Superior Court of California

County of Los Angeles

North Central District

Department B

alejandro duran, et al.,

Plaintiffs,

first national funding corp.,

Defendant.

Case No.: 23BBCV00388

Hearing Date: September 29, 2023

[TENTATIVE] order RE:

motion to compel further responses

BACKGROUND

A. Allegations

Plaintiffs Alejandro Duran and The Standard Design Group Nurseries (“Plaintiffs”) allege that they occupied the commercial property at 11660 Ventura Blvd., Studio City, CA 91604 as lessees and tenants and/or sublessees and subtenants. Defendant First National Funding Corp. (“Defendant”) is alleged to be the lessor of the property.

Plaintiffs allege that in early 2020, Defendant advertised the property available for lease as a retail space as an auto dealership with 1,000 square feet of availability, which was zoned and permitted as an office space. (Compl., ¶¶9, 12.) Plaintiffs allege that they negotiated a lease and entered into a written commercial lease on March 6, 2020, with Duran signing as the lessee and Defendant signing as lessor. (Id., ¶¶15-16, Ex. A.) Duran then assigned/sublet the lease to TSDGN, which Defendant was aware and approved of and collected rent from. (Id., ¶¶19-25.)

Plaintiffs allege that unbeknownst to them, Defendant had been notified in writing in August 2015 by the City of Los Angeles that the property was “substandard” and that the property, which was advertised as an office space, was actually permitted for a gym. (Id., ¶¶26-27, Ex. B.) Plaintiffs allege that Defendant fraudulently induced Plaintiffs to sign the lease for an “office space” while incorrectly providing square footage information and having substandard conditions. (Id., ¶29.) Plaintiffs allege that Defendant failed to notify Plaintiffs about these issues and instead encouraged Plaintiffs to perform cosmetic upgrades to the building and landscaping to the adjacent hill and these upgrades were a part of the lease negotiations. (Id., ¶30.) Plaintiffs allege that they opened their commercial landscaping business in June-July 2020 at the property. (Id., ¶31.) However, in July 2020, the City of Los Angeles notified Defendant that the property was still noncompliant with its prior order. (Id., ¶32, Ex. C.) Plaintiffs allege that Defendant failed and refused to remedy the violations and permit issue despite Plaintiffs’ concerns and Plaintiffs requested an abatement of rent, which Defendant denied. (Id., ¶¶34-36.) Defendant then served Plaintiffs with a 3-Day Notice to Pay Rent or Quit (dated September 7, 2022) and filed an unlawful retainer action against them on September 15, 2022. (Id., ¶¶37-39, Ex. D.)

The complaint, filed on February 16, 2023, alleges causes of action for: (1) breach of contract; (2) breach of the covenant of good faith and fair dealing; (3) intentional misrepresentation; (4) negligent misrepresentation; (5) fraud (concealment); (6) fraud in the inducement; (7) retaliatory eviction; (8) violation of Business & Professions Code, § 17200; (9) violation of Business & Professions Code, § 17500; (10) breach of quiet enjoyment; and (11) conversion.

B. Motion on Calendar

On August 1, 2023, Plaintiffs filed a single motion to compel Defendant’s further responses to Form interrogatories, set one (“FROG”), Request for Admissions, set one (“RFA”), and Request for Production of Documents, set one (“RPD”).

On August 21, 2023, Defendant filed an opposition brief.

On August 25, 2023, Plaintiffs filed a reply brief.

The matter initially came for hearing on September 1, 2023. The Court ruled on the motion with respect to the FROG requests only, denying the motion as to FROG Nos. 12.1, 12.6, and 14.2 and declining to award sanctions with respect to the FROGs. The Court ordered Plaintiffs to pay additional filing fees for the motion to be heard as to the RFAs and RPDs. The Court continued the hearing as to the RFAs and RPDs only to September 29, 2023.

DISCUSSION

Plaintiffs move to compel Defendant’s further responses to RFA Nos. 1-10 and RPD Nos. 1-16.

A. RFA Requests

RFA No. 1 asks Defendant to admit that it did not take any action to remedy the violations contained in the Substandard Order and Notice of Late Fees from the City of Los Angeles, Code Enforcement Bureau (“City”) regarding the property, effective date August 28, 2015, compliance date September 27, 2015 (Exhibit B). RFA No. 2 asks Defendant to admit that it did take action to remedy the violations contained in the Substandard Order and Notice of Late Fees from the City regarding the property, effective date August 28, 2015, compliance date September 27, 2015 (Exhibit B). RFA No. 3 asks Defendant to admit that it did not take any action to remedy the violations contained in the Order to Comply – Supplemental from the City, effective date November 16, 2020, compliance date December 16, 2020 (Exhibit C). RFA No. 4 asks Defendant to admit that it did take action to remedy the violations contained in the Order to Comply – Supplemental from the City, effective date November 16, 2020, compliance date December 16, 2020 (Exhibit C).

Defendant objected to the RFAs that the requests were not full and complete in and of themselves, they were compound, the scope was unduly oppressive and burdensome, and the request were vague. Without waiving objections, Defendant denied Nos. 1 and 3 and admitted Nos. 2 and 4. While Defendant raised objections, it eventually responded to Nos. 1-4. It does not appear that there is anything else to add to these requests as Defendant states that regardless of its objections, it responded to Nos. 1-4 in their entirety. The motion is denied as to RFA Nos. 1-4.

RFA No. 5 asks Defendant to admit that prior to the date the lease was signed, it did not inform Duran of any existing code violations as set forth in the Substandard Order and Notice of Late Fee from the City effective date August 28, 2015, compliance date September 27, 2015 (Exhibit B). RFA No. 6 asks Defendant to admit that prior to the date the lease was signed, it did not inform The Standard Group Nurseries of any existing code violations as set forth in the Substandard Order and Notice of Late Fee from the City effective date August 28, 2015, compliance date September 27, 2015 (Exhibit B).

Defendant objected that the RFAs were not full and complete in and of themselves and that the RFAs were compound. Without waiving objections, Defendant denied No. 5, stating that no code violations existed at the time the lease was negotiated/signed by Duran and Defendant. Without waiving objections, Defendant denied No. 6, stating that no code violations existed at the time the lease was negotiated/signed by Duran and Defendant and denied that Defendant had a duty to disclose the information to The Standard Design Group Nurseries as it was not a party to the lease. While Defendant raised objections, it appears that it has responded to RFA Nos. 5 and 6 in full as it has stated that it did not disclose prior violations to Plaintiffs at the time of signing the lease since there were no violations to disclose at that time. If Plaintiffs seek a further investigation regarding why prior violations were not disclosed (that may have been cured by the time of the execution of the lease or if Plaintiffs know of other violations that were not disclosed), Plaintiffs may propound additional discovery. However, based on what is before the Court, Defendant appears to have complied with its discovery obligations on these RFAs. The motion is denied as to RFA Nos. 5-6.

RFA No. 7 asks Defendant to admit that Duran was not required to pay rent under the lease from the date of the Order to Comply – Supplemental from the City, effective date November 16, 2020, compliance date December 16, 2020 (Exhibit C). RFA No. 8 asks Defendant to admit that Duran was not required to pay rent under the lease because of the Substandard Order and Notice of Late Fee from the City, effective date August 28, 2015, compliance date September 27, 2015 (Exhibit B). RFA No. 9 asks Defendant to admit that The Standard Design Group Nurseries was not required to pay rent under the lease from the date of the Order to Comply – Supplemental from the City, effective date November 16, 2020, compliance date December 16, 2020 (Exhibit C). RFA No. 10 asks Defendant to admit that The Standard Design Group Nurseries was not required to pay rent under the lease because of the Substandard Order and Notice of Late Fee from the City, effective date August 28, 2015, compliance date September 27, 2015 (Exhibit B).

Defendant objected that RFA Nos. 7-10 were not full and complete, were compound, sought attorney-client privileged communications, and sought information protected by the work product privilege. Without waiving objections, Defendant denied the RFAs. Again, while Defendant may have raised objections, Defendant states in its opposition papers that it responded to the RFAs in full by stating its denial. Thus, the motion is denied as to RFA Nos. 7-10.

Plaintiffs’ motion to compel Defendant’s further responses to RFA Nos. 1-10 is denied.

B. RPD Requests

RPD No. 1 asks for all documents consisting of, referring to or reflecting Defendant’s communications with any person relating to the Plaintiffs from January 1, 2020 to the present. Defendant objected that the RPD sought irrelevant information, was unduly oppressive and burdensome, sought attorney-client privileged communications, sought information protected by the work product privilege, was overbroad in scope and time, and was vague as to “RELATING TO the Plaintiffs.” Without waiving objections, Defendant responded to No. 1 that it performed a diligent search and is producing BATES FNFC 0120-0279. Plaintiffs argue that this is not a code compliant response because Defendant has not stated whether it is complying, will allow compliance in whole or in part, or is unable to respond. (See CCP §§ 2031.220, 2031.230.) In its opposition, Defendant argues that it has produced documents and that its objections are meritorious because the documents sought by Plaintiffs could include documents between Defendant and counsel, which would be protected. It also argues that the RPD is not tailored in scope or time period. The Court will require a further response from Defendant. While Defendant has provided some documents, Defendant’s response does not clearly state whether this is a full production of documents or whether there are documents it deems outside of the scope/timeframe of the lawsuit or other privileged documents that it is withholding. (Based on Plaintiffs’ moving papers, it appears that a privilege log was produced by Defendant with its amended responses on July 27, 2023.) If the response is not complete, Defendant should state as such. If there are privileged documents, it should produce a privilege log if the privilege log provided was not complete. Thus, the motion is granted as to RPD No. 1.

RPD No. 2 asks for all documents consisting of, referring to, reflecting or relating to Defendant’s communications between Defendant and Daum and/or Carlos Castillo. RPD No. 3 asks for all documents consisting of, referring to, reflecting or relating to Defendant’s communications between Defendant and Carlos Castillo. Defendant objected on essentially the same basis as No. 1 and responded without waiving objections that it performed a diligent search and is producing BATES FNFC 0120-0190. For the same reasons as No. 1, the motion is granted as to RPD Nos. 2-3.

RPD No. 4 asks for all documents consisting of the lease between Defendant and Plaintiff. Defendant objected that the request was vague as to the term “PLAINTIFF.” Without waiving objections, Defendant responded to No. 4 that it performed a diligent search and is producing BATES FNFC 0001-0013. The objection is overruled. The propounding party is identified as Plaintiff Duran on the RPD requests. (See Beach Decl. at Duran’s RPD requests.) The term “Plaintiff” was also defined on page 5 of the RPD requests to mean Duran and any person acting on his behalf. (In addition, Plaintiff Duran was distinct from Plaintiff The Standard Design Group Nurseries as the RPDs referring to Plaintiff The Standard Design Group Nurseries specifically named that Plaintiff like in RPD Nos. 8 and 10.) In the abundance of caution, the Court will order a further response as to RPD No. 4 (if any further documents exist) and clarify the term “Plaintiff” in RPD No. 4 refers to Plaintiff Duran as asked in this RPD.

RPD No. 5 asks for all documents consisting of, referring to, relating to or reflecting any oral agreement between Defendant and Plaintiff regarding the property. RPD No. 6 asks for all documents consisting, referring, relating to, or reflecting any written agreement, other than the lease, between Defendant and Plaintiff regarding the property. RPD No. 8 asks for all documents reflecting, referring, or relating to payments received by Defendant from The Standard Design Group Nurseries relating to and/or referring to the lease.

Defendant objected that RPD Nos. 5, 6, and 8 were unduly oppressive and burdensome, sought attorney-client privileged communications, sought information protected by the work product privilege, and were vague as to the term “PLAINTIFF.” Without waiving objections, Defendant responded to Nos. 5 and 6 that it performed a diligent search and believes there are no such responsive documents. If Defendant is relying on CCP § 2023.230 for its inability to comply, it should state the requisite language: “A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.” (CCP § 2031.230.) Defendant has not stated whether it made a reasonable inquiry as to the matter and why there are no responsive documents—i.e., were they destroyed, stolen, misplaced, etc. or did they never exist in the first place? A further response is warranted. The motion is granted as to RPD Nos. 5, 6, and 8.

RPD No. 7 asks for all documents reflecting, referring, or relating to payments received by Defendant from Plaintiff related to and/or referring to the lease. RPD No. 9 asks for all documents constituting, referring to or relating to communications between Defendant and Duran from January 1, 2020 to February 16, 2023. RPD No. 10 asks for all documents constituting, referring to or relating to communications between Defendant and The Standard Design Group Nurseries from January 1, 2020 to February 16, 2023. Defendant objected to RPD Nos. 7, 9, and 10 in the same manner as it did to No. 5. Without waiving objections, Defendant responded to No. 7 that it performed a diligent search and is producing BATES FNFC 0015-0020. Without waiving objections to Nos. 9-10, Defendant responded to Nos. 9-10 that it performed a diligent search and is producing BATES FNFC 0191-0279. For the same reasons discussed above, the Court will require a further response to RPD Nos. 7, 9, and 10. To clarify the RPDs, “PLAINTIFF” shall refer to Plaintiff Duran. Further, to the extent any documents are being withheld based on the objections or privilege, further responses should be provided and/or a privilege log produced (if the privilege log provided was not complete based on this clarification).

RPD No. 11 asks for all documents relating to or reflecting in any way communications between Defendant and the City regarding the property from January 1, 2010 to the present. Defendant objected to RPD No. 11 in a manner similar to the objections raised in RPD No. 1. Defendant also objected that that the term “CITY” was vague. Without waiving objections, Defendant responded that it performed a diligent search and is producing BATES FNFC 0022-0039 and 0280-0434. However, the term “CITY” is defined in the RPD requests as the City of Los Angeles, including its Code of Enforcement Bureau, and its employees, officers, directors, governing bodies, assigns agents and any person acting on its behalf. Defendant has not stated how the term is vague. To the extent there are additional documents responsive to RPD No. 11 or any additional privileged documents that should be disclosed in a privilege log, the Court grants the motion as to RPD No. 11.

RPD No. 12 asks for all documents reflecting, referring or relating to any actions Defendant took in response to the 2015 letter or order from the City of Los Angeles (Compl., Ex. B) to obtain required permits and/or eliminate code violations. Defendant objected in the similar manner as stated above. Without waiving objections, Defendant responded that it performed a diligent search and has not located any responsive documents. For the same reasons discussed above regarding RPD Nos. 5, 6, and 8, the motion is granted as to RPD No. 12 so that it is code compliant with CCP § 2023.230.

RPD No. 13 asks for all documents reflecting, referring or relating to any actions Defendant took in response to the 2020 letter or order from the City of Los Angeles (Compl., Ex. C) to obtain required permits and/or eliminate code violations. To No. 13, Defendant raised similar objections as above and objected that the term “in response” was vague. Without waiving objections, Defendant responded to No. 13 that it performed a diligent search and is producing BATES FNFC 0025-0119 and 0191-0435. RPD No. 15 asks for all documents upon which Defendant will rely to defend the allegations of the Complaint filed by Plaintiff in the above-captioned matter. Defendant objected to RPD No. 15 and responded without waiving objections that it performed a diligent search and is producing BATES FNFC 0001-0435, and that it is aware that other third parties like City and its various departments have responsive documents. RPD No. 16 asks for all documents referring to the advertisement/marketing of the property since 2018, including Defendant’s efforts to lease the property in 2023. Defendant objected to No. 16 and responded without waiving objections that it performed a diligent search and is producing BATES FNFC 0014. For similar reasons discussed above, the motion is granted as to RPD Nos. 13, 15, and 16.

RPD No. 14 asks for all documents consisting of, referring to or reflecting communications between Defendant and any insurance company related to the property. Defendant objected to No. 14 and also responded without waiving objections that it performed a diligent search and believes there are no such non-privileged and non-objectionable responsive documents. This is not a code compliant response with respect to CCP § 2023.230. The motion is granted as to RPD No. 14.

Plaintiffs’ motion to compel Defendant’s further responses is granted as to RPD Nos. 1-16.

C. Sanctions

The parties each request sanctions for bringing the motion and opposing the motion. The requests are denied. Defendant was largely successful in its opposition on the RFA motion and Plaintiffs were largely successful in their arguments in the motion on the RPDs. At this time, the Court declines to award sanctions. The Court may be inclined to award sanctions on future discovery motions, but it declines to do so on this motion to compel further.

CONCLUSION AND ORDER

Plaintiffs’ motion to compel Defendant’s further responses is denied as to RFA Nos. 1-10 and granted as to RPD Nos. 1-16. Defendant is ordered to provide further responses within 20 days of notice of this order.

No sanctions shall be awarded.

Plaintiffs shall provide notice of this order.