Judge Ronald F. Frank, Case 21TRCV00009 2022-12-15 Tentative Ruling

Judge: Ronald F. Frank, Case: 21TRCV00009, Date: 2022-12-15 Tentative Ruling

Case Number: 21TRCV00009 Hearing Date: December 15, 2022 Dept: 8

Tentative Ruling¿¿

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HEARING DATE: December 15, 2022¿¿

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CASE NUMBER: 21TRCV00009

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CASE NAME: Endless Sunset v. 1900 PCH, LLC, et al.

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MOVING PARTY: Plaintiffs, Endless Sunsets

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RESPONDING PARTY: Respondents, 1900 PHC, LLC; Roth Management Group, LLC; Timothy R. Roth

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TRIAL DATE: None Set.¿

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MOTION:¿ (1) Motion to Compel Further Responses Without Objections to Form Interrogatories, Set No One Against Defendant 1900 PHC, LLC

(2) Motion to Compel Verified Further Responses, Without Objections, to Requests for Production of Documents, Set No. One against Defendant 1900 PHC, LLC

(3) Motion to Compel Further Responses, Without Objections, to Form Interrogatories, Set No. One, Against Defendant Roth Management Group, LLC

Tentative Rulings: (1) Motion to Compel Further Responses Without Objections to Form Interrogatories, Set No One Against Defendant 1900 PHC, LLC is GRANTED

(2) Motion to Compel Verified Further Responses, Without Objections, to Requests for Production of Documents, Set No. One against Defendant 1900 PHC, LLC is CONTINUED to 1/12/23

(3) Motion to Compel Further Responses, Without Objections, to Form Interrogatories, Set No. One, Against Defendant Roth Management Group, LLC is GRANTED.

The Cross-requests for monetary sanctions are CONTINUED for further hearing on January 12, 2023.

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I. BACKGROUND¿¿¿

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A. Factual¿¿¿

Plaintiff, Endless Sunsets, filed a complaint on January 5, 2021 against Defendants 1900 PCH, LLC, Roth Management Group, LLC, Timothy R. Roth, and DOES 1 through 100. The Complaint alleges causes of action for: (1) Violation of Building Standards; (2) Strict Liability; (3) Negligence; (4) Breach of CC&Rs; and (5) Breach of Implied Warranty.

On April 27, 2021, Plaintiff served Form Interrogatories, Set One, Requests for Production of Documents, Set One, (“FROGS”) to Defendant 1900 PCH, LLC; Requests for Production of Documents, Set One, to Defendant 1900 PCH, LLC; and Form Interrogatories, Set One to Defendant Roth Management Group LLC, along with three other requests that are not set for hearing on December 15, 2022..

On May 20, 2021, counsel for Defendants requested a three (3) week extension to June 22, 2021, for Defendants to serve responses. The request was denied in part, Plaintiffs granting only a two-week extension to June 15, 2021, for Defendants to serve their responses, and counsel for Defendants acknowledged the extension being granted. (Declaration of Allison L. Andersen (“Andersen Decl.”), ¶ 4, Exhibit B.)

On June 9, 2021, counsel for Defendants request a two (2) day further extension of time to June 17, 2021, for Defendants to serve responses to Plaintiff’s Form interrogatories, Set One, and Requests for Production of Documents, Set One. On June 10, 2021, Plaintiff’s counsel granted the extension to Defendants to provide their responses by June 17, 2021. (Andersen Decl., ¶ 5, Exhibit C.) The Court sees no indication that a further extension of time to respond was granted past June 17, nor any indication that responses with or without objection were served on or before the last extension expired. While the Opposition demonstrates the frustration of defense counsel in being held on a tight leash, in a case defense counsel believes to lack merit, there were no objections-only responses served before the short extension period had expired nor a motion for protective order served until a week after the extension expired.

On June 24, 2021, Defendant sought a protective order, which was originally set to be heard on December 27, 2021, then advanced and specifically set to October 21, 2021, pursuant to the Court’s Minute Order dated July 15, 2021, but ultimately rescheduled by the Court on its own motion to January 24, 2022. (Andersen Decl., ¶ 6.) On January 3, 2022, counsel for Defendant advised Plaintiff’s counsel that Defendant’s discovery responses were being completed that are the subject of the motion for protective order, and the responses should be served on or about January 5, 2021, and the motion for protective order would be taken off calendar. (Anderson Decl., ¶ 7.)

Prior to the hearing for Defendant’s motion for a protective order, Defendant served responses to the RPD and FROGS on or about January 7, 2022. Plaintiff argues that all the responses were inadequate and incomplete, including the assertion of objections. (Andersen Decl., ¶ 8.) Thereafter, Defendant withdrew the motion for a protective order. (Andersen Decl., ¶ 8.) The Opposition asserts that Judge Tanaka had suggested that the motion for protective order would be mooted if Defendant served discovery responses as to the issues raised by the motion, and defense counsel indicates that was his intention. Plaintiff and Defendant, through their counsel, met and conferred regarding the subject discovery, but were unable to reach a resolution regarding the instant discovery dispute, thus warranting the instant motions.

B. Procedural¿¿¿

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On March 17, 2022, Plaintiff filed the Motion to Compel Verified Further Responses, without objections, to Form Interrogatories, Set One, to Defendant 1900 PCH, LLC; Motion to Compel Verified Further Responses, without objections, to Requests for Production of Documents, Set No. One against Defendants 1900 PCH, LLC; and Motion to Compel Verified Further Responses, without objections, to Form Interrogatories, Set No. One against Defendant Roth Management Group. On December 2, 2022, Defendants filed oppositions to each of the motions. To date, no reply brief has been filed. The Court notes that many other discovery motions are also pending with future hearing dates.

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¿II. MEET AND CONFER ¿¿¿

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On January 7, 2021, Plaintiff’s counsel requested a telephone conference with counsel for Defendant to discuss the matter. Counsel for Defendant refused to discuss the matter via telephone, and stated all communications had to be in writing. (Andersen Decl., ¶ 9.)

On January 10, 2022, Plaintiff’s counsel attempted to meet and confer with counsel for Defendant regarding its responses to form interrogatories, set one, and request for production of documents, set one, and provided dates and times to meet and confer on this issue. Counsel for Defendant again refused to discuss the issue via telephone and stated a written response would be provided. (Andersen Decl., ¶ 10.)

On January 14, 2022, counsel for Defendant advised that he had been ill, but still had Plaintiff’s counsel’s meet and confer inquiry and the production on his platter. (Andersen Decl., ¶ 11.) On January 27, 2022, Plaintiff’s counsel again attempted to meet and confer with counsel for Defendant regarding Defendant’s responses to form interrogatories, set one, and requests for production of documents, set one. (Andersen Decl., ¶ 12; Johnson Decl., ¶ 24.)

On February 23, 2022, Plaintiff notes that counsel for Defendant responded to Plaintiff’s prior meet and confer requests and refused to provide further responses and/or supplement its discovery responses. (Andersen Decl., ¶ 12.) On February 24, Defendant asserts that its counsel sent an email to Plaintiff’s counsel noting two boxes of documents had been shipped. (Johnson Decl., ¶ 30, Exhibit 12.)

Plaintiff and Defendant, through their counsel, met and conferred regarding the subject discovery, but were unable to reach a resolution regarding the instant discovery dispute, thus warranting the instant Motion. (Andersen Decl., ¶ 14.)

¿III. ANALYSIS¿¿

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A. Motions to Compel Responses

A party must respond to interrogatories within 30 days after service. (Code Civ. Proc., § 2030.260, subd. (a).) If a party to whom interrogatories are directed does not provide timely responses, the requesting party may move for an order compelling responses to the discovery. (Code Civ. Proc., § 2030.290, subd. (b).) The party also waives the right to make any objections, including one based on privilege or work-product protection. (Code Civ. Proc., § 2030.290, subd. (a).) There is no time limit for a motion to compel responses to interrogatories other than the cut-off on hearing discovery motions 15 days before trial. (Code Civ. Proc., § 2024.020, subd. (a); Code Civ. Proc., 2030.290.) No meet and confer efforts are required before filing a motion to compel responses to the discovery. (Code Civ. Proc., § 2030.290; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 411.)¿ ¿

Additionally, Code of Civil Procedure § 2030.090(a) provides that, “[w]hen interrogatories have been propounded, the responding party, and any other party or affected natural person or organization may promptly move for a protective order.”

Here, Plaintiff’s motion asserts that Defendant’s responses were due by June 1, 2021. (Anderson Decl., ¶ 3.) Plaintiff’s moving papers omit mention of the fact that extensions of limited duration were granted that moved the response deadline back to June 17, 2021, but the Opposition makes that clear. Instead of responding to the discovery requests by the extended deadline, on June 24, 2021, Defendant filed a motion for a protective order. (Andersen Decl., ¶ 4.) Plaintiff argues that Defendant did not satisfy its obligations under Code of Civil Procedure § 2030.090(a) to “promptly” move for a protective order, when it waited almost sixty (60) days to seek a protective order. Moreover, Plaintiff highlights that before obtaining an order granting a protective order, Defendant served responses to the FROGS and RFPs and then voluntarily withdrew its motion for a protective order. (Andersen Decl., ¶ 5.) Plaintiff asserts that by failing to obtain a protective order, Defendant served untimely responses. Perhaps the Court is missing something among the hundreds of pages of moving and opposing papers, but on the record the Court sees, the deadline to respond was last extended to June 17 and the protective order was not first sought until a week later.

With regard to the FROG responses from both Defendant, 1900 PCH, LLC, and Defendant Roth Management Group, LLC, Plaintiff argues that Defendants’ objections are without merit and too general, and/or were waived.

In opposition, Defendants assert that Plaintiff waited until March 17, 2022 to file the present Motion despite the expiration of an agreed-upon extension of the deadline to move to compel on March 7, 2022. Defendants also assert that Plaintiff’s Separate Statement (presumably, as to the RFPs) is defective and improper. Defendant claims that while the Notice of Motion, Memorandum of Points and Authorities ad purported Separate Statement were properly e-served, the Declaration in support was not. Defendant contends that when it attempted to open the link to that Declaration, a prompt appeared stating that the “file does not exist.”

Additionally, Plaintiff argues that Defendant’s responses to Requests for Production are insufficient and are riddled with boiler plate objections. A party must respond to interrogatories and requests for production of documents within 30 days after service. (Code Civ. Proc., § 2030.260, subd. (a); Code Civ. Proc., § 2031.260, subd. (a).) If a party to whom interrogatories or requests for production of documents are directed does not provide timely responses, the requesting party may move for an order compelling responses to the discovery. (Code Civ. Proc., § 2030.290, subd. (b); Code Civ. Proc., § 2031.300, subd. (c).)

The Court makes the following findings:

1. Defendants’ right to object to both the FROGs and the RFPs was waived by Defendants failure to either serve some type of response by the extended June 17, 2021 deadline or else file by that date a motion for protective order;

2. If Defendants had not waived their right to object by failing to respond by June 17, 2021, the Court’s review of the objections to the FROGs demonstrates that the objections lack merit, except the objection to form interrogatory 12.1 because the definition of “incident” used in connection with that interrogatory is vague and ambiguous in the context to this case.

3. Defense counsel’s assertion that he gave a more limited extension of time to Plaintiff to file the motions to compel than a global one is not persuasive to the Court, notwithstanding the last of the chain of emails from Plaintiff’s counsel seeking clarification of a global extension rather than a narrow one limited to the issue of waiver of objections. Thus, the motions were timely filed

4. Plaintiffs’ Separate Statement with the respect to the RFPs in insufficient for the Court to make rulings as to objections or orders for a further response to specific categories of the RFPs. By omitting the Defendants’ written response to each RFP so the Court can compare the objection or written response to the category of documents demanded, the moving party has rendered the Court’s task in ruling on the motion unduly difficult. The Separate Statement is a tool to enable the Court to view each RFP and it written response in a single document to avoid the need to review multiple exhibits to the moving party’s supporting exhibits to compare each discovery request with each written response.

5. Counsel for each side will need to find a better way to communicate effectively with each other in the future, and to facilitate that the Court will make itself available for one or more IDCs going forward which can be scheduled months earlier than a reserved discovery motion hearing date.

Based on the foregoing, the Court GRANTS Plaintiff’s motion to compel responses to Form Interrogatories, except for FROG 12.1, but continues to January 12, 2023 the hearing on the Motion to Compel further responses to Requests for Production of Documents, Set No. One against Defendant 1900 PHC, LLC. The continuance is warranted so that Plaintiff can file a proper Amended Separate Statement. The Court ORDERS Plaintiffs to file a further or Amended Separate Statement and to serve it on or before December 30, 2022. Defendants may file a responsive or Opposition Separate Statement on or before January 6, 2023. Plaintiff’s Amended Separate Statement shall be e-served, and Plaintiff’s counsel shall provide a Word version of the Separate Statement to defense counsel (by email or by portable memory stick / thumb drive) to facilitate defendant’s preparation of an Opposition Separate Statement.

B. Sanctions

Plaintiff requests that his Court grant monetary sanctions against Defendant and/or its counsel in the amount of $4,470.00 per motion (3 motions). Defendant filed a cross-request for monetary sanctions. This Court CONTINUES the hearing on the cross-requests for monetary sanctions to January 12, 2023.¿¿¿