Judge Stephen P. Pfahler, Case Number: 23STCV19703, Date: 2024-10-10 Tentative Ruling

Judge: Stephen P. Pfahler, Case: 23STCV19703, Date: 2024-10-10 Tentative Ruling

Case Number: 23STCV19703 Hearing Date: October 10, 2024 Dept: 68

Dept. 68

Date: 10-10-24 c/f 8-5-24

Case #23STCV19703

Trial Date: 12-9-24

FURTHER DOCUMENTS

MOVING PARTY: Plaintiff/Cross-Defendant, Hiram Banks

RESPONDING PARTY: Defendant/Cross-Complainant, T. Karl Raab

RELIEF REQUESTED

Motion to Compel Further Responses to Requests for Production of Documents (set one)

Motion to Compel Further Responses Special Interrogatories (set one)

SUMMARY OF ACTION

On August 17 and 30, 2023, Plaintiffs B&L Property Group, LLC and Hiram Banks filed a verified complaint, and verified first amended complaint, for (1) Quiet Title; (2) Injunctive Relief; (3) Declaratory Relief; (4) Continuing Private Nuisance; And (5) Intentional Infliction of Emotional Distress. On October 12, 2023, the parties stipulated to the filing of a second amended complaint. On October 17, 2023, Plaintiff Hiram Banks filed a verified second amended complaint for (1) Quiet Title; (2) Injunctive Relief; (3) Declaratory Relief; (4) Continuing Private Nuisance.

On November 21, 2203, Defendant T. Karl Raab answered the second amended complaint, and filed a cross-complaint against Banks for Trespass to Land, and Negligence. Banks answered the cross-complaint on December 15, 2023.

RULING: Denied.

Plaintiff/Cross-Defendant, Hiram Banks moves to compel further responses to Request for Production to of Documents (set one), numbers 1-7, 11-14, 16-18, 21, and 22, and Special Interrogatories (set one), numbers 2-5, 7, 10, 13, and 14. Banks moves to compel further responses on grounds that the initial responses were untimely, thereby waiving any all objections, the objections lack merit, and the electronically stored information was not produced in statutory accordance. Defendant/Cross-Complainant, T. Karl Raab in a combined opposition represents the responses were timely served via electronic service, and supplemental responses were since provided, thereby rendering the motion moot. Raab denies any waiver of objections and requests the court continue the hearing, if necessary to bring a motion for relief from waivers. Raab also maintains some bad faith tactics as a means of presenting a request “ridiculously high” sanctions amount. Banks in a combined reply maintains “recent” service of the documents and special interrogatories (e.g. within a “few weeks of the motion”) will not moot the motion. Banks reiterates the basis for recovery of “reasonable” sanctions, and the lack of verification note.

Both sets of discovery were propounded on November 28, 2023. An extension was granted until January 9, 2024. Raab steadfastly maintains the responses were properly served via electronic delivery on January 9, 2024, at 1:20 p.m. Verification issues with the represented transmission led to dispute and apparent distrust between the parties as vociferously stated in the subject motion.

Other than disputed opinions on the veracity of counsel, and a cover letter identifying the seven sets of items purportedly transmitted, neither party presents any actual evidence of electronic service or rejection via a “bounce back” email notification. Regardless, on January 18, 2024—NINE days later—Raab followed up with a “dropbox” link, which Banks acknowledges. Thus, it appears responses were in fact received no later than nine (9) days after the 1-9-24 agreed upon extension.

Banks offers an additional new argument in the declaration of counsel challenging the verification as well, which would render the subject motion as one constituting no responses. (Appleton v. Sup. Ct. (1988) 206 Cal.App.3d 632, 635-636.) The motion otherwise offers no actual substantive address of this potential position, and the court declines to consider the unmade arguments on behalf of Banks, or any potential new arguments presented in the reply.

Notwithstanding undisputed service via dropbox no later than 1-18-24, Banks still waited until April 12, 2024, to file the motion after settlement negotiations broke down. Banks represents a granted extension for service, and the Raab opposition offers no dispute over the timeliness of the motions.

The court cannot verify service on January 9, 2024, but declines to order service of responses without objections under the circumstances whether the responses were timely served on January 9 or January 18, 2024. Assuming a worst case scenario that the responses were served nine (9) days later on January 18, 2024, Banks still concedes to receiving responses. Banks was in possession of said responses for almost three (3) months before electing to proceed on the motion and, again, only after settlement talks failed. The circumstances support a finding of substantial compliance with the service requirements, and reasonable excuse for any alleged delay. The court finds absolutely no showing of material prejudice in any form to Banks. The court therefore finds a basis for relief from any waiver of objections, as necessary. (Code Civ. Proc., §§ 2030.290, subd. (a), 2031.300, subd. (a).) With the December trial date remaining firm, the court therefore grants relief from any waivers, rather than further continue the hearing for additional briefing on the subject.

Banks in reply appears to back away from the waiver argument either way, and maintains justification for the motion based on supplemental responses admittedly served after the filing of the motion. "Whether a particular response does resolve satisfactorily the issues raised by a motion is a matter best determined by the trial court in the exercise of its discretion, based on the circumstances of the case. In many cases involving untimely responses, the propounding party will take the motion off calendar or narrow its scope to the issue of sanctions. If the propounding party proceeds with the motion, however, the trial court has the discretion to rule on the motion. The trial court might compel responses without objection if it finds no legally valid responses have been provided to one or more interrogatories; it might deny the motion to compel responses as essentially unnecessary, in whole or in part, and just impose sanctions; it might treat the motion as one under section 2030.300 and either determine that further answers are required, or order the propounding party to “meet and confer” (§ 2030.300, subd. (b)) and file a separate statement (Cal. Rules of Court, rule 3.1020(a)(2), (c)); or it might take the motion off calendar, thereby requiring the propounding party to file a motion under section 2030.300.” (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408–409.)

The court declines to consider the propriety of the responses. The court finds the supplemental responses render the motions moot and therefore DENIES the motion on this basis. Again, if applicable, Raab is also relieved of any waived objections.

The court however adheres to a policy that whenever a motion prompts a response demonstrating validity to the motion, including service of supplemental responses, the court will impose sanctions in favor of the moving party. Banks requests $22,260 in sanctions. The requested amount constitutes an obscene demand with an apparent punitive and vitriolic purpose, with the result providing a tactical collateral advantage in continuing negotiations. The court finds an insufficient nexus with any actual effort of discovery dispute resolution and preparation for trial.

Nevertheless, the statutory minimum for documents demands is $1,000. (Code Civ. Proc., §§ 2023.050, subd. (a), 2031.280, subd. (a). The court therefore awards this amount. The court also imposes an additional $500 in sanctions for the special interrogatories. (Code Civ. Proc., § 2030.300, subd. (d).) TOTAL sanctions of $1,500 are granted against Raab and counsel of record joint and several and payable in 30 days.

Trial date of December 9, 2024, to stand.

Banks to give notice.