Motions to Compel Discovery (Judge James Herman)

The State House Inc vs AB Design Studio Inc et al

TENTATIVE RULING:

For the reasons set forth herein, the motion of plaintiff The State House is granted in part and denied in part. On or before December 14, 2016, defendant AB Design Studio, Inc., shall serve further verified responses, in a form complying with the Code of Civil Procedure and without objection except as to privilege, as to form interrogatories, set one, Nos. 311.1, 311.2, 311.3, 311.4, 314.1(a), 321.2, 321.4, 321.6, 321.9, 321.10, 321.11, 322.1(g), 322.2, 322.3, and 325.3(d). AB Design Studio shall concurrently produce all documents necessary to comply with Code of Civil Procedure section 2030.230, where a response invokes that section, and serve a privilege log where documents or information are withheld on the grounds of privilege. In all other respects, including the request for sanctions, the motion is denied.

Background:

This is an action in which plaintiff The State House, Inc., as general partner of Santa Barbara Beach House Hotel, LP, (State House or plaintiff) alleges construction defect claims arising out of the remodel of the Hotel Indigo Santa Barbara. (Complaint, ? 8.) Defendant AB Design Studio, Inc. (ABD) is alleged as the architect for the project; defendant HMH Constructors, Inc. is alleged as the contractor. (Ibid.) The construction defect is alleged to relate to water intrusion damage to guest rooms caused by the lack of a ?door pan? underneath the thresholds of the door frame between unit bathrooms and bedrooms. (Complaint, ? 9.)

On July 22, 2016, plaintiff served on defendant ABD its form interrogatories, set one (FI), special interrogatories, set one (SI), and requests for production of documents, set one (RFP). (Coffin decl., ? 2.)

On September 9, 2016, ABD served its verified written responses to this discovery. (Coffin decl., ? 3 & exhibits A-C; Orafa decl., ? 5.) The responses to the RFP stated that documents would be produced. (Orafa decl., ? 5.)

On September 20, 2016, counsel for plaintiff, attorney Mark T. Coffin, sent a letter to counsel for ABD addressing deficiencies plaintiff asserts in the responses to the discovery. (Coffin decl., ? 8 & exhibit D.) On September 26, counsel for ABD, attorney Victoria T. Orafa, telephoned Coffin and explained that the documents were difficult to obtain and would be sent as soon as they arrived from ABD. (Orafa decl., ? 7.) Although the September 20 letter addressed principally the responses to the RFP, Coffin stated in that conversation that responses to the FI and SI were also inadequate. (Orafa decl., ? 9.)

On September 28, 2016, Coffin followed up with a letter to counsel for ABD addressing deficiencies plaintiff asserts in the interrogatory responses. (Coffin decl., ? 9 & exhibit E.)

On October 10, 2016, Orafa was informed by ABD that it was actively gathering documents and that more time was required. (Orafa decl., ? 12.) Counsel for ABD, Rinat Klier-Erlich, that day sent an email to Coffin stating the same. (Orafa decl., ? 13; Coffin decl., exhibit F.) Coffin responded by email later that day stating that the documents were already overdue, that he had not received a response to his September 28 letter, and that plaintiff has no choice but to file a motion. (Coffin decl., exhibit F.)

On October 12, 2016, Orafa sent Coffin a letter responding to Coffin?s September 28 letter. (Orafa decl., ? 14 & exhibit 5.) The letter also states that documents would be produced on November 4, 2016. (Ibid.)

On October 24, 2016, plaintiff filed this motion to compel responses to the FI, SI, and RFP.

On November 4, 2016, ABD served copies of all documents that ABD had then identified as responsive to the RFP to be produced. (Orafa decl., ? 19.) On November 8, additional documents were produced. (Ibid.)

On November 9, 2016, ABD filed its opposition to this motion.

Analysis:

(1)?????? Requests for Production of Documents

As acknowledged in the reply, the production of documents by ABD makes the motion to compel such production moot. Disputes over the sufficiency of the production are not now before the court and need to be the subject of a separate meet and confer process.

(2)?????? Special Interrogatories

Plaintiff seeks to compel further responses to SI Nos. 8, 9, 12 and 13.

SI No. 8 is: ?Please IDENTIFY (by name, address and telephone number, and license number if applicable) each subconsultant that YOU hired to work on the PROJECT.?

The response to SI No. 8 is: ?Objection. Responding party objects to this interrogatory on the ground that it is vague and ambiguous as to the use of the term ?subconsultant? which is not clearly defined. Moreover, this interrogatory assumes facts and lacks foundation. Notwithstanding the foregoing objections and subject to them, Responding Party responds as follows:

?Requesting Party and contractor retained all subconsultants directly.? (Coffin decl., exhibit B, pp. 6-7.)

The response to SI No. 8 as listed in plaintiff?s separate statement, however, is: ?Objection. Responding party objects to this interrogatory on the ground that it is vague and ambiguous as to the use of the term ?subconsultant? which is not clearly defined. Moreover, this interrogatory assumes facts and lacks foundation. Notwithstanding the foregoing objections and subject to them, Responding Party responds as follows:

?Josh Blumer

?420 East Haley Street Santa Barbara, CA 93101

?Off: (805) 963-2100

?Main: (805) 637-6495? (Separate Statement, p. 2.)

As part of plaintiff?s argument in support of this motion?which is largely copied from plaintiff?s September 28 letter, but curiously not addressed either in the opposition or in the October 12 response letter?plaintiff notes that Josh Blumer is a principal of ABD and not a subconsultant. The explanation for the inclusion of Josh Blumer in plaintiffs? separate statement, but not in ABD?s actual response, is that plaintiff has set forth the response out of page-order. (See Coffin decl., exhibit B.) Page six of the response ends with the full colon (?? responds as follows:?). The next page as set forth in the exhibit is page five, which provides at the top of the page the response to SI No. 4, which is Josh Blumer. The continuation of the response to SI No. 8 is on page seven, which follows page five in the exhibit.

?A separate statement is a separate document filed and served with the discovery motion that provides all the information necessary to understand each discovery request and all the responses to it that are at issue. The separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and the full response. Material must not be incorporated into the separate statement by reference. The separate statement must include?for each discovery request (e.g., each interrogatory, request for admission, deposition question, or inspection demand) to which a further response, answer, or production is requested?the following: [?] (1) The text of the request, interrogatory, question, or inspection demand; [?] (2) The text of each response, answer, or objection, and any further responses or answers ?.? (Rules of Court, rule 3.1345, subd. (c)(1), (2).) Failure to comply with the separate statement requirement is a sufficient basis to deny the motion. (Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 893.)

Were the response to SI No. 8 the only issue, the matter would perhaps be overlooked. However, a less explainable problem exists with SI No. 9.

SI No. 9 is: ?Please IDENTIFY (by name, address and telephone number) YOUR person(s) responsible for construction administration for the PROJECT.?

The response to SI No. 9 is: ?Objection. Responding party objects to this interrogatory on the ground that it is vague and ambiguous as to the use of the term ?construction administration? which is not clearly defined. Moreover, this interrogatory assumes facts and lacks foundation. Notwithstanding the foregoing objections and subject to them, Responding Party responds as follows: [?] Requesting Party and/or its contractor were responsible for construction administration.? (Coffin decl., exhibit B, p. 7.)

The response to SI No. 9, as stated in the separate statement is: ?Objection. Responding party objects to this interrogatory on the ground that it is vague and ambiguous as to the use of the term ?construction administration.? Requesting Party and/or its contractor were responsible for construction administration.? (Separate Statement, p. 3.)

The response, as stated in the separate statement, omits the objection about assuming facts and lacks foundation and the preface to the response. The text of the response to SI No. 9 appears on a single page of the response, so the mistake of having pages out of order does not explain the failure to produce the response verbatim as required by the Rules of Court. In order for the court to address the issues raised by plaintiff as to the special interrogatories, the court must refer back and forth from the separate statement to the exhibit, completely defeating the purpose of the separate statement. On that basis, the court will deny the motion to compel as to the special interrogatories.

(3)?????? Form Interrogatories

ABD objects to the form of this motion as improperly combining motions to compel further responses to three separate discovery devices. The court agrees that these are separate motions, but neither the Code of Civil Procedure nor the Rules of Court prohibit combining the papers to support multiple discovery motions. At times it is convenient to combine such papers; at times it is convenient to file them separately. The court considers each of the motions separately. For that reason, plaintiff?s failings with respect to the separate statement as to the special interrogatories is not a basis for denying the motion to compel further responses to form interrogatories.

Plaintiff seeks to compel further responses to FI Nos. 305.13, 311.1, 311.2, 311.3, 311.4, 314.1, 321.2, 321.4, 321.6, 321.9, 321.10, 321.11, 322.1, 322.2, 322.3, 325.3, and 322.6.

FI No. 305.13 is: ?Have you ever hired any person, including but not limited to a contractor, design professional, or engineer (but excluding those hired by your attorney), to inspect, prepare a bid regarding, or repair a condition that you contend in this litigation is a construction claim or construction defect claim? If so, for each, state [?] (a) the date of the inspection; [?] (b) the name, address, and telephone number of the person performing the inspection; [?] (c) the general nature of the problem or defect inspected; and [?] (d) the cost of the inspection.?

The response to FI No. 305.13 is: ?Objection. An objection is made to this interrogatory as it lacks foundation. Responding Party is not claiming any defect and cannot make any repairs. Any experts retained were retained by counsel and therefore, this interrogatory is also objectionable based on the attorney/client privilege and attorney work product privilege.?

Plaintiff argues that the response is not responsive.

The problem here is that the interrogatory is designed to be propounded to the owner or possessor of the affected property, not by the owner or possessor of the property to a design professional defendant. Nonetheless, the objection that the interrogatory lacks foundation is ambiguous. Lack of foundation is an evidentiary objection that is not a proper objection to interrogatories. (See West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 421.) The next sentence seems to explain the foundational objection as something different from an objection, that is, that ABD is not claiming any defect and so the interrogatory does not apply. Plaintiff argues that this contention is irrelevant because the question does not assume any such claim. A careful reading of the interrogatory, however, shows that it requests information about ?a condition that you contend in this litigation is a construction claim or construction defect claim.? (Emphasis added.) The ?you? refers to the responding party, ABD. ABD states that it does not contend that a condition is a construction claim or construction defect claim. Therefore, there are no conditions for which ABD would hire any person to perform the tasks about which the interrogatory inquires. The substantive response is appropriate, even if the objection is not. The last sentence objecting to attorney-hired experts is, as plaintiff points out, superfluous because the interrogatory excludes such experts. No further response is required.

FI No. 311.1 is: ?Do you or anyone acting on your behalf know of any photographs, films, videotapes, recordings, or electronically stored information depicting any place, object, event, or individual concerned in the construction claim or the construction defect claim? If so, for each type of media, state: [?] (a) the number of photographs, length of film or videotape, or megabytes of an electronic recording; [?] (b) the places, objects, or persons photographed, filmed, videotaped, or otherwise recorded; [?] (c) the date each photograph, film, videotape, or electronic recordings was taken or recorded; [?] (d) the name, address, and telephone number of each individual who took these photographs or recorded these films, videotapes, or electronic recordings; and [?] (e) the name, address, and telephone number of each person who has the original media or copies of these photographs, films, videotapes, or electronic recordings.?

The response to FI No. 311.1 is: ?Objection. Assumes facts and lacks foundation. Responding Party is not claiming any defect and its project photographs do not show any defect. Any photographs by retained experts are privileged based on the attorney/client privilege and attorney work product privilege.?

Unlike FI No. 305.13, above, FI No. 311.1 does not condition the construction defect claim to a claim made by the responding party. The objections of assumption of facts, lack of foundation, and that ABD is not claiming any defect are overruled. The interrogatory seeks information regarding the existence of photographs and other media. A photograph taken by an expert may or may not be subject to privilege or attorney work product protection. (See generally Edmon et al., Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2016) ?? 8:243-8:243.3.) To the extent that ABD claims that all information responsive to the interrogatory relates to privileged matter, ABD must provide sufficient information in response to the interrogatory for the court to rule upon the claim of privilege. To the extent that there are no photographs or other media apart from those for which privilege is claimed, that fact must be affirmatively stated. A further response will be required.

The same analysis and result applies to FI Nos. 311.2, 311.3, and 311.4.

FI No. 314.1 is: ?For each agreement alleged in the pleadings: [?] (a) identify each document that is part of the agreement and state the name, address, and telephone number of the person who has each document; [?] (b) describe each part of the agreement not in writing, along with the name, address, and telephone number of each person agreeing to that provision, and the date that part of the agreement was made; [?] (c) identify all documents that evidence any part of the agreement not in writing, and for each, state the name, address, and telephone number of each person who has the document; [?] (d) identify all documents that are part of any modification to the agreement and for each, state the name, address, and telephone number of each person who has the document; [?] (e) describe each modification to the agreement not in writing, along with the date the modification was made and the name, address, and telephone number of each person agreeing to the modification; [?] (f) identify all documents that evidence any modification of the agreement not in writing and for each state the name, address, and telephone number of the person who has each document; and [?] (g) state the name, address, and telephone number of the person most knowledgeable regarding the negotiations and contracting for any services you performed at any subject property.?

The response to FI No. 314.1 is: ?Objection. Responding Party objects to this interrogatory on the grounds that it is vague and ambiguous as to the use of the term ?agreement? which is not clearly defined. Responding Party further objects on the grounds that the interrogatory may call for information protected from disclosure by Responding Party?s attorney client privilege and/or attorney work product privilege. Notwithstanding and subject to the foregoing objections, Responding Party responds as follows: [?] (a) See contract attached to plaintiff?s complaint. Also part of the agreement are the designs and specifications generated by Responding Party. The documents are in the possession of plaintiff and Responding Party; [?] (b) None to Responding Party?s knowledge. Discovery is continuing; [?] (c) N/A; [?] (d) N/A; [?] (e) N/A; [?] (f) N/A;and [?] (g) Plaintiff and Responding Party.?

Plaintiff argues that this response is insufficient because, the objections are inappropriate, the reference to the documents are insufficient, and the persons most knowledgeable are not adequately identified.

The objection as to ?agreement? being ambiguous is overruled. The pleadings identify each agreement at issue. To the extent there is any potential for confusion, ABD may qualify a response by explaining its interpretation of the term ?agreement,? which it has not done. To the extent that ABD is withholding any information on the grounds of privilege or the attorney work product doctrine, ABD must provide sufficient information in its response for the court to rule upon the claim of privilege. To the extent ABD does not withhold any information on that basis, the claim of privilege is improper. As to the response to subpart (a), the ?designs and specifications generated by Responding Party? is not a complete response. It is not possible to determine from this statement whether the documents actually in the possession of plaintiff constitute a complete set of the documents ABD asserts are the documents which answer this interrogatory. ABD must either provide a list by which the completeness of the document set can be determined or comply with Code of Civil Procedure section 2030.230. A further response to this subpart is required.

As to the response to subpart (g), plaintiff asserts that the response is insufficient because ABD has not more particularized an identified person. The court notes that in the form interrogatory as promulgated by the Judicial Council, the term ?person? is in bold to signify that it is a defined term. In violation of Rules of Court, rule 3.1345(c)(4), plaintiff does not set forth this definition in the separate statement. As set forth in the Judicial Council form, ?Personincludes a natural person, firm, association, organization, general or limited partnership, business, trust, limited liability company, corporation, or public entity.? (Judicial Council Form Interrogatories ? Construction Litigation, ? 4(o).) Plaintiff and Responding Party are ?persons? within the meaning of the defined term. The failure to provide an address and telephone number for parties represented by counsel in this litigation with addresses of record is a technical failure for which no further response to this subpart is required.

FI No. 321.2 is: ?Describe the scope of work that you performed and any materials that you supplied at the subject property.?

The response to FI No. 321.2 is: ?Objections. Nonsensical, irrelevant and lacks foundation. Responding Party provided limited architectural services as set forth more specifically in the parties? contract.?

The objections are overruled. The interrogatory is not nonsensical as demonstrated by the substantive response. The objections of irrelevant and lacks foundation are also improper objections to discovery. (See Code Civ. Proc., ? 2017.010; West Pico Furniture Co. v. Superior Court, supra, 56 Cal.2d at p. 421.)

The substantive response is also insufficient. ?Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits.? (Code Civ. Proc., ? 2030.220, subd. (a).) ?If an interrogatory cannot be answered completely, it shall be answered to the extent possible.? (Code Civ. Proc., ? 2030.220, subd. (b).) ?If only a part of an interrogatory is objectionable, the remainder of the interrogatory shall be answered.? (Code Civ. Proc., ??2030.240, subd. (a).) The response merely to refer to a document is insufficient. If the answer to the interrogatory is set forth in documents, Code of Civil Procedure section 2030.230 provides the means by which a response is sufficient by referring to documents. The response does not comply with section 2030.230. A further response is required.

The same analysis and results apply to FI Nos. 321.4, 321.6, 321.9, 321.10, and 321.11. The court also notes that many of these interrogatories require first and simply a yes or no answer, which is not present in any of these responses. With respect to FI No. 321.9, the objection of overbroad, burdensome, and oppressive is overruled. (See West Pico Furniture Co. v. Superior Court, supra, 56 Cal.2d at pp. 417-418.)

FI No. 322.1(g) is: ?Did you or any of your employees design any portion of the subject property or project in this litigation? If so, state: [?] … [?] (g) the date of each approval of your design work for the subject property or project.?

The response to FI No. 322.1(g) is: ?Responding Party exercises its right to produce documents responsive to this request (see project file).?

Plaintiff complains that this response fails to comply with Code of Civil Procedure section 2030.230. ?If the answer to an interrogatory would necessitate the preparation or the making of a compilation, abstract, audit, or summary of or from the documents of the party to whom the interrogatory is directed, and if the burden or expense of preparing or making it would be substantially the same for the party propounding the interrogatory as for the responding party, it is a sufficient answer to that interrogatory to refer to this section and to specify the writings from which the answer may be derived or ascertained. This specification shall be in sufficient detail to permit the propounding party to locate and to identify, as readily as the responding party can, the documents from which the answer may be ascertained. The responding party shall then afford to the propounding party a reasonable opportunity to examine, audit, or inspect these documents and to make copies, compilations, abstracts, or summaries of them.? (Code Civ. Proc., ??2030.230.)

The response does not comply with section 2030.230. A further response will be required.

The same analysis and results apply to FI Nos. 322.2 and 322.3.

FI No. 325.3 is: ?Do you contend that any of the property damage claimed by plaintiff thus far in this case was not caused by the construction claim or construction defect claim? If so:

?(a)????? identify each item of property damage;

?(b)???? state all facts on which you base your contention;

?(c)????? state the names, addresses, and telephone numbers of all persons who have knowledge of the facts; and

?(d)???? identify all documents and other tangible things that support your contention and state the name, address, and telephone number of the person who has each document or thing.?

The response to FI No. 325.3 is: ?Objection. Responding Party objects to this interrogatory on the ground that it calls for information protected from disclosure by Responding Party?s attorney client privilege. Also, an objection is made in that this interrogatory calls for expert opinion, lacks foundation and assumes facts. Notwithstanding and subject to the foregoing objections:

?(a)????? Plaintiffs recently submitted cost and scope of repair. Responding Party has no information on plaintiffs loss of income damages.

?(b)???? Responding Party has no personal knowledge as to what alleged damages were incurred by plaintiff but in reviewing plaintiffs proposed repair it believes that the repair is overreaching and it also an improvement and embetterment of the conditions that were in existence at the time of the construction, which is unnecessary. Further, there is no need to perform the repairs at the pace suggested by plaintiff, which will cause a greater alleged loss of income than necessary.

?(c)????? The parties to this lawsuit, parties? experts, Trent Lyon at Tryon Corp., Judy Ricker at Cortland Dane, Jim Spitzig at Level 3, Rick Mitchell of HMH and/or its sub consultant (believed to be Santa Barbara Surfacing).

?(d)???? All project documents in Responding Party?s possession will be produced in lieu of identifying same. Responding party has no documents reflecting any damages which would be in plaintiff?s possession.?

In plaintiff?s separate statement, the only discussion of reasons to compel further responses to this interrogatory relates to subpart (d). For the same reasons discussed above, the response to subpart (d) does not comply with Code of Civil Procedure section 2030.230. A further response will be required. To the extent that a further response properly invokes section 2030.230 but that some of the responsive documents are withheld from inspection on the grounds of privilege, ABD will be required to provide a privilege log identifying the withheld documents, identifying the privilege asserted, and providing sufficient additional information for the court to rule upon the claim of privilege. The objections as to subpart (d) except as to privilege are overruled for the same reasons as discussed above.

Plaintiff?s notice of motion also seeks to compel a further response to FI No. 322.6. Neither the text nor the response to FI No. 322.6 is included in plaintiff?s separate statement. The court denies the motion as to FI No. 322.6 on that basis.

(4)?????? Sanctions and Procedural Matters

?The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) 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.? (Code Civ. Proc., ? 2030.300, subd. (d).)

Plaintiff seeks an award of monetary sanctions in the amount of $2,541.00, for 6.6 hours of attorney time at $385 per hour. (Coffin decl., ?? 13-14.) Of this time, 4.6 hours were spent meeting and conferring and drafting the motion; the remainder is anticipated as being spent reviewing opposition, preparing a reply, and attending the hearing on the motion. (Coffin decl., ??13.)

There is much to criticize about both parties? handling of this discovery dispute and motion. As one obvious example, an entire section of this motion is denied because the separate statement fails to comply with the Rules of Court, the insufficiency of which was in part apparent from the meet and confer and was in any case not raised in opposition. Although plaintiff?s arguments are largely meritorious, not all of plaintiff?s arguments as to form interrogatories are successful and the separate statement is in parts insufficient even as to the form interrogatories. The timing of the filing of the motion relative to the express intentions of ABD to provide documents (and perhaps further responses) is problematic in that ABD?s production was expected to and ultimately did obviate a significant portion of the motion. The discovery process is intended to be self-executing, where resort to the court should be only where informal resolution is not possible.

ABD for its part has taken positions that do not reflect a correct understanding of the expansive nature of discovery. Evidentiary objections are improper. The self-executing nature of the discovery process expects flexibility from the litigants. Some perceived ambiguity in a discovery request is not a proper basis for refusing to provide a complete response. Such conduct reflects an intent to misuse the discovery process. As discussed above, the issues addressed by the court largely, but not exclusively, reflects the correctness of plaintiff?s positions and the failure of ABD to follow the requirements of the Code of Civil Procedure.

Taking all of the facts and circumstances into account here, the court determines that the imposition of monetary sanctions would be unjust. The request for monetary sanctions will be denied.

The court also notes that neither party has complied with the format requirements of the Rules of Court and the Santa Barbara County Superior Court Local Rules with respect to exhibits. Plaintiff?s motion, including the declaration and exhibits A through F, comprise 104 pages; ABD?s opposition, including the declaration and exhibits 1 through 5, comprise 43 pages. The Rules of Court require that all pages bound together are to be sequentially numbered (Rules of Court, rule 3.1110(c)), that there be a table of exhibits, including page numbers (rule 3.1110(f), and tabs for each exhibit (ibid.). Our Local Rules explain that compliance with rule 3.1110(f) as to tabs for exhibits ?is accomplished for electronic documents by (i) creating an electronic bookmark for each exhibit, and (ii) inserting between each exhibit a slip sheet containing the identification of the following exhibit (for example, a page where only the words printed are ?Exhibit A? or ?Exhibit B? or other appropriate identification).? (Santa Barbara County Superior Court Local Rules, rule 1012(c)(1).) The documents e-filed with the court are not sequentially numbered, contain no tables of exhibits, and contain no electronic bookmarks. The absence of these features is not merely a technical matter. Locating single pages of a multi-page document and referring back to such pages in the course of reviewing the parties? submissions is made very time consuming and unnecessarily difficult without these features, causing the expenditure of judicial resources ineffectively. The parties are reminded of their obligations to comply with all of the applicable laws, including the format requirements of the Code of Civil Procedure, Rules of Court, and Local Rules.