Judge: David A. Hoffer, Case: 30-2020-1137497, Date: 2023-01-09 Tentative Ruling
Before the Court at present are seven discovery motions, as follows:
(1) a Motion to Compel Plaintiff Milton Crews Clark’s Responses to Deposition Questions, etc., filed on 11/15/22 by defendants David Michael Delaney (“Delaney”) and Golden Ticket Real Estate II, Inc. (“GTRE”) (“Motion 1” below);
(3) a Motion to Compel GTRE to Provide Further Responses to Form Interrogatories, Set Three, etc. filed on 9/6/22 by Plaintiff (“Motion 3” below);
(4) a Motion to Compel Delaney to Provide Further Responses to Special Interrogatories, Set Three, etc. filed on 9/6/22 by Plaintiff (“Motion 4” below);
(5) a Motion to Compel GTRE to Provide Further Responses to Special Interrogatories, Set Three, etc. filed on 9/6/22 by Plaintiff (“Motion 5” below);
(6) a Motion to Compel Delaney to Provide Further Responses to Requests for Admission, Set Three, etc. filed on 9/6/22 by Plaintiff (“Motion 6” below); and
(7) a Motion to Compel GTRE to Provide Further Responses to Requests for Admission, Set Three, etc. filed on 9/6/22 by Plaintiff (“Motion 7” below).
Motion 1 is GRANTED IN PART. In this Motion, Delaney and GTRE move to compel Plaintiff to respond to questions as to discovery responses he provided and verified and as to the factual basis for any attorney’s fees claim in this matter, as reflected in the 4 groups of questions identified as Categories 1-4 in the Separate Statement filed as ROA 800.
For Categories 1-3 in ROA 800, the Motion is GRANTED IN PART. Plaintiff’s counsel objected thereto under Rifkind. Under Rifkind, a deponent may refuse to answer contention questions. (Rifkind v. Superior Court (1994) 22 Cal.App.4th 1255, 1260-62 [noting that questions which “call upon the deponent to sort out the factual material in the case according to specific legal contentions, and to do this by memory and on the spot” are improper].) If the deposing party wants to know facts, it can ask for facts; if it wants to know what the adverse party is contending, or how it rationalizes the facts as supporting a contention, it may ask that question in an interrogatory. (Id.) However, the questions at issue here were not clearly contention questions. Thus, Rifkind does not apply.
However, Plaintiff’s counsel also objected based on privilege. It is not correct that a privilege applies to any questions about “pleadings” - that is too broad an assertion, and discovery responses are not “pleadings” in any event. However, a privilege objection would be appropriate to the extent that the client’s response is based on confidential communications between the attorney and the client. Plaintiff thus must answer questions as to whether Plaintiff read the discovery responses he verified, and as to any factual assertions therein, regardless of whether his attorney provided the responses to him to review. But Plaintiff can properly be instructed not to provide answers about the content of any discussions with counsel, including any understanding he may have as to contentions or legal assertions addressed in his discovery responses. The Motion as to Categories 1-3 in ROA 800 is therefore granted in part.
As to Category 4 in ROA 800, the Motion is DENIED. Defendants assert that Plaintiff has asserted a fee claim and so may be asked about fee arrangements with and payments to his counsel to date. But a written fee agreement is a confidential communication. (See Bus & Prof. Code §6149.) Defendants have not shown here that attorney’s fees are being asserted as an element of Plaintiff’s damages: that Plaintiff may seek to claim fees as a cost if Plaintiff prevails does not suffice to show that Plaintiff has put his fee arrangement with counsel at issue at this stage of the proceedings. The Motion as to Category 4 is therefore denied.
All sanctions requests on Motion 1 are DENIED. Both sides have shown that their respective positions had at least some merit, and the claims as to misconduct during the deposition itself are disputed. However, the Court notes that professional behavior is expected from all counsel.
Counsel are to confer as to an appropriate and imminent date to resume the Clark deposition and whether it shall be conducted in person, and with or without video, so that a specific date to complete the examination may be set. Defendants may have up to one hour to complete their examination as to those areas in which further inquiry is permitted as discussed above.
Motions 2-7: As a preliminary matter, the Motions do not demonstrate that Plaintiff made an adequate effort to meaningfully meet and confer for the specific discovery requests at issue. Instead, Plaintiff made what were primarily general assertions, without addressing the specific responses, the perceived defects therein, and then meaningfully attempting to narrow the areas in dispute – despite a request from defense counsel that he do so. (See e.g. ROA 716 at Exs. D-F.) However, as the parties plainly disagree as to what is now required and trial is now imminent, the Court has nonetheless addressed the merits, as discussed below.
In addition, although each of these Motions asked for an order compelling supplementation without objection, each failed to show that any objections had been waived, or were otherwise improper. Therefore, although some supplementation is being ordered for two of the Motions, as reflected below, the request that supplementation be ordered without objection is DENIED.
Motions 4 and 5, which are directed to Special Interrogatory (“SROG”) responses, are GRANTED IN PART.
For Motion 5, SROG Nos. 252-255 are again quite similar to the prior RFA Nos. 16 and 17, which the Court identified as vague and overbroad in its 10/18/21 ruling. But in an interrogatory context, they too can and should be answered.
For SROG Nos. 249-251, the objections do not suffice to excuse compliance, as to the name, mailing address and phone number for each. Motion 5 is therefore granted to require supplementation for SROG Nos. 249-255, within 4 days of this hearing. However, for Nos. 266-268, as the responses appear adequate, Motion 5 as to SROGs 266-268 is denied.
Motions 6 and 7, which are directed to the RFA responses are denied.
For Motion 6, RFA Nos. 117, 120 and 125-128 are effectively identical to the prior RFAs 16, 17, and 35-38, which the Court already identified as defective in its 10/18/21 ruling. For RFA Nos. 113, and 131-132, the objections appear reasonable in context, and Plaintiff has not shown why that is not so. Motion 6 is therefore DENIED in its entirety.
For Motion 7, RFA Nos. 125, 128, and 133-136 are effectively identical to the prior RFAs 16, 17, and 35-38, which the Court already identified as defective in its 10/18/21 ruling. For RFA Nos. 121, 139 and 140, the objections appear reasonable in context, and Plaintiff has not shown why that is not so. Motion 7 is therefore DENIED in its entirety.
Motions 2 and 3, which are directed to Form Interrogatory (“FROG”) responses concerning some of the RFA responses, are also DENIED.
For Motion 2, in light of the rulings on Motion 6, the responses for RFA Nos. 113, 117, 120, 125-128, and 131-132 are adequate. The remaining responses concerning RFA Nos. 130 and 135-137 also are adequate here. Motion 2 is therefore DENIED in its entirety.
For Motion 3, in light of the rulings on Motion 7, the responses for RFA Nos. 121, 125, 128, 133-136 and 139-140 are adequate. The remaining responses concerning RFA Nos. 127, 130, 137-138, 141, and 143-146 also are adequate here. Motion 3 is therefore DENIED in its entirety.
All of the requests for sanctions presented in connection with Motions 2-7 are DENIED. Although Plaintiff has shown some merit to a portion of what was sought on Motions 4 and 5, the Court does not find that sanctions in any amount are warranted thereon, and Plaintiff clearly is not entitled to sanctions on the other Motions. Nor does the Court find that sanctions should be imposed on Plaintiff here, as Plaintiff did show some merit to a portion of what was sought on Motions 4 and 5.
Counsel for Defendants Delaney and GTRE are ordered to give notice of these rulings.