Judge: Stephen P. Pfahler, Case: 21CHCV00637, Date: 2022-09-15 Tentative Ruling

Case Number: 21CHCV00637    Hearing Date: September 15, 2022    Dept: F49

Dept. F-49 

Date: 9-15-22 

Case #21CHCV00637  

Trial Date: 2-27-23 

FURTHER RESPONSES 

MOVING PARTY: Defendant/Cross-Complainant, Devonshire Reseda, LLC  

RESPONDING PARTY: Plaintiff/Cross-Defendant, Fitness International, LLC 

RELIEF REQUESTED 

Motion to Compel Further Responses, Request for Production of Documents, Set One

SUMMARY OF ACTION 

Plaintiff Fitness International, LLC leases certain real property from Defendant Devonshire Reseda, LLC for the operation of a fitness center located at 18679 Devonshire St., Northridge. On March 12, 2020, Governor Newsom issued the “Safer at Home” order, thereby preventing the operation of businesses, such as Fitness International, from allowing paying members to utilize the facilities. Notwithstanding a brief reopening period from June 12 to July 13, 2020, the facility was barred from allowing customers into the facility until March 15, 2021, with limited entrance beginning on March 15, 2021, until full access restoration on June 15, 2021. 

Plaintiff continued to pay its rent, which it now seeks to declare as excused given the impacts to operations from the government shutdown orders. 

On August 20, 2021, Fitness International, LLC filed a complaint against Devonshire Reseda, LLC for Breach of Contract (Lease) — Force Majeure; Breach of Contract (Lease) – Representations, Warranties and Covenants; Common Count — Monies Had and Received; Common Count — Monies Paid by Mistake); Common Count — Monies Paid and Expended; Declaratory Relief — Closure Period; and, Declaratory Relief — Ongoing Restrictions. On October 5, 2021, Devonshire Reseda, LLC answered the Fitness International, LLC complaint, and filed a cross-complaint against Fitness International, LLC for Breach of Lease. Fitness International, LLC answered the cross-complaint on November 8, 2021. 

OPPOSITION

On September 1, 2022, Plaintiff/Cross-Defendant Fitness International, LLC filed its opposition arguing that first,  that the Landlord served exceedingly overbroad, irrelevant discovery request to which Fitness has already properly asserted objections. Second, Fitness alleges that the Landlord has failed to meet its burden in establishing good cause for the discovery sought, limiting its motion to ipse dixit  assertions of “entitlement” to documents and unsupported claims that the documents sought are “relevant” to which Plaintiff does not agree. Finally, and most importantly, Plaintiff alleges that supplemental responses are not warranted because Fitness’s objections are based on attorney-client privilege, and that the supplemental requests are overbroad, unduly burdensome and oppressive, lack relevance, are vague, and are ambiguous, and therefore, the objection s should be sustained.

Specifically, the Moving Party’s request for “any communications at any level of fitness regarding the impact of COVID-19 on the parties’ rights under the Lease, and on grounds that the requests seek information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence” is Fitness’ primary objection to providing the requested further responses.

RULING: Granted in Part/Denied in Part 

Request for Judicial Notice, exhibits 1-2: Granted. 

Request for Judicial Notice, exhibits 3-4: Denied. 

Defendant/Cross-Complainant Devonshire Reseda, LLC moves to compel Plaintiff/Cross-Defendant, Fitness International, LLC (hereinafter “Fitness”) to provide further responses to Request for Production of Documents (set one), numbers 7, 12, 34 and 35.  

The items are summarized as follows. Numbers 7 and 12: internal and third party communications regarding lease rights due to Covid-19 impacts. Numbers 34 and 35: efforts to borrow funds and/or raise capital from December 1, 2019 to the present. The four items were met with objections of relevance, overbroad, ambiguous, oppressive, trade secret, attorney client and work product privileges. Responses were served on January 25, 2022, and the subject motion was not filed until July 15, 2022. Plaintiff/Cross-Defendant appears to agree to the July 15, 2022 filing deadline by denying any further extensions as to the four subject items. [Declaration of Lisa Skaist, Ex. H-I.]  

Devonshire Reseda contends the objections lack support. Fitness International reiterates the objections, especially the challenges relying on an overly broad scope of discovery and relevance. Fitness International represents an effort to compromise and narrow the scope, but efforts were unsuccessful. Devonshire Reseda in reply contends the opposition seeks to “deflect” attention away from the substantive claims, and the lack of compliant responses. Devonshire Reseda maintains good cause for production of all records, and the objections lack merit. 

“But ‘[f]or discovery purposes, information is relevant if it “might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement….” [Citation.] Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence. [Citation.] These rules are applied liberally in favor of discovery [citation], and (contrary to popular belief), fishing expeditions are permissible in some cases. [Citation.]’ (Citations.)” (Cruz v. Superior Court¿(2004) 121 Cal.App.4th 646, 653–654.) Devonshire Reseda contends the requests directly address the claims in the operative complaint challenging the right to demand rent during the Covid-19 emergency “stay at home order.” Devonshire Reseda asserts that Fitness International was fully capable of paying its rent, but chose to withhold payment. Fitness International counters that its ability to pay the rent is not at issue in the complaint, and therefore numbers 34-35 are irrelevant.  

The dispute became further refined to a claim involving whether Fitness International was granted access to Covid-19 financial relief. Fitness International presented a counter offer accepting the supposition of the potential existence of Covid financial relief granted on condition of payment of rent, but no such documents actually exist.  

Notwithstanding the general broad scope of discovery afforded by relevance, the court finds the search for financial information based on the presumed ability to pay rent during the impacted revenue period, or financial relief granted based on a representation of a promise to pay rent with said funds, combined with the purposeful withholding of payment, lacks a sufficient showing of relevance for purposes of the subject lease interpretation dispute. The gravamen of the case involves the interpretation of the lease terms for impacts caused by the government shut down, and continuing rental payment obligations during a period of revenue interruption, not the ability to pay rent. Again, while relevance generally requires a minimal threshold showing, the court sides with Fitness International on the objections as to numbers 34-35. Regardless, Plaintiff offers to present a verified statement that no such documents regarding Covid-19 financial relief otherwise exist. The court declines to order this response, but the parties may voluntarily agree or otherwise present further argument at the time of the hearing. 

“When discovery requests are grossly overbroad on their face, and hence do not appear reasonably related to a legitimate discovery need, a reasonable inference can be drawn of an intent to harass and improperly burden. When a judge evaluates such factors to determine whether a party has acted reasonably and in good faith in attempting informal resolution, a factual component of decision, derived from the trial judge's knowledge of the case, is inevitably involved.” (Obregon v. Superior Court¿(1998) 67 Cal.App.4th 424, 431.)  

Devonshire Reseda concedes the initial language was overbroad, and now redefines the parameters as to communications involving executive level decision making authority regarding Covid-19 government mandated impacts from March 1, 2020 to present. Fitness International apparently conceded to the scope of this request for the subject property and maintained no such non-privileged materials exist. Fitness International then adds that Devonshire Reseda in fact seeks additional information on unrelated properties. 

The court finds the parties agreement to the time frame and executive level decision maker authority constitutes a valid guideline for discovery. The court additionally agrees that any and all authority should be limited to the instant property only. The court therefore limits discovery to the parties agreed upon employee communication levels, time frame and subject property. Nevertheless, given the lack of non-privileged information, Plaintiff may provide a verified statement as such, and provide a privilege log as discussed under the privileges section below.  

On the burdensome objection, objecting parties must file evidence detailing the amount of work involved, in order to support objections based upon burden and oppression. (West Pico Furniture Co. v. Sup. Ct. (1961) 56 Cal.2d 407, 417.) “[S]ome burden is inherent in all demands for discovery. The objection of burden is valid only when that burden is demonstrated to result in injustice.” (Id. at p. 418.) Nothing in the requests or opposition supports a finding of burdensome or oppressive. 

The form of question objections lack merit. Defendants may not intentionally misconstrue a work for obstreperous purposes. “Indeed, where 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 superseded by statute on unrelated ground as stated in Guzman v. General Motors Corp.¿(1984) 154 Cal.App.3d 438, 444.) Defendant lacks support for the objections. 

The attorney-client privilege attaches to a confidential communication between the attorney and the client and bars discovery of the communication irrespective of whether it includes unprivileged material.” (Costco Wholesale Corp. v. Superior Court¿(2009) 47 Cal.4th 725, 734.) The transmission of information between third parties and counsel also maintains attorney client privilege protection, if the communication is in further interest of the client. (Evid. Code, § 952.) “Once that party establishes facts necessary to support a prima facie claim of privilege, the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish the communication was not confidential or that the privilege does not for other reasons apply.” (Costco Wholesale Corp. v. Superior Court, supra, 47 Cal.4th at p. 733.) The response fails to establish that each and every response involved confidential communications with counsel.  

The work product privilege applies where the sought-after documents contain Defendant’s “impressions, conclusions, opinions or legal research or theories,” the information is protected by the work product doctrine. (Code Civ. Proc., § 2018.030(c).) “An objecting party may be entitled to protection if it can make a preliminary or foundational showing that answering the interrogatory would reveal the attorney's tactics, impressions, or evaluation of the case, or would result in opposing counsel taking undue advantage of the attorney's industry or efforts”].) (Coito v. Superior Court¿(2012) 54 Cal.4th 480, 502.) Notes, statements, and impressions of the case are protected by the work product doctrine. A list of potential witnesses is not work product. (Coito v. Superior Court (2012) 54 Cal.4th 480, 495; Nacht & Lewis Architects, Inc. v. Superior Court (1996) 47 Cal.App.4th 214, 217–218.) The response fails to indicate applicability with the criteria for attorney related work for each and every item. 

The party asserting the privilege holds the burden of establishing its existence. (Bridgestone/Firestone, Inc. v. Superior Court (1992) 7 Cal.App.4th 1384, 1393.) Nothing in the simple objection establishes a trade secret based on financial options from banks or other forms of capital raising and/or lease interpretation. Regardless, this information is not relevant, as previously addressed. 

Even though the court finds no support for the privilege objections from the opposition, the court accepts the representation of Fitness International that only privileged documents remain. The court therefore orders a statutorily compliant response regarding the lack of existence of any and all non-privileged documents, and production of a privilege log for any all remaining items within numbers 7 and 12. (Code Civ. Proc., §§ 2031.230, 2031.240, subd. (a), (c).) Responses and privilege log to be served within 30 days. The court declines to impose sanctions in favor of either party. (Code Civ. Proc., § 2031.310, subd. (h.)  

Motion for Summary Judgment set for November 2, 2022. 

Moving party to give notice.