2012-00134561-CU-BC

Quest Real Estate Services Inc vs. Timberlake OA

Nature of Proceeding: Motion to Compel Responses to Written Discovery and to Deem

Filed By: Vinding, Michael E.

Plaintiffs’ motion to compel defendant Bernhardt’s responses to form interrogatories,
special interrogatories and requests for production of documents and also to deem
requests for admissions admitted is GRANTED in part and DENIED in part, as follows.

Both moving and opposing counsel are admonished for failing to comply with CRC
Rule 3.1110(b)(3) and (4).

The Court notes that plaintiffs paid only one $60 filing fee in connection with this
motion, although it seeks at least four different orders (i.e., responses to form
interrogatories, responses to special interrogatories, responses to requests for
production of documents and an order deeming admitted). A separate filing fee is
required for each. (Gov. Code §70617(f).) No later than 10/7/2013, plaintiffs shall
make payment of an additional $180 to the Court Clerk.

At the outset, the Court must remind both counsel that given the number of motions
such as this which must be addressed on a daily basis, there are simply not enough
judicial resources available to resolve each and every discovery dispute that could
have and should have been resolved informally. This serves to highlight the critical
need for counsel’s legitimate, reasonable and good faith meet-and-confer efforts
before filing any discovery motion. Although it dealt with a motion to compel answers
to deposition questions, the decision of Townsend v. Superior Court (1998) 61
Cal.App.4th 1431 is instructive in that it clarifies that the meet-and-confer process is
not intended to be some perfunctory formality but rather it “requires…a serious effort at
negotiation and informal resolution.” (Id., at 1438.)

Additionally, in light of the foregoing, counsel for the parties are strongly encouraged to
stipulate pursuant to Code of Civil Procedure §638 to the appointment of a discovery
referee who can much more quickly and efficiently respond to the parties’ needs. If the
parties can agree to someone to act as referee, they may submit a stipulation and
proposed order to the Court.

This action arises out of a property management agreement which plaintiffs allege was
breached by defendants, including an owners’ association and several members of its
board of directors. Plaintiffs served a variety of written discovery on defendant
Bernhardt and although they apparently concede unverified responses to the discovery
were timely served, plaintiffs seek now to compel defendant to provide verified
responses without objections to all of the discovery requests on the ground that
unverified responses are tantamount to no response at all. Plaintiffs also suggest that
the unverified responses to the discovery included meritless objections and bad faith
responses. Plaintiffs request monetary sanctions against defendant.

In opposition, defendant Bernhardt primarily insists that his unverified discovery
responses were timely served and that verifications were thereafter timely served
pursuant to the parties’ agreement. Consequently, defendant maintains that an order
deeming all objections waived would be inappropriate. The opposition also asserts
that the present motion should be denied because it is moot and it lacks a separate
statement pursuant to CRC Rule 3.1345. Finally, defendant requests monetary
sanctions against plaintiffs and their counsel.

At the outset, the Court notes that while defendant may have served on or about
9/17/2013 verifications for his prior responses to plaintiffs’ discovery, this does not
necessarily render this motion moot. Code of Civil Procedure §1005.5 specifically
provides that a motion is deemed made at the time it is filed and served. Here,
plaintiffs filed and served the present motion on 8/30/2013, which is more than two
weeks before defendant served his verifications. Since defendant served the
verifications after this motion was filed and served, the motion is not moot within the
meaning of §1005.5.

Similarly, defendant’s reliance on CRC Rule 3.1345’s requirement for a separate
statement is misplaced since the present motion merely seeks responses to discovery,
rather than further responses which require a separate statement pursuant to CRC
Rule 3.1345. (If on the other hand the present motion could be and were construed as
one seeking further responses, defendant would be correct and his objection to this
motion would be sustained.)

Given the circumstances here, the Court declines to find that defendant has waived all
objections to plaintiffs’ discovery requests by virtue of failing to serve verifications
simultaneously with his responses in August 2013. While the Court is unable to
discern an actual agreement between the parties which explicitly permitted defendant
to serve verifications to the discovery responses as late as mid-September as
suggested by the opposition, an order deeming all objections waived would be unduly
harsh. This ruling is reinforced by the well established rule that responses consisting
solely of objections need not be verified and as such, the lack of verifications with the
responses should not automatically result in the waiver of otherwise timely asserted
objections. Moreover, the Court notes that it is not uncommon for unverified
responses to be served on or near the statutory or stipulated deadline for responding
with the verifications following shortly thereafter.

In light of the foregoing, plaintiffs’ motion to compel defendant Bernhardt’s responses
to form interrogatories, special interrogatories and requests for production of
documents must be granted since defendant effectively admitted he did not serve
verifications until after the present motion was filed and served. However, technically
speaking, it appears defendant has already complied with this ruling by virtue of
previously providing the missing verifications and thus, he need not re-serve now the
responses in order to comply with this ruling.

To the extent plaintiffs’ motion to compel here seeks to compel defendant Bernhardt’s
production of documents in response to the requests for production, that motion is
denied since the moving papers fail to seek an order compelling “compliance” pursuant
to Code of Civil Procedure §2031.320(a).

Plaintiffs’ motion to deem admitted those matters specified in plaintiffs’ requests for
admissions to defendant Bernhardt is DENIED since it appears defendant has served
“before the hearing on the motion” proposed and verified responses that are in
substantial compliance with Code of Civil Procedure §2033.220. (Code Civ. Proc.
§2033.280(c).)

To the extent that plaintiffs contend that defendant’s responses to the form
interrogatories, special interrogatories, requests for production of documents and/or
requests for admissions are deficient, plaintiffs may file an appropriate motion to
compel further responses after completing the requisite good faith meet-and-confer
consistent with Townsend v. Superior Court cited above.

The Court declines under the circumstances presented here to grant either side’s
request for monetary sanctions.

This minute order is effective immediately. No formal order or other notice is required.
(Code Civ. Proc. §1019.5; CRC Rule 3.1312.)

Item 8 2012-00134561-CU-BC

Quest Real Estate Services Inc vs. Timberlake OA

Nature of Proceeding: Motion to Compel Compliance with Deposition Subpoena (Ryan Chan)

Filed By: Vinding, Michael E. This matter is dropped from calendar.

Item 9 2012-00134561-CU-BC

Quest Real Estate Services Inc vs. Timberlake OA

Nature of Proceeding: Motion to Compel Production at Deposition (Bernhardt and Lipscomb)

Filed By: Vinding, Michael E.

Plaintiffs’ motion to compel defendants Bernhardt and Lipscomb’s production of
documents in response to plaintiffs’ notice of deposition is GRANTED, as follows.

Both moving and opposing counsel are admonished for failing to comply with CRC
Rule 3.1110(b)(3) and (4).

The Court notes that plaintiffs paid only one $60 filing fee in connection with this
motion, although it seeks at least two different orders (i.e., defendant Bernhardt’s
production of documents and defendant Lipscomb’s production of documents). A
separate filing fee is required for each. (Gov. Code §70617(f).) No later than
10/7/2013, plaintiffs shall make payment of an additional $60 to the Court Clerk.

At the outset, the Court must remind both counsel that given the number of motions
such as this which must be addressed on a daily basis, there are simply not enough
judicial resources available to resolve each and every discovery dispute that could
have and should have been resolved informally. This serves to highlight the critical
need for counsel’s legitimate, reasonable and good faith meet-and-confer efforts
before filing any discovery motion. Although it dealt with a motion to compel answers
to deposition questions, the decision of Townsend v. Superior Court (1998) 61
Cal.App.4th 1431 is instructive in that it clarifies that the meet-and-confer process is
not intended to be some perfunctory formality but rather it “requires…a serious effort at
negotiation and informal resolution.” (Id., at 1438.)

Additionally, in light of the foregoing, counsel for the parties are strongly encouraged to
stipulate pursuant to Code of Civil Procedure §638 to the appointment of a discovery
referee who can much more quickly and efficiently respond to the parties’ needs. If the
parties can agree to someone to act as referee, they may submit a stipulation and
proposed order to the Court.

This action arises out of a property management agreement which plaintiffs allege was
breached by defendants, including an owners’ association and several members of its
board of directors. Plaintiffs served on 4/29/2013 a notice for the deposition of
defendant Bernhardt with requests for production of documents as well as a notice for
the deposition of defendant Lipscomb with requests for production of documents. Both
of these depositions were originally noticed for 5/15/2013. Despite granting several
extensions for defendants to produce the responsive documents, plaintiffs contend that
both defendants have still failed to produce the documents requested and therefore,
plaintiffs now seek to compel both defendants’ production of all responsive documents
especially since neither defendant timely asserted any objections to plaintiffs’ requests
and since neither sought a protective order relating to these document requests.
Plaintiffs also seek monetary sanctions against both defendants. The opposition primarily argues a rogue (former) employee of defendants “sabotaged”
their files and has caused significant delays in defendants’ ability to produce the
documents responsive to plaintiffs’ deposition notices. Secondarily, the opposition
asserts that plaintiffs should have continued meet-and-confer efforts instead of filing
this motion and that plaintiffs previously agreed to permit defendants’ production of
documents as late as mid-September. The opposition also requests that monetary
sanctions not be imposed against defendants because they have acted in good faith in
trying to produce the documents and their failure to produce has been substantially
justified in that the delay in production is attributable to the sabotaged filed. Finally,
defendants request monetary sanctions be imposed against plaintiffs.

At the outset, the Court notes the opposition fails to dispute plaintiffs’ contention that
neither defendant Bernhardt nor defendant Lipscomb timely objected to any of the
document requests or otherwise sought a protective order relating to these requests.
Accordingly, the Court can find no valid substantive objection which might otherwise
obviate the need for defendants to produce the requested documents.

While the Court agrees with defendants’ suggestion that this matter should have been
resolved through the meet-and-confer process without the need for a formal motion,
there is no dispute that the documents should have been produced at depositions set
for 5/15/2013. As it is now October 2013 and no responsive documents have yet been
produced, it was not premature or otherwise improper for plaintiffs to file the present
motion. No party should be required to wait indefinitely to obtain discovery they are
otherwise entitled to and even the opposition papers fail to provide any estimate as to
when defendants can be expected to produce the documents requested back in April
2013. Coupled with the fact the opposition fails to raise any valid, substantive reason
why defendants should not be compelled to produce now the documents sought in the
deposition notices, the Court hereby grants plaintiffs’ motion to compel.

The Court acknowledges that the opposition contends a rogue employee has made
the production of documents more difficult by “sabotaging” the files but finds the
Patrick Declaration is conclusory at best in its description of this “sabotage.” More
problematic is the fact this declaration provides the Court with no guidance as to when
defendants may be expected to produce the overdue documents. Nevertheless, given
that defendants have now had roughly five (5) months to produce the responsive
documents, it is reasonable to expect both defendants should be able to produce them
no later 10/31/2013 and they are hereby ordered to do so.

Plaintiffs are awarded monetary sanctions against defendants Bernhardt and
Lipscomb in the amount of $1,110, representing three (3) hours of attorney time plus
the $60 filing fee. Plaintiffs’ request for seven (7) hours to prepare the present motion
and another six (6) hours to review the opposition and draft the reply is unreasonably
excessive. Sanctions to be paid no later than 10/31/2013 and if not paid by that date,
plaintiffs may pursuant to CRC Rule 3.1312 prepare for the Court’s signature a formal
order granting the sanctions, which may then be enforced as a separate judgment
against defendants Bernhardt and Lipscomb. (Newland v. Superior Court (1995) 40
Cal.App.4th 608, 615.)

The Court denies defendants’ request for monetary sanctions against plaintiffs.

This minute order is effective immediately. No formal order or other notice is required.
(Code Civ. Proc. §1019.5; CRC Rule 3.1312.)