Judge Gregory Keosian, Case 21STCV39697 2022-10-24 Tentative Ruling

Judge: Gregory Keosian, Case: 21STCV39697, Date: 2022-10-24 Tentative Ruling

Case Number: 21STCV39697 Hearing Date: October 24, 2022 Dept: 61

Plaintiff Joshua Greer’s Motion to Compel Further Responses to Requests for Production, Requests for Admission, and Form and Special Interrogatories from Defendant Joe Penich is GRANTED as to Form Interrogatory No. 17.1, Special Interrogatories No. 10, 13, 17, 27, and 30; Requests for Production No. 6, 8, 9, 13, 14, 18, 20, 37, and 38; and Requests for Admission No. 9, 20, and 22–27. The motion is DENIED as to Form Interrogatory No. 12.1.

Sanctions are awarded against Defendant and his counsel in the amount of $3,600.

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.)

“A party may demand that any other party produce . . . a document that is in the possession, custody, or control of the party on whom the demand is made.” (Code Civ. Proc., § 2031.010(b).) The demanding party may move for an order compelling further response to the demand if the demanding party deems that (1) a statement of compliance with the demand is incomplete, (2) a representation of inability to comply is inadequate, incomplete, or evasive, or (3) an objection in the response is without merit or too general. (Code Civ. Proc., § 2031.310(a).) “The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand,” and “[t]he motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2031.310(b).)

A motion to compel a further response to an inspection demand must set forth specific facts showing “good cause” justifying the discovery sought by the inspection demand. (Code Civ. Proc., § 2031.310(b)(1); Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.) Unless there is a legitimate privilege issue or claim of attorney work product, that burden is met simply by a fact-specific showing of relevance. (TBG Ins. Services Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 444.) Once the moving party demonstrates good cause for the discovery, the burden is on the responding party to justify any objection or failure to fully respond to the inspection demand. (Coy v Superior Court (1962) 58 Cal.2d 210, 220.)

Plaintiff Joshua Greer (Plaintiff) moves to compel further responses to Form Interrogatories No. 12.1 and 17.1, Special Interrogatories No. 10, 13, 17, 27, 30, Requests for Production No. 6, 8, 9, 13, 14, 18, 20, 37, and 38, and Requests for Admission No. 9, 20, and 22–27.

Defendant Joe Penich (Defendant) objects that Plaintiff failed to meet and confer before filing this motion, which he contends is a procedurally improper combination of multiple discovery motions into one omnibus filing. (Opposition at pp. 3–4.)

The parties here adequately met and conferred before filing the present motion. Plaintiff served a meet-and-confer letter following Defendant’s initial responses, and then another letter after supplemental responses were served. (Ackerman Decl. ¶¶ 4, 6, Exhs. I, M.) Although Defendant argues that an IDC should have been reserved, Plaintiff offers a reasonable explanation as to why an IDC was considered and rejected, given the difficulties in reserving a prompt IDC (Ackerman Decl. ¶ 8.)

Defendant argues that this motion impermissibly combines four discovery motions into one. It is true attempts to compel further responses to separate discovery requests generally require separate motions for separate requests. Although there is no rule independently stating that a party cannot combine in a single filing what are here four separate motions to compel further to four separate discovery requests, there is no universal statutory authority to compel further responses to discovery in general, but rather several independent statutes authorizing and regulating — separately — motions to compel further responses to interrogatories, motions to compel further responses to requests for production, and motions to compel further responses to requests for admission. (See Code Civ. Proc. §§ 2030.300, 2031.310, 2033.290.) This pattern repeats in CRC rule 3.1345, which requires separate statements for motions to compel further responses to requests for admission, interrogatories, and inspection demands, each motion listed separately. (See CRC Rule 3.1345, subd. (a).) This separate regulation is sensible, as the alternative would provide no effective limits to what a party could demand a court consider in a single discovery motion and thereby compromise the court’s ability to control its calendar. Such an approach is contradicted by statutory authority and supported by a leading treatise:

Motions to compel compliance with separate discovery requests ordinarily should be filed separately. But they may be joined where the requests are so interrelated as to make separate motions wholly inefficient (e.g., where several defendants have all failed to answer the same set of interrogatories).

(Weil & Brown, et al., Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2019) Chapter 8F, ¶ 8:1140.1.)

Here, the court will exercise its discretion to consider all the discovery requests at issue in the motion.

Plaintiff argues that Defendant’s responses to Form Interrogatory No. 12.1 are deficient because, although asked to provide the contact information for witnesses with pertinent knowledge, he failed to identify any of the many maintenance workers who were called to address issues on the subject property. (Separate Statement at pp. 7–8.) Plaintiff also argues that Defendant’s responses to Interrogatory No. 17.1 fail to identify pertinent documents, despite the fact that Plaintiff has produced pertinent documents relevant to each category in discovery. (Separate Statement at p. 8.)

Defendant, however, claims to have provided supplemental responses concurrent with his opposition. (Opposition at p. 2; Carpenter Decl. Exhs. B, C.) This supplemental response addresses only Form Interrogatory No. 12.1, and refers to various Bates-numbered documents indicating correspondence with maintenance workers called to perform work on the property. (Carpenter Decl. Exh. B.) Plaintiff in reply contends that this information represents “but a fraction of the maintenance issues which occurred during the tenancy,” but presents no evidence to support this contention. (Reply at p. 5.)

As to Interrogatory No. 17.1, which asked Defendant to identify facts and evidence supporting its denials of Plaintiff’s requests for admissions, Plaintiff identifies the deficiency as Defendant’s repeated insistence that it could not locate a pertinent email or communication referred to in the associated request for admission, even though said emails have already been produced to Defendant in discovery. (Separate Statement at p. 8.) Defendant does not dispute that he now possesses the emails in question, but argues that he should not be made to comb through a separate production to respond to a request for admission or interrogatory. (Opposition at pp. 5–6.)

Defendant’s argument is unpersuasive. Responses to interrogatories must be based on “information reasonably available to the responding party.” (Code Civ. Proc. § 2030.220, subd. (a).) (Code Civ. Proc., § 2030.220, subd. (a).) Documents produced to the responding party are reasonably available to it, and are therefore a proper source of information to consult in responding to interrogatories.

The motion is therefore GRANTED as to Interrogatory No. 17.1, and DENIED as to 12.1.

The Special Interrogatories at issue are Nos. 10, 13, 17, 27, and 30. These requests ask Defendant to identify: Plaintiff’s complaints, Defendant’s repairs, other tenants’ complaints, and maintenance performed specifically regarding shower and carbon monoxide issues. (Separate Statement at pp. 10–12.) Plaintiff contends that Defendant has omitted several complaints made by Plaintiff, as evidenced in the declaration of Joshua Greer, and has failed to produce documents related to repairs that Plaintiff testifies occurred during his tenancy. (Separate Statement at pp. 13–15.)

Plaintiff’s declaration suggests that Defendant’s responses to these interrogatories are not full and complete. Plaintiff testifies to numerous issues he raised to Defendant (Greer Decl. ¶ 3) and to various instances in which Defendant called in maintenance to perform work on these issues. (Greer Decl. ¶¶ 4–5.) Despite being in the best position to describe the maintenance performed and to identify the parties called to perform it, Defendant’s responses are evasive, point to singular emails identifying a “response to allegations,” or simply state that the answer is “unknown.” (Separate Statement at pp. 10–12.) Although Defendant has produced a supplemental response to Interrogatory No. 30, this interrogatory does not respond in the detail demanded, and does not identify the dates or individuals who performed the work, or the nature of the work performed. (Opposition Exh. C.)

The motion is therefore GRANTED as to Special Interrogatories No. 10, 13, 17, 27, and 30.

The Requests for Production at issue here are No. 6, 8, 9, 13, 14, 18, 20, 37, and 38. These requests seek communications between Defendant and Plaintiff; communications between Defendant and others about Plaintiff and the property; the property management agreement; documents related to property maintenance; and documents related to security camera and DVR maintenance. (Separate Statement at pp. 18–22.) Plaintiff contends that, despite the existence of text messages between Plaintiff and Defendant, and the existence of internal messages forwarded by Defendant’s manager to Plaintiff, Defendant has produced no text messages or similar documents. (Separate Statement at pp. 22–23; Greer Decl. ¶ 4.) Plaintiff also contends that the maintenance invoices that Defendant refers to in response refer mainly to repairs conducted after the conclusion of the lease period, and do not include documents related to other maintenance performed on the property. (Separate Statement at pp. 23–24.) Finally, as to Requests No. 37 and 38, Defendant attempted to offer a statement of inability to comply under Code of Civil Procedure § 2031.230, Plaintiff himself possesses documents from Defendant on the subjects at issue, indicating that Defendant should possess the same.

Further responses are required. Plaintiff has presented credible and unrebutted evidence that more responsive documents exist in Defendant’s possession which have not been produced. Plaintiff is also correct that Defendant’s responses to Requests No. 37 and 38 are defective, in that although they disclaim possession of responsive documents, they do not “specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party.” (Code Civ. Proc., § 2031.230.)

The motion is therefore GRANTED as to the Requests for Production No. 6, 8, 9, 13, 14, 18, 20, 37, and 38.

This leaves Requests for Admission No. 9, 20, and 22–27. These requests asked Defendant do admit that he sent or received various specified communications. Defendant responded to Request No. 9 — which asked him to admit that he was notified of a problem with a shower in January 2021 — with an admission that he was “notified of a shower problem at some point.” (Separate Statement at p. 27.) To the others, Defendant responded that “the information known or readily obtainable is insufficient to enable that party to admit the matter.” (Separate Statement at pp. 27–29.)

Further responses are required. A response to a request for admission “shall answer the substance of the requested admission, or set forth an objection to the particular request.” (Code Civ. Proc., § 2033.210, subd. (a).) “Each answer in a response to requests for admission shall be as complete and straightforward as the information reasonably available to the responding party permits.” (Code Civ. Proc., § 2033.220, subd. (a).) Defendant’s response to Request No. 9 that it was notified “at some point” of a shower problem is not complete or straightforward. Likewise, And although Defendant’s responses to the other requests are nominally in compliance with Code of Civil Procedure § 2033.220, subd. (c), which allows a party to state they lack sufficient information to admit a matter, Defendant in opposition acknowledges that it is in possession of Plaintiff’s document production, containing the communications in question, and argues that it was not obligated to review that production in making its response. (Opposition at pp. 8–9.) This argument fails, as the documents provided to Defendant in discovery are among the “information known or readily obtainable” to the responding party. (Code Civ. Proc. § 2033.220, subd. (c).)

The motion is therefore GRANTED as to Requests for Admission No. 9, 20, and 22–27.

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 sanctions in the amount of $6,840.00, representing 15.2 hours of attorney work at $450 per hour, against Defendant and his counsel. (Ackerman Decl. ¶ 10.) Sanctions are awarded against Defendant in the amount of $3,600 representing 8 hours.