Judge: Margaret L. Oldendorf, Case: 21STCV14689, Date: 2023-01-12 Tentative Ruling

Case Number: 21STCV14689    Hearing Date: January 12, 2023    Dept: P

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

NORTHEAST DISTRICT

            I.         INTRODUCTION

            This lawsuit concerns trees that grow on or near the boundary between two properties. Plaintiff Cesar Romero (Romero) owns and resides in one of the properties.

            Defendants Andrew Van Horn and Kristine Chase live in the other. The property is alleged to be owned by the trusts of one or both of them; it is referred to here as the Van Horn/Chase Property.

The trees at issue consist of a hedge row of Cypress trees running approximately along the boundary between the properties in the front yard, and some trees whose trunks are in the Romero backyard but whose branches extend into the Van Horn/Chase backyard: a Eucalyptus tree and some Brazilian Pepper trees. Romero alleges the Cypress trees were approximately 50 feet tall and had existed along the boundary for years before Romero purchased his property in 2014. Van Horn and Chase purchased the neighboring property in 2020 and when Romero saw Van Horn speaking with a tree trimmer, he allegedly expressed in no uncertain terms that he would not agree to having the boundary hedge removed. About a year later, Romero alleges that when he was out of town Van Horn/Chase hired tree trimmers (Defendant Bartlett Tree Expert Company) who cut the Cypress boundary hedge as well as the Eucalyptus and Brazilian Pepper trees.

The operative Second Amended Complaint alleges claims for wrongful cutting of trees, criminal trespass, negligence, fraud, and other related claims. Prior to the case being transferred to this Court, motions for judgment on the pleading had been granted with leave to amend as to the answers of both Van Horn/Chase and Bartlett. Amended answers were filed. Romero filed demurrers and motions to strike as to both.

Before the Court are two motions by Romero seeking further responses to certain Form Interrogatories and Requests for Admission from Bartlett. As to the RFAs, the motion is denied in its entirety. Bartlett’s responses comply with code requirements and are as full and complete as possible. As to the Form Interrogatories, the motion is denied as to the 16-series of questions since they pertain to personal injury actions and are improper here. As to the two others, the motion is granted. Romero’s request for an order deeming matters admitted and for evidence sanctions is denied, as it his request for monetary sanctions. Bartlett’s request for monetary sanctions is granted in part.

II.        LEGAL STANDARD

            When a party who propounded requests for admission deems that responses to the requests are evasive or incomplete or contain improper objections, the party may move for an order compelling the responding party to provide further responses. Code Civ. Proc. §2033.290(a).

            When a party who propounded interrogatories deems that responses are evasive or incomplete, improperly exercise the option to produce documents, or contain improper objections, the party may move for an order compelling the responding party to provide further responses. Code Civ. Proc. §2030.300(a).

            Under both sections, the motion must be accompanied by a meet and confer declaration and must be made within 45 days of the response or any supplemental response. Code Civ Proc. §§2033.290(b)(c), 2030.300(b)(c).

            Under both sections, the court shall impose monetary sanctions against any person, party, or attorney who unsuccessfully makes or opposes a motion to compel further responses, unless the court finds that the one subject to sanctions acted with substantial justification. Code Civ. Proc. §§2033.290(d); 2030.300(d).

III.      DISCUSSION

A. Pertinent Factual History and Procedural Considerations

            1. History

On July 1, 2022, Romero served Bartlett with Form Interrogatories, Set One, and Requests for Admission, Set One. Declaration of Cesar Romero, ¶¶ 3, 4 and Exhibits B and C. On August 1, 2022, Bartlett served its responses. Id. at ¶¶ 5, 6 and Exhibits D and E. That same day, Romero served a meet and confer letter regarding Bartlett’s responses to the RFAs, in response to which Bartlett declined to supplement its responses. Id. at ¶¶7, 8 and Exhibits F and G. On August 2, 2022, Romero served a meet and confer letter regarding Bartlett’s responses to the Interrogatories.  Bartlett agreed to provide further responses. Id. at ¶¶ 9, 10 and Exhibits H and I.

On September 1, 2022, Bartlett provide further responses to certain Interrogatories. Id. at ¶11 and Exhibit J.

Further meet and confer efforts did not result in any further responses. Id. at ¶¶12, 13 and Exhibits K and L.

            2. The 45-Day Requirement Was Met

Bartlett served its responses to both sets of discovery on August 1, 2022, by electronic service. Pursuant to Code Civ. Proc. §1010.6(a)(3)(A), service is deemed complete at the time of the electronic transmission; pursuant to Section 1010.6(a)(3)(B), the time for making any response is extended by two days. Accordingly, the 45-day period for Romero to file any motion to compel further responses was extended by two days. Forty-seven days from August 1, 2022, is September 17, 2022, a Saturday. The time for filing was extended to Monday, September 19, 2022. The motion was filed on that day and the 45-day rule was therefore complied with.

            3. Two Motions Were Required

As Romero seeks two types of relief, he should have filed two separate motions.   Rather than reject this motion and require that it be re-filed as two motions, the Court will consider the motion on its merits. On a go-forward basis, however, all parties are instructed to file separate motions for each type of discovery relief sought.

B. Bartlett’s Responses to RFAs Are Code Compliant

Code Civ. Proc. §2033.220 governs responses to requests for admission:

(a) Each answer in a response to requests for admission shall be as complete and straightforward as the information reasonably available to the responding party permits.

(b) Each answer shall:

(1) Admit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by the responding party.

(2) Deny so much of the matter involved in the request as is untrue.

(3) Specify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge.

(c) If a responding party gives lack of information or knowledge as a reason for a failure to admit all or part of a request for admission, that party shall state in the answer that a reasonable inquiry concerning the matter in the particular request has been made, and that the information known or readily obtainable is insufficient to enable that party to admit the matter.

Romero seeks further responses to RFAs 1, 3, 7, and 8.

RFA #1: Admit that on or about 2021 YOU cut the Eucalyptus Tree located on Plaintiff’s property. (“BARTLETT” “YOU” and “YOUR” as used in these requests means Defendant, THE F.A. BARTLETT TREE EXPERT COMPANY and anyone acting on its behalf)

In response, Bartlett raises objections (overbroad as to time; calls for speculation; ambiguous as to “cut”) but also provides a substantive response, as follows: “Responding Party admits only that it trimmed dead and dying branches from a Eucalyptus tree that were overhanging onto Co-Defendants’ property.”

Romero did not define the term “cut.” The objection that the RFA is ambiguous is therefore sustained. “Cut” could mean anything from making a gash in the bark of the tree to cutting off limbs to cutting the tree down completely. Here, rather than standing on that objection Bartlett provided an answer that was as full and complete as possible. As it does not know what “cut” means, it admits as much as it could, stating that it trimmed dead and dying branches that were overhanging on to the Van Horn/Chase property.

Romero argues that Bartlett changed the meaning of the RFA and then answered its own RFA by admitting it. This argument is not understood because Romero still has not defined what he means by “cut.” If he meant something other than what Bartlett interpreted the term to mean (such as cut down the tree), he should have worded it that way.

In making his arguments, Romero emphasizes the words “located on Plaintiff’s property.” The point he seeks to make is not clear. If he means that the RFA was meant to ask if Bartlett came on his property to cut the tree, the motion is denied because that is not what the RFA asks. If Romero intended the RFA to clarify ownership of the eucalyptus, which is what he seems to argue in the Reply, the motion is denied because that ownership of the tree is not implicated in the RFA.

RFA #3: Admit that after YOU cut the Eucalyptus Tree located on Plaintiff’s property, YOU took the wood that used to be attached to the Eucalyptus Tree with YOU. (“BARTLETT” “YOU” and “YOUR” as used in these requests means Defendant, THE F.A. BARTLETT TREE EXPERT COMPANY and anyone acting on its behalf)

Bartlett responded raised certain objections (including the meritorious objection as to “cut”) and then responded, “Responding Party admits only that it trimmed dead and dying branches from a Eucalyptus tree that were overhanging onto Co-Defendants’ property. Responding Party then had the branches chipped and Responding Party paid for a third-party company to take the same.”

Romero seems to object to this response because it asks for an admission that Bartlett “took” the cut wood it cut from the tree. Since Bartlett’s response indicates that it chipped the wood and paid someone to take it away, Bartlett could conceivably have responded with a denial. But it is not clear how this response does not provide Romero with all the information he needs about what happened to the wood after Bartlett cut it.

RFA #7: Admit that YOU never asked Plaintiff for permission to trespass onto Plaintiff’s property when YOU came to cut the Eucalyptus Tree and Cypress Trees. (“BARTLETT” “YOU” and “YOUR” as used in these requests means Defendant, THE F.A. BARTLETT TREE EXPERT COMPANY and anyone acting on its behalf)

Bartlett responded with objections, including the objection that the RFA is argumentative as phrased. This is a proper objection to the form of the question, and it is sustained as it assumes that Bartlett trespassed. Nevertheless, Bartlett went on to provide the following substantive response:

“Responding Party did not trespass onto Plaintiff’s property. Responding Party took a few steps onto Plaintiff’s driveway to clean up tree clippings. This action was permissible under the doctrine of private necessity. Responding Party admits that it did not ask Plaintiff for permission before taking a few steps onto Plaintiff’s driveway, as such permission was not required under the doctrine of private necessity.”

Romero urges that a further response is required because the RFA asks about permission to trespass, not the trespass itself. Because the objection is sustained this argument lacks merit. No further response is required.

RFA #8: Admit that YOU never asked Plaintiff for permission to take the wood with YOU that YOU cut from the Eucalyptus Tree and Cypress Trees. (“BARTLETT” “YOU” and “YOUR” as used in these requests means Defendant, THE F.A. BARTLETT TREE EXPERT COMPANY and anyone acting on its behalf)

Bartlett raises the same objections (overbroad as to time; calls for speculation; ambiguous as to “cut”; argumentative) but also provides a substantive response.

“Responding Party is not aware of any Cypress Trees located on Propounding Party’s property. Responding Party admits that it did not ask Plaintiff for permission to take the dead and dying branches that were trimmed from the Eucalyptus Tree.”

The objection as to the form of the question is proper. It is argumentative in that it assumes Bartlett (a) cut wood from certain trees and (b) took the wood. No further response is required.

In sum, Romero’s request for further responses to RFAs 1, 3, 7, and 8 is denied. Bartlett’s responses are code compliant. Moreover, even if they had not been, Romero’s request for an order deeming matters admitted is procedurally improper. Such relief only applies where there has been no response, not an inadequate response. Code Civ. Proc. §2033.280.

C. Bartlett’s Responses to Form Interrogatories Are Partially Code Compliant

Code Civ. Proc. §2030.210 provides that a party responding to interrogatories may respond by any of the following: (1) an answer containing the information sought; (2) an exercise of the party’s right to produce writings; (3) an objection. Code Civ. Proc. §2030.220(a) and (b) provide that each answer shall be as complete and straightforward as the information reasonably available to the responding party permits and that if the answer cannot be answered completely, it be answered to the extent possible. Subdivision (c) provides, “If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.”

Romero seeks further responses to Form Interrogatory Nos. 4.1(g), 12.3, 16.1-16.3, and 16.7-16.9.

No. 4.1(g) asks about insurance coverage. Bartlett provided responses to each of the subparts (identifying its insurer, insurer’s address, policy number, and policy limits); but as to subpart (g), which asks for the name, address, and phone number of the custodian of the policy Bartlett responded, “Unknown at this time.”

This response could be more complete. The information is not equally available to the propounding party and Bartlett has not stated that it has made a reasonable and good faith effort to obtain the information. A further response compliant with this requirement is ordered.

The 12-series questions concern Bartlett’s investigation of Romero’s claims.

12.3 Have YOU OR ANYONE ACTING ON YOUR BEHALF obtained a written or recorded statement from any individual concerning the INCIDENT? If so, for each statement state:

(a) the name, ADDRESS, and telephone number of the individual from whom the statement was obtained;

(b) the name, ADDRESS, and telephone number of the individual who obtained the statement;

(c) the date the statement was obtained; and

(d) the name, ADDRESS, and telephone number of each PERSON who has the original statement or a copy.

Bartlett responded, “None other than the declarations previously filed with the court and previously served on Propounding Party.”

This is not a code-compliant answer. Bartlett is ordered to provide a further response with information that is as full and complete as possible as to each subpart.

The 16-series questions pertain to personal injury actions. Romero is not claiming any personal injury. Neither the original, FAC, nor SAC contain any personal injury allegations or prayer for personal injury damages. Consequently, these interrogatories are inapplicable and should not have been used by Romero. Bartlett objected to these interrogatories in part on the basis that instruction 2(d) of the form interrogatories says the 16 series should not be used until the defendant has had a reasonable time to investigate the plaintiff’s damages. Here, Bartlett argues that Romero has refused to disclose the extent and amount of his claimed damages. Declaration of Nikhil P. Pole, ¶10. Romero’s objection to this evidence is overruled. Thus, even if this were a personal injury action the motion would be denied. A defendant cannot be expected to provide its responses as to a plaintiff’s claimed injuries until those claims are made known. No further responses are required.

D. Sanctions

Romero’s requests for monetary sanction are denied. First, he did not prevail on the admissions portion of the motion and only partially prevailed on the interrogatories portion. Second, the Declaration of Cesar Romero offered in support of his request for $3,500 in monetary sanctions indicates that this includes many hours spent consulting with an attorney. Romero is not represented by counsel and therefore cannot recover sanctions based on the attorney time spent on these motions. At best he would be entitled to his filing fee if he had prevailed.

Bartlett’s request for monetary sanctions is granted in part. As to the admissions the motion lacked substantial justification. Bartlett asks for $2,940. The Pole Declaration at ¶18 indicates that counsel bills at $350/hour and spent 0.9 hours meeting and conferring, 1.4 hours to analyze the motion, 3.1 to prepare the opposition, and that 0.5 is anticipated for reviewing any reply and 2.5 for preparing for and appearing at the hearing. [8.4 hours at $350/hour = $2,920] Romero’s objection to this evidence is overruled. The Court finds that 2 hours for drafting that portion of the opposition pertaining to the RFAs is reasonable and 2 hours to prepare for an appear at the hearing is reasonable. 4 hours at $350/hour = $1,400.

Romero’s request for issue sanctions is denied as improper. Such sanctions are only available where there has been an order compelling discovery that was not obeyed. Code Civ. Proc. §2030.300(e). That is not the case here.

E. Evidence

The above discussion contains rulings on the only two evidentiary objections necessary to the ruling. The declarations of both parties contain much information that is not relevant. For example, they disagree on the substance of prior discovery orders and sanctions. For purposes of this motion, it is not necessary to resolve those differences. Thus, while much of the information is not relevant to the present motion, it was also not considered.

Romero’s objections to the Pole Declaration are overruled.

Bartlett’s objections to the Romero Declaration are overruled.

IV.      CONCLUSION AND ORDER

            Romero’s motion to compel further response to Form Interrogatories, Set One, is granted in part and denied in part. Bartlett is ordered to provide further responses to Form Interrogatories 4.1(g) and 12.3 within 20 days. The motion is otherwise denied. Romero’s motion to compel further responses to Requests for Admission, Set One, is denied in its entirety.

            Romero is ordered to pay monetary sanctions to Bartlett in the amount of $1,400 within 20 days of notice of this order.

            Bartlett is ordered to provide notice of this order.

Dated:                                                                        _______________________________

                                                                                          MARGARET L. OLDENDORF

                                                                                 JUDGE OF THE SUPERIOR COURT