Judge Gail Killefer, Case 21STCV33346 2023-01-24 Tentative Ruling

Judge: Gail Killefer, Case: 21STCV33346, Date: 2023-01-24 Tentative Ruling

Case Number: 21STCV33346 Hearing Date: January 24, 2023 Dept: 37

HEARING DATE: January 24, 2023

CASE NUMBER: 21STCV33346

CASE NAME: Shapell Socal Rental Properties, LLC v. Chico’s FAS, Inc.

MOVING PARTY: Plaintiff, Shapell Socal Rental Properties, LLC.

OPPOSING PARTY: Defendant, Chico’s FAS, Inc.

TRIAL DATE: March 21, 2023

PROOF OF SERVICE: OK

MOTION: Motion to Compel Further Responses to Request for Production of Documents at Deposition of Employee Lourdes Jones

OPPOSITION: January 10, 2023

REPLY: January 17, 2023

TENTATIVE: Plaintiff’s motion is denied as to requests 11-14, and otherwise granted. Defendant is ordered to serve verified, supplemental responses and produce documents within 30 days of this date. Plaintiff’s request for sanctions is denied. Plaintiff is to give notice.

MOTION: Motion to Compel Further Responses to Request for Production of Documents at Deposition of Employee Angela Gamboa

OPPOSITION: January 10, 2023

REPLY: January 10, 2023

TENTATIVE: Plaintiff’s motion is denied as to requests nos. 3, 5, 9, 11, 22-26, 28, and 29, and otherwise granted. Defendant is ordered to serve verified, supplemental responses and produce documents within 30 days of this date. Plaintiff’s request for sanctions is denied. Plaintiff is to give notice.

Background

This breach of contract action arises out of a lease by Shapell Socal Rental Properties, LLC (“Plaintiff”) of property it owned, commonly known as the “Aliso Village” shopping center, located at 23966 Aliso Creek Road, Suites A-6, A-7, and A-8, Laguna Niguel, CA 92677. (The “Property”). Plaintiff leased the Property to Chico’s FAS, Inc. (“Defendant”) on May 29, 2015 for an original period of ten years. (The “Lease Agreement”). The Complaint alleges several amendments were made to the Lease Agreement. Plaintiff alleges Defendant breached the Lease Agreement on June 1, 2020 by failing to pay rent pursuant to the Lease Agreement. Plaintiff further alleges on June 9, 2021, Defendant vacated the Property after defaulting on its rent, and causing Plaintiff to seek possession by way of unlawful detainer. Plaintiff contends Defendant owes monies in unpaid rent, interest, late charges, and attorney fees, as well as unamortized brokers’ fees and tenant improvements.

Plaintiff’s Complaint alleges a breach of the lease.

On December 23, 2022, Plaintiff filed the following motions now before the court:

1. Motion to Compel Further Responses to Requests for Production of Documents at Deposition of Employee Lourdes Jones

2. Motion to Compel Further Responses to Requests for Production of Documents at Deposition of Employee Angela Gamboa

On January 10, 2023, Defendant filed their opposition to each motion. Plaintiff filed its reply to each motion on January 17, 2023.

Plaintiff’s discovery motions now come on for hearing.

MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION AT DEPOSITION OF EMPLOYEE LOURDES JONES

Procedural History

On October 28, 2022, Plaintiff noticed the deposition of Lourdes Jones, an employee for Defendant, for November 10, 2022 and included a demand to produce documents at deposition. (Lee Decl. ¶ 11, Exh. 4.) On November 4, 2022, Defendant served general objections and objected to producing Jones for the deposition on November 10, 2022. (Lee Decl. ¶ 12; Motion, 3-4.) An informal discovery conference (“IDC”) was scheduled between the parties, and Plaintiff attempted to meet and confer regarding the employee depositions. (Lee Decl. ¶¶13-20; Motion, 4-5.)

Meet and Confer Efforts

CCP § 2025.450(a) provides:

“ If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.”

The declaration must state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented in the motion. (CCP § 2016.040.) “[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.)

Plaintiff submits the declaration of its counsel, Ann S. Lee (“Lee”), to demonstrate compliance with statutory meet and confer requirements. Lee attests that on October 25, 2022, her colleague Vera Serova sent email correspondence to Defendant’s counsel to ask if an employee was still employed by Defendant. (Lee Decl. ¶ 13.) Lee attests counsel met in person to conduct other depositions in this matter on several occasions and Defendant’s counsel repeatedly did not confirm the employee’s employment status. (Lee Decl. ¶¶ 14-18.) Lee further attests on November 1, 2022, counsel only received general objections to the deposition notice and Defendant’s counsel again failed to confirm employment. (Lee Decl. ¶ 18.) On November 1, 2022, Lee also attests “I sent a response to Ms. Sayre, explaining all the depositions and other recent discovery would be unnecessary if Chico’s simply explained what happened after Ms. Jones notified Ms. Gamboa and Chico’s real estate department of the UD action. I never received any response to Ms. Sayre to my proposal.” (Lee Decl. ¶ 19, Exh. 10.)

On January 20, 2023, the parties attended an Informal Discovery Conference (“IDC”) regarding the documents at issue in this motion. The parties have failed to meet and confer around these issues following that IDC, and as the Lee Declaration makes clear, counsel for both parties have not attempted to “talk the matter over, compare their views, consult, and deliberate.”

The Lee Declaration is insufficient for purposes of CCP § 2025.450.

Discussion

I. Legal Authority

CCP § 2025.480, provides in relevant part:¿¿

“(a) If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent's control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production”¿

Additionally, “If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.” (CCP § 2025.450(a).) The motion must set forth specific facts justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.¿ (Id.¿§ 2025.450(b)(1).)¿

II. Analysis

Plaintiff moves for an order compelling further responses to the following requests for production at deposition:

No. 1: All COMMUNICATIONS with anyone regarding the 10 DAY NOTICE including any person working for CHICO’S.

No. 2: All DOCUMENTS regarding the 10 DAY NOTICE.

No. 3: All COMMUNICATIONS with anyone regarding the UD ACTION including any person working for CHICO’S.

No. 4: All DOCUMENTS regarding the UD ACTION.

No. 5: All COMMUNICATIONS with anyone regarding any LEGAL NOTICE concerning the STORE during the time period from January 1, 2020 through June 30, 2021.

No. 6: All DOCUMENTS regarding any LEGAL NOTICE concerning the STORE during the time period from January 1, 2020 through June 30, 2021.

No. 7: All COMMUNICATIONS with anyone regarding whom to contact upon receiving any LEGAL NOTICE concerning the STORE during the time period from January 1, 2020 through June 30, 2021.

No. 8: All DOCUMENTS regarding whom to contact upon receiving any LEGAL NOTICE concerning the STORE during the time period from January 1, 2020 through June 30, 2021.

No. 9: All COMMUNICATIONS with anyone regarding what actions to take upon receiving any LEGAL NOTICES concerning the STORE during the time period from January 1, 2020 through June 30, 2021.

No. 10: All DOCUMENTS regarding what actions to take upon receiving any LEGAL NOTICE concerning the STORE during the time period from January 1, 2020 through June 30, 2021.

No. 11: All COMMUNICATIONS with anyone regarding CHICO’S failure to pay rent for the STORE during the time period from January 1, 2020 through June 30, 2021.

No. 12: All DOCUMENTS regarding CHICO’S failure to pay rent for the STORE during the time period from January 1, 2020 through June 30, 2021.

No. 13: All COMMUNICATIONS with anyone regarding the proceedings to evict CHICO’S from the STORE during the time period from January 1, 2020 through June 30, 2021.

No. 14: All DOCUMENTS regarding the proceedings to evict CHICO’S from the STORE during the time period from January 1, 2020 through June 30, 2021.

(Separate Statement in Support of Motion, 1-10.) According to Plaintiff, Defendant served general objections, as follows:

To requests nos. 1-6

“Plaintiff has failed to describe with reasonable particularity the category of items sought. (C.C.P. § 2031.030.) Chico’s objects to this request, as it calls for disclosure of information protected by the attorney-client privilege, work-product privilege, or other applicable privileges as provided by statute or common law. Chico’s further objects to this request as seeking information not in any way related to the lease at issue in Plaintiffs Complaint. Chico’s further objects that this request seeks information outside of the possession, custody and control of this witness. Chico’s objects that this request is sent solely to harass and embarrass this witness and Chico’s. Chico’s objects that this request is not relevant to any issue dispute in this breach of contract action and not reasonably calculated to lead to the discovery of admissible evidence. This request calls for a legal conclusion.”

To requests nos. 7-10

“Plaintiff has failed to describe with reasonable particularity the category of items sought. (C.C.P. § 2031.030.) Chico’s objects to this request, as it calls for disclosure of information protected by the attorney-client privilege, work-product privilege, or other applicable privileges as provided by statute or common law, and will not disclose such information, in that it calls for all COMMUNICATIONS with anyone. Chico’s further objects to this request as seeking information not in any way related to the lease at issue in Plaintiffs Complaint. Chico’s further objects that this request seeks information outside of the possession, custody and control of this witness. Chico’s objects that this request is sent solely to harass and embarrass this witness and Chico’s. Chico’s objects that this request is not relevant to any issue dispute in this breach of contract action and not reasonably calculated to lead to the discovery of admissible evidence. This request calls for a legal conclusion.”

To requests nos. 11-14

“Plaintiff has failed to describe with reasonable particularity the category of items sought. (C.C.P. § 2031.030.) Chico’s objects to this request, as it calls for disclosure of information protected by the attorney-client privilege, work-product privilege, or other applicable privileges as provided by statute or common law, and will not disclose such information. Chico’s further objects to this request as seeking information not in any way related to the lease at issue in Plaintiffs Complaint, or any issue in dispute. Chico’s further objects that this request seeks information outside of the possession, custody and control of this witness. Chico’s· objects that this request is sent solely to harass and embarrass this witness and Chico’s. Chico’s objects that this request is not relevant to any issue dispute in this breach of contract action and not reasonably calculated to lead to the discovery of admissible evidence. This request calls for a legal conclusion. The request is grossly vague and overbroad in that it requests ‘COMMUNICATIONS with anyone.’”

(Separate Statement in Support of Motion, 2-9.)

Plaintiff contends that Defendant should be ordered to produce the requested documents as they are “relevant to Chico’s affirmative defenses based on the UD action.” (Separate Statement in Support of Motion, 3.) Plaintiff points out Defendant in their 21st through 24th affirmative defenses, as explained in their interrogatory responses, identifies the UD action as an affirmative defense since it contends Plaintiff breached the lease by evicting Defendant without notice. (S.S. in Support, 3-4; Lee Decl. ¶8, Exh. 2.) Additionally, Plaintiff contends that all of the requested documents from Lourdes Jones are relevant because:

“Ms. Jones, the manager of the retail store (Store) Chico’s operated at the Premises, timely notified senior management about the ten day notice, UD action and other legal notices she received at the Store. For example, Ms. Jones sent an email to Angela Gamboa, the district sales manager, and the real estate department (realestate@chicos.com) at Chico’s headquarters about the UD action in time to respond to the action. (Chico’s bates stamp 503-504). However, Chico’s produced no other emails that show what Ms. Gamboa or others did or said in response to Ms. Jones’ email.” (S.S. in Support, 4; Lee Decl ¶¶9-10, Exh. 3.) (internal citations omitted)

Further, Plaintiff contends requests nos. 7-10 specifically relates to how “Shapell disputes this defense and seeks to prove senior management and counsel for Chico’s knew about the UD action in time to respond, but decided to relinquish possession and not respond to the UD action.” (S.S. in Support, 7.) Plaintiff contends as the question of notice was made relevant by the affirmative defenses, such documents must be ordered to be produced as “they are relevant to refuting [Defendant’s] defenses.” (Id.) Regarding requests nos. 11-14, Plaintiff contends they relate to “documents and communications regarding Chico’s failure to pay rent and the eviction proceedings.” (S.S. in Support, 9-10.) Plaintiff further contends, as for other requests, that any mention of privilege as the basis for an objection “requires Chico’s to provide a privilege log,” pursuant to CCP § 2031.240(c)(2). (S.S. in Support, 10.)

In opposition, Defendant makes the conclusory contention that requests nos. 1-6 are “not relevant.” (Response, 9.) Defendant further points to Shapell Socal Rental Properties, LLC v. Chico’s FAS, Inc. (2022) 85 Cal.App.5th, 198, 221 to contend the issue of failed notice “is res judicata.” (incorrectly cited as Shapell v. Socal Rental Properties, LLC v. Chico’s FAS, Inc. (2022) 84 Cal.App5th, 166) (Id.) In the Shapell opinion, the court notes:

“The obligation to advise opposing counsel of an impending default is part of an attorney's responsibility to the court and the legal profession and takes precedence over the obligation to represent the client effectively. (LaSalle, supra, 36 Cal.App.5th at pp. 134, 137.) ...

When Shapell had the Complaint served and when it sought to have a default and default judgment entered, it knew CFI was represented by counsel. By letter dated October 22, 2020, CFI's attorney, Angela V. Sayre, notified Shapell that the law firm of Foley & Mansfield represented CFI and requested Shapell to direct any communications regarding the Lease to that firm. The Complaint was filed and served in November 2020. Shapell's trial counsel did not communicate with Ms. Sayre, any other attorney at Foley & Mansfield, or anybody representing CFI, about the Complaint or service of it. On December 11, 2020, Shapell's counsel filed a request for entry of default and default judgment. Shapell's counsel did not communicate with Ms. Sayre, any other attorney at Foley & Mansfield, or anybody representing CFI, about the intent to file the request for entry of default and default judgment.

Neither Shapell nor its counsel deny knowing who was representing CFI when the Complaint and request for entry of default and default judgment were filed. Neither Shapell nor its counsel deny failing to warn CFI's counsel that Shapell intended to request a default judgment. In opposing the motion to set aside the default judgment, Shapell submitted a declaration from its counsel, Gregg A. Martin, and he said nothing about having communicated with CFI's counsel or anybody representing CFI before the request for entry of default and default judgment was filed, or at any time.

In addition, Shapell's counsel did not have the Complaint or the request for entry of default and default judgment served on or mailed to CFI's registered agent for service of process in California, CFI's corporate headquarters, or the address given in the Lease for service of notices to CFI. It would have been easy enough for Shapell's counsel to do so. As members of a profession and officers of the court, counsel had the responsibility to treat opposing counsel with “ ‘dignity, courtesy, and integrity.’ ” (LaSalle, supra, 36 Cal.App.5th at p. 134.) Here, “[d]ignity, courtesy, and integrity were conspicuously lacking.” (Ibid.)

As troubling as the ethical and statutory violations are, the refusal by Shapell and its counsel to acknowledge any duty to notify counsel for CFI before taking its default is even more troubling. In the respondent's brief, Shapell ignores its counsel's breach of ethics altogether. Instead, Shapell argues LaSalle is “procedurally, factually, and legally distinguishable” without once acknowledging the black-letter rule that an attorney has both an ethical and a statutory obligation to warn opposing counsel of an impending default. Even at oral argument, counsel for Shapell neither accepted responsibility, nor acknowledged its trial counsel's violation of the ethical and statutory duties confirmed by LaSalle.” (Shapell, supra, at 221; citing Lasalle v. Vogel, (2019) 36 Cal.App.5th 127.)

Thus, a reading of the Shapell decision shows this court that res judicata cannot bind Plaintiff’s discovery here, as it intends on refuting Defendant’s affirmative defenses that Plaintiff itself breached its contractual duties. The Shapell court’s ruling on the lack of notice to opposing counsel may help to determine some of the issues as it relates to the unlawful detainer action and possible eviction of Defendant, but it does not speak to whether Plaintiff breached the contract between the parties. Therefore, the court finds res judicata does not preclude these discovery requests.

Additionally, Defendant contends Plaintiff’s separate statement is noncompliant and would be unreasonably duplicative and cumulative as Defendant has already “responded to multiple sets of discovery on the issue of service of the unlawful detainer complaint.” (Response, 9-10.) Defendant repeats these arguments for requests nos. 7-10. (Response, 14-15.) Lastly, Defendant contends further production for requests nos. 11-14 should not be ordered as “it [is] not possible that Ms. Jones would have in her possession documents relating to Chico’s failure to pay rent and the eviction proceedings;” Plaintiff’s separate statement is again non-compliant; and the discovery would again be cumulative and unreasonably duplicative. (Response, 19-20.)

In reply, Plaintiff contends it does not seek to “depose Ms. Jones about its own honest mistake” and Defendant “neglects to mention that its PMQ claimed ignorance about, and Chico’s refuses to produce documents showing, what Chico’s managers did after learning about the UD action from Ms. Jones.” (Reply, 1-2.) Additionally, Plaintiff also contends Defendant has waived its objections since it did not object to Ms. Jones’ deposition as “irrelevant or cumulative.” (Reply, 2.) Plaintiff contends no showing of good cause was made to prevent the deposition from taking place. (Id.) Further, it contends “the deposition of Ms. Jones is likely to lead to the discovery of admissible evidence that Chico’s managers knew about the UD action but deliberately defaulted.” (Reply, 3-4.)

Further, Plaintiff contends Defendant’s request for a discovery referee should be denied as Defendant did not file a noticed motion, pursuant to CCP section 639. (Reply, 8.)

The court agrees that Defendant’s affirmative defenses of breach have made the unlawful detainer action relevant, and Plaintiff’s requests, as part of its intention to refute these affirmative defenses, are allowable. However, with regards to requests nos. 11-14, the court agrees with Defendant that the language of the request is overbroad and can lead to the discovery of inadmissible evidence, and Plaintiff has failed to show how such documents would be in the witness’s possession.

For these reasons, Plaintiff’s motion is denied as to requests nos. 11-14, and otherwise granted.

Sanctions

Pursuant to CCP § 2030.030, the court may impose sanctions against anyone “engaging in conduct that is a misuse of the discovery process.” Specifically, the court may impose a “monetary sanction ordering that one engaging in the misuse of the discovery process or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct.” (CCP § 2030.030, subd. (a).) Additionally, the court may impose issue sanctions, evidence sanctions, or terminating sanctions. (CCP § 2030.030(b)-(d).)

It is well established that the primary purpose of discovery sanctions is curative, not punitive. (Welgoss v. End (1967) 252 Cal.App.2d 982, 992; Caryl Richards, Inc. v. Superior Court (1961) 188 Cal.App.2d 300, 303-304.) Generally, the discovery statutes evince an incremental approach to sanctions, starting with monetary sanctions and ending with the ultimate sanction of dismissal. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.) “Although in extreme cases a court has the authority to order a terminating sanction as a first measure [citations], a terminating sanction should generally not be imposed until the court has attempted less severe alternatives and found them to be unsuccessful and/or the record clearly shows lesser sanctions would be ineffective.” (Lopez v. Watchtower Bible and Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604-605 (Lopez).)

Plaintiff also seeks monetary sanctions in the amount of $14,140.25 in connection with this motion on the grounds that Defendant’s refusal to produce Ms. Jones without substantial justification constitutes misuse, as well as Defendant’s alleged bad faith conduct “in deposing [Plaintiff’s] fact witnesses but categorically refusing to provide any of its own fact witnesses for deposition.” (Motion, 9-10; Lee Decl. ¶¶23-26.)

Lee attests she has discounted her own rate to $485 per hour for this motion, and has spent at least 7.2 hours for this motion. (Lee Decl. ¶ 23.) Lee further attests that she will spend more than 6.1 hours in reviewing opposing papers and preparing a reply . (Lee Decl. ¶ 27.) At the time of Lee’s declaration in support of Plaintiff’s original motion, Lee attests that Lori Werderitch, a partner of the firm, spent 4.3 hours on this motion at a rate of $650.00 per hour; and Vera Serova, an associate, spent 1 hour on this motion at a rate of $400 per hour. (Lee Decl. ¶¶ 24-25.) Lee therefore requests a total of $14,140.25 in connection with this motion.

The court is not inclined to issue monetary sanctions in connection with this motion. As noted above, the primary purpose of discovery sanctions is curative, not punitive. (Welgoss v. End (1967) 252 Cal.App.2d 982, 992). The court concludes that any sanctions imposed as a result of this motion would have a punitive rather than curative effect.

Conclusion

Plaintiff’s motion is denied as to requests 11-14, and otherwise granted. Defendant is ordered to serve verified, supplemental responses and produce documents within 30 days of this date. Plaintiff’s request for sanctions is denied. Plaintiff is to give notice.

MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION AT DEPOSITION OF EMPLOYEE ANGELA GAMBOA

Meet and Confer Efforts

A motion to compel further responses “shall be accompanied by a meet and confer declaration.” (CCP § 2030.300(b)(1).) The declaration must state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented in the motion. (CCP § 2016.040.) “[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.)

The Lee Declaration is insufficient here for purposes of CCP § 2030.300 for the same reasoning as outlined above.

Discussion

I. Legal Authority

CCP § 2025.480, provides in relevant part:¿¿

II. Analysis

Plaintiff moves for an order compelling further responses to the following requests for production at deposition:

No. 1: All COMMUNICATIONS with anyone regarding the 10 DAY NOTICE including any person working for CHICO’S.

No. 2: All DOCUMENTS regarding the 10 DAY NOTICE.

No. 3: The 10/23/20 EMAIL

No. 4: ALL COMMUNICATIONS that YOU sent forwarding, responding to or concerning the 10/23/20 EMAIL.

No. 5: All other COMMUNICATIONS with anyone regarding the 10/23/20 EMAIL.

No. 6: All COMMUNICATIONS evidencing, summarizing or reflecting all person(s) at CHICO’S who received, directly or indirectly, the 10/23/20 EMAIL.

No. 7: All COMMUNICATIONS with anyone regarding the UD ACTION including any person working for CHICO’S.

No. 8: All DOCUMENTS regarding the UD ACTION.

No.9: The 11/21/20 EMAIL.

No. 10: All COMMUNICATIONS that YOU sent forwarding, responding to or concerning the 11/21/20 EMAIL.

No. 11: All other COMMUNICATIONS with anyone regarding the 11/21/20 EMAIL.

No. 12: All COMMUNICATIONS evidencing, summarizing or reflecting all person(s) at CHICO’S who received, directly or indirectly, the 11/21/20 EMAIL.

No. 13: All COMMUNICATIONS that YOU sent to Lourdes Jones from October 1, 2020 through June 30, 2020[sic].

No. 14: All COMMUNICATIONS that YOU received to Lourdes Jones from October 1, 2020 through June 30, 2020[sic].

No. 15: All COMMUNICATIONS that YOU had with anyone at CHICO’S that mention, reference or concern Lourdes Jones from October 1, 2020 through June 30, 2020[sic].

No. 16: All COMMUNICATIONS with anyone regarding any LEGAL NOTICE concerning the STORE during the time period from January 1, 2020 through June 30, 2021.

No. 17: All DOCUMENTS regarding any LEGAL NOTICE concerning the STORE during the time period from January 1, 2020 through June 30, 2021.

No. 18: All COMMUNICATIONS with anyone regarding whom to contact upon receiving any LEGAL NOTICE concerning the STORE during the time period from January 1, 2020 through June 30, 2021.

No. 19: All DOCUMENTS regarding whom to contact upon receiving any LEGAL NOTICE concerning the STORE during the time period from January 1, 2020 through June 30, 2021.

No. 20: All COMMUNICATIONS with anyone regarding what actions to take upon receiving any LEGAL NOTICES concerning the STORE during the time period from January 1, 2020 through June 30, 2021.

No. 21: All DOCUMENTS regarding what actions to take upon receiving any LEGAL NOTICE concerning the STORE during the time period from January 1, 2020 through June 30, 2021.

No. 22: All COMMUNICATIONS with anyone regarding CHICO’S failure to pay rent for the STORE during the time period from January 1, 2020 through June 30, 2021.

No. 23: All DOCUMENTS regarding CHICO’S failure to pay rent for the STORE during the time period from January 1, 2020 through June 30, 2021.

No. 24: All COMMUNICATIONS with anyone regarding the proceedings to evict CHICO’S from the STORE during the time period from January 1, 2020 through June 30, 2021.

No. 25: All DOCUMENTS regarding the proceedings to evict CHICO’S from the STORE during the time period from January 1, 2020 through June 30, 2021.

No. 26: All COMMUNICATIONS with anyone at CHICO’S regarding CHICO’S plans to close the STORE.

No. 27: All DOCUMENTS regarding CHICO’S plans to close the STORE.

No. 28: All COMMUNICATIONS with anyone at CHICO’S regarding the STORE’s sales performance for the years 2019, 2020 and 2021.

No. 29: All DOCUMENTS regarding the STORE’s sales performance for the years 2019, 2020 and 2021.

(Separate Statement in Support of Motion, 1-12.) According to Plaintiff, Defendant served general objections, as follows:

To requests nos. 1-15

“Plaintiff has failed to describe with reasonable particularity the category of items sought. (C.C.P. § 2031.030.) Chico’s objects to this request, as it calls for disclosure of information protected by the attorney-client privilege, work-product privilege, or other applicable privileges as provided by statute or common law, and will not disclose such information, in that it calls for ‘all COMMUNICATIONS with anyone.’ Chico’s further objects to this request as seeking information not in any way related to the lease at issue in Plaintiff’s Complaint. Chico’s further objects that this request seeks information outside of the possession, custody and control of this witness. Chico’s objects that this request is sent solely to harass and embarrass this witness and Chico’s. Chico’s objects that this request is not relevant to any issue dispute in this breach of contract action and not reasonably calculated to lead to the discovery of admissible evidence. This request calls for a legal conclusion. The request is grossly overbroad.”

To requests nos. 16-29

“Plaintiff has failed to describe with reasonable particularity the category of items sought. (C.C.P. § 2031.030.) Chico’s objects to this request, as it calls for disclosure of information protected by the attorney-client privilege, work-product privilege, or other applicable privileges as provided by statute or common law, and will not disclose such information, in that it calls for ‘All COMMUNICATIONS with anyone.’ Chico’s further objects to this request as seeking information not in any way related to the lease at issue in Plaintiff’s Complaint. Chico’s further objects that this request seeks information outside of the possession, custody and control of this witness. Chico’s objects that this request is sent solely to harass and embarrass this witness and Chico’s. Chico’s objects that this request is not relevant to any issue dispute in this breach of contract action and not reasonably calculated to lead to the discovery of admissible evidence. This request calls for a legal conclusion.”

(Id.)

As stated above, Plaintiff contends that the deponent should be ordered to produce the requested documents as they are “relevant to Chico’s affirmative defenses based on the UD action.” (Separate Statement in Support of Motion, 3-5.) Plaintiff repeats arguments for the production of documents, in nearly identical fashion as the motion regarding Ms. Jones’ deposition above. (S.S. in Support, 3-12.) Plaintiff points out Ms. Jones reported to Ms. Gamboa, and as such, these requests are relevant to refuting Defendant’s affirmative defenses again. (Motion, 2-4.) As the two witnesses were Defendant’s employees in the California location at the Property, Plaintiff contend they both have personal knowledge and can be deposed. (Motion, 6-7.) Further, good cause again exists for these requests for documents from both employees. (Motion, 7-9.)

In opposition, Defendant again makes the conclusory contention that the requests are not relevant. (Response, 13.) Defendant again further points to Shapell Socal Rental Properties, LLC v. Chico’s FAS, Inc. (2022) 85 Cal.App.5th, 198, 221 to contend the issue of failed notice “is res judicata.” (incorrectly cited as Shapell v. Socal Rental Properties, LLC v. Chico’s FAS, Inc. (2022) 84 Cal.App5th, 166) (Id.)

As explained above, the court here again finds res judicata does not preclude these discovery requests.

Additionally, Defendant contends Plaintiff’s separate statement is noncompliant and would be unreasonably duplicative and cumulative as Defendant has already “responded to multiple sets of discovery on the issue of service of the unlawful detainer complaint.” (Response, 13-26.) Defendant repeats these arguments for all requests. (Id.) Lastly, Defendant contends further production for these requests should not be ordered as “it [is] not possible that Ms. Gamboa would have in her possession documents relating to Chico’s failure to pay rent and the eviction proceedings;” Plaintiff’s separate statement is again non-complaint; and the discovery would again be cumulative and unreasonably duplicative. (Id.)

As detailed above, the court agrees with Defendant’s objections as to requests 22-26, 28, and 29 as Plaintiff has not shown how witnesses would have possession of such documents, or that the requests are not overbroad. The court again agrees that Defendant’s affirmative defenses of breach have made the unlawful detainer action relevant, and Plaintiff’s requests, as part of its intention to refute these affirmative defenses, are allowable. However, with regards to requests nos. 3, 5, 9, and 11, the court also agrees with Defendant that the requests here will lead to duplicative discovery since Defendant has already provided such records and Plaintiff has failed to show these requests to not be overbroad.

For these reasons, Plaintiff’s motion is denied as to requests nos. 3, 5, 9, 11, 22-26, 28, and 29, and otherwise granted.

Sanctions

Pursuant to CCP § 2030.030, the court may impose sanctions against anyone “engaging in conduct that is a misuse of the discovery process.” Specifically, the court may impose a “monetary sanction ordering that one engaging in the misuse of the discovery process or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct.” (CCP § 2030.030(a).) Additionally, the court may impose issue sanctions, evidence sanctions, or terminating sanctions. (CCP § 2030.030(b)-(d).)

Plaintiff also seeks monetary sanctions in the amount of $ 11,715.25 in connection with this motion on the grounds that Defendant’s refusal to produce Ms. Gamboa without substantial justification constitutes misuse, as well as Defendant’s alleged bad faith conduct “in deposing [Plaintiff’s] fact witnesses but categorically refusing to provide any of its own fact witnesses for deposition.” (Motion, 9-10; Lee Decl. ¶¶15-26.) Further, Plaintiff points to Defendant’s refusal to meet and confer, and refusal to engage with Plaintiff in informal methods of resolving this dispute as justification for such sanctions of fees. (Motion, 10.)

Lee again attests she has discounted her own rate to $485 per hour for this motion, and has spent at least 2.2 hours for this motion. (Lee Decl. ¶ 23.) Lee again further attests that she will spend more than 6.1 hours in reviewing opposing papers and preparing a reply . (Lee Decl. ¶ 27.) At the time of Lee’s declaration in support of Plaintiff’s original motion, Lee attests that Lori Werderitch, a partner of the firm, spent 4.3 hours on this motion at a rate of $650.00 per hour; and Vera Serova, an associate, spent 1 hour on this motion at a rate of $400 per hour. (Lee Decl. ¶¶ 24-25.) Lee therefore requests a total of $11,715.25 in connection with this motion.

Conclusion

Plaintiff’s motion is denied as to requests nos. 3, 5, 9, 11, 22-26, 28, and 29, and otherwise granted. Defendant is ordered to serve verified, supplemental responses and produce documents within 30 days of this date. Plaintiff’s request for sanctions is denied. Plaintiff is to give notice.