Judge Holly J. Fujie, Case Number: 23STCV23703, Date: 2025-01-16 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

RESPONDING PARTY: Defendant Roberta Magid, Trustee of the Robert Magid Trust (“Defendant”)

Plaintiff brought this habitability action on November 3, 2023. The operative first amended complaint (“FAC”) alleges causes of action for: (1) breach of contract; (2) tortious violation of breach of warranty of habitability; (3) private nuisance; (4) violation of Civil Code § 1942.4; (5) negligence; (6) intentional infliction of emotional distress; and (7) negligent infliction of emotional distress.

On November 19, 2024, Plaintiff filed the instant motion to compel further responses to requests for production (“RFPs”) and request for sanctions (the “Motion”). Defendant filed an opposition on January 3, 2025 (the “Opposition”). Plaintiff filed a reply (the “Reply”) on January 9, 2025.

Pursuant to Evidence Code section 452, subdivision (d), the Court may take judicial notice of “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States”.

The court, however, may not take judicial notice of the truth of the contents of the documents. (Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.) Documents are only judicially noticeable to show their existence and what orders were made such that the truth of the facts and findings within the documents are not judicially noticeable. (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 885.)

Pursuant to Defendant’s request, the Court takes judicial notice of the following: (1) Plaintiff’s FAC (RJN, Ex. A); and (2) the Minute Order from Informal Discovery Conference on July 18, 2024 (RJN, Ex. B). The Court notes for future reference that it is not necessary to request judicial notice of matters filed in the case in which the subject motion is filed.

A motion to compel a further response is used when a party gives unsatisfactory answers or makes untenable objections to interrogatories, demands to produce, or requests for admission. (Code of Civil Procedure (“CCP”), § 2031.310, subd. (a); Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403.)

To request further production, a movant must establish: (1) good cause for the production (CCP, § 2031.310, subd. (b)(1); Sinaiko, supra, at p. 403); and (2) that a further response is needed because (a) the responding party’s statement of compliance with the demand to produce is incomplete CCP, § 2031.310, subd. (a)(1)), (b) the responding party’s representation that it is unable to comply is inadequate, incomplete, or evasive (CCP, § 2031.310, subd. (a)(2)), (c) the responding party’s objection in the response is without merit or is too general (CCP, § 2031.310, subd. (a)(3); Catalina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, 1127), or (d) if the responding party objected to the production of ESI on the ground that it is not reasonably accessible the movant can show that the (i) ESI is reasonably accessible or (ii) there is good cause for production of the ESI regardless of its accessibility (CCP, § 2031.310, subd. (e)).

Plaintiff seeks to compel further responses to RFP Nos. 4-6, 10-12, and 16. The RFPs seek all documents relating to any time mold has been present or claimed to be present at 917 N. Larrabee Street (the “Subject Property”) between 2013 and present (RFP Nos. 4, 10), all documents relating to any time water leaks, intrusion or moisture have been present or claimed at the Subject Property between 2013 and present, (RFP Nos. 5, 11), all documents relating to any dampness of floors, ceilings or walls at the Subject Property between 2013 and present (RFP Nos. 6, 12) and all documents relating to health or safety violations at the Subject Property between 2013 and present (RFP No. 16).

On July 18, 2024, the Court issued a stipulation and order which states, in relevant part: “Requests for Production Nos. 1-13, 16-18 and 21to mold and water leaks in Units 6 and 20 for the period for five years before and throughout Plaintiff’s tenancy of the building. With regard to the Decision of the Hearing Examiner of the City of West Hollywood Rent Stabilization Unit dated July 10, 2024 (the “Decision”), Defendants are reviewing the Decision and will inform Plaintiff within ten days as to whether they will also include in the Responses all documents responsive to mold and water leaks in common areas as reported in the Decision.” (7/18/2024 Minute Order) Defendant served amended responses to discovery on August 16, 2024 (Kurtz Decl. ¶ 5; Segal Decl., ¶ 6). Defendant served additional discovery responses on September 20, 2024 (Kurtz Decl. ¶ 9; Segal Decl., ¶ 6). Defendant asserts that they have produced all available documents within the scope of the July 18, 2024 stipulation and order. (Kurtz Decl. ¶ 17; Segal Decl., ¶ 6). Defendant further argues that Plaintiff has not identified which documents she is requesting or that she believes are missing from the documents produced. (Opp. p. 4:13-28.)

In the Reply, Plaintiff argues that she received additional responsive documents from the City of West Hollywood and that “ the existence of these West Hollywood documents (which prove that documents are missing) and the large categories of documents that one would expect a landlord and attorney to retain regarding the apartment complex that Plaintiff’s counsel provided in October 2024 are clear indications that documents are missing from Defendant’s productions.” (Reply, p. 5:4-7.)

The Court finds Plaintiff’s assertion that other documents must exist, without further specification of those documents, insufficient to establish good cause. To the extent the City of West Hollywood produced additional responsive documents, Plaintiff is now in possession of these documents so further production of the same documents would be redundant. Accordingly, Plaintiff has not established good cause for further production or good cause to expand the scope of the July 18, 2024 stipulation and order.

Except in certain circumstances involving electronic stored information, the court must impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (CCP, § 2031.310, subd. (h).)

The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed. (Rules of Court, rule 3.1348, subd. (a).)

Even after a party provides discovery responses, a party can keep its motion on calendar and the court has authority to grant sanctions, even if it denies the motion to compel responses “as essentially unnecessary, in whole or in part.” (Sinaiko, supra, at p. 409.)

Plaintiff seeks sanctions in the amount of $7,600.00 against Defendant and/or Defendant’s counsel of record. Because the Court has denied Plaintiff’s Motion, Plaintiff’s request for sanctions is DENIED. Considering Defendant did not request reciprocal sanctions in the Opposition, the Court finds that imposing sanctions against Plaintiff would be unjust.

Plaintiff’s Motion to Compel Further Production, and Request for Sanctions, is DENIED.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court