Judge Monica Bachner, Case 21STCV36045 2022-12-06 Tentative Ruling

Defendant Henry Garcia’s motion to compel Plaintiff Carla D. Barboza to provide further responses to Special Interrogatories (Set One) is granted in part. Further responses are to be provided within 15 days.

Defendant Henry Garcia’s motion to compel Plaintiff Carla D. Barboza to provide further responses to Construction Interrogatories (Set One) is granted in part. Further responses are to be provided within 15 days.

Defendant Henry Garcia’s motion to compel Plaintiff Carla D. Barboza to permit inspection of certain real property is granted in part. Inspection is to take place within 15 days.

Defendant Henry Garcia (“Garcia”) (“Defendant”) moves to compel Plaintiff Carla D. Barboza (“Barboza”) (“Plaintiff”) to provide further responses to Special Interrogatories (Set One) Nos. 1, 3, and 93. Defendant also requests an award of monetary sanctions against Plaintiff in the amount of $4,676.65. (Notice of Motion Special Interrogatories pg. 2; C.C.P. §§2030.300, 2023.010(f), (h), (i), 2032.020, 2023.030.)

Defendant moves to compel Plaintiff to provide further responses to Construction Interrogatories (Set One) Nos. 305.8, 305.9, 305.11, 305.12, 305.13, 309.1, 309.2, 311.1, 311.3 311.4, 312.1, 313.2, 314.1, and 314.2. Defendant also requests an award of monetary sanctions against Plaintiff in the amount of $7,016.65. (Notice of Motion Construction Interrogatories, pg. 2; C.C.P §§2030.300, 2023.10(f), (h), (i), 2032.020, 2023.030.)

Defendant moves to compel Plaintiff to permit inspection of certain real property located at 2526 Lake View Avenue, Los Angeles, California 90039, APN 5438-008-021 (“Property”). Defendant also requests an award of monetary sanctions against Plaintiff in the amount of $4,546.65. (Notice of Motion Property Inspection, pg. 2; C.C.P §§2031.310, 2023.010(e), (h).)

Plaintiff’s 11/21/22 requests for judicial notice are granted as to Nos. 1, 2, 3, and 4, and denied as to No. 5, as the Court does not need to take notice of filings in the instant case.

On September 30, 2021, Plaintiff filed her initial complaint in the instant action against Garcia, Susan Devall (“Devall”), H&E Builders Services, Inc. (“H&E”), and Navigators Insurance Company (“Navigators”) (collectively, “Defendants”). On May 9, 2022, Plaintiff filed her first amended complaint (“FAC”) against Defendants alleging ten causes of action: (1) conversion, (2) breach of contract, (3) negligence, (4) negligent construction, (5) fraud under Civil Code §1710(1), (6) fraud under Civil Code §1710(3), (7) violation of Business and Professional Code §7160, (8) unfair business practices under Business and Professional Code §17200 et seq., (9) claim on contractor’s license bond, and (1) Business and Professional Code §7028. (See FAC.) Plaintiff alleges she is the owner of the Property who hired Defendant Garcia as a contractor, which resulted in the alleged negligent construction of a swimming pool at the Property. (FAC ¶¶1, 29, 36.)

On January 28, 2022, Defendant propounded his first set of written discovery on Plaintiff, consisting Special Interrogatories (Set One) (“SROGs”), Construction Interrogatories (Set One) (“CROGs”), Form Interrogatories (Set One) (“FROGs”), and Requests for Production (Set One) (“RFPs”). (Decls. of Weerasuriya SROGs & CROGs ¶9.) Because Defendant Garcia’s SROGs consisted of more than 35 interrogatories, Defendant Garcia served a Declaration of Necessity with the SROGs. (Decls. of Weerasuriya SROGs & CROGs ¶9.) On April 18, 2022, Plaintiff served responses to discovery. (Decls. of Weerasuriya SROGs & CROGs ¶10.) On June 15, 202, the parties attended an IDC with the Court, where Plaintiff agreed to respond to Defendant’s SROGs if Defendant re-propounded them by stating definitions for specifically defined terms in every interrogatory where they appeared. (Decls. of Weerasuriya SROGs & CROGs ¶17.) Defendant attempted to further meet and confer with Plaintiff. (Decl. of Weerasuriya SROGs & CROGs, Exh. E at pgs. 12, 15, 22, 30, 34-38.)

Defendant attempted to set an inspection of the Property since March 30, 2022, and Plaintiff did not respond to Defendant’s requests. (Decl. of Weerasuriya Property ¶¶9-13, Exh. D.) On May 13, 2022, Defendant served on Plaintiff a Demand for Property Inspection. (Decl. of Weerasuriya Property ¶13, Exh. E.) On May 24, 2022, Plaintiff objected to Defendant’s Demand and sent Defendant a letter to meet and confer. (Decl. of Weerasuriya Property ¶14.) During the June 15, 2022, IDC, parties were unable to resolve their issues related to the Demand and property inspection. (Decl. of Weerasuriya Property ¶15.) Defendant filed the instant motions to compel on August 15, 2022. On November 21, 2022, Plaintiff filed her oppositions. Defendant filed his replies on November 29, 2022.[1]

Interrogatory No. 1 asks Plaintiff: “Describe in full detail the CONSTRUCTION performed by Livan Cartaya at the PROPERTY before the PROJECT.”

Interrogatory No. 3 asks Plaintiff: “How much money have YOU paid Livan Cartaya for CONSTRUCTION RELATING TO the PROPERTY—aside from the PROJECT?”

In her initial response, Plaintiff objected to SROG No. 1 as: (1) not a separate and complete interrogatory in compliance with Code Civ. Pro. Sections 2030.060(c)-(e) and also 2033.710; (2) vague and ambiguous as to the terms “full detail, “CONSTRUCTION,” “PROPERTY,” and “PROJECT” which renders the interrogatory overbroad, compound and unintelligible, ambiguous, harassing, vexatious, and unduly burdensome; (3) overbroad and unlimited in scope so as to be ambiguous, harassing, vexatious, and unduly burdensome; and (4) seeking information that is not relevant to the subject matter involved in the pending action or does not appear to be reasonably calculated to lead to the discovery of admissible evidence. Plaintiff objected to SROG No. 3 on the same basis as No. 1, as well as on the basis that No. 3 seeks information protected by privacy rights of responding party or of third party.

In his separate statement, Defendant maintains information regarding prior construction by Plaintiff’s former contractor, Livan Cartaya (“Former Contractor”), is relevant to the Parties’ claims and defenses, and the subject matter of this case because (1) Plaintiff alleged that before meeting Mr. Garcia, she used another contractor for years and Plaintiff alleged that the Former Contractor’s work was satisfactory to her and that he had to fix mistakes by Defendant Garcia and H&E relating to the pool; (2) in the Answer, Defendant Garcia alleged that Plaintiff demanded that H&E construct the swimming pool without permits; (3) the Cross-Complaint alleged that H&E advised Plaintiff that permits were necessary for construction, but that Plaintiff told Defendant Garcia that she had construction done for years at her Property without permits; (4) this Court, in ruling on Plaintiff’s Motion to Compel Mr. Garcia’s deposition, granted Plaintiff’s request to compel Defendant to produce documents responsive to requests related to other construction, subject to a protective order. (SROGs SS, pgs. 2-3; Decl. of Weerasuriya SROGs, Exh. A ¶¶15, 16, 47-60; Exh. B ¶¶6, 7; Exh. C ¶15; Exh. F at pg. 7.)

Plaintiff is ordered to provide responsive supplemental responses to SROGs Nos. 1 and 3 because Plaintiff’s prior construction history is relevant to an allegation in her FAC, Defendants’ affirmative defenses, and claims on the cross-complaint.

This interrogatory asks Plaintiff: “Describe in full detail the work that would have cost you $34,000 to have done, in ‘redoing much of’ GARCIA’S work.”

In her initial response, Plaintiff objected to these requests as: (1) not a separate and complete interrogatory in compliance with Code Civ. Pro. Sections 2030.060(c)-(e) and also 2033.710; (2) vague and ambiguous as to the terms, “full detail,” “redoing much of,” and “GARCIA’S” which renders the interrogatory overbroad, compound and unintelligible, ambiguous, harassing, vexatious, and unduly burdensome; (3) overbroad and unlimited in scope so as to be ambiguous, harassing, vexatious, and unduly burdensome; and (4) seeking information that is not relevant to the subject matter involved in the pending action or does not appear to be reasonably calculated to lead to the discovery of admissible evidence.

In his separate statement, Defendant maintains Plaintiff alleges it would have cost her $34,000 to “fix” Defendant’s alleged mistakes, and is therefore relevant to the subject matter of the case and parties’ claims and defenses. (SROGS SS, pg. 5.)

Defendant’s request to compel further response to SROG No. 93 is denied. Plaintiff does not allege in her FAC that it would cost $34,000 to “fix” Defendant Garcia’s alleged mistakes. (See FAC ¶58.) Defendant’s request seeks information not relevant to the subject matter and is not reasonably calculated to lead to the discovery of admissible evidence.

This interrogatory asks Plaintiff: “Have you made any improvements to any subject property in which you have any ownership interest? If so, state: (a) each improvement you made, including without limitation painting, landscaping, pool or spa installation, light fixture changes, cabinet changes, floor covering replacement, or room additions; (b) the date each such improvement was made; and (c) the name, address, and telephone number of the person who performed the improvement.”

In her initial response, Plaintiff objected to the request as: “vague and ambiguous as phrased in the context of this litigation. This CROG is not relevant to the subject matter of this case and not likely to lead to the discovery of admissible evidence. RESPONDING PARTY objects to this request because it is overbroad and unlimited in scope so as to be ambiguous, harassing, vexatious, and unduly burdensome.”

In his separate statement, Defendant maintains the CROG is relevant to the parties’ claims and defenses on the same bases asserted for SROGs Nos. 1 and 3. (CROGs SS, pgs. 2-3; Decl. of Weerasuriya, Exh. A ¶¶15, 16, 47-60; Exh. B ¶¶6, 7; Exh. C ¶15; Exh. F at pg. 7.)

Plaintiff is ordered to provide responsive supplemental responses to CROG No. 305.8 to the extent they relate to improvements on the swimming pool because Plaintiff’s prior construction history is relevant to an allegation in her FAC, Defendants’ affirmative defenses, and claims on the cross-complaint. Improvements to the property unrelated to the swimming pool are not relevant to the subject matter and not reasonably calculated to lead to the discovery of admissible evidence.

This interrogatory asks Plaintiff: “Have you performed maintenance – including without limitation roof repair, painting, and caulking – to any subject property in which you have an ownership interest? If so, state: (a) the nature of each act of maintenance; (b) the date each act of maintenance was performed; and (c) the name, address, and telephone number of the person who performed each act of maintenance.”

In her initial responses, Plaintiff objected to these requests as: “vague and ambiguous as phrased in the context of this litigation. This CROG is not relevant to the subject matter of this case and not likely to lead to the discovery of admissible evidence. RESPONDING PARTY objects to this request because it is overbroad and unlimited in scope so as to be ambiguous, harassing, vexatious, and unduly burdensome.”

In his separate statement, Defendant maintains the CROG is relevant to the parties’ claims and defenses on the same bases asserted for SROGs Nos. 1 and 3. (CROGs SS, pg. 4; Decl. of Weerasuriya, Exh. A ¶¶15, 16, 47-60; Exh. B ¶¶6, 7; Exh. C ¶15; Exh. F at pg. 7.)

Plaintiff is ordered to provide responsive supplemental responses to CROG No. 305.9 to the extent it is related to the swimming pool because Plaintiff’s prior construction history is relevant to an allegation in her FAC, Defendants’ affirmative defenses, and claims on the cross-complaint. Maintenance to the property unrelated to the swimming pool are not relevant to the subject matter and not reasonably calculated to lead to the discovery of admissible evidence.

CROG No. 305.11 asks Plaintiff: “For each problem or defect you contend exists in any subject property owned by you, describe in detail: (a) the nature of any problem or defect; (b) the date you first became aware of such problem or defect; (c) the actions taken by you, if any, in response to the problem or defect, including reporting it to any party in this litigation; and (d) the response, if any, by any party in this litigation to your report of the problem or defect.”

CROG No. 305.12 asks Plaintiff: “If you have repaired or attempted to repair any construction claim or construction defect claim you allege exists in any subject property owned by you, state: (a) a description of the problem or defect repaired or attempted to be repaired; (b) a description of the repair or attempted repair; (c) the date of the repair or attempted repair; (d) the cost of the repair or attempted repair; and (e) the name, address, and telephone number of the person who performed the repair or attempted repair.”

CROG No. 305.13 asks Plaintiff: “Have you ever hired any person, including but not limited to a contractor, design professional, or engineer (but excluding those hired by your attorney), to inspect, prepare a bid regarding, or repair a condition that you contend in this litigation is a construction claim or construction defect claim? If so, for each, state (a) the date of the inspection; (b) the name, address, and telephone number of the person performing the inspection; (c) the general nature of the problem or defect inspected; and (d) the cost of the inspection.”

In her initial responses, Plaintiff objected CROG No. 305.11 as: “vague and ambiguous as phrased in the context of this litigation. This CROG is not relevant to the subject matter of this case and not likely to lead to the discovery of admissible evidence,” and is “overbroad and unlimited in scope.” In her initial responses, Plaintiff did not object to CROGs Nos. 305.12 and 305.13, but produced documents in the alternative.

Plaintiff is ordered to provide responsive supplemental responses to CROGs Nos. 305.11 and 305.12 to the extent it is related to the swimming pool because Plaintiff’s prior construction history is relevant to an allegation in her FAC, Defendants’ affirmative defenses, and claims on the cross-complaint. Defects on the Property unrelated to the swimming pool are not relevant to the subject matter and not reasonably calculated to lead to the discovery of admissible evidence.

CROG 309.1 asks Plaintiff: “Are there any other damages that you attribute to the construction claim or construction defect claim alleged in this action? If so, for each item of damage state: (a) the nature; (b) the date it occurred; (c) the amount; and (d) the name, address, and telephone number of each person whom you assert suffered Damages.”

CROG 309.2 asks Plaintiff: “Do any documents support the existence or amount of any item of damages claimed in interrogatory 309.1? If so, describe each document and state the name, address, and telephone number of the person who has each document.”

In her initial responses, Plaintiff did not object to interrogatories, but produced documents in the alternative.

Here the election is improper. Plaintiff is ordered to provide responsive supplemental responses to the interrogatories because they are relevant her request for damages in the FAC.

CROG No. 311.1 asks Plaintiff: “Do you or anyone acting on your behalf know of any photographs, films, videotapes, recordings, or electronically stored information depicting any place, object, event, or individual concerned in the construction claim or the construction defect claim? If so, for each type of media, state: (a) the number of photographs, length of film or videotape, or megabytes of a electronic recording; (b) the places, objects, or persons photographed, filmed, videotaped, or otherwise recorded; (c) the date each photograph, film, videotape, or electronic recordings was taken or recorded; (d) the name, address, and telephone number of each individual who took these photograph or recorded these films, videotapes, or electronic recordings; and (e) the name, address, and telephone number of each person who has the original media or copies of these photographs, films, videotapes, or electronic recordings.”

CROG No. 311.3 asks Plaintiff: “Has any report been made by any person concerning the construction claim or the construction defect claim? If so, state: (a) the name, title, and employer of the person who made the report; (b) the date and type of report made; (c) the name, address, and telephone number of the person for whom the report was made; and (d) the name, address, and telephone number of each person who has an original or copy of the report.”

CROG No. 311.4 asks Plaintiff: “Have you or anyone acting on your behalf (except for consultants retained by counsel or expert trial witnesses) inspected the subject property on which the construction claim or the construction defect claim is based? If so, for each inspection state: (a) the name, address, and telephone number of the individual making the inspection; and (b) the date of the inspection.”

In her initial responses, Plaintiff did not object to interrogatories, but produced documents in the alternative.

Here the election was improper. Plaintiff is ordered to provide responsive supplemental responses to the interrogatories because they are relevant her allegations in the FAC.

This interrogatory asks Plaintiff: “Do you or anyone acting on your behalf contend that any person involved in the occurrence of the material facts on which the construction claim or construction defect claim is based violated any statute, ordinance, or regulation, and that such violation was a legal (proximate) cause of the construction claim or construction defect claim? If so, for each contention, identify the name, address, and telephone number of each person involved, and the statute, ordinance, or regulation Violated.”

Plaintiff provided a sufficient response to the interrogatory. Accordingly, Plaintiff is not required to respond further.

This interrogatory asks Plaintiff: “Describe each specific concealment and misrepresentation that you claim was concealed from or made to you in connection with the purchase, development, design, construction, or provision of services or supplies to the subject property. For each one: (a) state all facts on which you base your response, including when, how, and by whom any concealment occurred and any misrepresentation was communicated to you; (b) state the names, addresses, and telephone numbers of all persons who have knowledge of these facts; and (c) identify all documents and other tangible things that support your response and state the name, address, and telephone number of any person who has each document or thing.”

In her initial responses, Plaintiff objected CROG No. 305.11 as: “Vague and ambiguous as phrased in the context of this litigation. This interrogatory is not relevant to the subject matter of this case and not likely to lead to the discovery of admissible Evidence.”

This interrogatory is not vague or ambiguous. It is also relevant to the subject matter of this case. Plaintiff is ordered to provide responsive supplemental response to the interrogatory because it is relevant her allegations in the FAC.

This interrogatory asks Plaintiff: “For each agreement alleged in the pleadings: (a) identify each document that is part of the agreement and state the name, address, and telephone number of the person who has each document; (b) describe each part of the agreement not in writing, along with the name, address, and telephone number of each person agreeing to that provision, and the date that part of the agreement was made; (c) identify all documents that evidence any part of the agreement not in writing, and for each, state the name, address, and telephone number of each person who has the document; (d) identify all documents that are part of any modification to the agreement and for each, state the name, address, and telephone number of each person who has the document; (e) describe each modification to the agreement not in writing, along with the date the modification was made and the name, address, and telephone number of each person agreeing to the modification; (f) identify all documents that evidence any modification of the agreement not in writing and for each state the name, address, and telephone number of the person who has each document; and (g) state the name, address, and telephone number of the person most knowledgeable regarding the negotiations and contracting for any services you performed at any subject property.”

Plaintiff provided a partial response to subpart (a) that lacks specificity as to the identified documents. Plaintiff provided documents in lieu of responses to subparts (c) and (d). This was insufficient. Plaintiff did not identified with specificity. Plaintiff is ordered to provide responsive supplemental responses to subparts (a), (c), and (d).

This interrogatory asks Plaintiff: “Was there a breach of any agreement alleged in the pleadings? If so, describe every act or omission that you allege to be a breach of the agreement and give the date of each.”

In her initial response, Plaintiff did not object to interrogatory, but produced documents in the alternative. Plaintiff provided a response in part.

C.C.P. §2030.230 permits a party to specify writings from which an answer may be derived or ascertained if the specification is in sufficient detail to permit the propounding party to locate and identify the documents. Plaintiff met these requirements in her response to this interrogatory. Plaintiff responded to this interrogatory and exercised the option to produce responsive documents including but not limited to complaints made to LADBS citations, photographs, correspondence and text messages, considering the burden of production is equal for Plaintiff and Defendant. However, only Plaintiff can be aware of what she is claiming is the breach of the agreement. Plaintiff is ordered to provide a supplemental response.

Defendant’s demand for property inspection states: “The certain real property that is the subject of this litigation, located at 2526 Lake View Avenue, Los Angeles, California 90039, APN 5438-008-021 at 10:00 a.m., on June 14, 2022, including any and all dwellings, and structures on the real property, in addition to the real property itself.” (Property SS.) The Demand seeks “permit the inspection, video recording, and photographing of the certain real property that is the subject of this litigation” and “includes not only the physical inspection of the property, but such non-destructive testing as may otherwise be required. It further includes the complete photographing of the property by still photos in addition to videotape or other film recording and reproduction.” (Property SS.)

Plaintiff objected to Defendant’s demand on the following grounds: (1) vague and ambiguous as to the term, “dwellings,” “structures” and “the real property itself” which renders the demand overbroad, compound and unintelligible, ambiguous, harassing, vexatious and unduly burdensome; (2) overbroad and unlimited in scope so as to be ambiguous, harassing, vexatious and unduly burdensome; (3) seeks information that is not relevant to the subject matter involved in the pending action or does not appear to be reasonably calculated to lead to the discovery of admissible evidence; and (4) it seeks information protected by privacy rights of Plaintiff or of a third party. (Opposition Property SS, pg. 2.)

Defendant argues the property inspection is directly relevant to the FAC, the Answer, and the Cross-Complaint, and will reveal the extent and nature of Plaintiff’s alleged prior unpermitted work. (Property SS, pg. 2; Decl. of Weerasuriya, Exh. A ¶¶15, 16, 47-60; Exh. B ¶¶6, 7; Exh. C ¶15; Exh. F at pg. 7.) Defendant further argues this information can best be determined through a property inspection because Plaintiff is not an expert. (Property SS, pg. 3.)

Plaintiff objects to the property inspection on the basis that Defendant Garcia seeks to inspect Plaintiff’s entire Property without limits. (Opposition Property, pg. 4.) Plaintiff further objects on the basis that Plaintiff demolished the pool Defendant Garcia seeks to inspect based on an order from LADBS. (Opposition Property, pg. 5; P-COE Exh. 5.) Plaintiff further argues Defendant Garcia cannot Demand inspection on the basis of unverified allegations in Defendant’s Answer and Defendant H&E’s cross-complaint. (Opposition Property, pg. 6.)

Plaintiff is ordered to permit inspection of the Property limited to the area where the swimming pool had been installed.

[1] The Court notes Defendant’s Reply in Support of Motion for an Order Compelling Plaintiff to respond to Defendant’s SROGs is unsigned and not dated. Accordingly, the Court will not consider Defendant’s SROGs Reply.

[2] Plaintiff notes Defendant’s SROGs were misnumbered, and No. 93 should be No. 98. For the purposes of this order, and to avoid confusion, the Court will continue to refer to the relevant interrogatory as No. 93.