Judge: Mark A. Young, Case: 18SMCV00061, Date: 2023-02-03 Tentative Ruling

Case Number: 18SMCV00061    Hearing Date: February 3, 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 CCP 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 (RFA), and Form Interrogatories, Set One (FI). 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 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, and183).

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.

The Court continued the hearing on these motions to allow for the submission of a supplemental separate statement discussing the remaining issues.  Form Interrogatory Nos. 326.1(b) and 326.1(d) that are at-issue are related to the following RFAs: 1, 4, 20, 33-38, 40-47, 49-55, 57-61, 63-68, 70-75, 83-88, 90-94, 96-101, 113-118, 120-126, 128-133, 135-141, 143-148, 150-153, 155, 157-160, 162 & 176-183. For clarity, the Court will address each of the 17 issues presented by MP in turn.

In sum, the Court finds that the responses to the above RFAs are evasive or incomplete for the reasons identified. Accordingly, the motion to compel further responses is GRANTED to the at-issue responses, except as to RFA nos. 176 and 178.

Admissions to Denials

AG changed its responses to the following RFAs from an admission to a denial in the December 15, 2022, supplemental responses: RFAs nos. 49, 56, 62, 69, 76, 89, 95, 102, 109, 119, 127, 134, 141, 149, 156 and 163. Under Code of Civil Procedure § 2033.300, “(a) A party may withdraw or amend an admission made in response to a request for admission only on leave of court granted after notice to all parties.” (Emphasis added.) AG does not explain why these admissions were changed without leave. Accordingly, these responses are impermissible, and the initial admissions remain AG’s operative response. If AG wants relief from their admissions, AG must make a procedurally appropriate motion.

Updated Plans

AG fails to include or identify the documents that comprise the “updated plans” in response to FROG 326.1(b) & (d) as to the following RFAs nos. 33, 35, 40-47, 49-54, 56-60, 63-64, 66-67, 69-74, 80, 83-87, 89-90, 96-107, 111-113, 120-125, 127-132, 134-139, 141, 157-161, 163, & 177-182. Each answer proffering such a response is evasive, incomplete, and does not provide straightforward a straightforward answer. Moreover, the updated plans are not identified pursuant to subsection (d) in the responses. As such, further responses are required for any response that refers to the “updated” plans.

Email/Written Communications Approving Charge Orders

This issue pertains to FI no. 326.1 as to RFAs nos. 33, 43, 50, 57, 63, 70, 83, 90, 96, 103, 113, 120, 128, 135, 143, 150 & 157.  The request asks that AG admits that Plaintiff did not approve a specified “change order” “via e-mail or any other form of written communication[.]” Thus, each RFA requests information pertaining to written communications only. AG provides the same response to FI 326.1 subsection (b) as to each of these RFAs:

Plaintiff/Cross-Defendant Erika Frank was living near the site and was actively involved during the construction. She would often make verbal requests (Change Orders) and/or provide lists of changes for a Change Order and/or updated plans reflecting said Change Order to AGP while onsite. Ms. Frank requested the changes that would become Change Order 8. Whether on this occasion she provided verbal instructions with a set of new plans or provided a list of changes with a set of new plans, responding party honestly cannot recall as there were numerous change order requests that were made while onsite and often were a combination of verbal requests along with updated plans and/or lists of changes that also came with updated plans. Further, on numerous occasions Ms. Frank would by-pass AGP altogether and make these requests directly to the subcontractors who were onsite. With each Change Order request, AGP expressed that he would need the time necessary to put together a proposal and cost analysis for her before beginning any Change Order work. Ms. Frank was not interested in delaying construction and replied that she would like the work done now and an invoice sent to her after completion. AGP honored her request as AGP was accustomed to demanding homeowners who did not want to delay construction. The work was requested, completed, and an invoice was sent per Plaintiff/Cross-Defendant's instructions.

Notably, the subsection (b) responses do not mention or identify any e-mail/written communication. Instead, the facts only refer to “verbal requests.” As such, the response is evasive and furthers responses are required as to this subsection.

The response to subsection (d) then refers to specific emails sent on specified dates. Many of the responses identify a documents (e.g., an email) on a certain date, and a person (e.g., Frank). However, some responses simply provide dates, without identifying documents or persons. Many of the responses do not provide contact information for identified third parties. (See e.g., RFA no. 50, 57, 63.) Some vaguely refer to “payment records” without further elaboration. (See e.g., RFA no. 143.) Therefore, further responses are required as to the FI regarding the above RFAs.

Monies Owed Under Change Orders

This issue pertains to FI no. 326.1 as to RFAs nos. 34, 44, 51, 58, 64, 71, 84, 91, 97, 104, 114, 121, 129, 136, 144, 151 & 158.  These RFAs requested that AG admit that it was not due a specified sum of money as to a specified change order.

Frank contends that the FI 326.1 subsection (b) responses are false and not made in good faith. Be that as it may, the truth of the responses would not require further responses. Instead, the question is whether these responses are evasive or incomplete. The responses proffer that Plaintiff “requested” the change order. A complete and straightforward response, with the information reasonably available to RP, would include the facts of this “request,” i.e., how Plaintiff requested the work for the change order and therefore agreed to pay the change order. Thus, the above RFAs responses are evasive and incomplete.

As to subsection (d), AG’s responses are mixed in their completeness. Some of the responses identify emails on specified dates from parties in this action. For example, as to RFA no. 33, AG identifies “Email dated January 10, 2017 from AG Construction to Jay and Erika Frank, Email dated February 7, 2017 from Tom to Erika Frank and AG Construction.” This does identify documents/tangible things that support the response. However, not all the responses identify all the persons who would have such emails. For example, RFA no. 58 states: “Emails dated November 22, 2016 from Erika Frank to AG Construction, et al, November 22, 2015 from Erika Frank to AG Construction, et al. February 2, 2017, April 10, 2017, May 10, 2017, June 7, 2017, July 24, 2017, August 23, 2017, November 2, 2017 and updated plans.” (Emphasis added.) Such a response does not provide any pertinent information as to the underlined emails (assuming these are emails—the answer is not entirely clear). This trend continues in many of the other RFAs. (See, e.g., RFAs nos. 71, 84, 104, 144.) Furthermore, there are also vague references to invoices sent by certain persons, without fully identifying those persons and their contact information. (See e.g., RFAs nos. 51 [“invoices from electrician and updated plans”]; 104 [“invoices from Core Fire Protection”]; 114 [“invoices from Fireplace Guys, Inc.”].) Any of the responses that include such vague references are evasive or incomplete, as they do not reasonably identify the document, the persons that have such documents, and such persons’ contact information as required by the FI. Accordingly, the Court will require further responses as to FI no. 326.1 regarding the above RFAs.

Agreement to Change Orders

This issue pertains to RFA nos. 35, 45, 52, 59, 65, 72, 85, 91, 105, 115, 122, 130, 145, 152 and 159.  These requests ask that AG “admit that PLAINTIFFS never agreed to pay” any amount for a specified change order.

Frank argues that each response is evasive because it does not provide full details as to “who” agreed to pay, whether the agreement was written, and what work plaintiffs agreed to pay for. As to subsection (b), AG’s responses generally state that Frank “requested” the work in the specified change order to be invoiced upon completion. Some of the responses state that AG cannot recall whether the change order request was made in writing or made verbally. As previously discussed, responses which only provide the conclusion that Plaintiff “requested” the change order do not provide a straightforward response. A complete and straightforward response, with the information reasonably available to AG, would include the facts of this “request,” i.e., how Plaintiffs requested the work for the change order and therefore agreed to pay the change order. Further facts are also required as to subsection (d) where the responses make vague and unspecific references to “payment records,” “receipts for payment,” and “invoices.”  There are also referenced emails without identifying associated persons.  Accordingly, further responses are required.

Agreement in Writing

This issue pertains to RFAs nos. 36, 46, 53, 59, 66, 73, 86, 92, 98, 106, 116, 123, 131, 137, 146 & 153. This issue falls in line with “written communications issue” re: RFAs nos. 33, 43, etc. AG provides the same general response regarding verbal requests.

Notably, the subsection (b) responses do not mention or identify any e-mail/written communications. Instead, the facts only refer to “verbal requests” without reference to any e-mail/written communications. As such, the response is evasive and furthers responses are required as to this subsection. Subsection (d) also refers to specific emails sent on specified dates. Many of the responses identify documents (e.g., an email) on a certain date, and a person (e.g., Frank). However, many responses are vague for the same reasons discussed previously. Therefore, further responses are required as to the FI regarding the above RFAs.

Oral Agreement to Pay Amounts for Change Orders

This issue pertains to RFAs nos. 37, 47, 54, 60, 67, 74, 87, 93, 99, 107, 117, 125, 132, 138, 147 and 160. These requests generally ask that AG “Admit that PLAINTIFFS never orally agreed to pay YOU any amount of money for” a specified change order.  Each response to subsection (b), except to no. 147, provides the same general information:

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 the responding party to admit the matter. A lot of time has passed since the beginning of construction of the house and there were numerous verbal, text, and email communications between the parties regarding Change Orders, invoices, payments, and lack of payments during construction that responding party honestly cannot recall whether the Change Order request and promise to pay was in writing or made verbally or a combination of both. Regardless, Plaintiff made each request, asked for the work to be done right away so construction would not be delayed, and asked to be invoiced upon completion. AGP performed the work requested in good faith with the understanding that Plaintiff would pay for the invoice she asked for in lieu of receiving a proposal or cost analysis in order to forego any delays that such analysis would take. AGP would not have performed the work had there not been some kind of promise to pay.

These responses do not provide any particular facts that Plaintiffs agreed orally to pay for a specific change order. The responses provide that Plaintiff made “requests” that the work be done, but equivocates on whether the requests were oral or written, and does not state whether these requests were agreements to pay. RFA No. 147 simply reiterates the denial without reference to any facts. Accordingly, further responses are required as to the FI/RFAs.

Invoices for Change Orders

This issue pertains to RFA nos. 38, 48, 55, 61, 68, 75, 88, 94, 101, 108, 118, 126, 133, 140, 148, 155 and 162. These ask AG to “Admit that YOU never invoiced” Plaintiffs for a specific sum for a specified change order. AG responded:

Plaintiff/Cross-Defendant and AGP met on several occasions to go over Exhibit A which served as a running total of work performed and was updated with each Change Order. In these meetings, the parties would discuss the work that was done, what has been paid for, and what remains unpaid.

The current facts only describe occasions where the parties discussed the work, previous payments and amount unpaid. This does not specifically state facts supporting a denial that AG did not “invoice” Plaintiffs. More specific facts are required regarding the invoicing. Accordingly, this response is evasive and requires a further response.

As to subsection (d), AG references a March 3, 2021, invoice, and explains that AG “provided copies of invoices to his prior counsel and believes these were previously produced to Cross-Defendants” but “is unable to access when it was initially sent to Cross-Defendant.” This does not reasonably identify the invoice, or identify relevant persons/contact information.  Furthermore, “prior counsel” is vague.

Therefore, further responses are required.

Any Agreement to Pay Money for Change Orders

This issue pertains to RFAs nos. 100, 124 & 139. Each asks that AG “Admit that PLAINTIFFS never agreed to pay YOU any amount of money” for a specified charge order. In response, AG makes a general statement that that a lot of time has passed, a conclusory remark that Plaintiff/Cross-Defendant agreed to pay either verbally or in writing, and that AG performed the work “with the expectation” of receiving payment. This does not provide the facts that form the basis of the denial, as this does not explain how Plaintiffs agreed to pay the money. Therefore, further responses are required.

Refusal to Pay

This issue pertains to RFAs nos. 49, 56, 62, 69, 76, 89, 95, 102, 109, 119, 127, 134, 141, 149, 156 and 163. These request that AG “Admit that PLAINTIFFS never refused to pay” him a specified sum for a specified change order.

AG’s conclusory response, “It was not paid,” is insufficient. That a change order “was not paid” is evasive, since it does not address whether Plaintiffs “refused to pay.”  Further responses are required.

Garage Wall Grading

This issue pertains to RFAs nos. 40, 41 & 42. These request that AG “Admit that the plans YOU received from PLAINTIFFS in March 2015 indicated that the [east/south/north] wall of the garage was partially below grade.” AG responds 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 the responding party to admit the matter. Responding party cannot recall as he was provided with and/or emailed multiple sets of plans at various times and dates during the construction and the link that was sent via email in March 2015 was a drobox link that to the best of AGP’s knowledge and belief likely would have changed with each upload of new and updated plans and possible deletion of old unnecessary plans during construction. Therefore, he does not recall what specific plans he may have received in March 2015 and what they may or may not have contained. If propounding party, contends that they provided responding party with the same plans that were emailed on March 23, 2015, as referenced in Request for Admission 29, responding party reiterates that those plans were incomplete, updated, or changed on numerous occasions.

Ignoring the references to the updated plans, the Court finds that these are not necessarily incomplete or evasive. Plaintiff contends that AG should be able to recall, because AG is a licensed general contractor, and there was only “one civil plan for the project that shows the elevations of the house and the garage that is dated Feb. 9, 2015.” Notably, that is not a March 2015 agreement, which is the subject of the RFAs. In any event, the response provides facts supporting that i) a reasonable inquiry was made; ii) AG cannot recall the specific March 2015 agreement; and iii) facts regarding why AG cannot recall that March 2015 agreement. This response addresses the call of the question.  Whether Plaintiff finds the response substantively false is not at issue.

Further facts, however, are still required to explain the vague reference to “updated plans.”

Unsigned Construction Contract

This issue pertains to RFAs nos. 1, 4, 20, which ask the following questions pertaining to the unsigned Construction Contract. The term “THE UNSIGNED ‘CONSTRUCTION CONTRACT’” refers to an 8-page document attached as Exhibit “A” (with a “total” on page 8 of $1,649,573.30).

RFA no. 1: “Admit that THE UNSIGNED ‘CONSTRUCTION CONTRACT’ was never transmitted by YOU to PLAINTIFFS.”

            RP responds as follows:

The term “unsigned construction contract” is confusing and misleading because the original contract was signed on June 30, 2015 by all parties. The document which Plaintiff/Cross-Defendant is calling an “unsigned construction contract” is the original contract with change orders added. The Construction Contract that is attached as Exhibit A to Plaintiff/Cross-Defendant’s Requests for Admission (“Exhibit A”) was provided to Plaintiff/Cross-Defendant on several occasions during meetings between AGP and Plaintiff/Cross-Defendant. This document is a running total of work and was updated with each Change Order Request. At various times, Plaintiff/Cross-Defendant and AGP would meet to discuss this document and what payments were received and what Plaintiff/Cross-Defendant' still owed after said payments.

            This response is evasive or incomplete because it does not provide facts regarding the transmission of said document to Plaintiffs. More information is required as to the “several occasions” and the “various” unspecified meetings where RP purportedly transmitted this document.

RFA no. 4: “Admit that THE UNSIGNED ‘CONSTRUCTION CONTRACT’ attached hereto as Exhibit “A” was first produced in discovery in the LAWSUIT in a document production on August 21, 2020.” RP’s response states that RP “does know when documents were produced in discovery and this information is equally available to Plaintiff/Cross-Defendant.” This flat refusal to provide facts to support the production is evasive. Accordingly, further facts are required.

RFA no. 20: “Admit that YOU have never sent to PLAINTIFFS any invoice for $198,435.65 that YOU claim YOU are due for change orders identified in the THE UNSIGNED ‘CONSTRUCTION CONTRACT’.”  AG’s response states that it sent invoices to “Plaintiff/Cross-Defendant for all of the Change Order work. Exhibit A provides a running total of all the work completed which includes the Change Order requests. AGP and Plaintiff/Cross-Defendant had several meetings where they went over Exhibit A and discussed what work has been paid for and what balances remain.”

This response does not state whether AG sent invoices for the specified sum. Accordingly, further facts are required.

Regarding Shoring

RFA no. 176 states: “Admit that YOU never confirmed in writing to PLAINTIFFS at any time prior to YOUR completion of the construction of PLAINTIFFS’ home that shoring was a change order.” AG provides the following response:

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 the responding party to admit the matter. A lot of time has passed since the beginning of construction of the house and there were numerous verbal, text, and email communications between the parties regarding Change Orders, invoices, payments, and lack of payments during construction that responding party honestly cannot recall whether the Change Order was confirmed in writing or made verbally or a combination of both. Regardless, AGP discussed the need for shoring with Plaintiff/Cross-Defendant, they understood and agreed that it was necessary, and agreed to have the work added as a change order, the plans were then updated to include shoring, and due to the expensive nature of shoring, Plaintiff/Cross-Defendant agreed to pay at the completion of the project.

The Court would not require a further substantive response to this RFA. While Plaintiff asserts that AG should be able to confirm this request was made in writing, the response is not necessarily incomplete or evasive. Plaintiff asserts that the documents cited in subsection (d) do not substantively support AG’s contention that the change order was in writing. AG’s defense/claim that the change orders were in writing would not preclude AG from failing to recall on whether the shoring change order was in writing. As such, the responses are not technically evasive or incomplete, despite Plaintiff’s insistence that AG should be able to substantiate their defenses.

Similarly, in RFA no. 178, AG is requested to admit “that the printed set of plans for the construction of PLAINTIFFS house that YOU received from PLAINTIFFS in March 2015 included sheets SH-1 through SH-3.” AG’s inability to recall is sufficient for the same reasons discussed above and as to RFA no. 40-42.

However, the same response becomes non-responsive as to RFA nos. 179-183. Those will be addressed in turn, below.

RFA no. 179 states: “Admit that sheets SH-1 through SH-3 of the plans for the construction of PLAINTIFFS’ house included the shoring specifications.”

RFA no. 180 states: “Admit that sheet SH-2 of the plans for the construction of PLAINTIFFS’ house included the temporary shoring plan.”

RFA no. 181 states: “Admit that sheet SH-2 of the plans for the construction of PLAINTFFS’ house includes the location where each pile is to be installed for the temporary shoring plan.”

As to RFA no. 179, AG’s response is identical to the above response to nos. 176 and 178. However, this response limits its answer to only a specified March 2015 contract, and otherwise contends that the plans changed over time. Such facts do not attempt to support a denial that the plans included shoring specifications.

As to RFA nos. 180-181, AG responds with the same statement cited for nos. 179, with the addition of the following statement:

“This being said temporary shoring would not have provided the support needed for the house. AGP discussed the necessity of shoring which involves steel beams and would be a permanent foundation solution. PLAINTIFF agreed and further agreed to have this additional work added as a change order.”

            This addition does nothing to address whether the plans included temporary shoring plans. AG admits that it “discussed” shoring, but not whether they were included or incorporated into the plans. Thus, this response does not attempt to support AG’s denial.

RFA no. 182 states: “Admit that sheet SH-1 of the plans for the construction of PLAINTIFFS’ house includes notes for the installation of piles.” AG’s responded with essentially the same facts discussed for nos. 179-181, with the following addition:

“This being said the installation of piles would not have been an effective way to build the foundation of this particular house since it was not being built on a hillside. AGP discussed the necessity of shoring which involves steel beams and would be a permanent foundation solution. In this particular build, piling would not be necessary with the permanent steel beams that would be involved in shoring and therefore piles were not installed. Plaintiff/CrossDefendant agreed that shoring would be necessary and further agreed to have this additional work added as a change order.”

Again, this only discusses the necessity of shoring and the fact that piling would not be “necessary” and that “piles were not installed.” However, this does not state whether the plans included notes for the installation of piles. Accordingly, a further response is required.

RFA 183: “Admit that YOUR original June 2015 Construction Contract includes the installation of piles in the concrete line item.” AG responds that it “admits that piling is included in the June 10, 2015, contract” and elaborates that:

However, piling was only added at the request of Plaintiff/Cross-Defendant even though piling was not necessary for this particular build. Piling was not included in the first proposal dated April 7, 2015, that was sent to Plaintiff/Cross-Defendant. Further, the addition of the term “piling” did not change the price of the line item. There seems to be some confusion on Plaintiff/Cross-Defendant's part regarding piling and shoring being one in the same or cannot be exclusive of each other in construction. Piling and shoring are not the same thing. Piling is used when the construction is on a hillside and involves drilling into the ground in order to provide support for the construction. The house is not located on a hillside and therefore piling was unnecessary and was not used for the construction. As mentioned, the term was added only at the request of Plaintiff/CrossDefendant' to the concrete (structural/foundation) line item. The price for that particular line item did not change with the inclusion of the term “piling” but was only added at the request of Plaintiff/Cross-Defendant. Shoring, however, was discovered to be needed and this involves the use of steel beams to add support. Piling was not used at all in the foundation work and Plaintiff/Cross-Defendant was not charged for piling

This does not admit or support a denial that the June 2015 construction contract “included installation of piles in the concrete line item.” The response vaguely refers to the fact that the “addition of the term ‘piling’ did not change the price of the line item.” This might suggest that AG admits that the installation of piles was present in the concrete line item. However, it is unclear. Accordingly, a further response is required.

Failure to Respond

As to FIs no. 326.1 regarding RFAs 4, 28, 29, 32:

RFA no. 4 requests that AG “Admit that THE UNSIGNED ‘CONSTRUCTION CONTRACT’ attached hereto as Exhibit “A” was first produced in discovery in the LAWSUIT in a document production on August 21, 2020.” The supplemental response states that “Cross-Complainant does not know when Exhibit "A" was first produced in discovery and on this basis the request is denied.” Confusingly, the corresponding FI no. 326.1(b) states that AG “does know when the documents were produced[.]” Critically, the response does not comply with Code of Civil Procedure § 2033.220(c). As such, this response is evasive. As AG admits, AG necessarily has the information on when, if at all, the cited document was produced.

RFA no. 28 states: “Admit that no document titled “Construction Contract” was transmitted by YOU to PLAINTIFFS at any time between the date that the document titled “Construction Contract” attached hereto as Exhibit “A” was transmitted to PLAINTIFFS and the date that the document titled “Construction Contract” attached hereto as Exhibit “C” was transmitted to PLAINTIFFS.” The supplemental response states that AG is “Unable to admit or deny based upon lack of recollection.” The FI provides that there were “other contracts sent” between the specified dates, but that the party generally “cannot recall.” Further facts are required as to the “other contracts” sent.  AG cannot claim that it lacks recall on whether it transmitted a document, especially when in the same breath AG admits that it sent other contracts.

RFA no. 29 requests that AG “Admit that on March 23, 2015, ERIKA FRANK, e-mailed to Jonathan Silver a link to the plans for the construction of PLAINTIFFS' house.” The supplemental response provides that AG “admits that a link was sent but believes there were only partial plans.” The corresponding FI response elaborates that “the link contained only partial plans, and not the full set of plans that would be needed for the construction. Further, the plans that were sent do not reflect the actual finished construction since these plans were updated and changed with each Change Order Request. This request is denied on the basis that the plans sent in the March 23, 2015 email were incomplete changed, and updated on numerous occasions.” This denial is without merit, as the explanation admits the request, and then does not provide facts supporting its purported denial of that the link was sent on specified date. The response is evasive.

RFA no. 32 states: “Admit that YOU received a printed set of plans for the construction of PLAINTIFFS’ house from PLAINTIFFS on March 25, 2015.” The supplemental response provides “Unable to admit or deny. Cross-Complainant does not know the exact date a specific set of plans was provided because multiple sets of plans were sent to Cross-Complainant.” This does not provide facts supporting a denial that AG received the referenced plans on that date. Instead, AG provides the non-sequitur that there were other plans as well. Accordingly, further responses are required.

Consistent with this order, further responses are ordered within 10 days.

SANCTIONS

Frank requests that the Court sanction AG and counsel in the initial amount of $13,372.50, and an additional amount of $7,242.50, for a total of $20,615.  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, §§ 2023.030(a); 2030.300(d); and 2033.290(d).)  AG has consistently provided evasive and incomplete discovery responses despite Plaintiff’s numerous meet and confer efforts, the Court’s intervention at an informal discovery conference, and most recently, the Court’s warning to AG regarding the status of its responses on January 20, 2023.  There is no justification for these incomplete and evasive responses. 

While Plaintiff’s sanctions request is large, it is a reasonable tally of the time and effort Plaintiff’s counsel went through to date in an effort to obtain discovery that is critical to this matter and AG’s counterclaims.  Taking into consideration that the Court has denied a minor portion of Plaintiff’s motion, the Court imposes sanctions in the reasonable amount of $18,615.00 against AG and their counsel of record, payable within 30 days.