Judge: Frank M. Tavelman, Case: 23BBCV00744, Date: 2025-03-14 Tentative Ruling

Case Number: 23BBCV00744    Hearing Date: March 14, 2025    Dept: A

MOTION TO COMPEL FURTHER RESPONSES

NOTICE:

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is required and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Gagan H. Palrecha (Plaintiff) brings this action against Loyalty Creative Enterprise LLC (Loyalty Creative), Nicholas S. Larsen (Larsen), and Peter Munzo (Munzo) (collectively Defendants). Plaintiff additionally names as Alex Gelbard as a Defendant, though Gelbard is not a party to this motion. Plaintiff originally brought this action as one for unlawful detainer. Plaintiff alleged the Defendants were improperly in possession of the property known as 4248 Vanetta Drive Studio City, CA 91604 (the Property).

Before the Court is Plaintiff’s “Motion to Compel Further Discovery Responses”. The Court finds this one motion is actually six motions presented as one. This is because Plaintiff has filed a single motion to compel further responses to three different discovery demands (Form Interrogatories, Special Interrogatories, and Request for the Production of Documents) as to three separate defendants (Loyalty Creative, Larsen, and Munzo.)

Combining of motions in this way creates a situation were six motions are set to be heard under only one reservation and one filing fee. The Court understands that Plaintiff likely filed its motion in this way in an effort to avoid repetition, as the Court’s review of each discovery response confirms they are identical across the three responding Defendants. (See Schivo Decl. Exh. B.) Despite Plaintiff’s combined filing being improper, the Court finds the issues presented by this motion are not so complex as to warrant its denial on procedural grounds. 

Defendants have filed no opposition to this motion. Pursuant to C.R.C. Rule 8.54(c), the failure to oppose a motion may be deemed consent to the motion being granted. 

ANALYSIS: 

I.                    LEGAL STANDARD 

Motion to Compel Further Responses to Interrogatories

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 the responses contain: (1) answers that are evasive or incomplete, (2)¿an unwarranted or insufficiently specific exercise of an option to produce documents in lieu of a substantive response, or (3) unmerited or overly generalized objections.  (C.C.P. §¿2030.300(a).) The responding party has the burden of justifying the objections thereto. (Coy v. Sup.Ct. (1962) 58 Cal.2d 210, 220-21.)

Motion to Compel Further Responses to RFPD

A motion to compel further responses to RFPD may be brought based on: (1) incomplete statements of compliance; (2) inadequate, evasive, or incomplete claims of inability to comply; or (3) unmerited or overly generalized objections.  (C.C.P. § 2031.310(c).) 

A motion to compel further production must set forth specific facts showing good cause justifying the discovery sought by the inspection demand. (See C.C.P. § 2031.310(b)(1).) In Digital Music News LLC v Superior Court (2014) 226 Cal.App.4th 216 at 224, the Court defined “good cause” as a showing that there “a disputed fact that is of consequence in the action and the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact.”  

If the moving party has shown good cause for the requests for production, the burden is on the objecting party to justify the objections. (Kirkland v. Sup.Ct (2002) 95 Cal. App.4th 92, 98.) 

II.                 MERITS

Special Interrogatories

Plaintiff moves to compel Defendants’ further response to each of his five form interrogatories. Each of these five interrogatories was designed to obtain the location information for Defendant Gelbard, as evidenced by the meet and confer letter of Plaintiff’s counsel. (Schivo Decl. Exh. C.) Plaintiff was of the belief that Gelbard was evading service and propounded these interrogatories in hopes they would assist in finally serving process. (Id.)

Defendants replied to each interrogatory by stating, “This invades personal privacy and privileges. Calls for speculation, lacks foundation, irrelevant. Respondent is not sure that responding party has this information.” (Schivo Decl. Exh. B at p. 135.) The Court agrees that this response constitutes both an unmeritorious assertion of boilerplate objections, as well as a non-code complaint response pursuant to C.C.P. § 2030.220(c). If Defendants did not have the information responsive to these interrogatories, the statute requires them to state as much. Defendants’ response that they are “not sure” they have the information is insufficient.

Regardless, at a March 11, 2025 case management conference, counsel Onica Cole agreed to accept service of the Complaint on behalf of Gelbard. (See Mar. 10, 2025 Minute Order.) As such, the purpose of these interrogatories has been fulfilled and the motion to compel further responses to them would appear MOOT.

Form Interrogatories.

Plaintiff moves to compel Defendants’ further response to Form Interrogatory Nos. 15.1, 17.1, 50.1, 50.2, and 50.3. The Court addresses each of these in turn.

Form Interrogatory No. 15.1 requests Defendants identify each denial of a material allegation and each special or affirmative defense in their pleadings. (Schivo Decl. Exh. A. at p. 9.) Form Interrogatory No. 15.1(b) & (c) asks that Defendants identify all witnesses/ documents that support their denials/defenses. Defendants response sets forth the facts upon which they base their denials/defenses but does not identify any witnesses or documents upon which they are based (or state that they do not exist). As such, the Court agrees that Defendants’ response is incomplete and further response should be compelled.

Form Interrogatory No. 17.1 requests Defendants each of their responses to Plaintiff’s Request for Admissions (RFA) which are not unqualified. (Schivo Decl. Exh. A at p. 10.) Defendants responded simply, “No, there are no unqualified admissions.” (Schivo Decl. Exh. B at p. 170.) This response is incomplete as it provides no answer to the subparts of Form Interrogatory No. 17.1, wherein Plaintiff requests Defendants identify the facts, witnesses, and documents upon which those qualified responses were made. As such, the Court agrees that Defendants’ response is incomplete and further response should be compelled.

Form Interrogatory Nos. 50.1 requests Defendant identify each agreement alleged in the pleadings, with subpart (b) specifically asking that Defendants identify any parts that are not in writing and date upon which such oral agreements were made. (Schivo Decl. Exh. A. at p. 11) Defendants responded, “Plaintiff has the DOCUMENTS in their possession that were alleged in their pleadings. There are certain things that were not present in the LEASE, but that were made as a verbal agreement such as modification to the fence made by Defendant and approved by Plaintiff.” (Schivo Decl. Exh. B. at p. 150.) The Court finds this response constitutes an incomplete answer to the interrogatory, in that it acknowledges the existence of verbal agreements but does not properly state their subject or the date on which they were made. As such, the Court agrees that Defendants’ response is incomplete and further response should be compelled.

Form Interrogatory Nos. 50.2 requests Defendants state whether there was a breach of any agreement in the pleadings and, if so, to describe and provide a date for each breaching act/omission. (Schivo Decl. Exh. A at p. 11.) Defendants responded, “The breach of the agreement was Plaintiff's failure to provide a habitable premises to Defendants. Defendant has attached a plethora of evidence supporting these claims. Plaintiff can refer to Defendants’ responses to Request for Production of Documents for this evidence.” (Schivo Decl. Exh. B. at p. 150.) The Court finds this response is incomplete as it provides no description of the alleged breaching activity or the date on which it occurred. To the extent that Defendants believe this information has already been provided, this does not entitle them to provide incomplete interrogatory responses.

Lastly, Form Interrogatory No. 50.3 requests Defendants state whether performance of any agreement was excused and, if so, to identify the agreement and the reason why performance was excused. (Schivo Decl. Exh. A. at p. 11.) Defendants responded, “No, performance was not excused for Plaintiff. However, performance by Defendants was arguably excused by Plaintiff’s failure to provide a habitable premises after numerous communications and reports to Plaintiff of the issues at the Premises since the Lease’s inception, that were never corrected.” (Schivo Decl. Exh. B. at p. 150.) As with Defendants’ other responses, this too is an incomplete answer to the interrogatory. Defendants do identify the lease agreement, but their response that their performance was “arguably excused” is improper. Defendants’ “maybe” answer to a “yes/no” question is inherently incomplete.

Accordingly, the motion to compel Loyalty Creative, Larsen, and Munzo’s further responses to Form Interrogatories Nos. 15.1, 17.1, 50.1, 50.2, and 50.3 is GRANTED.

Request for Production of Documents

Plaintiff moves to compel further responses to Request for Production of Documents (RFPD) Nos. 1-28. Plaintiff contends that further responses to each RFPD should be compelled because this response is not code compliance with C.C.P. § 2031.230. Defendants’ response to each of these requests is identical and is as follows:

Defendant has attached all documents currently within their possession. Please see the attached documents. Defendant will conduct a reasonable and diligent search and supplement these responses with any additional documents discovered

(Schivo Decl. Exh. B. at pgs. 154-157.)

As a preliminary matter, the Court finds that Plaintiff has neglected to state facts setting forth good cause for further production of the documents it seeks. (See C.C.P. § 2031.310(b)(1).) Where, as here, the responding party had provided some documents in response to the requests, it is incumbent upon the moving party to identify the documents which they claim have not been produced and why they are subject to discovery. Plaintiff’s motion does not identify which documents were attached to Defendants’ responses, nor state a belief that further responsive documents exist which were not produced. Without these, the Court is left to speculate as to what documents remain to be produced and whether good cause exist to compel their production.

Further, the Court finds Plaintiff’s that Defendants’ response is an incomplete statement of compliance to be unpersuasive. that Defendants’ statement that they have produced all documents “currently in their possession” is not an appropriate statement of compliance. The Court finds this argument unpersuasive. A party responding to RFPD has three options; (1) a statement of compliance, (2) a statement of inability to comply, or (3) objection. (C.C.P. § 2031.210(a)(1)-(3). If the party responses with a statement of compliance, they must:

[S]tate that the production, inspection, copying, testing, or sampling, and related activity demanded, 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.

(C.C.P. § 2031.220)

C.C.P. § 2031.220 does not use any temporal language. The statute does not require the responding party to state they will produce any responsive documents which have ever existed or may exist. It simply requires the responding party state that they will produce all documents in their possession, custody, or control. That those documents are currently in the responding party’s possession, custody, or control is presumed, because a party cannot produce what they do not have.

Plaintiff’s argument that Defendants are required to state that they have made a diligent search, as opposed to will make a diligent search, is similarly unpersuasive. The requirement that a party state it previously made a diligent search in an effort to comply only applies in situations where the responding party has stated an inability to comply (C.C.P. § 2031.230.) Here, Defendants have stated they will fully comply. Defendants’ statement that they, “…will conduct a reasonable and diligent search and supplement these responses with any additional documents discovered” appears to be an attempt to state that discovery is ongoing, and that Defendants reserve the right to supplemental their responses. It does not appear to be a statement that Defendants refuse or are unable to comply. 

Accordingly, the motion to compel Loyalty Creative, Larsen, and Munzo’s further responses to RFPD Nos. 1-28 is DENIED.

Sanctions

The Court has discretion to impose a monetary sanction against a party engaging in the misuse of the discovery process, or any attorney advising that conduct. (C.C.P. § 2023.030(a).) Sanctions are only mandatory as against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response, 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. (C.C.P. §§ 2030.300(d), 2031.310(h).) Regardless, it is customary to grant sanctions where a party has filed a motion to compel, and the other party fails to file an opposition. (C.R.C. Rule 3.1348(a).) 

Here, Plaintiff’s motion remains unopposed. Further, Plaintiff’s motion as to the special interrogatories was only mooted days prior to the hearing on the motions. As such, the Court finds the imposition of sanctions are warranted. Accordingly, the Court grants sanctions as against Loyalty Creative, Palrecha, and Munzo (jointly and severally) in the amount of $ 1,100. This amount reflects two hours of attorney work at the stated rate of $475/hour and one hour of paralegal work at the stated rate of $150/hr. (Schivo Decl. ¶ 6.) This does not include the amount of time estimated in preparing a reply, as no oppositions was filed. In the Court’s training and experience, this amount is sufficient to compensate Plaintiff for the costs incurred in preparing a motion of this complexity.

--- 

RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Gagan H. Palrecha’s Motion to Compel Further Responses came on regularly for hearing on March 14, 2025, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION TO COMPEL LOYALTY CREATIVE, LARSEN, AND MUNZO’S FURTHER RESPONSES TO SPECIAL INTERROGATORIES IS MOOT.

THE MOTION TO COMPEL LOYALTY CREATIVE, LARSEN, AND MUNZO’S FURTHER RESPONSES TO FORM INTERROGATORIES NOS. 15.1, 17.1, 50.1, 50.2, and 50.3 IS GRANTED.

THE MOTION TO COMPEL LOYALTY CREATIVE, LARSEN, AND MUNZO’S FURTHER RESPONSES TO RFPD NOS. 1-28 IS DENIED.

SANCTIONS AGAINST Loyalty Creative, Palrecha, and Munzo in the amount of $1,100 is awarded, joint and several.   sanctions are payable within 30 days.

IT IS SO ORDERED.