Judge: Ronald F. Frank, Case: 22TRCV0130, Date: 2023-11-29 Tentative Ruling
Case Number: 22TRCV0130 Hearing Date: November 29, 2023 Dept: 8
Tentative Ruling¿¿
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HEARING DATE: November 29, 2023
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CASE NUMBER: 22TRCV0130
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CASE NAME: Dyniesha
Curtis, Cory Lee v. Kai T. Tsukiyama, et al.
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MOVING PARTY: Defendants, Kai T. Tsukiyama and Junko T. Tsukiyama,
Trustees of The Mirai Trust
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RESPONDING PARTY: Plaintiff,
Cory Lee (No Opposition)
TRIAL DATE: Not Set.
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(2)
Motion for Order Compelling Dyniesha Curtis’ Responses to Requests for
Production of Documents, Nos 1-83
(3)
Motion for Order Compelling Cory Lee’s Documents and Responses to Requests for
Production of Documents Nos. 1-83
(4)
Request for Sanctions
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Tentative Rulings: (1) Motion for Order Compelling
Dyniesha Curtis’ Supplemental Responses to Special Interrogatories, Nos. 4-6,
8-13, 16, 18, 20-26, 28-30, 32, 39 & 41 is Granted in part and denied in
part. Although plaintiffs did not oppose the motions, contrary to the defense
separate statement there IS a 2013 lease agreement attached to the first
amended complaint.
(2)
Motion for Order Compelling Dyniesha Curtis’ Responses to Requests for
Production of Documents, Nos 1-83 is GRANTED. But counsel should prepared to
discuss which RFPs require further responses given the fact that there IS a
lease agreement attached to the FAC
(3)
Motion for Order Compelling Cory Lee’s Documents and Responses to Requests for
Production of Documents Nos. 1-83 is GRANTED.
(4)
Request for Sanctions is to be discussed at the hearing given duplication of
effort on 2 of the 3 motions and the absence of any opposition to read or
respond to
I. BACKGROUND¿¿¿
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A. Factual¿¿¿
On
December 2, 2022, Plaintiffs, Cory Lee and Dyniesha Curtis (collectively
“Plaintiffs”) filed a complaint against Kai T. Tsukiyama, Junko T. Tsukiyama,
Trustee of The Mirai Trust, Mirai Trust, Arnold L. Graff, Wright, Finlay, &
Zak, LLP, and DOES 1 through 100. The complaint alleges causes of action for:
(1) Breach of Implied Covenant of Quiet Use and Enjoyment; (2) Negligent
Violation of Statutory Duty; (3) Intentional Violation of Statutory Duty; (4)
Retaliation/Constructive Eviction; (5) Negligent Breach of the Implied Warranty
of Habitability; (6) Intentional Breach of Implied Warranty of Habitability;(7)
Nuisance (Negligent); (8) Nuisance (Intentional); (9) Negligence; and (10)
Intentional Infliction of Emotional Distress.
On April 6, 2023, Defendants propounded
identical written discovery to both Plaintiffs as follows: (1) Requests for
Production of Documents, Set One; (2) Special Interrogatories, Set One; (3)
Form Interrogatories, Set One; and (4) Requests for Admissions, Set One.
Responses were due on May 11, 2023. Defendants note that responses were timely
filed, but that Plaintiffs’ responses to each of the listed discovery requests
were insufficient. On September 28, 2023, an IDC took place, and Plaintiffs’
counsel agreed that compliant responses would be provided. Defendant’s counsel sent
an email to Plaintiffs’ counsel after the IDC proposing that compliant
supplemental responses to all requests noted in the meet and confer letter be
produced no later than October 30, 2023, and any motion to compel deadline
shall be tolled until November 22, 2023. Defense counsel notes that no response
was received, and thus, Defendant has filed these motions to compel.
B. Procedural¿¿¿
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On October
13 2023, Defendants filed these Motions to Compel Further. To date, no
opposition has been filed.
II. ANALYSIS¿¿
A. Legal Standard
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
Further, where there has
been no timely response to a Code of Civil Procedure § 2031.010 demand, the
demanding party must seek an order compelling a response. (CCP § 2031.300.)
Failure to timely respond waives all objections, including privilege and work
product. Thus, unless the party to whom the demand was directed obtains relief
from waiver, he or she cannot raise objections to the documents demanded. There
is no deadline for a motion to compel responses. Likewise, for failure to
respond, the moving party need not attempt to resolve the matter outside court
before filing the motion. Where the motion seeks only a response to the
inspection demand, no showing of "good cause" is required.
Additionally,
“Unless otherwise limited by order of the court in accordance
with this title, any party may obtain discovery regarding any matter, not
privileged, that is relevant to the subject matter involved in the pending
action or to the determination of any motion made in that action, if the matter
either is itself admissible in evidence or appears reasonably calculated to
lead to the discovery of admissible evidence.” (Code of Civ. Proc. § 2017.010.)
For discovery purposes, information is regarded as relevant “if it might
reasonably assist a party in evaluating the case, preparing for trial, or
facilitating settlement thereof.” (City of Los Angeles v. Superior Court (2017)
9 Cal.App.5th 272, 288.)
A motion to compel further
responses to a demand for inspection or production of documents (“RFP”) may be
brought based on: (1) incomplete statements of compliance; (2) inadequate,
evasive, or incomplete claims of inability to comply; or (3) unmerited or
overly generalized objections. (Code Civ. Proc., § 2031.310(c).) A
motion to compel further production must set forth specific facts showing good
cause justifying the discovery sought by the inspection demand. (See Code Civ.
Proc., § 2031.310(b)(1).) In Digital Music News LLC v Superior Court
(2014) 226 Cal.App.4th 216 at 224, the Court defined “good cause” as a showing
that there “a disputed fact that is of consequence in the action and the
discovery sought will tend in reason to prove or disprove that fact or lead to
other evidence that will tend to prove or disprove the fact.” If the
moving party has shown good cause for the requests for production, the burden
is on the objecting party to justify the objections. (Kirkland v. Sup.Ct
(2002) 95 Cal. App.4th 92, 98.)
B.
Discussion
As a preliminary matter, the Court notes that in its
September 28, 2023 minute order, it ordered the parties to meaningfully meet
and confer regarding discovery. Per Defendants’ motion, it appears that the
parties have not done so. The Court will require that Plaintiffs’ counsel
explain why there has been no response to Defendant’s efforts.
Motion for Order Compelling Dyniesha
Curtis’ Supplemental Responses to Special Interrogatories, Nos. 4-6, 8-13, 16,
18, 20-26, 28-30, 32, 39 & 41
SROGS
4-6 request Plaintiff to identify any and all written lease agreements for the
subject garage unit claimed to exist from June 2013 to the present between
Plaintiffs and Kai Tsukiyama (No. 4), Junko Tsukiyama (No. 5), and Jennifer
Tsukiyama (No. 6). In response to SROGS
4-6, Curtis responded: “The lease agreement attached to the amended complaint
entered into by Jennifer, Kai, and Corey. Defendants argue that there is no
lease agreement attached to the amended complaint, however, the Court notes
that attached to the First Amended Complaint, as Exhibit “A” is what appears to
be a Residential Lease/Rental Agreement between the Defendant Landlords and
Plaintiff, Corey Lee. Defendants also argue that it is improper to answer an
interrogatory by simply referencing another document. The Court disagrees as
the document has been provided to Defendants since the filing of the First
Amended Complaint. As such, the Court DENIES the motion for further responses
as to SROGS 4-6.
SROGS
8, 10, 12, 13, 16, and 18 ask each Plaintiff to identify any notice(s) they
provided Defendants of the various issues Plaintiffs are claiming “plagued” the
subject Garage Unit. Plaintiff’s response to each of these interrogatories was:
“I provided test messages.” The Court finds that this is an insufficient
response to each of the interrogatories. Defendants contend that no text
messages were provided. The Court finds that these responses are insufficient,
unresponsive, and evasive. As such, the Court GRANTS the motion to compel
further responses to SROGS 8, 10, 12, 13, 16, and 18.
SROGS
9 and 11 ask for all facts supporting Plaintiff’s allegation that “Plaintiff’s
(sic) were and still are plagued with…termite infestation since January 2019”
(No. 9) and “Rats and mice” (No. 11). Plaintiff’s responses stated, ““Defendant
has not employed a pest control company to exterminate the termites” “nor plug
up the holes in the garage to keep the vermin out.” Defendants argue that these
responses were evasive and insufficient because they fail to state any specific
facts with respect to the alleged termite infestation and rodents, the relevant
time frames, the scope of location of the alleged termites and rodents, or any
other relevant information to support the allegations made in the FAC or
establish any damages resulting therefrom. The Court disagrees. Although the
Court finds that Plaintiff’s response is minimal at best – the request does not
specify that it is seeking all of this information. However, the Court also
recognizes that the responses is not per se a “fact”. As such, the Court GRANTS
the motion as to SROGS 9 and 11 and requires Plaintiff to provide further
responses. If Plaintiff does not have facts to support this allegation, it can
respond indicating such.
SROG
20 aske each Plaintiff to identify any notice(s) they provided Defendant of the
alleged “lack of heating” at the subject garage unit. Plaintiff responded: “They
knew at the time they rented the garage that it did not have a heater. They
also were on notice when they did their annual inspection.” Defendants argue
that this response is evasive and non-responsive. The Court agrees. The
interrogatory requests notices Plaintiff(s) provided Defendants. The answer
does not reflect one in which responds to this interrogatory. As such, the
Court GRANTS the motion to compel further as to SROG 20.
SROGS
23-26 ask each Plaintiff to identify all treatments received by any medical
practitioner for their alleged asthma and miscarriages (Nos. 23 and 25), along
with a listing of the name and contact information of each medical practitioner
who treated them (Nos. 24 and 26.) Plaintiff responded as follows: ““I saw my
physician at Kaiser Permanente Medical Center” with respect to any miscarriage,
“Albuterol, Breathing treatments” with respect to any asthma treatments, and
“Kaiser Permanente Medical Center” alone with regard to any treating medical
practitioners. Defendants argue that this response is insufficient as the
interrogatories included terms like “identify” and “list” which required
Plaintiff to state facts as to each treatment received, for what purpose, and
provide the names and contact information of any and all treating medical
practitioners. The Court agrees. Plaintiff’s responses to SROGS 23-26 are
entirely insufficient and evasive of what is actually being requested. As such,
the Court GRANTS Defendant’s motion to compel further responses to SROGS 23-26.
SROGS
28-30, and 32 ask each Plaintiff to identify any and all medical records
relating to the alleged asthma and miscarriages as asserted in the FAC, (No.’s
28, 29), state all facts supporting the allegation that Plaintiffs incurred
medical expenses and other damages as a result of the miscarriages as asserted
in the FAC (No. 30), and identify all notice(s) Plaintiffs provided Defendants
of the alleged miscarriages purportedly resulting from the Garage Unit’s
condition (No. 32.) Plaintiff objected to each request stating that the
interrogatories were compound and request answering party to address three
different issues. The Court disagrees. Each of the requests separates the alleged
sufferings of Plaintiff into different interrogatories. As such, the Court
GRANTS the motion as to SROGS 28-30, and 32.
SROG
39 asks each Plaintiff to identify what breathing treatments they currently
take and the name and contact information of any treating medical practitioner.
Plaintiff responded: “Albuterol, Kaiser Permanente Medical Center.” The Court
finds this response to be evasive as “Kaiser Permanente Medical Center” may not
be used as an all-encompassing name, contact information, and treating medical
practitioner. As such, the Court GRANTS the motion as to SROG 39 and orders
Plaintiff to provide a response that provides the name, contact information,
and treating medical practitioner.
SROG
41 asked each Plaintiff to state all facts supporting their allegation that
“Defendants, and each of them, failed to investigate and respond to complaints
by Plaintiffs in a professional manner.” Plaintiff responded: “Jennifer was too
demented to do anything and Kai had very unaffected attitude about the state of
disrepair of the garage.” Defendants argue that this response is evasive and
non-responsive since Plaintiff failed to state any facts or information as to
any actual complaints made by Plaintiffs, the timing of said complaints, the
nature and scope of the complaints, Defendants’ receipt of said complaints, or
any failure on Defendants part to act or respond to any identified complaint. Although
the Court finds that Plaintiff’s response is minimal at best – the request does
not specify that it is seeking all of this information. However, the Court also
recognizes that the responses is not per se a “fact”. As such, the Court GRANTS
the motion as to SROG 41 and requires Plaintiff to provide further responses.
If Plaintiff does not have facts to support this allegation, it can respond
indicating such.
Motion for Order Compelling Dyniesha Curtis’ Responses to
Requests for Production of Documents, Nos 1-83
To each of
Defendants 83 requests, Plaintiff provided the same response stating:
Objection. The demand does not comply with Code of
Civil Procedure §2031.030(c)(2) in that it requests the production of documents
and things within 30 days of service of the demand which is not legally
recognized by the Discovery Code. Code of Civil Procedure §2031.030(c)(2)
Specifies “a reasonable time for the inspection, copying, testing, or sampling
that is at least 30 days after service of the demand, unless the court for good
cause shown has granted leave to specify an earlier date.” Defendant has not
obtained a court order granting leave to specify an earlier date.
Defendants
note that these 83 requests sough documents regarding and/or supporting: g: (i)
communications between the parties, (ii) the alleged written lease agreements,
(iii) notices allegedly provided to Defendants of each of the Garage Unit’s
purported conditions, (iv) the express claims asserted by Plaintiffs’ FAC, (v)
each of the Garage Unit’s alleged defects, and (vi) the alleged damages
Plaintiffs claimed in their FAC. The Court finds these topics to be exceedingly
relevant to Defendants’ affirmative defenses. As such, the Court orders
Plaintiff to provide further responses. Defendants argue that because Plaintiff
failed to provide substantive objections to any request for production, and has
thus waived any such objections. The Court agrees in part because the soel
objection was to production, not to the requirements of a verified written
response indicating whether the responding party will comply, and orders
Plaintiff to provide further responses without objection.
Motion for Order Compelling Cory Lee’s Documents and
Responses to Requests for Production of Documents Nos. 1-83
To each of Defendants 83 requests, Plaintiff provided the
same response as Plaintiff Curtis. The Court’s
assessment and ruling as to Plaintiff Lee’s responses and production are thus
the same, i.e., the Court orders Plaintiff to provide further responses without
objection.
C.
Sanctions
Sanctions are mandatory in
connection with motions to compel responses to interrogatories and requests for
production of documents against any party, person, or attorney who
unsuccessfully makes or opposes a motion to compel.¿¿(CCP. §§ 2030.290(c),¿2030.300(d),¿2031.300(c),¿and
2031.310(h).) However, sanctions are not mandatory if the court “finds that the
one subject to the sanction acted with substantial justification or that other
circumstances make the imposition of the sanction unjust.”¿¿(Id.)
Here, Defendants have requested $2,647.25
per motion. This is based on Defendants’ counsel 4.55 hours of time at a
billing rate of $395 per hour ($1,797.25/motion.) Defendants’ counsel also
anticipated he would incur an additional 2 hours of time to respond to an
opposition and to attend the hearing on said motion, as well as the $60 filing
fee/motion. Here, the Court believes Defendants’ counsel’s billing rate is
reasonable, however, at least with the two motions to compel further responses
to the Requests for Production of Documents, the motions are virtually the
same. Additionally, no opposition was filed. The Court will discuss an award of
monetary sanctions at the hearing.