Judge: Malcolm Mackey, Case: 21STCV46978, Date: 2023-09-01 Tentative Ruling
Case Number: 21STCV46978 Hearing Date: September 1, 2023 Dept: 55
BEISS
v.
MARKOWITCH, 21STCV46978
Hearing Date: 9/1/23,
Dept. 55
#1: MOTION TO COMPEL PLAINTIFF TO PROVIDE FURTHER
RESPONSES AND DOCUMENTS RESPONSIVE TO DEFENDANT’S REQUEST FOR PRODUCTION OF
DOCUMENTS (SET ONE).
Notice: Okay
Opposition
MP:
Defendant AARON MARKOWITCH.
RP:
Plaintiff.
Summary
On 12/27/21, Plaintiff ELCHANAN BEISS filed a
Complaint.
On 7/27/22, Plaintiff filed a First Amended Complaint,
alleging that Plaintiff was a tenant residing at an apartment complex at 952 S
Detroit Street, Los Angeles, until constructive eviction, after defendants, as
landlords, failed to timely or fully address Plaintiff’s complaints of
uninhabitable conditions, including trash under the landlords’ control in the
common areas, loud music and noise at all hours, roach infestation; water leaks
in Plaintiff’s apartment under the lessors’ control, unpermitted washer and
dryer, lack of hot water, a broken front step, and an air conditioner unsafely attached.
The causes of action are:
1. BREACH OF CONTRACT
2. BREACH OF GOOD FAITH
AND FAIR DEALING
3. BREACH OF QUIET
ENJOYMENT
4. NEGLIGENCE
5. CONSTRUCTIVE EVICTION.
MP
Positions
Moving party requests an order compelling further
document responses as to requests 1, 2, 3, 4, 5, 6, 7, 8 and 9 – 61, and
awarding $2,300 in sanctions against opposing party and counsel, on grounds
including the following:
·
It remains unclear how many documents were
intended to be produced, because the responses fail to identify the documents.
·
The responses fail to identify which
specific documents are responsive to which request, and instead refer to the
entire production as an answer for each request. No Bates stamps were placed on the documents.
·
The electronic documents, such as emails
and text messages, have not been produced in their native or usable format, but
instead apparently were typed or summarized.
RP
Positions
Opposing party advocates denying, for reasons including
the following:
·
Request 1
asks for, “All DOCUMENTS that RELATE TO YOUR written contract with Defendants,
or Defendants predecessor, for the rental of Leased Premises located at
Apartment Complex.” The response to
request #1 was: “After due diligent and reasonable inquiry, Responding party
will produce some, but not all, of the requested items, because some of the
requested items are no longer in plaintiff’s possession – see BS 187.
Defendants and prior owner may have documents responsive to this request.
Plaintiff does not have contact information for the prior owner. Discovery is
ongoing.”
·
Request 6
is, “All DOCUMENTS that RELATE TO YOUR allegation in paragraph 8 of the
COMPLAINT that “Plaintiff entered into a written contract with Defendants for
the rental of Leased Premises located at Apartment Complex, Plaintiff has
resided at the Leased Premises continuously exceeding 12 months.” The response states: “After due diligent and reasonable inquiry,
Responding party will produce some, but not all, of the requested items, because some of the
requested items are no longer in plaintiff’s possession– see BS 187. Defendants
and prior owner may have documents responsive to this request. Plaintiff does
not have contact information for prior owner. Discovery is ongoing.”
·
The sum of $2,300 is excessive sanctions
for just 2 requests. Furthermore, any sanction granted should be against
opposing counsel only and NOT against the plaintiff
Tentative
Ruling
The motion is granted, as prayed.
The opposition fails to address most issues raised by the motion
and separate statement, including requests numbers 2, 3, 4, 5, 7, 8 and 9 – 61. A judge in a civil case is not
"'obligated to seek out theories [a party] might have advanced, or to
articulate … that which … [a party] has left unspoken.'" Mesecher v.
Mainly, the responses are very unclear as to what documents
are responsive, and what documents, if any, were not produced.
A document response must consist of: 1) an agreement to comply, stating whether
the productions or inspection will be allowed “in whole or in part,” and that
all documents or things in the possession, custody or control of the
respondent, as to which no objection is made, will be included, by the date set
for inspection (unless informally extended in writing, or the designated timing
is subject to objection); 2) a
representation of inability to comply, with a specification of any person
believed or known to have possession of documents; or, 3) objections and specification of
withheld documents. CCP §§2031.210(a),
2031.220, 2031.270, 2031.280 (production).
“Any documents or category of documents produced in response
to a demand for inspection, copying, testing, or sampling shall be identified
with the specific request number to which the documents respond.” CCP § 2031.280(a).
“Even where a party deems a demand to be objectionable, he
[she, or it] still must identify those items which fall into the category of
item in the demand to which an objection is being made.” Standon Co. v. Sup. Ct. (1990) 225
Cal. App. 3d 898, 901 n.3.
“If a demand for production does not specify a form or forms
for producing a type of electronically stored information, the responding party
shall produce the information in the form or forms in which it is ordinarily
maintained or in a form that is reasonably usable.” CCP §
2031(d)(1).
Finally, monetary sanctions are mandatory as to parties
losing discovery motions, unless courts find substantial justification or other
injustice. E.g., Foothill Properties v. Lyon/Copley
Corona Assocs., L.P. (1996) 46 Cal.App.4th 1542, 1557-58. “ ‘[S]ubstantial justification” has been
understood to mean that a justification is clearly reasonable because it is
well-grounded in both law and fact.” Doe
v. U.S. Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1434.