Judge Matthew C. Braner, Case 37-2022-00002271-CU-BC-CTL 2023-11-17 Tentative Ruling

Judge: Matthew C. Braner, Case: 37-2022-00002271-CU-BC-CTL, Date: 2023-11-17 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - November 16, 2023

11/17/2023 09:00:00 AM C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

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Civil - Unlimited Breach of Contract/Warranty Discovery Hearing 37-2022-00002271-CU-BC-CTL POKORNY VS MLA BUILDERS INC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Plaintiff James Pokorny's motions to compel further responses to form interrogatories, special interrogatories, and requests for production from Defendant Westwood Building Enterprises are GRANTED.

Plaintiff moves to compel further responses to form interrogatory ('FI') nos. 4.1 and 12.3, special interrogatory ('SI') nos. 8-12, 15-19, 21, 24-30, 34-48, and 50, and requests for production ('RFP') nos.

1, 3-21, and 23-37.

At the outset, the court notes it is in agreement with Plaintiff that Defendant's recitation of the facts is misleading. The written discovery at issue was served on Defendant in May 2023, not July 2023, and Defendant was afforded a 2-week extension to respond, making the due date July 10, 2023. This timing difference is significant, given Defendant's proffered justification for failing to provide responsive information and documents that it 'has not received sufficient information in discovery to fashion a response,' which the court understands to mean that Defendant had not had sufficient time to investigate the matter and provide the information and documents then in its possession, custody, or control. Defendant has now had nearly six months to conduct an investigation and obtain the facts and documents from its client that will support its affirmative defenses, or to confirm which affirmative defenses lack such support. As such, Defendant has no excuse for refusing to supplement its responses.

As to FI nos. 4.1 and 12.3, the court is not persuaded that Defendant has in fact served verified supplemental responses that provide the requested information. The version of Defendant's responses attached to Defendant's counsel's declaration contains the requested information and is dated August 8, 2023. However, it is in conflict with the version attached to Plaintiff's counsel's reply declaration, which is also dated August 8, 2023, and includes a proof of service dated August 11, 2023, whereas the proof of service for Defendant's version of the document is dated September 18, 2023, well after Plaintiff filed his motions to compel. In any case, the supplemental response is not verified.

Consequently, Plaintiff's motion to compel further responses to form interrogatories is granted. Under the circumstances, sanctions are also warranted. Plaintiff's request for a sanction of $975 comprised of three hours of attorney work for this particular motion at a rate of $325/hour is reasonable. The sanction is joint and several against Defendant and its counsel of record.

In response to SI nos. 8-12, 15-18, 21, 24-30, and 34-36, Defendant stated: 'Responding party has not received sufficient information in discovery to fashion a response to this Interrogatory.' This is not an Calendar No.: Event ID: TENTATIVE RULINGS

3012840 12 CASE NUMBER: CASE TITLE: POKORNY VS MLA BUILDERS INC [IMAGED] 37-2022-00002271-CU-BC-CTL appropriate objection to these interrogatories, which all concern Defendant's pleaded affirmative defenses. Particularly given the length of time that Defendant has now had to investigate and obtain the information and documents possessed or known by its client that may support its defenses, Defendant has no excuse for refusing to supplement its responses.

As to SI no. 19, Defendant's response of 'Responding party, Angel Hernandez Bremen,' is unresponsive and nonsensical. The interrogatory asks Defendant to state all facts that form the basis of its seventh affirmative defense ('Plaintiff's Own Negligence'); the response is plainly not a statement of facts.

As to SI nos. 37-43, 48, and 50, Defendant's compound objection lacks merit. Use of the word 'or' in the interrogatory does not automatically make it disjunctive or compound, just as use of the word 'and' does not automatically make it conjunctive or compound. Rather, the issue is whether the interrogatory calls for separate and distinct categories of information such that the question is essentially multiple interrogatories that may enable the propounding party to sidestep the limit set forth in Code of Civil Procedure section 2030.030. As the court reads these interrogatories, they ask for singular categories of information; they are not compound.

As to SI nos. 44-47, the court rejects Defendant's objection that use of the word 'offset' is so ambiguous that it makes a response impossible. Particularly in the construction context, the word is not ambiguous and should be understood by Defendant's client, a general contractor.

Consequently, Plaintiff's motion to compel further responses to special interrogatories is granted. Under the circumstances, sanctions are also warranted. Plaintiff's request for a sanction of $975 comprised of three hours of attorney work for this particular motion at a rate of $325/hour is reasonable. The sanction is joint and several against Defendant and its counsel of record.

Finally, as to RFP nos. 1, 3-21, and 23-37, Defendant's responses are not code-compliant. The responses to RFP nos. 1, 3-6, 8, 10-11, 14-19, 25, 29, 31-33, and 36-37 do not contain statements that Defendant will comply with each request (Code Civ. Proc., § 2031.210, subd. (a)(1)), nor statements 'that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the product.' (Code Civ. Proc., § 2031.220.) Stating only that all documents in Defendant's possession will be produced does not comply with the Code; custody and control are not equivalent to possession. The responses to RFP nos. 7, 9, 12-13, 20-21, 23-24, 26-28, 30, 34-35 do not specify whether the inability to comply (which itself is not specified, but may at least be reasonably inferred) 'is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party.' (Code Civ. Proc., § 2031.230.) The responses also fail to state whether a reasonable inquiry, in addition to a diligent search, was conducted.

(Code Civ. Proc., § 2031.230.) Consequently, Plaintiff's motion to compel further responses to requests for production is granted. Under the circumstances, sanctions are also warranted. Plaintiff's request for a sanction of $975 comprised of three hours of attorney work for this particular motion at a rate of $325/hour is reasonable. The sanction is joint and several against Defendant and its counsel of record.

Defendant is compelled to provide verified code-compliant supplemental responses to FI nos. 4.1 and 12.3, SI nos. 8-12, 15-19, 21, 24-30, 34-48, and 50, and RFP nos. 1, 3-21, and 23-37, and to pay sanctions totaling $2925, no later than December 8, 2023.

The minute order is the order of the court.

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