Case Name: Kristine Dulay, et al. v. Christopher Q. Viray, D.D.S., et al.
Case No.: 2015-1-CV-287422

Factual and Procedural Background

This is a landlord tenant action. On October 30, 2013, plaintiffs Vincent Dulay (“Vincent”) and Kristine Dulay (“Kristine”) along with their children, Victoria Dulay, Christian Dulay, and Bradley Dulay (collectively, “Plaintiffs”) moved into a single-family home located at 11041 Stevens Canyon Road in Cupertino, California (the “property”). (See First Amended Complaint [“FAC”] at ¶ 14.) Defendant Christopher Q. Viray, D.D.S. (“Viray”) is the owner and landlord of the property. (Id. at ¶ 4.) Defendant Yi Chin Lee (“Lee”) is the property manager for the subject premises. (Id. at ¶ 5.) During their tenancy, Plaintiffs allege that defendants Viray and Lee (collectively, “Defendants”) engaged in the following misconduct: (1) interfered with Plaintiffs’ right to privacy; (2) interfered with Plaintiffs’ enjoyment of the property; (3) failed to make repairs within a reasonable amount of time; (4) failed to give 24-hour notices of entry; (5) constructively evicted Plaintiffs due to prolong constructions and repairs; and (6) illegally evicted Plaintiffs for expressing their rights. (Id. at ¶¶ 237, 239-243.)

On February 16, 2016, Plaintiffs filed a FAC, now the operative pleading, setting forth causes of action for: (1) violation of Civil Code § 1942.4; (2) tortuous breach of warranty of habitability; (3) breach of the covenant of quiet enjoyment; (4) private nuisance; (5) Business and Professions Code § 17200 et seq.; (6) negligence; (7) negligent infliction of emotional distress; (8) intentional infliction of emotional distress; (9) breach of the covenant of good faith & fair dealing; (10) retaliatory eviction under Civil Code § 1942.5; (11) retaliation under the Unif. Residential Landlord & Tenant Act § 5.101(b); (12) trespass; (13) breach of contract; (14) breach of implied warranty of quiet enjoyment; (15) invasion of privacy – tort; and (16) invasion of privacy – constitutional privacy.

Currently before the Court are Defendants’ motions to compel plaintiffs Vincent and Kristine to provide further responses to request for production of documents (set one) (“RPD”) and request for admissions (set one) (“RFA”). Both sides seek an award of monetary sanctions. Plaintiffs filed written opposition to the motions. Defendants filed reply papers and objections to evidence.

Motion to Compel Further Responses to RPD (as to Plaintiff Vincent)

Discovery Dispute

On February 5, 2016, Defendants served plaintiff Vincent with RPD. (Declaration of Marie K. Gribble at ¶ 3; Exhibit A.) On March 9, 2016, Vincent served RPD responses interposing objections with factual responses. (Id. at ¶ 4; Exhibit B.)

On April 12, 2016, defense counsel sent a meet and confer letter to Plaintiff’s attorney addressing deficiencies with the RPD responses. (Declaration of Marie K. Gribble at ¶ 6; Exhibit C.) On June 10, 2016, Vincent served his first supplemental RPD responses stating that all non-privileged documents had been given over to Defendants. (Id. at ¶ 8; Exhibit D.)

On July 15, 2016, defense counsel sent another meet and confer letter to Plaintiff’s attorney requesting a privilege log for any privileges asserted by plaintiff Vincent with respect to the RPD. (Declaration of Marie K. Gribble at ¶ 10; Exhibit E.) On October 27, 2016, Vincent served his second supplemental RPD responses again interposing objections with factual responses. (Id. at ¶ 12; Exhibit F.)

On December 1, 2016, defense counsel sent a third meet and confer letter to Plaintiff’s attorney claiming that the responses were evasive and the objections raised lacked merit. (Declaration of Marie K. Gribble at ¶ 14; Exhibit G.) No additional RPD responses were served and the parties were unable to informally resolve the discovery dispute. Thus, Defendants seek intervention from the Court.

Legal Standard

A responding party to an inspection demand must respond separately to each item in the demand by stating one of the following: (1) an agreement to comply; (2) a representation of inability to comply, or (3) objections. (Code Civ. Proc., § 2031.210.) If a party demanding a response to an inspection demand deems: (1) a statement of compliance with the demand is incomplete; (2) a representation of inability to comply is inadequate, incomplete, or evasive; or (3) an objection in the response is without merit or too general, that party may move for an order compelling further response to the demand. (Code Civ. Proc., § 2031.310-320; Weil & Brown, California Practice Guide: Civil Procedure Before Trial (Rutter Group 2016) at § 8:1490.)

Analysis

Defendants move to compel a further response to RPD Nos. 1-8 because the answers are evasive and the objections lack merit.

As a threshold matter, a motion to compel further responses to RPD must “set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).) The moving party establishes good cause by showing: (1) relevance to the subject matter of the case; and (2) specific facts justifying discovery. (Kirkland v. Super. Ct. (2002) 95 Cal.App.4th 92, 98 [the party who seeks to compel production has met his burden of showing good cause simply by a fact-specific showing of relevance].) Discovery is allowed for any matters that are not privileged and relevant to the subject matter, and a matter is relevant if it appears reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.010.) 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 thereof. (Gonzalez v. Super. Ct. (1995) 33 Cal.App.4th 1539, 1546.)

In support of their motion, Defendants have included a memorandum of points and authorities, a separate statement, and a declaration from counsel. However, the moving papers fail to articulate any good cause for this production.

Consequently, the motion to compel a further response to RPD Nos.1-8 is DENIED.

Motion to Compel Further Responses to RFA (as to Plaintiff Vincent)

Discovery Dispute

On February 5, 2016, Defendants served plaintiff Vincent with RFA. (Declaration of Marie K. Gribble at ¶ 3; Exhibit A.) On March 10, 2016, Vincent served RFA responses interposing objections with factual responses. (Id. at ¶ 4; Exhibit B.)

On April 12, 2016, defense counsel sent a meet and confer letter to Plaintiff’s attorney addressing deficiencies with the RFA responses. (Declaration of Marie K. Gribble at ¶ 6; Exhibit C.) On July 7, 2016, Vincent served his first supplemental RFA responses again interposing objections with factual responses. (Id. at ¶ 8; Exhibit D.)

On July 15, 2016, defense counsel sent another meet and confer letter to Plaintiff’s attorney claiming that the RFA answers were evasive and requested further supplemental responses. (Declaration of Marie K. Gribble at ¶ 10; Exhibit E.) On October 27, 2016, Vincent served his second supplemental RFA responses again interposing objections with factual responses. (Id. at ¶ 12; Exhibit F.) Upon receipt of these responses, there is no further evidence of any meet and confer efforts by the parties.

Legal Standard

Where responses have been timely filed but are deemed deficient by the requesting party (e.g., because of objections or evasive responses), that party may move for an order compelling a further response. (Code Civ. Proc., § 2033.290).

Meet and Confer

Defendants move to compel further responses to RFA Nos. 112 and 148-150 because the answers are evasive. (Code Civ. Proc., § 2033.290.)

As a preliminary matter, the Court must determine if the parties properly met and conferred with respect to this discovery prior to filing of the motion. (See Code Civ. Proc., § 2033.290, subd. (b) [motion to compel further responses requires meet and confer declaration].) In opposition, Plaintiffs argue that there was no adequate meet and confer efforts regarding the discovery at issue.

Code of Civil Procedure section 2016.040 requires that a moving party make a “reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” A determination of whether an attempt at informal resolution was adequate depends upon the particular circumstances and involves the exercise of discretion. (Obregon v. Super. Ct. (1998) 67 Cal.App.4th 424, 431; see Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1016 [meet and confer rule is designed to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order].)

According to the moving papers, Defendants did not engage in any further meet and confer efforts following service of plaintiff Vincent’s second supplemental responses. In fact, upon receipt of the RFA responses, Defendants essentially did nothing for more than a month and then filed their motion to compel further responses. In her declaration, defense counsel even admits that the second supplemental RFA responses to Nos. 112 and 148-150 were inadequate but did not engage in further meet and confer efforts with Plaintiffs’ attorney. (Declaration of Marie K. Gribble at ¶ 13.) Thus, Plaintiffs were never given an opportunity to cure any deficiencies with the second supplemental RFA responses before the filing of this motion. Given this conduct, the Court finds that Defendants did not adequately meet and confer before filing the motion. (See Townsend v. Super. Ct. (1998) 61 Cal.App.4th 1431 [appellate court granted writ of mandate and reversed trial court’s decision to compel discovery where parties did not make an effort to resolve the discovery dispute].)

Therefore, Defendants’ motion to compel further responses to RFA Nos. 112 and 148-150 is DENIED.

Motion to Compel Further Responses to RPD (as to Plaintiff Kristine)

Discovery Dispute

On February 5, 2016, Defendants served plaintiff Kristine with RPD. (Declaration of Marie K. Gribble at ¶ 3; Exhibit A.) On March 9, 2016, Kristine served RPD responses interposing objections with factual responses. (Id. at ¶ 4; Exhibit B.)

On April 12, 2016, defense counsel sent a meet and confer letter to Plaintiff’s attorney addressing deficiencies with the RPD responses. (Declaration of Marie K. Gribble at ¶ 6; Exhibit C.) On June 10, 2016, Kristine served her first supplemental RPD responses stating that all non-privileged documents had been given over to Defendants. (Id. at ¶ 8; Exhibit D.)

On July 15, 2016, defense counsel sent another meet and confer letter to Plaintiff’s attorney requesting a privilege log for any privileges asserted by plaintiff Kristine with respect to the RPD. (Declaration of Marie K. Gribble at ¶ 10; Exhibit E.) On October 27, 2016, Kristine served her second supplemental RPD responses again interposing objections with factual responses. (Id. at ¶ 12; Exhibit F.)

On December 1, 2016, defense counsel sent a third meet and confer letter to Plaintiff’s attorney claiming that: (1) the responses were evasive; (2) the objections raised lacked merit; and (3) Plaintiff must provide the appropriate privilege log. (Declaration of Marie K. Gribble at ¶ 14; Exhibit G.) No additional RPD responses were served and the parties were unable to informally resolve the discovery dispute. Thus, Defendants seek intervention from the Court.

Analysis

Defendants move to compel a further response to RPD Nos. 1-6 because the answers are evasive and the objections lack merit. In support of the motion, Defendants have included a memorandum of points and authorities, a separate statement, and a declaration from counsel. As stated above, a motion to compel further responses to RPD requires a showing of good cause for each document request by the moving party. (See Kirkland v. Super. Ct., supra, 95 Cal.App.4th at p. 98 [the party who seeks to compel production has met his burden of showing good cause simply by a fact-specific showing of relevance].) However, the moving papers fail to articulate any good cause for this production.

Consequently, the motion to compel a further response to RPD Nos.1-6 is DENIED.

Motion to Compel Further Responses to RFA (as to Plaintiff Kristine)

Discovery Dispute

On February 5, 2016, Defendants served plaintiff Kristine with RFA. (Declaration of Marie K. Gribble at ¶ 3; Exhibit A.) On March 10, 2016, Kristine served RFA responses interposing objections with factual responses. (Id. at ¶ 4; Exhibit B.)

On April 12, 2016, defense counsel sent a meet and confer letter to Plaintiff’s attorney addressing deficiencies with the RFA responses. (Declaration of Marie K. Gribble at ¶ 6; Exhibit C.) On July 7, 2016, Kristine served her first supplemental RFA responses again interposing objections with factual responses. (Id. at ¶ 8; Exhibit D.)
On July 15, 2016, defense counsel sent another meet and confer letter to Plaintiff’s attorney claiming that the RFA answers were evasive and requested further supplemental responses. (Declaration of Marie K. Gribble at ¶ 10; Exhibit E.) On October 27, 2016, Kristine served her second supplemental RFA responses again interposing objections with factual responses. (Id. at ¶ 12; Exhibit F.) Upon receipt of these responses, there is no further evidence of any meet and confer efforts by the parties.

Meet and Confer

Defendants move to compel further responses to RFA Nos. 112 and 148-150. As stated above, a motion to compel further responses requires parties to engage in adequate meet and confer before filing the motion. (Code Civ. Proc., § 2033.290, subd. (b).) However, according to the moving papers, Defendants did not engage in any further meet and confer efforts following service of plaintiff Kristine’s second supplemental RFA responses. Thus, Plaintiffs were never given an opportunity to cure any deficiencies with the second supplemental RFA responses before the filing of this motion. Given this conduct, the Court finds that Defendants did not adequately meet and confer before filing the motion. (See Townsend v. Super. Ct., supra, 61 Cal.App.4th 1431 [appellate court granted writ of mandate and reversed trial court’s decision to compel discovery where parties did not make an effort to resolve the discovery dispute].)

Therefore, Defendants’ motion to compel further responses to RFA Nos. 112 and 148-150 is DENIED.

Requests for Monetary Sanctions

Defendants’ request for monetary sanctions is DENIED as they failed to prevail on their motions to compel.

Plaintiffs’ request for monetary sanctions is DENIED as counsel fails to include a declaration setting forth the amount of any monetary sanction sought. (See Code Civ. Proc., § 2030.040.)

Evidentiary Objections

In reply, Defendants submit a series of objections to evidence in Plaintiff’s opposition. However, there is no authority for the proposition that a court must rule on evidentiary objections made in connection with a motion other than a motion for summary judgment or an anti-SLAPP motion. Therefore, the Court declines to rule on Defendants’ evidentiary objections.