Judge Michael E. Whitaker, Case Number: 22SMCV00855, Date: 2023-09-12 Tentative Ruling

Judge: Michael E. Whitaker, Case: 22SMCV00855, Date: 2023-09-12 Tentative Ruling

Plaintiff Amanda Gohari (“Plaintiff”) asserts in the Second Amended Complaint against Defendants Wilshire Regent Association, Inc. (“Wilshire”) and Charles Eiser (“Eiser”) (collectively, “Defendant”) claims for (1) Breach of Fiduciary Duty; (2) Violation of Conditions, Covenants and Restrictions; (3) Negligence (4) Intentional Infliction of Emotional Distress; (5) Negligent Infliction of Emotional Distress; and (6) Nuisance.

Plaintiff moves the Court for orders compelling Defendants to serve responses or further responses to the following discovery requests:

1. Requests For Admission (“RFA”), Set 2, Propounded to Defendant Eiser (MOTION A) [1]

2. Requests For Admission (“RFA”), Set 3, Propounded to Defendant Wilshire (MOTION B) [2]

A notice of motion to compel further responses must be “given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which” the parties have agreed in writing. (Code Civ. Proc., §§ 2030.300, subd. (c), 2033.290, subd. (c).) Failure to file such a motion within this time period constitutes a waiver of any right to compel further responses. (Ibid.)

Here, Plaintiff filed the motions on the date set forth above. Defendants have not objected to the timeliness of the motions.

A motion to compel must be accompanied by a meet and confer declaration under Code of Civil Procedure section 2016.040. (Code Civ. Proc., § 2031.310, subd. (b)(2).) A meet and confer declaration must state facts showing a reasonable and good-faith attempt at an informal resolution of each issue presented in the motion. (Code Civ. Proc., § 2016.040.)

“The Discovery Act requires that, prior to the initiation of a motion to compel, the moving party declare that he or she has made a serious attempt to obtain an informal resolution of each issue. This rule is designed ‘to encourage the parties to work out their differences informally so as to avoid the necessity of a formal order. . . . This, in turn, will lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes.” (Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1434-1435, citations omitted [cleaned up].) To comply, “A reasonable and good-faith attempt at informal resolution entails something more than bickering with [opposing counsel]. Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.” (Townsend, supra, 61 Cal.App.4th at p. 1439; see also Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294 [to satisfy the attempt at informal resolution required in section 2016.040 opposing parties must do more than try to persuade each other of their errors].) In short, the Discovery Act “requires that there be a serious effort at negotiation and informal resolution.” (Townsend, supra, 61 Cal.App.4th at p. 1438.)

To that end, trial courts are entrusted with discretion and judgment to determine the necessary effort required to satisfy the requirement of an informal resolution. (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 433.) In determining if parties have satisfied Section 2016.040, judges may consider “the history of the litigation, the nature of the interaction between counsel, the nature of the issues, the type and scope of discovery requested, the prospects for success and other similar factors can be relevant.” (Id. at pp. 431-432 [holding that the trial court was correct in determining that sending a letter with oppositions was an insufficient attempt at an informal resolution].) In sum, meet and confer efforts should go beyond merely sending letters to each other stating each party’s respective positions.

Here, as set forth in the Declarations of Howard A. Pollack (“Pollack”), counsel for Plaintiff, Plaintiff asserts she has engaged in a reasonable and good faith attempt at an informal resolution of the issues presented in the motions as follows:

· On July 26, 2023, Plaintiff sent meet and confer letters in response to Eisner's above discovery responses.

· On July 27, 2023, Plaintiff sent a follow up meet and confer letter to Defendants regarding the lack of verifications.

· On August 4, 2023, Defendants responded to Plaintiffs July 26, 2023 letter rejecting Plaintiffs arguments and refusing to serve further verified responses.

· On August 22, 2023, an Informal Discovery Conference ("IDC") was held regarding, among other issues, the Eisner's deficient Responses to Plaintiffs RF As, Set Two.

· On September 8, 2023, Eisner served his Amended Responses to Plaintiffs RF As, Set Two. Those Responses are unverified and continue to fail to comply with the requirements of the code.

· On October 2, 2023, counsel for Plaintiff and Defendants agreed to extend the deadline for the filing of, among other responses, a Motion to Compel on Eisner's Responses to Plaintiffs RF As, Set Two to the latter of November 13, 2023 or per code based on when Plaintiff received verifications.

(See Declarations of Howard A. Pollack, ¶¶ 5-10, in support of Motions A & C.) Further, Pollack avers in support of Motions B and D, as follows:

· Plaintiff sent a meet and confer letter to Defendant Association on July 10, 2023 outlining the deficiencies of the Association's responses in light of this Court's granting of Plaintiffs Motion for Leave to Amend.

· Austin Wallick, counsel for the Association, responded on July 11, 2023 that 2 "[g]iven the Court's recent ruling," the Association would be serving amended responses.

· On July 17, 2023, Defendant Association served Amended Responses to Plaintiff 5 Amanda Gohari's Requests For Admission, Set Three.

· On July 26, 2023, Plaintiff sent meet and confer letters in response to the Association's above discovery responses.

· On July 27, 2023, Plaintiff sent a follow up meet and confer letter to Defendants regarding the lack of verifications.

· On August 4, 2023, Defendants responded to Plaintiffs July 26, 2023 letter 21 rejecting Plaintiffs arguments and refusing to serve further verified responses.

· On August 22, 2023, an Informal Discovery Conference ("IDC") was held regarding, among other issues, the Association's deficient Responses to Plaintiffs RFAs, Set Three. As a result of the IDC, Austin Wallick agreed to provide verified code-compliant responses to RFAs, Set Three numbers 99 to 118.

· On September 8, 2023, the Association served its Further Amended Responses to Plaintiffs RF As, Set Three. Those Responses are unverified and continue to fail to comply with the requirements of the code.

· On October 2, 2023, counsel for Plaintiff and Defendants agreed to extend the deadline for the filing of, among other responses, a Motion to Compel on the Association's Responses to Plaintiffs RF As, Set Three to the latter of November 13, 2023 or per code based on when Plaintiff received verifications.

(See Declarations of Howard A. Pollack, ¶¶ 5-7, 9-14 in support of Motions B & D.)

In opposition, Defendants advance the Declarations of Austin R. Wallick (“Wallick”), counsel for Defendants, who states in relevant part:

· Following the Informal Discovery Conference on August 22, 2023, Defendant served further amended responses to Plaintiff’s Form Interrogatories, Set Two and Requests for Admission, Set Three on September 8, 2023.

· From September 8, 2023 until the filing of this motion on October 31, 2023, I did not receive any meet and confer letters, phone calls, or email correspondence from Plaintiff’s counsel identifying any deficiencies with the further amended responses.

· At no time did Plaintiff’s counsel attempt to meet and confer on the amended responses prior to the filing of this motion.

(See Declarations of Austin R. Wallick, ¶¶ 4-6.) As such, Defendants contend that Plaintiff failed to meet and confer as required under the Discovery Act after further responses to the subject discovery requests were served on September 8, 2023. The Court finds Defendants’ argument wanting.

First, Wallick concedes that Defendants served unverified further responses to the subject discovery requests. (See Declarations of Austin R. Wallick, ¶¶ 8-9.) “Unsworn responses are tantamount to no responses at all.” (Appleton v. Superior Court (1998) 206 Cal.App.3d 632, 636.) Accordingly, the requirement to meet and confer before filing motions to compel does not apply to unsworn discovery responses. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 404 [“Unlike a motion to compel further responses, a motion to compel responses is not subject to a 45–day time limit, and the propounding party does not have to demonstrate either good cause or that it satisfied a “meet and confer” requirement”].)

Second, even if Defendants served verified further responses, the Court finds Plaintiff’s repeated attempts to informally resolve the discovery disputes to be satisfactory especially when Defendants have not tendered in large part code compliant responses (see the Rulings below) after those attempts. The Discovery Act does not require a party to engage in endless, idle attempts to informally resolve discovery disputes when an opposing party does not seem to be interested in compromise or complying.

California Rules of Court, rule 3.1345 requires that any motion involving the content of discovery contain a separate statement with the text of each request, the response, and a statement of factual and legal reasons for why an order compelling further responses is warranted.

Here, Plaintiff has filed separate statements related to the motions which complies with Rule 3.1345.

“Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc., § 2017.010.)

“The purpose of the discovery rules is to enhance the truth-seeking function of the litigation process and eliminate trial strategies that focus on gamesmanship and surprise. In other words, the discovery process is designed to make a trial less a game of blindman's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.” (Juarez v. Boy Scouts of Am., Inc. (2000) 81 Cal.App.4th 377, 389 [cleaned up].)

Where a party objects, or responds inadequately, to discovery requests, a motion lies to compel further responses, and that party has the burden to justify the objections or inadequate responses. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255; Code Civ. Proc., §§ 2030.300, subd. (a) [motion to compel further responses lies “[o]n receipt of a response to interrogatories”], 2031.310, subd. (a) [motion to compel further responses lies “[o]n receipt of a response to a demand for inspection”], 2033.290, subd. (a) [motion to compel further responses lies “[o]n receipt of a response to requests for admissions”].) Further, “a trial court's determination of a motion to compel discovery is reviewed for abuse of discretion. However, when the facts asserted in support of and in opposition to the motion are in conflict, the trial court's factual findings will be upheld if they are supported by substantial evidence.” (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733 [cleaned up].)

Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits. If an interrogatory cannot be answered completely, it shall be answered to the extent possible. If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.

(Code Civ. Proc., § 2030.220, subds. (a)-(c).) Similarly, regarding requests for admission, the Discovery Act provides as follows:

(a) Each answer in a response to requests for admission shall be as complete and straightforward as the information reasonably available to the responding party permits.

(b) Each answer shall: (1) Admit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by the responding party. (2) Deny so much of the matter involved in the request as is untrue. (3) Specify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge.

(Code Civ. Proc., § 2033.220, subds. (a)-(b).) And “[i]f a responding party gives lack of information or knowledge as a reason for a failure to admit all or part of a request for admission, that party shall state in the answer that a reasonable inquiry concerning the matter in the particular request has been made, and that the information known or readily obtainable is insufficient to enable that party to admit the matter.” (Code Civ. Proc., § 2033.220, subd. (c).)

Based upon the points and authorities noted above, and finding that neither Wilshire nor Eiser have justified the objections to the subject discovery requests, the Court rules as follows: [5]

· RFA No. 101: GRANTED IN PART (“Admit that YOUR failure to remediate the dispersal of friable asbestos in the GOHARI UNIT, after 10/11/22” – Eiser should be able to admit or deny whether there has been a failure to remediate.)

· RFA No. 102: GRANTED IN PART (“Admit that YOUR failure to remediate the dispersal of friable asbestos in the GOHARI UNIT, after 10/11/22” – Eiser should be able to admit or deny whether there has been a failure to remediate.)

· RFA No. 103: GRANTED IN PART (“Admit that YOUR failure to remediate the dispersal of friable asbestos in the GOHARI UNIT, after 10/11/22” – Eiser should be able to admit or deny whether there has been a failure to remediate.)

· RFA No. 104: GRANTED IN PART (“Admit that YOUR failure to remediate the dispersal of friable asbestos in the GOHARI UNIT, after 10/11/22” – Eiser should be able to admit or deny whether there has been a failure to remediate.)

· RFA No. 105: GRANTED IN PART (“Admit that YOUR failure to remediate the dispersal of friable asbestos in the GOHARI UNIT, after 10/11/22” – Eiser should be able to admit or deny whether there has been a failure to remediate.)

· RFA No. 106: GRANTED IN PART (“Admit that YOUR failure to remediate the dispersal of friable asbestos in the GOHARI UNIT, after 10/11/22” – Eiser should be able to admit or deny whether there has been a failure to remediate.)

· RFA No. 109: GRANTED IN PART (“Admit that YOUR failure to remediate the dispersal of friable asbestos in the GOHARI UNIT, after 10/11/22” – Eiser should be able to admit or deny whether there has been a failure to remediate.)

· RFA No. 112: GRANTED IN PART (“Admit that YOUR failure to remediate the dispersal of friable asbestos in the GOHARI UNIT, after 10/11/22” – Eiser should be able to admit or deny whether there has been a failure to remediate.)

· RFA No. 113: GRANTED IN PART (“Admit that YOUR failure to remediate the dispersal of friable asbestos in the GOHARI UNIT, after 10/11/22” – Eiser should be able to admit or deny whether there has been a failure to remediate.)

· RFA No. 115: GRANTED IN PART (“Admit that YOUR failure to remediate the dispersal of friable asbestos in the GOHARI UNIT, after 10/11/22” – Eiser should be able to admit or deny whether there has been a failure to remediate.)

· RFA No. 116: GRANTED IN PART (“Admit that YOUR failure to remediate the dispersal of friable asbestos in the GOHARI UNIT, after 10/11/22” – Eiser should be able to admit or deny whether there has been a failure to remediate.)

· RFA No. 118: GRANTED IN PART (“Admit that YOUR failure to remediate the dispersal of friable asbestos in the GOHARI UNIT, after 10/11/22” – Eiser should be able to admit or deny whether there has been a failure to remediate.)

· RFA No. 100: GRANTED IN PART (Wilshire should be able to admit or deny whether friable asbestos was dispersed into the subject unit.)

· RFA No. 101: GRANTED IN PART (“Admit that YOUR failure to remediate the dispersal of friable asbestos in the GOHARI UNIT, after 10/11/22” – Wilshire should be able to admit or deny whether there has been a failure to remediate.)

· RFA No. 102: GRANTED IN PART (“Admit that YOUR failure to remediate the dispersal of friable asbestos in the GOHARI UNIT, after 10/11/22” – Wilshire should be able to admit or deny whether there has been a failure to remediate or not.)

· RFA No. 103: GRANTED IN PART (“Admit that YOUR failure to remediate the dispersal of friable asbestos in the GOHARI UNIT, after 10/11/22” – Wilshire should be able to admit or deny whether there has been a failure to remediate or not.)

· RFA No. 104: GRANTED IN PART (“Admit that YOUR failure to remediate the dispersal of friable asbestos in the GOHARI UNIT, after 10/11/22” – Wilshire should be able to admit or deny whether there has been a failure to remediate or not.)

· RFA No. 105: GRANTED IN PART (“Admit that YOUR failure to remediate the dispersal of friable asbestos in the GOHARI UNIT, after 10/11/22” – Wilshire should be able to admit or deny whether there has been a failure to remediate or not.)

· RFA No. 106: GRANTED IN PART (“Admit that YOUR failure to remediate the dispersal of friable asbestos in the GOHARI UNIT, after 10/11/22” – Wilshire should be able to admit or deny whether there has been a failure to remediate or not.)

· RFA No. 109: GRANTED IN PART (“Admit that YOUR failure to remediate the dispersal of friable asbestos in the GOHARI UNIT, after 10/11/22” – Wilshire should be able to admit or deny whether there has been a failure to remediate or not.)

· RFA No. 112: GRANTED IN PART (“Admit that YOUR failure to remediate the dispersal of friable asbestos in the GOHARI UNIT, after 10/11/22” – Wilshire should be able to admit or deny whether there has been a failure to remediate or not.)

· RFA No. 113: GRANTED IN PART (“Admit that YOUR failure to remediate the dispersal of friable asbestos in the GOHARI UNIT, after 10/11/22” – Wilshire should be able to admit or deny whether there has been a failure to remediate or not.)

· RFA No. 115: GRANTED IN PART (“Admit that YOUR failure to remediate the dispersal of friable asbestos in the GOHARI UNIT, after 10/11/22” – Wilshire should be able to admit or deny whether there has been a failure to remediate or not.)

· RFA No. 116: GRANTED IN PART (“Admit that YOUR failure to remediate the dispersal of friable asbestos in the GOHARI UNIT, after 10/11/22” – Wilshire should be able to admit or deny whether there has been a failure to remediate or not.)

· RFA No. 118: GRANTED IN PART (“Admit that YOUR failure to remediate the dispersal of friable asbestos in the GOHARI UNIT, after 10/11/22” – Wilshire should be able to admit or deny whether there has been a failure to remediate or not.)

· FROG 17.1: GRANTED TO THE EXTENT THAT EISER’S FURTHER RESPONSES TO THE ATTENDANT REQUESTS FOR ADMISSION WHICH WERE GRANTED OR GRANTED IN PART ARE NOT UNQUALIFIED ADMISSIONS (E.G., DENIALS OR PARTIAL DENIALS)

· FROG 17.1: GRANTED TO THE EXTENT THAT WILSHIRE’S FURTHER RESPONSES TO THE ATTENDANT REQUESTS FOR ADMISSION WHICH WERE GRANTED OR GRANTED IN PART ARE NOT UNQUALIFIED ADMISSIONS (E.G., DENIALS OR PARTIAL DENIALS)

A trial court may sanction a party for engaging in the misuse of discovery, which includes: failure to respond or submit to an authorized method of discovery; making an evasive response to discovery; making, without substantial justification, an unmeritorious objection to discovery; and making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery. (Code Civ. Proc., § 2023.010.)

In addition, Code of Civil Procedure section 2030.300, subdivision (d) provides: “The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (See also Code Civ. Proc., § 2033.290, subd. (d).)

Here, Plaintiff seeks monetary sanctions in connection with the motions based upon Defendants’ failure to provide complete, substantive responses to the subject discovery requests. The Court finds Defendants’ failure, in large part, to provide code compliant responses to be an abuse of the discovery process, warranting monetary sanctions.

Accordingly, the Court will impose monetary sanctions against Defendants and their counsel of record, Lagasse Branch Bell + Kinkead LLP, in the amount of $3640.00 which represents eight hours of attorney time to prepare the moving and reply papers, and attend the hearing, at $425.00 per hour, plus filing fees of $240.00 at $60.00 per motion.

Therefore, the Court grants Plaintiff’s motions to compel further responses per Code of Civil Procedure sections 2030.300 and 2033.290, and orders Defendants to serve further verified, code compliant responses to Form Interrogatories, Set 2 (Eiser and Wilshire), Requests for Admission, Set 2 (Eiser) and Requests for Admission, Set 3 (Wilshire), as noted above, within 30 days of notice of the Court’s orders.

Further, the Court orders Defendants and their counsel of record, Lagasse Branch Bell + Kinkead LLP, jointly and severally, to pay monetary sanctions in the amount of $3640.00 to Plaintiff, by and through counsel for Plaintiff, within 30 days of notice of the Court’s orders.

Plaintiff shall provide notice of the Court’s orders and file a proof of service regarding the same.

[1] Plaintiff failed to attach to Motion A as Exhibit 1 the Requests for Admission, Set Two. Instead, Plaintiff attached the Requests for Admission, Set One. As such, the Court finds Plaintiff’s Motion A is non-compliant with California Rules of Court, rule 3.1345(d) which provides: “A motion concerning interrogatories, inspection demands, or admission requests must identify the interrogatories, demands or requests by set and number.” Notwithstanding the procedural defect, the Court exercises its discretion to rule on the motion.

[2] Plaintiff failed to attach to Motion B as Exhibits 1, 2, 6, and 11, the Requests for Admission, Set 3, and Wilshire’s responses and amended responses. Instead, Plaintiff attached the Form Interrogatories, Set Two, propounded on Eiser, and Wilshire’s responses and amended responses to the Form Interrogatories, Set Two. As such, the Court finds Plaintiff’s Motion B is non-compliant with California Rules of Court, rule 3.1345(d) which provides: “A motion concerning interrogatories, inspection demands, or admission requests must identify the interrogatories, demands or requests by set and number.” Notwithstanding the procedural defects, the Court exercises its discretion to rule on the motion.

[3] Plaintiff failed to attach to Motion C as Exhibits 1 and 2 the Form Interrogatories, Set Two and Eiser’s responses. Instead, Plaintiff attached the Form Interrogatories, Set One and Eiser’s responses thereto. As such, the Court finds Plaintiff’s Motion C is non-compliant with California Rules of Court, rule 3.1345(d) which provides: “A motion concerning interrogatories, inspection demands, or admission requests must identify the interrogatories, demands or requests by set and number.” Notwithstanding the procedural defects, the Court exercises its discretion to rule on the motion.

[4] Plaintiff failed to attach to Motion D as Exhibits 1 and 2 the Form Interrogatories, Set Two and Wilshire’s responses. Instead, Plaintiff attached the Form Interrogatories, Set One and Wilshire’s responses thereto. As such, the Court finds Plaintiff’s Motion D is non-compliant with California Rules of Court, rule 3.1345(d) which provides: “A motion concerning interrogatories, inspection demands, or admission requests must identify the interrogatories, demands or requests by set and number.” Notwithstanding the procedural defects, the Court exercises its discretion to rule on the motion.

[5] For example, attorneys are the holders of the “work product privilege” or attorney work product doctrine. (See Curtis v. Superior Court (2021) 62 Cal.App.5th 453, 468 [“The work product privilege is held by the attorney, not the client”].) Defendants through their counsel have the initial burden to establish that the attorney work product doctrine applies. Yet, Defendants, in opposition to the motions, have failed to proffer sufficient, competent evidence to establish that the doctrine thwarts Plaintiff’s efforts to obtain responsive information.

DEPARTMENT	207
HEARING DATE	December 19, 2023
CASE NUMBER	22SMCV00855
MOTIONS	Motions to Compel Responses or Further Responses to: · Form Interrogatories, Set 2 · Requests for Admission, Set 2 · Requests for Admission, Set 3
MOVING PARTY	Plaintiff Amanda Gohari
OPPOSING PARTIES	Defendants Wilshire Regent Association, Inc. and Charles Eiser