Case Number: EC068630 Hearing Date: February 14, 2020 Dept: NCD

TENTATIVE RULING

Calendar: 15

Date: 2/14/20

Case No: EC 068630 Trial Date: April 13, 2020

Case Name: Yang v. Ho, et al.

MOTIONS TO COMPEL FURTHER RESPONSES TO DISCOVERY (3)

Moving Party: Defendant Ivy Yang Ho, individually and as Trustee

Responding Party: Plaintiff Van Boi Yang

RELIEF REQUESTED:

Further Responses to Special Interrogatories, Set No. One

Further Responses to Requests for Production of Documents, Set No. One

Order compelling compliance and production of documents plaintiff agreed to produce

DECLARATION SUPPORTING MOTION:

Executed per CCP §§ 2015.5, 2030(l): ok

Reasonable and good faith attempt to resolve informally: ok, Exhibits C-K

FACTUAL BACKGROUND

Plaintiff Van Boi Yang alleges that Yang is on title as tenant in common to real property in Rosemead, and that defendant Ivy Yang Ho, as trustee of the Alex and Ivy Ho Family Trust, is also on title as tenant in common to the same real property. Plaintiff alleges that the real property is divided into two residences delineated as 7941 E. Hellman Avenue and 7939 E. Hellman Avenue, with plaintiff Yang living in the 7941 E. Hellman side of the property and defendant Ho and defendant Alex Ho living on the 7939 E. Hellman side of the property. Plaintiff’s First Amended Complaint alleges that the relationship between Yang and Ho, who are sisters, has broken down so that living on the same property as co-tenants has become untenable, and seeks that the property be partitioned by court sale or pursuant to the agreement by the pleadings by the parties to partition by sale.

Defendant Ho has filed a cross-complaint against Yang, alleging that cross-complainant Ho and cross-defendant Yang are sisters, who co-own the subject property as tenants in common, with each having a right to unimpeded access to the entirety of the subject property. Both units have essentially the same layout, except Unit 7941 has a larger family room, and is 600 square feet larger that Unit 7939.

Cross-complainant alleges that in the years prior to April 2017, cross-complainant and cross-defendant agreed that their mother would live with cross-defendant in Unit 7941, with the mother using the family room in that unit as living quarters. In April of 2017, after the mother passed away, cross-complainant began discussions with cross-defendant for the physical division of the large family room within Unit 7941, because cross-complainant needed additional space for her family, which was not available within Unit 7939. The

FACC alleges that in June of 2017, during a family meeting at the subject property, cross-defendant agreed to divide Unit 7941’s family room by constructing a partition wall within the room, with cross-complainant able to use and have access to the one-half of the divided space via an outside entrance, and cross-defendant able to use the other half and having access through Unit 7941, provided that cross-complainant was able to obtain all necessary approvals and permits from the City of Rosemead for the demolition and construction. The parties agreed that cross-complainant would thereafter have full and exclusive use of Unit 7939 and one-half of the divided family room in Unit 7941, while cross-defendant would have full and exclusive use of Unit 7941, thereby each giving up their right to full and unimpeded access and use of the entire subject property, while they both continued to live on the subject property.

The FACC alleges that cross-complainant has obtained the necessary permits, but cross-defendant continues to inhibit access to Unit 7941, including to the family room, and has refused all access for the construction of the partition wall approved to be built, and as agreed. The FACC seeks a physical partition of the property via a partition wall as designed and approved by the City, or, in the alternative, a partition by sale of the subject property, and also seeks damages for breach of contract.

On December 31, 2019, plaintiff filed a “Notice of Striking Portions of Plaintiff’s/Cross-Complainant Complaint,” stating that plaintiff is striking portions of her complaint, essentially, the first cause of action to quiet title.

On January 31, 2020, the court heard a motion for judgment on the pleadings as to the complaint, which was granted with leave to amend. The FAC was filed on February 4, 2020.

ANALYSIS:

Procedural

The reply objects that the opposition papers were untimely.

Under CCP §1005(b):

“All papers opposing a motion…shall be filed with the court and a copy served on each party at least nine court days… before the hearing.”

Under CRC Rule 3.1300(d), “If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate.”

Here, the opposition papers were served and filed on February 4, 2020 for a February 14 hearing date, only seven court days prior to the hearing, so were three court days late. The court, in its discretion, could refuse to consider the untimely oppositions, but elects not to do so.

The opposition also argues that plaintiff did not sufficiently meet and confer. However, the moving papers include a detailed meet and confer letter, and several efforts to resolve issues prior to the deadline for filing the motions.

Substantive

Under CCP § 2017.010, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action…if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” The section specifically

provides that “Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action,” and that discovery may be obtained “of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition and location of any document, electronically stored information, tangible thing, or land or other property.”

CCP § 2030.300(a) provides that if the party propounding interrogatories deems that an objection “is without merit or too general” or that “an answer to a particular interrogatory is evasive or incomplete”, “the propounding party may move for an order compelling a further response…”

If a timely motion to compel has been filed, the burden is on the responding party to justify any objection or failure to fully respond to discovery. Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221. The granting or denial of a motion to compel is in the discretion of the trial court. Coy, at 221-222. A court should generally consider the following factors:

The relationship of the information sought to the issues framed in the pleadings;

The likelihood that disclosure will be of practical benefit to the party seeking discovery;

The burden or expense likely to be encountered by the responding party in furnishing the information sought.

Columbia Broadcast System, Inc. v. Superior Court (1968) 263 Cal.App.2d 12, 19.

Special Interrogatories Nos. 9, 10

The reply indicates that moving party is withdrawing the request to compel further responses to Special Interrogatories Nos. 27 and 36 through 66 but is requesting further responses to Special Interrogatories Nos. 9, 10, 16, 17, 67, 68, 69, 70, 71, 72, 73, 74, 75, and 76.

The interrogatories request descriptions of all maintenance and improvements plaintiff performed or had performed at the property for the last ten years.

The response is an objection that the interrogatories are overbroad, burdensome, oppressive, exceeds permissible scope of the lawsuit, and not calculated to lead to admissible evidence, “certainly not beyond a five (5) year period.”

Propounding party Ho argues that plaintiff has made a claim for an easement by adverse possession, and maintenance and improvements of the property are relevant to such a claim. It also appears that the partition claim in the FAC seeks offsets, which may be for such monies spent. Although the easement claim has since been dropped, the information sought remains discoverable. The opposition does not justify any of the objections, arguing that such matters are irrelevant if the parties are tenants in common. This may be a valid legal argument, but not sufficient to deny discovery. The motion is granted and further responses, without objection, are ordered to be served.

Special Interrogatories Nos. 16 and 17.

These Requests seek a description in detail of all agreements and contracts entered into with, and all invoices received from, any and all architects, contractors, general contractors, subcontractors, workers or other providers of construction and remodeling services related to the property.

The objections include an objection that the special interrogatories are compound, which appears valid.

Under CCP § 2030.060(f), “No specially prepared interrogatory shall contain subparts, or a compound, conjunctive or disjunctive question.” The questions are compound, and the opposition justifies this objection. The motion as to these interrogatories should be denied.

Special Interrogatories Nos. 67, 68, 69, 70, 71, 72, 73, 74, 75 and 76.

These special interrogatories request information concerning meetings and communications with specified individuals concerning the use of the property and an alleged agreement to divide the property with a wall or by other means. They seek relevant information and are not compound.

The opposition primarily argues that contrary to the representations made in the declaration of necessity, the number of specially prepared interrogatories is unwarranted.

Under CCP § 2030.030, a party may propound to another party “(1) Thirty-five specially prepared interrogatories that are relevant to the subject matter of the pending action.”

Under subdivision (b),

“Except as provided in Section 2030.070, no party shall, as a matter of right, propound to any other party more than 35 specially prepared interrogatories.”

CCP § 2030.040 permits the propounding of more than 35 special interrogatories with a supporting declaration:

“(a) Subject to the right of the responding party to seek a protective order under Section 2030.090, any party who attaches a supporting declaration as described in Section 2030.050 may propound a greater number of specially prepared interrogatories to another party if this greater number is warranted because of any of the following:

(1) The complexity or the quantity of the existing and potential issues in the particular case.

(2) The financial burden on a party entailed in conducting the discovery by oral deposition.

(3) The expedience of using this method of discovery to provide to the responding party the opportunity to conduct an inquiry, investigation, or search of files or records to supply the information sought.

(b) If the responding party seeks a protective order on the ground that the number of specially prepared interrogatories is unwarranted, the propounding party shall have the burden of justifying the number of these interrogatories.”

CCP section 2030.050 provides requirements for the declaration for additional discovery, requiring “a declaration containing substantially the following…” including a paragraph stating

“8. This number of questions is warranted under Section 2030.040 of the Code of Civil Procedure because __________ (Here state each factor described in Section 2030.040 that is relied on, as well as the reasons why any factor relied on is applicable to the instant lawsuit.)”

The declaration here complies with the statute. [Ex. A]. The declaration states that the number is warranted, “because of the complexity and quantity of the existing and potential issues in this case…including the causes of action alleged by Plaintiff and Defendant’s affirmative defenses to the claims asserted against Defendants.” [Ex. A, p. 15, Brenot Decl. ¶ 9].

The moving papers do not set forth any further facts in support of the declaration of necessity or to justify the number of interrogatories, as might be expected. However, the declaration appears facially

compliant, and since the responding party did not bother to seek a protective order, the burden is not on the propounding party to justify the number; the burden remains on responding party to justify objections and failure to completely respond. Moreover, even if the burden had shifted, it appears from a review of the file and the pleadings that at the time this discovery was propounded, there were numerous theories being pursued by plaintiff, which have only recently been streamlined. The motion is not denied on this ground and, other objections are not sufficiently justified in the opposition. The motion accordingly is granted as to these interrogatories, and further responses are required to be served.

Document Requests

CCP § 2031.310 provides that a party demanding a document inspection may move for an order compelling further responses to the demand if the demanding party deems that:….

(3) An objection in the response is without merit or too general.”

Under CCP § 2031.310 (b)(1), “The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand.”

The burden is on the moving party to show both relevance to the subject matter and specific facts justifying discovery. Glenfed Develop. Corp. v. Superior Court (1997, 2nd Dist.) 53 Cal.App.4th 1113, 1117. Once good cause is established by the moving party, the burden then shifts to the responding party to justify any objections made to document disclosure. See Hartbrodt v. Burke (1996, 2nd Dist.) 42 Cal.App.4th 168, 172-174.

The reply indicates that the moving party is withdrawing the request to compel further responses to Requests for Production Nos. 30 and 31, but is requesting further responses to Requests Nos. 39, 40, 49, 50 and 51.

The requests seek documents evidencing communications between plaintiff and each defendant, and documents related to each defendant related to obtaining approvals and permits from the City for a physical interior division in connection with the subject property.

The responses are a series of boilerplate objections, and, as to 39 and 40, a statement that propounding party is already in possession of the documents, and a statement, “Without waiving these objections, Responding Party is unable to comply as documents related to this or the related proceeding as no other documents besides those identified in the prior sentence and in Propounding Party’s possession ever existed.”

This response is not appropriate, as it is not an appropriate response to discovery that the other party already has the documents; propounding party is entitled to the documents responding party has. Any objections are overruled.

To the extent the statements are intended to be a statement of inability to comply, they are not code compliant.

Under CCP section 2031.210, a response shall either be a statement of compliance, a representation that the party lacks the ability to comply, or an objection.

With respect to a statement of compliance, CCP section 2031.220 requires:

“A statement that a party to whom an inspection demand has been directed will comply with the

particular demand shall state that the production, inspection, and related activity demanded will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being make will be included in the production.”

With respect to a statement of inability to comply, CCP section 2031.230 requires:

“A representation of inability to comply with the particular demand for inspection shall affirm that a diligent search and a reasonably inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.”

The motion is granted, and further code-compliant responses are ordered to be served.

Sanctions

CCP § 2030.300 (d) provides that the court “shall impose a monetary sanction…against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, 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.” A similar provision applies to motions to compel further responses to document demands. CCP § 2031.310 (h).

Under CCP § 2023.010, misuse of the discovery process includes “(e) making, without substantial justification, an unmeritorious objection to discovery”; and “(f) making an evasive response to discovery.” Where there has been a misuse of the discovery process, under Section 2023.030(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 burden is on the party subject to sanctions to show substantial justification or injustice. Mattco Forge, Inc. v. Arthur Young & Co. (1990, 2nd Dist.) 223 Cal.App.3d 1429, 1436.

Here, the responses served included objections which responding party has failed to justify and responding party has made the motions necessary. Sanctions are awarded to the moving party. The sanctions sought in the moving papers are $5,685 (Special), $6,055 (Docs) and $4,560 (Comply), which are quite high. The defendant is claiming 3.5 hours of time at $450 per hour are sought in each motion for appearing at the hearing. Since the motions will be heard together, this time is awarded only once for a total time of 2 hours, not 3.5 hours. The attorney time needed to prepare the motion and reply is limited to 6 hours at $450.00 per hour exclusive of time for attending the hearing.

Sanctions sought in the opposition papers should be denied.

RULING:

Motion to Compel Plaintiff’s Further Responses to Specific Special Interrogatories, Set One:

The court in its discretion has reluctantly considered the opposition papers, which were filed only seven court

days before the hearing, so were two court days late, and evidently were not promptly or completely served on

the other side. Counsel for plaintiff is cautioned that the court may in the future refuse to consider papers not filed and served in conformity with the rules, statutes and deadlines governing this litigation.

The court notes that the reply indicates that moving party is withdrawing the request to compel further responses to Special Interrogatories Nos. 27 and 36 through 66 but is requesting further responses to Special Interrogatories Nos. 9, 10, 16, 17, 67, 68, 69, 70, 71, 72, 73, 74, 75, and 76.

Motion is GRANTED as to Special Interrogatories Nos. 9, 10, 67, 68, 69, 70, 71, 72, 73, 74, 75 and 76.

Plaintiff and cross-defendant Van Boi Yang is ordered to serve further verified responses to the subject Special Interrogatories, without objection, within ten days. The further responses are to fully comply with the requirements under the Discovery Act, including, under CCP § 2030.210 (a)(1) answers “containing the information sought to be discovered.” The responding parties must also comply fully with CCP § 2030.220:

“(a) Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits.

(b) If an interrogatory cannot be answered completely, it shall be answered to the extent possible.

(c) If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.”

The court has reviewed the objections and finds them to be without merit and that responding party has failed in opposition to justify them, so objections are overruled.

Motion is DENIED as to Special Interrogatories Nos. 16 and 17. Plaintiff has appropriately objected that the interrogatories are compound.

Monetary sanctions in the amount of $3,600.00 [$5,685 requested] plus filing fee of $60.00 are awarded against plaintiff and cross-defendant Van Boi Yang payable within 30 days. CCP sections 2030.300(c), 2023.010 (e) and (f), and 2023.030(a).

Monetary sanctions sought in the opposition are DENIED.

Motion to Compel Plaintiff’s Further Responses to Specific Requests for Production of Documents, Set No. One, and Production of Responsive Documents:

The court in its discretion has reluctantly considered the opposition papers, which were filed only seven court days before the hearing, so were two court days late, and evidently were not promptly or completely served on the other side. Counsel for plaintiff is cautioned that the court may in the future refuse to consider papers not filed and served in conformity with the rules, statutes and deadlines governing this litigation.

The court notes that the reply indicates that moving party is withdrawing the request to compel further responses to Requests for Production Nos. 30 and 31, but is requesting further responses to Requests Nos. 39, 40, 49, 50 and 51.

Motion is GRANTED.

Plaintiff and cross-defendant Van Boi Yang is ordered to serve further responses to Requests for Production of Documents, Set One, Requests Nos. 39, 40, 49 and 50, without objection and to permit inspection and copying of all responsive documents within ten days. The further responses must fully comply with CCP §§ 2031.210,

2031.220 and 2031.230, including for each request either 1) a statement that responding parties will comply with the particular demand, including a statement that the production, inspection, and related activity demanded will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of plaintiff and to which no objection is being make will be included in the production, or 2) a statement of inability to comply, which statement shall specify whether any inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party, and which sets forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item. Further responses are to be without objection, as the court finds the objections asserted to be without merit. The court does not find acceptable a response that states documents are already in the possession of the propounding party.

Monetary sanctions in the amount of $2,700.00 [$6,055 requested] plus filing fee of $60.00 are awarded against plaintiff and cross-defendant Van Boi Yang payable within 30 days. CCP sections 2031.310 (h), 2023.010 (e) and (f), and 2023.030(a).

Monetary sanctions sought in the opposition are DENIED.

Motion to Compel Plaintiff’s Compliance and Production of Documents Plaintiff Agreed to Produce in Discovery:

The court in its discretion has reluctantly considered the opposition papers, which were filed only seven court days before the hearing, so were two court days late, and evidently were not promptly or completely served on the other side. Counsel for plaintiff is cautioned that the court may in the future refuse to consider papers not filed and served in conformity with the rules, statutes and deadlines governing this litigation.

Motion is MOOT in light of the representation in the reply that since the filing of the motion, production has been made as to Requests Nos. 7, 10, and 27, and that due to the abandonment by plaintiff of the claims asserted in paragraphs 13 and 16 of the original complaint, the documents sought in Requests Nos. 32, 34, 36, 37 and 38 are no longer needed. If the production made is not satisfactory, the parties must meet and confer, and, if appropriate, a further motion must be made with an updated separate statement.

Monetary sanctions in the amount of $2,700.00 [$4,560 requested] plus filing fee of $60.00 are awarded against plaintiff Van Boi Yang, payable within 30 days. CCP sections 2031.320, 2023.010 (e) and (f), and 2023.030(a).

Monetary sanctions sought in the opposition are DENIED.