John Ziegler v. Dennis Allen Associates
John Ziegler v. Dennis Allen Associates
Case Number
23CV00325
Case Type
Hearing Date / Time
Wed, 08/14/2024 - 10:00
Nature of Proceedings
Motions to Compel (2)
Tentative Ruling
For John Ziegler: John J. Thyne II, Adam T. Carralejo, Anthony J. Barron.
For Dennis Allen Associates: Domingo R. Tan, S. Joanna Dyriam,
For Korbacher Glass: Robert M. Ruhle, James J. Orland.
For Wick Boiler Service: Jean A. Dalmore.
For JNL Glass, Specialty Team Plastering: Margaret Eum.
For John Kenney Construction, Inc.: David M. Levy, Natalie V. Glavinovich, Janine M. Fiel-Cosse.
For JM Roofing: John D. Latson, Daniel A. Crespo; Susan De La Cruz.
For Big Phase Inc: Julie D. McElroy; Clayton T. Graham.
For Ventura County Plumbing: Kevin J. McConville; Catherine M. Cannon; Timothy D. Lucas.
For Fordyce Custom Carpentry: Jeffrey S. Kaplan.
For Pyramid Tile: Michael E. Gallagher, Caroline Fawley.
For Montie Wayne Sheet Metal and Heating: Brian Bonney, Kelly Forst, Edward J. Riffle.
RULING:
(1) For all reasons discussed herein, the motion of cross-defendant John Kenney Construction, Inc., to compel Dennis Allen Associates’ further responses to form interrogatories-construction litigation and requests for production of documents is denied.
(2) For all reasons discussed herein, the motion of cross-defendant John Kenney Construction, Inc., to compel plaintiff John Ziegler’s further responses to form interrogatories-construction litigation, requests for admission, and requests for production of documents is denied.
(3) The Court continues the hearing on each of the motions of cross-defendant to compel plaintiff John Ziegler’s and Dennis Allen Associates’ further responses to set one special interrogatories to September 18, 2024.
(4) Cross-defendant John Kenney Construction, Inc, and Dennis Allen Associates shall, in accordance with this ruling, further and fully meet and confer in good faith regarding the set one special interrogatories which are the subject of cross-defendant’s motion to compel Dennis Allen Associates’ further responses.
(5) On or before September 4, 2024, and in accordance with this ruling, cross-defendant John Kenney Construction, Inc., and Dennis Allen Associates shall submit a joint status report, or individual status reports if necessary, describing which, if any issues remain to be determined with respect to the set one special interrogatories that are the subject of cross-defendant’s motion to compel the further responses of Dennis Allen Associates.
(6) To the extent cross-defendant John Kenney Construction, Inc., and plaintiff further meet and confer or resolve their discovery dispute, in whole or in part, with respect to the set one interrogatories which are the subject of cross-defendant’s motion to compel the further responses of plaintiff, cross-defendant and plaintiff shall, on or before September 4, 2024, submit, in accordance with this ruling, a joint status report or individual status reports, if necessary, describing which, if any, issues remain to be determined.
(7) Any joint or individual status reports submitted by John Kenney Construction, Inc., Dennis Allen Associates, and plaintiff shall fully comply with California Rules of Court, rule 3.1345.
(8) As further discussed herein, the Court will briefly continue the trial confirmation conference presently set for September 4, 2024, to October 16, 2024.
Background
On January 26, 2023, plaintiff John Ziegler (Ziegler) filed a complaint against defendant Dennis Allen Associates (Allen Associates), alleging three causes of action: (1) negligence – construction defect; (2) breach of contract – construction agreement; and (3) violation of Business and Professions Code section 7159. As alleged in the complaint:
Ziegler owns a residence located at 1050 Cold Springs Road in Montecito, California (the residence). (Compl., ¶¶ 1 & 6.) On March 8, 2021, Ziegler and Allen Associates entered into a “Construction Agreement – Cost Plus a Fee” (the contract) pursuant to which Allen Associates was to construct and complete a remodel of the residence for the price stated in the contract. (Id. at ¶¶ 7-9.) Allen Associates was to commence the work under the contract on April 26, 2021, and complete the work on March 28, 2022. (Id. at ¶¶ 10-11.)
The work of Allen Associates suffered delays and was defective. (Compl., ¶¶ 12-13.) On July 5, 2022, Ziegler demanded that Allen Associates remedy all problems within 7 business days. (Id. at ¶ 14.) Despite this opportunity to cure, Allen Associates failed to remedy the problems and defects. (Ibid.)
On August 16, 2022, Allen Associates demanded an additional $293,480.32 prior to delivering an “End of Job Cost Report” (the cost report) on August 30, 2022. (Compl., ¶ 15.) Upon a preliminary review of the cost report, Ziegler determined that there were excess costs and overcharges totaling $405,336. (Id. at ¶ 16.) Allen Associates refused to accept the findings in Ziegler’s preliminary review of the cost report. (Id. at ¶ 17.)
In addition, a preliminary defect list identified defects which Allen Associates admitted and agreed to in part. (Compl., ¶ 19.) Ziegler permitted Allen Associates to perform repairs to address issues identified in the preliminary defect list which were unsuccessful. (Id. at ¶¶ 19-23.) Additional defects emerged during the repair attempts made by Allen Associates. (Id. at ¶ 23.)
On March 17, 2023, Allen Associates filed its answer to the complaint of Ziegler generally denying its allegations and asserting sixty affirmative defenses.
Also on March 1, 2023, Allen Associates filed a cross-complaint (the Allen Associates cross-complaint) against: Action Roofing; Big Phase Inc. dba A. Wood Electric; Embers West, Inc.; Fordyce Custom Carpentry, Inc.; Insulate SB, Inc.; J N L Glass, Inc.; John Kenney Construction, Inc.; Korbacher Glass, Inc.; Montie Wayne Sheet Metal And Heating, Inc.; Pyramid Tile Company; Specialty Team Plastering, Inc.; Ventura County Plumbing Inc.; and, Wick Boiler Service, Inc. The cross-complaint of Allen Associates alleges nine causes of action against all named cross-defendants described above: (1) implied contractual indemnity; (2) total indemnity; (3) equitable indemnity; (4) express contractual indemnity; (5) breach of express warranty; (6) breach of implied warranty; (7) breach of written contract; (8) declaratory relief (duty to defend); and (9) declaratory relief (duty to indemnify).
Court records reflect that on July 10, 2023, Allen Associates submitted a proposed case management order (the proposed CMO) which was electronically filed on July 11, 2023.
On September 1, 2023, the Court entered its Complex Case Management Conference Order (the CCMO), designating this action as complex litigation and waiving complex litigation fees. (CCMO, ¶ 1.) In the CCMO, the Court approved and entered the proposed CMO as requested by Ziegler and Allen Associates. (CCMO, ¶ 6.)
The Court’s records reflect that, prior to entry of the CCMO, each of the cross-defendants identified above filed their respective answers to the Allen Associates cross-complaint generally denying its allegations and asserting affirmative defenses. Cross-defendants Fordyce Custom Carpentry, Inc., and Insulate SB, Inc., also each filed separate cross-complaints against, respectively, “MOE” and “POE” defendants.
Court records also reflect that on June 5, 2024, Allen Associates filed a request for dismissal of the Allen Associates cross-complaint, without prejudice, as to cross-defendant Insulate SB, Inc., only.
On June 18, 2024, cross-defendant John Kenney Construction, Inc. (KCI), filed a motion (the Allen Motion) for an order compelling Allen Associates to serve further responses to form interrogatories-construction litigation (the Allen FI), requests for production of documents (the Allen RFP), and set one special interrogatories (the Allen SI) served on Allen Associates by KCI (collectively, the Allen Discovery).
Also on June 18, 2024, KCI filed a motion (the Ziegler Motion) for an order compelling Ziegler to serve further responses to KCI’s form interrogatories-construction litigation (the Ziegler FI), requests for admission (the Ziegler RFA), requests for production of documents (the Ziegler RFP), and set one special interrogatories (the Ziegler SI) (collectively, the Ziegler Discovery).
On July 24, 2024, the Court entered its Minute Order (the Minute Order) continuing the hearing on the Allen Motion and the Ziegler Motion (collectively, the discovery motions) to August 14, 2024, based on the failure of KCI to pay sufficient filing fees. The Court ordered KCI to pay the required filing and other fees on or before July 31, 2024, and to file and serve, on or before August 2, 2024, a notice of payment of fees identifying the motion(s) for which filing fees were paid and for which adjudication is sought.
On July 30, 2024, KCI filed a notice of payment of additional and other fees for the discovery motions. Attached to the July 30, 2024, notice filed by KCI is an official receipt from the Court demonstrating that KCI has paid additional filing fees in the total amount of $300, as ordered by the Court.
The declarations of counsel for KCI, Natalie Glavinovich:
In support of the discovery motions, KCI submits separate declarations of its counsel, Natalie Glavinovich (Glavinovich). Each of the Glavinovich declarations submitted by KCI include information regarding the discovery disputes at issue in separately numbered paragraphs. Many of these paragraphs include identical, similar, or related information which, in some instances, appears in paragraphs which do not include the same paragraph numbers across each of counsel’s declarations.
For ease of reference, to the extent identical, similar, or related information necessary to resolve the discovery motions appears in identically numbered paragraphs, the Court will refer singularly to the “Glavinovich declaration” and the corresponding paragraph number or exhibit in which the information appears. Where necessary and to avoid confusion, the Court will otherwise refer and cite to the Glavinovich declaration submitted in support of the Allen Motion as “Glavinovich I”, and the declaration submitted in support of the Ziegler Motion as “Glavinovich II”.
As stated in the Glavinovich declarations:
At the September 1, 2023, a case management conference, the Court orally granted permission for the parties to propound construction litigation form interrogatories. (Glavinovich Decls., ¶ 3.) On March 29, 2024, KCI served the Allen Discovery on Allen Associates and the Ziegler Discovery on Ziegler. (Id. at ¶ 4 & Exhs. A, B, & C.) Allen Associates served its responses to the Allen Discovery on April 30, 2024. (Glavinovich I, ¶ 5 & Exhs. D-F.) After KCI granted Ziegler an extension of time to respond, Ziegler served responses to the Ziegler Discovery on May 3, 2024. (Glavinovich II, ¶¶ 5- 6 & Exhs. E-I.) In addition, on May 3, 2024, Ziegler served responses to the discovery requests set forth in exhibit B to the CCMO. (Id. at ¶ 7 & Exh. J.)
In its responses to the Allen Discovery, Allen Associates objected to the entirety of the Allen FI, and provided the same “boilerplate” response to each of the Allen SI and Allen RFP. (Glavinovich I, ¶¶ 6-8 & Exhs. D-F.) With respect to the Allen RFP, Allen Associates failed to specify which documents it produced to the document depository are responsive to each individual request. (Id. at ¶ 8 & Exh. F.)
Ziegler objected to the Ziegler FI but did not provide substantive responses. (Glavinovich II, ¶ 8 & Exh. F.) Each of Ziegler’s responses to the Ziegler SI cite the same set of documents, and Ziegler’s responses to the Ziegler RFP do not specify which documents produced by Ziegler are responsive to which request (Id. at ¶¶ 9-10 & Exhs. H-I.)
On June 4, 2024, KCI sent correspondence to Allen Associates and to Ziegler describing the reasons why amended or supplemental responses from each were proper and necessary, and requesting that each indicate whether they intended to serve amended responses by June 12, 2024, or another mutually agreed upon later date. (Glavinovich I, ¶¶ 9-10 & Exh. G; Glavinovich II, ¶¶ 11-12 & Exh. K.) KCI requested a response to its June 4, 2024, correspondence from Allen Associates and Ziegler by June 10, 2024. (Glavinovich I, ¶ 10 & Exh. G; Glavinovich II, ¶ 12 & Exh. K.) KCI did not receive a response to its June 4, 2024, correspondence from either Allen Associates or Ziegler on June 10, 2024. (Glavinovich I, ¶ 11; Glavinovich II, ¶ 12.)
On June 12, 2024, counsel for KCI received an e-mail from counsel for Allen Associates indicating that Allen Associates would not be providing further responses. (Glavinovich I, ¶ 12 & Exh. H.) To date, no amended or supplemental responses have been received from Ziegler. (Glavinovich II, ¶ 13.)
Allen Associates opposes the Allen Motion, and Ziegler opposes the Ziegler Motion.
In support of its opposition to the Allen Motion, Allen Associates submits the declaration of its counsel, Joanna Dyriam, who states that, in advance of the conference scheduled on September 1, 2023, Ziegler and Allen Associates submitted the proposed CMO which included specially tailored written discovery to be responded to by the parties for the purposes of streamlining the written discovery process given the nature and extent of the claims alleged and the number of parties involved in this action. (Dyriam Decl., ¶¶ 5-6.)
Dyriam further states that, at the September 1, 2023, conference, KCI did not object to the content of the proposed CMO and did not seek clarification as to whether additional discovery would be permitted. (Dyriam Decl., ¶ 7.) Also at the September 1, 2023, conference, counsel for Ziegler requested the Court’s permission to propound construction form interrogatories on Allen Associates which the Court granted, but no other party requested permission to propound written discovery outside of the requests contained in the CCMO. (Ibid.) In addition, KCI has not sought the Court’s permission to serve additional written discovery outside of the CCMO. (Id. at ¶ 12.)
According to Dyriam, Allen Associates served responses to the CCMO discovery requests on October 6, 2023, and uploaded its entire job file to the document depository. (Dyriam Decl., ¶ 10 & Exh. B [Allen Associates notice of first deposit].) On October 23, 2023, Allen Associates produced additional documents in its job file with a notice of second deposit listing out all categories of documents produced. (Id. at ¶ 11 & Exh. C.)
In support of his opposition to the Ziegler Motion, Ziegler submits the declaration if his counsel, Adam T. Carralejo, who also declares that, at the September 1, 2023, conference, counsel for Ziegler requested permission for Ziegler to serve construction litigation form interrogatories which the Court granted. (Carralejo Decl., ¶ 3.) Carralejo further asserts that the Court did not grant permission to all parties to propound construction litigation form interrogatories. (Ibid.) Carralejo submits a copy of KCI’s responses to the CCMO requests for production of documents. (Id. at Exh. C.) Carralejo contends that KCI produced documents in the same manner as Ziegler with no effort to identify their documents to specific discovery requests, and that KCI’s objections to discovery include similar general objections as those asserted by Ziegler. (Id. at ¶¶ 4-5.)
Analysis
(1) Procedural Matters
There exist procedural issues with the moving papers submitted by KCI. These procedural issues have caused the Court to expend significantly more time and effort than would otherwise be necessary to determine the discovery motions.
For example, in the notice of the Ziegler Motion, KCI requests an order compelling a response from Ziegler to the Ziegler RFA. (Notice of Ziegler Motion at p. 2, ll. 7-8.) A motion to compel further responses to requests for admission must, subject to exceptions not applicable here, include a separate statement that includes the text of each request and each response, and a statement of factual and legal reasons for compelling a further response. (Cal. Rules of Court, rule 3.1345(a)(1), (b)(1), (c) & (d)].) Available information and evidence shows that Ziegler has provided responses to the Ziegler RFA. (See Ziegler Motion Sep. Stmt. at pp. 143-143.) However, wholly absent from the separate statement submitted in support of the Ziegler Motion is the text of each Ziegler RFA to which KCI seeks a response, the text of Ziegler’s responses to each of the Ziegler RFA at issue, or any factual or legal reasons for compelling a further response to any of the Ziegler RFA.
Papers submitted in support of a motion must comply with the formatting requirements of the California Rules of Court. As KCI has failed to include in the separate statement submitted in support of the Ziegler Motion, any of the information required under California Rules of Court, rule 3.1345 with respect to the Ziegler RFA to which KCI seeks to compel a further response, the Court will deny the Ziegler Motion to the extent KCI seeks to compel a response to the Ziegler RFA. (Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 892-893 (Mills).)
Additional procedural deficiencies in the separate statements submitted by KCI are addressed below. Counsel is reminded of their obligation to comply with the California Rules of Court. (See Cal. Rules of Court, rule 2.30(b).)
In addition, as noted above, KCI submits multiple declarations of its counsel which offer similar if not identical information set forth in paragraphs which do not in each instance set forth the same paragraph number. By submitting multiple separate declarations of its counsel which include similar, related, and in some instances identical information rather than one declaration containing all of the information necessary for the Court to determine the concurrently filed discovery motions, KCI has made it difficult for the Court to locate and review relevant information and evidence in an expedient and efficient manner. The manner in which KCI has presented the information in the Glavinovich declarations has also created difficulties with respect to citing the multiple numbered paragraphs within each declaration in which identical or related relevant information appears.
Where practical and feasible, the Court prefers that all information or evidence necessary to determine concurrently filed motions that rely on the same or related information or evidence be set forth in one supporting declaration. Counsel is requested to note the Court’s preference in the future.
(2) The Allen FI and the Ziegler FI
As further detailed above, in their respective opposing papers, Allen Associates and Ziegler each contend that the Court did not grant approval for any party other than Ziegler to use construction litigation form interrogatories. Allen Associates and Ziegler further contend that KCI may not use construction litigation form interrogatories because this matter has been deemed complex. Further, KCI does not appear to dispute that, at the September 1, 2023, case management conference, Ziegler presented his request for the Court’s approval to propound construction form interrogatories on Allen Associates, which the Court granted. (See Glavinovich Reply Decl. [Allen Motion], ¶¶ 3-4; KCI Reply at p. 3.)
Though KCI does not assert that it also requested the Court’s approval to use construction litigation form interrogatories in this complex litigation, KCI contends that its counsel “did not interpret” the September 1, 2023, proceedings to permit only Ziegler to propound construction litigation form interrogatories. (Glavinovich Reply Decl., ¶ 3.) Rather, KCI states that it “took the Court’s permission to mean that if one party was given leave to propound Form Interrogatories – Construction Litigation in this case, then the principles of equity and reciprocity should apply to give the other parties the same right to utilize this basic discovery tool that is routinely used in construction defect actions such as the instant case.” (Glavinovich Reply Decl., ¶ 3 [Ziegler Motion] & ¶ 4 [Allen Motion].)
The Allen FI and the Ziegler FI (collectively, the FI) each consist of form interrogatories set forth on a Judicial Council of California approved form, which are, subject to exceptions not relevant here, designed for optional use in construction litigation. (Glavinovich Decl., Exh. A [p. 1, Section 2(a)].) On the first page of the FI appears the following statement: “In cases that have been deemed complex under rule 3.400 et seq. of the California Rules of Court, these interrogatories must not be used until the asking party has obtained the court’s approval on a showing of good cause.” (Ibid.)
Though the FI were designed by the Judicial Council for use in construction litigation, the Judicial Council has expressly prohibited their use in litigation such the present action which the Court has designated complex under California Rules of Court, rule 3.400. (See also Cal. Rules of Court, rule 3.20(a) [a trial court may not enact or enforce a local rule concerning discovery which has been preempted by the Judicial Council] & rule 10.613(a) [the term “local rule” “means every … order … adopted by … a judge of the court to govern practice or procedure in that judge’s courtroom”].) As KCI has not requested or obtained the Court’s approval or shown good cause for its use of the FI in this complex litigation, the Court will deny each of the discovery motions as to the FI.
(3) The Allen RFP and Allen SI
In the Allen Motion, KCI contends that the CCMO does not impose a stay on written discovery, does not limit the parties’ ability to propound additional written discovery, and does not require the parties to respond only to the discovery attached as exhibits to the proposed CMO as further described above. Therefore, KCI argues, the Allen RFP and Allen SI are permitted and proper.
In addition to the information offered in the Dyriam declaration as further discussed above, in its opposition to the Allen Motion, Allen Associates notes that in its February 9, 2024, complex case management order (the February 2024 CCMO), the Court ordered that written discovery be completed by May 3, 2024. (Dyriam Decl., ¶ 9 & Exh. A; see also February 2024 CCMO.) Allen Associates also contends that, because KCI did not object to or seek clarification regarding the discovery described in the proposed CMO, did not seek or obtain the Court’s permission to serve additional discovery apart from that provided in the proposed CMO, and has not demonstrated good cause to propound additional discovery, the motion is without substantial justification and should be denied. Allen Associates also argues that KCI’s efforts to informally resolve the discovery dispute were insufficient and untimely under the written discovery cutoff date provided in the February 2024 CCMO.
The Court notes that the proposed CMO provides for the establishment of a document depository. (Proposed CMO, ¶ 3(a).) Attached to the proposed CMO is description of documents to be deposited into the document depository by Ziegler, Allen Associates, and the cross-defendants identified above. (Id. at Exhs. C & D.) Also attached to the proposed CMO are special interrogatory nos. 1 through 8 directed to Allen Associates and the cross-defendants identified above, only. (Id. at Exh. D.) The proposed CMO provides directives regarding the parties’ deposit of documents responsive to the description of documents attached as exhibits C and D, and the parties’ responses to the special interrogatories attached as exhibit D. (Id. at ¶ 3(b)-(j).) The proposed CMO also provides that “[a]ny party appearing after entry of the [proposed] CMO shall have 15 days from date of appearance in which to file an objection to any [proposed] CMO provision herein.” (Id. at ¶ 1(e).)
“The complex litigation procedure is intended to facilitate pretrial resolution of evidentiary and other issues, and to minimize the time and expense of lengthy or multiple trials.” (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 966 (Rutherford).) “The trial court has broad discretion to fashion suitable methods of practice in order to manage complex litigation” which may include “the issuance of standard orders. [Citation.] Individualized case management orders in complex cases are not preempted pursuant to California Rules of Court, rule [3.20], so long as they do not conflict with any statute or Judicial Council rule.” (Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 295; see also Rutherford, supra, 16 Cal.4th at pp. 967-968 [discussion of the validity of burden-shifting instruction appearing in general order applicable to complex asbestos litigation]; First State Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 324, 335-336 [case management order set aside to the extent it precluded any party from filing a motion for summary judgment].)
For reasons discussed above, Allen Associates’ interpretation of the CCMO and the proposed CMO with respect to its discovery provisions is untenable. The plain language of the CCMO and the proposed CMO approved and entered by the Court does not expressly prohibit a party from serving written discovery requests in addition to the written discovery described in the exhibits to the proposed CMO further detailed above. In addition, neither the CCMO nor the proposed CMO include any provisions stating that the parties to this action are not required to respond to any additional written discovery that may be served by a party to this action.
Moreover, parties have a statutory right to “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.” (Code Civ. Proc., § 2017.010.) Accordingly, to the extent there exists discoverable matter that is not included or contemplated in the subject matter of the written discovery attached to the proposed CMO, Allen Associates’ interpretation of the CCMO would limit a party’s ability to obtain discovery of those matters and therefore result in an impermissible conflict with the provisions of the Civil Discovery Act (Code of Civil Procedure section 2016.010 et seq.).
In addition, Allen Associates does not appear to contend that the Allen SI or the Allen RFP include or in any way relate to the same subject matter set forth in the discovery requests attached to the proposed CMO. The Court also has no record of the filing of an appropriate motion for a protective order by Allen Associates with respect to the Allen SI or Allen RFP, setting forth sufficient grounds for an order limiting their scope based on the subject matter of the discovery included in the CCMO. (See, e.g., Code Civ. Proc., § 2017.020, subd. (a); see also §§ 2030.090, 2031.060, & 2033.080.)
“California law provides parties with expansive discovery rights.” (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 590.) To the extent there exists relevant discoverable matter not described or included in the subject matter of the written discovery set forth in the proposed CMO, and considering the express terms of the CCMO and the proposed CMO submitted by Allen Associates and Ziegler and approved by the Court, KCI may obtain discovery relating to any such matters by serving appropriate written discovery requests subject to the responding party’s right to seek an appropriate protective order or other relief. Therefore, for all reasons discussed above, Allen Associates’ contention that the CCMO prohibits KCI from propounding the Allen SI or the Allen RFP, without more, is an insufficient ground upon which the Court may presently deny the Allen Motion.
The Allen RFP:
Apart from referencing 4 requests, in both the notice of the Allen Motion and the supporting memorandum, KCI fails to identify the specific number of the Allen RFP to which it seeks an order compelling a further response. (Memorandum at pp. 8-9; Cal. Rules of Court, rule 3.1345 (d) [“[a] motion concerning … inspection demands … must identify the … demands … by set and number”].) KCI’s vague reference to 4 requests does not sufficiently define the nature of the order it seeks or clearly apprise the Court or Allen Associates of the specific matters at issue in the Allen Motion, and forces the Court to resort to and search other sources such as the exhibits to the motion to determine the specific requests at issue. (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125.) Notwithstanding these procedural deficiencies, the Court’s review of the separate statement submitted in support of the Allen Motion shows that KCI seeks an order compelling Allen Associates to provide further responses to Allen RFP nos. 1 through 4. (Allen Motion Sep. Stmt. at pp. 457-478.)
Allen RFP no. 4 requests that Allen Associates produce all documents identified in its responses to the Allen FI. The same analysis and reasoning applies. For all reasons further discussed above, the Court will deny the Allen Motion as to Allen RFP No. 4.
Allen RFP Nos. 1 through 3 request that Allen Associates produce, respectively, documents “identifying the terms of the contract that form the basis of [the] seventh cause of action for Breach of Contract, as alleged at Paragraphs 46-54 of [the Allen Associates] Cross-Complaint”, “identifying the terms of the contract that form the basis of [the] first cause of action for Implied Contractual Indemnity, as alleged at Paragraphs 14-18 of [the Allen Associates] Cross-Complaint”, and identified in the “responses to Special Interrogatories concurrently served on [Allen Associates] by [KCI].” (Allen Motion Sep. Stmt. at pp. 459, 464, & 468.)
A motion to compel further responses to a demand for production of documents must “set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b); (Glenfed Development Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117.) Under circumstances where there exist no issues of privilege or claims of attorney work product, the burden to demonstrate good cause is “met simply by a fact-specific showing of relevance.” (Ibid.; accord, Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.)
In its reasons why further responses to Allen RFP nos. 1 through 3 should be compelled, KCI contends that the objections asserted by Allen Associates are improper, that Allen Associates must produce a privilege log, and that Allen Associates must detail which documents are responsive to which requests. (Allen Motion Sep. Stmt. at pp. 460-463 [Allen RFP No. 1]; 465-468 [Allen RFP No. 2]; 470-473 [Allen RFP No. 3].) However, in the separate statement, KCI fails to clearly set forth any specific facts showing good cause for the specific discovery sought in Allen RFP nos. 1 through 3. Therefore, the Court is unable to determine whether the discovery sought in Allen RFP nos. 1 through 3 is justified.
Furthermore, a separate statement submitted in support of a discovery motion must be “full and complete” and must not incorporate material “by reference.” (Cal. Rules of Court, rule 3.1345(c).) For each request, the separate statement must include “[a] statement of the factual and legal reasons for compelling further responses, answers, or production as to each matter in dispute[.]” (Cal Rules of Court, rule 3.1345(c)(2).) As further discussed above, the Court has discretion to disregard a nonconforming separate statement and to deny a motion to compel discovery for failure to comply with the requirements for a proper separate statement. (Mills, supra, 166 Cal.App.4th at p. 893; see also Neary v. Regents of University of California (1986) 185 Cal.App.3d 1136, 1145 [discussing plaintiff’s failure to adequately support a motion to compel discovery due to a nonconforming separate statement].) For these reasons, to the extent KCI has set forth facts demonstrating good cause for the discovery sought in Allen RFP Nos. 1 through 3 elsewhere in the moving papers and apart from the separate statement, the Court is not obliged to search the moving papers to locate or determine which facts justify or are specific to each of the Allen RFP at issue.
For all reasons discussed above, KCI has failed to demonstrate good cause for the discovery sought in Allen RFP nos. 1 through 3. Therefore, the Court will deny the Allen Motion as to these requests.
The Allen SI:
KCI has also failed to identify the specific Allen SI at issue by their number. A review of the separate statement submitted by KCI demonstrates that it seeks an order compelling a further response to Allen SI nos. 1 through 64. (Allen Motion Sep. Stmt. at pp. 118-452.)
The Court has reviewed the opposing separate statement submitted by Allen Associates. Based on the arguments offered by Allen Associates, it appears that the objections of Allen Associates to the Allen SI are based on a misinterpretation or misunderstanding of the CCMO as further discussed above. Available information also indicates that Allen Associates declined to provide further responses to the Allen Discovery based on its interpretation of the CCMO as further discussed above. (Glavinovich I at Exh. H.)
Available information and evidence also demonstrate that Allen Associates served its responses to the Allen Discovery on April 30, 2024. (Glavinovich I, Exh. D at PDF p. 113 [proof of service of responses to Allen FI]; Exh. E at PDF p. 182 [same re Allen SI]; Exh. F at PDF p. 195 [same re Allen RFP].) Available information indicates that KCI first attempted to informally resolve issues with the responses of Allen Associates to the Allen SI on June 5, 2024, and demanded service of further responses by June 12, 2024, which KCI was willing to extend provided that Allen Associates agreed to a reciprocal extension of time for KCI to file a motion to compel. (Glavinovich I, Exh. G.) Though it appears that the parties thereafter reached an impasse based on Allen Associates’ statement that no further responses would be provided (see id. at Exh. H), there exists some question as to whether KCI’s attempt to informally resolve each issue with respect to the Allen SI was made in good faith or reasonable.
Considering the nature of the discovery dispute with respect to the Allen SI and that the interpretation of the CCMO by Allen Associates is not necessarily unreasonable, the Court will continue the hearing on the Allen Motion with respect to the Allen SI to permit KCI and Allen Associates to further meet and confer regarding each of the Allen SI at issue in light of the Court’s ruling with respect to whether the CCMO permits the parties to this action to serve written discovery in addition to the discovery required under the CCMO. The Court expects the parties to fully meet and confer in good faith regarding the Allen SI, including whether there exist appropriate grounds for a protective order.
The Court will further order KCI and Allen Associates to submit a joint status report, or individual status reports if necessary, describing what, if any, issues remain with respect to the Allen SI. The joint or individual status reports submitted by KCI and Allen Associates must comply with, and be in substantially the same format as, the separate statement described in California Rules of Court, rule 3.1345. Furthermore, nothing herein shall be interpreted to preclude Allen Associates from filing and serving a procedurally and substantively appropriate motion for a protective order, if warranted.
(4) The Ziegler RFP and the Ziegler SI
The Ziegler Motion is also procedurally deficient with respect to KCI’s failure to identify in the motion the number of each Ziegler RFP and Ziegler SI to which KCI seeks to compel a response.
In addition, the separate statement submitted in support of the Ziegler Motion with respect to the Ziegler RFP suffers from the same deficiencies further described above. Though KCI contends in the separate statement that Ziegler’s responses to each of the Ziegler RFP at issue are deficient because Ziegler has asserted unmeritorious objections, has failed to detail which documents are responsive to which requests, and has failed to serve a privilege log, KCI fails to set forth in the separate statement any specific facts showing good cause justifying the discovery sought in each of the Ziegler RFP. The same reasoning and analysis applies. For all reasons further discussed above, the Court will deny the Ziegler Motion as to the Ziegler RFP.
To avoid the risk of piecemeal rulings to the extent similar, related, or overlapping issues exist, the Court will also continue the hearing on the Ziegler Motion to permit the Court to determine the discovery motions as they relate to the Allen SI and the Ziegler SI, together. To the extent Ziegler and KCI engage in further efforts to meet and confer regarding the Ziegler SI and Ziegler’s responses thereto, and are able to resolve their dispute, the Court will require Ziegler and KCI to submit a rule compliant joint report, or individual status reports if necessary, setting forth which, if any, issues remain to with respect to the Ziegler SI.
(5) Scheduling Matters
This matter is scheduled for a trial confirmation conference on September 4, 2024. The Court also notes that, in its complex case management conference order filed on May 17, 2024, the Court observed that discovery motions were or may be forthcoming and stated that the trial date would not be continued based on the existence of discovery issues. (See May 17, 2024, CCMO.)
Though the Court is reluctant to continue the trial date, considering the nature of the present discovery dispute which arose in significant part from a misunderstanding or misinterpretation of the CCMO, due process concerns and the interests of justice justify a brief continuance of the trial date to ensure that there is sufficient time for the parties and the Court to resolve the present discovery dispute in a manner that comports with applicable law. The new trial date is October 16, 2024.