Judge Randy Rhodes, Case 21CHCV00490 2022-12-16 Tentative Ruling

RELIEF REQUESTED: An order compelling Defendant to provide supplemental responses and all responsive documents to Plaintiff’s Request for Production of Documents (“RFPs”), Set Two (request Nos. 57–71.) Plaintiff also requests monetary sanctions against Defendants in the amount of $2,661.26.[1]

TENTATIVE RULING: Plaintiff’s motion is granted, and Defendant is ordered to provide supplemental responses to Plaintiff’s second set of RFPs within 30 days of the date of this hearing. The Court imposes sanctions against Defendant and his counsel in the amount of $800.00.

This action arises out of a claim by a mother, Plaintiff Teresa J. Apolinar (“Plaintiff”), that her son, Defendant Jorge Apolinar (“Defendant”), defrauded her into transferring the title to certain real property (2 parcels in Los Angeles County and 1 parcel in Kern County) to him.

On 6/30/21, Plaintiff filed this action against Defendant for: (1) Quiet Title; (2) Financial Elder Abuse; (3) Breach of Fiduciary Duty; (4) Constructive Fraud; (5) Intentional Misrepresentation; (6) Negligent Misrepresentation; (7) Conversion; (8) Cancellation of Instruments; (9) Constructive Trust and (10) Accounting. On 3/1/22, Plaintiff filed her operative first amended complaint (“FAC”) against Defendant, alleging the same causes of action, with the additional cause of action for Resulting Trust.

On 9/7/22, Plaintiff served her Requests for Production of Documents (“RFPs”), Set Two, on Defendant. On 10/10/22, Defendant served his responses.

On 10/24/22, Plaintiff filed the instant motion. No opposition has been filed to date.

A propounding party may move for an order compelling further response to a discovery request if it decides that: “(1) A statement of compliance with the demand is incomplete”; “(2) A representation of inability to comply is inadequate, incomplete, or evasive”; or “(3) An objection in the response is without merit or too general.” (Code Civ. Proc. § 2031.310, subd. (a).)

Here, Plaintiff seeks to compel additional responses to her entire second set of RFPs (request Nos. 57–71), which relate to communications and financial information about the subject properties. (Exhibit 1 to Decl. of Ryan Jackman.) Plaintiff argues that the motion is warranted because Defendant unjustifiably failed to respond to the requests as required by statute.

A motion to compel further discovery responses must be accompanied by a meet and confer declaration stating “facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc. §§ 2031.310, subd. (b)(2); 2016.040.)

Here, on 10/17/22, Plaintiff’s counsel emailed Defendant’s counsel an attempt to meet and confer letter on the issues raised in the instant motion. (Jackman Decl., ¶ 4.) Defendant’s counsel has not replied to this message to date. (Ibid.) Accordingly, Plaintiff has satisfied the preliminary meet and confer requirement under Code of Civil Procedure section 2031.310, subdivision (b)(2).

A responding party must respond to each propounded discovery request with either a statement of compliance, a representation that the party lacks the ability to comply, or an objection to the demand. (Code Civ. Proc. § 2031.210, subd. (a).) “General” or “blanket” objections to a request for production of documents are improper and sanctionable. (Code Civ. Proc. § 2031.210, subd. (c); Scottsdale Ins. Co. v. Superior Court (1997) 59 Cal.App.4th 263, 275.)

If part of the response includes an objection to the demand, it must also include a statement of compliance or noncompliance with the request. (Code Civ. Proc. § 2031.240, subd. (a).) Additionally, the response must (1) identify the particular document that falls within the category of the request to which the objection is being made, and (2) expressly set forth the extent of, and specific ground for, the objection. (Id., subd. (b).)

Plaintiff brings this motion arguing, in part, that Defendant’s objections to her second set of RFPs are without merit. (Pl.’s Mot., 4:2–3; Code Civ. Proc. § 2031.310, subd. (a).) Plaintiff objected to each request propounded as follows:

“Defendant objects to this Request because the Request is vague, overbroad, unlimited as to time and not reasonably calculated to lead to the discovery of admissible evidence. Defendant further objects on grounds of financial privacy.”

Defendant’s responses to request Nos. 60, 61, 63, 64, 66, 67, 69, and 70 also include objections on the basis of “tax return privilege.”

“A party may not deliberately misconstrue a question for the purpose of supplying an evasive answer … [W]here the question is somewhat ambiguous, but the nature of the information sought is apparent, the proper solution is to provide an appropriate response.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783.)

As Plaintiff observes, here, “Defendant makes no attempt to even respond” to the requests objected to, nor does Defendant address specific ambiguities in any of the “vague” requests. (Pl.’s Separate Stmt.) Accordingly, Defendant’s vagueness objections lack merit because Defendant has failed to “set forth clearly the extent of, and the specific ground for, the objection.” (Code Civ. Proc. § 2031.240, subd. (b)(2).)

Plaintiff’s instant motion does not address Defendant’s objections on the grounds that the propounded requests are overbroad and “unlimited as to time.” Nevertheless, as with Defendant’s vagueness objections, the responses fail to “set forth clearly the extent of, and the specific ground” for his objections to the scope of the requests. (Code Civ. Proc. § 2031.240, subd. (b)(2).) Accordingly, Defendant’s objections on these bases lack merit.

Discovery is relevant if it is admissible as evidence, or “appears reasonable calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc. § 2017.010.) “Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action.” (Ibid.)

Here, Plaintiff argues that Defendant’s objections to Plaintiff’s second set of RFPs on the basis that they seek irrelevant matter are meritless because “these requests seek facts, witnesses, and documents regarding the tracing of funds that Defendant has [allegedly] diverted from Plaintiff’s rental property.” (Pl.’s Mot., 4:16–18.) The Court agrees with Plaintiff, and finds that the financial documents and communications she seeks are relevant to her claims against Defendant, which include financial elder abuse, misrepresentation, breach of fiduciary duty, constructive fraud, and conversion. Accordingly, Defendant’s objections to the requests on the basis of relevance fail.

“The right to privacy under article I, section 1 of the California Constitution ‘extends to one's confidential financial affairs.’ … This right embraces confidential financial information in ‘whatever form it takes, whether that form be tax returns, checks, statements, or other account information.’” (Overstock.com, Inc. v. Goldman Sachs Group, Inc. (2014) 231 Cal.App.4th 471, 503.) In order to assert this privacy interest, the burden is on the party asserting the interest “to show that their privacy interests are so serious that they outweigh the interests of the [requesting] party.” (Williams v. Superior Court (2017) 3 Cal.5th 531.)

Here, while Defendant objects to each of Plaintiff’s requests in her second set of RFPs, he makes no further showing why his right to financial privacy is so serious as to outweigh Plaintiff’s interest in obtaining the requested documents. As with all his other objections, Defendant’s responses fail to “set forth clearly the extent of, and the specific ground for” for his objection to Plaintiff’s requests on this ground. (Code Civ. Proc. § 2031.240, subd. (b)(2).) Accordingly, Defendant’s objections on the basis of financial privacy lack merit.

The taxpayer privilege protects against the forced disclosure of tax returns and the information contained in those returns in civil discovery proceedings. (Siri v. Sutter Home Winery, Inc. (2019) 31 Cal.App.5th 598, 605.) “If an objection is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.” (Code Civ. Proc. § 2031.240, subd. (c)(1).)

Here, Defendant’s responses do not mention any factual information to support his claims of taxpayer privilege, nor has Defendant produced a privilege log. Additionally, as with all his other objections, Defendant’s responses fail to “set forth clearly the extent of, and the specific ground for” for his objection to Plaintiff’s requests on this ground. (Code Civ. Proc. § 2031.240, subd. (b)(2).) Accordingly, Defendant’s objections to request Nos. 60, 61, 63, 64, 66, 67, 69, and 70 on the basis of taxpayer privilege lack merit.

Accordingly, Defendant’s responses to Plaintiff’s second set of RFPs are not compliant with Code of Civil Procedure sections 2031.210 and 2031.240, and Plaintiff’s motion to compel Defendant’s further responses to request Nos. 57–71 is therefore granted.

“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.” (Code Civ. Proc. § 2031.310, subd. (h).)

Here, Plaintiff requests sanctions in the total amount of $2,661.26 to be imposed on Defendant and his attorney. This amount includes: (1) 5.4 hours of Plaintiff’s attorney’s time working on this motion, at his hourly billing rate of $250.00 per hour;[2] (2) a $61.26 filing fee for the motion; and (3) an anticipated 5 hours of Plaintiff’s attorney’s time reviewing Defendant’s opposition, drafting a reply, and attending this hearing, at his hourly billing rate of $250.00 per hour. (Jackman Decl., ¶¶ 9–11.)

Because no opposition was filed by Defendant, the Court finds it reasonable to award Plaintiff sanctions against Defendant and his counsel in the amount of $800.00, in granting the instant motion.

Plaintiff’s motion is granted, and Defendant is ordered to provide supplemental responses to Plaintiff’s second set of RFPs within 30 days of the date of this hearing. The Court imposes sanctions against Defendant and his counsel in the amount of $800.00.

[1] Plaintiff seems to have stated the incorrect amount requested in her Notice of the instant motion as $5,790.00. (Pl.’s Notice, 2:9.)

[2] Plaintiff’s counsel incorrectly states the attorney fees already incurred by Plaintiff as $3,990.00 instead of $1,350.00. (Jackman Decl. ¶ 10.)