Mystica Fleury vs Byron Richard Tarnutzer et al

Case Number

22CV02886

Case Type

Hearing Date / Time

Fri, 11/15/2024 - 10:00

Nature of Proceedings

6 Motions to Compel

Tentative Ruling

(1) For all reasons discussed herein, the motion of plaintiff to compel further responses and documents responsive to plaintiff’s first set of requests for production of documents propounded to defendant Byron Richard Tarnutzer is granted, without prejudice to any future motion for a protective order, if any, that may be filed by defendant in this action.

(2) For all reasons discussed herein, the motion of plaintiff to compel further responses to plaintiff’s first set of requests for admission propounded to defendant Byron Richard Tarnutzer is granted, without prejudice to any future motion for a protective order, if any, that may be filed by defendant in this action.

(3) For all reasons discussed herein, the motion of plaintiff to compel further responses to plaintiff’s first set of form interrogatories propounded to defendant Byron Richard Tarnutzer is granted, without prejudice to any future motion for a protective order, if any, that may be filed by defendant in this action.

(4) For all reasons discussed herein, the motion of plaintiff to compel further responses to plaintiff’s first set of special interrogatories propounded to defendant Byron Richard Tarnutzer is granted, without prejudice to any future motion for a protective order, if any, that may be filed by defendant in this action.

(5) For all reasons discussed herein, the motion of plaintiff to compel further responses to plaintiff’s first set of requests for admission propounded to defendant Vonna Carol Tarnutzer is granted, without prejudice to any future motion for a protective order, if any, that may be filed by defendant in this action.

(6) For all reasons discussed herein, the motion of plaintiff to compel further responses to plaintiff’s first set of form interrogatories propounded to defendant Vonna Carol Tarnutzer is granted, without prejudice to any future motion for a protective order, if any, that may be filed by defendant in this action.

(7) On or before December 6, 2024, defendant Byron Richard Tarnutzer shall serve code compliant, verified further responses to plaintiff’s set one request for production of documents nos. 1 through 25, requests for admission nos. 1 through 3, form interrogatory nos. 2.2 through 2.7, 12.1, 17.1, 50.1, and 50.2, and special interrogatory nos. 3 and 5 through 8, without the objections overruled herein except as to those based on the attorney-client privilege or work product doctrine. To the extent defendant files, prior to the time for serving the further responses ordered herein, a procedurally appropriate motion for a protective order, the Court’s order as to the service of further responses only shall be held in abeyance pending a determination of that motion.

(8) On or before December 6, 2024, defendant Vonna Carol Tarnutzer shall serve code compliant, verified further responses to plaintiff’s set one requests for admission nos. 2 and 9 through 12, and form interrogatory nos. 2.2 through 2.7, 12.1, 17.1, and 50.1, without the objections overruled herein except as to those based on the attorney-client privilege or work product doctrine. To the extent defendant files, prior to the time for serving the further responses ordered herein, a procedurally appropriate motion for a protective order, the Court’s order as to the service of further responses only shall be held in abeyance pending a determination of that motion.

(9) For all reasons discussed herein, the Court awards sanctions in favor of plaintiff Mystica Fleury and against defendant Byron Richard Tarnutzer and his counsel, in the amount of $7,552.50, payable to plaintiff’s counsel. Payment of sanctions is due by December 15, 2024.

(10) For all reasons discussed herein, the Court awards sanctions in favor of plaintiff Mystica Fleury and against defendant Vonna Carol Tarnutzer and her counsel, in the amount of $3,382.50, payable to plaintiff’s counsel. Payment of sanctions is due by December 15, 2024.

Background:

Only the procedural history which is relevant for present purposes will be repeated here. Plaintiff Mystica Fleury filed an original complaint in this action on July 26, 2022, against defendants Byron Richard Tarnutzer aka Rick Tarnutzer (Rick), Vonna Carol Tarnutzer (Vonna), and American Interior (collectively, defendants). Fleury filed a first amended complaint against defendants on January 23, 2023.

Pursuant to a stipulation by the parties, Fleury filed her operative second amended complaint (the SAC) on August 24, 2023, alleging nine causes of action: (1) breach of contract - services (against all defendants); (2) breach of the covenant of good faith and fair dealing – services (against all defendants); (3) violation of the Contractors State License Law (against all defendants); (4) negligence – construction defect (against all defendants); (5) concealment/fraud (against all defendants); (6) unlawful, unfair, or fraudulent business practices (against all defendants); (7) accounting (against all defendants); (8) breach of contract – loan agreement (against Rick only); and (9) false promise – loan agreement (against Rick only). As alleged in the operative SAC:

In May 2020, Rick contacted Fleury with a plan for Fleury to purchase real property located next door to Rick at 546 Owen Road in Santa Barbara, California (the property). (SAC, ¶¶ 2, 10.) Though the property was rundown, Rick assured Fleury that he had a crew that would be able to remodel the property quickly and efficiently. (Id. at ¶ 10.) Rick also told Fleury that because he and Vonna, who does business as American Interiors, have remodeled many homes and Rick is an experienced builder, Rick would manage the project which would not require permits because, according to Rick, permits would slow the process down. (Id. at ¶ 4 & 10.) Rick also coached Fleury to tell anyone who asked that Fleury was an owner/builder when in fact Rick was taking on the project as a general contractor. (Id. at ¶ 10.)

Fleury purchased the property on November 24, 2020, and entered into an oral agreement with defendants (the agreement) under which defendants agreed to perform design and construction work at the property with an estimated completion date of June 2021. (SAC, ¶ 11.) The work to be performed by defendants required a general contractor’s license which defendants did not have. (Ibid.) Fleury agreed to reimburse defendants for the cost of the work with the understanding that defendants would not charge a fee for acting as general contractor. (Ibid.) Defendants did not provide Fleury with a total price for the work performed even though they represented multiple times that they would provide a budget to Fleury. (Ibid.) Under the agreement, the work was required to be up to code, timely performed, and photographed before walls were closed in. (Ibid.)

On February 24, 2022, a subcontractor informed Fleury that defendants had not paid them for their work and that Vonna had instructed all workers and subcontractors not to speak with Fleury about money. (SAC, ¶¶ 14 & 17.) On March 9, 2022, Fleury asked Rick for photos of the project which were never provided. (Id. at ¶ 15.) Fleury was scheduled to meet with Vonna on March 12, 2022, to review defendants’ invoicing but the meeting never took place. (Id. at ¶ 16.) Though Vonna promised to provide Fleury with documentation for the project including invoices and proof of payments made by defendants, defendants failed to provide this documentation. (Id. at ¶ 21.) 

On March 17, 2022, Fleury showed a subcontractor a summary of billing rates for hourly workers at the project that Fleury had received from defendants. (SAC, ¶ 18.) This subcontractor told Fleury that, except for himself, the other workers on the job were not being paid at the rates reflected in the summary. (Ibid.) Fleury believes that defendants charged her a fee for acting as general contractor but were failing to pay workers and subcontractors despite Fleury having paid for the work. (Id. at ¶ 22.)

Fleury paid approximately $1,492,066.09 to defendants for the project, which is still not complete. (SAC, ¶ 25.) Defendants did not disclose to Fleury that they did not hold a valid contractor’s license, failed to obtain necessary permits, improperly charged Fleury a general contractor fee, and charged Fleury on a time and material basis. (Id. at ¶ 24(c)-(d), 46 & 48-49.) In addition, the project was left in a defective condition. (Id. at ¶¶ 24(e) & 41-42.) Defendants also refused to provide Fleury with a complete accounting of income and expenses on the project which Fleury requested on April 14, 2022. (Id. at ¶ 61.)

In addition, in March 2021, Rick suggested that he had an investment opportunity and requested that Fleury loan him money with “tax free” interest to be earned by Fleury. (SAC, ¶ 65.) On March 15, 2021, Fleury agreed to lend Rick the sum of $1,250,000 at an interest rate of five percent per annum. (Id. at ¶ 66.) On May 6, 2021, Fleury agreed to lend to Rick the additional sum of $500,000, at the same interest rate. (Id. at ¶ 67.) On that date, defendants executed a promissory note (the promissory note) in favor of Fleury in the sum of $1,750,000 at the same interest rate, with a maturity date of June 30, 2024. (Id. at ¶ 68 & Exh. 1.) Rick failed to make timely interest only installments due under the terms of the promissory note. (Id. at ¶¶ 70 & 79.)

Pursuant to its February 2, 2024, Minute Order (the Stay Order) granting a motion to stay filed by the Tarnutzers, which was opposed by Fleury, this litigation was stayed until July 26, 2026, or upon further order of the Court. (See also Feb. 7, 2024, Order Granting Stay.) In the Stay Order, the Court ordered off-calendar six discovery motions which had been filed by Fleury on October 30, 2023, as further detailed below, subject to resetting upon expiration of the stay.

On August 23, 2024, the Court issued a Minute Order (the August 2024 Minute Order) granting a motion filed by Fleury on June 26, 2024, in which Fleury requested an order modifying the stay imposed under the Stay Order, and which was opposed by the Tarnutzers. In the August 2024 Minute Order, the Court ordered the stay vacated, subject to any future procedurally appropriate future motions for a protective order that may be filed by the Tarnutzers.

On August 28, 2024, the Court issued notice that the hearing on the six discovery motions previously filed by Fleury were rescheduled to November 15, 2024.

On August 29, 2024, the Tarnutzers answered the SAC, generally denying its allegations and asserting twenty two affirmative defenses.

Fleury’s October 30, 2023, discovery motions:

As noted above, the Court’s records reflect that on October 30, 2023, Fleury filed six motions which were originally set for hearing on February 2, 2024, and reset for hearing on November 15, 2024, due to the Stay Order: (1) a motion for an order (the Rick RFP Motion) compelling Rick to provide further responses, without objection, to a first set of requests for production of documents (the Rick RFP); (2) a motion for an order compelling Rick to provide further responses, without objection, to a first set of requests for admission (the Rick RFA); (3) a motion for an order (the Rick FI Motion) compelling Rick to provide further responses, without objection, to a first set of form interrogatories (the Rick FI); (4) a motion for an order (the Rick SI Motion) compelling Rick to provide further responses, without objection, to a first set of specially prepared interrogatories (the Rick SI); (5) a motion for an order (the Vonna RFA Motion) compelling Vonna to provide further responses, without objection, to a first set of requests for admission (the Vonna RFA Motion); and (6) a motion for an order (the Vonna FI Motion) compelling Vonna to provide further responses, without objection, to a first set of form interrogatories (the Vonna FI).

In each of the motions described above, to which the Court will refer collectively as the discovery motions, Fleury also requests separate awards of sanctions against Rick and Vonna, and their counsel.

In support of the discovery motions, Fleury submits separate declarations of her counsel, Dimitri P. Gross (Gross), which each include similar and related information with respect to the discovery requests at issue and further described above. Where appropriate, the Court will refer to the Gross declarations collectively.

In each of his declarations, Gross states that Fleury served the Rick FI, the Rick SI, the Rick RFA, and the Rick RFP (collectively, the Rick Discovery Requests), as well as the Vonna RFA and the Vonna FI (collectively, the Vonna Discovery Requests) on December 16, 2022. (Gross Decls., ¶ 3.) (Note: The Gross declaration submitted in support of the Rick RFA Motion refers only to the Rick SI and not the Rick RFA. This appears to be an error.) Rick and Vonna served responses to, respectively, the Rick Discovery Requests and the Vonna Discovery Requests on July 24, 2023, which Gross contends were each insufficient, evasive, and contain boilerplate objections. (Id. at ¶ 5 & Exhs. 2.) Gross conferred with counsel for the Tarnutzers regarding the responses of Rick and Vonna to the Rick Discovery Requests and the Vonna Discovery Requests. (Id. at ¶¶ 6-9 & Exhs. 3-4.) After months of delay, Rick and Vonna did not agree to supplement their responses to the Rick Discovery Requests or the Vonna Discovery Requests, nor has Gross received further responses to these requests. (Id. at ¶¶ 10, 14 & Exhs. 5.) In addition, Rick has produced 10 pages of documents which are attached to the Gross declarations as exhibit 6. (Id. [Rick RFP Motion] at ¶ 11.)

On January 22, 2024, the Tarnutzers filed a “combined” opposition to the discovery motions (the combined opposition).

On November 1, 2024, the Tarnutzers filed a supplemental opposition to the discovery motions (the supplemental opposition).

Analysis:

(1) The Rick Discovery Motions

The Rick RFP:

Upon the receipt of a response to an inspection demand, the demanding party may move for an order compelling a further response to the demand “if the demanding party deems that . . . [a] statement of compliance with the demand is incomplete[,] [a] representation of inability to comply is inadequate, incomplete, or evasive[,] or [a]n objection in the response is without merit or too general.” (Code Civ. Proc. §2031.310, subd. (a)(1)-(3).)

Based on information appearing in the separate statement submitted in support of the Rick RFP Motion, Rick RFP nos. 1 through 25 are at issue. A motion to compel further responses to an inspection demand must “set forth specific facts showing good cause justifying the discovery sought by the demand” which, under circumstances where there exist no issues of privilege or claims of attorney work product, “is met simply by a fact-specific showing of relevance.” (Code Civ. Proc. §2031.310, subd. (b)(1); Glenfed Development Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117.) If good cause is shown, the burden then shifts to the responding party to justify any objections or failure to respond fully to the demand. (Fairmont Insurance Company v. Superior Court (2000) 22 Cal.4th 245, 255 (Fairmont).)

Rick RFP nos. 1 through 4 and 12 through 20 request the production of documents evidencing or relating to the promissory note including funds borrowed from Fleury pursuant to the promissory note, payments made to Fleury with respect to any funds borrowed from Fleury including pursuant to the promissory note, and to whether any funds borrowed from Fleury would be secured by any asset or deed of trust. (Sep. Stmt. at pp. 1-4 & 9-14.) Fleury asserts that good cause exists for the requests stated in RFP nos. 1 through 4 and 12 through 20 because Fleury alleges in this action that in 2021, she was defrauded into lending Rick money under the promissory note which was to be invested on Fleury’s behalf. (Ibid.; see also Gross Decl. [Rick RFP Motion], ¶ 15.)

Absent from the combined opposition and supplemental opposition is any reasoned argument showing why there exists no good cause for the discovery sought in Rick RFP nos. 1 through 4 and 12 through 20. Considering the allegations of the SAC that give rise to the causes of action for breach of contract and false promise alleged against Rick with respect to the promissory note, Fleury has sufficiently explained how the discovery sought in Rick RFP nos. 1 through 4 and 12 through 20 will tend to prove a fact that is of consequence in this action. (Digital Music News LLC v. Superior Court (2014) 226 Cal.App.4th 216, 224, disapproved on another ground in Williams v. Superior Court (2017) 3 Cal.5th 531, 557, fn. 8 (Williams).) Therefore, the Court finds that Fleury has demonstrated sufficient good cause for the requests stated in Rick RFP nos. 1 through 4 and 12 through 20.

Rick RFP nos. 5 and 6 request the production of communications with Fleury concerning Vonna and American Interiors. (Sep. Stmt. at p. 5.) Fleury asserts that good cause exists for the requests stated in these RFP because the Tarnutzers misrepresented to Fleury that they were qualified to handle the remodel of Fleury’s home, and that communications between Fleury and Rick concerning Vonna may reflect that Rick made representations regarding Vonna’s qualifications, among other things. (Ibid.) Fleury further contends that Vonna has admitted that deposited money Vonna received from Fleury into the bank accounts of American Interiors, which is not a separate entity but a fictitious business name under which Vonna does business, such that the communications sought in Rick RFP nos. 5 and 6 are relevant to establish what happened to Fleury’s money and how it was used by the Tarnutzers. (Id. at pp. 5 & 6.)

Rick offers no reasoned argument disputing the existence of good cause justifying the requests stated in Rick RFP nos. 5 and 6. Furthermore, considering the information offered by Fleury and the allegations and causes of action of the SAC with respect to American Interiors, the Court finds that good cause exists for the requests stated in Rick RFP nos. 5 and 6.

Regarding Rick RFP nos. 7 through 11 and 21 through 25, these requests seek the production of communications with Fleury or any other person concerning improvements to the property, and funds owed to any person including members of the Tarnutzer family and American Interiors for improvements to the property. (Sep. Stmt. at pp. 6-8 & 15-17.) Fleury contends that there exists good cause for the production of these communications because they will reflect Rick’s receipt and use of funds provided by Fleury under the promissory note and for improvements to the property. (Id. at pp. 2, 6-9 & 15-18.) Considering the subject matter of the issues presented in this litigation as further discussed above, and as Rick does not appear to dispute the contentions of Fleury, the Court finds that good cause exists for the requests stated in Rick RFP nos. 7 through 11 and 21 through 25.

The responses of Rick to Rick RFP nos. 1, 2, 5 through 9, 13, 14, 16, 19 through 21, and 23 through 25 include objections which Rick bears the burden to justify.

The Court has no record of Rick having filed a response to the separate statement submitted in support of the Rick RFP Motion. In the combined opposition, the Tarnutzers state that their counsel only recently substituted into the action, did not prepare the responses at issue, and did not meet and confer with counsel for Fleury prior to the filing of the discovery motions. (Jan. 22, 2024, Opp. at p. 2, ll. 2-5.) The Tarnutzers further represented to the Court that, upon their counsel’s review of the responses to the discovery requests at issue in the discovery motions, counsel agreed that the responses should be supplemented. (Id. at p. 2, ll. 6-7.) The Tarnutzers requested that the Court hold the discovery motions in abeyance until after the Court issued its ruling on their motion to stay the litigation. (Id. at p. 2, ll. 9-12.) To the extent the Court denied the motion to stay the litigation, the Tarnutzers requested additional time to supplement their responses to the discovery requests. (Id. at p. 2, ll. 12-14.)

In the supplemental opposition, the Tarnutzers assert that on September 1, 2023, the Contractors State License Board (the CSLB) recommended the criminal prosecution of the Tarnutzers, that a misdemeanor complaint alleging multiple violations of the Santa Barbara Municipal Code was filed against the Tarnutzers on September 28, 2023, and that on September 15, 2023, the Labor Commissioner’s Office issued two claim notices alleging multiple wage related violations concerning subcontractors who performed work at Fleury’s home. As a result of these events, the Tarnutzers contend that their Fifth Amendment right against self-incrimination has been implicated such that they should not be required to provide further responses to any of the discovery at issue in the discovery motions.

In support of their supplemental opposition, the Tarnutzers submit the declaration of Phillip G. Trad (Trad), who states that he is counsel of record for the Tarnutzers in Santa Barbara Superior Court case number 23CR06596 (the criminal action), which was filed on September 28, 2023, and in which the Santa Barbara city attorney or prosecutor has alleged multiple violations ostensibly by the Tarnutzers of the Santa Barbara Municipal Code. (Trad Decl., ¶ 1.) Trad also asserts that, notwithstanding the entry of a diversion agreement, the criminal action remains ongoing due to the existence of an unpaid fine and new or expanded accusations raised by Fleury. (Id. at ¶ 7.) Trad also states that he has been involved in ongoing disputes raised by Fleury against the Tarnutzers. (Id. at ¶ 5.)

Trad declares that he has reviewed the Rick Discovery Requests and the Vonna Discovery Requests as well as supplemental or additional discovery ostensibly served by Fleury on October 2, 2023. (Trad Decl., ¶4(a) & (b).) Trad further declares that “[w]ith the level and severity of the various false allegations, actions, government investigations initiated by [Fleury] in her vindictive attack upon the [Tarnutzers], as well as [Fleury’s] other neighbors, [Trad] must advise and will continue to advise [the Tarnutzers] that they take advantage of their 5th Amendment rights and continue to assert them until all of these allegations have been resolved.” (Id. at ¶ 8.)

Whether or not there exists grounds, if any, for an objection to any particular request stated in the Rick RFP based on a Fifth Amendment privilege, Rick has not asserted any objections to the Rick RFP on this basis ostensibly due to the fact that the CSLB’s recommendation and the criminal action arose after Rick served his responses to the Rick RFP. Notwithstanding this fact, as Rick has failed to justify the unrelated objections asserted in his original responses which are at issue in the Rick RFP Motion, the Court will overrule the objections of Rick to the Rick RFP except as to those based on the attorney-client privilege or work product doctrine.

Even if the Court were to assume without deciding that there exists some possibility that a criminal proceeding may be filed based on recommendations made by the CSLB or that the criminal action remains ongoing in some manner (and the Court is presently unable to make any specific findings in this regard for reasons more fully discussed below), the Court has no record of the filing of a procedurally appropriate motion for a protective order by Rick with respect to any of the Rick RFP at issue. As noted by the Court in its August 2024 Minute Order, Rick does not have an absolute right to invoke the privilege against self-incrimination in this action absent any demonstrated prejudice. (Alvarez v. Sanchez (1984) 158 Cal.App.3d 709, 712; Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 882, 885 (Avant!).)

In addition, to the extent Rick contends he is entitled to a protective order with respect to all of the Rick RFP at issue, the information appearing in the Trad declaration is unsupported, overly general, and conclusory, and appears to suggest nothing more than a possibility of future criminal prosecution with respect to the recommendation of the CSLB, the potential future disposition in the criminal action, or potential new charges arising from additional complaints made by Fleury. The existence of a possibility of future criminal prosecution is, for present purposes, insufficient to show prejudice to any right asserted by Rick with respect to any particular request stated in the Rick RFP. Further, wholly absent from the Trad declaration, and the supplemental opposition, is any reasoned factual or legal argument with respect to any specific request stated or issue presented in the Rick RFP with respect to the criminal action, the CSLB recommendation, or the nature of the additional new potential charges referenced in the Trad declaration. Therefore, the Court is unable to make the findings required to issue an appropriate order. (See, e.g., Code Civ. Proc., § 2017.020 & 2031.060 [also requiring that a motion for a protective order be accompanied by a meet and confer declaration].)

Available information also shows that Rick and Vonna filed the combined opposition after the CSLB issued its recommendation and the criminal action was filed. The Court understands the representations made in the combined opposition as a concession that there is some merit to the discovery motions notwithstanding whether grounds exist for a protective order, which Rick has not requested in a procedurally appropriate manner or on a point-by-point basis with respect to each specific request at issue as further discussed in the August 2024 Minute Order. (Avant!, supra, 79 Cal.App.4th at p. 888; Warford v. Medeiros (1984) 160 Cal.App.3d 1035, 1045 [noting that it has “long been the rule in California” that the privilege against self-incrimination must be claimed on a particular question and submitted to the court].) Absent an appropriate motion or specific objection to a particular individual request, the Court is unable to rule on the validity of any invocation by Rick of the privilege against self-incrimination with respect to any of the Rick RFP, or to fashion a reasonable or appropriate protective order.

Available information also demonstrates that the claims alleged by Fleury in the eighth and ninth causes of action of the SAC do not arise from and are not dependent on the performance of any unlicensed work by Rick. The subject matter of Rick RFP nos. 1 through 4 and 12 through 20, on their face, appears to relate to the claims alleged in the eighth and ninth cause of action with respect to the purported breach of the promissory note by Rick. To the extent these requests seek discovery relating to the eighth and ninth causes of action or the promissory note, it would appear, for present purposes, that Rick’s concerns are not well founded. For this and all reasons discussed above, the Court is not inclined at this stage of the proceedings to issue the blanket protective order requested by Rick absent a procedurally appropriate motion.

Furthermore, and apart from the issue of whether or not any specific request may implicate any right against self-incrimination, Rick’s responses to the Rick RFP are not code compliant. A party responding to requests for production of document must respond, separately, to each request by “(1) [a] statement that the party will comply with the particular demand . . . [a] representation that the party lacks the ability to comply with the demand . . . (3) [a]n objection to the particular demand[.]” (Code Civ. Proc., § 2031.210, subd. (a).)

“A statement that the party to whom a demand for inspection, copying, testing, or sampling has been directed will comply with the particular demand shall state that the production, inspection, copying, testing, or sampling, and related activity demanded, will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.” (Code Civ. Proc., § 2031.220.)

“A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.” (Code Civ. Proc., § 2031.230.)

“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.” (Code Civ. Proc., § 2031.240, subd. (a).) “If the responding party objects to the demand[,] the response shall do both of the following: (1) [i]dentify 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.” (Id., subd. (b).) “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.” (Id., subd. (c)(1).)

By way of example, and apart from objections which the Court will overrule, the response of Rick to Rick RFP no. 2 states that Rick “believes that documents responsive to this request are in the possession of” Fleury, and that Rick “will comply with this request by producing all non-privileged documents responsive to this request that it can locate after a diligent search and reasonably inquiry upon the entry of a Stipulated Protective Order.” (Sep. Stmt. at p. 3.) As a further example, in his response to Rick RFP no. 3, Rick states that “[a]fter a diligent search and a reasonable inquiry, [Rick] has no non-privileged documents responsive to this request because [Rick] is not aware that any documents responsive to this request exist.” (Id. at p. 4.)

Though the response of Rick to Rick RFP no. 2 includes unjustified objections, the substantive response fails to identify, with particularity, any document to which an objection is made. For this reason, neither the Court nor Fleury are able to determine from the response whether or which documents have been withheld based on any objection. The response also fails to state that the production will be allowed either in whole or in part, and “that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.” (Code Civ. Proc., § 2031.220.) For these reasons, Rick’s response to Rick RFP no. 2 fails to comply with code requirements further discussed above.

The response of Rick to Rick RFP no. 3 suggests that Rick is unable to comply with this request because the communications demanded by Fleury no longer exist. However, neither the Court nor Fleury can reasonably determine from the response whether Rick is unable to comply with Rick RFP no. 3 because the communications have never existed, were destroyed, lost, misplaced, or stolen, or have never been, or is no longer, in the possession, custody, or control of Rick. The response also fails to provide the name and address of any natural person or organization known or believed by Rick to have possession, custody, or control of the requested communications. For these reasons, the response of Rick to Rick RFP no. 3 fails to fully comply with the provisions of Code of Civil Procedure section 2031.230.

The examples offered above are intended to be illustrative but not exhaustive, and to provide guidance with respect to whether the responses of Rick to the Rick RFP are code compliant.

Considering the absence of any evidence or information demonstrating the existence of any pending or imminent parallel criminal prosecution of Rick, the absence of any reasoned argument showing justification for the objections to the Rick RFP, and the absence of any appropriate motion for a protective order, the Court will grant the Rick RFP Motion and require Rick to serve verified further responses to Rick RFP nos. 1 through 25, without the objections overruled herein. Code compliant statements must be included in the verified further responses.

Nothing herein shall be construed to prevent Rick from asserting appropriate objections to any particular request stated in the Rick RFP based on any privilege against self-incrimination. Further, to the extent Rick asserts objections on the grounds of the attorney-client privilege or work product doctrine, Rick must provide a sufficient privilege log. (See Catalina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, 1130 [general discussion].)

In addition, should Rick file a motion for a protective order with respect to any particular Rick RFP prior to the date for serving verified further responses, the Court’s order shall be held in abeyance pending the Court’s ruling on that motion. The Court expects Rick to fully meet and confer with counsel for Fleury, in good faith, to informally resolve any issues before filing a motion for a protective order. (Code Civ. Proc., § 2031.060, subd. (a).) In addition, any motion for a protective order that may be filed by Rick must be procedurally appropriate and must show, on a point-by-point basis, good cause for the order sought with respect to each request stated or issue presented in each of the Rick RFP for which Rick seeks a protective order. (Fairmont, supra, 22 Cal.4th at p. 255; see also People v. Williams (1999) 20 Cal.4th 119, 128 [“the party that has the burden of raising an issue also has the burden of proof with respect to that issue”].)

The Rick RFA:

An answer to a request for admission must “[a]dmit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by the responding party”, “[d]eny so much of the matter involved in the request as is untrue”, or “[s]pecify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge.” (Code Civ. Proc., § 2033.220, subd. (b)(1)-(3).) In addition, each answer must “be as complete and straightforward as the information reasonably available to the responding party permits.” (Code Civ. Proc., § 2033.220, subd. (a).)

In lieu of answering the substance of an admission request, a party may object to the request by clearly setting forth the specific ground for the objection in the response. (Code Civ. Proc., §§ 2033.210, subd. (b); 2033.230, subd. (b).) “If only a part of a request for admission is objectionable, the remainder of the request shall be answered.” (Code Civ. Proc., § 2033.230, subd. (a).)

The separate statement submitted in support of the Rick RFA Motion indicates that Rick RFA nos. 1 through 3 are at issue, which request that Rick admit that he created, executed, and ceased paying the promissory note. (See Sep. Stmt. at pp. 1-2.) In his responses to Rick RFA nos. 1 through 3, Rick asserts only objections which are ostensibly based solely on a purported failure of Fleury to attach to the requests a copy of the promissory note referenced in the Rick RFA, and a failure of Fleury to define the term “Note”. (Ibid.)

Rick offers no reasoned argument showing cause for the objections to Rick RFA nos. 1 through 3. Therefore, Rick has failed to meet his burden to justify his objections to these admission requests. For this reason, the Court will overrule the objections of Rick to the Rick RFA at issue. In addition, information provided by Fleury in the separate statement suggests that the promissory note referenced in the Rick RFA at issue was attached to the requests but was mislabeled. As further discussed above, to the extent only part of the Rick RFA at issue are objectionable, Rick is required to answer the remainder of each of the Rick RFA. (See, e.g., Cembrook v. Superior Court (1961) 56 Cal.2d 423, 429.) For this reason, the responses of Rick to Rick RFA nos. 1 through 3 are also not code compliant.

As further discussed above, Rick has not filed a motion for a protective order with respect to Rick RFA nos. 1 through 3. The same reasoning and analysis applies here. For all reasons further discussed above, the Court will grant the Rick RFA Motion and require Rick to serve verified, code compliant further responses to Rick RFA nos. 1 through 3, without the objections overruled herein. To the extent Rick files a procedurally appropriate motion for a protective order with respect to any of the Rick RFA at issue in the Rick RFA Motion prior to the date for providing further responses, the Court’s order shall be held in abeyance pending a determination of that motion. Any motion for a protective order with respect to the Rick RFA must also be procedurally appropriate and comply with the Court’s ruling herein.

The Rick FI and Rick SI:

A party responding to interrogatories must respond separately to each interrogatory by either “[a]n answer containing the information sought to be discovered”, “[a]n exercise of the party’s option to produce writings”, or “[a]n objection to the particular interrogatory. (Code Civ. Proc., § 2030.210, subd. (a)(1)-(3).) Each 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 must be answered to the extent possible. (Code Civ. Proc., § 2030.220, subd. (b); Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783, superseded by statute on another ground as stated in Guzman v. General Motors Corp. (1984) 154 Cal.App.3d 438, 444 [“a party may not provide deftly worded conclusionary answers designed to evade a series of explicit questions”].) If the responding party does not have sufficient personal knowledge to enable that party to respond fully to the interrogatory, that party shall so state. (Code Civ. Proc., § 2030.220, subds. (b) & (c).) That party, however, “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.” (Id., subd. (c).)

At issue in the Rick FI Motion are Rick FI nos. 2.2 through 2.7, 12.1, 17.1, 50.1, and 50.2. At issue in the Rick SI Motion are Rick SI nos. 3 and 5 through 8. As further discussed above, Rick bears the burden to show cause justifying the objections to Rick FI nos. 2.2 through 2.7, 12.1, and 17.1, and Rick SI nos. 5, 7, and 8. (Williams, supra, 3 Cal.5th at pp. 541, 549; West Pico Furniture Co. of Los Angeles v. Superior Court (1961) 56 Cal.2d 407, 422.) Because Rick has also failed to offer any reasoned legal or factual argument justifying any of his objections to these interrogatories, the Court will overrule the objections to the Rick FI and Rick SI except as to those based on the attorney-client or work product privileges.

The same reasoning and analysis applies with respect to the absence of any appropriate motion for a protective order with respect to the Rick FI and Rick SI. Furthermore, information appearing in the separate statement demonstrates that the Rick SI relate to the monies borrowed from and owed to Fleury under the promissory note and do not on their face, appear to implicate the recommendation of the CSLB or the criminal action.

The Court further notes that the subject matter of the Rick FI includes Rick’s date and place of birth, license to operate a motor vehicle, address, employment, and education, as well as the promissory note at issue and further discussed above. Though these interrogatories do not, on their face, appear to implicate any right of self-incrimination with respect to any purported CSLB recommendation or the criminal action, Rick has failed to provide any substantive response to Rick FI nos. 2.2 through 2.7. Considering the representations made in the combined opposition with respect to the purported necessity for further responses as further discussed above, Rick has also failed to explain why the responses to Rick FI nos. 12.1, 17.1, 50.1, and 50.2, which also do not appear to be complete and straightforward, are code compliant.

The same reasoning and analysis applies. Considering that Rick has effectively conceded that the Rick FI Motion and Rick SI Motion have merit, and that Rick has not filed a procedurally appropriate motion showing on a point-by-point basis good cause for a protective order with respect to each of the Rick FI and Rick SI at issue, the Court will grant the Rick SI Motion and the Rick FI Motion, and require Rick to serve verified, code compliant further responses to Rick SI nos. 3 and 5 through 8, and Rick FI nos. 2.2 through 2.7, 12.1, 17.1, 50.1, and 50.2, without the objections overruled herein.

To the extent Rick files, prior to the date for further responses, a procedurally appropriate motion for a protective order with respect to the Rick SI or Rick FI at issue in the Rick SI Motion and the Rick FI Motion, the Court’s order shall be held in abeyance pending a determination of that motion. Any motion for a protective order with respect to the Rick SI or Rick FI must also be procedurally appropriate and comply with the Court’s ruling herein.

(2) The Vonna Discovery Motions

The Vonna RFA Motion:

In the Vonna RFA Motion, Fleury seeks to compel further responses to Vonna RFA nos. 2 and 9 through 12, which request Vonna to admit, respectively, that Vonna controls American Interiors, that Vonna provided services to Fleury relating to the property during specified time periods, and that American Interiors provided services to Fleury relating to the property during specified time periods. (Sep. Stmt. at pp. 1-3.) In her responses to Vonna RFA nos. 2 and 9 through 12, Vonna asserts objections which form the basis on which Vonna denies each request. (Ibid.)

The same reasoning and analysis applies. Vonna has not filed any opposition to the Vonna RFA Motion apart from the combined opposition and supplemental opposition described above. Wholly absent from those oppositions is any reasoned argument showing that the objections to the Vonna RFA are justified. For this reason, the Court will overrule the objections of Vonna to Vonna RFA nos. 2 and 9 through 12. Further, as the denial of each admission request is based on objections which Vonna has failed to justify, and as the Court has no record of the filing of any motion for a protective order by Vonna, the Court will require Vonna to serve verified, code compliant responses to Vonna RFA nos. 2 and 9 through 12, without the objections overruled herein.

To the extent Vonna files a procedurally appropriate motion for a protective order with respect to the Vonna RFA at issue in the Vonna RFA Motion prior to the date for providing further responses, the Court’s order shall be held in abeyance pending a determination of that motion. Any motion for a protective order with respect to the Vonna RFA must also be procedurally appropriate and comply with the Court’s ruling herein.

 

The Vonna FI Motion:

At issue in the Vonna FI Motion are Vonna’s responses to Vonna FI nos. 2.2 through 2.7, 12.1, 17.1, and 50.1, which are identical to the same Rick FI at issue in the Rick FI Motion.

With the exception of Vonna’s response to Vonna FI no. 17.1, the responses of Vonna to the Vonna FI are substantially similar if not identical to the responses of Rick to the same Rick FI, including with respect to objections asserted by Vonna. Vonna also offers no reasoned argument justifying or showing cause for any objection to the Vonna FI. In addition, Vonna has not filed a motion for a protective order showing, on a point-by-point basis, good cause for why Vonna should not be compelled to provide further responses to the Vonna FI.

As Vonna has also acknowledged that further responses to the Vonna FI are warranted notwithstanding the prior filing of the criminal action and the CSLB’s recommendations, and for all reasons further discussed above, the Court will grant the Vonna FI Motion and require Vonna to serve verified, code compliant further responses to Vonna FI nos. 2.2 through 2.7, 12.1, 17.1, and 50.1, without objections overruled herein. To the extent Vonna files a procedurally appropriate motion for a protective order with respect to the Vonna FI prior to the date for providing the further responses, the Court’s order shall be held in abeyance pending a determination of that motion. Any motion for a protective order with respect to the Vonna FI must be procedurally appropriate and comply with the Court’s ruling herein.

(3) Sanctions

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 an inspection demand, interrogatories, or requests for admissions, “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); 2031.310, subd. (h); 2033.290, subd. (d).)

Rick has failed to demonstrate cause or justification for the objections asserted by Rick to the Rick RFP, Rick RFA, Rick SI, or Rick FI. Vonna has also failed to show cause for the objections asserted by Vonna to the Vonna RFA or the Vonna FI. In addition, Rick and Vonna each effectively conceded in their combined opposition which was filed after the CSLB made its recommendations and the criminal action was filed, that the discovery motions have merit and that further responses to the Rick RFP, Rick RFA, Rick SI, Rick FI, Vonna RFA, and Vonna FI are warranted. Though Rick and Vonna requested in their combined opposition that the Court provide additional time to permit the service of further responses prior to ruling on the discovery motions, neither Rick nor Vonna served further responses to any of the discovery requests at issue.

In addition, though the August 2024 Minute Order was made without prejudice to the filing of an appropriate motion for a protective order by Rick or Vonna with respect to the Rick Discovery Motions or the Vonna Discovery Motions, neither Rick nor Vonna filed such a motion demonstrating, on a point-by-point basis, why the subject matter of any of the discovery requests at issue implicate Fifth Amendment rights against self-incrimination. Because Rick and Vonna have each engaged in a misuse of the discovery process by making unmeritorious objections without substantial justification, by failing to provide code compliant full and complete responses to the discovery requests at issue in the Rick Discovery Motions and the Vonna Discovery Motions, and by failing to either serve further responses or request an appropriate protective order, an award of sanctions against Rick and Vonna is warranted to compensate Fleury for expenses incurred in bringing the Rick Discovery Motions and the Vonna Discovery Motions.

The Court has reviewed the information provided in the Gross declarations submitted in support of the Rick Discovery Motions and the Vonna Discovery Motions. The information reflects that the hourly rate charged by counsel for Fleury is $450. Based on the Court’s own knowledge and familiarity with the legal market, the Court finds that this hourly rate is reasonable. (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009.)

Information appearing in the Gross declarations also reflects that Gross expended three hours to prepare the Rick RFP Motion, three hours to prepare the Rick RFA Motion, three hours to prepare the Rick FI Motion, and six hours to prepare the Rick SI Motion, for a total of fifteen hours to prepare the Rick Discovery Motions. (Gross Decls. [Rick Discovery Motions], ¶ 16.) There is no information to suggest that the time spent by counsel to prepare the Rick Discovery Motions is unreasonable.

In addition, Gross expended three hours preparing the Vonna RFA Motion and three hours preparing the Vonna FI Motion, for a total of six hours to prepare the Vonna Discovery Motions. (Gross Decls. [Vonna Discovery Motions], ¶ 12.) There is also no information to suggest that the time spent by counsel to prepare the Vonna Discovery Motions is unreasonable.

Gross further declares that he expects to spend an additional two hours to review and respond to any opposition to the Rick RFP Motion, two hours to review and respond to any opposition to the Rick RFA Motion, two hours to review and respond to any opposition to the Rick FI Motion, and three hours to review and respond to any opposition to the Rick SI Motion. (Gross Decls. [Rick Discovery Motions], ¶ 16.) These estimates also include time for Gross to attend the hearing on the Rick Discovery Motions. (Ibid.)

Gross also states that he expects to spend an additional two hours reviewing and responding to any opposition to the Vonna RFA Motion, and two hours reviewing and responding to any opposition to the Vonna FI Motion.  (Gross Decls. [Vonna Discovery Motions], ¶ 12.) These estimates also include time spent by Gross to attend the hearing on the Vonna Discovery Motions. (Ibid.)

“The principle of reasonableness means a trial court has discretion to reduce the amount of fees and costs requested as a discovery sanction in order to reach a reasonable award.” (Cornerstone Realty Advisors, LLC v. Summit Healthcare Reit, Inc. (2020) 56 Cal.App.5th 771, 791.) The amount of the sanctions needs to reflect the reasonable expenses incurred as a result of the misuse of the discovery process. While the Court agrees that counsel for Fleury will necessarily spend time to review and respond to Rick and Vonna’s oppositions to the Rick Discovery Motions and the Vonna Discovery Motions and to attend the hearing, the fees sought by Fleury are excessive considering that the combined opposition and supplemental opposition of the Tarnutzers are each relatively brief. Moreover, counsel will attend one hearing for each of the motions at issue. For these reasons, the Court finds that fees reflecting 1.5 hours for counsel to review and respond to the oppositions of the Tarnutzers, and 1 hour to attend the hearing on the Rick Discovery Motions and the Vonna Discovery Motions, for a total of 2.5 additional hours equally divided as between the Rick Discovery Motions and the Vonna Discovery Motions, is reasonable.

Under the circumstances present here including the Court’s experience with addressing attorney fee issues, the Court finds that 16.25 hours of total time at the reasonable hourly rate of $450, for a total of $7,312.50, constitutes the reasonable amount of attorney fees incurred as a result of the filing of the Rick Discovery Motions and Rick’s misuse of the discovery process for which monetary sanctions are appropriately awardable. The Court further finds that 7.25 hours of total time at the reasonable hourly rate of $450, for a total of $3,262.50, constitutes the reasonable amount of attorney fees incurred as a result of the filing of the Vonna Discovery Motions and Vonna’s misuse of the discovery process for which monetary sanctions are appropriately awardable.

The Court will also award filing fees incurred by Fleury in the amount of $60 for each of the four Rick Discovery Motions for a total of $240 in filing fees as to these motions. In addition, the Court will award filing fees incurred by Fleury in connection with the two Vonna Discovery Motions, in the amount of $120 ($60 x 2).