Judge: Teresa A. Beaudet, Case: 19STCV44789, Date: 2023-08-10 Tentative Ruling

Case Number: 19STCV44789    Hearing Date: February 8, 2024    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

On December 11, 2019, Plaintiffs Robert Yu (“Yu”) and Minghui Huang (jointly, “Plaintiffs”) filed this action against a number of defendants, including Raymond Munro (“Munro”) and Henry Suarez (“Suarez”).

Plaintiffs filed the operative First Amended Complaint (“FAC”) on June 17, 2020, alleging causes of action for (1) breach of written contract for sale of real property, (2) violation of Civil Code sections 1102 et seq., (3) violation of Civil Code sections 2079 et seq., (4) negligence, (5) fraudulent concealment, (6) fraudulent misrepresentation, (7) negligent misrepresentation, (8) violation of Civil Code sections 896 et seq., (9) breach of third-party beneficiary contract, and (10) breach of fiduciary duties.

On September 18, 2020, Suarez filed a Cross-Complaint against Munro and Vista Enterprise, Inc., alleging causes of action for (1) negligence, (2) comparative indemnity, (3) contribution, and (4) declaratory relief.

On November 6, 2023, Munro filed a Cross-Complaint against a number of cross-defendants, alleging causes of action for (1) implied and equitable indemnity, (2) contribution, and (3) declaratory relief.

On November 22, 2021, Suarez propounded his First Set of Requests for Production of Documents to Yu. (Powell Decl., ¶ 2, Ex. A.) On March 27, 2023, Yu served “Responses to Defendant Henry Suarez’s Request for Production of Documents, Set One.” (Powell Decl., ¶ 4, Ex. B.) Suarez’s counsel sent a meet and confer letter concerning the asserted deficiencies in the responses. (Powell Decl., ¶ 6, Ex. C.)

On August 8, 2023, Yu served “Further Responses to Defendant Henry Suarez’s Request for Production of Documents, Set One.” (Powell Decl., ¶ 7, Ex. D.) Suarez’s counsel asserts that “[w]hile Plaintiff’s supplemental responses state that all documents have been produced, with reference to particular bates stamped documents, the vast majority of the allegedly responsive documents were not produced.” (Powell Decl., ¶ 8.)

Suarez notes that on October 9, 2023, the parties participated in an Informal Discovery Conference (“IDC”). The Court’s October 9, 2023 minute order provides, inter alia, that “[i]n open court, the Informal Discovery Conference is held. The discovery issues were not resolved. Parties are to reserve a new Informal Discovery Conference date in the Court Reservation System if needed.” Suarez’s counsel states that “[f]ollowing the conference, I offered Plaintiff’s counsel to meet and confer once again prior to filing this Motion prior to the filing deadline. To date, the discovery issues set forth herein remain unresolved.” (Powell Decl., ¶ 11.)

Suarez now moves for an order “compelling [Yu] to provide further responses to [Suarez’s] First Set of Requests for Production of Documents and an order compelling production of additional responsive documents.” Suarez also moves for an order “requiring [Yu] and his counsel to pay monetary sanctions to [Suarez] in the sum of $2,461.65 for the reasonable expenses and attorney’s fees incurred by him in connection with the preparation of this Motion, and time spent at proceedings on this Motion.” Yu opposes.

Legal Standard

Code of Civil Procedure section 2031.310, subdivision (a) provides that “[o]n receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: (1)¿A statement of compliance with the demand is incomplete. (2)¿A representation of inability to comply is inadequate, incomplete, or evasive. (3)¿An objection in the response is without merit or too general.” A motion to compel further responses to a demand for inspection must set forth specific facts showing good cause for the discovery sought and must be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2031.310, subd. (b).) 

Discussion

As set forth above, Suarez moves for an order “compelling [Yu] to provide further responses to [Suarez’s] First Set of Requests for Production of Documents and an order compelling production of additional responsive documents…” (Notice of Mot. at p. i:6-8.)

As an initial matter, Yu asserts that Suarez failed to adequately meet and confer in advance of filing the instant motion. The Court disagrees. As set forth above, Suarez’s counsel states that he attempted to meet and confer with Yu’s counsel on multiple occasions. (Powell Decl., ¶¶ 6, 11.) In addition, as discussed, the parties participated in an IDC.

In addition, as a preliminary matter, Yu asserts that the instant motion is now moot. In his declaration in opposition to the motion, Yu’s counsel states that “[a]lthough Plaintiff disputes that they are necessary because he has already provided code compliant responses, in a good faith effort to reach a resolution, Plaintiff has also provided second further responses to Requests for Production of Documents, Set One.” (Nozar Decl., ¶ 12.)

Yu’s “Second Further Responses to Defendant Henry Suarez’s Request for Production of Documents, Set One” are attached as Exhibit “E” to Yu’s counsel’s declaration. (Nozar Decl., ¶ 12, Ex. E.) The proof of service attached to the second further responses indicates that the responses were served on January 24, 2024, the same date Yu’s opposition to the instant motion was filed. (Nozar Decl., ¶ 12, Ex. E.) The Court notes that these responses contain “second further responses” to Request for Production Nos. 8, 9, 10, 12, 13, 14, 20, 21, 22, 23, 26, 27, 28, and 29. (Nozar Decl., ¶ 12, Ex. E.) The Court thus agrees that the instant motion is moot as to these requests.[1]

However, Suarez’s First Set of Requests for Production of Documents to Yu contains 41 requests. (Powell Decl., ¶ 2, Ex. A.) In his reply in support of the motion, Suarez states that he “requests that the Court order Plaintiff to provide complete, code-compliant responses and produce all responsive documents to RFPD’s 11, 15-19, and 37-38.” (Reply at p. 5:6-7.) The Court thus finds that these requests are still at issue.

Suarez’s Request for Production No. 11 seeks “[a]ll DOCUMENTS RELATED or referring to any cost YOU have incurred to repair the ‘Request Repairs’ as YOU allege in paragraph 37 of the FAC.” Suarez’s Request for Production No. 15 seeks “[a]ll DOCUMENTS RELATED or referring to any cost estimate YOU have obtained or received to ‘seal’ the ‘waste pipe in the rear of the building’ as referenced in the REQUEST FOR REPAIRS No. 1.”

Suarez’s Request for Production No. 37 seeks “[a]ll DOCUMENTS RELATED or referring to any out of pocket costs you have incurred as YOU allege in paragraph 84 of the FAC.” Suarez’s Request for Production No. 38 seeks “[a]ll DOCUMENTS RELATED or referring to any expense YOU have incurred as YOU allege in paragraph 84 of the FAC.”

Yu’s “further responses” to Request for Production Nos. 11, 15, 37, and 38 state, inter alia, as follows:

“Subject to and without waiving the foregoing objections, the production, inspection, and related activity demanded will be allowed in whole, and all non-privileged documents or things in the demanded category that exist, and which are in the possession, custody, or control of Responding Party and to which no objection is being made have been included in the production. Responding Party produced all non-privileged responsive documents in its possession, custody, or control which no objection is being made to as bates label Yu-0001 through Yu-0698. The category of documents produced thus far that may respond to this request include but are not limited to, photographs of the residence [and remediation services, water, and/or mold damage] (e.g., Yu-0280 through Yu-0287; Yu-0598 through Yu-0692), complaints, inspection reports (e.g., Yu-0001 through Yu-0028; Yu-0031 through Yu- 0050; Yu-0086 through Yu-0149; Yu-0244 through Yu-0266; Yu-0302 through Yu-0346), pertinent invoices (e.g., Yu-0048 through Yu-0050; Yu-0150 through Yu-0243; Yu-0589 through Yu-0597; Yu-0589 through Yu-0597), purchase and sale agreement and ancillary agreements (e.g., Yu-0267 through Yu-0279; Yu-0288 through Yu-0300; Yu-0540 through Yu-0544), and other pertinent documents.” (Powell Decl., ¶ 7, Ex. D.)

In his supporting declaration, Suarez’s counsel asserts that “[w]hile Plaintiff allegedly amended his responses, in each ‘Further Response’, Plaintiff identifies the exact same bates stamped documents as responsive. None of these documents are responsive to any of the outstanding discovery issues.” (Powell Decl., ¶ 12.) In the separate statement in support of his opposition, Yu asserts that he “clearly identified the documents that correspond to the request. As indicated in the responses, after performing a reasonable and diligent search, Plaintiff is producing all documents in possession, custody, or control that was not previously produced. The documents are bates stamped and Plaintiff identified the various categories in his response.” (Yu’s Separate Statement at p. 18:10-13.)

Suarez’s notice of motion states that “[t]his Motion is made pursuant to California Code of Civil Procedure sections 2031.010, and 2031.310, and on the grounds that Plaintiff has failed and refused to produce documents which are directly responsive to Plaintiff’s specific allegations and claims for damages.” (Notice of Motion at p. i:9-11, emphasis added.) As set forth above, Code of Civil Procedure section 2031.310, subdivision (a) provides that “[o]n receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: (1) A statement of compliance with the demand is incomplete. (2) A representation of inability to comply is inadequate, incomplete, or evasive. (3) An objection in the response is without merit or too general.”[2] But with respect to Request for Production Nos. 11, 15, 37, and 38, Suarez does not appear to assert that any of the foregoing apply. Rather, as set forth above, Suarez asserts that none of the documents identified in the “further responses” are “responsive to any of the outstanding discovery issues.” (Powell Decl., ¶ 12.) The Court notes that it is unclear what “discovery issues” Suarez is referring to, and Suarez does not appear to cite to legal authority supporting his request for further responses on these grounds. 

As to the remaining requests at issues, Suarez’s Request for Production No. 16 seeks “[a]ll DOCUMENTS RELATED or referring to any cost estimate YOU have obtained or received to ‘seal’ the ‘crack in stucco under lower roof’ as referenced in the REQUEST FOR REPAIRS No. 1.”

Suarez’s Request for Production No. 17 seeks “[a]ll DOCUMENTS RELATED or referring to any cost estimate YOU have obtained or received to ‘seal’ the “cracks on master balcony and bottom floor deck’ as referenced in the REQUEST FOR REPAIRS No. 1.”

Suarez’s Request for Production No. 18 seeks “[a]ll DOCUMENTS RELATED or referring to any cost estimate YOU have obtained or received to install an ‘additional crawl space vent’ as referenced in the REQUEST FOR REPAIRS No. 1.”

Suarez’s Request for Production No. 19 seeks “[a]ll DOCUMENTS RELATED or referring to any cost estimate YOU have obtained or received to ‘secure [ ] with its own platform’ the ‘heating system in the storage area on third floor’ as referenced in the REQUEST FOR REPAIRS No. 1.”

Yu’s responses to Request for Production Nos. 16, 17, 18, and 19 state, inter alia, “[s]ubject to and without waiving said objections, Responding Party responds as follows: After performing a diligent search and reasonable inquiry based on its understanding of this request, Responding Party is unable to produce any responsive documents to this request as no such documents exist. To the extent that any responsive documents do exist, they are not in Responding Party’s possession, custody, or control.”[3]

Suarez asserts that “[i]f Plaintiff is unable to comply with a Request for Production, he must state the reason – that it never existed; that it has been lost or stolen; or that it was inadvertently destroyed. If the document is not in Plaintiff’s possession, custody or control, then he must identify the name and address of anyone who he believes to have the document.” (Suarez’s Separate Statement at p. 24:21-24.) Suarez cites to Code of Civil Procedure section 2031.230, which provides that “[a] representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.”

But as set forth above, Yu states in his responses to Request for Production Nos. 16, 17, 18, and 19 that “[a]fter performing a diligent search and reasonable inquiry based on its understanding of this request, Responding Party is unable to produce any responsive documents to this request as no such documents exist. To the extent that any responsive documents do exist, they are not in Responding Party’s possession, custody, or control.” The Court finds that the responses comply with Code of Civil Procedure section 2031.230.

            Based on the foregoing, the Court does not find that Suarez has shown that further responses are warranted as to Requests for Productions Nos. 11, 15-19, or 37-38.

            Suarez also seeks monetary sanctions against Yu and his counsel in the amount of $2,461.65. Suarez cites to Code of Civil Procedure section 2023.030, subdivision (a), which provides that “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” The Court does not find that Suarez has shown that Yu engaged in the misuse of the discovery process. The Court thus declines to award monetary sanctions against Yu.

            In the opposition, Yu asserts that sanctions should be awarded against Suarez. Yu also cites to Code of Civil Procedure section 2023.030, as well as Code of Civil Procedure section 2023.010, subdivision (h), which provides that “[m]isuses of the discovery process include, but are not limited to, the following:…(h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery.” The Court finds that Suarez acted with substantial justification in presenting his position in the instant motion, and thus declines to award sanctions against him.

            Conclusion

Based on the foregoing, Suarez’s motion is denied.   

Yu ordered to provide notice of this order.

DATED:  February 8, 2024                            ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court