Judge: Cynthia A Freeland, Case: 37-2021-00023432-CU-OR-NC, Date: 2024-05-24 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - May 23, 2024

05/24/2024  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  Other Real Property Discovery Hearing 37-2021-00023432-CU-OR-NC RIVERA JR VS VARVEL [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 03/13/2024

Defendant Victor Varvel as Trustee of the Varvel Family Trust dated November 3, 1993 ('Defendant')'s motion to compel compliance by Plaintiff Midori Rivera ('Plaintiff') to produce documents responsive to Defendant's Demand for Production of Documents (Set Three) Nos. 10, 11, 13, and 14 (the 'Discovery Request'), and for sanctions, is granted in part and denied in part. Plaintiff's sanctions request is denied.

As an initial matter, the court respectfully disagrees with Plaintiff that Defendant failed to propound the Discovery Request or file the pending motion in a timely manner. On September 27, 2023, Plaintiff filed an ex parte application for an order continuing the trial in this matter and to reset all related trial and discovery deadlines. See ROA No. 491. The next day, the court granted Plaintiff's ex parte application and: (1) continued the trial to February 2, 2024, and (2) ordered that all motions and discovery be completed by January 5, 2024. See ROA No. 500. On November 21, 2023, Defendant served Plaintiff with the Discovery Request. See Miller Decl., Ex. 1. On that basis, it is clear that Defendant propounded the Discovery Request at a time when fact discovery was still open. On December 26, 2023, Plaintiff served unverified responses containing objections to the Discovery Request. Ibid., Ex. 2. On January 9, 2024, Plaintiff served verified responses and certain documents responsive to the Discovery Request.

Ibid., Ex. 3. The parties then engaged in meet and confer efforts between January 10 and 22, 2024, which efforts included a discussion regarding the discovery motion cutoff in this matter. Ibid., Exs. 4-6.

Defendant filed and served the pending motion on March 13, 2024 – ostensibly after the discovery motion cutoff. See ROA No. 536. However, on February 2, 2024, the court held a hearing on Plaintiff's motion for leave to file an amendment to add doe defendants. See ROA No. 522. The court granted Plaintiff's motion and, in connection with that ruling, the court addressed the parties' concerns pertaining to the trial date and the subject discovery issue. See Miller Decl., Ex. 17. More specifically, the court vacated the trial date and stated the following regarding discovery: What I would say is to minimize the cost. If there are outstanding discovery issues amongst the parties that are already in, finish those, but I would say there's no new discovery – I'm not going to continue the discovery deadline for you all to commit or propound discovery to each other. That should minimize the cost.

*** Yeah, my intent would not be to reopen discovery amongst you all. If there is discovery with the new parties, that can proceed . . .

*** Calendar No.: Event ID:  TENTATIVE RULINGS

3101306 CASE NUMBER: CASE TITLE:  RIVERA JR VS VARVEL [IMAGED]  37-2021-00023432-CU-OR-NC So with regard to that issue, I'm not foreclosing resolution of that issue, but they'll be no continuance of the motion or discovery cutoff as it relates to the parties who are already in.

*** All right. So I'll confirm the tentative as the order of the court with the addition that the discovery amongst the existing parties and the motion cutoff has passed, other than any resolution on an outstanding issue.

And the minute order will be the order.

Ibid.

Based on the foregoing, Plaintiff's position that the pending motion was filed after the motion cutoff date is understandable. To be sure, a review of the February 2, 2024 transcript demonstrates an ambiguity in that regard. On the one hand, it appears that the court was permitting discovery as to the newly added parties and allowing Plaintiff and Defendant to continue working through the Discovery Request yet not continuing the motion cutoff. On the other hand, it appears that the court simply may have been noting that the motion cutoff date had passed with the exception of a motion pertaining to the Discovery Request. Given this ambiguity, the court cannot conclude that the pending motion was untimely or that Defendant needed to seek leave to reopen discovery before filing the motion. See Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal. App. 4th 1568. Accordingly, the court will proceed to the motion's merits.

The court finds that Defendant has demonstrated good cause for an order compelling Plaintiff's compliance with the Discovery Request. See Cal. Code Civ. P. § 2031.320(a). Toward that end, Plaintiff's objections to the Discovery Request are not well taken. First, Plaintiff's contention that the discovery requests are vague and/or ambiguous is unavailing. Objections based upon vagueness or ambiguity 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. Plaintiff makes no such showing.

Second, Plaintiff is correct that 'the right to privacy is not absolute, particularly where issues of privacy are involved. The right of privacy [is] in the California Constitution.' Puerto v. Sup. Ct. (2008) 158 Cal. App. 4th 1242, 1250 (citation omitted). Even relevant information may be shielded from discovery if it impermissibly impairs or seriously invades a person's constitutional privacy rights. See Cal. Const. Art. 1, § 1; Britt v. Sup. Ct. (San Diego Unified Port Dist.) (1978) 20 Cal. 3d 844, 855-856. However, to successfully assert a privacy objection, Plaintiff bears the burden of establishing 'a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious.' See Williams, 3 Cal. 5th at 552. Plaintiff has not met her burden.

Other than the foregoing objections, which objections the court overrules, Plaintiff has responded to each request for production stating that she will produce responsive documents in her possession, custody, and/or control. To the extent Plaintiff has not produced all responsive documents in her possession, custody, and/or control consistent with her statement of compliance, she is ordered to do so.

'[T]he court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with a demand, 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. § 2031.320(b). 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 the imposition of sanctions is not warranted under the totality of the facts and circumstances.

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3101306 CASE NUMBER: CASE TITLE:  RIVERA JR VS VARVEL [IMAGED]  37-2021-00023432-CU-OR-NC In light of the foregoing, the court: (1) grants the motion to compel compliance as Defendant's Demand for Production of Documents Nos. 10, 11, 13, and 14 and directs Plaintiff to serve all outstanding responsive documents 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, May 24, 2024. If no party appears at the hearing, this tentative ruling will become the order of the court as of May 24, 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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