Judge: Ronald F. Frank, Case: 20TRCV00751, Date: 2022-10-28 Tentative Ruling
Case Number: 20TRCV00751 Hearing Date: October 28, 2022 Dept: 8
Tentative Ruling
HEARING DATE: October 28, 2022
CASE NUMBER: 20TRCV00751
CASE NAME: Jennifer Maglaya; Derek Kahle v. 1833 Rockefeller Lane Homeowners Association, et al.
MOVING PARTY: Defendant, 1833 Rockefeller Lane Homeowners Association
RESPONDING PARTY: Plaintiff, Jennifer Maglaya
TRIAL DATE: 3/15/23 (subject to pending motion to continue)
MOTION: (1) Motion to Compel Further Responses to Form Interrogatories, Set Two
(2) Motion to Compel Responses to Requests for Admission, Set One
(3) Request for Sanctions
Tentative Rulings: Defendant’s Motion to Compel Responses to Requests for Admission, Set One is GRANTED. Additionally, Defendant’s Motion to Compel Responses to Form Interrogatories, Set Two is GRANTED. Sanctions are awarded in the amount of $3,000.
I. BACKGROUND
A. Factual
Plaintiffs Jennifer Maglaya and Derek Kahle filed this action against Defendant 1833 Rockefeller Lane Homeowners Association (“Defendant”) on October 19, 2020. Following a Demurrer and Motion to Strike Portions of the FAC, Plaintiff Derek Kahle was dismissed from the lawsuit. Plaintiff Jennifer Maglaya’s (“Plaintiff”) three remaining theories against Defendant included: (1) Breach of Governing Documents; (2) Breach of Fiduciary Duties; and (3) Breach of the Implied Covenant of Good Faith and Fair Dealing. Defendant filed an Answer on June 4, 2021.
On June 16, 2022, Defendant served 35 Requests for Admission along with Form Interrogatories, Set 2, upon Plaintiff. On July 19, 2022, Plaintiff served her responses to Form Interrogatories, Set 2. Upon receipt of Plaintiff’s responses, Defendant observed that Plaintiff’s response to Form Interrogatory 17.2 was nothing more than objections, which was consistent with her objections to the 35 Requests for Admission.
On August 2, 2022, Defendant sent a meet and confer correspondence via email to Plaintiff’s counsel notifying Plaintiff’s counsel that unless Plaintiff withdrew her objections and provided full and complete Code-compliant requests to Form Interrogatory 17.1 by August 15, 2022, Defendant would file a motion to compel further response and would seek monetary sanctions. On August 15, 2022, Plaintiff’s counsel requested two additional weeks to address the discovery dispute, making the responses due on or before August 29, 2022. Plaintiff’s counsel never provided Plaintiff’s further responses, never asked for additional time to address the discovery dispute, nor communicated in any fashion whatsoever with defense counsel.
B. Procedural
Plaintiff filed the instant Motion to Compel Responses to Form Interrogatories, Set One, Motion to Deem Objections Waived, and Request for Sanctions (the “Motion”) on September 12, 2022. Defendant filed an opposition on October 12, 2022. A Reply was filed October 21, 2022.
II. MEET AND CONFER
¿ A Motion Compelling Further Responses requires an opportunity to meet and confer. (Cal. Code Civ. Proc., § 2033.290 subd. (b).) Upon review of the Declaration of¿Sara L. Rasmussen, it appears that¿Defendant met their obligation to meet and confer to bring the instant motions with a meet and confer letter sent to Plaintiff’s counsel via email on August 2, 2021.¿ (Decl. of Sara L. Rasmussen, ¶ 4, Exhibit C.) Plaintiff argues that the Meet and Confer attempt was wholly lacking and did not rise to the level of a serious or good faith attempt as required by law (Decl. of Blake S. Slater.) However, the Court finds that¿Defendant met their obligation to meet and confer. Plaintiffs’ Opposition states that it anticipates serving supplemental responses prior to the hearing which might render moot the motion to compel. As of one week before the hearing, per Defendants’’ Reply brief, no such supplemental responses have been received.
III. ANALYSIS
A. Requests for Admission
Defendant moves for an order compelling Plaintiff’s further response to all 35 Requests for Admissions. Code of Civil Procedure § 2033.290(a) provides that a party may bring a motion to compel further responses to requests for admission where the responding party provides evasive or incomplete responses, or the objections are too general or without merit. The propounding party must submit a declaration under Code Civ. Proc., § 2016.040 stating facts demonstrating a good faith and reasonable effort to informally resolve all issues raised by the motion. (Cal. Code Civ. Proc., §2033.290(b).) The motion must be brought within 45 days of service of verified responses or supplemental verified responses. (Cal. Code Civ. Proc., §2033.290(c).) Sanctions are mandatory against the party or attorney who unsuccessfully makes or opposes a motion to compel further unless the party acted with substantial justification or the circumstances make imposition of sanctions unjust. (Cal. Code Civ. Proc., §2033.290(d).) Additionally, if a party fails to obey an order compelling further response to the requests for admission, the Court may deem those requests admitted and impose monetary sanctions. (Code of Civ. Proc., § 2033.290(e).)¿
Here, Plaintiff did not admit nor deny any of Defendant’s Requests for Admission. Instead, Plaintiff merely objected to each and every one of the Requests for Admission with almost the exact boilerplate objections. “In [Cembrook, Chodos, and Burke] the defendant refused to either admit or deny, thereby thwarting the purpose of section 2033 of the Code of Civil Procedure to set at rest issues which the party to whom requests for admission are addressed does not in good faith intend to contest at the trial.” (Holguin v. Superior Ct. (1972), 22 Cal.App.3d 812, 820 [distinguishing Holguin from seminal cases where objections were raised in discovery].) Plaintiff’s Responses to all of Defendant’s Request for Admissions thwart the purpose of Cal. Code Civ. Proc. §2033 and, as such, a Request for Further responses to the RFAs must be GRANTED.
The Court notes the references in the Opposition papers to previous discovery motions, previous discovery responses, and alleged stonewalling by Defendant in putting up non-party Board members for deposition Plaintiff is requesting. While useful in providing the Court with context, the assertion of stonewalling by Defendant suggests that the reason for the failure to provide substantive responses to the RFAs and paired form interrogatories, and for the lack of no substantive responses even as of a week before the hearing on this discovery motion, is retaliatory. To the extent a party believes that the quantity of discovery is unduly burdensome or excessive, that party has a right to bring a motion for protective order. To the extent that a party seeks assistance form the Court is scheduling the timing and sequence of different forms of discovery, Code of Civil Procedure § 2019.020(b) authorizes such a motion. But without such a motion, California law provides that “the methods of discovery may be used in any sequence, and the fact that a party is conducting discovery, whether by deposition or another method, shall not operate to delay the discovery of any other party.” (Id. subsection (a).) The inference is raised that Plaintiff is not heeding this quoted provision of the Discovery Act.
B. Form Interrogatories
Defendant moves for an order compelling Plaintiff’s further response to Form Interrogatory 17.1.
“Any party may obtain discovery . . . by propounding to any other party to the action written interrogatories to be answered under oath.” (Code Civ. Proc., § 2030.010, subd. (a).) “The party to whom interrogatories have been propounded shall respond in writing under oath separately to each interrogatory by any of the following: (1) An answer containing the information sought to be discovered[;] (2) An exercise of the party's option to produce writings[;] (3) An objection to the particular interrogatory.” (Code Civ. Proc., § 2030.210, subd. (a).) “On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (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[;] (3) An objection to an interrogatory is without merit or too general.” (Code Civ. Proc., § 2030.300, subd. (a).)
A propounding party’s motion for an order compelling a further response must be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2030.300, subd. (b)(1).) A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc. § 2016.040.) A propounding party’s motion for an order compelling a further response must additionally be accompanied by a separate statement. (Cal. Rules of Court, Rule 3.1345, subd. (a).) “Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits.” (Code Civ. Proc., § 2030.220, subd. (a).) “If an interrogatory cannot be answered completely, it shall be answered to the extent possible.” (Code Civ. Proc., § 2030.220, subd. (b).) “If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.” (Code Civ. Proc., § 2030.220, subd. (c).)
Code of Civil Procedure section 2023.030, subdivision (a) provides, in pertinent part, that the court may impose a monetary sanction on a party engaging in the misuse of the discovery process to pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. A misuse of the discovery process includes failing to respond or submit to an authorized method of discovery. (Code Civ. Proc., § 2023.010, subd. (d).)¿¿
Here, the Court has analyzed Plaintiff’s response to Form Interrogatory 17.1. Plaintiff is required to serve a response that includes information for each subpart. Instead, Plaintiff provide only objections in their Response to Form Interrogatory 17.1. As such, the Court finds Plaintiff did not respond to Request for Response for Form Interrogatory 17.1 completely and the motion is GRANTED.¿
C. Sanctions
Defendant has requested that this Court impose monetary sanctions against Plaintiff and its counsel. Code of Civil Procedure section 2023.030, subdivision (a) provides, in pertinent part, that the court may impose a monetary sanction on a party engaging in the misuse of the discovery process to pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. A misuse of the discovery process includes failing to respond or submit to an authorized method of discovery. (Code Civ. Proc., § 2023.010, subd.(d).)¿¿Sanctions are mandatory for a party making or opposing a motion, except when the party making or opposing the motion is determined by the Court to have been acting with substantial justification, or that other circumstances would render the imposition of sanctions unjust. (Code Civ. Proc., § 2031.300, subd. (c).) Under the Civil Discovery Act, the Court is only entitled to impose monetary sanctions in the amount of “reasonable expenses, including attorney’s fees, incurred by anyone as a result of” the misuse of discovery. (Code Civ. Proc., § 2023.030, subd. (a).) The purpose of discovery sanctions is “not to provide a weapon for punishment, forfeiture and the avoidance of a trial on the merits, but to prevent abuse of the discovery process and correct the problem presented.” (Parker v. Wolters Kluwer U.S., Inc. (2007) 149 Cal. App. 4th 285, 301.) Consequently, “[t]he trial court cannot impose sanctions for misuse of the discovery process as a punishment.” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal. App. 4th 967, 992.)¿
Here, Defendant requests sanctions against Plaintiff and Plaintiff’s counsel in the sum of $2,820.00 for sanctions of Plaintiff’s failure to respond to Requests for Admission, and $1,440.00 for sanctions involved in Plaintiff’s failure to respond to Form Interrogatory 17.1. No substantial justification is raised by Defendant’s opposing papers for failing to provide substantive responses. The Court thus AWARDS Defendant discovery sanctions against Plaintiff’s counsel in the amount of $3,000 representing hours worked and filing fees.
¿
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Tentative Ruling
HEARING DATE: October 28, 2022
CASE NUMBER: 20TRCV00751
CASE NAME: Jennifer Maglaya; Derek Kahle v. 1833 Rockefeller Lane Homeowners Association, et al.
MOVING PARTY: Defendant, 1833 Rockefeller Lane Homeowners Association
RESPONDING PARTY: Plaintiff, Jennifer Maglaya
TRIAL DATE: None set
MOTION: (1) Motion to Continue Trial and All Related Dates
Tentative Rulings: No Tentative; Court to conduct argument after hearings on the Discovery Motiosn set for hearing on the same date as the Continue Trial Motion
I. BACKGROUND
A. Factual
Plaintiffs Jennifer Maglaya and Derek Kahle filed this action against Defendant 1833 Rockefeller Lane Homeowners Association (“Defendant”) on October 19, 2020. Following a Demurrer and Motion to Strike Portions of the FAC, Plaintiff Derek Kahle was dismissed from the lawsuit. The three remaining claims in Plaintiff Jennifer Maglaya’s (“Plaintiff”) FAC included: (1) Breach of Governing Documents; (2) Breach of Fiduciary Duties; and (3) Breach of the Implied Covenant of Good Faith and Fair Dealing. Defendant filed an Answer on June 4, 2021.
This litigation pertains to various disputes between members of a three-unit homeowners association located at 1833 Rockefeller Lane in Redondo Beach, California. On October 19, 2020, Plaintiffs Jennifer Maglaya and Derek Kahle filed a first amended complaint (“FAC”) against Defendant 1833 Rockefeller Lane Homeowners Association (“HOA”). Following a Demurrer and Motion to Strike Portions of the First Amended Complaint, Plaintiff Derek Kahle was dismissed from the lawsuit as were several causes of action, leaving Plaintiff Jennifer Maglaya’s three remaining theories against Defendant 1833 Rockefeller for Breach of the Governing Documents, Breach of Fiduciary Duties, and Breach of the Implied Covenant of Good Faith and Fair Dealing. Defendant 1833 Rockefeller filed its Answer to the FAC on June 4, 2021.
This case was initially set for trial on October 12, 2022. Following the resolution of the pleadings, the parties embarked on discovery. Defendant claims it initially faced roadblocks in attempting to subpoena records identified by Plaintiff Maglaya, resulting in Defendant seeking a continuance of the trial via ex parte application on June 7, 2022. The Court granted the request and continued the trial to its current date of March 15, 2023. The Court also set a post-mediation status conference for October 14, 2022 at that hearing.
The parties to the litigation have conducted basic written discovery, but a great deal of discovery is now subject to various discovery motions the parties have filed and which are set for hearing on the same date as this motion, October 28, 2022. In addition, although the parties were required to mediate this case, because pertinent discovery was not completed, the parties have not conducted a mediation to date.
B. Procedural
Based on the foregoing, on October 3, 2022, Defendant requested that the Court continue the trial in this action from March 15, 2023 to an agreeable date in August 2023 or thereafter as well as continue all trial-related dates. On October 17, 2022, Plaintiff filed an opposition. On October 21, 2022, Defendant filed a reply.
II. MOVING PARTY’S GROUNDS FOR THE DEMURRER
Defendants’ Motion to Continue trial is based on the grounds that this case will not be ready for trial by March 15, 2023 because of the fact that a great deal of the discovery is subject to discovery motions, roadblocks of subpoenaing records,
¿¿
¿
III. ANALYSIS
Pursuant to California Rules of Court, rule 3.1332, subdivision (a), “[t]o ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain.” Under California Rules of Court, rule 3.1332, subdivision (b), “[a] party seeking a continuance of the date set for trial, whether contested or uncontested or stipulated to by the parties, must make the request for a continuance by a noticed motion or an ex parte application under the rules in chapter 4 of this division, with supporting declarations. The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered.”
California Rules of Court, rule 3.1332, subdivision (c) states that “[a]lthough continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance.” California Rules of Court, rule 3.1332, subdivision (d) sets forth factors that are relevant in determining whether to grant a continuance.
California Code of Civil Procedure section 2024.050 allows a court to grant leave to complete discovery proceedings. In doing so, a court shall consider matters relevant to the leave requested, including, but not limited to: (1) the necessity of the discovery, (2) the diligence in seeking the discovery or discovery motion, (3) the likelihood of interference with the trial calendar or prejudice to a party, and (4) the length of time that has elapsed between previous trial dates. (Code Civ. Proc. § 2024.050.)
Here, Defendants move for a Court order continuing the March 15, 2023 trial date to an agreeable date in August 2023 or any date thereafter that is convenient for the court, and to reset all related deadlines based on the new trial dates. Defendant argues that there is good cause for the continuance because
1. There is still a significant amount of discovery required before this case should proceed to trial;
2. Considerable discovery is now subject to various discovery motions;
3. Because pertinent discovery was not completed, the parties have not conducted a mediation to date; and
4. Defendant requests sufficient time before trial to file and hear a dispositive motion.
In opposition, Plaintiff asserts that good cause does not exist to continue the trial date because: (a) Defendant’s delay and lack of diligence in conducting discovery is not good cause to continue trial; (b) Defendant was previously granted a trial continuance; and (c) a trial continuance will prejudice Plaintiff due to forecast additional litigation costs inherent in a further delay of trial. Plaintiff also asserts that they have been diligent with their efforts to conduct discovery and defendant has not.
The Court will hear argument on this 2nd defense motion to continue trial after hearing the Discovery Motions on calendar also on October 28, 2022.
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Tentative Rulings
HEARING DATE: October 28, 2022
CASE NUMBER: 20TRCV00751
CASE NAME: Jennifer
Maglaya; Derek Kahle v. 1833 Rockefeller
Lane Homeowners Association,
et al.
MOVING PARTY: Plaintiff, Jennifer Maglaya
RESPONDING PARTY: Defendant, 1833 Rockefeller Lane Homeowners Association
TRIAL DATE: 3/15/23 (subject to pending motion
to continue)
MOTION: (1) Motion to Compel Deposition
of Non-Party Board Members
(2)
Request for Sanctions
(x) Further Tentative Ruling on Motion to
Compel Site Inspection follows this Tentative Ruling
Tentative Rulings: (1) Plaintiff’s
Ex Parte Application for an Order to Compel Defendant’s Board Members
depositions, or alternatively, to shorten time on the noticed Motion to Compel,
is DENIED;
(2) The
cross-requests for monetary sanctions are DENIED;
(3) The parties shall meet and confer, during a
recess in the hearings on calendar, to agree to a schedule for the Board member
depositions to be conducted on a date no later than 1/13/23, which the Court will
then order before the October 28 hearings on calendar are concluded
I. BACKGROUND
A. Factual
Plaintiffs Jennifer
Maglaya and Derek Kahle filed this action against
Defendant 1833 Rockefeller Lane Homeowners Association
(“Defendant”) on October 19, 2020. Following a Demurrer and Motion to Strike
Portions of the FAC, Plaintiff Derek Kahle was dismissed from the lawsuit.
Plaintiff Jennifer Maglaya’s (“Plaintiff”) three remaining theories against
Defendant included: (1) Breach of Governing Documents; (2) Breach of Fiduciary
Duties; and (3) Breach of the Implied Covenant of Good Faith and Fair Dealing.
Defendant filed an Answer on June 4, 2021.
B.
Procedural
On September 28, 2022, Plaintiff
filed the instant ex parte application for an order on Motion to Compel the
Depositions of two non-party HOA Board members, Brian Ihashi and Beverely
Beckwith and Request for Sanctions, or alternatively to shorten time for the hearing
of such a motion (the “Motion”). Plaintiff claims that Defendant has not provided
dates for depositions since November 2021 and have failed to appear for its
scheduled depositions on four occasions since December 2021. As such, Plaintiff
filed the instant motion requesting the Court’s help to ensure the Defendants
will appear for their depositions prior to the post-mediation conference and
before Defendants continue to engage in discovery. That cannot happen because the
post-mediation status conference has now been continued to October 28, 2022,
the same date as this motion is scheduled to be heard after reassignment of this
case to Inglewood Dept. 8. On September
28, 2022, Defendant filed an opposition.
The Opposition papers essentially
concede that Defendants have objected to every notice of deposition served by Plaintiff
for these two Board members’ depositions, either because the dates were selected
unilaterally or because of claimed scheduling conflicts of the witnesses or of
defense counsel. The Opposition also
contends that defense counsel has attempted to reach bilateral agreement on scheduling
these depositions, including after the subject motion was filed. It is readily apparent that counsel are
having difficulty communicating effectively with each other, or at least
cooperating with each other, which is not uncommon in suits by homeowners
against their HOA. But that difficulty
is about to end. The Court will
intervene and ensure that mutually agreeable dates for these depositions will be
set before the October 28, 2022 hearings in this case are concluded. The Court ORDERS that the date or dates for those
two depositions will be set by counsel meeting and conferring during a recess
in the hearings on October 28, and such schedule reported back by counsel to the
Court will be so ordered by the Court. These
deposition date or dates will be set regardless of whether the parties have scheduled
their mediation, and regardless of whether the witnesses can be reached during the
October 28 hearings.
The Court DENIES the ex parte
application and the motion to compel deposition as being mooted by the Court’s Order
above, and the Court DENIES monetary sanctions which were requested by each
side against the other.
Tentative Ruling
HEARING DATE: October
28, 2022
CASE NUMBER: 20TRCV00751
CASE NAME: Jennifer Maglaya; Derek Kahle v. 1833 Rockefeller Lane Homeowners
Association, et al.
MOVING PARTY: Defendant,
1833 Rockefeller Lane HOA
RESPONDING PARTY: Plaintiff, Jennifer Maglaya
TRIAL DATE: 3/15/23
(subject to pending motion to continue)
MOTION:
(1) Motion to
Compel Further Responses to Defendant’s Demand for Inspection of Plaintiff’s
Property
(2) Request
for Sanctions
Tentative Rulings: (1) Defendant’s Motion to Compel
Responses to Demand for Inspection of Plaintiff’s Property is GRANTED.
Sanctions are DENIED
I. BACKGROUND
A. Factual
The allegations
of this matter are set forth in the previous Tentative Ruling.
As material to this motion, Plaintiff
claims that on August 31, 2018, a toilet supply line in her unit burst causing
water damage to the first floor of her property. She further contends that the
damage to her unit still has not been addressed, allegedly resulting in
continuing property damage, water damage, mold and effecting her health. Based
on these allegations, Defendant wanted to conduct an inspection of her property
so that its experts could investigate the potential cause of the water loss, alleged
mold, and other damages Plaintiff attributes to her unit.
According to Defendant, in May
2022, defense counsel began requesting dates to coordinate the inspection of
Plaintiff’s property. (Decl. of Sara L. Rasmussen.) After over three months of allegedly
receiving no cooperation from counsel, Defendant unilaterally scheduled the
inspection for September 29, 2022, at 10:00 a.m. On September 23, 2022,
Plaintiff electronically served an objection to the inspection demand, claiming
that the date for the inspection was unilaterally chosen by the Defendant and
was not convenient for Plaintiff. Ironically, Defendant had objected to the non-party
Board member depositions for precisely the same reasons, i.e., that the dates
had been unilaterally set by opposing counsel.
On
September 26, 2022, Defendant received the objection and emailed Plaintiff’s
counsel and asked for potential dates to reschedule the inspection (Id.,
Exhibit C.) To date, Plaintiff’s counsel has not replied nor provided any
potential dates for inspection. Nor is
any such date offered in Plaintiff’s Opposition papers.
II. MEET AND CONFER
A Motion Compelling Further
Responses requires an opportunity to meet and confer. (Cal. Code Civ. Proc., §
2033.290 subd. (b).) Upon review of the Declaration of¿Sara L. Rasmussen, it
appears that¿Defendant has sought a date for the property inspection for over
five months. Once counsel felt she would receive no cooperation, she
unilaterally scheduled the inspection for September 29, 2022, providing
Plaintiff and her counsel over one month to notify defense counsel if the date
was not convenient. Plaintiff’s counsel waited 5 days before the scheduled
inspection and merely objected to it, failing to provide dates that would work
better for Plaintiff and/or Plaintiff’s counsel. Upon receipt of the objection, defense counsel
communicated with Plaintiff’s counsel, asking that a day for the inspection be
provided so that the inspection could be placed back on the calendar. This
Court finds that Defendant has met its obligation to meet and confer.
III. ANALYSIS
“On receipt of a response to
a demand for inspection… the 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…” (Cal. Civ. Proc., §
2031.310(a).) The moving party has the burden to “set forth specific facts
showing ‘good cause’ justifying the discovery sought by the inspection demand.”
(Cal. Civ. Proc. § 2031.210(b)(1).) To establish such “good cause,” the moving
party must make a fact-specific showing of “relevance.” (Kirkland v.
Superior Court (2002) 95 Cal.App.4th 92, 98.) Upon a showing of “good
cause,” the burden shifts to Defendants to justify any objections. (Ibid.)
“If a party filing a response to a demand for inspection…thereafter
fails to permit the inspection, copying, testing, or sampling in accordance
with that party’s statement of compliance, the demanding party may move for an
order compelling compliance.” (Cal. Civ. Proc., § 2031.320(a).)
Here, the Court finds that Defendant properly moved for a
motion to compel further responses to demand for inspection of Plaintiff’s
property. As noted above, Defendant attempted sought a response from Plaintiff
for over five months regarding when an acceptable time would be to inspect
Plaintiff’s property. After receiving no response, Defendant filed this motion.
This Court further finds that Defendant has satisfied the requirements under
the relevant California Code of Civil Procedure statutes. As such, the Court
GRANTS Defendant’s motion to compel further responses to demand for inspection.
The Court also ORDERS counsel to meet
and confer to select a mutually agreeable date for the site inspection. The meeting and conferring shall occur during
a recess in the hearings on October 28, and such schedule reported back by
counsel to the Court will be so ordered by the Court. The inspection date will be set regardless of
whether the parties have scheduled their mediation, and regardless of whether
the defense expert witnesses or the Plaintiff herself can be reached during the
October 28 hearings.
Sanctions
Under the totality of the circumstances, the Court DENIES the
motion’s request for monetary sanctions.
However, the circumstances of this motion and several other motions are
beginning to form a pattern that the Court intends to break so that this case
may be discovered by both sides and prepared for a mediation and trial if
necessary. ¿
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