Judge Nick A. Dourbetas, Case 21-01222961 2023-08-04 Tentative Ruling

Judge: Nick A. Dourbetas, Case: 21-01222961, Date: 2023-08-04 Tentative Ruling

1. Motion to Compel Production
2. Motion to Compel Response to Requests for Admissions

Motion No. 1:

Plaintiff Bartolo Window Treatment Designs, Inc.’s Motion to Compel Further Responses to Request for Admissions and Sanctions is DENIED.

The Court DENIES the parties’ request for monetary sanctions.

The discovery at issue is as follows:

RFA No. 4: Admit that one of YOUR job duties between March 2016, and October 2019, was to enforce CC&Rs on all members of ASSOCIATION, including T&R. For the purpose of this and the following requests, the term “T&R” means the defendant T&R Carnegie I Properties, LLC.

Response: Objections asserted on vagueness, ambiguity, overbroad as to time and scope, unduly burdensome, oppressive, harassing, seeks disclosure of expert witness information, calls for improper legal conclusion or opinion. “However, without waiving said objections, responding party responds as follows: Pursuant to CCP 2033.220(c), a reasonable inquiry concerning this request has been made, and the information readily known or readily obtainable is insufficient to enable responding party to admit this matter.”

Supp. Response: Without waiving all previously asserted objections: Admit to the extent that responding party was made aware of any alleged violation of provisions of the CC&Rs that needed enforcement within responding party’s limited scope as community manager for the common areas of the Association, as further detailed in Exhibit A, the applicable Property Management Agreement, being produced in response to plaintiff’s Request for Production of Documents, Set 1, served concurrently herewith. However, discovery is ongoing and responding party reserves its right to supplement this response should further information become available.

DENIED. The Response is unequivocal and complete and use of additional language besides the denial was not improper. (See St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 780 [“Moreover, the court's conclusion that the responses to the remaining 41 RFAs did not substantially comply with section 2033.220—based upon reasoning stated at the hearing that each response was “not unequivocal and [was] incomplete” because each contained additional language besides an admission or denial—was incorrect. This finding was apparently based upon the faulty premise that it is universally improper for a responding party to include any explanation in denying or admitting an individual RFA. Although ‘a denial of all or any portion of the request must be unequivocal [citation] ... reasonable qualifications are not improper.’ [Citations omitted.] Thus, for instance, the RFA response, “ ‘As framed, denied,’ ” was held to constitute a legally sufficient denial. [Citation omitted.]”)

See also Id. at 781 [“St. Mary's response to RFA No. 27 (‘Admit that you intended on purchasing a fractional interest in a real estate secured note and deed of trust from Cedar Funding, Inc.’) was ‘Admit, first position only.’ This was also a proper admission to the statement, and the fact that it included a short statement further explaining the nature of St. Mary's intent beyond what was included in the RFA did not render the response improper.”)

Defendant is entitled to qualify its response and admit only so much of the matter involved in the request that as true. (C.C.P. section 2033.220(a)(1).)

The request is a contested issue and the responding party does not need to “admit” a contested issue. (St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 774-75 [“Requests for admissions, on the other hand, are primarily aimed at setting at rest a triable issue so that it will not have to be tried. Thus, such requests, in a most definite manner, are aimed at expediting the trial...admission requests seek to eliminate the need for proof: ‘[T]he purpose of the admissions procedure ... is to limit the triable issues and spare the parties the burden and expense of litigating undisputed issues.’”].)

The Court also denies the request to have Defendant withdraw the objections. There is no rule that Defendant cannot assert objections and then respond “without waiving the objections” or “subject thereto.”

Request No. 15: “Admit that no later than August 9, 2016, YOU obtained knowledge that “some sort of manufacturing” was happening in UNIT O.”

Response: Objection asserted on the grounds it is vague and ambiguous as to the term “knowledge” and “UNIT O”; overbroad as to time and scope; unduly burdensome, oppressive, harassing; calls for speculation.

Supp. Response: “Without waiving all previously asserted objections: Deny to the extent that responding party had no firsthand knowledge of the business conducted within the Units or whether any manufacturing was happening in Unit O. However, discovery is ongoing and responding party reserves its right to supplement this response should further information become available.”

DENIED. **Same reasons as above for RFA No. 4.

Request No. 19: “Admit that between March 2016, and September 24, 2019, YOU did not issue any notices of violation of CC&Rs RELATING to UNITS O to any PERSON. For this and the following requests, the terms “RELATED TO” and “RELATING” shall be construed broadly to mean anything that constitutes, contains, embodies, reflects, identifies, concerns, states, refers to, deals with, or is in any manner whatsoever pertinent to the subject.”

Supp. Response: “Without waiving all previously asserted objections: Admit to the extent that responding party can recall. However, discovery is ongoing and responding party reserves its right to supplement this response should further information become available.”

DENIED. **Same reasons as above for RFA No. 4.

Request No. 29: “Admit that BARTOLO INC asked YOU for access to UNITS L-M to retrieve its property after the FIRE on more than one occasion, including, but not limited to, on October 6, 2019.”

Response: Objection asserted on the grounds it is vague and ambiguous as to the certain terms; overbroad as to time and scope; unduly burdensome, oppressive, harassing; seeks premature disclosure of expert witness information or calls for improper legal conclusion or opinion; potentially seeks information of subsequent remedial measures in violation of Evidence Code section 1151; not reasonably calculated to lead to the discovery of admissible evidence.

Supp. Response: “Without waiving all previously asserted objections: Admit to the extent that responding party is aware that Bartolo, Inc. asked generally to the Association and owners/landlords of the Unit for access to the Unit. However, discovery is ongoing and responding party reserves its right to supplement this response should further information become available.”

DENIED. **Same reasons as above for RFA No. 4.

Request No. 34: “Admit that between March 2016, and September 2019, YOU did not issue to T&R notice of violation of CC&Rs every time YOU obtained knowledge of each different violation.”

Response: Objection asserted on the grounds it is vague and ambiguous as to the certain terms; overbroad as to time and scope; unduly burdensome, oppressive, harassing; seeks premature disclosure of expert witness information or calls for improper legal conclusion or opinion. “However, without waiving said objections, responding party responds as follows: Pursuant to CCP 2033.220(c), a reasonable inquiry concerning this request has been made, and the information readily known or readily obtainable is insufficient to enable responding party to admit this matter.”

Supp. Response: “Without waiving all previously asserted objections: Pursuant to CCP 2033.220(c), a reasonable inquiry concerning this request has been made, and the information readily known or readily obtainable is insufficient to enable responding party to admit this matter at this time because as worded, responding party cannot ascertain what “each different violation” propounding party is referring too and thus cannot adequately respond to this required. However, discovery is ongoing and responding party reserves its right to supplement this response should further information become available.”

DENIED. **Same reasons as above for RFA No. 4.

Request No. 35: “Admit that it is reasonable for YOU, as the professional commercial property management company, to verify at least one permit issued by the city where the commercial property managed by YOU is located, after YOU learned of possibly unsafe activities being conducted within the commercial property under YOUR management.”

Response: Objection asserted on the grounds it is vague and ambiguous as to the certain terms; overbroad as to time and scope; unduly burdensome, oppressive, harassing; seeks premature disclosure of expert witness information or calls for improper legal conclusion or opinion; and compound. “However, without waiving said objections, responding party responds as follows: Pursuant to CCP 2033.220(c), a reasonable inquiry concerning this request has been made, and the information readily known or readily obtainable is insufficient to enable responding party to admit this matter.”

Supp. Response: “Without waiving all previously asserted objections: Pursuant to CCP 2033.220(c), a reasonable inquiry concerning this request has been made, and the information readily known or readily obtainable is insufficient to enable responding party to admit this matter at this time as the scope of responding party’s role as community manager is limited and is not responsible for nor has control over the activities conducted within the Units. However, discovery is ongoing and responding party reserves its right to supplement this response should further information become available.”

DENIED. **Same reasons as above for RFA No. 4.

Request for Sanctions.

Plaintiff seeks sanctions against Defendant and its counsel in the sum of $6,023 pursuant to Code of Civil Procedure §§ 2023.010 et seq., and Code of Civil Procedure § 2033.290(d.) The request is DENIED.

Defendant seeks sanctions against Plaintiff and its attorney, jointly and severally, in the amount of $2,202.50 for the Motion it contends is frivolous. Although the Motion is DENIED, the Court denies the request for sanctions against Plaintiff as well, at this time. However, the Court cautions Plaintiff that the Court would be inclined to impose sanctions in the future, as qualified admissions or denials are not improper.

Motion 2:

Plaintiff Bartolo Window Treatment Designs, Inc.’s Motion to Compel Further Responses to Request for Production of Documents and Sanctions is GRANTED as to Request Nos. 41 and 42.

The Court DENIES both parties request for monetary sanctions.

The discovery at issue is as follows:

Request No. 41: Produce all DOCUMENTS, RELATING to any work YOU performed for ASSOCIATION between March 2, 2016 and September 25, 2019, including, but not limited to work orders, progress notes, completion reports, and invoices. (Propounding Party agrees to reduction of all financial information.)

Supp. Response: “Without waiving all previously asserted objections: All such responsive documents are attached hereto as “Exhibit K.” No responsive information currently known by responding party is being withheld. However, discovery is ongoing and responding party reserves its right to supplement this response should further information become available.”

Further Supp. Response: “Without waiving all previously asserted objections: after conducting a diligent search and reasonable inquiry in an effort to comply with this request, responding party is not in possession, custody or control of any responsive documents as upon information and belief, any such documents are no longer, in the possession, custody, or control of the responding party. No responsive information currently known by responding party is being withheld. Discovery is ongoing and responding party reserves its right to supplement this response should further information become available.”

GRANTED. Defendant does state why it is unable to comply, i.e, because the document “is no longer, in the possession, custody or control of the responding party” but the response fails to state “the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item” as required by C.C.P. section 2031.230.

Verification was served on 4/12/2023. As such, the Motion as to the Verification is MOOT.

Request No. 42: “Produce all DOCUMENTS YOU prepared after each of ASSOCIATION’s Board meetings between March 2016, and March 2021, including, but not limited to, minutes of board meetings for ASSOCIATION

Response: Objection asserted on the grounds it is vague and ambiguous as to the certain terms; overbroad as to time and scope; unduly burdensome, oppressive, harassing; violates a party and 3rd parties privacy rights; seeks confidential/proprietary information; seeks premature disclosure of expert witnesses and/or calls for legal conclusion or opinion; not reasonably calculated to lead to the discovery of admissible evidence; potentially violates Evidence Code section 1151.

Supp. Response: “Without waiving all previously asserted objections: after conducting a diligent search and reasonable inquiry in an effort to comply with this request, responding party is not in possession of any responsive documents. No responsive information currently known by responding party is being withheld. Discovery is ongoing and responding party reserves its right to supplement this response should further information become available.”

GRANTED. **Same reasons as No. 41 above. Further, in Opposition, Defendant states that this request is similar to another subsequent request propounded by Plaintiff and Defendant is still currently trying to identify and obtain the requested information and is currently meeting and conferring with Plaintiff and once the responsive documents are located, Defendant will supplement the production.

Sanctions Request by both parties:

The Court DENIES the request for sanctions by both parties as Defendant did not act without substantial justification (may have thought its response was sufficient) and Plaintiff did not misuse discovery in filing this Motion.

Moving party shall give notice of all the above.