Judge Peter A. Hernandez, Case Number: 19PSCV00687, Date: 2024-01-23 Tentative Ruling

1. Plaintiff Meritage Homes of California, Inc.’s Motion to Compel [Further] Responses to Interrogatories and Strike Objections is DENIED in part (i.e., as to Special Interrogatory No. 6) and GRANTED in part (i.e., as to Special Interrogatory No. 9 and Form Interrogatory No. 324.1).

2. Plaintiff Meritage Homes of California, Inc.’s Motion to Compel [Further] Production of Documents and Strike Objections is GRANTED.

Plaintiff Meritage Homes of California, Inc. (“Meritage”) alleges as follows:

Michael Barker International Inc. fka RBF Consulting (“MBI”) failed to properly perform engineering services in connection with the development of the Creekside residential subdivision in La Verne, California (“Creekside”).

On October 12, 2018, Plaintiff filed a First Amended Complaint, asserting causes of action against MBI and Does 1-200 for:

On November 13, 2018, MBI filed a cross-complaint, asserting causes of action against Roes 1-100 for:

On April 25, 2022, the court related this instant case to Case No. 19PSCV00687; this instant case was deemed to be the lead case.

On August 3, 2023, Meritage filed a conditional “Notice of Settlement of Entire Case.”

On October 12, 2023, Meritage filed a request for dismissal of the entire action, with prejudice.

Boudreau Pipeline Corporation (“BPC”) constructed and installed a sewer lift station and associated improvements (“the System”) in connection with and to service Creekside. The System’s pumps were manufactured with undersized impeller blades, which caused issues with the flow and pressure. BPC failed to promptly remedy the operational and performance issues with the System, which resulted in the City of La Verne (“City”) imposing a sales and building moratorium and ultimately resulted in the City’s revocation of permits.

On October 22, 2019, BPC filed a cross-complaint, asserting causes of action against John Lisee Pumps (“JLP”), Meritage and Roes 1-125 for:

On December 9, 2019, BPC dismissed the first through tenth causes of action against Meritage, with prejudice.

On December 10, 2019, JLP filed a cross-complaint, asserting causes of action against Moes 1-20 for:

On February 24, 2020, BPC filed an “Amendment to [Cross-]Complaint,” wherein Pentair was substituted in lieu of Roe 101. On April 27, 2020, Meritage filed an “Amendment to Complaint,” wherein MBI was named in lieu of Doe 1.

On June 23, 2020, MBI filed a cross-complaint, asserting causes of action against Roes 1-100 for:

On February 17, 2021, MBI filed an “Amendment to [Cross-]Complaint,” wherein BPC was named in lieu of Roe 1, JLP was named in lieu of Roe 2 and Pentair Flow Technologies, LLC was named in lieu of Roe 3.

On October 22, 2021, Meritage filed an “Amendment to Complaint,” wherein JLP was named in lieu of Doe 151.

On February 10, 2021, BPC filed an “Amendment to [Cross-]Complaint,” wherein MBI was named in lieu of Roe 76.

On April 25, 2022, the court related this instant case to Case No. 18PSCV00026; Case No. 18PSCV00026 was deemed to be the lead case.

On December 7, 2022, Meritage filed a Second Amended Complaint (“SAC”), asserting causes of action against BPC, JLP, MBI and Does 1-300 for:

The Final Status Conference is set for May 21, 2024. Trial is set for June 4, 2024.

“[T]he propounding party may move for an order compelling a further response if the propounding party deems that . . . (1) An answer to a particular interrogatory is evasive or incomplete[,] (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate[, and/or that] (3) An objection to an interrogatory is without merit or too general.” (Code Civ. Proc., § 2030.300, subd. (a).)

The moving party must demonstrate a “reasonable and good faith attempt” at an informal resolution of each issue presented. (Code Civ. Proc., §§ 2016.040, 2030.300, subd. (b)(1).) “In lieu of a separate statement required under the California Rules of Court, the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute.” (Code Civ. Proc., § 2030.300, subd. (b)(2).)

Notice of the motion must be provided “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 propounding party and the responding party have agreed in writing. . .” (Code Civ. Proc., § 2030.300, subd. (c).) The responding party has the burden of justifying the objections to the requests. (Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221.)

“The court shall impose a monetary sanction. . . 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.” (Code Civ. Proc., § 2030.300, subd. (d).)

Meritage moves the court for an order compelling Boudreau to provide further responses to Meritage’s Special Interrogatories, Set One (i.e., Nos. 6 and 9) and Form Interrogatories, Set One (i.e., No. 324.1) and to strike all objections.

Boudreau points out that the instant motion is styled as a straightforward “Motion to Compel Responses to Interrogatories and Strike Objections,” when it is, in actuality, a motion to compel further responses. This is true; however, the court declines to deny the motion on this technical ground, inasmuch as it was brought pursuant to Code of Civil Procedure § 2030.300 (i.e., in addition to section 2030.290) and was accompanied by a California Rules of Court Rule 3.1345 separate statement.

Boudreau also points out that Plaintiff has combined two different items of discovery—responses to two special interrogatories and responses to one form interrogatory—into one motion. The court declines to deny the motion on this basis as well. There are only three interrogatories total in issue. Although the court would normally require two separate motions and two separate filing fees for a discovery motion involving two different items of discovery, the court believes that one motion and filing fee under the circumstances is sufficient, The court will proceed to the merits of the motion.

Meritage’s counsel Drew C. Wagner-Weir (“Wagner-Weir”) represents as follows:

On February 1, 2023, Meritage named Boudreau as Doe 201. (Wagner-Weir Decl., ¶ 2). On March 14, 2023, Boudreau filed his answer. (Id., ¶ 3). On July 18, 2023 Boudreau propounded Form and Special Interrogatories, Requests for Admissions and Requests for Production. (Id., ¶ 4). On September 1, Meritage served verified responses. (Id., ¶ 5).

On September 25, 2023, Meritage propounded the subject discovery. (Id., ¶ 6, Exhs. A & B.) On October 16, 2023, Boudreau provided objection-only responses, asserting that the discovery propounded was untimely. (Id., ¶ 7, Exhs. C & D.) On October 19, 2023, Wagner-Weir sent a letter to Boudreau’s counsel disputing the timeliness issue. (Id., ¶ 8, Exh. E.) On November 7, 2023, Boudreau filed a Motion for Summary Judgment based on the issue of alter ego. (Id., ¶ 9). On November 27, 2023, the court held an Informal Discovery Conference (“IDC”), which did not resolve the discovery dispute. (Id., ¶ 11). Immediately following the IDC, Boudreau’s counsel Catherine Cannon (“Cannon”) called Wagner-Weir and advised him that Boudreau would provide responses and a production. (Id., ¶ 12). Wagner-Weir agreed to give Boudreau until December 20, 2023 to provide responses and a production. (Id., ¶ 12, Exh. F.) On December 20, 2023, Boudreau served supplemental responses. (Id., ¶ 13, Exhs. G and H.).

On December 22, 2023, Wagner-Weir sent a meet and confer email to Cannon, to which Cannon responded on December 28, 2023. (Id., ¶ 14, Exh. I). A second IDC occurred on January 17, 2024; at the conclusion of same, the court permitted Meritage to proceed with filing the instant motions. (Id., ¶ 18). Counsel thereafter unsuccessfully met and conferred on February 1-2, 2024. (Id., ¶ 19, Exh. L.)

Special Interrogatory No. 6: If you contend that you have complied with corporate formalities for Defendant Boudreau Pipeline Corporation, please identify each document that supports your contention.

Special Interrogatory No. 9: If you contend that Defendant Boudreau Pipeline Corporation was capitalized in a manner that would allow it to pay its individual debts, please identify each document that supports your contention.

Form Interrogatory No. 324.1: Identify each denial of a material allegation and each special or affirmative defense in your pleadings, and for each:

(a) State all facts on which you base the denial or special or affirmative defense;

(b) State the names, addresses, and telephone numbers of all persons who have knowledge or those facts; and

(c) Identify all documents and other tangible things that support your denial or special or affirmative defense, and state the name, address, and telephone number of the person who has each document.

It is Boudreau’s position that on March 27, 2023[1] Judge Wesley L. Hsu (“Judge Hsu”) ruled that discovery was cut off in general, but that Boudreau, at his counsel’s request, could conduct discovery since he was a newly named defendant. (Cannon Decl., ¶ 9). It is also Boudreau’s position that Meritage’s counsel did not request a corresponding right to propound discovery on that date. (Id.) It is Meritage’s position that Judge Hsu ruled that both Boudreau and Meritage would be permitted to engage in alter ego discovery. (Craig Decl., ¶ 4). The March 27, 2023 minute order states, without more, as to the issue of discovery: “The Court does not make any new orders regarding discovery cut off; any party wishing to be heard regarding discovery shall file motion papers accordingly.” Neither Meritage’s nor Boudreau’s respective counsel filed a notice of ruling. Neither Meritage’s nor Boudreau’s respective counsel have lodged a transcript of the March 27, 2023 proceedings with the court.[2]

Boudreau has not provided the court with any information, aside from its counsel’s declaration, confirming that Judge Hsu granted an exception to the discovery cut-off deadline to Boudreau only. The court, then, will treat the discovery cut-off exception as mutually applicable to Boudreau and Meritage.

Boudreau’s objections raised for the first time in his supplemental responses, then, are untimely and disregarded. The court notes that Boudreau has not filed a motion for relief from waiver of objections, to date. Further, the court will not entertain Boudreau’s “Preliminary Statement” and “General Objections” preceding his original responses on the basis that they are improper. (Code Civ. Proc., § 2030.240, subd. (b) [“If an objection is made to an interrogatory or to part of an interrogatory, the specific ground for the objection shall be set forth clearly in the response. If an objection is based on a claim of privilege, the particular privilege invoked shall be clearly stated. If an objection is based on a claim that the information sought is protected work product. . ., that claim shall be expressly asserted”].)

Boudreau’s assertion of third-party privacy on behalf of BPC is not well-taken. “While corporations do have a right to privacy, it is not a constitutional right. The corporate right to privacy is a lesser right than that held by human beings and it not considered a fundamental right.” (SCC Acquisitions, Inc. v. Superior Court (2015) 243 Cal.App.4th 741, 756). Since the corporate privacy right is not constitutionally protected, the court must engage in a balancing test wherein the “discovery’s relevance to the subject matter of the pending dispute and whether the discovery appears reasonably calculated to lead to the discovery of admissible evidence is balance against the corporate right of privacy. Doubts about relevance generally are resolved in favor of permitting discovery.” (Id. [internal quotations and citation omitted].) Meritage’s special interrogatories in question are relevant to whether or not Boudreau is liable in the instant litigation as an alter ego of BPC.

With that said, Boudreau provided a substantive response to Special Interrogatory No. 6 (i.e., “After a diligent search and reasonable inquiry, Responding Party herein again refers to documents previously produced by Boudreau Pipeline Bates No. BOU 0000001 to BOU 0013634 which are already in Plaintiff’s possession”). Meritage has failed to explain why it is improper or deficient; as such, no further response is warranted.

The motion is otherwise granted as to Special Interrogatory No. 9 and Form Interrogatory No. 324.1.

Boudreau is to serve further, Code-compliant responses, without objections, within 15 days from the date of the notice of ruling.

“[T]he demanding party may move for an order compelling further response to the demand if the demanding party deems that. . . (1) A statement of compliance with the demand is incomplete[,] (2) A representation of inability to comply is inadequate, incomplete, or evasive [and/or that] (3) An objection in the response is without merit or too general.” (Code Civ. Proc., § 2031.310, subd. (a).)

The moving party must demonstrate a “reasonable and good faith attempt” at an informal resolution of each issue presented. (Code Civ. Proc., §§ 2016.040, 2031.310, subd. (b)(2).) “In lieu of a separate statement required under the California Rules of Court, the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute.” (Code Civ. Proc., § 2031.310, subd. (b)(3).)

A motion to compel further responses to a demand for inspection or production of documents must “set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).) If the moving party has shown good cause for the production of documents, the burden is on the objecting party to justify the objections. (Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.)

“[T]he court shall impose a monetary sanction. . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, 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.” (Code Civ. Proc., § 2031.310, subd. (h).)

Meritage moves the court for an order compelling Boudreau to provide further responses to Meritage’s Requests for Production of Documents, Set One (i.e., Nos. 1-3) and to strike all objections.

Boudreau argues that Meritage’s CRC Rule 3.1345 separate statement reflects non-compliance with subdivision (c)(5) [i.e., “[t]he separate statement must include. . . (5) If the response to a particular discovery request is dependent on the response given to another discovery request, or if the reasons a further response to a particular discovery request is deemed necessary are based on the response to some other discovery request, the other request and the response to it must be set forth”]) with respect to Requests Nos. 1 and 2. However, the separate statement notes that Meritage filed a concurrent motion to compel interrogatories which, if granted, would necessitate the further production of documents. Also, Meritage identified the “Employee Stock Ownership Plan” (“ESOP”) as a responsive document to Form Interrogatory No. 326.1 and Special Interrogatory No. 3.

Boudreau points out that the instant motion is styled as a straightforward “Motion to Compel Production of Documents and Strike Objections,” when it is, in actuality, a motion to compel further responses. This is true; however, the court declines to deny the motion on this technical ground, inasmuch as it was brought pursuant to Code of Civil Procedure § 2031.310 (i.e., in addition to section 2031.300) and was accompanied by a California Rules of Court Rule 3.1345 separate statement. The court will proceed to the merits of the motion.

Request for Production No. 1: Each document identified in your responses to Meritage’s Form Interrogatories—Construction Litigation, Set One, propounded and served on you concurrently with these Demands for Production.

Request for Production No. 2: Each document identified in your responses to Meritage’s Special Interrogatories, Set One, propounded and served on you concurrently with these Demands for Production.

Request for Production No. 3: Any and all documents relating to the transfer of your equity in Boudreau Pipeline.

Again, the court will treat the discovery cut-off exception as mutually applicable to Boudreau and Meritage. The court determines that Boudreau’s objections raised for the first time in his supplemental responses are untimely and thus waived. Boudreau’s third party privacy objection is not well taken, for the reasons set forth above and below.

Although Boudreau provided substantive responses to Request for Production Nos. 1 and 2 (i.e., “After a diligent search and reasonable inquiry, Responding Party herein again refers to documents previously produced by Boudreau Pipeline Bates No. BOU 0000001 to BOU 0013634 which are already in Plaintiff’s possession”), Meritage advises that Boudreau failed to produce ESOP documents identified in his responses to Form Interrogatory No. 326.1 and Special Interrogatory No. 3.[3] Additionally, Meritage points out that any documents identified in Boudreau’s further responses to Form Interrogatory No. 324.1 and Special Interrogatory 9 will need to be produced. Further responses, then, are warranted.

Boudreau is to serve further, Code-compliant responses, without objections, within 15 days from the date of the notice of ruling.

[1] Meritage’s counsel refers to Hsu’s order as having been made on April 10, 2023. The April 10, 2023 minute order reflects that a “Status Conference re: Stipulation/Non-Stipulation to Mandatory Settlement Conference” was held on that date. There is no language in the April 10, 2023 minute order regarding the discovery cut off issue.

[2] The March 27, 2023 minute order reflects that a court reporter was present for the hearing. It appears to the court that any order made by Judge Hsu would likely have been made during the April 10, 2023 hearing, which was not attended by a court reporter; otherwise, counsel could have easily resolved this dispute by requesting a copy of the March 27, 2023 transcript from the court reporter and providing same to the court.

[3] Boudreau represents that on or about May 12, 2023, he and BPC (through different counsel than Boudreau’s counsel in the instant litigation) already produced certain documents in Riverside Superior Court Case No. CVR12205532 (“The Riverside Suit”), including the ESOP, a Stock Purchase Agreement, an ESOP Promissory Note and a Modification to the Stock Purchase Agreement. (Cannon Decl., ¶ 11). It is unclear, then, why he believes production of the ESOP should be withheld now. Boudreau’s and BPC’s production of responsive documents in a separate action does not justify Boudreau’s refusal to produce documents here.