Alexander Kaay v. Chicago Title Insurance Co.

Case Number

22CV02308

Case Type

Hearing Date / Time

Mon, 06/03/2024 - 10:00

Nature of Proceedings

Motions to Compel (3)

Tentative Ruling

Alexander Kaay v. Chicago Title Insurance Co.         

Case No. 22CV02308      

Hearing Date: June 3, 2024                                                    

HEARING:              1. Defendant’s Motion to Compel Plaintiff to Provide a Verification for His Responses to Special Interrogatories, Set One, and to Compel Plaintiff to Provide Further Responses to Special Interrogatories, Set One

                                    2. Defendant’s Motion to Compel Plaintiff to Provide a Verification for His Responses to Form Interrogatories, Set One, and to Compel Plaintiff to Provide Further Responses to Form Interrogatories, Set One

                                    3. Defendant’s Motion to Compel Plaintiff to Provide Responses to Requests for Production of Documents, Set One

ATTORNEYS:        For Plaintiff Alexander Kaay: E. Patrick Morris, Law Offices of E. Patrick Morris

For Defendant Chicago Title Insurance Company: Susan M. Hutchison, Fidelity National Law group

TENTATIVE RULING:  

1. Defendant’s motion to compel plaintiff to provide further verified responses to special interrogatories, set one, is granted. Plaintiff shall provide further, verified, code-compliant responses, without objections except as to privilege, no later than June 21, 2024.
2. Defendant’s motion to compel plaintiff to provide further verified responses to form interrogatories, set one, is granted. Plaintiff shall provide further, verified, code-compliant responses, without objections except as to privilege, no later than June 21, 2024.
3. Defendant’s motion to compel plaintiff to provide responses to requests for production of documents, set one, is granted. Plaintiff shall provide further, verified, code-compliant responses, without objections except as to privilege, no later than June 21, 2024.

Background:

Plaintiff Alexander Kaay filed his original complaint in this matter on June 20, 2022. As alleged in the original complaint, plaintiff bought undeveloped property located at 1160 Barger Canyon Road in the County of Santa Barbara (the property) from Briar Yong (Yong) in August 2014. (Complaint, ¶ 4.) Defendant Chicago Title Insurance Co. (Chicago Title) issued a policy of title insurance to plaintiff (the policy) in which it warranted that the title plaintiff was purchasing was valid and enforceable. (Id. at ¶ 4.) The title plaintiff purchased was not valid and was in question. (Id. at ¶ 6.) Chicago Title refused to clear the title to the property as requested by plaintiff. (Ibid.) The caption page of the complaint alleges a cause of action for “damages due to breach of contract”. (Id. at p. 1.)

On January 19, 2023, Chicago Title filed a demurrer to the complaint and a motion to strike the prayer for attorneys’ fees alleged in the complaint. Plaintiff did not file an opposition to the demurrer or the motion to strike.

On April 17, 2023, the court sustained the demurrer of Chicago Title with leave to amend, finding that plaintiff had not attached a copy of the policy to the complaint and failed to plead the policy by its terms or by the substance of its relevant terms. (Apr. 17, 2023, Minute Order.) The court also granted the motion to strike of Chicago Title with leave to amend, finding that the complaint failed to allege a basis for the recovery of attorneys’ fees.

On April 17, 2023, plaintiff filed his first amended complaint (FAC), for damages arising from breach of contract and breach of special relationship of insurance. The FAC expanded on the allegations of plaintiff’s purchase of the property from Yong, and his purchase of the policy from Chicago Title. The policy was attached to and incorporated into the FAC. As alleged in the FAC, under the policy, Chicago Title agreed to pay all costs, attorneys’ fees and expenses incurred in defense of the title. Plaintiff further alleged that he paid valid consideration, and has performed all things required of him under the policy.

The FAC alleged further that the title insured by Chicago Title was “unmarketable as of the date the policy was issued,” and that any competent title insurance company would have so determined before issuing the policy. Plaintiff requested that Chicago Title defend the title and, if there were damages due to the title issued, to pay those damages. Chicago Title refused to defend the claim of unmarketability, and has refused to pay any damages for loss of marketable title.

On May 30, 2023, Chicago Title filed a demurrer to the FAC on the grounds that the cause of action for breach of contract was barred by the applicable 2-year statute of limitations, and that absent any allegations to support plaintiff’s conclusion that his title is “unmarketable,” the FAC failed to state a cause of action for breach of the policy.

Also on May 30, 2023, Chicago Title filed a motion to strike the prayer for attorneys’ fees alleged in the FAC on the ground that the FAC did not allege any basis for a claim for attorneys’ fees.

On July 31, 2023, the court overruled the demurrer of Chicago Title as to the statute of limitations bar, and sustained the demurrer, with leave to amend, as to plaintiff’s failure to specifically allege facts constituting the breach of the policy. The court also granted the motion to strike the prayer for attorneys’ fees, with leave to amend to permit plaintiff one further opportunity to allege a proper basis for the attorneys’ fees claim.

On September 21, 2023, plaintiff filed a second amended complaint (SAC). As alleged in the SAC:

In connection with plaintiff’s purchase of the property, and in reliance on the representations of Chicago Title that it was skilled in the process of confirming valid title to real property and would use that expertise for the benefit of plaintiff by confirming the validity of the title to the property, plaintiff agreed to pay a fee to Chicago Title for it to research and make an agreement to confirm that the title being transferred was valid, marketable, and without defect, as well as to insure that marketability in connection with plaintiff paying the premium requested by Chicago Title.

To that end, Chicago Title made an offer to insure the title, subject to terms and conditions, all as set forth in a Preliminary Title Report prepared and presented to plaintiff prior to the purchase. Chicago Title agreed to and did insure the validity and marketability of the title being transferred, representing that it would insure against loss or damage sustained or incurred by reason of any defect in title and/or unmarketability of the title.

The SAC also alleges, that, unknown to plaintiff, the title insured by Chicago Title was “unmarketable as of the date the policy was issued,” and that any competent title insurance company would have so determined before issuing the policy. Plaintiff believes that discovery will determine that the claimed unmarketability was due to the fact that the public records of title did not readily demonstrate that the lot being insured was legally created with proper documentation of its creation. The title was in question based in part on a claim by the County of Santa Barbara that the lot was illegal.

During the time the title was in question, the balloon payment on a loan made by Yong came due. Yong commenced a non-judicial foreclosure. Plaintiff was forced to commence a lawsuit and seek a Temporary Restraining Order to stop the foreclosure, which was issued based in part on the lack of finality regarding the validity of the title conveyed by Yong. Chicago Title refused to defend the claim of unmarketability, or agree to clear the title, claiming only that the claim “did not implicate any of the Policy’s Covered Risks and is otherwise excluded from coverage by the Exclusions . . ..”

Once the title issue was resolved, plaintiff again requested that Chicago Title clear the title and pay the losses suffered by plaintiff due to lack of marketable title, but Chicago Title failed to perform its obligations under the policy.

Chicago Title demurred to the SAC. On November 27, 2023, the court overruled the demurrer and ordered Chicago Title to file its answer no later than December 7, 2023.

Chicago Title filed its answer to the SAC on December 1, 2023, setting forth a general denial and asserting 34 affirmative defenses.

Thereafter, Chicago Title served plaintiff with Special Interrogatories, Set One, Form Interrogatories, Set One, and Requests for Production of Documents, Set One.

Plaintiff responded to the Special Interrogatories and the Form Interrogatories, primarily asserting objections, and did not provide verifications. Plaintiff did not provide a written response to the Requests for Production of Documents.

Following Chicago Title’s attempts to meet and confer, on March 14, 2024, Plaintiff stated that responsive documents were being posted to a USB drive and that further responses to the other discovery would be provided no later than May 22, 2024.

On March 14, 2024, Chicago Title explained that it could not wait until May 22, 2024, for supplemental responses and requested that they be served by March 18, 2024. On March 27, 2024, Chicago Title emailed plaintiff’s counsel requesting verified responses, by email, by the close of business on March 28, 2024. As of the date of filing the present motions, plaintiff has not provided further responses or verifications.

Chicago Title now moves to compel verified further responses to the interrogatories and responses to the request for production of documents.

No opposition or other responsive document has been filed by plaintiff.

Analysis:

“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, may not use its discretion to extend the limits on discovery beyond those authorized by the Legislature, and should prefer partial to outright denials of discovery.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 540.). 

            Special and Form Interrogatories

Code of Civil Procedure, section 2030.010 provides, in pertinent part:

“(a) Any party may obtain discovery . . . 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 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.”

“The party to whom interrogatories have been propounded shall respond in writing under oath separately to each interrogatory by any of the following:

“(1) An answer containing the information sought to be discovered.

“(2) An exercise of the party’s option to produce writings.

“(3) An objection to the particular interrogatory.” (Code Civ. Proc. § 2030.210, subd. (a).)

“The party to whom the interrogatories are directed shall sign the response under oath unless the response contains only objections.” (Code Civ. Proc., § 2030.250, subd. (a).) “The attorney for the responding party shall sign any responses that contain an objection.” (Code Civ. Proc., § 2030.250, subd. (c).)

Here, while nearly all of the responses were objections, requiring the responses to be signed by plaintiff’s attorney, some of the responses to interrogatories contained a response that requires plaintiff’s verification.

If a timely motion to compel has been filed, the burden is on the responding party to justify any objection or failure to fully answer the interrogatories. (Coy v. Superior Court of Contra Costa County (1962) 58 Cal.2d 210, 220-221; Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.) Further, a motion to compel lies where objections are “too general.” (Code Civ. Proc., § 2030.300, subd. (a)(3). An objecting party is subject to sanctions for “boilerplate” objections. (Korea Data Systems Co. v. Superior Court (1997) 51 Cal.App.4th 1513, 1516.)

Plaintiff’s objections to the special interrogatories include: “Objection. This interrogatory is hopelessly compound, requiring as it does (sic.) the responding party to provide information about several related, but distinct concepts and allegations.” The objection was clearly copied and pasted as to each of the special interrogatories as they each contain the identical typographical error.

The special interrogatories are primarily “contention interrogatories,” and they are not compound. Plaintiff’s objections are without merit, and they are overruled.

Plaintiff’s objections to form interrogatories include: “In light of the rampant abuse of this type of identity information, responding party objects that the information sought is not reasonably calculated to lead to the discovery of any information that would be admissible in this case, and invasive of the right to personal privacy.” The form interrogatories that the objection is made to relate to plaintiff’s background information. This is not privileged information, is standard information that is provided during discovery, and is not privileged. Plaintiff’s objections to the remainder of the form interrogatories include slight variations of the following: “Objection. The term “Incident” as you have defined it makes this interrogatory impermissibly compound in that the complaint makes several distinct allegations, each and all of which are separate and distinct legal and factual issues. Your definition applies to a singular claim at best.” “Incident” is defined as: “INCIDENT includes the circumstances and events surrounding the alleged accident, injury, or other occurrence, or breach of contract giving rise to this action or proceeding.” The SAC is based on breach of contract. The definition of “incident” is clear and does not make the interrogatories compound.

Plaintiff’s objections are again without merit and will be overruled. Chicago Title’s motions to compel further verified responses to the interrogatories will be granted.

The court would be inclined to award monetary sanctions in favor of Chicago Title, as plaintiff’s boilerplate objections and evasive responses are without justification, but none have been requested.

            Request for Production of Documents

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.”

“Within 30 days after service of a demand for inspection, copying, testing, or sampling, the party to whom the demand is directed shall serve the original of the response to it on the party making the demand, and a copy of the response on all other parties who have appeared in the action, unless on motion of the party making the demand, the court has shortened the time for response, or unless on motion of the party to whom the demand has been directed, the court has extended the time for response.” (Code Civ. Proc., § 2031.260, subd. (a).)

“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).)

“If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it, the following rules shall apply:

“(a) The party to whom the demand for inspection, copying, testing, or sampling is directed waives any objection to the demand, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010).” (Code Civ. Proc., § 2031.300.)

According to Chicago Title, plaintiff produced some documents from plaintiff on March 22, 2024. However, Chicago Title did not receive a written response, either verified or unverified, to the requests for production.

Plaintiff was required to provide a formal written response, pursuant to the Code of Civil Procedure, yet he failed to do so. Chicago Title’s motion to compel will be granted.

As with the motions to compel further responses to interrogatories, the motion to compel responses to the request for production does not seek sanctions.