Judge: Monica Bachner, Case: 20STCV17928, Date: 2023-02-07 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff at (213) 830-0771 before the set hearing time.  See, e.g., CRC Rule 324(b).   All parties are otherwise encouraged to appear by Court Call for all matters.

Case Number: 20STCV17928    Hearing Date: February 7, 2023    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Cross-Defendant CMS Construction, Inc.’s motion to compel Cross-Complainant Lewis Seiden to provide further responses to its Demands for Production (Set One) is granted.  Further responses are to be provided within 15 days.

Cross-Defendant CMS Construction, Inc.’s request for monetary sanctions is granted in the amount of $1,025.00.

Cross-Defendant KGM3’s motion to compel Cross-Complainant to provide further responses to its Special Interrogatories (Set One) is granted. Further responses are to be provided within 15 days.

Cross-Defendant KGM3’s request for monetary sanctions is granted in the amount of $2,625.00.

Cross-Defendant CMS Construction, Inc. (“CMS”) (“Cross-Defendant”) moves to compel Cross-Complainant Lewis Seiden (“Seiden”) (“Cross-Complainant”) to provide further responses to its Demands for Production (Set One).  (Notice of Motion CMS, pg. 2; C.C.P. §§2023.010, 2023.030, 2031.320(b).) CMS also requests an award of monetary sanctions against Cross-Complainant in the amount of $1,640.00.  (Notice of Motion CMS, pg. 2.)

Cross-Defendant KGM3 (“KGM3”) (“Cross-Defendant”) moves to compel Cross-Complainant to provide further responses to its Special Interrogatories (Set One), Nos. 1, 3-18.  (Notice of Motion KGM3, pgs. 1-2; C.C.P. §2030.300.) KGM3 also requests an award of monetary sanctions against Cross-Complainant in the amount of $4,077.50.  (Notice of Motion KGM3, pg. 2; C.C.P §§2023.010, 2023.030(a), 2030.300(d).)

Background

On November 10, 2021, Cross-Complainant filed the operative cross-complaint (“CC”) against Cross-Defendants including KGM3 and CMS. The CC asserts five causes of action against all defendants: (1) breach of written agreement; (2) interference with prospective economic advantage; (3) fraud; (4) breach of quiet enjoyment; and (5) personal injury.

1. CMS’ Motion to Compel Further Responses to RFP (Set One)

On March 25, 2022, CMS propounded on Cross-Complainant its Demands for Production (Set One) (“RFP”).  (Decl. of Marak ¶5, Exh. A.)  Cross-Complainant’s responses were due on April 28, 2022, however, CMS granted Cross-Complainant a two-week extension, followed by a second two-week extension with a new production date of May 26, 2022.  (Decl. of Marak ¶6, Exh. B.)  On May 26, 2022, Cross-Complainant served responses to CMS’ RFP but failed to produce the documents.  (Decl. of Marak ¶7, Exh. C.)  As of the date of this hearing, CMS has not received any code compliant document production from Cross-Complainant.  (Decl. of Marak ¶11.)

CMS filed the instant motion on June 7, 2022.  On January 25, 2023, Cross-Complainant filed his opposition in pro per.  On January 31, 2023, CMS filed its reply.

Meet and Confer

On May 27, 2022, after not receiving Cross-Complainant’s timely document production, CMS sent Cross-Complainant a meet and confer letter via email regarding the outstanding discovery. (Decl. of Marak ¶8, Exh. D.)  On May 31, 2022, CMS contacted Cross-Complainant via email regarding the status of the outstanding document production.  (Decl. of Marak ¶9, Exh. E.)  On June 1, 2022, after further meet and confer discussions were unsuccessful, CMS advised it would proceed with the instant motion.  (Decl. of Marak ¶10, Exh. F.)  The Court finds CMS met and conferred with Cross-Complainant and made a good faith effort to resolve this discovery dispute without court intervention.

RFP Nos. 2, 4-30, 32-34, 41-46, 49-50, and 52-55

The requests ask Cross-Complainant to produce any and all documents that support Cross-Complainant’s contention that all entities captioned as cross-defendants are individually and severally liable for all causes of action; KGM3, locked Cross-Complainant out of the subject property; KGM3 reallocated a portion of the common area of the subject property for its own use; KGM3 refused to maintain the parking areas, surfaces, and plumbing of the subject property; KGM3 installed additional locks on the subject property and denied Cross-Complainant a key; KGM3 physically threatened Cross-Complainant; KGM3 “unilaterally proclaimed new lease provisions”; KGM3 denied Cross-Complainant access to water to impair Cross-Complainant’s ability to clean vehicles; KGM3 denied Cross-Complainant access to extra-wide parking space; there was a “brass sewer cleanout plug” located directly in front of Cross-Complainant unsealed glass entry door; CMS and Cross-Defendant Craig Steven Den Besten replaced the brass sewer cleanout plug in front of Cross-Complainant’s office with a ventilated grate; Cross-Complainant lost business revenue because CMS replaced the brass sewer cleanout plug with a ventilated grate; Cross-Complainant suffered toxic exposure, to sewer gases, respiratory irritation, neurological deficits, a reduction in quality of life, and was poisoned as a result of CMS’ conduct; Cross-Complainant has a contractual agreement with CMS, KGM3, Cross-Defendant Craig Steven Den Besten, or Cross-Defendant Randi Den Besten; CMS, KGM3, Cross-Defendant Craig Steven Den Besten, or Cross-Defendant Randi Den Besten owed Cross-Complainant a contractual duty to preserve his quiet enjoyment of the premises; KGM3 contracted CMS “to provide responsible maintenance of the Premises”; Cross-Complainant is entitled to a presumption of negligence under Evidence Code §669; KGM3 negligently owned, maintained, managed, and operated the property; Cross-Complainant lost business because of noxious sewer gas at the subject property; the alleged sewer gas  was a poisonous combination of methane, hydrogen sulfide and other gases; KGM3 was aware of breaches by Bogota Corp. prior to closing escrow for the sale of the subject property; “KGM3’s Arrangement” resulted in Cross-Complainant being sued by Bogota Corp. on May 11, 2020; “KGM3 and Bogota shared mutual contempt for Seiden”; CMS and Craig Steven Den Besten “knew that gas would physically impair [Cross-Complainant’s] ability to engage in commerce” and did in fact impair Cross-Complainant’s ability; and Cross-Complainant’s automobile sales and leasing business lost revenue as the result of the conduct of Cross-Defendants.  (Decl. of Marak ¶5, Exh. A.)

In his initial response, Cross-Complainant responded that he would “comply with the Request by producing all non-privileged documents in his possession, custody, and control responsive to this Request that were not already produced.”  However, as of the date of filing this motion, Cross-Complainant has not produced any responsive documents.

Cross-Complainant argues in opposition that CMS’ RFP was defective because it did not comply with C.C.P. §2031.030(c)(4), which provides that all notices shall “[s]pecify any inspection, copying, testing, sampling, or related activity that is being demanded, as well as the manner in which that activity will be performed, and whether that activity will permanently alter or destroy the item involved.”  (Opposition CMS, pgs. 2-3.)  Cross-Complainant’s argument is unavailing because the RFP sets forth the time and place for copying and inspection in compliance with §2031.030(c)(4), and further allowed for Cross-Complainant to avoid production of the original documents by producing true and legible copies.  (Motion CMS, Exh. B at 10:8-15.)

Cross-Complainant is ordered to produce all responsive documents CMS’ RFP Nos. 2, 4-30, 32-34, 41-46, 49-50, and 52-55 within 15 days.

Sanctions

CMS requests sanctions in the amount of $1,640 pursuant to C.C.P. §§ 2023.010, 2023.030 and 2031.320(b).  Cross-Complainant cites § 2023.050(e) in opposition.  This statute does not apply as it only applies to sanctions requested pursuant to § 2023.050. CMS’ counsel declares his hourly rate is $205.00, and he spent approximately 4.0 hours preparing the instant motion and its supporting documents, and anticipates spending an additional 3.0 hours reviewing the opposition and preparing a reply in addition to 1.0 hour attending the hearing of this motion for a total of at least 8.0 hours.  (Decl. of Marak ¶12.)  The Court awards sanctions in the reduced amount of $1025.00.

1. KGM3’s Motion to Compel Further Responses to SROG (Set One)

On September 29, 2022, KGM3 propounded on Cross-Complainant its Special Interrogatories (Set One) (“SROG”), which included 18 interrogatories.  (Decl. of Kanter ¶2, Exh. A.)  Cross-Complainant’s initial deadline to respond was October 31, 2022.  (Decl. of Kanter ¶2.)  KGM3 granted Cross-Complainant a two-week extension, followed by a second two-week extension, with a new deadline of November 29, 2022.  (Decl. of Kanter ¶¶3, 4.)  On November 30, 2022, Cross-Complainant served responses to KGM3’s SROGs that are not substantive or code-compliant.  (Decl. of Kanter ¶5, Exh. D.)  As of the date of this hearing, KGM3 has not received a substantive, code-compliant response from Cross-Complainant.  (Decl. of Kanter ¶8.)

KGM3 filed the instant motion on December 27, 2022, to compel responses to SROG Nos. 1, 3-18.  On January 10, 2023, Cross-Complainant filed his opposition in pro per.  On January 17, 2023, KGM3 filed its reply.

Meet and Confer

On December 5, 2022, KGM3 sent Cross-Complainant a meet and confer letter regarding his deficient SROG responses and requested Cross-Complainant provide verifications and code-compliant supplemental responses.  (Decl. of Kanter ¶6, Exh. E.)  On December 12, 2022, Cross-Complainant requested an unspecified extension to respond to the meet and confer letter, and KGM3 granted Cross-Complainant a final extension to provide responses by December 16, 2022, and advised Cross-Complainant that if he failed to comply, it would file motions to compel and seek appropriate sanctions.  (Decl. of Kanter ¶7, Exh. F.)  The Court finds KGM3 met and conferred with Cross-Complainant and made a good faith effort to resolve this discovery dispute without court intervention.

SROG Nos. 1, 3-18

The requests ask Cross-Complainant to state all facts, identify all documents that evidence, and each person Cross-Complainant believes has knowledge of a reduction in sales (including repeat sales) and referrals to Cross-Complainant’s business from October 29, 2021 to present caused by Cross-Defendants; identify all prospective customers that Cross-Defendants interfered with that would have resulted in an economic benefit to Cross-Complainant and stall all facts that evidence Cross-Defendants knew of Cross-Complainant’s relationship with the prospective customers and facts that evidence conduct of interference; identify all prospective business relationships that Cross-Defendants interfered with that probably would have resulted in an economic benefit to Cross-Complainant, all facts that evidence Cross-Defendants knew of Cross-Complainant’s relationship with the prospective business, and all facts that evidence conduct of interference; all facts that evidence Cross-Complainant’s contention that Cross-Defendants should be liable for the damages alleged in the CC, to identify each person Cross-Complainant believes has such knowledge, and to identify all documents that evidence, refer, or related to such a claim.  (Motion KGM3 SS, pgs. 3-25.)

Cross-Complainant’s initial responses to the SROGs object on the basis the interrogatories (1) call for a legal conclusion, medical conclusion, or seeks expert witness information, (2) are equally available to the propounding party, (3) refers to filings in the instant case such as the Second Amended Cross-Complaint, Testimony of Lewis Seiden, and Discovery Responses to Bogota and CMS, (4) refer to undefined terms that renders the interrogatories unintelligible, and (5) are protected by privilege and work product.  (Motion KGM3 SS, pgs. 3-25.)

In opposition, Cross-Complainant argues an IDC is required before a motion to compel further responses will be heard, and KGM3 did not attend the IDC on September 20, 2022.  (Opposition, Exh. 1.)  However, this Court vacated its order requiring an IDC before filing motions to compel, stating “[t]he Court vacates its order requiring an informal discovery conference before filing motions to compel further discovery as to this case only. Moving party may file motions to compel further discovery without an informal discovery conference. The parties may schedule an informal discovery conference if both sides agree that it would be productive.”  (9/20/22 Minute Order.)

Cross-Complainant is compelled to provide further responses because Cross-Complainant’s objections are meritless, improperly vague, and refer to other documents when answering the interrogatory when the interrogatory does not “necessitate the preparation of or the making of a compilation, abstract, audit, or summary of or from the documents of the party to whom the interrogatory is directed.”  (C.C.P. §2030.230.) C.C.P. §2030.230 requires Cross-Complainant to specify the writings from which the answer may be derived or ascertained and the “specification shall be in sufficient detail to permit the propounding party to locate and to identify, as readily as the responding party can, the documents from which the answer may be ascertained.” Cross-Complainant’s vague reference to the SACC, his 193-page deposition transcript, and “Discovery Responses to Bogota and CMS” does not satisfy this requirement. Further, Cross-Complainant’s responses are not “complete and straightforward as the information reasonably available to the responding party permits” because they refer to several documents and other unspecified items.  (C.C.P. §2030.220(a).)

Cross-Complainant is ordered to respond to KGM3’s SROG Nos. 1, 3-18 within 15 days.

Sanctions

KGM3 requests sanctions pursuant to C.C.P. §§ 2023.010, 2023.030(a), and 2030.300(d) in the amount of $4,077.50. KGM3’s counsel declares his hourly rate is $525.00, and he spent approximately 2.7 hours drafting and reviewing the instant motion, separate statement, proposed order, and his declaration.  (Decl. of Kanter ¶9.)  KGM3’s counsel declares Chrystal Ferber spent at least 3.1 hours drafting the Separate Statement and his Declaration at an hourly rate of $350.00.  (Decl. of Kanter ¶9.)  KGM3’s counsel declares his office also incurred a $60 filing fee for this motion and anticipates at least 3 hours reviewing the opposition, drafting his reply, and appearing at the hearing on this motion.  (Decl. of Kanter ¶10.)  Considering Cross-Defendant filed its reply in response to Cross-Complainant’s opposition, Cross-Complainant’s request for sanctions is granted in the reduced amount of $2,625.00.

Dated:  February ____, 2023

Hon. Monica Bachner

Judge of the Superior Court