17-CIV-00991 NOLAN CONSTRUCTION AND DESIGN VS. LUIS BALENKO, ET AL.

NOLAN CONSTRUCTION AND DESIGN LUIS BALENKO
RONALD J. COOK KATHRYN S. DIEMER

PLAINTIFF NOLAN CONSTRUCTION AND DESIGN’S MOTION TO COMPEL FURTHER PRODUCTION OF DOCUMENTS TENTATIVE RULING:

Plaintiff Nolan Construction and Design’s motion to compel further production of documents is GRANTED, in part, and DENIED, in part.

Plaintiff’s RFPDs No. 38-40 to Defendant Luis Balenko and RFPDs No. 35-37 to Defendant Stephanie Chenevert seek documents regarding any loans or loan applications with respect to the property at issue. Defendants have asserted that such documents are privileged pursuant to their constitutional right to privacy, and that the documents are therefore not discoverable. According to Plaintiff, the documents are “directly relevant to Defendants’ efforts to obtain financing to pay their outstanding balance to NOLAN. Indeed, it was the promise of financing that compelled NOLAN to continue working on the project instead of stopping work when the homeowners stopped paying NOLAN’s periodic invoices.” [Separate Stmt., p.3] Plaintiff, however, has not adequately explained how the fact that it relied on Defendant’s representations that they would obtain financing is relevant to the claims at issue in this case. Further, Plaintiff has not addressed or explained why information regarding its reliance on Defendant’s representations cannot be sought through less intrusive means, such as the parties’ testimony. Ultimately, Plaintiff has not demonstrated that its need for the requested information outweighs Defendants’ interest in the privacy of their financial records. As a result, the motion is denied to the extent it seeks loan documents or applications with respect to the subject property.

As more fully explained below, however, the motion is granted to the extent it seeks documents relating to any appraisals of the subject property between April 2016 and April 2018.

Plaintiff’s motion to compel further testimony and production of documents in notices of deposition is also GRANTED, in part, and DENIED, in part.

With respect to the request for documents relating to property appraisals, Defendants assert such information is privileged pursuant to their right to privacy. Notably, however, Defendants have not provided any authority indicating that information relating to real property, including its value, constitutes sensitive or private information.

Plaintiff contends that the information sought is relevant to Defendants’ claims that the subject property has diminished in value as a result of Plaintiff’s actions. In light of the relevance of any appraisals to the claims at issue, as well as Defendants failure to provide any authority indicating that property value constitutes sensitive financial information, the court finds that Plaintiff’s right to obtain this information outweighs any right of privacy Defendants may have in such information. Defendants’ assertion that they have already inadvertently produced an appraisal does not impact the analysis. If Defendants believe they have produced all records relating to any appraisals of the subject property, they may respond accordingly.

Defendants also claim that the motion is time-barred by the 60-day limit set forth in CCP § 2025.480. As pointed out by Plaintiff, however, Mr. Balenko’s deposition was not completed until April 9, after the present motion was filed. Accordingly, the motion is not time-barred under CCP § 2025.480.

Defendants’ claim that Plaintiff’s motion is an improper motion for reconsideration also lacks merit. The motions were previously denied on the grounds that they had been set too close to trial. The trial in this matter, however, has since been continued, and the stipulated order continuing trial provided that “All other discovery deadlines and discovery matters that have not been completed as of the date of this stipulation may be raised by a motion if not resolved by mutual agreement and will be controlled by the new trial date.” The court has not previously issued rulings addressing the merits of Plaintiff’s motions.

For the foregoing reasons, Plaintiff’s motion to compel production of documents in its notices of deposition is granted to the extent it seeks documents relating to appraisals of the subject property between April 2016 and April 2018.

Finally, Plaintiff seeks to compel Mr. Balenko to appear for deposition for additional time “to answer questions NOLAN’s counsel was unable to ask regarding the documents wrongfully withheld from production.” Notably, however, Plaintiff has not identified the questions it was prevented from asking or the questions it would ask with respect to the appraisals Additionally, Plaintiff has not explained why, after Mr. Balenko’s deposition was continued to a second day, Plaintiff did not seek resolution of its motion to compel testimony relating to any appraisals prior to conducting the continued examination. For the foregoing reasons, Plaintiff’s motion to compel further deposition testimony from Mr. Balenko is DENIED.

The parties’ requests for sanctions are DENIED.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Plaintiff shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.