Judge: Daniel S. Murphy, Case: 18STCV04896, Date: 2022-11-21 Tentative Ruling

Case Number: 18STCV04896    Hearing Date: November 21, 2022    Dept: 32

BACKGROUND

            This action was initially brought in November 2018 by Plaintiff Akira Kokubu against various Defendants. The operative Second Amended Complaint was filed on January 15, 2020. Various cross-complaints and amended cross-complaints have also been filed from June 2019 through November 2019. The dispute involves joint ownership of a commercial real estate office building. The investment was made by investors from Japan, including Plaintiff (Japanese Investors) and investors from the United States (US Investors).

            The present motions to compel relate to discovery propounded by Cross-Complainant Beach Front Properties, LLC (BFP) to the Japanese Investors prior to the case being stayed. The Japanese Investors initially served a joint response to the discovery, asserting identical objections to each request. While a motion to compel was pending as to those requests, the Japanese Investors voluntarily produced further responses. Those further responses are at issue in the instant motions to compel. The Japanese Investors filed a single joint opposition to both motions. After the motion was filed, the Japanese Investors served supplemental responses, and BFP has reduced its contention to SROG Nos. 35 and 38 and RFP Nos. 1-7.

LEGAL STANDARD

On 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; (3) An objection to an interrogatory is without merit or too general. (Code Civ. Proc., § 2030.300, subd. (a).)  

On receipt of a response to a request for inspection, the demanding party may move for an order compelling further responses to the demand if the demanding party deems that (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. (Code Civ. Proc., § 2031.310, subd. (a).)

MEET AND CONFER

Motions to compel further responses must be accompanied by a meet and confer declaration demonstrating an attempt to resolve the issue informally. (Code Civ. Proc., §§ 2030.300(b)(1), 2031.310(b)(2), 2033.290(b)(1).) The Court finds that Beach Front has satisfied the meet and confer requirement. (See Koch Decl. ¶¶ 8-11.)

DISCUSSION

I. Requests for Production

            The subject RFPs ask for communications between the Japanese Investors and various individuals regarding the subject property, potential settlement with the US Investors, and execution of a tenancy in common agreement. The Japanese Investors responded: “Pursuant to Code of Civil Procedure sections 2031.210 and 2031.220, responding party will comply in full and that all documents in his possession, custody, or control will be included in the production of documents bate-stamped as KSH00001 – KSH01901.” In their further responses to RFP Nos. 1-7, the Japanese Investors stated that after a diligent search and inquiry, no responsive documents have ever existed. (Leago Decl., Ex. 3.)

            The Japanese Investors cannot be compelled to produce documents that do not exist. According to BFP’s reply, “the US Investors have a difficult time believing that these individuals have never communicated in writing with each other.” (Reply 6:13-14.) However, BFP’s skepticism as to the truth of the response is not a reason to compel a different response.  

As to RFP No. 1, which requests communications with Eric Clauson, the Japanese Investors contend that Clauson acted as their agent through which they communicated with counsel, rendering communications with Clauson privileged. BFP argues that no attorney was copied in the communications, so they cannot be attorney-client communications. The privilege is not limited to direct communications between an attorney and client. Evidence Code section 954 protects communications between a client and lawyer. However, a “client” is defined as “a person who, directly or through an authorized representative, consults a lawyer for the purpose of retaining the lawyer or securing legal service or advice from him in his professional capacity . . . .” (Evid. Code, § 951.) Thus, if the Japanese Investors communicated with counsel through Clauson, those communications would be privileged. To the extent documents are withheld in response to any RFP based on the attorney-client privilege, the Japanese Investors are to provide a privilege log. (See Code Civ. Proc., § 2031.240(c)(1).)

The motion is DENIED as to the RFPs.

II. Special Interrogatories

            a. SROG No. 35

            This SROG asks why the Japanese Investors received a 49.5 interest in the subject property at the time of purchase. The Japanese Investors responded: “The percentage of ownership was based on initial capital contribution.” This sufficiently answers the interrogatory. BFP argues that the answer is incomplete because “[t]his question seeks information regarding the tax incentives that the Japanese Investors’ stood to gain through their investment in the Subject Property.” (BFP’s Sep. Stmnt. 8:13-17.) However, the interrogatory as phrased makes no such inquiry. If BFP seeks information regarding tax incentives, it should propound further discovery to that effect.

            The motion is DENIED as to SROG No. 35.

            b. SROG No. 38

            This SROG asks the Japanese Investors why they invested in the property. They responded: “Expected return on investment.” BFP argues that “[t]his response is insufficient because this interrogatory calls for a more detailed explanation of the complex reasons behind the Japanese Investors' decision to invest in the Subject Property.” (BFP’s Sep. Stmnt. 10:8-10.) BFP again references the purported tax benefits as the primary motivation for the investment. However, the Japanese Investors have provided their reason for investing in the property. Although BFP believes that the true reason is different or more complex, that is not a reason to compel a further response. The SROG as phrased does not ask for specific details regarding the investment, and BFP should propound further discovery if it seeks more information.

            The motion is DENIED as to SROG No. 38.   

CONCLUSION

            Cross-Complainant Beach Front Properties, LLC’s motions to compel are DENIED.