Case Number: EC065772 Hearing Date: April 20, 2018 Dept: NCD

TENTATIVE RULING

Calendar: 1

Date: 4/20/18

Case No: EC 065772 Trial Date: May 21, 2018

Case Name: Waterkamp v. Acosta, et al.

MOTIONS TO COMPEL FURTHER RESPONSES TO DISCOVERY (2)

Moving Party: Plaintiff Gerhard J. Waterkamp

Responding Party: Defendant Alejo Morales

RULING:

Petitioner’s Motion to Compel Respondent’s Response to Special Interrogatories is MOOT in light of the service on January 8, 2018 of Supplemental Responses to Special Interrogatories, Set 1.

Monetary sanctions in the amount of $1,703.95 [$3,407.90 for both motions requested] are awarded against defendant Alejo Morales, payable within 30 days. CCP Sections 2030.300(c), 2023.010 (e) and (f), and 2023.030(a); CRC Rule 3.1030(a).

Petitioner’s Motion to Compel Respondent’s Response to Request for Production of Documents is MOOT in light of the service on January 8, 2018 of Supplemental Responses to Requests for Production Set No. 1.

Monetary sanctions in the amount of $1,703.95 [$3,407.90 for both motions requested] are awarded against defendant Alejo Morales, payable within 30 days. CCP sections 2031.310 (h), 2023.010 (e) and (f), and 2023.030(a); CRC Rule 3.1030(a).

Proof of service timely filed (CRC 317(b)): ok

Correct Address (CCP §§ 1013, 1013(a)): ok

16/+5 day lapse(CCP §1005): ok

RELIEF REQUESTED:

Further Responses to Plaintiff’s First Set of Special Interrogatories

Further Responses to Plaintiff’s Frist Set of Requests for Production of Documents

CRC separate statement, etc.: ok

DECLARATION SUPPORTING MOTION:

Executed per CCP §§ 2015.5, 2030(l): ok

Reasonable and good faith attempt to resolve informally: ok, Exhibit 3

CHRONOLOGY

Date Discovery served: October 9, 2017

Date Responses served: November 28, 2017 (Unverified)

Date Motion served: January 12, 2018 Timely

FACTUAL BACKGROUND

Plaintiff Gerhard Waterkamp brings this action against his adjacent neighbors in Shadow Hills, alleging that defendant Anita Haisten, who owns and resided at the subject property before later moving to another residence, and defendant Aleida Acosta, who partially owns the subject property and occupies it, entered into various illegal contracts with individuals who did not reside at the subject property for the boarding of horses, in violation of various county and state ordinances.

Plaintiff alleges that defendants have kept an excessive number of horses on the subject property, engaged in horse breeding, and housed horses in corrals within 75 feet of plaintiff’s property in violation of code, and have kept and bred animals such as goats and pigs, not zoned for the property. Plaintiff alleges that despite investigations, citations and monitoring, defendants continue to commit code violations.

Plaintiff also alleges that trees on defendants’ property are placed illegally, and not property maintained, with large sections of trees dying and creating a fire hazard, and that tree root systems have invaded plaintiff’s property causing profound lifting and cracking of plaintiff’s driveway. Plaintiff also alleges that the illegally rented stables on defendants’ property have led to complaints as to the condition of the horses, lack of sanitary conditions, improper boarding of the horses in small stalls without food or exercise, and lack of care for the horses causing loud screams in the night for lack of food and care, and attempts to kick down the stalls, all occurring between 10 p.m. and 4 a.m. It is also alleged that defendants built an indoor swimming pool, and built houses to enclose pool motors which are encroaching on plaintiff’s property.

Defendants have filed a cross-complaint against plaintiff, alleging that cross-defendant Waterkamp has engaged in a campaign of abuse and harassment against them, including walking onto the subject property without permission; taking photographs and videos of the subject property, the horses, and persons present on the property, including minor guests, frightening them; verbally threatening, harassing and making taunts to persons on the property; chasing cross-complainants in his automobile, videotaping them; and making disparaging comments based on ethnicity. The cross-complaint also alleges that cross-complainant has made false complaints to government officials concerning the way cross-complainants maintain their property, and that prior to filing this lawsuit cross-defendant conspired with his attorney to send a demand letter to cross-complainants to prevent them from being able to sell their house.

ANALYSIS:

The opposition papers show that further verified responses to the subject discovery were served on January 8, 2018, rendering these motions moot.

The issue remains whether monetary sanctions should be awarded to either the moving or responding party.

CCP § 2030.300 (d) provides that the court “shall impose a monetary sanction…against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” A similar provision applies to motions to compel further responses to document demands. CCP § 2031.310 (h).

Under CCP § 2023.010, misuse of the discovery process includes “(e) making, without substantial justification, an unmeritorious objection to discovery”; and “(f) making an evasive response to discovery.” Where there has been a misuse of the discovery process, under Section 2023.030(a), the court “may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.”

The burden is on the party subject to sanctions to show substantial justification or injustice. Mattco Forge, Inc. v. Arthur Young & Co. (1990) 223 Cal.App.3d 1429.

Under CRC Rule 3.1030(a):

“The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel, even though…the requested discovery was provided to the moving party after the motion was filed.”

Here, a cursory review of the separate statement shows that the responses originally provided were incomplete and evasive, and the objection asserted improper, making this motion necessary. Evidently no verifications were served, some of the requests were not responded to at all, and responses were provided which stated, for example, in response to a document request for documents evidencing articles of incorporations for any businesses operated related to the Acosta property, two pages of objections, and the response, “Responding Party will produce no documents to a vicious perverted racist like Waterkamp who has no legal right to even ask for this information.” [See Separate Statement, p. 22-24, Response to Request For Production of Documents No. 18]. (Actually, the Supplemental Responses are not much better, which the court may want to discuss at the hearing.)

The opposition argues that the dispute regarding the supplemental responses from defendant was a legitimate dispute until January 8, 2018 when the supplemental responses were served, so that the motion was moot, but that it was filed after the supplemental responses were provided, so that imposing sanctions would be wholly unjust. The argument is that it was plaintiff’s choice to keep the motion on calendar, despite having the January 8, 2018 responses.

It appears that the deadline for filing this motion was January 12, 2018, and it is set for hearing on the eve of the discovery cut off expiring. There appears to be no reason to doubt the declaration of moving party that the supplemental responses promised were not received by noon on January 11, 2018 when they were served by mail on January 8, 2018, and the correspondence from counsel for defendant was somewhat vague as to which discovery responses were being supplemented, and whether it was necessary for a motion to be filed to protect the client’s right to compel further responses. [Ex. 7]. Given the looming deadline, it is not clear why at least cover pages and verifications were not faxed to forestall the filing of formal motions.

Overall, the opposition does not establish substantial justification or injustice, or any basis for sanctions to be awarded to responding party. Sanctions are awarded to moving party and denied to responding party.

The sanctions sought are $3,407.90 total for both motions. These amounts appear reasonable, and are

allocated 50% for the other discovery motion so that $1,703.95 is awarded for each motion.