Judge: Elaine Lu, Case: 20STCV11554, Date: 2022-07-26 Tentative Ruling

Case Number: 20STCV11554 Hearing Date: July 26, 2022 Dept: 26

Superior Court of California

County of Los Angeles

Department 26

DCR MORTGAGE 7 SUB 2, LLC,

Plaintiff,

vs.

north american Title Insurance company; north american title company; et al.,

Defendants.

Case No.: 20STCV11554

Hearing Date: July 26, 2022

[TENTATIVE] order RE:

DEFENDANT north american title insurance company’s motion to compel further responses to request for production, set two

Procedural Background

On March 20, 2020, Plaintiff DCR Mortgage 7 Sub 2, LLC (“Plaintiff”) filed the instant action against defendants North American Title Insurance Company (“NATIC”) and North American Title Company (“NATC”) (jointly “Defendants”). The complaint asserts eleven causes of action for (1) Breach of Contract, (2) Negligence, (3) Breach of Fiduciary Duties, (4) Negligent Misrepresentation, (5) Fraud by Concealment, (6) Breach of Insurance Contract, (7) Breach of the Implied Covenant of Good Faith and Fair Dealing, (8) Violation of Penal Code § 496, (9) Reformation of Contract based on Mistake of Fact, (10) Reformation of Contract based on Mutual Mistake of Fact, and (11) Reformation of Contract based on Fraud.

On October 7, 2020, the Court sustained Defendants’ demurrer to the eighth cause of action with ten days leave to amend. (Order 10/7/20.) However, no amended complaint was filed. Accordingly, only the first through fifth causes of action against NATC and the seventh, ninth through eleventh causes of action against NATIC remain.

On July 1, 2022, Defendant NATC filed the instant motion to compel further responses to request for production of documents, set two (“RPDs”). On July 13, 2022, Plaintiff filed an opposition. On July 19, 2022, Defendant NATC filed a reply.

Allegations of the Operative Complaint

The Complaint alleges that:

The State Bank of India (California) (“Bank”) made a loan of $1,753,383.00 to Spirit of Women of California, Inc. (“Borrower”), which was secured by a deed of trust to real property at 327 W. Belmont Avenue, Fresno, California 93728 (“Subject Property”). (Complaint ¶¶ 2, 3, 14.) This deed of trust was to be recorded by Defendants pursuant to escrow instructions. (Id. ¶ 14.) Pursuant to the escrow instructions, Defendants were required to “only close the escrow for the Loan if the Bank’s Deed of Trust could be recorded by the Defendants in a ‘1^st position[,]’” such that there is no prior lien or encumbrance active on the property. (Id. ¶ 17, Exh. 2.)

On “July 31, 2014, Defendants issued to the Bank a Preliminary Report which fraudulently misrepresented, concealed and failed to disclose to the Bank that the Property was encumbered by a Declaration of Restrictive Covenants which had been recorded against the Property on October 28, 2008.” (Id. ¶ 15.) Defendants then closed escrow on the Bank’s Loan creating a subordinate lien to the recorded Declaration of Restrictive Covenants. (Id. ¶¶ 18, 25.) On August 28, 2014, Defendants issued title insurance “against any loss or damage sustained or incurred by the Bank and/or its assignees if the Bank’s Deed of Trust were not a valid and enforceable first priority lien on the Borrower’s Property.” (Id. ¶¶ 20-21, Exh. 6.) On August 14, 2017, Bank sold and assigned the loan to Plaintiff including the Deed of Trust and the Title Insurance Policy. (Id. ¶ 22, Exh. 7.) The Declaration of Restrictive Covenants which had been of record since October 26, 2008 rendered the later filed title to the Subject Property and the Deed of Trust unmarketable and valueless. (Id. ¶ 23.) Moreover, Plaintiff and Bank did not have knowledge of the prior encumbrance on the Subject Property. (Id. ¶¶ 25-26.)

Legal Standard

Requests for Production of Documents

Code of Civil Procedure section 2031.310 provides, in pertinent part, as follows:

(a) On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply:

(1) A statement of compliance with the demand is incomplete.

(2) A representation of inability to comply is inadequate, incomplete, or evasive.

(3) An objection in the response is without merit or too general.

(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 discovery sought by the demand.

(2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040.

Code Complaint Response

A code-compliant response to a request for production consists of any of the following: (1) a statement that the party will comply, (2) a representation that the party lacks the ability to comply, or (3) an objection. (CCP §§ 2031.210.) A statement that the party will comply must state that the Request for Production “will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.” (CCP § 2031.220.) “If only part of an item or category of item in a demand for inspection, copying, testing, or sampling is objectionable, the response shall contain a statement of compliance, or a representation of inability to comply with respect to the remainder of that item or category.” (CCP § 2031.240(a).) If an objection is made the responding party must “[i]dentify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made.” (CCP § 2031.240(b)(1).)

Discussion

By way of this motion, Defendant NATC seeks to compel further responses to RPDs Nos. 34-47, 73-84, 89-97, 102-105, 107-109, 114, and 117-121.

Time to File a Motion

A party making a motion to compel further responses must do so within 45 days of service of the verified response unless the parties agree in writing and specify a later date. (CCP § 2031.310(c).) The 45-day limit is jurisdictional as the Court has no authority to grant late-filed papers. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) However, this 45-day limit is extended if served by mail, overnight delivery, fax, or electronically. (See CCP §§ 1010.6(a)(4), 1013.)

On May 23, 2022, Plaintiff served its response to request for production, set two by electronic and overnight service. (Holt Decl. ¶ 3, Exh. B.) Accordingly, the instant motion filed on July 1, 2022 – only 39 days after service of the response – is timely.

Meet and Confer

Pursuant to Code of Civil Procedure section 2031.310(b)(2) a motion to compel further responses to a request for production “shall be accompanied by a meet and confer declaration under Section 2016.040.” (CCP § 2031.310(b)(2).) “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.)

On June 27, 2022, Defendant NATC sent a meet and confer letter demanding a response by Thursday June 30, 2022. (Holt Decl. ¶ 5, Exh. C.) On June 30, 2022, at 10 pm Plaintiff sent a met and confer letter agreeing to remove certain objections and supplement the response. (Holt Decl. ¶ 6, Exh. D.) On June 30, 2022 at 11 pm, Plaintiff served an amended response and amended document production. (Holt Decl. ¶ 7, Exh. E; Goldstein Decl. ¶ 9, Exh. 3.) However, Defendant NATC still filed the instant motion. (Holt Decl. ¶ 8.)

Here, the meet and confer efforts are clearly deficient as Plaintiff did amend the responses, and there was no subsequent meet and confer. However, because the instant action is proceeding to trial soon and many of the amended responses are still deficient, the Court will address the instant motion despite the insufficient meet and confer.

RPDs No. 38, 40, 73-84, 91-97, 102-105

Plaintiff’s amended responses to requests 38, 40, 73-84, 91-97, and 102-105 are code compliant. Each of these responses nearly identically provides that there are no responsive documents because such documents do not exist. For example, the amended response to RPD No. 38 provides that:

Plaintiff incorporates its Preliminary Statement as thought fully set forth herein. Plaintiff objects to this Request to the extent it is vague and ambiguous and overbroad as it relates to the term ‘all.’ Subject to and without waiving the foregoing objections, and within Plaintiffs good faith understanding of this Request, Plaintiff responds as follows: Plaintiff cannot comply with this Request because its investigation has not disclosed any bona fide offers. Discovery and investigation are ongoing.

(Goldstein Decl. ¶ 9, Exh. 3, RPD No. 38.)[1]

As each of these responses note that no documents are going to be produced because the documents requested don’t exist, there is nothing further to compel.

RPDs No. 34, 35, 39, 89, 90, and 117

Here, each of these responses include objections based on vagueness and ambiguity and claim that the requests are overbroad. Each amended responses states nearly identically that “Plaintiff incorporates its Preliminary Statement as thought fully set forth herein. Plaintiff objects to this Request to the extent it is vague and ambiguous and overbroad as it relates to the term ‘all.’ Subject to and without waiving the foregoing objections, and within Plaintiffs good faith 2 understanding of this Request, Plaintiff responds as follows: Plaintiff will comply with this Request. Discovery and investigation are ongoing.” (Goldstein Decl. ¶ 9, Exh. 3, RPD No. 34.)

Relevance, Vague, Overbroad Objections

As to the overbroad objection “any party may obtain discovery regarding any matters, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (CCP § 2017.010.) “[A]n implicit waiver of a party's constitutional rights encompasses only discovery directly relevant to the plaintiff's claim and essential to the fair resolution of the lawsuit.” (Vinson v. Superior Court (1987) 43 Cal.3d 833, 842.) However, discovery should not be denied if the information sought has any relevance to the subject matter. Thus, while relevancy is a possible ground for an objection, it is difficult to adequately justify it. (See generally Coy v. Superior Court of Contra Costa County (1962) 58 Cal.2d 210, 217.) “These rules are applied liberally in favor of discovery, and (contrary to popular belief), fishing expeditions are permissible in some cases.” (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546 [internal citation omitted].)

Here, the objections that the requests are vague and overbroad are without merit. Each of these requests clearly identify the sought documents are clearly seek discoverable documents. Moreover, Plaintiff’s responses are not code compliant. Merely stating that a party will comply with the request is insufficient. A statement that the party will comply must state that the Request for Production “will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.” (CCP § 2031.220.) Further, as objections were being made Plaintiff was required to “[i]dentify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made.” (CCP § 2031.240(b)(1).) Because Plaintiff made objections, and responsive documents exist, the response must clearly indicate what specific documents are being withheld based on what specific objection.

RPDs No. 36, 37, 43-47, 107, 108, 114

Each of the responses to RPDs No. 36, 37, 43-47, 107, 108, and 114 similarly includes an objection based on vagueness and overbreadth. However, each response also includes an objection based on attorney-client privilege. For example, the amended response to RPD No. 108 provides:

Plaintiff incorporates its Preliminary Statement as thought fully set forth herein. Plaintiff objects to this Request to the extent it is vague and ambiguous and overbroad as it relates to the term "all." Plaintiff further objects to this Request to the extent it is overbroad and violates a right to privacy. Plaintiff further objects to this Request to the extent it seeks to invade the attorney client privilege and the work product privilege. Pursuant to Code of Civil Procedure § 2031.240( c )( 1 ), the attorney-client privilege and attorney work-product objection documents which are withheld are those comprising communications between persons at Plaintiff and the law firm of Buchalter, a Professional Corporation or any other law firm which has or is also representing Plaintiff, and any documents created by the law firm of Buchalter, a Professional Corporation or any other law firm which has or is also representing Plaintiff, or documents created by Plaintiff at the specific request of the law firm of Buchalter, a Professional Corporation or any other law firm which has or is also representing Plaintiff. Subject to and without waiving the foregoing objections, and within Plaintiff's good faith understanding of this Request, Plaintiff responds as follows: Plaintiff will comply with this Request and produce all non-privileged documents in its possession, custody and control. Discovery and investigation are ongoing.

(Goldstein Decl. ¶ 9, Exh. 3, RPD No. 108.)

Privacy Objection

The right of privacy in the California Constitution (art. I, § 1), “protects the individual's reasonable expectation of privacy against a serious invasion.” (Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1250 [italics in original]; See Williams v. Superior Court (2017) 3 Cal.5th 531, 552 [“In Hill, we established a framework for evaluating potential invasions of privacy. The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations.”].)

As the Supreme Court has “previously observed, the right of privacy extends to sexual relations (Vinson v. Superior Court, supra, 43 Cal.3d at p. 841, 239) and medical records (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 41.).” (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1198.) Similarly, the constitutional right to freedom of association requires protection of a person’s membership in associations, whether they pertain to religious, political, economic, or even purely social matters. (Britt v. Superior Court (1978) 20 Cal.3d 844, 852; see also Pacific-Union Club v. Superior Court (1991) 232 Cal.App.3d 60, 71.) Further, “‘Courts have frequently recognized that individuals have a substantial interest in the privacy of their home.’ [Citation.]” (Puerto, supra, 158 Cal.App.4th at p.1252.)

In establishing a privacy interest “the burden [is] on the party asserting a privacy interest to establish its extent and the seriousness of the prospective invasion, and against that showing must weigh the countervailing interests the opposing party identifies, as Hill requires.” (Williams, supra, 3 Cal.5th 531, 557.) “Only obvious invasions of interests fundamental to personal autonomy must be supported by a compelling interest.” (Ibid.)

Here, none of the objections identify what privacy interest is being invaded – let alone a compelling interest warranting the complete denial of discovery. Moreover, in opposition, Plaintiff fails to identify the extent and seriousness of the prospective invasion. Accordingly, Plaintiff fails to substantiate the privacy objections.

Attorney Client Privilege/Work Product Privilege

“In general, when a party asserts the attorney-client privilege, that party has the burden of showing the preliminary facts necessary to support the privilege.” (Venture Law Group v. Superior Court (2004) 118 Cal.App.4th 96, 102.) “The party asserting the privilege need only present facts which ‘support a prima facie claim of privilege.” (OXY Resources California LLC v. Superior Court (2004) 115 Cal.App.4th 874, 894.) “After this burden is met, or where there is no dispute concerning the preliminary facts, the burden shifts to the party opposing the privilege to show either the claimed privilege does not apply, an exception exists, or there has been an express or implied waiver.” (Venture Law Group, supra, 118 Cal.App.4th at p.102.)

Here, the requests do appear to include documents that may be protected by attorney client privilege. However, no privilege log has been provided identifying what, if any, documents that are responsive are being withheld based on attorney client privilege/work product. Though Plaintiff has properly raised attorney client privilege, there are undoubtedly responsive documents to at least some of these requests that are not privileged. Moreover, to the extent that there are privileged documents, Plaintiff has not indicated which specific document are privileged. Plaintiff must provide a privilege log that identifies what documents are being withheld and enough factual information to support a prima facie claim of privilege. (See CCP § 2031.240(b)(1-2), [“b) If the responding party objects to the demand for inspection, copying, testing, or sampling of an item or category of item, the response shall do both of the following: (1) Identify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made. (2) Set forth clearly the extent of, and the specific ground for, the objection. If an objection is based on a claim of privilege, the particular privilege invoked shall be stated. If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted.”] [Italics added.].)

Accordingly, Plaintiff must provide a privilege log identifying which if any documents are being withheld, together with sufficient information to substantiate that the document is protected by attorney client privilege/work product.

RPDs No. 118-121

The responses to RPDs 118-121 each raise the objections stated above, include an objection based on burden, indicate that no documents will be produced, and refer to all documents that have been produced.

“Produce all DOCUMENTS which identify the person or persons who made the decision on YOUR behalf to take an assumption of the DEED OF TRUST to the PROPERTY in August 2017.” (Request 118.)

“Plaintiff incorporates its Preliminary Statement as thought fully set forth herein. Plaintiff objects to this Request to the extent it is vague and ambiguous and overbroad as it relates to the term ‘all.’ Plaintiff further objects to this Request to the extent it seeks to invade the attorney client privilege, the work product privilege or a right to privacy. Pursuant to Code of Civil Procedure § 24 2031.240( c )( 1 ), the attorney-client privilege and attorney work-product objection documents which are withheld are those comprising communications between persons at Plaintiff and the law firm of Buchalter, a Professional Corporation or any other law firm which has or is also representing Plaintiff, and any documents created by the law firm of Buchalter, a Professional Corporation or any other law firm which has or is also representing Plaintiff, or documents created by Plaintiff at the specific request of the law firm of Buchalter, a Professional Corporation or any other law firm which has or is also representing Plaintiff. Subject to and without waiving the foregoing objections, and within Plaintiffs good faith understanding of this Request, Plaintiff responds as follows:

Plaintiff shall not comply with this Request as phrased as it would require the production of every document which has the name of the person or persons who were involved in making a decision. Plaintiff will comply with this Request by referring the Defendant to DCR00000l9 DCR000573, including pages 174-176. Plaintiff is also willing to ‘meet and confer’ in good faith with the Defendant, but has been denied the opportunity due to the short window of time proffered by Defendant. Discovery and investigation are ongoing.” (Amended Response to RPD No. 118.)

“Produce all COMMUNICATIONS REGARDING OR RELATED TO YOUR decision to take an assignment of the DEED OF TRUST to the PROPERTY in August 2017.” (RPD No. 119.)

Plaintiff shall not comply with this Request as phrased as it would require the production of every document which has existed related to this loan from 2017 to the present, including privileged information. Plaintiff will comply with this Request by referring the Defendant to all of the documents produced in this action. Plaintiff is also willing to "meet and confer" in good faith with the Defendant, but has been denied the opportunity due to the short window of time proffered by Defendant. Discovery and investigation are ongoing.” (Amended Response to RPD No. 119.)

“Produce all DOCUMENTS RELATED OR REFERRING TO the VALLEY DOT.” (RPD No. 120.)

Plaintiff shall not comply with this Request as phrased as it would require the production of, among other things, every document related to revolving credit facility which would require the production of documents wholly unrelated to this action. Plaintiff will comply with this Request by producing the Valley Bank Deed of Trust. Plaintiff is also willing to ‘meet and confer’ in good faith with the Defendant, but has been denied the opportunity due to the short window of time proffered by Defendant. Discovery and investigation are ongoing.” (Amended Response to RPD No. 120.)

“Produce all COMMUNICATIONS between YOU and VNB RELATED OR REFERRING TO the VALLEY DOT.” (RPD No. 121.)

Burdensome Objection

Objections based on “burden must be sustained by evidence showing the quantum of work required” and “to support an objection of oppression there must be some showing either of an intent to create an unreasonable burden or that the ultimate effect of the burden is incommensurate with the result sought.” (West Pico Furniture Co. of Los Angeles v. Superior Court In and For Los Angeles County (1961) 56 Cal.2d 407, 417.) Moreover, even if [discovery requests] are found to be “burdensome and oppressive,” the Court should not simply sustain the objection and thereby excuse any answer. Rather, the Court should limit the question to a reasonable scope. (Borse v. Superior Court (Southern Pac. Co.) (1970) 7 Cal.App.3d 286, 289.)

Here, Plaintiff has failed to make any showing of the quantum of work necessary to respond. In the absence of such evidence, Plaintiff has failed to demonstrate that the requests are overly burdensome. However, the requests do appear overbroad on their face because they seek all communications regardless of potential relevance. Regardless, the responses are improper; merely referring to all responsive documents is improper. Pursuant to Code of Civil Procedure section 2031.280(a), Plaintiff must identify what documents are responsive to each request. Accordingly, Plaintiff must amend these responses to state that Plaintiff is going to comply but with a reduced scope, and Plaintiff must identify the responsive documents if they have already been produced.

Sanctions

Here, sanctions were not requested in the notice. 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, Defendants North American Title Company’s motion to compel further responses to Requests for Production of Documents is GRANTED IN PART as to 34-37, 39, 43-47, 89, 90, 107, 108, 114, 117-118.

Plaintiff is to provide further code compliant responses to Requests No. 7-8, 10-14, 21-24, and 27-30 without objection – except attorney client privilege/work product – within 10 days of notice of this order. In addition, Plaintiff is to provide a privilege log identifying any documents withheld based on attorney client privilege/work product. As to Requests 118-121, Plaintiff must amend these responses to state that Plaintiff is going to comply but with a reduced scope, and Plaintiff must identify the responsive documents if they have already been produced.

Plaintiff is to produce documents clearly identifying the request to which each document is responsive, as required under Code of Civil Procedure section 2031.280(a) within 10 days of notice of this order.

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

DATED: July 26, 2022 ___________________________

Elaine Lu

Judge of the Superior Court

[1] The Court notes that the preliminary statement does not include any specific objections.