Judge Mitchell L. Beckloff, Case Number: 23STCP02247, Date: 2024-01-31 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 23STCP02247, Date: 2024-01-31 Tentative Ruling

Petitioner, Compton Property Group LLC, moves for orders compelling Respondent, The City of Compton, to provide “compliant responses” to Petitioner’s requests for production, set one (RFPs), request for admissions, set one (RFAs), and form interrogatories, set one (FIs). Petitioner also moves for monetary sanctions against City and its attorneys, Richard, Watson & Gershon and Ginetta L. Giovinco in the combined amount of $13,005.

On June 27, 2023, Petitioner filed its original petition for writ of mandate and complaint. The petition alleged the City refused to accept Petitioner’s Builder’s Remedy application. Based on the factual allegations, Petitioner sought a writ of mandate (and declaratory relief) compelling the City to accept its Builder’s Remedy application. Petitioner also alleged a cause of action under 42 U.S.C. section 1983. After the City filed a demurrer to the petition, Petitioner filed the operative first amended petition and complaint (FAP).

The first cause of action in the FAP alleges on June 22, 2023, Petitioner submitted a Builder’s Remedy application for 1601 W. El Segundo Boulevard (the Property) to the City by email. That same day, Petitioner’s agency went to Compton City Hall to pay the application fee. The City allegedly refused to process the application on the grounds the City does not accept applications electronically. (FAP ¶¶ 37-41.) On June 26, 2023, Plaintiff returned to City Hall and attempted to submit a paper copy of the Builder’s Remedy application, along with the required fees. The City allegedly refused to accept the application. (FAP ¶¶ 42-48.) Plaintiff alleges the City’s refusal to accept and process its Builder’s Remedy application violated the Housing Accountability Act (HAA), Government Code section 65589.5, which authorizes the Builder’s Remedy, and also the Housing Crisis Act of 2019 (HCA). (Id. ¶¶ 24-31, 51-52, 68.)

In the FAP, Petitioner also alleges the City accepted and processed the application subsequent to Petitioner initiating this proceeding. Petitioner contends in the FAP certain legal issues have not been resolved regarding City’s alleged failure to accept and process the application:

49. On or about July 19, 2023, the City agreed to accept and process the application due to this lawsuit.

50. However, the City now takes the position that it had always accepted and processed the application when submitted and that Petitioner simply “misunderstood” the situation.

51. Therefore, there needs to be a determination as to whether the City engaged in violations of the HAA, HCA and [Permit Streamlining Act (PSA)] by refusing to accept and process the application.

52. There also needs to be a determination as to what damages accrued due to the City’s initial refusal to comply with the HAA, HCA and PSA. (FAP ¶¶ 49-52.)

In support of the motions to compel, Petitioner submits a letter from the City’s Community Development Department, dated July 18, 2023, which states in pertinent part:

The City agrees to accept the Preliminary Application submittals as of June 22, 2023. . . . Additionally, as a point of clarification, we did not refuse to accept the PA when you visited the Community Development Department and attempted to pay the PA fee. Our Planning Technician correctly noted that the City has not adopted a PA fee and cannot accept any funds proffered as such. . . . We apologize for any confusion or misunderstanding. . . . (Eilenberg Decl. ¶¶ 15-17, Exh. H.)

For a motion to compel further responses to discovery, “the propounding party must demonstrate that the responses were incomplete, inadequate or evasive, or that the responding party asserted objections that are either without merit or too general.” (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403; see Code Civ. Proc., § 2031.310, subd. (a).) The moving party must also submit a meet and confer declaration that complies with Code of Civil Procedure section 2016.040. (Code Civ. Proc., §§ 2030.300, subd. (b), 2031.310, subd. (b).)

“A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc., § 2016.040; Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1293.)

Here, Petitioner’s counsel “had multiple meet and confers with Defendant’s counsel regarding this discovery” before the motions were filed. (Jacobs Decl. ¶¶ 4-5.) The declaration of the City’s counsel and attached exhibits similarly show the parties met and conferred about certain issues raised by the discovery motions. (Giovinco Decl. ¶¶ 4-17, Exh. 2.) The meet and confer efforts were not terribly exacting. That said, the parties were largely at impasse on the discovery issue—Petitioner indicated it intended to obtain discovery to bring an attorney’s fees motion, and the City argued the discovery sought was inappropriate. The court finds, except with respect to certain issues discussed below, Petitioner satisfied the meet and confer requirement.

The City argues the motions are procedurally defective because Petitioner “failed to include in its purported notice a citation to any authority or statutory basis for its motion,” and because Petitioner filed “motions to compel,” even though the City already provided initial responses. (Opposition 8:11-12, 8:5-6.) Relatedly, the City contends, if construed as motions to compel further, the motions are procedurally defective because the separate statements “referenc[e] multiple exhibits and fail[] to summarize them.” (Opposition 9:8-9.) The City’s arguments are unpersuasive.

The motions are reasonably interpreted to request an order to compel further responses to discovery. In each notice, Petitioner states it “will request the Court enter an order compelling compliant responses” to the discovery, which implies the City provided initial responses. (See Notices 2:2-3.) That is, the motion does not simply seek to compel responses—it seeks “compliant responses.” Petitioner’s position is clear when it explains in each motion “[t]he basis for this motion is [] Plaintiff propounded written discovery on Defendant and Defendant refused to comply, providing objection only responses to the discovery.” (See Notices 2:6-7 [emphasis added].) Although Petitioner should have cited the statutes governing motions to compel further responses (see e.g., Code Civ. Proc., § 2031.310), there can be no prejudice here—the City understood Petitioner seeks further responses to discovery propounded, and both parties filed separate statements.

Petitioner’s separate statements comply with California Rules of Court (CRC), Rule 3.1345, subdivision (c). The separate statements sufficiently summarize the “pleadings, other documents in the file, or other items of discovery [that] are relevant to the motion.” (CRC, Rule 3.1345, subd. (c)(6).) The City does not argue that the separate statements are deficient in any other way or misleading.

The City contends all of Petitioner’s discovery is not relevant to the subject matter of this legal action because Petitioner’s counsel admitted the “City has now retroactively accepted the application” (Opposition 6:17-18) and “the only issue that remains is attorney’s fees for

having to bring the litigation to force compliance by the City.” (See Opposition 6:20-21; see Giovinco Decl. Exh. 2 at p. 16.) Essentially, the City asserts the Civil Discovery Act does not authorize discovery solely to support a motion for attorney’s fees in a legal proceeding. (See Opposition 7:2-4. [“Petitioner presents no authority to support its contention that discovery is appropriate . . . to marshal purported evidence for a fees argument.”])

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. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. (Code Civ. Proc., § 2017.010 [emphasis added].)

An “action” includes “a civil action and a special proceeding of a civil nature.” (Code Civ. Proc., § 2016.020, subd. (a).) Writ proceedings are special proceedings of a civil nature. (See Code Civ. Proc., § 1063, et seq.)

Thus, the scope of discovery is broad. Further, contrary the City’s argument, Code of Civil Procedure section 2017.010 explicitly authorizes discovery that is relevant “to the determination of any motion made in that action.” Petitioner has represented it intends to bring a motion for attorney’s fees pursuant to Code of Civil Procedure section 1021.5 and the HAA. Petitioner has also represented it is pursuing discovery to obtain evidence to support its motion for attorney’s fees, specifically to address City’s contention that it did not refuse to accept the application in June 2023. The court finds Petitioner is specifically authorized by Code of Civil Procedure section 2017.010 to pursue discovery relevant to its attorney’s fee motion. The City cites no authority to the contrary.[1]

There has been no judicial determination the first cause of action, or any other part of the FAP, is moot. The court does not decide questions of mootness on a motion to compel further responses to discovery. Moreover, while Petitioner’s counsel has indicated in meet and confer correspondence the request for writ relief is moot, Petitioner’s counsel specifically stated Petitioner would pursue attorney’s fees and needed discovery for an attorney’s fees motion. (Giovinco Decl. Exh. 2 at 16.)

The City bases its relevance objection primarily on the alleged mootness of this legal action, not the specific discovery requests made. The broad relevance objection is overruled because it does not address the attorney’s fees issue.

Having overruled the general objection based on mootness, the court addresses the specific discovery sought by Petitioner and the City’s specific objections to the discovery.

RFPs 1 through 3 seek all City emails “by,” “to,” or “between” City employees regarding the Property from January 1, 2023 to the present. The City objected to these RFPs on grounds of relevance, undue burden and harassment, the information is equally available to Petitioner, attorney-client privilege, and attorney work product.

Petitioner has shown, as a general matter, production of the City emails regarding the Property is reasonably calculated to lead to the discovery of admissible evidence regarding its claim for attorney’s fees pursuant to Code of Civil Procedure section 1021.5.[2]

Petitioner’s first cause of action sought a writ directing the City to “accept and process Petitioner’s Builder’s Remedy Application that was originally submitted electronically on June 22, 2023, and brought for an in-person submission on June 26, 2023.” (FAP ¶ 60.) Petitioner submits evidence the City did not accept the application until July 19, 2023 after Petitioner initiated this litigation. (Eilenberg Decl. ¶¶ 15-16.) In a letter dated July 18, 2023 (emailed on July 19, 2023), the City asserted it did not refuse to accept and process the application and there was simply a “misunderstanding.” (Id. at ¶ 17, Exh. H.)[3]

If Petitioner can demonstrate this litigation caused the City to accept and/or process the application, such evidence, along with other evidence, may support an award of attorney’s fees pursuant to Code of Civil Procedure 1021.5 and a “catalyst” theory. (See California Public Records Research, Inc. v. County of Yolo (2016) 4 Cal.App.5th 150, 191 [CPPR] [catalyst theory elements].)[4] A production of the City emails regarding the Property, for a pertinent time period, could lead to the discovery of admissible evidence to support Petitioner’s contention its lawsuit was a “material factor” causing the City to accept and/or process its Builder’s Remedy application.

The City asserts the RFPs are overbroad because they do “not mention ‘development’ of the property, nor is ‘development’ relevant to the litigation which is about acceptance of a Preliminary Application, not the underlying project.” (Resp. Sep. St. re: RFPs 6.) Since Petitioner submitted its application for a Builder’s Remedy in June 2023, it appears likely any City emails after that date would concern Petitioner’s application and development of the Property. The City does not identify any other reason the City’s emails during this period would discuss the Property.

While not argued by the City, Petitioner’s RFPs are temporally overbroad. The subject of the emails sought only concern the Property. As Petitioner did not submit its Builder’s Remedy application until June 22, 2023, the only relevant City email communications would have occurred after Petitioner submitted (or attempted to submit) the application. Presumably, if this litigation caused the City to accept and/or process the application, the decision would be reflected in emails between June 22, the date of submission, and July 19, 2023, when the City emailed Petitioner to advise it was accepting the application. Since the relevant time period of June 22 and July 19, 2023, is shown by the FAP and Petitioner’s declarations, the court finds limiting the scope of the RFPs to communications between June 22, 2023 and some reasonable period after July 19, 2023 (i.e., 30 days).

To the extent, Petitioner contends email communications before June 22, 2023 and more than 30 days after July 19, 2023 are relevant, Petitioner should have raised the issue during the meet and confer with evidence and legal argument. (See Code Civ. Proc., § 2016.040; see also Clement v. Alegre, supra, 177 Cal.App.4th at 1293 [meet and confer is to resolve each issue]. Jacobs Decl. ¶ 4; Giovinco Decl. and Exh. 1-2.)

The City does not support its remaining objections. (See Resp. Sep. St. re: RFPs 2-6.) Objecting parties must file evidence detailing the amount of work involved to support objections based upon burden and oppression. (West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 417.) The City submits no evidence of undue burden or harassment. The City does not show the emails are equally available to Petitioner. The City develops no argument that any of the emails are subject to the attorney-client privilege or attorney work product doctrine. In any event, the City may produce a privilege log for any emails withheld pursuant to those privileges. (See generally Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 292.) Finally, for the reasons discussed, the City’s general objection based on mootness is not persuasive.

Based on the foregoing, the motion to compel further responses to RFPs 1 through 3 is granted with the temporal limitation discussed. To the extent the City contends any responsive documents constitute attorney-client privileged material or attorney-work product, Petitioner shall submit a produce a privilege log.

RFPs 4 Through 5: Security Videos from Compton City Hall from June 22 and 26, 2023

RFPs 4 and 5 seek all security videos for Compton City Hall from June 22 and 26, 2023. The City claims the RFPs are irrelevant, intended solely to cause unwarranted burden and harassment, overbroad, and violate a right to privacy. The court agrees with the City’s relevance objection.

First, to the extent Petitioner seeks video footage for the entire days of June 22 and 26, the request is overbroad. Petitioner knows what time its agent was at City Hall on those dates. To the extent there is a dispute about whether Petitioner’s agent appeared at City Hall, Petitioner would need video only of the time its agent was at City Hall. Any other footage would be irrelevant and unlikely to lead to the discovery of relevant evidence.

Petitioner admittedly interacted with City employees at City Hall only for short periods those days. (FAP ¶¶ 37-48.) While perhaps Petitioner could have made a case for excerpts of the security videos showing Petitioner’s representative interacting with City employees, Petitioner does not show it raised that issue in meet and confer or offered to narrow the scope of these RFPs. (See Jacobs Decl. ¶ 4; Giovinco Decl. and Exh. 1-2.) Contrary to Petitioner’s assertion, Petitioner had the burden to raise that issue in meet and confer. (See Pet. Sep. St. re: RFPs 8-9; see also Clement v. Alegre, supra, 177 Cal.App.4th at 1293. [“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.’ ” (Emphasis added.)])

The court also cannot determine the FAP and motion papers how the RFPs might be narrowed.

RFAs 1 Through 14: Requests for Admissions re: Petitioner’s Builders’ Remedy Preliminary Application

RFAs 1 through 4 ask the City to admit Petitioner submitted its Builder’s Remedy application for the Property on June 22, 2023; the City refused to process or accept the application on that date; and the City refused to accept payment that date. RFAs 5 through 8 seek similar admissions regarding Petitioner’s alleged submission of the application and payment on June 26, 2023. RFAs 9 through 14 ask the City to admit the City had no basis to refuse to accept or process the Builder’s Remedy application or to refuse payment on June 22 or 26, 2023.

The City objected to the RFAs on the grounds of relevance; unwarranted burden and harassment; vague and ambiguous as to the terms “process” or “basis;” and/or equally available to Petitioner.

For the reasons discussed earlier, City’s general objection based on mootness is unpersuasive.

The City does not support its remaining objections. (See generally Resp. Sep. St. re: RFAs.) RFAs “differ fundamentally from other forms of discovery. Rather than seeking to uncover information, they seek to eliminate the need for proof.” (Murillo v. Superior Court (2006) 143 Cal.App.4th 730, 735.) Given this purpose, the City fails to show the responses to RFAs are “equally available” to Petitioner; only the City can answer the RFAs and thereby eliminate the need for proof by Petitioner. Relatedly, since the RFAs relate to the subject matter of the proceeding and Petitioner’s claim for attorney’s fees pursuant to Code of Civil Procedure section 1021.5, the City’s relevance objection is not persuasive.

The court also is not persuaded the terms “process” or “basis,” as used in the RFAs, are so ambiguous that City cannot in good faith provide an intelligent response. (See Cembrook v. Superior Court (1961) 56 Cal.2d 423, 429-430 [objection RFA is “ambiguous” is improper unless RFA is so ambiguous that a good faith and intelligent response cannot be given]; see also Code Civ. Proc., § 2033.220 [scope of responses to RFAs].)

Finally, the City submits no evidence of undue burden or expense in responding to the RFAs. (West Pico Furniture Co. v. Superior Court, supra, 56 Cal.2d 407, 417.)

FI No. 1.1 seeks the “name, ADDRESS, telephone number, and relationship to you of each PERSON who prepared or assisted in the preparation of the responses to these interrogatories.” FI No. 17.1 asks the City to provide information about each response to a RFA that is not an unqualified admission. The City objected to the RFAs on the grounds of relevance and unwarranted burden and harassment.

The FIs are closely related to the RFAs and the court’s analysis is the same as set forth for the RFAs. The motion to compel further responses to FIs is granted.

For a discovery motion, “[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.” (Code Civ. Proc., § 2023.040.)

Here, in the notices of motion, Petitioner seeks monetary sanctions against the City and its attorneys, Richard, Watson & Gershon and Ginetta L. Giovinco in the amounts of $5,095 for the RFP motion; $5,920 for the RFA motion; and $2,620 for the FI motion. Petitioner submitted points and authorities and a declaration setting forth facts supporting the amount of the monetary sanction sought. Although Petitioner did not specify the statutes authorizing sanctions in the notice, Petitioner did discuss such statutes in the moving briefs. (See RFP Mot. at 10.) The City responded to the request for sanctions, including by discussion of the relevant statutes, in the opposition briefs. The court finds the City and its attorneys received adequate notice of the requests for sanctions.

Code of Civil Procedure section 2023.030 authorizes the court to “impose a monetary

sanction ordering that one engaging in the misuse of the discovery process . . . pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.”

(Code Civ. Proc., § 2023.030, subd. (a).) “Misuses of the discovery process include . . . [f]ailing to respond . . . to an authorized method of discovery[,]. . . [m]aking, without substantial justification, an unmeritorious objection [,]. . . [m]aking an evasive response [,] . . . [or] [o]pposing, unsuccessfully and without substantial justification, a motion to compel.” (Code Civ. Proc., § 2023.010, subds. (d), (e), (f), (h).)

A monetary sanction “shall” also be imposed against the losing party on a motion to compel further responses to discovery unless the court finds “substantial justification” for that party’s position or other circumstances making the sanction “unjust.” (See Code Civ. Proc., § 2033.290, subd. (d).) Substantial justification has been interpreted to mean “justification [that] is clearly reasonable because it is well-grounded in both law and fact.” (Doe v. United States Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1434.) “Thus, [t]o avoid sanctions, the [responding party] must show . . . [there were] reasonable grounds to believe an objection was valid or that the answer given was adequate.” (City of Los Angeles v. Superior Court (2017) 9 Cal.App.5th 272, 291.)

As discussed, the City primarily argued all of Petitioner’s discovery is not relevant to the subject matter of this legal proceeding because Petitioner’s counsel admitted the “City has now retroactively accepted the application” and “the only issue that remains is attorney’s fees for having to bring the litigation to force compliance by the City.” (See Oppo. Sep. St. re: RFPs 3-5; see Giovinco Decl. Exh. 2 at p. 16.) Essentially, the City contends the Civil Discovery Act does not authorize discovery solely to support a motion for attorney’s fees in a legal action. (See Opposition 7:2-4. [“Petitioner presents no authority to support its contention that discovery is appropriate . . . to marshal purported evidence for a fees argument.”]) The City’s position conflicts with the clear language of Code of Civil Procedure section 2017.010 authorizing discovery for motions within a proceeding. Moreover, given the underlying facts, Petitioner has established good cause for the discovery.

The court finds the City lacked substantial justification to object to the discovery on mootness grounds or to oppose the motions to compel for the same reason. The City has cited no authority supporting its position Petitioner cannot pursue discovery to support its motion for attorney’s fees. Because Petitioner informed the City it sought the discovery to support a motion for fees pursuant to Code of Civil Procedure section 1021.5, the City’s objection based on purported mootness is not well-grounded in both law and fact.

For the most part, the City did not support its remaining objections to the discovery. Mootness was the primary argument developed in opposition. Nonetheless, Petitioner did not prevail in full on the RFP motion, which supports a reduction in the amount of sanctions for that motion. Further, given the overlapping issues and relative straightforward nature of the RFA and FI motions, the court finds that Petitioner’s requests for $5,920 and $2,620 in sanctions for those motions are excessive. (See Jacobs Decl. ¶¶ 7-12.) Based on the court’s familiarity with this case, the legal work reasonably required on the motions, and the amount of fees awarded for similar matters in the Los Angeles legal community, the court exercises its discretion and awards Petitioner sanctions as follows: $2,750 ($550 x 5 hours) for the RFP motion; $1,100 for the RFA motion; and $550 for the FI motion for a total monetary sanction of $4,400 for the three motions. The sanction award is also appropriate against the City’s attorneys. (See Kwan Software Eng’g, Inc. v. Hennings (2020) 58 Cal.App.5th 57, 81, 85.)

The motion to compel further responses to RFPs is granted as to RFPs 1 through 3 only with the time restrictions specified. If the City contends any of the emails are subject to the attorney-client privilege or attorney work product doctrine, it shall produce a privilege log for those emails.

The City and Richard, Watson & Gershon shall jointly and severally pay monetary sanctions to Petitioner in the total amount of $4,400 for all three motions, as specified above within 30 days.

[1] The court notes the Court of Appeal has indicated discovery may be permitted, depending on the circumstances, to assist in bringing a motion for attorney’s fees pursuant to Code of Civil Procedure section 1021.5. (See Save Open Space Santa Monica Mountains v. Superior Court (2000) 84 Cal.App.4th 235, 246-250; Citizens Against Rent Control v. City of Berkeley (1986) 181 Cal.App.3d 213, 235-236.)

[2] A fee award under the HAA may also require an analysis of whether the agency acted in good faith. (See Reply 4 [citing Gov. Code § 65589.5, subd. (k)].) Further, the discovery might also be relevant to Petitioner’s second cause of action for declaratory relief or third cause of action pursuant to 42 U.S.C. section 1983. However, since Petitioner has shown, as a general matter, that discovery is relevant to a fee motion under Code of Civil Procedure section 1021.5, the court need not determine the relevance of the discovery to a motion for fees under the HAA or to Petitioner’s second or third causes of action.

[3] While the City’s letter is dated July 18, 2023, Eilenberg submits evidence the City did not email the letter to Petitioner until July 19, 2023. (Eilenberg Decl. ¶¶ 15-17, Exh. F-H.) The court conducted a hearing on Petitioner’s ex parte application on July 19, 2023 wherein the City made an appearance.

[4] “The ‘catalyst theory’ permits an award of attorney fees even when the litigation does not result in a judicial resolution if the defendant changes its behavior substantially because of, and in the manner sought by, the litigation.” (CPRR, supra, 4 Cal.App.5th at 191.) “[W]hen a

plaintiff seeks fees under a catalyst theory, courts generally must conduct the following inquiry: (1) identify the plaintiff's primary litigation objectives, (2) compare the results obtained to determine whether the plaintiff in fact achieved those objectives, and, if so, (3) decide whether the lawsuit was a material factor or contributed in a significant way to those results. . . .” (Department of Water Resources Environmental Impact Cases (2022) 79 Cal.App.5th 556, 572-573.) “[T]he question of whether plaintiffs’ action is causally linked to the achievement of the relief obtained is one of fact.” (Wallace v. Consumers Coop. of Berkeley, Inc. (1985) 170 Cal.App.3d 836, 845.)