Judge: Curtis A. Kin, Case: 21STCV13633, Date: 2022-12-06 Tentative Ruling

Case Number: 21STCV13633    Hearing Date: December 6, 2022    Dept: 72

MOTION FOR TERMINATING SANCTIONS

OR, IN THE ALTERNATIVE,

ISSUE AND EVIDENTIARY SANCTIONS

Date:               12/6/22 (8:30 AM)

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

TENTATIVE RULING:

Plaintiffs Susan Gradman and Wayne Gradman’s Motion for Terminating Sanctions or, in the Alternative, Issue and Evidentiary Sanctions is DENIED.

Plaintiffs Susan Gradman and Wayne Gradman’s evidentiary objections are OVERRULED.

Plaintiffs Susan Gradman and Wayne Gradman move for terminating sanctions, or in the alternative, issue or evidentiary sanctions against defendant Parkview Limited Investors, LP for purportedly violating the Court’s August 25, 2022 discovery order. (Goodfried Decl. ¶ 3 & Ex. A.)

Plaintiffs argue that defendant did not produce all documents requested in Demands for Production, Set One, Nos. 3, 6-15, and 18-20. The August 25, 2022 minute order stated: “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.” (Goodfried Decl. ¶ 3 & Ex. A at 5.)

This order did not preclude defendants from claiming that they complied with the document requests in full, pursuant to CCP § 2031.220. Defendant was only required to produce documents “[t]o the extent that defendant has not served documents responsive to Demands for Production, Set One, Nos. 3, 6-15, and 18-20….” (Goodfried Decl. ¶ 3 & Ex. A at 5.)

With respect to Demand Nos. 11-15 and 18-20, the Court found that defendant’s responses were adequate because defendant represented that it would produce all responsive documents in its possession, custody, or control, as required by CCP § 2031.220. (Goodfried Decl. ¶ 3 & Ex. A at 2.) With respect to Demand No. 6, the Court found that based on an agreement from plaintiff regarding the time period governing the request, the Court found that defendant’s response complied with CCP § 2031.220. (Goodfried Decl. ¶ 3 & Ex. A at 2.)

With respect to Demand Nos. 3, 7, 8, 9, and 10, defendant had responded that it would produce “non-privileged” documents in its possession, custody, or control. (Goodfried Decl. ¶ 3 & Ex. A at 2-3.) The Court found that defendant did not justify any assertion of privilege. (Goodfried Decl. ¶ 3 & Ex. A at 3.) Consequently, the Court ordered defendant to “serve further verified responses striking the word ‘non-privileged’ from its responses.” (Goodfried Decl. ¶ 3 & Ex. A at 3.)

In addition, with respect to Demand Nos. 8-10, defendant had responded that it would produce responsive, non-privileged documents in its possession, custody, or control. Because defendant did not state that it will produce all responsive documents, the Court ordered defendant to “serve verified responses indicating that it is producing all responsive documents in its possession, custody, or control, as required by CCP § 2031.220.” (Goodfried Decl. ¶ 3 & Ex. A at 3.)

On September 9, 2022, defendant served further supplemental responses to Demand Nos. 3, 7, 8, 9, and 10. (Goodfried Decl. ¶ 7 & Ex. E.) For Demand No. 3, defendant responded: “Responding Party will produce all the responsive documents in its possession, custody or control.” For Demand Nos. 7-10, 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,” using the time period that was in its previous responses. (Goodfried Decl. ¶ 3 & Ex. A at 2-3.)

These further supplemental responses are in compliance with the August 25, 2022 discovery order. The further supplemental responses do not leave open any possibility that defendant is withholding documents based on a privilege.

With respect to plaintiffs’ contention that defendant is withholding documents, defendant is entitled to contend during discovery that it produced all responsive documents in its possession, custody, and control. (See CCP § 2031.220; Lake Decl. ¶ 23; Duggan Decl. ¶¶ 3, 4.) If plaintiffs maintain defendant has not been diligent and reasonable and/or intentionally withheld responsive documents, plaintiffs may seek any relief to which they believe they are entitled upon an actual showing that is the case, e.g., testimony or other competent evidence that defendant has concealed evidence.  Plaintiffs’ current conjecture, speculation, and incredulity is insufficient.

Plaintiffs also contend that defendant did not comply with the Court’s discovery order with respect to Special Interrogatory, Set One, No. 4, wherein defendant was asked: “If YOU contend that the TRUST is not as [sic] a limited partner in YOU but that the TRUST has the right to become a limited partner, then state each step that the TRUST needs to take and each document that the TRUST need to present to you in order to be admitted as a limited partner in YOU.” (Goodfried Decl. ¶ 3 & Ex. A at 5.) Defendant had responded “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.” (Goodfried Decl. ¶ 3 & Ex. A at 7.)

The Court found this response insufficient. The Court noted: “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.” (Goodfried Decl. ¶ 3 & Ex. A at 7.)  

Defendant’s further supplemental response states: “Propounding Party is incapable of complying 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, and therefore cannot be admitted as a substitute limited partner and is a transferee with the rights afforded to transferees under Cal. Corp. Code, § 15907.02.” (Goodfried Decl. ¶ 7 & Ex. I.) This response is sufficient. As Special Interrogatory No. 4 is phrased, defendant was required to set forth the steps the Fiske Living Trust needs to take to become a limited partner only if defendant contends that the trust has the right to become a limited partner. Defendant’s further supplemental response sets forth its contention that the Fiske Living Trust is incapable of becoming a limited partner. Therefore, defendant was not required to state what the Fiske Living Trust must do to become a limited partner.

The motion is DENIED.

Defendant requests monetary sanctions for plaintiffs’ purported misuse of the discovery process. CCP §§ 2030.300(e) and 2031.310(i) allow for the imposition of a monetary sanction “[i]f a party then fails to obey an order compelling further response.”  However, these statutes do not provide for imposition of a monetary sanction when a party unsuccessfully makes a motion for issue, evidentiary, or terminating sanctions, unlike in the case of unsuccessful motions to compel further responses. (Cf. CCP §§ 2030.300(d), 2031.310(h).) Accordingly, defendant’s request for monetary sanctions is DENIED.