1260 BB Property, LLC v. Certain Underwriters at Lloyd’s and London Market Companies, et al

Case Number

23CV00285

Case Type

Hearing Date / Time

Wed, 01/22/2025 - 10:00

Nature of Proceedings

Motions to Compel (4)

Tentative Ruling

For Plaintiff 1260 BB Property, LLC: Jared M. Katz, Eric J. Munoz, William J. Ryan, and Gregory J. Scandaglia

                                   

For Defendants Lexington Insurance Company, Ace American Insurance Company, American International Group UK Limited, Assicurazioni Generali SPA UK Branch, Certain Underwriters at Lloyd’s and London Market Companies, Great Lakes Reinsurance (UK), Lloyd’s Underwriter Syndicate, Sompo Canopius dba Canopius Underwriting Agency Inc., Westport Insurance Corporation, Zurich Insurance PLC UK Branch, and Chubb Insurance Company of Canada: Ron H. Burnovski, Charles W. Deutsch, Sava Alexander Vojcanin

                                   

For Defendant Liberty Mutual Fire Insurance Company: Nicholas J. Boos                                 

RULING

For the reasons set forth below:

1. Defendants other than Liberty Mutual and Lexington Insurance Company’s motion to compel the continued deposition of 1260 BB Property, LLC, is granted under the conditions as set forth below. Plaintiff shall appear for deposition, through its person most qualified, and answer deposition questions without written answers prepared by counsel. Defendants may re-ask previously asked questions without objection. Plaintiff’s counsel shall refrain from instructing Hicks to not answer questions unless there is a legally sound basis on which to give that instruction.

2. Plaintiff’s motion to compel further responses to requests for admission is granted as to requests Nos. 51, 52, 56, and 57.

          a. Defendants other than Liberty Mutual and Lexington Insurance Company shall provide further code-compliant responses, without objections, no later than February 12, 2025.

          b. Sanctions of $5,920 are granted in favor of plaintiff, and against defendants and their attorneys of record, jointly and severally, to be paid to plaintiff’s counsel no later than February 12, 2025.

3. Plaintiff’s motion to compel further responses to special interrogatories set four and set five is granted.

          a. Defendants other than Liberty Mutual and Lexington Insurance Company shall provide further code-compliant responses, without objections, no later than February 12, 2025.

          b. No sanctions are awarded.

4. Plaintiff’s motion to compel further responses to requests for production of documents Nos. 6, 8, 10, and 20, is granted as follows:

          a. Defendant shall provide further written responses that identify, by Bates numbers, which documents are responsive to each of the requests, no later than February 12, 2025.

          b. No sanctions are awarded.

Background

On January 23, 2023, plaintiff 1260 BB Property, LLC (“plaintiff”) filed its complaint against multiple entity defendants. The complaint contains four causes of action for: (1) Breach of Contract; (2) Declaratory Judgment against primary insurers; (3) Declaratory Judgment against excess insurers; and (4) Breach of the Implied Covenant of Good Faith and Fair Dealing.

As alleged in the complaint: Plaintiff is the owner of the Four Seasons Resort the Biltmore Santa Barbara (“hotel” or “FSSB”). (Complaint, ¶ 2.) The hotel was insured under insurance policies procured by Four Seasons Hotel Ltd. for a policy period of April 1, 2017, to April 1, 2018. (Ibid.) During the policy period, the hotel suffered substantial property damage and economic loss from the Thomas Fire and the ensuing debris flow and mudslide totaling in excess of $64,000,000.00. (Ibid.) On the claims related to the fire, plaintiff suffered in excess of $6,700,000.00 in insured losses, of which certain defendant insurers have paid $5,953,000.00 but have refused to pay in excess of $793,000.00. (Id., at ¶ 3.) On the claims related to the mudslide, plaintiff suffered in excess of $58,000,000.00 in insured losses, of which certain defendants responsible for the first layer of primary insurance of $50,000,000.00 have paid $46,670,264.00. (Id. at ¶ 4.) The excess insurers have refused to pay any amount of the losses above the $50,000,000.00 primary policy limits. (Ibid.) Attached to the complaint as Exhibits B through M are copies of relevant insurance policies related to the claimed losses.

[Note: For purposes of these motions, “Defendants” shall mean all defendants other than Liberty Mutual and Lexington Insurance Company.]

Defendants and plaintiff have engaged in discovery, and disputes have arisen. Defendants have filed a motion to compel the continued deposition of plaintiff. Plaintiff has filed motions to compel further responses to requests for admission and request for sanctions, to compel further responses to interrogatories and request for sanctions, and a motion to compel further written responses to request for production of documents, production of the documents, and sanctions.

All motions are opposed.

Analysis

“Civil discovery is intended to operate with a minimum of judicial intervention.” (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 402.) “It is a central precept to the Civil Discovery Act . . . that civil discovery be essentially self-executing.” (Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1434.)

            Motion to Compel the Continued Deposition of 1260 BB Property, LLC

As an initial observation: Throughout the papers counsel extensively cite to relevant factual and legal authority in footnotes.

While the use of footnotes can, in limited circumstances, be useful, defendants’ unsparing use of footnotes is counterproductive because it interrupts the flow of the text and is distracting. The use of footnotes to cite relevant authority (or state significant points) may also result in the cited authority being overlooked or ignored. (See, e.g., Holden v. City of San Diego (2019) 43 Cal.App.5th 404, 419-420 [addressing the disfavored use of footnotes for stating contentions or substantive legal arguments on appeal].) Furthermore, the use of footnotes to cite to relevant authority caused the court to expend substantially more time than would normally be expended, resulting in a waste of scarce judicial resources. For all reasons noted above, the court prefers that any citation to factual or legal authority be included in the memorandum itself and not in footnotes. Counsel is requested to take note of the court’s preference in the future.

Defendants seek an order: “(1) compelling 1260 BB to produce its designee Hicks for a continued deposition, (2) barring 1260 from testifying from the counsel-drafted script, (3) striking 1260 BB’s script-based testimony, (4) barring counsel from providing 1260 BB with any continued coaching on the record, and (5) compelling 1260 BB to answer all questions which it has been directed not to answer for reasons other than an assertion of privilege.” (Motion, p. 1, ll. 13-18.)

On September 27, 2024, defendants served plaintiff with a second amended notice of deposition (“notice”) of the person most qualified (“PMQ”) on behalf of plaintiff. (Deutsch Dec., ¶ 15 & Exh. A.) The notice set forth the following categories of examination:

1. FOUR SEASONS’ solicitation and purchase of the POLICIES.

2. FOUR SEASONS’ payment of premiums to PRIMARY INSURERS and EXCESS INSURERS for the POLICIES.

3. YOUR COMMUNICATIONS with FOUR SEASONS regarding the procurement of the POLICIES and property insurance coverage for the PROPERTY that YOU contend were damaged by the WILDFIRE or MUDSLIDE.

4. All written agreements between YOU and FOUR SEASONS regarding the management of the PROPERTY.

5. Any and all payments, fees, or similar charges assessed by FOUR SEASONS to YOU which are RELATED TO compensation to FOUR SEASONS for amounts paid by FOUR SEASONS to PRIMARY INSURERS and EXCESS INSURERS for the POLICIES.

6. The matters and allegations raised in YOUR COMPLAINT.

7. The matters and allegations raised in YOUR answers to written discovery.

8. All COMMUNICATIONS, efforts and/or attempts by YOU to provide notice of loss to PRIMARY INSURERS of losses arising from the WILDFIRE.

9. All COMMUNICATIONS, efforts and/or attempts by YOU to provide notice of loss to EXCESS INSURERS of losses arising from the WILDFIRE.

10. All COMMUNICATIONS, efforts and/or attempts by YOU to provide notice of loss to PRIMARY INSURERS of losses arising from the MUDSLIDE.

11. All COMMUNICATIONS, efforts and/or attempts by YOU to provide notice of loss to EXCESS INSURERS of losses arising from the MUDSLIDE.

12. YOUR participation in and cooperation with the ADJUSTMENT PROCESS, including but not limited to, YOUR involvement in responding to PRIMARY INSURERS’ Requests for Information.

13. YOUR knowledge of the CLAIM SUBMISSION, including but not limited to, work performed by BDO in preparing the CLAIM SUBMISSION and the calculation of all claimed

losses.

14. The nature, scope, and extent of all losses of any kind that YOU assert are covered under the POLICIES, including, but not limited to, YOUR calculation of the amount of any such losses.

15. YOUR calculation of Extra Expenses that YOU assert are covered under the POLICIES.

16. YOUR calculation of Property Damage losses that YOU assert are covered under the POLICIES.

17. YOUR calculation of interest costs that YOU assert are covered under the POLICIES, including but not limited to, the method of calculating the asserted Interest costs and details RELATED TO any loans, lines of credit, or similar financial instruments that 1260 BB PROPERTY received or generated to finance repair or reconstruction of any part of the PROPERTY.

Plaintiff designated Joseph Hicks as its PMQ, and the deposition commenced on October 9, 2024. (Deutsch Dec., ¶ 16 & Exh. B.)

On the day of the deposition, Hicks appeared with a 33-page binder regarding each of the categories for examination (the “binder”). (Deutsch Dec., ¶¶ 18, 19 & Exhs. D, E.) Defense counsel was provided with a copy of the binder.

At the beginning of the deposition, plaintiff’s counsel read a statement as follows:

“Plaintiff 1260 BB Property, LLC is designating Joseph Hicks as the person most qualified in response to the deposition notice of today’s deposition. 1260 BB Property, LLC has provided Mr. Hicks with a binder of information to assist him in testifying to information known or reasonably available to 1260 BB Property, LLC, and he may refer to that information from time to time. When you’re asking him to testify to information known or reasonably available to 1260 BB Property, LLC, we ask that you identify the relevant topic from the deposition notice so that he can provide the available information. Because this is the deposition of the person most qualified of plaintiff 1260 BB Property, LLC, we ask that your questions be clear whether you are asking Mr. Hicks to testify to information known or reasonably available to 1260 BB Property, LLC on the topics set forth in the notice of deposition, or whether you are asking Mr. Hicks for his own personal knowledge or recollection. To avoid such confusion, unless your questions or instructions state differently, when you use the terms “you” and “your” and their related forms in questions during this deposition, Mr. Hicks will understand that those terms refer to Joseph Hicks in his personal capacity and not 1260 BB Property, LLC, although you are free to instruct him or frame your questions any way that you wish.” (Deutsch Dec., Exh. B at 7:21-9:5)

Immediately thereafter, defense counsel stated: “To the extent that counsel’s statement and instructions are inconsistent with the California rules applicable in this case and the Code of Civil Procedure, we object.” (Id. at 9:6-10.)

The binder used by Hicks contained information relevant to the categories, as well as verbatim answers for him to give upon defense counsel’s questioning.

For example, for the first category, noted above, the binder states:

“1. FOUR SEASONS’ solicitation and purchase of the POLICIES.

Response.

1260 BB Property LLC has designated Joseph J. Hick to testify to information reasonably known to it regarding the factual basis of Four Seasons’ solicitation and purchase of the policies.

Information Reasonably Known to 1260 BB Property LLC.

1260 BB Property is aware of Four Seasons’ solicitation and purchase of the policies. 1260 B8 Property relied substantially on Four Seasons as the manager of the Hotel to solicit and purchase the policies. Defendant insurers themselves and Four Seasons likely have additional relevant information.”

For the second category, the binder states:

“2. FOUR SEASONS’ payment of premiums to PRIMARY INSURERS and EXCESS INSURERS for the POLICIES.

Response.

1260 BB Property LLC has designated Joseph 5. Hick to testify to information reasonably known to it regarding the factual basis of Four Seasons’ payment of premiums to primary insurers and excess insurers for the policies.

Information Reasonably Known to 1260 8B Property LLC.

1260 BB Property understands that Four Seasons, as manager of the hotel, purchased and paid for the policies. Defendant Insurers themselves and Four Seasons likely have additional relevant information. Documents reflecting the payment of premiums have been produced in the litigation by numerous parties, including Aon, Four Seasons, and Defendants and their agents. Defendants have also stated in deposition testimony and discovery responses that the premiums were paid.”

Some of the categories addressed in the binder had more substantive responses and/or included relevant documents for Hicks to rely on. For example, for the fourth category, a Hotel Management Agreement is provided. For the eighth category, the binder provides:

“8 All COMMUNICATIONS, efforts and/or attempts by YOU to provide notice of loss to PRIMARY INSURERS of losses arising from the WILDFIRE.

Response.

The matters identified in Topic No. 8 raise legal issues, issues relating to the interpretation of the relevant insurance policies and related factual matters. The relevant factual matters are framed by certain legal issues and issues of the interpretation of the policies. For its legal position in this case, 1260 BB Property contends that each of the policies on which 1260 BB Property’s claims are based provide that notice of loss to the issuing insurance company is satisfied upon notice to Aon Reed Stenhouse Inc. Notice would also be satisfied as to any Defendant insurance company by actual notice to, or actual knowledge of, any representative or agent of such Defendant. Joseph J. Hicks has been designated to testify to the

factual matters raised by this request Topic No. 8.

Information Reasonably Known to 1260 BB Property LLC.

1260 BB Property was first made aware of the loss giving rise to the Wildfire Claims on December 11, 2017. 1260 BB Property relied on Four Seasons, as the manager of the Hotel, and Aon, as the broker and 1260 BB Property’s claims advocate, to provide timely notice to the relevant insurers. Four Seasons, Aon Reed Stenhouse Inc, and the adjuster, Stuart Whiteside had direct and continuous access to information concerning the nature and amount of 1260 BB Property’s loss beginning immediately on the date of the wildfire on December 11, 2017. Based on documents uncovered during this litigation, notice of the Wildfire loss was submitted to each of the Defendant Insurers on December 11, 2017, when Diane Balasa, acting on behalf of 1260 BB Property, notified Josh Collier and Stuart Whiteside of the wildfire loss by email correspondence. See, e.g., FSSB00000363-FSSB00000364. On that same day, Josh Collier forwarded the notice to Jacob Chabot and Jennifer Kinsey of Aon Reed Stenhouse, Inc, and Melanie Fenlon of Aon. See AONFOURSEASONS-0001811-AONFOURSEASONS0001812. It is 1260 BB’s litigation position that notice to Aon Reed Stenhouse, Inc. was notice to all insurers under the policy. The documents produced in the litigation show further and continuous communications after December 11, 2017, regarding the wildfire loss with the adjustment team and other representatives of Defendant Insurers.”

Hicks testified that he had no role regarding anything that was contained in the binder, and that it was prepared by counsel.

During the deposition, Hicks read verbatim from the binder. For example:

“THE REPORTER: Question. How did you rely upon them in connection with the

claims presentation for property damage and time element losses following the wildfire and mudslides?

THE WITNESS: I’m ready to answer your question. 1260 BB Property reasonably participated and cooperated with the adjustment process. 1260 BB Property relied substantially on Four Seasons as the manager of the hotel to provide information and documents and to coordinate related matters with the adjuster, Stuart Whiteside. Four Seasons engaged BDO on January 3rd, 2018, to perform certain work to assist with presentation of the claim and coordinating with the adjustment team. 1260 BB worked with BDO and other participants in the adjustment process to prepare -- to prepare and support its claims for losses relating to the wildfire and the mudslide.

BY MR. VOJCANIN:

Q. You were reading verbatim from one of your -- Exhibit 114 [the binder]; correct?

A. Yes.” (Deutsch Dec., Ex. B at 66:3-67:11.)

There are several other examples of Hicks reading directly from the binder during the deposition.

Defendants argue that the written responses, prepared by plaintiff’s counsel, constitutes impermissible coaching. Plaintiff argues that counsel was just ensuring that Hicks could convey all the information known or reasonably available, and that the binder is proper.

The court believes that there is some disconnect between the parties attorneys on just exactly what the objections are. From plaintiff’s opposition, it appears that plaintiff believes that defendants are requesting that Hicks not be allowed to refer to any documents at all, and is expected to testify entirely from memory, during his deposition. It is clear to the court, which is confirmed by defendants’ reply brief, that defendants are only objecting to the narrative, scripted, responses and they are not objecting to the use of other documents.

As noted above, Hicks was produced in response to a notice of taking deposition of plaintiff’s PMQ.

“If the deponent named is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested. In that event, the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.” (Code Civ. Proc., § 2025.230.)

“Under the current law, “ ‘[i]f the subject matter of the questioning is clearly stated, the burden is on the entity, not the examiner, to produce the right witnesses. And, if the particular officer or employee designated lacks personal knowledge of all the information sought, he or she is supposed to find out from those who do!’ ” [Citation.]” (Maldonado v. Superior Court (2002) 94 Cal.App.4th 1390, 1395-1396.)

Plaintiff is correct that the duty to prepare a PMQ for deposition includes “making sure that that person has access to information and documents reasonably available within the corporation.” (Id., at p. 1398.) The problem here is not with Hicks having access to information and documents reasonably available within the corporation. The problem, one that plaintiff fails to adequately address in its opposition, is that an attorney providing written responses for the deponent to read is, without question, coaching of the witness. None of the authority provided by plaintiff, state law or federal, suggests a different conclusion. Some of the canned responses went so far as to include legal conclusions. For example, for category 6 (matters and allegations raised in the complaint), the response includes: “The remaining allegations raise legal or procedural matters for which no testimony is required.” Other categories call on Hicks to use certain words that are clearly meant to be persuasive or to satisfy certain elements of plaintiff’s causes of action. See for example: category 8 (using terms such as “timely notice,” “direct and continuous access,” “further and continuous,” etc.). Plaintiffs argument that because the testimony was provided prior to the deposition, it does not constitute coaching, is unpersuasive and illogical. For an attorney to tell a deponent exactly what to say, whether before or during a deposition, is coaching.

Plaintiff will be ordered to produce Hicks for continued deposition without the written answers prepared by counsel. To be clear, Hicks will still be able to review and refer to documents during the continued deposition, including things like lists and spreadsheets, that provide the information called for by each category of examination. What is being disallowed is plaintiff’s counsel providing the PMQ’s answers. Defendants are not seeking the testimony of plaintiff’s counsel. They are seeking the testimony of the PMQ.

Defendants’ request that Hicks’ prior deposition testimony be stricken will be denied. However, defendants may re-ask those same questions, without objection from plaintiff’s counsel except as to privilege.

The court notes: given the disagreement at deposition, it was not unreasonable for plaintiff’s counsel to adjourn the deposition pending resolution of the dispute.

Defendant next takes issue with plaintiff’s counsel instructing Hicks to not answer questions.

Counsel should not prevent a deponent “from answering a question unless it pertains to privileged matters or deposing counsel’s conduct has reached a stage where suspension is warranted. The fact that suspension is available only where an interrogation into improper matters reveals an underlying purpose to harass, annoy, etc., indicates that witnesses are expected to endure an occasional irrelevant question without disrupting the deposition process.” (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1015.)

Plaintiff’s only responses to defendants’ argument is contained in footnote 4 of their opposition. It states: “Defendants’ motion notes that 1260 BB’s counsel objected and instructed Mr. Hicks not to answer certain questions that were patently either harassing or in contravention of 1260 BB’s right to privacy. Plaintiff’s counsel has a right to instruct the witness not to answer these types of questions in order to protect the witness’ rights. In any event, this issue is moot because, at deposition, Plaintiff’s counsel withdrew any direction to the witness not to answer Defendants’ questions, and withdraws any such remaining instruction. Accordingly, Defendants’ motion based on grounds of instructing a witness not to answer should be denied.”

Even though the instructions not to answer certain questions were later withdrawn, they should not have been made in the first place. The questions did not call for any privileged information, work product, and were not intended to harass or annoy Hicks. The court will order that plaintiff’s counsel refrain from instructing Hicks to not answer questions unless there is a legally sound basis on which to give that instruction.

As defendants did not request that sanctions be issued for having to bring this motion, none will be ordered.

            Requests for Admission

RFAs “differ fundamentally from other forms of discovery. Rather than seeking to uncover information, they seek to eliminate the need for proof.” (Murillo v. Superior Court (2006) 143 Cal.App.4th 730, 735.)

Code of Civil Procedure, section 2033.010 provides, in pertinent part: “Any party may obtain discovery . . . by a written request that any other party to the action admit the genuineness of specified documents, or the truth of specified matters of fact, opinion relating to fact, or application of law to fact. A request for admission may relate to a matter that is in controversy between the parties.”

“The party to whom requests for admission have been directed shall respond in writing under oath separately to each request. Each response shall answer the substance of the requested admission, or set forth an objection to the particular request.” (Code Civ. Proc. § 2033.210, subds. (a-b).

“(a) Each answer in a response to requests for admission shall be as complete and straightforward as the information reasonably available to the responding party permits.

“(b) Each answer shall:

(1) Admit 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.

“(2) Deny so much of the matter involved in the request as is untrue.

“(3) Specify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge.

“(c) If a responding party gives lack of information or knowledge as a reason for a failure to admit all or part of a request for admission, that party shall state in the answer that a reasonable inquiry concerning the matter in the particular request has been made, and that the information known or readily obtainable is insufficient to enable that party to admit the matter.” (Code of Civ. Proc., § 2033.220.)

Plaintiff served requests for admission on defendants and received substantially the same responses from each of them. Following an attempt to meet and confer, plaintiff now moves to compel further responses to requests Nos. 51, 52, 56, and 57, and request monetary sanctions in the amount of $5,920.00. The requests and responses at issue are:

51. “Admit that Stuart Whiteside was YOUR agent in connection with his work adjusting the PLAINTIFF’s MUDSLIDE CLAIMS.”

Response: “Responding Party objects to this request on the grounds that it is overbroad, vague, and ambiguous based on Plaintiff’s definitions of ‘YOUR,’ ‘PLAINTIFF,’ and ‘MUDSLIDE CLAIMS.’ Responding Party objects to this request on the grounds that it is otherwise vague and ambiguous, including as to the term ‘agent.’ Responding Party objects to this request on the grounds that it calls for a legal conclusion.

“Without waiving the foregoing objections, Responding Party admits that the claims reported under the POLICY ‘shall be adjusted by Stuart Whiteside at Vericlaim unless mutually agreed by the Insured and the Company’ as set forth in the POLICY. Responding Party denies that the ADJUSTMENT TEAM’s valuation of PLAINTIFF’s MUDSLIDE CLAIM ever reached or exceeded Responding Party’s $50,000,000 attachment point under the POLICY.”

52. “Admit that SEDWICK was YOUR agent in connection with its work adjusting the PLAINTIFF’s MUDSLIDE CLAIMS.”

Response: “Responding Party objects to this request on the grounds that it is overbroad, vague, and ambiguous based on Plaintiff’s definitions of ‘YOUR,’ ‘PLAINTIFF,’ and ‘MUDSLIDE CLAIMS.’ Responding Party objects to this request on the grounds that it is otherwise vague and ambiguous, including as to the term ‘agent.’ Responding Party objects to this request on the grounds that it calls for a legal conclusion.

“Without waiving the foregoing objections, Responding Party admits that the claims reported under the POLICY ‘shall be adjusted by Stuart Whiteside at Vericlaim unless mutually agreed by the Insured and the Company’ as set forth in the POLICY. Responding Party denies that the ADJUSTMENT TEAM’s valuation of PLAINTIFF’s MUDSLIDE CLAIM ever reached or exceeded Responding Party’s $50,000,000 attachment point under the POLICY.”

56. “Admit that Stuart Whiteside was YOUR agent in connection with his work adjusting the PLAINTIFF’s MUDSLIDE CLAIMS.”

Response: “Responding Party objects to this request on the grounds that it is overbroad, vague, and ambiguous based on Plaintiff’s definitions of ‘YOUR,’ ‘PLAINTIFF,’ and ‘MUDSLIDE CLAIMS.’ Responding Party objects to this request on the grounds that it is otherwise vague and ambiguous, including as to the term ‘agent.’ Responding Party objects to this request on the grounds that it calls for a legal conclusion.

“Without waiving the foregoing objections, Responding Party admits that the claims reported under the POLICY ‘shall be adjusted by Stuart Whiteside at Vericlaim unless mutually agreed by the Insured and the Company’ as set forth in the POLICY and that Stuart Whiteside acted at the direction [of] those insurers subscribing to policies with exposure to $50,000,000, excess of deductibles.”

57. “Admit that SEDGWICK was YOUR agent in connection with its work adjusting the PLAINTIFF’s MUDSLIDE CLAIMS.”

Response: “Responding Party objects to this request on the grounds that it is overbroad, vague, and ambiguous based on Plaintiff’s definitions of ‘YOUR,’ ‘PLAINTIFF,’ and ‘MUDSLIDE CLAIMS.’ Responding Party objects to this request on the grounds that it is otherwise vague and ambiguous, including as to the term ‘agent.’ Responding Party objects to this request on the grounds that it calls for a legal conclusion.

“Without waiving the foregoing objections, Responding Party admits that the claims reported under the POLICY ‘shall be adjusted by Stuart Whiteside at Vericlaim unless mutually agreed by the Insured and the Company’ as set forth in the POLICY and that Stuart Whiteside acted at the direction [of] those insurers subscribing to policies with exposure to $50,000,000, excess of deductibles.”

Defendants argue that each of their responses are “complete, straightforward, and either admits or denies the Request to the extent possible, as framed and defined in the RFA, which included vague and ambiguous terms and definitions.” (Opp. SS, p. 3, ll. 1-4.)

The court has reviewed the terms and definitions and they are not remotely vague. Defendants were required to give a straight-forward response and failed to do so. The responses are evasive and contain extraneous statements that have nothing to do with what they are being asked to admit. Defendants will be ordered to provide further responses that specifically address what they are being asked to admit, without objections. Pursuant to Code of Civil Procedure section 2033.220, subdivision (b), defendants may “reasonably and clearly” qualify an admission, but the substance of the response should not evade what is being asked.

Plaintiff seeks $5,920 in monetary sanctions for fees and costs incurred in bringing the motion to compel. “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 further response, 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., § 2033.290, subd. (d).) Monetary sanctions in the amount of $5,920 will be awarded in favor of plaintiff for fees and costs incurred.

           

Interrogatories

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., section 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.”

Plaintiff argues that they served special interrogatories set four and set five on August 9, 2024, and that defendants did not respond until October 4, 2024, thereby waiving all objections. Plaintiff does not argue that the responses are deficient other than the objections.

Defendants argue that the motion should be denied because it is “an inappropriate effort to weaponize the discovery process.” (Opp. p. 2, ll. 7-8.) Defendants do not dispute that their responses were untimely.

Technically, plaintiff is correct. “The party to whom the interrogatories are directed waives any right to exercise the option to produce writings under Section 2030.230, as well as any objection to the interrogatories, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010).” (Code Civ. Proc., § 2030.290.) Defendants did not move for relief from this waiver and, therefore, plaintiff’s argument is correct. Defendants will be ordered to provide further written responses absent objection.

Plaintiff seeks monetary sanctions in the amount of $5,920 in fees and costs incurred in bringing the motion. In practical terms, the objections contained in the responses were improper, but would have no substantive effect on this case. Following the improper objections, defendants provided appropriate responses. Circumstances would make the imposition of sanctions unjust, and none will be ordered.

Requests for Production of Documents

“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.)

“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.)

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 demand 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.)

Plaintiff seeks production of documents claimed to have been identified in requests Nos. 6, 8, 10, and 20, and, to the extent that defendants have already produced those documents, that defendant shall identify the Bates numbers of those documents.

Defendants argue that they have produced all the documents. and that they cannot produced any additional documents because they do not exist.

The documents sought concern claims administration, and facially appear to call for an extensive number of documents. Defendants responded to each request essentially stating that they would comply and produce all non-privileged documents.

Plaintiff’s argument strongly implies that plaintiff believes that it is defendants’ duty to prove that all responsive documents have been produced. Contrary to this assertion, that is not a duty of defendants. If all responsive documents have been produced, they may simply state that they have been produced. However, the responses did not say that. Defendants stated they would comply and produce all non-privileged documents. Giving an affirmative representation that they would comply, defendants are under an obligation to identify which documents are responsive to each request, pursuant to Code of Civil Procedure section 2031.280, subdivision (a). Defendants will be ordered to provide further written responses that identify which documents are responsive to each request.

Plaintiff seeks $9,060 in monetary sanctions for costs and fees incurred in bringing this motion. As defendants have stated, including under oath by counsel, that all responsive documents have already been produced, and the only real issue here is the identification of the documents, no sanctions will be granted.