Judge: Daniel S. Murphy, Case: 20STCV21243, Date: 2022-10-24 Tentative Ruling

Case Number: 20STCV21243    Hearing Date: October 24, 2022    Dept: 32

BACKGROUND

            This is a landlord-tenant dispute arising from alleged habitability issues. On June 4, 2020, Plaintiff Daniel Bedingfield filed the complaint against Defendant Jeremy Braud, alleging (1) negligence, (2) breach of the implied warranty of habitability, (3) constructive eviction, and (4) failure to refund deposit. On November 13, 2020, Defendant filed a cross-complaint against Plaintiff, alleging that Plaintiff made unpermitted alterations to the premises, rented out to subtenants without authorization, and left the premises in deplorable condition. The operative First Amended Cross-Complaint alleges (1) breach of contract, (2) breach of the covenant of good faith and fair dealing, and (3) waste. Plaintiff has since dismissed all of his claims against Defendant, leaving only the FACC in contention.

            Defendant presently moves to compel responses to Form Interrogatories (Sets 1 and 3) and Special Interrogatories (Sets 1 and 2), and to deem Requests for Admissions (Sets 1 and 2) admitted. The motions are made on the grounds that Plaintiff did not properly verify the responses by hand-signing them, and improperly made the verifications on information and belief.

            On September 21, 2022, the Court granted Defendant’s motion to compel responses to Form Interrogatories (Set 2), which was made on identical grounds. The Court ordered Plaintiff to produce hand-signed verifications made on personal knowledge. After the Court’s order, Plaintiff served verifications to FROGs (Sets 1 and 2), SROGs (Set 1), and RFAs (Set 1). (Alarcon Decl. ¶¶ 5-7.) Plaintiff concedes that the verification to SROG (Set 2) is defective. (Opp. 4:6-9.)

            Simultaneously, Plaintiff presently moves for a protective order against RFAs (Set 2) and the corresponding FROG 17.1 (Set 3) on the grounds that the RFAs are excessive and irrelevant.

LEGAL STANDARD

Motion to Compel

Discovery responses are due 30 days after service of the requests, unless the parties stipulate or the court orders otherwise. (Code Civ. Proc., §§ 2030.260(a), 2031.260(a), 2033.250(a).) If a responding party fails to respond in time, the propounding party may move for an order compelling the responses or deeming matters admitted. (Id., §§ 2030.290(b), 2031.300(b), 2033.280(b).) Unverified responses are tantamount to no responses at all. (See Appleton v. Super. Ct. (1988) 206 Cal.App.3d 632, 636.)

Protective Order

A party may only propound thirty-five requests for admission that do not relate to the genuineness of documents unless the party files a declaration justifying the additional requests. (Code Civ. Proc., § 2033.030, subd. (a), (b).) Upon attaching a declaration, the party may request more than thirty-five requests for admission if it is warranted by the complexity or quantity of issues in the case. (Id., § 2033.040, subd. (a).) The declaration must state, among other things, the reasons why the complexity or quantity of issues warrant the number of requests for admission. (Id., § 2033.050.) A responding party may promptly move for a protective order, and a court, upon good cause, may grant the order to protect from unwarranted annoyance, embarrassment, oppression, or undue burden and expense. (Id., § 2033.080, subd. (a), (b).) The propounding party bears the burden of justifying the additional requests for admission. (Id., § 2033.040, subd. (b).)

DISCUSSION

I. Motions to Compel

            As the Court held in its previous order, the verifications must be signed by hand and based on personal knowledge only. The originals of the verifications must also be mailed or hand delivered because “the party to whom the requests are directed shall serve the original of the response to them on the requesting party.” (Code Civ. Proc., §§ 2030.260(a), 2033.250(a).) The propounding party must also retain “the original of the sworn response until six months after final disposition of the action.” (Id., §§ 2030.280(b), 2033.270(b).) There is no issue with serving verifications to previously-produced responses, as long as the verifications clearly identify which responses they pertain to.

            Defendant also takes issue with the fact that the responses contain objections. However, objections are not waived due to this minor error with verifications, as long as Plaintiff serves substantially compliant responses. (See Code Civ. Proc., §§ 2030.290(a), 2033.280(a).) Any contentions with regards to the substance of the responses should be addressed by a separate motion to compel further.

II. Protective Order

            Defendant’s second set of RFAs contained 83 requests, bringing the total to 142. (Brinton Decl. ¶¶ 3-5, Ex. A.) This is plainly disallowed by the Code unless the propounding party serves a declaration justifying the additional requests. (Code Civ. Proc., § 2033.030(a), (b).) Otherwise, the limit is 35 requests. (Ibid.) There is no indication that Defendant served such a declaration with the additional requests, and Defendant’s argument in opposition is unconvincing. Even if Defendant seeks “considerable damages” from Plaintiff in the cross-complaint, and Plaintiff has asserted 43 affirmative defenses, Defendant does not explain how that justifies 142 RFAs. (See Opp. 4:18-19, 5:11-14.) Additionally, many of the requests pertain to allegations made in the underlying complaint that Plaintiff has since dismissed, rendering them irrelevant.  

CONCLUSION

            Defendant’s motions to compel responses are GRANTED in part. Plaintiff is to serve original hand-signed verifications to FROGs (Set 1), SROGs (Sets 1 and 2), and RFAs (Set 1) within 10 days. The admissions are not deemed admitted. Objections are not waived.

            Plaintiff’s motion for protective order is GRANTED as to RFAs (Set 2) and FROGs (Set 3.) Plaintiff is not required to answer the RFAs in Set Two or the corresponding FROG No. 17.1 because the RFAs exceed the statutory limit.

            Sanctions are denied as the parties acted with substantial justification.