Judge: Curtis A. Kin, Case: 21STCV13633, Date: 2022-08-25 Tentative Ruling


Case Number: 21STCV13633    Hearing Date: August 25, 2022    Dept: 72

MOTION TO COMPEL FURTHER RESPONSES TO DEMANDS FOR PRODUCTION, SET ONE

 

MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET ONE

  

Date:               8/25/22 (8:30 AM)                             

Case:               Susan Gradman et al. v. Parkview Limited Investors, LP (21STCV13633)

 

TENTATIVE RULING:

 

Plaintiff Susan Gradman’s Motion to Compel Further Responses to Demands for Production, Set One is GRANTED IN PART.

 

Plaintiff Susan Gradman’s Motion to Compel Further Responses to Special Interrogatories, Set One is GRANTED IN PART.

 

I.                DEMANDS FOR PRODUCTION, SET ONE

 

Plaintiff Susan Gradman, as Co-Trustee of the Fiske Living Trust of June 14, 1967, as Amended and Restated on January 29, 2015, moves to compel further responses from defendant Parkview Limited Investors, LP to Demands for Production, Set One, Nos. 1-15 and 17-20.

 

Plaintiff’s request for judicial notice is DENIED as “unnecessary to the resolution” of the issues before the Court. (Martinez v. San Diego County Credit Union (2020) 50 Cal.App.5th 1048, 1075.)

 

After the motion was filed, defendant served supplemental responses to Demand Nos. 3, 6-15, and 18-20 (Lake Decl. ¶ 6 & Ex. B), which the Court will address first.

 

As a preliminary matter, plaintiff seeks the striking of defendant’s objections. “[I]f a timely motion to compel has been filed, the burden is on responding party to justify any objection.” (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255, citing Coy v. Superior Court (1962) 58 Cal.2d 210, 220-21.) The parties agreed that plaintiff may have until June 1, 2022 to file this motion. (Adams Decl. ¶ 7; Lake Decl. ¶ 3.) This motion was filed and served on June 1, 2022.  Defendant thus had the burden to justify its objections. Except to state that the objections are not boilerplate (Opp. at 9, fn. 9), defendant did not attempt to justify its objections to Demand Nos. 3, 6-15, and 18-20. Further, although defendant objected based on the attorney-client privilege or attorney work product doctrine for Demand Nos. 11, 12, 13, 14 (mislabeled as 15), 15 (mislabeled as 16), and 20, defendant did not provide any privilege log whereby the Court could evaluate the merits of the claim of privilege, as required by CCP § 2031.240(c)(1). Accordingly, defendant does not meet its burden to justify any of its objections. The objections to Demands for Production, Set One, Nos. 3, 6-15, and 18-20 are STRICKEN.

 

With respect to the substance of the responses, the supplemental responses to Demand Nos. 11, 12, 13, 14 (mislabeled as 15), 15 (mislabeled as 16), 18, 19, and 20 are adequate. Defendant responded, “Responding Party will produce all the responsive documents in its possession, custody or control.” These responses comply with CCP § 2031.220. (CCP § 2031.220 [“A statement that the party to whom a demand for inspection . . . has been directed will comply with the particular demand shall state that the production . . . demanded, will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production”].)

 

The supplemental response to Demand No. 6 is also adequate. Defendant responded, “Responding Party will produce all the responsive documents in its possession, custody or control during the period of October 8, 2013 to present.” The limited period for documents is the same period proposed by plaintiff during the meet and confer process. (Adams Decl. ¶ 5 & Ex. D at 4.) Based on this agreement, defendant’s response complies with CCP § 2031.220.


By contrast, the supplemental responses to Demand Nos. 3, 7, 8, 9, and 10 are inadequate. For these demands, defendant stated it will produce:

 

 

 

 

For Demand Nos. 7-10, the limited period for documents is acceptable based on plaintiff’s agreement during the meet and confer process. (Adams Decl. ¶ 5 & Ex. D at 4-5.) However, by indicating it would produce “non-privileged” documents for Demand Nos. 3 and 7-10, defendant leaves open the possibility that it is withholding documents based on a privilege. As stated above, defendant did not provide any privilege log whereby the Court could evaluate the merits of any claim of privilege. Moreover, defendant did not object based on the attorney-client privilege or the attorney work product doctrine.

 

Accordingly, for Demand Nos. 3, 7, 8, 9, and 10, defendant is required to serve further verified responses striking the word “non-privileged” from its responses. Moreover, for Demand Nos. 8-10, because defendant did not justify any of its objections, defendant must serve verified responses indicating that it is producing all responsive documents in its possession, custody, or control, as required by CCP § 2031.220.

 

The remaining demands at issue are Demand Nos. 1, 2, 4, 5 and 17, which are set forth below:

 

 

 

 

 

 

With respect to Demand Nos. 1, 2, 4, and 5, the demands are overbroad. They are not limited by time period or subject matter. Plaintiff alleges that Dr. David Fiske purchased an interest in defendant Parkview Limited Investors, LP in 1972. (SAC ¶ 10.) Accordingly, plaintiff is seeking 50 years of documents sent to or received by David Fiske, as well as 50 years of documents about David Fiske without limitation. While the scope of discovery is broad under CCP § 2017.010, discovery devices “should be well calibrated; the lancet is to be preferred over the sledge hammer.” (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 221.) Plaintiffs Susan Gradman and Wayne Gradman assert that they are substitute limited partners in Parkview by virtue of Dr. Fiske’s transfer of his interest to the Fiske Living Trust of June 14, 1967 and therefore should be able to inspect documents and records of the partnership. (SAC ¶¶ 9, 11, 14, 15, 34.) However, plaintiffs do not explain how any document sent to or received from Dr. Fiske would be probative of their assertion, let alone how any document “regarding” Dr. Fiske would be probative.  Perhaps certain such documents may be relevant, but the Court is under no obligation to redraft the vastly overbroad demands. (Deaile v. General Telephone Co. of California (1974) 40 Cal.App.3d 841, 851.)

 

With respect to Demand No. 17, plaintiff seeks “[a]ny and all DOCUMENTS that relate or pertain, discuss, describe or evidence, the information set forth in the 2018 schedule K-1 . . . .” Defendant argues that the requested documents are those to which plaintiff would be entitled only if plaintiff is found to be a substitute limited partner. That argument misses the point, as plaintiff does not have to prove the underlying claim in order to obtain relevant discovery to prove the claim. (Williams v. Superior Court (2017) 3 Cal.5th 531, 558 [“[T]o show the merits of one's case has never been a threshold requirement for discovery in individual . . . cases”].) Nevertheless, requested discovery must still be relevant or reasonably calculated to lead to the discovery of admissible evidence. (CCP § 2017.010.) Plaintiff argues the requested documents are relevant because “the Schedule K-1 prepared and filed by the Defendant clearly acknowledged the fact that the Fiske Living Trust is a limited partner in the Defendant – thereby completely undermining Defendant’s legal position that the Trust is purportedly not a limited partner in the Defendant.” (Separate Statement at 41:23-26.) However, plaintiff does not explain how the information set forth in Schedule K-1 would further the investigation into the threshold issue of whether plaintiffs are substitute limited partners or merely transferees. Indeed, plaintiff appears to argue that Schedule K-1 itself, not the information used to prepare the form, is evidence that plaintiffs are partners. Plaintiff does not state good cause for production of the documents requested in Demand No. 17.

 

For the reasons stated above, the motion as to Demand Nos. 1, 2, 4, 5, and 7 is DENIED.

 

In summary, the motion is GRANTED IN PART. The objections to Demands for Production, Set One, Nos. 3, 6-15, and 18-20 are STRICKEN. Within fifteen (15) days hereof, defendant Parkview Limited Investors, LP is ordered to serve further verified responses to Demands for Production, Set One, Nos. 3, 7, 8, 9, and 10, wherein the word “non-privileged” is stricken from its responses. Moreover, for Demands for Production, Set One, Nos. 8-10, defendant must serve verified responses indicating that it is producing all responsive documents in its possession, custody, or control, as required by CCP § 2031.220.

 

To the extent that defendant has not served documents responsive to Demands for Production, Set One, Nos. 3, 6-15, and 18-20, defendant Parkview Limited Investors, LP is ordered to serve responsive documents in their native electronic format, as described in the definition of “electronic records” in Demands for Production, Set One, within fifteen (15) days hereof. (Adams Decl. ¶ 3 & Ex. A at 2.)

 

Given the mixed result, plaintiff’s request for sanctions is DENIED.

 

II.                SPECIAL INTERROGATORIES, SET ONE

 

Plaintiff Susan Gradman, as Co-Trustee of the Fiske Living Trust of June 14, 1967, as Amended and Restated on January 29, 2015, moves to compel further responses from defendant Parkview Limited Investors, LP to Special Interrogatories, Set One, Nos. 1, 2, 4, and 5, which are set forth below:

 

 

 

 

 

Plaintiff’s request for judicial notice is DENIED as “unnecessary to the resolution” of the issues before the Court. (Martinez, 50 Cal.App.5th at 1075.)

 

After the motion was filed, defendant served supplemental responses to the special interrogatories at issue. (Lake Decl. ¶ 6 & Ex. B.)

 

As a preliminary matter, plaintiff seeks to strike defendant’s objections to the interrogatories. “[I]f a timely motion to compel has been filed, the burden is on responding party to justify any objection.” (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255, citing Coy v. Superior Court (1962) 58 Cal.2d 210, 220-21.) The parties agreed that plaintiff may have until June 1, 2022 to file this motion. (Adams Decl. ¶ 7; Lake Decl. ¶ 3.) This motion was filed and served on June 1, 2022.  Defendant thus has the burden to justify its objections to these demands. Except to state that supplemental responses were served, defendant does not attempt to justify its objections to Special Interrogatories, Set One, Nos. 1, 2, 4, and 5. Accordingly, defendant does not meet its burden to justify any of its objections. The objections to Special Interrogatories, Set One, Nos. 1, 2, 4, and 5 are STRICKEN.

 

With respect to the substance of the response to Special Interrogatory No. 1, defendant’s supplemental response states: “Propounding Party failed to comply with the admission provisions and requirements of the Agreement, Certificate and Articles of Limited Partnership of Parkview Limited which was recorded with the Los Angeles County Recorder on December 29, 1972, as instrument number 6303 (the ‘Partnership Agreement’), in particular Articles XII, XVI, and XVII thereof.”  This supplemental response to Special Interrogatory No. 1 is sufficient. Defendant indicates that the Fiske Living Trust has not been admitted as a limited partner because plaintiff failed to comply with Articles XII, XVI, and XVII of the Partnership Agreement.

 

With respect to Special Interrogatory No. 2, defendant’s supplemental response states:

“Propounding Party failed to comply with the admission provisions and requirements of the Agreement, Certificate and Articles of Limited Partnership of Parkview Limited which was recorded with the Los Angeles County Recorder on December 29, 1972, as instrument number 6303 (the ‘Partnership Agreement’), in particular Articles XII, XVI, and XVII thereof.”  This supplemental response to Special Interrogatory No. 2 is sufficient. Defendant indicates that the Fiske Living Trust cannot be admitted as a limited partner because plaintiff failed to comply with Articles XII, XVI, and XVII of the Partnership Agreement.

 

With respect to Special Interrogatory No. 4, defendant’s supplemental response states: “Propounding Party would have needed to comply with the admission provisions and requirements of the Agreement, Certificate and Articles of Limited Partnership of Parkview Limited which was recorded with the Los Angeles County Recorder on December 29, 1972, as instrument number 6303 (the ‘Partnership Agreement’), in particular Articles XII, XVI, and XVII thereof.”  This supplemental response to Special Interrogatory No. 4 is not sufficient. Plaintiff asked defendant to set forth the steps plaintiff needs to take to become a limited partner if defendant contends that the Fiske Living Trust has the right to become a limited partner. Defendant’s supplemental response is phrased in the conditional past tense.  It gives no indication of what, if anything, the Trust must do to become a limited partner, including whether plaintiff could do so by complying with Articles XII, XVI, and XVII of the Partnership Agreement or otherwise. A further response is required.

 

With respect to Special Interrogatory No. 5, defendant’s supplemental response states: “Propounding Party would have needed to comply with the admission provisions and requirements of the Agreement, Certificate and Articles of Limited Partnership of Parkview Limited which was recorded with the Los Angeles County Recorder on December 29, 1972, as instrument number 6303 (the ‘Partnership Agreement’), in particular Articles XII, XVI, and XVII thereof. Because Propounding Party is not a substitute limited partner and rather just a transferee and the rights of a transferee are not the same as those afforded to a substitute limited partner. Under the CULPA (15907.02(h)), ‘A transferee of a partnership interest … may become a limited partner if and to the extent that (1) the partnership agreement provides or (2) all general partners and a majority in interest of the limited partners consent.’ As set forth above, Propounding Party failed to comply with the admission provisions and requirements of the Partnership Agreement in particular Articles XII, XVI, and XVII thereof. [¶] Further, under the CULPA (15907.02(c)) and the Partnership Agreement, a transferee is entitled to an account of the limited partnership’s transactions only upon the dissolution and winding up of the limited partnership, neither of which has yet to occur.”

 

The supplemental response to Special Interrogatory No. 5 is sufficient. Defendant indicates that any rights David Fiske had as a limited partner died with him because plaintiff did not comply with Articles XII, XVI, and XVII of the Partnership Agreement. Defendant also indicates plaintiff does not have a right to an account of the transactions of the partnership because the partnership has not been dissolved and wound up.

 

For the reasons stated above, the motion is GRANTED IN PART.  The objections to Special Interrogatories, Set One, Nos. 1, 2, 4, and 5 are STRICKEN.  Because the supplemental responses to Special Interrogatories, Set One, Nos. 1, 2, and 5 are sufficient, no further response to those interrogatories is required.  As for Special Interrogatories, Set One, No. 4, within fifteen (15) days hereof, defendant Parkview Limited Investors, LP is ordered to serve further verified responses to Special Interrogatories, Set One, No. 4 in accordance with the ruling above.

 

Plaintiff’s request for sanctions is GRANTED IN PART. Defendant contends that, on May 11, 2022, defense counsel indicated that supplemental responses were forthcoming. (Lake Decl. ¶ 3 & Ex. A.) The May 11, 2022 email attached to the defense counsel’s declaration in support of that claim makes no mention of providing supplemental responses. In any event, even if defense counsel represented supplemental responses were forthcoming, on May 18, 2022, defense counsel stated that “some of the materials you have asked for in discovery are neither relevant nor are they calculated to lead to the discovery of admissible evidence.” (Lake Decl. ¶ 3 & Ex. A.) Plaintiff was therefore entitled to believe that a motion would be necessary to obtain sufficient responses.

 

Moreover, these special interrogatories were served over a year ago on May 18, 2021. (Adams Decl. ¶ 3 & Ex. A.) Had defendant served sufficient supplemental responses before the agreed upon deadline of June 1, 2022, the need for this motion may have been averted. Instead, defendant did not serve supplemental responses until July 29, 2022 after this motion was filed.

 

Accordingly, for failing to comply with discovery obligations and thereby forcing plaintiff to file this motion, the Court imposes a total of $2,580 in sanctions against defendant Parkview Limited Investors, LP. The monetary sanctions are based on four hours for preparing the motion, reviewing the opposition, and preparing the reply and 0.5 hours for attending the hearing, all at an hourly rate of $560 (instead of the total 8 hours counsel claims for preparing the motion, reviewing the opposition, preparing the reply, and attending the hearing), plus the motion filing fee of $60. Such monetary sanctions shall be paid to counsel for plaintiff Susan Gradman within thirty (30) days hereof.