Judge: David A. Rosen, Case: 21GDCV01300, Date: 2023-01-20 Tentative Ruling
Case Number: 21GDCV01300 Hearing Date: January 20, 2023 Dept: E
Hearing Date: 01/20/2023 - 10:00am
Case No: 21GDCV01300
Trial Date: 03/13/2023
Case Name: AMERICAN CONTRACTORS INDEMNITY COMPANY, a California corporation v.
CHASE FIRE PROTECTION, a California corporation, NADAV PADEH, an individual,
YENY CARRILLO-PADEH, an individual and DOES 1-50
MOTIONS
TO COMPEL FURTHER RESPONSES -RPD
Moving Party: Plaintiff, American Contractors
Indemnity Company (“Plaintiff” or “ACIC”)
Responding Party: Chase Fire Protection, Inc. – No Opposition
No Reply
submitted
Proof of Service Timely Filed (CRC Rule 3.1300): Ok
16/21 Court Days Lapsed (CCP 1005(b)):Ok
Proper Address: Ok. The instant motion seeking an order compelling further
responses to RPD’s to Chase Fire Protection was served by U.S. Mail to Daniel
J. Goularte, Chase Fire Protection, Inc., Yeny Carillo-Padeh, and Nadav
Padeh. On 9/8/2022, three “Substitution
of Attorney” documents were filed with the Court for all three Defendants. The
Court noted in the 10/7/2022 Minute Order that Daniel J. Goularte is not
relieved as counsel for the corporation Chase Fire Protection, Inc., due to the
face that a corporation is required to have attorney representation. Since this
motion was served by mail to the proper address for both Goularte and Chase
Fire Protection, Inc., this appears to be proper service.
Moving Papers: Notice of Motion/Motion/Memo; Separate
Statement; Proposed Order; Decl. Hadjian filed on 12/14/2022
The Court notes that the Hadjian Declaration filed
with the Court on 12/14/2022 was not served on Goularte, Chase’s counsel. [See
further in the “Background” section regarding the 12/14/2022 Hadjian
Declaration.]
RELIEF REQUESTED
Plaintiff,
American Contractors Indemnity Company, moves for an order compelling
Defendant, Chase Fire Protection (Chase), to provide further responses to
Plaintiff’s Requests for Production of Documents (Set One).
Plaintiff seeks further responses to all written
discovery requests, including Requests for Production Nos. 1-19 (Set One).
This Motion to Compel Further Responses is grounded in
Defendant’s refusal to provide any proper responses to Plaintiff’s discovery.
This Motion is brought pursuant to California Code of Civil Procedure section
2031.310, and shall be based upon this Notice, the attached Memorandum of
Points and Authorities, the Declaration of Jason R. Fair, the accompanying
Separate Statement, the pleadings and papers on file herein, and upon such
other and further evidence and argument as may be submitted upon the hearing of
this Motion.
BACKGROUND
On
10/21/2021, Plaintiff filed a complaint against Chase Fire Protection, Nadav
Padeh, and Yeny Carillo-Padeh alleging three causes of action: (1) Breach of
Written Contract, (2) Express Contractual Indemnity, and (3) Statutory Reimbursement.
This complaint pertains to breach of an indemnity agreement.
On August 1, 2022, Plaintiff filed three motions to
compel further responses against each of the three Defendants. The motions were
unopposed and set to be heard on October 7, 2022. The Court’s tentative noted
the procedural deficiencies with the Plaintiff’s motion, but the Minute Order
that was published for October 7, 2022 simply noted that the motions were
continued to 12/02/2022.
On 12/02/2022, the Court granted Plaintiff’s : (1)
Motion to Compel Further Responses from Chase Fire Protection to Plaintiff’s Request
for Admissions (Set One); (2) Motion to Compel Further Responses from Chase
Fire Protection to Plaintiff’s Special Interrogatories (Set One); and (3)
Motion to Compel Further Responses from Chase Fire Protection to Plaintiff’s
Form Interrogatories (Set One).
Further, in the
12/02/2022 Minute Order, the Court noted as follows, “Plaintiff is to meet and
confer not only about today’s ruling, but also with the other defendants
regarding the remaining motions to compel in this case in attempts to have the
motions all heard on one hearing date.” (Min. Order 12/02/2022 p. 20.) Presumably,
this is why Plaintiff filed the Hadjian declaration on 12/14/2022. Hadjian
states, “On or about December 13, 2022, I contacted Mr. Daniel Goularte,
counsel of record for Chase Fire Protection pursuant to court order, to meet
and confer on the status of Plaintiff’s remaining motions to compel, but was
unable to reach Mr. Goularte.” (Hadjian Decl. ¶7.) Hadjian also stated,
“Plaintiff has not heard from any of the defendants in this matter regarding
the pending and remaining motions on calendar, and Defendants have not
responded to Plaintiff’s meet and confer efforts set forth above.” (Hadjian
Decl. ¶8.)
The Court notes
that while Hadjian alleges she met and conferred with Chase’s counsel about the
status of Plaintiff’s remaining motions to compel and was unable to reach Mr.
Goularte, the instant meet and confer declaration of Hadjian that was filed
with the Court on 12/14/2022 was not served on Chase’s counsel Goularte.
In relevant part to this motion, the instant discovery
(Request for Production of Documents (Set One, Nos. 1-19)) was served on May
12, 2022 to Defendant. (Decl. Fair ¶2.) According to Plaintiff, responses were
due on June 13, 2022, and on June 8, 2022, Defendants requested a 30-day
extension to respond, and Plaintiff’s counsel denied the extension to respond
because Defendants allegedly did not demonstrate good cause for an extension.
(Decl. Fair ¶3.) On June 13, 2022, Plaintiff stated that Defendants served
objections only to each request in addition to the statement, “a full, complete
and verified set of written discovery responses will be provided upon
reasonable agreement of the parties.” (Decl. Fair ¶4.)
On June 28, 2022, Plaintiff’s counsel sent a meet and
confer correspondence and allowed Defendants’ counsel to provide supplemental
verified responses by July 13, 2022. (Exhibit 4.) On or about July 8, 2022,
Defendants’ counsel served a Notice of Unavailability stating he would be out
of office from July 18, 2022 through August 26, 2022. (Decl. Fair ¶7.) On or
about July 9, 2022, Plaintiff’s counsel emailed Defendants’ counsel stating
that he was still awaiting responses. (Decl. Fair ¶8.) Plaintiff’s counsel sent
further emails about responses, and Defendants’ counsel never responded. (Decl.
Fair ¶9-12.)
ANALYSIS
Procedural – 45 Days
“Unless notice of this motion is given within 45 days
of the service of the verified response, or any supplemental verified response,
or on or before any specific later date to which the demanding party and the
responding party have agreed in writing, the demanding party waives any right
to compel a further response to the demand.” (CCP §2031.310(c).)
As a preliminary matter, Plaintiff did not address
whether or not this motion is timely based on the 45-day requirement to compel
further responses.
It appears that unverified responses were served on
June 13, 2022 by Defendant. The responses were entirely comprised of objections
along with a statement that said, “A full, complete and verified set of written
discovery responses will be provided upon reasonable agreement of the parties.”
(See all responses in Pl. Mot. Ex. 3) These responses are signed by Defendant’s
counsel on June 13, 2022. However,
moving party did not provide the proof of service of the responses to indicate
responses were actually served on June 13, 2022.
However, the responses at issue are not verified, so the
45-day timeliness requirement does not apply.
CCP 2031.250 states:
(a) The
party to whom the demand for inspection, copying, testing, or sampling is
directed shall sign the response under oath unless the response contains only
objections.
(b) If
that party is a public or private corporation or a partnership or association
or governmental agency, one of its officers or agents shall sign the response
under oath on behalf of that party. If the officer or agent signing the
response on behalf of that party is an attorney acting in that capacity for a
party, that party waives any lawyer-client privilege and any protection for
work product under Chapter 4 (commencing with Section 2018.010) during any
subsequent discovery from that attorney concerning the identity of the sources
of the information contained in the response.
(c) The
attorney for the responding party shall sign any responses that contain an
objection.
Procedural – Meet and Confer
“The
motion shall be accompanied by a meet and confer declaration under Section
2016.040.” (CCP §2031.310(b)(2).)
Plaintiff’s counsel, Jason R. Fair, alleges he met and
conferred before filing the instant motion. (Decl. Fair ¶¶5-6, 8-11.)
LEGAL STANDARD – COMPEL FURTHER – REQUESTS
FOR PRODUCTION
Under §2031.210, the party to
whom a demand for inspection, copying, testing, or sampling has been directed
shall respond separately to each item or category of item by any of the
following:
(1)¿A statement that the party
will comply with the particular demand for inspection, copying, testing, or
sampling by the date set for the inspection, copying, testing, or sampling
pursuant to paragraph (2) of subdivision I of Section 2031.030 and any related
activities.
(2)¿A representation that the
party lacks the ability to comply with the demand for inspection, copying,
testing, or sampling of a particular item or category of item.
(3)¿An objection to the
particular demand for inspection, copying, testing, or sampling.
(CCP §2031.210(a).)
(1) Identify
with particularity any document, tangible thing, land, or electronically stored
information falling within any category of item in the demand to which an
objection is being made.
(2) Set forth
clearly the extent of, and the specific ground for, the objection. If an
objection is based on a claim of privilege, the particular privilege invoked
shall be stated. If an objection is based on a claim that the information
sought is protected work product under Chapter 4 (commencing with Section
2018.010), that claim shall be expressly asserted.
(c) (1) If
an objection is based on a claim of privilege or a claim that the information
sought is protected work product, the response shall provide sufficient factual
information for other parties to evaluate the merits of that claim, including,
if necessary, a privilege log.
(2) It is the intent of the Legislature to codify
the concept of a privilege log as that term is used in California case law.
Nothing in this subdivision shall be construed to constitute a substantive
change in case law.
(CCP §2031.240(b)-(c).)
Under Code of Civil Procedure section 2031.310,
the Court may order a responding party to serve a further response to a
request for production when the Court finds that any of the following
apply:
Unlike with requests to compel further
interrogatories, a moving party seeking to compel further responses for
requests for production must show good cause along with satisfaction of the
meet and confer requirement. (CCP§ 2031.310(b.) “Good cause” is
shown when a moving party provides sufficient facts that the requests are
relevant. (Kirkland v. Superior Court (2002) 95 Cal.App.4th
92, 97.)
DISCUSSION
RPD’s 1-19
RPD’s
1-19 request the following:
Request for Production
No. 1: All DOCUMENTS RELATING TO YOUR decision to request
bonding from ACIC for the BONDED PROJECT.
Request for Production No. 2: If YOU contend YOU were
excused from YOUR obligations under the INDEMNITY AGREEMENT, all DOCUMENTS
RELATING TO or in support of YOUR contention.
Request for Production No. 3: If YOU contend YOU are
not obligated to reimburse ACIC for all loss, costs, and expenses pursuant to
the INDEMNITY AGREEMENT, all DOCUMENTS RELATING TO or in support of YOUR
contention.
Request for Production No. 4: All DOCUMENTS in support
of YOUR affirmative defense number 1 that “Plaintiff’s Complaint is barred in
whole in or in part by the applicable statute of limitations.”
Request for Production No. 5: All DOCUMENTS in support
of YOUR affirmative defense number 2 that “[a]ny recovery on Plaintiff’s
Complaint, or any cause of action alleged therein, is barred in whole or in
part by Plaintiff’s contributory and/or comparative fault.”
Request for Production No. 6: All DOCUMENTS in support
of YOUR affirmative defense number 3 that “[r]ecovery of damages on Plaintiff’s
Complaint is barred because Plaintiff does not have standing as he/she did not
have an employer and employee relationship with Defendants.”
Request for Production No. 7: All DOCUMENTS in support
of YOUR affirmative defense number 4 that “Plaintiff has failed to mitigate
his/her damages.”
Request for Production No. 8: All DOCUMENTS in support
of YOUR affirmative defense number 5 that “Defendants have engaged attorneys to
defend Plaintiff’s frivolous, unfounded and unreasonable action and upon
prevailing herein, Defendants are entitled to an award of reasonable attorney’s
fees and costs.”
Request for Production
No. 9: All DOCUMENTS in support of YOUR affirmative defense
number 6 that “Plaintiff’s claims should be dismissed to the extent that they
were not set forth in his/her administrative charges.”
Request for Production
No. 10: All DOCUMENTS in support of YOUR affirmative defense
number 7 that “Defendants allege that they have incurred damages by reason of
Plaintiff’s conduct and that Defendants have the right of offset of any amount
of monies owed to Plaintiff by way of damages.”
Request for Production
No. 11: All
DOCUMENTS in support of YOUR affirmative defense number 8 that “Plaintiff’s Complaint
and each cause of action contained therein are barred pursuant to a valid and
binding arbitration agreement between the parties, and Defendants have no
waived and have no intention of waiving its right to arbitration.”
Request for Production No. 12: All
DOCUMENTS in support of YOUR affirmative defense number 9 that “[a]ny recovery
on the Complaint, or any cause of action or purported cause of action alleged
therein, is barred on the ground that Plaintiff consented to the conduct challenged
therein.”
Request for Production
No. 13: All DOCUMENTS in support of YOUR affirmative defense
number 10 that “the Complaint is barred by reason of acts, omissions,
representations and courses of conduct by Plaintiff by which Defendant was led
to rely to its detriment, thereby barring, under the doctrine of equitable
estoppel, any causes of action asserted by Plaintiff.”
Request for Production No. 14: All
DOCUMENTS in support of YOUR affirmative defense number 11 that “[a]ny recovery
on Plaintiff’s Complaint, or any cause of action alleged therein, is barred in
whole or in part by harm caused to Plaintiff by plaintiff’s own breach of duty
to investigate the merits of the claim before issuing a payment on a
Performance Bond.”
Request for Production No.
15: All
DOCUMENTS in support of YOUR affirmative defense number 12 that “[a]ny recovery
on Plaintiff’s Complaint, or any cause of action alleged therein, is barred in
whole or in part by harm caused to Plaintiff by plaintiff’s own breach of
contract.”
Request for Production
No. 16: All DOCUMENTS in support of YOUR affirmative defense
number 13 that “[a]ny recovery on Plaintiff’s Complaint, or any cause of action
alleged therein, is barred in whole because the Defendant did not breach the
contract as alleged in the pleadings.”
Request for Production
No. 17: All DOCUMENTS in support of YOUR affirmative defense
number 14 that “Defendant has or was prevented from performing the Contract as
alleged in the pleadings.”
Request for Production No. 18: All
DOCUMENTS in support of YOUR affirmative defense number 15 that “each and every
cause of action in the Complaint is barred by reason that the condition
precedent has not been met.”
Request for Production No. 19: All DOCUMENTS RELATING
TO, referred to, prepared by, and/or relied upon by YOU in preparing YOUR
responses to Requests for Admissions (Set One).
Response to RPD’s 1-19
Defendant responded identically to all 19 RPD’s.
Defendant responded as follows:
Responding Party objects
to this request as vague and ambiguous. Responding Party objects to this
request as it is also overbroad and unjustly burdensome. Responding party
further objects to this interrogatory as it is designed to violate the attorney
work product doctrine and attorney client privilege, and documents that are
held under privilege for which are not discoverable. Furthermore, Responding
Party objects to Plaintiff’s discovery request and conduct as unreasonable,
unfair, designed to violate Los Angeles Superior Court Rules, Chapter Three,
Civil Division, Appendix 3.A, Guidelines for Civility in Litigation, subsection
(a), to wit, “First requests for reasonable extensions of time to respond to
litigation deadlines, whether relating to pleadings, discovery, or motions,
should ordinarily be granted as a matter of courtesy unless time is of the
essence. A first extension should be allowed even if the counsel requesting it
has previously refused to grant an extension.” A full, complete, and verified
set of written discovery responses will be provided upon reasonable agreement
of the parties.
DISCUSSION RPD’s 1-19
As
a preliminary matter, moving party argues that the burden is on the responding
party to justify its objections. The Court notes that moving party’s contention
is incorrect. Unlike with requests to compel further interrogatories, a moving
party seeking to compel further responses for requests for production must show
good cause along with satisfaction of the meet and confer requirement.
(CCP§ 2031.310(b.) “Good cause” is shown when a moving party
provides sufficient facts that the requests are relevant. (Kirkland v.
Superior Court (2002) 95 Cal.App.4th 92, 97.)
Here, although moving party did not assert a good
cause argument in its separate statement as to why further responses should be
compelled, moving party did assert a good cause argument in its memorandum. Moving
party argued as such, “The first set of discovery requests is basic as it
merely pertains to the bonds in dispute, the GIA and the parties’ respective
obligations therein, and requests for information in support of Defendant’s
affirmative defenses and to understand the basis of Defendant’s assertion of sixteen
affirmative defenses. Fair Decl. ¶ 13. The requested discovery items are
necessary for ACIC to prosecute its Complaint against Defendant. Id. ACIC does
not have access to this information or discovery from any other source. Fair
Decl. ¶ 14. All of the discovery was made for a legitimate purpose, and none is
intended to harass or unnecessary complicate the case. Id. Without this
discovery, Plaintiff will be irreparably harmed and unduly prejudiced based on
its inability to prepare for trial. Id.” (Pl. Mot. p.5. )
The court finds Plaintiff’s argument as to good cause
sufficient.
Additionally, the Court finds Defendant’s objections
on vagueness, ambiguity, overbroad, and unjustly burdensome to be without
merit.
Further, Defendant’s objections as to attorney work
product and attorney client privilege are not well taken because Defendant did
not comply with the Code.
If the responding party objects to the demand for
inspection, copying, testing, or sampling of an item or category of item, the
response shall do both of the following:
(1) Identify with particularity any document,
tangible thing, land, or electronically stored information falling within any
category of item in the demand to which an objection is being made.
(2) Set forth clearly the extent of, and the
specific ground for, the objection. If an objection is based on a claim of
privilege, the particular privilege invoked shall be stated. If an objection is
based on a claim that the information sought is protected work product under
Chapter 4 (commencing with Section 2018.010), that claim shall be expressly
asserted.
(c) (1) If an objection is based on a claim
of privilege or a claim that the information sought is protected work product,
the response shall provide sufficient factual information for other parties to
evaluate the merits of that claim, including, if necessary, a privilege log.
(2) It is the intent of the Legislature to codify
the concept of a privilege log as that term is used in California case law.
Nothing in this subdivision shall be construed to constitute a substantive
change in case law.
(CCP §2031.240(b)-(c).)
Responding party also objected by stating. “Responding
Party objects to Plaintiff’s discovery request and conduct as unreasonable,
unfair, designed to violate Los Angeles Superior Court Rules, Chapter Three,
Civil Division, Appendix 3.A, Guidelines for Civility in Litigation, subsection
(a), to wit, “First requests for reasonable extensions of time to respond to litigation
deadlines, whether relating to pleadings, discovery or motions, should
ordinarily be granted as a matter of courtesy unless time is of the essence. A
first extension should be allowed even if the counsel requesting it has
previously refused to grant an extension.”
In moving papers, Plaintiff argued that granting an
extension was not warranted because a “good cause” standard applies, and
Defendant failed to establish good cause. Plaintiff cited Mannino v.
Superior Court of Orange County (1983) 142 Cal.App.3d 776.
As to this issue, the Court notes that both parties
appear to be incorrect. Plaintiff is incorrect because Mannino is not
applicable in the instant context. In Mannino, the good cause
requirement pertained to when the responding party responded past the
previously extended deadline. Here, moving party is not alleging that Defendant
responded past a deadline. In fact, moving party appears to state that
Defendant timely responded. Therefore, under the Guidelines for Civility in
Litigation, moving party could have in fact granted an extension of time to
respond and Defendant did not need good cause.
However, the Court finds Defendant’s objection without
merit because even though Defendant requested an extension and Plaintiff did
not grant that extension, Defendant still provided responses on June 13, 2022,
despite the fact that an extension was not granted.
Responding party also said, “A full, complete and
verified set of written discovery responses will be provided upon reasonable agreement
of the parties.” Here, the Court notes that it appears that Defendant never
provided a full and complete verified set of written discovery responses since
moving party said it never received any responses after receiving the instant
responses. (Fair Decl. ¶12.) Further this response doesn’t appear to be code
compliant because Defendant asserted objections, yet also stated responses will
be provided upon reasonable agreement of the parties. “If only part of an item
or category of item in a demand for inspection, copying, testing, or sampling
is objectionable, the response shall contain a statement of compliance, or a
representation of inability to comply with respect to the remainder of that
item or category.” (CCP §2031.240(a).) Here, Defendant appears to be objecting
yet also stating it will comply. It is unclear how Defendant planned or plans
to both.
TENTATIVE RULING
Plaintiff’s
motion to compel further responses to Plaintiff’s Requests for Production of
Documents (Set One, Nos 1-19) propounded on Defendant Chase Fire Protection is
GRANTED.
Sanctions Ruling
“Except
as provided in subdivision (j), 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 to 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.” (CCP §2031.310(h).)
Moving party did not request sanctions. Further, the
representation status of Chase Fire Protection is unclear, as is whether the
bankruptcy filings of the two individual defendants affect Chase Fire
Protection, and, if so, in what way. As
it would be unjust to impose sanctions under these circumstances, the Court
declines to award any sanctions on this Motion.