Judge: Frank M. Tavelman, Case: 24STCV00744, Date: 2024-12-13 Tentative Ruling

Case Number: 24STCV00744    Hearing Date: December 13, 2024    Dept: A

MOTIONS 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 requested 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: 

Christina & Gene Chung Ching (Plaintiffs) bring this action against Obsidian Development, LLC (Defendant). Plaintiffs alleges that Defendant was hired to construct a quadraplex on a property they own. Plaintiffs further allege that Defendant deficiently constructed the building in violation of code and in breach of the parties’ contract.

On June 21, 2024, the Court granted Defendant’s motion to set aside the default which was entered on March 15, 2024.

Before the Court are two motions to compel further responses to Plaintiffs’ Form Interrogatories (FROG) and Special Interrogatories (SPROG). Defendant opposes the motions and Plaintiffs reply.

ANALYSIS: 

I.                    LEGAL STANDARD 

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.)

II.                 MERITS

Reservation for Motion to Compel FROG

The Court briefly addresses Defendant’s argument that it lacks jurisdiction to determine Plaintiffs’ motion to compel further responses to FROG. Defendant argues that Plaintiffs did not properly reserve a hearing for this motion, as they did with the motion to compel further responses to SPROG. The Court notes that only one hearing appears in its reservation system. Regardless, Plaintiffs’ counsel has submitted the confirmation email which states she reserved the hearing for this motion. The Court is uncertain how the reservation was then removed from its calendar, but it appears it was through no fault of Plaintiffs’. Further, Defendant appears to have had notice of the motion and its hearing date such that they could interpose timely opposition. As such, the Court finds the lack of reservation does not prejudice Defendant and both motions shall be heard.

Timeline

The Court begins this section by noting that, despite the fact that Plaintiffs’ declaration in support of their motion to compel FROG identifies exhibits alphabetically (A, B, C, etc.), the exhibits attached are labeled numerically. Further, Plaintiffs’ declaration in support of the motion to compel SPROG does not label its exhibits at all. Given that these declarations are 119 and 79 pages respectively, Plaintiffs’ failure to properly label its exhibits has made review of this motion considerably more arduous than necessary.

On August 12, 2024, Plaintiffs’ served their Form Interrogatories and Special Interrogatories on Defendant’s counsel via email. (Sagheb Decl. ¶ 4) On August 23, 2024, Defendant’s counsel reached out to inform Plaintiffs’ counsel that the discovery was mistakenly placed in his spam folder and thus he has only just become aware of it. (Sagheb Decl. ¶ 6.; Vance Decl. Exh. 1.) Defendant’s counsel requested an extension to September 27, 2024, which Plaintiffs’ counsel granted on August 29, 2024. (Id.)

On September 6, 2024, Defendant’s counsel emailed to inform that his client had been sick and he needed more time to get substantive responses. (Sagheb Decl. ¶ 7, Vance Decl. Exh. 1.) Defendant’s counsel requested an extension to October 6, 2024. (Id.) Plaintiffs’ counsel responded thusly:

Tyler, We told you the last time that we would not offer any further extensions of time to respond. We will agree to this final extension on condition that you confirm Plaintiff’s deposition as currently scheduled on October 16, 2024.

(Vance Decl. Exh. 1.)

On September 27, 2024, Defendant served responses to Plaintiffs’ FROG and SPROG. (Sagheb Decls. at p. 49 & 21.) These responses consisted entirely of objections and were unverified. (Id.)

On September 29, 2024, Plaintiffs’ counsel sent an email addressing the perceived deficiencies in Defendant’s responses. (Sagheb Decl. ¶ 9; Vance Decl. Exh. 2.) On October 4, 2024, Defendant’s counsel responded thusly:

As previously explained to you. I need more time. There are large number of discovery requests and we are working on compiling supplemental responses.

I served as much as I could substantive and used objections to preserve my client’s rights due to your refusal to grant any additional time. I will not be able to meet your short deadline, I am hoping to have responses to you by November 9. If you don’t find that acceptable. Go file your motion. You have been nothing but unprofessional in this matter, and to be clear. I nor my client are refusing to respond but have simply requested additional time.

You served 60 RFAs, 69 RFPs, Form Rogs, and 29 Special Rogs. This is being served on an entity for a transaction that happened over 3 years ago. Your requests are broad and burdensome and we are doing out best to get you as much information as possible.

(Vance Decl. Exh. 2.)

Plaintiffs’ counsel responded with the following:

We take exception to your name-calling as well as your cavalier and incorrect attitude towards a motion to compel.

First, we absolutely did and literally so. All that we requested was that you confirm that the deposition of your client would go forward as scheduled on October 16, 2024. You neither responded to our request for confirmation nor set forth any other date on which your client would appear for deposition.

Second, as you know, we only have 45 days to bring that motion. Giving you until November 9, which is a Saturday, would put us at the cusp of being required to file a motion if you do not serve supplemental responses.

Third, we are not required to give you any extension at all. The code is quite clear as to when your responses are due and when motions must be filed.

Fourth, we see requests for extensions from your client as nothing but further delay and in this case you are requesting not only delay but in a fashion that prejudices our clients’ rights to bring the necessary motions. We cannot give you until November 9. In fact, we were very generous of you until October 11 in view of the fact that your client’s deposition is set for October 16.

Without stooping to your level of name-calling, you should review your own communications to gauge your own level of professional professionalism and civility.

We will contact the court to determine whether an IDC is necessary in this matter and if not then we will proceed with the motion, as you have requested.

(Vance Decl. Exh. 2.)

Plaintiffs’ counsel responded with the following:

We take exception to your name-calling as well as your cavalier and incorrect attitude towards a motion to compel.

First, we absolutely did and literally so. All that we requested was that you confirm that the deposition of your client would go forward as scheduled on October 16, 2024. You neither responded to our request for confirmation nor set forth any other date on which your client would appear for deposition.

Second, as you know, we only have 45 days to bring that motion. Giving you until November 9, which is a Saturday, would put us at the cusp of being required to file a motion if you do not serve supplemental responses.

Third, we are not required to give you any extension at all. The code is quite clear as to when your responses are due and when motions must be filed.

Fourth, we see requests for extensions from your client as nothing but further delay and in this case you are requesting not only delay but in a fashion that prejudices our clients’ rights to bring the necessary motions. We cannot give you until November 9. In fact, we were very generous of you until October 11 in view of the fact that your client’s deposition is set for October 16.

Without stooping to your level of name-calling, you should review your own communications to gauge your own level of professional professionalism and civility.

We will contact the court to determine whether an IDC is necessary in this matter and if not then we will proceed with the motion, as you have requested.

(Vance Decl. Exh. 2.)

On October 4, 2024, Defendant’s counsel responded to the above by expressing his willingness to extend an open-ended Plaintiffs’ deadline to file a motion to compel. (Vance Decl. Exh. 2.)

Discussion

C.C.P. § 2030.300(b)(1) requires that any motion to compel further responses be accompanied by a meet and confer declaration made pursuant to C.C.P. § 2016.040. In turn, C.C. P. § 2016.040 requires that the moving party have made “a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.”

Consideration as to whether a good faith meet and confer effort has been made entrusted to the trial court's discretion and judgment, with due regard for all relevant circumstances. (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 432.) “A single letter, followed by a response which refuses concessions, might in some instances be an adequate attempt at informal resolution, especially when a legitimate discovery objective is demonstrated. The time available before the motion filing deadline, and the extent to which the responding party was complicit in the lapse of available time, can also be relevant. An evaluation of whether, from the perspective of a reasonable person in the position of the discovering party, additional effort appeared likely to bear fruit, should also be considered” (Id. [emphasis added].)

For purposes of determining whether a motion to compel discovery was preceded by a reasonable and good faith effort to meet and confer, such a reasonable and good faith attempt at informal resolution entails something more than bickering with opposing counsel; rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate. (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294)

As Plaintiffs’ counsel correctly points out, the purpose of the meet and confer requirement under C.C.P.§ 2016.040 is to “…to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order...This, in turn, will lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes.” (Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1435.)

In evaluating the meet and confer efforts of Plaintiffs’ counsel prior to bringing this motion, the Court finds Plaintiffs’ counsel unnecessarily curtailed the possibility of obtaining compliant responses without court intervention. 

Plaintiffs’ counsel may not be legally obligated to grant extensions of time to respond, but her manner of refusal indicates a lack of “serious effort at negotiation and informal resolution.” (Id. at 1438.) This is doubly so for her attempt to condition an additional extension upon the deposition of Defendant. Plaintiffs’ counsel was clearly apprised that Defendant was working to get her responses but needed more time to provide sufficient responses. Plaintiffs’ response was not a reasonable attempt to engage with the difficulties Defendant faced in obtaining code compliant responses. This refusal appears further unreasonable in light of the fact that Defendant was only requesting an extension of 21 days from the original discovery deadline.

The Court finds the September 29 letter and the ensuing conversation also evidence a lack of good faith meet and confer effort. While Plaintiffs’ letter did direct specific arguments at Defendant’s objections, the response of Plaintiffs’ counsel thereafter is unsatisfactory. Defendant’s counsel informed, as he had prior, that he was experiencing difficulty in getting responses and needed more time. Defendant also informed that he only asserted the boilerplate objections to preserve his clients rights and intended to supplement to provide actual responses to the questions. Plaintiffs’ counsel responded by accusing Defendant’s counsel of name-calling and asserting that they were generous to have provided any extension at all. The tone and content of this reply are not indicative of an attempt to reach informal resolution.

In short, the efforts of Plaintiffs’ counsel did not attempt good faith resolution and in fact created an unnecessarily adversarial posture between themselves and Defendant’s counsel. The communication from Plaintiffs’ counsel has only served to prolong the delay in receiving the discovery they seek, a delay which this motion purportedly seeks to avoid. Rather than respond to the reasonable request for extension in hopes that it would facilitate the receipt of sufficient responses, Plaintiffs’ counsel erected a wall. It is this Court’s firm belief that the role of an attorney is to reduce the temperature of litigation, not to increase it.

Accordingly, Plaintiffs’ motions to compel further responses are DENIED without prejudice. The Court is confident that counsel for the parties will renew their meet and confer efforts in earnest and reach an informal resolution. Should Plaintiffs continue to experience issues in receiving sufficient responses after renewed meet and confer, the Court invites them to refile their motion.

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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 

Christina & Gene Chung Ching’s Motion to Compel Further Responses came on regularly for hearing on December 13, 2024, 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 MOTIONS TO COMPEL FURTHER RESPONSES ARE DENIED WITHOUT PREJUDICE.

DEFENDANT TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  December 13, 2024                          _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles