Judge: Elaine Lu, Case: 19STCV26182, Date: 2023-11-17 Tentative Ruling

Case Number: 19STCV26182    Hearing Date: January 30, 2024    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Procedural Background

On July 26, 2019, Plaintiff Bianca Fairchild (“Plaintiff”) filed the action Bianca Alexis Fairchild v. Jennifer Lechter, individually and as Successor Trustee of the Gerald M. Friedman Trust; Gerald M. Friedman, also known as Jerry Friedman, 19STCV26182 (“Lead Action”).  On September 27, 2019, Plaintiff filed the operative first amended complaint (“Lead FAC”) in the Lead Action against Jennifer Lechter individually, Jennifer Lechter as Successor Trustee of the Gerald M Friedman Trust, and Gerald M. Friedman.  The FAC asserted six causes of action for (1) Breach of Express Contract, (2) Breach of Implied Contract, (3) Trespass, (4) Conversion, (5) Declaratory Relief, and (6) Tortious Interference with Contract.  As a result of Plaintiff’s willful refusal to comply with discovery orders, the Court imposed terminating sanctions on April 13, 2021 and dismissed Jennifer Lechter in her individual and representative capacities from the complaint.  (Lead Action Order 4/13/21; see also Lead Action Order 5/31/22.)  On May 31, 2022, the Court entered Judgment in favor of Jennifer Lechter in her individual and representative capacity (as Successor Trustee of the Trust) in the Lead Action.

On September 27, 2021, Plaintiff filed the related action, 21STCV35382 (“the Related Action”) against Defendants Jennifer Lechter, individually and as Trustee of the Gerald M. Friedman Trust, Marvin Engineering, Co., Inc. (“Marvin Engineering”), and Does 1-5 as the Personal Representative(s) of the Estate of Gerald Friedman. 

On January 27, 2022, the Court deemed the Related Action related to the Lead Action.  (Minute Order 1/27/22.)  On January 3, 2023, the Court entered judgment in favor of Jennifer Lechter, individually and as Successor Trustee of the Gerald M. Friedman Trust in the related action. 

On March 27, 2023, Plaintiff filed the operative First Amended Complaint in the Related Action (“Related FAC”) against Defendant Marvin Engineering.  The Related FAC asserts three causes of action for (1) Sexual Battery, (2) Negligence Breach of Duty, and (3) Negligent Training Retention, Supervision, and Control of Employees. 

On June 16, 2023, the Court entered judgment in the Related Action in favor of Defendant Jennifer Lechter as the Personal Representative of the Estate of Gerald M. Friedman and against Plaintiff.

            On November 30, 2023, Defendant Marvin Engineering filed the instant motion to compel Plaintiff’s further response to form interrogatories (“FROGs”).  No opposition or reply has been filed.

Allegations of the Operative Complaints

            The Lead Action alleges in relevant part that:

            In June 1995, when Plaintiff was approximately 14 years old, Plaintiff met Gerald M. Friedman (“Decedent”) who was then approximately 60 years old.  (Lead FAC ¶ 10.)  At the time, Plaintiff did not have a permanent home.  (FAC ¶ 10.)  Decedent offered Plaintiff a place to live at his condominium, and she moved in with Decedent in 1997.  (Lead FAC ¶ 11.)  Plaintiff “began having a sexual relationship with [Decedent] shortly thereafter.”  (Lead FAC ¶ 11.) 

During this period of cohabitation, Decedent promised to “provide for [Plaintiff’s] financial stability after his passing, through his will and otherwise, and that she would always be taken care of” throughout her life.  (Lead FAC ¶ 15.)  Decedent also informed Plaintiff that the Gerald M. Friedman Trust was “established for the benefit of [his] children and Plaintiff.”  (Lead FAC ¶ 12.)

Between 1997 and 2018, Decedent used his own assets and assets from the Gerald M. Friedman Trust to support Plaintiff, including by buying her real property, cars, and jewelry, providing Plaintiff a “salaried position at Marvin Engineering Corporation, Inc.,” and “provid[ing] for Plaintiff's education.” (Lead FAC ¶ 13.)  “Plaintiff and [Decedent] at times held themselves out to third parties as husband and wife.”  (Lead FAC ¶ 14.)  Plaintiff is informed and believes that on June 3, 2018, Decedent suffered an accident rendering him partially incapacitated.  (Lead FAC ¶ 18.)

Beginning in or about July 2018, [Decedent] materially breached the agreement between he and Plaintiff. Plaintiff is informed and believes, and thereon alleges, that such breach was in fact occasioned by Defendant Lechter, who had taken over [Decedents]’s affairs, and DOES 1 through 5, inclusive. At or about that time: (a) Plaintiff was refused any access to [Decedent]; (b) Plaintiffs salaried position at Marvin Engineering was terminated and her salary ceased; ( c) on or about July 13, 2018, Plaintiff’s Special Powers of Attorney dated July 29, 2015 and April 3, 2018 over [Decedent]’s rental properties at 7100 Alvern Street, Los Angeles, California were revoked and on or about July 24, 2018 a demand was made to pay $12,000 in rental income and security deposits which Plaintiff had collected and [Decedent] had previously allowed Plaintiff to keep; (d) at a time from on or about July 15, 2018 through August 8, 2018 the locks were changed at Plaintiffs residence at the Malibu Condo, the Malibu Condo was broken into and essentially all of Plaintiffs personal property was removed including, without limitation, artwork, clothing, jewelry, computers, printer, surveillance system, safe containing cash, documents and photographs; (e) on or about August 8, 2018 $94,000 was removed from a joint account in the name of Plaintiff and [Decedent] at Comerica Bank; (f) at a time from in or about July through August 2018, Plaintiff’s personal property kept at Defendant Friedman’s townhouse at 3610 Vintage on the Strand, #15, Park City, Utah (‘Park City Townhouse’) was removed including, without limitation, clothes, jewelry, furniture, gym equipment and computers; (g) at a time from or about July through August 2018, Plaintiff was deprived of her personal property including, without limitation, clothing and jewelry that were at [Decedent]’s primary residence at 1806 N. Beverly Glen Boulevard, Los Angeles, California (‘Bel Air Residence’); (h) on or about February 22, 2019, the Malibu Condo was again broken into, locks were changed and items of Plaintiffs jewelry as well as cash were taken; ( I ) on or about August 31, 2018 Plaintiff was provided with a Notice of Termination of Tenancy with respect to the Malibu Condo giving her 60 days to vacate the premises. On or about January 15, 2019 an Unlawful Detainer Complaint was filed against Plaintiff to evict her from the Malibu Condo. Service of process was purportedly obtained by posting and mailing pursuant to C.C.P. § 415.45, a default was entered against Plaintiff on or about February 28, 2019, a judgment and writ of possession obtained on or about March 1, 2019 and Plaintiff was evicted from the Malibu Condo. Plaintiff is informed and believes, and thereon alleges, that on or about May 30, 2019, Defendant Lechter sold the Malibu Condo for approximately $3,960,000.

(Lead FAC ¶ 28.)

            The Related FAC alleges in relevant part:

            In June 1995, when Plaintiff was approximately 14 years old, Plaintiff met Gerald M. Friedman (“Decedent”) who was then approximately 60 years old.  (Related FAC ¶ 6.)  Decedent “promised and agreed to provide Plaintiff with emotional and financial support throughout her life, and to provide for her financial stability even after his passing, such that Plaintiff would always be financially taken care of.”  (Id. ¶ 8.)  Plaintiff then moved into Decedent’s condominium in 1997, and Decedent soon “began having a coercive sexual relationship with Plaintiff.”  (Id. ¶ 9.)

            In 1999, Plaintiff married Decedent in Las Vegas, but Decedent failed to properly obtain and file the proper marriage paperwork.  (Id. ¶ 10.) 

Decedent supported Plaintiff as agreed “up until around July 3, 2018” when Decedent suffered an accident that left him partially incapacitated.  (Id. ¶ 14.)  On May 13, 2020, Decedent passed away.  (Id. ¶ 12.) 

Legal Standard

Code of Civil Procedure section 2030.300 provides that “[o]n 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; [or] (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate; [or] (3) An objection to an interrogatory is without merit or too general.”  (CCP § 2030.300(a).)

Notice of the motion must be given within 45 days of service of the verified response, or upon a later date agreed to in writing.  Otherwise, the propounding party waives any right to compel a further response.  (CCP § 2031.310(c).)  The motion must also be accompanied by a meet and confer declaration.  (CCP § 2031.310(b)(2).)

The burden is on the responding part to justify any objection or failure fully to answer the interrogatories.  (Fairmont Ins. Co. v. Superior Court (Stendell) (2000) 22 Cal. 4th 245, 255.)

Discussion

            Defendant Marvin Engineering seeks to compel Plaintiff’s further responses to FROGs Nos. 2.6, 6.1, 6.2, 6.4, 6.6, 6.7, 12.1, 12.3, and 12.4.

Meet and Confer

Pursuant to Code of Civil Procedure section 2030.300(b)(1) a motion to compel further responses to an interrogatory “shall be accompanied by a meet and confer declaration under Section 2016.040.”  (CCP § 2030.300(b)(1).)  “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.”  (CCP § 2016.040.)  “The level of effort at informal resolution which satisfies the ‘reasonable and good faith attempt’ standard depends upon the circumstances. In a larger, more complex discovery context, a greater effort at informal resolution may be warranted. In a simpler, or more narrowly focused case, a more modest effort may suffice. The history of the litigation, the nature of the interaction between counsel, the nature of the issues, the type and scope of discovery requested, the prospects for success and other similar factors can be relevant.”  (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431.)

Here, on November 13, 2023, Defense Counsel served Plaintiff’s counsel with a “meet and confer letter outlining all of the deficiencies in the responses which Defendant now seeks to have cured through its Motions to Compel Further Responses. [Defense Counsel] requested amended responses by November 18, 2023. No response to that letter was received by [Defense Counsel].”  (Silver Decl. ¶ 11.)  In light of the lack of a response to the meet and confer letter, the meet and confer efforts do appear sufficient for purposes of the instant motion.

FROG No. 2.6

            “State: (a) the name, ADDRESS, and telephone number of your present employer or place of self-employment; and (b) the name, ADDRESS, dates of employment, job title, and nature of work for each employer or self-employment you have had from five years before the INCIDENT until today.”  (FROG No. 2.6.)

            “(a) Self Employed.”  (Response to FROG No. 2.6.)

            Plaintiff’s Response is Incomplete

            A motion to compel further responses lies where an answer is evasive or incomplete, the exercise to produce documents is unwarranted or without sufficient specification, or an objection is without merit or too general.  (CCP § 2030.300(a)(1)-(3).)  As the Court of Appeal explained in Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, “[a]nswers must be complete and responsive. Thus, it is not proper to answer by stating, ‘See my deposition,’ ‘See my pleading,’ or ‘See the financial statement.’ Indeed, if a question does require the responding party to make reference to a pleading or document, the pleading or document should be identified and summarized so the answer is fully responsive to the question.”  (Id. at pp.783–784, [italics added].)  Moreover, “[p]arties, like witnesses, are required to state the truth, the whole truth, and nothing but the truth in answering written interrogatories.”  (Id. at p.783.)

            Here, subsection (a) requests the name, address, and telephone number of “[Plaintiff’s] present employer or place of self-employment”.  Plaintiff merely stating that she is self-employed does not identify where Plaintiff is self-employed as requested.  Further, Plaintiff failed to respond to subsection (b) as to Plaintiff’s employment for the last five years.  Accordingly, a further response is required.

FROG No. 6.1

            “Do you attribute any physical, mental, or emotional injuries to the INCIDENT? (If your answer is ‘no,’ do not answer interrogatories 6.2 through 6.7).”  (FROG No. 6.1.)

            “Yes. Responding Party reserves the right to supplement this response once discovery, independent investigations, and legal research and analyses have been completed.”  (Response to FROG No. 6.1.)

            Fully Responsive

            Here the response “yes” is fully responsive to FROG 6.1 as Plaintiff clearly states that she does attribute physical, mental, or emotional injuries to the underlying allegations in the complaint.  Accordingly, no further response is required.

FROG No. 6.2

            “Identify each injury you attribute to the INCIDENT and the area of your body affected.”  (FROG No. 6.2.)

            “Responding Party has experienced deep depression, unworthiness, guilt, feeling deceived, feeling hollow, feeling used, tricked and loss of my life and my youth, and feeling lost within myself. Responding Party reserves the right to supplement this response once discovery, independent investigations, and legal research and analyses have been completed.”  (Response to FROG No. 6.2)

            Response is Incomplete

            Here, Plaintiff does not identify any specific areas of the body affected or clearly denote that injuries do not have any physical aspect and are confined to mental and/or emotional injuries.  Accordingly, a further, clarifying the response is required.

FROG No. 6.4

            “Did you receive any consultation or examination (except from expert witnesses covered by Code of Civil Procedure section 2034.210-2034.310) or treatment from a HEALTH CARE PROVIDER for any injury you attribute to the INCIDENT? If so, for each HEALTH CARE PROVIDER state: (a) the name, ADDRESS, and telephone number; (b) the type of consultation, examination, or treatment provided; (c) the dates you received consultation, examination, or treatment; and (d) the charges to date.”  (FROG No. 6.4.)

            “As Propounding Party is already aware Responding Party had received treatment with Dr. Alex Lazar. Responding Party reserves the right to supplement this response once discovery, independent investigations, and legal research and analyses have been completed.”  (Response to FROG No. 6.4.)

            Response is Incomplete

            Here, Plaintiff has not fully responded to the FROG.  Plaintiff has merely identified the name of a treating doctor.  However, Plaintiff has failed to provide the address and telephone number, the type of consultation, examination, or treatment received, the date of the treatment, and charges for the treatment.  As Plaintiff has not fully responded, it is unclear whether the subsequent responses are proper.  Accordingly, a further response is required.

FROGs No. 6.6 and 6.7

            “Are there any other medical services necessitated by the injuries that you attribute to the INCIDENT that were not previously listed (for example, ambulance, nursing, prosthetics)? If so, for each service state: (a) the nature; (b) the date; (c) the cost; and (d) the name, ADDRESS, and telephone number of each provider.”  (FROG No. 6.6.)

            “Has any HEALTH CARE PROVIDER advised that you may require future or additional

treatment for any injuries that you attribute to the INCIDENT? If so, for each injury state: (a) the name and ADDRESS of each HEALTH CARE PROVIDER; (b) the complaints for which the treatment was advised; and (c) the nature, duration, and estimated cost of the treatment.”  (FROG No. 6.7.)

            Identically in response to each of these requests, Plaintiff states that:

            “Responding Party has not yet received treatment for her injuries. Responding Party reserves the right to supplement this response once discovery, independent investigations, and legal research and analyses have been completed.”  (Responses to FROGs No. 6.6. and 6.7.)

            Response is Unclear

            In response to FROGs No. 6.6 and 6.7, Plaintiff claims that she has not received treatment for her injuries.  However, in response to FROG no. 6.4, Plaintiff claims to have seen Dr. Alex Lazar for her injuries.  These responses are contradictory on their face.  Plaintiff’s response to FROG No. 6.4 is incomplete in that at the very least, Plaintiff has failed to identify the type of consultation, examination, or treatment provided by Dr. Alex Lazar.  Accordingly, a further response in conjunction with FROG No. 6.4 is necessary.

FROG No. 12.1

            “State the name, ADDRESS, and telephone number of each individual: (a) who witnessed the INCIDENT or the events occurring immediately before or after the INCIDENT; (b) who made any statement at the scene of the INCIDENT; (c) who heard any statements made about the INCIDENT by any individual at the scene; and (d) who YOU OR ANYONE ACTING ON YOUR BEHALF claim has knowledge of the INCIDENT (except for expert witnesses covered by Code of Civil Procedure section 2034).”  (FROG No. 12.1.)

            “The parties in the above-captioned case, and their employees, who can be reached through their counsel. Paulette Smith, Mr. Friedman, Bea English, Carrie Lovelady, Echo Zhu, Howard Gussman, Marvin Gussman. Responding Party reserves the right to supplement this response once discovery, independent investigations, and legal research and analyses have been completed.”  (Response No. 12.1.)

            Response is Incomplete

            Here, Plaintiff’s response is incomplete because it fails to state the address and telephone number of witnesses Paulette Smith, Mr. Friedman, Bea English, Carrie Lovelady, Echo Zhu, Howard Gussman, Marvin Gussman.  As Plaintiff’s response is incomplete, a further response is required.

FROG No. 12.3

            “Have YOU OR ANYONE ACTING ON YOUR BEHALF obtained a written or recorded statement from any individual concerning the INCIDENT? If so, for each statement state: (a) the name, ADDRESS, and telephone number of the individual from whom the statement was obtained; (b) the name, ADDRESS, and telephone number of the individual who obtained the statement; (c) the date the statement was obtained; and (d) the name, ADDRESS, and telephone number of each PERSON who has the original statement or a copy.”  (FROG No. 12.3.)

            “Yes. See statement of Paulette Smith.”  (Response to FROG No. 12.3.)

            Response is Incomplete

            Here, Plaintiff’s response does not include any of the requested information sought by subsections (a)-(d).  Merely identifying a single witness statement is insufficient.  Plaintiff must state “(a) the name, ADDRESS, and telephone number of the individual from whom the statement was obtained; (b) the name, ADDRESS, and telephone number of the individual who obtained the statement; (c) the date the statement was obtained; and (d) the name, ADDRESS, and telephone number of each PERSON who has the original statement or a copy.”  Accordingly, a further response is required.

FROG No. 12.4

            “Do YOU OR ANYONE ACTING ON YOUR BEHALF know of any photographs, films, or videotapes depicting any place, object, or individual concerning the INCIDENT or plaintiff’s injuries? If so, state: (a) the number of photographs or feet of film or videotape; (b) the places, objects, or persons photographed, filmed, or videotaped; (c) the date the photographs, films, or videotapes were taken; (d) the name, ADDRESS, and telephone number of the individual taking the photographs, films, or videotapes; and (e) the name, ADDRESS and telephone number of each PERSON who has the original or a copy of the photographs, films, or videotapes.”  (FROG No. 12.4.)

            “Please see Plaintiffs responses to Defendant’s Demand for Production of Documents, Set One and any and all documents produced responsive to said discovery request. Responding Party reserves the right to supplement this response once discovery, independent investigations, and legal research and analyses have been completed.”  (Response to FROG No. 12.4.)

            Response is Improper

            As noted above, “it is not proper to answer by stating, ‘See my deposition,’ ‘See my pleading,’ or ‘See the financial statement.’ Indeed, if a question does require the responding party to make reference to a pleading or document, the pleading or document should be identified and summarized so the answer is fully responsive to the question.”  (Deyo, supra, 84 Cal.App.3d at pp.783–784, [italics added].)  Here, identifying unspecified responses to an unspecified Defendant’s document demand is insufficient.  Plaintiff is required to identify and summarize the responsive documents.  Accordingly, a further response is required.

Sanctions

            Sanctions were not requested in the notices nor in the oppositions.  Therefore, no sanctions can be awarded.  (CCP § 2023.040, [“A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought.”].)

CONCLUSION AND ORDER

Based on the foregoing, Defendant Marvin Engineering, Co., Inc’s motion to compel Plaintiff Bianca Alexis Fairchild’s further response to Form Interrogatories is GRANTED IN PART as to Form Interrogatories, 2.6, 6.2, 6.4, 6.6, 6.7, 12.1, 12.3, 12.4 and is otherwise DENIED.

Plaintiff Bianca Alexis Fairchild is to serve further, verified, code compliant responses, without objection, as to Form Interrogatories Nos. 2.6, 6.2, 6.4, 12.1, 12.3, 12.4 within twenty (20) days of notice of this order.  As to Form Interrogatories Nos. 6.6 and 6.7, Plaintiff is to provide a further response as applicable based on the response to Form Interrogatory 6.4.

Moving Party is to give notice and file proof of service of such.

DATED: January ___, 2024                                                   ___________________________

                                                                                          Elaine Lu

                                                                                          Judge of the Superior Court