Judge Eddie C. Sturgeon, Case 37-2022-00034539-CU-BC-CTL 2023-08-04 Tentative Ruling

Judge: Eddie C. Sturgeon, Case: 37-2022-00034539-CU-BC-CTL, Date: 2023-08-04 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - August 03, 2023

08/04/2023 09:00:00 AM C-67 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Eddie C Sturgeon

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Civil - Unlimited Breach of Contract/Warranty Discovery Hearing 37-2022-00034539-CU-BC-CTL LEE VS EASTLAKE II COMMUNITY ASSOCIATION [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Compel Discovery, 02/16/2023

Plaintiff Francisca Lee's Motion to Compel Further Responses to Requests for Admission (ROA 30), Motion to Compel Further Responses to Form Interrogatories (ROA 35), Motion to Compel Further Responses to Special Interrogatories (ROA 40), and Motion to Compel Further Responses to Requests for Production (ROA 45) are GRANTED as explained below. Sanctions are granted in the reduced amount of $2,000.

Plaintiff propounded written discovery on November 7, 2022. The deadline to respond was December 12, 2022. Plaintiff's counsel states that on December 7, 2022, he came to an agreement with a senior associate at Defense counsel's firm to provide an initial time extension to December 27, 2022 if Defendant would provide objection-free responses, with a privilege log for any privileged documents.

This initial agreement was done over the phone and the only email record of the conversation does not reflect that objection-free responses were promised.

But on December 22, 2022, Plaintiff's counsel received a voice mail and email from the same senior associate at Defense counsel's firm requesting another extension to respond to discovery. Plaintiff again stated that he would agree to another extension contingent upon Defendant's continuing agreement provide responses without objections and this time, the condition was reduced to writing. In a December 23, 2022 email, Plaintiff's counsel stated: 'As a professional courtesy, we will grant the request contingent upon your continuing agreement to provide code-compliant, substantive responses, without objections, as agreed to with the first extension.

Any privilege or work product claims must be referenced in the appropriate log, submitted along with the substantive responses.

If your client agrees to our stated conditions, your request for an extension will be granted, as the final discovery response extension request. Please confirm your client will comply with these assurances, by email response, and thereafter your code-compliant written responses and document production due-date will be extended to Friday, January 6th, 2023, as you requested in your voicemail.' (ROA 31, Dillingham Decl., Ex. 2.) Defense counsel Andrew Diaz apparently did not respond, but a partner at Defense counsel's firm was forwarded the complete email. That partner, Attorney Peter J.

Burfening Jr., responded: 'I am not sure if [senior associate] responded to your email from the 23rd. I hadn't seen it Friday. Thank you for your courtesy in extending the time to serve responses. We will provide code compliant Calendar No.: Event ID: TENTATIVE RULINGS

2938652 12 CASE NUMBER: CASE TITLE: LEE VS EASTLAKE II COMMUNITY ASSOCIATION [IMAGED] 37-2022-00034539-CU-BC-CTL responses and documents on the 6th.' (Ibid.) Defendant then served responses on the January 6, 2023 with various objections. The parties then met and conferred through letters and Defendants have claimed that they never agreed to supply objection-free responses. Defendant also variously argues that the holidays complicated its efforts to respond to discovery, the senior associate was non-responsive on the matter, and shortly thereafter the senior associate left the firm. Even so, Defendant sought an extension and was provided an extension with specific conditions that were expressly stated in Plaintiff's counsel's email. By obtaining the extension, Defendant agreed to those terms and cannot now go back on the agreement. If the agreement was, as Defendant argues, entered due to 'inadvertent mistake' (ROA 75, Oppo. at 1:15), Plaintiff should be entitled to go back on his agreement to provide extensions at all, in which case the responses are untimely and objections waived. As a result, all objections are stricken except those based on attorney client privilege, the work product doctrine, or executive session privilege. To the extent Defendant intends to stand on any privilege or work product protections, it must provide a privilege log as was agreed.

Defendant is ordered to provide a further response to RFA Nos. 6, 19, 20-21, 24-29, 35, 37-39, 42- 44, 46, 48-51, and 53-54. No further response is required as to any other RFA.

As for the Form Interrogatories, Defendant is not required to have Ms. Nancy Layman to respond to the 2.0 Form Interrogatory series as if she were a party to the case. The parties are ordered to meet and confer regarding the meaning of 'INCIDENT' with respect to the Series 12.0 Form Interrogatories and provide further responses in good faith. Form Interrogatory 15.1 requires a response. The Series 17.0 Form Interrogatory responses must also be supplemented to the extent necessary based on the court's order with respect to the RFAs. Finally, further responses are required to Series 50.0 Form Interrogatories with reference to the governing documents. No further responses are required to the Series 13.0 Form Interrogatories.

Defendant is ordered to provide further responses to Special Interrogatory Nos. 16-18, and 33-35. For the purposes of the Special Interrogatories, 'involved with' is to mean 'participated in.' Defendant may continue to assert the executive session privilege to the degree applicable, even if other objections are stricken.

As for the RFPs, the parties are ordered to meet and confer as to whether Defendant has provided all responsive documents not covered by a privilege or work product doctrine in light of all other objections being stricken. Additionally, although Defendant has provided only approximately 100 documents, it still must identify which documents respond to which requests.

Sanctions are granted in the reduced amount of $2,000. Should the parties be unable to agree on discovery following this court's order, the parties will be ordered to a discovery referee with the court to retain discretion over the allocation of the referee's fees.

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