Judge: John J. Kralik, Case: 20STCV47586, Date: 2023-04-21 Tentative Ruling

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Case Number: 20STCV47586    Hearing Date: April 21, 2023    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiff 710 East Verdugo Townhomes Association (“Plaintiff”) is a condominium complex consisting of 5 condominiums in Burbank.  Plaintiff exists for the purpose of governing, preserving, repairing, operating, maintaining, and managing the project for the benefit of its residents.  Plaintiff alleges that Defendant 710 East Verdugo, LLC (“Verdugo Developer”) acted as the general contractor/owner/developer/seller of the project; Defendant Gaveet Construction, Waterproofing, LLC (“GCW”) was the roofing, balcony, and walkway subcontractor; and Narvan Construction Company (“NCC”) was a subcontractor on the project.  Plaintiff also alleges that Defendant Vanik Manooki (“Manooki”) is a managing member and president/principal of Verdugo Developer and NCC and that Defendants Alis Merzakhani (“Merzakhani”) and Arthur H. Gasamanian are managing members of Verdugo Developer.  Plaintiff alleges that as managing members, Manooki, Merzakhani, and Gasamanian directly authorized and participated in the tortious conduct alleged. 

Plaintiff alleges that Defendants performed work in the common areas, but they violated the residential construction standards enumerated in Civil Code, § 896 for numerous reasons as stated in paragraph 5 on page 7 of the SAC.    

The second amended complaint (“SAC”), filed October 7, 2022, alleges a single cause of action for violation of standards under Civil Code, § 896, et seq.  

On March 29, 2021, Verdugo Developer and NCC filed a cross-complaint against Gaveet Construction, Inc., EBN Plumbing, Serj Air Condition, Calmex Fireplace Equipment Manufacturing Company, Inc., Lion Iron Works, Inc., and M5 Steel for: (1) breach of written contract; (2) breach of written contract to obtain insurance; (3) breach of written contract to indemnify and defend; (4) total equitable indemnity; (5) partial equitable indemnity; (6) implied indemnity; (7) contribution and repayment; (8) declaratory relief for duty to obtain insurance, duty to defend, duty to indemnity, duty to obtain insurance, and duty to contribute; and (9) negligence.

On April 19, 2021, Noraeir Hovsepain dba Gaveet Construction filed a cross-complaint against Vanik Manooki, NCC, NCC (a proprietorship), and Verdugo Developer for: (1) negligent misrepresentation; (2) negligence; (3) equitable indemnity; (4) contribution; (5) implied contractual indemnity; and (6) declaratory relief.  

On December 5, 2022, Noraeir Hovsepain dba Gaveet Construction filed a cross-complaint against Vanik Manooki, NCC, NCC (a proprietorship), Verdugo Developer, Alis Merkakhani, and Arthur H. Gasamanian for: (1) equitable indemnity; (2) contribution; (3) implied contractual indemnity; and (4) declaratory relief.  

On April 3, 2023, Cross-Complainants dismissed without prejudice Cross-Defendant Alis Merkakhani. 

B.     Motion on Calendar

On March 21, 2023, Defendant 710 East Verdugo, LLC (“Defendant” for the purposes of this motion) filed a motion to compel Plaintiff’s further and supplemental responses to Special Interrogatories, set two (“SROG”).

On April 3, 2023, Plaintiff filed an opposition to the motion.

On April 11, 2023, Defendant filed a reply brief.

DISCUSSION

            Defendant moves to compel Plaintiff’s further responses to SROG Nos. 33-98.  Defendant argues that the 66 new SROGs asks the same 4 questions over 24 defects identified by Plaintiff in its complaint at paragraph 5, subparts (a) to (x) in the 1^st cause of action.  (Although Plaintiff cites to subparts (a) to (x), it appears that the SROGs seek further responses as to subparts (i) to (x) only.) 

            For example, SROG Nos. 33-36 ask:

·         SROG No. 33: As to each defect identified in the complaint at paragraph 5(i), stating stucco staining at parapet wall and down spouts indicative of water intrusion, state the date that this was first observed by Plaintiff.

·         SROG No. 34: As to each defect identified in the complaint at paragraph 5(i), state the total amount spent by you to repair, correct, restore, or rebuild the subject property to correct these defects.

·         SROG No. 35: As to each defect identified in the complaint at paragraph 5(i), state the date each payment, whether in part or in full, was paid to repair, correct, restore, or rebuild the defect.

·         SROG No. 36: As to each defect identified in the complaint at paragraph 5(i), state the name, address, telephone number, email, or other contact for each person or entity to whom you paid money to repair, correct, restore, or rebuild, for each defect alleged in paragraph 5(i).

In paragraph 5(i) to (x) of the 1^st cause of action, Plaintiff alleges the following violations of the residential construction standard enumerated in Civil Code, § 896: 

·         i) Stucco staining at parapet wall and downspouts indicative of water intrusion (SROG Nos. 33-36)

·         j) Lack of weep holes for stucco walls and parapet walls (SROG Nos. 37-40)

·         k) Stucco separation at diato flashing (SROG Nos. 41-44)

·         l) Stucco EPS trim deteriorated (SROG Nos. 45-48)

·         m) Inadequate waterproofing of planters allowing leaks (SROG Nos. 49-52)

·         n) Driveway retaining wall’s waterproofing is inadequate with efflorescence and staining present (SROG Nos. 53-56)

·         o) CMU wall cracking (SROG Nos. 57-60)

·         p) Plumbing leaking causing damage to gypsum wallboard and ceilings (SROG Nos. 61-64)

·         q) Concrete cracking and spalling on floor in garage (SROG Nos. 65-68)

·         r) Walls on property line tilting (SROG Nos. 69-72)

·         s) Concrete flatwork cracking (SROG Nos. 73-76)

·         t) Entry gate out-of-square and corroded (SROG Nos. 77-80)

·         u) Stucco stop and door frame finger-joint separation (SROG Nos. 81-84)

·         v) Improper fittings at connection points of sewage pipes (SROG Nos. 85-88)

·         w) Settling issues under investigation (SROG Nos. 89-92)

·         x) HVAC system installed improperly (SROG Nos. 93-96)

To SROG No. 33 (and each of the similar SROGs per alleged violation), Plaintiff objected to the SROG on the grounds that it was vague as to the terms “defect,” “your,” “complaint,” “observed,” and “you”; sought the premature discovery of expert opinion; was compound; sought a legal conclusion; and sought information protected by the attorney-client privilege and/or work product doctrine.  Without waiving objections, Plaintiff responded that on January 16, 2019, a homeowner of one of the condominiums that comprise the subject property reported a leak from his ceiling; Plaintiff’s expert opined that there were various construction defects; Plaintiff’s expert conducted his initial inspection on November 4, 2020 during which the defects were first observed by the expert; and the expert has not yet concluded his investigation. 

The objections are essentially boilerplate in nature.  Where such general “boilerplate” objections are made, this Court has the authority to order a further response.  (See Best Prods., Inc. v. Superior Court (2004) 119 Cal.App.4th 1181, 1189.)  The SROG is not vague as asked and does not seek legal conclusions.  Further, the SROG does not ask for the opinions (reports or writings) of an expert, but asks when Plaintiff observed a violation of the premises, as described in paragraph 5, subparts (i) to (x).  Finally, it is unclear how the attorney-client privilege and/or attorney work product doctrine would be implicated here where Defendant is merely asking when Plaintiff observed the alleged violations. 

Plaintiff’s response does not address SROG No. 33 as asked.  SROG No. 33 asks for the date that Plaintiff first observed the defect.  Plaintiff’s response only provides when someone from the condominium complex reported the defect to Plaintiff and when Plaintiff’s expert observed the leak (which was one month before the filing of the lawsuit).  Plaintiff has not provided any response when it or its employees/agents/representatives observed the violation.  If Plaintiff (or its agents) did not take steps to observe the violation, then it should state as such in its response.  The motion is granted as to SROG No. 33 and the subsequent SROGs asking when Plaintiff first observed the violations in paragraph 5(i) to (x).

To SROG No. 34, Plaintiff made similar objections on the grounds that the SROG was vague and compound, sought the premature discovery of expert opinion and legal conclusions, and sought privileged information.  Plaintiff responded that it was unable to provide a direct response as it was unclear what Defendant was asking as the SROG sought legal conclusion and expert opinions.  Plaintiff responded that it continued to suffer from the describe defects despite repair attempts and no successful repairs to the defects have been completed.  Plaintiff also cited documents (PLA000236-PLA000469, PLA000794-PLA000830, and PLA001148-PLA001157) as responsive to the SROG.  To SROG No. 35, Plaintiff made similar objections and responses, but also responded that No. 35 is duplicative of No. 34. 

As discussed above, the objections and claims of privilege are overruled.  Here, SROG Nos. 34 and 35 are not vague in that they ask for the total amount Plaintiff spent to remedy the subject property to correct the alleged defect in paragraph 5(i) (and thereafter, each of the subparts in the other SROGs), as well as the date of payment.  Plaintiff’s responses do not provide the costs Plaintiff has incurred, which would support Plaintiff’s claim for damages. 

In opposition, Plaintiff argues that it responded as best as it could and that it cited to responsive documents.  Under limited circumstances, a party may specify other “writings from which the answer may be derived or ascertained.” (See CCP § 2030.230.)  A party may only do so when: (1) answering an interrogatory “would necessitate the preparation or the making of a compilation, abstract, audit, or summary of or from” the responding party’s documents; and (2) “the burden or expense of preparing or making it would be substantially the same for the party propounding the interrogatory as for the responding party.”  (Id.)  The response by document production must specifically also cite to Section 2030.230 and contain “sufficient detail to permit the propounding party to locate and to identify, as readily as the responding party can, the documents from which the answer may be ascertained.”  (CCP § 2030.230.)  Making an unwarranted or insufficiently specific response (by document production) is grounds for a motion to compel a further response.  (CCP § 2030.300(a)(1).)  While Plaintiff has identified Bates Stamped pages, the pages span over 250 pages of documents without specifying which documents are responsive to which SROG.  Instead, the same pages are identified in response to each version of SROGs 34 and 35 with respect to the different violations listed in paragraph 5(i) to (x).  Thus, the motion is granted as to SROG Nos. 34 and 35 and the subsequent SROGs asking for the amounts spent and date of payment to repair, correct, restore, or rebuild the defect specified in paragraph 5(i) to (x).

To SROG No. 36, Plaintiff made similar objections on the grounds that the SROG was vague and compound, sought the premature discovery of expert opinion and legal conclusions, and sought privileged information.  Without waiving objections, Plaintiff gave the same response as it did to SROG No. 34 and identified the same documents.    

For the same reasons discussed above, the Court overrules the objections raised by Plaintiff.  The SROG as asked is straightforward, as it essentially seeks the identity and contact information of those who repaired, corrected, restored, or rebuilt the alleged defects in paragraph 5(i) to (x).  The motion is granted to SROG No. 36 and the subsequent SROGs asking for the identity and contact information of those who repaired, corrected, restored, or rebuilt the alleged defects specified in paragraph 5(i) to (x).

            Defendant did not request sanctions in connection with the motion.

            Plaintiff seeks sanctions in the amount of $3,150 against Defendant.  The request for sanctions is denied.

CONCLUSION AND ORDER 

Defendants 710 East Verdugo, LLC’s motion to compel Plaintiff’s further responses to the Special Interrogatories, set two, is granted.  Plaintiff is ordered to provide further responses, without objection, to the discovery within 20 days of notice of this order.

No sanctions shall be awarded in connection with this motion.

Defendant shall give notice of this order.