Case Name: Randall Rauwendaal, et al. v. Steven Bronstein, et al.
Case No.: 18CV322561

I. Factual and Procedural Background

This action filed by plaintiffs Randall Rauwendaal and Leslie Rauwendaal (collectively “Plaintiffs”) arises out of their purchase of property located at 19148 Old Vineyard Road, Los Gatos, CA (the “Property”). The defendants include various individuals and home inspection providers involved in the sale of the Property, including Antique Termite, Inc. (“Antique”).

As alleged in the Complaint, the defendants made misrepresentations or omissions in disclosures and inspection reports provided to Plaintiffs before they purchased the Property. (Complaint, ¶¶ 12-19.) These reports included a misleading termite report supplied by Antique in January 2016. (Id. at ¶¶ 12-13.) Based on these misrepresentations, Plaintiffs bought a house that had many issues, including toxic mold and faulty construction. (Id. at ¶¶ 13-14, 16-19, 26.) As a result, they incurred significant damages and ended up moving out of the Property shortly afterwards as they found it uninhabitable. (Id. at ¶¶ 32, 34-40.)

The Complaint alleges causes of action for intentional misrepresentation and nondisclosure of material fact, negligent misrepresentation, negligence, and breach of fiduciary duty.

The present matter involves a discovery dispute.

On June 15, 2018, Antique served Plaintiffs with Form Interrogatories, Set One; Special Interrogatories, Set One (“SI”), and Request for Admissions, Set One (“RFA”). (Sathienmars Decl., ¶ 3.) Plaintiffs’ counsel received several extensions of time to respond and timely served responses on August 29. (Ibid.) Dissatisfied with the responses, Antique initiated meet and confer efforts but was unable to resolve the dispute. (Ibid.)

Antique then filed the present motion to compel further responses to the SI and RFA, which Plaintiffs oppose. Both parties seek an award of sanctions.

II. Preliminary Issues

A. Meet and Confer

At the outset, Plaintiffs contend Antique failed to adequately meet and confer before filing its motion because it did not initiate discussions until shortly before the deadline for filing the motion, “refused to acknowledge the validity of plaintiffs’ objections,” failed to provide legal support for its proposition Plaintiffs’ objections lacked merit, “rejected a reasonable compromise that [it] restate the requests and interrogatories in a code-compliant manner,” and demanded Plaintiffs waive their objections or be forced to oppose this motion. (Opp. at p. 4:7-16.) By raising this issue, Plaintiffs suggest the motion should be denied on this basis.

A propounding party must meet and confer with the responding party before filing a motion to compel further responses to written discovery, and submit with its motion a meet and confer declaration “showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc., §§ 2016.040, 2030.300, subd. (b), 2033.290, subd. (b).) This meet and confer requirement is designed “to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order” which, 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.” (Townsend v. Super. Ct. (1998) 61 Cal.App.4th 1431, 1435.) “A reasonable and good-faith attempt at informal resolution…requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.” (Id. at p. 1439.)

Here, the record indicates Antique did not adequately meet and confer before filing its motion. On October 11, 2018, Antique’s counsel sent a meet and confer letter, taking issue with the fact Plaintiffs responded to the subject SI and RFA with objections only. (Jensen Decl., Exh. Exh. 4.) He did not address the substance of Plaintiffs’ objections and merely asserted Antique was entitled to objection-free responses. (See Ibid.) In response, on October 17, 2018, Plaintiffs’ counsel responded, standing on his objections and explaining why he believed the discovery requests as framed were objectionable. (Id., Exh. 7.) The following day, Antique’s counsel proposed a supplemental response deadline of November 9, 2018 in exchange for an extension of the motion deadline, and stated his intention to file a motion if no agreement was reached. (Id., Exh. 8.) He further asserted he “t[ook] significant issue with [Plaintiffs’] meet and confer correspondence…but fe[lt] that brevity in [the parties’] correspondence [wa]s more productive.” (Ibid.) He did not provide any substantive response addressing Plaintiffs’ views and objections. (See Ibid.) On October 19, 2018, Plaintiffs’ counsel responded, stating his continued belief Plaintiffs’ objections were meritorious and requesting that Antique substantiate its position with legal authority. (Id., Exh. 9.) A week and a half later, Antique filed the present motion.

This exchange does not reflect a genuine discussion of the issues forming the basis of the dispute. Antique’s first meet and confer letter did not explain why it believed Plaintiffs’ objections lacked merit. Moreover, after Plaintiffs provided a detailed response explaining why they believed the discovery requests were objectionable, Antique did not substantively respond. Though it stated it took significant issue with Plaintiffs’ position, at no point did it elaborate on its position before filing the present motion. As such, Antique did not adequately meet and confer. Notwithstanding this fact, the Court will exercise its discretion and reach the merits of the motion.

B. Adequacy of Separate Statement

Plaintiffs assert Antique’s separate statement is deficient because it “fails to set forth the text of all the definitions, instructions, and other matters required to understand each discovery request and the responses to it,” in violation of California Rules of Court, rule 3.1345. (Opp. at p. 3:18-20.) For example, Plaintiffs point out that the SI and RFA use the words “YOU” or “INCIDENT,” which are defined in the preface to the requests, but these definitions are not included in the separate statement. Although Plaintiffs do not address the consequence of filing a deficient separate statement, they presumably intended to contend the motion should be denied on this basis. Plaintiffs’ argument is not well-taken.

Rule 3.1345 only requires a separate statement to include the text of all definitions and instructions in the subject discovery requests “[i]f necessary…to understand each discovery request and the responses to it.” (Cal. Rules of Court, rule 3.1345(c)(4).) As will be discussed in more detail below, the terms “YOU” and “INCIDENT” are understandable and straightforward in the context of these discovery requests; thus, the definitions of these terms are unnecessary as the discovery requests and responses can be understood without them.

As such, Antique’s separate statement is not deficient.

III. Merits of the Motion

Antique moves to compel further responses to SI Nos. 1-9, and RFA Nos. 6-7 and 9-11. Its motion is brought pursuant to Code of Civil Procedure sections 2030.300 (“Section 2030.300”) and 2033.290 (“Section 2033.290”), which authorize a party to seek an order compelling further responses to special interrogatories or requests for admission, respectively, if that party deems an answer is evasive or incomplete or an objection is without merit or too general. (Code Civ. Proc., §§ 2030.300, subd. (a); 2033.290, subd. (a).) The Court will address the SI and RFA together as the issues raised relative to the requests are the same.

SI Nos. 1-6 seek information regarding all facts and documents supporting Plaintiffs’ contention Antique damaged them through negligent misrepresentations and negligence arising from the incident, and the identities of all related witnesses; SI No. 7 requests the dollar amount Plaintiffs expect to recover from Antique for damages arising out of the incident; and SI Nos. 8-9 request information regarding all documents supporting the damages amount and the identities of all persons who would corroborate that amount. RFA Nos. 6-7 and 9-11 request various admissions, including that the findings in Antique’s termite inspection report prompted various damage-related repairs on the Property.

Plaintiffs responded to each of the subject SI and RFA with objections only. Antique contends these objections lack merit and further responses are required.

As the objecting party, Plaintiffs bear the burden of substantiating their objections to the discovery requests. (See Kirkland v. Sup. Ct. (2002) 95 Cal.App.4th 92, 98.)

Plaintiffs objected on various grounds, including that the requests are not full and complete in and of themselves as required under Code of Civil Procedure section 2033.060 (“Section 2033.060”), subdivision (d); the definitions are not included in the text of the discovery requests; the requests are compound, conjunctive, or disjunctive; the requests are vague; the requests seek information from their experts or consultants; and/or the requests seek confidential attorney work product.

In opposition, Plaintiffs only attempt to substantiate their objections on the grounds the requests are not full and complete in and of themselves and do not include definitions in the discovery requests ; are compound, conjunctive, or disjunctive; and are vague. The remaining undefended objections are overruled. (See Kirkland, supra, 95 Cal.App.4th at 98.)

A. Self-Containment Objection

Plaintiffs argue each of the subject SI and RFA are not full and complete in and of themselves because they incorporate terms that are defined in the preface of the discovery requests or require reference to the Complaint to ascertain their meaning. For example, Plaintiffs assert the requests all use the term “INCIDENT” but this term is not defined in the text of the requests, and some requests reference Antique’s “inspection report” but “one has to refer to the Complaint” to ascertain what report is being discussed and what property it relates to. (Opp. at p. 13:8-11.) They conclude the requests violate the requirement in Sections 2030.060 and 2033.060 that each interrogatory or request for admission “be full and complete in and of itself,” and the statutes’ general prohibition of prefaces or instructions for requests. (See Code Civ. Proc., §§ 2030.060, subd. (d), 2033.060, subd. (d).) Plaintiffs also generally assert it is impermissible to provide definitions in a preface to discovery requests. Plaintiffs’ contentions are not well-taken.

At the outset, Plaintiffs are incorrect that definitions may not be included in a preface to discovery requests. Code of Civil Procedure sections 2030.060 and 2033.060 specifically contemplate that interrogatories or requests for admission may contain a definitions section. (Code Civ. Proc., § 2030.060, subd. (e) [“Any term specifically defined in a set of interrogatories shall be typed with all letters capitalized whenever the term appears.”]; Code Civ. Proc., § 2033.060, subd. (e) [same but with respect to requests for admission].)

Next, though it is true that Sections 2030.060 and 2033.060 require each interrogatory and request for admission to be full and complete in and of itself, it is well-established that the purpose of that rule is to prevent a party from undermining the rules allowing a party to propound only thirty-five interrogatories or requests for admission. (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1290-1291 .) As such, reference to other materials or documents or incorporation by reference of such materials is prohibited only where the effect is to undermine the rule of 35. (Clement, supra, 177 Cal.App.4th at 1290.) For example, in Catanese v. Superior Court, the court held a plaintiff’s interrogatories violated the self-containment rule where they requested that the defendant identify each answer given during deposition which the defendant contended was untrue and provide facts in support of that contention. (Catanese v. Superior Court (1996) 46 Cal.App.4th 1159, 1164.) The court reasoned such interrogatories effectively required the incorporation of separate questions and answers from eight volumes of deposition transcripts and, if the interrogatories had been propounded in a self-contained fashion, the rule of 35 clearly would have been violated. (Id. at 1163.)

Here, in contrast, there is no indication Antique’s use of the term “INCIDENT” or its reference to Antique’s “inspection report” has the effect of circumventing the rule of 35. “INCIDENT” is defined in the discovery requests as “those acts, omissions, and occurrences alleged against [Antique]” (see Opp. at p. 5:18-21) and the Complaint only appears to allege one incident Antique was involved in, namely its provision of a purportedly misleading termite report. (See Complaint, ¶¶ 12-13.) Similarly, the Complaint only references one inspection report provided by Antique (i.e. the report provided to Plaintiffs in January 2016). (Ibid.) As such, when, for example, Antique requests that Plaintiffs “[a]dmit that the findings of ANTIQUE TERMITE’s inspection report prompted necessary termite damage-related repairs to the residence which is the subject of the INCIDENT” in RFA No. 6, there is ostensibly only one question being asked. As such, Plaintiffs do not demonstrate Antique’s use of such terms results in any violation of the self-containment rule under Sections 2030.060 and 2033.060.

Accordingly, the objections on the ground the subject SI and RFA are not self-contained are overruled.

B. Compound, Conjunctive, or Disjunctive Objection

Plaintiffs contend the subject SI and RFA are compound, conjunctive or disjunctive because Antique’s definitions of the terms “INCIDENT” and “YOU” or “YOUR” result in requests that contain subparts or compound questions. As an example, they point to the fact “YOU” and “YOUR” are defined as Antique and “its agents, assigns, associates, delegates, representatives, and any natural person or entity acting on his behalf.” (Opp. at p. 14:3-6.) They conclude each request using these terms “call[s] for multiple answers – a response as to the individual responding party, plus another response as to his or her agents, another response as to any assigns he or she may have, another response as to any associates he or she may have, etc.” (Id. at 14:6-9.) This argument lacks merit.

Sections 2030.060, subdivision (f) and 2033.290, subdivision (f) provide that no interrogatory or request for admission shall contain subparts, or a compound, conjunctive, or disjunctive question. As with the rule regarding self-containment, courts have held the purpose of the language preventing compound interrogatories is also to avoid a party undermining the rule of 35. (Clement, supra, 177 Cal.App.4th at 1290-1291.) As such, no violation of these provisions occur where only one subject is covered by the question.

Here, despite the fact “YOU” and “YOUR” are defined as including Antique’s agents, assigns, and successors, these definitions do not result in any circumvention of the rule of 35, and Plaintiffs’ interpretation of these requests as requiring multiple answers on behalf of each of their agents, assigns, associates, etc. is not reasonable. Antique’s definitions of “YOU” and “YOUR” are common and not unusual. Moreover, they do not result in requests that inquire about more than one subject. Similarly, with respect to Antique’s use of the word “INCIDENT,” as previously discussed, it does not result in multiple subparts to a request because there is ostensibly only one incident at issue in the Complaint.

As such, the compound, conjunctive, or disjunctive objections are overruled.

C. Vagueness Objection

Finally, Plaintiffs assert Antique’s references to an unspecified “inspection report” and residence in its SI and RFA render the requests vague. This argument is baseless.

A vagueness and ambiguity objection should only be sustained when the nature of the information sought is not apparent. (See Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783; see also Standon v. Sup. Ct. (1990) 225 Cal.App.3d 898, 903 [stating that an objection on this ground is frequently considered a nuisance objection].) Once again, there is only one inspection report Antique is pled to have prepared and, similarly, one residence at issue in the Complaint. Thus, the meaning of these terms is readily apparent and it is frivolous for Plaintiffs to contend otherwise.

Accordingly, Plaintiffs’ objections on the ground of vagueness are overruled.

D. Conclusion

For the reasons stated, Antique’s motion to compel further responses to SI Nos. 1-9 and RFA Nos. 6-7 and 9-11 is GRANTED. Plaintiffs shall serve verified code-compliant further responses, without objections, within 20 calendar days of service of this signed Order.

IV. Requests for Sanctions

Antique seeks an award of monetary sanctions against Plaintiffs and their counsel while Plaintiffs seek an award of monetary sanctions against Antique and its counsel.

Antique’s request is made pursuant to Code of Civil Procedure sections 2023.010 and 2023.030. Section 2023.010 merely lists various misuses of the discovery process and does not authorize sanctions at all. As for Section 2023.030, it only permits sanctions “[t]o the extent authorized by the chapter governing any particular discovery method.” As such, it does not independently authorize an award of sanctions. Thus, Antique has not cited an enabling statute to support its request for sanctions.

As for Plaintiffs, their request is made pursuant to Sections 2030.300, subdivision (d) and 2033.290, subdivision (d). These statutes authorize an award of sanctions where a party successfully makes or opposes a motion to compel further responses to interrogatories or requests for admission, unless the party subject to sanctions acted with substantial justification or other circumstances exist that would make imposing sanctions unjust. But here, Plaintiffs did not successfully oppose Antique’s motion. Therefore, Plaintiffs are not entitled to sanctions.

Accordingly, both requests for sanctions are DENIED.

The Court will prepare the Order.