Judge William A. Crowfoot, Case 18STCV08209 2023-03-10 Tentative Ruling

Judge: William A. Crowfoot, Case: 18STCV08209, Date: 2023-03-10 Tentative Ruling

This action was filed on December 13, 2018 by America Fuji Healthware Inc. (incorrectly styled on the Court’s docket as “American Fuji”, hereinafter “America Fuji”) against Jade Plaza, LLC, Honeywell International Inc., United Technologies Corporation, and Carrier Corporation. The action arises from a fire that occurred on December 15, 2015 at 301 E. Garvey Avenue, Unit 301 in the attic of a restaurant. The fire then spread to the attics of the other units.

A First Amended Complaint was filed on March 1, 2019 which added Cui Ting Ji (erroneously named as “Qui Ting Ji”) (“Ji”) as a plaintiff.

The operative Second Amended Complaint (“SAC”) was filed on June 16, 2022. The remaining defendants in this action are Wendy Sau, L.B.G.D. Investment Inc. (“L.G.B.D.”), Robert Chanh Phu Diep (“Diep”), Bing Liu (“Liu”), and Pho LTK Inc. (“Pho LTK”).

On February 14, 2023, L.G.B.D. and Liu (collectively, “Defendants”) brought this motion pursuant to CCP 2023.030 and 2031.300. Defendants demand that plaintiffs America Fuji and Ji (collectively, “Plaintiffs”) provide further responses to Defendants’ First Set of Requests for Production of Documents (“RFP Set 1”). Defendants also contend that Plaintiffs have failed to serve responses to Defendants’ Second Set of Requests for Production of Documents (“RFP Set 2”), and Defendants’ First Set of Special Interrogatories (“SROG Set 1”). Defendants request the Court issue an order: (1) compelling Plaintiffs serve responses to RFP Set 2 and SROG Set 1 and (2) imposing monetary sanctions due to Plaintiffs’ failure to serve any responses to RFP Set 2 and SROG Set 1.

On March 3, 2023, Defendants filed a reply brief and an amended separate statement after Plaintiffs provided supplemental responses to RFP Set 1. Plaintiffs also served initial responses to RFP Set 2 and SROG Set 1 and produced a limited set of documents in response to RFP Set 2. Defendants state in their reply brief that they have narrowed the scope of their motion only to request further responses to:

As an initial matter, the Court notes that this motion is procedurally defective. First, this motion should have been brought as three separate motions. Second, Defendants failed to identify the correct statutory bases for this motion. A motion for an order compelling Plaintiffs to provide a further response to RFP Set No. 1 should have been brought under CCP 2031.310. Similarly, a motion for an order compelling Plaintiffs to provide initial responses to SROG Set 1 is authorized under CCP § 2030.290. In the interest of judicial economy, the Court addresses this motion as if it were made under the correct sections of the CCP.

RFP No. 3: “All DOCUMENTS supporting YOUR allegations that DEFENDANTS shall be responsible for the damage suffered by YOU RELATING TO the fire [sic] occurred at PHT LTK Restaurant on December 15, 2016.”

Original Response: “After conducting a diligent search, the only photographs and videos this Responding Party has been able to locate is a CD which depicts the start of the subject fire on December 15, 2016 at PHO LTK RESTAURANT, a copy of which will be produced.”

Supplemental Response: “After conducting a diligent search, the only DOCUMDNTS [sic] this Responding Party has been able to locate is a DVD which depicts the start of the subject fire on December 15, 2016 at PHO LTK Restaurant, a copy of which will be sent by mail to all interested parties on February 21, 2023.

Court’s Ruling: Defendants contend a further response is warranted because Plaintiffs previously asserted in court pleadings that a fire expert’s investigation led them to name Defendants in the SAC. Defendants argue that the documents prepared by Plaintiffs’ expert are responsive and must be produced. Defendants also argue that Plaintiffs’ response is not Code-compliant because it does not state that they have produced all relevant responsive documents.

The Court agrees with Defendants. Because Plaintiffs failed to assert any objections, their responses to RFP No. 3 are limited to a statement of compliance or a representation of an inability to comply. CCP 2031.220 provides that a statement of compliance specifies whether the production will be allowed in whole or in part, and that all responsive documents in their possession, custody, or control and to which no objection is being made will be included in the production. CCP 2031.230 provides that a representation of an inability to comply will 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 will also 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.” (CCP § 2031.230.) Plaintiffs’ response is neither a statement of compliance or a representation of an inability to comply. Therefore, Defendants’ motion to compel a further response to RFP No. 3 is GRANTED. Plaintiffs are ordered to provide a Code-compliant response within 20 days of the date of this Order.

RFP No. 4: “All DOCUMENTS supporting YOUR allegations that DEFENDANTS shall be responsible for the fire occurred at PHT LTK RESTAURANT on December 15, 2016.”

Supplemental Response: “After conducting a diligent search, the only photographs and videos this Responding Party has been able to locate is a CD which depicts the start of the subject fire on December 15, 2016 at PHO LTK RESTAURANT, a copy of which will be produced.”

Court’s Ruling: For the same reasons provided in response to RFP No. 3, Defendants’ motion is GRANTED as to RFP No. 4. Plaintiffs are ordered to provide a Code-compliant response within 20 days of the date of this Order.

RFP No. 7: “ALL DOCUMENTS RELATING TO YOUR litigation against Honeywell International Inc., United Technologies Corporation, Carrier Corporation, and Jade Plaza LLC (together “the Dismissed Defendants”), including but not limited to, all DOCUMENTS filed with the court, discovery requests propounded by YOU and the Dismissed Defendants, and DOCUMENTS produced by YOU and the Dismissed Defendants in response to discovery requests.”

Court’s Ruling: Defendants contend a further response and production is necessary because Plaintiffs failed to provide some of the discovery requests propounded by the Dismissed Defendants. Plaintiffs also failed to produce some of their own responses to Dismissed Defendants’ other discovery requests. Plaintiffs have also failed to produce any of the documents that the Dismissed Defendants or Plaintiff produced or any deposition transcripts.

Plaintiffs’ statement that “[a]ll . . . requested [documents] are attached” is not Code-compliant. Defendants’ motion as to RFP No. 7 is GRANTED. Plaintiffs are ordered to provide a Code-compliant response within 20 days of the date of this Order.

SROG No. 1: “Describe YOUR information sources RELATING TO YOUR allegations contained in ¶¶ 11-13 of the COMPLAINT, including, but not limited to: a) from whom YOU obtained such information; and b) any DOCUMENTS supporting YOUR allegations.”

Response: “(a) Information obtained from Robert Rappaport, Plaintiffs’ retained expert. (b) This Responding Party has no such DOCUMENTS at this time.”

Defendants argue a further response is required because in previous court pleadings, Plaintiffs referred to “one other investigator” in addition to their own fire expert as the basis for Defendants’ alleged liability. Defendants additionally argue that the documents prepared by Plaintiffs’ retained expert should be identified.

An answer in response to an interrogatory “shall be as complete and straightforward as the information reasonably available to the responding permits.” (Code Civ. Proc., § 2030.220, subd. (a).) “If an interrogatory cannot be answered completely, it shall be answered to the extent possible.” (Id., subd. (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.” (Id., subd. (c).)

Defendant’s motion is GRANTED as to SROG No. 1. Plaintiffs are ordered to provide a Code-compliant response within 20 days of the date of this Order.

SROG No. 6: “List and briefly describe DOCUMENTS in support of YOUR allegations that DEFENDANTS shall be responsible for the damage suffered by YOU RELATING TO the fire occurred at PHO LTK RESTAURANT on December 15, 2016.”

Response: “The list, and/or description, and all such DOCUMENTS are referred to in this Responding Party’s Supplemental Responses to Defendant L.B.G.D Investment Inc. and Bing Liu’s First Set of Requests for Production of Documents, and this Responding Party’s Responses to Defendant L.B.G.D. Investment Inc. and Bing Liu’s Second Set of Requests for Production of Documents, copies of which are being contemporaneously attached hereto.”

First, Plaintiffs waived the right to exercise the option to produce writings under section 2030.230 when they failed to serve a timely response. And even if the Court chose to relieve Plaintiffs from this waiver, their response is still inadequate. An answer provided pursuant to section 2030.230 must be “in sufficient detail to permit the propounding party to locate and to identify, as readily as the responding party can, the documents from which the answer may be ascertained. The responding party shall then afford to the propounding party a reasonable opportunity to examine, audit, or inspect these documents and to make copies, compilations, abstracts, or summaries of them.”

Defendants’ motion as to SROG No. 6 is GRANTED. Plaintiffs are ordered to provide a further response within 20 days of the date of this Order.

A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. (CCP 2023.040.)

Defendants’ request for sanctions is defective because the notice of motion refers only to “Plaintiffs” without ever identifying the specific parties against whom the monetary sanctions are sought. Accordingly, the request for sanctions is DENIED.

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

William A. Crowfoot

Judge of the Superior Court