Judge: Ronald F. Frank, Case: 23TRCV01753, Date: 2025-02-28 Tentative Ruling
Case Number: 23TRCV01753 Hearing Date: February 28, 2025 Dept: 8
Tentative Ruling¿
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HEARING DATE: February 28, 2025
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CASE NUMBER: 23TRCV01753
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CASE NAME: Vestar
Peninsula Retail, LLC v. San Pedro Fish Market, et al.
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MOVING PARTY: Plaintiff,
Vestar Peninsula Retail, LLC
RESPONDING PARTY: Defendant,
San Pedro Fish Market
TRIAL DATE: May 27, 2025
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MOTION:¿ (1) Motion to Compel
Defendant’s Further Responses to Form Interrogatories, Set One
(2) Motion to Compel
Defendant’s Further Responses to Special Interrogatories, Set One
(3) Motion to Compel
Defendant’s Further Responses to Request for Production of Documents, Set One
(4) Motion to Compel
Further Responses to Requests for Admission, Set One
(5) Request for
Monetary Sanctions
Tentative Rulings: (1) –(4) The equities lie largely
with the moving party here who, perhaps excessively, awaited promised substantive
responses and attempted to further meet and confer before moving to compel. On the record before the Court, Plaintiff has
not waived the right to move to compel Defendant to provide further,
substantive, responses to the four basic initial discovery responses requested. The Court will
CONTINUE the hearing on these motions for approximately a month, ORDER the parties
to meet and confer in the next 10 days by using the separate statements as an
outline of the parties’ contentions, and ORDER Defendant to serve verified further
responses as to the discovery requests conceded or narrowed after the meet and
confer process.
The Court will consider postponing the trial to avoid undue haste
in preparing this single cause of action case for trial or ADR. But monetary SANCTIONS ARE DENIED because
Defendant’s position has substantial justification, given reasonable differences
in opinion as to how the 45-day deadline might be construed in the circumstances
presented.
I. BACKGROUND¿¿
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A. Factual¿¿
On June 2, 2023, Plaintiff, Vestar Peninsula
Retail, LLC (“Plaintiff”) filed a complaint against Defendant, San Pedro Fish
Market, LLC, and DOES 1 through 20. The complaint alleges one cause of action
for breach of contract. The complaint contends that on May 31, 2017, Plaintiff
Landlord entered into a certain lease with Defendant Tenant for the premises
with the address of 3 Peninsula Center, Suites 3B and 3C, Rolling Hills Estates,
California 90274 (the “Premises”). (Complaint, ¶ 6.) Plaintiff notes the lease
was amended on June 24, 2017 to correct a scrivener’s error. (Complaint, ¶ 6.)
However, Plaintiff alleges that Defendant stopped paying rent in February 2023
even though the minimum monthly rent is $11,872. (Complaint, ¶¶ 7-8.) Plaintiff
also asserts Defendant failed to pay the Base Rent and all other fees and
charges to Plaintiff beginning in February 2022. (Complaint, ¶ 12.)
Plaintiff asserts that despite proper notice and
demand from Plaintiff, Defendant has not cured or otherwise remedied its
defaults. (Complaint, ¶ 13.) Moreover, Plaintiff states despite its contractual
obligations to do so, Defendant has failed to pay certain amounts due,
beginning February 2023 including Base Rent, CAM Charges, Real Estate Taxes and
Assessments, and Late Charges, which are in excess of $75,000. (Complaint, ¶
15.)
On September 6, 2024, Plaintiff propounded sets one
of each of Form Interrogatories, Special
Interrogatories, Requests for Production of Documents, and Requests for
Admission. On October 8, 2024, Defendant served responses. However, Plaintiff
states that the responses were unverified, deficient, evasive, nonresponsive,
and contained objections rather than substantive facts, witness names, or
documents. Plaintiff asserts that Defense Counsel acknowledged that the
responses were deficient in the cover email in which the responses were served
when stating, ““Please note that the attached responses are objections only – I
have just stepped in on this matter and Alex has been in trial for the past few
weeks; I am working to compile additional information from our client and
expect to provide supplemental responses by next week.” (Declaration of
Christian P. Foote (“Foote Decl.”), ¶ 5, Exhibit C.) Essentially the defense granted itself an
extension of time to serve substantive responses, an all-too common practice in
the life of the busy litigator. Nonetheless,
Plaintiff contends no supplemental responses were ever provided. Defendant does not dispute that it never
provided facts, witness names, or documents responsive to any of the four
subject discovery requests.
On December 3, 2024, more than 45 days after the October
8, 2024 unverified responses, Plaintiff states its counsel sent a reminder
email to Defense counsel regarding the supplemental discovery responses which
it had promised, but that Defendant’s counsel never responded. On December 17,
2024, Plaintiff’s counsel sent a meet and confer correspondence to Defendant’s
counsel about the deficient responses, asking for a response by December 31,
2024. However, Plaintiff states Defense counsel never responded. To date,
Plaintiff asserts Defendant’s discovery responses remain insufficient, which have
obviously hampered Plaintiff’s ability to properly prosecute the matter,
investigate the facts and circumstances, and prepare for trial. As such,
Plaintiff has brought these Motions to Compel Further Discovery Responses from
Defendant.
B. Procedural¿¿
On January 23, 2025, Plaintiff filed these four Motions
to Compel Further Responses to its Set One of discovery. On February 14, 2025,
Defendant filed opposition briefs. On February 21, 2025, Plaintiff filed an
omnibus reply brief in support of all.
II. ANALYSIS
A.
Legal Standard
“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.)
Responses to
interrogatories must be “as complete and straightforward as the information
reasonably available to the responding party permits.” (Code Civ. Proc.,
§ 2030.220(a).) If an interrogatory cannot be answered completely, then
it must be answered to the extent possible. (Code Civ. Proc., §
2030.220(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(c).)
Code of Civil Procedure
§ 2030.300 provides that “[o]n receipt of a response to interrogatories, the
propounding party may move for an order compelling a further response if the
propounding party deems that” the responses contain: (1) answers that are evasive
or incomplete; (2)¿an unwarranted or insufficiently specific exercise of an
option to produce documents in lieu of a substantive response; or (3) unmerited
or overly generalized objections. (Code of Civ. Proc. §¿2030.300(a).) Notice of the motions must be given within 45 days of service of
the verified response, otherwise, the propounding party waives any right to
compel a further response. (Code Civ. Proc. §¿2030.300(c).)
Further, 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.)
Code of
Civil Procedure section 2033.290, subdivision (a), provides that “[o]n receipt
of a particular response to requests for admissions, the party requesting
admissions may move for an order compelling a further response if that party
deems that either or both of the following apply: (1) An answer to a particular
request is evasive or incomplete[;] (2) An objection to a particular request is
without merit or too general.” Notice of the motion must be given within 45 days of service of
the verified response, otherwise the propounding party waives the right to
compel a further response. (Code Civ. Proc., § 2033.290, subd. (c).)
Additionally, Code of Civil Procedure section
2030.300 provides that “[o]n receipt of a response to interrogatories, the
propounding party may move for an order compelling a further response if the
propounding party deems that . . .”[a]n answer to a particular interrogatory is
evasive or incomplete.” (Code Civ. Proc., § 2030.300, subd. (a).)
The motions must also be
accompanied by a meet and confer declaration. Finally, Cal. Rules of Court,
Rule 3.1345 requires that all motions or responses involving further discovery
contain a separate statement with the text of each request, the response, and a
statement of factual and legal reasons for compelling further responses. (Cal.
Rules of Court, Rule 3.1345, subd. (a)(3)).
B.
Discussion
i.
Timeliness
Defendant’s opposition brief asserts
that all four of Plaintiff’s motions are untimely which, an assertion which if
accepted by the Court would result in the waiver of Plaintiff’s right to move
to compel. Plaintiff has brought four (4) Motions to Compel Further
Responses. These Motions to Compel Further are governed by Code of Civil
Procedure sections 2030.300, 2031.310, and 2033.290. Pursuant to these code
sections, a motion to compel further responses must be noticed within 45 days
of the service of the verified responses. (Code Civ. Proc., §§ 2030.300, subd.
(c); 2031.310, subd. (c); 2033.290, subd. (c).) The crux of the issue between
the parties here is whether Defendant’s October 8, 2024 written responses were
“verified” within the meaning of these code sections and whether they consisted
of only objections.
Defendant concedes, in its
opposition, that its responses were not signed under oath. However, citing to
Code of Civil Procedure section 2030.250, Defendant contends that “[t]he party
to whom the interrogatories are directed shall sign the responses under oath
unless the response contains only objections.” (Code Civ. Proc., § 2030.250, subd.
(a).) Moreover, the code section states “[t]he attorney for the responding
party shall sign any responses that contain an objection.” (Code Civ. Proc., §
2030.250, subd. (c).) As such, under this code section, Defendant asserts that
because the responses contained only objections, an attorney signature only,
and not a verification under oath was required. Because of this, Defendant
argues that the 45-day jurisdictional time limit to bring a Motion to Compel
Further began to run on October 8, 2024 and expired on November 24, 2024.
In both Plaintiff’s moving
papers and reply papers, Plaintiff argues because Sections 2030.300, 2031.310,
and 2033.290 specifically include the words “verified responses,” the 45-day
jurisdictional time limit to bring a Motion to Compel Further would not began
to run until verifications were served – in this case, they have not been.
Plaintiff’s reply brief relies on Golf & Tennis Pro Shop, Inc. v. Superior Court (2022) 84 Cal.App.5th 127 (“Golf & Tennis”) to argue
that the statutory language makes clear that the clock does not begin to run
without verifications. In Golf & Tennis, the Court of Appeal held
that the 45-day time period to file a motion to compel further responses to
interrogatories does not begin to run upon service of a combination of
unverified factual responses and objections, where the motion challenges only
objections; verification of such hybrid of responses and objections is required
before the time period begins to run. (Golf & Tennis, 84 Cal.App.5th
at 134-36 .) However, the Court there emphasized that even though the Motion to
Compel Further at issue in Golf & Tennis concerned only the
objections, and not the factual responses, the fact that some of the responses
included factual responses and not merely objections – as a matter of law –
required the responses to be verified as they were a combination of responses and
objections. (Id. at 136.)
Plaintiff’s reply brief acknowledges that the responses in Golf
& Tennis concerned responses with both objections and factual
responses. However, Plaintiff argues that like the responses in Golf &
Tennis, Defendant here also responded with “hybrid responses” because of
factual assertions Defendant incorporated into its response. As evidenced in
Plaintiff’s separate statements as well as Defendant’s exhibits, each of
Defendant’s responses contain a “preliminary statement,” and the first
paragraph of that preliminary statement is asserted before the word “objects”
or “objection” ever appears. This
statement includes the following representations:
“Responding
Party has not completed its investigation of the facts relating to this case,
has not completed its discovery in this action, and has not completed its
preparation for trial. All of the responses contained herein are based
only upon the information and documents that are presently available to and
specifically known by Responding Party. It is anticipated that further
discovery, investigation, legal research, and analysis will supply additional
facts and add new meaning to the known facts, as well as establish new factual
conclusions and legal contentions, all of which may lead to the discovery of
additional documents, further information and additional witnesses, thereby
resulting in additions to, changes in, and variances from the following responses.”
Plaintiff
argues that this preliminary statement is the equivalent of an unverified
representation of an inability to comply with the discovery request and is not
merely an objection, but rather a substantive response regarding the facts
available to the responding party for which a party verification would be
required. As such, Plaintiff asserts that because this case involves not only
objections, but also factual responses, Defendant’s “hybrid responses” required
verifications. The Court of Appeal in Golf
& Tennis also looked at the plain language of Code of Civil Procedure, section
2030.250 subdivision (a), specifically as to the words “only objections.” (Golf & Tennis, 84 Cal.App.5th at 135-36.) The Court
ascertained “from the inclusion of the qualifying word ‘only’ before the word
‘objections’ that a response which consists of both objections and responses
must be verified, the only exception to this requirement is a response that
contains nothing but objections.” (Ibid.)
The Court finds that the written responses served on October 8,
2024 did not contain only objections, and thus the 45-day period did not expire
because it never began to run. The
responses have a paragraph of verbiage before the word “objection” ever appears. While this Court has seen this practice of including
a preliminary statement in many other cases, it is done at the peril of the
responding party who later attempts to argue that the serving party waived its
right to compel discovery because of an “objections only” argument. The preliminary statement’s multiple paragraphs
are not verified, and generally do not contain objections. Accordingly, the Court rejects the Opposition’s
argument that Plaintiff waived the right to compel further substantive,
verified responses to the four discovery requests at issue. The four motions to compel are therefore
timely.
Turning to the merits of the deemed timely motions, the Court has
reviewed the separate statements submitted by both sides. Defendant’s separate statements argue the
timeliness of the motions, but also make other arguments as to the propriety of
the interrogatories, document categories, and the like. The Court will CONTINUE the hearing on these
motions for approximately a month, ORDER the parties to meet and confer in the next
10 days by using the separate statements as an outline of the parties’
contentions, and ORDER Defendant to serve verified further responses as to the discovery
requests conceded or narrowed after the meet and confer process. It is the
Court’s intention to continue the hearing and the trial so that the Legislature’s
intent can be fulfilled to require meaningful meet and confer before discovery
motions are filed. Further, if the meet
and confer process results in verified substantive further responses and documents
produced as to the four sets of discovery requests at issue, these four motions
might well become mooted or at a minimum begin the running of a new 45-day
period with both sides now better educated as to how the Court views the
accrual of that deadline.
There are two fine lawfirms representing the parties in this matter. Hopefully the lawyers will do the Bar proud
by resolving these discovery disputes without further court intervention now
that the Court has resolved the primary impediment to meaningful meeting and conferring.
ii.
Sanctions
The Court denies monetary sanctions
at time, but without prejudice to reconsidering them at the continued hearing
depending on the outcome of the meet and confer process being ordered. This Court
recognizes the general confusion about this issue as did the Court of Appeal in
Golf & Tennis. (Golf & Tennis, supra, 84 Cal.App.5th at
136, fn. 5.) In fact, this confusion can also be found in practical guides.
(see Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The
Rutter Group 2024) ¶¶ 8:1150.7, 8:1150.8, noting “a response with nothing other
than objections does not need to be verified and is complete as of the date of
service”; explaining that “a court might take the position that the 45-day
clock begins ticking as of the date of service of the unverified objections.”
[citing Golf & Tennis, supra, 84 Cal.App.5th at 136, fn. 5
“(leaving for another day answer to question whether time starts to run where
unverified responses contain nothing but objections but urging the Legislature
to address it.]; recommending that “[b]ecause this issue is not free from
doubt, to be safe, [Parties] should serve [their] motion within 45 days of
service of unverified objections.”)