Judge: Mark A. Young, Case: 22SMCV02275, Date: 2023-02-23 Tentative Ruling
Case Number: 22SMCV02275 Hearing Date: February 23, 2023 Dept: M
CASE NAME: Regency Holt
LLC, v. Fox, et al.
CASE NO.: 22SMCV02275
MOTION: Motion
to Compel Further Responses
HEARING DATE: 2/23/2023
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.)
Form and Special Interrogatories
CCP 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.)
Production of Documents
If a party to whom a demand for
inspection, copying, testing, or sampling is directed fails to serve a timely
response, the propounding party may move for an order compelling response to
the demand. (CCP § 2031.300(b); see Sinaiko
Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007)
148 Cal.App.4th 390, 403-404.) However, when responses are served, the proper
motion is a motion to compel further responses, which is governed by CCP §§
2030.300 and 2031.310. A motion to compel further responses must set forth
specific facts showing “good cause” justifying the discovery sought by the
demand and must be accompanied by a declaration showing a “reasonable and good
faith attempt” to resolve the issues outside of court. (CCP §§ 2016.040,
2031.310(b)(2).)
A motion to compel further responses
to a demand for inspection or production of documents may be brought based on:
(1) incomplete statements of compliance; (2) inadequate, evasive or incomplete
claims of inability to comply; or (3) unmerited or overly generalized
objections. (Code Civ. Proc., § 2031.310(c).) A motion
for order compelling further responses “shall set forth specific facts showing
good cause justifying the discovery sought by the demand.” (CCP §
2031.310(b)(1).) Absent a claim of privilege or attorney work product, the
moving party meets its burden of showing good cause by a fact-specific showing
of relevance. (Kirkland v. Superior
Court (2002) 95 Cal.App.4th 92, 98.) If the moving party has shown
good cause for the RPDs, the burden is on the objecting party to justify the
objections. (Ibid.)
Requests for Admissions
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 or an answer to a particular request is evasive or incomplete. (CCP §
2033.290(a).)
PROCEDURAL ISSUES
Meet and Confer
The moving party must demonstrate a “reasonable and
good faith attempt” at an informal resolution of each issue presented. (CCP §§
2016.040, 2031.310(b)(2).) Plaintiff shows that counsel met and conferred
regarding these motions. (See Nussbaum Decls., ¶¶3-5; Uss Decl., ¶ 2.) Therefore, Plaintiff has satisfied the meet
and confer requirement
Defendants argue that the meet and confer efforts
were insufficient. Defendants served by email their supplemental
discovery responses along with document production on January 20, 2023 at 12:50
p.m. (Tatone Decl., ¶ 3, Ex. A.) At 4:21 p.m., Plaintiff’s counsel emailed
Defendants’ counsel a meet and confer letter demanding “further responses and
documents . . . by the close of business today or Regency will be required to
file the appropriate motions to compel further responses . . ..” (Tatone Decl.,
¶ 4 & Exh. B.) Defendants contend that this left only 39 minutes to comply
with the meet and confer demand. However, this ignores the previous meet and
confer efforts that led to the supplemental responses. Moreover, the supplement
did not substantially change the responses. Thus, the Court would not
characterize this as a failure to meet and confer.
Analysis
On January 23, 2023, Plaintiff
filed motions to compel further discovery responses from Defendants Avi Fox and
Dahlia Fox as to 1) form interrogatories, 2) requests for production of
documents, and 3) request to deem matters admitted. Defendants provided the same responses and
opposition to their respective motions. The Court will therefore address each
item in turn, as to both Defendants.
Form Interrogatories
Plaintiff moves to compel a further
response as to FI no. 15.1. This asked both Defendants:
Identify each denial of a material
allegation in each special or affirmative defense in your pleadings and for
each: (a) state all facts upon which you base the denial or special or
affirmative defense; (b) state the names, ADDRESSES, and telephone numbers of
all PERSONS who have knowledge of those facts; and (c) identify all documents
and other tangible things that support your denial or special or affirmative
defense, and state the name, ADDRESS and telephone number of the PERSON who has
each DOCUMENT.
Defendants provided the following supplemental responses:
Responding Party generally denies
the allegations in Plaintiff’s complaint and asserts affirmative defenses for
failure to state a claim, consent/waiver, no proximate cause, waiver/release,
laches, unclean hands, reasonable/good faith conduct of defendants, offset,
failure to mitigate, plaintiff not entitled to relief, Plaintiff’s own improper
conduct, bad faith, no standing, abuse/ulterior motive, mootness, lack of
diligence, impossibility/impracticability, retaliation, failure to serve
notice, breach of the implied covenant of quit enjoyment, Covid-19 protections,
no material breach, breach of warranty of habitability, failure to comply with
Rent Control Ordinance, Plaintiff’s breach, equitable estoppel, superseding act
of cross-complainant or third party, and defective notice.
(a)
Defendants entered into a residential lease with
Plaintiff in or around November 10, 2019. Upon first entering into the lease,
Plaintiff prorated Defendants’ rent for a year by giving them the first month
of rent free. At some point during the lease, Defendants were moved to a
different rental unit at the Property. Although Plaintiff originally charged a
prorated rate for rent, during the time of COVID-19 Defendants increased rent
to the amount of $5450.00. Defendants fell into financial hardship during the
COVID-19 pandemic and could no longer afford to pay rent for the Property.
Throughout their tenancy, Defendants notified Plaintiff of their COVID-19
financial hardships and inability to pay rent. Defendants also applied for the
California COVID19 Rent Relief (“Rent Relief”) and sent Plaintiff their
application number and status. Currently, Defendants’ Application for Rent
Relief is still pending. Nonetheless, Plaintiff served Defendants with a 3-Day
Notice to Pay Rent or Quit on September 23, 2022. Plaintiff then served
Defendants again with a similar notice on October 21, 2022 for the amount of
$38,150.00 from the dates of “April 1, 2022 and later.” Due to Defendants
suffering financial impacts from COVID-19 and notifying Plaintiff of their
struggle, Defendants neither paid accumulated back rent nor moved from the
Property. After the three day notice was issued, Defendants have been making
payments to Plaintiff, which Plaintiff has not returned. Plaintiff, however,
issued an unlawful detainer action to evict Defendant
(b) The
parties to this action to be contacted through their counsel of record, Tatone
Law, APC, 4333 Admiralty Way, Suite 100, Marina del Rey, CA 90292,
424-289-9707.
(c)
Lease and addendum(s); three day notices to pay or
quit; mailing receipts; communications RE inability to pay rent and/or
utilities, and rental relief; form notices of inability to pay rent; video
footage of payments and mailings to landlord; photographs of mailings and
contents therein. The parties to this action, care of their respective
attorneys of record; Tatone Law, APC, 4333 Admiralty Way, Suite 100, Marina del
Rey, CA 90292, 424- 289-9707.
Plaintiff complains about the
perfunctory and baseless objection. Despite this objection, Defendants did
not fail to answer the interrogatories posed. Plaintiff argues that a
further response should still be compelled because they believe that there is
not a “detailed explanation concerning Defendant’s financial hardship as
alleged in the Answer.” Indeed, the response does not contain a detailed
explanation of the specific hardship experienced (e.g., loss of income, increased
expenses, etc.). However, Defendants have fully addressed the interrogatories
with substantive responses in a straightforward manner. Thus, the Court cannot
find that the responses are “evasive or incomplete.” The Court concurs that no
further response is necessary.
Accordingly, Plaintiff’s motions to
compel further responses as to the form interrogatories are DENIED.
RPDs
Plaintiff moves to compel further
responses to RPDs nos. 17-19.
REQUEST NO 17: Every notice,
document, or photograph, or WRITING which supports YOUR contention that
PLAINTIFF violated a law, regulation, or ordinance.
REQUEST NO 18: Every correspondence
with Plaintiff relating to your ability to pay the rent for the PREMISES.
REQUEST NO 19: All financial
documentation, including but not limited to bank statements, balance sheets,
profit loss statements, tax filings, loan applications, grant applications, loan
statements, and balance sheets showing your financial condition from January 1,
2019 to the date of your responses to this discovery demand.
Each supplemental response only
contains objections, as follows.
As to no. 17:
“Objection, overly broad, vague and
ambiguous as to time and scope, and as to the term “law,” “regulation,” or
“ordinance.” Objection, call for a legal conclusion/opinion. Objection, calls
for speculation. Objection, calls for attorney work product and/or attorney-client
privilege.”
As to no. 18:
“Objection, overly broad, vague and
ambiguous as to time and scope, and as to the term “premises.” Objection, calls
for speculation.”
As to no. 19:
“Responding Party objects to this
request to the extent that this request seeks information that is not relevant
to any issue in this case nor reasonably calculated to lead to the discovery of
admissible evidence and, thus, is outside the scope of permissible discovery.
This request is overly broad and remote and is not calculated to lead to the
discovery of information relevant to the subject matter of this action nor to
the discovery of admissible evidence. This request is overly broad, indefinite
as to time and without reasonable limitation in scope. To respond to this
request would result in annoyance, or oppression to Responding Party in that
the question is overly broad and without reasonable limitation in its scope.
Responding Party objects to the extent that this interrogatory seeks attorney
work product in violation of Code of Civil Procedure Sections 2018.020 and
2018.030. Responding Party further objects to this interrogatory to the extent
this interrogatory seeks to invade the attorney-client privilege. Responding
Party further objects to this request on the basis that it requests
confidential and/or privileged financial documents, including in violation of
the California Constitution.”
In opposition, Defendants fail to
substantiate the specific objections to nos. 17-18. Counsel does not provide
how any of the requested documents would fall into the work-product or
attorney-client privilege. Moreover, the terms are not vague or ambiguous in
the context of the case. Accordingly, further responses are required as to RPD
nos. 17-18.
Defendants assert that discovery
into their finances would violate their right to privacy. The party asserting a privacy right must establish a
legally protected privacy interest, an objectively reasonable expectation of privacy
in the given circumstances, and a threatened intrusion that is serious. (Hill
v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35-37.) In Hill, the
California Supreme Court established a framework for evaluating potential
invasions of privacy. The party asserting a privacy right must establish a
legally protected privacy interest, an objectively reasonable expectation of
privacy in the given circumstances, and a threatened intrusion that is serious.
(Id. at 35–37.) The party seeking information may raise in response
whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may
identify feasible alternatives that serve the same interests or protective
measures that would diminish the loss of privacy. (Id.
at 37–40.) Courts must carefully balance a right of privacy against
the interest in having just litigation. (Pioneer Electronics (USA), Inc. v.
Superior Court (2007) 40 Cal.4th 360, 371.) If there is a serious invasion
of a constitutional right to privacy, the party seeking the evidence must
establish that the information sought is not only essential and directly
relevant, but also that this information could not be discovered through less
intrusive means. (See Williams v. Superior Court (2017) 3 Cal.5th 531,
552; Allen v. Superior Court (1984) 151 Cal.App.3d 447, 449.)
Here, Defendants
have a reasonable expectation of privacy concerning their finances. Certainly,
RPD no. 19 would seek discovery of Defendants’ financial condition from Jan.
2019 to present. However, Defendants’ twenty-first affirmative defense
concerns COVID-19 moratoriums and ability to pay and therefore, Defendants’ ability
to pay rent has been placed at-issue. Plaintiff is permitted to conduct
discovery into this issue, as it would tend to lead to the discovery of
admissible evidence concerning Defendants’ affirmative defenses. That said, the
complaint only demands rent from April 1, 2022, and later. Thus, the Court
cannot conclude that discovery into Defendants’ financial condition in 2019,
2020, or 2021 would be reasonably calculated to the discovery of admissible
evidence. Thus, the Court will only require that Defendants provide further
responses as to January 1, 2022 and onwards.
Defendants apparently provide some
responsive documents in opposition. However, Defendants do not provide a
code-compliant verification for such a production. Thus, the opposition would
not obviate the need for further responses.
Accordingly, Plaintiff’s motions to
compel further responses as to RPDs nos. 17-19 are GRANTED as discussed above.
RFAs
Plaintiff moves to compel further
responses as to RFAs nos. 7, which states:
REQUEST NO 7: Admit that you have
not made any complaints to Plaintiff about defective conditions at 1237 S. Holt
Ave. Unit 306, Los Angeles, CA 90035, County of Los Angeles.
Defendants provided a supplemental
response as follows: “Responding Party lacks sufficient information to admit or
deny this particular request.”
This response does not comply with CCP
section 2033.220(b)-(c). This section provides that each answer to a request
for admission shall:
[(b)](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.
Here, Defendants failed to provide the
necessary statement that a reasonable inquiry was made. Therefore, a further
response is warranted. In opposition, Defendants admit that a further response
is required, and indicate that they would deny the RFA. A denial may also mandate an additional
response to FI 15.1.
Accordingly, Plaintiff’s motions to
compel further responses to the RFAs are GRANTED.
SANCTIONS
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.”
Here, Plaintiff requests that the Court
issue sanctions each motion in the amount of $1,635.00, jointly
and severally against Defendants, individually, and their former counsel of
record, Michelangelo Tatone, Esq. of Tatone Law, APC. (See Uss Decls., ¶¶ 4
[2.5 of an hour researching, reviewing the file, and preparing the present
motion; anticipated 1 hour reviewing any Opposition filed by Defendant and
preparing a Reply thereto; an additional 1.2 hours preparing for and attending
the hearing on this Motion].) The Court concurs that this would be a reasonable
sanction. Plaintiff’s request for sanctions is GRANTED in the total amount of
$1,635.00, jointly and severally against Defendants and their former counsel of
record, Michelangelo Tatone, Esq. of Tatone Law, APC.