Lisa Large v. Intero Real Estate Services, Inc., et al		CASE NO. 112CV230975
DATE: 19 December 2014	TIME: 9:00	LINE NUMBER: 8

This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 18 December 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 19 December 2014, the motion of Defendant Kathleen Sims (“Defendant Sims”) to compel further responses of Plaintiff Lisa Large (“Plaintiff”) to request for production of documents, set one, was argued and submitted.

Plaintiff filed formal opposition to the motion. Neither party requested monetary sanctions.

1. Statement of Facts.

This case arises from a real estate transaction relating to the purchase of a residential leasehold interest at 269 Addison Avenue, Palo Alto, California, between Plaintiff Lisa Large as purchaser and Defendant Kathleen Sims as seller. According to the complaint filed on 23 August 2012, Defendant Andrew Wong, who is affiliated with Defendant Intero Real Estate Services, Inc. (“Intero”), acted as Sims’ agent. Defendant Patricia Kalish, who is also affiliated with Intero, acted as Plaintiff’s agent assisting in the purchase of the Addison property as well as the sale of Plaintiff’s other property on Lincoln Avenue, Palo Alto, California.

As a result, Defendant Intero was a double agent in respect of the sale of the Addison property, and Plaintiff’s agent in respect of the sale of the Lincoln property. Defendants Steve W. Dollar, Esq. and Ericksen, Arbuthnot, Kilduff, Day & Lindstrom, Inc., a California corporation, reviewed the purchase agreement and provided legal advice to Plaintiff on the issues of property tax assessment and income tax deductions in relation to the purchase of the Addison property.

Plaintiff alleges that in July 2010, at the open house for the sale of the Addison property, Defendant Wong represented to her that the monthly rent of $1391 payable to the landowner is akin to a mortgage payment, and thus tax-deductible. She also alleges that Wong further represented to her that the property would not be reassessed for property tax purposes upon transfer, and Plaintiff (the buyer) would be able to continue making a fixed payment of $293 per month in property taxes.

At the time, although the property was listed for $650,000, Sims (the seller) was paying $293 per month in property taxes based on an assessed value of $257,455. Plaintiff retained Defendants Steve W. Dollar, Esq. and Ericksen, Arbuthnot, Kilduff, Day & Lindstrom, Inc., a California corporation, to review the lease terms before closing, and Plaintiff alleges that they confirmed Defendant Wong’s representations as correct.

Plaintiff claims that relying on the above representations and confirmations made to her by the defendants, she proceeded with the purchase of the Addison property and the sale of her Lincoln property. At the time of closing on 27 August 2010, the Addison property had 52 years or remaining lease term.

In November 2011, more than sixteen months after the closing, Plaintiff received a Notice of Proposed Escape Assessment from the County of Santa Clara. The notice indicated that the 27 August 2010 transfer was a change in ownership triggering a reassessment of the Addison property because it was an assignment of a lease of real property with a term of 35 years or more remaining. As a result, the property assessment increased from $275, 455 to $1,012,545, thereby increasing the property tax from $3,642.88 to $15,191.96 a year. Plaintiff also learned that the monthly rent payments to the landowner were not tax deductible.

On 23 August 2012, Plaintiff filed a complaint against the six named defendants and Does 1-20, alleging nine causes of action including fraudulent misrepresentation, concealment, breach of fiduciary duty, negligence, breach of contract, breach of implied covenant of good faith and fair dealing, and professional negligence. All  named defendants have filed answers to the complaint, and cross-complaints against one another for indemnity, tort of another, comparative contribution, and declaratory relief. The case is currently scheduled for jury trial on 9 February 2015.

1. Discovery Dispute.

On 1 August 2014, Sims served on Plaintiff her fist set of form interrogatories, to which Plaintiff responded on 26 September 2014. Sims does not challenge those responses in this motion.

On 1 August 2014, Sims also served on Plaintiff her first set of requests for production of documents, numbers 1 through 15. Plaintiff responded to the requests on 26 September 2014, by raising objections that each request was overbroad and protected by attorney-client privilege.  With respect to request number 5, Plaintiff objected on the grounds that it was overbroad and seeks documents not reasonably calculated to lead to the discovery of admissible evidence. Plaintiff also promised to produce non-privileged documents that were responsive to the requests and were not previously produced.

Accordingly, on 13 November 2014, Plaintiff produced documents Bates labeled LL 1484 through 1652. Plaintiff also communicated to Sims that the production included previously served documents (Bates labeled LL 1 through 1483); and that documents withheld by Plaintiff on the ground of privilege were the same as indicated on an earlier served privilege log produced in response to Defendant Dollar, Esq.’s discovery request. Included in this privilege log were about 55 email correspondences exchanged between 11 July 2010 and 25 April 2012, which Plaintiff either withheld or redacted on grounds of attorney-client and physician-patient privileges. The attorney-client privilege relates to the emails between Plaintiff and Martin R. Greenstein, who is an attorney and Plaintiff’s friend. The physician-patient privilege relates to emails between Plaintiff and Brant Wenegrat, who is a psychiatrist practicing in the same suite as Plaintiff, and also a friend.

On 25 November 2014, Sims filed the instant motion seeking this Court’s determination of the above-mentioned claims of attorney-client and physician-patient privileges asserted by Plaintiff. Both parties represent that they have met and conferred regarding the matter, and reached an agreement to submit the issues for the Court’s determination.

The moving papers state that “Plaintiff’s counsel has agreed to lodge for the Court’s review the documents at issue in a binder at the same time counsel files its response to this motion so that the Court can review the communications and make a determination as to the claims of privilege by plaintiff.” (Memo of Points and Authorities in Support of Motion to Compel, p.4, Lns. 24-27.)

Plaintiff filed a formal opposition to the motion on 8 December 2014. Although Plaintiff’s opposition paper makes reference to “in-camera review” of the documents at issue (Memorandum of Points and Authorities in Opposition to Motion to Compel, p.1, Ln.11), those documents had not been made available to the Court. The Court’s electronic records for this case did not indicate an entry for the lodging of documents in relation to the instant motion. Nor did the physical case file contain the afore-mentioned binder of documents.

However, this Court has just recently been presented with a binder of documents but, due to the press of business, the Court has not been able to review these documents.  The Court will invite counsell to make brief presentations concerning the documents in question.

On that point, this Court would like to remind all parties that.  Mr. Sahae was a law clerk for this Department.  Further, Ms. Bregante Beyers was a student in a Cal Civ Pro class taught by this Department.  Additionally, this Court swore both attorneys in to the California State Bar.  This Court believes that it can impartially bring this matter to a peaceful resolution.

This Court is aware of the trial date in this matter. [1]

1. Order.

In the event that the above-mentioned documents were not lodged with the Court due to inadvertence, miscommunication, or misunderstanding of the stipulated terms for this motion, the Court will still allow submission of the documents for in camera review. Thus instead of issuing a tentative ruling on the issues, the Court withholds making any determination of the matter until the conclusion of the hearing.

 

 

________________­­­____________ DATED:

_________________________­­­________________________ HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara

[1] This Court is also aware that ordinarily it cannot require in camera review of these documents as they are subject to a claim of privilege by Plaintiff. (See Costco Wholesale Corp. v. Superior Court, 47 Cal. 4th 725, 738-739; Clark v. Superior Court, 196 Cal. App. 4th 37, 51.)