Judge Margaret L. Oldendorf, Case Number: 21BBCV00317, Date: 2023-09-07 Tentative Ruling

Judge: Margaret L. Oldendorf, Case: 21BBCV00317, Date: 2023-09-07 Tentative Ruling

This consolidated action stems from a prior unlawful detainer action, Los Angeles Superior Court case number 20PDUD01210. That action is based on an alleged failure to pay rent. The lease attached to the unlawful detainer complaint is between Diana Pitinyan (Pitinyan or Landlord) and Arthur Msrian (Msrian) and Sunny Days Senior Living (Sunny Days) (jointly, Tenants) for the lease of real property located at 75 Denny Avenue in Sun Valley. That UD action resulted in a settlement that was reduced to a written stipulation for dismissal, in exchange for Tenants moving out and returning the keys by February 14, 2021. Pitinyan dismissed the UD action on February 16, 2021.

Following that, Pitinyan sued Msrian and Nayiri Group, Inc., dba Sunny Days Senior Living[1] in case number 21BBCV00317. The Complaint in that case sets forth claims for breach of lease and for waste, alleging failure to pay rent and return of the property in a damaged condition, with damages alleged at $147,000.

In a separate action, Msrian and Sunny Days sued Pitinyan (LASC Case No. 22BBCV00413). In that case, it is alleged that the houses on the property contained unpermitted conversions and structures. Msrian alleges that Pitinyan did not tell him about the unpermitted alterations to the houses. It is also alleged that the property did not have an occupancy permit, in violation of Los Angeles Municipal Code §12.21. The Msrian/Sunny Days Complaint sets forth causes of action for fraud, unfair business practices, void contract, retaliatory eviction, constructive trust, and unjust enrichment. The two actions were related and then consolidated. Thereafter, Pitinyan sought and obtained relief to file a cross-complaint for fraud against Msrian and Sunny Days.

Before the Court is a discovery motion filed by Pitinyan. In this “combined” motion,[2] Pitinyan seeks relief as to both Msrian and Sunny Days. The motion seeks an order compelling each defendant to produce documents pursuant to Pitinyan’s Requests for Production, Set One.

A motion to compel production is only appropriate where a responding party has indicated that he will comply with the demand, and then fails to do so. Code Civ. Proc. §2031.320. These are not the facts here. Consequently, there is no basis for the relief requested. The motion is therefore denied.

A party responding to requests for inspection must either provide a statement of compliance, represent that it lacks the ability to comply, or make an objection. Code Civ. Proc. §2031.210.

If a party responds with a statement of compliance, the statement must indicate whether production will be allowed in whole or in part; and that all documents in the responding party’s possession, custody, or control (as to which no objection is being made) will be included in the production. Code Civ. Proc. §2031.220.

If a party responds that a particular demand cannot be complied with, it must include a representation in the response that a diligent search and reasonable inquiry have been made; and that the inability to comply is because the item has never existed, has been lost, stolen, or misplaced, or has never been in or is no longer in the responding party’s possession, custody, or control. Such a response must also identify the name and address of any person or entity known or believed to have possession, custody, or control of the item or category. Code Civ. Proc. §2031.230.

If a response includes objections, a privilege log identifying the documents being withheld must be provided. Code Civ. Proc. §2031.240.

When a party who propounds demands for inspection concludes that responses to the demands are incomplete or evasive, or that the objections are without merit, the propounding party may move for an order compelling further responses. Such a motion must set forth facts showing good cause for the discovery, be accompanied by a meet and confer declaration, and include a separate statement. Such a motion must also be made within 45 days of the verified responses (or supplemental responses); or on or before any specific later date the parties have agreed to in writing. Code Civ. Proc. §2031.310(a)-(c).

If a party fails to permit inspection or copying in accordance with that party’s statement of compliance, the demanding party may move for an order compelling compliance. Code Civ. Proc. §2031.320.

On April 25, 2023, Pitinyan served Msrian and Sunny Days with Requests for Production of Documents, Set One. Declaration of Albert Abkarian, ¶2. On May 30, 2023, Pitinyan received Defendants’ responses. The responses consist mainly of objections that Pitinyan believes are meritless. Id. at ¶3. A series of meet and confer correspondence was then exchanged. Id. at ¶¶4-9.

Based on this background, Pitinyan contends that good cause exists for an order compelling Msrian and Sunny Days to produce the requested documents. Id. at ¶10.

Pitinyan seeks an order compelling Msrian and Sunny Days to produce documents. Notice of Motion at 2:7-9; Memorandum of Points and Authorities at 7:4-5; 11:9-10; 15:15-16. Procedural defects prevent the Court from granting such relief.

First and foremost, the evidence presented by Pitinyan does not demonstrate that Msrian and/or Sunny Days responded to the Requests for Production by indicating their compliance; and thereafter failed to produce the responsive documents. Consequently, grounds do not exist for granting relief pursuant to Code Civ. Proc. §2031.320.

Second, to the extent this motion could be considered to constitute a motion to compel further responses pursuant to Code Civ. Proc. §2031.310, it is defective because the separate statement does not contain “A statement of the factual and legal reasons for compelling further responses, answers, or production as to each matter in dispute,” as required by California Rules of Court, rule 3.1345(c)(3). Instead, the separate statement merely contains the text of the request and the text of the response.

The required separate statement information is not contained in Pitinyan’s memorandum of points and authorities, either. The motion does not list or itemize the RFPs as to which a further response is requested. And, it does not contain a factual and legal discussion as to why each of the listed responses is insufficient. While the motion contains a generalized discussion about tax documents, financial documents, and other issues, the discussion is not linked to any specific RFP.

These procedural defects are substantial. If the Court were to attempt to address this as a motion to compel further responses, it would require the Court to first figure out which RFPs are at issue as to each defendant, and then piece together generalized arguments from the points and authorities and match them up with each RFP. The Court declines to undertake such a task, especially in light of the fact that further responses are not requested.

Because the motion fails for procedural reasons, there is no real need to address Defendant’s opposition. It is therefore only briefly addressed here. The gist of Defendants’ opposition is that there was an inadequate meet and confer process prior to filing of the motion. Based on the Declaration of Alenoush Shaghzo and the attached exhibits, there appears to be some merit to this argument. Specifically, defense counsel’s offers to meet and confer by telephone, face to face, or Zoom were not accepted by Pitinyan’s counsel. Actual conversation is often a more productive means of resolving discovery disputes, although it is not required. Shaghzo points out that the Abkarin Declaration implies an additional meet and confer letter was sent after Defendants’ further responses were served on July 28, 2023. Because the motion is denied for other reasons, the Court declines to reach the question whether the meet and confer was adequate.

Defendants also interpose a number of evidentiary objections to the Abkarian Declaration. While certain of Abkarian’s statements may be argumentative, the Court interprets these to be Abkarian’s version of the events rather than as substantive evidence. Defendants also object to Exhibit D and G to the Abkarian Declaration on the ground of lack of foundation. Presumably Defendants mean that the documents are not mentioned in the Abkarian Declaration -- but that is also true for all of the exhibits. Strictly speaking, it may be that none are properly in evidence. Nevertheless, for purposes of this order the Court has assumed that the substance of the information in the Abkarian Declaration is true (namely, that discovery was served, and meet and confer letters were exchanged regarding the adequacy of the responses); and that the attached exhibits evidence this. But this ruling does not turn on any of this evidence.

Pitinyan’s combined motion for an order compelling Msrian and to Sunny Days to produce documents is denied. The request for monetary sanctions is also denied.

[1] In the UD action, Msrian answered as Arthur Msrian dba Sunny Days Senior Living. In the consolidated action, these parties are sued (and sue) as Arthur Msrian and Nayiri Group, Inc., dba Senior Living. For ease of reference, the latter is referred to as Sunny Days.

[2] In the future, separate motions must be filed as to each party, and as to each form of discovery.