defendants are not requesting sanctions if they prevail on the instant motions. The Court will consider the issue of monetary sanctions at the hearing and in light of the additional meet and confer efforts that the parties engage in prior to the hearing and in light of the discussion that takes place at the hearing.

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