Judge: Cynthia A Freeland, Case: 37-2020-00039920-CU-PN-NC, Date: 2024-02-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - February 01, 2024

02/02/2024  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  Professional Negligence Motion Hearing (Civil) 37-2020-00039920-CU-PN-NC GARDNER VS PLANT SOURCE INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Compel Discovery, 12/15/2023

Plaintiffs Sandra Burns Gardner and Kathleen Burns Schack (collectively, 'Plaintiffs')'s motion to compel Defendant Evergreen Twin Oaks Limited Partnership ('Defendant') to provide further responses to Special Interrogatories (Set Two), and for sanctions, is granted in part and denied in part.

Defendant's objection to Ms. Nocon's declaration and attendant exhibits is sustained to the extent Plaintiffs seek to introduce new evidence as part of their reply papers. See Jay v. Mahaffey (2013) 218 Cal. App. 4th 1522, 1537 ('The general rule of motion practice . . . is that new evidence is not permitted with reply papers . . . '[T]he inclusion of additional evidentiary matter with the reply should only be allowed in the exceptional case . . .' and, if permitted, the other party should be given the opportunity to respond.').

The court declines to deny the motion for Plaintiffs' alleged failure to meet and confer before filing the motion. Before bringing a motion to compel further responses to interrogatories, a party must make a reasonable and good faith effort to resolve each issue presented by the motion. See Cal. Code Civ. P. §§ 2016.040, 2030.300(b)(1). Whether this was accomplished depends upon the case's circumstances.

See Obregon v. Sup. Ct. (1998) 67 Cal. App. 4th 424, 431. '[T]he parties must present to each other the merits of their respective positions with the same candor, specificity, and support during informal negotiations as during the briefing of discovery motions . . . A reasonable and good-faith attempt at informal resolution entails something more than bickering . . . Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.' Townsend v. Sup. Ct.

(1998) 61 Cal. App. 4th 1431, 1435, 1439; Clement v. Alegre (2009) 177 Cal. App. 4th 1277, 1294.

In this case, the evidence shows that on July 31, 2023, Plaintiffs served Defendant with the subject interrogatories. See Nocon Decl., Ex. C. Defendant served its responses on September 12, 2023, which responses included various objections to Special Interrogatory No. 43. Ibid., Ex. D. On October 18, 2023, Plaintiffs' counsel sent Defendant's counsel a meet and confer e-mail regarding Defendant's initial responses to the special interrogatories. Ibid. Ex. E. As to Special Interrogatory No. 43, Plaintiffs' counsel indicated that Defendant had not provided any support for its objections and refusal to respond, and thus requested that Defendant serve an amended substantive response. On October 24, 2023, the parties met and conferred telephonically, during which Plaintiffs' counsel agreed to limit the properties addressed in Special Interrogatory No. 43 to those parcels subject to Plaintiffs' quiet title and trespass causes of action. Defendant's counsel agreed to consider this proposal when drafting supplemental responses Plaintiffs' discovery requests. Ibid., ¶ 8. On November 13, 2023, Defendant served supplemental responses; however, its responses did not include a further response as to Special Interrogatory No. 43. Ibid., Ex. F. On November 16, 2023, Plaintiffs' counsel e-mailed Defendant's Calendar No.: Event ID:  TENTATIVE RULINGS

3077824 CASE NUMBER: CASE TITLE:  GARDNER VS PLANT SOURCE INC [IMAGED]  37-2020-00039920-CU-PN-NC counsel asking for an extension of time to file Plaintiffs' motion to compel. Defendant's counsel granted Plaintiffs' extension request but noted that '[w]ith regard to interrogatory no. 43, we are not providing any supplement as our prior objections stand. I don't think a motion to compel is warranted . . . .' Ibid., Ex. G.

On December 13, 2013, Plaintiffs' counsel sent a follow-up e-mail indicating that while Plaintiffs intended to file their motion to compel, Plaintiffs' counsel remained amenable to discussing the issue if Defendant's counsel's position had changed since November 16, 2023. Ibid. On December 14, 2023, Defendant's counsel responded by emphasizing his continued confusion over the call of Special Interrogatory No. 43 and stating that 'we will oppose any motion to compel and our position has not changed that Interrogatory 43 is (among other objections, none of which are waived) unintelligible, vague, ambiguous, and overbroad as to time and scope, and apparently seeks information about parcels (and even portions of parcels) that are outside the scope of this case.' Ibid. Later that day, Plaintiffs' counsel responded, in relevant part, as follows: As discussed on our meet and confer call, the request seeks the amount of rent charged for the property however it was leased. I also stated our willingness to limit the request to the rent charged for the parcels impacted by the quiet title claim, including APNs 182-280-01, 182-280-09, and 182-280-10. If parcels were rented as a group, as they appear to have been in the lease agreements produced, you could state that Defendant charged [$]/month for APN [#, #, and #] from [year] to [year], [$]/month for APN [#, #, and #] from [year] to [year], etc. If the parcels were leased separately, you could state [$]/month for APN [#] from [year] to [year], and so on.

During our meet and confer, you stated that you would consider the request with the proposed limitation but did not provide a supplemental response. Further this information is directly relevant to damages for Plaintiffs' trespass claims as the value charged in rent speaks to the value of the land at issue. You could also simply remove the redactions from the lease/sublease agreements produced. Please let me know if this changes your position and/or if you would like to discuss further.

Ibid. Plaintiffs filed and served the pending motion on December 15, 2023. See ROA No. 271.

Based on the foregoing, the court finds that the parties engaged in a thorough meet and confer process but simply reached in impasse. It is clear from the parties' communications that Defendant intended to stand on its objections notwithstanding Plaintiffs' attempts to narrow the scope of Special Interrogatory No. 43. Toward that end, the court respectfully disagrees with Defendant's characterization of Plaintiffs' counsel's December 14, 2023 e-mail and how it applies to the pending motion. Defendant apparently believes that Plaintiffs, by way of the pending motion, are attempting to compel an entirely re-drafted interrogatory as set forth in the December 14, 2023 e-mail. The court disagrees. Plaintiffs indicated a willingness to limit Special Interrogatory No. 43 as set forth in the e-mail. There is no indication that Plaintiffs are now attempting to compel a response in that regard – indeed, Plaintiffs' separate statement identifies Special Interrogatory No. 43 as it was originally propounded to Defendant. See Cal. R. Ct.

3.1345(c) ('A separate statement is a separate document filed and served with the discovery motion that provides all the information necessary to understand each discovery request and all the responses to it that are at issue.').

Any party may propound written interrogatories relating to another party's facts, contentions, witnesses, or documents. See Cal. Code Civ. P. §§ 2030.010(a)-(b). The responding party must answer each interrogatory in as complete and straightforward a manner as the information reasonably available to him or her permits. See Cal. Code Civ. P. § 2030.220(a). If he or she cannot respond completely, he or she must do so to the extent possible. See Cal. Code Civ. P. § 2030.220(b). If he or she lacks personal knowledge sufficient to fully respond, he or she must so state, but must make a reasonable and good faith effort to obtain the information. See Cal. Code Civ. P. § 2030.220(c). If only part of an interrogatory is objectionable, the remainder must be answered. See Cal. Code Civ. P. § 2030.240(a). If the answer would necessitate making a compilation or summary of information contained in records, the responding party may respond by permitting the party propounding the interrogatories to inspect and copy the pertinent documents. However, this option is available to a responding party only if the responding party demonstrates that: (1) a compilation, abstract, audit or summary of the responding party's records is Calendar No.: Event ID:  TENTATIVE RULINGS

3077824 CASE NUMBER: CASE TITLE:  GARDNER VS PLANT SOURCE INC [IMAGED]  37-2020-00039920-CU-PN-NC necessary in order to respond to the interrogatory; (2) no such compilation or summary presently exists; and (3) the burden or expense of preparing or making it would be substantially the same for the propounding party as it would be for the responding party. See Cal. Code Civ. P. § 2030.230. Moreover, to exercise this option, the responding party also must specifically refer to California Code of Civil Procedure ('CCP') § 2030.230 and must specify the documents, with sufficient particularity, from which the answer may be derived or ascertained. Ibid.; see also Fuss v. Sup. Ct. (Rosenthal) (1969) 273 Cal. App. 2d 807, 815-816.

CCP § 2030.300 provides that '[o]n 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[;] [or] (3) An objection to an interrogatory is without merit or too general.' Cal. Code Civ. P. §§ 2030.300(a)(1)-(3). The propounding party is entitled to demand answers to his or her interrogatories as a matter of right and without a prior showing. See Williams v. Sup. Ct. (2017) 3 Cal. 5th 531, 541 (quoting West Pico Furniture Co. of Los Angeles v. Sup. Ct. In and For Los Angeles County (1961) 56 Cal. 2d 407, 422). The responding party bears the burden of justifying any objection and failure to respond. See Williams, 3 Cal. 5th at 541 (citing Coy v. Sup. Ct. (1962) 58 Cal. 2d 210, 220-221).

At issue is Special Interrogatory No. 43, which asks Defendant to: State the amount YOU charged per month in rent for any and/or all portions of the PREMISES from the date of YOUR first lease(s) of any and/or all of the PREMISES to the present.

The terms 'YOU', 'YOUR', 'EVERGREEN', and 'DEFENDANT' shall mean Defendant Evergreen Twin Oaks Limited Partnership (by any names which it has been or is known).

The term 'PREMISES' shall refer to the following Assessor's Parcel Numbers: 182-280-01-00, 182-280-08-00, 182-280-09-00, 182-280-10-00, 182-280-11-00, 182-280-12-00, 182-280-13-00, 182-280-14-00, 128-280-15-00, 182-240-25-00, 182-210-03-00.

See Plaintiffs' Separate Statement, p. 3. Defendant responded to Special Interrogatory No. 43 as follows: Objection. This interrogatory is unintelligible, vague, ambiguous, and overbroad as to time and scope.

This interrogatory is not reasonably calculated to lead to the discovery of admissible evidence, lacks foundation, assumes facts not in evidence, is compound, seeks an improper legal conclusion, and seeks premature expert opinion. This interrogatory seeks propriety [sic] and confidential information which is not relevant to this matter. Without waiving the forgoing objections, Responding Party answers as follows: Responding Party cannot reasonably respond to this interrogatory, given its extreme compound and unintelligible nature. Discovery continues.

Ibid.

The court finds that Plaintiffs have demonstrated good cause for an order compelling Defendant to provide a further response to Special Interrogatory No. 43. First, Defendant's objection that Special Interrogatory No. 43 is not reasonably calculated to lead to the discovery of admissible evidence is not well taken. An objection that the request is not relevant to the subject matter of the lawsuit may be a valid objection. See Cal. Code Civ. P. § 2017.010. While the scope of discovery is broad, it is not limitless. Discovery that is not reasonably calculated to lead to the discovery of admissible evidence or is not helpful in preparing for trial is not authorized. See Digital Music News LLC v. Sup. Ct. (2014) 226 Cal. App. 4th 216, 224. To determine whether discovery requested is reasonably calculated to lead to Calendar No.: Event ID:  TENTATIVE RULINGS

3077824 CASE NUMBER: CASE TITLE:  GARDNER VS PLANT SOURCE INC [IMAGED]  37-2020-00039920-CU-PN-NC the discovery of admissible evidence, the court must look to the allegations in the operating pleading.

See John B. v. Sup. Ct. (2006) 38 Cal. 4th 1177, 1206.

In this case, the court respectfully disagrees that Special Interrogatory No. 43 (as limited below) is irrelevant to the subject matter of this lawsuit. The Second Amended Complaint (the 'SAC') alleges causes of action for: (1) quiet title; (2) negligence; (3) trespass; and (4) private nuisance. Defendant is a named defendant as to the quiet title and trespass causes of action. The SAC alleges, in relevant part, that Defendant owns property directly adjacent to Plaintiffs' property and leases all and/or a portion of this property to Defendant Plant Source, Inc. ('Plant Source'). See SAC, ¶ 6. Plaintiffs' property is designated as APN 182-208-02-00 located at 405 Cassou Road, San Marcos, CA 92069. Ibid., ¶ 11.

Defendant and Plant Source have adversely and unlawfully claimed title to, encroached upon, built a road upon, and built a fence enclosing at least 12 feet of the west side of Plaintiffs' property to which Plaintiffs seek to quiet title. Ibid., ¶¶ 13, 28. Based on the foregoing, Plaintiffs further allege that Defendant has trespassed and is trespassing on Plaintiffs' Property. Ibid., ¶ 47. As to the third cause of action, Plaintiffs seek damages under California Civil Code ('CC') §§ 3346 and 3334. Ibid., ¶¶ 53-54.

Special Interrogatory No. 43 seeks information, namely the amount of monthly rent it charges on various parcels it purportedly owns and leases, directly relevant to Plaintiffs' claimed damages in this action.

Indeed, CC § 3334(a) provides, in pertinent part, that '[t]he detriment caused by the wrongful occupation of real property . . . is deemed to include the value of the use of the property for the time of that wrongful occupation . . . .' Cal. Civ. Code § 3334(a). For purposes of CC § 3334(a), the 'value of the use of the property' is 'the greater of the reasonable rental value of that property or the benefits obtained by the person wrongfully occupying the property by reason of that wrongful occupation.' Cal. Civ. Code § 3334(b)(1). Consequently, the amount of rent charged for the parcels subject to Plaintiffs' quiet title and trespass causes of action is directly relevant to determining Plaintiffs' damages.

Second, Defendant's objections that Special Interrogatory No. 43 lacks foundation, assumes facts not in evidence, seeks a premature expert opinion, and seeks an improper legal conclusion are unavailing.

The evidence shows that Defendant produced, in response to Plaintiffs' Requests for Production of Documents (Set One), various lease agreements, sublease agreements, and amendments to leases from which the rent amounts have been redacted. See Nocon Decl., Exs. A-B. Put differently, Plaintiffs are requesting a response to Special Interrogatory No. 43 based on information that Defendant has already provided, albeit in redacted form. The call of Special Interrogatory No. 43 seeks purely factual information (i.e., the amount of monthly rent charged under various lease/sublease agreements) that is within Defendant's possession, custody, and/or control and does not require an expert opinion.

Third, to the extent Defendant has asserted that Special Interrogatory No. 43 seeks confidential and/or proprietary information, Defendant bore the initial burden of proving that such privilege(s) apply(ies). See Amgen Inc. v. Health Care Services (2020) 47 Cal. App. 5th 716, 733. Defendant has not met its burden.

Indeed, Defendant provides no persuasive explanation for why/how basic information such as the amount it charges in rent warrants protection under any privilege.

Finally, the court disagrees with Defendant that Special Interrogatory No. 43 is unintelligible, vague, ambiguous, and/or overbroad as to time and scope (particularly when applying Plaintiffs' proffered limitations). Objections based upon ambiguity, confusion, or overbreadth are typically unavailing unless the discovery request is so unintelligible that the responding party cannot in good faith respond. See Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771, 783; Cembrook v. Sup. Ct. (1961) 56 Cal. 2d 423, 428.

Defendant makes no such showing, and the court does not find Special Interrogatory No. 43 to be vague or ambiguous. Special Interrogatory No. 43 plainly asks Defendant to state the amount it charges per month in rent for any or all portions of specific parcels of land it owns (identified by APNs) for specific time periods (the dates of the first leases for each parcel to the present). There is nothing vague or ambiguous about this request.

However, the court agrees with Defendant that Special Interrogatory No. 43, as presently drafted, is slightly overbroad as to time and scope. Plaintiffs implicitly, if not explicitly, conceded as much by offering to narrow the scope of the request during the meet and confer process. The court believes this Calendar No.: Event ID:  TENTATIVE RULINGS

3077824 CASE NUMBER: CASE TITLE:  GARDNER VS PLANT SOURCE INC [IMAGED]  37-2020-00039920-CU-PN-NC is warranted. Accordingly, Defendant must provide a further response to Special Interrogatory No. 43 subject to the following limitations: (1) Defendant only must respond as to the properties that are subject to Plaintiffs' quiet title and trespass causes of action: APNs 182-280-01, 182-280-09, and 182-280-10, and (2) Defendant does not have to provide the amount of rent it has charged for all or part of the foregoing parcels for the entirety of its ownership of those properties. Rather, Plaintiffs' damages under CC § 3334(a) are limited to the value of the use of their property for the time of Defendant's alleged wrongful occupation. Based on the allegations set forth in the SAC, the relevant dates appear to be November 2019 to the present.

The court must impose sanctions '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.' Cal. Code Civ. P. § 2030.300(d). The party subject to sanctions bears the burden of proving that he or she acted with substantial justification. See Doe v. U.S. Swimming, Inc. (2011) 200 Cal, App. 4th 1424, 1435 (citing Cal. Evid. Code §§ 500 and 550; Kohan v. Cohan (1991) 229 Cal. App. 3d 967, 971). Substantial justification means justification that is clearly reasonable because it is well grounded in both law and fact. See Doe, 200 Cal. App. 4th at 1434 (citing Nader Automotive Group, LLC v. New Motor Vehicle Bd. (2009) 178 Cal. App. 4th 1478, 1480). In this case, the court finds that sanctions against either side are not warranted under the totality of the facts and circumstances.

In light of the foregoing, the court: (1) grants the motion to compel and directs Defendant to serve a further verified, Code-compliant response to Special Interrogatory No. 43, consistent with this ruling, within thirty (30) days of this hearing, and (2) denies the parties' respective sanctions requests.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, February 2, 2024. If no party appears at the hearing, this tentative ruling will become the order of the court as of February 2, 2024. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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