Judge David A. Rosen, Case EC068932 2022-12-09 Tentative Ruling

Judge: David A. Rosen, Case: EC068932, Date: 2022-12-09 Tentative Ruling

Case Number: EC068932 Hearing Date: December 9, 2022 Dept: E

Hearing Date: 12/9/2022 – 10:00am
Case No: EC068932
Trial Date: 02/06/2023
Case Name: STEVEN SPINOGLIO, ET AL. v. SHALINI SAMAGH NICOLAS ET AL

TENTATIVE RULING ON MOTIONS TO COMPEL FURTHER RESPONSES

Moving Party: Plaintiffs, Steven Spinoglio and Denise Amato-Spinoglio, Co-Trustees of the Spinoglio Family Trust (collectively “Plaintiffs”)

Responding Party: Defendants, Shalini Samagh Nicolas and David Nicolas

Proof of Service Timely Filed (CRC Rule 3.1300): ok
16/21 Court Days Lapsed (CCP 1005(b)): ok – Opposition attempts to argue that this motion is untimely, but Opposition incorrectly says that two court days must be added to service when in fact only two calendar days must be added.
Proper Address: ok

(Opposition and Reply Submitted.)

RELIEF REQUESTED
Plaintiffs, Steven Spinoglio and Denise Amato-Spinoglio, Co-Trustees of the Spinoglio Family Trust (collectively “Plaintiffs”) move pursuant to CCP §2030.300 for an order compelling further responses from Defendant Shalini Samagh Nicolas to the Plaintiff’s Third Set of Special Interrogatories, numbers 24-33.

Moving party requests sanctions in the amount of $8,866.00 against Defendant.

BACKGROUND
Plaintiffs’ counsel propounded Plaintiff Denise Spinoglio’s Third Set of Special Interrogatories (Nos. 24-33) upon Defendant on September 14, 2022, via Federal Express. (Decl. Chomiak ¶4.) Plaintiffs’ counsel received Defendants’ responses on October 18, 2022, and on October 24, 2022, Plaintiffs’ counsel met and conferred about the deficiencies of the responses. (Decl. Chomiak ¶¶4-5.) Counsel for parties continued to meet and confer. (Decl. Chomiak ¶¶5-8.)

Defendant’s supplemental responses were served on November 9, 2022, but Plaintiffs’ counsel found the responses insufficient. (Decl. Chomiak ¶9.)

Procedural
“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 propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories.” (CCP §2030.300(c).)

The instant responses were served on October 18, 2022, and the supplemental responses served on November 9, 2022. Even based on when the initial responses were served on October 18, 2022, this motion is timely since it was filed on 11/14/2022.

Meet and Confer
“A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040.” (CCP §2030.300(b)(1).) Plaintiffs’ counsel alleged it met and conferred. (Decl. Chomiak ¶5.) Opposition’s argument that there was no meet and confer is unavailing.

ANALYSIS

Preliminary Matter

As a preliminary matter, moving party states how Defendant provided the following general objections to Numbers 24-33:

“Responding Party objects to the requests to the extent they seek information or materials which were prepared by or for any of Responding Party’s attorneys in anticipation of litigation and/or which constitute or reflect either the impressions, conclusions, opinions or legal research of Responding Party’s counsel, or confidential communications between Responding Party and his attorneys. Such information and materials are protected from discovery under the attorney-client privilege or the work product doctrine, or both, and accordingly, will not be provided. Responding Party also objects to the requests to the extent they seek information whose disclosure would violate the privacy rights of Responding Party, his past and current employees, or third parties. Responding Party further objects to the requests insofar as they attempt to impose on Responding Party burdens and obligations in excess of those required by the Code of Civil Procedure or otherwise attempt to require Responding Party to do more than is required by law.”

Moving party argues that since the objections are boilerplate, Defendants must omit these general objections and provide further responses.

“A separate statement is a separate document filed and served with the discovery motion that provides all the information necessary to understand each discovery request and all the responses to it that are at issue. The separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and the full response. Material must not be incorporated into the separate statement by reference. The separate statement must include-for each discovery request (e.g., each interrogatory, request for admission, deposition question, or inspection demand) to which a further response, answer, or production is requested-the following:

(1) The text of the request, interrogatory, question, or inspection demand;

(2) The text of each response, answer, or objection, and any further responses or answers;

(3) A statement of the factual and legal reasons for compelling further responses, answers, or production as to each matter in dispute;

(4) If necessary, the text of all definitions, instructions, and other matters required to understand each discovery request and the responses to it;

(5) If the response to a particular discovery request is dependent on the response given to another discovery request, or if the reasons a further response to a particular discovery request is deemed necessary are based on the response to some other discovery request, the other request and the response to it must be set forth; and

(6) If the pleadings, other documents in the file, or other items of discovery are relevant to the motion, the party relying on them must summarize each relevant document.” (CRC 3.1345(c).)

Here, moving party’s separate statement is only partially in compliance with CRC 3.1345(c). The separate statement includes only special interrogatories 26, 27, and 28. Therefore, this Court will consider only interrogatories 26, 27, and 28 as being before the Court on this motion.

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.

(CCP §2030.300(a).)

SROG 26
Provide a chronological list (including the date started) of all WORK YOU caused to be undertaken from October 15, 2020, to the present on the slopes of the NICOLAS PROPERTY. For purposes of this interrogatory and the interrogatories to follow: 1. The term “WORK” shall refer to any of the following activities: surveying, landscaping, planting of vegetation, removal of vegetation, replanting of vegetation, building or installing a fence, creating a rock border adjacent to the top of a retaining wall, building a retaining wall (including backfill), grading a dirt slope, or digging stairs into a dirt slope. (Additional terms defined in previous interrogatories and relevant to this discussion include the following: 2. The terms “YOU” and “YOUR” shall be deemed to include defendant Shalini Samagh Nicolas and her attorneys, agents, employees or any other PERSON or PERSONS acting on her behalf. 3. The terms “PERSON” and “PERSONS” shall refer to any natural person, association, partnership, corporation, organization, business, trust, joint venture, receiver, estate, syndicate or any other entity or combination acting as a unit or acting as a form of legal entity. 4. The term “NICOLAS PROPERTY” shall refer to the real property located 2070 Dublin Drive, Glendale, California 91206, including the single-family home located at this address.)

Defendant’s October 18, 2022, Response To Special Interrogatory No. 26

“Responding Party hereby incorporates the General Objections as if fully stated herein. Responding Party further objects to this interrogatory on the ground that the term “WORK” is vague and ambiguous, overbroad, unduly burdensome and harassing and assumes facts not in evidence, thus rendering this entire interrogatory overbroad, unduly burdensome and harassing and irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. Responding Party further objects to this interrogatory on the ground that it is overbroad, unduly burdensome and harassing to the extent it calls for a narrative description and relates to areas and slopes that belong to the Nicolas property that are not even adjacent to or touching the Spignolio (sic) property. Subject to, and without waiving the foregoing objections, Responding Party responds to this request as follows: Without being an exhaustive list of every single task related to the upkeep and maintainance (sic) of the slopes adjoining the Spignolio (sic) and Nicolas properties, Responding Party undertook the following projects on the slopes: 1. Responding Party’s gardener comes on a weekly basis. 2. In early 2021, privacy shrubs were planted on Responding Party’s property. 3. In 2021, a cedar fence was installed on Responding Party’s property. 4. In 2020, 2021 and 2022, usually in early Spring, Responding Party will plant some seasonal vegetable plants and flowers. 5. Responding Party and their children sweep, broom and pick up pine needles and pine cones (sic) that fall from the slope and adjoining Spignolio (sic) property on a weekly basis.”

Defendant’s Nov. 9, 2022, Supplemental Response To Special Interrogatory No. 26
Defendant failed to provide a supplemental response to this interrogatory.

TENTATIVE RULING SROG 26
The Court finds all of the objections without merit except the objection that the interrogatory relates to slopes that belong to the Nicolas Property that are not adjacent to or touching the Spinoglio property. Therefore, the Court limits this interrogatory to the slope on which the alleged causes of action occurred.

Motion to compel further responses to SROG 26 is GRANTED and further responses must be provided not only as to the five items of work that responding party already listed, but also all WORK performed by responding parties, or on their behalf as to the slope on which the alleged causes of action occurred.

SROG 27
For each item of WORK listed in response to the previous interrogatory, IDENTIFY all PERSONS who participated in that item of work. (Another defined term relevant to this discussion is the following: 1. When referring to a PERSON, “IDENTIFY” means to give, to the extent known, the PERSON’s full name, present or last known address, email address, and telephone number, and when referring to a natural person, additionally, that PERSON’s cell phone number and the present or last known place of employment, including the address and telephone number of that individual’s employer. Once a PERSON has been identified in accordance with this paragraph, only the name of that PERSON need be listed in response to subsequent discovery requesting the identification of that PERSON.)

Defendant’s October 18, 2022, Original Response To Special Interrogatory No. 27

“Responding Party hereby incorporates the General Objections as if fully stated herein. Responding Party further objects to this interrogatory on the ground that the term “WORK” is vague and ambiguous, overbroad, unduly burdensome and harassing and assumes facts not in evidence, thus rendering this entire interrogatory overbroad, unduly burdensome and harassing and irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. Responding Party further objects to this interrogatory on the ground that it is overbroad, unduly burdensome and harassing to the extent it calls for a narrative description and relates to areas and slopes that belong to the Nicolas property that are not even adjacent to or touching the Spignolio property. Responding Party further objects to this interrogatory to the extent it violates third parties’ rights to privacy. Subject to, and without waiving the foregoing objections, Responding Party responds to this request as follows: Responding Party and children can be reached through counsel. Javier Caceres volunteered as a helper and provided two workers and each can be reached through counsel. Responding Party’s gardener has been previously identified.”

Defendant’s Nov. 10, 2022 Supplemental Response To Special Interrogatory No. 27
Responding Party hereby incorporates the General Objections as if fully stated herein. Responding Party further objects to this interrogatory on the ground that the term “WORK” is vague and ambiguous, overbroad, unduly burdensome and harassing and assumes facts not in evidence, thus rendering this entire interrogatory overbroad, unduly burdensome and harassing and irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. Responding Party further objects to this interrogatory on the ground that it is overbroad, unduly burdensome and harassing to the extent it calls for a narrative description and relates to areas and slopes that belong to the Nicolas property that are not even adjacent to or touching the Spignolio property. Responding Party further objects to this interrogatory to the extent it violates third parties’ rights to privacy. Subject to, and without waiving the foregoing objections, Responding Party responds to this request as follows: Responding Party and children can be reached through counsel. Pastor Javier Caceres (Tel. #: 818-434-7256; Address: 1802 E Chevy Chase Drive, Glendale, CA 91206) volunteered to help Responding Party and provided some day laborers from Home Depot. The day laborers can be reached at Home Depot curbside in downtown Glendale. Responding Party does not have knowledge regarding their contact information. Responding Party’s gardener has been previously identified.

TENTATIVE RULING SROG 27
Responding party’s objections are overruled. Responding party did not comply with SROG 27 as it stated, “For each item of WORK, listed in response to the previous interrogatory, Identify all persons who participate in that item of work.” Responding party must identify specifically who participated in each item of work.

Motion to compel further response for SROG 27 is GRANTED.

SROG 28
For each item of WORK listed in response to Interrogatory No. 26, state all reasons why you had each item of WORK performed.

Defendant’s October 18, 2022, Original Response to Special Interrogatory No. 28
Responding Party hereby incorporates the General Objections as if fully stated herein. Responding Party further objects to this interrogatory on the ground that the term “WORK” is vague and ambiguous, overbroad, unduly burdensome and harassing and assumes facts not in evidence, thus rendering this entire interrogatory overbroad, unduly burdensome and harassing and irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. Responding Party further objects to this interrogatory on the ground that it is overbroad, unduly burdensome and harassing to the extent it calls for a narrative description and relates to areas and slopes that belong to the Nicolas property that are not even adjacent to or touching the Spignolio property. Subject to, and without waiving the foregoing objections, Responding Party responds to this request as follows: Without being an exhaustive list of every single task related to the upkeep and maintainance (sic) of the slopes adjoining the Spignolio (sic) and Nicolas properties, Responding Party undertook the following projects on the slopes for the following reasons: 1. Responding Party’s gardener comes on a weekly basis to clean grounds and maintain a well-groomed property. 2. In early 2021, privacy shrubs were planted on Responding Party’s property to provide privacy, protection and a visual/sound barrier between the two properties. In addition, the privacy shrubs were partly intended to add more security against potential erosion of the slope. 3. In 2021, a cedar fence was installed on Responding Party’s property for privacy, security and the protection of Responding Party’s family and property. 4. In 2020, 2021 and 2022, usually in early Spring, Responding Party will plant some seasonal vegetable plants for aesthetical reasons, to enjoy their property and to eat home grown produce. 5. Responding Party and their children sweep, broom and pick up pine needles and pinecones that fall from the slope and adjoining Spignolio (sic) property on a weekly basis to maintain their property and keep it clean.

Defendant’s Nov. 9, 2022, Supplemental Response to Special Interrogatory No. 28

Defendant failed to provide a supplemental response to this interrogatory.

TENTATIVE RULING SROG 29
Responding party’s objections are overruled.

Motion to compel further response to SROG 29 is DENIED as responding party did respond properly.

TENTATIVE RULING
All further responses are to be under oath, and without objection, within 20 days.

Motion to compel further responses to special interrogatories 24, 25, 29, 30, 31, 32, and 33 are DENIED because they were not in the separate statement.

Sanctions Ruling
“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 a further response to interrogatories, 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 §2030.300(d).)

Both parties want sanctions imposed on the other party. Since the motion was granted in part and denied in part, sanctions are DENIED for both parties as unjust.