Judge Lynne M. Hobbs, Case Number: 20STCV10953, Date: 2024-06-10 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 20STCV10953, Date: 2024-06-10 Tentative Ruling

Case Number: 20STCV10953 Hearing Date: June 10, 2024 Dept: 61

CV COMMUNITIES, LLC, A DELAWARE LIMITED LIABILITY COMPANY, et al. vs ANTELOPE VALLEY-EAST KERN WATER AGENCY, A CALIFORNIA PUBLIC ENTITY , et al.

TENTATIVE

Plaintiffs and Cross-Defendants CV Communities, LLC and City Ventures LLC’s Motion to Compel Compliance with August 10, 2023, is DENIED. No sanctions are awarded.

Defendant is ordered to provide notice.

DISCUSSION

SUMMARY

“Except as provided in subdivision (j) [related to special circumstances involving electronically stored information], if a party fails to obey an order compelling further response, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of, or in addition to, that sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).” (Code Civ. Proc. § 2031.310, subd. (i).)

Plaintiffs and Cross-Defendants CV Communities, LLC and City Ventures LLC (Plaintiffs) move to compel the City of Palmdale’s compliance with this court’s order of August 10, 2023, granting Plaintiff’s motion to compel further responses to Requests for Production, Nos. 51 and 54–57. The court described these requests in its prior order:

· No. 51: All reports from Palmdale staff (excluding the city attorney) to the citcy [sic] council since January 2015 concerning the Joshua Ranch development. Palmdale responded with objections, but also with a statement that it would “make the documents relating to the Joshua Ranch file available to the Propounding Party for its inspection and copying at the offices of City of Palmdale”;

· No. 54: All writings constituting an agreement for Defendant Antelope Valley – East Kern Water Agency (AVEK) to sell water for the City of Palmdale under the Palmdale Joint Community Facilities District Agreement (JCFA), to which Palmdale responded only with objections based on irrelevance and undue burden;

· No. 55: All resolutions of Palmdale’s city council concerning any agreement for AVEK to sell water for the city under the JCFA, to which Palmdale alike responded with objections based on irrelevance and undue burden;

· No. 56: Settlement communications between AVEK and Palmdale concerning the claims raised in Palmdale’s cross-complaints, to which Palmdale objected as violating Evidence Code §§ 1152 and 1154, irrelevant, and imposing an undue burden;

· No. 57: Every statement of the amount of unused portion of the 567 acre-feet (AF)) of assigned water rights available to Palmdale under the JCFA that AVEK has provided to Palmdale since 2017, to which Palmdale objected on grounds of irrelevance and undue burden. (Separate Statement.)

(3/10/2024 Ruling.)

This court ordered Palmdale to produce responsive documents to Request No. 51, rather than direct Plaintiffs to a “file” which may contain them, and further found good cause to support the remaining requests, overruling Palmdale’s objections to the same. This court also directed Palmdale to provide a privilege log to the extent it withheld documents responsive to any request. (Ibid.)

Plaintiffs contend that, since the entry of this order, Palmdale has failed to produce a privilege log, including any communications with its outside counsel responsible for drafting the Joint community Facilities District Agreement (JCFA) or its city attorney. (Motion at p. 9.) Plaintiffs also argue that Palmdale has acknowledged the existence of settlement communications with Defendant Antelope Valley East Kern Water Agency (AVEK) and yet has still refused to produce these communications, on the very grounds rejected in this court’s August 10, 2023 order. (Motion Exh. F.)

Palmdale in opposition argues that this court’s prior order as to the privilege log was limited to the requests at issue in that order, and that Palmdale has not withheld any privileged documents responsive to Requests No. 51 and 54–57. (Opposition at p. 1.) Palmdale also argues that it has produced all settlement communications responsive to Request No. 56. (Opposition at p. 7–9.)

The court finds that no order of further compliance is appropriate. The order of August 10, 2023, addressed, and only could address, the requests that Plaintiffs presented for the court’s analysis. No requests beyond those described above were included in Plaintiffs’ separate statement, and this court was not empowered to grant relief except as to those requests for which Plaintiffs had shown “good cause.” (Code Civ. Proc. § 2031.310, subd. (b)(1).) Thus this court’s order was limited to Requests No. 51 and 54–57, and there is no basis to conclude that documents responsive to these requests are being withheld pursuant to privilege.

There is also little basis to order further document production with respect to Palmdale’s settlement communications, although there is ample basis for Plaintiffs’ confusion on this point. Although Palmdale claims that, as of the August 10, 2023 order, it had no documents responsive to the request, this is not what its supplemental response said. Rather than a statement of inability to comply under Code of Civil Procedure § 2031.230, Palmdale instead stated, “Responding Party will produce all documents in Responding Party’s possession, custody, or control that are responsive to this Demand.” (Mackprang Decl. Exh. 4.) Moreover, in response to subsequent meet-and-confer efforts on the same materials, Palmdale did not explain that no documents existed, or promise their production, but fell back upon the very arguments that this court rejected in the August 10, 2023 order. (Motion Exh. F.) However, Palmdale now contends that all responsive communications have been produced as of May 16, 2024, after the motion was filed, (Mackprang Decl. ¶¶ 6–7, Exh. 5.)

Although Plaintiffs contend that there is reason to suspect that other communications pre-dating this court’s prior order may exist, these arguments are of insufficient conclusiveness to justify an order that further documents be produced. (Reply at pp. 5–7.)

It is noted, however, that Palmdale’s position in opposition is unpersuasive. Palmdale contends it was under no obligation to provide a privilege log for documents withheld on requests other than those specifically enumerated in this court’s order of August 10, 2023. However, this court’s order contained no such limitation, and Palmdale’s obligation to provide such a log is the product of statute — Code of Civil Procedure § 2031.240 — and exists independent of this court’s prior order.

Palmdale also claims that it has been released from its obligation to provide documents responsive to Request No. 56, because no such documents existed at the time of its supplemental response. Yet this argument is contradicted by Palmdale’s supplemental response, which contained — not a statement of inability to comply with the request under Code of Civil Procedure § 2031.230 — but the statement, “Responding Party will produce all documents in Responding Party’s possession, custody, or control that are responsive to this Demand.” (Mackprang Decl. Exh. 4.) Palmdale now contends that its promise to provide responsive documents was a promise to provide no responsive documents.

These arguments are unavailing. Nevertheless, for the reasons stated above, the motion is denied.