Tentative Ruling

Judge Donna Geck
Department 4 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION
Taryn Intravartolo vs John W Seedorf et al
Case No: 18CV03263
Hearing Date: Fri Nov 15, 2019 9:30

Nature of Proceedings: (5) Motions to Compel; Motion for Sanctions; Motion to Strike

TENTATIVE RULINGS:

(a) The demurrer is sustained, without leave to amend, as to defendant Mariella Stockmal, and with respect to the separate “cause of action” for attorneys’ fees. The demurrer is overruled in all other respects.

(b) The motion to strike is granted as to the claim for punitive damages, with leave to amend as to this issue only, should plaintiff choose to do so, on or before November 15, 2019. The motion to strike is denied in all other respects.

(c) In large part, the Court has deemed its August 9 order regarding the identical discovery devices and motions to be applicable to defendant Sierra Property Group’s four motions to compel further responses to form interrogatories, special interrogatories, demands for production, and requests for admission. The motions to compel further responses to form interrogatories and special interrogatories is further granted in the limited manner articulated below, and plaintiff shall serve her further verified responses on or before December 16, 2019.

(d) Defendants’ motion for issue sanctions, evidence sanctions, deemed admissions, and monetary sanctions is denied; the alternative motion to compel further responses is granted in part, as specifically articulated below, and plaintiff shall serve her further verified responses on or before December 16, 2019.

(e) Plaintiff’s motion to compel defendants’ responses to discovery is granted, and such responses are ordered to be served no later than November 25, 2019.

(f) While the imposition of substantial monetary sanctions against both counsel would be warranted in the discovery-related motions currently before the Court, the Court has opted to deny all monetary sanction requests, for the simple reason that they would simply offset.

Background: Plaintiff’s original complaint was filed on June 28, 2018, and was based on allegations that she sustained personal injury and property damage from mold contamination in her rental property. Her complaint alleged causes of action for negligence, breach of the warranty of habitability, and nuisance. The complaint sought punitive damages within the nuisance cause of action, and attorneys’ fees within the breach of the warranty of habitability claim.

Defendants’ demurrer to the complaint was sustained in part and overruled in part. Plaintiff thereafter filed her First Amended Complaint (FAC), in which she alleges cause of action for negligence, breach of the implied warranty of habitability, nuisance, and attorneys’ fees.

Currently before the Court are defendants demurrer and motion to strike with respect to plaintiff’s FAC; defendant Sierra Property Group’s four motions to compel further responses to discovery (form interrogatories, special interrogatories, demand for production, and requests for admissions); defendants’ motion for issue, evidence, and monetary sanctions, for deemed admissions, and alternatively to compel further responses; and plaintiff’s motion to compel defendants’ responses to discovery.

ANALYSIS:

DEMURRER.

The court’s task in ruling on a demurrer is to determine whether the complaint states a cause of action. (People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300.) A demurrer admits the truth of all material facts properly pleaded (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967), no matter how unlikely or improbable they may be (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604), or how unlikely it will be that plaintiff will be able to prove the claim (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214). The court also assumes the truth of all reasonable inferences that may be drawn from the properly pleaded facts. (Reynolds v. Bement (2005) 36 Cal.4th 1075, 1083.) The assumption of truth does not apply, however, to contentions, deductions, or conclusions of law or fact. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters, and therefore lies only where the defects appear on the face of the pleading or are judicially noticed. (Id.)

As was true with the original Complaint, the FAC is far from a model pleading, having perpetuated the improper practice of alleging evidentiary-level facts, rather than the ultimate facts. The demurrer, unfortunately, is similarly difficult to follow. The Court will address the grounds raised by the demurrer, to the extent it has been able to ascertain them.

A. Demurrer to complaint as a whole.

Defendants raise several bases for demurrer to the complaint as a whole, which will be separately addressed.

Existence of allegations as to why parties named as defendants.

First, they note that this Court had sustained the demurrer to the original complaint because there were no allegations to explain why the various defendants were named as defendants, or what role they had played in the events which gave rise to the complaint. Defendants summarily assert that “The same issues are in the FAC.” The Court disagrees, and will overrule the demurrer made on that basis.

In the original complaint, plaintiff had identified the defendants only as individuals or entities, and provided no information to how they were related to the events, with the more specific allegations only stating referring to actions by “defendants.” In the FAC, she makes clear that the property at issue is owned by the Seedorf Family Trust, and that defendants John W. Seedorf and Enid K. Seedorf are Trustees of that trust. The FAC then alleges that defendant Sierra Property Management was the property manager of the property, which signed the lease, and failed to remediate the mold issue and restore the premises to their original condition, allegedly in order to minimize expenditures and maximize its income from its actions as property manager. It expressly identifies defendant Kaller as an employee of Sierra Property Management, in charge of managing the property at issue, and who provided instructions to plaintiff on how to keep excess moisture from gathering in the apartment. The FAC now identifies the parties and their relationship to the issues raised by the complaint. As a result, the defect in the original complaint which caused the Court to sustained the demurrer interposed to it has now been corrected.

2. Failure to allege cause of action against defendant Stockmal.

Second, a demurrer is interposed to the entire complaint on behalf of defendant Mariella Stockmal, on the ground that none of the causes of action in the FAC are alleged against her. Certainly, the FAC attempts to identify her relationship to the action, in alleging that she had some sort of relationship with defendant John W. Seedorf, that she had an apartment in which Seedorf spent a considerable amount of time, that she had an economic interest in the property because she solicited the public to rent at the property, and that she also had a pipe break with resulting damage that was not repaired. There are no allegations made “on information and belief,” as is permissible in California state courts.

Regardless of the undetermined relationship of defendant Stockmal to the acts and omissions alleged in the complaint to give rise to liability, it is clear from the FAC that none of the causes of action are alleged against her. Indeed, each cause of action expressly notes, directly under the title of the cause of action, the defendants against which it is being asserted. Plaintiff does not purport to allege any of the causes of action against defendant Stockmal. Consequently, the complaint truly fails to state a cause of action against her, requiring that the demurrer made on that basis be sustained. Because plaintiff has had multiple opportunities to state a claim against defendant Stockmal but has failed to do so, the Court will sustain her demurrer without leave to amend. Should discovery uncover facts supporting the maintenance of a claim against her, plaintiff may move for leave to amend to add her at that time.

3. Allegation of agency/employment relationship.

The demurrer appears to once again raise the issue of the adequacy of the agency/employment allegations in the complaint, by affirmatively contending that the co-defendants are not in an employer-employee relationship, and by citing Asplund v. Selected Investments (2000) 86 Cal.App.4th 26, 45-49, for the proposition that to hold a trust or business entity liable in tort plaintiff must allege the individual tortfeasor was actually employed by defendant at the time the wrongful act occurred, and that the individual was acting with the scope of their employment at the time the wrongful act was performed. However, Asplund is not a pleading case, and in fact involved review of a trial court’s entry of summary judgment, turning upon the evidence that was before the court regarding whether an individual was acting within the scope of his employment at the time he committed the wrongful act, and not the allegations of the underlying complaint.

The FAC makes clear who the owners of the property were, who the management company in charge of the property was, and who the management company employee in charge of the unit was. It further generally alleges that at all times, in committing the acts and omissions described, defendants were acting as the agent, servant and employee of each other in the course and scope of his, her, or its agency and employment and with the knowledge, consent and ratification of each other. [FAC @ ¶ 5.] It further alleges that each of the defendants were the agents, servants and alter egos of each other. [FAC @ ¶ 6; somewhat intermixing separate concepts of agency and alter ego.] Finally, it alleges that each defendant was the agent, officer, director, managing agent, or supervising employee of the other defendants, and in performing the acts alleged were acting within the course and scope of that agency and employment, and that each defendant authorized, aided, abetted, incited, compelled, ratified, and coerced the unlawful acts alleged. [¶ 7.]

These allegations are sufficient to allege the agency and employment relationships between the parties, requiring that the demurrer interposed on this basis be overruled.

B. Negligence/Breach of Habitability/Nuisance.

Defendants have demurred to each of the three substantive causes of action, i.e., the claims for negligence, breach of the implied warranty of habitability, and nuisance. After first reciting the elements of each claim, defendants then contend that there are no facts alleged to show any ownership, responsibility, employer-employee relationship, or any roles each defendant plays. The Court has already rejected this challenge, above, and to the extent the demurrer to the substantive causes of action is based upon this contention, it is overruled.

Defendants then contend that plaintiff failed to allege a cause of action, because although she alleged that defendants had knowledge of the water intrusion and resulting mold, her FAC incorporated the Mold Notification Addendum in which defendants stated they had no knowledge of any dampness or mold or mildew contamination. The notification also advised the residents to regularly allow air to circulate in order to prevent mildew or mold growth, and the promptly notify the owner/agent of any leaks, moisture, or mold. Defendants then conclude that plaintiff’s causes of action fail, because she had not specifically alleged how there was water intrusion, where it came from, how she knew there was water intrusion, where the intrusion was, what had to be repaired, what was not repaired, who had knowledge of water intrusion, who caused the water intrusion, whether the shower curtain was left outside of the tub, whether “defendant” [?] was not following Kaller’s advice since the apartment was by the beach, why “defendant” did not substantially comply with something unspecified, etc.

Plaintiff’s causes of action for negligence, breach of habitability, and nuisance, are not fatally defective on this basis. Those questions which defendants contend were unanswered, are matters of evidence, not pleading. The demurrers made on this basis are overruled.

C. Cause of action for attorneys’ fees.

The demurrer to the “cause of action” for attorneys’ fees is sustained, without leave to amend. There is no such cause of action in California, as a cause of action for attorneys’ fees. Rather, attorneys’ fees are available as damages within limited sorts of causes of action, and are recoverable as costs when allowed by contract, statute, or law. (Code Civ. Proc., § 1033.5.) To the extent attorneys’ fees are made available by contract, statute, or law, they may be sought by motion at the end of the case, regardless of whether a claim for attorneys’ fees is alleged in the complaint. In any event, because there is no such thing as a cause of action for attorneys’ fees under California law, the demurrer to the claim is sustained, without leave to amend.

MOTION TO STRIKE.

Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1).) a motion to strike lies either to strike out any irrelevant, false, or improper matter inserted in a pleading, or to strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436.) As is true with demurrers, the grounds for a motion to strike must appear on the face of the challenged pleading, or from any matter of which the court is required to take judicial notice. (Code Civ. Proc., § 437, subd. (a).) Additionally, in ruling on a motion to strike, the allegations in the complaint are considered in context and presumed to be true. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) Just as with demurrers, if the defect is correctible, the liberal policy toward amendments applies. (See Grieves v. Superior Court(1984) 157 Cal.App.3d 159, 167-168.)

If the motion seeks to strike an entire paragraph, cause of action, count, or defense of the pleading, the notice may refer to the part to be stricken by its number. Otherwise, the notice of motion must quote the portions to be stricken in full. Each item to be stricken must be numbered consecutively in the notice. (Cal. Rules of Court, rule 3.1322.) The motion may be denied in its entirety if the matter to be stricken is so broad that it includes matters properly pleaded. (Hill v. Wrather (1958) 158 Cal.App.2d 818, 823.) A court should not strike relevant matter essential to a cause of action or defense, and if the motion is so broad that it includes both relevant and irrelevant matter, the motion should be denied. (Triodyne, Inc. v. Superior Court (1966) 240 Cal.App.2d 526, 542.)

A. Punitive damages

Plaintiff seeks punitive damages only in her nuisance cause of action. She alleges that although she made complaints to defendants about water, moisture, and mold intruding into the premises, they would not repair or contain it or test for toxic substances. She alleges that defendants knew of the consequences of failing to abate the nuisance, but still did not repair or remediate the mold. She alleges further that defendants knew the premises were not habitable and that anyone residing thereon would become sick from the mold, but instead of providing habitable premises they intentionally exposed the occupants to the mold, concluding that this was despicable conduct carried on with a willful and conscious disregard of the rights or safety of others, entitling plaintiff to punitive damages. Defendants seek to strike ¶ 37 (containing the allegations about knowledge that the premises were not habitable and failing to abate the mold), and the prayer for punitive damages.

The courts have long been charged with an important gate-keeping function with respect to claims for punitive damages. Because of the inflammatory nature of a punitive damage allegation, the law requires that all pleadings in which punitive damages are sought allege specific facts which, if proven, would constitute malice, oppression, or fraud supporting a punitive damage request, as those terms are defined by Civil Codesection 3294(c). (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.)

Under Civil Code section 3294(c), “malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (Civ. Code, § 3294, subd. (c)(1).) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. (Civ. Code, § 3294, subd. (c)(2).) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. (Civ. Code, § 3294, subd. (c)(3).) The element of “despicable conduct” was added by the Legislature by amendment to the statutory definitions of malice and oppression in 1987, for the purpose of providing greater assurance that punitive damages will be awarded only to punish conduct that is truly blameworthy and reprehensible. (Mock v. Michigan Millers Mut. Ins. Co. (1992) 4 Cal.App.4th 306, 331.) It has been defined to mean conduct which is so vile, contemptible, miserable, wretched, or loathsome that it would be looked down on and despised by ordinary decent people. (Id.)

While many claims may be generally pleaded, and are subject to the rule of liberal construction of pleadings, a punitive damage claim is not such a claim. Rather, the specific facts which support the conclusion of the existence of malice, oppression, or fraud, as those terms are defined in Civil Code section 3294(c), must be alleged in the complaint. If they are not, the claim for punitive damages may be stricken by the court. (See Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63-64; Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6; and Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.)

Plaintiff’s conclusions that defendant’s conduct was despicable and carried on with a willful and conscious disregard of the rights or safety of others, parroting the language of Civil Code section 3294(c)(1), defining “malice,” for punitive damages purposes, are insufficient to support a claim for punitive damages unless the FAC alleges specific facts to support that conclusion. The other allegations within the nuisance cause of action included knowledge that there was mold, knowledge that mold was harmful, and a failure to abate the mold. The specific facts alleged prior to the cause of action include allegations that defendants came to the premises, offered to and did have plaintiff’s clothing dry-cleaned, installed a dehumidifier in a closet, had a cleaning service come it, and had a couch steam cleaned. There are allegations about failures to return phone calls, claims of unawareness that the mold issue was continuing, and a failure to ask questions about the mold issue when asked about a pick-up of items ruined by mold.

While the specific allegations relevant to a punitive damage allegation could constitute negligent conduct, the Court cannot find that it constitutes despicable conduct (conduct so vile, contemptible, miserable, wretched, or loathsome that it would be looked down on and despised by ordinary decent people) carried on with a willful and conscious disregard of plaintiff’s rights or safety, such that it rises to the level of “malice” as defined by Section 3294(c)(1), in order to support a punitive damage claim. As a result, the Court will grant the motion to strike the punitive damage allegations.

If plaintiff currently possesses additional facts which may be alleged in order to bring defendants’ conduct up to the level that would support a punitive damage allegation, she may be allowed leave to file an amended complaint adding such facts, on or before November 25, 2019. Alternatively, plaintiff may conduct discovery related to the conduct which might give rise to a punitive damage claim in this case (but not the financial information discovery discussed in Civil Code section 3295), and should she obtain sufficient information to support a punitive damage claim, may move at a later date for leave to amend to add such a claim.

B. Attorneys’ fees.

Attorneys’ fees are not recoverable unless a fee award is expressly authorized by either statute or the parties’ contract. (Ilshin Investment Company, Ltd. v. Buena Vista Home Entertainment, Inc. (2011) 195 Cal.App.4th 612, 627.) Consequently, pursuant to the authority provided by Code of Civil Procedure sections 431.10, subds. (b)(3) and (c), 435, 436, and 437, subd. (a), an allegation seeking attorneys’ fees may properly be the subject of a motion to strike, if the basis for the claim is not apparent from the face of the pleading.

Plaintiff’s FAC contains a variety of allegations related to attorneys’ fees, including an allegation that defendants’ violations required her to employ attorneys, that she claims attorneys’ fees as damages, that she will be required to incur additional expenses in the future, and a for attorney’s fees. It attaches the Lease between Sierra and the original tenants, and the documents by which plaintiff became a tenant subject to the lease. The lease contains an attorneys’ fees clause applicable to various proceedings, including legal actions “relating to the Premises, whether based in contract or in tort.” [FAC, Ex. A, @ ¶ 17.]

Defendants seek to strike all of the attorney fee references, contending that plaintiff was not a party to the lease, and there is no claim based on the contract. Defendants assert that the “joint Addendum” signed by plaintiff did not have an attorney fees clause provision. The Joint Agreement, however, clearly indicates that it is not a stand-alone agreement, and that defendants intended that persons signing the agreement would be required to sign the Lease. Whether or not that actually occurred is not clear from the allegations of and attachments to the FAC. Further, it is not clear—as a matter of law—that execution of the Joint Agreement would be insufficient to unilaterally bind the parties to the terms of the Lease. Certainly, it expressly states on its face that the new resident signing the Joint Agreement acknowledges that he or she has read and received a copy of the lease agreement, and agrees to be responsible for the performance of all the terms and conditions therein. Defendants have cited the Court absolutely no authority to support their apparent conclusion that plaintiff, as a tenant entering the premises after the execution of the original lease, and as a signatory to the Joint Agreement required by defendants which obligates her to the terms of the previously executed lease, is legally unable to avail herself of the attorneys’ fees clause contained on the face of the lease.

There are clearly considerable factual and legal issues which must be resolved before the issue of the application of the attorneys’ fees clause can be definitively resolved. The information currently before the Court, and present on the face of the FAC and its exhibits, does not support defendants’ contention that there is no entitlement to attorneys’ fees as a matter of law. Consequently, the motion to strike the attorney fee claims is denied

C. Pages 3-22.

In ruling on the demurrer to the original complaint, this Court noted that the complaint was improperly pleaded, principally in alleging substantial evidentiary-level facts rather than ultimate facts. Although most challenges to the complaint were overruled, the Court in granting leave to amend urged plaintiff’s counsel to consider amending the pleading as a whole to correct that defect. Counsel did not do so, and the FAC similarly contains page upon page of evidentiary level detail.

Defendants have moved to strike the entirety of pages 3-21, and lines 1-8 of page 22, based upon the Court’s prior finding that it was improper for plaintiff to have alleged evidentiary-level facts in her complaint.

Certainly, even though their presence in a complaint really causes no harm, it is proper for a trial court to strike unnecessary evidentiary-level detail from a complaint, and this Court has done it in the past. However, defendants’ motion is grossly over-inclusive. Rather than specifically tailoring it solely to the improper evidentiary detail, defendants’ motion seeks to strike 19 full pages of allegations, and 8 lines on a 20th page. Allegations on those pages include the alter ego allegations, and allegations that each defendant was acting as the agent or employer of the other defendants, acting within the scope of such agency or employment, which are proper allegations. Additionally, the pages include the necessary allegations identifying the owners of the property, the relationship of the management company to the property, and the identification of the specific manager employed by the management company with respect to the property. Further, there proper allegations interspersed among the improper allegations in the other pages sought by defendants to be stricken in their entirety.

As noted above, if a motion to strike is so broad that it includes both relevant and properly pleaded matter, on the one hand, and irrelevant matter on the other, the motion should be denied in its entirety. (See Triodyne, Inc. v. Superior Court (1966) 240 Cal.App.2d 526, 542; and Hill v. Wrather (1958) 158 Cal.App.2d 818, 823.)

It is not the court’s obligation to go line-by-line throughout the 19+ pages which defendants seek to strike, to determine which allegations are proper and which are not. In failing to undertake that task, defendants doomed their motion to strike to failure. Consequently, because defendants’ motion to strike is grossly over-inclusive, and seeks to strike relevant and properly pleaded matter along with irrelevant matter, the Court will deny the motion to strike this material in its entirety.

DEFENDANT SIERRA PROPERTY GROUP’S MOTIONS TO COMPEL

The six defendants, represented by the same attorney, apparently all served separate, identical, and lengthy discovery upon plaintiff. Plaintiff responded to the discovery of 5 of the defendants, contending she had not received any from defendant Sierra Property Group. The Court ruled on the motions to compel further responses, as presented by the other five defendants, in intricate detail, ordering further responses to some requests, and denying the motion as to others. It ordered Sierra Property Group to re-serve its discovery on plaintiff. Plaintiff then responded to that discovery—apparently identically to the manner in which she responded to the identical discovery served by the other five defendants. Defendant Sierra Property Group then filed four motions to compel further responses (to form interrogatories, special interrogatories, demand for production, and requests for admissions), which appeared to the Court after reviewing a sampling of the lengthy separate statement pages, to be identical in every respect to the motions to compel already ruled upon to the extent it was propounded by the other defendants—including in seeking further responses to discovery demands for which the Court had already found that no further responses were required.

As a result, the Court continued the hearing on the motions, and directed defense counsel to provide a declaration to the Court specifying the matter in the separate statements for each of the four motions, as brought by Sierra Property Group, which is substantively different from the separate statements submitted in support of the motions to compel previously heard and resolved by the Court. The Court advised that, to the extent there were no differences, the Court would simply deem its prior order to apply to these motions, and would deem plaintiff’s supplemental discovery responses served in response to the Court’s prior order, as being responsive to that order. Only if some matter before the Court in the current motions was not addressed in its response to the prior motions would the Court make any new order on these motions. The Court further advised defense counsel that, to the extent the current motions seek further responses to requests for which the Court had ruled that no further request was required, it considered the motions to be a serious abuse of the discovery process, and would evaluate his declaration in determining whether to impose sanctions against him, as sought by plaintiff’s counsel, for this conduct.

Defense counsel has now filed that declaration, first stating that he made offers to plaintiff to take all but the pleading motions off calendar, but was refused. He noted that he brought up the issue at the August 9 hearing, and also advised plaintiff’s counsel that every issue has already been ruled on. He understood the Court’s August 9 ruling to mean that the Sierra Property motions were not before the court, and had to be filed to pursue defendant’s discovery rights. He therefore sought to have the time to file the Sierra Motions continued, and to have plaintiff provide amended responses in response to the Court order along with the responses to the Sierra discovery. The Court was not inclined to address the issue at the hearing, and plaintiff’s counsel refused every request to extend the time to file the motions to beyond the date upon which plaintiff would provide her supplemental responses, and he therefore believed he had to file the motions. He made further attempts to resolve the issue following the Court’s tentative ruling posted on September 18, but was unsuccessful.

Counsel’s declaration then identifies the portions of the motions he believes are still at issue. With respect to Form Interrogatories, he asserts that plaintiff failed to respond to all subsections of Form Interrogatory 17.1 with respect to Request For Admissions Nos. 20, 21, 23, 25, and 26, and failed to respond at all to Form Interrogatory 17.1 with respect to Request for Admissions No. 24.

With respect to Special Interrogatories, he asserts that plaintiff failed to properly respond to Nos. 2 and 14, in refusing to provide the address for witness Eric Schmitz. With respect to Nos. 18 and 19, he contends that plaintiff answered the wrong question. While 18 sought to have plaintiff identify the witnesses with knowledge of the facts pertaining to her allegation that defendant Sierra Property is the alter ego of other defendants, plaintiff responded “Moisture attracts dust mites to the affected area.” While 19 sought to have plaintiff state all facts to support her allegation that Sierra Property caused the presence of dust mites in the property, plaintiff responded that she had notified the property manager on multiple occasions of mold growth, no actions were taken, and her health suffered and property was damaged.

With respect to the Requests for Admissions, the motion was filed to preserve Sierra Properties’ ability to obtain the further responses ordered by the Court with respect to the other defendants’ discovery. Further, defendants challenge the Court’s ruling as to No. 26, that no further response was required, because it was a direct allegation of plaintiff in her original complaint.

With respect to the requests for production, the Court found no need for plaintiff to further respond to Nos. 1, 2, 8, 11, 23, 24, 25, 26, 27, 31, 33, 34, 43, 44, 45, 46, 47, 48, 49, 50, 53, 54, 59, 60, 61, 62, 70, 71, 72, 73, 74, 81, 82, 83, 84, 86, 87, 88, and 89, but defendants believe further response is required, for her to provide the name and address of anyone believed to have the documents.

The Court apologizes to Mr. Aliberti for any part it may have played in confusing the issues related to the Sierra Property discovery, and in thwarting his attempt to avoid having to file the Sierra motions at all, and instead have plaintiff’s responses to them folded into her supplemental responses to the discovery by the other defendants, provided in response to the Court’s August 9 order. However, the Sierra motions were still filed well after the Court’s rulings on that identical discovery were already known, yet were not altered in any way to reflect those rulings, i.e., to omit the requests for an order compelling further responses to those requests for which the Court had found no further response was warranted and would not be ordered.

The Court has evaluated the discovery requests which defense counsel has indicated are still at issue in the motions brought by Sierra Property Group. It will deem all matters not addressed by defense counsel’s declaration to be subject to the same orders entered on the motions to compel further responses to the identical discovery, after the August 9, 2019 hearing on those motions. To the extent that plaintiff is ordered to provide further responses to any of the discovery, such responses must be served by plaintiff no later than December 16, 2019.

A. Motion to compel further responses to form interrogatories.

Plaintiff is ordered to provide further verified responses to Form Interrogatory No. 17.1, as it relates to Requests for Admission Nos. 20, 21, and 23-26. Plaintiff shall respond to all subsections of No. 17.1, and shall provide all of the information requested by those subsections, i.e., if plaintiff identifies any witnesses with knowledge of the facts, the names, addresses, and telephone numbers must be provided for each such witness, unless that witness is a party to the action. Those addresses and telephone numbers may be those of the business the witness is affiliated with, if the person is a witness because of professional or other services provided by that witness. While defendant’s motion contends that plaintiff is required to summarize the reports identified as part of No. 17.1(d), that is not what the interrogatory requires; it requires only that sufficient information be provided to identify the specific document being referenced.

B. Motion to compel further responses to special interrogatories.

Plaintiff is ordered to provide further verified responses to Special Interrogatory Nos. 2 and 14 by providing the address (if in fact it is known) of witness Eric Schmitz. Plaintiff is further ordered to provide verified responses to Nos. 18 and 19, given that her answers did not respond to the interrogatories which were asked.

C. Motion to compel further responses to requests for admissions.

No further responses to requests for admissions are ordered.

D. Motion to compel further responses to demand for production.

No further responses to the demand for production are ordered. While defendant seeks to have plaintiff provide further information about who might have the documents she could not locate after reasonable inquiry and therefore cannot produce, the location of many of those documents is self-evident, by the nature of the documents themselves, i.e., documents form Servpro of Santa Barbara, Santa Barbara Environmental Health, County Planning and Development, Marborg Industries, etc. There is little to be gained by requiring busywork responses in providing publically available information for known entities. There is also little to be gained by requiring plaintiff to provide information about who might have documents related to, for example, defendants themselves, communications between plaintiff and defendants, and the agency allegations.

DEFENDANTS’ MOTION FOR SANCTIONS.

Defendants have brought a motion for issue sanctions, evidentiary sanctions, deemed admissions, and monetary sanctions incurred in bringing the motion, or alternatively for further responses, based upon the further responses to discovery which plaintiff propounded in response to the court order issued on August 9, 2019.

Code of Civil Procedure section 2023.010 provides that misuses of the discovery process include, among other things, disobeying a court order to provide discovery. (Code Civ. Proc., § 2023.010, subds. (f) and (g).)

The imposition of various forms of sanctions against a party who has engaged in a misuse of the discovery process is authorized by Code of Civil Procedure section 2023.030, which provides, in relevant parts:

To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process:

(a) The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction 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.

(b) The court may impose an issue sanction ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. The court may also impose an issue sanction by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses.

(c) The court may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence.

If a party fails to obey prior orders, the court may make those orders that are just. (See, e.g., Code Civ. Proc., §§ 2030.290, subd. (c), and 2030.300, subd. (e).) As a result, which of the various sanctions may be granted for disobedience of court orders, and whether sanctions will be granted at all, lies entirely within the court’s discretion, and the court is not required to grant any particular sanction or any sanctions at all. (See Sauer v. Superior Court (1987) 195 Cal.App.3d 213, 228-229.)

Discovery sanctions are imposed to enable the interrogating party to obtain the information sought, rather than simply to punish a disobedient party or attorney, and it is an abuse of discretion to impose sanctions solely for punishment purposes. (Ghanooni v. Super Shuttle of Los Angeles (1993) 20 Cal.App.4th 256, 262.) Discovery sanctions are also imposed to compensate the interrogating party for the costs and fees incurred in enforcing discovery. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 796.) The sanctions imposed must not go beyond those necessary to further these purposes of discovery. (See Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1293.)

Importantly, the choice of sanction should not give the interrogating party a windfall by providing it with more than would have been obtained if the discovery had been answered. (Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164, 1194; Caryl Richards, Inc. v. Superior Court (1961) 188 Cal.App.2d 300, 303-304.)

The Court has analyzed the sanction motion in detail, as well as the discovery responses that were provided by plaintiff which defendants believe are worthy of such sanctions. The Court finds that, in large part, plaintiff’s failure to adequately respond to the specifics of the Court’s previous order arose from her counsel’s misinterpretation of it, along with a lack of understanding of what must be done to respond to discovery in California. Admittedly, given the massive amount of discovery that was before the Court at that time, the Court’s responses were abbreviated in nature, and at times were less than clear as to precisely what was required in order to adequately respond to the order. That this was true is further confirmed by the sanction motion’s arguments that much more was required to respond to the Court order than the directives which were actually contained in the order itself. Additionally, plaintiff’s attorneys’ misconceptions were compounded by defense counsel’s failure and abject refusal to specifically identify what was wrong with the supplemental responses, other than a beyond-generic assertion that they were “not code compliant”—which itself constitutes a failure to adequately meet and confer about the purported deficiencies in the supplemental responses.

Defendants’ motion sought sanctions based upon their contention that the supplemental responses provided by plaintiff did not comply with the Court’s August 9, 2019 order. The Court will deny all issue sanctions, all evidentiary sanctions, monetary sanctions, and all deemed admissions. In accordance with defendants’ alternative motion to compel, the Court will issue an order that plaintiff provide further, verified responses to the specific discovery requests that defendants identified in the separate statement accompanying their sanction motion, so as to comply with the Court’s 8/9/19 order (as further clarified herein), in the manner articulated below.

While there may have been other discover requests which defendants believe plaintiff’s supplemental responses were insufficient, defendants deliberately chose not to seek further responses to them, instead choosing to proceed solely by this sanction motion. As a result, there is no separate statement with respect to requests that were not the subject of the sanction motion, which is required for any motion to compel. As more specifically articulated below, the Court will order further responses to some of the discovery requests which were highlighted in the sanction motion.

Further verified responses to the discovery demands articulated below shall be provided by plaintiff no later than December 16, 2019.

A. Special Interrogatories:

The Court will order plaintiff to provide further verified responses to Special Interrogatory Nos. 2, 7, 8, 9, 10, 11, 12, 14, 17, and 18, in the manner articulated herein:

Interrogatory Nos. 2 and 14, asked plaintiff to identify all witnesses with knowledge of certain facts or allegations. The Court’s order compelling further responses indicated that plaintiff had identified the witnesses (two roommates and an inspector with the County Planning and Development Department) by name, but did not provide any further information, and ordered her to provide a further response. In other words, the only information that the Court was compelling plaintiff to provide was the address and telephone number of the witnesses identified by plaintiff in response to the interrogatories.

The supplemental responses contended that the defendants’ prior separate statement in support of the motion had noted that she had identified only two roommates and the inspector, but that the separate statement was false, and in fact plaintiff had identified two roommates, her mother, the inspector with Planning and Development, Ed Castro of Sunrise Inspection, and defendant Nancy Kaller. In supplemental response to No. 14, plaintiff also made several arguments, including that she provided the information she had or was able to obtain, and does not believe she has to provide information she does not have or is unable to get. Although the supplemental responses are not, themselves, in front of the Court so that the Court can evaluate them directly, defendants’ separate statement reflects that they still did not include the addresses or telephone numbers of the witnesses.

Plaintiff is ordered to provide the addresses and telephone numbers for the witnesses she identified in response to these interrogatories. With respect to the two roommates, she can provide their known or last known addresses and telephone numbers, and if she does not know their current addresses or telephone numbers, and is unable to locate them, she should expressly state those facts. With respect to the two inspectors, plaintiff can provide their business addresses and telephone numbers. No response is required for defendant Kaller, as that information is known to defendant.

The Court notes that its prior discussion of Special Interrogatory No. 13 was combined with its discussion of No. 14; that discussion does not indicate that there was any deficiency in the response to No. 13, and no further response will be required here.

Interrogatory Nos. 7, 9, and 11, sought information from plaintiff related to the facts upon which she based her claim that each defendant was acting as the agent, servant, or employee of the other defendants. Interrogatory No. 17 sought information related to the facts upon which plaintiff based her claim that each defendant was the alter ego of the other defendants. Nos. 8, 10, 12, and 18, sought the identity of witnesses with knowledge of those facts.

In response to all of these interrogatories, plaintiff responded that she could not answer them without conducting further discovery. The Court found the responses to be evasive, noting that if she has no factual basis for her allegations she must say so, and ordered her to provide further responses. Plaintiff’s supplemental responses again emphasized that she could not provide the facts to support the allegations without conducting further discovery.

The responses to these interrogatories do not bind plaintiff for all time, and seek the information in plaintiff’s possession at the time they are answered. It may be true that the only information plaintiff possesses with respect to these issues is that which is contained in the lease and related documents, or possibly arising from her conversations with one or more of the individual defendants. That this information may not currently be sufficient to establish alter ego or agency at the current time, does not mean that plaintiff will be forever precluded from presenting any other evidence on the issues. It is entirely appropriate for a party to respond that they currently do not have any facts to support the allegation, or to set forth only the limited facts they have that would be relevant to the allegation, and to assert that investigation and discovery is continuing, and the party reserves the right to supplement their responses. All the interrogatories are asking is what information is in the party’s possession at the moment they respond to the interrogatories. If the answer is “none,” or only limited specified information, that answer suffices.

Once again, further response to Nos. 8, 10, 12, and 18, simply require the identification of witnesses with knowledge of those facts, including their names, addresses, and telephone numbers.

Requests for production:

In granting the motion to compel as to Requests for Production Nos. 13, 77, 78, 79, and 80, the Court acknowledged that plaintiff had identified responsive documents. It noted further that plaintiff had simply stated that defendants already had copies of the documents. Finding that this was not a proper response, the Court ordered plaintiff to produce the documents identified in her responses. In other words, even though the documents might already be in defendants’ possession, the Court was ordering her to again produce the documents in response to the Demand for Production, so that there could be no dispute as to the documents she had identified in her written response. All the Court is now requiring, in order to comply with its prior order, is the production of the documents identified in plaintiff’s written responses to Request for Production Nos. 13, 77, 78, 79, and 80.

Form interrogatories:

Form Interrogatory No. 14.1 inquired whether plaintiff contended that any person involved in the incident violated any statute, ordinance or regulation, and that the violation was a legal or proximate cause of the incident and, if so, to identify (a) the person by name, address, and telephone number, and (b) the statute, ordinance or regulation that was violated. In ordering a further response, the Court found plaintiff’s response that the EPA has rules and regulations about mold that were violated, but that she did not know if the violations were reported to the EPA, to be deficient, in failing to specify what code sections were violated, or when, how, and by whom the code sections were violated. The Court ordered plaintiff to provide a further response. After further reflection, the Court notes that the interrogatory itself does not request the information about when or how the statute was violated, and it should not have ordered that the further response include this information.

As best the Court is able to ascertain from the motion’s separate statement since it was not provided with plaintiff’s supplemental responses, plaintiff’s further response was “unknown,” and that without defendants’ discovery responses, she is unable to respond further. Once again, plaintiff misunderstood that this interrogatory is not seeking information to be gained in the future, but is seeking information as plaintiff knows it at the time she responds. Unfortunately, the portion of the order requiring her to set forth when and how any statute was violated improperly reinforced plaintiff’s misunderstanding. If plaintiff contends that the violation of any statute, ordinance or regulation, whether from the EPA or elsewhere, was or may been a legal or proximate cause of the incident, she needs to identify the statute, ordinance, or regulation. If she is currently unaware of any statute, ordinance, or regulation, the violation of which may have been a legal or proximate cause of the incident, she can simply state the fact that she is currently unaware of any, that investigation and discovery is continuing, and that she reserves the right to supplement her responses in the future. It would also be acceptable to respond that plaintiff is not making any such claim at the present time, but reserves the right to amend to allege such a claim should investigation and discovery provide factual support for such a claim.

Form Interrogatory No. 17.1 seeks, for each response to a request for admission that is not an unqualified admission, the facts upon which the responses is based, the identities (names, addresses, and telephone numbers) of witnesses with knowledge of these facts, and the identity of all documents or things that support the response, along with identity (name, address, telephone number) of each person who has each document or thing.

Defendants’ motion addresses No. 17.1 as it relates to Request For Admission Nos. 4, 5, 6, 8, 9, 10, 11, and 14. The Court will order plaintiff to provide further verified responses to No. 17.1 as it relates to Request for Admission Nos. 4, 5, 6, 8, 9, 10, 11, and 14.

Nos. 4-6 asked plaintiff to admit that the allegations that each defendant was acting as the agent, servant, employee, or alter ego of the other defendants were false. She responded that she was unable to admit or deny, and that she would have to conduct discovery to determine the relationship of the parties. The Court found the response deficient, noting that plaintiff had sued six defendants and made agency allegations against each, presumably based upon the written lease (i.e., a document to support the response which does not admit the request), which identified the owner and property manager (i.e., persons with knowledge).

Once again, given that the actual supplemental responses were not provided to the Court, the specifics of Plaintiff’s supplemental response to No. 17.1 with respect to these RFAs is incredibly unclear. The motion’s separate statement indicates that plaintiff responded that she would have to do discovery to determine the relationship of the parties, although she identified some witnesses. The motion argues that the supplemental response attempts to raise objections that were waived, but the information in the separate statement reveals plaintiff provided explanations, not any identifiable objections.

Also once again, responding to No. 17.1 with respect to these Requests for Admissions do not require information that definitively proves the issues of agency, employment, or alter ego, or include information that the responding party can only acquire through future discovery. It only requires the responding party to set forth the facts, and properly identify the witnesses with knowledge of those facts and the documents which support those facts, which the responding party is reasonably able to ascertain at the time the discovery is responded to. What the Court meant, in finding that plaintiff’s responses were deficient, was that plaintiff must have had some reason for naming each of these parties as a defendant, and that knowledge must have come from somewhere. For example, she had the lease agreement papers, which may have identified the property owner, the management company, the management company’s employee(s), etc. She may have dealt directly with the management company employee with respect to the issues, and gained knowledge of the relationships between the parties. She may not be in complete possession of all possible evidence required to prove agency, employment, or alter ego, but is obligated to respond to the interrogatory by setting forth that information she does possess. Once again, she can qualify her response with the statement that discovery is continuing, and she reserves her right to further supplement her responses in the future.

While the Court’s order may not have been entirely clear, that is the sort of response—answering all of the subdivision in full (including the addresses and phone numbers of witnesses, etc.)—that the order intended must be provided by the responding party.

Nos. 8-11 and 14 asked plaintiff to admit that the named defendant was not the owner or manager of the subject property. Plaintiff responded that she is unable to admit or deny the request without conducting further discovery. The Court found her response to Form Interrogatory 17.1 to be deficient, given that she sued six defendants and presumably has some information as to who the owner and property manager are for the property, ordering her to provide further responses. Plaintiff’s supplemental responses, to the extent the Court is able to ascertain them from the considerably less-than-clear separate statement, included reiterations that she was unable to respond without conducting further discovery, although she apparently named witnesses and attached documents.

Once again, the interrogatory only requires the responding party to set forth the facts, and properly identify the witnesses with knowledge of those facts and the documents which support those facts, which the responding party is reasonably able to ascertain at the time the discovery is responded to. Plaintiff had some basis for naming the parties as defendants, and some information about which defendants may be owners of the property, and which may be managers of the property. Likely that came from the lease documents, as well as personal dealings with the defendants. Plaintiff’s response need not be sufficient to prove which defendants are owners and which are managers, but she must set forth the facts in her possession, after reasonable inquiry, and the corresponding information about witnesses and supporting documentation, required by the subdivisions to No. 17.1. Plaintiff can properly qualify her response, once again, with the statement that discovery is continuing, and she reserves her right to further supplement her responses in the future.

In summary, the Court is ordering plaintiff to provide further verified responses to Form Interrogatory No. 14.1, and to No. 17.1 as it relates to Request for Admission Nos. 4, 5, 6, 8, 9, 10, 11, and 14.

D. Requests for admissions:

The Court will deny the motion to have the requests deemed admitted, and will deny any alternate motion to compel a further response to these requests.

Defendant’s motion seeks to have the following requests for admissions deemed admitted, based upon plaintiff’s purported violation of the Court’s order requiring further responses:

No. 4—the allegation that “each defendant was acting as the agent, servant and employee of each other in the course and scope of his, her, or its agency and employment and with the knowledge, consent and ratification of each other,” as alleged in ¶ 5 of the complaint is false.
No. 5—the allegation that “defendants . . . were the agents, servants and alter-egos of each other [etc.],” as alleged in ¶ 6 is false.
No. 6—the allegation that “. . . defendants were agents, officers, directors, managing agents and/or supervising employees of the other defendants [etc.],” as alleged in ¶ 7 is false.
No. 10—Defendant was not the owner of the subject property from 2016 through 2018.
No. 11—Defendant was not the manager of the subject property from 2016 through 2018.
No. 14—Defendant is not the alter ego of any other defendant alleged in the complaint
No. 24—Dust mites caused the medical damages alleged in the complaint.

With respect to Nos. 4, 5, 6, 10, 11, and 14, plaintiff had responded that she could not admit or deny the requests without conducting further discovery. The Court found the response deficient, and—perhaps erroneously—used the identical language with respect to the Requests for Admissions as it had used when discussing plaintiff’s responses to Form Interrogatory 17.1 with respect to these requests, i.e., that plaintiff had sued six defendants and made agency and alter ego allegations against them, presumably based on the written lease, which identifies the owner and the property manager (with respect to Nos. 4-6 and 14), and presumably had some information as to who the owner and property manager are for the property (Nos. 10 and 11), ordering further responses to the requests. In supplemental responses to the Requests, plaintiff—perhaps perplexed by the Court’s ruling—responded that the allegations she had made, were just that—allegations, which were to be proved at trial.

With respect to No. 24, plaintiff admitted that some of her medical problems were caused by dust mites. The Court found the response deficient, in failing to identify which of her medical problems were caused by dust mites. In her supplemental response, defendants’ consistently less-than-clear separate statement states that plaintiff repeated the court order and combined several (unspecified) responses, and then stated that Dr. Katz had only one report, which does not state which medical problems were caused by dust mites, or specify what problems are caused by mold or dust mites.

Pursuant to Code of Civil Procedure section 2033.220(b), each answer to a request for admission should (1) (1) Admit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by the responding party; (2) Deny so much of the matter involved in the request as is untrue; or (3) Specify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge. Further, if a responding party gives the lack of information or knowledge as a reason for a failure to admit all or part of a request for admission, Section 2033.220(c) requires that party to state in the answer “that a reasonable inquiry concerning the matter in the particular request has been made, and that the information known or readily obtainable is insufficient to enable the party to admit the matter.” Section 2033.240(a) requires all responses to be verified by the responding party. Pursuant to Section 2033.290(e), if a party fails to obey an order compelling further response to requests for admission, the court may order that the matters involved in the requests be deemed admitted.

By way of explanation, albeit not as an excuse, when the Court was evaluating the motions to compel further responses in advance of the August 9, 2019 hearing, it had a tremendous amount of material to read, digest, analyze, and evaluate, and a very limited amount of time within which to do so. It resolved the motions to the best of its ability under those difficult circumstances, but inadvertently made errors in doing so. While there may well have been others, its orders with respect to the Requests for Admissions were made in error.

The substance of plaintiff’s responses to Nos. 4, 5, 6, 10, 11, and 14, was that she lacked sufficient information or knowledge to be able to admit or deny the request. (See Code Civ. Proc., § 2033.220, subd. (b)(3).) Further, while she did not make the statement that reasonable inquiry had been made, her responses were also likely sufficient to meet the standard set forth in Section 2033.220(c). Clearly, the import of her responses that she could not admit or deny the request without conducting further discovery was that she lacked sufficient information to be able to either admit or deny the matter. The information which the Court order found to be missing related solely to Form Interrogatory 17.1, and not to the Requests themselves, and the Court likely should not have ordered further responses to be provided.

The same is true of plaintiff’s response to No. 24. As it currently reads the statutes, plaintiff should not have been ordered to substantively and separately state which of her medical problems were caused by dust mites. Even if that order was proper, however, plaintiff’s supplemental response adequately complies with Section 2033.220(c), in explaining why plaintiff, after reasonable inquiry, was unable to comply with that mandate.

As a result, the motion to have these requests deemed admitted will be denied, and to the extent the motion is interpreted to contain an alternative motion to compel further responses, that, too, will be denied.

PLAINTIFFS’ MOTION TO COMPEL.

Plaintiff has moved to compel responses, without objection, to form interrogatories, special interrogatories, requests for admissions, and a production demand, which were served upon defendants on April 15, 2019, and to which she contends there has been no response. She contends her counsel served a met and confer letter on September 16, 2019. She seeks $2,527.50 in sanctions, for having to bring the motion to compel.

Defendants oppose, contending that they served code-compliant responses to each discovery request upon plaintiffs’ attorneys (Schaertel, and attorney Marvin Kay, who is no longer associate counsel for plaintiff in this action), on May 13, 2019. The motion to compel is therefore untimely, was not preceded by meet and confer efforts, and there is no separate statement. Further, defendants object to the sanction request, based upon defective notice. No proofs of service for the discovery are attached to or authenticated by counsel’s declaration; the only information provided is his declaration statement that “On May 13, 2019, Discovery responses from each and every DEFENDANT regarding form interrogatories, special interrogatories, requests for admissions and requests for production were served via U.S. Mail on Attorney Schaertel and Attorney Kay.” Counsel further declares that on May 23, 2019, plaintiff’s attorney “admitted via e-mail in writing to receiving these discovery responses.” Again, the e-mail is not provided in support of counsel’s statement.

There are numerous additional filings of the parties, both related and unrelated, dealing with these issues. Neither attorney appears willing to let the other have the last word, and the war of the filings rages on apparently ad infinitum. The substance of these filings is emphatic reiteration of each attorney’s position with respect to whether or not responses were served and/or received.

The Court is therefore presented with two declarations of counsel setting forth irreconcilable information. If responses were not served, the motion should be granted, and defendants should be ordered to provide responses, without objection. If responses were timely served with respect to each and every request, the time to compel further responses has now expired.

In order to resolve the motion, the Court therefore looks to Evidence Code section 412, which provides “if weaker and less satisfactory evidence is offered when it was within the power of the party to produce stronger and more satisfactory evidence, the evidence offered should be viewed with distrust.”

Defendants’ attorney declares that full responses by each defendant were served by U.S. Mail on May 13, 2019. He does not, however, authenticate or provide the Court with copies of the proofs of service that would necessarily have accompanied those responses. Defendants’ attorney further declares that plaintiff’s attorney admitted via a May 23, 2019 e-mail that he received the discovery responses. Once again, however, defendants’ attorney neither authenticates or provides the Court with a copy of the e-mail sent by plaintiff’s attorney which he contends admits receipt of defendants’ discovery responses.

In the face of defense counsel’s failure to provide the stronger and more satisfactory documentary evidence, in support of his declaration statements, the Court is forced to conclude that either the responses were not served on May 13, 2019, as counsel contends, or that they were never received by plaintiff’s counsel.

Consequently, the Court will grant the motion to compel responses to the discovery, and will order defendants to serve (or reserve, if you will) their discovery responses upon plaintiff’s counsel, no later than November 25, 2019. Certainly, considering that defense counsel has adamantly contended that the responses had been served, there should be no problem in having them served again within the 10 day period. If further time is required, counsel can make the request for additional time at the hearing.

MONETARY SANCTION REQUESTS.

As noted above, while the imposition of substantial monetary sanctions against both counsel would be warranted in the discovery-related motions currently before the Court, the Court has opted to deny all monetary sanction requests, for the simple reason that they would simply offset.

DOCUMENTATION OF COMMUNICATIONS IN FUTURE MOTIONS.

Should any future discovery motions come before the Court in this case—or in fact any further motions of any kind—the Court directs counsel that it will not accept an attorneys’ declaration which characterizations, summaries, or quotes of the substance of the meet and confer and/or other communications between the parties. Rather, if the statements upon which the party wishes to rely were made in any written form, be it e-mail, letter, or any other written format, the actual complete and full communication must be authenticated by counsel and attached to counsel’s declaration.

Frequently, the context in which comments are made is critical to the Court’s proper understanding of them, and it is all too easy to provide selective quotations of comments that place them in a different light than actually existed. Additionally, the entirety of the communication is essential to the Court’s evaluation of both counsel’s good faith in conducting the communications. Only if the statement was made orally will the Court accept its recitation in a declaration, and only then if the complete context of the circumstances and statements are provided.

CONDUCT OF COUNSEL.

The Court feels compelled to add a few comments. The Court has spent an extensive amount of time evaluating and analyzing the many, many papers submitted by the parties with respect to the eight pending motions. The papers filed by both sides are convoluted and difficult to comprehend, making the Court’s job more difficult than it needed to be. Further complicating the Court’s task is the shockingly unprofessional manner in which both counsel have acted in this case toward each other, each while trying to blame the other for all the problems their shared conduct has caused.

The Court will direct the parties to the Guidelines for Attorneys Practicing Before the Santa Barbara County Superior Courts, located at Appendix 5 to the Santa Barbara Superior Court Local Rules. Specifically, Guidelines A(1) [A lawyer must work to advance the lawful and legitimate interest of his or her client. This duty includes an obligation not to act abusively or discourteously. . . .], A(3) [Counsel should at all times be civil and courteous in communicating with adversaries, whether in writing or orally. A lawyer should not behave offensively, derogatorily or discourteously even when his or her client so desires. . . .], and the entirety of Guideline F (related to discovery).

The Court will not tolerate further unprofessional or abusive conduct by either counsel. Neither will the Court tolerate the baiting of opposing counsel in an attempt to provoke a response. While each attorney appears to view himself as blameless and the opposing attorney entirely at fault, both have far too frequently been abusive, offensive, and discourteous. Failure to follow these Court directives may result in imposition of sanctions against the offending attorney, or, if appropriate, reference of the misconduct to the State Bar.