Judge: Curtis A. Kin, Case: 19STCV38577, Date: 2023-01-31 Tentative Ruling

Case Number: 19STCV38577    Hearing Date: January 31, 2023    Dept: 72

MOTIONS TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION, SET THREE

Date:       1/31/23 (8:30 AM)                                       

Case:       Western Diocese of the Armenian Church, et al. v. Taglyan (19STCV38577)

TENTATIVE RULING:

Defendant Petros Taglyan’s Motion to Compel Further Responses to Requests for Production, Set Three is GRANTED IN PART.

Defendant Petros Tagylan filed a motion for an order to: (1) compel plaintiff Western Diocese of the Armenian Church of North America (“Diocese”) to serve further responses to Requests for Production, Set Three, Nos. 90-94, 96-119, 121, 122, 124, and 126-131; and (2) compel plaintiff St. John Armenian Apostolic Church Hollywood, California (“Church”) to serve further responses to Requests for Production, Set Three, Nos. 98-102, 104-122, 124-127, 129, 130, 132, and 134-139.

As a preliminary matter, defendant did not pay a separate filing fee for each of the two discovery sets. The filing fee required by Government Code § 70617(a)(4) concerning discovery motions applies “separately to each motion or other paper filed,” “[r]egardless of whether each motion or matter is heard at a single hearing or at separate hearings.” (Gov. Code § 70617(f).) Because defendant seeks responses to two different discovery sets, defendant was required to pay two separate $60 filing fees, i.e., $120 in total. Having paid only one $60 filing fee, $60 remains due from defendant.

Defendant acknowledges that plaintiffs served supplemental responses on January 17, 2023 after the filing of the instant motion. (Reply at 1:5-7.) Defendant still seeks further responses to Request Nos. 90-93, 96, and 97 propounded on Diocese and Request Nos. 99, 100, 104, and 105 propounded on Church.

With respect to Request Nos. 96 and 97 to Diocese and Request Nos. 104 and 105 to Church, which seek documents related to Church’s Building Committees, plaintiffs responded that they are unable to comply with the requests because the items sought do not exist. These responses do not comply with CCP § 2031.230. Plaintiffs do not attribute their inability to comply to any of the reasons set forth CCP § 2031.230, including whether the documents have never existed, have been destroyed, have been lost, misplaced, or stolen, or have never been, or are no longer in their possession, custody, or control. Contrary to plaintiffs’ assertion, “does not exist” is not the same as “never existed.” A responsive document could have existed at one time but could no longer exist because it was destroyed, for example. For documents that purportedly do not exist, plaintiffs must affirmatively state the reason why they do not exist using the reasons set forth in CCP § 2031.230. Further responses to Request Nos. 96 and 97 propounded on Diocese and Request Nos. 104 and 105 propounded on Church are required.

With respect to Request Nos. 90-93 to Diocese and Request Nos. 99 and 100 to Church, defendant seeks the following documents:            

DOCUMENT REQUEST NO. 90 TO DIOCESE:

ALL meeting minutes of the DIOCESAN COUNCIL from January 1, 2003 through the present.

DOCUMENT REQUEST NO. 91 TO DIOCESE:

ALL YOUR annual reports from January 1, 2003 through the present.

DOCUMENT REQUEST NO. 99 TO CHURCH:

ALL annual reports of the DIOCESE from January 1, 2003 through the present.

DOCUMENT REQUEST NO. 92 TO DIOCESE:

ALL annual reports of ANY of YOUR Building Committee or Building Committees from January 1, 2003 to the present.

DOCUMENT REQUEST NO. 93 TO DIOCESE:

ALL meeting minutes of ANY of YOUR Building Committee or Building Committees from January 1, 2003 to the present.

DOCUMENT REQUEST NO. 100 TO CHURCH:

ALL annual reports of ANY DIOCESE Building Committee from January 1, 2003 to the present.

Defendant may have good cause to seek the documents sought. The requested meeting minutes and annual reports may be probative of Diocese’s operations regarding the construction of new churches and, by extension, the Church at issue in the instant action. The requested documents may be probative of whether there was mutual assent in defendant’s alleged oral agreement to fund the construction of a new church (SAC ¶¶ 76, 77; T. M. Cobb Co. v. Superior Court (1984) 36 Cal.3d 273, 282 [necessary mutual consent for a contract is determined by “what the outward manifestations of consent would lead a reasonable person to believe”].) With respect to the promissory estoppel and promissory fraud causes of action, the requested documents may also be probative of whether plaintiffs’ reliance on defendant’s alleged promise to fund the construction of a new church was reasonable. (SAC ¶¶ 87, 97; Jones v. Wachovia Bank (2014) 230 Cal.App.4th 935, 945 [element of promissory estoppel includes reasonable reliance]; Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513, 519 [justifiable reliance is an element of fraud].)

However, as phrased, the overbroad requests are not reasonably calculated to lead to admissible evidence. (See CCP § 2017.010.) The twenty-year scope of the requests may be relevant because the events alleged by plaintiffs began in 2003 (SAC ¶¶ 13-16), the requests for 20-years of documents are not limited based on subject matter. (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 221 [discovery devices “should be well calibrated; the lancet is to be preferred over the sledge hammer”].) To limit the requests to probative documents, plaintiffs are ordered to serve further responses based on the following churches, the construction of which is set forth in the “Who We Are” document published by Diocese:

·                     St. Peter, Glendale

·                     St. Gregory the Illuminator, Pasadena

·                     St. Kevork, Portland

·                     St. Apkar, Scottsdale

·                     St. Sarkis, Santa Clarita

·                     St. Leon Armenian Cathedral, Burbank

·                     St. Garabed, Rancho Mirage

·                     Holy Resurrection, Seattle

·                     Armenian Church of Crescenta Valley

·                     Armenian Church of Las Vegas

(Lode Decl. ¶ 6 & Ex. D at 37.)

Plaintiffs object to the discovery based on privacy and burden. Plaintiffs do not meet their burden to justify such objections. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255, citing Coy v. Superior Court (1962) 58 Cal.2d 210, 220-21 [“[I]f a timely motion to compel has been filed, the burden is on responding party to justify any objection”].)

While parishioners may have a right of associational privacy, plaintiffs do not provide any evidence that the requested documents identify any parishioners. (See Britt v. Superior Court (1978) 20 Cal.3d 844, 852 [“[C]ompelled disclosure of an individual's private associational affiliations and activities . . . frequently poses one of the most serious threats to the free exercise of this constitutionally endowed right [of association]”].) Further, any privacy right here is outweighed by defendant’s right to conduct discovery. (SCC Acquisitions, Inc. v. Superior Court (2015) 243 Cal.App.4th 741, 756 [“The discovery’s relevance to the subject matter of the pending dispute and whether the discovery ‘“appears reasonably calculated to lead to the discovery of admissible evidence” ’ is balanced against the corporate right of privacy”].)

Plaintiffs also did not provide any evidence indicating that complying with the requests would pose an undue burden. (See West Pico Furniture Co. of Los Angeles v. Superior Court (1961) 56 Cal.2d 407, 417 [“The objection based upon burden must be sustained by evidence showing the quantum of work required, while to support an objection of oppression there must be some showing either of an intent to create an unreasonable burden or that the ultimate effect of the burden is incommensurate with the result sought”].)

The requests are not duplicative of the prior discovery referenced by plaintiffs because the requests at issue are broader, as opposed to the prior discovery that was limited by subject matter. (Alexander Decl. ¶¶ 11-12 & Exs. H [Request No. 44], I [Request Nos. 2, 7, 10].)

The motion is GRANTED IN PART. Within fifteen (15) days hereof, plaintiff Western Diocese of the Armenian Church of North America shall serve further verified responses, without objection, to Requests for Production, Set Three, Nos. 90-93, 96, and 97 and serve responsive documents thereto as modified above. Within fifteen (15) days hereof, plaintiff St. John Armenian Apostolic Church Hollywood, California shall serve further responses, without objection, to Requests for Production, Set Three, Nos. 99, 100, 104, and 105 and serve responsive documents thereto as modified above.

Within five (5) court days hereof, plaintiffs shall pay an additional $60 to cover the additional discovery set that this motion concerns. If plaintiffs do not pay the fee within the stated deadline, the order compelling responses shall apply only to Western Diocese of the Armenian Church of North America.