Case Name: Bay Area Property Developers LLC v. San Jose Midtown Development LLC, et al.
Case No.: 2016-1-CV-295197

This is an action for breach of a contract for the sale of real property. According to the allegations of the first amended complaint (“FAC”), on November 23, 2014, plaintiff Bay Area Property Developers LLC (“Plaintiff”) and defendant San Jose Midtown Development, LLC (“SJMD”) entered into a Purchase and Sale Agreement (“PSA”) for certain real property on West San Carlos Street and Sunol Street in San Jose. (See FAC, ¶¶ 1-4, 11.) The purchase price was $7.5 million, but was subject to a condition that Defendant provide a remediation plan to Plaintiff for Plaintiff’s reasonable approval. (See FAC, ¶ 11.) Plaintiff stated that the remediation plan was required to be in compliance with the relevant ordinances, statutes, laws and governmental administrative requirements such that the subject property could be used for Plaintiff’s purposes. (See FAC, ¶ 11-13.) In March 2016, after the parties extended the close of escrow on multiple occasions, SJMD finally engaged with the County’s Department of Environmental Health’s Materials Compliance Division, and obtained an environmental remediation plan that was from a single bid from an out-of-state company and cannot be considered to accomplish compliant remediation. (See FAC, ¶¶ 14-17.) In late April 2016, SJMD stated that it would no longer perform its obligations under the PSA and would only sell the property to Plaintiff if it paid an additional $1 million, assign its rights under a PSA for a different property to SJMD, and make several other amendments to the PSA. (See FAC, ¶ 18.)

On September 28, 2016, Plaintiff filed the FAC against SJMD, Jerry C. Martin, Jr. (“Martin”), and J.C. Martin Company (“JCMC”), asserting causes of action for:

1) Declaratory relief (against SJMD);
2) Breach of contract (against SJMD);
3) Specific performance (against SJMD);
4) Intentional interference with contractual relations (against all defendants);
5) Unfair competition (against all defendants); and,
6) Unfair competition (against all defendants).

On September 1, 2017, Plaintiff hand served its first set of discovery consisting of form interrogatories (“FIs”), requests for production of documents (“RPDs”), and requests for admissions (“RFAs”) on defendant SJMD. On October 2, 2017, SJMD provided responses, and produced documents. On October 3, 2017, SJMD produced more documents. On November 3, 2017, counsel for Plaintiff sent SJMD a 20-page meet and confer letter that demanded supplemental responses in 7 days, or an email providing an extension for Plaintiff’s deadline for a motion to compel further responses. SJMD stated that it agreed to extend the deadline for a motion to compel further responses as it was still reviewing documents. On November 20, 2017, Plaintiff asked whether SJMD had produced all responsive documents, and would provide supplemental responses to the discovery requests and a privilege log. The following day, SJMD indicated that it was still reviewing documents and would produce more documents after review, and that it planned to provide supplemental responses to the discovery requests after it reviewed and produced documents, estimated around December 7. Two weeks later, counsel for Plaintiff then emailed counsel for SJMD, construing SJMD’s November 21 email as a statement that SJMD would definitely produce documents by December 7 and then demanded supplemental responses by December 14. SJMD responded that it was doing everything it could to get the documents produced as soon as possible, but doubted that it would be able to produce the documents by the following day, December 7, and instead stated that it would be able to hand deliver the documents to Plaintiff’s counsel’s office by December 8. SJMD also stated that it would not be able to provide supplemental responses by December 14, a date that Plaintiff unilaterally chose, as SJMD’s counsel was out of the office starting December 8 until December 18, but that it would provide supplemental responses and the privilege log, and provide an estimate when SJMD’s counsel returned to the office. On December 6-8, 2017, SJMD produced by hand delivery documents to Plaintiff’s office, as promised. However, Plaintiff was unsatisfied, demanding supplemental responses by December 15.

On December 20, 2017, SJMD’s counsel called counsel for Plaintiff to discuss the outstanding discovery, including the provision of supplemental responses that SJMD had been working on, as promised. Plaintiff’s counsel stated that she preferred to communicate in writing and that there was nothing about which to meet and confer since she had already finished writing the motion to compel. Surprised, SJMD’s counsel stated that it had been working on the supplemental responses for the past two days as she had indicated, and that it planned to serve supplemental responses. Plaintiff’s counsel insisted that she file her motion to compel further responses, and, after some discussion regarding certain subpoenas, the parties agreed that the motion could be heard on February 6, 2018. On December 21, 2017, SJMD served supplemental response to the RPDs and SIs. Nevertheless, on December 21, 2017, Plaintiff filed its motion to compel further responses to FIs, SIs and RPDs. On December 22, 2017, SJMD sent a meet and confer letter and supplemental responses to the FIs. Counsel for Plaintiff has not responded to the December 22, 2017 letter. On January 4, 2018, SJMD’s counsel sent a letter to counsel for Plaintiff that work on the privilege log was still ongoing and SJMD was now producing additional documents that it was previously withholding. On January 19, 2019, counsel for SJMD served a revised privilege log, including all remaining documents. On January 22, 2018, the parties filed a stipulation allowing parties to set hearings after the February 5, 2018 deadline.

Requests for judicial notice

In connection with its motion, Plaintiff requests judicial notice of the complaint, SJMD’s answer to the complaint, SJMD’s cross-complaint, Plaintiff’s answer to the cross-complaint, and the first amended complaint. In opposition, SJMD requests judicial notice of the complaint. These requests for judicial notice are GRANTED as to their existence. (See Evid. Code § 452, subd. (d); see also Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564 (stating that “a court cannot take judicial notice of hearsay allegations as being true, just because they are part of a court record or file… [a] court may take judicial notice of the existence of each document in a court file, but can only take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments”).)

Plaintiff’s motion to compel further discovery responses

As stated above, Plaintiff moves for further responses to FIs, SIs, and RPDs. Plaintiff also requests monetary, issue and evidence sanctions. It should be noted that Plaintiff does not, in the notice of motion, identify the particular FIs, SIs and RPDs at issue in its motion. The notice of motion does cite to certain discovery requests that Plaintiff believes to be relevant as to its request for issue and evidence sanctions; however, as to further responses to discovery requests, the notice of motion does not list the particular discovery requests at issue. Regardless, the Court finds that the motion is moot as to certain discovery requests, and as to the remaining discovery requests, Plaintiff does not demonstrate that it reasonably met and conferred in good faith.

SJMD has provided supplemental responses to: FIs 8.1, 8.4, 8.8, 9.1, 9.2, 12.1, 12.2, 12.3, 12.6, 12.7, 13.1, 13.2, 14.1, and 15.1(a); SIs 5, 9, 13, 25, 28, 32, 44 and 49; and to all the RPDs. Thus, the motion to compel further responses as to those discovery request is MOOT.

The lone remaining discovery request at issue is FI 17.1. Here, however, as is true with the entire motion to compel, Plaintiff did not reasonably meet and confer in good faith. In reply, Plaintiff’s counsel states that “there was not much point in further meet and confer at that late date (the afternoon before the Motion to Compel deadline), since the Motion to Compel papers had already been drafted, and all that remained was editing for typos, and attaching exhibits, which Ms. Orr explained to SJMD’s counsel that her legal assistant was doing at the time of the call.” (Pl.’s reply brief, p.3:17-21.) “Accordingly, as applicable to this pending discovery motion, and in light of the Court’s impacted hearing schedules, if BAPD’s counsel was to protect BAPD’s rights to either obtain the requested discovery, and/or avoid related prejudice at trial, BAPD’s counsel had no choice but to file and serve this pending discovery motion, which was already 99% complete at the time of the afternoon telephone call on December 20, 2017.” (Id. at p.4:6-10.) Here, however, Plaintiff’s counsel violated the Santa Clara County Bar Association Code of Professionalism, which requires that “[a] lawyer should engage in a meaningful and good faith effort to resolve discovery disputes and should only bring discovery issues to the court for resolution after these efforts have been unsuccessful.” (Santa Clara County Bar Association Code of Professionalism, § 9 (“Discovery”); id. at § 10 (stating “[m]otions should be filed or opposed only in good faith and when the issue cannot be otherwise resolved… [a] lawyer should engage in a good faith effort to resolve the issue before filing a motion… [i]n particular, civil discovery motions should be filed sparingly”; also stating that “[a] lawyer should speak personally with opposing counsel or a self-represented litigant and engage in a good faith effort to resolve or informally limit an issue in complying with any meet and confer requirement imposed by law”).) It is clear that SJMD clearly articulated its plan to provide and serve the further responses that it had been working on for the past two days; nevertheless, Plaintiff’s counsel filed the motion because she had already written it, and was unsure whether “SJMD would indeed do as promised (despite prior broken promises.” (Pl.’s reply brief, p.4:11-16; see also Orr decl. in support of motion to compel, exh. A (stating that SJMD’s counsel “just wanted to have like a delay on having to provide all these materials, so that we could try to avoid discovery motions if possible… [but that Orr] told her that there was not much point to that, because [Orr] had already drafted the motion to compel regarding our RFPD Set One, Special Interrogatories Set One, Form Interrogatories Set One, etc. based on the current 12/21 extension of time to file it, and the only thing that was left to do was to prep the exhibits, edit typos, etc.”).)

Plaintiff’s counsel notes that “SJMD’s counsel did not offer to further extend the deadline to move to compel” (id. at p.3:22-23); however, nowhere in the reply brief, Orr’s declaration or Orr’s notes of the conversation does she state that she requested one. Plaintiff’s counsel’s obligation pursuant to the Santa Clara County Bar Association Code of Professionalism was to see whether the issues of the motion could be resolved without having to bring these issues to the court for resolution. It was clear that the issues could be resolved; thus, it was incumbent on Plaintiff’s counsel to resolve them prior to filing the motion. If Plaintiff’s counsel needed an extension of time to file the motion, Plaintiff’s counsel should have asked for one. If SJMD’s counsel was compliant with the Santa Clara County Bar Association Code of Professionalism, SJMD’s counsel would have agreed to the request. (See Santa Clara County Bar Association Code of Professionalism, § 4 (“Continuances and Extensions of Time”) (stating “a lawyer should agree to reasonable requests for extensions of time when the legitimate interests of his or her client will not be adversely affected”; also stating that “[a] lawyer should agree to reasonable requests for extensions of time or continuances without requiring motions or other formalities”).) Plaintiff’s counsel should not pursue a motion that will ultimately be moot as that is a waste of the court’s, the attorneys’ and client’s resources. (See Santa Clara County Bar Association Code of Professionalism, § 2 (“Responsibilities to the Client”) (stating that “[a] lawyer should work to achieve the client’s lawful and meritorious objectives expeditiously and as economically as possible”).) It is clear that Plaintiff’s counsel’s efforts were inadequate with regards to the meet and confer requirement (see Code Civ. Proc. §§ 2016.040, 2030.300, subd. (b), 2031.310, subd. (b)(2)), and that her conduct violated the Santa Clara County Bar Association Code of Professionalism, and Plaintiff’s motion to compel a further response to FI 17.1 is DENIED on this basis.

Plaintiff’s request for sanctions

Plaintiff requests monetary sanctions in the amount of $6,196.50, as well as issue and evidence sanctions. Plaintiff’s request for monetary sanctions is not code-compliant as the notice of motion does not identify any person, party or attorney against who the sanction is sought. (Code Civ. Proc. § 2023.040.) Plaintiff did not substantially prevail on its motion, and there are circumstances that make imposition of sanctions against SJMD unjust. Plaintiff’s request for monetary sanctions is DENIED. Plaintiff’s request for issue and evidence sanctions is likewise DENIED.

SJMD’s request for monetary sanctions against Plaintiff

In opposition to Plaintiff’s motion to compel, SJMD requests monetary sanctions in the amount of $5,185.00 against Plaintiff. However, as with Plaintiff’s request for sanctions, there are circumstances that make the imposition of sanctions against Plaintiff unjust. While Plaintiff’s counsel’s efforts were inadequate with regards to the meet and confer requirement, SJMD likewise could have averted the instant situation by proposing a further extension of time to file the motion to compel, as well as providing the supplemental responses in a more timely manner. SJMD’s request for monetary sanctions is DENIED.

The Court shall prepare the Order.