Judge James C. Chalfant, Case 21STCP02564 2023-01-10 Tentative Ruling

Petitioner Neway Mengistu (“Mengistu”) moves to compel Respondent Housing Authority of the City of Los Angeles (“HA”) to provide further discovery responses to 12 of Mengistu’s Special Interrogatories, Set Two (“Interrogatories”).

The court has read and considered the moving papers, opposition, and reply,[1] and renders the following tentative decision.

Petitioner Mengistu filed this petition for writ of mandate on August 9, 2021 against Respondents HA and Douglas Guthrie (“Guthrie”) in his capacity as President and CEO of the HA. The Petition alleges claims for traditional and administrative mandamus. The pertinent allegations are follows.

Mengistu is a low-income, disabled, single father of two in a three-bedroom unit. The Section 8 Voucher Program provides rental assistance to low-income individuals and families. Eligible families receive vouchers indicating they may participate in the program, after which they must find private landlords from whom they rent housing. Mengistu has been part of the Section 8 voucher program since June 1, 2017. On that day, he moved into his current residence, with one bedroom assigned to his LIA and another for his medical equipment.

On September 23, 2014, Mengistu submitted a reasonable accommodation request for an extra bedroom for his former live-in aide (“LIA”) because he is wheelchair-bound. HA granted the request and completed a criminal history check and approved his chosen LIA in November 2016.

In August 2019, Mengistu and LIA had their second child, a boy, and reported this fact to HA after their son received a Social Security card. HA did not add Mengistu’s son to his family or conduct an interim review.

On April 27, 2020, following his 2020 in-person annual reexamination interview, Mengistu received a 2020 Notice of Change in Rent and HAP Subsidy (“April 2020 Notice”) which noted that his family consisted of only himself, increased his share of the monthly rent from $102 to $524 as of June 1, 2020, and removed the bedroom for his LIA from his benefits.

On April 29, 2020, HA issued a Notice of Review determination/downsizing bedroom, which explained that his LIA no longer qualified because she brought with her two children who require more than one bedroom. Mengistu was therefore responsible for the additional cost of her bedroom unless he reverified his need for an LIA with a medical healthcare or service provider or add her as a family member. HA denied Mengistu’s requests for an administrative appeal of this decision.

On June 9, 2020, Mengistu asked HA to add his children – not the LIA – to his household. On June 22, 2020, he received notice from HA that it had done so and that he was eligible for the Section 8 Voucher program again.

On June 29, 2020, HA emailed Mengistu an RE-46 Modified form to complete in 14 days. It explained that adding his children to his household would result in disqualification of the LIA unless he provided supporting documentation showing that she qualified as his LIA.

On July 1, 2020, HA sent an email asking Mengistu to disregard the RE-46 Modified form and instead complete several other attached forms. Mengistu submitted those forms on July 15, 2020. The forms stated in relevant part that the LIA would only live with Mengistu to provide the necessary supportive services.

On August 6, 2020, HA approved Mengistu’s children as members of his family but disqualified his LIA because she failed to disclaim financial responsibility for him. On August 10, 17, and 31, 2020, Mengistu requested the evidence used to disqualify his LIA. HA did not respond. However, HA treated Mengistu’s last request as his appeal of the August 6, 2020 decision and denied his appeal on September 1, 2020.

On August 19, 2020, Mengistu received a Notice of Change in Rent and HAP Subsidy (“August 2020 Notice”) which affirmed his eligibility and claimed that he had a household with three people. It included a denial of a reasonable accommodation request.

On April 22, 2021, HA granted Mengistu a 30-day extension for his administrative appeal and warned that failure to timely appeal would make the decision final. HA then issued a final administrative appeal decision on May 10, 2021, before 30 days had passed.

On February 21, 2021, HA asked Mengistu to mail the documents needed for the 2021 annual reexamination application. He sent them back the next day, including a request for an extra bedroom for his LIA as a reasonable accommodation. On July 21, 2021, 149 days later, HA rejected the application because it listed the LIA, an unauthorized person, as a household member. The rejection essentially refused to process the application for reasonable accommodation and denied a right to appeal that decision.

Mengistu contends that HA violated 24 CFR section 982 by denying an extra bedroom to Mengistu’s LIA. HA has refused to provide the evidence used to disqualify the LIA and deny the accommodation, and it reached the final decision through a process that denied Mengistu access to the grievance process mandated by the federal Department of Housing and Urban Development (“HUD”). HA also violated 42 U.S.C. section 1437f(o)(2) by requiring him to pay more than 30% of his income in rent. Mengistu seeks a declaration that HA erred in increasing his rent to over 30% of his income, a writ of mandate enjoining HA from denying him due process in his request for reasonable accommodations and benefits, and attorney’s fees and costs.

On August 25, 2021, Mengistu served Respondents HA and Guthrie with the Petition.

On March 11, 2022, Mengistu filed a motion to compel further responses to Mengistu’s Special Interrogatories, Set One. At hearing, the court denied the motion for lack of a separate statement and untimeliness.

On June 1, 2022, Mengistu filed a motion to compel responses to Mengistu’s RFP, Set One. The court granted the motion at the July 19, 2022 hearing.

After Mengistu filed additional motions to compel further responses, the court ordered the parties at an August 23, 2022 status conference to meet and confer face to face to discuss all issues for each discovery request, including parameters and undue burden. The court warned Mengistu that his discovery requests must be simple and not a significant burden or they would be denied.

On September 20, 2022, the court denied Mengistu’s motion to compel further responses to the Interrogatories at issue as moot because HA agreed to provide supplemental responses. The court also granted in part Mengistu’s motion to compel further responses to requests for production of documents.

Motions to compel discovery must comply with discovery “cut-off” dates. Any party shall be entitled as a matter of right to have a discovery motion heard on or before the 15th day before the date initially set for trial of the action. CCP §2024.020(a); Beverly Hospital v. Superior Court, (1993) 19 Cal.App.4th 1289, 1293-96.

If the propounding party, on receipt of a response to interrogatories, deems that (1) an answer to a particular interrogatory is evasive or incomplete, (2) the responding party’s exercise of the option to produce documents under paragraph (2) of CCP section 2030.230 is unwarranted or the required specification of those documents is inadequate, or (3) an objection to an interrogatory is without merit or too general, the propounding party may move for an order compelling a further response. CCP §2030.300.

The motion must be accompanied by a meet and confer declaration under CCP section 2016.040. CCP §2030.300(b). The motion shall be accompanied by a separate document which sets forth each demand to which a further response is requested, the response given, and the factual and legal reasons for compelling it. CRC §3.1345(a)(2). The separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and the full response. CRC §3.1345(c). Material must not be incorporated by reference. CRC §3.1345(c).

Unless notice of the motion is given within 45 days of the service of the response, or any supplemental response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel further response to interrogatories or requests for production. CCP §§2030.300(c).

In deciding a motion under CCP section 2030.300, the trial court must, of necessity, consider not only the stated objections to the discovery requests, but also the requests themselves, as well as the pleadings, and the contentions of the interrogating party as to the purpose and validity of the interrogatories. Columbia Broadcast System, Inc. v. Superior Court, (1968) 263 Cal.App.2d 12, 18. If interrogatories are reasonably subject to objection as calling for the disclosure of matters so remote from the subject matter of the action as to make their disclosure of little or no practical benefit to the party seeking the disclosure, or if to answer them would place a burden and expense upon the parties to whom the interrogatories are propounded which should be equitably borne by the propounding party, or if the interrogatories are so framed as to require the disclosure of relevant as well as irrelevant matter, the trial court in the exercise of its discretion may refuse to order such interrogatories answered. Id. at 19.

The court shall impose a monetary sanction under CCP section 2023.010 against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, 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 §2030.300(d).

Title 24, Code of Federal Regulations (“24 CFR”) section 5.403 defines an LIA as a person who resides with one or more elderly persons, near-elderly persons, or persons with disabilities, and who (1) is essential to the care and well-being of the persons; (2) is not obligated for the support of the persons; and (3) would not be living in the unit except to provide the necessary supportive services. Mengistu Oct. 2022 Decl., ¶20, Ex. 11.

On September 23, 2014, Mengistu submitted a reasonable accommodation request for an extra bedroom for an LIA, Eyerus Adamu Zeleke (“Zeleke”), with a medical verification of his need for reasonable accommodation from Dr. Pawel Kaszubowski (“Kaszubowski”). Mengistu August 2022 Decl.,[2] ¶¶ 13-14, Ex. 11-12. HA granted the request on September 30, 2014. Mengistu August 2022 Decl., ¶15, Ex. 13.

On April 27, 2020, HA notified Mengistu that, because he was the only person authorized to reside in the subsidized unit, Mengistu’s rent would increase from $102 to $524 per month, effective June 1, 2020. Mengistu August 2022 Decl., ¶16, Ex. 14.

On April 29, 2020, HA issued a Notice of Review determination/downsizing bedroom, disqualifying Zeleke as an LIA and removing a bedroom assigned to her because, with her two children, three persons resided in the bedroom assigned to the LIA, which violated HUD’s occupancy standards for a subsidized unit. Mengistu August 2022 Decl., ¶17, Ex. 15. The notice explained that Mengistu would be responsible for the additional cost of the bedroom unless he reverified his need for an LIA. Mengistu August 2022 Decl., ¶18, Ex. 15.

On July 15, 2020, Mengistu and his LIA completed and submitted a Certified Statement of an LIA and a Certification by the LIA to HA. Mengistu August 2022 Decl., ¶¶ 20-21, Exs. 17-18. On August 6, 2020, HA denied Mengistu’s reasonable accommodation request for an extra bedroom for his LIA, asserting that it was “a fundamental alteration of the program.” Mengistu August 2022 Decl., ¶22, Ex. 19. In a separate letter on the same day, HA asserted that Zeleke did not meet the definition of a LIA under 24 C.F.R. section 5.403 because her certification did not disclaim financial responsibility for the household and there was no evidence that she disclaimed financial responsibility for his children. Mengistu August 2022 Decl., ¶23, Ex. 20; Mengistu October 2022 Decl., ¶18, Ex. 9.

Mengistu appealed the denial on August 31, 2020. Mengistu August 2022 Decl., ¶25, Ex. 22.

HA again refused to reinstate Zeleke on September 15, 2021. Mengistu October 2022 Decl., ¶19, Ex. 10. HA reiterated that Zeleke failed to demonstrate that she was not obligated for support of the household. Mengistu October 2022 Decl., ¶19, Ex. 10.

Mengistu’s Complaint seeks to prevent HA from denying Section 8 participants’ reasonable accommodation requests to approve LIAs so that the participants may reside in the subsidized units independently. Mengistu October 2022 Decl., ¶2.

On March 21, 2022, Mengistu served HA with the Interrogatories. Mengistu August 2022 Decl., ¶3, Ex. 1. The Interrogatories sought the following:

(1) all reasons HA accepted Zeleke’s March 2018 “Section 8 Existing Housing LIA Certification” as referenced in HA’s May 29, 2018 “Notice of Change in Rent and HAP Subsidy;” (“No. 10”)

(2) all reasons HA accepted Zeleke’s April 2019 “Section 8 Existing Housing LIA Certification” as referenced in HA’s April 15, 2019 “Notice of Change in Rent and HAP Subsidy” (“No. 11”);

(3) all reasons HA found on August 6, 2020 that allowing Zeleke to continue to serve as Mengistu’s LIA would constitute a fundamental alternation of the Section 8 program (“No. 12”);

(4) all reasons that HA failed to issue HUD-mandated annual Section 8 continued eligibility determination based on Mengistu’s HUD-mandated February 12, 2021 annual reexamination application (“No. 13”);

(5) all reasons HA denied Mengistu’s February 12, 2021 reasonable accommodation request for an additional bedroom for Zeleke as an LIA (“No. 14”);

(6) all reasons that HA failed to issue HUD-mandated annual Section 8 continued eligibility determination based on Mengistu’s HUD-mandated September 20, 2021 second reexamination application (“No. 15”);

(7) all reasons that HA denied Mengistu’s September 20, 2021 reasonable accommodation request for an additional bedroom to house Zeleke (“No. 16”);

(8) HA’s explanation why a bedroom subsidy for Zeleke has not been disturbed in light of its August 19, 2020 Notice of Lease Rider asserting that Mengistu and his children may occupy the dwelling (“No. 17”);

(9) all reasons for HA’s assertion that Zeleke failed to demonstrate that she was residing in the Section 8 unit solely for Mengistu’s care (“No. 19”);

(10) all reasons for HA’s assertion that Zeleke’s certifications fail to disclaim financial responsibility for the household (“No. 20”);

(11) all reasons for HA’s rejection of Zeleke’s July 15, 2020 Certified Statement of a LIA (“No. 21”); and

(12) all reasons for HA’s rejection of Zeleke’s July 15, 2020 Certification by LIA (“No. 22”). Mengistu August 2022 Decl., ¶3, Ex. 1.

The parties stipulated that the Interrogatories are Interrogatory Set Two, renumbered from Interrogatory No. 10 et seq. Mengistu August 2022 Decl., ¶4, Ex. 2.

On May 11, 2022, HA objected that every Interrogatory was overbroad, vague, ambiguous, unduly burdensome, harassing, unintelligible, and not reasonably calculated to lead to the discovery of admissible evidence. Mengistu August 2022 Decl., ¶7, Ex. 5. Notwithstanding its objections, HA provided answers to all the Interrogatories at issue in this motion. Mengistu August 2022 Decl., ¶7, Ex. 5.

4. The Meet and Confer, Motion to Compel, and HA’s Agreement to Provide Supplemental Responses

On June 16, 2022, Mengistu sent a meet and confer letter to HA demanding further answers to the interrogatories by June 21, 2022. Mengistu August 2022 Decl., ¶8, Ex. 6. On June 21, 2022, HA requested via email an extension of the deadline to July 5, 2022. Mengistu August 2022 Decl., ¶9, Ex. 7. On June 22, 2022, Mengistu agreed to extend the deadline to complete meet and confer if HA agreed to extend the deadline for two motions to compel. Mengistu August 2022 Decl., ¶9, Ex. 7. On July 6, 2022, Mengistu agreed to extend the deadline by 48 hours to July 7, 2022. Mengistu August 2022 Decl., ¶10, Ex. 8.

HA responded by a July 12, 2022 letter to Mengistu’s request for additional answers to the Interrogatories. Mengistu August 2022 Decl., ¶11, Ex. 9; Mengistu October 2022 Decl., ¶17, Ex. 8. HA rejected Mengistu’s position that documents from as early as 2017 were relevant just because of a five-year statute of limitations. Mengistu August 2022 Decl., ¶11, Ex. 9; Mengistu October 2022 Decl., ¶17, Ex. 8. To the extent that Mengistu cited the continuing violation doctrine, a violation occurred in 2019 and not 2017. Mengistu August 2022 Decl., ¶11, Ex. 9; Mengistu October 2022 Decl., ¶17, Ex. 8. Other Interrogatories presupposed that HA’s long-standing written policy did not require Mengistu to recertify the need for an LIA because the policy only requires recertification when there’s a change in circumstances. Mengistu August 2022 Decl., ¶11, Ex. 9; Mengistu October 2022 Decl., ¶17, Ex. 8. The birth of two children was such a change. Mengistu August 2022 Decl., ¶11, Ex. 9; Mengistu October 2022 Decl., ¶17, Ex. 8. The HA also asserted that Mengistu’s objections to HA’s answers either stem from the lack of specificity in the Interrogatory or Mengistu’s dislike of the response. Mengistu August 2022 Decl., ¶11, Ex. 9; Mengistu October 2022 Decl., ¶17, Ex. 8.

On July 25, 2022, Mengistu requested an extension of the deadline to file a motion to compel further responses to Interrogatory Set Two from July 29 to August 3, 2022. Mengistu August 2022 Decl., ¶12, Ex. 10. The HA granted the request on July 27, 2022. Mengistu August 2022 Decl., ¶12, Ex. 10.

On August 3, 2022, Mengistu filed a motion to compel further responses to the Interrogatories. Mengistu October 2022 Decl., ¶7.

On September 1, 2022, the parties met and conferred in a conference room at the HA headquarters. Nelson Decl., ¶3. The parties discussed each interrogatory at issue, whether the request communicated what information it sought, and whether HA could supplement its responses based on its understanding of what Mengistu sought. Nelson Decl., ¶3.

On September 7, 2022, HA informed Mengistu that it would provide supplemental responses to all Interrogatories and requested that Mengistu take the motion to compel off calendar. Mengistu October 2022 Decl., ¶8, Ex. 1; Nelson Decl., ¶4. Mengistu responded that he would not take the motion off calendar until he received and was satisfied with the supplemental responses. Mengistu October 2022 Decl., ¶8, Ex. 1; Nelson Decl., ¶4. If satisfactory supplemental responses were received by September 12, 2022 – the day before his reply brief was due – Mengistu would withdraw his motion. Mengistu October 2022 Decl., ¶8, Ex. 1.

On September 20, 2022, the court denied Mengistu’s motion to compel as moot because the HA agreed to provide supplemental responses. Mengistu October 2022 Decl., ¶9; Nelson Decl., ¶5. The court ordered that, if Mengistu was dissatisfied after receiving the supplemental responses, he could file a new motion to compel further responses by October 25, 2022. Mengistu October 2022 Decl., ¶9.

At the September 29, 2022 court-ordered face-to-face meet and confer, HA informed Mengistu that it would not provide supplemental responses until October 3, 2022. Mengistu October 2022 Decl., ¶10. On October 3, 2022, HA informed Mengistu that it could not provide the supplemental responses until October 5, 2022 due to staff unavailability. Mengistu October 2022 Decl., ¶11, Ex. 2.

The HA provided the supplemental responses on October 7, 2022 with a request that Mengistu respond to HA’s discovery requests by October 14, and he did so. Mengistu October 2022 Decl., ¶¶ 12, 14, 21, Exs. 3, 5, 12; Nelson Decl., ¶6.

For Interrogatories No. 10-11, HA explained that it accepted Zeleke as LIA in 2018 because the sole child within the household was the LIA’s dependent and Mengistu’s family unit size in March 2018 and April 2019 did not exceed the maximum family size under Section 8 Administrative Plan 10.8.2. Mengistu October 2022 Decl., ¶21, Ex. 12.

For Interrogatory No. 12, HA explained that it denied Mengistu’s August 6, 2020 renewed request for his LIA because it would violate 24 CFR section 5.403(3). Mengistu October 2022 Decl., ¶21, Ex. 12. Zeleke would be in the home primarily for the care of her two dependents and not solely to aid Mengistu. Mengistu October 2022 Decl., ¶21, Ex. 12.

For Interrogatory No. 13, HA stated that it could not issue a continued eligibility determination based on Mengistu’s HUD-mandated February 12, 2021 annual reexamination application because Mengistu refused to elect an LIA to replace his disqualified one. Mengistu October 2022 Decl., ¶21, Ex. 12. The HA maintained the status quo until the court decides the issue. Mengistu October 2022 Decl., ¶21, Ex. 12.

For Interrogatory No. 14, HA explained that, in addition to Zeleke’s disqualification, Mengistu abandoned his application for an extra bedroom for his LIA because he did not appeal her disqualification despite the receipt of several extensions. Mengistu October 2022 Decl., ¶21, Ex. 12.

For Interrogatory No. 15, HA denied Mengistu’s September 20, 2021 second reexamination application because of the pending litigation and Mengistu’s refusal to choose an LIA after Zeleke’s disqualification. Mengistu October 2022 Decl., ¶21, Ex. 12.

For Interrogatory No. 16, HA denied Mengistu’s reasonable accommodation request for an extra bedroom for the LIA because his choice again violated 24 CFR section 5.403(3). Mengistu October 2022 Decl., ¶21, Ex. 12. Zeleke would be in the home primarily for the care of her two dependents and not solely for Mengistu. Mengistu October 2022 Decl., ¶21, Ex. 12.

Fort Interrogatory No. 17, HA stated that it has not disturbed the subsidy for the bedroom and has maintained the status quo during Mengistu’s appeal efforts. Mengistu October 2022 Decl., ¶21, Ex. 12. Assuming arguendo that the LIA is qualified, Mengistu’s rental responsibility would remain the same. Mengistu October 2022 Decl., ¶21, Ex. 12.

For Interrogatories 19-22, HA reiterated that Zeleke no longer qualifies as an LIA under because of the absence of proof that she was not obligated for the support of the household or that she would not be living in the unit except to provide necessary support services. Mengistu October 2022 Decl., ¶21, Ex. 12. The supplemental responses clarified that there was no certified statement, legal document, or court order showing that Zeleke is not responsible for her children under Family Code section 4053 and would thus is in the household as a family member. Mengistu October 2022 Decl., ¶21, Ex. 12.

On October 11, 2022, Mengistu submitted a meet and confer letter to resolve disputes about the supplemental responses. Mengistu October 2022 Decl., ¶13, Ex. 4. On October 18, 2022, HA replied that the responses and supplemental responses conveyed all the information the Interrogatories sought. Mengistu October 2022 Decl., ¶15, Ex. 6.

The court has continued the hearing on HA’s motions to compel further responses by Mengistu to several discovery requests to January 24, 2023. HA asked Mengistu to stipulate to continue the hearing on this motion as well. Nelson Decl., ¶7, Ex. A. On December 5, 2022, Mengistu emailed to HA a list of reasons why he refused to continue the hearing on this motion. Nelson Decl., ¶7, Ex. A.

On December 28, 2022, HA replied that Mengistu’s failure to agree to continue the hearing would violate the court’s October 25, 2022 order. Nelson Decl., ¶7, Ex. A. HA later clarified that the court had defined the sequence of events as follows: Mengistu’s deposition, then the hearing on HA’s motions, then the hearing on Mengistu’s motions. Nelson Decl., ¶7, Ex. A.

Petitioner Mengistu moves to compel HA to provide further responses to 12 Interrogatories.[3]

On October 25, 2022, the court ordered that it would not hear any new discovery motions until Mengistu had been deposed by HA. The court also advised Mengistu that it would hear HA’s discovery motions before his. If the court granted those motions, it would take Mengistu’s motion to quash a subpoena off calendar for failure to comply with the court’s previous order.

The court subsequently continued the hearing on HA’s motions to January 2023. This placed the new hearing date for HA’s motions after the hearing on Mengistu’s motions. Nelson Decl., ¶7, Ex. A. HA asserts that Mengistu’s refusal to agree to continue the hearing on his motions violated the court’s order and increases its litigation costs by forcing it to file an otherwise unnecessary opposition. Opp. at 4; Nelson Decl., ¶7, Ex. A.

HA is correct. Mengistu should have agreed to continue his motions until after HA’s discovery motions. Nonetheless, the press of other business caused the court to continue HA’s motions to January 24, 2023. The court is unwilling to hear both sets of motions on the same date and further would have been unwilling to continue Mengistu’s motions until after the January 24, 2023 hearing date. Hence, Mengistu’s recalcitrance did not affect the timing of issues.

If events have made effectual relief impracticable, the controversy has become overripe and is therefore moot. Malaga County Water District v. Central Valley Regional Water Quality Control Board (2020) 57 Cal. App. 5th 911. Mootness describes a situation whether there is no justiciable controversy. Davis v. Fresno Unified School District (2020) 57 Cal. App 5th 911. Courts will decide only justiciable controversies. Parkford Owners for a Better Community v. County of Placer (2020) 54 Cal. App. 5th 714. As a general rule, it is not within the function of the court to act upon or decide a moot question. In re S.P. (2000) 53 Cal. App. 5th 13.

On September 20, 2022, the court denied Mengistu’s motion to compel as moot because HA agreed to provide supplemental responses. Mengistu October 2022 Decl., ¶9; Nelson Decl., ¶5. HA provided these supplemental responses on October 7, 2022. Mengistu October 2022 Decl., ¶21, Ex. 12. HA now asserts that the supplemental responses moot Mengistu’s motion. Opp. at 6.

Not so. On September 20, 2022, the court denied Mengistu’s motion to compel as moot because the HA agreed to provide supplemental responses. Mengistu October 2022 Decl., ¶9; Nelson Decl., ¶5. The court ordered that, if Mengistu was dissatisfied after receiving the supplemental responses, he could file a new motion to compel further responses by October 25, 2022. Mengistu October 2022 Decl., ¶9.

Mengistu’s motion shows that he is dissatisfied with the supplemental responses. He timely filed the motion to compel further responses on October 24, 2022, 17 days after he received the supplemental responses. Mengistu October 2022 Decl., ¶21, Ex. 12. The motion to compel further responses is not moot.

Mengistu seeks to compel further responses to the Interrogatories. He asserts that the information is relevant and essential to his lawsuit because he alleges in his Petition that HA engaged in unjust policies and practices and the Interrogatories seek information to prove that HA engaged in discriminatory behavior. Mot. at 5.

The parties debate their interpretation of 24 CFR section 5.403’s definition of an LIA. Mengistu October 2022 Decl., ¶21, Ex. 12. An LIA is a person who resides with one or more elderly persons, near-elderly persons, or persons with disabilities, and who (1) is essential to the care and well-being of the persons; (2) is not obligated for the support of the persons; and (3) would not be living in the unit except to provide the necessary supportive services. Mengistu October 2022 Decl., ¶20, Ex. 11.

Mengistu asserts that HA’s supplemental responses reveal that it has substituted “support of the persons’ household”, which includes Mengistu’s children, for “support of the persons” in the second prong of 24 CFR section 5.403. Mot. at 7. This violates CCP section 1858, which requires judges to ascertain and declare what is in terms or in substance contained in the statutes and instruments before them and not add new words in the process. Mot. at 8. This also contradicts LIA regulations like 24 CFR section 982.316(a), which state that a family with an elderly person or person with disabilities can request an LIA to provide supportive services for that family member. Mot. at 6. Mengistu asserts that he is entitled to answers that reflect the correct definition of an LIA and that HA’s answers relying on an incorrect definition are unresponsive. Mot. at 8.

HA responds Mengistu’s interpretation of 24 CFR section 5.403 is wrong. The proper interpretation requires disqualification of the mother of his children as LIA because supporting him as stated in prong two means supporting his children, an obligation that both he and Zeleke have under the Family Code. Prong three also makes no mention of the disabled persons. Opp. at 6.

HA’s previous approvals of Zeleke as Mengistu’s LIA were not inconsistent with this position because the children were not born until 2018 and 2019. Mengistu then alternated between claiming and disclaiming the child born in 2018. HA asked for documentation to prove that Zeleke was living in Mengistu’s home only to provide necessary supportive services, which Mengistu did not provide. Opp. at 6-7.

Interrogatories must seek information relevant to the subject matter of the case and reasonably calculated to lead to the discovery of admissible evidence. CCP §2017.010, 2030.010(a); Kalaba v. Gray, (2002) 95 Cal.App.4^th 1416, 1417. A motion to compel further responses is proper when (1) an answer to a particular interrogatory is evasive or incomplete, (2) the responding party’s exercise of the option to produce documents under paragraph (2) of CCP section 2030.230 is unwarranted or the required specification of those documents is inadequate, or (3) an objection to an interrogatory is without merit or too general, the propounding party may move for an order compelling a further response. CCP §2030.300.

The only relevant basis for Mengistu’s motion to compel further responses is that they are evasive or incomplete. CCP §2030.300. Each Interrogatory at issue asks why HA did or did not take certain actions. Mengistu August 2022 Decl., ¶3, Ex. 1. HA’s answers reflect its reasons, whether or not they reflect accurate interpretations of law. Mengistu October 2022 Decl., ¶21, Ex. 12. Mengistu cannot ask HA to set forth reasons that it did not have based on a different interpretation of a regulation, even if Mengistu is correct about his interpretation.

Mengistu’s motion fails to explain why any of the supplemental responses is incomplete or evasive. He merely argues that 24 CFR section 5.403 should be interpreted in the manner he suggests and argues that he is entitled to responses that reflect the correct definition of the regulation. Mot. at 5-8. This is not a basis for a motion to compel discovery. If HA has wrongly interpreted 24 CFR section 5.403 in answering the Interrogatories, that is an issue for trial and has no bearing on the adequacy or completeness of HA’s answers.

[1] Mengistu points out that the opposition was untimely filed and served on December 28, 2022. Per CCP section 1005, the opposition was due nine court days before the January 10, 2023 hearing, or by December 27, 2022. As Mengistu filed a reply, he has suffered no prejudice and the court will consider the untimely opposition.

[2] Mengistu cites to his August 3, 2022 declaration (“Mengistu August 2022 Decl.”) filed with respect to his pervious motion to compel further responses. Mengistu is advised that he should have attached the declaration as an exhibit to the current motion.

[3] Mengistu does not include Interrogatory No. 18 in his Separate Statement.

Neway Mengistu v. Housing Authority of Los Angeles, Douglas Guthrie, and Does 1-10, 21STCP02564

Tentative decision on motion to quash subpoena: denied

Petitioner Neway Mengistu (“Mengistu”) moves to quash a subpoena that Respondent Housing Authority of the City of Los Angeles (“HA”) has issued for the production of certain documents (“Subpoena”).

The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

A. Statement of the Case

1. Petition

2. Course of Proceedings

On August 25, 2021, Mengistu served Respondents HA and Guthrie with the Petition.

On September 21, 2021, Respondent HA filed its Answer.

On June 1, 2022, Mengistu filed a motion to compel responses to Mengistu’s RFP, Set One. The court granted the motion at the July 19, 2022 hearing.

B. Applicable Law

Under CCP section 1987.1, when a subpoena requires the attendance of a witness or the production of books, documents or other things at the taking of a deposition, the court upon motion may make any order as may be appropriate to protect the parties, the witness or the consumer from unreasonable or oppressive demands including unreasonable violation of a witness's or consumer's right of privacy. This can include an order quashing or modifying a subpoena or directing compliance with it upon such terms or conditions as the court shall declare, including protective orders.

The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. CCP §2017.020(a). The court may make this determination pursuant to a motion for protective order by a party or other affected person. Id. A protective order cannot be granted ex parte. St Paul Fire & Marine Ins. Co. v. Superior Court, (1984) 156 Cal.App.3d 82, 85-86. CCP sections 2025.420, 2030.090, 2031.060, 2032.510, and 2033.080 provide that a party upon whom interrogatories, inspection demands or request for admissions have been propounded may promptly move for a protective order. This motion shall be accompanied by a declaration stating facts showing a good faith attempt at an informal resolution of each issue presented by the motion. CCP §§ 2017.020(b), 2016.040.

The court shall restrict the frequency or extent of use of the discovery methods listed in CCP section 2019.010 if it determines either of the following: (1) The discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (2) The selected method of discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, and the importance of the issues at stake in the litigation. CCP §2019.030(a). The court may then make any order as may be appropriate to protect the parties, the witness, or the consumer from unreasonable or oppressive demands including unreasonable violation of a witness's or consumer's right of privacy. CCP §1987.1.

The court shall impose monetary sanctions under CCP section 2023.010 against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of sanctions unjust. CCP §2017.020(b). There are numerous other statutes that authorize sanctions under CCP section 2023.010 against any “party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order.” See e.g., CCP §§ 2019.030(a) (restrictions on frequency and extent of discovery); 2025.420 (depositions), 2030.090 (interrogatories), 2031.060 (requests for production); and 2032.510 (physical and mental examinations), and 2033.080 (requests for admission).

C. Statement of Facts

1. Mengistu Evidence

a. Governing Law

Title 24, Code of Federal Regulations (“24 CFR”) section 5.403 defines an “LIA” as a person who resides with one or more elderly persons, near-elderly persons, or persons with disabilities, and who (1) is essential to the care and well-being of the persons; (2) is not obligated for the support of the persons; and (3) would not be living in the unit except to provide the necessary supportive services. Mengistu Decl., ¶5, Ex. 2.

A near-elder family is (1) a family whose head or co-head, spouse, or sole member is a person who is at least 50 years of age but below the age of 62; (2) two or more persons, who are at least 50 years of age but below the age of 62, living together; or (3) one or more persons who are at least 50 years of age but below the age of 62, living with one or more live-in aides. Mengistu Decl., ¶5, Ex. 2 (24 CFR §5.403).

A person with disabilities is a person who (i) has a disability, as defined in 42 U.S.C. section 423; (ii) is determined, pursuant to HUD regulations, to have a physical, mental, or emotional impairment that is expected to be of long-continued and indefinite duration, substantially impedes his or her ability to live independently, and is of such a nature that the ability to live independently could be improved by more suitable housing conditions; or (iii) has a developmental disability as defined in 42 U.S.C. section 6001. Mengistu Decl., ¶5, Ex. 2 (24 CFR §5.403).

This definition does not exclude persons who have the disease of acquired immunodeficiency syndrome or any conditions arising from the etiologic agent for acquired immunodeficiency syndrome. Mengistu Decl., ¶5, Ex. 2 (24 CFR §5.403). For purposes of qualifying for low-income housing, a person with disabilities does not include a person whose disability is based solely on any drug or alcohol dependence. Mengistu Decl., ¶5, Ex. 2 (24 CFR §5.403). For purposes of reasonable accommodation and program accessibility for persons with disabilities, a “person with disabilities” means “individual with handicaps” as defined in 24 CFR section 8.3. Mengistu Decl., ¶5, Ex. 2 (24 CFR §5.403).

Families which have Housing Assistance Payments (“HAP”) contract and an approved unit must provide correct and accurate information about (1) all income such as wages, unemployment benefits, child support, Social Security, SSI, and pensions; and (2) all assets such as bank accounts, stocks, bonds, and property ownership, whether or not they yield income. Mengistu Decl., ¶6, Ex. 3. Families must also provide any information HA or the federal Department of Housing and Urban Development (“HUD”) deems necessary for reexamination of family income and composition. Mengistu Decl., ¶6, Ex. 3. The annual income of a family or household does not include a LIA’s income. 24 CFR §5.609(c)(5).

b. Denial of Selected LIA

On August 6, 2020, HA informed Mengistu that it denied his request for Eyerus Adamu Zeleke (“Zeleke”) as his LIA. Mengistu Decl., ¶9, Ex. 6. HA claimed that that approval would be “a fundamental alteration of the program” but that Mengistu could request another LIA. Mengistu Decl., ¶9, Ex. 6. In a separate letter on the same day, HA asserted that Zeleke did not meet the definition of a LIA under 24 CFR section 5.403 because her certification did not disclaim financial responsibility for the household and there was no evidence that she disclaimed financial responsibility for his children. Mengistu Decl., ¶9, Ex. 6.

c. Course of Proceedings

On August 23, 2022, the court ordered the parties to have a face-to-face meet and confer session about the Subpoena. Mengistu Decl., ¶7, Ex. 4, Ex. A.

On September 23, 2022, HA asserted that it needed Mengistu’s LIA’s financial income to determine whether she met the definition of an LIA under 24 CFR section 5.403. Mengistu Decl., ¶4, Ex. 1. HA wanted to determine whether Zeleke worked the entire time she was Mengistu’s LIA and whether there were gaps in Mengistu’s care. Mengistu Decl., ¶4, Ex. 1. HA claimed that whether Zeleke qualified as an LIA was the crux of this action. Mengistu Decl., ¶4, Ex. 1.

The parties held the court-ordered face-to-face meet and confer session on September 29, 2022. Mengistu Decl., ¶7. On September 30, Mengistu outlined in a letter to HA his summary of the session. Mengistu Decl., ¶7, Ex. 4. HA claimed that the issue for the Subpoena was the third prong of 24 CFR section 5.403 -- whether the LIA would not have been living in the unit except to provide the necessary supportive services for Mengistu. Id. HA conceded that proof of monetary compensation for LIA services is not required. Id. Mengistu asked HA to cite the HUD rule that made income a prerequisite for an LIA to meet that prong of 24 CFR section 5.403. Id. HA did not respond. Id. HA stated that it did not know if whether Zeleke received income would necessarily reflect a gap in the care she provided. Id. HA also asserted that it was irrelevant that CFR section 5.609(c)(5) excluded LIA income from the annual income of a family or household. Id.

On October 14, 2022, HA replied. Mengistu Decl., ¶8, Ex. 5. As Mengistu claimed, HA conceded that the Subpoena concerned the third prong of 24 CFR section 5.403 -- whether the LIA would not have been living in the unit except to provide the necessary supportive services for Mengistu. Mengistu Decl., ¶8, Ex. 5. HA conceded that (1) proof of monetary compensation for LIA services is not required and (2) that it did not know whether, if Zeleke received income, that would necessarily reflect a gap in the care she provided. Mengistu Decl., ¶8, Ex. 5.

HA also stated that it did not respond to Mengistu’s request that it cite the HUD rule or HA policy that made income a prerequisite for an LIA because HA’s position is that because Zeleke was disqualified under the definition of an LIA in 24 CFR section 5.403 and therefore the records sought are discoverable. Mengistu Decl., ¶8, Ex. 5.

2. HA’s Evidence

On August 12, 2022, HA timely and properly served Mengistu with a Notice to Consumer and the Subpoena. Nelson Decl., ¶3. HA focused the Subpoena on information it considered potentially relevant and discoverable. Nelson Decl., ¶3. Mengistu objected to the Subpoena on September 7, 2022. Nelson Decl., ¶4.

After the parties continued HA’s motions to compel further responses, HA reminded Mengistu of the court’s October 25, 2022 order and ask that he voluntarily continue the hearing on this motion. Nelson Decl., ¶2, Ex. A. Mengistu refused on December 5 and 27, 2022. Nelson Decl., ¶2, Ex. A.

D. Analysis

Mengistu moves to compel quash the Subpoena for documents that pertain to Zeleke’s income history. Mot. at 4. Mengistu argues that these documents would not be admissible because (1) HA misinterpreted the definition of an “LIA” under 24 CFR section 5.403; (2) 24 CFR section 5.403 does not require that an LIA prove monetary compensation for LIA services; (3) 24 CFR section 5.609(c)(5) prohibits the HA from accessing or obtaining an LIA’s income; and (4) Mengistu has been the only aggrieved party.

To be enforced, the Subpoena must seek information may be discovered if relevant to the subject matter of the case and reasonably calculated to lead to the discovery of admissible evidence. CCP §2017.010; Kalaba v. Gray, (2002) 95 Cal.App.4^th 1416, 1417. Mengistu’s motion suffers from the defect that he has not provided a copy of the Subpoena. HA does not do so either. From the parties’ briefs, the court gleans that the Subpoena was issued to the County’s DSS and seeks information about governmental assistance received by Zeleke for the children. The parties do not provide the exact detail of what has been requested and any claim of overbreadth therefore is waived.

1. The October 25, 2022 Order

The court subsequently continued the hearing on HA’s motions to January 2023. This placed the new hearing date for HA’s motions after the hearing on Mengistu’s motions. HA asserts that Mengistu’s refusal to agree to continue the hearing on his motions violated the court’s order and increases its litigation costs by forcing it to file an otherwise unnecessary opposition. Opp. at 3; Nelson Decl., ¶2, Ex. A.

2. Merits

24 CFR section 5.403 defines an “LIA” as a person who resides with one or more elderly persons, near-elderly persons, or persons with disabilities, and who (1) is essential to the care and well-being of the persons; (2) is not obligated for the support of the persons; and (3) would not be living in the unit except to provide the necessary supportive services. Mengistu Decl., ¶5, Ex. 2.

On August 6, 2020, HA informed Mengistu that it denied his request for Zeleke as his LIA. Mengistu Decl., ¶9, Ex. 6. HA noted that it had approved the addition of Mengistu’s children to his household. This fact disqualified Zeleke from the definition of an LIA under 24 CFR section 5.403 because her certification did not disclaim financial responsibility for the household and there was no evidence that she disclaimed financial responsibility for Mengistu’s children. Mengistu Decl., ¶9, Ex. 6.

On September 23, 2022, HA asserted that it needed Mengistu’s LIA’s financial income because it needed to determine whether she met the definition of an LIA under 24 CFR section 5.403. Mengistu Decl., ¶4, Ex. 1. HA wanted to determine whether Zeleke worked the entire time she was Mengistu’s LIA and whether there were gaps in Mengistu’s care. Mengistu Decl., ¶4, Ex. 1. HA claimed that whether Zeleke qualified as an LIA was the crux of this action. Mengistu Decl., ¶4, Ex. 1.

In an October 14, 2022 letter after the meet and confer, HA conceded that (1) proof of monetary compensation for LIA services is not required and (2) that it did not know if Zeleke received income or whether that would necessarily reflect a gap in the care she provided. Mengistu Decl., ¶8, Ex. 5.

HA’s position is that Zeleke is financially responsible for the children and as a result is disqualified as an LIA. Opp. at 6; Mengistu Decl., ¶9, Ex. 6. HA contends that Zeleke cannot be an LIA if (1) she is obligated to help Mengistu care for their children under the Family Code and (2) her childcare role suggests that she would reside in the unit even if she was not an LIA. Financial information can reveal whether this is the case because income and expenditures may show whether Zeleke in fact cares for the children. Opp. at 5.

Mengistu asserts that HA’s interpretation of 24 CFR section 5.403 improperly substitutes the term “household” for “persons” in the second prong of the definition of an LIA. Mot. at 4. To the extent that Zeleke’s financial history shows her receipt of income, this does not disqualify her from being an LIA because the annual income of a family or household does not include a live-in aide’s income. 24 CFR §5.609(c)(5). Thus, 24 CFR section 5.609(c)(5) prohibits HA from accessing or obtaining an LIA’s financial information for any reason. Mot. at 6-7. Mengistu queries the relevance of Zeleke’s income if she cannot be disqualified as an LIA for receiving it. Mot. at 5.

The parties do not dispute that Zeleke and Mengistu are the parents of the children responsible for Zeleke’s disqualification as an LIA. Under the Family Code, a parent's first and principal obligation is to support his or her minor children according to the parent's circumstances and station in life. Family Code §4053(a). Both parents are mutually responsible for the support of their children. Family Code §4053(b).

According to HA, the parents’ obligations under the Family Code affect two prongs of the definition of an LIA. As to the second prong, the support of disabled persons includes any efforts to help them fulfill their duties, including duties to their children. If Zeleke and Mengistu share that responsibility as parents, Zeleke would be obligated to help Mengistu in his childcare duty even if she were not an LIA. As to the third prong, if Zeleke is living with her children whom she is obligated to support, this suggests that she is not living in the unit solely to provide supportive services to Mengistu. Opp. at 5.

The information sought by the Subpoena is reasonably calculated to lead to admissible evidence on these issues. The definition of an LIA under 24 CFR section 5.403 does not render this information inadmissible. 24 CFR section 5.609(c)(5) excludes an LIA’s income from the definition of a family’s annual income and HA’s forms also explain that the family need not report LIA income. Mengistu Decl., ¶6, Ex. 3. But these facts do not mean that a LIAs income is irrelevant for discovery purposes. HA seeks Zeleke’s financial records to determine if she meets the definition of an LIA under 24 CFR section 5.403, and this inquiry is reasonably calculated to lead to the discovery of admissible evidence.[1]

In reply, Mengistu raises Zeleke’s privacy rights. Reply at 9-10. Assuming arguendo that he has the right to raise another person’s privacy rights, this issue is presented for the first time in reply and has been waived. New evidence/issues raised for the first time in a reply brief are not properly presented to a trial court and may be disregarded. Regency Outdoor Advertising v. Carolina Lances, Inc., (1995) 31 Cal.App.4th 1323, 1333.

E. Conclusion

Mengistu’s motion to quash the Subpoena is denied.

[1] Mengistu asks why HA now seeks Zeleke’s financial history to determine whether she qualifies as an LIA when it claimed otherwise in August 2020 and has refused to restore her subsidized bedroom in Mengistu’s apartment since. Mot. at 8. When the court considers a subpoena for documents or a motion to quash the subpoena, it does not need to second-guess the reason that the propounding party seeks this information now and not sooner. The relevant question in limiting discovery is whether the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. CCP §2017.020(a). The court does not infer from its timing that the Subpoena is an impermissible fishing expedition.