Judge: Joseph Lipner, Case: 19STCV28649, Date: 2023-09-07 Tentative Ruling

Case Number: 19STCV28649    Hearing Date: September 7, 2023    Dept: 72

SUPERIOR COURT OF CALIFORNIA 

COUNTY OF LOS ANGELES 

DEPARTMENT 72 

TENTATIVE RULING 

Plaintiff Fidelity National Title Insurance Company brings a motion to compel responses to request for production of documents. Based on Defendant Washington Square Management, LLC’s failure to provide code compliant responses, Plaintiff Fidelity National Title Insurance Company requests an order pursuant to Code of Civil Procedure section 2031.310 compelling Defendant Washington Square Management, LLC to provide further responses to Plaintiff Fidelity National Title Insurance Company’s Requests for Production of Documents, Set Five, Request Nos. 126, 131, and 132.

Plaintiff Fidelity National Title Insurance Company’s Motion to Compel Further Responses to  Request for Production of Documents, Set Five, Request Nos. 126, 131, and 132 is GRANTED.

Defendant Washington Square Management, LLC is ORDERED to serve further, Code-complaint responses.

Background

Plaintiff Fidelity National Title Insurance Company (“FNTIC”) issued a title insurance policy to defendant Washington Square Management, LLC’s (“WSM”) predecessors-in-interest concerning real properties located on Washington Boulevard and East 18^th Street in Los Angeles. The policy also insured a parking easement described as “Parcel 5” in the policy. WSM took title to the property by grant deed recorded on September 27, 2018. 

WSM tendered a claim to FNTIC regarding the parking easement burdening a property owned by 1232 E. Washington LLC. WSM informed FNTIC that after taking title to the property, it approached 1232 E. Washington LLC to discuss using the parking easement. The principal, Soon Han Pak, denied knowledge of the easement and told WSM to stay off the property.  

FNTIC retained counsel, Fidelity National Law Group, (“FNLG”) to represent WSM, and FNLG filed a declaratory relief action to validate the parking easement. In April 2018, FNLG filed a complaint against 1232 East Washington Blvd Property, LLC and Soon Han Pak, LASC Cas No. BC703862 (the “Pak Action”). The engagement letter signed by defendant stated that the scope of the representation included only the declaratory relief to confirm the validity of the parking easement, not defendant’s counsel requested additional claims for damages and nuisance. 

WSM allegedly breached the duty to cooperate under the title policy by involving FNLG in coverage issues between FNTIC and WSM and repeatedly instructing FNLG to amend the complaint to add claims for damages and nuisance. WSM insisted that the claim for damages would be waived unless included in the declaratory relief  action in the Pak Action. FNTIC and FNLG refused to seek a stipulation from 1232 E. Washington LLC to toll the statute of limitation on any claim for damages. WSM refused to verify discovery responses. 

On May 16, 2019, FNLG informed FNTIC and WSM that it could no longer represent WSM. On May 21, 2019, FNTIC warned WSM that coverage might terminate under the title policy. The Court in the Pak Action relieved FNLG as counsel. On August 7, 2019, FNTIC informed WSM that coverage under the title policy had terminated. FNTIC sought a determination that coverage under the title policy has terminated. WSM then filed a cross-complaint for breach of the title policy and breach of covenant of good faith and fair dealing.

          On March 8, 2022, the Pak Action settled. Trial in the instant case has been continued multiple times because of the impact the settlement in the Pak Action will have on discovery and damages in the instant case. Per the status reports, WSM stated that the settlement will have a “material impact on the discovery to be conducted in this action, including, in particular, expert testimony, and, as to WSM, the calculation of damages it seeks on its cross-complaint against Fidelity.” (Motion p. 5; Ex. 13.) As a result, FNTIC propounded on WSM Requests for Production of Documents Set No. 5 for communications pertaining to the settlement of the Pak Action to discover whether there was collusion.

Following meet and confer efforts, FNTIC brings the instant motion to compel responses.  FNTIC requests an order pursuant to Code of Civil Procedure section 2031.310 compelling WSM to provide further responses to FNTIC’s Requests for Production of Documents, Set Five, Request Nos. 126, 131, and 132. The instant motion is based on WSM’s failure to provide code compliant responses to these requests. 

Legal Standard

Under Code of Civil Procedure section 2031.310 subdivision (a), parties may move for a further response to request for production where an answer to the requests was evasive or incomplete or where an objection is without merit or too general.  

¿ 

Notice of the motions must be given within 45 days of service of the verified response, otherwise, the propounding party waives any right to compel a further response. (Code Civ. Proc. § 2031.310 subd. (c).)  The motions must also be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2031.310 subd. (b).) 

¿ 

Finally, Cal. Rules of Court, rule 3.1345 requires that all motions or responses involving further discovery contain a separate statement with the text of each request, the response, and a statement of factual and legal reasons for compelling further responses. (Cal. Rules of Court, rule 3.1345, subd. (a)(3)).

Discussion

          Meet and Confer

Plaintiff FNTIC’s counsel asserts the parties attempted to meet and confer regarding the deficiencies in Defendants WSM’s served response. (Declaration of Nicholas D. Lauber.) Thus, the meet and confer requirement is met.  

Further Responses  

Plaintiff FNTIC seeks and order compelling Defendant WSM to provide further responses to Plaintiff FNTIC’s Request for Production of Documents, Set Five, Request Nos. 126, 131, and 132.  The motion is based on Defendant WSM’s failure to provide code compliant responses to these requests. 

Request No. 126: “All emails, text messages, letters, faxes, social media posts, notes of phone conversations, other notes, calendars, diaries, contracts, agreements, and all other DOCUMENTS, not including any privileged attorney-client communications or attorney work product, pertaining to the negotiations leading up to the Settlement Agreement and Mutual Release dated February 28, 2022 between 1232 East Washington Blvd. Property LLC, the PAKS, and YOU.”

Request No. 131: “All correspondence, including but not limited to, emails, text messages, letters, faxes, and all other DOCUMENTS between you and the PAKS, not including any privileged attorney-client communications or attorney work product, pertaining to the negotiations leading up to the Settlement Agreement and Mutual Release dated February 28, 2022 between 1232 East Washington Blvd. Property LLC, the PAKS, and YOU.”

Request No. 132: “All correspondence, including but not limited to, emails, text messages, letters, faxes, and all other DOCUMENTS between you and 1232 East Washington Blvd. Property LLC, including its agents, representatives, and attorneys, but not including any privileged attorney-client communications or attorney work product, pertaining to the negotiations leading up to the Settlement Agreement and Mutual Release dated February 28, 2022 between 1232 East Washington Blvd. Property LLC, the PAKS, and YOU.”

          Defendant WSM raised objections on the grounds that the requests are irrelevant, vague, and ambiguous. Defendant WSM also objects based upon the right to privacy and mediation privilege

          Relevance

First, the requests seek relevant information to the issue of whether there was collusion in the settlement of the Pak Action between Defendant WSM and the Paks. “But ‘[f]or discovery purposes, information is relevant if it “might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement….” [Citation.] Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence. [Citation.] These rules are applied liberally in favor of discovery [citation], and (contrary to popular belief), fishing expeditions are permissible in some cases. [Citation.]’ (Citations.)” (Cruz v. Superior Court¿(2004) 121 Cal.App.4th 646, 653–654.)

Here, Defendant WSM states the instant action involves FNTIC’s claim that WSM failed to cooperate. However, the Court disagrees as the instant action does not only involve FNTIC’s claim that WSM failed to cooperate. The instant action also involves the issue of collusion at the detriment of Plaintiff FNTIC, and the requests seek pertinent information as to the issue of collusion.

Vague and Ambiguous

Second, the form of question objections lack merit. Defendant WSM may not intentionally misconstrue a work for obstreperous purposes. “Indeed, where the question is somewhat ambiguous, but the nature of the information sought is apparent, the proper solution is to provide an appropriate response.” (Deyo v. Kilbourne¿(1978) 84 Cal.App.3d 771, 783 superseded by statute on unrelated ground as stated in Guzman v. General Motors Corp.¿(1984) 154 Cal.App.3d 438, 444.)

Here, Defendant WSM lacks support for the objections on the grounds that the requests are vague and ambiguous. 

Privacy

Third, Defendant WSM’s objection based upon the right to privacy is unavailing.  

“[C]orporations do not have a right of privacy protected by the California Constitution.” (SCC Acquisitions, Inc. v. Superior Court (2015) 243 Cal.App.4th 741, 755.) Article I, section 1 of the California Constitution protects the privacy rights of people only and thus do not apply to corporations. (Id. at 755-56.) “While corporations do have a right to privacy, it is not a constitutional right.” (Id. at 756.) “The corporate right to privacy is a lesser right than that held by human beings and is not considered a fundamental right.” (Id.) Because the corporate privacy right is not constitutionally protected, whether a discovery request infringes that right is resolved by balancing the discovery’s relevance to the subject matter of the pending dispute and whether the discovery appears reasonably calculated to lead to the discovery of admissible evidence against the corporate right of privacy. (Id.) “Doubts about relevance generally are resolved in favor of permitting discovery.” (Id.) 

Here, Defendant WSM states that since WSM is not a corporation, but a limited liability company, SCC Acquisitions is of little value. The Court disagrees. Article I, section 1 of the California Constitution protects the privacy rights of people only, not business entities such as corporations and limited liability companies. (Cal. Const. Art. I § 1; SCC Acquisitions, Inc. 243 Cal.App.4^th at 755-56.) As such, whether the instant discovery requests infringe on Defendant WSM’s right is subject to a balancing test. The Court found the requested documents are relevant as to whether there was collusion in the settlement of the Pak Action between Defendant WSM and the Paks. Further, as the requests seek only documents in the possession of Defendant WSM, privacy rights of third party entities, like the Paks, already have been compromised if not waived.

          Mediation Privilege

Fourth, the Court is not convinced by Defendant WSM’s objection based upon the mediation privilege. Pursuant to Evidence Code section 1119, certain evidence involving mediation is not admissible or subject to discovery and may not be compelled in any civil action or proceeding in which the testimony may legally be compelled to be given. These restrictions apply to (1) anything said and any admission made for the purpose of, in the course of, or pursuant to, a mediation or mediation consultation; and (2) any writing prepared for the purpose of, in the course of, or pursuant to, a mediation or mediation consultation. (Cal. Evid. C. §§ 1119 subds. (a) and (b).) In addition, all communications, negotiations, or settlement discussions by and between participants in the course of a mediation consultation must remain confidential. (Id. § 1119, subds. (c).) Mediation ends for purposes of confidentiality when the parties execute a settlement agreement or a writing that terminates the mediation; however, confidential communications made before the end of the mediation remain confidential after the mediation ends. (Cal. Evid. C. §§ 1125, 1126.)

Here, Defendant WSM provides that that the documents sought are related to communications that took place for the purpose of, in the course of, or pursuant to mediation, which took place on November 13, 2019.  However, on March 8, 2022, a settlement agreement was entered into and, thus, any mediation privilege as to further communications has been terminated pursuant to section 1125. Defendant WSM failed to address why the mediation privilege would continue to apply after execution of the settlement agreement or that mediation was ongoing from November 13, 2019. Further, Defendant WSM failed to demonstrate that the requested documents were part of the mediation. Defendant WSM’s response to separate statement merely provides that the requested documents are related to communications that took place for the purpose of, in the course of, or pursuant to mediation. To the Court’s knowledge, Defendant WSM has not provided a privilege log to justify such an objection. (See Code Civ. Proc., § 2031.240, subd. (c)(1) [“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.].”

Based on the foregoing, Plaintiff Fidelity National Title Insurance Company’s Motion to Compel Further Responses to  Request for Production of Documents, Set Five, Request Nos. 126, 131, and 132 is GRANTED.

Defendant Washington Square Management, LLC is ORDERED to serve further, Code-complaint responses.