Case Number: GC050964 Hearing Date: February 13, 2015 Dept: A
Delacey at Green HOA v Green Street Venture

DISCOVERY MOTIONS

Calendar: 18
Case No: GC050964
Date: 2/17/15

RELIEF REQUESTED:
1. Defendant, Suffolk Construction Company, Inc.
a) Order compelling Plaintiff to serve further responses to form interrogatories
b) Order compelling Plaintiff to serve further responses to special interrogatories
c) Order compelling Plaintiff to serve further responses to requests for admission

2. Plaintiff, Delacey at Green Homeowners Association
a) Order compelling Suffolk to serve further responses to form interrogatories
b) Order compelling Suffolk to serve further responses to requests for admission

DISCUSSION:
This case arises from the Plaintiff’s claim that the Defendants were negligent when they constructed a residential condominium project in Pasadena.
Trial is set for March 2, 2015.

This hearing concerns five discovery motions filed by the parties to obtain orders compelling further responses to written discovery.

1. Three Motions of Defendant, Suffolk Construction Company, Inc.
The Defendant has filed three motions to seek orders compelling the Plaintiff to serve further responses to the following 495 items of discovery:

1) form interrogatories 305.6, 305.14, and 312.1;
2) special interrogatories 1 to 246; and
3) requests for admission 1 to 246.

The Defendant’s motions are timely because they were filed within the required time period after the Plaintiff served its responses on December 1, 2014.
CCP section 2030.300 and 2033.290 both require the moving party to file a declaration that states facts demonstrating a good faith attempt to resolve the dispute informally. The purpose of the meet and confer requirement is to encourage the parties to make a serious attempt to work out their differences informally so as to avoid the necessity for a formal order. Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal. App. 4th 1006, 1016. This process will lessen the burden on the Court and reduce the unnecessary expenditure of resources by litigants through the promotion of informal, extrajudicial resolution of discovery disputes. Id.
The Court’s determination of whether an attempt at informal resolution is adequate involves the exercise of discretion. Id. The level of effort at informal resolution which shows a reasonable and good faith attempt depends upon the circumstances. Id. The history of the litigation, the nature of the interaction between counsel, the nature of the issues, the type and scope of discovery requested, the prospects for success and other similar factors can be relevant. Judges have broad powers and responsibility to determine what measure and procedures are appropriate in varying circumstances. Id. A trial judge’s perceptions on such matters, inherently factual in nature at least in part, must not be lightly disturbed. Id.

A review of the handful of paragraphs in the declarations submitted by the Defendant’s attorney, Scott Sterling, in support of these voluminous discovery motions reveals no facts demonstrating that a good faith attempt was made to resolve the dispute informally. Instead, Mr. Sterling refers to a letter in untabbed exhibit C that it called a “meet and confer” correspondence.
A review of the letter in exhibit C reveals that it was sent late in the time period to resolve these disputes informally. The Plaintiff served its responses on December 1, 2014. Under CCP sections 2030.300 and 2033.290, the Defendant had 50 days to seek an informal resolution of a discovery dispute that involves 495 items of discovery. A reasonably appraoch would have been to make a prompt start on attempting to meet and confer in light of the number of items to discuss.
But Mr. Sterling waited 36 days before sending a letter dated Wednesday, January 7, 2015. Further, a review of the letter reveals no serious effort was made to address the Plaintiff’s objections in order to work out the differences informally. Instead, Mr. Sterling summarily discussed the Plaintiff’s objections and then demanded that the Plaintiff serve further responses to the hundreds of items within 5 days, or by Monday, January 12, 2015 because the Defendant needed to file its motions to compel further responses..
In addition, Mr. Sterling’s discussion is inaccurate. For example, the Plaintiff objected that the discovery items were compound, conjunctive, and disjunctive. Mr. Sterling mentions the objection, but then discusses the law regarding a different objection, which was vague and ambiguous. Since the Plaintiff did not object that the discovery items were vague and ambiguous, Mr. Sterling’s letter does not address the Plaintiff’s actual objections. This is not a bona fide effort to meet and confer.
Further, the Defendant’s decision to wait until late in the 50 day time period coupled with the demand for responses to hundreds of items of discovery within 5 days was not a good faith effort to resolve the disputes. In addition, this lack of promptness created the need for a hasty response from the Plaintiff because the Defendant had only a few days remaining to file motions to compel further responses. If the Defendant had not waited 36 days before sending a letter, then the parties would have had more time to make an effort to resolve this dispute over several hundreds of items of discovery.
Accordingly, a review of the Defendant’s motions does not reveal any facts demonstrating that the Defendant made a good faith and serious effort to work out the differences informally. Instead, the Defendant sent out the meet and confer letter in a shallow attempt to comply with the statutory requirements that are designed to lessen the burden on the Court and reduce the unnecessary expenditure of resources by litigants.
Further, the Plaintiff’s objections have merit. For example, in every request for admission, the Defendant drafted language that included the phrase “and/or”. In request for admission 1, the Defendant requested that the Plaintiff admit that it had no facts that support its contention that the Defendant was responsible for causing any alleged construction defects “and/or” property damage.
The phrase “and/or” indicates that the Plaintiff’s objection that the request is compound has merit. The Defendant is seeking an admission that the Plaintiff has no facts supporting contentions about two, separate items:

1) construction defects; and
2) property damage.

Further, the request is subject to a merited objection that it is conjunctive and disjunctive because the Plaintiff has to admit both or neither request, i.e., admit that it has no facts about both construction defects and property damage or deny that it has no facts about both constructions defects and property damage. The Defendant should have drafted two separate requests for admission to avoid this facially apparent problem which led to proper objections.

Finally, a review of the discovery efforts by the Defendant reveals that it answered the First Amended Complaint on June 7, 2013. The Defendant then waited one year, four months, and twenty days, or until October 27, 2014, to serve this written discovery. This does not indicate that the Defendant acted with diligence in seeking to engage in discovery.

Therefore, the Court will deny this Defendant’s three discovery motions because the Defendant’s motions do not include facts demonstrating a good faith effort to meet and confer.

2. Two Motions of Plaintiff, Delacey at Green Homeowners Association
The Plaintiff has filed two motions to seek orders compelling the Defendant to serve further responses to the following 157 items of discovery:

1) form interrogatories 17.1, 324.1, 325.1, 325.2, 325.3, and 325.4; and
2) requests for admission 30 to 33, 40, 41, 46, 47, 54 to 59, 66, 67, 72, 73, 80 to 83, 87, 90, 94 to 100, 110, 111, 112, 119, 120, 121, 131 to 139, 149 to 151, 158 to 160, 170 to 180, 193 to 196, 205 to 208, 221 to 226, 230, 233, 237 to 241, 248, 249, 254, 255, 262 to 265, 269, 272, 276 to 278, 282, 285, 289 to 293, 300, 301, 306, 307, 314 to 317, 321, 324, 328 to 332, 339, 340, 345, 346, 353 to 358, 365, 366, 371, 372, 379 to 382, 386, 389, an 393 to 411.

The Plaintiff’s motions are timely because they were filed within the required time period after the Defendant served its responses on December 8, 2014.
CCP section 2030.300 and 2033.290 both require the moving party to file a declaration that states facts demonstrating a good faith attempt to resolve the dispute informally. The Plaintiff’s attorney, Mitchell Leverett, has submitted a declaration in which he provides facts indicating that he made a good faith attempt to resolve this dispute informally. Mr. Leverett’s correspondence indicates that he discussed and analyzed the Defendant’s responses, offered explanations for his arguments, and offered to extend the deadline on the motion so that the parties could continue to meet and conferred in an effort to resolve the dispute informally. In response, the Defendant declined to extend the deadline and stated that its objections had merit.

a. Form Interrogatories
Form interrogatory 17.1 seeks information regarding each response to a request for admission that is not an unqualified admission. In response to this standard, form interrogatory, the Defendant served the following objections: improper preface, not full and complete, compound, conjunctive, disjunctive, violates CCP section 2033.060, overbroad, vague, ambiguous, irrelevant, not calculated to lead to the discovery of admissible evidence, attorney-client privilege, work product, calls for premature disclosure of expert opinion, burdensome and oppressive, lacks foundation, and assumes facts.
Under California law, the objecting party has the burden of justifying its objections when the propounding party requests that the Court order further responses. Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221. This imposes the burden on the Defendant to proceed through every objection and to demonstrate that each objection has merit. The Defendant does not meet this burden. Further, the objections lack merit, e.g., there is no objection based on “improper preface” and objections that form interrogatory 17.1 is not full and complete, is compound, conjunctive, disjunctive, vague, ambiguous, or irrelevant lack any merit. These objections may have been cut and pasted from computer memory and not part of a meaningful response to the interrogatory.
Accordingly, the Court will order the Defendant to serve a further response without objections to form interrogatory 17.1.

Form interrogatories 324.1, 325.1, 325.2, 325.3, and 325.4 are construction defect interrogatories that seek information regarding affirmative defenses, contentions that other parties contributed to the construction defect claim, and the contentions regarding the Plaintiff’s damages and costs. In response to each, the Defendant served the same objections: attorney-client privilege, work product, premature disclosure of expert opinion, discovery ongoing, and trial strategies not determined.
Under California law, the objecting party has the burden of justifying its objections when the propounding party requests that the Court order further responses. Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221. This imposes the burden on the Defendant to proceed through every objection and to demonstrate that each objection has merit. The Defendant does not meet this burden.
Instead, the Defendant argues that it met its discovery objections because it needs to obtain information from its experts, which it has not yet done, and it provided the information it was able to gather. However, this does not justify the objections in its response. On the contrary, these arguments about the need to obtain more information relate to a response under CCP section 2030.220(c) that the Defendant party does not have personal knowledge sufficient to respond fully to an interrogatory after making a reasonable inquiry to obtain the information, but are not relevant to the Defendant’s burden of justifying its objections.
The Defendant also argues that the interrogatories are premature because expert depositions have not yet commenced. It appears that the Defendant’s attorney is claiming that he is unaware of the opinions that his own experts will provide. This indicates that the Defendant did not make a reasonable inquiry because it did ask its retained experts for the information needed to draft responses.

Therefore, the Court will order the Defendant to serve further responses without objections to the Plaintiff’s form interrogatories.

The Plaintiff did not request any discovery sanctions.

b. Requests for Admission
The numerous responses at issue consisted solely of the following identical objections: improper preface, not full and complete, compound, conjunctive, disjunctive, violates CCP section 2033.060, overbroad, vague, ambiguous, irrelevant, not calculated to lead to the discovery of admissible evidence, attorney-client privilege, work product, calls for premature disclosure of expert opinion, burdensome and oppressive, lacks foundation, and assumes facts.
The Plaintiff served the discovery on June 16, 2014. The Defendant obtained a protective order on November 7, 2014 that extended the time it had to draft the responses that it served on December 8, 2014. Accordingly, the Defendant obtained a protective order and had nearly six months to serve responses that include the same objections.

Under California law, the objecting party has the burden of justifying its objections when the propounding party requests that the Court order further responses. Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221. This imposes the burden on the Defendant to proceed through every objection in each of its responses and to demonstrate that each objection has merit. The Defendant did not meet this burden because it does not discuss each request and each objection it made.
For example, request for admission 30 sought the admission that the installation of a HVAC at the project by Atlas Air Conditioning Company was defective. The Defendant makes no effort to justify any of the objections that it made to this request, e.g., objections based on the attorney-client privilege or that the request is overbroad, vague, ambiguous, or irrelevant.
Request for admission 31 sought the admission that the installation of the plumbing was defective. The Defendant did not justify any of the objections it made, which were the same objections made to request for admission 30.
It is reasonable to draw the inference from the Defendant’s decision to repeat the same objections to each request for admission that the Defendant made no effort to draft a response that was individually fashioned to address the request at issue; instead, he appears to have merely cut and pasted hundreds of times the same list of objections that are stored in a computer’s memory.

Finally, the Defendant argues that the Plaintiff’s motions are defective because it seeks an order compelling responses as opposed to an order compelling “further responses”. However, there is no requirement that the caption for a motion include the term “further” when seeking supplemental responses. Further, a review of the Plaintiff’s notice of motion reveals that the Plaintiff is seeking further responses under the correct authority, CCP section 2033.290, on the ground that the Defendant’s objections lack merit. There are no grounds to find that the notice of motion is defective.

Therefore, the Court will grant the Plaintiff’s motion and order the Defendant to server further responses without objections to the Plaintiff’s requests for admissions.

The Plaintiff did not seek any discovery sanctions.

RULING:
1. Defendant, Suffolk Construction Company, Inc.
Deny all three motions to compel further responses.

2. Plaintiff, Delacey at Green Homeowners Association
Grant both motions to compel further responses and issue order
a) compelling Suffolk to serve further responses without objections to the Plaintiff’s form interrogatories
b) compelling Suffolk to serve further responses without objections to the Plaintiff’s requests for admission.