Joseph Hummel, et al. v. Castle Principles, LLC, et al. CASE NO. 112CV223170
DATE: 13 June 2014 TIME: 9:00 LINE NUMBER: 3
This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 12 June 2014. Please specify the issue to be contested when calling the Court and counsel.

On 13 June 2014, the motion of defendant and cross-defendant Gilwin Company (“Gilwin”) to compel defendants and cross-complainants Castle Principles, LLC, Castle Companies, Inc., Builders and Developers, and St. Thomas Construction, Inc. (collectively “Defendants”) to provide further responses to special interrogatories, set one (“SI”), form interrogatories, set one (“FI”), requests for admission, set one (“RFA”), and requests for production of documents, set one (“RPD”), was argued and submitted. Defendants filed a formal opposition to the motion.

Statement of Facts

This is a construction defect action. The plaintiffs are the owners of 34 single-family homes located in a development commonly known as West Dana Place Townhomes (“Townhomes”) in the City of Mountain View. The residences were allegedly developed, constructed, and sold by Defendants who acted as the general contractor and developer. Defendants hired Gilwin to supply windows for the Townhomes.

On 25 April 2012, the plaintiffs sued Defendants and various subcontractors hired by Defendants, including Gilwin, under Civil Code section 895, et seq. for violation of standards of residential construction. An order deeming the case complex was issued on 9 May 2012.

Defendants filed a cross-complaint on 25 June 2012, against various subcontractors, including Gilwin, alleging negligence and breach of contract. Defendants further allege that they have no insurance coverage of their own and every subcontractor and material supplier has a contractual duty to defend and indemnify them. Defendants claim that they are entitled to an immediate defense and recovery of their incurred attorneys’ fees and legal costs from the subcontractors under Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541 (hereinafter “Crawford”).

Presently, the case is set for trial on 7 July 2014.

Discovery Dispute

On 31 March 2014, Gilwin electronically served Defendants with the SI, FI, RFA, and RPD. (See Home Dec., p. 2:14-23, Exs. A, B, C, D.) The discovery requests primarily asked for information and documents pertaining to: Defendants’ contention that the windows supplied by Gilwin were defective; the amount of attorneys’ fees, legal costs, and expert costs incurred in defending against Plaintiffs’ allegations; the percentage of the attorneys’ fees, legal costs, and expert costs that were attributable to defending claims regarding the allegedly defective windows; whether Defendants had tendered defense of the litigation to any insurer; and whether any insurer had accepted tendering of the defense and reimbursed Defendants for their damages. (Id.)

Defendants requested an extension of time to respond to the discovery, which Gilwin declined to grant. (See Home Dec., p. 3:2-4.) Defendants served Gilwin with objection-only responses to the SI, FI, RFA, and RPD on 2 May 2014. (See Home Dec., p. 310-17, Exs. E, F, G, H.)

Gilwin’s counsel declares that, subsequent to the receipt of Defendants’ responses, he contacted Defendants’ counsel and explained why the information sought was relevant. (See Home Dec., p. 3:18-26.) Gilwin’s counsel advised Defendants’ counsel that the information and documents pertaining to Defendants’ attorneys’ fees, legal costs, and experts costs, incurred as a result of their defense of the instant litigation, was particularly important given the impending mediation scheduled for 23 May 2014, and the mandatory settlement conference scheduled for 20 June 2014. (Id.) Gilwin’s counsel declares that Defendants’ counsel then offered to produce billing statements setting forth the total amount of legal fees and costs incurred by no later than 14 May 2014. (See Home Dec., p. 3:26-28.)

Gilwin’s counsel sent Defendants’ counsel a letter on 6 May 2014, reflecting that Gilwin had agreed to postpone its motion to compel further responses to the discovery requests to allow Defendants time to produce billing statements setting forth the total amount of attorneys’ fees and costs incurred. (See Home Dec., Ex. I.) Gilwin’s counsel noted that Defendants’ counsel had “agreed not to assert the discovery motion cut-off date as a defense, should [Gilwin] need to bring a subsequent motion.” (Id.)

Gilwin’s counsel sent Defendants’ counsel a letter on 15 May 2014, stating that he had not received any “documentation setting forth Castle’s Crawford damages” and Gilwin would, therefore, be proceeding with its motion to compel further responses. (See Home Dec., Ex. J.)

On the following day, 16 May 2014, Defendants’ counsel sent Gilwin’s counsel an email stating generally the total amount of attorneys’ fees, legal costs, and expert costs incurred as of 31 March 2014. (See Home Dec., Ex. K.) He indicated that while his office had previously produced redacted billing files in another case, he misspoke when he stated that he would be able to provide the billing statements in this case. (Id.)

On 19 May 2014, Gilwin filed the instant motion to compel further responses to the SI, FI, RFA, and RPD. Defendants filed papers in opposition to the motion on 2 June 2014. Gilwin filed a reply on 9 June 2014.

Discussion

Gilwin moves to compel Defendants to provide further responses to the SI, FI, RFA, and RPD, within 5 calendar days of the date of the filing of this order, on the grounds that Defendants’ objections to the requests are without merit. Gilwin also requests that the Court issue “[a] statement admonishing [Defendants] that failure to full [sic] and completely comply with the court’s order will likely result in the imposition of an issue sanction [. . .] thereby precluding [Defendants] from introducing ANY evidence of its attorney’s fees and costs at the time of trial.” (Notice of Motion, p. 2:12-17.)

I. Separate Statement

As a preliminary matter, Defendants argue that Gilwin’s motion should be denied because its separate statement is inaccurate and inadequate.

California Rules of Court, rule 3.1345(a) states that “[a]ny motion involving the content of a discovery request or the response to such a request must be accompanied by a separate statement.” The motions that require a separate statement include a motion to compel further responses to requests for admission, interrogatories, and demands for inspection of documents. (See Cal. Rules of Court, rule 3.1345(a).)

The separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and response. (See Cal. Rules of Court, rule 3.1345(c).) As such, material must not be incorporated into the separate statement by reference. (Id.) The separate statement must include, for each discovery request to which a further response is requested, the text of the discovery request, the text of the response, and a statement of the factual and legal reasons for compelling a further response for each matter in dispute. (Id.)

A motion concerning interrogatories, inspection demands, or requests for admission must identify the discovery requests by set and number. (See Cal. Rules of Court, rule 3.1345(d).)

Here, Gilwin’s separate statement fails to comply with California Rules of Court, rule 3.1345.

First, Gilwin’s separate statement does not identify, by number, the individual discovery requests at issue in its motion. The Court is instead left to assume from Gilwin’s moving papers that Gilwin seeks to compel a further response to each and every discovery request contained in the SI, FI, RFA, and RPD. (See Notice of Motion, p. 2:1-11 [requesting an order compel responses to the SI, FI, RFA and RPD]; Mem. Ps & As., p. 8:1-19.)

Second, Gilwin’s separate statement is not full and complete. Gilwin attaches, as exhibits to its separate statement, the SI, FI, RFA, and RPD. (Sep. Stmt., p. 1:24-26.) Gilwin then incorporates the attached material into its separate statement by reference. (Id.) Gilwin does not include in its separate statement the text of each discovery request, the text of each response, or a statement of the factual and legal reasons for compelling a further response for each individual discovery request at issue. Instead, Gilwin omits the text of the discovery requests entirely. Gilwin states that Defendants have “provided the same” or “essentially [. . .] the same” response to “each and every interrogatory, request for production of documents, requests for admission and form interrogatories,” and then provides a single exemplar that is purportedly a verbatim recitation of the text of one of Defendants’ objection-only responses. (Sep. Stmt., p. 1:23-24, 2:1-17.)

Third, Gilwin’s separate statement is misleading and inaccurate because Defendants did not provide the same answer to each discovery request. With respect to the SI, Defendants provided identical objection-only answers which are the same as the text of the response that is quoted in Gilwin’s separate statement. However, while Defendants also provided objection-only answers to the RPD that are virtually identical to their answers to the SI, their responses to the RPD do not include, as their responses to the SI do, an objection to the requests as “improperly [requesting] a response in advance of the statutory period in which responding party has to respond.” (See e.g. Sep. Stmt., Ex. H, p. 2:1-15.) Similarly, Defendants’ objection-only answers to the RFA also do not include that objection. (See e.g. Sep. Stmt., Ex. G, p. 1:26-27, 2:1-12.) Moreover, Defendants’ objection-only answers to RFA Nos. 5-6 do not include objections to the requests based on over breadth, irrelevance, attorney-client privilege, and the work product doctrine. Finally, Defendants’ answers to FI No 1.1 and FI No. 17.1 are substantially different from their answers to the other discovery requests. Defendants objected to FI No. 1.1 solely on the basis of the attorney-client privilege. With respect to FI No. 17.1, Defendants merely incorporated by reference their objections to the RFA.

Despite the numerous deficiencies in Gilwin’s separate statement, in deference to the principle that matters should be decided upon their merits, the Court exercises its discretion and overlooks the same for the following reasons. (See Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 894 [the court has the discretion to, but is not required to, deny a motion for a deficient separate statement].)

First, Gilwin has provided the Court with copies of the SI, FI, RFA, and RPD and Defendants’ responses to the same, such that the deficiencies do not prevent the Court from addressing the merits of the motion.

Second, Gilwin clearly states in its separate statement and moving papers that it moves to compel further responses to the SI, FI, RFA, and RPD on the ground that Defendants’ objections are without merit. Defendants assert that this is insufficient and contend that Gilwin must “[lay] out each and every issue [it] has with [their] responses/objections” and “provide the Court with a road map to decide on [the] objections.” (Opp’n., p. 8:14-15, 19-20.) Defendants assert that they “[do] not have the ability to give clear responses justifying [their] objections” because Gilwin did not specify the issues it had with Defendants’ objections as to each discovery request individually. (Response to Sep. Stmt., p. 8:14-18.)

Defendants appear to misunderstand upon whom the burden is placed with respect to objections. Defendants provided objection-only responses to each and every discovery request and have the burden of justifying their objections. (See Coy v. Super. Ct., (1962) 58 Cal.2d 210, 220-221 [the burden is on the responding party to justify any objections or failure to fully answer]; Kirkland v. Super. Ct. (2002) 95 Cal.App.4th 92, 98.) Since Defendants bear that burden, it was not imperative for Gilwin to explain in detail the ways in which each objection asserted in response to each discovery request lacks merit. Moreover, in its separate statement, Gilwin did provide general reasons why every objection asserted by Defendants is without merit.

Accordingly, the Court denies Defendants’ request that the Court deny Gilwin’s motion on this basis.

II. The SI and FI

Gilwin moves to compel Defendants to provide further responses to SI Nos. 1-35 and FI Nos. 1.1 and 17.1, without objections. Defendants oppose the motion and argue that their objections have merit.

A. Legal Standard

After receiving responses to interrogatories, the propounding party may move for an order compelling further responses if the propounding party deems that an objection to an interrogatory is without merit or too general. (Code Civ. Proc., § 2030.300, subd. (a)(3).) The burden is on the responding party to justify any objections. (See Coy v. Super. Ct., supra, 58 Cal.2d at p. 220-221.)

B. Objections

1. Undefended Objections

Defendants raised numerous boilerplate objections in response to the discovery requests. Except as expressly noted below, Defendants do not attempt to defend their objections, and therefore, the Court finds that the undefended objections are without merit. (See Coy v. Super. Ct., supra, 58 Cal.2d at p. 220-221.)

2. Over Breadth, Vagueness, and Ambiguity

In their responses to SI Nos. 1-35 and FI No. 17.1, Defendants objected to the requests as overbroad, vague, and ambiguous.

In their opposition, Defendants argue that “[d]epending on the given question [. . .] there are some questions that are absolutely” overbroad, vague, and ambiguous. (Response to Sep. Stmt., p. 8:11-12, 21-22, 9:4-5.) Defendants contend that they cannot further justify their objections because “Gilwin has not specified a particular question in which it finds fault with [these objections].” (Response to Sep. Stmt., p. 8:24-26.)

As previously indicated, Gilwin indicates in its moving papers that all of Defendants objections are without merit. Moreover, Gilwin specifically asserts that the “requests as phrased were neither overbroad, vague nor ambiguous.” (Sep. Stmt., p. 3:16.) As Gilwin clearly finds fault with all of Defendants’ objections, Defendants must justify each and every objection asserted and should have the ability to do so without Gilwin first explaining to them how their objections are deficient.

Since Defendants fail to justify their objections based on over breadth, vagueness, and ambiguity, those objections are overruled.

3. Statutory Period to Respond

In their responses to SI Nos. 1-35, Defendants objected to the requests on the ground that they “improperly [request] a response in advance of the statutory period in which responding party has to respond to these interrogatories.” (Home Dec., Ex. E, p. 2:7-10.)

In their opposition, Defendants state that they “rightfully objected to these requests insofar as it improperly requested a response in advance of the statutory period in which [they] have to respond to these requests.” (Response to Sep. Stmt., p. 9:14-16.) Defendants do not explain how they reached their conclusion that the discovery requests asked for responses “in advance of the statutory period” during which they were to provide responses.

A responding party has 30 days from the date on which interrogatories, requests for admission, or requests for production of documents are served in which to provide a response. (Code Civ. Proc., §§ 2030.260, subd. (a) [interrogatories], 2033.250, subd. (a) [requests for admission], 2031.260, subd. (a) [request for production of documents].) The time in which to respond is extended by 2 court days if the discovery is served electronically. (Code Civ. Proc., § 1010.6, subd. (a)(4).)

Here, Gilwin electronically served the SI, FI, RFA, and RPD on 31 March 2014. Defendants’ responses were due within 32 days from 31 March 2014, on 2 May 2014. The SI generally indicated that Defendants’ responses should be served within 30 days of the date of service of the SI pursuant to Code of Civil Procedure section 2030.260. Defendants served their responses to the SI on 2 May 2014. Thus, it does not appear to the Court that Gilwin requested that Defendants serve their responses prior to 2 May 2014. Moreover, Defendants utilized the full statutory time period and served their responses to the SI on the last possible day, 2 May 2014. As such, even if the SI did request that Defendants serve their responses prior to 2 May 2014, Defendants were not prejudiced in any way.

Accordingly, this objection lacks merit and is overruled.

4. Requests Propounded on More than One Party

In their responses to SI Nos. 1-35 and FI No. 17.1, Defendants objected to the requests on the ground that they violate Code of Civil Procedure section 2030.030 “insofar as [the requests] are propounded on more than one party.” (Home Dec., Ex. E, p. 2:6-7.)

In their opposition, Defendants attempt to justify this objection and point out that, in the discovery requests, Gilwin described the responding party as Castle Principles, LLC, Castle Companies, Inc., Builders and Developers, and St. Thomas Construction, Inc., collectively. Defendants contend that they are three separate and distinct entities, and cannot be expected to respond to the SI as a single responding party.

Defendants assert that Code of Civil Procedure section 2030.030 stands for the proposition that one party may propound a single set of discovery to only one other party so “that one responding party can answer to its own unique circumstances.” (Opp’n., p. 4:21-23.) Defendants contend that the statute “does not allow for, for example, a party to simultaneously request, in a single discovery request, information from multiple different and distinct parties.” (Opp’n., p. 4:23-24.)

Code of Civil Procedure section 2030.030, subdivision (a) states that “[a] party may propound to another party” 35 special interrogatories and any additional number of official form interrogatories. On its face, the statute does not contain a prohibition against a party propounding a single interrogatory to multiple parties, but simply states that interrogatories may be propounded by a party to another party. As such Defendants’ contention is without merit.

Defendants also argue that since Gilwin has defined the responding party as the three entities collectively, “it is very confusing as to who is expected to respond and/or how separate and distinct entities are expected to respond in complete unison.” (Opp’n ., p. 5:1-2)

In its papers, Gilwin indicates that the SI “were drafted cumulatively to the Castle entities because they are collectively seeking one set of damages” and it “did not want to unnecessarily burden [Defendants] with having to unnecessarily respond to the same questions propounded as separate discovery requests to each individual Castle entity.” (Mem. Ps & A., p. 9:16-20.)

Here, Defendants have not established why they could not respond to the requests as drafted. Defendants could have prepared three separate and distinct sets of responses to the SI with each containing only one entity’s individual responses to the requests. Furthermore, Defendants could have served one set of responses to the SI and under each discovery request provided separate responses for each entity, as needed, that were differentiated by headings, numbers, or any other labeling device.

Moreover, Defendants have not identified a single discovery request to which their answers would have been different from one another. As indicated by Gilwin, Defendants collectively filed a cross-complaint and, thereafter, a first amended cross-complaint, and are seeking a single set of damages. Thus, is not clear to the Court why they could not provide a single response to the contention interrogatories (SI Nos. 20-22) or the SI asking for information about their damages (SI Nos. 1, 23-29). In addition, the Court notes that many of the SI ask for information about the attorneys’ fees and legal costs incurred by Defendants (SI Nos. 2-19, 30-35) and Defendants are jointly represented by the law firm of Weisberg & Miller. Thus, it appears that the attorneys’ fees and legal costs that Defendants have incurred would be common to all of them, such that they could provide a single response to the SI asking for that information.

Accordingly, this objection is overruled.

5. Relevance

In their responses to SI Nos. 1-35 and FI No. 17.1, Defendants objected to the requests as irrelevant.

In their opposition, Defendants argue that “[d]epending on the given question [. . .] there are some questions” that are not reasonably calculated to lead to discovery of admissible evidence. (Response to Sep. Stmt., p. 9:19-20.) Defendants contend that they cannot further justify their objections because “Gilwin has not specified a particular question in which it finds fault with [these objections].” (Response to Sep. Stmt., p. 9:22-25.)

As previously indicated, Gilwin indicates in its moving papers that all of Defendants objections are without merit. Moreover, in its moving papers, Gilwin specifically asserts that Defendants’ relevancy objection is “specious.” (Mem. Ps & As., p. 10:11.) As Gilwin clearly finds fault with all of Defendants’ objections, Defendants must justify each and every objection asserted and should have the ability to do so without Gilwin first explaining to them how their objections are deficient.

Furthermore, as addressed in detail below, the information sought by SI Nos. 1-35 and FI No. 17.1 is relevant.

FI No. 17.1 asks Defendants to identify its responses to the RFA that are qualified admissions, state the facts upon which they base their responses, identify persons with knowledge of those facts, and identify documents that support their responses. It is self-evident that facts, persons, and documents that support Defendants’ qualified admissions are relevant to the instant case.

With regard to SI Nos. 20-22, the requests ask Defendants if they contend that the windows manufactured by Gilwin were defective and, if so, to identify persons and documents that support their contention. The information sought by SI Nos. 20-22 is relevant to Defendants’ claim that the windows supplied by Gilwin were defective and will assist Gilwin in evaluating the merits of the same.

SI Nos. 1-19 and 23-35 ask Defendants for information about: attorneys’ fees, legal costs, and damages incurred by them; insurers whom are defending them in this matter; and documents referencing or supporting their attorneys’ fees, legal costs, damages, and interactions with insurers. Information about the amount of attorneys’ fees, legal costs, and damages that Defendants have incurred as a result of defending themselves in this matter is relevant to the instant case because they are claiming that they are entitled to recover those amounts from their subcontractors under Crawford. This information is necessary for Gilwin to evaluate the accuracy of Defendants’ claimed damages and assess the admissible evidence that Defendants will use to support their claim at trial. The information is also needed for settlement purposes, as Gilwin’s insurer is not willing to extend settlement authority to resolve undocumented claims for damages.

Accordingly, this objection is overruled.

6. Attorney-Client Privilege and Work Product Doctrine

In their responses to SI Nos. 1-35 and FI Nos. 1.1 and 17.1, Defendants objected to the requests on the grounds that the requests violate the attorney-client privilege and work product doctrine.

In their opposition, Defendants argue only that the production of detailed billing records from its attorneys would invade the attorney-client privilege and work product doctrine. However, the FI and SI do not seek the production of any such documents, but merely ask Defendants to identify information, persons with knowledge of information, and documents that contain relevant information.

For example, FI No. 1.1 asks Defendants to identify the person or person who assisted them in the preparation of their responses. Defendants fail to establish why mere identification of such a person would invade either the attorney-client privilege or work product doctrine. Similarly, Defendants do not show how disclosure of the information sought by FI No. 17.1, facts and the identity of persons and documents which support Defendants’ qualified admissions, violates the attorney-client privilege or work product doctrine.

SI Nos. 20-22 ask Defendants if they contend that the windows manufactured by Gilwin were defective, and to identify persons and documents that support their contention. Defendants fail to establish why the identification of facts, persons, and documents that support their contentions would invade the attorney-client privilege and work product doctrine.

SI Nos. 1-19 and 23-35 ask Defendants for information about attorneys’ fees, legal costs, and damages incurred by them and insurers whom are defending them in this matter, and to identify documents referencing or supporting the information sought. Defendants fail to explain how the mere identification of the amounts of damages, attorneys’ fees, legal costs, and investigation costs invades the attorney-client privilege or violates the work product doctrine. Moreover, the law is settled that the mere identification of documents typically does not implicate the work product doctrine or attorney-client privilege. (See Hernandez v. Super. Ct. (2003) 112 Cal.App.4th 285, 293.)

Accordingly, this objection is overruled.

C. Conclusion

Accordingly, all of Defendants’ objections are overruled and a further response is warranted to FI Nos. 1.1 and 17.1 and SI Nos. 1-35.

III. The RFA

Gilwin moves to compel Defendants to provide further responses to RFA Nos. 1-10, without objections. Defendants oppose the motion and argue that their objections have merit.

A. Legal Standard

The party propounding requests for admissions may move for an order compelling a further response if that party deems that an objection is without merit or too general. (Code of Civ. Proc. § 2033.290, subd. (a).) The party objecting to a discovery request bears the burden of explaining and justifying the objections. (See Coy v. Super. Ct., supra, 58 Cal.2d at p. 220-221.)

B. Objections

Defendants provided objection-only responses to the RFA. In their responses to the RFA, Defendants objected on one or more of the following grounds: lack of foundation, overbreadth, vagueness, ambiguity, violating Code of Civil Procedure section 2033.060 by propounding requests to more than one party, relevance, attorney-client privilege, and work product doctrine.

In their opposition, Defendants do not defend their objection based on lack of foundation and the Court finds that the undefended objections are without merit. (See Coy v. Super. Ct., supra, 58 Cal.2d at p. 220-221.)

Defendants do attempt to defend their objections on the grounds of: over breadth, vagueness, ambiguity, violating Code of Civil Procedure section 2033.060 by propounding requests to more than one party, relevance, attorney-client privilege, and work product doctrine. Defendants offer the same arguments in support of those objections that they proffered with respect to the SI.

As previously indicated, the RFA ask Defendants to admit information about their contentions regarding the defectiveness of the windows supplied by Gilwin, and their attorneys’ fees, legal costs, and damages incurred as a result of defending themselves in this litigation. Since the RFA seek admissions regarding essentially the same information as sought by the SI and all of Defendants objections to the SI are overruled, Defendants’ objections to the RFA are overruled as well.

Accordingly, further responses to RFA Nos. 1-10 are warranted.

IV. The RPD

Gilwin moves to compel Defendants to provide further responses to RPD Nos. 1-19, without objections. Defendants oppose the motion and argue that their objections have merit.

A. Legal Standard

A party propounding a request for production may move for an order compelling a further response if it deems that an objection in the response is without merit or too general. (Code Civ. Proc., § 2031.310, subds. (a)(3).) The motion must set forth “specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1); Kirkland v. Super. Ct., supra, 95 Cal.App.4th at p. 98.) Good cause is established simply by a fact-specific showing of relevance. (Id.) If good cause is shown, the burden shifts to the responding party to justify any objections. (Id.)

B. Good Cause

Discovery is allowed for any matters that are not privileged, relevant to the subject matter involved in the action, and reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.010.) The “relevance to the subject matter” and “reasonably calculated to lead to discovery of admissible evidence” standards are applied liberally with any doubt generally resolved in favor of discovery. (Colonial Life & Acc. Ins. Co. v. Super. Ct. (1982) 31 Cal.3d 785, 790.) 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. (Gonzalez v. Super. Ct. (1995) 33 Cal.App.4th 1539, 1546.)

RPD Nos. 1, 13-17, and 19 ask Defendants to produce documents that they identified in their responses to SI Nos. 13-17 and FI No. 17.1. RPD Nos. 2-3 ask Defendants to produce documents evidencing the amount of attorneys’ fees or legal costs incurred in defense of the plaintiffs’ allegations. RPD Nos. 4-5 ask Defendants to produce documents sent to or received from an insurer regarding Defendants’ request that the insurer defend and indemnify them against the plaintiffs’ allegations. RPD Nos. 6-7 ask Defendants to produce documents evidencing the amount paid by each insurer for attorneys’ fees or legal costs that Defendants have incurred. RPD Nos. 8-9 ask Defendants to produce documents evidencing the amount Defendants have incurred in attorneys’ fees and legal costs in this litigation that have not been paid by any insurer. RPD Nos. 10-11 ask Defendants to produce documents that reference facts that support the percentage of attorneys’ fees and legal costs they have incurred that are attributable to the work that was performed by each cross-defendant.

It is self-evident that the documents sought by RPD Nos. 1, 13-17, and 19 are relevant because they are documents that Defendants have identified in response to the FI and SI as containing relevant information. The documents sought by RPD Nos. 2-11 are relevant to Defendants’ claim for Crawford damages since Defendants must establish that: they attempted to tender the defense of the action to the subcontractors’ insurers; the amount of attorneys’ fees, legal costs, and damages incurred as a result of defending against Plaintiffs’ allegations; and the percentage of the attorneys’ fees, legal costs, and damages that are attributable to each subcontractor’s work. (See Crawford (2008) 44 Cal.4th 541, 568.)

Accordingly, there is good cause for the discovery sought.

C. Objections

Defendants provided objection-only responses to the RPD. In their responses to the RPD, Defendants objected on the grounds of: lack of foundation, over breadth, vagueness, ambiguity, violating Code of Civil Procedure section 2031.030 by propounding requests to more than one party, relevance, attorney-client privilege, and work product doctrine.

In their opposition, Defendants do not defend their objection based on lack of foundation and the Court finds that the undefended objections are without merit. (See Coy v. Super. Ct., supra, 58 Cal.2d at p. 220-221.)

In their opposition, Defendants do attempt to defend their other objections. Defendants make the same arguments in support of their objections based on over breadth, vagueness, ambiguity, and violating Code of Civil Procedure section 2031.030 by propounding requests to more than one party, that they made with respect to the SI, FI, and RFA.

The RPD ask Defendants to produce documents that they identified in their response to the SI and FI and contain information that supports their contentions regarding the defectiveness of the windows supplied by Gilwin. Furthermore, the RPD ask Defendants to admit information about their attorneys’ fees, legal costs, and damages incurred as a result of defending themselves in this litigation.

Since the RPD seek documents pertaining to the same information that is sought by the SI, FI, and RFA and Defendants’ objections to the SI, FI, and RFA are overruled, Defendants’ objections to the RPD on the grounds of over breadth, vagueness, ambiguity, and violating Code of Civil Procedure section 2031.030 by propounding requests to more than one party, are overruled as well.

1. Relevance

With respect to their relevance objection, Defendants concede that evidence of their “legal fees, costs, and expert expenses” are likely relevant and they “do not oppose” Gilwin’s pursuit of the same (Opp’n., p. 2:4-8). However, Defendants point out that Gilwin argues in its papers that Defendants’ attorneys’ detailed billing records are relevant to show whether their attorneys’ fees and costs may have been excessive. Defendants argue that the reasonableness of the amount of attorneys’ fees and legal costs incurred is irrelevant under Crawford. (Opp’n., p. 3:19-21.) Defendants assert that the “only thing that is relevant when evaluating fees and costs paid [sic] Defendants/Cross-Complainants in Crawford, is whether Defendants/Cross-Complainants paid those fees and costs, and how much Defendants/Cross-Complainants paid.” (Opp’n., p. 3:16-19.)

Defendants do not cite any authority to support their argument that, under Crawford, a court awarding damages for attorneys’ fees and legal costs may not consider the reasonableness of the fees and costs incurred. Crawford does not address the issue of whether the reasonableness of the fees incurred is a matter that may be appropriately considered when determining an award of attorneys’ fees and legal costs and the Court was unable to locate any case law on point.

Regardless, even assuming arguendo that the reasonableness of the amount of attorneys’ fees and legal costs is irrelevant under Crawford, the billing records are still relevant.

In Crawford, the defendant and cross-complainant general contractor and/or developer presented evidence that it had incurred $ 375,069 in attorneys’ fees to defend the plaintiffs’ claims, and that 70 percent of the settlement amount was attributable to window problems. (Crawford (2008) 44 Cal.4th 541, 549.) The general contractor therefore argued that the two subcontractors who supplied and installed the windows were together liable for 70 percent of its defense fees, or $ 262,548.00. (Id.) The court apportioned this amount equally between the two subcontractors. (Id.) The Court of Appeal upheld the trial court’s decision, finding the two subcontractors liable for the general contractor’s defense. (Crawford (2008) 44 Cal.4th 541, 550.) The California Supreme Court affirmed the Court of Appeal’s decision and held that the subcontractors had a duty to defend the general contractor against claims “founded upon” damage or loss caused by the subcontractors’ allegedly negligent work performance, regardless of whether it was ultimately determined that the subcontractors were actually negligent. (Crawford (2008) 44 Cal.4th 541, 568.)

Thus, under Crawford, Defendants may seek damages from their subcontractors, who have refused to accept their tendering of the defense of this litigation, for attorneys’ fees and legal costs that directly arise from the defense of the plaintiffs’ claims to the extent that they stem from the scope of the subcontractors’ work. (Id.) A subcontractor, such as Gilwin, would not be required to contribute to the payment of any attorneys’ fees, legal costs, or expert costs that were associated with the defense of claims arising from the work of any other subcontractor at the Townhomes, the prosecution of Defendants’ cross-complaint against any other subcontractors in this action, or any defense activity unrelated to the plaintiffs’ claims against Defendants specifically arising from Gilwin’s scope of work at the Townhomes. Moreover, Defendants would not be able to recover any attorneys’ fees or legal costs associated with determining insurance coverage under Crawford.

As such, the detailed billing records of Defendants’ attorneys are relevant to establish what portion of the attorneys’ fees and legal costs are attributable to the litigation pertaining to the work performed by Gilwin at the Townhomes and the plaintiffs’ allegations regarding the same. The billing records would also reveal whether portions of the attorneys’ fees and legal costs claimed by Defendants were not directly related to the defense against the plaintiffs’ allegations in the instant litigation.

Accordingly, Defendants’ relevance objection is overruled.

2. Attorney-Client Privilege and Work Product Doctrine

With respect to their objections based upon the attorney-client privilege and work product doctrine, Defendants argue that “detailed billing records may, for instance, reveal ‘litigation strategy, or the specific nature of the services,’” which is protected under the attorney-client privilege and work product doctrine. (Opp’n., p. 2:25-26, 3:1-2.)

While the billing records may have been protected under the attorney-client privilege and/or work product doctrine, by claiming that they are entitled to their full amount of attorneys’ fees and legal costs as damages, Defendants have placed their attorneys’ bills in issue and impliedly waived the protections of the attorney-client privilege and the attorney work product doctrine that may have otherwise attached to those bills. (See United States v. Amlani (9th Cir. 1999) 169 F.3d 1189, 1195-1196 [privilege as to attorney bills waived where party places bills in issue]; Southern California Gas Company v. Public Utility Commission (1990) 50 Cal.3d 31, 40 [attorney-client privilege must give way when the client has put the otherwise privileged communications directly at issue and that disclosure is essential for a fair adjudication of the action].) Defendants must prove that the specific tasks performed by their attorneys were necessarily performed as a result of Plaintiffs’ claims pertaining to Gilwin’s alleged negligence in order to prove their Crawford damages. (See Crawford (2008) 44 Cal.4th 541, 568.)

Furthermore, it would be impossible for Gilwin to properly evaluate and defend against Defendants’ damage claims without obtaining the attorney bills at issue. Defendants disagree and argue that the same information can be obtained via declarations.

Defendants submit a declaration from Ken Rueckert (“Mr. Rueckert”), the chief financial officer for St. Thomas Construction Company, who indicates that, since the inception of this matter, the Castle entities have collectively incurred $156,858.00 in legal fees and $19,824.52 in costs relating to the defense and prosecution of this matter. Mr. Rueckert states that the Castle entities have paid $167,520.00 of the $177,682.52 billing incurred. The declaration also lists additional expert and/or consultant fees and mediation costs that have been incurred. Attached to the declaration is a billing summary from the law firm of Weisberg & Miller which breaks down the total amount incurred into fees incurred, costs incurred, and payments made to date.

Mr. Rueckert further states that, to the best of his belief and knowledge, “there is no policy of insurance in effect through which Castle is or may have been entitled to coverage for the losses claimed in this action except for those which are or were required to be procured by the subcontractors” and “Castle has received no monies or reimbursement for any costs and fees it has incurred.” Defendants contend that the declaration from Mr. Rueckert “is the only ‘evidence’ that Gilwin needs to allow it to evaluate this case.”

However, the declaration from Mr. Rueckert does not contain information about the percentage of the attorneys’ fees and costs that are attributable to the work performed by Gilwin as compared to the work performed by the other cross-defendants. The attorney bills are the best evidence available that demonstrates what Defendants’ attorneys did and whether the tasks were related to allegations stemming from work performed by Gilwin. Moreover, the billing records are the most reliable means for Gilwin to evaluate the merit of Defendants’ claims as the amounts of attorneys’ fees and legal costs incurred.

Accordingly, these objections are overruled.

D. Conclusion

All of Defendants’ objections are overruled and further responses to RPD Nos. 1-19 are therefore warranted.

V. Admonishment Regarding Issue and Evidentiary Sanctions

Gilwin requests that the Court issue a statement admonishing Defendants that failure to fully and completely comply with this Court’s order would likely result in the imposition of issue or evidentiary sanctions. Gilwin makes this request despite the fact that it acknowledges that “the court cannot proactively issue an evidentiary or issue sanction.” (Mem. Ps & As., p. 2:24.)

Gilwin contends that such a statement is appropriate because Defendants have “refused to answer [its] discovery requests into its Crawford damages” and “previously did the same to Beutler.” Gilwin asserts that Defendants have “aptly demonstrated that it does not intend to voluntarily comply with the discovery process.”(Mem. Ps & As., p. 11:11-15.)

Gilwin cites no legal authority for its request that the Court make such an admonishment. Moreover, the Court will not prejudge the likelihood of the imposition of issue or evidentiary sanctions based upon Gilwin’s speculation that Defendants may violate this Court’s order at some time in the future, as an award of issue and/or evidentiary sanctions is dependent upon the specific circumstances and facts surrounding the failure to comply.

Accordingly, the Court declines to make the requested admonishment.

Conclusion and Order

Gilwin’s motion to compel further responses to SI Nos. 1-35, FI Nos. 1.1 and 17.1, RFA Nos. 1-10, and RPD Nos. 1-19 is GRANTED. Accordingly, within 5 calendar days of the date of the filing of this Order, Defendants shall provide verified code-compliant further responses to SI Nos. 1-35, FI Nos. 1.1 and 171., RFA Nos. 1-10, and RPD Nos. 1-19, without objections, and produce documents in accordance with their responses to the RPD.