McCoy Electric Corporation vs Annette Rubin et al

Case Number

16CV03591

Case Type

Hearing Date / Time

Mon, 12/16/2024 - 10:00

Nature of Proceedings

Ex Parte Hearing Application for Shortened Time/Advance Hearing; Motion to Compel; and, (3) Motions for Orders

Tentative Ruling

McCoy Electric v. Anette Rubin and Stuart Rubin  

Case No. 16CV03591

           

Hearing Date: December 16, 2024                                         

HEARING:              1. Motion of McCoy Electric Corporation, The Las Canoas Co. dba Construction Plumbing, and James Davis dba Wade Davis Design for Order Enjoining the Levying Officer from Disbursing Funds Pending Judgment on Declaratory Relief Action;

                                    2. Motion of McCoy Electric Corporation and The Las Canoas Co. dba Construction Plumbing for Order Compelling U.S. Real Estate Credit Holdings III-A, LP to Comply with Inspection Demand No. 11;

                                    3. Motion of McCoy Electric Corporation and The Las Canoas Co. dba Construction Plumbing for Order Compelling U.S. Real Estate Credit Holdings III-A, LP to Serve Further Responses to Special Interrogatories 29 through 32;

                                    4. Motion of McCoy Electric Corporation and The Las Canoas Co. dba Construction Plumbing for Order Directing A. Stuart Rubin and Annette Rubin to Transfer Possession of Share Certificates in ASR Development Co. to the Los Angeles County Sheriff’s Department.

                                                             

ATTORNEYS:        For Plaintiff McCoy Electric Corporation: Daniel E. Engel

                                    For Defendants Annette Rubin and A. Stuart Rubin: Self-Represented

                                    For Cross Defendant/Cross Complainants The Los Canoas Co.     dba Construction Plumbing and James Davis dba Wade Davis Designs: Daniel E. Engel

                                    For Intervening Party U.S. Real Estate Credit Holdings III-A, LP: Marsha A. Houston, Christopher O. Rivas

                                    [For additional appearances see list.]                              

TENTATIVE RULING:

1. The Motion of McCoy Electric Corporation, The Las Canoas Co. dba Construction Plumbing, and James Davis dba Wade Davis Design for order enjoining the levying officer from disbursing funds pending judgment on declaratory relief action is denied.
2. The Motion of McCoy Electric Corporation and The Las Canoas Co. dba Construction Plumbing for order compelling U.S. Real Estate Credit Holdings III-A, LP to comply with inspection demand No. 11 is granted.
   1. U.S. Real Estate Credit Holdings III-A, LP shall provide a further code-compliant written response, without objection except as to privilege, and produce any responsive documents, no later than January 6, 2025.
   2. For any document withheld on a claim of privilege, U.S. Real Estate Credit Holdings III-A, LP is ordered to serve a privilege log identifying each responsive document withheld on the ground of said privilege together with sufficient additional information, pursuant to Code of Civil Procedure section 2031.240, for the court to evaluate the claim of privilege.
   3. Sanctions are awarded in favor of McCoy Electric Corporation and The Las Canoas Co. dba Construction Plumbing, and against U.S. Real Estate Credit Holdings III-A, LP and Reed Smith LLP, jointly and severally, in the amount of $5,787.50, to be paid to counsel for McCoy Electric Corporation and The Las Canoas Co dba Construction Plumbing no later than January 6, 2025.
3. The Motion of McCoy Electric Corporation and The Las Canoas Co. dba Construction Plumbing for order compelling U.S. Real Estate Credit Holdings III-A, LP to serve further responses to special interrogatories Nos. 29-32 is granted.
   1. U.S. Real Estate Credit Holdings III-A, LP shall provide a further code-compliant responses to special interrogatories Nos. 29-32, without objection, no later than January 6, 2025.
   2. Sanctions are awarded in favor of McCoy Electric Corporation and The Las Canoas Co. dba Construction Plumbing, and against U.S. Real Estate Credit Holdings III-A, LP and Reed Smith LLP, jointly and severally, in the amount of $11,313.00, to be paid to counsel for McCoy Electric Corporation and The Las Canoas Co dba Construction Plumbing no later than January 6, 2025.
4. The Motion of McCoy Electric Corporation and The Las Canoas Co. dba Construction Plumbing for order directing A. Stuart Rubin and Annette Rubin to transfer to the Los Angeles County Sheriff’s Department possession of the share certificates evidencing their ownership of ASR Development Co. is granted.
   1. Moving parties are to prepare a formal order, which contains the notice required by Code of Civil Procedure section 699.040, subdivision (c), and personally serve the Rubins.
   2. This Order is not intended to be, nor shall it be interpreted as, an adjudication of the relative priority liens asserted by U.S. Real Estate Credit Holdings III-A, LP or the moving parties.

Background:

This action arises out of a remodeling project at residential property located at 4347 Marina Drive, Santa Barbara, California 93110. The Property was owned by defendants and cross-complainants Annette Rubin and A. Stuart Rubin (“Rubins”).

Plaintiff and cross-defendant McCoy Electric Corporation (“McCoy”), an electrical contractor, commenced the action on August 15, 2016, claiming that it was still owed sums for labor and materials furnished at the Property. In response, the Rubins cross-complained against McCoy and its principal, Richard McCoy, for breach of contract, negligent construction, overcharging, conversion of materials, and accounting. The Rubins cross-complained against The Las Canoas Co. dba Construction Plumbing (“CP”), as well as several other parties, including James Davis dba Wade Davis Designs (“Davis”), on September 19, 2019, asserting causes of action for negligence, products liability, and breach of contract.

CP filed an answer to the Rubin’s cross-complaint on October 25, 2019, asserting a general denial and several affirmative defenses. On October 25, 2019, CP also cross-complained against the Rubins, alleging a claim for breach of written settlement agreement.

The Rubins dismissed their cross-complaint against CP on March 11, 2022.

On November 2, 2022, following a court trial, Judgment was entered in favor of McCoy, and against the Rubins, for $355,279.10 in damages plus $65,878.70 in attorney fees and costs. Since that time, the amount owed by the Rubins to McCoy has increased. By way of McCoy’s renewal of judgment filed on June 14, 2024, the Rubins owed a total of $487,534.31.

McCoy has since been attempting to enforce the judgment through various means.

On July 18, 2024, U.S. Real Estate Credit Holdings III-A, LP (“USRECH”) filed its complaint in intervention for declaratory relief, alleging that, pursuant to proceedings in Riverside County Superior Court, they had obtained and levied writs of attachment on numerous entities owned by the Rubins. By way of the complaint in intervention, USRECH seeks to “assert its rights and obtain declaratory relief that this Court’s rulings are not intended to, nor shall they be interpreted to, reverse, invalidate, undermine, or modify the rulings of the Superior Court of Riverside County.” (Complaint in Intervention, ¶ 3.)

On August 8, 2024, McCoy and CP filed a cross-complaint against USRECH for declaratory relief, arguing that USRECH does not have any valid perfected attachment liens that are senior or superior to their liens. On October 11, 2024, USRECH filed a demurrer to the cross-complaint. On November 13, 2024, McCoy, CP, and Davis filed a first amended cross-complaint against USRECH.

Presently, McCoy, CP, and Davis (collectively “Judgment Creditors”) move to enjoin the Los Angeles County Sheriff’s Department (“LASD”) from distributing funds paid to it by Rubin-Pachulski Properties, LP (“RPP”) and Rains, LLC (“Rains”), under which Judgment Creditors have levied upon under writs of execution, until judgment is entered on Judgment Creditors’ cross-complaint for declaratory relief. McCoy and CP additionally: (1) Move for an order compelling USRECH to comply with inspection demand No. 11, and for monetary sanctions; (2) Move for an order compelling USRECH to serve further responses to special interrogatories Nos. 29-32, and for monetary sanctions; and (3) Move for an order directing the Rubins to transfer possession of share certificates in ASR Development Co. (“ASR”) to the Los Angeles County Sheriff’s Department.

The Rubins have not filed opposition or any other responsive document to the motions.

USRECH has filed oppositions to the first three motions and a limited objection to the motion to direct the Rubins to transfer possession of the ASR share certificates.

Analysis:

            1. Injunctive Relief

USRECH is the plaintiff in U.S. Real Estate Credit Holdings III-A, L.P. v. Glenroy Coachella, et al., Riverside County Superior Court Case No. RIC1905743 (“Riverside Case”). USRECH obtained a writ of attachment, in that case for over $9,000,000.00 (Engel Decl., ¶ 5.) Counsel for Judgment Creditors learned that there were significant funds, related to the Riverside Case, being held by the LASD. (Ibid.) Judgment Creditors attempted to levy the funds but were met with resistance from the LASD. Judgment Creditors are “concerned that the clerks could be influenced into releasing the funds to USRECH if and when it prevails” in the Riverside Case.” (Id. at ¶ 39.)

Based on these concerns, Judgment Creditors now move for a preliminary injunction to enjoin LASD from disbursing the funds until the competing lien claims are resolved.

“A preliminary injunction may be granted at any time before judgment upon a verified complaint, or upon affidavits if the complaint in the one case, or the affidavits in the other, show satisfactorily that sufficient grounds exist therefor. No preliminary injunction shall be granted without notice to the opposing party.” (Code Civ. Proc., § 527, subd. (a).)

The purpose of the preliminary injunction is to preserve the status quo until a final determination of the merits of the action. (Casmalia Resources, Ltd. v. County of Santa Barbara (1987) 195 Cal.App.3d 827, 832.) The burden is on the plaintiff to show that it is entitled to the relief sought. (Id. at p. 838.)

A preliminary injunction requires “a complaint which states a sufficient cause of action for injunctive relief of the character embraced in the preliminary injunction.” (Handyspot Co. of Northern Cal. v. Buegeleisen (1954) 128 Cal.App.2d 191, 194.) A cause of action is based on the invasion of a primary right. (Bay Cities Paving & Grading, Inc. v. Lawyers’ Mut. Ins. Co. (1993) 5 Cal.4th 854, 860–861.)

The grant or denial of an injunction does not amount to an adjudication of the ultimate rights in a controversy, and merely determines that the court, balancing the respective equities of the parties, concludes that, pending a trial on the merits, exercise of the right claimed by the defendant should or should not be restrained. (Jamison v. Department of Transportation (2016) 4 Cal.App.5th 356, 361.)

In deciding whether to issue a preliminary injunction, a trial court must evaluate two interrelated factors: (1) the likelihood that the plaintiff will prevail on the merits at trial, and (2) the interim harm that the plaintiff would be likely to sustain if the injunction were denied, as compared to the harm the defendant would be likely to suffer if the preliminary injunction were issued. (Smith v. Adventist Health System/West (2010) 182 Cal.App.4th 729,749.) The trial court's determination must be guided by a mix of the potential-merit and interim-harm factors; the greater the plaintiffs’ showing on one, the less that must be shown on the other to support an injunction. (Butt v. State of California (1992) 4 Cal.4th 668, 678.) However, a trial court may not grant a preliminary injunction, regardless of the balance of interim harm, unless there is some possibility that the plaintiff would ultimately prevail on the merits of the claim. (Ibid.)

“The likelihood of plaintiffs’ ultimate success on the merits “ ‘does affect the showing necessary to a balancing-of-hardships analysis. That is, the more likely it is that plaintiffs will ultimately prevail, the less severe must be the harm that they allege will occur if the injunction does not issue. This is especially true when the requested injunction maintains, rather than alters, the status quo. [Citation.] . . . [I]t is the mix of these factors that guides the trial court in its exercise of discretion.’ ” [Citations.] The presence or absence of these interrelated factors “ ‘is usually a matter of degree, and if the party seeking the injunction can make a sufficiently strong showing of likelihood of success on the merits, the trial court has discretion to issue the injunction notwithstanding that party’s inability to show that the balance of harms tips in his favor. [Citation.]’ ” [Citation.]” (Right Site Coalition v. Los Angeles Unified School Dist. (2008) 160 Cal.App.4th 336, 342.)

Judgment Creditors argue that they are likely to prevail on their claims, the harm to judgment creditors absent an injunction exceeds any conceivable harm to USRECH, and that USRECH has not been acting in good faith. However, we need not address these arguments for the reasons discussed below.

USRECH has requested that the court take judicial notice of an August 4, 2022, order, in the Riverside Case, denying a third-party claim of ownership and superior right to possession of the funds held by LASD filed by ASR. USRECH also requests that the court take judicial notice of another order in the Riverside Case, dated December 29, 2023, denying ASR’s second third party claim to the funds held by LASD. The court will take judicial notice.

While not very specific, the two orders from the Riverside Case clearly illustrate that the Riverside Court has made orders concerning the RPP and Rains funds held by LASD and ordered that some funds be delivered to the LASD to be held in trust pending judgment in the Riverside Case.

“One department of the superior court cannot enjoin, restrain, or otherwise interfere with the judicial act of another department of the superior court. Even between superior courts of different counties, having coequal jurisdiction over a matter, the first court of equal dignity to assume and exercise jurisdiction over a matter acquires exclusive jurisdiction. [Citations.]” (Ford v. Superior Court (1986) 188 Cal.App.3d 737, 742.)

Here, the Riverside County Superior Court has made orders that this court is not going to interfere with by imposing a preliminary injunction or taking any other action with respect to the RPP or Rains funds held by the LASD pursuant to the Riverside orders. Should Judgment Creditors wish to obtain orders that affect what the Riverside Court has already ordered, the proper place to do so is in the Riverside County Superior Court. The court has read, but does not agree with, Judgment Creditors arguments as to why this court is the proper venue to make such orders.

The motion for preliminary injunction will be denied.

            Inspection Demand No. 11

As noted above, McCoy and CP move for an order compelling USRECH to comply with their inspection demand No. 11.

Demand No. 11 requests: “Pleas produce all DOCUMENTS that evidence the property of Abraham Stuart Rubin that YOU contend is subject to an attachment lien that resulted from YOUR levy of a writ of attachment.”

In response, after setting forth general objections to the entire set of interrogatories, USRECH responded: “In addition to the General Objections set forth above, USRECH further objects to this Request on the grounds that (1) it is overly broad, unduly burdensome, and harassing because in its Complaint and in response to the Propounding Parties’ Subpoena issued to USRECH on July 9, 2024, USRECH has already produced to the Propounding Parties its writs of attachment against Rubin, notices of levy, and other documents received from the levying officer that evidence the property of Rubin that USRECH contends is subject to its attachment lien on Rubin’s property. USRECH has also already produced to the Propounding Parties the court’s ruling in the Riverside Superior Court case styled U.S. Real Estate Credit Holdings III-A, L.P. v. Glenroy Coachella, et al., case no. RIC1905743, that “ ‘the distributions from RPP, RPP 36 and Rains were earmarked for and would be going to Rubin.’ ” (Complaint at ¶ 16), and the rulings made in USRECH’s favor in the Riverside proceedings are also a matter of public record, including the Riverside Superior Court’s order finding that USRECH has a lien on these distributions and directing the levied parties to turn over funds to the sheriff in connection with those liens. As such, USRECH has more than satisfied its obligation to produce responsive documents to this Request; (2) it seeks documents protected from disclosure by the attorney-client privilege and/or work product doctrine, including, without limitation, documents disclosed by and between USRECH’s counsel and third party litigation consultants for the express purpose of accomplishing  SRECH’s litigation objectives, see Evid. Code § 952; Behunin v. Super. Ct. (2017)

9 Cal.App.5th 833, 846-47; (3) it seeks confidential, proprietary, sensitive and/or trade secret documents; and (4) USRECH also objects to this Request to the extent it is duplicative of other discovery served in this case.”

“Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property.” (Code Civ. Proc., § 2017.010.)

“A trial court must be mindful of the Legislature’s preference for discovery over trial by surprise, must construe the facts before it liberally in favor of discovery. . .” (Williams v. Superior Court (2017) 3 Cal.5th 531, 540.)

Code of Civil Procedure, section 2031.010 provides, in pertinent part:

“(a) Any party may obtain discovery . . . by inspecting, copying, testing, or sampling documents, tangible things, land or other property, and electronically stored information in the possession, custody, or control of the party on whom the demand is made.

“(b) A party may demand that any other party produce and permit the party making the demand, or someone acting on the demanding party’s behalf, to inspect and to copy a document that is in the possession, custody, or control of the party on whom the demand is made.”

“The party to whom a demand for inspection, copying, testing, or sampling has been directed shall respond separately to each item or category of item by any of the following:

“(1) A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling . . .

“(2) A representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item, or

“(3) An objection to the particular demand for inspection, copying, testing, or sampling.” (Code Civ. Proc. § 2031.210, subd. (a).)

Code of Civil Procedure, section 2031.240, provides:

“(a) If only part of an item or category of item in a demand for inspection, copying, testing, or sampling is objectionable, the response shall contain a statement of compliance, or a representation of inability to comply with respect to the remainder of that item or category.

“(b) If the responding party objects to the demand for inspection, copying, testing, or sampling of an item or category of item, the response shall do both of the following:

“(1) Identify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made.

“(2) Set forth clearly the extent of, and the specific ground for, the objection. If an objection is based on a claim of privilege, the particular privilege invoked shall be stated. If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted.

“(c)(1) If an objection is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.

“(2) It is the intent of the Legislature to codify the concept of a privilege log as that term is used in California case law. Nothing in this subdivision shall be construed to constitute a substantive change in case law.”

A motion to compel further responses to a request for production of documents “shall set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).) To establish good cause, the burden is on the moving party to make a “fact-specific showing of relevance.” (Glenfed Development Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117.) (“Glenfed”) Once good cause is established by the moving party, the burden then shifts to the responding party to justify any objections made to document disclosure. (See Hartbrodt v. Burke (1996) 42 Cal.App.4th 168, 172-174.)

McCoy and CP argue that the requests go “right to the heart of the actual, present controversy” that exists between the parties. The crux of the complaint in intervention, and the cross-complaint, pertains to USRECH’s claimed attachment liens, their validity, and who has priority. USRECH’s argument is basically non-responsive and, instead, makes convoluted arguments regarding requirements of attachment liens, orders issued in the Riverside case, and that it has produced responsive documents.

The written response to request No. 11, despite USRECH’s claims to the contrary, are not code compliant. First of all, the “general objections,” included as a preface to the responses, are improper boilerplate objections and do not comply with Code of Civil Procedure section 2031.240. Even if they were not improper boilerplate objections, and actually complied with section 2031.240, USRECH fails to justify any of them. Likewise, the objections contained in the actual response to request No. 11 (overly broad, unduly burdensome, harassing) lack any merit. The only objection that may have some validity is that responsive documents may be protected by the attorney-client privilege or work product doctrine. However, from the response, it is impossible to tell if either privilege applies and no documents are identified to which the privileges are claimed to apply, as required by code.

USRECH’s response to request No. 11, like its argument in opposition to the current motion, is more of an argument regarding the validity of McCoy’s and CP’s underlying claims than a reasonable attempt to address valid discovery. The response, like the opposition, is evasive and fails to specifically address what is being requested. To the extent that the response claims that responsive documents have already been provided; the response does not specifically identify each responsive document or indicate that previously produced documents constitute the entirety of available responsive documents.

“Civil discovery is intended to operate with a minimum of judicial intervention. “ ‘[I]t is a ‘ “central precept” ’ of the Civil Discovery Act . . . that discovery ‘ “be essentially self-executing[.]” ’ ” [Citations.]” (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 402.)

Responses to discovery should be simple and straight forward. They should not contain arguments regarding the merits of the case. The requirements for responding, in accordance with Code of Civil Procedure sections 2031.210 et seq., are clear and unambiguous. USRECH has refused to provide a code-compliant response even after the deficiencies were brought to its attention by way of the meet-and-confer process. USRECH will be ordered to provide further code-compliant responses.

The court “shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, 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., § 2031.310.)

“Except as provided in subdivision (d), 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 compliance with a demand, 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., § 2031.320, subd. (b).)

Counsel for McCoy and CP has provided a declaration setting forth his hourly rate and hours expended related to the present motion. The total amount sought as sanctions for the bringing of the motion is $5,787.50. The rate and amount of time spent are reasonable. USRECH did not act with substantial justification and no other circumstances make the imposition of sanctions unjust. The requested sanctions will be awarded.

            Special Interrogatories

McCoy and CP seek to compel further responses to special interrogatories Nos. 29-32, and request sanctions in the amount of $11,313.

The interrogatories in dispute are:

29. “Describe all property of Abraham Stuart Rubin that YOU contend is subject to an attachment lien that resulted from YOUR levy of a writ of attachment.”

30. “For each item of property that YOU describe in YOUR response to Special Interrogatory No. 29, state all facts that support YOUR contention that it is property of Abraham Stuart Rubin that is subject to attachment pursuant to California Code of Civil Procedure 487.010.”

31. “State the names, addresses, phone numbers and email addresses of all persons who have knowledge of the facts stated in YOUR response to Special Interrogatory no. 30.”

32. “IDENTIFY all DOCUMENTS that evidence the facts stated in YOUR response to Special Interrogatory no. 30.”

USRECH responded to each of the interrogatories with a reference to the same “general objections” that they included with their responses to inspection demands, assert additional unmeritorious objections, and make conclusory statements at the end of each response that they have already complied.

Code of Civil Procedure, section 2030.010 provides, “(a) Any party may obtain discovery within the scope delimited by Chapter 2 (commencing with Section 2017.010), and subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), by propounding to any other party to the action written interrogatories to be answered under oath. (b) An interrogatory may relate to whether another party is making a certain contention, or to the facts, witnesses, and writings on which a contention is based. An interrogatory is not objectionable because an answer to it involves an opinion or contention that relates to fact or the application of law to fact, or would be based on information obtained or legal theories developed in anticipation of litigation or in preparation for trial.”

A party may respond to interrogatories, in writing and under oath, by (1) providing an answer containing the information sought, (2) exercising the option to produce writings, or (3) by objecting to the particular interrogatory. (Code Civ. Proc., § 2030.210 subd. (a).)

Code of Civil Procedure section 2030.220 provides that, “(a) Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits. (b) If an interrogatory cannot be answered completely, it shall be answered to the extent possible. (c) If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.”

“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.)

Code of Civil Procedure section 2030.240, provides:

“(a) If only a part of an interrogatory is objectionable, the remainder of the interrogatory shall be answered.

“(b) If an objection is made to an interrogatory or to a part of an interrogatory, the specific ground for the objection shall be set forth clearly in the response. If an objection is based on a claim of privilege, the particular privilege invoked shall be clearly stated. If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted.”

The interrogatories all seek information that is clearly relevant to this action as between the parties to this motion. None of the interrogatories are objectionable. To the extent that USRECH argues that the interrogatories seek privileged information; they do not.

USRECH’s arguments in opposition, like the opposition to the inspection motion discussed above, are more of a convoluted argument regarding the merits of the underlying case than about justifying USRECH’s objections and lack of substantive responses. Discovery responses are not a proper place to make substantive arguments regarding the merits of an action.

The requirements for providing a code-compliant response were not followed. The requirements are straight-forward and unambiguous. USRECH will be ordered to comply with Code of Civil Procedure section 2030.210 et seq., and provide further code-compliant responses, without objection.

“The court shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a 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).)

“The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction 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., § 2023.030, subd. (a).)

Counsel for McCoy and CP has provided a declaration setting forth his hourly rate and hours expended related to the present motion. The total amount sought as sanctions for the bringing of the motion is $11,313.00. The rate and amount of time spent are reasonable. USRECH did not act with substantial justification and no other circumstances make the imposition of sanctions unjust. The requested sanctions will be awarded.

            Turnover Order

McCoy and CP move for an order directing the Rubins to transfer to the LASD possession of the share certificates evidencing ownership of ASR, a California Corporation, Entity No. 1335151.

“(a) If a writ of execution is issued, the judgment creditor may apply to the court ex parte, or on noticed motion if the court so directs or a court rule so requires, for an order directing the judgment debtor to transfer to the levying officer either or both of the following:

“(1) Possession of the property sought to be levied upon if the property is sought to be levied upon by taking it into custody.

“(2) Possession of documentary evidence of title to property of or a debt owed to the judgment debtor that is sought to be levied upon. An order pursuant to this paragraph may be served when the property or debt is levied upon or thereafter.

“(b) The court may issue an order pursuant to this section upon a showing of need for the order.

“(c) The order shall be personally served on the judgment debtor and shall contain a notice to the judgment debtor that failure to comply with the order may subject the judgment debtor to arrest and punishment for contempt of court.” (Code Civ. Proc., § 699.040.

A writ of execution was issued on May 13, 2024, in the amount of $659,608.25.

McCoy and CP have provided ample evidence of the Rubins’ interests in ASR by way of corporate entity details from the California Secretary of State, ASR’s third-party claims of ownership and right of possession in the Riverside Case, and declarations of A. Stuart Rubin. Of particular significance is a declaration of A.
Stuart Rubin filed on March 3, 2021, in a bankruptcy case regarding Glenroy Coachella, LLC, and a declaration in opposition to a motion for summary adjudication in the Riverside case, where he declares: “ASR Development Company, Inc. (“A.SR”), is a California corporation through which I do the majority of our real estate development projects. I am the sole owner of ASR and the custodian of the books and records of ASR.” (Engel Decl., Exh. D, ¶ 8.)

Counsel for McCoy and CP have attempted to force ASR, by and through A. Stuart Rubin, to appear for a third-party examination to inquire where the share certificates were located but neither A. Stuart Rubin nor anyone else on behalf of ASR appeared. (Engel Decl., ¶¶ 13, 14.)

A turnover order is appropriate, and the motion will be granted.

USRECH filed a limited objection to the motion, requesting only that any order specifically state that it is not intended to adjudicate the relative lien priorities between USRECH and the moving parties.

By way of their reply to the limited objection, McCoy and CP argue that USRECH does not and cannot have an attachment lien against the ASR shares and that USRECH is attempting to assert a claim of superior lien to those shares. McCoy and CP are concerned that USRECH will use the requested language as proof that USRECH has a superior attachment lien. McCoy and CP’s concern is misplaced. The language cannot be used as evidence of anything. It simply makes clear that the order does not affect any lien priorities that may, or may not, exist. The requested language is harmless and will be added to the order.