Calendar Line Nos. 8, 12, 13
Case Name: Vee Corporation, dba Vee Cosmetics v. Evershine I L.P., et al.
Case No.: 2018-CV-336251

Motions to Compel Further Responses to Request for Production of Documents and Form Interrogatories and Request for Sanctions by Plaintiff Vee Corporation, dba Vee Cosmetics

Factual and Procedural Background

Plaintiff Vee Corporation, dba Vee Cosmetics (“Plaintiff”) owns and operates a business that sells cosmetics and offers massage and facial services. (Complaint at ¶ 10.) Defendant Evershine I. L.P. (“Evershine”) owns commercial property in Santa Clara County. (Id. at ¶ 2.) Defendants Wayne Okubo (“Okubo”) and Annie Chan (“Chan”) are agents of Evershine. (Id. at ¶¶ 4-5.) Defendants Evershine, Okubo, and Chan are collectively known as “Defendants.”

On July 31, 2006, Plaintiff entered into a contract with Defendants to lease 19770 Stevens Creek Boulevard in Cupertino, California. (Complaint at ¶ 11.) The space is located in the “Pacific Rim Plaza I.” (Ibid.) The lease began on August 1, 2006 for a term of five years, through July 31, 2011. (Ibid.) Since then, the lease has been extended through July 31, 2021. (Ibid.)

Takashima, another cosmetics retailer, is also located in the Pacific Rim Plaza I shopping center. (Complaint at ¶ 12.) Plaintiff objected to Defendants leasing space to Takashima out of concern that a competing cosmetics retailer would negatively impact its business. (Ibid.)

The subject lease contains a provision allowing Plaintiff to assign or sublease the lease with Defendants’ consent. (Complaint at ¶ 13.) According to the lease, Defendants’ consent “shall not be unreasonably withheld or delayed.” (Ibid.) In order to obtain Defendants’ consent, the lease requires Plaintiff to submit “(i) a true and current financial statement of the proposed assignee or subtenant” and “(ii) a fully executed counterpart of such assignment or sublease (conditioned only upon the obtaining of Landlord’s consent).” (Id. at ¶ 15.) Upon receipt of these documents, Defendants were required to notify Plaintiff of their intention to grant or withhold consent “by the later of twenty (20) days after receiving in writing from Tenant the financial statement, counterpart and documentation described in (i) and (ii)” or ten days after receiving any additional requested documentation. (Id. at ¶ 16.)

On September 23, 2017, Plaintiff entered into an agreement with Xiolan Xie and Jing Wang (collectively, “Buyers”) to sell its business for $100,000. (Complaint at ¶ 17.) A condition of this agreement was the assignment of the remainder of Plaintiff’s lease term to Buyers. (Ibid.) Plaintiff estimated transferring the business to Buyers on December 30, 2017. (Ibid.)

On January 26, 2018, Plaintiff notified Defendants that it had entered into an agreement to sell its retail cosmetics business, and that this sale would include the assignment of Plaintiff’s lease. (Complaint at ¶ 18.) To obtain Defendants’ consent, Plaintiff and Buyers provided various documents including tax returns, bank statements, balance sheets, and photographs. (Ibid.) In addition, Buyers offered to deposit $21,048.19 into an escrow account which represents an amount equal to six months’ rent for the leased premises. (Ibid.)

On February 23, 2018, Defendants informed Plaintiff that Buyers would need an additional guarantor for the lease and that Buyers needed to provide a business plan regarding the operation of their business. (Complaint at ¶ 19.) Plaintiff contends this request was unreasonable as Plaintiff did not need an additional guarantor when it signed its lease with Defendants. (Id. at ¶ 20.) Defendants further demanded information relating to Plaintiff, including its audited corporate financials, balance sheet, and three years of tax returns. (Id. at ¶ 21.) Plaintiff alleges this request too was unreasonable given that it was selling its business and “Vee Cosmetics” would no longer operate after Plaintiff assigned its lease to Buyers. (Ibid.) As a consequence, Plaintiff did not provide Defendants with the requested financial documents. (Ibid.)

Plaintiff thereafter continued to seek Defendants’ consent to assign the lease, including increasing the amount of the deposit in the escrow account. (Complaint at ¶¶ 22, 27.) Defendants however did not provide consent as Plaintiff failed to provide the requested financial documentation. (Id. at ¶¶ 25, 28-29.) On September 23, 2018, the Buyers terminated the purchase and sale agreement. (Id. at ¶ 30.) To date, Defendants failed to explain how the request for Plaintiff’s financial documents was reasonable or relevant to the analysis of whether Buyers were suitable tenants. (Id. at ¶ 31.) Plaintiff alleges Defendants’ unreasonable demands for financial information were pretextual as they were retaliating against Plaintiff for objecting to Takashima leasing in Pacific Rim Plaza I. (Id. at ¶ 33.)

On October 9, 2018, Plaintiff filed the operative Complaint against Defendants alleging causes of action for: (1) breach of contract; (2) breach of the implied covenant of good faith and fair dealing; (3) tortious interference with contract; and (4) tortious interference with prospective economic advantage.

On November 2, 2018, Defendants filed an Answer alleging denials, admissions and various affirmative defenses.

Discovery Dispute

On December 14, 2018, Plaintiff separately served form interrogatories (set one) (“FI”) and request for production of documents (set one) (“RPD”) on Defendants. (Cherry Decl. at ¶ 2.) Following a two-week extension, Defendants served responses and objections on January 29, 2019. (Id. at ¶ 4.)

On February 27, 2019, Plaintiff’s attorney sent a meet and confer letter to defense counsel addressing the objections and responses to the discovery requests. (Cherry Decl. at ¶ 5, Ex. 1.) The following discovery requests were at issue: (1) FI Nos. 15.1, 16.1, 17.1, and 50.1 and RPD Nos. 5, 6, and 32 (as to defendant Chan); (2) FI Nos. 4.1, 15.1, 17.1, and 50.1 and RPD Nos. 5, 6, and 32 (as to defendant Okubo); and (3) FI Nos. 3.7, 4.1, 15.1, 17.1, and 50.1 and RPD Nos. 2-20, 29-34, and 37 (as to defendant Evershine). (Ibid.) Plaintiff claimed the responses were inadequate and the objections were meritless and thus requested supplemental responses and documents on or before March 8, 2019. (Ibid.)

On March 13, 2019, defense counsel responded to the meet and confer letter and agreed to amend some responses while standing by their objections as to other requests. (Cherry Decl. at ¶ 6, Ex. 2.) Defendants also agreed to extend the filing of any motion to compel further responses to April 30, 2019. (Ibid.) On that day, Plaintiff sent a second meet and confer letter addressing various discovery issues, including whether Defendants would amend their responses. (Cherry Decl. at ¶ 8, Ex. 3 ISO MTC as to defendant Evershine.)

On August 8, 2019, defense counsel sent copies of leases to Plaintiff’s attorney executed between Evershine and other tenants who had requested permission to assign their leases in the prior three years. (Standard Decl. at ¶ 5, Ex. B.) There were no additional meet and confer efforts. As the parties were unable to informally resolve the discovery dispute, Plaintiff now seeks intervention from the Court.

Currently before the Court are separate motions to compel further responses to FI and RPD as to Defendants. (Code Civ. Proc., §§ 2030.300, 2031.310.) Plaintiff also requests sanctions in conjunction with the motions. Defendants filed written oppositions. Plaintiff filed reply papers. No trial date has been set.

Motion to Compel Further Responses to FI (as to Defendant Chan)

Plaintiff moves to compel a further response to FI Nos. 15.1 and 17.1 because the answers are incomplete.

Timeliness of the Motion

Although neither party addresses this issue in their papers, as an initial matter, the Court must determine whether Plaintiff’s motion to compel further responses is timely.

A motion to compel further responses to interrogatories must be made within 45 days of service of responses to the requests. (Code Civ. Proc., § 2030.300, subd. (c); Sexton v. Super. Ct. (1997) 58 Cal.App.4th 1403, 1406 (Sexton) [“the propounding party may move to compel and must do so, if at all, within 45 days of the service of the response”]; Professional Career Colleges, Magna Institute, Inc. v. Super. Ct. (1989) 207 Cal.App.3d 490, 494 (Professional Career Colleges) [same].) Depending upon the manner of service of the responses, additional time may be added to the time to file and serve the motion; for example, if responses are served by mail in California, five calendar days are added to the time to make the motion. (Code Civ. Proc., § 1013, subd. (a).) The 45-day deadline applies unless a supplemental response is served or the parties agree in writing to an extended deadline. (Code Civ. Proc., § 2030.300, subd. (c).)

The Court lacks jurisdiction to rule on a motion to compel further responses brought after the deadline by law. (Sexton, supra, 58 Cal.App.4th at p. 1410; Vidal Sassoon, Inc. v. Super. Ct. (1983) 147 Cal.App.3d 681, 685.) While the 45-day limitation is not necessarily “jurisdictional” in the fundamental sense, it is at least “quasi-jurisdictional” in the sense that it renders the Court without authority to rule on untimely motions to compel other than to deny them. (Sexton, supra, 58 Cal.App.4th at p. 1410; see Sperber v. Robinson (1994) 26 Cal.App.4th 736, 745-746 [“The failure to make this motion within the specified period constitutes a waiver of any right to compel a further discovery response.”]; New Albertsons, Inc. v. Super. Ct. (2008) 168 Cal.App.4th 1403, 1427 [same]; Professional Career Colleges, supra, 207 Cal.App.3d at p. 494 [same].)

The moving party bears the burden to show that its motion to compel further responses is timely. (Sexton, supra, 58 Cal.App.4th at p. 1411.)

According to the declaration submitted by Plaintiff’s counsel, Defendants served FI and RPD responses on January 29, 2019. (Cherry Decl. at ¶ 4.) No amended responses were served with respect to FI Nos. 15.1 and 17.1. Thus, Plaintiff was required to file and serve its motion to compel responses within 45 days of the January 29, 2019 date unless there is evidence of an agreement to extend that time. The only evidence presented is Defendants’ response to the meet and confer letter stating they agreed to extend the time to file such motion until April 30, 2019. (Id. at Ex. 2.) Plaintiff however did not file and serve its motion to compel further responses until May 31, 2019 for defendant Chan. The motions for defendants Okubo and Evershine, while also served on May 31, 2019, were not filed until June 12, 2019. The motions to compel further responses are therefore untimely. As a consequence, the Court lacks jurisdiction to rule on the motion with respect to FI Nos. 15.1 and 17.1.

Accordingly, the motion to compel a further response to FI Nos. 15.1 and 17.1 is DENIED.
Disposition

The motion to compel a further response to FI Nos. 15.1 and 17.1 is DENIED.

Motion to Compel Further Responses to RPD (as to Defendant Chan)

Plaintiff moves to compel a further response to RPD Nos. 5, 6, and 32 because the objections are meritless.

Timeliness of the Motion

The 45-day time period applies also to motions to compel further responses to RPD. (Code Civ. Proc., § 2031.310, subd. (c).) The 45-day period however runs from service of a verified response or supplemental verified response. (Ibid.) It is not clear if the statute’s 45-day period was intended to apply to a response consisting only of objections. (See Weil & Brown, California Practice Guide: Civil Procedure Before Trial (Rutter Group 2019) (“Weil & Brown”) at § 8:1150.8.) In fact, there is no known legal authority on this point. Defendant Chan here raises only objections in response to RPD Nos. 5, 6, and 32. In the absence of contrary legal authority, the Court finds the motion to compel is timely and will address the motion on its merits.

Legal Standard

A responding party to an inspection demand must respond separately to each item in the demand by stating one of the following: (1) an agreement to comply; (2) a representation of inability to comply, or (3) objections. (Code Civ. Proc., § 2031.210.) If a party demanding a response to an inspection demand deems: (1) a statement of compliance with the demand is incomplete; (2) a representation of inability to comply is inadequate, incomplete, or evasive; or (3) an objection in the response is without merit or too general, that party may move for an order compelling further response to the demand. (Code Civ. Proc., § 2031.310-320; Weil & Brown, supra, at § 8:1490.)

RPD No. 5

RPD No. 5 seeks production of “any and all leases that contain an assignment provision.”

A motion to compel further responses to RPD must “set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).) The moving party establishes good cause by showing: (1) relevance to the subject matter of the case; and (2) specific facts justifying discovery. (Kirkland v. Super. Ct. (2002) 95 Cal.App.4th 92, 98 [the party who seeks to compel production has met his burden of showing good cause simply by a fact-specific showing of relevance].) Discovery is allowed for any matters that are not privileged and relevant to the subject matter, and a matter is relevant if it appears reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.010.) Moreover, for discovery purposes, information is “relevant to the subject matter” if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement thereof. (Gonzalez v. Super. Ct. (1995) 33 Cal.App.4th 1539, 1546.)

Plaintiff here argues there is good cause for production as the request seeks documents that are central to allegations in the Complaint. In particular, the alleged unreasonable withholding of consent regarding Plaintiff’s request to assign its lease to the Buyers. Having shown good cause for production, the burden shifts to defendant Chan to justify her objections.

Defendant Chan objects to RPD No. 5 on grounds the request: (1) is not reasonably calculated to lead to the discovery of admissible evidence; (2) subjects defendant Chan to undue burden and expense; (3) violates privacy rights of third parties; and (4) is vague and ambiguous.

In opposition, defendant Chan fails to justify her objections based on vague and ambiguous, privacy, and whether the request is reasonably calculated to lead to the discovery of admissible evidence. As a consequence, those objections are overruled. (See Coy v. Super. Ct. (1962) 58 Cal.2d 210, 220-221 [if a timely motion to compel has been filed, the burden is on responding party to justify any objection]; see also Williams v. Super. Ct. (2017) 3 Cal.5th 531, 541 (Williams) [the burden of justifying any objection and failure to respond remains at all times with the party resisting discovery].)

In addition, defendant Chan does not substantiate her objection based on undue burden and expense. (See West Pico Furniture Co. v. Super. Ct. (1961) 56 Cal.2d 407, 417 (West Pico) [an “objection based upon burden must be sustained by evidence showing the quantum of work required”]; Williams, supra, 3 Cal.5th at p. 541 [same].) Defendant Chan also appears to object on the ground the request is overbroad as it does not contain a time restriction. Defendant Chan however did not object to RPD No. 5 on this ground in her original responses and, thus, such an objection raised for the first time in opposition to this motion is waived. (See Scottsdale Ins. Co. v. Super. Ct. (1997) 59 Cal.App.4th 263, 273 (Scottsdale) [waiver occurs where the responding party fails to timely raise an objection in its initial response].)

Finally, defendant Chan states, on August 8, 2019, she provided Plaintiff with redacted copies of leases where tenants had requested an assignment in the prior three years. (Standard Decl. at ¶ 5, Ex. B.) This response however was not served on Plaintiff as a verified supplemental response to RPD No. 5. Nor does this constitute a code compliant response as defendant Chan fails to state she has produced all such leases (not just those restricted to a three year timeframe) in her possession, custody, and control. Plaintiff therefore is entitled to a code compliant further response.

Accordingly, the motion to compel a further response to RPD No. 5 is GRANTED.

RPD No. 6

RPD No. 6 seeks production of “any and all leases that contain an assignment provision that requires the landlord’s consent.” Plaintiff supports this request with good cause for the reasons stated above with respect to RPD No. 5. Defendant Chan raises the same objections and arguments to RPD No. 6 that she did for RPD No. 5. Therefore, for reasons stated above, Plaintiff is entitled to a code compliant further response.

Accordingly, the motion to compel a further response to RPD No. 6 is GRANTED.

RPD No. 32

RPD No. 32 seeks production of “any and all documents relating or in any way pertaining to the management of the Pacific Rim Plaza I, including, but not limited to, advertising, marketing, leases, lease applications, and any and all agreements involving any of the tenants, lease payment histories, management agreements, check registers, and service provider contracts.”

Plaintiff here does not establish good cause for production. Rather, Plaintiff states simply that the requested documents include Evershine’s approach to consenting (or withholding consent) to requests for assignments. The request however, as phrased, is broader as it seeks any and all agreements involving tenants, lease payment histories, and check registers. This would include agreements with tenants who have not requested permission to assign their lease to a third party. Plaintiff has not demonstrated good cause for production of these documents and therefore is not entitled to a further response.

Consequently, the motion to compel a further response to RPD No. 32 is DENIED.

Disposition

The motion to compel a further response to RPD Nos. 5-6 is GRANTED. Defendant Chan shall serve verified code compliant further responses, without objections, and produce all responsive documents within 20 calendar days of this Order.

The motion to compel a further response to RPD No. 32 is DENIED.

Motion to Compel Further Responses to FI and RPD (as to Defendant Okubo)

The motion to compel further responses to FI Nos. 15.1 and 17.1 and RPD Nos. 5, 6, and 32 against defendant Okubo includes the same arguments stated above with respect to the motion against defendant Chan. The Court therefore adopts the same rulings on this motion to compel further responses against defendant Okubo.

Disposition

The motion to compel a further response to RPD Nos. 5-6 is GRANTED. Defendant Okubo shall serve verified code compliant further responses, without objections, and produce all responsive documents within 20 calendar days of service of this Order.

The motion to compel a further response to RPD No. 32 is DENIED.

Motion to Compel Further Responses to FI (as to Defendant Evershine)

Plaintiff moves to compel a further response to FI Nos. 15.1 and 17.1 because the answers are incomplete. The motion to compel further responses are untimely for reasons stated above on the motion brought against defendant Chan.

Disposition

The motion to compel further responses to FI Nos. 15.1 and 17.1 is DENIED.

Motion to Compel Further Responses to RPD (as to Defendant Evershine)

Plaintiff moves to compel a further response to RPD Nos. 2-20, 29-34, and 37 because the objections are meritless.

RPD No. 2

RPD No. 2 seeks all leases that defendant Evershine acquired from Dynasty Plaza IV Associates after it purchased that business. Plaintiff argues there is good cause for production as such leases may lead to the discovery of admissible evidence regarding the assignment of other tenant’s leases and the processes of said tenants to obtain consent to assign their lease.

Defendant Evershine objects on grounds the request: (1) is not reasonably calculated to lead to the discovery of admissible evidence; (2) subjects Evershine to undue burden and expense; and (3) seeks private financial information of third parties. In opposition, defendant Evershine fails to justify the objections for privacy and undue burden and expense and thus the objections are overruled. Instead, Evershine argues the request is not relevant as it seeks leases that were entered into in 1997, more than twenty years ago. The standard for discovery however is not simply relevance but whether such documents may lead to the discovery of admissible evidence. (See Code Civ. Proc., § 2017.010.) Plaintiff has met this minimal showing for purposes of this motion and thus this objection is also overruled.

Consequently, the motion to compel a further response to RPD No. 2 is GRANTED.

RPD Nos. 3-4

RPD Nos. 3 and 4 seek “any and all leases” that Evershine has with Takashima and Kira Kira, competing cosmetics retailers in the shopping center. Plaintiff argues there is good cause for production as the Complaint alleges Evershine withheld its consent to assign Plaintiff’s lease in retaliation for Plaintiff’s objection to Evershine leasing to Takashima and Kira Kira. Plaintiff contends these documents are relevant to determine whether defendant Evershine has assignment provisions with other tenants and, if so, whether those assignment provisions require Evershine’s consent.

In opposition, defendant Evershine objects on grounds the requests are not reasonably calculated to lead to the discovery of admissible evidence and violate the privacy rights of third parties. Evershine does not justify the first objection and thus the objection is overruled. Nor does Evershine substantiate the privacy objection as it fails to establish a legally protected privacy interest, or an objectively reasonable expectation of privacy in the given circumstances. (See Williams, supra, 3 Cal.5th at p. 552 [party asserting a privacy interest must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious].) The privacy objection is therefore overruled. Finally, defendant Evershine states in opposition that Plaintiff can obtain such information directly from Takashima and Kira Kira. Defendant Evershine however did not object to RPD Nos. 3-4 on this ground in its original responses and, thus, such an objection raised for the first time in opposition to this motion is waived. (See Scottsdale, supra, 59 Cal.App.4th at p. 273.)

Accordingly, the motion to compel a further response to RPD Nos. 3-4 is GRANTED.

RPD No. 5

RPD No. 5 seeks any and all leases that contain an assignment provision. The Court has addressed this request regarding the motions to compel brought against defendants Chan and Okubo. For reasons stated above, the motion to compel a further response to RPD No. 5 is GRANTED.

RPD No. 6

RPD No. 6 seeks production of “any and all leases that contain an assignment provision that requires the landlord’s consent.” The Court has addressed this request regarding the motions to compel brought against defendants Chan and Okubo. For reasons stated above, the motion to compel a further response to RPD No. 6 is GRANTED.

RPD Nos. 7-12

These requests seek the leases of tenants containing certain language that is identical to that in Plaintiff’s lease. To establish good cause, Plaintiff argues the requests are relevant in determining which of Evershine’s tenants have leases that contain assignment and consent language that is identical to language in Plaintiff’s lease. Plaintiff further contends such documents will allow it to discover other circumstances where Evershine has consented (or withheld consent) to the assignment of a tenant’s lease.

Defendant Evershine objects on grounds the requests: (1) are not reasonably calculated to lead to the discovery of admissible evidence; (2) subject Evershine to undue burden and expense; and (3) seek private financial information of third parties.

In opposition, defendant Evershine fails to justify its objections based on privacy and whether the request is reasonably calculated to lead to the discovery of admissible evidence. As a consequence, the objections are overruled. In addition, Evershine does not substantiate its objection based on undue burden and expense. Rather, defendant Evershine appears to object on the ground the requests are overbroad as they do not contain a time restriction. Defendant Evershine however did not object to RPD Nos. 7-12 on this ground in its original responses and, thus, such an objection raised for the first time in opposition to this motion is waived. (See Scottsdale, supra, 59 Cal.App.4th at p. 273.)

Finally, defendant Evershine states, on August 8, 2019, that it provided Plaintiff with redacted copies of leases where tenants had requested an assignment in the prior three years. (Standard Decl. at ¶ 5, Ex. B.) This response however was not served on Plaintiff as a verified supplemental response to RPD Nos. 7-12. Nor does this constitute a code compliant response as defendant Evershine fails to state it has produced all such leases (not just those restricted to a three year timeframe) in its possession, custody, and control. Plaintiff therefore is entitled to code compliant further responses.

Accordingly, the motion to compel a further response to RPD Nos. 7-12 is GRANTED.

RPD Nos. 13-20

RPD Nos. 13-20 seek the entire file for tenants whose leases contain assignment provisions, assignment provisions requiring the landlord’s consent, and assignment provisions that are identical to Plaintiff’s. Plaintiff argues discovery into the files of other tenants who have assignment provisions is relevant as to whether Evershine has given consent to the assignment of a lease for such tenants. The requests are also relevant as to whether Evershine requested documents prior to giving consent.

Defendant Evershine objects on grounds the requests: (1) are not reasonably calculated to lead to the discovery of admissible evidence; (2) subject Evershine to undue burden and expense; and (3) seek private financial information of third parties (i.e. other tenants in the shopping center).

With respect to the relevance objection, Plaintiff has demonstrated good cause for production and thus the objection on this ground is overruled. With respect to the undue burden objection, defendant Evershine argues the Pacific Rim Plaza contains approximately sixty (60) retail spaces with more than one hundred tenants in those spaces over the previous ten years. (See Evershine Sep. Stmt; Okubo Decl. at ¶ 16.) In addition, each tenant file contains hundreds of pages of documents. (See Evershine Sep. Stmt.) Despite these claims, defendant Evershine has not stated the requests are so burdensome that it would be unable to comply and produce documents. (See West Pico, supra, 56 Cal.2d at p. 417 [an “objection based upon burden must be sustained by evidence showing the quantum of work required”]; Williams, supra, 3 Cal.5th at p. 541 [same].) The undue burden objection is therefore overruled.

Finally, with respect to privacy, defendant Evershine argues these tenants’ files typically contain credit reports, banks statements, personal and/or business statements, tax returns, and business plans. (Okubo Decl. at ¶¶ 17-18.) Plaintiff appears to concede in its motion that at least some of the documents in the tenants’ files may contain private information. (See Plaintiff’s Sep. Stmt.) Plaintiff therefore proposes that any such privacy concerns be addressed through a protective order. (Ibid.) Defendant Evershine does not weigh in on whether production subject to a protective order would be a suitable alternative. For purposes of these requests, the Court finds a protective order would properly safeguard any privacy concerns of the tenants with regard to documents contained in their files.

Accordingly, the motion to compel a further response to RPD Nos. 13-20 is GRANTED subject to a protective order.

RPD Nos. 29-31

RPD Nos. 29-31 seek documents pertaining to the assignment of any tenant’s lease from 2006 through the present. Plaintiff argues that documents reflecting whether defendant Evershine previously agreed to the assignment of a tenant’s lease (and what documentation Evershine required prior to agreeing to such assignment) are relevant to the central claim in this case (i.e., whether Evershine unreasonably withheld its consent to assign Plaintiff’s lease).

Defendant Evershine objects on grounds the requests: (1) are not reasonably calculated to lead to the discovery of admissible evidence; (2) subject Evershine to undue burden and expense; and (3) seek private financial information of third parties.

With respect to the relevance objection, defendant Evershine does not justify this objection in opposition. Regardless, Plaintiff has demonstrated good cause for production and thus the objection on this ground is overruled.

In addition, Evershine does not substantiate its objection based on undue burden and expense. Rather, defendant Evershine appears to object on the ground the requests are overbroad as they seek documents from thirteen years ago. Defendant Evershine however did not object to RPD Nos. 29-31 on this ground in its original responses and, thus, such an objection raised for the first time in opposition to this motion is waived. (See Scottsdale, supra, 59 Cal.App.4th at p. 273.) Nor has defendant Evershine demonstrated that production of documents pertaining to the assignment would violate any privacy rights. The privacy objection is therefore overruled.

Accordingly, the motion to compel a further response to RPD Nos. 29-31 is GRANTED.

RPD No. 32

RPD No. 32 seeks production of “any and all documents relating or in any way pertaining to the management of the Pacific Rim Plaza I, including, but not limited to, advertising, marketing, leases, lease applications, and any and all agreements involving any of the tenants, lease payment histories, management agreements, check registers, and service provider contracts.”

The Court has addressed this request regarding the motions to compel brought against defendants Chan and Okubo. For reasons stated above, the motion to compel a further response to RPD No. 32 is DENIED.

RPD Nos. 33-34

RPD Nos. 33-34 seek documents pertaining to monies conveyed from Plaintiff to Defendants and monies conveyed from Buyers to Defendants. Plaintiff argues there is good cause for production as Plaintiff provided monies to Evershine in an attempt to obtain consent for assignment of the lease.

Defendant Evershine objects on grounds the requests: (1) are not reasonably calculated to lead to the discovery of admissible evidence; (2) subject Evershine to undue burden and expense; and (3) seek documents that are equally available to the Plaintiff.
Defendant Evershine fails to justify these objections in opposition and thus the objections are overruled.

Consequently, the motion to compel a further response to RPD Nos. 33-34 is GRANTED.

RPD No. 37

RPD No. 37 seeks any and all documents Buyers provided to Evershine in connection with the assignment of Plaintiff’s lease. Plaintiff fails to make a threshold showing of good cause in support of this request. Accordingly, the motion to compel a further response to RPD No. 37 is DENIED.
Disposition

The motion to compel a further response to RPD Nos. 2-20, 29-31, and 33-34 is GRANTED. Defendant Evershine shall serve verified code compliant further responses, without objections, and produce all responsive documents within 20 calendar days of service of this Order. With respect to RPD Nos. 13-20, production of any responsive documents shall be subject to a protective order. The parties shall meet and confer on the language of an appropriate protective order. The Court suggests use of the Complex Division’s model confidentiality order. The Clerk in Department 9 can provide a word version of the model order.

The motion to compel a further response to RPD Nos. 32 and 37 is DENIED.

Request for Sanctions

Plaintiff seeks an award of sanctions in conjunction with the motions to compel. “A request for 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.” (Code Civ. Proc., § 2023.040.) The notices of motion here do not comply with the code as they fail to specify the type of sanction sought by Plaintiff. Nor do the notices identify any legal authority which allows the Court to impose sanctions. Plaintiff cites Code of Civil Procedure section 2023.010, subdivisions (d), (e), (f), (h), and (i) which refer to various misuses of the discovery process. That section however does not provide an independent basis to impose sanctions against a party.

Disposition

Accordingly, the request for sanctions is DENIED.

The Court will prepare the Order.

– oo0oo –

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