Case Name: Kronclough Legacy, LLC v. Da Rosa Development, LLC, et al.
Case No.: 18CV324882

I. Factual Background and Discovery Dispute

Kronclough Legacy, LLC (“Plaintiff”) claims it was defrauded into purchasing real estate that was unsuitable for its intended use. According to the allegations in the complaint, the property at issue is in a light-industrial zone of the City of Campbell, but the City asserted it had been improperly converted from its historical use as a residence to industrial use without a conditional use permit. Plaintiff alleges it purchased the property based on representations that it was an office space and suitable for industrial use, which turned out to be false. It later learned it would need to conduct expensive renovations to obtain a conditional use permit for its contemplated use of the property. And so, Plaintiff commenced this action against: (1) the seller and its principal, namely Da Rosa Development, LLC and Willy Da Rosa; (2) the seller’s broker and agents, namely CBRE, Inc., Vincent J. Machado, and Anthony James Podesta; and (3) its own broker and agent, namely Customer Service Realty, Inc. (dba CSR Commercial Real Estate Services) (“CSR”) and Jonathan Hanhan. Plaintiff asserts causes of action against the defendants for: (1) fraud by intentional misrepresentation; (2) fraud by concealment; (3) negligent misrepresentation; (4) breach of contract; (5) breach of duty to disclose; (6) negligent nondisclosure; (7) rescission based on fraud; (8) rescission based on mutual mistake; (9) negligence; and (10) breach of fiduciary duty. CSR and Mr. Hanhan then filed a cross-complaint seeking indemnity and contribution from Mr. Da Rosa and his company.

A discovery dispute arose between Plaintiff as well as CSR and Mr. Hanhan (collectively, “Defendants”). In August 2018, Defendants served Plaintiff with form interrogatories, set one (“FI”) and special interrogatories, set one (“SI”). (Blake Decl., ¶ 3 & Exs. 1–2.) The next month, Plaintiff served initial responses to these requests consisting of identical objections on the grounds of vagueness and ambiguity, the attorney-client privilege, and the work-product doctrine as well as some substantive responses. (Blake Decl., ¶ 4 & Exs. 3–4.) Plaintiff also took issue with the fact that Defendants propounded FI typically used in personal injury actions. (Ibid.)

Defendants asserted Plaintiff failed to completely respond to each interrogatory, interposed invalid objections, and did not properly exercise the option to produce documents. (Blake Decl., Ex. 5.) Plaintiff agreed to supplement a number of its responses, but insisted that its exercise of the option to produce documents—“specifically all records produced in this action”—was code-compliant. (Blake Decl., Ex. 5.)

In November 2018, Plaintiff served Defendants with supplemental responses to FI Nos. 12.1–12.7 as well as SI No. 41. (Blake Decl., Exs. 6–7.) But with respect to the FI, Plaintiff responded with the very same objections it originally interposed. (Blake Decl., Ex. 6.) Defendants asserted these supplemental responses, as well as Plaintiff’s initial response to SI No. 46, remained deficient. (Blake Decl., Ex. 8.) The parties could not resolve their dispute during their additional meet and confer discussions. (Blake Decl., Ex. 8.)

Currently before the Court is Defendants’ motion to compel Plaintiff to provide further responses to FI Nos. 12.1–12.7 and SI Nos. 41 and 46. Defendants seek an award of monetary sanctions in connection with their motion. Plaintiff opposes the motion and seeks sanctions as well.

II. Request for Judicial Notice

Plaintiff filed a request for judicial notice of the complaint in connection with its opposition. Court records are subject to judicial notice under Evidence Code section 452, subdivision (d). Nevertheless, it is unnecessary to take judicial notice of the complaint for the purpose of the motion because it may necessarily be considered by the Court. (See Paul v. Patton (2015) 235 Cal.App.4th 1088, 1091, fn. 1.) Accordingly, Plaintiff’s request for judicial notice is DENIED.

III. Motion to Compel

“The party to whom interrogatories have been propounded shall respond in writing under oath separately to each interrogatory by any of the following: [¶] (1) An answer containing the information sought to be discovered. [¶] (2) An exercise of the party’s option to produce writings. [¶] (3) An objection to the particular interrogatory.” (Code Civ. Proc., § 2030.210, subd. (a); see generally Coy v. Super. Ct. (1962) 58 Cal.2d 210, 216.) “Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits.” (Code Civ. Proc., § 2030.220, subd. (a); see also Code Civ. Proc., § 2030.240.)

“On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that…[a]n answer to a particular interrogatory is evasive or incomplete[,] [a]n exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate[, or] [a]n objection to an interrogatory is without merit or too general.” (Code Civ. Proc., § 2030.300, subd. (a).) “While the party propounding interrogatories may have the burden of filing a motion to compel if it finds the answers it receives unsatisfactory, the burden of justifying any objection and failure to respond remains at all times with the party resisting an interrogatory.” (Williams v. Super. Ct. (2017) 3 Cal.5th 531, 541.)

FI Nos. 12.1–12.7 seek disclosures about Plaintiff’s investigation of “the incident,” particularly: (1) eyewitnesses; (2) witnesses interviewed; (3) witnesses that provided a recorded or written statement; (4) photographs or videos of the injury; (5) diagrams or models; (6) investigation reports; and (7) inspections of the scene of the injury. (Blake Decl., Ex. 1 at pp. 5–6.) In response, Plaintiff restated its objections as follows: “In addition to the General Objections and Conditions, set forth above, the Responding Party objects as the Request is vague and ambiguous. This Request relates to a personal injury action. The Responding Party also objects to the extent that this Request requires the disclosure of attorney-client communications and/or attorney work-product.” (Blake Decl., Ex. 6.)

Plaintiff first argues its objections on the ground of vagueness and ambiguity are meritorious because, even in light of the definition of the term incident, it is unclear what the incident is in the context of this action. The Court agrees. In this particular context, unlike in an action for motor-vehicle negligence or medical malpractice, there is no singular incident or scene of an injury. Rather, the fraud allegedly arose from a series of communications and interactions over time. And so, the scope of each of the requests for disclosure of investigatory information is unclear. Plaintiff’s objections to FI Nos. 12.1–12.7 on the ground of vagueness and ambiguity are meritorious. Indeed, Defendants do not advance any argument to support a contrary conclusion.
SI Nos. 41 and 46 are contention interrogatories seeking the documents that support Plaintiff’s contentions that CSR and Mr. Hanhan are liable for its damages. (Blake Decl., Ex. 2 at p. 8.) Although Plaintiff did not object to SI No. 41, it objected to SI No. 46 on the grounds it is vague and ambiguous, overbroad, unduly burdensome, compound, and seeks information protected by the attorney-client privilege and work-product doctrine. Plaintiff briefly addresses the work-product doctrine, but does not attempt to justify any of its other objections. These undefended objections are, therefore, OVERRULED. As for Plaintiff’s objection based on the work-product doctrine, this objection is intertwined with its exercise of the option to produce documents in response to SI Nos. 41 and 46. Thus, the Court first addresses its substantive responses to those requests before considering the legitimacy of its work-product objection to SI No. 46 in particular.

Code of Civil Procedure section 2030.230 allows a party to “specify the writings from which the answer may be derived or ascertained” if “the answer to an interrogatory would necessitate the preparation or the making of a compilation, abstract, audit, or summary of or from the documents of the party to whom the interrogatory is directed, and if the burden or expense of preparing or making it would be substantially the same for the party propounding the interrogatory as for the responding party.” (Code Civ. Proc., § 2030.230.) The “specification shall be in sufficient detail to permit the propounding party to locate and to identify, as readily as the responding party can, the documents from which the answer may be ascertained.” (Code Civ. Proc., § 2030.230.) “A broad statement that the information is available from a mass of documents is insufficient.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 784.)

Plaintiff’s exercise of the option to produce writings is improper. First, SI Nos. 41 and 46 do not require Plaintiff to prepare a compilation or summary. Rather, they ask Plaintiff to identify the documents upon which it is relying. Plaintiff cites no legal authority to support a contrary conclusion. Second, Plaintiff did not state in its responses and does not establish in its opposition that the second prerequisite for exercise of the option to produce writings is satisfied, namely that the burden or expense of preparing the summary or compilation would be substantially the same for the propounding party. Finally, Plaintiff’s identification of documents is inadequate. The reference to all documents produced in this action is improper. And, the categories Plaintiff lists after directing Defendants to all documents produced are so broad that they do not cure this deficiency. For these reasons, Plaintiff fails to justify its exercise of the option to produce writings. Accordingly, further responses to these requests are warranted.

In providing a further response to SI No. 46, Plaintiff may not interpose an objection based on the work-product doctrine. This is because there is no basis for producing writings in lieu of providing a complete and straightforward answer to the interrogatory. Also, Plaintiff fails to substantiate its work-product objection. Plaintiff states “[i]t also arguably would be work product.” (Sep. Stat. at p. 58.) There is a significant lack of clarity in this argument. It seems Plaintiff is arguing—not that individual documents are protected—but that identifying the documents upon which it is relying would reveal work product. Plaintiff provides no legal authority or reasoned analysis to support this argument. And, its position is undercut by Code of Civil Procedure section 2023.010, subdivision (b), which states: “An interrogatory may relate to whether another party is making a certain contention, or to the facts, witnesses, and writings on which a contention is based. An interrogatory is not objectionable because an answer to it involves an opinion or contention that relates to fact or the application of law to fact, or would be based on information obtained or legal theories developed in anticipation of litigation or in preparation for trial.” For these reasons, Plaintiff’s work-product objection lacks merit.

In conclusion, Defendants’ motion to compel further responses is GRANTED IN PART and DENIED IN PART. The motion is granted as to SI Nos. 41 and 46 and denied as to FI Nos. 12.1–12.7. Plaintiff shall serve verified, code-compliant, further responses to SI Nos. 41 and 46—without objections—within 20 calendar days of the Court’s order.

IV. Requests for Monetary Sanctions

Both parties request an award of monetary sanctions: (1) Defendants seeks $2,650.00; and (2) Plaintiff seeks $4,784.00. Under Code of Civil Procedure section 2030.300, subdivision (d): “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.” Under the circumstances, neither Plaintiff nor Defendants are entitled to an award of monetary sanctions.

First, neither Plaintiff nor Defendants were completely successful in making and opposing the motion. Second, under the circumstances, the imposition of a sanction would be unjust. Defendants insisted on using but did not attempt to justify their use of form interrogatories unsuitable for the case at bench. Plaintiff agreed to supplement its responses and then just restated its objections. Both parties took positions not supported by the law.

In conclusion, the parties’ requests for monetary sanctions are DENIED.