Judge: Cynthia A Freeland, Case: 37-2022-00044114-CU-BC-NC, Date: 2023-08-25 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - August 24, 2023

08/25/2023  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  Breach of Contract/Warranty Discovery Hearing 37-2022-00044114-CU-BC-NC CRESCENZO VS. NEW POINTE INVESTMENT 20 LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 06/28/2023

Plaintiffs Todd Crescenzo and Shawna Crescenzo (collectively, 'Plaintiffs')'s motion to compel Defendants Kari Shea, Mark Shea, and Shea Real Estate & Investment Group Inc. (collectively, 'Defendants') to provide further responses to Request for Production of Documents (Set One) and Form Interrogatories (Set One) (collectively, the 'Discovery Requests') is granted.

As to the Form Interrogatories, California Code of Civil Procedure ('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).

As to the Requests for Production, CCP § 2031.310(a) provides that '[o]n receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: (1) A statement of compliance with the demand is incomplete[;] (2) A representation of inability to comply is inadequate, incomplete, or evasive[;] [or] (3) An objection in the response is without merit or too general.' Cal. Code Civ. P. §§ 2031.310(a)(1)-(3). The propounding party bears the burden of establishing good cause for demanding further responses under CCP § 2031.310(a). See Cal. Code Civ.

P. § 2031.310(b)(1). This requires a showing of: (1) the discovery request's relevance; and (2) specific facts justifying the discovery request. See Kirkland v. Sup. Ct. (2002) 95 Cal. App. 4th 92, 98; Glenfed Development Corp. v. Sup. Ct. (1997) 53 Cal. App. 4th 1113, 1117.

The uncontroverted evidence establishes that on January 23, 2023, Plaintiffs served each Defendant with the Discovery Requests. On March 31, 2023, Defendants served unverified responses to the Discovery Requests. On May 15, 2023, Defendants served their verifications. On June 22, 2023, Plaintiffs' counsel sent Defendants a meet and confer letter highlighting the perceived deficiencies in their discovery responses and asking that supplemental responses be provided by June 26, 2023. To date, Defendants have not served further amended responses to the Discovery Requests.

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2994392 CASE NUMBER: CASE TITLE:  CRESCENZO VS. NEW POINTE INVESTMENT 20 LLC [IMAGED]  37-2022-00044114-CU-BC-NC That being said, the court construes Defendants' lack of opposition as a concession of the motion's merits. See San Diego Rules of Court, Rule 2.1.19.B. In addition, the court finds that Plaintiffs have demonstrated entitlement to the requested relief. More specifically, the court, having independently reviewed Defendants' responses, agrees with Plaintiffs that Defendants' responses are incomplete, evasive, and/or inadequate for the reasons set forth in Plaintiffs' Statements of Disputed Responses. To start, as to the Form Interrogatories, Shea Real Estate's responses are inadequate and, in some instances, entirely nonresponsive. For example, Form Interrogatory No. 3.6 asks whether Shea Real Estate has done business under a fictitious name during the past 10 years and, if so, then for each fictitious name state the name, the dates each was used, the state and county of each fictitious name filing, and the address of the principal place of business. In response, Shea Real Estate responds 'Shea Real Estate.' This is nonresponsive to the call of the question as Shea Real Estate does not answer, in a yes or no manner, whether it has done business under a fictitious name. Moreover, to the extent the answer is yes, then Shea Real Estate provided no response at all to subparts (a) through (d).

As a further example, Form Interrogatory No. 12.4 asks Shea Real Estate whether it or anyone acting on its behalf knows of any photographs, films, or videotapes depicting any place, object, or individual concerning the 'incident' or Plaintiffs' injuries. In response, Shea Real Estate, states that it does not know what the 'incident' refers to and that it has professional images for marketing purposes. This response is not Code-compliant. The Form Interrogatories clearly define 'incident' to include 'the circumstances and events surrounding the alleged accident, injury, or other occurrence or breach of contract giving rise to this action or proceeding.' The Code requires that Shea Real Estate respond in as complete and straightforward a manner as the information reasonably available to it permits. See Cal. Code Civ. P. § 2030.220(a). If it cannot respond completely, it must do so to the extent possible. See Cal. Code Civ. P. § 2030.220(b). If it lacks personal knowledge sufficient to fully respond, it 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). Consequently, it is evasive and insufficient for Shea Real Estate to indicate that it is unaware of what the incident is when the incident is clearly defined in the Form Interrogatories.

As a further example, Form Interrogatory No. 14.1 asks Shea Real Estate whether it or anyone acting on its behalf contends that any person involved in the incident violated any statute, ordinance, or regulations and that the violation was a legal or proximate cause of the incident and, if so, to identify the name, address, and telephone number of each person and the statute, ordinance, or regulation that was violated. In response, Shea Real Estate states that it was not 'advised' of any statutory violation. This is not responsive to the call of the interrogatory – Plaintiffs are not asking Shea Real Estate whether it was advised of a violation; rather, the interrogatory asks whether Shea Real Estate or anyone acting on its behalf is contending there was a violation of a statute or other law.

The Sheas' responses to the Form Interrogatories are likewise inadequate, evasive, and/or incomplete.

Ms. Shea did not fully respond to several Form Interrogatories, including without limitation, Nos. 2.1(c), 2.5(b)-(c), 2.6(b), and 2.7(b)-(d). Mr. Shea, for his part, did not fully respond to Nos. 2.1(b)-(c), 2.5(b)-(c), 2.6(b), 2.7(b)-(d). Moreover, the Sheas responded to several other Form Interrogatories, including Nos.

2.11, 2.12, 2.13, 4.1, 4.2, 12.1, 12.2, 12.3, 12.4, 12.5, 12.6, 12.7, 13.1, 13.2, 14.1, 14.2, 15.1, 16.1, 16.2, 16.3, 16.7, 50.1, 50.2, 50.3, 50.4, 50.5, and 50.6, with 'N/A'. This is not a Code-compliant response. As set forth above, the Code requires the Sheas to respond in as complete and straightforward a manner as the information reasonably available to them permits. Simply responding with 'N/A' does not comply with the Code. Again, if the Sheas are unable to fully respond to the call of the interrogatories, they still must do so to the extent possible. If they lack personal knowledge sufficient to fully respond, they must so state but must make a reasonable and good faith effort to obtain the information.

Accordingly, the court grants the motion as to the Form Interrogatories.

As to the Requests for Production, Shea Real Estate's responses are not Code-compliant. For example, in response to Nos. 1 and 2, Shea Real Estate responds 'RPA docs.' In response to Nos. 3 and 4, Shea Calendar No.: Event ID:  TENTATIVE RULINGS

2994392 CASE NUMBER: CASE TITLE:  CRESCENZO VS. NEW POINTE INVESTMENT 20 LLC [IMAGED]  37-2022-00044114-CU-BC-NC Real Estate responds 'Marketing flyer.' In response to Nos. 5, 6, and 8, Shea Real Estate responds 'Email.' In response to No. 13, Shea Real Estate responds 'TDS.' In response to No. 14, Shea Real Estate responds 'SPQ.' In response to No. 15, Shea Real Estate responds 'AVID.' In response to No.17, Shea Real Estate responds 'Plaintiffs PI Report.' In response to No. 19, Shea Real Estate responds 'RR.' The Code requires that Shea Real Estate respond to each item propounded by one of the following: (1) an agreement to comply; (2) a representation of an inability to comply; or (3) objections to all or part of the demand. See Cal. Code Civ. P. § 2031.210(a). A statement of compliance must indicate that the production 'will be allowed 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.' Cal. Code Civ. P. § 2031.220. If a party responds by noting an inability to respond, the responding party must articulate that a diligent search and reasonable inquiry has been made in an effort to locate the item requested and must articulate the reason why the party cannot comply with the request as well as the names of, and contact information for, the individual(s) or entity(s) known or believed by the responding party to be in possession, custody, or control of item requested. See Cal. Code Civ. P. § 2031.230. If only part of an item or category of item is objectionable, the response must contain a statement of compliance, or a representation of an inability to comply with respect to the remainder of that item or category. See Cal. Code Civ. P. § 2031.240(a). If a responding party asserts objections, the party must identify with particularity the specific document/evidence as to which the objection is made and must set forth the specific ground for the objection. See Cal. Code Civ. P. § 2031.240(b). Shea Real Estate's responses to Nos. 3-6 do not comply with the foregoing. Moreover, to the extent Shea Real Estate has vaguely identified documents it believes are responsive to the individual requests, it must identify the documents with sufficient specificity to permit Plaintiffs to locate the documents as easily as Shea Real Estate. To the extent documents have been produced, they must be identified with the specific request number to which they respond. See Cal. Code Civ. P. § 2031.280.

As a further example, Shea Real Estate has responded to several Requests for Production with some variation of 'not available,' 'do not understand the request,' and '#1 & #2 above.' These are not Code-compliant responses. As set forth above, if Shea Real Estate is unable to respond to the individual requests, it can state as such; however, it must articulate that a diligent and reasonable inquiry was made to comply with the requests. Moreover, it is inappropriate simply to refer Plaintiffs to Shea Real Estate's responses to other Requests for Production. See Clement v. Alegre (2009) 177 Cal. App. 4th 1277, 1282.

The Sheas' responses to the Requests for Production are likewise inadequate, evasive, and/or incomplete. In the introductory paragraph of their responses, the Sheas state that they 'did not act as an individual in any capacity; as such there is no documentation available from (Kari Shea/Mark Shea).' The Sheas then respond to each individual request by stating 'see above statement.' The foregoing is not Code-compliant. To start, whether the Sheas acted in their individual capacity(s) or not has no bearing on their obligations under the Code to produce any documents in their possession, custody, or control, or otherwise provide Code-compliant responses. Moreover, their substantive responses, which merely refer Plaintiffs to the Sheas' prefatory statement, is not Code-compliant. Again, it is inappropriate to simply refer Plaintiffs to other responses.

Accordingly, the court grants the motion as to the Requests for Production.

The court may award sanctions to the party seeking to compel discovery even though no opposition to the motion was filed. See Cal. R. Ct. 3.1348(a). Additionally, the court must impose sanctions against any party who unsuccessfully makes or opposes a motion to compel a further response to interrogatories or to a request for production of documents '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), 2031.310(h). 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 Calendar No.: Event ID:  TENTATIVE RULINGS

2994392 CASE NUMBER: CASE TITLE:  CRESCENZO VS. NEW POINTE INVESTMENT 20 LLC [IMAGED]  37-2022-00044114-CU-BC-NC 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, Plaintiffs have not included with the moving papers a request for sanctions or any evidence substantiating such a request. Consequently, the court finds that the imposition of sanctions is inappropriate under the totality of the facts and circumstances.

In light of the foregoing, the court grants motion and orders Defendants to serve further Code-compliant responses and documents responsive to the Discovery Requests within ten (10) days of this hearing.

The court declines to impose sanctions against Defendants.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, August 25, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of August 25, 2023. 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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