Case Number: 18STCV01616 Hearing Date: November 08, 2019 Dept: 34

SUBJECT: (1) Motion to Compel Further Amended Responses to Form Interrogatories and Requests for Production

(2) Motion to Compel Further Amended Responses to Requests for Admission

Moving Party: Monique Kal McClendon, individually and as Guardian ad Litem for Justin Amoray Williams-McClendon

Resp. Party: Urban Street Properties, Inc.; Shelter First, LLC; and Robert Compean

The motion to compel further amended responses to form interrogatories and requests for production is GRANTED as to Form Interrogatory 12.1 and 17.1 and is DENIED as to Form Interrogatory 15.1 and Request for Production Number 8.

The motion to compel further amended responses to requests for admission is GRANTED.

The Court GRANTS Plaintiffs’ request for monetary sanctions against Defendants and their counsel of record in the amount of $4,720.00.

BACKGROUND:

Monique Kal MClendon, individually and as Guardian ad Litem for Justin Amoray Williams-McClendon (jointly, “Plaintiffs”) commenced this action on October 17, 2018, against Defendants Urban Street Properties, Inc.; Shelter First LLC; and Robert Compean, individually and as Trustee of the Compean Family Trust Dated February 15, 2000 (collectively, “Defendants”).

Plaintiffs allege they were subjected to various illegal conditions that poisoned Justin Amoray Williams-McClendon during their tenancy and occupancy of real property located at 10511 South Hoover St., Los Angeles, California, 90044, a single-family residence held out for rent.

On August 22, 2019, the Court granted Plaintiffs’ motions to compel further responses to (1) request for production of documents; (2) special interrogatories; and (3) form interrogatories and Plaintiffs’ request for sanctions.

On October 4, 2019, the Court (1) granted leave to file an amended and supplemental complaint; (2) denied Plaintiffs’ motion for sanctions; (3) granted Plaintiffs’ motion to compel production of documents pursuant to subpoenas and sanctions.

On October 24, 2019, the Court granted Plaintiffs’ motion to compel responses to request for production of documents.

Before the Court are Plaintiffs motions to compel further amended responses to (1) form interrogatories and request for production; and (2) requests for admission, filed on October 17, 2019.

ANALYSIS:

A. Relevant Law

Motions to compel further responses to discovery requests must always be accompanied by a meet-and confer-declaration (Code Civ. Proc., § 2016.040) demonstrating a “reasonable and good faith attempt an informal resolution of each issue presented by the motion.” (Id., §§ 2030.300(b), 2031.310(b)(2), 2033.290(b).) They must also be accompanied by a separate statement containing the requests and the responses, verbatim, as well as reasons why a further response is warranted. (Cal. Rules of Court, rule 3.1345(a).) The separate statement must also be complete in itself; no extrinsic materials may be incorporated by reference. (Id., rule 3.1345(c).)

A motion to compel further responses to form or specially prepared interrogatories may be brought if the responses contain: (1) answers that are evasive or incomplete; (2) an unwarranted or insufficiently specific exercise of an option to produce documents in lieu of a substantive response; or (3) unmerited or overly generalized objections. (Code Civ. Proc., § 2030.300(a).)

A motion to compel further responses may be brought based on responses to requests for admission (“RFA”) that: (1) provide evasive or incomplete answers; or (2) make unmeritorious or overly-generalized objections. (Code Civ. Proc., § 2033.290(a).) However, a motion to compel further responses cannot compel the admission of matters already denied. (Holguin v. Superior Court (1972) 22 Cal.App.3d 812, 821.)

A motion to compel further responses to requests for production “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.” (Code Civ. Proc. § 2031.310(b)(1).) “To establish ‘good cause,’ the burden is on the moving party to show both: [¶] Relevance to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case); and [¶] Specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial.) [Citations.] [¶] The fact that there is no alternative source for the information sought is an important factor in establishing ‘good cause’ for inspection. But it is not essential in every case.” (Edmon & Karnow, California Practice Guide: Civ. Proc. Before Trial (The Rutter Group 2017) ¶ 8:1495.6.) “For discovery purposes, information is relevant if it ‘might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement.’ [Citation] Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence. [Citation] These rules are applied liberally in favor of discovery.” (Gonzales v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.)

“If ‘good cause’ is shown by the moving party, the burden is then on the responding party to justify any objections made to document disclosure (the same as on motions to compel answers to interrogatories or deposition questions).” (Edmon & Karnow, supra, at ¶ 8:1496.)

B. Discussion

Plaintiffs move for an order compelling Defendants to provide (1) full and complete responses to Form Interrogatories Nos. 12.1, 15.1, and 17.1; (2) a complete production of all documents requested in Request for Production No. 8; (3) full and complete responses to Request for Admission Nos. 4, 14, 30, 39, 48 and 50-61. (See RFA Motion, p. 6:17-19; FROG Motion, p. 2:6-12.)

Plaintiffs also move for an award of monetary sanctions against defendants and their counsel of record, jointly and severally, in the amount of (1) $2,260.00 that corresponds with the motion to compel further amended responses to the requests for admission (“RFAs”); and (2) $2,460.00 that corresponds with the motion to compel further amended responses to the form interrogatories and request for production. (See RFA Motion, p. 2:15-16; FROG Motion, p. 2:8-9.) Alternatively, for the motion to compel amended responses to form interrogatories and request for production, Plaintiffs request an order imposing issue, evidence, or terminating sanctions against Defendants. (See FROG Motion, p. 2:7-8, 2:11-12.)

1. Motion to Compel Further Amended Responses to Request for Admission

Plaintiffs explain that “on September 20, 2019, plaintiffs sent a second meet and confer letter to defendants regarding the deficiencies in defendants’ amended responses to Requests for Admission Nos. 4, 14, 30, 39, 48 and 50-61.” (RFA Motion, p. 5:25-27 [citing Mitcheltree Decl., ¶ 7, Exhibit B].) Plaintiffs assert that “in the second meet and confer letter, plaintiffs asked defendants to provide substantive responses and then clarify any denials or qualified admissions in their responses to Form Interrogatory No. 17.1.” (Id. at pp. 5:27-6:1 [citing Mitcheltree Decl., ¶ 7, Exhibit B].)

Plaintiffs state that their “counsel also sent an email on September 20, 2019 to former and current defense counsel (the current defense counsel formally substituted in on September 26, 2019) in an attempt to resolve the outstanding discovery issues” and “obtained from defense counsel an extension to their deadline to file motions to compel further responses to the RFAs so that the parties could continue to meet and confer.” (Id. at p. 6:2-6 [citing Mitcheltree Decl., ¶ 8, Exhibit C].) Plaintiffs argue that “neither former nor current defense counsel have ever responded to plaintiffs’ counsel’s September 20, 2019 communications.” (Id. at p. 6:6-8 [citing Mitcheltree Decl., ¶ 9, Exhibit D].)

Plaintiff argues that Defendants’ amended unsigned, undated, and unverified responses to Plaintiffs’ RFAs, served on August 21, 2019, are deficient because the responses include numerous boilerplate objections. (Id. at p. 9:1-7 [citing Mitcheltree Decl., ¶ 6].) Plaintiffs argue that Defendants’ “amended responses to RFAs Nos. 4, 14, 30, 39, 48 and 50-61 still failed to meet the requirements of the Code of Civil Procedure” and Defendants never responded to the second meet and confer letter to cure these deficiencies. (Id. at p. 9:7-13.)

Request for Admission Number 4 requests that Defendants admit that, during the term of Plaintiff’s lease, the apartment was wholly or partially uninhabitable as the term is used in Civil Code, Section 1941.1. (Plaintiffs’ Separate Statement, p. 2:1-10.)

For Request for Admission Number 4, Defendants’ amended response asserts boilerplate objections based on: ambiguity, overbreadth, vagueness, relevancy, protected by the attorney work product and attorney client privileges, being argumentative, calling for expert opinions and legal conclusions, being compound, and being speculative. After the objections are stated, Defendants states “without waiving these objections, and in the interest of discovery, this responding party answers as follows: [BLANK].” (Id. at pp. 2:21-3:2.)

Request for Admission Number 14 requests that Defendants admit that their failure to repair and maintain the apartment was a substantial factor in causing harm to Plaintiffs. (Id. at p. 4:7-11.)

For Request for Admission Number 14, Defendants’ amended response merely copies and pastes the text of the request. (Id. at p. 4:22-24.)

Request for Admission Number 39 requests that the Defendants admit that they knew the property at issue was built prior to 1978. (Id. at p. 7:4-7.)

Request for Admission Number 48 requests that the Defendants admit that Plaintiffs did not interfere with Defendants’ efforts to eliminate the lead hazard at the property. (Id. at p. 8:26-28.)

Request for Admission Numbers 30, 50-61 request that the Defendants admit certain qualities and defects of the apartment that existed during the term of Plaintiffs’ family’s occupancy at the apartment. (Id. at pp. 5:1-3; 10:5-23:27.)

For Requests for Admission Numbers 30, 39, 48, 50-61, Defendants’ amended response contains the same boilerplate objections based on: ambiguity, overbreadth, vagueness, relevancy, protected by the attorney work product and attorney client privileges, being argumentative, calling for expert opinions and legal conclusions, being compound, and being speculative. (Id. at pp. 5:1-24:22.) These amended responses all assert the objections and then state that the responding party is unable to admit or deny this request as phrased.

In opposition, Defendants argue that they are providing a second supplemental response to the request for admission, which will be received prior to the hearing, so Plaintiffs’ motions are now moot. (See Defendants’ RFA Separate Statement, p. 3:11-12.) However, the Court has no evidence that supplemental responses have actually been served; rather Defendants state that they “are providing” these supplemental responses.

The amended responses Plaintiffs currently have from Defendants are merely “[u]nsworn responses [which] are tantamount to no responses at all.” (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.) Defendants also state that they have yet to receive verifications that are located in the file that prior counsel has, and they are working to locate and obtain the documents prior to the hearings on the motions. (Opp., p. 1:20-22.) The Court finds this assertion troubling. If defense counsel is saying that they do not have verifications that were previously signed by defendants – i.e., signed before the responses were even written – defense counsel appears to be admitting to having their clients commit a fraud upon the Court.

The Court GRANTS Plaintiffs’ motion to compel further responses to amended requests for admission.

2. Motion to Compel Further Amended Responses to Form Interrogatories and Request for Production

Plaintiffs explain that “on September 11, 2019, after plaintiffs still had not received any amended responses or documents, plaintiffs had no choice but to file and serve a Motion for Sanctions, asking the Court for issue, evidence or terminating sanctions for defendants’ failure to comply with the Court’s Order.” (FROG Motion, p. 5:5-8 [citing Mitcheltree Decl., ¶ 6].) Plaintiffs state that “on September 11, 2019, immediately after being served with the Motion for Sanctions, defendants served amended responses to plaintiffs’ Special Interrogatory No. 67 and Request for Production No. 8.” (Id. at p. 5:8-10 [citing Mitcheltree Decl., ¶ 7].)

Plaintiffs assert that “Defendants serve[d] amended responses to Form Interrogatories on September 12, 2019” but “did not provide complete, substantive responses to Form Interrogatories Nos. 12.1, 15.1 and 17.1 or produce the documents requested in Request for Production No. 8.” (Id. at p. 5:10-13 [citing Mitcheltree Decl., ¶7].)

a. Form Interrogatory 12.1

Form Interrogatory 12.1 states:

“State the name, ADDRESS, and telephone number of each individual: (a) who witnessed the INCIDENT or the events occurring immediately before or after the INCIDENT; (b) who made any statement at the scene of the INCIDENT; (c) who heard any statements made about the INCIDENT by any individual at the scene; and (d) who YOU OR ANYONE ACTING ON YOUR BEHALF claim has knowledge of the INCIDENT (except for expert witnesses covered by Code of Civil Procedure section 2034).” (Plaintiffs’ FROG Separate Statement, p. 2:5-13.)

Amended Response to Form Interrogatory 12.1 states:

1. All Plaintiffs.

2. Urban Street Properties, Inc., who can be contacted through defendants’ counsel.

3. Shelter First, LLC, who can be contacted through defendants’ counsel.

4. Robert Compean, who can be contacted through defendants’ counsel.

5. Gabrielle Oliveros, who can be contacted through defendants’ counsel.

6. Yvonne Flores, 211 N. Sycamore St, Santa Ana, CA 92701. (714) 215-7421.

7. Tishia Gray, address unknown.

8. Plaintiff Justin McClendon’s biological father.

9. All contractors and vendors identified in defendants’ joint document production.

10. California Certified Environmental, CC Environmental, 12663 Ralston Ave., Sylmar, CA 91342.

11. Tan-Lee D. Lee, REHS, LACDPH CLPPPP, 5555 Ferguson Dr., Room 120-04, Commerce, CA 90022.

12. Amaka Chukwuma, PHN, LACDPH CLPPP, 5555 Ferguson Dr., Room 120-04, Commerce, CA 90022.

13. Nnenne Okonko, APS, LACDPH CLPPP5555 Ferguson Dr., Room 120-04, Commerce, CA 90022.,

14. Defendant incorporates the 85 witnesses listed on Plaintiffs’ supplemental response to form interrogatory 12.1 dated August 23, 2019. (Id. at pp. 3:12-4:3.)

Plaintiffs assert that this amended response was untimely, so they waived their option under Code of Civil Procedure section 2030.230 to produce writings in lieu of providing a response. (Id. at p. 4:8-10 [citing Code Civ. Proc., §2030.290(a)].) Plaintiffs maintain that the response is not an appropriate list of witnesses because Defendants do not provide the names and contact information for all of Defendants’ potential witnesses. (Id. at p. 4:10-13.) Plaintiffs argue good cause exists for a further amended response should be compelled because Defendants’ deficient response creates the potential for one party to ambush another at trial by calling a witness who was not identified during discovery. (Id. at p. 4:13-14.)

In opposition, Defendants argue that this motion to compel a further amended response to Form Interrogatory 12.1 is mostly moot because Defendants are supplementing all of the relevant discovery responses other than the superseded response to Form Interrogatory 15.1 and unnecessary request for supplemental responses to Form Interrogatory 17.1. (Opp., p. 4:13-16.)

Defendants’ amended response to Form Interrogatory 12.1 does not sufficiently address the interrogatory, because Defendants fail to provide specific names and contact information of the individuals Defendants intend to rely upon as witnesses who will testify at trial. Further, as explained above, Defendants have not demonstrated to the Court that supplemental responses have already been served. The Court GRANTS Plaintiffs’ motion to compel further amended responses to Form Interrogatory 12.1.

b. Form Interrogatory 15.1

Form Interrogatory 15.1 states:

“Identify each denial of a material allegation and each special or affirmative defense in your pleadings and for each: (a) state all facts upon which you base the denial or special or affirmative defense; (b) state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of those facts; and (c) identify all DOCUMENTS and other tangible things that support your denial or special or affirmative defense, and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT.” (Plaintiffs’ FROG Separate Statement, p. 4:20-28.)

Amended Response to Form Interrogatory 15.1 states:

“Affirmative Defense Nos. 1 through 31 (a) A general denial is filed as a matter of right under Code of Civil Procedure, §431.30. Furthermore, acts of discovery in this matter are yet to be concluded, and, as a result, a comprehensive response to this interrogatory is not yet available. However, in the spirit of discovery, all affirmative defenses alleged by this responding party are made for the specific purpose of preserving the rights of said defendant and will be maintained until such time as discovery has been concluded. (b) All persons identified in discovery and listed pursuant to Form Interrogatory 12.1. Further discovery and investigations are continuing and defendant reserves the right to amend this response as additional information is revealed. (c) All documents identified in discovery. Further discovery and investigations are continuing and defendant reserves the right to amend this response as additional documents become available.” (Id. at p. 6:9-22.)

Plaintiffs argue that good cause exist for the Court to compel a further response to Form Interrogatory 15.1 or impose issue or evidence sanctions because “Defendants’ amended responses do not disclose any more information than their original responses” (id. at p. 6:25-26) and because “Defendants have failed to provide any information to support their affirmative defenses” (id. at p. 6:15).

In opposition, Defendants argue that a further amended response should not be compelled because “by filing the First Amended Complaint, plaintiffs superseded their original pleading . . . [and] have now required defendants to file a new answer and mooted any motions directed at the original pleadings.” (Defendants’ FROG Separate Statement, p. 7:22-26.) Defendants assert that their “response to the First Amended Complaint is not due until November 4th[; t]herefore, Plaintiffs’ motion to compel a 15.1 response to the former answer is unnecessary and the motion should be denied.” (Id. at pp. 7:27-8:1.)

Plaintiffs have not demonstrated good cause as to why a further response is necessary for Form Interrogatory 15.1. This interrogatory corresponds with the denials Defendants have asserted to the original complaint. Plaintiffs have filed a first amended complaint, so a further response to this interrogatory is unnecessary. Further, Defendants have not yet asserted denials to the first amended complaint. Accordingly, the Court DENIES Plaintiffs’ motion to compel a further amended response to Form Interrogatory 15.1.

c. Form Interrogatory 17.1

Form Interrogatory 17.1 (sets one and two) states:

“Is your response to each request for admission served with these interrogatories an unqualified admission? If not, for each response that is not an unqualified admission: (a) state the number of the request; (b) state all facts upon which you base your response; (c) state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of those facts; and (d) identify all DOCUMENTS and other tangible things that support your response and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or thing.” (Plaintiffs’ FROG Separate Statement, pp. 7:18-8:12.)

Amended Response to Form Interrogatory 17.1 (sets one and two) states:

“(a) 1-5, 7-37, 38-61

(b) This defendant has not completed its investigation of this matter and has not completed subpoenas of plaintiffs, medical records, school records, taken deposition of Plaintiffs, conducted IME. It’s investigation into the matters that frame Plaintiffs’ Complaint continues. Defendants have made repairs to the subject property, engaged pest control services, and performed the required lead abatement. Plaintiffs failed to keep a clean and sanitary house, had unauthorized occupants stay at the subject property, failed to timely raise any habitability issues with the defendants, and failed to investigate other potential sources of lead exposure in Plaintiffs environment.

(c) All witnesses listed in response to form interrogatory 12.1. (d) All documents attached to defendants’ request for production of documents, including work and repair orders, plaintiffs’ lease documents, text messages between Plaintiff and defendants, photographs of the subject property, documents from the Los Angeles Housing Department, documents from the Los Angeles County Department of Public Health, and documents regarding remediation of the subject property.” (Id. at pp. 8:19-9:6.)

Similar to the Court’s review of Form Interrogatory 12.1, the Court finds that Defendants’ amended response to Form Interrogatory 17.1 does not sufficiently address the interrogatory, because Defendants fail to provide specific names and contact information of the individuals Defendants intend to rely upon as witnesses who will testify at trial. Further, Defendants’ response in subpart (d) is insufficient, as it does not identify the name and contact information of the person who has each document or thing. The Court GRANTS Plaintiffs’ motion to compel further amended responses to Form Interrogatory 17.1.

d. Request for Production Number 8

Request for Production Number 8 states:

“All FINANCIAL STATEMENTS pertaining to the PROPERTY. (“FINANCIAL STATEMENTS” means and refers to all monthly, quarterly and/or annual profit and loss statements, income statements, accounting records, and/or operating statements which reflect, describe or summarize the monthly and annual gross income, operating expenses and/or net income of the PROPERTY.)” (Plaintiffs’ FROG Separate Statement, p. 10:3-8.)

Second Amended Response to Request for Production Number 8 states:

“Responding party will comply with the request by producing documents that may be responsive to this request. See documents in Defendants’ Joint Response to Amended Request for Production, Exhibits “A” and “J”.” (Id. at pp. 10:26-11:1.)

Plaintiffs assert that “the documents produced in defendants Exhibit ‘A’ consist of several invoices from plumbers, exterminators, etc., and checks paying those invoices.” (Id. at p. 11:4-5.) Plaintiffs state that “the document produced as defendants Exhibit ‘J’ consists of the one-page compilation of income and expenses for the seven (7) years they owned the property that is attached to the Mitcheltree Declaration as Exhibit B.” (Id. at p. 11:5-7.)

Plaintiffs argue that although “Defendants were ordered to produce all of the documents requested, which included all profit and loss statements, accounting records (such as general ledgers and cancelled checks) . . . , none of those records were produced.” (Id. at p. 11:8-10.) Plaintiffs maintain that good cause exists for the Court to compel a further response because “these financial records would demonstrate how much money defendants spent to make specific repairs to the property and would counter defendants’ ongoing argument that they did not have the funds to make repairs.” (Id. at p. 11:10-12.) Plaintiffs argue that they “need these financial statements to confirm the information in defendants’ one-page compilation.” (Id. at p. 11:12-13.) Plaintiffs contend that “Defendants are willfully withholding documents to which plaintiffs are entitled and which they were ordered by the Court to produce.” (Id. at p. 11:13-15.)

In opposition, Defendants argue that on October 23, 2019, their present counsel “provided the requested documents via a supplemental production” thus “granting Plaintiff[s’] motion to compel would serve no purpose because Defendants have substantially complied with the outstanding discovery – exactly as they promised to do prior to plaintiffs’ even making the motions.” (Defendants’ FROG Separate Statement, pp. 14:26-15:1.)

Assuming that Defendants have provided the requested documents in a supplemental production on October 23, 2019, this request is MOOT. If the documents have not been provided, the Court would GRANT the motion to compel further amended responses to request for production number 8.

3. Sanctions

Under California Code of Civil Procedure section 2031.310(h), “the court shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, unless that the one subject to the sanction acted with substantial justification or that other circumstance make the imposition of the sanction unjust.”

Plaintiffs request an award of monetary sanctions against defendants and their counsel of record, jointly and severally, in the amount of (1) $2,260.00 that corresponds with the motion to compel further amended responses to the requests for admission; and (2) $2,460.00 that corresponds with the motion to compel further amended responses to the form interrogatories and request for production. (See RFA Motion, p. 2:15-16; FROG Motion, p. 2:8-9.) Alternatively, Plaintiffs seek terminating, evidence, or issue sanctions against Defendants for the motion to compel amended responses to form interrogatories and request for production. (See FROG Motion, p. 2:7-8, 2:11-12.)

Plaintiffs are entitled to seek sanctions against Defendant and their counsel of record because Plaintiffs are successful in bringing the motion to compel further amended responses to requests for admission and partially successful in bringing the motion to compel further amended responses to form interrogatories and request for production.

Plaintiffs’ counsel’s billing rate in this matter is $400 per hour. (Mitcheltree FROG Decl., ¶ 11; Mitcheltree RFA Decl., ¶ 11.) Plaintiffs’ counsel declares she has spent in excess of 6 hours drafting and revising the motion to compel further amended responses to form interrogatories and request for production and spent in excess of 5.5 hours drafting and revising the motion to compel further amended responses to requests for admission. (Mitcheltree FROG Decl., ¶ 11; Mitcheltree RFA Decl., ¶ 11.) Plaintiffs’ counsel asserts that Plaintiffs have also incurred a $60 filing fee to file each motion. (Mitcheltree FROG Decl., ¶ 12; Mitcheltree RFA Decl., ¶ 12.)

These are the fourth and fifth motions to compel filed by Plaintiff that the Court has granted. The Court GRANTS the requested monetary sanctions in the total amount of $4,720.00.