Judge Douglas W. Stern, Case BC682157 2022-09-08 Tentative Ruling

Defendant Starr Indemnity and Liability Company’s Motions to Compel Further Responses to: (1) Requests for Admission, Set Four; (2) Form Interrogatories, Set Four; (3) Supplemental Interrogatories, Set One; (4) Special Interrogatories, Set Two

In their oppositions to each motion, plaintiffs Zoriall LLC, Anne Kihagi, and Christina Mwangi argue defendant Starr Indemnity and Liability Company failed to adequately meet and confer to informally resolve these motions.

The court finds defendant made a sufficient effort to meet and confer. Plaintiffs’ counsel states, “At no time after May 9, 2022, did Starr ever attempt to meet and confer regarding Plaintiffs’ objections.” (McClain Decl., ¶ 15.) Starr’s counsel, however, sent emails on May 19 and June 7 to meet and confer about these discovery requests. (McClain Decl., Ex. 9.) The attorneys also discussed the disputed responses by phone on June 29, as confirmed by emails sent June 30 and July 1. (McClain Decl., Ex. 11.)

Plaintiffs’ argument focuses on defense counsel’s failure to discuss the substance of plaintiffs’ objections. Not doing so was reasonable because plaintiffs had agreed to provide verified substantive responses. (McClain Decl., Exs. 9, 11.) Defense counsel reasonably chose to wait for the promised substantive responses before meeting and conferring in depth. Defense counsel was not required to wait indefinitely for the substantive responses.

Moreover, as discussed below, plaintiffs responded with nearly identical boilerplate objections to every request at issue in these motions. Discussing the objections in depth would likely not be useful because they had little depth to discuss. In their oppositions to the motions, plaintiffs make numerous arguments that are not based on their responses or that were not foreseeable without plaintiffs providing much more thorough explanations of their objections.

Defendant Starr Indemnity and Liability Company moves to compel further responses to requests for admission, set four, Nos. 9 and 11-28. (In its reply, Starr withdrew the motion as to No. 10.) A party requesting admissions may move to compel further responses if: “(1) An answer to a particular request is evasive or incomplete. [or] (2) An objection to a particular request is without merit or too general.” (CCP § 2033.290(a).) On a motion to compel further responses, the responding party bears the burden of justifying its objections. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.)

To each request for admission, plaintiffs Zoriall LLC, Anne Kihagi, and Christina Mwangi responded only with the following objections:

Objection. This request is vague and ambiguous, overbroad, compound, unduly burdensome and oppressive, prematurely seeking expert discovery, calling for a legal conclusion and/or expert opinion, seeking information and documents protected by the attorney-client privilege and attorney work product doctrine, and seeking information and documents which are confidential and private, and which are irrelevant and not reasonably calculated to lead to the discovery of admissible evidence.

In their opposition, plaintiffs make no arguments in support of these objections.

Instead, for No. 9, plaintiffs argue they already responded to an identical request asking them to admit the genuineness of the same document. Though set four, No. 9 is worded the same as set two, No. 1, the attached documents are different.

In set two, the attached letter was dated “July , 2015,” with the day missing. (Supp. Mandegary Decl., ¶ 26, Ex. T.) Plaintiffs responded that they lacked sufficient information to admit or deny it. (McClain Decl., Ex. 14, p. 3.) In response to form interrogatory set two, No. 17.1(b), plaintiffs explained that answer by stating, “Exhibit ‘A’ does not appear to be a ‘a true, correct and complete genuine copy’ of a letter, actually sent from Jim Bassett to attorney Julie N. Nong. There is no letterhead, it is undated, as there is a blank for the day of the month, and it is unsigned.”

In set four, the attached letter has the full date, “July 13, 2015.” (Mandegary Decl., Ex. D, Sub-Ex. A.) The documents are different, therefore the requests for admission are also different.

For Nos. 11-14 and 16-28, plaintiffs argue the matters are undisputed and already established. That is not a valid objection. The point of requests for admission is to determine which matters are disputed. (See Bank of America Nat. Trust & Sav. Ass'n v. Baker (1965) 238 Cal.App.2d 778, 779 [they are “an efficient and enforceable method of limiting the issues to be tried; the parties are thus relieved of the burden and expense of producing evidence on matters which should not be dispute”].) If the matters are not disputed, the answer is “Admit.”

Finally, plaintiffs argue they cannot answer No. 15 because it depends on future events. The request asks plaintiffs to admit that AmGuard Insurance Company issued an insurance policy to Zoriall, LLC which was in effect from July 20, 2015 to July 20, 2016. Plaintiffs contend that AmGuard is seeking to rescind the policy in a federal action, and if AmGuard wins, the policy would be void ab initio and therefore not in effect.

Assuming plaintiffs are correct, the Discovery Act provides for how to respond in such circumstances. The responding party may “[s]pecify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge” (CCP § 2033.230(b)) and must “state in the answer that a reasonable inquiry concerning the matter… has been made, and that the information known or readily obtainable is insufficient to enable that party to admit the matter” (CCP § 2033.220(c)).

Defendant moves for $2,965 in sanctions against plaintiffs and their counsel. Making meritless objections (CCP § 2023.010(e)) and unsuccessfully opposing a motion to compel further responses (CCP § 2033.290(d)) are misuses of the discovery process subject to monetary sanctions. The court finds plaintiffs did not act with substantial justification and sanctions are just under the circumstances.

The court finds defendant did not reasonably incur $2,965 in expenses. Defendant seeks 9 hours of attorney fees at $205 hourly and 4 hours at $270 hourly. (Mandegary Decl., ¶ 21, p. 6.) Defendant filed several motions that include overlapping issues. The lengthy separate statement contains the same three-page argument copied repeatedly. Spending 13 hours on this motion was not reasonable. The court finds defendant reasonably incurred $2,182.50 in expenses: 6.5 hours at $205 hourly, 3 hours at $270 hourly, plus a $40 filing fee.

Defendant Starr Indemnity & Liability Company’s motion to compel further responses to requests for admission, set four is granted.

Plaintiffs Zoriall LLC, Anne Kihagi, and Christina Mwangi are ordered to serve verified responses without objections to requests for admission, set four, Nos. 9 and 11-28 within 30 days.

Plaintiffs Zoriall LLC, Anne Kihagi, and Christina Mwangi are ordered to pay defendant Starr Indemnity & Liability Company $2,182.50 in sanctions within 30 days. Plaintiffs Zoriall LLC, Anne Kihagi, and Christina Mwangi shall be jointly and severally liable for the sanctions.

Defendant moves to compel plaintiffs to serve further responses to form interrogatories, set four, No. 17.1. A party may move to compel further responses to interrogatories when an answer “is evasive or incomplete” (CCP § 2030.300(a)(1) or an objection “is without merit or too general” (CCP § 2030.300(a)(3)).

Form interrogatory No. 17.1 asks the responding party to provide information about its basis for not admitting requests for admission. Plaintiffs responded only with the following objection: “Plaintiff objects to this interrogatory as vague and ambiguous, overbroad, compound, unduly burdensome and oppressive, prematurely seeking expert discovery, calling for a legal conclusion and/or expert opinion, seeking information and documents protected by the attorney-client privilege and attorney work product, and seeking information and documents which are confidential and private, and which are irrelevant and not reasonably calculated to lead to the discovery of admissible evidence.”

These objections are without merit or too general. Form interrogatory No. 17.1, however, is designed to discover facts, witnesses, and documents supporting substantive denials—not objections—to requests for admissions. Plaintiffs’ opposition argues only that the objections appropriate because they properly objected to each request for admission. Though the court now overrules plaintiffs’ objections to the requests for admission, when plaintiffs made these responses, those objections were the only responses. They therefore could not provide a substantive response to form interrogatory No. 17.1.

Now that the court orders plaintiffs to provide substantive responses to the requests for admission, defendant is entitled to a substantive response to form interrogatory No. 17.1,

Defendant moves for $2,965 in sanctions against plaintiffs. The court finds plaintiffs acted with substantial justification and sanctions are not warranted under the circumstances. With no substantive denial in response to a request for admission, plaintiffs had no way to substantively answer form interrogatory No. 17.1 at the time.

Defendant Starr Indemnity & Liability Company’s motion to compel further responses to form interrogatories, set four is granted as to further responses. The motion is denied as to sanctions.

Plaintiffs Zoriall LLC, Anne Kihagi, and Christina Mwangi are ordered to serve verified responses without objections to form interrogatories, set four, No. 17.1 within 30 days.

Defendant moves to compel plaintiffs to serve further responses to supplemental form interrogatories, set one, No. 1, and supplemental special interrogatories, set one, No. 1. Each interrogatory asks:

[Each plaintiff/cross-defendant] is asked to review all [Form/Special] interrogatories previously served on Responding Party by Starr, as well as all responses that were made to those interrogatories, and to amend said responses based upon any and all later acquired information. If any answer is no longer correct and/or complete, regardless of the reason, please identify the answer and provide in a verified response whatever information is necessary to make the answer correct and complete as of the date of the verification. If there are no changes, please provide a verified response to that effect.

Objection. This interrogatory is vague and ambiguous, overbroad, compound, unduly burdensome and oppressive, prematurely seeking expert discovery, calling for a legal conclusion and/or expert opinion, seeking information and documents protected by the attorney-client privilege and attorney work product doctrine, and seeking information and documents which are confidential and private, and which are irrelevant and not reasonably calculated to lead to the discovery of admissible evidence.

In their opposition, plaintiffs contend they properly objected because defendant failed to identify any interrogatories that require a supplemental response. The Discovery Act expressly provides for “a supplemental interrogatory to elicit any later acquired information bearing on all answers previously made by any party in response to interrogatories.” (CCP § 2030.070(a).) Defendant properly asked plaintiffs to review their responses and answer as to “all Form interrogatories previously served” and “all Special interrogatories previously served.” And only the responding parties know what information they have acquired since their prior responses. Only the responding parties can determine which answers to amend based on later acquired information.

Again, defendant moves for $2,965 in sanctions against plaintiffs and their counsel. Making meritless objections (CCP § 2023.010(e)) and unsuccessfully opposing a motion to compel further responses (CCP § 2030.300(d)) are misuses of the discovery process subject to monetary sanctions. The court finds plaintiffs did not act with substantial justification and sanctions are just under the circumstances.

The court finds defendant did not reasonably incur $2,965 in expenses. Defendant seeks 9 hours of attorney fees at $205 hourly and 4 hours at $270 hourly. (Mandegary Decl., ¶ 21, pp. 6-7.) This motion concerns only two duplicative, simple interrogatories. Significant portions of the moving papers are also similar or identical to those in the other motions. The court finds defendant reasonably incurred $925 in expenses: 3 hours at $205 hourly, 1 hour at $270 hourly, plus a $40 filing fee.

Defendant Starr Indemnity & Liability Company’s motion to compel further responses to supplemental interrogatories, set one is granted.

Plaintiffs Zoriall LLC, Anne Kihagi, and Christina Mwangi are ordered to serve verified responses without objections to supplemental form interrogatories, set one, No. 1 and supplemental special interrogatories, set one, No. 1 within 30 days.

Plaintiffs Zoriall LLC, Anne Kihagi, and Christina Mwangi are ordered to pay defendant Starr Indemnity & Liability Company $925 in sanctions within 30 days. Plaintiffs Zoriall LLC, Anne Kihagi, and Christina Mwangi shall be jointly and severally liable for the sanctions.

Defendant Starr Indemnity & Liability Company moves to compel further responses to special interrogatories, set two, Nos. 35-65. To each interrogatory, plaintiffs responded:

This interrogatory is unintelligible, confusing, vague and ambiguous, overbroad, compound, unduly burdensome and oppressive, prematurely seeking expert discovery, calling for a legal conclusion and/or expert opinion, seeking information and documents protected by the attorney-client privilege and attorney work product doctrine, and seeking information and documents which are confidential and private, and which are irrelevant and not reasonably calculated to lead to the discovery of admissible evidence.

Nos. 35-46 ask plaintiffs about their knowledge of various San Francisco ordinances and other laws regarding tenants’ rights. These interrogatories seek discoverable information. This case is an insurance coverage dispute regarding a judgment against plaintiffs for wrongful eviction. That judgment may have resulted from a “willful act of the insured” for which defendant cannot be liable under Insurance Code § 533. Responses to these questions could lead to discovery of admissible evidence. If plaintiffs knew their conduct was illegal when they did it, that would support defendant’s contention that the loss resulted from a willful act.

Plaintiffs also argue the interrogatories improperly ask them to interpret the law. These questions are appropriate under CCP § 2030.010(b), which provides, “An interrogatory may relate to whether another party is making a certain contention… . An interrogatory is not objectionable because an answer to it involves an opinion or contention that relates to fact or the application of law to fact, or would be based on information obtained or legal theories developed in anticipation of litigation or in preparation for trial.”

In addition, in this case even plaintiffs’ interpretations of the law may be admissible evidence. As discussed above, if they interpreted the San Francisco Rent Ordinance to prohibit their conduct—but did it anyways—that would support Starr’s willful act defense under Insurance Code § 533.

Plaintiffs also object on the grounds that the interrogatories ask about “YOUR” knowledge, and “YOUR” was defined to include their attorneys. But the definition is limited to attorneys and other agents with “respect to any ownership, maintenance or use of the PREMISES and operations necessary or incidental to the PREMISES.” That definition excludes plaintiffs’ current counsel. Furthermore, plaintiffs must answer interrogatories “to the extent possible.” (CCP § 2030.220(b).) Though parts of the answers may have been privileged, plaintiffs were still required to provide at least partial answers.

Nos. 47-57 ask about: whether plaintiffs tendered the wrongful eviction lawsuits against them or demanded coverage from AmGuard Insurance Company; if not, why they did not tender the suits or make demands; and when they disclosed the AmGuard policy to Starr. The interrogatories also ask plaintiffs to identify potential witnesses and supporting documents.

These interrogatories seek discoverable information. As the court has previously ruled in other motions, information about other insurers is discoverable because it could impact Starr’s duty to defend and indemnify plaintiffs. Furthermore, defendant’s first amended cross-complaint alleges plaintiffs breached the Starr insurance policy. The policy includes the insured’s duty to “[a]ssist us, upon our request, in the enforcement of any right against any person or organization which may be liable to the insured because of injury or damage to which this insurance may also apply.” (Supp. Mandegary Decl., ¶ 24.) Failing to disclose the AmGuard insurance policy could constitute a breach of that provision.

Nos. 58-61 ask plaintiffs to identify all compensatory damages they seek from Starr and to provide supporting facts, witnesses, and documents. Plaintiffs did not oppose the motion as to Nos. 58-61. They do not address these interrogatories in their memorandum in opposition to the motion. Their opposition’s separate statement includes these questions and responses themselves but omits defendant’s “factual and legal reasons for compelling further response” and has no section on “plaintiffs’ reasoning for objections” as all the other special interrogatories do. Plaintiffs therefore fail to justify their objections.

Nos. 62-65 ask plaintiffs to identify all punitive damages, state all supporting facts, and identify potential witnesses and supporting documents. Plaintiffs argue they cannot answer these questions because they have not been permitted to discover evidence of defendant’s profits or financial condition. (Civ. Code, § 3295.) Plaintiffs can still answer the question “to the extent possible.” (CCP § 2030.220(b).) Juries determining the amount of punitive damages must consider the reprehensibility of defendant’s conduct (CACI No. 3949(a)) and the relationship between the amount of punitive damages and plaintiff’s harm (CACI No.3949(b)) as well as defendant’s financial conduct. As the Supreme Court of the United States has stated, “ ‘[T]he most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant's conduct.’ ” (State Farm Mut. Auto. Ins. Co. v. Campbell (2003) 538 U.S. 408, 419.)

Plaintiffs also argue the questions are unintelligible because they use the capitalized word “IDENTIFY” without defining it. The Discovery Act’s provision on specially defined terms only goes in the opposite direction: “Any term specially defined in a set of interrogatories shall be typed with all letters capitalized wherever that term appears.” (CCP § 2030.060(e).) The reverse is not required. Just because a term is capitalized does not mean the propounding party must specially define it. That the interrogatories capitalized the word “identify” does not make them unintelligible. Interpreting “identify” in the context of these interrogatories is not difficult or impossible.

Defendant again moves for $2,965 in sanctions against plaintiffs and their counsel. Making meritless objections (CCP § 2023.010(e)) and unsuccessfully opposing a motion to compel further responses (CCP § 2030.300(d)) are misuses of the discovery process subject to monetary sanctions. The court finds plaintiffs did not act with substantial justification and sanctions are just under the circumstances.

The court finds defendant did not reasonably incur $2,965 in expenses. Defendant seeks 9 hours of attorney fees at $205 hourly and 4 hours at $270 hourly. (Mandegary Decl., ¶ 21, p. 6.) As discussed above, defendant filed several motions with overlapping issues. Spending 13 hours on this motion was also not reasonable. The court finds defendant reasonably incurred $2,557.50 in expenses: 8 hours at $205 hourly, 3.25 hours at $270 hourly, plus a $40 filing fee.

Defendant Starr Indemnity & Liability Company’s motion to compel further responses to special interrogatories, set two is granted.

Plaintiffs Zoriall LLC, Anne Kihagi, and Christina Mwangi are ordered to serve verified responses without objections to special interrogatories, set one, Nos. 35-65 within 30 days.

Plaintiffs Zoriall LLC, Anne Kihagi, and Christina Mwangi are ordered to pay defendant Starr Indemnity & Liability Company $2,557.50 in sanctions within 30 days. Plaintiffs Zoriall LLC, Anne Kihagi, and Christina Mwangi shall be jointly and severally liable for the sanctions.