Judge: H. Jay Ford, III, Case: 23SMUD02481, Date: 2024-01-30 Tentative Ruling

Case Number: 23SMUD02481    Hearing Date: January 30, 2024    Dept: O

Case Name:  Barrington Pacific, LLC v. Avy Jozay

SUBJECT:                 MOTION FOR PROTECTIVE ORDER

MOVING PARTY:   Plaintiff Barrington Pacific, LLC

RESP. PARTY:         Defendant Avy Jozay

TENTATIVE RULING

            Plaintiff Barrington Pacific, LLC’s (“Barrington Pacific”) Motion for Protective Order is DENIED. Defendant Avy Jozay’s discovery requests are reasonably calculated to lead to discovery of admissible evidence regarding Plaintiff Barrington Pacific, LLC’s intent when it made the decision to withdraw the Property at issue from the rental market.

            Defendant Avy Jozay’s Request for Judicial Notice is GRANTED as to the existence of the Complaint filed in Barrington Pacific, LLC v. Endurance American Specialty Ins. Co., et al., LASC Case No. 23STCV23944 dated 10/02/2023, but not the truth of the allegations therein.

            Plaintiff Barrington Pacific, LLC’s objection to the September 17, 2020 email from Emma Garcia to Roberto Aldape is SUSTAINED.

            Defendant Avy Jozay’s foundation objections to Barrington’s counsel’s estimates of the time and cost to produce the documents sought by Plaintiff are SUSTAINED. (Portions of paragraphs 11-14 of the declaration of Shannon Dudic.) (“[A] boilerplate sentence, ‘If called as a witness I could and would competently testify under oath to the above facts which are personally known to me,’ is not sufficient to establish personal knowledge. (Citation.) ‘Where the facts stated do not themselves show it, such bare statement of the affiant has no redeeming value and should be ignored.’ ”).”  Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 168–169

REASONING

            “California law provides parties with expansive discovery rights.” (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 590.) The concept of relevance in the discovery context is broader than evidence that is admissible at trial. “Unless otherwise limited by order of the court… any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action... if the matter… appears reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc. § 2017.010.) “The concept of relevance in the discovery context is, of course, broader than evidence that is admissible at trial (citation)... Any doubts regarding relevance are generally resolved  in favor of allowing the discovery. (Citation.) Because of the breadth of the standard of discovery relevance, “[m]uch of the information that surfaces during pretrial discovery may be unrelated, or only tangentially related, to the underlying cause of action.” (Citation.) Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 97–98.

“For discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement.” (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546 [quotations omitted].) “In sum, the relevance of the subject matter standard must be reasonably applied; in accordance with the liberal policies underlying the discovery procedures, doubts as to relevance should generally be resolved in favor of permitting discovery.” (Pacific Telephone. & Telegraph Co. v. Superior Court (1970) 2 Cal.3d 161, 173.) “[T]rial courts issuing discovery orders and appellate courts reviewing those orders should do so with the prodiscovery policies of the statutory scheme firmly in mind. A trial court must be mindful of the Legislature's preference for discovery over trial by surprise, must construe the facts before it liberally in favor of discovery, may not use its discretion to extend the limits on discovery beyond those authorized by the Legislature, and should prefer partial to outright denials of discovery” Williams v. Superior Court (2017) 3 Cal.5th 531, 540.

Finally, for good cause shown a judge may make any order that justice requires to protect any party or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. CCP § 2030.090(b)

            Barrington seeks a discovery protective order “limiting the scope of discovery to (1) Plaintiff’s compliance with the statutory procedural requirements of the Ellis Act; and (2) Plaintiff’s intent to withdraw the residential rental units at Barrington Plaza from rental use permanently at the time Plaintiff filed the Notice of Intent on May 8, 2023.”  Barrington further seeks to prohibit any discovery of  “(a) Plaintiff’s intent in the three years prior to May 8, 2023, (b) the property’s future use, and (c) purported alternatives to and details regarding Plaintiff’s planned construction for installation of the fire life safety improvements mandated by the City” (Proposed Order, received 12-29-2023.)

            “The Ellis Act prohibits a city or county from ‘compel[ling] the owner of any residential real property to offer, or to continue to offer, accommodations in the property for rent or lease’.”
(City of West Hollywood v. Kihagi (2017) 16 Cal.App.5th 739, 743, citing Gov. Code, § 7060, subd. (a).) “[A] tenant who believes the landlord's invocation of the [Ellis] Act is phony and that the landlord actually intends to offer the vacated units to new tenants may controvert the landlord's statement of intent. The landlord will then have the burden to establish his or her bona fide intent to withdraw the property from the market by a preponderance of the evidence.” (Drouet v. Superior Court (2003) 31 Cal.4th 583, 597.)

            Under Los Angeles Municipal Code (“LAMC”) §§ 151.09 subdivision A .10 a landlord may bring an action to recover possession of a rental unit when the landlord seeks in good faith to recover possession of the rental unit to demolish the rental unit; or remove the rental unit permanently from rental housing use.

            The Court agrees with Defendant that her discovery requests are directly related to the discovery of information that that could shed greater light on the credibility of Barrington intent when it made its decision to withdraw the property from the rental market and whether that decision was made in good faith consistent with the Ellis act.  Even considering counsel’s speculative estimates of the cost to comply with the requested discovery, Barrington has not shown that the burden and expense of responding to that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.020, subd., (a).)

Finally, regardless of Barrington’s failure to meet its burden to obtain a broad protective order, the Court will address in the Informal Discovery Conference any further objections to the requested discovery, including possible means to mitigate any undue burden of Barrington producing the requested documents.