Judge Daniel M. Crowley, Case Number: 20STCV21704, Date: 2024-03-27 Tentative Ruling

All parties are urged to meet and confer with all parties concerning this tentative ruling to see if they can reach an agreed-upon resolution of their matter. If you are able to reach an agreement, please notify the courtroom staff in advance of the hearing if you wish to submit on the tentative ruling rather than argue the motion by notifying the court by e-mailing the court at: SMCDept71@LACourt.org. Include the word "SUBMITS" in all caps and the Case Number in the Subject line. In the body of the email, please provide the date and time of the hearing, your name, your contact information, the party you represent, and whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, intervenor, or non-party, etc.

Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may still appear at the hearing and argue the matter, and the court could change its tentative based upon the argument. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If you submit, but still intend to appear, include the words "SUBMITS, BUT WILL APPEAR" in the Subject line.

If you elect to argue your matter, you are urged to do so remotely, via Court-Connect. If the moving party fails to appear and/or submit to the Court’s tentative ruling, the Court will take the matter off calendar.

Defendant ABP Parcel 6, LLC’s motion to compel Plaintiff Griffith Company’s compliance is granted. Plaintiff is ordered to comply with its statement of compliance within 15 days.

Defendant ABP Parcel 6, LLC’s request for sanctions against Plaintiff Griffith Company and its counsel, Alex M. Chazen, on its motion to compel compliance is granted in the reduced amount of $1,485.00, payable within 15 days.

Defendant ABP Parcel 6, LLC’s motion to compel further responses from Plaintiff Griffith Company to Defendant’s Request for Admissions (Set Two) is granted. Plaintiff is ordered to provide Code-compliant responses without objections within 15 days.

Defendant ABP Parcel 6, LLC’s request for sanctions against Plaintiff Griffith Company and its counsel, Alex M. Chazen, on its motion to compel further responses from Plaintiff Griffith Company to Defendant’s Request for Admissions is granted in the reduced amount of $4,950.00, payable within 15 days.

Defendant ABP Parcel 6, LLC’s motion to compel further responses from Plaintiff Griffith Company to Defendant’s Form Interrogatories (Set Two) is denied.

Defendant ABP Parcel 6, LLC and Wessex Investments, LLC’s motion for monetary sanctions against Plaintiff and its counsel, Alex M. Chazen, is granted in the reduced amount of $2,580.00.

Defendant ABP Parcel 6, LLC and Wessex Investments, LLC’s request for evidentiary sanctions against Plaintiff is denied.

Defendant ABP Parcel 6, LLC (“ABP”) (“Defendant”) moves to compel Plaintiff Griffith Company’s compliance with its statements of compliance by producing all responsive documents, communications, and things for inspection, pursuant to ABP’s Requests for Production of Documents (Set One) and (Set Two). (Notice MTC, pg. 2; C.C.P. §2031.320.) ABP requests sanctions against Plaintiff and its counsel, Alex M. Chazen, in the amount of $1,500.00. (Notice MTC, pg. 2; C.C.P. §§2023.010 et seq., 2031.320(b).)

ABP moves to compel further responses from Plaintiff to ABP’s Request for Admissions (Set Two) (“RFA”) on the grounds that the objections in response to each RFA are without merit and Plaintiff’s responses are not Code-compliant. (Notice MTCF RFA, pg. 2; C.C.P. §§2033.210 et seq.) ABP requests sanctions against Plaintiff and its counsel, Alex M. Chazen, in the amount of $11,781.00. (Notice MTCF RFA, pg. 2; C.C.P. §§2023.010 et seq., 2033.290(d).)

ABP moves to compel further responses from Plaintiff to ABP’s Form Interrogatories (Set Two) (“FROG”) on the grounds that the objections in response to Form Interrogatory 17.1 are without merit and Plaintiff’s responses are not Code-compliant. (Notice MTCF FROG, pg. 2; C.C.P. §§2030.300 et seq.) ABP requests sanctions against Plaintiff and its counsel, Alex M. Chazen, in the amount of $2,970.00. (Notice MTCF FROG, pg. 2; C.C.P. §§2023.010 et seq., 2030.300(d).)

ABP and Wessex Investments, LLC (“Wessex”) (collectively, “Moving Defendants”) move for monetary and evidence sanctions against Plaintiff. (Notice Sanctions, pg. 2; C.C.P. §§2023.010 et. seq.) Moving Defendants request monetary sanctions in the amount of $7,662.50 against Plaintiff and its counsel, Alex M. Chazen. (Notice Sanctions, pg. 2; C.C.P. §2023.030(a).) Moving Defendants request an evidence sanction precluding Contractor from introducing evidence and argument regarding matters that should have been contained in its Response to Owner’s Final Defect List and Cost of Repair but were not, specifically, in instances where Plaintiff has failed to take a position relative to ABP’s alleged defects it should be precluded from doing so at trial. (Notice Sanctions, pg. 2; C.C.P. §2023.030(c).)

ABP propounded its Request for Production of Documents (Set One) (“RFP 1”) on August 31, 2021, which included Requests for Production Nos. 1-95. (Decl. of Taran ¶4, Exh. 1.) ABP propounded its Request for Production of Documents (Set Two) (“RFP 2”) on February 15, 2024, which included Requests for Production Nos. 96-114. (Decl. of Taran ¶4, Exh. 2.) Plaintiff responded to RFP Nos. 1-8, 10-12, 17-62, 64-69, 71-78, 80-83, 85-94, 96-114 by objecting and stating that “Responding Party will make available for inspection those non-privileged or otherwise protected documents in its custody or control that are responsive to this demand.” (Decl. of Taran ¶4, Exhs. 3, 4.)

Plaintiff produced documents on or around October 28, 2021, December 3, 2021, April 8, 2022, and February 29, 2024, which were uploaded to the Disco Ediscovery platform database for this matter. (Decl. of Taran ¶5.) In total, the database reflects that Contractor produced 36,381 documents, many of which are photographs of the construction at the Project. (Decl. of Taran ¶5.) On March 4, 2024, Plaintiff’s counsel produced a USB drive, which contained the same documents as produced by Plaintiff on February 29, 2024, via a drop box link. (Decl. of Taran ¶5.)

In response to ABP’s subpoenas, main sub-contractors Doreck Construction and MSL Electric produced documents that are responsive to requests for production at issue but were not produced by Plaintiff. (Decl. of Taran ¶6.) Doreck Construction produced 497 documents, of which 386 are entirely “new” documents that were segregated into a separate folder. MSL Electric produced 2,324 documents, 700 of which are entirely “new” documents. (Decl. of Taran ¶6.) ABP discovered many “new” documents, like communications between Contractor and Doreck Construction and MSL Electric, which were responsive to multiple requests that Plaintiff stated it would produce responsive documents in response to. (Decl. of Taran ¶6.)

Plaintiff’s employee and person most knowledgeable (“PMK”), James Walsh, testified on March 12, 2024, that Plaintiff’s foreman kept daily diaries/field log notes, which were plugged into a software called Built to Win on an iPad. (Decl. of Taran ¶7, Exh. 5.) Plaintiff failed to produce a single daily report relating to the project. (Decl. of Taran ¶7.)

ABP filed the instant motion on March 20, 2024. Plaintiff filed its opposition on March 25, 2024. As of the date of this hearing no reply has been filed.

Plaintiff objects to ABP’s motion as untimely filed and served 12 days past the filing deadline. Plaintiff further objects on the basis ABP failed to meet and confer on this motion. The Court in its discretion will consider ABP’s motion. Further, there is no requirement to meet and confer on a motion to compel compliance; all that has to be shown is the responding party’s failure to comply as agreed. (C.C.P. §2031.320(a).)

If a party filing a response to a demand for inspection, copying, testing, or sampling under Sections 2031.210, 2031.220, 2031.230, 2031.240 [required statement of compliance] and thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that party’s statement of compliance, the demanding party may move for an order compelling compliance. (See C.C.P. §2031.320(a); Standon Co. v. Superior Court (1990) 225 Cal.App.3d 898, 902 [“a party may seek to compel ‘compliance’ with the demand if ‘a party filing a response . . . under subdivision (f) thereafter fails to permit the inspection in accordance with that party’s statement of compliance.’ No time limit is placed on such a motion.”], internal citations omitted.)

ABP’s motion to compel Plaintiff’s compliance with its statement of compliance in the RFPs is granted pursuant to C.C.P. §2031.320(a). Plaintiff is ordered to comply with its statement of compliance within 15 days of this ruling.

C.C.P. §2031.320(b) provides, “Except as provided in subdivision (d), the 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.”

ABP requests sanctions against Plaintiff in the amount of $1,500.00. ABP’s counsel, David A. Taran declares his hourly rate is $645.00 and he spent 1 hour meeting and conferring and reviewing this motion. (Decl. of Taran ¶12.) Taran declares his associate, Leeran Abukasis’ hourly rate is $495.00 and he spent over 7 hours preparing the instant motion. (Decl. of Taran ¶12.) Taran declares he anticipates another three hours reviewing the opposition, preparing a reply, and appearing for the hearing on this motion.

ABP is not entitled to fees incurred while meeting and conferring or on anticipated fees. As such, the Court grants ABP sanctions against Plaintiff and its counsel of record as follows:

Accordingly, ABP is granted reduced sanctions in the amount of $1,485.00, against Plaintiff and its counsel of record, payable within 15 days.

ABP’s motion to compel compliance is granted. Plaintiff is ordered to comply with its statement of compliance within 15 days.

ABP’s request for sanctions is granted in the reduced amount of $1,485.00, against Plaintiff and its counsel of record, payable within 15 days.

ABP served Plaintiff with its Requests for Admission (Set Two) (“RFA”) on February 6, 2024. (Decl. of Abukasis ¶3, Exh. 4.)

ABP filed the instant motion on March 14, 2024. Plaintiff filed its opposition on March 25, 2024. As of the date of this hearing no reply has been filed.

A propounding party may move to compel further responses to requests for admission under C.C.P. §2033.290 if it believes the responses to requests for admission are deficient or that any objections to the requests are not well taken. (See C.C.P. §2033.290(a).)

ABP’s motion to compel further responses to its RFA 2 is granted pursuant to C.C.P. §2033.290(a). Plaintiff is ordered to provide Code-compliant responses without objections within 15 days of this ruling.

C.C.P. §2033.290(d) provides, “The 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 further response, 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.” (C.C.P. §2033.290(d).)

ABP’s motion indicates it seeks $11,781.00 in sanctions against Plaintiff, including time spent meeting and conferring and anticipated hours, which are not hours reasonably incurred or compensable. (See Decl. of Abukasis ¶6.)

Accordingly, ABP is granted reduced sanctions in the amount of $4,950.00, against Plaintiff and its counsel of record, payable within 15 days.

ABP’s motion to compel further responses to RFA 2 is granted. Plaintiff is ordered to provide Code-compliant responses without objections within 15 days of this ruling.

ABP’s request for sanctions is granted in the reduced amount of $4,950.00, against Plaintiff and its counsel of record, payable within 15 days.

ABP’s motion compel Plaintiff to provide further responses to its FROG is denied, as it was served on March 7, 2024.

In light of the Court’s ruling on the motion, APB’s request for sanctions is denied.

APB’s motion compel Plaintiff to provide further responses to its FROG is denied.

Misuses of the discovery process include, but are not limited to, the following:

(a) Persisting, over objection and without substantial justification, in an attempt to obtain information or materials that are outside the scope of permissible discovery.

(b) Using a discovery method in a manner that does not comply with its specified procedures.

(c) Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.

(e) Making, without substantial justification, an unmeritorious objection to discovery.

(h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery.

(i) Failing to confer in person, by telephone, or by letter with an opposing party or attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery, if the section governing a particular discovery motion requires the filing of a declaration stating facts showing that an attempt at informal resolution has been made.

Here, there exists a case management order (“CMO”), which Plaintiff has disobeyed in violation of C.C.P. §2023.010(g). Plaintiff has failed to comply with the specified procedures set forth in the CMO in violation of C.C.P. §2023.010(b). Plaintiff has failed to submit to, and respond in accordance with, the requirements of the CMO in violation of C.C.P. §2023.010(d) and has made unmeritorious objections and evasive responses in violation of C.C.P. §§2023.010(e)-(f).

Accordingly, monetary sanctions are warranted pursuant to C.C.P. §§2023.010(b), (d), (g), (e)-(f). In light of this Court granting monetary sanctions, there is no reason to believe evidentiary sanctions are necessary, as monetary sanctions should serve as a sufficient deterrent to avoid future violations.

ABP requests monetary sanctions in the amount of $7,662.50. The Court finds this amount to be excessive and calculates sanctions below:

Accordingly, ABP’s request for monetary sanctions is granted against Plaintiff and its counsel of record in the reduced amount of $2,580.00, payable within 15 days.

ABP’s request for monetary sanctions is granted against Plaintiff and its counsel of record in the reduced amount of $2,580.00, payable within 15 days.

Hon. Daniel M. Crowley

Judge of the Superior Court