Judge Mark A. Young, Case Number: 23SMCV02847, Date: 2024-09-06 Tentative Ruling

Judge: Mark A. Young, Case: 23SMCV02847, Date: 2024-09-06 Tentative Ruling

Case Number: 23SMCV02847 Hearing Date: September 6, 2024 Dept: M

CASE NAME: Woldenberg, et al., v. New Management LLC, et al.

CASE NO.: 23SMCV02847

MOTION: Motion to Compel Further Responses

HEARING DATE: 9/6/2024

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.) Section 2017.020(a) vests the Court with authority to limit the scope of discovery if the burden, expense, or intrusiveness of the discovery sought “clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” CCP § 2019.030 directs the Court to consider the needs of the case, amount in controversy, and the importance of the issues at stake in the litigation, and to consider whether the discovery being sought is unreasonably cumulative or duplicative, or is obtainable by a more convenient or less expensive or less burdensome way, when deciding whether to restrict the frequency of extent of use of an authorized discovery method.

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. (CCP, § 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. (See Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.) If the moving party has shown good cause for the production, the burden is on the objecting party to justify the objections. (Ibid.)

Analysis

Plaintiff Max Woldenberg moves to compel Defendant New Management LLC to provide further supplemental responses to Plaintiff’s Request for Production of Documents, Set One, nos. 13, 14, 19-21, and 23-27, within ten days, and to produce documents. Plaintiff also requests sanctions of $3,668.91 against Defendant and its counsel of record, Resnick & Louis PC. Plaintiff asserts that Defendant served further supplemental responses on June 21, 2024, which continue to be evasive and not code-compliant, and failed to produce responsive documents in accordance with its representation that it would comply with the requests.

The parties participated in an IDC where Defendant’s counsel agreed to provide revised and code-complaint responses within 30 days. (Riley Dec. ¶12.) On May 8, 2024, Defendant served supplemental responses, but some of the responses did not address or correct the previous deficiencies. (Riley Dec. ¶13, Ex. 4.) Following meet and confer efforts, on June 21, 2024, Defendant served further supplemental responses, however, they were not verified. (Riley Dec. ¶19, Ex. 5.) Defendant did not supplement its responses to request numbers 23-27. (Id.) Defendant provided verifications for the RPDs on August 22, 2024. (De Loa Decl., ¶ 42.)

RPD nos. 13-14, 19-21

Plaintiff argues that the responses and production for these RPDs are inadequate. Request nos. 13 and 14 seek documents reflecting mold testing at the property and in Plaintiff’s unit. Defendant’s current response to both is identical: “Please see EXHIBIT A, pages - 0004; - 0010 – 0041. Discovery is ongoing and Responding Party reserves the right to supplement and/or amend this response as additional discovery and investigation are completed.”

Request nos. 19-21 also seek documents reflecting mold inspections and remediation at the property and in Plaintiff’s unit. Each supplemental response states: “Please see EXHIBIT A, page 0004. Discovery is ongoing and Responding Party reserves the right to supplement and/or amend this response as additional discovery and investigation are completed.”

These responses are not code compliant. CCP section 2031.210 permits a party to respond in three ways to an RPD: (1) “that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection”; (2) “the party lacks the ability to comply with the demand”; or (3) “[a]n objection to the particular demand for inspection.” (CCP §2031.210.) Any statement of compliance “shall state that the production will be allowed either in whole or in part and that all documents in the demanded category that are in the possession, custody and control of the party to which no objection is being made will be included in the production. (CCP §2031.220.) Simply citing a set of exhibits is not a permissible response. The responses do not state whether documents will be produced, in whole or in part, or if all responsive documents in their possession/custody/control will be produced. It is therefore an incomplete statement of compliance.

Furthermore, exhibits that are cited do not appear to be responsive to the requests. Defendant produced Plaintiff’s Covid-19 test result (#0004), photographs of the interior of the unit (0010-0040), and an insurance declaration page (#0041). The only document produced as to nos. 19-21 was the Covid-19 test result (#0004). These documents have no apparent connection to mold testing done at the property. Thus, Defendant’s response appears to be a tactic to avoid production. Therefore, Defendant must provide a further response to RPD nos. 13-14, 19-21.

RPD nos. 23-27

RPD nos. 23-27 seek documents related to mold remediation and plumbing repairs for the property and Plaintiff’s unit. Defendant’s original response to request numbers 23-27 was: “After a diligent search and good faith inquiry, Responding Party cannot comply with this request, as responding party believes that the requested documents do not exist, and/or have never existed.” After the IDC, Defendant provided the following supplemental response: “After a good faith search, Responding Party is not able to comply with this request because there are no additional, responsive documents in its possession, custody or control. Responding Party is not aware of any persons that would be in the custody, possession, and/or control of any responsive documents. Responding Party has already produced all relevant documents in its custody, possession, and control. Discovery is ongoing and Responding Party reserves the right to supplement and/or amend this response as additional discovery and investigation are completed.” (Emphasis added.)

The Court concurs that the two responses are contradictory. Defendant initially did not produce any documents pursuant to these requests because there were no such documents. Defendant now claims that it has already produced all relevant documents under its control as part of its claimed inability to comply. The response suggests that there are responsive documents, which Defendant is refusing to produce because it has already produced said documents. Such a response is evasive and incomplete. Therefore, Defendant must provide a code-compliant further response to RPD nos. 23-27.

Accordingly, the motion to compel further responses is GRANTED. Supplemental responses are to be served within 10 days. Sanctions are imposed in the noticed amount of $3,668.91 against Defendant and counsel of record. Sanctions are to be paid to Plaintiff’s counsel within 30 days.