Judge David A. Rosen, Case 22GDCV00251 2022-12-30 Tentative Ruling

Judge: David A. Rosen, Case: 22GDCV00251, Date: 2022-12-30 Tentative Ruling

Case Number: 22GDCV00251 Hearing Date: December 30, 2022 Dept: E

Hearing Date: 12/30/2022 – 8:30am
Case No. 22GDCV00251
Trial Date: 07/31/2023
Case Name: SANDA OSWALD v. JOY SANTOS

TENTATIVE RULING– MOTION TO DEEM RFAs ADMITTED

Moving Party: Plaintiff, Sanda Oswald
Responding Party: Defendant, Mel Caoili

Opposition Submitted, No Reply submitted. [It is unclear how/where Opposition and Opposition Declaration was served to Plaintiff. The proof of service states it was hand served on counsel electronically, but the POS doesn’t state the electronic address. Further, the POS states the Opposition papers were served by mail, and there could be an issue with the mailing address as noted in the Analysis section below with respect to service of the responses themselves.]

RELIEF REQUESTED¿
Plaintiff, Sanda Oswald, moves this Court for an order establishing admissions as to the truth of each matter specified in the first set of requests for admissions served on September 2, 2022 and for sanctions in the amount of $540.00 against Defendant for failing to provide any responses to the first set of requests for admission.

This motion is brought pursuant to CCP §§2023.010 and 2033.280 and is brought by reason of the failure of Defendant to provide responses.

Procedural
16/21 Day Lapse (CCP §12c and §1005(b): Ok
Proof of Service Timely Filed (CRC, Rule 3.1300): Ok
Correct Address (CCP §1013, §1013a): Ok

BACKGROUND
Plaintiff alleges that it entered into a written contract with Defendants for the rental of real property located at 432 Riverside Dr., Glendale, CA 91204 for a monthly rental rate of $2,050.00 for a period of one year, set to begin on February 1, 2019. Plaintiff alleges that on or around February 2022 Defendants provided Plaintiff with a notice that on March 2022 Defendants would be raising rent from $2,050.00 to $2,150.00. Plaintiff alleges that this rent increase violated the Los Angeles County Updated COVID-19 Tenant Protections Resolution Phase I which was effective from February 1, 2022 – May 31, 2022.

Plaintiff further alleges that on or around March 22, 2022, Defendant Joy Santos sent Plaintiff a text message stating in part, “Hi Sanda, I noticed your excessive use of the laundry machine. We have tried not to raise the rent, but even with the $100 a month increase that just started this month since your tenancy isn't enough to cover the increase in the water bill. I will ask you to limit your laundry use."

Plaintiff alleges that on or around March 26, 2022, Defendants texted Plaintiff stating in part, “It is now midnight and the washer and or dryer just completed its cycle. The noise coming from the machine at this late is causing a nuisance and not allowing us to rest. Please use the machine between 8am and 8pm only…. Thank you.”

In general terms, Plaintiff’s Complaint appears to be premised on the following allegations, “Landlords may not terminate a tenancy, refuse to renew a tenancy, or cause a tenant to involuntarily move out. Here, because Defendants engaged in an illegal rent increase in which in February 2022 the law forbids such notice to be served, and because of the text messages demanded that Plaintiff limit her laundry usage constitutes Defendants acts of breaching the contract, breach of quiet and enjoyment, and unlawfully influencing Plaintiff to vacate. In violation of the Los Angeles Covid-19 Tenant Protections Resolution Was Signed And Went Into Effect On January 25, 2022.” (Compl. ¶13.)

Plaintiff’s Complaint alleges the following causes of action: (1) Breach of Contract, (2) Breach of Covenant of Good Faith and Fair Dealing, (3) Breach of Covenant of Quiet Enjoyment of the Premises, (4) Nuisance [Civil Code §3479], (5) Intentional Infliction of Emotional Distress, (6) Negligent Infliction of Emotional Distress, (7) Negligence, and (8) Constructive Eviction.

On 07/05/2022, Defendants filed an answer to the Complaint. The Answer is a Form Answer, and Defendants checked the box in Paragraph 4 titled “Affirmative Defenses,” and alleged that Plaintiff is not entitled to recover anything because the Updated COVID-19 Tenant Protections Phase 1 rent freeze applied only to unincorporated areas of LA County, and Glendale is an incorporated city and its ordinance on rent freeze expired on October 31, 2020. Defendants also alleges that due to the rising cost of the water bill, they requested Plaintiff to limit usage of the machines, and this text message did not constitute harassment. Defendants further state that the washer and dryer were not included in the tenancy contract and could have been removed at any time because of its abuse by the Plaintiff, but the Plaintiff was merely asked to limit its use and operate the machine at a more reasonable time. Further, Defendants allege that Plaintiff appeared to have been using the laundry machines for business purposes based on the photos attached to Defendants’ answer that show ticket numbers on the clothing[s] that hung on Plaintiff’s closet which Plaintiff requested repeatedly to be fixed due to damage the weight of these clothes placed on the closet bar holder.

LEGAL STANDARD - REQUEST TO DEEM ADMISSIONS ADMITTED
“Within 30 days after service of requests for admission, the party to whom the requests are directed shall serve the original of the response to them on the requesting party, and a copy of the response on all other parties who have appeared, unless on motion of the requesting party the court has shortened the time for response, or unless on motion of the responding party the court has extended the time for response.” (CCP §2033.250(a).)

If a party to whom requests for admission are directed fails to serve a timely response, the requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction under Chapter 7 (commencing with Section 2023.010). (CCP §2033.280(b).) The court shall make this order, unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220. (CCP §2033.280(c).)

Further, if a party to whom requests for admission are directed fails to serve a timely response, the party to whom the requests for admission are directed waives any objection to the requests, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010). (CCP §2033.280(a).) However, the court on motion, may relieve that party from this waiver on its determination that: (1) the party has subsequently served a response that is in substantial compliance with Sections 2033.210, 2033.220, and 2033.230, and (2) the party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect. (CCP §2033.280(a)(1)-(2).)

ANALYSIS
Here, Plaintiff served Request for Admissions, Set One, to Defendant Mel Caoili on September 2, 2022 via U.S. Mail. Plaintiff does not state when the responses would have been due by or mention the 30-day rule in its motion. However, since the instant RFAs were propounded on September 2, 2022 via U.S. Mail, and since Defendant’s counsel stated that verified responses were served on 10/9/2022, the responses to the RFAs appear to be late. The instant motion itself was filed on 10/10/2022 and served via U.S. Mail, and at the time of filing the instant motion on 10/10/2022, Plaintiff alleged she had not received responses yet. Although Defendant’s counsel argues that Plaintiff received responses by the time the Plaintiff filed the instant motion on 10/10/2022, thus making this motion unnecessary, that issue is difficult to determine. Defendant’s Opposition states responses were sent on 10/9/2022 via email, which would indicate that Plaintiff filed this motion on 10/10/2022 even though Plaintiff received responses on 10/9/2022.

However, it is difficult to determine if Plaintiff had received these responses on 10/9/2022 before filing the motion on 10/10/2022 for two reasons.

First, although Defendant’s declaration states the responses were served by email on 10/9/2022, Defendant’s proof of service for the responses to the RFAs is ambiguous – it is not clear if the responses were served on 10/9/2022 via mail or via email because the proof of service lists a mailing address and two email addresses, yet the proof of service states it was served by mail. If these responses were served only via mail, then Plaintiff likely had not received the responses in the mail at the time of filing the motion on 10/10/2022.

Second, if the responses were served only via mail, it is unclear if Plaintiff received those responses. If served by mail, the responses appear to have been sent to Plaintiff at “Sandra Oswald, 10061 Riverside Dr. Unit 768, Toluca Lake, CA 91602.” Problematic with that are two things: First, on eCourt, Plaintiff’s address is listed as 10061 Riverside Drive, Unit 768, North Hollywood, CA 91602. Second, in the Court’s 11/4/2022 Minute Order, the Court notes as follows, “Plaintiff’s address verified as 110061 Riverside Dr. Unit #768, Toluca Lake, CA 91602.” Problematic with the verified address in the Court’s Minute Order is it adds a “1” in the prior address of 10061 Riverside Drive, Unit 768.

MISCELLANEOUS ASSERTIONS IN OPPOSITION
In opposing the 11/4/2022 motion to quash, Counsel Washington lodged evidence that Movant was not communicating – specifically not taking, nor returning calls and also not answering emails about scheduling depositions, or possible settlement. This court admonished both parties that cooperating to move a case forward is an obligation which comes with the civil system. As explained in the Declaration of Washington, this same behavior continues as 100% of the discovery in the three (3) motions was in movant’s possession before the 3 motions were filed (See, Declaration of Washington. Ex 1 Verified Responses to Form rogs; Ex 2 Verified Responses to RFA’s with 17.1 responses; Ex 3 Verified Responses to RFP with documents). When Oswald would not acknowledge receipt, Defendants duplicated with proof of service by mail and followed up by Ex 4 requesting, and not receiving, email response. 1 Thus the request to compel form interrogatory responses, the request to deem RFA’s admitted, and the request to compel responses and documents were all improperly brought, should not have been maintained and should be denied.

Assuming Plaintiff has received verified responses by the time of this hearing that are in substantial compliance with Section 2033.220, whether or not Plaintiff knew about these responses from Defendant at the time of filing the instant motion, it appears as if Plaintiff’s motion is thus moot, but Plaintiff’s Sanctions request is not mooted.

If Plaintiff did not receive the responses at the proper address, then Defendant is compelled to provide verified responses without objection that are in substantial compliance with Section 2033.220 to Plaintiff within 10 days hereof.

TENTATIVE RULING
The Court will hear brief argument on when, if ever, and by what method, the subject discovery responses were served upon Plaintiff, and whether the same were verified.

Sanctions
“It is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.” (CCP §2033.280(c); emph. added.)

Plaintiff is pro se and alleges her sanctions should be granted in the amount of $540 against Defendant Mel Caoili. Attorney’s fees cannot be awarded to a self-represented litigant. Trope v. Katz (1995) 11 Cal. 4th 274, 279-282. However, as Plaintiff was required to bring this Motion by virtue of Defendant’s late (or still non-existent) discovery responses, the Court awards Costs to Plaintiff/movant in the amount of $150.00, to be paid by Defendant to Plaintiff within 30 days.

Hearing Date: 12/30/2022 – 8:30am

Case No: 22GDCV00251

Trial Date: 07/31/2023

Case Name: SANDA OSWALD v. JOY SANTOS, et al.

TENTATIVE RULING - MOTION TO COMPEL DEPOSITION

Moving Party: Defendants, Joy Santos and Mel Caoili

Responding Party: Plaintiff, Sanda Oswald – No Opposition submitted

Proof of Service Timely Filed (CRC Rule 3.1300): Ok
16/21 Court Days Lapsed (CCP 1005(b)): Ok
Proper Address: Unsure for Several reasons –

1. There appear to be two proofs of service for this motion, and they are on the second to last page (21/22) and the last page (22/22) in the Declaration of Dale E. Washington. If we assume that the last page (22/22) is the actual proof of service, then it faces the following problem:

a. The motion appears to have been sent by mail to Plaintiff at “Sanda Oswald, 10061 Riverside Drive, Unit 768, Toluca Lake, CA 91602.” Problematic with that are two things: First, on eCourt, Plaintiff’s address is listed as 10061 Riverside Drive, Unit 768, North Hollywood, CA 91602. Second, in the Court’s 11/4/2022 Minute Order, the Court notes as follows, “Plaintiff’s address verified as 110061 Riverside Dr. Unit #768, Toluca Lake, CA 91602.” Problematic with the verified address in the Court’s Minute Order is it adds a “1” in the prior address of 10061 Riverside Drive, Unit 768.

2. If we assume the other proof of service (21/22) is the actual proof of service, then it faces the following problem:

a. On the proof of service, the proof of service states, “NOTICE OF MOTION & MOTION; DECLARATION OF WASHINGTON.” This proof of service doesn’t state what specific motion was served on Plaintiff. Presumably, it is the notice of motion for the motion to compel deposition since the proof of service was filed for this motion to compel deposition. But technically, based on the proof of service, it is unclear what motion was served on the 10/24/2022 execution date indicated on the proof of service since the proof of service gives no indication of the specific motion served.

b. The proof of service states it was hand served on counsel electronically, but the POS doesn’t state the electronic address. Additionally, the POS states it was served by mail, and there could be an issue with the mailing address.

c. If served by mail, the motion appears to have been sent to Plaintiff at “Sanda Oswald, 10061 Riverside Drive, Unit 768, Toluca Lake, CA 91602.” Problematic with that are two things: First, on eCourt, Plaintiff’s address is listed as 10061 Riverside Drive, Unit 768, North Hollywood, CA 91602. Second, in the Court’s 11/4/2022 Minute Order, the Court notes as follows, “Plaintiff’s address verified as 110061 Riverside Dr. Unit #768, Toluca Lake, CA 91602.” Problematic with the verified address in the Court’s Minute Order is it adds a “1” in the prior address of 10061 Riverside Drive, Unit 768.

Reply Submitted.

The Reply faces the same service issues as the proof of service on page 21/22 of the declaration for the motion itself. Or to phrase it differently, the Reply faces the same service issues noted in 2(b)-(c) above. However, the only difference with the Reply is that it is titled, “REPLY ON MOTION TO COMPEL.”

RELIEF REQUESTED
Defendants move for an order compelling Plaintiff to produce documents and sit for deposition as set forth in the notice which is attached as Exhibit A to the Declaration of Dale E. Washington filed with this motion.

Movant requests monetary sanctions in the amount of $1,065.00 as reasonable costs and fees incurred as a result of having to bring this motion, and to bring home the importance of cooperation in moving this matter forward.

“This motion is based on C.C.P. § 2025.010 & to C.C.P. § 2023.010 and the fact that PLAINTIFF has asked this court for help and – is not following minimum rules of civility by simply ignoring many attempts to get the deposition on calendar and the testimony completed.” (Defs. Notice of Mot. p.2.)

ANALYSIS
Preliminary Matter – Service of Deposition Notice
The notice of Deposition of Sandra Oswald and Request for Production of Documents that is at issue in this motion was scheduled for October 19, 2022. This deposition was to occur remotely via Zoom, and in addition to the deposition, it requested the following documents:

1. All DOCUMENTS which relate or refer to the rental memorialized by the Lease attached to YOUR SUIT.

2. All COMMUNICATIONS between you and JOY SANTOS from the inception of the tenancy to the present.

3. All COMMUNICATIONS between you and MEL CAOILI from the inception of the tenancy to the present.

4. All DOCUMENTS which constitute NOTICE of harassment as alleged in YOUR SUIT.

5. All DOCUMENTS which constitute notice of substandard conditions in the dwelling as alleged in YOUR SUIT.

6. All DOCUMENTS which constitute NOTICE of hardship pursuant to the Tenant Relief Act.

The proof of service for the deposition itself doesn’t explicitly state how the deposition notice was served, but it appears as if it was served via mail because the proof of service lists a mailing address but does not list an email address. Further, although not stated in movant’s declaration, on page four of the moving papers, movant states that the deposition was noticed by mail.

Problematic with the mailing address for the proof of service of the deposition notice and request for production of documents is that appears to have been sent to Plaintiff at “Sandra Oswald, 10061 Riverside Dr., Unit 768, Toluca Lake, CA 91602.” Problematic with that are two things: First, on eCourt, Plaintiff’s address is listed as 10061 Riverside Drive, Unit 768, North Hollywood, CA 91602. Second, in the Court’s 11/4/2022 Minute Order, the Court notes as follows, “Plaintiff’s address verified as 110061 Riverside Dr. Unit #768, Toluca Lake, CA 91602.” Problematic with the verified address in the Court’s Minute Order is it adds a “1” in the prior address of 10061 Riverside Drive, Unit 768.

Declaration of Nonappearance

C.C.P. §2025.450(a) provides, as follows: “If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.”

C.C.P. §2025.450(b) provides, in pertinent part, as follows:

(b) A motion under subdivision (a) shall comply with both of the following:

(1) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.

(2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.

Here, the Declaration of Defendants’ counsel, Washington, does not state that he contacted deponent to inquire about the nonappearance. However, the motion itself states he inquired about the nonappearance by stating, “…then 1 inquiry as to the nonappearance (B-7) without response, thus filing this motion.” (Defs’. Mot. p. 4.) Problematic with Defendants’ counsel’s citation/reference to “(B-7)” are two issues.

First, “(B-7)” is an email that appears to allegedly be from Defendants’ counsel to Plaintiff; however, there is no indication of any email address for Plaintiff to show what email address was used for Plaintiff.

Second, although the motion states it inquired about the nonappearance, the (B-7) email of October 23, 2022 simply states:

Dear Ms. Oswald:
This’ll confirm I just called your phone number of record and left a voicemail in which I told you I will begin filing motions against you and bring to the courts attention the fact that you don’t take nor return calls and you refuse to use email and your behavior is falling below the minimum civility rules for the court.

I would very much rather not; the civil system is a privilege and if someone has advised you to drag things out make problems and so forth they 1^st of all don’t realize you’re a plaintiff and 2^nd of all I don’t realize that the judges have seen it before & won’t rule favorably toward anybody misusing the system. You’ll end up getting sanctioned, ruled against and may be dismissed it’s not a good approach.

I am working tonight and you’re welcome to call me 714-242-3868

Dale Washington
Attorney

Sent from my iPhone

This email in (B-7) doesn’t explicitly state anything about the Plaintiff’s nonappearance at the deposition.

This leaves us with no statement of inquiry about nonappearance in the declaration itself; a statement in the motion that it inquired about the nonappearance; a reference to the email exhibit that movant alleges inquires about nonappearance, but the email doesn’t explicitly say anything about a nonappearance.

Meet and Confer
C.C.P. §2025.450(a) provides, as follows: “If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.”

C.C.P. §2025.450(b) provides, in pertinent part, as follows:

(b) A motion under subdivision (a) shall comply with both of the following:

First, where the deponent doesn’t appear, the statute is clear that in a motion to compel the deposition there needs to be a declaration stating the petitioner has contacted the deponent to inquire about the nonappearance. Here, the deposition notice also includes production of documents. Section 2025.450(b)(1) is applicable and states, “The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.”

The moving papers argue good cause as follows:

"Good cause" for production of documents may be established where it is shown that the request is made in good faith and that the documents sought are relevant to the subject matter and material to the issues in the litigation. Associated Brewers Distributing Co. v. Superior Court of Los Angeles County, 65 Cal. 2d 583, 588, 55 Cal. Rptr. 772, 422 P.2d 332 (1967). It has been held reversible error to deny discovery where the objectives of discovery—preventing surprise at trial and allowing proper preparation for trial—are defeated by the denial. (Associated Brewers Distributing Co. v. Superior Court of Los Angeles County, 65 Cal. 2d 583, 588, 55 Cal. Rptr. 772, 422 P.2d 332 (1967).)

As set forth in the Declaration of Washington, this is not fishing expedition - the document demand is narrowly tailored to the needs of this litigation, specifically:

1. All DOCUMENTS which relate or refer to the rental memorialized by the Lease attached to YOUR SUIT.

2. All COMMUNICATIONS between you and JOY SANTOS from the inception of the tenancy to the present.

3. All COMMUNICATIONS between you and MEL CAOILI from the inception of the tenancy to the present.

4. All DOCUMENTS which constitute NOTICE of harassment as alleged in YOUR SUIT.

5. All DOCUMENTS which constitute notice of substandard conditions in the dwelling as alleged in YOUR SUIT.

6. All DOCUMENTS which constitute NOTICE of hardship pursuant to the Tenant Relief Act.

Defendant did not object to the request – just ignored it and the seven (7) calls followed by emails attempting to get the party deposition.

(Defs’. Mot. p.8-9.)

Good cause is thus established for the production of the requested documents.

TENTATIVE RULING

Assuming the service issues are resolved at argument, the Court Orders Plaintiff to appear for deposition and produce the requested documents within fifteen (15) days of this hearing.

Sanctions

Movant requests sanctions in the amount of $1,065.00 “to offset the cost and more importantly get Plaintiff right with the responsibilities attendant litigation.” (Defs’ Mot. p. 9.)

If a motion under subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (CCP §2025.450 (g)(1).)

The Court awards reasonable discovery sanctions of $600.00 to Movant/Defendant, payable by Plaintiff within 30 days.

Per the declaration of Washington, and assuming that the emails Washington has sent to Plaintiff have actually been sent to Plaintiff’s proper address, it does appear that Washington is trying his best to communicate with Plaintiff and schedule the deposition; however, Plaintiff never responds to any of these emails. Washington tried getting Plaintiff’s input on scheduling and potential rescheduling but never received a response from Plaintiff.