Judge James C. Chalfant, Case Number: 23STCP01063, Date: 2024-02-06 Tentative Ruling

Public Land for Public Use v. City of Beverly Hills and Beverly Hills City Council, 23STCP01063

Tentative decision on motion to compel further responses: granted in part

Petitioner Public Land for Public Use (“PLPU”) moves to compel Respondent City of Beverly Hills (“City”) to provide further discovery responses to its Requests for Production of Documents, Set Two (“RFPs”).

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

Petitioner PLPU commenced this action on April 7, 2023, against the City and its City Council (collectively, “City”), alleging three causes of action for traditional mandamus. The Petition names the City Clerk as a Real Party-in-Interest and alleges in pertinent part as follows.

This action concerns five acres of City-owned property on Foothill Road between W. 3^rd Street and Alden Drive in Beverly Hills, CA (“Property”). The City has attempted to dispose of the Property in the past but has faced opposition each time. To avoid this, Council placed a vague, unknowable “Item E-6” on its January 24, 2023 meeting agenda which simply said that the subject ordinance would declare “certain real property owned by the City meets the definition of” Government Code (“Govt. Code”) section 54221(b) and that the Subject Land Declaration (“Declaration”) is exempt from the California Environmental Quality Act (“CEQA”). Pet. Ex. 2.

Item E-6 does not describe the Property’s location or size, and it does not alert citizens of the City’s intent to cease use of the Property. The City staff’s comment underneath Item E-6 says that this would allow the City to negotiate with “entities in agreements such as ground leases, to redevelop the properties with future projects that do not meet the definition of Exempt Surplus Land.” This comment does not make it clear that E-6 applies to City-owned property.

The placement of Item E-6 on a consent calendar meant that it would be treated as a routine matter. This avoided a public hearing which would notify residents of Council’s intention. Citizens only learned about Item E-6 when a City watchdog consultant reviewed the agenda report and advised residents of the intended action. When two residents raised concerns, a Councilmember removed the agenda item from the consent calendar. The City Council majority still refused to continue the matter for proper notice and input from residents.

A City official revealed during the same meeting that the purpose of the Declaration was to allow the City to receive an offer from United Talent Agency (“UTA”) to lease the Property. Item E-6 did not disclose this fact. The City also concealed that it could not meet the requirements under the Surplus Land Act (“SLA”), Govt. Code sections 54221 et seq, to declare that City property is “surplus land.”

Well-established protocol requires the City to initiate robust public outreach and study to elicit public input on whether the use of City property should change and for what purpose. When asked at the January 24 meeting why it did not do this, the City falsely asserted that plans for such property use cannot be legally discussed without a declaration that the Property is surplus land. The SLA does not require this confidentiality.

Despite public requests to re-notice and continue the hearing for public input, and without findings or the ability to find that the Property is actually surplus land, the City approved Resolution No. 23-R-13447 (“Resolution”) and the Declaration. The Resolution stated that the Property is “surplus land” not necessary for the City use within the meaning of the SLA. It described the Property as four parcels and a combined five acres of land. Existing developments include a 62,000 square-foot office building with two stories, subterranean parking, and adjacent surface parking. Other uses included a dog park, a laydown yard, and vehicle storage.

The Resolution asserted that most of the Property was formerly leased to a private entity and has been vacant for many years. The low-intensity development of adjacent properties provided a unique opportunity to assemble the properties for a single project.

The lack of transparency in this matter also violated the Brown Act, Govt. Code section 54950 et seq.

PLPU seeks an injunctive relief restraining the City from implementing or taking further action on the Resolution, a writ of mandate invalidating the Resolution, and an award of attorney’s fees and costs.

On April 12, 2023, the court denied PLPU’s ex parte application for a temporary restraining order (“TRO”) and order to show cause re: preliminary injunction (“OSC”) enjoining the City from giving any legal force or effect to the Resolution or Declaration, and from taking any action in reliance on said Resolution. The court ruled that PLPU failed to demonstrate any risk of harm without a pending project, sale, lease, or development.

On September 12, 2023, this court set a discovery cutoff of October 27, 2023 and a November 16, 2023 deadline for filing any discovery motion.

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 party demanding inspection, on receipt of a response to an inspection demand, 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, that party may move for an order compelling further response to the demand. CCP §2031.310.

The moving party on a motion to compel further responses to a production demand bears the initial burden of demonstrating “good cause” for discovery of the requested information. CCP §2031.310(b)(1). This burden is met by a demonstration (a) that the responsive documents contain information which is relevant to the subject matter of the action, and (b) of specific facts indicating the information is necessary. See Glenfed Development Corp. v. Superior Court, (1997) 53 Cal. App. 4^th 1113, 1117. Good cause is normally established by submission of a declaration made on “information and belief.” Weil & Brown, Civil Procedure Before Trial, (2000) 8:1495. 8H-26; See Grannis v. Board of Medical Examiners, (1971) 19 Cal. App. 3d 551, 564. Good cause may be found to justify discovery where specific facts show that the discovery is necessary for effective trial preparation or to prevent surprise at trial. Associated Brewers Dist. Co. v. Superior Court (1967) 65 Cal.3d 583, 588. So, where there is no privilege issue or claim of attorney work product, the burden to show good cause is met by a fact-specific showing of relevance. Glenfed Development Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117. Once good cause is shown, the burden shifts to the opposing party to justify any objections or failure to fully respond. Coy v. Superior Court, (1962) 58 Cal.2d 210, 220-21.

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 requests for production. CCP §§2031.310(c).

The motion must be accompanied by a meet and confer declaration under CCP section 2016.040. CCP §2031.310(b)(1). 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).

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 an inspection 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 §2030.310(h).

If an objection is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log. CCP §2031.240(c)(1). The Discovery Act has codified the concept of a privilege log as that term is used in California case law. CCP §2031.240(c)(2).

A privilege claimant has the initial burden of proving the preliminary facts to show the privilege applies. Lopez v. Watchtower Bible & Tract Soc., (2016) 246 Cal.App.4th 566, 596. The purpose of a privilege log is to provide a specific factual description of documents in aid of substantiating a claim of privilege in connection with a request for document production. Catalina Island Yacht Club v. Superior Court, (“Catalina”) (2015) 242 Cal.App.4th 1116, 1125. The purpose of providing a specific factual description of documents is to permit a judicial evaluation of the claim of privilege. Id. at 1125.

The court in Catalina held that the precise information required for an adequate privilege log will vary from case to case based on the privileges asserted and the underlying circumstances. Id. at 1130. In general, however, a privilege log should provide the identity and capacity of all individuals who authored, sent, or received each allegedly privileged document, the document’s date, a brief description of the document, and its contents or subject matter sufficient to determine whether the privilege applies, and the precise privilege or protection asserted. Id.

On October 16, 2023, the City responded to the RFPs. Bojeaux Decl., ¶3, Ex. 2.[2] After a prefatory statement, it objected to every RFP at issue as compound. Bojeaux Decl., ¶3, Ex. 2. It also objected to RFP Nos. 3-7 and 12-13 as vague and ambiguous, RFP Nos. 3-13 and 19-20 as irrelevant, RFP Nos. 10-13 as overbroad in time and scope, RFP Nos. 19-20 as overbroad, RFP Nos. 12-13 as lacking foundation, and RFP Nos. 3-11 and 16-20 as protected under the attorney-client privilege and attorney work product doctrine. Bojeaux Decl., ¶3, Ex. 2.

As to relevance of RFP Nos. 2-9, the City argued that the only relevant question was whether the description of Item E-6 on the January 24, 2023 agenda complied with the Brown Act. Bojeaux Decl., ¶3, Ex. 2. Any information about the drafting process was therefore irrelevant. Bojeaux Decl., ¶3, Ex. 2. As to RFP Nos. 3-7, they were vague and ambiguous because the City cannot have “thought” anything because it is an entity and not an individual. Bojeaux Decl., ¶3, Ex. 2. RFP Nos. 12-13 were vague and ambiguous because they asked about the “interest” and “desire” of a third party. Bojeaux Decl., ¶3, Ex. 2.

Without waiving the objections, the City agreed to produce documents responsive to RFP Nos. 3 and 8-9. Bojeaux Decl., ¶3, Ex. 2. It also agreed to produce documents responsive to RFP Nos. 10-11 dated on or after January 1, 2022. Bojeaux Decl., ¶3, Ex. 2. It produced the agendas for City Council meetings on November 15 and December 6, 2022 but asserted no other non-privileged documents were responsive to RFP Nos. 16-17. Bojeaux Decl., ¶3, Ex. 2.

The City asserted that it could not produce documents responsive to RFP Nos. 4-7 without clarification. Bojeaux Decl., ¶3, Ex. 2. It did not respond to RFP Nos. 12-13 or 19-20 beyond the objections. Bojeaux Decl., ¶3, Ex. 2.

Also on October 16, 2023, the City produced a privilege log listing 45 documents protected as either attorney-client communications, attorney work product, or closed session materials under Govt. Code section 54956.8. Bojeaux Decl., ¶4, Ex. 3. The privilege log did not explain which documents would otherwise be responsive to which RFPs. Bojeaux Decl., ¶4, Ex. 3. Privileged documents include attorney/client communications and work product notes by Stephanie Cao (“Cao”) dated November 5, 2022 (No. 6) and December 6, 2022 (No. 7), an email chain about closed session reports from Logan Phillippo (“Phillippo”) to Ryan Gohlich (“Gohlich”) on June 23, 2023 at 8:47 a.m. (No. 25), and an email chain about closed session reports from Gohlich to Phillippo later that day at 1:07 p.m. (No. 26). Bojeaux Decl., ¶4, Ex. 3.

On October 18, 2023, PLPU asked the City to explain which of the produced documents were responsive to which RFPs. Bojeaux Decl., ¶6. The City’s response on October 23, 2023 showed that documents were responsive to only RFP Nos. 2-3, 8-11, 14-15, and 18. Bojeaux Decl., ¶6, Ex. 4.

On October 30, 2023, PLPU emailed the City about its refusal to properly respond to RFP Nos. 4-7, 16-17, and 19-20. Bojeaux Decl., ¶7, Ex. 5. PLPU asserted that the City violated the SLA by negotiating with UTA in closed agenda sessions before it issued an SLD and dealt with housing providers. Bojeaux Decl., ¶7, Ex. 5. It then realized it could not enter a proper SLD because the Property was used for a City purpose. Bojeaux Decl., ¶7, Ex. 5.

The City did not want residents to weigh in on the Property’s use because they would oppose leasing or selling it to UTA. Bojeaux Decl., ¶7, Ex. 5. It also did not want residents to know of the blunder in hopes that the City could move forward with leasing the Property to the UTA before an unsuspecting public. Bojeaux Decl., ¶7, Ex. 5. City agents therefore obfuscated their intentions with a deceptive agenda item description and placed the matter on the consent calendar. Bojeaux Decl., ¶7, Ex. 5.

The October 30 email noted that, when PLPU applied for a TRO, the court chose not to act because City personnel had not acted on the Declaration. Bojeaux Decl., ¶7, Ex. 5. The City has since complied with required procedures based on the fraudulent Declaration, without negotiating with affordable housing providers. Bojeaux Decl., ¶7, Ex. 5. The RFPs at issue sought to demonstrate the City’s motivation. Bojeaux Decl., ¶7, Ex. 5. PLPU then outlined how each RFP was relevant. Bojeaux Decl., ¶7, Ex. 5.

On October 31, 2023, PLPU sent City an email regarding its response to RFP Nos. 16-17. Bojeaux Decl., ¶8, Ex. 6. The City had asserted the only non-privileged documents responsive to those RFPs were the closed session agendas for November 15 and December 6, 2022 City Council meetings. Bojeaux Decl., ¶8. The privilege log had asserted that Govt. Code section 54956.8 protects Privilege Log Nos. 6-7 as closed session materials. Bojeaux Decl., ¶8, Ex. 6. However, PLPU’s October 31 email asserted that Govt. Code section 54956.8 does not protect closed session materials from production in litigation under a confidentiality agreement. Bojeaux Decl., ¶8, Ex. 6. It also noted that although the privilege log labeled these documents as attorney notes, these notes could also include minutes of the closed sessions meeting or unprivileged documents from the closed session packets. Bojeaux Decl., ¶8, Ex. 6.

The October 31 email also asked why Privilege Log Nos. 25-26, email chains about closed session reports, remain confidential when they do not involve communication with legal counsel. Bojeaux Decl., ¶8, Ex. 6. PLPU argued they should be produced per the parties’ confidentiality stipulation (“Stipulation”). Bojeaux Decl., ¶8, Ex. 6.

On November 2, 2023, PLPU asked the City to identify which of the documents in the privilege log apply to which RFPs. Bojeaux Decl., ¶9, Ex. 7.

On November 9, 2023, PLPU asked to meet and confer regarding the substance of four emails it had previously sent. Bojeaux Decl., ¶10, Ex. 8. PLPU explained it needed to draft motions to compel further responses on any unresolved issues by the November 16 deadline the court had set. Bojeaux Decl., ¶10, Ex. 8.

On November 12, 2023, the City responded to the meet and confer email. Bojeaux Decl., ¶11, Ex. 9. PLPU responded later that day. Bojeaux Decl., ¶12, Ex. 10.

On November 13, 2023, the parties met and conferred over the telephone about the various concerns with the RFPs and City’s responses. Bojeaux Decl., ¶13, Ex. 11. An email after the conversation memorialized the substance thereof. Bojeaux Decl., ¶13, Ex. 11.

Counsel for PLPU spent over 3.5 hours drafting the emails prior to November 12, 2023, 40 minutes reviewing the City’s November 12 email, 1.5 hours drafting the November 12 email, 1.25 hours on the telephonic meet and confer, 20 minutes to draft the November 13, 2023 email memorializing it, and 15 hours to prepare the moving papers for this motion. Bojeaux Decl., ¶14. PLPU’s counsel expects to spend another hour preparing for the motion, plus one more reviewing the tentative and attending the hearing, for a total of 24 hours. Bojeaux Decl., ¶14.

Based on 36 years of trial and appellate experience, counsel for PLPU’s $350 hourly rate is reasonable. Bojeaux Decl., ¶14. PLPU’s attorney’s fees total 24 x $350 = $8,400. Bojeaux Decl., ¶14. PLPU also will incur about $100 in costs related to this motion, for a total of $8,500. Bojeaux Decl., ¶14.

When the City responded to the RFPs on October 16, 2023, it sent a privilege log and a link to responsive documents Bates-stamped from 651 to 1143. Giovinco Decl., ¶2, Ex. A. The same email explained that because a Paralegal Manager became ill and had to leave early, counsel still needed to confirm the status of some redacted items for production. Giovinco Decl., ¶3, Ex. A. This included whether they were already listed on the privilege log or needed to be added. Giovinco Decl., ¶3, Ex. A. Counsel expected to complete this by the next day, but the Paralegal Manager was out sick then as well. Giovinco Decl., ¶3, Ex. A.

On October 18, 2023, the City produced additional documents Bates-stamped from 1144 to 1192. Giovinco Decl., ¶4, Ex. A. It also sent an updated privilege log adding nine partially redacted documents. Giovinco Decl., ¶5, Exs. A-B.

The City was never amenable to producing documents relating to RFP Nos. 12-13 over a nine-year timespan. Giovinco Decl., ¶11. During the November 13, 2023 meet and confer, the City suggested a timeframe from January 2022 to the date of the lawsuit, without conceding that was appropriate. Giovinco Decl., ¶11. PLPU refused to agree to anything less than a 13-year span. Giovinco Decl., ¶11.

On November 25, 2023, the court signed the Stipulation between the parties as to confidential documents. Giovinco Decl., ¶12, Ex. C.

On January 17, 2024, the parties continued meet-and-confer efforts via a one-hour meeting in person to discuss the City’s objections to the demands in this motion to compel. Giovinco Decl., ¶8. The parties continued to dispute the relevance of RFPs 3-7, 12-13, 16-17, and 19-20 based on the limited scope of the case. Giovinco Decl., ¶9. They discussed the scope of RFP Nos. 4-7, which PLPU still wanted to include documents reflecting the thoughts of unnamed staff as well as City attorneys. Giovinco Decl., ¶9. As to RFPs 12-13, the City rejected PLPU’s suggested seven-year timeframe for the same reasons it rejected a 13-year timeframe. Giovinco Decl., ¶9. PLPU also continued to request confidential and privileged documents subject to the attorney-client communication and attorney work product privileges, communications with third parties for at least the last seven years, and additional information regarding the privilege log. Giovinco Decl., ¶9.

The City has never engaged in gamesmanship or otherwise used the discovery process for an improper purpose. Giovinco Decl., ¶13. It timely responded to multiple rounds of discovery with specific and detailed responses, and objections supported by case authority, thousands of pages of documents, and detailed privilege logs. Giovinco Decl., ¶13. This dispute arose from the City’s good-faith, reasoned understanding of the law surrounding the relevant issues. Giovinco Decl., ¶13.

Although the City produced 2,500 pages of documents, most were duplicates because people often copied prior emails to several other people. Bojeaux Reply Decl., ¶5. If the City was not trying to hide things, it would have produced the documents it understood PLPU wanted and indicated which privilege log entries relate to which RFPs. Bojeaux Reply Decl., ¶6.

In emails from late March 2023, UTA said the City has indicated it was required to offer the Property as housing. Bojeaux Reply Decl., ¶4, Ex. 2. Depending on where that “ended up,” the City had said that it could reengage with UTA in the latter half of 2023. Bojeaux Reply Decl., ¶4, Ex. 2. UTA now asked when the City thought this reengagement could occur. Bojeaux Reply Decl., ¶4, Ex. 2.

Two days later, the City explained the 60-day period for certain agencies to express interest in the Property would expire on April 11, 2023. Bojeaux Reply Decl., ¶4, Ex. 2. Because one entity had expressed interest, the City needed to negotiate with the entity for at least 90 days, or through July 2023. Bojeaux Reply Decl., ¶4, Ex. 2. The City would then have a better understanding of the situation, but the third or fourth quarter of 2023 still felt like an appropriate estimate for when UTA discussions would recommence. Bojeaux Reply Decl., ¶4, Ex. 2.

PLPU believes the City does not want to produce documents after the Petition’s filing date. Bojeaux Reply Decl., ¶4. These documents would show the City sought to go through empty motions of negotiating with housing providers per the SLA before returning to UTA negotiations. Bojeaux Reply Decl., ¶4.

On January 18, 2024, the parties met and conferred about the issues in this motion. Bojeaux Reply Decl., ¶3. PLPU memorialized the substance thereof in an email the next day. Bojeaux Reply Decl., ¶3, Ex. 1.

Counsel for PLPU spent an hour to meet and confer in person, one hour of travel time, 0.75 to confirm the substance of such meet and confer in email format, and over 8 hours to review the opposition and prepare a reply. Bojeaux Reply Decl., ¶7. These 10.75 hours of work add $350 x 10.75 = $3,763 to the accrued fees on this motion, for a total of $8,500 + $3,763 = $12,263. Bojeaux Reply Decl., ¶7.

Petitioner PLPU moves to compel further responses to RFP Nos. 4-7, 12-13, 16-17, and 19-20, including the production of Privilege Log Document Nos. 6, 7, 25, and 26 and to compel the City to explain which of the documents listed in the privilege log are responsive to RFP Nos. 3-11, 16-17, and 19-20.

Each 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 into the separate statement by reference. Id. For each request, the statement must include (1) the text of the request or interrogatory; (2) the text of each response, answer, or objection; and (3) a statement of the factual and legal reasons for compelling further responses, answers, or production. Material must not be incorporated by reference. Id.

PLPU’s separate statement is non-compliant for RFP Nos. 5, 6, 7, 13, and 17 because it incorporates its arguments for other RFPs in violation of CRC 3.1345(c). As a result, these demands will not be further considered and only RFP Nos. 4, 16, 19, and 20 will be addressed.[3]

If the responding party to discovery objects to the demand for inspection, copying, testing, or sampling of an item or category of item, the response shall identify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made. CCP §2031.240(b)(1).

PLPU asserts that the objections in the prefatory statement of the City’s response to the RFPs are improper and should be excluded. Mot. at 77. Although the City disputes whether this statement was improper, it also asserts it did not rely on this statement in its response to each RFP. Opp. at 14. The court need not discuss the prefatory statement further.

The Civil Discovery Act applies to statutory special proceedings that are silent with respect to discovery. City of Los Angeles v. Superior Court, (2017) 9 Cal.App.5^th 272, 286. A trial court may compel discovery if the petitioner makes an adequate showing that the discovery is likely to aid in the resolution of the particular issues presented in the proceeding. See id. at 289. However, the trial court may exercise its conventional authority to limit discovery as required. Id. at 289.

In the absence of contrary court order, a civil litigant’s right to discovery is broad. Williams v. Superior Court, (2017) 3 Cal. 5th 531, 541. The Civil Discovery Act permits discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. CCP §2017.010. Evidence is relevant if it has any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. Evid. Code §210.

The motion for an order compelling further responses to a request for production shall set forth specific facts showing good cause justifying the discovery sought by the demand. CCP §2031.310(b)(1). The supporting declarations must show specific facts rather than conclusions. Fireman’s Fund Ins. Co. v. Superior Court, (1991) 233 Cal.App.3d 1138, 1141 (desire to review documents for “context” insufficient). If good cause is shown, the burden shifts to the responding party to justify any objections made to document disclosure. Kirkland v Superior Court, (202) 95 Cal.App.4^th 92, 98.

RFP No. 4 seeks documents pertaining to any facts or statements that the City thought should be included or omitted in agenda Item E-6. Bojeaux Decl., ¶2, Ex. 1. The City relies on its objection that RFPs about agenda drafts are not relevant because the only issue is whether the final Item E-6 complies with the Brown Act. Bojeaux Decl., ¶3, Ex. 2. Opp. at 8. In essence, the Citiy contends that PLPU has not made a fact-specific showing of relevance. See Glenfed Development Corp. v. Superior Court, supra, 53 Cal.App.4th at 1117.

The Brown Act is codified at Govt. Code section 54950 et seq. The purpose of the Brown Act is to ensure the public’s right to attend public meetings, to facilitate public participation in all phases of local government decision making, and to curb misuse of the democratic process by secret legislation of public bodies. Chaffee v. San Francisco Library Commission, (2004) 115 Cal.App.4th 461. A major objective of the Brown Act is to facilitate public participation in all phases of local government decision making and to curb misuse of democratic process by secret legislation by public bodies. Sacramento Newspaper Guild v. Sacramento County Bd. of Supervisors, (1968) 263 Cal.App.2d 41, 50. The Brown Act “is a remedial statute that must be construed liberally so as to accomplish its purpose.” Shapiro v. Board of Directors, (2005) 134 Cal.App.4th 170, 181 (citing Epstein v. Hollywood Entertainment Dist. II Bus. Improvement Dist., (2001) 87 Cal.App.4th 862, 869).

PLPU believes Item E-6 was so worded and listed on a consent calendar to prevent public scrutiny of the measure. The Brown Act seeks to prevent such underhanded lawmaking through transparency requirements. PLPU contends that RFP No. 4 is relevant to prove the agenda description was intended to be misleading. Prior drafts are relevant insofar as changes between them may reveal whether the City tried to conceal plans to lease the Property to the UTA. PLPU has explained this to the City more than once, and the City has failed to respond to this argument. Bojeaux Decl., ¶7, Ex. 5. RFP No. 4 seeks relevant information.

RFP No. 12 seeks any communication between the City and UTA about any interest or desire UTA had in leasing or purchasing property in the City, including but not limited to the Property. Bojeaux Decl., ¶2, Ex. 1. The City argues that this action challenges the City Council’s legislative determination that the Property is surplus. As a result, the Resolution and possibly the accompanying staff report are the only relevant documents. No other documents are relevant to this issue.

PLPU asserts that the City’s motive was to lease the Property to UTA when it knew the public would not agree. Bojeaux Decl., ¶7, Ex. 5. It presents evidence that UTA wants to recommence such negotiations after the City finishes mandatory negotiations with a housing developer. Bojeaux Reply Decl., ¶4, Ex. 2. Whether UTA was interested before the January 24, 2023 City Council meeting is relevant to whether the City had reason to make the Declaration vague and planned to do so. RFP No. 12 seeks relevant information.

RFP Nos. 19-20 seek information about the City’s use of the Property after the City Council passed the Resolution, including discussions about the Property at the June 27, 2023 closed session City Council meeting. Bojeaux Decl., ¶7, Ex. 5. The City’s motive in passing the Resolution and Declaration is relevant. Any conversations after their passage are relevant because they reflect the City’s intent to execute whatever plans motivated the decision to begin with. RFP Nos. 19-20 are relevant.

An objection for vagueness is unjustified and evasive when there is ample information that the party understood the meaning of the term. See Clement v. Alegre, (2009), 177 Cal.App.4th 1277, 1286-87.

RFP No. 4 asks what the City “thought” to include or exclude in agenda Item E-6 or the agenda report. Bojeaux Decl., ¶2, Ex. 1. The City argues that this was vague and ambiguous because the City is an entity, not an individual and it could not produce documents responsive without clarification. Bojeaux Decl., ¶3, Ex. 2.

PLPU later asserted the City “does its thinking through its agents and employees.” Bojeaux Decl., ¶7, Ex. 5. The City responded that its official legislative body is the City Council and what other individual employees think is irrelevant. Bojeaux Decl., ¶11, Ex. 9. The City now argues that it cannot reasonably ascertain what every agent and employee “thought” should be included in the agenda description or report. When it attempted to limit the list of relevant employees during meet-and-confer efforts on January 17, 2024, PLPU still wanted documents reflecting the thoughts of unnamed staff as well as City attorneys. Giovinco Decl., ¶9.

PLPU asserts that based on the context, it was easily understood that the RFP used the word “City” to refer to employees responsible for drafting the agenda description or report. Bojeaux Decl., ¶11. Reply at 5. The court agrees.

RFP Nos. 12-13 seek any communication between the City and UTA about any interest or desire UTA had in leasing or purchasing property in the City. Bojeaux Decl., ¶2, Ex. 1. The City argues that it cannot determine the interest or desire of a third party like UTA. Opp. at 12.

Not so. Documents that include statements from the UTA reflect its intent. For example, PLPU has submitted an email from UTA asking the City about when they can resume negotiations to rent the Property. Bojeaux Reply Decl., ¶4, Ex. 2. This email makes it clear UTA intends to rent the Property.

Burden is inherent in all demands for discovery. West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 417. There is always a burden in a search and production. See Alpine Mutual Water Co. v. Superior Court, (1968) 259 Cal.App.2d 45, 55. To support an undue burden objection, there must be some showing that the ultimate effect of the burden is incommensurate with the result sought. Id. at 417. In deciding the issue, the court has a discretionary power to grant in part and deny in part, balance the equities, including costs, and to balance the purpose and need for the information against the burden which production entails. Id. See Mead Reinsurance Co. v. Superior Court, (“Mead”) (1986) 188 Cal. App. 3d 313, 318, 320-21 (denying motion to compel when defendants had demonstrated that a response would have required manual evaluation of over 13,000 open files and cost the company thousands to hire and train personnel).

RFP Nos. 12-13 do not include a timeframe for which the City should search for responsive documents. Bojeaux Decl., ¶2, Ex. 1. Opp. at 12. PLPU’s November 13 email memorializing a telephonic meet and confer asserted that PLPU offered to limit the timespan to 13 years, the tenure of the most senior Councilmembers supporting the Resolution. Bojeaux Decl., ¶13, Ex. 11. The City asked PLPU to limit RFP No. 12 and 13 to nine years, ending on February 1, 2023 even though PLPU asserted the City and UTA continued discussing the Property after that date. Bojeaux Decl., ¶13, Ex. 11.

The City denies that it ever offered to produce responsive documents over a nine-year timespan. Giovinco Decl., ¶11. It offered a timeframe from January 2022 to the date of the lawsuit, without conceding that was appropriate. Giovinco Decl., ¶11. On January 17, 2024, it rejected PLPU ‘s suggested seven-year timeframe for the same reasons it rejected a 13-year timeframe. Giovinco Decl., ¶9.

PLPU explains that it did not want to limit the scope because it wants to show a longstanding dialogue between UTA and the City. Mot. at 75. This dialogue continued after the City passed the Resolution, when UTA asked via email for an estimated date by which reengagement on the issue could occur. Bojeaux Reply Decl., ¶4, Ex. 2. As discussed above, the Petition alleges the City violated the SLA so it could lease the Property to UTA. This motive can pre-date the adoption of the SLA in 2019.

The City’s evidence does not describe the burden it would face if forced to produce these documents. PLPU cites Mead Reinsurance Co. v. Superior Court, (1986) 188 Cal. App. 3d 313, 321, which requires the non-propounding party to show that the ultimate effect of the burden is incommensurate with the result sought. Reply at 6. The City has not shown an undue burden.

Nonetheless, PLPU fails to show good cause for the production of an entire 13-year period of documents simply to show a longstanding relationship between the City and UTA. The court also has discretion to limit discovery. CCP §2019.030(a)(2); Mead, supra, 188 Cal. App. 3d at 321. Because the City’s relationship with UTA is relevant only as to motive, PLPU cannot justify reviewing 13 years of communications between UTA and the City. Although there is nothing significant about the SLA’s adoption in 2019, limiting production to the five-year period after its passage is reasonable.

The City asserts that RFP Nos. 19-20 are overbroad because they seek documents post-dating the lawsuit, which cannot be relevant. Opp. at 13. As discussed, post-lawsuit documents can demonstrate that the intention to lease the Property has survived the Resolution and influenced its adoption.

The scope of RFP Nos. 12-13 is limited to documents after the SLA’s adoption in 2019. The scope of RFP Nos. 19-20 is not overbroad.

The City objected to every RFP at issue as compound. Bojeaux Decl., ¶3, Ex. 2. The November 12 emails dispute whether the use of the word “or” multiple times rendered the RFPs compound. Bojeaux Decl., Exs. 9-10. The City reiterates this argument, noting that several RFPs being with the phrase “writings that evidence, mention, discuss, or refer to any facts or statements…” Bojeaux Decl., ¶2, Ex. 1. Opp. at 13.

The court need not discuss this in detail. Special interrogatories may not contain subparts or a compound, conjunctive, or disjunctive question. CCP §2030.060(d). As PLPU notes, no statute creates a similar constraint for RFPs. The City admits that its responses to the RFPs at issue do not rely on this objection. Opp. at 14.

RFP Nos. 16-17 seek writings concerning the discussions, conclusions, and decisions relating to the Property at closed session City Council meetings in December 2022 and June 2023. Bojeaux Decl., ¶2, Ex. 1. The City notes that it provided the agenda for each session while asserting there were no other non-privileged responsive documents. Bojeaux Decl., ¶3, Ex. 2. Opp. at 14-15.

PLPU concedes in reply that the agenda was produced but argues that the City should have produced unprivileged documents from the closed session packets. Reply at 7. PLPU made this argument in the October 31 email, noting that the privilege log labeled these documents as attorney notes and closed session materials protected under Govt. Code section 54956.8. Bojeaux Decl., ¶8, Ex. 6. This argument therefore concerns whether PLPU has demonstrated the City should produce any documents listed in the privilege log. See post.

PLPU’s requested relief includes the production of non-privileged portions of Privilege Log Document Nos. 6-7 and 25-26 listed in the City’s privilege log. Mot. at 78. These include Cao’s attorney/client communications and work product notes dated November 5 and December 6, 2022, and emails about closed session reports between Phillippo and Gohlich on June 23, 2023. Bojeaux Decl., ¶4, Ex. 3.

The City asserted the documents were protected as either attorney-client communications, attorney work product, or closed session materials under Govt. Code section 54956.8. Bojeaux Decl., ¶4, Ex. 3. PLPU disputed whether the documents labeled as attorney notes may also include minutes of the closed sessions meeting or unprivileged documents from the closed session packets. Bojeaux Decl., ¶8, Ex. 6.

The court need not discuss this issue in detail. The memorandum of points and authorities for this motion (Mot. at 69-78) does not discuss why the court should compel production Nos. 6-7 and 25-26. Opp. at 15. PLPU asserts in reply that the separate statement discussed the merits of this argument. Reply at 7. It does not. Rather, the separate statement identifies each of Nos. 6-7 and 25-26 and improperly purports to impermissibly incorporate arguments from other demands.

PLPU asserts the City must identify which documents listed in the privilege log are responsive to which RFPs. Mot. at 72-73.

The City cites Catalina, supra, 242 Cal.App.4th at 1130 which holds that a privilege log should generally provide the identity and capacity of all individuals who authored, sent, or received each allegedly privileged document, the document’s date, a brief description of the document, and its contents or subject matter sufficient to determine whether the privilege applies, and the precise privilege or protection asserted. Opp. at 10. The City’s privilege log includes this information, and the City asserts it needs nothing else. Id.

The City’s argument ignores Catalina’s larger holding that a specific log might need will vary based on the privileges asserted and the underlying circumstances. Catalina, supra, 242 Cal.App.4th at 1130.

The City argues that PLPU is unable to cite any case authority beyond “common sense” to support its position. Opp. at 11. PLPU need not cite case law when the statute is clear about the nature of privilege logs. The Discovery Act has codified the concept of a privilege log as that term is used in California case law. CCP §2031.240(c)(2). The response to an RFP must provide sufficient factual information for other parties to evaluate the merits of any claim of privilege or protected work product. CCP §2031.240(c)(1). The responding party must provide a separate response to each RFP, including objections of privilege. CCP §2031.210(a)(3).

Based on this statutory scheme, when discovery responses take the form of a privilege log, the log must be divisible into responses for each discovery request to be compliant with CCP section 2031.210(a). The City must identify which items on the privilege log respond to which RFPs.

The court shall impose a monetary sanction against any party 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(h).

PLPU seeks sanctions of $12,263, the total attorneys’ fees it incurred through this motion. Bojeaux Decl., ¶14; Bojeaux Reply Decl., ¶7. The City asserts sanctions are not warranted because it did not engage in gamesmanship or otherwise used the discovery process for an improper purpose. Giovinco Decl., ¶13. Opp. at 17. It timely responded to multiple rounds of discovery with specific and detailed responses, and objections supported by case authority, thousands of pages of documents, and detailed privilege logs. Giovinco Decl., ¶13. This dispute arose from the City’s good-faith, reasoned understanding of the law surrounding the relevant issues. Giovinco Decl., ¶13.

Some of the City’s actions during the meet and confer process undermine this argument. For example, on November 13, 2023, the City offered to produce documents responsive to RFP Nos. 12-13 from January 2022 to the date of the lawsuit. Giovinco Decl., ¶11. If there was no dispute as to production for this period, the City should have produced some responsive documents while the parties negotiated as to beyond this timeframe. The City instead chose to withhold any documents that could be responsive. Bojeaux Decl., ¶3, Ex. 2.

The City has not acted with substantial justification. On the other hand, PLPU has not prevailed on all the issues. The City’s failures are sufficient to warrant sanctions, albeit reduced. Sanctions of $5,000 are imposed.

The motion to compel further responses is granted in part. Within ten days, the City is ordered to produce further responses to RFP Nos. 4, 16, 19, and 20 without objection. For the privilege log, the City is ordered to show which documents described in the log correspond to which RFPs. Sanctions are granted in the amount of $5,000, payable within 30 days and collectible as a judgment.

[1] The City’s objections to the Declaration of Darian Bojeaux are all sustained.

[2] PLPU miscites the response date as September 16, 2023. Bojeaux Decl., ¶3. Were that so, this motion would be untimely as filed more than 45 days after such response. CCP §§ 2030.300(c), 3031.310(c).

[3] The City also is correct that PCLU’s separate statement does not contain a statement of facts, concise statement of the law, evidence and arguments relied on (Opp. at 7), but the court will not deny the other RFPs on that basis.