Rancho Las Cruces, LLC et al v. Robert Ramirez, et al
Case No: 19CV00717
Hearing Date: Mon Sep 09, 2019 9:30

Nature of Proceedings: Motion for Protective Order

Rancho Las Cruces, LLC, et al., v. Robert Ramirez, et al. (Judge Sterne)

Case No. 19CV00717

Hearing Date: September 9, 2019

HEARING: Motion of Defendant John M. Henning for Protective Order and for Sanctions

ATTORNEYS:

For Plaintiffs Rancho Las Cruces, LLC, Walter J. Henning, individually and as trustee of the Walter C. Henning Trust and of the Caroline Henning Trust, and James E. Henning: Charles M. Oxton, Georgia L. Staab, Eric B. Gans

For Defendant John Mogens Henning, individually and as personal representative of the Estate of Caroline Jane Winther: James F. Scafide, Tyler Sprague, Scafide Law Firm, PC

For Defendant Robert Ramirez: David J. Tappeiner, Fell, Marking, Abkin, Montgomery, Granet & Raney, LLP

TENTATIVE RULING:

The motion of defendant John Mogens Henning for a protective order is granted. Defendant John Henning is required to respond only to special interrogatories, set two, numbers 1 through 35, and to requests for admissions, set two, numbers 1 through 35. Defendant shall serve his responses on plaintiffs on or before September 24, 2019, or such other date as the propounding party and the responding party agree in writing. Defendant’s request for monetary sanctions is denied.

Background:

On February 6, 2019, plaintiffs Rancho Las Cruces, LLC (RLC), Walter J. Henning, individually and as trustee of the Walter C. Henning Trust and of the Caroline Henning Trust, and James E. Henning filed their original complaint in this action asserting four causes of action: (1) declaratory and injunctive relief; (2) ejectment; (3) trespass; and, (4) waste. The complaint arises out of rights to, and use of, real property in Gaviota. The complaint seeks to declare plaintiffs’ rights as to this property, to eject defendants Robert Ramirez and John Mogens Henning from possession of one parcel, and to obtain damages and other remedies from their occupation of and damage to that parcel. This matter is related to Estate of Carolyn Jane Winther, case number 18PR00001, which is also pending before this court.

After the court sustained the demurrer of defendant John Henning in part and overruled the demurrer in part, defendant Ramirez filed his answer to the complaint on May 15, 2019, generally denying the allegations thereof and asserting 25 affirmative defenses.

On June 10, 2019, defendant John Henning filed his answer to the complaint, admitting and denying the allegations thereof and asserting 10 affirmative defenses. John Henning concurrently filed his cross-complaint, asserting 16 causes of action in the nature of individual and derivative claims (on behalf of RLC) against Walter J. Henning and James E. Henning.

On June 27, 2019, plaintiffs personally served on John Henning their requests for admission, set two, (RFA) containing 45 requests for admission, and personally served their special interrogatories, set two, (SI) containing 236 interrogatories. (Sprague decl., ¶¶ 5-6 & exhibits A, B.) (Note: The declaration of Tyler Sprague fails to include electronic bookmarks in violation of Rules of Court, rule 3.1110(f)(4). The court reminds counsel of their obligation to comply with all rules of court, including formatting requirements.) Included with the RFA and SI are declarations for additional discovery. (Sprague decl., ¶ 7 & exhibits C, D.)

The parties unsuccessfully met and conferred regarding the additional discovery requested.

On July 26, 2019, defendant John Henning filed this motion for a protective order to limit the number of interrogatories and requests for admission and to extend the time in which to respond. The motion also requests an award of monetary sanctions in the amount of $5,747.50.

The motion is opposed by plaintiffs.

Analysis:

“A party may propound to another party either or both of the following: [¶] (1) Thirty-five specially prepared interrogatories that are relevant to the subject matter of the pending action.” (Code Civ. Proc., § 2030.030, subd. (a)(1).)

“Except as provided in Section 2030.070, no party shall, as a matter of right, propound to any other party more than 35 specially prepared interrogatories. If the initial set of interrogatories does not exhaust this limit, the balance may be propounded in subsequent sets.” (Code Civ. Proc., § 2030.030, subd. (b); accord, § 2033.030, subd. (a) [requests for admission].)

“Unless a declaration as described in Section 2030.050 has been made, a party need only respond to the first 35 specially prepared interrogatories served, if that party states an objection to the balance, under Section 2030.240, on the ground that the limit has been exceeded.” (Code Civ. Proc., § 2030.030, subd. (c); accord, § 2033.030, subd. (b) [requests for admission].)

“Subject to the right of the responding party to seek a protective order under Section 2030.090, any party who attaches a supporting declaration as described in Section 2030.050 may propound a greater number of specially prepared interrogatories to another party if this greater number is warranted because of any of the following:

“(1) The complexity or the quantity of the existing and potential issues in the particular case.

“(2) The financial burden on a party entailed in conducting the discovery by oral deposition.

“(3) The expedience of using this method of discovery to provide to the responding party the opportunity to conduct an inquiry, investigation, or search of files or records to supply the information sought.” (Code Civ. Proc., § 2030.040, subd. (a); accord, § 2033.040, subd. (a) [requests for admission].)

“The court, for good cause shown, may make any order that justice requires to protect any party or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions:

“(1) That the set of interrogatories, or particular interrogatories in the set, need not be answered.

“(2) That, contrary to the representations made in a declaration submitted under Section 2030.050, the number of specially prepared interrogatories is unwarranted.” (Code Civ. Proc., § 2030.090, subd. (b)(1), (2); accord, § 2033.080, subd. (b)(1), (2) [requests for admission].)

Defendant John Henning now moves for a protective order pursuant to sections 2030.090 and 2033.080 that the representations in the declarations for additional discovery are unwarranted.

“If the responding party seeks a protective order on the ground that the number of specially prepared interrogatories is unwarranted, the propounding party shall have the burden of justifying the number of these interrogatories.” (Code Civ. Proc., § 2030.040, subd. (b); accord, § 2033.040, subd. (b) [requests for admission].)

Defendant John Henning asserts that the discovery requests are excessive, are harassing, and that no justification has been provided for the excessive discovery requests. (Sprague decl., ¶¶ 8-12 & exhibits E, F.) Plaintiffs provide opposition to the motion but offer no declarations or other evidence in support of their opposition.

In arguing their opposition, plaintiffs make a number of factual assertions disputed by defendant Henning. The court does not resolve issues of the underlying dispute in this discovery motion. Nevertheless, the court notes that none of plaintiffs’ factual contentions relating to this motion are supported by evidence. The only evidence presented in support of the discovery, ironically, is presented by defendant in his moving papers by including one declaration in support of additional discovery that was served with the discovery. (The opposition also attaches plaintiffs’ counsel’s response meet-and-confer letter, but that document which is also included in moving party’s papers.) In the declaration, counsel for plaintiffs state that the additional questions are necessary due to the varied nature of the facts at issue between the parties, including plaintiffs’ request for declaratory relief with reference to competing ownership interests of the parties as to numerous real properties, the alleged unlawful occupancy of defendants on certain parcels of real property, the alleged destruction of structures on the property, numerous alleged acts of trespass and waste, and counter-allegations made by defendants against plaintiffs. (Sprague decl., exhibit C [Gans decl. re SI, ¶ 10].) The broad nature of the competing allegations necessitate considerable development of the facts. (Gans decl. re SI, ¶ 11.) The court uses “declaration” in the singular because exhibits C and D appear identical, with both referring to the special interrogatories and neither referring to the requests for admissions.

With respect to the requests for admissions, there is no evidence presented supporting more than 35 requests for admission. The court will grant the motion and limit defendant Henning’s obligation to respond to RFA numbers 1 through 35.

With respect to the special interrogatories, the conclusory statements in the declaration for additional discovery are insufficient. In opposition, plaintiffs argue that the case is complex. Plaintiffs also argue that “[n]ot that long ago, a single interrogatory could contain reasonable related sub-parts, and not be objectionable. That is no longer the case. Every question is now precluded from having subparts.

What could have been asked in a single interrogatory now necessitates several.” (Opposition, p. 4.) The change referenced by plaintiffs occurred in 1986, which the court will leave for the parties to determine whether that was “not that long ago.” (See Stats. 1986, ch. 1334, § 2, pp. 4724-4725, 4735-4736.) The same innovation that established the “rule of 35” also established the rule against subparts. These provisions were renumbered in 2004, but not substantively changed as relating to the “rule of 35” and the rule against subparts. (See Stats. 2004, ch. 182, § 23.) It is therefore clear that the Legislature expected that the “rule of the 35” be observed notwithstanding the fact that more interrogatories would be required than when subparts were permitted—a fact no doubt considered in reaching 35 as the number of interrogatories permitted in the ordinary course.

The conclusory language of the declaration for additional discovery does not persuade the court that additional interrogatories are required. Plaintiffs do not show that the complexity of the case warrants any or all of the interrogatories propounded. Even if it were true that 35 special interrogatories are not enough reasonably to address the issues raised in the case, plaintiffs do not explain why it needs the interrogatories they propounded in the number they propounded. Essentially, plaintiffs’ argument is that plaintiffs need more than 35 interrogatories and therefore there should be no limit to the number of interrogatories plaintiffs may propound. Plaintiffs have the burden to justify the number of interrogatories they actually propounded, not merely the burden to establish that 35 interrogatories are not enough. Plaintiffs’ have failed in their burden.

Moreover, a brief review of the SI reveals that the vast majority of the interrogatories are more efficiently asked as deposition questions. Plaintiffs do not provide any evidence or argument as to why a deposition would not be a more cost and time effective manner of obtaining the information required, perhaps with follow up interrogatories where deposition responses are inconclusive. There is therefore a strong basis to grant the protective order.

Accordingly, the court finds that plaintiffs, as the propounding party, have failed to meet their burden under Code of Civil Procedure sections 2030.040, subdivision (b), and 2033.040, subdivision (b). Defendant Henning’s motion for a protective order will be granted. Defendant Henning shall only be required to respond to special interrogatories numbers 1 through 35.

Defendant Henning requests an award of monetary sanctions. “The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order under this section, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2030.090, subd. (d); accord, § 2033.080, subd. (d).)

“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. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.” (Code Civ. Proc., § 2023.040.)

The notice of motion does not identify any person, party, or attorney against whom the sanction is sought, stating only a generic request “for reasonable attorney fees and costs incurred in this proceeding.” (Notice, p. 2.) There is no apparent basis for awarding monetary sanctions against the plaintiffs personally for this purely procedural matter asserted by their counsel. However, the declaration for additional discovery was by one attorney for plaintiffs and the meet-and-confer was with another attorney for plaintiffs. Having failed to provide the notice required by section 2023.040 identifying the person against whom sanctions are to be awarded, the request for monetary sanctions will be denied. (See Blumenthal v. Superior Court (1980) 103 Cal.App.3d 317, 320.)