Case Name: Longs Drug Stores California, L.L.C. v. DS Westgate West LP, et al.

Case No.: 16CV304555

Motion of Plaintiff Longs Drug Stores California, LLC to Compel Further Production of Documents; and Further Responses to Requests for Admissions

Factual and Procedural Background

This action arises out of a dispute between a tenant, plaintiff Longs Drug Stores California, L.L.C. (“Longs”), and landlord, defendant DS Westgate West LP (“DS Westgate”), concerning plaintiff Longs’ right to sublease its premises.

On December 29, 2016, plaintiff Longs filed a complaint against defendant DS Westgate seeking, among other things, declaratory relief.

On March 2, 2017, defendant DS Westgate filed its answer and also filed a cross-complaint against plaintiff Longs for breach of lease and seeking declaratory relief.

On April 14, 2017, plaintiff Longs filed an answer to defendant DS Westgate’s cross-complaint.

Discovery Dispute

On June 19, 2017, Longs served DS Westgate, by mail, with a Request for Production of Documents (“RPD”), set one, and a Request for Admissions (“RFA”), set one.

At the request of DS Westgate’s counsel, Longs’ counsel granted DS Westgate an extension of time to serve responses to the RPD and RFA until August 23, 2017. On August 23, 2017, DS Westgate served Longs, by mail, with its responses to the RPD and RFA. Longs’ counsel found DS Westgate’s responses to the RPD and RFA to be deficient.

Distracted by a separate unlawful detainer action filed by DS Westgate, Longs’ counsel belatedly realized the deadline to file a motion to compel fell on October 12, 2017. On October 11, 2017, Longs’ counsel requested an extension of time to file a motion to compel, but DS Westgate’s counsel refused, asserting the deadline to file a motion to compel had already passed. DS Westgate’s counsel instead requested Longs specify its concerns about DS Westgate’s discovery responses. Longs’ counsel emailed DS Westgate’s counsel that same day identifying the concerns with DS Westgate’s discovery responses. Longs’ counsel did not receive any response from DS Westgate’s counsel.

On October 12, 2017, Longs filed the instant motion to compel DS Westgate’s further production of documents and to compel a further response to RFA.

I. Timeliness.

“Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand.” (Code Civ. Proc., §2031.310, subd. (c); see also Code Civ. Proc., §2033.290, subd. (c).)

As a preliminary matter, DS Westgate argues in opposition that Longs’ motion to compel is untimely. According to DS Westgate, it served its responses the discovery at issue on August 23, 2017 by electronic mail. The 45th day following August 23, 2017 is Saturday, October 7, 2017. The 45 day deadline is extended two days for electronic service to Monday, October 9, 2017. (See Code Civ. Proc., §1010.6, subd. (a)(4)(B); see also Cal. Rules of Court, rule 2.251, subd. (h)(2).) Monday, October 9, 2017, was a court holiday, thereby further extending the deadline to Tuesday, October 10, 2017. (Cal. Rules of Court, rule 1.10, subd. (b).) Since Longs did not file this motion until Thursday, October 12, 2017, it is DS Westgate’s contention that the motion is untimely.

Longs anticipated DS Westgate’s argument and points out that the proof of service accompanying DS Westgate’s responses indicates service by mail, not electronic service. Moreover, Longs did not consent to electronic service. “For cases filed on or before December 31, 2018, if a document may be served by mail, express mail, overnight delivery, or facsimile transmission, electronic service of the document is not authorized unless a party or other person has agreed to accept electronic service in that specific action or the court has ordered electronic service on a represented party or other represented person under subdivision (c) or (d).” (Code Civ. Proc., §1010.6, subd. (a)(2)(A)(i).) “A party indicates that the party agrees to accept electronic service by serving a notice on all parties that the party accepts electronic service and filing the notice with the court. The notice must include the electronic service address at which the party agrees to accept service.” (Cal. Rules of Court, rule 2.251, subd. (b)(1)(A); emphasis added.) The court file contains no such notice. Consequently, electronic service is not authorized here. DS Westgate’s proof of service by mail governs. Longs’ deadline to file this motion fell on October 12, 2017. As such, the motion is timely.

II. Meet and confer.

“‘The Discovery Act requires that, prior to the initiation of a motion to compel, the moving party declare that he or she has made a serious attempt to obtain ‘an informal resolution of each issue.’ [Citations.] This rule is designed “to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order….” [Citation.] This, in turn, will lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes. [Citations.]’ [Citation.]” (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1293.)

DS Westgate argues additionally that the motion should be denied because Longs did not adequately meet and confer in advance of the filing of this motion. DS Westgate contends Longs did not commence the meet and confer until October 11, 2017, the day before filing the instant motion. Longs’ counsel contends the reason for this delay was due to being distracted by DS Westgate’s actions in filing a separate unlawful detainer.

In this court’s opinion, the fault lies with both sides. Whether due to inadvertence or distraction, it was inappropriate for Longs to wait so long to commence meet and confer efforts. However, the court finds DS Westgate’s incorrect insistence that the deadline for a motion to compel had passed led to its refusal to extend and engage in meet and confer efforts.

In the future, both sides should make a more diligent effort to meet and confer.

III. Plaintiff/cross-defendant Longs’ motion to compel a further response to RPD, set one, numbers 3 – 6 and 15 – 16 is GRANTED.

Upon receipt of a response to a demand for inspection, including requests for the production of documents, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply:

1. A statement of compliance with the demand is incomplete.
2. A representation of inability to comply is inadequate, incomplete, or evasive.
3. An objection in the response is without merit or too general.

(Code Civ. Proc., §2031.310, subd. (a)(1) – (3); emphasis added.)

The motion for order compelling further responses “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.” (Code Civ. Proc., §2031.310, subd. (b)(1); see also Code Civ. Proc., §2025.450, subd. (b)(1); Kirkland v. Sup. Ct. (2002) 95 Cal.App.4th 92, 98 (Kirkland).) To establish “good cause,” the burden is on the moving party to show both relevance to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case) and specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). (Glenfed Develop. Corp. v. Sup. Ct. (1997) 53 Cal.4th 1113, 1117.) Where the moving party establishes “good cause,” the burden shifts to the responding party to justify its objections. (Kirkland, supra, 95 Cal.App.4th at p. 98.)

In reviewing the separate statement submitted by plaintiff Longs, the court is satisfied that plaintiff Longs has established good cause justifying the discovery sought by RPD, set one, numbers 3 – 6 and 15 – 16. Thus, the burden shifts to defendant DS Westgate to justify its objections.

A. RPD, numbers 3 – 4.

RPD, number 3 seeks, “ALL COMMUNICATIONS with GROSVENOR RELATING TO tenants or potential tenants at the CENTER.”

RPD, number 4 seeks, “ALL COMMUNICATIONS with GROSVENOR RELATING TO LONGS.”

In opposition, DS Westgate contends the request is overbroad and the information encompasses matters that are entirely irrelevant. The requests, however, are limited to communications that DS Westgate had with the prior owner. Although not entirely clear, Longs suggests DS Westgate did not acquire the property until 2016. Even if this date is not entirely accurate, a temporal limitation impliedly exists since DS Westgate did not acquire the property until recently.

As for DS Westgate’s assertion that the request seeks irrelevant information, the scope of discovery is broad and relevance is not the test. The court is not persuaded by DS Westgate’s argument that the requests seek information which is not reasonably calculated to lead to the discovery of admissible evidence.

DS Westgate further objects on the basis that the request seeks documents that are protected by the trade secret privilege and or constitutional right to privacy. “If an objection is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.” (Code Civ. Proc., §2031.240, subd. (c)(1).) To the extent there are any privileged documents, DS Westgate must provide a privilege log.

The right of privacy established by the California Constitution protects an individual’s “reasonable expectation of privacy against a serious invasion.” (Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 370 (Pioneer), citing Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 40.) Where a serious invasion of a reasonable expectation of privacy is shown, the proponent of discovery must demonstrate that information sought is “directly relevant” to a claim or defense, and “essential to the fair resolution of the lawsuit.” (Britt v. Superior Court (1978) 20 Cal.3d 844, 859; Harris v. Superior Court (1992) 3 Cal.App.4th 661, 665.) If direct relevance is shown, the court must “carefully balance” the right of privacy, on the one hand, and the right of civil litigants to discover relevant facts, on the other. (Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 657; see also Pioneer, supra, 40 Cal.4th at p. 371.) Here, DS Westgate asserts a right to privacy with regard to communications about other tenants. DS Westgate has not demonstrated how such communications amount to a serious invasion of a reasonable expectation of privacy.

Objections aside, DS Westgate contends it has already provided all documents responsive to these requests. The court does not find DS Westgate’s substantive response to be deficient. As indicated above, a party can bring a motion to compel if they deem the objections to be without merit.

Accordingly, plaintiff/cross-defendant Longs’ motion to compel defendant/cross-complainant DS Westgate’s further response to RPD, set one, numbers 3 – 4 is GRANTED. Defendant/cross-complainant DS Westgate shall provide a verified further written response, without objection (except for privilege), to RPD, set one, numbers 3 – 4 and produce all responsive documents thereto within 10 days from notice of this order.

B. RPD, numbers 5 – 6.

RPD, number 5 seeks, “ALL DOCUMENTS RELATING TO estoppel certificates from tenants at the CENTER.”

RPD, number 6 seeks, “ALL COMMUNICATIONS with GROSVENOR RELATING TO estoppel certificates from tenants at the CENTER.”

It is DS Westgate’s position that estoppel certificates from other tenants is irrelevant to the issues in this case. As stated above, the scope of discovery is broad and relevance is not the test. The court is not persuaded by DS Westgate’s argument that the requests seek information which is not reasonably calculated to lead to the discovery of admissible evidence.

DS Westgate fails to substantiate its assertion that the request is intended to impose a great burden. (See West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 417-418 [because “some burden is inherent in all demands for discovery,” a party claiming that requested discovery is unduly burdensome must make a particularized showing of facts demonstrating hardship, including evidence showing the quantum of work required to respond].)

DS Westgate further objects on the basis that the request seeks documents that are protected by the trade secret privilege and or constitutional right to privacy. “If an objection is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.” (Code Civ. Proc., §2031.240, subd. (c)(1).) To the extent there are any privileged documents, DS Westgate must provide a privilege log.

The right of privacy established by the California Constitution protects an individual’s “reasonable expectation of privacy against a serious invasion.” (Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 370 (Pioneer), citing Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 40.) Where a serious invasion of a reasonable expectation of privacy is shown, the proponent of discovery must demonstrate that information sought is “directly relevant” to a claim or defense, and “essential to the fair resolution of the lawsuit.” (Britt v. Superior Court (1978) 20 Cal.3d 844, 859; Harris v. Superior Court (1992) 3 Cal.App.4th 661, 665.) If direct relevance is shown, the court must “carefully balance” the right of privacy, on the one hand, and the right of civil litigants to discover relevant facts, on the other. (Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 657; see also Pioneer, supra, 40 Cal.4th at p. 371.) Here, DS Westgate asserts a right to privacy but has not demonstrated how the requests amount to a serious invasion of a reasonable expectation of privacy.

Accordingly, plaintiff/cross-defendant Longs’ motion to compel defendant/cross-complainant DS Westgate’s further response to RPD, set one, numbers 5 – 6 is GRANTED. Defendant/cross-complainant DS Westgate shall provide a verified further written response, without objection (except for privilege), to RPD, set one, numbers 5 – 6 and produce all responsive documents thereto within 10 days from notice of this order.

C. RPD, numbers 15 – 16.

RPD, number 15 seeks, “ALL DOCUMENTS supporting YOUR contention in paragraph 11 of the CROSS-COMPLAINT that GOODWILL is a ‘second hand thrift store whose marketing, goods, and inventory are not compatible with the Center.”

RPD, number 16 seeks, “ALL COMMUNICATIONS supporting YOUR contention in paragraph 11 of the CROSS-COMPLAINT that GOODWILL is a ‘second hand thrift store whose marketing, goods, and inventory are not compatible with the Center.”

DS Westgate objects on the ground that the requests are overbroad, compound, and seek privileged documents. As indicated above, to the extent the request encompasses privileged documents, DS Westgate must provide a privilege log. DS Westgate argues further that it has already responded to these requests in responding to Longs’ interrogatories. However, the court in Irvington Moore, Inc. v. Superior Court (1993) 14 Cal.App.4th 733, 738 – 739, stated, “A party may use multiple methods to obtain discovery and the fact that information was disclosed under one method is not, by itself, a proper basis to refuse to provide discovery under another method.” The fact that plaintiff has obtained information through interrogatories does not preclude plaintiff from seeking the same information via other forms of discovery.

DS Westgate argues the requests seek documents that are in plaintiffs’ own possession. This is not an appropriate objection. If DS Westgate does not possess any responsive documents and is, therefore, unable to comply with the requests, the appropriate response is to make “[a] representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item” and “affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.” (Code Civ. Proc., §§2031.210, subd. (a)(2) and 2031. 230.)

Accordingly, plaintiff/cross-defendant Longs’ motion to compel defendant/cross-complainant DS Westgate’s further response to RPD, set one, numbers 15 – 16 is GRANTED. Defendant/cross-complainant DS Westgate shall provide a verified further written response, without objection (except for privilege), to RPD, set one, numbers 15 – 16 and produce all responsive documents thereto within 10 days from notice of this order.

IV. Plaintiff/cross-defendant Longs’ motion to compel a further response to RFA, set one, number 11 is GRANTED.

“On receipt of a response to requests for admissions, the party requesting admissions may move for an order compelling a further response if that party deems that either or both of the following apply: (1) An answer to a particular request is evasive or incomplete. (2) An objection to a particular request is without merit or too general.” (Code Civ. Proc., §2033.290, subd. (a).)

RFA, number 11, asks DS Westgate to admit that “Smart & Final’s business is compatible with the CENTER.”

DS Westgate responded by stating, “This is objected to because it is irrelevant, not reasonably calculated to lead to the discovery of admissible evidence, and is vague and ambiguous in using the term ‘compatible.’ Moreover, Smart & Final is operating in the CENTER, and it is presumably ‘compatible’ with itself.”

As explained by Longs, Longs subleases a portion of its premises to Smart & Final which is a self-described “low price” grocery store. Longs contends the RFA is relevant to whether DS Westgate unreasonably withheld its consent for Longs to sublease its premises to Goodwill because DS Westgate has argued that Goodwill’s business characteristics are not compatible with the shopping center.

In opposition, DS Westgate contends the focus is more appropriately on whether Goodwill is compatible and not whether some other tenant, such as Smart & Final, is compatible. The court agrees with Longs that the RFA is relevant to the issue of a tenant’s compatibility of use in the shopping center.

DS Westgate contends it appropriately responded by stating that Smart & Final is compatible with itself. The court finds such a response to be evasive.

DS Westgate also contends this RFA is a surreptitious way for plaintiff to compare Smart & Final with Goodwill. The court disagrees. The RFA is straight-forward in its meaning and not vague or ambiguous.

Accordingly, plaintiff/cross-defendant Longs’ motion to compel defendant/cross-complainant DS Westgate’s further response to RFA, set one, number 11 is GRANTED. Defendant/cross-complainant DS Westgate shall provide a verified further written response, without objection, to RFA, set one, number 11 within 10 days from notice of this order.

V. Request for sanctions.

“Except as provided in subdivision (j), the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, 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.” (Code Civ. Proc., § 2031.310, subd. (h).)

“The court shall impose a monetary sanction … against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response, 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.” (Code Civ. Proc., §2033.290, subd. (d).)

In opposition, DS Westgate requested sanctions against Longs for making this motion. Since Longs prevailed, DS Westgate’s request for sanctions is DENIED.