Judge: Stephen P. Pfahler, Case: 22CHCV00734, Date: 2023-03-16 Tentative Ruling

Case Number: 22CHCV00734    Hearing Date: March 16, 2023    Dept: F49

Dept. F-49 

Date: 3-16-23

Case # 22CHCV00734  

Trial Date: Not Set

FURTHER DISCOVERY

MOVING PARTY: Defendant, Nasch Properties

RESPONDING PARTY: Plaintiff, Ashley Anderson

RELIEF REQUESTED 

Motion to Compel Further Responses to Form Interrogatories, Special Interrogatories, Request for Production of Documents, Requests for Admissions

SUMMARY OF ACTION 

Plaintiffs Michael Perry and Ashley Anderson reside in an apartment building owned and/or managed by Defendant Nasch Properties, LLC. The assigned property manager on the premises is identified as defendant Charly Taylor.

On May 7, 2022, Anderson alleges a co-tenant in the building, defendant Stanley Nathanson, committed a sexual assault and attempted within the apartment building laundry room common area. Plaintiffs submitted a complaint with property manager Taylor, but allege defendant landlords refused to conduct any independent investigation and/or seek eviction of Nathanson. Instead, on August 17, 2022, Plaintiffs were served with a three day notice to quit. Plaintiffs additionally allege the interruption of “essential services,” such as hot water.

On September 7, 2022, Plaintiffs, in pro per, filed their complaint for “stay of unlawful detainer, restitution, civil penalties, preliminary and permanent injunction, and other equitable relief Business & Professions Code [section] 17200.” The 18 individual causes of action are listed as Sexual Harassment in Violation of California Civil Code section 51.9; Sexual Assault and Harassment … in Violation of California Civil Code section 51.9; Color, Race and Sex-Based Discrimination Based on Status as Sexual Assault Victim; Violation of RALPH Act California Civil Code section 51.7; Interference with Exercise of Civil Rights in Violation of Bane Act, California Civil Code section 52.1, Retaliation; Discrimination prohibited by the 14^th Amendment; Breach of Duty to Protect Tenants from Foreseeable Crimes; Strict Liability under Special Relationship Doctrine; Gender Violence; Negligent Infliction of Emotional Distress; Negligence and Failure to Disclose Tenants Criminal Propensities; Negligent Refusal of Landlord to Investigate and Screen Prospective Tenants; Intentional Infliction of Emotional Distress; Unfair Competition under Business and Professions Code section 17200; Defamation; Breach of Contract; and, Claim for Declaratory and Injunctive Relief.

On October 24, 2022, the court denied the ex parte application to stay the pending unlawful detainer case in Department 44. The court also denied the ex parte order for a restraining order.

On January 26, 2023, the court granted the motion to dismiss Michel Perry from the lawsuit, due to the failure to obtain leave to file the subject complaint as a designated vexatious litigant. The court also sustained the demurrer of Nasch Properties, LLC with 30 days leave to amend.

Plaintiffs filed a notice of appeal on the order dismissing Perry on February 8, 2023.

The court electronic filing system shows no amended complaint on file. Any amended complaint due on March 2, 2023.

RULING: Denied.

Defendant Nasch Properties, LLC moves to compel further responses to Form Interrogatories, Special Interrogatories, Requests for Production of Documents, and Requests for Admissions. Defendant moves on grounds the responses are incomplete and/or contain improper objections. Plaintiff in opposition challenges the timeliness of the motion, asserts the validity of the objections, and raises new arguments on grounds of privilege. Plaintiff also requests sanctions.

The court docket shows two oppositions to the motion—one filed at midnight, the second at 1:09 a.m. The court cannot determine if Plaintiff once again filed multiple oppositions, or if the opposition was accidentally double filed. The court therefore will only consider the earlier filed opposition, and disregard the second, later filed opposition. The opposition otherwise complies with the points and authorities page limit, and includes extensive exhibit pages (138 total pages).

Defendant in reply reiterates the lack of verified responses. Defendant next maintains the motion to compel further responses is timely. Nasch denies requesting any information regarding a traffic accident, and only focuses on issues raised in the instant case. Plaintiff is not entitled to sanctions, and Defendant requests sanctions.

On March 14, 2023, Plaintiff filed an “opposition and motion to strike strike…defendant’s belatedly filed reply brief in support of their motion to compel further discovery…” The court declines to consider this item, as it either constitutes an improperly noticed, filed and served “motion,” or a sur-reply. Either way, the court declines to consider anything presented in the filed entry.

The motion comes following service of unverified responses, then subsequent verified, supplemental responses. The verified, supplemental responses were served on December 23, 2022, and the instant motion was filed on February 17, 2023—56 days after service of the responses. Defendant represents an extension of the deadline for a motion to compel additional responses was extended to January 4, 2023, which would render the motion filed within 44 days, and therefore timely. [Declaration of Alexandra Inman, Ex. E.]

The representation of the extended filing deadline comes in the form of a December 28, 2022, e-mail from counsel. The opposition lacks any actual direct response to the December 28, 2022, correspondence and instead simply relies on the December 9 date, which seems to correspond to a meet and confer letter, whereby counsel demanded supplemental responses by December 23, 2022. [Inman Decl., Ex. B.]

On an initial note, the cannot determine from the motion if the supplemental responses lacked any revised items, thereby constituting a basis for seeking a verification of initial responses from the motion itself. The court declines to determine on its own which items potentially remain outstanding, if applicable. Thus, even if the motion seeks both initial responses and further responses, the court denies without prejudice any motion compelling actual verified responses, which would not be time barred by the further response deadline. (Appleton v. Sup. Ct. (1988) 206 Cal.App.3d 632, 635-636.)

On the assumption the motion only seeks to compel further responses, following the December 23, 2022, service of the supplemental responses, statutory authority allows for the filing of a motion to compel further responses on said verified supplemental responses. (Code Civ. Proc., §§ 2030.300, subd. (c), 2031.310, subd. (c), 2033.290, subd. (c).) The supplemental responses appear verified. [Inman Decl. Ex. C, E.] The supplemental responses therefore triggered a new filing deadline.

The record however shows NO written responsive agreement from Plaintiff following the December 28, 2022 e-mail to this UNILATERAL offer of an extension of the filing deadline. (Code Civ. Proc., §§ 2030.300, subd. (c), 2031.310, subd. (c), 2033.290, subd. (c).) The court therefore finds the motion untimely, and denies the motion on this basis. The assumption that an independent representation of an extension without proof of acknowledgment from the responding party lacks legal or factual support in the motion. The motion to compel further supplemental responses is therefore denied on grounds of untimeliness.

The court otherwise declines to address the merits of the objections. The court notes, however, that the later arguments for privacy were not raised in the objections. The court also discourages the use of ad hominem accusations in response to and in expression of frustration with the discovery process prompted by the filing of this complaint, as presented in response to Request for Admissions, number 8.

If Defendant wishes to seek verified responses on all unverified, non-supplemented responses, defendant can provide clarification at oral argument, whereby the court will arrange for a supplemental briefing schedule for counsel to specifically identify each and every item NOT supplemented, thereby supporting a motion to compel responses. Secondarily or alternatively, if Defendant can somehow establish via written acknowledgment and agreement from Plaintiff, in compliance with the applicable code sections as to the extension to file the instant motion within the otherwise unilaterally presented time frame, the court will continue the motion, thereby preserving the time frame of the subject motion. The motion is otherwise denied on procedural grounds only and in no way reflects on the merits of the objections.

The court declines the request for sanctions from Plaintiff. Plaintiff in pro per cannot recover attorney fees, and the opposition lacks any proof of costs incurred in opposing this motion. (Trope v. Katz (1995) 11 Cal.4th 274, 292; Kravitz v. Superior Court (2001) 91 Cal.App.4th 1015, 1020; Argaman v. Ratan (1999) 73 Cal.App.4th 1173, 1180.)

Motions to strike set for March 21, 2023, plus motions to deem admissions admitted filed by Anderson, and motion for attorney fees against Perry, set for April 18, 2023, and May 5, 2023.

Defendant to give notice to all parties.