Judge: Mark A. Young, Case: 18SMCV00061, Date: 2023-01-20 Tentative Ruling
Case Number: 18SMCV00061 Hearing Date: January 20, 2023 Dept: M
CASE NAME: Frank, et al.,
v. AG Construction, et al.
CASE NO.: 18SMCV00061
MOTION: Motion
to Compel Further Responses to RFAs and FIs
HEARING DATE: 1/20/2023
Legal
Standard
In
the absence of contrary court order, a civil litigant’s right to discovery is
broad. “[A]ny party may obtain discovery regarding any matter, not privileged,
that is relevant to the subject matter involved in the pending action . . . if
the matter either is itself admissible in evidence or appears reasonably
calculated to lead to the discovery of admissible evidence.” (CCP § 2017.010;
see Davies v. Superior Court
(1984) 36 Cal.3d 291, 301.)
Code of Civil Procedure section
2030.220(a) requires that “[e]ach answer in a response to interrogatories shall
be as complete and straightforward as the information reasonably available to
the responding party permits.” Pursuant to section 2030.300, a party may move
to compel further responses to a form interrogatory if the other party’s answer
is “evasive or incomplete.” The responding party has the burden of justifying
the objections to the form and special interrogatories. (Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221.)
On receipt of a response to requests for admission
the propounding party may move for an order compelling a further response if
the propounding party deems that an objection to an RFA is without merit or too
general. (CCP § 2033.290(a)(2).)
Analysis
Plaintiff/Cross-Defendant Erika
Frank moves to compel Defendant/Cross-Complainant AG Properties Inc. to serve
further responses to Request for Admissions, Set One (RFAs), and Form
Interrogatories, Set One (FIs). Specifically, Frank requests further responses
to
i)
RFAs nos. 3, 4, 21, 24, 26, 27, 28, 29, 32, 40, 41, 42,
77, 78, 79, 142, 177, 178, 179, 180, 181, and 182;
ii)
FIs no. 326.1 (to which they entirely failed to respond
as to RFAs 3, 4, 21, 24, 16-29, 32, 40-42, 77-79, 142, and 177-182) and;
iii)
FIs no. 326.1, subsec. (b) & (d) (as to RFAs nos.
1, 2, 5, 7, 10 –20, 23, 25, 33 – 38, 43 - 48, 50 – 55, 57 - 61, 63 – 68, 70 –
75, 82 – 88, 90 – 94, 96 – 101, 103 – 108, 111 – 118, 120 – 126, 128 – 133, 135
– 140, 143 – 148, 150 – 155, 157 – 162, 169- 176, and 183).
As noted by Frank, form
interrogatory no. 326.1 is identical to form interrogatory no. 17.1, which
requires the responding party to provide facts that support the responding
party’s denial of each request for admission served concurrently for which it
did not respond with an unqualified admission (No. 326.1(b)), as well as
identify witnesses (No. 326.1(c)) and documents (No. 326.1(d)) that support its
denials.
On May 10, 2022, Frank served her
RFAs and FIs on AG. Following extensions, on August 12, 2022, AG provided responses
that were deficient. Frank sent a meet and confer email to AG. AG made
representations that supplemental responses were being prepared and would be
served. AG’s counsel requested an extension to October 14, 2022, representing via
email that they “believe [they] can get the supplemental responses to [Frank]
by October 14, 2022 . . ..” Instead, AG
sent a meet and confer letter in response to the prior letter, and only addressed
issues related to the RFAs. Based upon the meet and confer efforts, the parties
had agreed to AG providing supplemental responses by October 14, 2022, or at
the latest, October 18, 2022, and that Frank would have until the end of
business on November 4, 2022, to file any motions to compel further. (Cohen
Decl., ¶¶ 9-16; Exs. E-G.)
During the pendency of this motion,
the Court conducted an IDC and AG provided a second set of supplemental responses
on December 15, 2022. (Supp. Cohen Decl., Ex. I, J.) In reply, Frank asserts that
AG’s second supplemental responses are improper. Frank notes that 16 of AG’s supplemental
responses were improperly changed from an admission to a denial. Indeed, this
would be a violation of section 2033.300(a), which requires leave of court on a
noticed motion to withdraw or amend an admission. Further, Frank argues that some
of AG’s supplemental responses to FI no. 326.1 (approximately 57) provide
inconsistent answers between subsections (b) and (d). The Court believes that
the December 15, 2022, notice of motion identifies the specific 57 responses. However, Frank fails to specifically identify
any of those RFAs for the Court. In
addition, Frank concedes that some of the supplemental responses may be
sufficient. With several hundred discovery responses at issue, the Court is not
sure which RFAs remain in dispute after the supplemental responses.
There are two options. First, the Court can continue this hearing
and Frank could submit an updated separate statement identifying the responses still
at-issue. On the other hand, this
discovery is entirely focused on the 18 change orders that AG claims the Franks
agreed to during the construction process.
While there are many discovery requests, they virtually all boil down to
the existence of these change orders, and any agreements/communications between
AG and the Franks regarding paying for these change orders. Not that difficult – yet, AG has been unable
to put forth a straight forward and code-compliant response in over eight
months. The Franks’ motion will be
granted – the only question is whether a portion of the discovery requests will
be omitted in the final order due to the December 15, 2022, supplemental
responses. As discussed below, the
Franks will also receive sanctions with the only issue being the amount, and whether
the court assigns blame solely to the client or also to counsel. If the Franks have to spend additional time
preparing a supplemental separate statement, they will also be compensated for
that time. Therefore, the Court suggests
that AG takes its discovery obligations seriously and provide the necessary
information to the Franks in code-compliant responses. The Court will discuss this option with
counsel at the January 20, 2023, hearing.
Otherwise, the motion is CONTINUED
to February 3, 2023, at 9:00 a.m. Frank will be ordered to file a supplemental
separate statement regarding the discovery responses at-issue at least 5 days
prior to the continued hearing date, as well as a supplemental declaration
regarding additional time spent preparing that statement.
SANCTIONS
Frank requests that the Court sanction AG
and counsel in the amount of $13,372.50. The Court will
reserve ruling on the extent of those sanctions until the next hearing date.
That said, the Court notes that sanctions are mandatory. The Court must
sanction any party that unsuccessfully makes or opposes a motion to compel a
further response, “unless it finds that the one subject to the sanction acted
with substantial justification or that other circumstances make the imposition
of the sanction unjust.” (See, e.g., CCP, § 2030.300(d).) As noted in the meet
and confer record, the agreed-upon deadline to file this motion was November 4,
2022. AG has not provided
a valid reason why that they did not serve responses as agreed on October 14. 2022,
or before November 4, 2022. Thus, AG’s conduct necessitated this motion and
sanctions are warranted. The Court is therefore inclined to grant sanctions
against AG and counsel in a reasonable amount, but will decide that issue at
the next hearing.