Case Number: 14UA0717    Hearing Date: July 24, 2014    Dept: A11

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES – NORTH DISTRICT

SPARKLE & CO., LLC, )
) Case Number 14UA0717
Plaintiffs, )
) ORDER AFTER HEARING
V )
) Date of Hearing:
DAN CORTES dba DANS ) July 24, 2014
TRANSMISSIONS, ) Dept. A-11
) Judge Randolph A. Rogers
Defendant. )
____________________________________)

The Defendant’s motion for summary judgment came on for hearing on July 17, 2014. Plaintiff Sparkle & Co., LLC appeared through its counsel of record, _________________________. Defendant Dan Cortes dba Dans Transmissions appeared through his counsel of record, ___________________________. The Court, having received and reviewed the pleadings of record and evidence submitted and having considered argument of counsel, it is hereby ORDERED:

The motion of Defendant for summary judgment is DENIED.

The Defendant’s motion for deemed admissions, to compel production of document, and to compel responses to form and special interrogatories came on for hearing on July 17, 2014. Plaintiff Sparkle & Co., LLC appeared through its counsel of record, _________________________. Defendant Dan Cortes dba Dans Transmissions appeared through his counsel of record, ___________________________. The Court, having received and reviewed the pleadings of record and evidence submitted and having considered argument of counsel, it is hereby ORDERED:

The motion of Defendant for deemed admissions and to compel responses to form and special interrogatories and production of documents is DENIED.

The Plaintiff’s motion for deemed admissions, to compel deposition attendance, to compel production of documents, and to compel answers to interrogatories came on for hearing on July 17, 2014. Plaintiff Sparkle & Co., LLC appeared through its counsel of record, _________________________. Defendant Dan Cortes dba Dans Transmissions appeared through his counsel of record, ___________________________. The Court, having received and reviewed the pleadings of record and evidence submitted and having considered argument of counsel, it is hereby ORDERED:

The motion of Plaintiff to compel responses to requests for admission, form interrogatories, and to compel Defendant’s deposition is GRANTED with Defendant to provide verified responses, without objection, and submit to deposition, on or before July 25, 2014. The Court retains jurisdiction over Plaintiff’s request for sanctions pending further order of the Court.

SO ORDERED this the _____ day of July, 2014.

______________________
RANDOLPH A. ROGERS,
JUDGE

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES – NORTH DISTRICT

SPARKLE & CO., LLC, )
) Case Number 14UA0717
Plaintiffs, )
) STATEMENT OF DECISION
V )
) Date of Hearing:
DAN CORTES dba DANS ) July 24, 2014
TRANSMISSIONS, ) Dept. A-11
) Judge Randolph A. Rogers
Defendant. )
____________________________________)

The Court bases the Order After Hearing of this date upon the following Statement of Decision:

1. The present case arises out of a rental dispute for commercial property located at 38744 6th Street East, Unit E, Palmdale, CA 93550. The lease was originally signed between Defendant Dan Cortes dba Dan’s Transmission and Auto Repair (“Defendant”) as tenant, and Jalal & Gail Haddad HMJ&L, Inc. (“HMJ”), as landlord. At some point after the lease was signed, a divorce occurred between Jalal and Gail Haddad, and the property was transferred to Gail Haddad as her sole and separate property. Plaintiff Sparkle & Co., LLC. (“Plaintiff”), was thereafter formed, and ownership of the property was transferred to Plaintiff.

2. A dispute apparently arose over the amount of rent due, and payment allegedly became irregular. A three-day notice to pay rent or quit was given on March 5, 2014, alleging rents for the calendar months of January, February, and March of 2014. Plaintiff filed the present action on March 21, 2014.

3. Discovery commenced. On May 6, 2014, several requests for discovery were served by Defendant on Plaintiff, including Defendant’s Requests for Admissions (“DRFA”), Requests for Production of Documents (“DRFP”), and form and special interrogatories (“DRogs”). Counsel for both parties appeared to agree to extend the discovery deadline to July 3, 2014.

4. Plaintiff then sent to Defendant its own set of discovery requests, including form interrogatories (“PRogs”), Requests for Production of Documents (“PRFP”), Requests for Admissions (“PRFA”), and a notice of deposition for Dan Cortes. Defendant responded on June 29, 2014 with objections.

5. On June 30, 2014, counsel for the parties apparently met to discuss the progress of discovery. Disagreements appeared to arise over whether a discovery cutoff existed and had passed.

6. It appears that responses were served on Defendant by Plaintiff on July 3, 2014, the prior agreed upon deadline for providing discovery responses.

7. Defendant filed the motion for summary judgment on July 11, 2014, and Plaintiff filed its written Opposition on July 16, 2014.

8. Defendant filed its motion to deem RFAs as admitted and compel answers to RFPs and Rogs on July 2, 2014. Plaintiff filed its Opposition on July 7, 2014. Defendant filed its reply on July 15, 2014. Plaintiff filed its own motions to compel on July 11, 2014.

9. Standard for summary judgment – A party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. Cal. Code Civ. Proc. § 437c(a). To prevail on a motion for summary judgment, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Cal. Code Civ. Proc. § 437c(c). In other words, the opposing party cannot present contrary admissible evidence to raise a triable factual dispute. “For purposes of motions for summary judgment and summary adjudication: [¶] (1) A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on that cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The defendant or cross-defendant may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.” Cal. Code Civ. Proc. § 437c(p)(1).

10. “[H]ow the parties moving for, and opposing, summary judgment may each carry their burden of persuasion and/or production depends on which would bear what burden of proof at trial. Again, in Reader’s Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 208 Cal.Rptr. 137, 690 P.2d 610, we held to the effect that the placement and quantum of the burden of proof at trial were crucial for purposes of summary judgment. [Citation.] . . . Thus, if a plaintiff who would bear the burden of proof by a preponderance of evidence at trial moves for summary judgment, he must present evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not –otherwise, he would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851. “Summary judgment law in this state no longer requires a plaintiff moving for summary judgment to disprove any defense asserted by the defendant as well as prove each element of his own cause of action . . . . All that the plaintiff need do is to ‘prove[ ] each element of the cause of action[.]’” Id. at p. 841.

11. The burden of persuasion remains with the party moving for summary judgment. Aguilar, supra, 25 Cal.4th 826, at pp. 850, 861. When defendant moves for summary judgment in those circumstances in which the plaintiff would have the burden of proof by a preponderance of the evidence, the defendant must accomplish at least one of two things. First, the defendant must present evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact was true. Id. at p. 851. In the alternative, the defendant must demonstrate that an element of the claim cannot be established, by presenting evidence that the plaintiff does not possess and cannot reasonably obtain needed evidence. Id. To obtain summary judgment, a defendant may conclusively negate an essential element of plaintiff’s causes of action. Nevertheless, a defendant is not required to do so. Aguilar, supra, 25 Cal.4th at p. 853. As the Court of Appeals has observed, “Summary judgment in favor of the defendant will be upheld when the evidentiary submissions conclusively negate a necessary element of the plaintiff’s cause of action or show that under no hypothesis is there a material issue of fact requiring the process of a trial.” Biscotti v. Yuba City Unified School Dist. (2007) 158 Cal.App.4th 554, 557-58.

12. When ruling on a summary judgment motion, the trial court must consider all inferences from the evidence, even those contradicted by the moving party’s evidence. The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. Murillo v. Rite Stuff Food Inc. (1998) 65 Cal.App.4th 833, 841. In determining whether the facts give rise to a triable issue of material fact, “‘[a]ll doubts as to whether any material, triable, issues of fact exist are to be resolved in favor of the party opposing summary judgment . . . .’” Gold v. Weissman (2004) 114 Cal.App.4th 1195, 1198-99. “In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true.” Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 179.

13. Defendant argues that it is entitled to summary judgment under the terms of Civil Code §827 and §1962. Civil Code §827 provides that, for month to month tenancies, a landlord may change terms of the lease after giving at least 30 days written notice. Cal. Civ. Code §827(a). Civil Code §1962 provides that an action for unlawful detainer under CCP §1161(2) will not lie if a landlord fails to disclose certain information to the tenant regarding identity, management, and method of payment regarding the property. Cal. Civ. Code §1962(c). Further, new owners are responsible for notifying the tenant of such changes in ownership, and are obligated to provide the same information to tenant else they are barred from bringing a CCP §1161 action for unlawful detainer. Id.

14. Defendant asserts that it never received the information required under Civil Code §1962. Motion, Declaration of Dan Cortes (“Cortes Declaration”) at ¶¶ 5 and 6. Defendant further asserts that he never “received notice of the account in a financial institution into which rent payments may be made,” Id. at ¶8, and has paid $1,550 in rent that was accepted for several months. Id. at ¶11.

15. In Opposition, Plaintiff asserts that it gave notice of the ownership transfer to Defendant. Opposition, Declaration of Gail Haddad (“Haddad Declaration”) at ¶6. In addition, it states that it sent written notice on the method of payment and rent increase in the calendar year 2013. Id at ¶¶9 and 11.

16. Based on the forgoing alone, it is clear that there are triable issues of material fact going to whether or not Plaintiff could initiate an unlawful detainer suit.

17. Accordingly, the motion of Defendant for summary judgment is DENIED.

18. Discovery Motions – General considerations – Under CCP §§2030.300 (interrogatories), 2031.310 (demand for production) and 2033.290 (requests for admissions), a party who receives a response to an interrogatory, production demand or request for admission may move for an order compelling a further response if a representation of the inability to comply is inadequate, incomplete or evasive, the response is evasive or incomplete, or an objection in the response is without merit or too general.

19. Timeliness – A motion to compel further responses must be brought within 45 days of the service of the original responses (to which further responses are requested) unless the parties agree, in writing, to extend that date. See CCP §2030.300(c) (interrogatories) – “Unless notice of this motion is given within 45 days of the service of the response, or any supplemental response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories.” See also CCP §§2031.310(c) (demand for production) and 2033.290(c) (requests for admissions) (likewise providing for 45 days).

20. Deemed Admission – A party may obtain discovery by a written request that the other party admit “the truth of specified matters of fact, opinion relating to fact, or application of law to fact. A request for admission may relate to a matter that is in controversy between the parties.” CCP § 2033.010. Within 30 days after service of the requests for admissions, the party to whom the requests are directed “shall respond in writing under oath separately to each request.” CCP §§ 2033.210 and 2033.250. “Unsworn responses are tantamount to no responses at all.” Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.

21. If a party fails to file a timely response to requests for admission, “[t]he requesting party may move for an order that the . . . truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction . . . . [¶] The court shall make this order, unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220. It is mandatory that the court impose a monetary sanction . . . on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.” CCP §2033.280, subds. (b), (c).

22. Defendant here asks that the Court to deem the DRFAs admitted due to Plaintiff’s failure to answer. Code of Civil Procedure §2033.280 requires a Court to deem RFAs as admitted where a party fails to timely respond and thereafter fails to provide responses in substantial compliance.

23. The problem with Defendant’s request, however, is that Plaintiff has not been untimely in its response. Rather, Defendant filed the present motion to compel responses before Plaintiff’s responses were due. As noted above, the parties had agreed to a discovery response deadline of July 3, 2014. Although the parties appeared to disagree over the existence of a discovery cut-off, it also appears that Plaintiff was willing to respond to discovery by the prior agreed upon deadline. Declaration of Jim Schaefer (“Schaefer Declaration”) at ¶7. It appears, however, that it was Defendant who asserted such a prior agreed upon deadline for discovery was unacceptable. Id. Under such circumstances, it cannot be said that a prematurely brought motion to compel can properly be sustained, nor should Plaintiff be subject to the draconian punishment of deemed admissions absent wrongdoing on its part.

24. In its reply, Defendant acknowledges that responses were provided to it on July 3, 2014 by Plaintiff. Defendant therefore modifies its position to arguing it is “entitled to attorney fees for the motions and appearances. Despite the hours spent on each motion and multiple appearances necessitated, Defendant has only requested $300 for each motion, for a total of $1,200.” Reply at 2:28-3:3. However, even if Defendant’s erroneous claim that the motions were brought on July 3 were true (the motions were filed with the Court on July 2, 2014), the motions would still be premature, as the parties had agreed to July 3, 2014 as the deadline for responses. Accordingly, no matter how modest Defendant’s request for sanctions might be, an award of sanctions would not be appropriate.

25. Accordingly, Defendant’s motion to have its RFAs deemed admitted is DENIED in its entirety.

26. With respect to PRFAs, the answers as provided by Defendant consist entirely of the following:

Responding Party objects to this request for admission as it violates Code of Civil Procedures Section 2033.060(d). This request is not full and complete in and of itself and this set of request for admissions contains a prefacer or instruction no approved by the Judicial Council. Plaintiff’s Motion, Exhibit 2.

27. This response is clearly inadequate, particularly given the simplicity involved in some of the questions, such as RFA No.5, which asks Defendant to admit that it “rented the PROPERTY from SPARKLE.” It is hard to see how such a request is “not full and complete in and of itself,” or contains a “preface or instruction” that is impermissible.

28. As such, the responses as served by Defendant clearly fall within the ambit of CCP §2033.290(a), which allows for a motion to compel further responses where the response to an RFA is “evasive or incomplete” or where an objection is “without merit or too general.”

29. Accordingly, the Plaintiff’s motion to compel responses to PRFAs is GRANTED.

30. Further Answer to Interrogatories – Under CCP §2030.300, a party may move for an order compelling further answers to an interrogatory if the responding party provides evasive or incomplete answers or where an objection is without merit or too general.

31. As already noted, Defendant’s motion to compel was brought prematurely.

32. Accordingly, Defendant’s motion to compel responses to form and special interrogatories is DENIED.

33. Defendant’s responses to form interrogatories are, uniformly, that it is “[n]ot reasonably calculated to lead to discovery of relevant, admissible evidence. The request is also vague, ambiguous, over-broad in time and scope, and is an undue burden as this information is equally available to the propounding party either as part of their own documentation or from an alternate source, calls for speculation or a legal conclusion and violates CCP §2031.030.” Plaintiff’s Motion, Exhibit 2. This, in response to questions such as “Does Plaintiff claim the right to possession other than as an owner of the RENTAL UNIT? If so, state the basis of the claim,” Form Interrogatory 70.4, and “Does defendant contend . . . that the NOTICE TO QUIT was defectively served?” Form Interrogatory 72.1.

34. The responses provided by Defendant are clearly deficient.

35. Accordingly, the Plaintiff’s motion to compel further responses to interrogatories is GRANTED.

36. Production of Documents – Under CCP 2031.300, a party that does not receive a timely response may move the Court to compel a response.

37. As discussed above, Defendant brought its motion prematurely, and CCP §2031.300 is not applicable.

38. Accordingly, the Defendant’s motion to compel the production of documents is DENIED.

39. Notice of Deposition and Production of Documents – Code of Civil Procedure §2025.220 allows for a “party desiring to take the oral deposition of any person [to] give notice in writing” containing certain details as to the deposition. Service of the deposition is effective to require the deposed person to “testify, as well as to produce any document . . . , for inspection and copying.” CCP §2025.280(a).

40. Defendant was served a notice of deposition on June 4, 2014, for a scheduled deposition on July 2, 2014. Defendant and counsel were apparently not available for the deposition on that date. The deposition evidently did not take place. Considering the import of Defendant to the present case, Plaintiff clearly has need to depose Defendant.

41. Sanctions – Defendant’s request for sanctions were addressed above, See infra ¶24. Plaintiff also requests monetary sanctions under the provisions governing misuse of discovery, as well as the mandatory monetary sanctions provision.

42. Mandatory sanctions in discovery are statutorily provided for where a party unsuccessfully makes or opposes a motion to compel further responses. See CCP §§ 2030.300(d) (interrogatories); 2031.310(h) (RFPs); 2033.290(d) (RFAs).

43. Sanctions for the misuse of discovery are discretionary under CCP §2023.030(a). The purpose of discovery sanctions is “not to provide a weapon for punishment, . . . but to prevent abuse of the discovery process and correct the problem presented.” Parker v. Wolters Kluwer U.S., Inc. (2007) 149 Cal.App.4th 285, 301.

44. Accordingly, Defendant is to provide verified responses to the requested discovery, without objection, and submit to deposition, on or before July 25, 2014. The Court retains jurisdiction over Plaintiff’s request for sanctions pending further order of the Court.

SO ORDERED AND ADJUDGED this the ______ day of July, 2014.

_____________________________
RANDOLPH A. ROGERS, JUDGE