Case Name: Altitude, Inc. v. Blanchard, et al.
Case No.: 17-CV-306422

This case initiated by plaintiff Altitude, Inc. (“Plaintiff”) against defendants Guenevere Blanchard (“Blanchard”), 3 Potato 4 (“3P4”), Simon Property Group, Inc., SPG Center, LLC (“SPG”), and the Leland Stanford Junior University arises from the purported failure to pay for construction services.
According to the complaint (“Complaint”), in April 2016, Plaintiff entered into an oral contract with Blanchard and 3P4 to furnish certain materials, supplies, and/or services in connection with completing improvements to the property located at 660 Stanford Shopping Center, Space 240-C, Palo Alto, California. After Plaintiff fulfilled its obligations set forth by the contract, Blanchard and 3P4 did not pay it the amount due.

Plaintiff asserts numerous causes of action, including one for foreclosure of mechanic’s lien directed to SPG.

SPG subsequently filed an answer asserting the mechanic’s lien is “overinflated” and Plaintiff “willfully included claims for labor and materials which were not furnished for or otherwise improved the property which is the subject of this lawsuit, resulting in a forfeiture of the lien pursuant to Civil Code section 8422(c).”

Plaintiff propounded special interrogatories, set one (“SI”) on SPG to ascertain the basis for the assertion the lien is overinflated. SPG served responses, which Plaintiff considered deficient. The parties met and conferred and could not resolve the dispute as to SI Nos. 12-19, leading Plaintiff to file the instant motion to compel further responses to those requests. Both parties request an award of monetary sanctions.

I. Merits of the Motion

A party may respond to an interrogatory by objecting and/or providing a substantive response. (Code Civ. Proc., § 2030.210, subd. (a).) The propounding party may move for an order compelling further responses if that party deems an objection meritless or a substantive response deficient. (Code Civ. Proc., § 2030.300, subd. (a).) It is the responding party’s burden to justify any objections. (Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98 (“Kirkland”).)

SI Nos. 12 and 16 asked what SPG considers to be the reasonable value of Plaintiff’s work and the lien. SI Nos. 13-15 and 17-19 seek all facts, witnesses, and documents supporting the contentions. SPG responded to each SI by objecting on the grounds of overbreadth, burden, the attorney-client privilege, and the attorney work product doctrine. SPG then stated it made a reasonable and good faith effort to obtain the information requested by the interrogatories and lacked personal knowledge sufficient to respond fully.

A. Objections

SPG only attempts to justify its attorney work product doctrine objection. Consequently, its overbreadth, burden, and attorney-client privilege objections are overruled. (See Kirkland, supra, 95 Cal.App.4th at p. 98.)

SPG asserts it does not possess the knowledge or skill to ascertain the reasonable value of the construction work without the aid of an expert. SPG insists that, as a result, any fact relating to the determination of the reasonable value qualifies as an expert opinion and is protected by the attorney work product doctrine.

As codified in Code of Civil Procedure section 2018.030, the attorney work product doctrine precludes the discovery of a writing reflecting an attorney’s impressions, conclusions, opinions, theories, or legal research. It also prevents the discovery of other attorney work product not specifically identified in section 2018.030 unless the denial of discovery will unfairly prejudice the party seeking the discovery. (Code Civ. Proc., § 2018.030, subd. (b).) The doctrine evolved from the protection against invading the privacy of an attorney’s preparation. (Coito v. Superior Court (2012) 54 Cal.4th 480, 490.) A consequence of allowing the opposing party to obtain attorney work product would be that “[a]n attorney’s thoughts, heretofore inviolate, would not be his own.” (City of Long Beach v. Superior Court (1976) 64 Cal.App.3d 65, 72, citations omitted.)

While it is true that, generally, an opinion prepared by a retained expert is protected by the attorney work product doctrine prior to the expert’s designation as a testifying witness (Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 297 (“Hernandez”)), that does not necessarily mean the doctrine applies here. First, SPG fails to substantiate its claim that an expert opinion is necessary; it provides no authority discussing if an expert opinion is necessary to establish the reasonable value of construction services provided. That omission is glaring as expert opinions are not always required to determine reasonable value. (See Culver Adjustment Bureau v. Hawkins Const. Co. (1963) 217 Cal.App.2d 143, 146.) Even if an expert opinion were necessary, it is still not apparent the attorney work product doctrine applies. The doctrine protects the disclosure of writings, but a special interrogatory is a written question. (See Code Civ. Proc., § 2018.030, subd. (a); see also Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2016), ¶ 8:899.) The instant discovery does not concern the production of any writings; it only requests SPG identify facts, witnesses, and documents establishing their contention. The doctrine therefore is not implicated.

Last, even assuming the information Plaintiff seeks here is protected, it is still discoverable. “The purpose of pretrial discovery is to obtain all of the facts relative to a claim or defense. A party responding to discovery requests may be required to state whether or not he or she makes a particular contention, and to disclose the evidentiary facts underlying each such contention, as well as each allegation of his complaint or affirmative defense.” (Hernandez, supra, 112 Cal.App.4th at p. 301, citations omitted.) An expert’s opinion may be discovered even when it is privileged if fairness requires it, such as when a party is unable to prepare his or her claim or defense because he or she cannot obtain the information elsewhere. (Id. at p. 298.) Here, SPG asserted the defense that Plaintiff overinflated its lien. Plaintiff is entitled to find out the basis for that defense, including information relating to what SPG believes the amount the lien should be. Plaintiff cannot discover this information elsewhere; that information lies with SPG alone and SPG should not make contentions that it has no basis for.
Accordingly, SPG failed to carry its burden to substantiate its attorney work product objection. As such, it is overruled.

B. Substantive Responses

As stated above, SPG responded to the subject interrogatories by stating it does not have personal knowledge sufficient to respond fully thereto.

Plaintiff does not argue this response is not code-compliant. Indeed, a party may respond to an interrogatory by stating it lacks personal knowledge sufficient to respond fully and has made a reasonable and good faith effort to obtain the information by inquiring of other sources. (Code Civ. Proc., § 2030.220, subd. (c).) Instead, Plaintiff contends SPG’s response is unreasonable because it must have a basis for claiming the lien amount is too high. Plaintiff insists it has provided SPG with all invoices relating to the work and lien claim, and SPG therefore has the information necessary to form an opinion.

While SPG’s response is technically code-compliant, its arguments in opposition reveal the reason it provided such a response is because the facts relating to the reasonable value of the lien are purportedly protected by the attorney work product doctrine. For instance, SPG asserts it does not have any non-privileged facts relating to the amount of the lien because the reasonable value of the lien is calculated by an expert. However, for the reasons discussed above, the attorney work product doctrine is inapplicable here and that objection is overruled. Because SPG’s response is predicated on that objection, a further response is warranted to each SI at issue.

C. Conclusion

Accordingly, the motion to compel further responses to SI Nos. 12-19 is GRANTED. SPG shall provide further, verified code-compliant responses, without objections, within 20 days after notice of entry of the signed Order.

II. Requests for Sanctions

A. Plaintiff’s Request

Plaintiff seeks an order imposing monetary sanctions against SPG pursuant to Code of Civil Procedure section 2030.300, subdivision (d), which provides that sanctions shall be imposed against any party who unsuccessfully opposes a motion to compel a party to serve further responses to interrogatories unless the party subject to sanctions acted with substantial justification or other circumstances would make imposing sanctions unjust.

Here, Plaintiff prevailed in bringing this motion. In addition, the Court finds SPG did not act with substantial justification in opposing this motion and there are no circumstances that would make the imposition of sanctions unjust. Plaintiff is therefore entitled to an award of monetary sanctions.

Plaintiff requests monetary sanctions in the amount of $2,000.00, representing 5 hours of attorney time at $400.00 per hour for researching and drafting the motion. (Wells Decl., ¶ 8.) The Court finds the request to be reasonable and it is therefore GRANTED. SPG shall pay this sanction to Plaintiff’s counsel within 20 days after notice of entry of the signed Order of this Order

B. SPG’s Request

SPG also seeks an order imposing monetary sanctions on Plaintiff pursuant to Code of Civil Procedure section 2030.300, subdivision (d). SPG is not entitled to an award of sanctions because it did not successfully oppose this motion. Consequently, its request is DENIED.

The Court shall prepare the Order.