Judge: Mark C. Kim, Case: 21LBCV00281, Date: 2022-08-25 Tentative Ruling
Case Number: 21LBCV00281 Hearing Date: August 25, 2022 Dept: S27
1. Background
Facts
On May 21, 2021, Solar Source, Inc.
(“Plaintiff”) initiated the present action by filing a Complaint against Constra,
Inc., Bhupendra Singhal, and Does 1 through 20 (collectively, “Defendants”). Plaintiff’s Complaint alleges the following
causes of action: (1) Breach of Contract; (2) Foreclosure of Mechanic’s Lien;
and (3) Fraud. Plaintiff’s Complaint alleges
the following facts. Plaintiff is an
installer of solar panels. Defendants
Constra, Inc. and Bhupendra Singhal are owners of the real property located
upon 2540 Cerritos Avenue in Signal Hill,
California (“Subject Property”). On or
about June 19, 2019, Plaintiff entered into a contract with Defendants Constra,
Inc. and Bhupendra Singhal for the installation of solar panels upon the
Subject Property. Plaintiff alleges,
while the solar panels have been fully installed and the work contemplated by
the contract completed, Defendants have failed to pay the amount due to
Plaintiff.
On October 7, 2021, Defendants
Constra, Inc. and Bhupendra Singhal (hereinafter, “Defendants”) filed a
Demurrer to Plaintiff’s First and Third Causes of Action, as alleged within the
operative Complaint.
On January 13, 2022, Defendants’ Demurrer
came before the Court for hearing. The Court
sustained Defendants’ Demurrer to Plaintiff’s First Cause of Action, without
leave to amend. The Court overruled
Defendants’ Demurrer to Plaintiff’s Third Cause of Action. The Court ordered Defendants to file an
Answer to Plaintiff’s complaint, with the First Cause of Action deemed
stricken, within twenty days.
On January 13, 2022, Defendants
filed an Answer.
On January 13, 2022, Defendants
filed a Cross-Complaint against Plaintiff and Jarrod Osborne (hereinafter, “Cross-Defendants”). The Cross-Complaint alleges the following
causes of action: (1) Breach of Part Written, Part Oral and Part Implied in
Fact Construction Contract; (2) Disgorgement of All Compensation; (3) Fraud;
(4) Unfair Business Practices; and (5) Action on Contractor’s Bond.
On June 15, 2022, Defendant
Constra, Inc. filed the following three (3) discovery motions: (1) Defendant
Constra, Inc.’s Motion to Compel Plaintiff’s Further Responses to Form
Interrogatories (Set One); (2) Defendant Constra, Inc.’s Motion to Compel
Plaintiff’s Further Responses to Special Interrogatories (Set One); and (3)
Defendant Constra, Inc.’s Motion to Compel Plaintiff’s Further Responses to Request
for Production of Documents (Set One).
Defendant Constra, Inc.’s three (3) Motions are scheduled to come before
the Court for hearing on August 25, 2022.
On July 7, 2022, the Court
scheduled an Order to Show Cause Re: Why the Court Should Not Appoint a Discovery
Referee, to commence on August 25, 2022.
2. Defendant
Constra, Inc.’s Motions to Compel Plaintiff’s Further Responses to Form
Interrogatories (Set One), Special Interrogatories (Set One), and Request for
Production of Documents (Set One)
Presently
before the Court are Defendant Constra’ Inc.’s three (3) Motions to Compel
Plaintiff’s Further Responses to Defendant’s Form Interrogatories (Set One),
Special Interrogatories (Set One), and Request for Production of Documents (Set
One). By way of Defendant’s three
Motions, Defendant moves for an Order compelling Plaintiff’s further response
to approximately four (4) Form Interrogatories, seventeen (17) Special
Interrogatories, and fifty-six (56) Request for Production of Documents. (See Def.’s Separate Statements.)
The Court
makes the following observations and findings with respect to Defendant
Constra, Inc.’s three (3) Motions.
First, the
Court finds Defendant Constra, Inc. has failed to file a Proof of Service in
conjunction with the three (3) Motions brought against Plaintiff, in compliance
with California Rules of Court, Rule 3.1300, subdivision (c). (Cal. Rules of Court, Rule 3.1300, subd.
(c).) California Rules of Court, Rule
3.1300, subdivision (c) provides, “[p]roof of service of the moving papers must
be filed not later than five [5] court days before the time appointed for the
hearing.” (Ibid.) As the hearing date upon Defendant’s three
(3) Motions is scheduled to commence on August 25, 2022, Defendant Constra,
Inc. was required to file three (3) corresponding Proofs of Service no later
than August 18, 2022. However, Defendant
has failed to do so, in violation of California Rules of Court, Rule 3.1300, subdivision
(c). (Cal. Rules of Court, Rule 3.1300,
subd. (c).) There is no Proof of Service
attached to any of Defendant’s moving papers, nor has Defendant filed a stand-alone
Proof of Service with respect to any of Defendant’s three (3) Motions. Accordingly, the Court is presently unable to
confirm that Defendant Constra, Inc. has properly served the instant three (3)
Motions upon Plaintiff, or otherwise provided Plaintiff with notice of today’s
hearing date. Further, the circumstances
appear to indicate that no such service was made, and no such notice was
provided, as Plaintiff has not filed any Opposition to Defendant’s three (3)
Motions.
Second,
upon review of Defendant Constra, Inc.’s three (3) Motions, the Court finds
Defendant has failed to properly meet and confer prior to filing the same, in
accordance with the governing provisions of the Code of Civil Procedure. Pursuant to Code of Civil Procedure sections
2030.300, subdivision (b)(1) and 2031.310, subdivision (b)(2), prior to filing a
motion to compel a further response to interrogatories or a request for production
of documents, the moving party is required to meet and confer reasonably and in
good faith in an attempt to reach an informal resolution as to each issue
presented by the motion. (Code Civ. Proc.,
§§ 2030.300, subd. (b)(1), 2031.310, subd. (b)(2), 2016.040.) The
accompanying Declarations filed concurrently with Defendant’s three (3) Motions
demonstrate that, approximately thirty-eight (38) days following Plaintiff’s
service of responses to Defendant’s Form Interrogatories (Set One), Special
Interrogatories (Set One), and Request for Production of Documents (Set One),
Defendant sent a meet and confer letter to Plaintiff’s counsel outlining the
alleged deficiencies within Plaintiff’s responses and requesting the service of
further responses. (Murphy Decl., ¶ 5,
Ex. 1.) Plaintiff’s counsel did not respond
to Defendant’s meet and confer letter. (Ibid.) Thereafter, on June 9, 2022, Defendant’s
counsel inquired with Plaintiff’s counsel for the purposes of scheduling a
telephone conversation discussing Plaintiff’s deficient responses to discovery. (Id. ¶ 6, Ex. 2.) On June 15, 2022, Plaintiff’s counsel responded
to Defendant’s counsel’s inquiry, stating he could speak on Thursday, June 14th
or Friday, June 15th. (Id.,
¶ 6, Ex. 3.) Defendant chose not to
follow-through with the aforementioned telephone conversation because the
filing deadline for the three (3) Motions was looming closer. (Id., ¶ 6.) Defendant filed the three (3) Motions on the
same day, without engaging in a telephonic meet and confer with Plaintiff’s
counsel. (Ibid.) The Court opines the meet and confer efforts
outlined within Defendant’s accompanying Declarations are insufficient. The parties, practically, have not discussed
any of the discovery which is presently at issue within Defendant’s three (3)
Motions, and have exerted no reasonable effort to resolve this dispute
informally. Such does not equate to a
reasonable and good faith effort to meet and confer in compliance with Code of Civil
Procedure sections 2030.300, subdivision (b)(1) and 2031.310, subdivision (b)(2). (Code Civ. Proc., §§ 2030.300, subd. (b)(1),
2031.310, subd. (b)(2), 2016.040.)
Third, as
the parties may have anticipated pursuant to the Court’s scheduling of an Order
to Show Cause Re: Why the Court Should Not Appoint a Discovery Referee, the
Court believes the parties will greatly benefit from the appointment of a
discovery referee, pursuant to Code of Civil Procedure sections 638 and 639. (Code Civ. Proc., §§ 638, 639.) Code of Civil Procedure sections 638 and 639
provide, “[a] referee may be appointed upon the agreement of the parties” or, alternatively,
“upon [the court’s] own motion”. (Code
Civ. Proc., § 638 [“A referee may be appointed upon the agreement of the
parties filed with the clerk, or judge, or entered in the minutes, . . . .”],
639, subd. (a)(5) [“When the parties do not consent, the court may, upon . . .
its own motion, appoint a referee in the following cases pursuant to the
provisions of subdivision (b) of Section 640: ¶(5) When the court in any
pending action determines that it is necessary for the court to appoint a
referee to hear and determine any and all discovery motions and disputes
relevant to discovery in the action and to report findings and make a
recommendation thereon.”].) As has been
identified previously, Defendant has filed approximately three (3) Motions to
Compel Further Responses, by which Defendant moves for an Order compelling
Plaintiff’s further response to a sum of seventy-seven (77) discovery
requests. Given the voluminous nature of
the present discovery dispute, the Court finds that the appointment of a
discovery referee with respect to Defendant’s three (3) Motions would promote
judicial economy and efficiency. The
Court highly recommends that the parties stipulate to the appointment of a
discovery referee, pursuant to Code of Civil Procedure section 638. (Code Civ. Proc., § 638.) Alternatively, the Court is inclined to appoint
a discovery referee upon the Court’s own motion, in accordance with Code of
Civil Procedure section 639, subdivision (a)(5). (Code Civ. Proc., § 639, subd. (a)(5).)
3. Conclusion
Given the Court’s findings above,
the Court concludes as follows. During
hearing upon Defendant’s three (3) Motions, the Court will discuss with the
parties whether they will stipulate to the appointment of a discovery referee, pursuant
to Code of Civil Procedure section 638. (Code
Civ. Proc., § 638.) In the event the
parties do not so stipulate, the Court will nonetheless order the appointment
of a discovery referee pursuant to Code of Civil Procedure section 639,
subdivision (a)(5). (Code Civ. Proc., §
639, subd. (a)(5).) In both circumstances,
the Court will order the parties to engage in additional meet and confer
efforts with respect to the seventy-seven (77) discovery requests in dispute,
and prepare a joint statement of items which remain in dispute for use by the
discovery referee. Additionally, in the
event the Plaintiff fails to attend the hearing upon Defendant’s three (3)
Motions (due to Defendant’s failure to serve and provide adequate notice to
Plaintiff), the Court will continue the hearing upon Defendant’s thee (3) Motions
for the purposes of ensuring all parties’ attendance.
Moving Defendant 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.