Tentative Ruling

Judge Colleen Sterne
Department 5 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION
McCoy Electric Corporation v. Annette Rubin, et al.
Case No: 16CV03591
Hearing Date: Mon Mar 02, 2020 9:30

Nature of Proceedings: Motions to Compel

McCoy Electric Corporation v. A. Stuart Rubin and Annette Rubin

(Judge Sterne)

Case No. 16CV03591

Hearing Date: March 2, 2020

HEARING: (1) Motion of Cross-Defendant Construction Plumbing to Compel Further Responses to Inspection Demands

(2) Motion of Cross-Defendant Construction Plumbing to Compel Further Responses to Interrogatories

ATTORNEYS:

For Plaintiff McCoy Electric Corporation: Barton C. Merrill

For Defendants, Cross-Complainants, and Cross-Defendants A. Stuart Rubin and Annette Rubin: Patrick C. McGarrigle, Michael J. Kenney, McGarrigle, Kenney & Zampiello

For Cross-Defendant and Cross-Complainant The Las Canoas Co. dba Construction Plumbing: Daniel E. Engel

TENTATIVE RULING:

(1) The motion of cross-defendant Construction Plumbing to compel further responses to inspection demands is denied as moot subject to the following qualification: The court deems the responses of cross-complaints A. Stuart Rubin and Annette Rubin to state that all documents responsive to the requests have been produced and that no documents responsive to any request have been withheld on the grounds of any objection, including objections as to privilege. To the extent that any responding party asserts that any responsive document has been withheld from production, the responding party shall, on or before March 16, 2020, serve a privilege log identifying each responsive document withheld, the request from which the document is withheld, the objection or privilege asserted as the basis for withholding such document from production, and sufficient additional factual information as is necessary for the court to determine the application of the objection or privilege.

(2) Hearing of the motion of cross-defendant Construction Plumbing to compel further responses to interrogatories is continued to April 6, 2020. The parties are ordered to meet and confer, in person or by telephone, as set forth herein, which meet and confer process shall be completed on or before March 23, 2020. The parties shall file and serve their declarations and joint report (or separate reports) regarding the meet and confer process and remaining disputes on or before March 24, 2020.

Background:

This action arises from construction work performed by plaintiff McCoy Electric Corporation (McCoy) at property owned by defendants Annette and Stuart Rubin (collectively, the Rubins). McCoy filed suit against the Rubins in August 2016 seeking unpaid fees for the work. On October 17, 2016, the Rubins answered and cross-complained against plaintiff and its principal, including claims involving defective construction, overcharging, and conversion of materials. They filed a First Amended Cross-Complaint on January 23, 2017. On February 10, 2017, McCoy Electric then filed a cross-complaint for indemnity, contribution and declaratory relief solely against fictitiously named defendants.

After various substitutions of counsel and discovery disputes, on August 26, 2019 (followed by written order entered September 16, 2019), the court granted the Rubins leave to file a cross-complaint against multiple contractors involved in the construction at issue. This second, third-party cross-complaint was filed on September 19, 2019. Among the claims in this cross-complaint are the third cause of action for negligence and the seventh cause of action breach of contract asserted against cross-defendant The Las Canoas Co. dba Construction Plumbing (Construction Plumbing).

On October 25, 2019, Construction Plumbing filed its answer to the Rubins’ cross-complaint, generally denying the allegations of thereof and asserting affirmative defenses. Construction Plumbing concurrently filed a cross-complaint against the Rubins.

On December 11, 2019, Construction Plumbing served revised versions of its requests for production of documents (inspection demands), sets one, two, and three, to the Rubins that were originally served on October 24, 2019, correcting formatting defects in the original versions. (Engel decl., ¶ 3.)

On December 12, 2019, Construction Plumbing served its request for production of documents, set four. (Engel decl., ¶ 4.)

On January 13, 2020, Construction Plumbing received unverified responses to the requests for production of documents, sets one through four. (Engel decl., ¶ 13.)

On January 23, 2020, counsel for Construction Plumbing, attorney Daniel E. Engel, sent a letter to counsel for the Rubins, attorney Patrick McGarrigle, asserting deficiencies in the responses to the requests for production of documents. (Engel decl., ¶ 14 & exhibit D.) (Note: Both parties papers fail to include electronic bookmarks as required by California Rules of Court, rule 3.1110(f)(4).) The email concluded: “If you are unwilling to withdraw any of your meritless objections, and if your clients are unwilling to agree to comply or make a representation of an inability to comply with any of the inspection demands under oath, then I will conclude that no effort on my part would ever result in an informal resolution of this dispute, and a third motion to compel further responses will need to be filed. And, I will proceed to do so on January 29, 2020.” (Ibid.)

On January 27, 2020, Engel followed up with another email stating that no response had been received as to the January 23 email and stating, “If I don’t hear from you today, I will assume that you have no intention of voluntarily serving verified further responses without the meritless nuisance objections and that comply with the applicable Code sections. And, I will proceed to file what will be my third motion to compel without further delay.” (Engel decl., ¶ 15 & exhibit E.)

On January 28, 2020, Engel received an email from McGarrigle responding to the January 23 email stating: “The Rubins will provide supplemental verified responses to the sets of DFPs from CP, referenced below and compliant with CCP Section 2020 et seq., by February 17, 2020. Any deadline for CP to move to compel is hereby extended ….” (Engel decl., ¶ 16 & exhibit F.) Shortly thereafter, Engel responded with an email stating that the promise of supplemental responses was insufficient and that Engel could not trust either McGarrigle or his clients unless they stipulated to provide responses without objections by February 17. (Engel decl., ¶ 17 & exhibit G.) McGarrigle promptly responded with an email, rejecting the stipulation, reiterating their agreement to provide supplemental responses, and addressing the “trust” issue. (Engel decl., ¶ 18 & exhibit H.) Engel responded with another email that essentially restated his earlier email. (Engel decl., ¶ 19 & exhibit I.) McGarrigle did not respond to this email. (Engel decl., ¶ 20.)

On January 30, 2020, Construction Plumbing filed its motion to compel further responses to the requests for production of documents, sets one through four.

On February 17, 2020, the Rubins served their supplemental responses to the requests for production of documents. (Kenney decl., ¶ 2 & exhibits 1-4.)

On February 18, 2020, the Rubins filed and served their opposition to the motion to compel further responses to the requests for production of documents. Among other things, the Rubins assert that the motion is moot because of the service of supplemental responses.

On February 3, 2020, Construction Plumbing filed a separate motion to compel further responses to interrogatories that was originally set to be heard on March 9. The court, on its own motion, reset the hearing of this motion from March 9 to March 2, by notice mailed on February 13. Opposition to this motion was not timely filed based on the March 2 hearing date. This motion is separately discussed below.

Analysis:

(1) Motion to Compel Further Responses to Requests for Production of Documents

The format of the requests for production (RFP) that are the subject of this motion are essentially of two types. The first type is exemplified in request No. 1:

RFP No. 1: “Each Document3 that Annette Rubin and A. Stuart Rubin were asked to identify in response to Form Interrogatory No. 17.1(a) dated October 23, 2019, and served by email on October 24, 2019. [¶]

“3As used herein, the term Document has the same meaning given to it in the instructions to Form Interrogatories, Set 1 served on October 23, 2019.”

Original response to RFP No. 1: “Responding Parties object to the instant discovery request on the grounds that the request is vague, violates C.C.P. §2023.060(d) in that it is not full and complete in and of itself, ambiguous, unduly burdensome, oppressive, seeks information known and/or equally available to the propounding party, calls for legal reasoning and/or expert testimony, violates the rights of privacy of Responding Parties (and others) under federal, state and common law, and violates attorney client privilege and/or attorney work product doctrine.

Responding Parties further object that the discovery request in question prematurely seeks expert witness information and/or opinion in violation of

C.C.P. §2034, et seq. Without waiving those objections, and in the spirit of discovery, Responding Parties respond as follows: Pursuant to C.C.P. §2030.230, Propounding Party is directed to the documents previously produced in response to Propounding Party’s Demands for Production, as well as those documents in Propounding Party’s own possession at [sic] including those appended to Propounding Party’s Cross-Complaint at Ex. 2 Discovery and investigation are continuing.” (Separate Statement, pp. 2-3.)

The supplemental response (served immediately prior to service of the opposition) to RFP No. 1 is: “Responding Party objects to the instant discovery request (a) by incorporating the objections set forth in the responses to the requests for admissions that are the subject of the subject Form Interrogatory No. 17.1(a) and (b) on the grounds that the instant request is not full and complete in and of itself, seeks expert discovery in violation of C.C.P. Section 2034, seeks documents in violation of the rights of privacy of Responding Party (and others) under federal, state and common law, and in violation of the attorney-client privilege and/or attorney work product doctrine. Without waiving these or any other objections, Responding Party responds as follows: To the extent that the Responding Party’s response to the subject Form Interrogatory identifies any documents, Responding Party has previously produced to Propounding Party (and others in the litigation) those documents in their possession, custody and control responsive to this Request after a reasonable and diligent search therefor. Notwithstanding same, Responding Party reserves the right to produce and rely upon later discovered and produced documents (as well as documents later produced by the parties in this litigation). As discovery and investigation is continuing, Responding Party’s rights concerning the supplemental production of documents are reserved.” (Kenney decl., exhibit 1.)

There is also a preliminary statement, general objections, and reservations, none of which provides any information or qualifications that is not included in the response to the specific request or in the Code of Civil Procedure. As discussed generally with respect to objections below, the court disregards the preliminary statement, general objections, and reservations.

There are asserted two basic objections: one of form and one of privilege. The first aspect of the objection as to form is, as stated, technically improper. The “full and complete” requirement exists for interrogatories (Code Civ. Proc., § 2030.060, subd. (d)) but not for requests for production. Requests for production only require that the request “[d]esignate the documents, tangible things, land or other property, or electronically stored information to be inspected, copied, tested, or sampled either by specifically describing each individual item or by reasonably particularizing each category of item.” (Code Civ. Proc., § 2031.030, subd. (c)(1).) The second aspect of the objection as to form is that the request, as written, does not seek production of documents that have been identified in response to an interrogatory (which would be reasonably particularized) but instead seeks production of documents that are requested to be identified by an interrogatory. The difference is in the objections. By framing the request as incorporating the interrogatory rather than its response, the request invites a response that incorporates the objections to the interrogatory. As this exercise demonstrates, this is a particularly ineffective way of framing a request. It is much clearer to either seek the documents that have been identified in response to the interrogatory or state the request directly without incorporation by reference.

The second objection is one of privilege, either as an evidentiary privilege or as a discovery privilege. “If the responding party objects to the demand for inspection, copying, testing, or sampling of an item or category of item, the response shall do both of the following:

“(1) Identify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made.

“(2) Set forth clearly the extent of, and the specific ground for, the objection. If an objection is based on a claim of privilege, the particular privilege invoked shall be stated. If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted.” (Code Civ. Proc., § 2031.240, subd. (b).) “If an objection is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.” (Code Civ. Proc., § 2031.240, subd. (c)(1).)

The Rubins have failed to identify any documents withheld on the basis of any objection. The Rubins have also failed to provide any factual information to evaluate the merits of that claim. The substantive response, purportedly subject to these objections, is that all responsive documents have already been produced. The subsequent language relating to discovery continuing (“Notwithstanding ….”) is wholly redundant. A discovery response need only be correct as of when it is made and there is no obligation to provide any continuing updates. (Code Civ. Proc., §§ 2031.050, 2031.220, 2031.230, 2031.240, subd. (a).)

Although no model of responding, unless otherwise qualified by the Rubins as discussed below, the court understands the response to be that all documents responsive to the request have been produced and that no documents responsive to the request have been withheld on the grounds of any objection, including objections as to privilege. Provided that this understanding is correct, there is nothing further to compel by way of a written response. To the extent that this understanding is incorrect, the Rubins will be required to serve a privilege log complying with section 2031.240 which identifies each document withheld from production and the objection upon which the document is withheld and which includes such additional factual information as is required for the court to determine the application of the objection or privilege.

The second type of request states the request directly (albeit with varying degrees of clarity) and is subject to the same supplemental responses which the court understands to mean that all responsive documents have already been produced. Again, to the extent that any responsive documents have been withheld, it is the Rubins’ obligation to provide a log of such documents.

The court therefore determines that there is nothing further to compel and the motion will be denied with the qualifications set forth herein.

With this said, the court notes that the manner in which both counsel have handled this discovery dispute leaves much to be desired. “[I]t is a ‘central precept’ of the Civil Discovery Act of 1986 that discovery ‘be essentially self-executing.’ [Citation.] Thus reasonable and good faith efforts at informal resolution of discovery disputes are no doubt a key part of the discovery system. It is also a central precept of the discovery system, however, that ‘[i]n order to accomplish the various legislative purposes [of the discovery law], the several statutes must be construed liberally in favor of disclosure …’ [Citations.] Thus discovery statutes have generally been construed to uphold the right to discovery wherever reasonable and possible.” (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 434.)

The fundamental concern for the court is whether, after a statutorily-reasonable search for information or documents is made, all responsive information or documents have been produced and whether any responsive information or documents have been withheld on the basis of an objection. If nothing has been withheld, then a proper response should unambiguously so indicate. If something has been withheld, then the response should clearly identify what has been withheld. If the response is intended to be qualified (by date, subject matter, or otherwise), the qualification should be unambiguous so that it is clear from the text of the response what is or is not included in the response. Where there are disputes, the parties need to address the disputes item-by-item and objection-by-objection. It is insufficient to generally object or to generally assume that further discussion is fruitless. Filing motions when there is a pending, reasonable agreement to provide further responses is unacceptable. Even if the further responses do not eliminate all disputes, those responses will either limit the scope of the remaining disputes or demonstrate that the responding party is unwilling to compromise on a particular issue.

The court does not address whether, or to what extent, the production of documents here meets the statutory requirements for production. The court expects that if there are any disputes on that subject the parties will engage in a thorough meet and confer process, in person or by telephone, so that, if further motion practice is required, it is clearly and specifically documented how the production is or is not sufficient.

(2) Motion to Compel Further Responses to Interrogatories

The second motion now pending before the court was advanced by the court for hearing on March 2, 2020. As set forth in the opposition to the motion filed on February 25, 2020, the timing of the notice from the court provided difficulty in timely filing opposition and has correspondingly prevented the reasonable filing of a reply.

The court orders the parties to further meet and confer in person or by telephone with respect to this outstanding discovery in light of the court’s discussion above. The parties are required to address each separate interrogatory and each separate objection. As noted above, the focus of the parties’ discussion should be on completeness of the response and clarity in identifying the extent, if any, that information is being withheld on the basis of an objection, and the extent, if any, that the response is qualified. Counsel shall file declarations that this has been accomplished. If feasible, the parties shall provide a joint report identifying any remaining disputes and the positions of the parties as to those disputed. If not feasible, counsel shall separately file reports setting forth their respective disputes and positions. If all disputes have been resolved, counsel for the moving party shall file a notice to that effect and requesting that the matter go off calendar. The court will continue this motion to permit this process to be accomplished.