Malek v. Luong Michael Thanh, et al.		CASE NO. 113CV248284
DATE: 1 August 2014	TIME: 9:00	LINE NUMBER: 10

This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.882.2310 and the opposing party no later than 4:00 PM Thursday 31 July 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 1 August 2014, the motion of Plaintiff Travis Malek (“Plaintiff”) to compel further responses to his first set of form interrogatories (“FI”), his first set of requests for admissions (“RFA”), first set of requests for production of documents (“RPD”), first set of special interrogatories (“SI”) and for monetary sanctions was argued and submitted.  Defendant/Cross-Defendant Richmond/Menker Property Owners Association (“Defendant”) filed a formal opposition to the motion in which it also requested monetary sanctions.

All parties are reminded that all papers must comply with Rule of Court 3.1110(f).[1]

Statement of Facts

This action arises from a landlord-tenant dispute.  Plaintiffs allege that the premises (an apartment) rented to them from December 2009 to February 2011 was maintained in an unsafe, unlawful, uninhabitable condition by various defendants, including Defendant Richmond/Menker Property Owners Association, alleged by Plaintiffs to be the owner of the common areas of the subject premises and responsible for maintaining them and providing security.

On 20 June 2013 Plaintiffs filed their Complaint asserting the following causes of action against all defendants: (1) Breach of Contract; (2) Breach of the Implied Covenant of Good Faith and Fair Dealing; (3) Breach of the Implied Warranty of Habitability; (4) Breach of the Covenant of Quiet Enjoyment; (5) Intentional Misrepresentation; (6) Negligent Misrepresentation; (7) Violation of Civ. Code §1941; (8) Violation of Civ. Code §1942.4; (9) Negligence; (10) Imposition of a Constructive Trust; (11) Intentional Infliction of Emotional Distress; (12) Negligent Infliction of Emotional Distress; (13) Violation of Bus. & Prof. Code §17200; (14) Violation of San Jose Housing Code §§17.20.270 and 17.20.900; and (15) Violation of Civ. Code §1950.5.

Discovery Dispute

On 7 February 2014 Plaintiff served Defendant with his first set of FI, RFA and RPD by mail.

Defendant served responses by mail on 1 May 2014.

On 15 May 2014 Plaintiffs’ counsel sent Defendant’s counsel a meet and confer letter via regular mail, stating his belief that certain of Defendant’s responses to each set of discovery were insufficient and requesting further responses.

On 22 May 2014 Defendant’s counsel responded via regular mail, essentially standing by Defendant’s original responses and declining to provide further responses to any of the discovery identified by Plaintiffs’ counsel.

On 17 June 2014 Plaintiff filed the instant motion to compel further responses, with the initial hearing date of 18 July 2014.

On 11 July 2014 an order was entered continuing the motion to its present hearing date.

On 17 July 2014 Defendant filed its opposition to the instant motion, stating that the motion should be denied because it had provided “comprehensive responses” to the various discovery.

Discussion

I.             Request for Judicial Notice

As an initial matter, Defendant requests that the Court take judicial notice of Plaintiffs’ 20 June 2013 Complaint.  Plaintiff does not oppose this request.  A court may take judicial notice of court records that are relevant to a pending issue.  (Evid. Code §452(d).)  The Complaint is a court record and relevant to the instant motion.  Therefore, Defendant’s request for judicial notice of the Complaint is GRANTED.

II.            Meet and Confer

Defendant argues that Plaintiff did not sufficiently meet and confer regarding the discovery at issue.

A motion to compel further responses to interrogatories, requests for production of documents, and requests for admission shall be accompanied by a meet and confer declaration “showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.”  (Code of Civ. Proc. [“CCP”], §§ 2016.040, 2030.300, subd. (b), 2031.310, subd. (b)(2), and 2033.290, subd. (b).)  A reasonable and good faith attempt at informal resolution requires that the parties present the merits of their respective positions with candor, specificity, and support.  (Townsend v. Super. Ct. (1998) 61 Cal.App.4^th 1431, 1435, 1439.)

Here, Plaintiff counsel’s letter of 15 May 2014 presented the merits of his position with adequate candor, specificity and support.  The suggestion by Defendant that Plaintiff failed to respond to a good faith “proposal” is inaccurate.  Only as to the RPDs in dispute did Defendant make any kind of offer in its letter of 22 May 2014, and Defense Counsel’s specific comment (“This is the epitome of a fishing expedition.  If you narrow these requests to request documents that are relevant to this action, we will review them”) effectively invited Plaintiff to start over; Plaintiff was not required to do so before moving to compel further responses.

III.           Plaintiff’s Motion to Compel Further Responses to FI and RFA

Plaintiff seeks a further response to FI No. 17.1 as it relates to RFA Nos. 3 and 4, and further responses to RFA Nos. 3, 4 and 5.

If a party demanding a response to an interrogatory or request for admission deems and an answer to a particular interrogatory or request for admission as incomplete or evasive, to an objection to be without merit or too general, that party may move for an order compelling further response. (CCP §§ 2030.300, 2033.290.)  The objecting party bears the burden of explaining and justifying any objection.  (See Fairmont Ins. Co. v. Superior Court (2000) 22 Cal 4^th 245, 255, citing Coy v. Superior Court (1962) 58 Cal. 2d. 210, 220-221.)

FI No. 17.1(b) asked Defendant, for each RFA to which its response is not an unqualified admission, “to state all facts upon which you base your response.”

Defendant’s response to FI No. 17.1(b) as it related to both RFA Nos. 3 and 4 was the same: “Responding Party is unable to respond to the request as phrased.”

RFA Nos. 3 and 4 asked Defendant to admit or deny that Defendant “from its inception was aware that the apartment complex was located in a high crime area,” and that it “is aware that the San Jose Police Department has responded to numerous incidents at the apartment complex during the period of the Associations’ existence,” respectively.

Defendant only responded to RFA Nos. 3 and 4 with an objection that they were both vague and ambiguous. As to RFA No. 3 Defendant claimed to be unable to comprehend the term “high crime area,” and as to RFA no. 4 it claimed to be perplexed as to the meaning of “numerous incidents.”  As to both Defendant also made the (frankly ridiculous) assertion that as a corporation it cannot be “aware of” anything.

RFA No. 5 asked Defendant to admit or deny that it is “aware that the City of San Jose Code Enforcement issued compliance orders for units in the apartment complex during the period of the Association’s existence.”  Defendant responded by objecting that this was vague and ambiguous.  It claimed to be unable to respond based on its inability to comprehend the meaning of the term “City of San Jose Code Enforcement.”

Objections concerning vagueness or ambiguity are generally not sustained unless the question is totally unintelligible.  The answering party owes a duty to respond in good faith as best as he or she can. A discovery request is rarely so ambiguous that a responding party cannot provide any response. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783.)  Objections on this ground to any terms used in the RFAs other than those Defendant identified in its original responses have been waived.

As to RFA No. 3 the Court agrees that without more information “high crime area” is ambiguous.  Accordingly, this objection is sustained and no further response to this RFA, or to FI 17.1(b) as it relates to this RFA is compelled.

As to RFA No. 4 the Court does not agree that “numerous” is so ambiguous that Defendant cannot comply with its duty to respond in good faith.  The objection as to “numerous” and also as to “aware of” is overruled.  Defendant presumably knows the number of times the San Jose Police Department has responded to incidents at the complex and can respond to the RFA based on whether it believes that number to be numerous.  A further response is required as to RFA No. 4 and as to FI No. 17.1(b) as it pertains to RFA No. 4.

As to RFA No. 5 the Court does not agree that the term “City of San Jose Code Enforcement” is so ambiguous that Defendant cannot comply with its duty to respond in good faith. The objection is overruled and a further response is required.  If it is Defendant’s position that no entity with that name exists than the proper response is obvious.

IV.           Plaintiff’s Motion to Compel Further Responses to RPD

Plaintiff seeks a further response to RPD Nos. 3, 4, 5, 6, 7 and 9.  These requests seek: all meeting minutes of Defendant from its start up to January 31, 2014 (RPD No. 3); any notices sent to the Defendant’s members from its start up to January 31, 2014 (RPD No. 4); any notices sent to tenants living at the “apartment complex” from the start of Defendant Association to January 31, 2014 (RPD No. 5); any written communication between Defendant and any department of the City of San Jose from the start of the Association to January 31, 2014 (RPD No. 6); any written communication between Defendant and any of its members from its start to January 31, 2014 (RPD No. 7), and; any documents evidencing any repairs or modifications made by the Association to any part of the “apartment complex” (RPD No. 9).

A party responding to an inspection demand must respond separately to each item in the demand by stating one of the following: (1) an agreement to comply; (2) a representation of inability to comply; or (3) objections.  (See Code Civ. Proc., § 2031.210, subd. (a).)

On a motion to compel further responses to requests for production, it is the moving party’s burden to demonstrate good cause for the discovery sought. (See Kirkland v. Superior Court (2002) 95 Cal.App.4^th 92, 98.)   This requires demonstrating both (1) relevance to the subject matter and (2) specific facts justifying discovery.  (Id.)  Once good cause has been shown, the burden shifts to the responding party to justify any objections or failure to provide a code-compliant response.  (Id. at 98.)

Regarding good cause, Discovery is allowed for any matters that are not privileged and that are relevant to the subject matter involved in the action and reasonably calculated to lead to the discovery of admissible evidence.  (CCP, § 2017.010.)  The “relevance to the subject matter” and “reasonably calculated to lead to discovery of admissible evidence” standards are applied liberally with any doubt generally resolved in favor of discovery.  (Colonial Life & Acc. Ins. Co. v. Super. Ct. (1982) 31 Cal.3d 785, 790.)  Moreover, for discovery purposes, information is “relevant to the subject matter” if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement thereof.  (Gonzalez v. Super. Ct. (1995) 33 Cal.App.4^th 1539, 1546.)

Defendant’s only response to each of the subject RPDs was to assert objections.  It claimed that all of these RPDs are overly broad as to time and sought documents that are not relevant and would not lead to the discovery of relevant evidence.  As to RPD Nos. 5 and 9 it claimed that the term “apartment complex” rendered both requests vague and ambiguous. As to RPD No. 7 only it claimed that the request invades the privacy of third persons.

As an initial matter each of these RPDs seeks material that is self-evidently relevant to Plaintiffs’ allegations of habitability, security and crime problems at the complex and good cause is therefore established.  Defendant’s objection to each of these RPDs on the ground that they fail to seek documents that are relevant or may lead to the discovery of relevant evidence is overruled.

Defendant offers no argument to support its vague and ambiguous objection to the term “apartment complex” in RPD Nos. 5 and 9.  Accordingly that objection is overruled.  (See Kirkland, supra, at p. 98.)

Defendant’s objection that each of the subject RPDs is overly broad as to time in seeking material from the creation of the Association through January 31, 2014 presents a valid argument.  The Complaint does not allege when Defendant Association came into existence, nor does Defendant provide this information.  The Complaint does allege (at 5) that Plaintiffs rented an apartment at the complex from December 2009 to February 2011.  Accordingly the objection that each of the subject RPDs is overly broad as to time is sustained to the RPDs as written.  The Court hereby modifies the subject RPDs and narrows the time period of each of them to the period from January 1, 2008 to February 28, 2011.  The overly broad as to time objection is overruled as to the RPDs as so modified.

Defendant’s objection to RPD No. 7 on the ground that it invades the privacy of third persons by seeking any communications between Defendant and its members also presents a valid argument.  The right to privacy is not absolute.  (See Valley Bank of Nevada v. Sup. Ct. (1975) 15 Cal. 3d 652, 656.)  Furthermore, Article I, section 1 of the California Constitution only “protects the individual’s reasonable expectation of privacy against a serious invasion.”  (Puerto v. Sup. Ct. (2008) 158 Cal App 4^th 1242, 1249-1250, quoting Pioneer Electronics (USA), Inc. v. Sup. Ct. (2007) 40 Cal 4^th 360, 370.)  Where something less than a serious invasion of a legitimate privacy interest would occur, the court must balance the privacy interest at stake against competing interests, such as “the interest of the requesting party, fairness to the litigants,” and the “consequences of granting or restricting access to the information.”  (Id., at p. 1251, citing Pioneer, supra, at pp. 370-371.)  To strike this balance, the Court hereby modifies RPD No. 7 to only seek any communications between Defendant and its members concerning any habitability, maintenance, security or crime issues at the complex.  Any third party financial information may be redacted from responsive documents.  The third party privacy objection is overruled to RPD No. 7 as so modified.

Defendant is ordered to provide further responses to RPD Nos. 3, 4, 5, 6, 7 and 9 as modified above.

V.            Plaintiff’s Motion to Compel Further Responses to SI

Plaintiff seeks a further response to SI Nos. 5, 13, 18, 19, 20, 22, 23, 24, 25, 26 and 27.

If a party demanding a response to an interrogatory deems: (1) an answer to a particular interrogatory to be evasive or incomplete; (2) an exercise of the option to produce documents under Code of Civil Procedure §2030.230 to be unwarranted or devoid of the requisite specification of documents; or (3) an objection in the response to be without merit or too general, that party may move for an order compelling further response.  (See Code of Civil Procedure §2030.300, subd. (a).)

SI No. 5

This SI asks Defendant (if the answer to SI No. 3, asking if Defendant had regularly scheduled meetings, was “yes”) to list the dates of all regularly scheduled meetings from Defendant’s inception through February 28, 2011.  Defendant objected to the SI solely on the ground that it was overly broad as to time and only provided a response limited to the period from December 1, 2009 to February 28, 2011.  As discussed above in the context of the RPDs, the Court finds that this objection has some merit and modifies the SI to apply to the period from January 1, 2008 to February 28, 2011.  To the extent this requires Defendant to list earlier meeting dates not already disclosed, a further response is required.

SI No. 13

This SI asks Defendant to list the names, addresses, and telephone of all Association members for the period from December 1, 2009 to February 28, 2011.  Defendant responded only by objecting on the basis that the SI failed to seek relevant information and sought information protected by third party privacy.  It is self-evident that this SI seeks relevant information as all such persons are potential witnesses to the conduct and conditions alleged by Plaintiffs.  The relevance objection is therefore overruled.  The third party privacy objection is also overruled as the SI seeks nothing more than the contact information of potential witnesses.  Though disclosure of the information may slightly invade their privacy, there is generally no protection for the identities and contact information of potential witnesses.  (See Puerto v. Sup. Ct. (2008) 158 Cal App 4^th 1242, 1251-1252.)  Defendant is required to provide a further response.

SI No. 18

This SI asks Defendant to answer a yes or no question: whether from the start of the Association to January 31, 2014, the Association has ever requested that an Association member evict a tenant?  Defendant replied only with objections and objected solely on the grounds that the SI did not seek information that was relevant or was likely to lead to the discovery of relevant information and that it sought the private information of third parties.  Both objections are overruled.  It is self-evident that the SI seeks information relevant to Plaintiffs’ allegations that Defendant failed to take action to deal with habitability and security issues.  The third party privacy objection simply has no application to an SI that does not seek information as to any particular person.  Defendant is required to provide a further response.

SI No. 19

This SI asks Defendant (if the answer to SI No. 18 is yes) to “provide the details of the situation including the name of the Association member, the address of the unit, the date of the notice requesting the eviction and the names of the tenant.”  Defendant replied only with objections, asserting that the SI sought third party private information, did not seek relevant information, was compound and was not complete in and of itself.  All objections are overruled.  Defendant fails to support its objections that the SI is compound or not complete in and of itself with argument.  It is self-evident that the SI seeks information relevant to Plaintiffs’ allegations that Defendant failed to take action to deal with habitability and security issues.  The request for the name of any Association member requested to evict a tenant, the address of the unit in question, the date of the notice and the name the tenant(s) does not impermissibly invade third party privacy as it seeks identity and contract information of potential witnesses to Plaintiffs’ allegations.  Defendant is required to provide a further response.

SI No. 20

This SI also asks Defendant to answer a yes or no question: whether from the beginning of the Association to January 31, 2014 the Association ever complained to one of its members about the actions of any tenants?  Defendant responded only with objections on the ground that the SI did not seek relevant information and was overly broad as to time.  The relevance objection is overruled.  It is self-evident that the SI seeks information relevant to Plaintiffs’ allegations.  As to the objection that the SI is overly broad as to the time period covered, for the reasons discussed above in the context of the motion to compel further responses to RPDs the Court finds that this objection has some merit and therefore modifies the SI to apply only to the period from January 1, 2008 to February 28, 2011.  Defendant is required to provide a further response to the SI as so modified.

SI No. 22

This SI asks another yes or no question: from the beginning of Defendant Association to January 31, 2014, has the Association ever received a complaint from any tenant/occupant about the actions of another tenant?  Defendant only responded with objections that the SI did not relevant information and was overbroad as to time.  The relevance objection is overruled.  It is self-evident that the SI seeks information relevant to Plaintiffs’ allegations.  As to the objection that the SI is overly broad as to the time period covered, for the reasons discussed above in the context of the motion to compel further responses to RPDs the Court finds that this objection has some merit and therefore modifies the SI to apply only to the period from January 1, 2008 to February 28, 2011.  Defendant is required to provide a further response to the SI as so modified.

SI No. 23

This SI asks Defendant (if the answer to SI No. 22 is yes) to “provide the details of the situation including the name and address of the complaint person, the address of the unit complained about, the date of the notice regarding the complaint, the names of the tenants complained about and the reason given for the complaint.”  Defendant only responded with objections on the grounds that the SI did not seek relevant information or information likely to lead to the discovery of relevant information, was compound, was overbroad (without indicating as to what) and that the SI was not complete in and of itself.  All objections are overruled.  It is self-evident that the SI seeks information relevant to Plaintiffs’ allegations.  Defendant fails to support its other objections with any arguments. Defendant’s argument as to third party privacy is misplaced here as no objection was made to this SI on that basis in the response.  Defendant is required to provide a further response.

SI No. 24

This SI asks another yes or no question: whether from the start of the Association to January 31, 2014, the Association has ever received a complaint about from any Association member about the actions of any tenant?  Defendant responded only with objections on the ground that the SI sought information that was not relevant and was overbroad (without indicating how).  Both objections are overruled.  It is self-evident that the SI seeks information relevant to Plaintiffs’ allegations.  Defendant fails to support its objection that the SI is in, some unspecified way, overbroad with arguments.  Arguments based on third party privacy are inapplicable to an SI that asks a yes or no question and does not refer to any particular third party.  Defendant is required to provide a further response.

SI No. 25

This SI asks Defendant, if the answer to SI No. 24 is yes, to provide details “including the name and address of the complaining person, the address of the unit complained about, the date of the notice regarding the complaint, the names of the tenants complaint about and the reason given for the complaint.”  Defendant responded only with objections that the SI did not seek relevant information or information likely to lead to the discovery of relevant information, that it was compound, not complete in and of itself and was overbroad (without indicating how).  All objections are overruled.  The objections are all overruled.  The SI self-evidently seeks information relevant to Plaintiffs’ allegations.  The objections that the SI is compound, not complete in and of itself, and is overbroad are not supported by argument.  Defendant’s arguments relating to third party privacy are misplaced here as, first and foremost, no such objection was properly made to this SI and second, such an objection is inapplicable where nothing more than identity and contract information of any third parties and the reason for the complaint is sought.  (See Puerto, supra.)  Defendant is required to provide a further response.

SI No. 26

This SI asks Defendant, if the answer to SI No. 22 is yes, to identify “what action was taken by the Association in response to the complaint?”  Defendant responded solely with objections on the grounds that the SI did not seek relevant information or information likely to lead to the discovery of relevant information, was not complete in and of itself and was overbroad (without specifying how).  All objections are overruled.  It is self-evident that the SI seeks information relevant to Plaintiffs’ allegations and Defendant fails to support the objections that the SI is not complete or overbroad in some unspecified manner with argument.  Once again Defendant’s arguments regarding third party privacy are misplaced as no such objection was stated in response to this SI and an SI that seeks to have Defendant identify what actions it took does not clearly impermissibly infringe on third party privacy rights.  Defendant is required to provide a further response.

SI No. 27

This SI asks Defendant, if the answer to SI No. 24 is yes, to identify “what action was taken in response to the complaint?”  Defendant responded only with objections that the SI did not seek relevant information or information likely to lead to the discovery of relevant information, was overbroad (without identifying how) and not complete in and of itself.  All objections are overruled.  As with SI No. 26, it is self-evident that the SI seeks information relevant to Plaintiffs’ allegations and Defendant fails to support the objections that the SI is not complete or overbroad in some unspecified manner with argument.  Defendant’s arguments regarding third party privacy are misplaced as no such objection was stated in response to this SI and an SI that seeks to have Defendant identify what actions it took does not clearly impermissibly infringe on third party privacy rights.  Defendant is required to provide a further response.

VI.           Requests for Sanctions

Plaintiff requests monetary sanctions in the amount of $1200.  The request is not code-compliant in that Plaintiff has failed to cite operative authority.  In support of the request Plaintiff cites Code of Civil Procedure sections 2030(k), 2023(b)(1) and 2031(m).  These sections have been repealed by the Legislature.

Defendant’s request for monetary sanctions in the amount of $2,750 is DENIED.

VII. Conclusion and Order

Plaintiff’s motion to compel further responses to FI No. 17.1(b) and RFA Nos. 3, 4 and 5 is DENIED as to RFA No. 3 and GRANTED as to RFA Nos. 4 and 5 and as to FI No. 17.1(b) as it relates to RFA Nos. 4 and 5.

Plaintiff’s motion to compel further responses to RPD Nos. 3, 4, 5, 6, 7 and 9 (as modified by the Court where applicable) is GRANTED.

Plaintiff’s motion to compel further responses to SI Nos. 5, 13, 18, 19, 20, 22, 23, 24, 25, 26 and 27 (as modified by the Court where applicable) is GRANTED.

Defendant shall serve further responses (except as to RFA No. 3), without objection, within 20 calendar days of this order.

 

 

________________­­­____________ DATED:

_________________________­­­________________________ HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara