Case Number: BC495390    Hearing Date: October 31, 2014    Dept: 34

(1) Motion to compel compliance with request for production;
(2) Motion to compel further responses to first set of requests for admissions;
(3) Motion to compel further responses to second set of requests for production;
(4) Motion to compel further responses to second set of form interrogatories

Moving Party: Defendant Aida Rose LLC

Resp. Party: Plaintiff Moses Cho

Defendant’s motion to compel plaintiff’s compliance with the first set of requests for production is GRANTED. The Court imposes monetary sanctions in the amount of $7,532.50.

Defendant’s motions to compel further responses are CONTINUED. The parties are to meet and confer in person to discuss and resolve any remaining disputes. If unresolved issues still remain, the parties must file a joint statement describing each interrogatory or request and response at issue. There is to be no argument or statement of facts in the statement. The joint statement and any declarations are to be filed five court days before the continued hearing.

The Court GRANTS Defendant’s Request for Judicial Notice. (See Evid. Code, § 452(d), (h).)

BACKGROUND:

Plaintiff commenced this action on 11/9/12, against defendants for: (1) specific performance; (2) breach of written contract; (3) breach of implied covenant of good faith and fair dealing; (4) declaratory relief; and (5) injunctive relief. Plaintiff filed a first amended complaint (“FAC”) on 6/6/13. After the Court sustained defendant’s demurrer to the FAC in part, plaintiff filed a second amended complaint (“SAC”) on 4/28/14 alleging causes of action for: (1) specific performance; (2) breach of written contract; (3) fraud; (4) negligent misrepresentation; (5) interference with contract; (6) interference with prospective economic advantage; and (7) declaratory relief.

Plaintiff alleges that he entered into a lease for the subject premises in January 2006. (SAC ¶ 11.) The lease sets forth plaintiff’s right to purchase the property. (Id., ¶ 16.) Under the lease, plaintiff was given a right of first and second refusal. (Id., ¶¶ 16-17.) A Notice of Sale dated August 9, 2012, purported to set forth a single combined offer of $4,000,000.00 to purchase the subject property and another property. (Id., ¶ 23.) Plaintiff alleges that the Notice of Sale violated the terms of the lease agreement. (Ibid.) Plaintiff alleges Siegel improperly demanded that plaintiff expressly waive his rights to purchase by signing an “estoppel certificate,” which plaintiff refused to sign, resulting in Siegel serving a three-day notice to cure or quit. (Id., ¶¶ 24-25.) Siegel sold the property to the Buyers in December 2012. (Id., ¶ 32.)

On 4/29/14, the Court granted defendant’s unopposed motion to compel plaintiff’s responses to the first sets of form interrogatories, special interrogatories, and requests for production. The Court imposed sanctions against plaintiff in the total amount of $1,750.00.

On 8/1/14, the Court denied defendant’s motion for terminating sanctions.

On 10/15/14, plaintiff filed a stipulation of the following facts: (1) from 11/20/10 to the present plaintiff did not intent to purchase both properties; (2) from 11/20/10 to the present plaintiff did not have sufficient liquid assets to complete an all-cash purchase by himself; (3) if the proposed sale did not permit sufficient time for plaintiff to obtain a conventional loan for the purchase of either property, plaintiff planned to obtain a personal loan from a friend, John Ruffo; (4) if the purchase of either property was funded through a loan by John Ruffo, it was plaintiff’s intent to contribute $100,000.00 as a deposit on such transaction; (5) as of 12/31/12, plaintiff did not have a binding loan commitment from a conventional third-party lender; (6) the time period from 11/20/12 through 12/14/12 was not sufficient for plaintiff to obtain a loan from a conventional lender relative to the sale of the properties; (7) to the extent the SAC is ambiguous as to whether plaintiff is seeking economic damages related to monies expended by plaintiff for leasehold improvements to 39 E. Colorado Blvd, plaintiff confirms and stipulates that he is not pursuing a claim for money damages related to such improvements.

ANALYSIS:

Motion to compel compliance

Defendant moves to compel plaintiff’s compliance with his agreement to produce documents in response to defendant’s first set of requests for production, and for appropriate monetary, issue, evidentiary, and terminating sanctions. On 4/29/14, the Court granted defendant’s motion to compel responses to the first set of requests for production. The Court ordered plaintiff to “provide verified responses and responsive documents, without objection.” Plaintiff was ordered to provide the responses within 30 days.

“If a party filing a response to a demand for inspection, copying, testing, or sampling under Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280 thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that party’s statement of compliance, the demanding party may move for an order compelling compliance.” (Code Civ. Proc., § 2031.320(a).) There is no time limit for a motion to compel compliance and no requirement to meet and confer. (See Weil & Brown, Civ. Proc. Before Trial (The Rutter Group 2014) ¶ 8:1508.1.)

Defendant specifically takes issue with plaintiff’s responses to request numbers 24-26. These requests seek all documents related to plaintiff’s plan to pay for the property at 39 E Colorado Blvd, plaintiff’s plan to obtain the loan amount stated in his offer for purchase of the property at 49 E Colorado Blvd, and plaintiff’s plan to obtain the amount identified as the purchase price for 49 E Colorado Blvd. (See Schwartz Decl., Exh. A, p. 8.) Defense counsel declares that plaintiff failed to provide all responsive documents without objection by 5/29/14. (Id., ¶ 6.) Defense counsel declares that plaintiff did not produce additional documents in response to meet and confer efforts and did not provide a written confirmation of compliance. (See id., ¶¶ 12-14.) Defendant provides copies of documents produced by plaintiff where quoted text is hidden or otherwise obscured. (See id., Exhs. I, K, L.) Defense counsel declares that he was unable to locate any documents or communications from 8/10/12 to 10/10/12, that there is a gap in the documents until 10/24/12, and that there is a gap from 11/20/12 to 12/2/12. (Id., ¶ 19.) This evidence is sufficient to support defendant’s argument that plaintiff has not produced all responsive documents.

Plaintiff’s counsel responded to meet and confer efforts by asserting that the Court’s 4/29/14 ruling only pertained to the interrogatories and there was no ruling as to the RPDs. (See Schwartz Decl., Exh. F.) This is not the case. Nothing in the language of the 4/29/14 minute order indicates that the ruling is so limited. The plain language of the written ruling, which is attached to the minute order and incorporated by reference, clearly states that the ruling pertained to the RPDs. (See RJN, Exh. 1.) In particular, the first paragraph of the court’s ruling states “defendant Aida Rose LLC’s unopposed motion to compel plaintiff’s responses to the first sets of its form interrogatories, special interrogatories, and requests for production is granted.”

Plaintiff’s counsel also asserted that some of the documents sought were not relevant. (See Schwartz Decl., Exh. F.) This assertion is not well taken because, by failing to provide timely initial responses to the RPDs, plaintiff has waived any and all objections, including those based on relevance. (See Code Civ. Proc., § 2031.300(a).)

Plaintiff’s counsel declares that plaintiff recently produced “a smaller collection of documents that are either financially related in most cases, not relevant or outside the pertinent time period in question.” (McLachlan Decl., ¶ 5.) Plaintiff’s counsel declares that he has produced all attorney-client communications between plaintiff and his former counsel, and that the former counsel refuses to respond to indicate whether other documents exist. (Id., ¶ 6.) This declaration is not sufficient to defeat defendant’s motion. Plaintiff fails to indicate whether these vaguely-described documents were actually responsive to the requests. Further, there is no proof of service showing that the documents were actually served.

To the extent that plaintiff objects that the production of certain documents is no longer necessary because of the stipulation filed on 10/15/14, this objection is not well taken. Plaintiff has waived any objection based on relevance by failing to timely raise such an objection. Request number 24 seeks all documents relating to plaintiff’s plan to pay for the property at 39 E Colorado Blvd, which would likely include all documents supporting plaintiff’s new assertion that he could not obtain a conventional loan and that he would have obtained a loan from a friend.

Accordingly, defendant’s motion to compel compliance with the first set of requests for production is GRANTED. Plaintiff must provide all responsive documents, without objections, within 30 days of this ruling.

Sanctions

The Court declines to impose non-monetary sanctions at this time, without prejudice to defendant bringing a renewed motion for such sanctions in the event that plaintiff fails to produce the documents as ordered. The Court reminds plaintiff that he has been given multiple chances to comply with the document requests, and that any continued failure to comply will likely result in evidentiary, issue or terminating sanctions.

Defendant also seeks monetary sanctions in the amount of $7,532.50. This Court has repeatedly warned and admonished plaintiff’s counsel for its dilatory tactics. On August 1, 2014, the Court declined to impose sanctions against plaintiff — not because they were not warranted , but because defense counsel had made a procedurally improper request for sanctions.

The amount of sanctions requested is reasonable given plaintiff’s conduct with regard to the document requests. The court finds that Mr. Schwartz’s hourly rate of $575 per hour to be reasonable, and the total fees expended on this motion of $7532.50 also to be reasonable.
Sanctions to be paid within 30 days.

Motions to Compel Further Responses

Before bringing a motion to compel further responses to any discovery request, the moving party is required to make efforts to meet and confer in good faith and must submit a declaration attesting to those efforts. (Code Civ. Proc., §§ 2033.290(b), 2030.300(b).) “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc. § 2016.040.)

Defendant purports to provide meet and confer declarations. (See Schwartz Decl. [motions re interrogatories and RPDs], ¶ 4, Exh. C; Schwartz Decl. [motion re RFAs] ¶ 6, Exh. E.) Defendant’s meet and confer efforts consisted of a single e-mail sent on 9/24/14 – five days before the instant motions were filed – and which demanded that plaintiff agree to provide further responses to three forms of discovery by the next day. (See ibid.) Defendant is referred to Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1293-1294, for an explanation of the requirements of the meet and confer process. A single correspondence which merely asserts the party’s position does not meet this requirement. In at least one decision, the Second District has held that a motion must be denied where there is a lack of a reasonable or good faith effort to meet and confer. (See Townsend v. Superior Court (1998) 61 Cal.APp.4th 1431, 1439.) In another ruling, the Second District found that a discovery motion should not be denied automatically based upon the reason that the moving parties failed to meet and confer in good faith; instead, “the trial court should consider whether it would be more appropriate to specify additional efforts which will be required before the court will turn to the merits of the discovery dispute.” (Obregon v. Sup. Ct. (1998) 67 Cal.App.4th 424, 434-435.)

The Court will continue these motions. It appears that the parties have engaged in meet and confer efforts after the filing of the motions, which may have impacted the requests and required responses. (See McLachlan Decl., ¶¶ 2, 6, 7.) For example, plaintiff’s counsel declares that modified requests for admissions were served which remedy some of plaintiff’s objections. (See id., Exhs. 1, 2.) Moreover, it is unclear if plaintiff’s factual stipulations impact the discovery requests. The parties are ordered to meet and confer in person to discuss and resolve any remaining disputes. If unresolved issues still remain, the parties must file a brief joint statement stating each interrogatory or request and response at issue. There is to be no argument or statement of facts in the statement. The joint statement and any declarations are to be filed five court days before the continued hearing.