2015-00188583-CU-PO

University Management Co. vs. Evergreen Management Co.

Nature of Proceeding: Motion to Compel Form 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. **

Construed as a motion to compel further responses to Plaintiff University Capital Management, Inc.’s (UCMI) Supplemental Interrogatory, UCMI’s motion to compel Defendant Ted Messner (Messner) to serve a further response to Form Interrogatory No. 15.1 is GRANTED.

UCMI is a property management company. In the second amended complaint, UCMI alleges that several defendants, including Messner, disrupted its property management contracts. Messner answered by general denial and raised 21 affirmative defenses.

In February 2017, UCMI served its first set of form interrogatories, including Form Interrogatory No. 15.1. That interrogatory calls for all facts supporting Messner’s denials of material allegations as well as his affirmative defenses. It also calls for identification of documents supporting, and witnesses knowledgeable about, such facts. Messner served objections and some substantive responses in May 2017. The time for UCMI to compel further responses to Form Interrogatory No. 15.1 has passed.

UCMI served it supplemental interrogatory on 10/07/17. Messner sought and received an extension on the time to respond. When he served his responses to the supplemental interrogatory, Messner supplemented some of the information supporting his affirmative defenses, but the supplementation is devoid of specific facts. In other cases he stood by his original response that he raised a defense to preserve it for trial and reserved the right to amend. And he purported to reassert the right to produce documents instead of identifying them.

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

The motion is granted for the reasons stated in UCMI’s Joint Separate Statement.

Messner’s request for an order directing counsel to resume the meet-and-confer process is denied. The deficiencies in Messner’s supplemental response are obvious, and his request for additional efforts at an informal resolution appears to be dilatory. His promise that further responses are forthcoming–after an extension on the time to respond was granted–is irrelevant.

Messner’s request for an order denying the motion on grounds UCMI’s separate statement is defective is denied as well. The separate statement substantially complies with CRC 3.1345.

No later than 2/05/18, Messner shall serve verified further responses to the portion of Form Interrogatory 15.1 addressing his Affirmative Defenses Nos. 2-7 and 9-20. As to affirmative defenses about which Messner has acquired no information since he served his initial responses, he shall so state or otherwise respond in compliance with CCP § 2030.220(c). Messner’s responses that he raised a defense to preserve it for trial, that “discovery is ongoing” and that he reserves the right to amend the responses shall be omitted. The same goes for indications he will produce documents in lieu of identifying them. Messner failed to cite CCP § 2030.230, and he failed to “specify” any writings under that section. Consequently he must identify responsive writings per the call of the interrogatory.

Nothing bars Messner from withdrawing any affirmative defense he concludes lacks factual support.

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 $560 (2 hrs @ reasonable rate of $250/hr + $60 filing fee). 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