Judge: Gregory Keosian, Case: 20STCV34135, Date: 2023-01-18 Tentative Ruling
Case Number: 20STCV34135 Hearing Date: January 18, 2023 Dept: 61
Plaintiff James Arend II’s Motions
to Compel Further Responses to Form and Special Interrogatories from Defendants
David and Kira Sardy are GRANTED as to Form Interrogatories No. 305.1, 305.3, 305.11, 311.3, 313.2, and
324.1, and Special Interrogatories No. 51, 149–152, and 190, and DENIED as to all other interrogatories.
No sanctions are awarded.
I.
MOTIONS
TO COMPEL FURTHER
“Any party may obtain discovery . . . by propounding to any other party to
the action written interrogatories to be answered under oath.” (Code Civ. Proc., § 2030.010(a).) If a
propounding party is not satisfied with the response served by a responding
party, the former may move the court to compel further interrogatory
responses. (Code Civ. Proc., § 2030.300;
Sinaiko Healthcare Consulting, Inc. v.
Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403.) The propounding party must demonstrate that the
responses were incomplete, inadequate or evasive, or that the responding party
asserted objections that are either without merit or too general. (Code Civ. Proc., § 2030.300(a)(1)–(3); Sinaiko Healthcare Consulting, Inc., supra, 148 Cal.App.4th at 403.)
Plaintiff James Arend (Plaintiff) moves to
compel further responses from Defendants David and Kira Sardy (Defendants) to
Form Interrogatories No. 305.1, 305.3, 305.11, 305.14, 311.3, 313.2, 314.2, and
324.1, and Special Interrogatories No. 13, 17, 21, 29, 33, 37, 41, 45, 49, 51,
53, 57, 65, 109, 114, 142, 149, 150–152, 160, 166, 168, 172, 176, 180, 189, and
190. The basis for these motions is Plaintiff’s contention that Defendants have
offered conclusory and evasive responses to the interrogatories at issue.
Defendants in opposition, meanwhile, argue that their responses are substantive
and code-compliant.
Interrogatory
No. 305.1
This interrogatory asked Defendants to state
whether they attributed any damages to the construction that was the basis of their
claim, and if so to state, among other things, the amount of damage claimed and
how it was calculated. (Separate Statement at p. 2.) Although Defendants have
provided an itemization of damages and the amounts sought therefore, Plaintiff
contends that they have not stated how each item of damages was calculated.
(Separate Statement at p. 10.) Although Defendants in opposition argue that
they have provided a “calculation” of damages, this is not the calculation
contemplated by the interrogatory, which seeks damages “for each piece of
subject property” that Defendants claim, and also “how the amount was
calculated,” i.e., how each item of damages was calculated. (Separate Statement
at p. 2.) Plaintiff’s response lists items and amounts, but does not explain
how each amount was calculated. Thus the motion is GRANTED as to Interrogatory
No. 305.1.
Interrogatory
No. 305.3
This interrogatory asked after any written
estimates or evaluations made for items of loss described in interrogatory
305.1, specifically for the identity of the evaluators, their estimates, and
the basis for same. (Separate Statement at pp. 10–11.) Defendants responses
listed evaluators and their estimated amounts, but Plaintiff objects that this
response does not add up to the total damages amount claimed by Plaintiff, and
that Defendants do not list the rationale for each evaluation, as the
interrogatory calls for. (Separate Statement at pp. 12–13.) Defendants in
opposition argue that there is no necessary correlation between the total amount
stated in this interrogatory and their overall damages amount, but do not
explain why they are unable to offer the rationales for the evaluations cited,
as requested by the interrogatory. Opposition at p. 5.) The motion is therefore
GRANTED as to Interrogatory No. 305.3.
Interrogatory
No. 305.11
This interrogatory asked Defendants to
identify with respect to each problem or defect claimed by them to state the
nature of the problem, the date they became aware of it, their actions taken in
response to it, and the actions taken by other parties to the litigation.
(Separate Statement at p. 13.) While Defendants listed the nature of the
problems and stated they became aware of them in 2022, their response as to
actions taken in response to them were not specific, stating that “several” of
the problems were reported and not addressed, offering specifics only as to the
floor heater defect and the garbage disposal, (Separate Statement at p. 19.) As
this response does not address the specific call of the interrogatory, a
further response is required, and the motion is GRANTED as to Interrogatory No.
305.11.
Interrogatory
No. 305.14
This interrogatory asked Defendants to
identify any insurance or warranty claims made in this case and to whom. Defendants
identified one Jesse Aguilar of Servpro of Westlake, which Plaintiff claims is
not an insurance company susceptible to such a claim. (Separate Statement at
pp. 20–21.) Defendants in opposition stand by this response. (Opposition at pp.
6–7.) Plaintiff argues that this is an improbable position, but lacks evidence
to suggest otherwise, and may pursue this matter in further discovery. Thus the
motion is DENIED as to Interrogatory No. 305.14.
Interrogatory
No. 311.3
This interrogatory asked Defendants to
identify and provide contact information for anyone who made a report
concerning Defendants’ construction claims, when the report was made, for whom
it was made, and who possesses it. (Separate Statement at p. 21.) Defendants
offered the identity of the report-makers and their subjects, but did not
include for whom the reports were made, when, or who possesses them. (Separate
Statement at p. 21.) Defendants characterize Plaintiff’s objections on this
point as a matter of form, but in fact they have not provided the information
requested. (Opposition at p. 7.) The motion is thus GRANTED as to Interrogatory
No. 311.3.
Interrogatory
No. 313.2
This interrogatory asked Defendants to
describe “each specific concealment and misrepresentation” that they claim in
this matter, and to identify the facts, witnesses, and documents supporting
each concealment. (Separate Statement at p. 22.) Defendants in response did not
discuss concealments or misrepresentations, but rather list the defects
associated with the property. (Separate Statement at pp. 22–29.) Defendants in
opposition argue that this is responsive, as they have identified the “items of
work that they found deficient which Plaintiff apparently tried to conceal or
otherwise represent was compliant with the Contract requirements.” (Opposition
at pp. 7–8.) But this argument only confirms Defendants’ awareness of
circumstances separate from the defects themselves that are material to
Defendants’ concealment claims, i.e. Plaintiff’s alleged attempts to conceal
the listed defects and make misrepresentations concerning them. It is the
relation of these circumstances that the interrogatory calls for, which
Defendants have not provided. The motion is GRANTED as to Interrogatory No. 313.2.
Interrogatory
No. 314.2
This interrogatory asked Defendants to
identify each alleged breach of the agreement. (Separate Statement at p. 30.)
Defendants provided a list of the defects alleged in the construction.
(Separate Statement at pp. 30–36.) This response is responsive, and the motion
is DENIED as to Interrogatory No. 314.2.
Interrogatory
No. 324.1
This
interrogatory asks Defendants to provide facts and evidence supporting the
denials and affirmative defenses raised in Defendants’ answer. (Separate
Statement at p. 36.) Defendants provided only one omnibus response purporting
to support every contention in their answer, which consists of a repetition of
their list of damaged items, identification of report authors, and a single
list of documents. (Separate Statement at pp. 36–48.) The call of this
interrogatory was to seek information supporting the affirmative defenses
listed in Defendants’ answer, not a single broad outline of Defendants’ overall
case. The motion is GRANTED as to Interrogatory No. 324.1.
In summary
the motions to compel further responses to form interrogatories are GRANTED as
to Interrogatories No. 305.1,
305.3, 305.11, 311.3, 313.2, and 324.1, and DENIED as to No. 305.14 and 314.2.
This leaves the special interrogatories,
which are of a more uniform character. Of the special interrogatories at issue,
Interrogatories No. 13, 17, 21, 29, 33, 37, 41, 45, 49, 53, 57, 65, 109,
114, 142, 160, 168, 172, 176, 180, and 189, asked Defendants to identify
documents supporting particular contentions. Defendants, in response to each,
have identified documents, either by name or by page number. But Plaintiff
claims that the names are not sufficiently specific, or that the pages
identified do not address the interrogatory.
However,
Plaintiff’s motion as to these interrogatories is ill-supported. Although
Plaintiff contends repeatedly that Defendants have not identified the documents
with the specificity required of Code of Civil Procedure § 2030.230, this
statute applies when a party refers a propounding party to documents in lieu of
preparing a compilation or summary from those same documents in response to an
interrogatory. (Code Civ. Proc. § 2030.230.) Here, Defendants refer Plaintiff
to documents because the interrogatories at issue ask Defendants to identify
documents. As to certain interrogatories, Plaintiff contends that Defendants
have identified non-responsive documents, but does not present evidence of the
non-conformity save for the contention itself. Accordingly, the motion is
DENIED as to these interrogatories.
The other
interrogatories are of a different nature. Interrogatories No. 51 and 166 ask
for facts supporting two contentions: that Plaintiff failed to timely complete
the project, and failed to complete the work required under the contract.
(Separate Statement at pp. 18, 40.) To these interrogatories, Defendants
provided the same list of defects seen elsewhere in Defendants’ discovery. This
response is compliant as to Interrogatory No. 166, but not as to No. 51; the
former is reasonably read to concern the quality of Plaintiff’s work, and is
thus answered by the list of defects, while the latter explicitly concerns the
timing thereof, which the list does not answer. Accordingly, the motion is
GRANTED as to Special Interrogatory No. 51, and DENIED as to Interrogatory No.
166.
Interrogatory
No. 190 asked Defendants to identify the costs of any repairs claimed in their
cross-complaint, to which Defendants responded by referring to a “list of Sardy
expenses that is being produced in Responding Party’s document production.”
(Separate Statement at p. 57.) Unlike other interrogatories related to
documents, this is actually an instance in which Defendants are responding by
reference to a document under Code of Civil Procedure § 2030.230. Here,
Plaintiff is correct that the reference to a list of expenses somewhere in the
document production, without reference to page numbers or what request it
addresses, is not sufficiently specific. The motion is therefore GRANTED as to
Special Interrogatory No. 190.
This leaves Special Interrogatories No. 149–152. Interrogatory No. 149
asked Defendants whether they contended there were any defects in Plaintiff’s
hillside grading work, to which Defendants responded that they cannot answer
because they lack the expertise to investigate the hillside grading work.
(Separate Statement at pp. 36.) Interrogatories No. 150–152 ask for facts and
evidence supporting any contention that the grading work was defective, to
which Defendants stated that the questions were “not applicable.” (Separate
Statement at pp. 36–38.) The court agrees with Plaintiff that these responses
are evasive. These interrogatories do not ask for any expert opinion — as
Defendants contend in opposition (Opposition at p. 6) — but simply whether Defendants
are making a contention in this case. Interrogatories may inquire into “whether another party is
making a certain contention, or to the facts, witnesses, and writings on which
a contention is based.” (Code Civ. Proc., § 2030.010, subd. (b).) Such were the
interrogatories here.
Nor are such
interrogatories made objectionable “because an answer to it involves an opinion
or contention that relates to fact or the application of law to fact, or would
be based on information obtained or legal theories developed in anticipation of
litigation or in preparation for trial.” (Code Civ. Proc. § 2030.010, subd.
(b).) Plaintiff propounded a permissible contention interrogatory, and
Defendants were obligated by the Discovery Act to “make a reasonable and
good faith effort to obtain the information by inquiry to other natural persons
or organizations,” and thereafter provide a response “as complete and
straightforward as the information reasonably available to the responding party
permits.” (Code Civ. Proc. § 2030.220, subd. (a), (c).) They have not done so,
and the motion is GRANTED as to Interrogatories No. 149–152.
Thus the motions to compel further are GRANTED as to Special
Interrogatories No. 51, 149–152, and 190, and DENIED as to Interrogatories
No. 13, 17, 21, 29, 33, 37, 41, 45, 49, 53, 57,
65, 109, 114, 142, 160, 168, 172, 176, 180, and 189.
II. SANCTIONS
Statute provides that the court shall impose sanctions upon
a party who unsuccessfully makes or opposes a motion to compel further response
to interrogatories, requests for production of documents, or requests for
admission, absent substantial justification otherwise. (Code Civ. Proc. §§
2030.300, subd. (d); 2031.310, subd. (h); 2033.290, subd. (d).)
Plaintiff asks for a total of $7,463.00 in
sanctions in connection with the four motions, representing 37 hours of work at
a rate of $195 per hour. (Navarette Decl. ¶ 13.) Defendants seek $3,540.00,
representing ten hours of attorney work at $370 and $370 per hour. (Sire Decl.
¶ 14.)
No sanctions
are awarded, as both parties have obtained partial relief on these motions.