Doan DDS, Inc. v. Warren Dolezal, 17CV-0318

Hearing: Motion to Compel

Date: April 4, 2018

Plaintiff Doan DDS, Inc. (“Plaintiff”) brings this action against Defendants The Dolezal Family LP (“Dolezal”), Warren Dolezal, The Dolezal Company, and DC Design and Construction (collectively “Defendants”). The action arises out of a contract to construct tenant improvements and a commercial lease between the lessor Plaintiff and landlord Dolezal. Plaintiff’s first amended complaint1 (“FAC”) alleges causes of action for (1) breach of lease, (2) breach of contract, (3) breach of implied covenant of good faith and fair dealing, (4) breach of fiduciary duty, (5) declaratory relief, (6) fraudmisrepresentation, (7) fraud-concealment, (8) unjust enrichment, and (9) accounting.

Before the Court are two motions:

(1) Plaintiff’s motion for relief from waiver of discovery objections; and (2) Defendants’ demurrer to Plaintiff’s FAC.

(1) Motion for relief from waiver of discovery objections.

On October 19, 2017, Dolezal served set one of Form Interrogatories, Special Interrogatories, Request for Production of Documents, and Request for Admissions on Plaintiff. Plaintiff failed to respond to the discovery, resulting in Dolezal’s motion to compel. In opposing the motion, Plaintiff argued that the discovery was onerous and inappropriate, that Dolezal did not sufficiently meet and confer, and that Dolezal prematurely filed the motion without first seeking an informal discovery conference. On February 7, 2018, this Court granted Dolezal’s motion, ordering Plaintiff to provide responses to Dolezal’s discovery requests, without objections, by February 23, 2017. Plaintiff’s responses followed on or about February 20, 2018.

Plaintiff now seeks to be relieved from its waiver of discovery objections. The party seeking to belatedly assert some objection must show that its failure to serve a timely response resulted from “mistake, inadvertence, or excusable neglect.” (Code Civ. Proc., §§ 2030.290(a) [interrogatories]; 2031.300(a) [request for production]; 2033.280(a) [request for admission]; see Mannino v. Sup. Ct. (1983) 142 Cal.App.3d 776, 778-779 [trial court has broad discretion in this area, but not every “excuse” is excusable].) The 1 Defendants’ counsel, Shae Luchetta, declares that she previously met and conferred with Plaintiff’s counsel regarding the original complaint, and Defendants’ contended deficiencies therein. (Luchetta Decl., ¶ 3.) Plaintiff thereafter filed the FAC. Ms. Luchetta avers that she again met and conferred with Plaintiff’s counsel prior to filing the instant demurrer. (Ibid.) The Court presumes the Parties could not reach an agreement after these later meet-and-confer efforts, resulting in this demurrer.
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party seeking such relief must also show that he or she has belatedly served responses “in substantial compliance” with that party’s duty to respond. (Ibid., emphasis added.)

Plaintiff has not made a showing that its failure to serve a timely response was based on mistake, inadvertence, or excusable neglect. Plaintiff reasserts the argument made in opposing Dolezal’s earlier motion to compel: that Plaintiff “mistakenly but in good faith” believed it “was excused from responding to [Dolezal]’s discovery requests in their current form.” (Tran Decl., ¶ 4.) The Court is unaware of any authority holding that a party is altogether excused from responding to discovery where the party feels the requests are objectionable. Plaintiff could have responded to the discovery requests with objections. Plaintiff could have requested an extension to provide responses and thereafter met and conferred with Defendants’ counsel. Plaintiff instead failed to respond to the discovery requests at all, thereby waiving objections to the requests2. (Code Civ. Proc., §§ 2030.290(a) [interrogatories], 2031.300(a) [request for production], and 2033.280(a) [request for admission].)

Moreover, and as argued in Defendants’ opposition, Plaintiff’s responses to Dolezal’s discovery requests are not “substantially compliant” with the Code. Defendants specifically note that: Plaintiff did not fully respond to Form Interrogatory No. 12.1; Plaintiff improperly responded to certain Special Interrogatories with objections; and Plaintiff improperly responded to certain Special Interrogatories with a cut-and-paste response identical to Plaintiff’s response to Interrogatory No. 12.1. Defendants further claim that Plaintiff has yet to produce all documents responsive to the request for production.

The Court agrees with Defendants that Plaintiff’s response to Form Interrogatory No. 12.13 is incomplete and not compliant with the Code. In response to this interrogatory, Plaintiff answered:

At this early stage of discovery, the full extent of potential witnesses’ relevant personal knowledge is unknown to the plaintiff. However, persons believed to have personal knowledge relevant to the question include: 2 Plaintiff’s counsel again refers to Judge Crandall’s standing case management order (“CMO”), arguing Defendants failed to request a discovery conference before filing their motion to compel. However, nowhere in the CMO does it state that a party is excused from responding to discovery requests it deems objectionable.

3 Form Interrogatory No. 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).
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Huong Doan; Thomas Nguyen; Wesley Azzouz; Miguel Zavalos; Warren Dolezal; Brad Dolezal; David Masters; Cody Morse; Robert Harvey; Geoffery Scott; Connor Masters; Brady Masters; Rafael Salinas; Branden Dolezal; Justin Dolezal; Evan Dolezal; Jose Cardenas; Sal Navarro Vega; Wade Brown; Other agents or officers, if any, of The Dolezal Family Limited Partnership; Other agents or officers, if any, of The Dolezal Company; Home Depot; Staples; Smardan Hatcher Company; Independent Electric; Ferguson Enterprises, Inc.; Hayward Lumber; Hernandez Drywall Inc.; Kelly-Moore Paints; Jeffrey Storm Painting; William Dietrich Tile; Acme Stucco; E.S. McCart Construction; Graham Miguel Construction; Jeffrey Hurt Construction; Western Prehung; TriCounty Insulation; Amazon.com; San Luis Garbage, Inc.; Action Janitorial; Cold Canyon Landfill; Khan’s Concrete Sawing; Fresh Crete; Costal Reprographic Services; Contractors Glass Company; Air Vol Block Co.; Rental Depot; Pacific Gas & Electric; SoCalGas Company; Ogden & Fricks LLP; CalPortland; Restorative Partners; Theresa Harpin; El Camino Building Supply; Westside Building Materials; R&S Supply; Superior Duct Fabrication; Stan’s Landscape Maintenance; D C Design & Construction.

Additionally, discovery and investigation are continuing in this case, and Responding Party reserves the right to change or supplement its response in the future after appropriate discovery and investigation have been conducted.

Plaintiff’s response to Form Interrogatory No. 12.1 is incomplete because it does not provide answers to this Interrogatory’s subparts. Similarly, Plaintiff’s responses to certain Special Interrogatories4 seeking the identification of witnesses are also incomplete because Plaintiff simply copied-and-pasted its response to Form Interrogatory No. 12.1, failing to properly identify witnesses by name in those responses (for example, identifying “Home Depot,” “Amazon.com,” “Kelly-Moore Paints,” etc.).

Plaintiff’s responses to other Special Interrogatories5 are also problematic. In response to these Special Interrogatories, Plaintiff answers:

Plaintiff does not have any information at this time.
4 Specifically, numbers 2, 3, 5, 7, 9, 11, 13, 15, 17, 19, 21, 23, 25, 27, 29, 31, 33, 35, 37, 39, 41, 43, 45, 47, 49, 51, 53, 55, 57, 59, 61, 63, 65, 67, 69, 71, 73, 75, 77, 79, 81, 83, 85, 87, 89, 91, 93, 95, 97, 99, 101, 103, 105, 107, 109, 111, 113, 115, 117, 119, 121, 123, 125, 127, 129, 131, 133, 135, 137, 138, 141, 143, 145, 147, 149, 151, 153, 155, 157, 159, 161, 163, 165, 167, 169, 171, 173, 175, and 177.

5 Specifically, numbers 1, 2(A), 8, 12, 20, 22, 24, 26, 28, 30, 32, 34, 36, 38, 40, 42, 44, 46, 52, 54, 60, 62, 64, 66, 68, 70, 72, 80, 84, 86, 88, 90, 92, 100, 102, 104, 114, 116, 118, 120, 122, 124, 126, 128, 130, 132, 134, 136, 138, 142, 144, 146, 148, 150, 152, 156, 158, 160, 162, 164, 166, 168, 170 and 172.
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Plaintiff, as a dental professional, lacks the requisite expertise to respond further. Answering this question requires legal expertise, as it asks for facts that support a legal theory regarding ….

As outlined above, Plaintiff waived objections to Dolezal’s discovery requests, including any objection that the interrogatories “require legal expertise to respond.” Aside from the fact that Plaintiff waived objections, Plaintiff’s claim that he “lacks expertise to respond” to certain interrogatories is not well-taken6. Dolezal’s interrogatories to Plaintiff are based on the allegations in Plaintiff’s complaint, and inasmuch as Plaintiff made those allegations, he should be able to identify all facts supporting those allegations.

Plaintiff’s motion is denied.

(2) Demurrer.

Defendants demur to the FAC on several grounds. The demurrer is unopposed.

A demurrer tests the legal sufficiency of the allegations in a complaint. It raises issues of law, not fact, regarding the complaint’s form or content. (Code Civ. Proc., §§ 422.10, 589; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994; Lewis v. Safeway (2015) 235 Cal.App.4th 385, 388.) It is not a demurrer’s function to test the truth of the plaintiff’s allegations or the accuracy with which the plaintiff describes the defendant’s conduct. (Whitcombe v. County of Yolo (1977) 73 Cal.App.3d 698, 702.)

A demurrer “admits the truth of all material factual allegations in the complaint…the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof, does not concern the reviewing court.” (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)

First, Defendants contend the second cause of action for breach of contract fails because it cannot be ascertained whether the contract is written, oral, or implied by conduct. (Code Civ. Proc., § 430.10(g).) While the FAC refers to contracts entered into on or about November 2015 and March 2015, Plaintiff does not specify whether the contracts are written, oral, or implied. (FAC, ¶ 59.) Assuming either or both of these contracts are written, Plaintiff is required to either set out their terms verbatim in the body of the FAC,
6 This is particularly the case where, in answering Defendants’ request for a discovery conference, Plaintiff concedes that legal contention interrogatories are appropriate. (Plaintiff Resp., p. 2, ¶ 4 [“these questions are better suited for interrogatories…”].) This belies Plaintiff’s objection that the interrogatories are improper because they seek a legal conclusion. (Rifkind v. Sup. Ct. (1994) 22 Cal.App.4th 1255, 1261 [legal contention questions are appropriate in written interrogatories].)
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or attach and incorporate them by reference to the FAC7. (Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 459.) The demurrer as to Plaintiff’s second cause of action is sustained with leave to amend.

Defendants next contend the third cause of action for breach of fiduciary duty fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10(e).) “The elements of a cause of action for breach of fiduciary duty are: (1) existence of a fiduciary duty; (2) breach of the fiduciary duty; and (3) damage proximately caused by the breach.” (Tribeca Companies, LLC v. First American Title Ins. Co. (2015) 239 Cal.App.4th 1088, 1114, citing Gutierrez v. Girardi (2011) 194 Cal.App.4th 925, 932.) Defendants argue there is no fiduciary relationship between Plaintiff, a tenant, and Defendants, Plaintiff’s landlord. (See Martin v. U-Haul Co. of Fresno (1988) 204 Cal.App.3d 396, 412 [California courts have not extended the special relationship required for a breach of fiduciary duty to include ordinary commercial contractual relationships].) Plaintiff’s FAC alleges that Defendants “owed fiduciary duties” to Plaintiff “to provide fair and honest services and to perform to the standard of care and diligent for construction management…in addition to being the lessor of the PROPERTY.” (FAC, ¶ 75.) However, there are no facts pled evidencing a fiduciary relationship between Plaintiff and Defendants. The demurrer as to Plaintiff’s third cause of action is sustained with leave to amend.

Defendants next contend the fifth cause of action for fraud fails to state facts sufficient to constitute a cause of action, and is uncertain, ambiguous, and unintelligible. (Code Civ. Proc., § 430.10(e), (f).) Fraud claims are subject to a stricter pleading standard, because they involve a serious attack on the defendant’s character. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216; Lazar v. Sup. Ct. (1996) 12 Cal.4th 631, 645 [“fraud must be pled specifically; general and conclusory allegations do not suffice.”].) Defendants claim Plaintiff’s fraud cause of action is not pled with the required specificity.

Plaintiff’s fifth cause of action is replete with allegations of alleged misrepresentations, and while some are specifically pled, others are not. For example, Plaintiff states: “After DOAN signed the LEASE and after the tenant build out began, Defendants DOLEZAL, LIMITED PARTNERSHIP and Does 1-20 further misrepresented in writing and in person that DOAN was obligated to pay Defendants more money for the tenant improvement work than originally negotiated for.” (FAC, ¶ 92.) Plaintiff does not state when this occurred, what the “writing” consisted of, who authored the writing, or how many representations occurred. The demurrer as to Plaintiff’s fifth cause of action is sustained with leave to amend.

Defendants next contend the seventh cause of action for unjust enrichment fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10(e).) Defendants
7 The only attachment to the FAC is the contractual lease between the Parties. (FAC, Ex. A.)
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argue unjust enrichment is not a stand-alone cause of action. However, unjust enrichment is an equitable claim and a distinct cause of action with its own elements. (Peterson v. Cellco Partnership (2008) 164 Cal.App.4th 1583, 1593 [“The elements of an unjust enrichment claim are the receipt of a benefit and [the] unjust retention of the benefit at the expense of another.”]; F.D.I.C. v. Dintino (2008) 167 Cal.App.4th 333, 346 [“unjust enrichment is a common law obligation implied by law based on the equities of a particular case and not on any contractual obligation”].) The demurrer as to Plaintiff’s seventh cause of action is overruled.

Defendants’ Request for Discovery Conference.

Finally, the Court takes note of Defendants’ request for a discovery conference, and Plaintiff’s answer thereto. The issues raised in Defendants’ request are mooted by this ruling, with the exception of the following:

Defendants claim that at the deposition of the Plaintiff on March 6, 2018, Plaintiff’s counsel repeatedly instructed his client “not to answer the questions whether she believed there were errors on Defendants’ invoices,” taking the position that “this is improperly asking Plaintiff for [a] legal contention.” (Defs. Request, p. 2, ¶ 3.) The Court disagrees that the question “What is erroneous about [an invoice]” is akin to asking “what is legally incorrect or improper” or “what is the expert opinion as to whether this issue is correct or erroneous.” (Plaintiff Ans., p. 2, ¶ 3.) Based on the materials submitted by the Parties, the questions posed to Plaintiff differ from those at issue in Rifkind v. Sup. Ct. (1994) 22 Cal.App.4th 1255, 1263 (while legal contention questions are appropriate in written discovery, they are improperly posed to a deponent represented by counsel). If Plaintiff contends that certain invoice line items are erroneous, she can testify as to the basis for her contention; such basis should not call for a legal conclusion or expert opinion. Counsel should be prepared to discuss this issue further at the April 4, 2018 hearing.

Counsel should also be prepared to discuss Defendants’ contention that there are responsive documents Plaintiff has yet to produce.

Conclusion.

As to Plaintiff’s motion for relief from waiver of discovery objections:

Plaintiff’s motion for relief from waiver of discovery objections is denied.

Plaintiff is ordered to provide further code-compliant responses to the following discovery requests by April 23, 2018, without objection:

– Form Interrogatory No. 12.1

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– Special Interrogatory Nos. 2, 3, 5, 7, 9, 11, 13, 15, 17, 19, 21, 23, 25, 27, 29, 31, 33, 35, 37, 39, 41, 43, 45, 47, 49, 51, 53, 55, 57, 59, 61, 63, 65, 67, 69, 71, 73, 75, 77, 79, 81, 83, 85, 87, 89, 91, 93, 95, 97, 99, 101, 103, 105, 107, 109, 111, 113, 115, 117, 119, 121, 123, 125, 127, 129, 131, 133, 135, 137, 138, 141, 143, 145, 147, 149, 151, 153, 155, 157, 159, 161, 163, 165, 167, 169, 171, 173, 175, and 177.

The Court previously declined to order sanctions, but reserved the right to reconsider Defendants’ request for sanctions. The Court finds no justification for Plaintiff’s failure to provide Code-compliant responses to Defendants’ discovery requests as previously ordered by this Court. The Court therefore orders Plaintiff to pay sanctions to Defendants in the amount of $1,775 by April 23, 2018.

As to Defendants’ demurrer:

Defendants’ demurrer to the second cause of action is sustained with 20 days leave to amend.

Defendants’ demurrer to the third cause of action is sustained with 20 days leave to amend.

Defendants’ demurrer to the fifth cause of action is sustained with 20 days leave to amend.

Defendants’ demurrer to the seventh cause of action is overruled.

Plaintiff shall file a second amended complaint by April 23, 2018.