Damir Pevec vs Bayshore Housing LLC

Case Number

22CV04266

Case Type

Hearing Date / Time

Fri, 02/09/2024 - 10:00

Nature of Proceedings

Motion to Compel

Tentative Ruling

For all reasons set forth herein, the motion of plaintiff to compel defendant to provide further supplemental responses and documents in response to plaintiff’s set one requests for production, and for monetary sanctions, is denied without prejudice.

Background:

On October 31, 2022, plaintiff Damir Pevec (Pevec), as Administrative Trustee of the Cheston Administrative Trust under the Cochran-Cheston Trust (the Administrative Trust), and as Trustee of the Bayshore Tower Apartments Trust (the Bayshore Trust) (collectively, plaintiff) filed a complaint against defendant Bayshore Housing, LLC. The complaint alleges three causes of action against defendant: (1) breach of contract; (2) breach of the covenant of good faith and fair dealing; and (3) declaratory relief. As alleged in the complaint:

On December 19, 2018, the Bayshore Trust and defendant entered into a “Surplus Cash Note” (the note) whereby defendant promised to pay Bayshore Towers (the payee) the sum of $3 million with interest at the rate of seven percent per annum, payable annually commencing on June 30, 2021. (Complaint, ¶ 13.) Defendant paid the Bayshore Trust the sum of $1 million within the period agreed to under the note. (Id. at ¶ 14.) Defendant did not pay the Bayshore Trust the remaining $2 million owed under the note, nor did defendant pay the Bayshore Trust any interest. (Id. at ¶¶ 15, 16.)

The Bayshore Trust, the Administrative Trust, and defendant entered into a settlement agreement dated March 31, 2022 (the settlement agreement), pursuant to which defendant agreed to pay to the Administrative Trust the principal amount of $1.4 million on or before May 31, 2022. (Compl., ¶¶ 18, 19.) Defendant has not paid the $1.4 million owed to Bayshore Towers or the Administrative Trust. (Id. at ¶ 28.)

Defendant filed its answer to the complaint on January 10, 2023, generally denying its allegations and asserting nine affirmative defenses.

On April 12, 2023, the Administrative Trust filed a motion for an order compelling defendant to provide responses and documents in response to the Administrative Trust’s requests for production of documents set one (the RFP) and for monetary sanctions in the amount of $2,945 (the first motion to compel).

Court records reflect that defendant did not file an opposition to the first motion to compel. (See also Administrative Trust’s Notice of Non-Opposition filed July 14, 2023.)

On July 21, 2023, the court issued its Minute Order (the Minute Order) granting the unopposed first motion to compel, in part. The court ordered defendant to serve verified code compliant further responses to RFP Nos. 1 through 5 and 11 through 19, without objections other than those based on privilege, and to produce any responsive documents and a privilege log, if necessary, no later than August 11, 2023. (See Minute Order.) In addition, the court awarded monetary sanctions in favor of Pevec and against defendant in the amount of $1,581.75. (Ibid.) Except as otherwise granted, the court denied the first motion to compel, without prejudice.

On November 9, 2023, the Administrative Trust filed a motion for an order compelling defendant to provide responses and documents, and for monetary sanctions in the amount of $3,420, on the grounds that defendant has not provided responses to RFP Nos. 1 through 5 or 11 through 19, has not produced documents responsive to RFP Nos. 1 through 5 or 11 through 19, has failed to identify which documents previously produced by defendant are responsive to RFP Nos. 1 through 5 or 11 through 19, and has failed to produce a privilege log.

In support of the present motion, the Administrative Trust submits the declaration of its counsel, Jonathan D. Marvisi, who declares that on August 9, 2023, defendant produced some documents but did not include a privilege log and did not identify which documents were being produced with respect to each RFP at issue. (Marvisi Decl., ¶ 17.) On August 12, 2023, defendant served supplemental responses to the RFP and produced additional documents. (Id. at ¶¶ 18, 19 & Exh. 4.)

On August 30, 2023, the Administrative Trust sent a meet and confer letter to defendant regarding missing documents that the Administrative Trust believes are in defendant’s possession, a failure by defendant to identify documents responsive to each RFP, and defendant’s failure to pay the sanctions ordered by the court. (Marvisi Decl., ¶ 20 & Exh. 6.) On September 3, 5, and 7, 2023, counsel for the Administrative Trust made further efforts to meet and confer with defendant regarding what the Administrative Trust contends is a deficient document production. (Id. at ¶¶ 22, 23, 24.)

On September 8, 2023, defendant’s counsel communicated to counsel Marvisi that defendant would provide supplemental responses by September 22, 2023. (Marvisi Decl., ¶ 25.) No supplemental documents or responses were provided by September 22, 2023. (Id. at ¶ 26.)

On October 5, 2023, the parties further met and conferred regarding defendant’s production of documents. (Marvisi Decl., ¶¶ 28, 29.) In these further communications, defendant’s counsel informed the Administrative Trust that defendant was likely to hire new counsel and that counsel needed until October 13, 2023, to provide Bates numbers to each RFP in a supplemental response. (Id. at ¶ 29.) Defendant did not produce supplemental responses or documents on October 13, 2023. (Id. at ¶ 30.)

To date, the Administrative Trust has not received any supplemental responses or documents from defendant. (Marvisi Decl., ¶ 34.)

In support of its opposition to the motion, defendant submits the declaration of its counsel, Mark B. Simpkins. Counsel Simpkins declares that in response to the Minute Order, defendant served verified supplemental responses to the RFP on August 23, 2023, without objections and in which defendant represented that it has produced all responsive documents. (Simpkins Decl., ¶¶ 2, 3 & Exh. A.) Counsel further declares that he uploaded 4,852 pages of responsive documents to a “DropBox” folder and sent a link to that folder. (Id. at ¶ 3.) Counsel for the Administrative Trust confirmed he was able to open the documents produced by defendant. (Ibid.)

Counsel further declares that documents produced by defendant are organized into four tranches and separate “PDFs” which include defendant's entire transaction file, emails sent or received by defendant’s employee June Park, emails sent and received by defendant’s principal Rick Siebert, emails sent and received by the real estate broker who worked on the subject transaction, the fully executed note, and the fully executed settlement agreement. (Simpkins Decl., ¶¶ 4-7 & Exhs. B & C.)

In addition, counsel states that on January 26, 2024, defendant served a verified second supplemental response to the RFP at issue. (Simpkins Decl., ¶ 8 & Exh. D.)

Analysis:

In the motion, the Administrative Trust effectively contends that the purported failure by defendant to produce all documents responsive to RFP Nos. 1 through 5 and 11 through 19 and to identify which documents are responsive to each RFP at issue constitutes a violation of the Minute Order. Subject to exceptions, “if a party fails to obey an order compelling further response, the court may make those orders that are just[.]” (Code Civ. Proc., § 2031.310, subd. (i).)

In addition, if a responding party provides discovery requested in a motion to compel and the moving party proceeds with the motion, the court has substantial discretion to determine how to rule on the motion based on the circumstances of the case. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408-409.) In exercising that discretion, the court may take the motion off-calendar, deny the motion as moot, or narrow the scope of the motion to the issue of sanctions. (Id. at p. 409; see also Cal. Rules of Court, rule 3.1348(a).)

Available evidence and information demonstrates that on August 12, 2023, and January 26, 2024, defendant served, respectively, verified supplemental responses and verified second supplemental responses to RFP Nos. 1 through 5 and 11 through 19. In its verified second supplemental responses, defendant has identified, by reference to Bates numbers, documents which defendant asserts are responsive to each RFP at issue in the present motion. (See Exh. D to Simpkins Decl.) To the extent that the verified second supplemental responses to RFP Nos. 1 through 5 and 11 through 19 identify documents or categories of documents produced by defendant which are responsive to each of these RFP, it appears that defendant’s verified second supplemental responses are code compliant. (See Code Civ. Proc., § 2031.280, subd. (a).)

To the extent that the Administrative Trust contends that defendant’s supplemental or second supplemental responses remain deficient based on a failure to identify documents responsive to each RFP at issue or on another basis, the motion is effectively one to compel defendant to provide further supplemental responses.

Under California Rules of Court, rule 3.1345(a)(3), a motion to compel further responses to a demand for inspection of documents must be accompanied by a separate statement. (Note: Undesignated references to court rules shall be to the California Rules of Court.) Rule 3.1345(c) further requires that the separate statement “be full and complete so that no person is required to review any other document in order to determine the full request and the full response.” (Cal. Rules of Court, rule, 3.1345(c).) Accordingly, a separate statement filed in support of a motion to compel must include “[t]he text of each response, answer, or objection, and any further responses or answers[.]” (Cal. Rules of Court, rule 3.1345(c)(2).)

The separate statement filed by the Administrative Trust on November 9, 2023, identifies defendant’s original responses to RFP Nos. 4, 5, and 11 through 19 only. The court has already addressed the sufficiency of those responses in the Minute Order. However, the separate statement does not set forth the supplemental responses to RFP Nos. 1 through 5 and 11 through 19 served by defendant on August 9, 2023, prior to the date the present motion was filed. Therefore, the separate statement is not full and complete and fails to comply with California Rules of Court, rule 3.1345(c)(2).

Though the Administrative Trust also contends that defendant has violated the Minute Order by failing to produce a privilege log, the court notes that the supplemental responses to the RFP at issue served by defendant on August 12, 2023, do not include objections based on privilege. The second supplemental responses served by defendant on January 26, 2024, also do not include objections based on privilege. Therefore, it does not appear that defendant has withheld any documents privilege grounds or that defendant has violated the Minute Order by failing to produce a privilege log.

Defendant also contends that it has produced all documents responsive to each of the RFP presently at issue. The court is not presently in a procedurally appropriate position to determine if all responsive documents have been produced by defendants.  

Considering the totality of the circumstances present here, the court will at this stage of the proceedings deny the present motion as moot. To the extent the Administrative Trust contends that issues remain with respect to the supplemental or second supplemental responses served by defendant, including whether defendant has failed to sufficiently identify specific request numbers to which the documents produced by defendant respond, any remaining disputes may be raised in a procedurally appropriate future motion to compel, provided the parties fully meet and confer in good faith.

For the same reasons further discussed above, as the court does not for present purposes find that defendant has willfully or otherwise violated the Minute Order, the court will deny the Administrative Trust’s request for monetary sanctions. (Code Civ. Proc., § 2031.300, subd. (c); see also Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545 [the court has broad discretion to impose discovery sanctions].)

The Administrative Trust also asserts additional matters regarding its efforts to schedule defendant’s deposition and what the Administrative Trust contends are defendant’s efforts to delay this litigation. (See, e.g., Marvisi Decl., ¶¶ 18, 26, 27, & Motion, pp. 10-12 [Section D].) The court disregards these matters which are irrelevant to the determination of the motion.