Judge Mark C. Kim, Case 21LBCV00083 2022-09-15 Tentative Ruling

Judge: Mark C. Kim, Case: 21LBCV00083, Date: 2022-09-15 Tentative Ruling

Case Number: 21LBCV00083 Hearing Date: September 15, 2022 Dept: S27

1. Background Facts

Plaintiff, Fitness International, LLC filed this action against Defendant, Palo Woods, LLC for declaratory relief and common counts. The operative complaint is the FAC, which was filed on 4/05/21. Plaintiff operates fitness centers and one of its centers was located in a building owned by Defendant and leased by Plaintiff.

The FAC includes two declaratory relief causes of action and three common counts causes of action. The declaratory relief causes of action seek declarations that (a) Plaintiff did not have to pay rent to Defendant, at all, during the time it was not allowed to operate under Covid regulations, and (b) Plaintiff only has to pay proportionate rent to Defendant during the time Plaintiff was subject to maximum occupancy regulations due to Covid. Plaintiff also seeks a return of monies it paid prior to determining it did not need to pay monies to Defendant due to the above-mentioned restrictions.

Defendant filed a cross-complaint against Plaintiff for breach of contract and declaratory relief, contending Plaintiff is in breach of its contractual obligations to pay rent due under the parties’ contract, and seeking a declaration that the Covid regulations do not relieve Plaintiff of the obligation to pay rent.

2. History of Discovery Dispute

Today’s motion is the third in a series of motions relating to RPD 4. The Court first heard a motion to compel production of documents on 12/07/21. The Court found Plaintiff had agreed to produce documents in response to RPD 4, but had failed to actually do so. The Court ordered Plaintiff to produce documents and pay sanctions.

The matter was next before the Court on 4/14/22. At that time, the parties had competing motions on calendar. Defendant was moving to compel further production in connection with RPD 4, and Plaintiff was moving for relief from waiver of discovery objections in connection with RPD 4. The Court denied the motion for relief from waiver of objections, finding that, even if it considered granting relief, it would overrule the objections Plaintiff sought to interpose. The Court granted the second motion to compel production, finding Plaintiff had continued to fail to produce documents responsive to RPD 4. The Court again imposed monetary sanctions.

3. Renewed Motion for Relief from Waiver of Objections

a. Parties’ Positions

On 6/06/22, Plaintiff filed this renewed motion for relief from waiver of objections. Plaintiff contends the Court did not, in connection with the 4/14/22 ruling, consider whether Plaintiff’s proposed attorney-client privilege and/or attorney work product objections would be sustained. Plaintiff contends Defendant is improperly attempting to obtain such documents, and therefore it must renew its motion for relief to ensure those documents are protected. It contends it has met both elements for relief, and therefore the motion should be granted.

Defendant opposes the motion. It argues the motion is not timely made, the Court has previously found the documents relevant and subject to production, the motion cannot be granted because Plaintiff admits its current iteration of responses is not code-compliant, and a recent Orange County Superior Court bench officer denied a similar motion. It contends neither element of §2031.300(a) is satisfied, and the motion must be granted.

In reply, Plaintiff contends the sole remaining document at issue between the parties is an email that contains highly confidential private financial information. It contends this document should not be produced.

b. Analysis

The motion is denied for two main reasons. The Court’s failure to address Defendant’s additional arguments in opposition to the motion is not intended as a finding that those additional arguments lack merit; the Court finds only that the two issues discussed below are dispositive, and no additional analysis is necessary to deny the motion.

First, a renewed motion must be based on new or different facts, circumstances, or law. CCP §1008(b). Plaintiff argues the Court, on 4/14/22, “deferred” ruling on the motion and did not rule on attorney-client privilege and/or work product issues. The Court ruled on all issues before it on 4/14/22.

The Court, in preparing this ruling, reviewed Plaintiff’s prior motion, filed on 1/25/22, and did a key word search for “privilege” and “work product,” and the only time those words were used was on page 2, line 25-28, wherein Plaintiff quoted the statute governing the motion. Plaintiff never argued those objections needed to be interposed in connection with RPD 4. Plaintiff cannot create a “new or different” fact, circumstance, or law by failing to raise a pertinent issue in a prior motion and then raising it at a later time.

Second, the Court finds Plaintiff failed to show EXCUSABLE neglect caused the waiver of objections. The Court so finds for two reasons. First, Plaintiff’s attorney claims the initial failure to timely respond was the result of a calendaring error. However, pursuant to City of Fresno v. Superior Court (1988) 205 Cal.3d 1459, 1467, a mistake in calendaring the date responses are due is not excusable and cannot support relief. Second, when Counsel met and conferred concerning the late responses, Plaintiff AGREED to serve responses without objections, and then did so, which ratified the choice not to object. Plaintiff could have, at that time, sought relief, but instead Plaintiff agreed to produce all responsive documents.

Additionally, it is not clear what the email is that remains in dispute between the parties. The mere fact that an email contains financial information does not make it privileged; nor does the fact that the email was, at some point, provided to Plaintiff’s attorney. It is not clear if the email was a communication between Plaintiff and its attorney, or if it was merely transmitted to Counsel during litigation.

The Court has twice previously ordered Plaintiff to produce responsive documents and imposed sanctions. The motion is again denied. Plaintiff must produce all responsive documents within ten days. A failure to do so could lead to imposition of more severe sanctions than monetary sanctions.

Plaintiff is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If any party does not submit on the tentative, the party should make arrangements to appear remotely at the hearing on this matter.