Judge Mark E. Windham, Case 18STLC12069 2022-10-27 Tentative Ruling

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Plaintiffs Joel Bander and Felicia Bander’s Motion to Compel Production of Documents and Testimony at Deposition, and Monetary Sanctions is GRANTED AS TO REQUEST NOS. 4-9 AND DENIED AS TO REQUEST NOS. 1-3 AND 10-12. WITHIN 20 DAYS’ SERVICE OF THIS ORDER, DEFENDANT OLMEDO GONZALO IS TO PRODUCE DOCUMENTS RESPONSIVE TO DEPOSTION NOTICE, REQUEST NOS. 4-9. BOTH PARTIES’ REQUESTS FOR SANCTIONS ARE DENIED.

Plaintiffs Joel Bander and Felicia Bander (“Plaintiffs”) filed the instant action for failure to return their security deposit and related claims against Defendants Ronald Bills (“Defendant Bills”), Howard Management Group (“Defendant HMG”), Daniel Sloan (“Defendant Sloan”), Gonzalo Olmedo dba Olmedo’s Construction (“Defendant Olmedo”) and Business Alliance Insurance Company (“Defendant BAIC”) on September 24, 2018. The First Amended Complaint was filed on October 22, 2019.

Defendant WIR Holdings, LLC (“Defendant WIR”), added as a doe defendant, filed a Cross-Complaint against Plaintiffs on October 14, 2020. The Cross-Complaint alleges that Plaintiffs breached their lease agreement by damaging the concrete driveway of the premises (“the Premises”) in an amount greater than covered by their security deposit.

On August 30, 2022, Plaintiffs filed the instant Motion to Compel Production of Documents and Testimony at Deposition and Request for Sanctions. Defendant Olmedo filed an opposition on October 13, 2022 and Plaintiffs replied on October 20, 2022.

Plaintiffs move to compel Defendant Olmedo to produce of documents in response to a notice of deposition and request for production of documents pursuant to Code of Civil Procedure sections 2023.010, 2023.030(a), 2025.280(a), 2025.410(a) 2025.460(e), 2025.450(g)(1), 2025.480(a) & (j), and 2025.480(j).

Code of Civil Procedure section 2025.480, subdivision (a) states in relevant part: “If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent's control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” (Code Civ. Proc., § 2025.480, subd. (a).) The motion must also “set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice” and “be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2025.450, subds. (b)(1), (2).)

The parties met and conferred regarding the discovery requests prior to the filing of this Motion. (Motion, Ahdoot Decl., Exhs. V-X.) Plaintiff moves for production of documents regarding the following categories: (1) repairs at the property for backyard roofing and water heater (Request Nos. 1-3); (2), electronically saved information (“ESI”) with respect to the emails between Defendants from July 1, 2018 through July 5, 2018 (Request Nos. 4-9); and (3) ESI of all invoices, estimates, and emails related to construction services at the property (Request Nos. 10-12). The Court notes that the parties dispute whether Defendant Olmedo served objections to the requested document production. (Motion, Ahdoot Decl., ¶¶21-22 and Exh. T; Opp., Bowers Decl., ¶8 and Exh. B.) Regardless of service of the written objections, defense counsel put Defendant Olmedo’s objections on the record at the deposition. (Reply, Ahdoot Decl., Exh. AA, pp. 8:2-9:12.) Also, on this Motion, the burden to show good cause for production falls to Plaintiff.

In support of the first category of documents in Request Nos. 1-3, which pertain to repairs at the property for the backyard roofing and water heater, Plaintiffs have not shown good cause for production. Plaintiffs reference allegations in the proposed Second Amended Complaint, which, as of this hearing is not operative. Regardless of the writ Plaintiffs have taken to challenge the trial court’s denial of leave to file the Second Amended Complaint, the Court can only consider allegations in the operative pleadings to determine the proper scope of discovery. (See Code Civ. Proc., § 2017.010.) The Motion does not cite to any allegations in the First Amended Complaint, or in the Cross-Complaint, that support inquiry into repairs for the backyard roofing and water heater. Likewise, Request Nos. 10-12, which asks for ESI for all invoices and estimates regarding construction services at the property are overbroad. The request to compel production of documents in response to Request Nos. 1-3 and 10-12 is denied.

Regarding the second category of documents at Request Nos. 4-7—emails between the Defendants from July 1, 2018 to July 5, 2018 regarding the specific amount invoiced with respect to the alleged damage to the back patio—Plaintiffs argue that the emails are relevant to their contention that the estimate for repairing the damage to the premises was grossly inflated as part of Defendants’ scheme to abscond with Plaintiffs’ entire security deposit. The document requests at issue seek ESI for the following:

(1) any email, or portion of an email, stating “Dear Mr RONALS BILLS, The estimate you requested is attached. Please review it and feel free to contact us if you have any questions. We look forward to working with you.”;

(2) all communications, including but not limited to emails, between Ronald Bills and Gonzalo Olmedo between and including July 1, 2018 and July 5, 2018;

(3) all communications, including but not limited to emails, between Gonzalo Olmedo and Daniel Sloan between and including July 1, 2018 and July 5, 2018; and

(4) of the email, and email chain, of Exhibit ‘A’, attached hereto and incorporated in full by this reference. Exhibit ‘A’ of the email chain stated From: Victor Olmedo Sent: Thursday, July 5, 2018 1:22 AM To: Daniel Sloan Subject: Estimate (No. 3886) - from Olmedo’s Construction, RONALD BILLS “Dear Mr RONALS BILLS, The estimate you requested is attached. Please review it and feel free to contact us if you have any questions. We look forward to working with you. Sincerely, Olmedo’s Construction”

(Motion, Separate Statement, p. 5:8-6:3.) In response, Defendant Olmedo objects that all discovery in this action, except depositions, has been completed and further discovery is not allowed by court order, the documents requested are not relevant and are not reasonably calculated to lead to admissible evidence, the requests are overbroad, vague, ambiguous, burdensome, oppressive, and would entail an unwarranted and unjustified invasion of Defendant Olmedo’s right to privacy. (Opp., Bowers Decl., Exh. B.)

The objection that the requests are overbroad, vague, ambiguous, burdensome, oppressive and an invasion of privacy are likewise without merit. The requests pertain to a very narrow window of time and communications between specific parties over a five-day period. Defendant Olmedo also contends that the ESI sought in the requests has already been provided in response to earlier discovery. (Opp., p. 2:8-18.) This contradicts the objection that such production is not possible or an invasion of privacy in response to the requests for production in the deposition notice. Also, the opposition does not cite to any legal authority regarding the privacy objections. (Opp., p. 3:5-9.)

Defendant Olmedo also raises an objection for lack of relevance or the reasonable possibility that the information sought will lead to admissible evidence. The requests, however, are directly relevant to the issue of the repairs to the concrete driveway. The ESI pertains to an email chain about the cost of those repairs. The foundation of Plaintiffs’ claim for bad faith retention of security deposit in the First Amended Complaint is that the costs claimed by Defendants were falsely made up to take the entire amount of Plaintiffs’ security deposit. (First Amended Complaint, filed 10/22/19, ¶¶14-17.) Therefore, good cause for the production of these documents has been demonstrated by Plaintiffs’ Motion.

Finally, Plaintiffs move for an order compelling Defendant Olmedo to produce ESI with respect to the estimate Defendant Olmedo prepared for repair to the back driveway in Request Nos. 8-9. (Motion, Separate Statement, Exh. T at Exh. B.) For the reasons discussed with respect to Request Nos. 4-7, good cause exists to compel production of these documents. The Court finds that Plaintiffs are entitled to an order compelling Defendant Olmedo’s production of documents in response to the Notice of Deposition, Request Nos. 4-9.

In light of the partial grant and partial denial of the instant Motion, the Court declines to award sanctions to either party.

MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND TESTIMONY AT DEPOSITION; REQUEST FOR SANCTIONS

Plaintiffs Joel Bander and Felicia Bander’s Motion to Compel Production of Documents and Testimony at Deposition, and Request for Monetary Sanctions is GRANTED. WITHIN 20 DAYS’ SERVICE OF THIS ORDER, DEFENDANT RONALD BILLS IS TO PRODUCE DOCUMENTS RESPONSIVE TO THE DEPOSTION NOTICE, REQUEST NOS. 1-4 AND FURTHER DEPOSITION TESTIMONY AS DISCUSSED HEREIN. DEFENDANT RONALD BILLS AND DEFENSE COUNSEL ARE JOINTLY AND SEVERALLY ORDERED TO PAY SANCTIONS OF $1,535.00 TO PLAINTIFFS’ COUNSEL WITHIN 20 DAYS’ SERVICE OF THIS ORDER.

On August 30, 2022, Plaintiffs filed the instant Motion to Compel Production of Documents and Testimony at Deposition and Request for Sanctions. Defendant Bills filed an opposition on October 13, 2022 and Plaintiffs replied on October 20, 2022.

Plaintiffs move to compel Defendant Bills to produce of documents in response to a notice of deposition and request for production of documents pursuant to Code of Civil Procedure sections 2023.010, 2023.030(a), 2025.280(a), 2025.410(a) 2025.460(e), 2025.450(g)(1), 2025.480(a) & (j), and 2025.480(j).

The parties met and conferred regarding the discovery requests prior to the filing of this Motion. (Motion, Ahdoot Decl., Exhs. K-N.) Plaintiffs move for production of electronically saved information (“ESI”) relating to an email chain exchanged between Defendants in early July 2018, in which Defendant Bills asked Defendant Olmedo for a specific amount to be invoiced to repair the damage Plaintiffs alleged caused to the Premises. (Motion, Ahdoot Decl., Exh. A.) Plaintiffs argue that the email from Defendant Bills is relevant to their claim that Defendant Olmedo’s estimate for repairing the damage was grossly inflated as part of Defendants’ scheme to abscond with Plaintiffs’ entire security deposit. They also argue that Defendant Bills’ objection to the production of the email chain is without merit. The opposition argues that the document requests are designed to annoy, harass, and unduly burden Defendant Bills after prior copious discovery requests and document production. Defendant Bills objects that the requests seek ESI information that was already provided, failed to state the particular form of ESI sought, failed to provide safeguards for Defendant Bills’ privacy, and seek irrelevant information.

(2) all communications, including but not limited to emails, between Ronald Bills and Gonzalo Olmedo between and including July 1, 2018 and July 5, 2018;

(3) all communications, including but not limited to emails, between Ronald Bills and Daniel Sloan between and including July 1, 2018 and July 5, 2018; and

Defendant Bills also objects that all discovery in this action, except depositions, has been completed and further discovery is not allowed, the requests are overbroad, vague, ambiguous, burdensome, oppressive, and would entail an unwarranted and unjustified invasion of Defendant Bills’ right to privacy.

Next, Defendant Bills points to an earlier ESI request for production, to which he objected on the grounds that the ESI production would require the expertise of a qualified ESI recovery firm for the cost of about $3,000.00. (Id. at pp. 4:16-5:13.) However, simply pointing to one’s own earlier objection does not demonstrate the merit of the same objection here. No evidence is provided by Defendant Bills to demonstrate that an ESI recovery firm would be required or the associated costs. (Opp., Bower Decl.) Nor is evidence provided to demonstrate that Defendant Bills already produced the ESI sought. (See Opp., p. 2:13-17.) Therefore, the objection that such production would be burdensome and oppressive is also without merit. The objection that the requests are overbroad, vague, ambiguous, and an invasion of privacy are likewise without merit. The requests pertain to communications between specific parties over a five-day period. Nor is the privacy objection supported by any legal authority regarding the business interests and third-party interests that are claimed to be at stake. (Opp., pp. 2:19-3:2.)

Based on the foregoing, the Court finds that Plaintiffs are entitled to an order compelling Defendant Bills’ production of documents in response to the Notice of Deposition, Request Nos. 1-4.

Plaintiffs also move for an order compelling Defendant Bills to respond to the following deposition question: “Have you ever entered into a cooperation agreement with any other defendant in this case?” (Motion, Separate Statement, p. 7:5-19.) An attorney-client privilege objection was made to this question during the deposition. In support of the objection, Defendant Bills contends he is an elderly and non-savvy layperson who may reveal privileged information when responding. (Opp., Separate Statement, p. 4:7-27.) The opposition does not demonstrate that other, non-privileged information might exist to respond to the question. Given that Defendant Bills has now had the chance to confer with defense counsel regarding any privileged information that might be disclosed, a response with non-privileged information is required.

Finally, an award of sanctions is appropriate due to Defendant Bills and defense counsel’s failure to make a reasonable effort to cooperate in production of responses to the document requests and deposition question. (See Code Civ. Proc., § 2023.030, subd. (a).) Based on a lodestar calculation, Plaintiffs’ request for monetary sanctions is granted in the amount of $1,535.00 based on five hours of attorney time billed at $295.00 per hour and $60.00 in costs. (Motion, Ahdoot Decl., ¶20.)

Plaintiffs Joel Bander and Felicia Bander’s Motion to Compel Production of Documents and Testimony at Deposition, and Monetary Sanctions is GRANTED. WITHIN 20 DAYS’ SERVICE OF THIS ORDER, DEFENDANT RONALD BILLS IS TO PRODUCE DOCUMENTS RESPONSIVE TO THE DEPOSTION NOTICE, REQUEST NOS. 1-4 AND FURTHER DEPOSITION TESTIMONY AS DISCUSSED HEREIN. DEFENDANT RONALD BILLS AND DEFENSE COUNSEL ARE JOINTLY AND SEVERALLY ORDERED TO PAY SANCTIONS OF $1,535.00 TO PLAINTIFFS’ COUNSEL WITHIN 20 DAYS’ SERVICE OF THIS ORDER.

Plaintiffs Joel Bander and Felicia Bander’s Motion to Compel Production of Documents and Testimony at Deposition, and Monetary Sanctions is GRANTED. WITHIN 20 DAYS’ SERVICE OF THIS ORDER, DEFENDANT HOWARD MANAGMENT GROUP IS TO PRODUCE DOCUMENTS RESPONSIVE TO THE DEPOSTION NOTICE, REQUEST NOS. 1-4. DEFENDANT HOWARD MANAGMENT GROUP AND DEFENSE COUNSEL ARE JOINTLY AND SEVERALLY ORDERED TO PAY SANCTIONS OF $1,535.00 TO PLAINTIFFS’ COUNSEL WITHIN 20 DAYS’ SERVICE OF THIS ORDER.

On August 30, 2022, Plaintiffs filed the instant Motion to Compel Production of Documents and Testimony at Deposition and Request for Sanctions. Defendant HMG filed an opposition on October 13, 2022 and Plaintiffs replied on October 20, 2022.

Plaintiffs move to compel Defendant HMG to produce of documents in response to a notice of deposition and request for production of documents pursuant to Code of Civil Procedure sections 2023.010, 2023.030(a), 2025.280(a), 2025.410(a) 2025.460(e), 2025.450(g)(1), 2025.480(a) & (j), and 2025.480(j).

The parties met and conferred regarding the discovery request prior to the filing of this Motion. (Motion, Ahdoot Decl., Exhs. K-M.) Plaintiffs move for production of electronically saved information (“ESI”) relating to an email chain exchanged between Defendants in early July 2018, in which Defendant Bills asked Defendant Olmedo for a specific amount to be invoiced to repair the damage Plaintiffs alleged caused to the Premises. (Motion, Ahdoot Decl., Exh. A.) Plaintiffs argue that the email from Defendant Bills is relevant to their claim that Defendant Olmedo’s estimate for repairing the damage was grossly inflated as part of Defendants’ scheme to abscond with Plaintiffs’ entire security deposit. They also argue that Defendant HMG’s objection to the production of the email chain is without merit. The opposition argues that the document requests are designed to annoy, harass, and unduly burden Defendant HMG after prior copious discovery requests and document production. Defendant HMG objects that the requests seek ESI information was already provided, fail to state the particular form of ESI sought, failed to provide safeguards for Defendant HMG’s privacy, and seek irrelevant information.

(2) all communications, including but not limited to emails, between Ronald Bills and Gonzalo Olmedo between and including July 1, 2018 and July 5, 2018;

(3) all communications, including but not limited to emails, between Ronald Bills and Daniel Sloan between and including July 1, 2018 and July 5, 2018; and

(Motion, Separate Statement, p. 3:1-19.) The Court first addresses Defendant HMG’s objection based on lack of relevance or the reasonable possibility that the information sought will lead to admissible evidence. The argument relies on the fact that the Court previously dismissed Plaintiffs’ claims regarding a civil conspiracy between Defendants and the only issue that remains in the operative pleadings is the repairs to the concrete driveway. The requests, however, are relevant to the issue of the repairs to the concrete driveway. The ESI pertains to an email chain about the cost of those repairs. The foundation of Plaintiffs’ claim for bad faith retention of security deposit in the First Amended Complaint is that the costs claimed by Defendants were falsely made up to take the entirety of Plaintiffs’ security deposit. (First Amended Complaint, filed 10/22/19, ¶¶14-17.) The email chain is not, as Defendant Bills argues, solely relevant to the now-dismissed causes of action for imposition of constructive trust, interference with business relations, and civil conspiracy. Therefore, good cause for the production of these documents has been demonstrated by Plaintiffs’ Motion.

Defendant HMG also objects that all discovery in this action, except depositions, has been completed and further discovery is not allowed by court order, the requests are overbroad, vague, ambiguous, burdensome, oppressive, and would entail an unwarranted and unjustified invasion of Defendant HMG’s right to privacy.

The objection that the requests are overbroad, vague, ambiguous, burdensome, oppressive and an invasion of privacy are likewise without merit. The requests pertain to a narrow set of communications between specific parties over a five-day period. Defendant HMG also contends that the ESI sought in the requests has already been provided in response to earlier discovery. (Opp., p. 2:13-16, 3:22-23.) This contradicts Defendant HMG’s contention that such production is not possible or an invasion of privacy. Nor is the privacy objection supported by any legal authority regarding the business interests and third-party interests that are claimed to be at stake. (Opp., pp. 2:15-3:4.)

Next, Defendant HMG points to an earlier ESI request for production, to which it objected that production would require the expertise of a qualified ESI recovery firm at the cost of about $3,000.00. (Id. at pp. 4:18-5:13.) Simply pointing to one’s own earlier objection does not demonstrate the merit of that objection when made in response to the current document requests. No evidence is provided by Defendant HMG to demonstrate that an ESI recovery firm would be required or the associated costs. (Opp., Bower Decl.) Therefore, the objection that such production would be burdensome and oppressive is also without merit.

Based on the foregoing, the Court finds that Plaintiffs are entitled to an order compelling Defendant HMG’s production of documents in response to the Notice of Deposition, Request Nos. 1-4.

An award of sanctions is also appropriate due to Defendant HMG’s and defense counsel’s failure to make a reasonable effort to cooperate in production of responses to the document requests and deposition question. (See Code Civ. Proc., § 2023.030, subd. (a).) Based on a lodestar calculation, Plaintiffs’ request for monetary sanctions is granted in the amount of $1,535.00 based on five hours of attorney time billed at $295.00 per hour and $60.00 in costs. (Motion, Ahdoot Decl., ¶20.)

Plaintiffs Joel Bander and Felicia Bander’s Motion to Compel Production of Documents and Testimony at Deposition, and Monetary Sanctions is GRANTED. WITHIN 20 DAYS’ SERVICE OF THIS ORDER, DEFENDANT HOWARD MANAGMENT GROUP IS TO PRODUCE DOCUMENTS RESPONSIVE TO THE DEPOSTION NOTICE, REQUEST NOS. 1-4. DEFENDANT HOWARD MANAGMENT GROUP AND DEFENSE COUNSEL ARE JOINTLY AND SEVERALLY ORDERED TO PAY SANCTIONS OF $1,535.00 TO PLAINTIFFS’ COUNSEL WITHIN 20 DAYS’ SERVICE OF THIS ORDER.