2015-00188583-CU-PO

University Management Co. vs. Evergreen Management Co.

Nature of Proceeding: Motion to Compel Special Interrogatories (Ted Messner)

Filed By: Radcliffe, Scott E.

** If any party requests oral argument, then at the time the request is made, the requesting party shall inform the court and opposing counsel of the specific issue(s) on which oral argument in sought. **

Plaintiff University Capital Management, Inc.’s (UCMI) motion to compel Defendant Ted Messner (Messner) to serve further responses to its first set of special interrogatories is GRANTED in part and DENIED in part.

UCMI is a property management company. In the second amended complaint, UCMI alleges that several defendants, including Messner, disrupted its property management contracts.

UCMI served the special interrogatories on 10/07/17. Relevant for present purposes are interrogatories aimed at Messner’s insurance coverage and interrogatories seeking identification of documents supporting Messner’s affirmative defenses.

After receiving two extensions, Messner served unverified and incomplete responses to the special interrogatories. Messner objected that the interrogatories are duplicative of form interrogatories and therefore harassing. He also objected that the interrogatories seek information protected by the attorney-client privilege and/or work product doctrine. And he objected to the extent the interrogatories prematurely call for expert disclosures.

Counsel met and conferred unsuccessfully. Trial is set to commence on 5/14/18.

Messner’s request for an order directing counsel to resume the meet-and-confer process is denied.

Messner’s objections are all overruled with one exception: where interrogatories direct Messner to identify bates-stamped documents by author, date and title, Messner need only identify them by bates numbers. However, Messner must identify by title, date and author (if known) documents that have not been bates-stamped in this case.

With respect to objections based on attorney-client privilege and work product, Messner has not established that such protections apply. The interrogatories do not call for production of any documents. UCMI has only asked Messner to identify documents. Identification does not reveal the specific contents any document. Moreover, to the extent Messner already produced privileged documents, the privileges have been waived.

The court is aware that requiring Messner to identify documents supporting a specific defense could give UCMI some insight into his counsel’s view of the case. But such identification does not intrude upon the work product doctrine more than contention interrogatories calling for all facts supporting a particular allegation in a complaint.

Such discovery is routine.

The court is not persuaded Messner’s objection, that Special Interrogatory No. 3 is not reasonably calculated to lead to discovery of admissible evidence, has merit. That interrogatory calls for the net amount of coverage remaining on Messner’s insurance policies. CCP § 2017.210 governs discovery of insurance information, and it does not expressly indicate that discovery of amounts paid or remaining under a policy are discoverable. That being said, § 2017.210 was intended to provide insight into the availability of insurance coverage, since such availability is “’frequently the controlling factor in determining the manner in which a case is prepared for trial.’” (Catholic Mut. Relief Society v. Superior Court (2007) 42 Cal.4th 358, 373.)

Nothing in this ruling requires Messner prematurely to disclose expert materials. The time for expert disclosures is set by statute.

No later than 2/05/18, Messner shall serve verified further responses, without objections, to Special Interrogatories Nos. 1-3 and 6-26.

Pursuant to CCP § 2033.300(d), the court imposes a monetary sanction against Messner and his counsel, Weintraub Tobin Chediak Coleman Grodin Law Corporation, in the amount of $310 (1 hr @ reasonable rate of $250/hr + $60 filing fee). Some of Messner’s opposition was substantially justified, and a greater sanction is unwarranted. Messner and his counsel shall pay the sanction no later than Feb. 22, 2018. If Messner and his counsel fail to pay the sanction by such date, then UCMI may lodge for the court’s signature a formal order awarding sanctions, which may be enforced as a separate judgment.

Messner’s counter-request for a monetary sanction is DENIED.