Judge Melvin D. Sandvig, Case 22CHCV00731 2023-03-27 Tentative Ruling

Judge: Melvin D. Sandvig, Case: 22CHCV00731, Date: 2023-03-27 Tentative Ruling

Case Number: 22CHCV00731 Hearing Date: March 27, 2023 Dept: F47

Dept. F47

Date: 3/17/23

Case #22CHCV00731

MOTION TO COMPEL:

(1) FURTHER RESPONSES (Form Interrogatories, Set 1)

(2) INITIAL RESPONSE TO Form Interrogatory No. 324.1

Motion filed on 2/14/23.

MOVING PARTY: Plaintiff Hamid Siddiqi

RESPONDING PARTY: Defendant Nick Kazemi dba K Construction

NOTICE: ok

RELIEF REQUESTED: An order compelling Defendant Nick Kazemi dba K Construction to provide verified further responses to Plaintiff Hamid Siddiqui’s Form Interrogatories – Construction Litigation (Set 1), numbers 314.1, 314.3, 314.5, 314.7, 321.1, 321.5, 321.6, 321.13, 322.3 and 326.1 without objections and (2) compelling Defendant to provide an initial/original response to Form Interrogatory 324.1 without objections. Additionally, Plaintiff requests monetary sanctions against Defendant.

RULING: The request to compel further, verified responses, without objections, to Form Interrogatories 314.1, 314.3, 314.5, 314.7, 321.1, 321.5, 321.6, 321.13, 322.3 and 326.1 is granted as is the request to compel an initial response, without objections to Form Interrogatory 324.1. Such responses are due within 30 days. Sanctions are denied.

SUMMARY OF FACTS & PROCEDURAL HISTORY

This action arises out of Plaintiff Hamid Siddiqi’s (Plaintiff) claim that Defendant Nick Kazemi dba K Construction (Defendant) breached a home improvement contract. Plaintiff contends that Defendant agreed to perform construction work relating to an existing retaining wall and to construct a swimming pool at Plaintiff’s residence for a total contract price of $200,000.00. Plaintiff contends that he paid Defendant $195,000.00; however, Defendant demanded an additional $30,000.00 to $40,000.00 to complete the job. Plaintiff contends that when he refused to pay the additional sum, Defendant abandoned the project. Therefore, on 9/6/22, Plaintiff filed this action against Defendant and Business Alliance Insurance Company for: (1) Breach of Written Contract, (2) Disgorgement, (3) Fraud and Deceit, (4) Negligence, (5) Declaratory Relief, (6) Discipline Against Contractor’s License and (7) Recovery Against Contractor’s Bond. On 11/10/22, Defendant filed his answer to the complaint.

On 10/6/22, Plaintiff served, by email, Defendant with Form Interrogatories – Construction Litigation (Set 1) making responses due 11/8/22. (Soffer Decl., Ex.B). Pursuant to Defendant’s request, Plaintiff extended the deadline to respond to 11/18/22. (Soffer Decl.). Defendant failed to serve responses by 11/18/22. Plaintiff agreed not to file a motion if Defendant provided responses without objections as they had been waived due to the failure to timely respond. Id. On 11/23/22, Defendant provided responses. (Soffer Decl., Ex.C). Plaintiff found Defendant’s responses to certain of the interrogatories to be deficient and that Defendant had failed to respond to Form Interrogatory 324.1. During the meet and confer process, Defendant agreed to extend the deadline to bring a motion to compel further responses ultimately until 2/16/23. (Soffer Decl., Ex.G, I).

After meet and confer efforts failed to resolve the issues with the discovery responses, on 2/14/23, Plaintiff filed and served the instant motion seeking an order compelling Defendant to provide verified further responses to Plaintiff’s Form Interrogatories – Construction Litigation (Set 1), numbers 314.1, 314.3, 314.5, 314.7, 321.1, 321.5, 321.6, 321.13, 322.3 and 326.1 without objections and (2) compelling Defendant to provide an initial/original response to Form Interrogatory 324.1 without objections. Additionally, Plaintiff requests monetary sanctions against Defendant. Defendant has opposed the motion and Plaintiff has filed a reply to the opposition.

ANALYSIS

If a responding party fails to serve timely responses to interrogatories, that party waives the right to exercise the option to produce writings under CCP 2030.230 and also waives any objection to the interrogatories. CCP 2030.290(a). A propounding party may move to compel a further response to an interrogatory if an answer is evasive or incomplete. See CCP 2030.300(a).

In response to the subject Form Interrogatories, Defendant included the following “Prefatory Comment:”

Throughout much of the discovery propounded by Plaintiff, Plaintiff uses the term “CONTRACT” in reference to that certain writing sent by Defendant to Plaintiff dated 9/10/21. Plaintiff, Defendant contends, hand-wrote a counter-offer and signed that counter-offer on 9/15/21. That counter-offer was never accepted by Defendant. Accordingly, there was never a meeting of the minds as required by elementary contract law respecting this proposal by the Defendant for this and other reasons apparent from the text. Therefore, whenever a question is premised upon the “CONTRACT” because Plaintiff [sic] contends that this writing between them did not constitute an enforceable agreement, Defendant will be unable to respond further substantively as the question contains an improper premise. Throughout these discovery responses Defendant will use the shorthand phrase “SEE PREFATORY COMMENT” when the question is flawed because it incorporates this improper premise.

Notably, none of the Form Interrogatories at issue use the term “CONTRACT.”

Form Interrogatory 314.1 asks Defendant to provide information for each agreement alleged in the pleadings. In response, Defendant states that the question is “more readily addressed to the Plaintiff” and refers to the “Prefatory Comment.”

In his 2^nd affirmative defense, Defendant alleges that “Plaintiff tampered with the proposal presented by Defendant KAZEMI and altered certain essential terms, some of those terms are those upon which he now complains. As such, the proposal by Defendant was never accepted by Plaintiff and Plaintiff’s alterations were never accepted by Defendant rendering any agreement between them void or voidable as not representing a genuine meeting of the minds of the parties.” However, in his 4^th affirmative defense, Defendant alleges that “[i]t was Plaintiff, not Defendant KAZEMI, who failed to abide by the arguendo contract terms and his breach renders the claims he asserts invalid” and in his 5^th affirmative defense, Defendant alleges “[a]ssuming, arguendo, Defendant KAZEMI abandoned the jobsite, this was because Plaintiff failed to honor his commitments thereby excusing Defendants’ ongoing performance.” Both the 4^th and 5^th affirmative defenses concede some sort of contract or agreement existed between the parties, even if it is not the contract alleged in Plaintiff’s complaint.

Defendant provides no authority to support his claim that this interrogatory is to be served on a Plaintiff and not a Defendant. The question is not limited to agreements alleged in the complaint and as noted above, Defendant’s answer to the complaint tacitly concedes that some sort of agreement existed between the parties. As such, Defendant’s response is deficient.

Form Interrogatory 314.3 asks if performance was excused for any agreement alleged in the pleadings and, if so, asks Defendant to identify each agreement and state why performance was excused. Defendant responds “Yes” to the first question, but then contends that the remainder of the question should be addressed to Plaintiff and not Defendant. As with the response to Form Interrogatory 314.1, this response is evasive and incomplete.

Form Interrogatory 314.5 asks if any agreement alleged in the pleadings is unenforceable and if, so, asks Defendant to identify the agreement and state why it is unenforceable. Defendant responds in the affirmative and then refers to the “Prefatory Comment.” Such response is deficient for the reasons noted above in relation to Form Interrogatories 314.1 and 314.3. Further, if Defendant contends that the contract alleged in the complaint is unenforceable as claimed in the Prefatory Comment, he seemingly would have information responsive to this question.

Form Interrogatory 314.7 asks Defendant if he contracted out any work he was to perform on the property to another person or entity and, if so, to provide information regarding such. Defendant responds in the affirmative and contends that documents are being assembled and will be provided in response to this question. However, as noted above, due to Defendant’s failure to provide timely responses, he waived his right to produce documents in response to this interrogatory.

Form Interrogatory 321.1 asks for identifying information for Defendant’s current or former supervising employees who were involved in the construction or supervision of construction of any improvements on the property. Defendant responded: “This Defendant was in overall charge of the project and he oversaw during his tenure, and who worked on the project.” This response is incomplete and evasive. If Defendant was the only supervisor involved in the construction and/or supervision of construction, the response must clearly state so.

Form Interrogatories 321.5 and 321.6 ask for information regarding all contracts identified in response to Form Interrogatory 314.1. Defendant responded “N/A” to both questions. As noted above, Defendant’s response to Form Interrogatory 314.1 is incomplete, evasive and, therefore, deficient. For the same reasons, Defendant’s responses to Form Interrogatories 321.5 and 321.6 are also deficient.

Form Interrogatory 321.13 asks if Defendant contracted to have any unlicensed subcontractor or design professional work on the property and, if so, requests information about same. In response, Defendant stated one plumbing installer was unlicensed and indicates that documents will be provided from him. As noted above, Defendant has waived his right to produce documents in response to the interrogatories. As such, the response is deficient. Even if Defendant had not waived such right, Defendant does not even provide the name of the person or entity so that Plaintiff could identify any documents which would provide responsive information.

Form Interrogatory 322.3 asks Defendant if he performed any on-site services at the property and if so, to provide information regarding such services. Defendant responded “N/A” which makes no sense considering Defendant stated in response to Form Interrogatory 321.1 that he “was overall in charge of the project.” As such, the response is incomplete and evasive.

Form Interrogatory 324.1 asks for information regarding each denial of a material allegation and each special or affirmative defense in Defendant’s pleading. Defendant failed to provide any response to this question.

Form Interrogatory 326.1 asks for information regarding each of Defendant’s responses to requests for admission which were not an unqualified admission. Defendant has failed to provide the required responsive information in response to subsection (a) and the response to subsection (b) is confusing and evasive.

Sanctions

CCP 2023.040 provides:

“A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.”

Here, the notice of motion requests “monetary sanctions against Kazemi.” (See Motion, p.2:8). In the memorandum of points and authorities, Plaintiff also repeatedly argues that sanctions against “Kazemi” are warranted. (See Motion, p.10:4-p.12:15). However, in the “Conclusion” of the motion, Plaintiff requests sanctions “against Kazemi (and/or his counsel)” without identifying a specific attorney. (See Motion, p.12:21-22). As such, Plaintiff has failed to provide clear notice against whom sanctions are sought as required by statute. Additionally, Plaintiff fails to clearly support the amount of sanctions requested. In the motion, Plaintiff requests “sanctions of at least $5,065.28.” (italics and bold in original) (See Motion, p.12:21-22). In the supporting declaration, Plaintiff’s counsel fails to specify his exact hourly rate. Rather, he states his “hourly billing rate charged in this matter is more than $500.” (See Soffer Decl. ¶16). Additionally, although counsel included estimated time to prepare a reply and appear at the hearing in the amount requested in the motion, the reply seeks an additional $2,503.63 in sanctions. (See Soffer Decl. ¶16; Soffer Reply Decl. ¶¶6, 7). In either case, the Court finds the amount requested to be excessive.

CONCLUSION

Based on the foregoing, Defendant is ordered to provide further, verified responses without objections to Form Interrogatories 314.1, 314.3, 314.5, 314.7, 321.1, 321.5, 321.6, 321.13, 322.3 and 326.1. Defendant is also ordered to provide an initial verified response, without objections, to Form Interrogatory 324.1. Plaintiff’s request for sanctions is denied.

Dept. F47

Date: 3/17/23

Case #22CHCV00731

MOTION TO COMPEL FURTHER RESPONSES & PRODUCTION OF DOCUMENTS

(Requests for Production of Documents, Set 1)

Motion filed on 2/14/23.

MOVING PARTY: Plaintiff Hamid Siddiqi

RESPONDING PARTY: Defendant Nick Kazemi dba K Construction

NOTICE: ok

RELIEF REQUESTED: An order compelling Defendant Nick Kazemi dba K Construction to provide verified further responses to Plaintiff Hamid Siddiqui’s Requests for Production of Documents (Set 1), numbers 1, 2, 6, 8, 9, 10, 11, 12 and 17, without objections, and compelling Defendant to produce responsive documents. Additionally, Plaintiff requests monetary sanctions against Defendant and/or Defendant’s counsel of record.

RULING: The request to compel further, verified responses, without objections, and production is granted as set forth below. Further responses and production are due within 30 days. Sanctions are denied.

SUMMARY OF FACTS & PROCEDURAL HISTORY

On 10/6/22, Plaintiff served, by email, Defendant with Requests for Production of Documents (Set 1) making responses due 11/8/22. (Soffer Decl., Ex.B). Pursuant to Defendant’s request, Plaintiff extended the deadline to respond to 11/18/22. (Soffer Decl.). Defendant failed to serve responses by 11/18/22. Plaintiff agreed not to file a motion if Defendant provided responses without objections as they had been waived due to the failure to timely respond. Id. On 11/23/22, Defendant provided responses and produced documents which were not Bates-stamped nor labeled as required by CCP 2031.280(a). (Soffer Decl., Ex.C). Plaintiff found Defendant’s responses to certain of the requests to be deficient and the production to be unclear. During the meet and confer process, Defendant agreed to extend the deadline to bring a motion to compel further responses ultimately until 2/16/23. (Soffer Decl., Ex.G, I).

After meet and confer efforts failed to resolve the issues with the discovery responses, on 2/14/23, Plaintiff filed and served the instant motion seeking an order compelling Defendant to provide verified further responses to Plaintiff’s Requests for Production of Documents (Set 1), numbers 1, 2, 6, 8, 9, 10, 11, 12 and 17, without objections, and compelling Defendant to produce responsive documents. Additionally, Plaintiff requests monetary sanctions against Defendant and/or Defendant’s counsel of record. Defendant has opposed the motion and Plaintiff has filed a reply to the opposition.

ANALYSIS

If a responding party fails to serve timely responses to requests for production, that party waives any objection to the requests. CCP 2031.300(a). Additionally, a propounding party may move to compel a further response to a document request if a statement in compliance is incomplete. CCP 2031.310(a). Further, “[a]ny documents or category of documents produced in response to a demand for inspection, copying, testing, or sampling shall be identified with the specific request number to which the documents respond.” CCP 2031.280(a). If after providing responses, a responding party fails to permit inspection pursuant to the statement of compliance, the demanding party may move for an order compelling compliance. CCP 2031.320(a).

In response to the document requests at issue, Defendant has indicated that responsive documents are being assembled and will be provided (Requests 1, 2, 6, 10 and 11), responsive documents will be provided (Request 12) and responsive documents accompany the response or will be sent (Request 17). (See Soffer Decl., Ex.C). It is further noted that in response to Request 18, Defendant stated that responsive documents “are produced if any referenced.” Id.

There is no dispute that Defendant has produced documents. (Soffer Decl. ¶5). However, according to Plaintiff, Defendant failed to identify to which request(s) the documents respond as required by CCP 2031.280(a). Id. The opposition does not refute Defendant’s failure to comply with CCP 2031.280(a). (See Opposition, generally). Due to Defendant’s failure to comply with CCP 2031.280(a), neither Plaintiff nor the Court can determine which documents correspond to which request. In turn, it cannot be determined whether Defendant has permitted inspection pursuant to his statement of compliance and/or whether all responsive documents in Defendant’s possession, custody and/or control have been produced as contended in the opposition, which is not supported by a declaration from Defendant or Defendant’s counsel.

Moreover, the opposition concedes that all responsive documents may not have been, or definitely were not, produced in compliance with the responses. For example, with regard to Requests 1 and 2, Defendant claims that “virtually all” of the responsive documents were produced on 11/23/22. (See Defendant’s Separate Statement, p.5:22-25, p.7:27). Such response seems to imply that some responsive documents may not have been produced. Also, with regard to Request 9, Defendant concedes that he failed to produce responsive documents. (Id. at p.11:27). It is not clear if Defendant is attempting to assert an improper, untimely objection to this request by now claiming that responsive documents are equally accessible to Plaintiff because Defendant then states that he “undertakes to produce all such licenses. (Id. at p.11:27-p.12:1).

Based on the foregoing, Plaintiff is entitled to further verified responses to Requests 1, 2, 6, 9, 10, 11, 12 and 17 stating that all responsive documents have been produced, if such is the case. Similarly, Plaintiff is entitled to further responses and/or production which identify the request(s) to which each document produced responds.

The Court notes that the motion indicates that the response to Request 8 is at issue. (See Motion p.2:9-12, p.7:23-25, p.1518-19, 20-21). However, Request 8 is not included in Plaintiff’s Separate Statement nor is it addressed in the reply. (See Plaintiff’s Separate Statement, p.7:18-p.9:11 and generally).

Sanctions

CCP 2023.040 provides:

Here, the notice of motion requests “monetary sanctions against Kazemi (and/or Kasemi’s counsel of record” without identifying a specific attorney. (See Motion, p.2:8). In the memorandum of points and authorities, Plaintiff repeatedly argues that sanctions against “Kazemi” are warranted. (See Motion, p.13:5-p.15:8). However, Plaintiff then states and concludes that sanctions must be imposed “against Kazemi (and/or his counsel),” again, without identifying a specific attorney. (See Motion, p.15:8-12, p.15:25). As such, the motion fails to clearly indicate against whom sanctions are sought as required by statute. Additionally, Plaintiff fails to clearly support the amount of sanctions requested. In the motion, Plaintiff requests “sanctions of at least $5,065.28.” (italics and bold in original) (See Motion, p.15:25). In the supporting declaration, Plaintiff’s counsel fails to specify his exact hourly rate. Rather, he states his “hourly billing rate charged in this matter is more than $500.” (See Soffer Decl. ¶17). Additionally, although counsel included estimated time to prepare a reply and appear at the hearing in the amount requested in the motion, the reply seeks an additional $2,503.63 in sanctions. (See Soffer Decl. ¶17; Reply, p.10:19-21; Soffer Reply Decl. ¶¶11-12). In either case, the Court finds the amount requested to be excessive.

CONCLUSION

Based on the foregoing, Defendant is ordered to provide further, verified responses without objections to Requests 1, 2, 6, 9, 10, 11, 12 and 17. Defendant is also ordered to provide further responses and/or to re-produce responsive documents so that the request(s) to which each document or category of documents responds is identified in compliance with CCP 2031.280(a). Further, Defendant is ordered to produce any responsive documents in his possession, custody and/or control which have not already been produced (i.e., two email attachments referenced in the motion and reply).

Plaintiff’s request for sanctions is denied.