Judge Ralph C. Hofer, Case 22GDCV00026 2023-04-14 Tentative Ruling

Plaintiff Excelsior at the Americana at Brand Homeowners’ Association (Excelsior HOA) alleges that it is a California mutual benefit non-profit corporation which is owned by and composed of its members and owners within the community known as The Excelsior at Americana (Excelsior). Plaintiff alleges that there are 100 owner members, and that defendant Paul Van Richter is the trustee of the Paul J. Abramson Trust, the owner of real property Unit 676 at Excelsior, and a member of Excelsior HOA. Plaintiff alleges that Van Richter resides at the subject unit.

Plaintiff alleges that every condominium unit at the property is governed by the Excelsior HOA Covenants, Conditions and Restrictions (CC&Rs), pursuant to which Excelsior HOA is responsible for repairs of common areas at the property. In 2020, plaintiff completed a major construction defect lawsuit, which included claims for defects and damages related to the master bedroom showers leaking into the adjacent common area walls and sub-floors between residences, deterioration of cast iron pipes due to hydrogen sulfide gas corrosion, and missing fire stopping in the fire rated walls between the residences. The repairs will require the removal and replacement of the master bathroom shower, replacement of the cast iron pipes, and the installation of fireproofing between the residences, which repairs will take place inside all of the residences, and cannot be done solely from the exterior of the residences.

Plaintiff alleges that it has sent notice to the residents concerning a schedule of inspections to take place inside the residences, to be completed November 1-12, 2021, Monday through Friday, lasting about thirty minutes. Van Richter has contacted the reconstruction company to not contact him for access to his unit, has informed Excelsior HOA’s consultants that he had no issues in his residence and the issues were all repaired, which plaintiff alleges is not possible because the problems are located in the common areas and defendant has not obtained approval for construction in his residence as required by the CC&Rs. Defendant’s home, Unit 676, has not been inspected as defendant refused to grant access for inspections, in violation of the CC&Rs section concerning Right of Entry of the Association, and Excelsior HOA seeks an order from the court to defendant to vacate his unit for the duration of inspection and repairs of his unit and that the Excelsior HOA be permitted access to his unit to perform the repairs that are being made at all other units at the Excelsior.

The complaint also alleges causes of action for fraud and abuse of process based on allegations that defendant has filed two small claims complaints, in March of 2021 and November of 2021, in which defendant has falsely represented to the court that the claims had been served on plaintiff. These causes of action were the subject of a special motion to strike which the court heard on October 7, 2022. The motion was granted and the causes of action were ordered stricken with prejudice from the verified complaint.

Defendant Van Richter, individually and as trustee, has filed a cross-complaint, naming plaintiff Excelsior HOA as cross-defendant, alleging that Excelsior HOA has breached the CC&Rs by directing or being compliant in allowing management servicer First Service Residential on May 11, 2020 to terminate all its management duties and services exclusively to Van Richter. The cross-complaint alleges a cause of action for breach of contract, as well as a cause of action for declaratory relief, in which cross-complainant seeks a declaration that Excelsior HOA is in violation of the CC&Rs by continuing to require Van Richter to pay $716.86 per month for residential services such as onsite property management, concierge, janitorial, engineering and security, while Van Richter is being denied any of these services.

In Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, the court of appeal considered a challenge to a trial court’s order denying a motion to compel discovery, which the trial court had denied on both substantive and procedural grounds. The court of appeal held, “we conclude that the procedural basis cited by the trial court was a sufficient basis for the exercise of discretion to deny the motion to compel.” Mills, at 892. The court of appeal accordingly did not discuss the substantive ground addressed by the trial court. Mills, at 892, n. 23. In Mills, a separate statement had been submitted, but did not set forth the full responses to each of the discovery requests at issue, instead grouping together several requests, stating responses “in relevant part” and truncating some responses. The court of appeal also noted that the statement provided statements of reasons for compelling further responses which were confusing because it was not indicated which request or requests the reasons related to. Mills, at 893. The court of appeal rejected an argument that the full responses had been available to the court as the responses were attached to the motion, holding that the rule expressly forbids this practice by requiring the statement to be “full and complete,” and expressly not permitting material to be incorporated into the separate statement by reference. Mills, at 893, citing former Rule 335 and current Rule 3.1020(c).

“We conclude that because Plaintiffs did not comply with the requirements of former rule 335, the trial court was well within its discretion to deny the motion to compel discovery on that basis. (Cf. Neary v. Regents of University of California (1986) 185 Cal.App.3d 1136, 1145 [230 Cal. Rptr. 281] [describing trial court's denial of motions to compel discovery because of a nonconforming separate statement].)”

Here, no separate statement has been filed at all, let alone a defective one. The motion clearly involves the content of discovery requests, as it challenges the objections made to the subject discovery. The full text of the request and the responses have not been included in the moving papers. The motion includes a “summary of documents sought,” in a chart form, but a quick review of the responses attached as an exhibit to the moving declaration confirms that the full requests and responses are not included in that chart. [See Memorandum, p. 5 and Diefenbach Decl., Ex. 1].

CRC Rule 3.1345(c) requires that a separate statement “must be full and complete so that no person is required to review any other document in order to determine the full request and the full response.” The rule requires the statement “must include” for each discovery request to which a further response is requested, the text of the request, in addition to “the text of each response, answer or objection, and any further responses or answers...”

Again, as noted above, even though the responses are submitted with the motion, the court is not required to cull through that exhibit to find the text of the matters at issue. In addition, the discovery requests themselves are not submitted with the motion, making it impossible for the court to confirm that the text of the requests as set forth in the responses is accurate. The court would be within its discretion to deny the motion on this ground alone.

Under CCP § 2017.010, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action..., if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” The Section specifically provides that “[d]iscovery may relate to the claim or defense of the party seeking discovery or of any other party to the action.”

The memorandum is confusing, as the notice and sections of the memorandum cite to CCP § 2031.300, which pertains to circumstances where no responses have been timely served, when here responses were served. The memorandum in one section cites to CCP § 2031.310, which provides that a party demanding a document inspection may move for an order compelling further responses to the demand if the demanding party deems that:

The burden is on the moving party to show both relevance to the subject matter and specific facts justifying discovery. Glenfed Develop. Corp. v. Superior Court (1997, 2nd Dist.) 53 Cal.App.4th 1113, 1117. Once good cause is established by the moving party, the burden then shifts to the responding party to justify any objections made to document disclosure. See Hartbrodt v. Burke (1996, 2nd Dist.) 42 Cal.App.4th 168, 172-174.

“Objection. Attorney-Client Privilege and Attorney Work-Product Privilege. Irrelevant and not likely to lead to the discovery of admissible evidence. Without waiving the privileges and objections, Responding Party will produce the presentation dated May 7, 2022. Responding Party will not produce the presentations on October 20, 2022 or November 7, 2022 as they were made and given in the anticipation of litigation and are protected by the attorney-client and attorney work-product privileges.”

The motion argues that the PowerPoint presentations made to the homeowners almost certainly have information related to the construction defect litigation that Excelsior HOA is engaged in, and are believed to contain information related to the construction defects which Excelsior HOA alleges form the basis for its need to access Van Richter’s property to perform repairs. The motion argues that Van Richter, as a property owner in this community, is absolutely entitled to these documents.

The requests appear to seek discoverable information concerning the claims made by Excelsior HOA in the complaint that access to defendant’s unit is necessary to address construction defects effecting the homeowners which cannot be corrected solely from the exterior of the residences, but the construction requires access to the individual units, that denial of such access is a violation of the CC&Rs, and that the request for access is reasonable and has been found reasonable by all other members of the HOA. This showing is sufficient to establish good cause for compelling production of the subject PowerPoint presentations made to the owners in the Excelsior HOA.

Excelsior HOA argues in the opposition that while it might seem trivial that Excelsior HOA does not want to have its counsel deliver a copy of homeowner presentations to defendant, Van Richter is special, as he has been attempting to sabotage the work being performed by the builder, and sent confidential status letters directed to the membership to the opposing counsel which represented the builder, and has also threatened to use his plumbing to cause raw sewage to rain down on the workers who are working conducting repairs in the garage below the building.

The argument does not show that the presentations are not discoverable, particularly by a member of the subject homeowners’ association who was apparently entitled to attend the meetings and personally view the presentations. The opposition, by arguing that the withholding of these materials may appear “trivial” appears to concede that the information is discoverable, and that homeowners would be entitled to the requested presentations, but not this particular homeowner. The opposition goes on to argue that the subject PowerPoint presentations are irrelevant and not discoverable, because the litigation concerning the construction defects is distinct and has no connection to the current case. The opposition indicates that the withheld documents are “PowerPoint Presentations shown to Excelsior homeowners as an update in unrelated construction defect litigation.” [Opposition, p. 6:1-2]. The papers go on to argue that there is substantial evidence in the verified complaint concerning the necessity for repairing the Excelsior. Defendant is clearly entitled to test these verified allegations against evidence of what is being reported by plaintiff to the homeowners concerning the repairs and the necessity for the repairs and access to individual units. The objections on the ground of relevance or discoverability are overruled. In addition, the arguments appear to suggest that a way to address plaintiff’s concerns would be to enter into a protective order limiting use of the material and information concerning the other lawsuit which is to be disclosed to the homeowners, to disclosure only for use in this lawsuit.

The opposition also argues that the PowerPoint presentations concerning updates in the unrelated construction defect litigation are protected from disclosure under attorney-client privilege because they are confidential communications between Excelsior homeowners and Excelsior’s attorney, and are also the work product of Excelsior’s counsel, and contain his impressions, conclusions, opinions, legal research or theories, and are thus not discoverable under any circumstances.

The moving papers argue that any such privileges have been waived by disclosing the contents to Excelsior homeowners. It does appear that the disclosure of this information to the other homeowners would waive any argument that Van Richter, as a homeowner similarly positioned, would not be entitled to have the same information. There is no argument or evidence that Van Richter is no longer a homeowner governed by the CC&Rs and entitled to the same rights and privileges afforded the other homeowners.

Plaintiff argues that this is a situation where it was reasonable to reveal privileged information, and confidentiality was maintained here, and that Excelsior HOA’s counsel has a duty to keep all individual homeowners informed about common area litigation which might affect the value of the individual units. Plaintiff submits a declaration of its counsel, who states:

Plaintiff relies on Seahaus La Jolla Owners Association v. Superior Court (2014) 224 Cal.App.4th 754, 774, in which the court of appeal found that the common interest doctrine in the context of that case, involving a common interest development, operated to allow the attorney-client privilege to be asserted with respect to communications made at informational litigation update meetings conducted by the homeowner’s association’s counsel.

“In the Act governing common interest developments, the Legislature placed certain obligations on homeowners association governing boards to communicate with individual owners about proposed construction defect litigation by the association regarding the common areas. (Civ.Code, § 6150, subd. (a).) The association may sue developers over common area defects and also over alleged damage to the separate interests that the association must maintain or repair, or damage to the separate interests that is integrally related to damage to the common areas. (Ibid.; Civ.Code, § 5980.) By the same token, individual owners have economic interests in the value of not only their own individual units, but also in the state of the development as a whole. (Ostayan v. Nordhoff Townhomes Homeowners Assn., Inc. (2003) 110 Cal.App.4th 120, 126–127, 1 Cal.Rptr.3d 528 (Ostayan ).)”

This appears to strengthen Van Richter’s entitlement to the information, as he is also an individual homeowner owed a duty to be informed about common area litigation which might affect the value of his unit, and the state of the development as a whole. This is not a situation, as in Seahaus, where the adverse party to a construction defect litigation, such as the builder, is seeking the information claiming the privileges were waived, who enjoys no direct duty and common interest with respect to the information. The court of appeal in Seahaus expressly stated, “In reaching this conclusion and granting the petition, we do not expand the scope of statutory privileges, but instead apply recognized rules to an unusual set of facts.” Seahaus, at 777. Here, disclosure is sought by another homeowner in a different case, not the builder in the construction defect litigation.

“Where two or more clients have retained or consulted a lawyer upon a matter of common interest, none of them, nor the successor in interest of any of them, may claim a privilege under this article as to a communication made in the course of that relationship when such communication is offered in a civil proceeding between one of such clients (or his successor in interest) and another of such clients (or his successor in interest).”

The objections accordingly are overruled, and plaintiff Excelsior HOA will be ordered to serve further verified responses, without objections, and ordered to permit inspection and copying of all responsive documents, including, but not limited to, the PowerPoint Presentations which have been identified. The further responses will be ordered to consist of statements of compliance which fully comply with CCP § 2031.220:

“A statement that a party to whom an inspection demand has been directed will comply with the particular demand shall state that the production, inspection, and related activity demanded will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party…will be included in the production.”

The parties will be ordered to meet and confer with respect to entering a protective order, and to use the Stipulated Confidentiality Order Form provided by the Los Angeles Superior Court as a model. The parties will be ordered to provide to the Court within five days a redlined or compare copy of the proposed order as compared to the Stipulated Confidentiality Order Form, as required by the model, and the order will be entered by the Court as appropriate.

“Objection vague and ambiguous. Without waiving this objection, Propounding Party is in possession of the CC&Rs. They are also attached as Exhibit H to the Verified Complaint. Nothing further will be provided based upon the Responding Party's understanding of what is being requested. In addition, Responding Party is providing the letter dated May 14, 2020 which Responding Party already has from First Service Residential (formally known as Merit Property Management).”

The motion argues that the request seeks discoverable information in connection with the claim in Van Richter’s cross-complaint that the Excelsior HOA has been failing to provide or restricting services to Van Richter, and that the objection that the request is vague and ambiguous is being used to abuse the discovery process. The motion also argues that cross-defendant should be ordered to provide a Code-compliant response.

The opposition argues that the request is overly broad and vague because it is unclear whether Van Richter is seeking emails or other types of communications that relate to services offered, and it is difficult to determine what Van Richter references as “services.” The opposition also argues that Van Richter failed to properly meet and confer with respect to this request because he failed to respond to meet and confer correspondence in which Excelsior HOA pointed out that the request was vague and urged Van Richter to specify his request, but simply filed this motion.

There is also a vague argument that if the request calls for communications about received packages, this would be unduly burdensome as it would necessitate significant effort on Excelsior HOA’s part to gather all such communications. The declarations submitted in support of the opposition do not mention any such burden, or specify the efforts required, and it is generally the burden of the party asserting an overbreadth or burdensome objection to justify it in detail. See West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 417-418; (“objection based upon burden must be sustained by evidence showing the quantum of work required”); Mead Reinsurance Co. v. Superior Court (1986) 188 Cal.App.3d 313, 318 (demand held “oppressive” where declarations showed over 13,000 claims would have to be reviewed, requiring 5 adjusters working full time for six weeks each).

The objections are not well-founded here, as it is clear from the request that all documents or communications would include emails, and it is also clear by reference to the cross-complaint, that Van Richter is alleging that services provided by the Excelsior HOA under the CC&Rs, and for which homeowners are charged, were cancelled or withheld from cross-complainant Van Richter, and he is entitled to documents which reflect the provision, non-provision or cancellation of such services since the dispute between the parties arose. The cross-complaint specifies the monthly sum being charged by Excelsior HOA for services to the homeowners, and alleges that these services, including residential services such as onsite property management, concierge, janitorial, engineering and security, are not being provided. The request is not vague under the circumstances, and Excelsior HOA has failed to support any overbreadth objections. The objections are accordingly overruled.

It is also not a proper response to state that cross-complainant already has certain documents, such as the CC&Rs, as cross-complainant is entitled to all documents responsive to this particular request in the possession, custody or control of cross-defendant, regardless of whether the requesting party already has a copy, and regardless of whether he has been provided such a document in response to other discovery. This result would be particularly critical here, as the Excelsior HOA would have better access to CC&R documents which have been in place in possibly various versions over the applicable period when services were or were not provided.

This leaves the issue of monetary sanctions, which are sought by both sides. CCP § 2031.310 (h) provides that the 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.”

The moving party does not seek sanctions under this provision, however, but pursuant to CCP sections 2023.030, and 2031.300(c). As noted above, CCP section 2031.300 pertains to motions to compel responses to document demands where no timely responses were served, which is not the case here, so that authority does not authorize the imposition of sanctions.

“The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction 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.”

“A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.”

The Court in its discretion has reluctantly considered the motion, despite moving party’s failure to comply with CRC Rule CRC Rule 3.1345(a)(3) (“Any motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement,” and specifying that “[t]he motions that require a separate statement include a motion…(3) To compel further responses to a demand for inspection of documents or tangible things;…”) Moving party is cautioned that the Court in the future may refuse to consider motions not made in conformity with the procedures, rules and statutes governing this litigation.

Plaintiff and Cross-Defendant Excelsior at the Americana at Brand Homeowners’ Association is ordered to serve further verified responses to Defendant Paul Van Richter’s Request for Production of Documents, Set One, Requests Nos. 1 and 3, without objection, and to permit inspection and copying, within thirty days. The responses must provide all information requested, and must fully comply with CCP §2031.220, including for each request a statement that responding party will comply with the particular demand, and a statement that the production, inspection, and related activity demanded will be allowed in whole, and that all documents or things in the demanded category that are in the possession, custody, or control of responding party will be included in the production. Further responses are to be without objection, as the Court has considered the objections asserted, and finds they are without merit, and objections are OVERRULED.

However, to address the concern that material privileged as to third party disclosure be subject to protection, the parties are ordered to meet and confer with respect to entering a protective order, and to use the Stipulated Confidentiality Order Form provided by the Los Angeles Superior Court as a model. The parties are ordered to provide to the Court within five calendar days a redlined or compare copy of the proposed order as compared to the Stipulated Confidentiality Order Form, as required by the model, and the order will be entered by the Court as appropriate.

Plaintiff and Cross-Defendant Excelsior at the Americana at Brand Homeowners’ Association is ordered to serve further verified responses to Defendant Paul Van Richter’s Request for Production of Documents, Set One, Request Nos. 10, without objection, and to permit inspection and copying, within thirty days. The response must provide all information requested, and must fully comply with CCP §2031.220, including a statement that responding party will comply with the particular demand, and that the production, inspection, and related activity demanded will be allowed in whole, and that all documents or things in the demanded category that are in the possession, custody, or control of responding party will be included in the production. Further responses are to be without objection, as the Court has considered the objections asserted, and finds they are without merit, and objections are OVERRULED. The Court does not find acceptable a response which indicates the propounding party is already in possession of responsive documents.

Please make arrangement in advance if you wish to appear via LACourtConnect/Microsoft Teams by visiting www.lacourt.org to schedule a remote appearance. Please note that LACourtConnect/Microsoft Teams offers free audio and video appearance. Counsel and parties (including self-represented litigants) are encouraged not to personally appear. With respect to the wearing of face masks, Department D recognizes that currently, the Los Angeles Department of Public Health strongly recommends masks indoors, especially when interacting with individuals whose vaccination status is unknown; for individuals who have a health condition that puts them at higher risk for severe illness; individuals who live with someone who is at higher risk; and for individuals who are around children who are not yet eligible for vaccines. In accordance with this guidance, it is strongly recommended that anyone personally appearing in Department D wear a face mask. The Department D Judge and court staff will continue to wear face masks. If no appearance is set up through LACourtConnect/Microsoft Teams, or otherwise, then the Court will assume the parties are submitting on the tentative.