Judge: Peter A. Hernandez, Case: 23STCV24649, Date: 2024-09-18 Tentative Ruling
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Case Number: 23STCV24649 Hearing Date: September 18, 2024 Dept: 34
Paul Blinderman v. 1210 North Kings Road (23STCV24649)
Defendant Lee’s motion for protective order is DENIED.
Plaintiff
Blinderman’s motion to compel unit inspection is GRANTED.
BACKGROUND
On October 10, 2023, Plaintiff Paul
Blinderman (“Plaintiff”) filed the underlying action against Defendants 1210
North Kings Road Association, Inc., Resource Property Management Inc., Asher
Kaufman, Ji Hoon Lee, and Beuse Inc (collectively “Defendants”) alleging three
causes of action for (1) breach of CC&Rs; (2) negligence; and (3) nuisance.
Plaintiff alleges that he is suing the
homeowners’ association, the property manager, Defendant Ji Hoon Lee, and
others for continuing water and structural damage to Plaintiff’s first-floor
unit and balcony, as well as for noise issues from Lee’s unit (herein “Unit
202”) located directly above Plaintiff’s. Plaintiff further alleges a series of
issues caused by and originating in Unit 202. (Compl., ¶¶ 27-35.)
In April of 2024, Defendant Lee served a
demand for inspection of Plaintiff’s unit scheduled for June 4, 2024, which
Plaintiff subsequently allowed to take place. (Ruttenberg Decl., ¶ 3, Ex. A.)
On July 10, 2024, Plaintiff Blinderman served
a Demand to Inspect Lee’s Unit 202 (herein “Demand”) which set forth an
inspection date of August 13, 2024. (Ruttenberg Decl., ¶ 4, Ex. B.) However, on
August 5, 2024, Defendant Lee served objections to the Demand and has since
refused to allow Plaintiff to inspect Lee’s unit. (Ruttenberg Decl., ¶ 4, Ex.
C.) Plaintiff’s counsel, Kenneth G. Ruttenberg, attempted to secure an
alternate date for an inspection but avers that Defense counsel has refused to
provide an alternate date. (Id.)
On July 17, 2024 Mr. Lee filed a Motion for
Leave to File Cross-Complaint, seeking to bring in Barbara Schoen (“Schoen”) as
cross-defendant. Schoen owns Unit 302, which is located directly above Lee’s. Defendant
Lee has learned through discovery that Schoen has a history of water leaks
flowing through the common area walls from Schoen’s Unit, 302, to that of Lee’s
Unit, 202, and potentially into Plaintiff’s Unit, 102. (Konoske Decl., ¶ 6.)
The motion was subsequently granted on August 20, 2024.
Following Plaintiff’s receipt of Defendant’s
Objections to the Demand, Plaintiff’s counsel Ruttenberg attempted to meet and
confer with Defense counsel. (Ruttenberg Decl., ¶¶ 4-6.) Such efforts commenced
on July 20, 2024 via phone call. (Id.)
On August 9, 2024, Ruttenberg emailed Defense
counsel to address Lee’s objections in writing, reiterating the relevance of
the Unit’s structural condition to the underlying action. (Id. at ¶ 6,
Ex. D.) Later that day on August 9, 2024, Lee’s counsel responded to Ruttenberg
via email, stating Unit 202 had been fully remodeled and the walls closed up.
(Ruttenberg Decl., ¶9, Ex. E.) He further stated that the plumbing has been
covered up or tiled over and that Plaintiff says the plumbing no longer leaks.
(Id.) Thus, any structural alterations or unapproved remodeling was not
Plaintiff’s issue to enforce but solely within the homeowner’ association’s
(“HOA’s) jurisdiction to enforce. (Id.) Moreover, Defendant asserts that
Lee’s current flooring now provides more sound insultation than his prior tile
floor and Plaintiff’s owner ceiling would affect any acoustical tests of the
flooring. (Id.)
Plaintiff contends that although Defendant
Lee is now of the view that most of these structural issues have been repaired,
Plaintiff maintains otherwise.
After failing to reach an agreement after
engaging in multiple meet and confer efforts, Defendant filed the instant
Motion for Protective Order, requesting the court issue a protective order as
to the inspection of Unit 202 as set forth in Plaintiff’s Demand for Property
Inspection. Defendant also filed a Proposed Order.
On September 4, 2024, Plaintiff filed his
Opposition.
On September 11, 2024, Defendant Lee filed
his Reply, as well as the Declaration of his daughter, Young Hee Kim aka
Josephine Lee. Josephine Lee currently resides in Unit 202 with her mother who
is Defendant Lee’s ex-wife. Defendant Lee himself does not reside there but
owns the Unit and rents it out to his ex-wife and daughter.
Around the same time, on August 14, 2024,
Plaintiff filed a motion to compel Defendant Lee to allow an inspection of Unit
202. Defendant Lee filed his opposition on September 5, 2024, and Plaintiff
filed his Reply on September 11, 2024.
A. Defendant
Lee’s Request for Judicial Notice
Defendant Lee attaches the Declaration of his legal counsel,
Nicholas A. Konoske (“Konoske Decl.”), which includes Exhibits (A) – (C).
Defendant requests the court take judicial notice of Exhibits (A) –(C). (Mot.,
pg. 2.) Exhibit A is a copy of the Demand for Property Inspection upon
Defendant; Exhibit B is a copy of Defendant’s July 24, 2024 Objections to
Plaintiff’s Demand; and Exhibit C is a copy of email correspondence between
counsel dated August 10, 2024.
The court notes Plaintiff does not object and attaches
similar exhibits. The court hereby grants judicial notice of Exhibits (A) –
(C).
B.
Legal
Standard
Code of Civil Procedure (“CCP”) § 2031.060:
(a) When
an inspection, copying, testing, or sampling of documents, tangible things,
places, or electronically stored information has been demanded, the party to
whom the demand has been directed, and any other party or affected person, may
promptly move for a protective order. This motion shall be accompanied by a
meet and confer declaration under Section 2016.040.
(b) The
court, for good cause shown, may make any order that justice requires to
protect any party or other person from unwarranted annoyance, embarrassment, or
oppression, or undue burden and expense. This protective order may include, but
is not limited to, one or more of the following directions:
(1)
That
all or some of the items or categories of items in the demand need not be
produced or made available at all.
(2)
That
the time specified in Section 2031.260 to
respond to the set of demands, or to a particular item or category in the set,
be extended.
(3)
That
the place of production be other than that specified in the demand.
(4)
That
the inspection, copying, testing, or sampling be made only on specified terms
and conditions.
(5)
That
a trade secret or other confidential research, development, or commercial
information not be disclosed, or be disclosed only to specified persons or only
in a specified way.
(6)
That
the items produced be sealed and thereafter opened only on order of the court .
. .
(c) The
party or affected person who seeks a protective order regarding the production,
inspection, copying, testing, or sampling of electronically stored information
on the basis that the information is from a source that is not reasonably
accessible because of undue burden or expense shall bear the burden of
demonstrating that the information is from a source that is not reasonably
accessible because of undue burden or expense. . . .
(g) If
the motion for a protective order is denied in whole or in part, the court may
order that the party to whom the demand was directed provide or permit the
discovery against which protection was sought on terms and conditions that are
just.
Furthermore,
under section 2031.310(a):
(a) On receipt of a response to a demand for inspection, copying,
testing, or sampling, the demanding party may move for an order compelling
further response to the demand if the demanding party deems that any of the
following apply:
(1) A statement of compliance with the demand is incomplete.
(2) A representation of inability to comply is inadequate,
incomplete, or evasive.
(3) An objection in the response is without merit or too general.
(b) A motion under subdivision (a) shall comply with each of the
following: (1) The motion shall set forth
specific facts showing good cause
justifying the discovery sought by
the demand.
(2) The motion shall be accompanied by a meet and confer
declaration under Section 2016.040.
C.
Discussion
1.
Motion for Protective Order & Motion to Compel
Inspection
Defendant Lee moves for a Protective Order and contends such
relief is authorized by CCP § 2017.020(a) which provides that the court “shall
limit the scope of discovery if it determines the burden, expense, or
intrusiveness of that discovery clearly outweighs the likelihood that the
information sought will lead to the discovery of admissible evidence.” (Mot.,
pg. 6.) Plaintiff’s July 20, 2024, Demand for Inspection provides, in pertinent
part, as follows:
PLEASE
TAKE NOTICE that, on August 13, 2024, at 9:00 a.m., Plaintiff Paul Blinderman
(“Plaintiff”), pursuant to CCP §§ 2031.010 et seq., demands to inspect the real
property located at 1210 North Kings Road, Unit 202, West Hollywood, CA 90069
(“Property”) in order to inspect and to measure, survey, photograph, or
test the Property. The Property is in the possession, custody or control of
Defendant Ji Lee (“Defendant”).
The
inspection shall be done according to standards within the industry for said
activities by a person qualified to perform the requested activities. The
requested activities are not expected to damage, destroy, or alter the Property
or any portion thereof. Neither Defendant nor any occupant thereof shall
perform or take any action to the Property that would have the effect of
covering, hiding, disguising, and/or otherwise impeding Plaintiff’s access to
and/or observation of the Property from this date through the completion of the
inspection.
(Mot., Konoske Decl., Ex. A.)
First, (1) Defendant argues that Plaintiff’s Demand is
burdensome, oppressive, harassing, and not reasonably calculated to lead to the
discovery of admissible evidence. (Id.) Defendant asserts that a
protective order is justified by the complete lack of information or reasonable
detail within Plaintiff’s Demand regarding the nature and scope of the demanded
inspection and of the identification, experience, and credentials of those who
Plaintiff seeks to inspect Defendant’s unit. (Id.) Defendant further
argues that the demanding party is required to separately specify with
reasonable particularity what type of testing, measuring, and surveying and
inspection will be performed. (Id. at pg. 7.) Thus, Defendant concludes
that Plaintiff fails to identify precisely what they need to inspect Unit 202,
what testing they purport to conduct and specifically by whom, especially
considering there are no open walls or ongoing repairs. (Id.) In sum,
there is “nothing to see.” (Id.)
Second, Defendant contends Plaintiff’s Demand is vague as to
destructive testing within Unit 202 because it states that “[t]he requested
activities are not expected to damage, destroy, or alter the Property or any
portion thereof.” (Konoske Decl., Ex. A.) Defendant asserts this is simply not
enough of an assurance. (Mot., pg. 8.)
Third, Defendant argues that the Demand constitutes
unwarranted annoyance, embarrassment, and/or oppression to the residents
because the demand fails to identify any defined inspection, nor objective.
(Mot., pgs. 8-9.) Moreover, it does not set forth Plaintiff will be accompanied
by any qualified inspection professional. (Id.) The residents—Mrs. Lee
and her daughter, Josephine Lee—specifically do not want Plaintiff in their
home. (Id. at pg. 9.) Defendant argues the resident-Lees have
experienced sexual harassment from Plaintiff so would be unnecessarily
distressed to have him within their personal space. (Id.) This is
especially so given there is no real inspection objective demonstrated, as Unit
202 is already repaired. (Id.) Thus, the inspection is merely a pretext
to enter the womens’ residence. (Id.) This constitutes good cause. (Id.)[1]
2.
Plaintiff Blinderman’s Opposition
On Opposition, and—as a preliminary issue—Plaintiff argues
that Defendant failed to meaningfully engage in meet and confer efforts prior
to the filing of the instant motion because Defendant never specifically warned
Plaintiff of the instant Motion for Protective Order. On Reply, Defendant
states that despite not mentioning the instant motion, the parties thoroughly
discussed the contents and arguments therein because they discussed Plaintiff’s
underlying Demand and Defendant’s objections. (Reply, pgs. 4-5.)
With respect to Defendant’s substantive arguments, Plaintiff
first states that the language of the underlying Demand for Inspection contains
remarkably similar language as Lee’s demand to inspect Plaintiff’s unit which
Defendant served on Plaintiff in April 2024. (Opp., pg. 2.) Moreover, in
response to Lee’s demand, Plaintiff permitted Lee to inspect his unit. (Opp.,
pg. 2; Ruttenberg Decl., Ex. A.)
Second, with respect to Defendant’s claims that the Demand
is not specific enough or lacks clear objective, Plaintiff argues that the
inspection of Unit 202 is relevant because is central to Plaintiff’s Complaint.
(Opp., pg. 2.) Given Plaintiff alleges that the subsequent repairs were done in
violation of the HOA’s Restated Declaration of Covenants, Conditions, &
Restrictions (“CC&Rs”), it follows that the inspection of Unit 202 and its
repairs is highly relevant to Plaintiff’s first cause of action for (1) breach
of CC&Rs. (Compl., ¶¶ 11-16; 45-48.) Thus, this is central discovery to the
underlying lawsuit and Unit 202 is squarely within issue according to the
Complaint. In addition, Plaintiff sets forth that Lee’s arguments in the
instant motion’s moving papers insist that Plaintiff and the court accept Lee’s
version of conditions and events when such determinations are what litigation
and discovery are for. (Opp., pg. 3.) The Discovery Act is designed to allow a
party to test an opposing party’s version of the issues being litigated. (Id.)
Lee’s arguments—contending that Unit 202 is not relevant to the instant suit—is
premised on the conclusion that there is nothing to see and that the repairs
aren’t relevant. (Id.) However, discovery will determine whether that is
so, and it is not Defendant’s right to be both the judge and jury on the issue
of what is relevant for discovery purposes. (Id.)
Third, Plaintiff contends that Defendant’s conclusion that
the Demand is merely pretext for Plaintiff to enter the womens’ residence is
improperly introduced as triple hearsay. (Opp., pg. 5.) Neither Lee, his
ex-wife, nor his daughter substantiates what Lee’s counsel claims. (Id.)
Moreover, the court has no competent evidence on which to assess whether an
inspection might annoy, embarrass, or oppress Lee. (Id.) Given triple
hearsay is inadmissible when offered as the truth, courts have properly
excluded it in oppositions to summary judgment motions. (Id.)
3.
Defendant Lee’s Reply
On Reply, Defendant argues that the HOA is the proper entity
to address concerns related to impermissible repairs which violate the
CC&Rs. (Reply, pg. 3.) Plaintiff is not an authorized investigator here. (Id.)
In addition, Defendant files the Declaration of Young Hee Kim, also known as
Josephine Lee and Defendant’s daughter, who presently resides at the subject
property. Kim declares that “[t]here is nothing to see in Unit 202.” (Kim
Decl., ¶ 5.) Kim further declares that she is overcome with extreme anxiety at
the thought of Plaintiff Blinderman coming into her home given a series of
events which have accumulated over time, resulting in harassment and constant
sense of “pressure” from Plaintiff. (Kim Decl., ¶ 8.) Kim provides that for a
time, Plaintiff was texting her and finding reasons to keep in contact with
her, including wanting to have coffee with her inside of her unit. (Id.)
Furthermore, Kim alleges Plaintiff was texting her almost every time she left
her home, telling her that her chihuahua was crying. (Id.) When Kim
would run home to check on her dog, her dog would not be crying and her
neighbors confirmed they also had not heard her dog crying. (Id.) Thus,
Kim feels like the totality of Blinderman’s communications over time are Plaintiff’s
attempts trying to control her movements and cause her to rush around at his
whim. (Id.) Plaintiff Blinderman also accused Kim of leaving her dog on
the balcony which she maintains she has never done. (Id.) Now, Kim
avoids contact with him altogether due to these instances. (Id.) Kim
believes the Demand for Inspection of Unit 202 is a further an attempt to exert
control over her and states it is greatly impacting her sense of well-being and
defeats her efforts to avoid him. (Id. at ¶ 9.)
The court first finds that the although the parties engaged
in discussions aimed at resolving Defendant’s objections to Plaintiff’s Demand,
Defendant did not communicate to Plaintiff his intent to file the instant
motion for protective order. Although Defendant insists that the discussion
addressed the underlying issues, a protective order is a motion unto itself
which goes beyond the realm of a motion to compel or Defendant’s objections.
This is further evidenced by the issues raised herein, as well as Kim’s
declaration which were not properly addressed prior to the filing of the
instant motion. Thus, the parties did not engage in sufficient meet and confer
efforts regarding the instant motion prior to Defendant filing it. Therefore,
the court has grounds to deny the motion on these grounds alone.
Furthermore and more importantly, even if the parties had
sufficiently met and conferred before Defendant filed the instant motion, the court
finds the motion should be denied on further grounds because Defendant has not
established good cause or demonstrated Defendant’s interests prevail over the
relevance of the inspection of Unit 202. In effect, Plaintiff’s corresponding
right to conduct discovery prevails over Defendant’s claimed right to privacy.
The scope of discovery is broad and is not limited to relevance but includes
material likely to lead to admissible evidence. Plaintiff has a right to
prepare for trial. In this case, Plaintiff’s first cause of action directly
challenges Defendant Lee’s compliance with the relevant CC&Rs. If Defendant
does not find this to be a proper cause of action or believes that the HOA is
the proper party to first hear such issues, a motion for protective order is
not the proper motion to dispose of a cause of action.
The court further notes that while it has read and
considered the declaration of Young Hee Kim as a present resident of Unit 202,
the declaration serves as further evidence which should have been included with
Defendant’s moving papers. Given it was not and instead, belatedly included on
Reply, Plaintiff has not had the opportunity to meaningfully respond to it. In
addition, the court finds that Defendant is conflating numerous issues. The hearing
for the instant motion for protective order seeks to resolve whether such
protective order is warranted. Now that this question is resolved, the parties
can engage in further meet and confer efforts to come to agreement as to who
may enter the premises. If the parties are unable to reach agreement as to who
will enter the premises, Defendant may then file a motion for protective order
as to prevent Plaintiff Blinderman from entering, if necessary and to resolve
any other outstanding issues.
D.
Sanctions
Code of Civil Procedure § 2031.060 further provides:
(h) Except as
provided in subdivision (i), the court shall impose a monetary sanction under
Chapter 7 (commencing with Section 2023.010) against any party, person, or
attorney who unsuccessfully makes or opposes a motion for a protective order,
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.
(i)(1) Notwithstanding
subdivision (h), absent exceptional circumstances, the court shall not impose
sanctions on a party or any attorney of a party for failure to provide
electronically stored information that has been lost, damaged, altered, or
overwritten as the result of the routine, good faith operation of an electronic
information system.
Given
Defendant did not sufficiently meet and confer prior to the filing of the
instant motion and that Plaintiff has a right to inspect Unit 202, (whether
such right includes Plaintiff personally be present, or in the alternate,
Plaintiff be represented by his agents), the court will grant Plaintiff’s
motion to inspect Unit 202 and deny the Motion for Protective Order.
Plaintiff
seeks sanctions for successfully opposed the Motion for Protective Order and
the granting of his Motion to Compel Unit Inspection. He seeks a total sum of $7,150.00
in attorney fee sanctions and $120.00 in costs. Counsel Ruttenberg declares his
hourly rate is $650 and that he has spent a total of 11 hours on both motions. Utilizing
a Lodestar approach, and in view of the totality of the circumstances, the
court finds that the total and reasonable amount of attorney’s fees and costs
incurred for the work performed in connection with the pending motion is $2,120.00
(i.e., 4 hour at $500.00/hour, plus $120.00 filing fee). Sanctions are awarded
jointly and severally and are payable within 20 days from the date of the
notice of ruling.
CONCLUSION
Accordingly, the court DENIES Defendant Lee’s motion for
protective order, as Lee has failed to sufficiently meet and confer with
Plaintiff Blinderman prior to filing and has also failed to establish good
cause. Lee has not demonstrated a privacy interest prevails over the high
relevance of Unit 202 which Plaintiff is entitled to per the Discovery Act. Therefore,
Plaintiff’s Motion to Compel Inspection of Unit 202 is granted.