Judge: Kenneth J. Medel, Case: 37-2021-00050764-CU-OR-CTL, Date: 2023-09-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - September 28, 2023

09/29/2023  09:30:00 AM  C-66 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Kenneth J Medel

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Civil - Unlimited  Other Real Property Discovery Hearing 37-2021-00050764-CU-OR-CTL CREECH VS GARDNER [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Compel Discovery, 04/21/2023

As a preliminary matter, while Jaime Harris's opposition to plaintiffs Elizabeth Creech, Dennis Creech, and Nora Creech's ('Plaintiffs') motion to compel further responses was untimely, considering the lack of any substantial prejudice to the Plaintiffs, the Court has exercised its discretion under California Rules of Court, Rule 3.1300 and has chosen to consider the opposition.

Further, the Court has granted Plaintiffs' requests for judicial notice regarding notice of entry of order granting motion for relief from the automatic bankruptcy stay under 11 U.S.C. § 362. As the bankruptcy stay has been terminated as to Ms. Harris and her estate, the opposition's argument that the bankruptcy applies to this matter is moot.

Plaintiffs' motion seeks to compel further responses to request for productions No. 2-3 and 5 ('Requests'). The Requests all seek communications relating to the sale and purchase of the two properties that are the subject of this case. As such the Requests and Ms. Harris's objections and opposition to them are addressed together.

Motion to Compel Further Production to Request for Production Nos. 2-3: The motion is GRANTED IN PART. Plaintiff's verified supplemental responses and privilege log are due by October 13, 2023 Request 2: ALL COMMUNICATIONS between YOU and any PERSON RELATED to the GARDNERS' purchase of the LB PROPERTY, including, but not limited to, the GARDNERS, Ron Fineman, Jason/Shelby Istrin, Jeffrey Anderson, Nick Resendez, your brokerage/manager, other agents/brokers, etc.

Request 3: ALL COMMUNICATIONS between YOU and any PERSON RELATED to the GARDNERS' sale of the PB PROPERTY, including, but not limited to, the GARDNERS, Ron Fineman, Jason/Shelby Istrin, Jeffrey Anderson, Nick Resendez, your brokerage/manager, other agents/brokers, etc.

Request 5: ALL DOCUMENTS and COMMUNICATIONS from between YOU and any PERSON RELATING TO the sale of the LB PROPERTY.

Ms. Harrison responded to each of the Requests as follows: Response: Calendar No.: Event ID:  TENTATIVE RULINGS

2965917  48 CASE NUMBER: CASE TITLE:  CREECH VS GARDNER [IMAGED]  37-2021-00050764-CU-OR-CTL After a diligent search and reasonable inquiry, Responding Party will produce all responsive documents in their custody, possession or control that do not violate any third party's right to privacy.

Plaintiffs motion argues that Ms. Harris has not produced all responsive documents, including any responsive emails and the actual production did not include all responsive text messages and many of the produced text messages were incomplete.

Ms. Harris's opposition contradictorily argues that: (1) the requests were overly broad as to time and scope and that compliance would pose an undue burden; (2) she has complied with the subpoena for 'the specific time frame requested in the subpoena'; and (3) she has complied with the subpoena within a 'reasonable time period.' Ms. Harris's responses did not include objections to the scope of the Requests or indicate that her production would be limited to any time period. The Court is not required to engage in every opposition raised at the time of the motion when those objections were not raised in the responses. Further, contrary to Ms. Harris's representations, the Requests do not include a 'specific time frame' and neither the opposition, nor Ms. Harrison's declaration, define the 'reasonable time period' for which Ms. Harris claims to have produced documents.

The meet and confer correspondence submitted in support of Plaintiffs' motion does not demonstrate any agreement to limit the scope of the production and instead only include an incorrect statement by Ms. Harris's counsel that the Requests expressly limited the production to a period from February 28, 2021 to April 20, 2021. (Ponist Decl., Exhibits 4-8).

Plaintiffs have demonstrated that there were communications, including emails, between Ms. Harris and others related to the two properties, and therefore responsive to Plaintiffs' requests, from January 2021 through July 2021. (Ponist Decl., ¶ 11 Exhibits 9-10.) As such, Plaintiffs' moving papers and the submitted evidence contradict the opposition's arguments regarding the scope of what was requested and the timeframe for relevant communications.

Further, Ms. Harris's claim that she fully complied with Plaintiffs' subpoena (Harris Decl., ¶ 9) is not supported by the evidence and is contradicted her own opposition which implicitly admits that Ms.

Harris's production was limited in time and scope. (Oppo., 5:5-15.) The opposition also claims that 'Ms. Harris proactively took steps to ensure the completeness of the text message conversations by providing the preceding message where a message appeared to be cut off.' (Oppo., 3:18-21). Ms. Harris did not submit any evidence in support of this claim, and it is refuted by evidence submitted by Plaintiffs.

Plaintiffs have demonstrated that there were communications between Ms. Harris and others from January 2021 through July 2021 that are responsive to the Requests. Ms. Harris has not presented credible evidence that she produced all documents responsive to the Request that are within her possession, custody, or control.

Accordingly, Jaime Harris is ordered to provide supplemental verified responses to the subpoena for requests numbers 2, 3 and 5. The verified supplemental responses shall state, in plain and simple language: (1) whether Ms. Harris has any documents responsive to the requests; (2) whether Ms. Harris has or will produce all such documents; and (3) whether Ms. Harris is withholding from production any responsive documents. The supplemental verified responses shall be served by October 13, 2023.

The Court further directs Ms. Harris to prepare a log of any withheld documents and serve it on the Plaintiffs by October 13, 2023.

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