Mark Shevitz et al vs Bradley G Vernon et al

Case Number

23CV04471

Case Type

Hearing Date / Time

Fri, 08/23/2024 - 10:00

Nature of Proceedings

(2) Motions to Compel; Motion to Consolidate

Tentative Ruling

(1) For all reasons discussed herein, the motion of Evoke Design, Inc., Shaun Lynch, Bradley G. Vernon, and Shannon Vernon, to consolidate cases is granted. Santa Barbara Superior Court case number 23CV05093 entitled Mark Shevitz, et al. v. Hope Ranch Park Homes Association, et al., is ordered consolidated with this action for all purposes including trial. This action (case number 23CV04471) is designated as the lead case. All subsequent documents shall be filed only in the lead case. The Clerk of the Court is directed to file a copy of the Court’s ruling herein in case number 23CV05093.

(2) For all reasons discussed herein, the motion of Mark Shevitz and Kathleen Shevitz for an order compelling Bradley G. Vernon and Shannon Vernon to provide further responses to set one form interrogatories is granted, in part, as to form interrogatory no. 17.1 with respect to request for admission no. 6, only.

(3) For all reasons discussed herein, the motion of Mark Shevitz and Kathleen Shevitz for an order compelling Bradley G. Vernon and Shannon Vernon to produce documents and provide further responses to set one requests for production of documents is granted, in part, as to request nos. 10 and 16, only.

(4) On or before September 13, 2024, Bradley G. Vernon and Shannon Vernon shall each serve verified code-compliant further responses to Mark Shevitz’s set one form interrogatory number 17.1 as to request for admission no. 6, and to Mark Shevitz and Kathleen Shevitz’s set one request for production of documents nos. 10 and 16, without objections overruled herein.

(5) Except as otherwise herein granted, the motions to compel further responses to set one form interrogatories and set one requests for production of documents are each denied.

Background:

On October 10, 2023, plaintiffs Mark Shevitz (Mark) and Kathleen Shevitz (Kathleen), Trustees of the Shevitz Family Trust, Dated August 6, 2013 (collectively, the Shevitz), filed a complaint alleging five causes of action against defendants Bradley G. Vernon (Bradley) and Shannon Vernon (Shannon) (collectively, the Vernons), Shaun Lynch (Lynch), and Evoke Design, Inc. (Evoke): (1) breach of contract – specific performance; (2) breach of implied covenant of good faith and fair dealing; (3) negligent misrepresentation; (4) fraud and intentional deceit; and (5) injunctive relief. (Note: Due to common surnames, the Court will at times refer to the parties by their first names. No disrespect is intended.) As alleged in the complaint:

The Shevitz own and reside at property located at 4000 Cuervo Avenue in Santa Barbara, California (the Shevitz property). (Compl., ¶ 1.) The Vernons own and reside at property adjacent to the Shevitz property and located at 3990 Cuervo Avenue in Santa Barbara, California (the Vernon property). (Id. at ¶¶ 2, 8.) The Shevitz property and the Vernon property are located in a common interest development known as Hope Ranch which is governed by the Hope Ranch Park Home Association (the Association), of which the Shevitz and the Vernons are members. (Id. at ¶¶ 8-11 & Exhs. 1-5.)

In 2018, Lynch, who is the Chief Executive Officer of Evoke, prepared architectural plans (the plans) to renovate the existing residence on the Vernon property (the project), which included the construction of a cabana (the cabana). (Compl., ¶¶ 3, 15.) The plans were presented to the Association for final review on October 2, 2019, and subsequent approval was conditioned on the Vernons maintaining the view corridor in the area where the cabana was proposed. (Id. at ¶¶ 24-25.)

After the Shevitz expressed concerns regarding the obstruction of views by the cabana, the Association, Mark, and Lynch attended a meeting at the Shevitz property on November 15, 2019, at which Lynch installed a story-pole purporting to represent the farthest western leading edge of the cabana. (Compl., ¶¶ 25-27, 29-31.) Lynch also took a photo of the story pole’s placement in relation to the Shevitz’s protected view. (Id. at ¶ 32.) On November 18, 2019, Mark sent an email to Greg Feet (Feet), who is the Association’s general manager, Robert Townsend (the Association’s building administrator), Lynch, and the Vernons stating that, based on the photos taken by Lynch of the story pole and the representations made by Lynch in conjunction with page “A305” of Lynch’s “CAD” depiction with the annotation that the story pole represented the exact location and approximate height of the downslope corner or western edge of the Cabana, Mark’s concerns about the cabana impacting the Shevitz’s view had been addressed. (Id. at ¶ 33.) On November 20, 2019, Lynch confirmed Mark’s understanding in an email (the Lynch email) on which Feet, Townsend, and the Vernons were copied. (Id. at ¶ 34.)

On November 20, 2019, at Feet’s request, the Lynch email, the photo depicting the placement of the story pole, and a page from a “CAD” image prepared by Lynch to show the placement of the cabana (collectively, the agreement) were signed by Mark and Lynch. (Compl., ¶¶ 27, 29, 32-36.) In exchange for the agreement, the Shevitz dropped their opposition to the project. (Id. at ¶ 35.) On the same date the agreement was signed, the Association granted final approval of the plans and subsequently issued a building permit to the Vernons. (Id. at ¶ 37.) At the time Mark and Lynch entered into the agreement, the Vernons and Lynch knew that the intended location for the cabana would obstruct the views from the Shevitz property and misrepresented the placement of the story pole to induce the Shevitz to drop their opposition to the plans. (Id. at ¶ 53.)

Construction of the project commenced in May 2022. (Compl., ¶ 38.) After construction of the project had commenced, the Shevitz discovered that Lynch was constructing the cabana directly in the Shevitz’s view corridor. (Id. at ¶ 41.) Following communications regarding the construction of the cabana, the issuance of a correction notice by the Association, and an Association board meeting, the Association notified Mark on May 31, 2022, that it would not take further action because, according to the Vernons, the cabana was being built according to the plans. (Id. at ¶ 42, 45, 46, 48.) The Vernons and Lynch have refused to stop construction of the cabana, have failed to provide any proof that the story pole was erected in the correct location, and have made no attempt to abate, correct or mitigate the impact of the cabana on the Shevitz’s protected views. (Id. at ¶ 52.)

On November 28 and December 11, 2023, Lynch and Evoke filed, respectively, an answer and an amended answer to the complaint generally denying its allegations and asserting thirteen affirmative defenses.

On December 6, 2023, the Vernons filed a general demurrer to each cause of action alleged in the complaint which was opposed by the Shevitz.

On January 23, 2024, the Shevitz filed a notice of errata to correct allegations appearing in paragraphs 33, 35, 60, 97, and 98 of the complaint.

On January 24, 2024, Lynch and Evoke filed a notice of related case identifying case number 23CV05093 entitled Mark Shevitz, et al. v. Hope Ranch Park Homes Association, et al., (the Association Action) as related to the present action. On February 23, 2024, the Court order this matter related to the Association Action.

On March 1, 2024, the court issued a Minute Order overruling the December 6, 2023, demurrer of the Vernons and ordering the Vernons to file and serve their answer to the complaint on or before March 11, 2024.

On March 12, 2024, the Vernons filed their answer to the complaint, and a cross-complaint against the Shevitz (the cross-complaint) alleging two causes of action: (1) willful trespass; and (2) negligent trespass. As alleged in the cross-complaint:

The Vernon property is improved with a single-family residence and landscaping which includes mature trees, plants, and other vegetation. (Cross-Compl., ¶ 7.) Between September 4 and 18, 2023, the Shevitz entered the Vernon property while the Vernons were out of the country on vacation, removed one tree, and severely cut back four other trees. (Id. at ¶ 8.) Two of the trees that were cut and removed by the Shevitz were five feet from the boundary line of the Vernon property, which was delineated by survey stakes. (Id. at ¶ 10.) All of the trees which were cut and removed were located either on the boundary line or the Vernon property. (Ibid.) In addition, the cutting of the trees reduced the canopy by over 50 percent. (Id. at ¶ 10.)

The Shevitz never gave any advance warning to the Vernons that they would take the actions described above. (Cross-Compl., ¶ 8) One month after the tree cutting and removal occurred, the Shevitz filed their complaint in this action. (Id. at ¶ 9.) The Vernons believe that the Shevitz cut and removed the trees on the Vernon property for the purpose of exposing the view of the cabana from the Shevitz property in order to provide support for their complaint filed in this action. (Id. at ¶ 9.) The Vernons further believe that the Shevitz elected to cut and remove the trees at a time when they knew the Vernon property would be unoccupied. (Id. at ¶ 11.)

On April 12, 2024, the Shevitz filed a demurrer to the cross-complaint and a motion to strike all claims for punitive, treble, or exemplary damages alleged in the cross-complaint and all facts alleged on information and belief. The demurrer and motion to strike of the Vernons were each opposed by the Shevitz.

On May 31, 2024, Evoke, Lynch, and the Vernons filed a motion for an order consolidating this action with the Association Action for all purposes including trial (the motion to consolidate).

On June 21, 2024, the Court entered its Minute Order overruling the April 12, 2024, demurrer and motion to strike of the Shevitz and ordering the Shevitz to file and serve an answer to the cross-complaint on or before July 3, 2024.

Court records reflect that the Shevitz filed their answer to the cross-complaint on July 16, 2024.

On July 25, 2024, the Shevitz filed a motion for an order compelling the Vernons to provide further responses, without objections, to a first set of form interrogatories (the FI) served by the Shevitz on the Vernons (the FI motion).

Also on July 25, 2024, the Shevitz filed a motion for an order compelling the Vernons to serve amended responses to a set one requests for production of documents (the RFP), and to produce responsive documents (the RFP motion). In the RFP motion, the Shevitz request monetary sanctions against the Vernons and their counsel.

The motion to consolidate is opposed by the Shevitz. The FI motion and the RFP motion (collectively, the discovery motions) are each opposed by the Vernons.

Analysis:

(1) The Motion to Consolidate

“When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” (Code Civ. Proc., § 1048, subd. (a).) “Under the statute and the case law, there are thus two types of consolidation: a consolidation for purposes of trial only, where the two actions remain otherwise separate; and a complete consolidation or consolidation for all purposes, where the two actions are merged into a single proceeding under one case number and result in only one verdict or set of findings and one judgment.” (Hamilton v. Asbestos Corp., Ltd. (2000) 22 Cal.4th 1127, 1147.) Consolidation is permissive and “the determination is within the discretion of the trial court ….” (Committee for Responsible Planning v. City of Indian Wells (1990) 225 Cal.App.3d 191, 196, fn. 5; General Motors Corp. v. Superior Court of Los Angeles County (1966) 65 Cal.2d 88, 92.)

The notice of a motion to consolidate must “[l]ist all named parties in each case, the names of those who have appeared, and the names of their respective attorneys of record; [¶] [c]ontain the captions of all the cases sought to be consolidated, with the lowest numbered case shown first; and [¶] [b]e filed in each case sought to be consolidated.” (Cal. Rules of Court, rule 3.350(a)(1)(A)-(C).) Papers in support of the motion to consolidate “must be filed only in the lowest numbered case” and “served on all attorneys of record and all nonrepresented parties in all of the cases sought to be consolidated ….” (Cal. Rules of Court, rule 3.350, (a)(2)(A)-(B).) The motion must include a proof of service. (Cal. Rules of Court, rule 3.350, (a)(2)(C).)

The notice of the motion to consolidate complies with the procedural requirements of California Rules of Court, rule 3.350 further detailed above. The Court’s review of its records also shows that the notice was filed in the Association Action. Therefore, the Court finds that the motion is procedurally appropriate.

In the motion to consolidate, Evoke, Lynch, and the Vernons (collectively, the moving parties) contend that this action and the Association Action each arise out of the same occurrences and therefore require the resolution of common questions of law and fact justifying complete consolidation of the two actions for all purposes including trial. To support the motion to consolidate, moving parties request judicial notice of the complaint filed in this action, and the complaint filed in the Association Action. (RFJN, ¶¶ 1-2 & Exhs. 1-2.) Though not necessary as to the complaint filed in the present action, the Court will grant the moving parties’ request for judicial notice of these court records. (Evid. Code §452, subd. (d)(1).) Judicial notice does not extend to the truth of any factual assertions appearing in the records. (Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 483.)

The moving parties also submit the declaration of Jean A. Dalmore (Dalmore), who is counsel for Evoke and Lynch in this action. In the declaration, Dalmore states:

The Shevitz property and the Vernon property are each located in Hope Ranch, which is a private common interest development. (Dalmore Decl., ¶ 1.) The rights and responsibilities of the parties in this case are governed in part by the Association. (Ibid.) Of paramount importance to the Association are views, privacy, and maintaining the rural character of the community. (Ibid.)

The Vernons hired Evoke and Shaun Lynch to assist with a remodel of their home to include the design of a cabana. (Dalmore Decl., ¶ 2.) The Shevitz objected that the cabana would block their protected ocean view. (Ibid.) Numerous hearings were held with the Association’s board along with meetings and site inspections at the Shevitz property before and after a story pole was erected to reflect what would be the approximate maximum height of the cabana upon completion. (Ibid.) Following the meeting on November 15, 2019, an email dated November 20, 2019, was sent by Lynch to Mark with a carbon copy to various Association board members and interested parties memorializing what was discussed. (Ibid.) At the request of an Association representative, the email was signed. (Ibid.) The Shevitz contend this email formed a contract which was facilitated by the Association and breached in this action. (Ibid.) The Association ultimately approved the construction and the location of the cabana. (Ibid.)

Construction of the cabana started in April 2022, and on May 10, 2022, the Shevitz purportedly notified the Association that the cabana was not being constructed as intended in the purported contract because the cabana blocked their view. (Dalmore Decl., ¶ 2.) As a result, the Shevitz requested that the Association undertake enforcement action to require the Vernons to relocate the cabana. (Ibid.) Following dispute resolution proceedings, the Association disagreed with the Shevitz’s position and rejected their appeal. (Ibid.)

After filing the present action, the Shevitz separately filed a complaint against the Association in the Association Action. (Dalmore Decl., ¶¶ 3-4.) Dalmore contends that the claims asserted by the Shevitz in the Association Action are based on the same facts and circumstances alleged in this action with respect to the design, entitlement, permitting, and construction of the cabana and the parties’ respective disputes including the Association’s involvement in these disputes, and that these facts and their relationship to each other are laid out in the complaint filed by the Shevitz in this action. (Id. at ¶¶ 5-6.) Dalmore further contends that the defendants in the Association Action support consolidation of the two matters and agree that all facts and incidents giving rise to each are identical. (Id. at ¶ 7.)

In the memorandum submitted in support of their opposition to the motion to consolidate, the Shevitz contend that this action and the Association Action each involve different parties and time frames. The Shevitz further contend that, unlike in the Association Action, they do not allege in this action that the Association engaged in wrongful conduct with respect to the formation of the agreement. Rather, the Shevitz contend that the present action involves purported misrepresentations and false promises made by the Vernons and Lynch in 2019, to both the Shevitz and the Association whose board at that time, according to Shevitz, consisted of different persons who were replaced by other individuals. Therefore, the Shevitz argue, the conduct of the Association’s board in 2019 is contextual only with respect to the execution of the agreement and its terms. The Shevitz further contend that the only issue in the Association Action is the conduct of the Association’s board from 2022 through 2023, and not during 2019.

The Shevitz submit the declaration of their counsel, Briana E. McCarthy (McCarthy), to which are attached copies of the minutes of meetings by the Association’s board of directors on November 20, 2019, and May 24, 2022, offered to show that the Association’s board during these time frames included different members. (McCarthy Decl., ¶¶ 3-4 & Exhs. 1-2.)

Based on the assertions discussed above, the Shevitz argue that consolidation of this action and the Association Action would enable defendants in the Association Action to exploit the Shevitz’s position to the extent the Shevitz do not contend that the Association engaged in malfeasance in 2019. The Shevitz argue that, because the theories of liability alleged in the Association Action do not involve the conduct of the Association’s board members in 2019, consolidation will permit all defendants to create confusion with respect to whose conduct is at issue, and when, and to conflate each of their purportedly culpable conduct with the nonculpable conduct of the Association in 2019. The Shevitz argue that this would prejudice the Shevitz with respect to their ability to ascertain damages because the damages sought against the Association in the Association Action are based solely on attorney fees and litigation expenses incurred to pursue litigation against the Vernons. The Shevitz further argue that they will be forced to take inconsistent positions in each action with respect to the conduct of the Association during relevant time frames, which will also create confusion and possibly defeat the Shevitz’s claims. The Shevitz also assert that each action involves different expert witnesses.

Notwithstanding whether there exists a sufficient showing that the information offered in the Dalmore declaration is based on personal knowledge, available undisputed evidence and information shows that the Shevitz filed the Association Action against the Association and Jill Van Zeebroeck (Zeebroeck) on November 17, 2023. (RFJN, Exh. 2.) In the Association Action, the Shevitz allege that Zeebroeck succeeded Feet as the Association’s general manager in June of 2021. (Id. at Exh. 2, ¶ 3.) In the complaint filed in the Association Action, the Shevitz allege four causes of action: (1) negligence (against the Association and Zeebroeck); (2) breach of governing documents (against the Association); (3) breach of fiduciary duties (against the Association and Zeebroeck); and (4) constructive fraud (against the Association). (Id. at Exh. 2.)

The allegations of the present action are detailed above. As further described above, the Shevitz in this action assert allegations describing both Feet and Zeebroeck’s involvement in the events leading up to the signing of the agreement by Shevitz and Lynch. (See also Compl., ¶ 49 [alleging Zeebroeck’s attendance at a meeting with Shevitz in June 2022].) Feet’s alleged involvement in these events includes Feet’s attendance at meetings during which the project was reviewed by the Association, Feet’s ostensible involvement in determining that the project would block protected views, communicating with the Vernons regarding the blocking of protected views, communicating with the Shevitz regarding the Shevitz’s concerns about the impact of the Vernons’ project, communicating with the Shevitz and Lynch regarding the erection of the story pole to delineate the placement of the cabana, arranging of a meeting at the Shevitz property to assess the Shevitz’s views, communicating with Lynch and Shevitz regarding the production of the CAD image purporting to depict the placement of the Cabana, attending a meeting at the Shevitz property to view the location of the story pole erected by Lynch, and, importantly, presenting the agreement to Shevitz and Lynch and requesting that the documents comprising the agreement further discussed above be signed and dated by each. (Compl., ¶¶ 17-18; 20; 22-23; 26-27; 29; 31-32; 35, 92.)

The complaint filed in the Association Action includes identical if not substantially similar allegations as those asserted in the present action with respect to the construction of the cabana, the Shevitz’s concerns regarding the cabana blocking their protected views, the Association and its board member’s involvement with respect to the construction of the cabana and addressing the Shevitz’s concerns, and the formation and execution of the agreement which the Shevitz allege was breached by Lynch and not enforced by the Association. (See, e.g., RFJN, Exh. 2 at ¶¶ 2 [alleging both Feet and Zeebroeck’s role with respect to the acts alleged in the Association Action]; 8-68 [alleging identical or substantial similar or related facts regarding the project, the cabana, Association board meetings, and the contents and execution of the agreement].)

For example, the present action and the Association Action include identical or substantially similar allegations of fact regarding: the approval of the Vernons’ plans at an Association board meeting on November 20, 2019 (Compl., ¶ 35; RFJN, Exh. 2, ¶ 43); the date construction commenced at the Vernon property (Compl., ¶ 41; RFJN, Exh. 2, ¶ 48); the Shevitz ‘s notifications to the Association that the cabana was not being constructed as represented by the Vernons (Compl., ¶ 42; RFJN, Exh. 2, ¶ 49); the issuance of a correction notice by the Association requiring confirmation from the Vernons that the cabana was being built in accordance with approved plans (Compl., ¶ 45; RFJN, Exh. 2, ¶ 51); the attendance of the Shevitz at an Association board meeting on May 24, 2022, to discuss the blocking of the Shevitz’s view corridor (Compl., ¶ 46; RFJN Exh. 2, ¶ 52); the Association’s notification to the Shevitz that the cabana was being built by the Vernons in compliance with approved plans such that the Association would take no action (Compl., ¶ 48; RFJN, Exh. 2, ¶¶ 53-54 & 56); and the internal dispute resolution process which the Shevitz allege continued for months until the Association informed the Shevitz that they would take no action (Compl., ¶ 55; RFJN, Exh. 2, ¶¶ 64 & 67.) These examples are intended to be illustrative but not exhaustive.

The Court further notes that the theories of liability under which the Shevitz seek to hold the Association and Zeebroeck liable in the Association Action arise from an alleged failure by the Association to stop the construction of the cabana, to investigate the Shevitz’s concerns, to determine whether the cabana was being built in conformity with the agreement including whether the cabana conformed to Lynch’s purported representations regarding the location of the story pole, and to obtain a surveyor’s certification to determine if the cabana was being built in conformity with the agreement. (See, e.g., RFJN, Exh. 2 at ¶¶ 73, 74, 75, 78, 79, 90, 91, 92, 96, 98, 108-110, 112.) In the Association Action, the Shevitz also contend that the Association encouraged, facilitated, and orchestrated the events leading up to the agreement, represented to the Shevitz that the agreement was a necessary part of the approval process for the cabana and would protect the Shevitz’s view, and misled the Shevitz into believing that it would enforce the terms of the agreement against the Vernons if the agreement was breached. (Id. at ¶¶ 133, 134, 135, 145.)

Whether or not the theories of liability alleged by the Shevitz in each action are the same, the allegations of fact which give rise to these theories of liability are virtually identical with respect to the project, the construction of the cabana, the concerns raised by the Shevitz regarding the cabana blocking their views, the Association’s role with respect to the construction of the cabana and the handling of the Shevitz’s concerns, the Association’s involvement with respect to the agreement, and the formation, execution, and existence of the agreement, including its terms. Furthermore, the agreement itself gives rise to the claims alleged by the Shevitz in each action, notwithstanding whether those claims are based on a purported breach of the agreement by Lynch or the Vernons or the Association’s purported failure to enforce its terms. These allegations show that there are or may be threshold questions of fact regarding the circumstances and events alleged in each action with respect to the project, the construction of the cabana, the Shevitz’s concerns regarding the construction of the cabana, and the agreement. There also exist threshold questions of fact regarding the formation, terms, and enforceability of the agreement.

If the Court assumes for present purposes that the allegations asserted by the Shevitz in each action are true, there exist predominant and significant questions of fact regarding the issues further detailed above which are common to the pending litigation in both cases. If separate trials are conducted, the same deposition testimony would be introduced regarding these matters, the same witnesses would be called, and the same evidence presented. In addition, there exist the possibility of inconsistent rulings regarding these factual issues, including potential inconsistent rulings addressing any discovery disputes that may develop in either action. For these reasons, consolidation would enhance efficiency and avoid inconsistent adjudications. (See Todd-Stenberg v. Dalkon Shield Claimants Trust (1996) 48 Cal.App.4th 976, 978-980.)

Though the Shevitz contend that the time periods within which any misconduct by the Association occurred are different, even if the Court were to assume the truth of these contentions, this does not change the Court’s analysis. For example, to the extent the Shevitz seek to hold the Association liable for any failure to enforce the terms of the agreement, the Shevitz must necessarily present the same evidence regarding the agreement, including its formation and its terms, whether or not the alleged misconduct by the Association occurred in 2022 and not 2019. Moreover, the Association’s alleged responsibilities with respect to its purported duty to enforce the agreement is not dependent on the composition of its board during any particular time period. For these reasons, the Shevitz fail to explain why proving any misconduct by the Association in 2022 based on a failure to enforce the agreement, notwithstanding whether the Association did not engage in misconduct when the agreement was formed, would force the Shevitz to argue contradictory or inconsistent positions based on conflicting testimony. (See State Farm Mut. Auto. Ins. Co. v. Superior Court (1956) 47 Cal.2d 428, 431.) Instead, consolidation would mitigate against the risk of inconsistent findings and verdicts with respect to the agreement irrespective of whether the cause of action arises from purported misrepresentations by Lynch and the Vernons in 2019, and not the Association, or the Association’s purported failure at a later time to enforce its terms.

For all reasons stated above, there exists significant overlap in common if not identical factual and legal issues between this action and the Association Action regarding the circumstances surrounding and relating to the matters further discussed above. This overlap may also impact discovery by creating the potential for inconsistent outcomes regarding any common or overlapping issues of fact and law as further discussed above. Therefore, due to the existence of common questions of fact in each action, and to avoid inconsistent results, unnecessary costs and delay resulting from the introduction of the same evidence, as well as to promote the efficient use of judicial resources, at this stage of the proceedings and for all reasons stated above, the Court will grant the motion to consolidate and order that the Association Action be consolidated with the present action for all purposes including trial. The present action shall be designated as the lead case, with all subsequent documents to be filed only in the lead case. The Court will also direct the Clerk of the Court to file this ruling in the Association Action.

(2) The FI Motion

In the McCarthy declaration submitted in support of the FI motion, McCarthy states that on March 29, 2024, the Shevitz served the FI, which are identical, separately on Bradley and Shannon. (McCarthy Decl., ¶ 3 & Exhs. 1 & 2.) After McCarthy agreed to extend the Vernons’ respective response deadlines, the Vernons each served responses to the FI on May 29, 2024, which were identical except for names and personal pronouns. (Id. at ¶¶ 4-5 & Exhs. 3-5.) Also on May 29, 2024, the Vernons served their respective responses to a set of requests for admission (the RFA) served by the Shevitz on the Vernons, which are also identical except for names and personal pronouns. (Id. at ¶ 6 & Exhs. 6, 6 & 7.)

The Vernons did not provide a response to FI no. 17.1 as to RFA no. 6. (McCarthy Decl., ¶ 5.) On June 5, 2024, McCarthy transmitted correspondence to counsel for the Vernons, Robert B. Forouzandeh (Forouzandeh), detailing issues with objections asserted by the Vernons and the Vernons’ purportedly deficient responses. (Id. at ¶ 7 & Exh. 8.) On June 11, 2024, the Vernons agreed to provide an amended response to FI no. 17.1 as to RFA no. 6, but refused to provide an amended response to FI no. 17.1 as to RFA nos. l3, l4, and 15. (Id. at ¶ 8 & Exh. 9.)

The parties corresponded further on July 1 and 8, 2024, resulting in an agreement by the Shevitz to provide the additional time for the Vernons to serve amended responses and by the Vernons to extend the deadline for the Shevitz to file a motion compelling further responses to one-week after amended responses were served. (McCarthy Decl., ¶ 9 & Exh. 10.) On July 18, 2024, the Vernons served amended responses to the FI which included responses to FI no. 17.1, subparts (a), (b), and (d) as to RFA no. 6. (Id. at ¶ 10.) The Vernons did not provide further responses to FI no. 17.1, subparts (b) or (c) as to RFA nos. 13, 14, and 15. (Ibid.) McCarthy states that the Shevitz were required to file the discovery motions by July 25, 2024, to avoid a waiver of their right to obtain the discovery sought in the discovery motions. (Ibid.)  

In the notice of the FI motion, the Shevitz assert that they seek an order compelling the Vernons to provide a further response to FI no. 17.1 as to RFA nos. 6 and 13 through 15. (Notice at p. 2, ll. 5-8.) Though the notice indicates that the Shevitz seek to compel further responses to each subpart of FI no. 17.1 with respect to RFA nos. 6 and 13 through 15, information appearing in the McCarthy declaration, the memorandum submitted in support of the FI motion, and the supporting separate statement, appears to indicate that the Shevitz seek an order compelling a further response subparts (b) and (c) only of FI no. 17.1 as to RFA nos. 13 through 15, and subpart (c) only of FI no. 17.1 as to RFA no. 6. (Memorandum at p. 3, ll. 18-27; Sep. Stmt. at pp. 3 & 5-8.)

The Court notes that while the motion is brought by the Shevitz, the FI appear to have been propounded by Mark. (See, e.g., McCarthy Decl. [FI motion], Exhs. 1 & 2.) For present purposes, the Court will refer to the party who propounded the FI as Shevitz, for ease of reference. In addition, though McCarthy states that copies of the Vernons’ amended responses to FI no. 17.1 are attached to the McCarthy declaration as exhibits 11 and 12, these exhibits include amended responses of the Vernons to the RFP and not the FI at issue in the FI motion.

Subpart (c) of FI no. 17.1 as to RFA No. 6:

RFA no. 6 requests that the Vernons admit “that the Chain-Link Fence separates YOUR PROPERTY from the SHEVITZ PROPERTY.” (Sep. Stmt. at p. 2.) Though information appearing in the separate statement shows that the amended responses of the Vernons to FI no. 17.1 for RFA no. 6 does not include a response to subpart (c) of that interrogatory, in their opposition to the FI motion, the Vernons assert that the omission of a response to subpart (c) of FI no. 17.1 as it relates to RFA no. 6 was an inadvertent oversight. (Opp. at p. 2, ll. 15-18.) The Vernons’ response in this regard indicates that there is some merit to the FI motion to the extent the Shevitz seek to compel a further response to FI no. 17.1 as to RFA no. 6. The Court will therefore grant the FI motion, in part, and order the Vernons to provide a further verified response to FI no. 17.1, subpart (c), as to RFA no. 6.

Subparts (b) and (c) of FI no. 17.1 as to RFA Nos. 13 through 15:

RFA nos. 13 through 15 request that the Vernons admit, respectively, that “in September of 2023, the SHEVITZS did not cut-back the tree branches located on YOUR side of the Chain-Link Fence”, that “to the extent that the trees that are the subject of YOUR Cross-Complaint were cut-back, they [sic] branches that were cut-back were located on the SHEVITZES’ side of the Chain-Link Fence”, and that the Vernons “have no evidence that the SHEVITZES entered YOUR PROPERTY in September of 2023 to cut-back tree branches on YOUR side of the Chain-Link Fence.” (Sep. Stmt. at pp. 3-4 [RFA no. 13]; 5-6 [RFA no. 14]; 7 [RFA no. 15].) The Vernons deny the matters set forth in RFA nos. 13 through 15. (Id. at pp. 4 [response to RFA no. 13]; 6 [same re RFA no. 14]; 7 [same re RFA no. 15].)

Subparts (b) and (c) of FI no. 17.1 request that, to the extent the Vernons’ response to each RFA is not an unqualified admission, the Vernons, respectively, “state all facts upon which you base your response” and “state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of those facts[.]” (Sep. Stmt. at p. 2.) The Vernons have provided responses, without objections, to subparts (b) and (c) of FI no. 17.1 as to RFA nos. 13 through 15. (Id. at pp. 4-5 [for RFA no. 13]; 6 [for RFA no. 14]; 8 [for RFA no. 15].)

In the separate statement submitted in support of the FI motion, the Shevitz set forth their reasons why a further response to FI no. 17.1, subparts (b) and (c) for RFA no. 13 should be compelled. The Shevitz contend that each RFA was “worded to determine whether the Vernons claim that the Shevitzs went over or around the chain-link fence that separates the Shevitzs’ yard from the Vernons’ yard, cut down a tree located on the Vernons’ side of the fence, and cut back branches located on the Vernons’ side of the fence.” (Sep. Stmt. at pp. 5, 7, & 9.) Because the Vernons denied these RFA, the Shevitz argue, they effectively allege that the Shevitz committed the acts described in RFA nos. 13 through 15 but include no facts in subpart (b) to support their denial of each RFA. (Ibid). The Shevitz further contend that none of the facts provided by the Vernons support a conclusion that a tree or tree branches located on the Vernons’ side of the fence were removed or cut by them. (Ibid). The Shevitz also assert that the Vernons’ response to subpart (b) is “nearly an admission that the one tree that was removed and the branches that were cut were all located on the Shevitzs’ side of the chain-link fence”, and that if the Vernons have no facts to support their denial, they must either amend their responses to subparts (b) and (c) of FI no. 17.1, or admit RFA nos. 13 through 15. (Ibid).

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).)Further, “[i]f an interrogatory cannot be answered completely, it must be answered to the extent possible.” (Code Civ. Proc., § 2030.220, subd. (b).)

In their subpart (c) response to FI no. 17.1 with respect to RFA nos. 13 through 15, the Vernons include the names of specific persons that the Vernons contend have knowledge of facts stated in the Vernons’ subpart (b) response, together with information regarding how these persons may be contacted. (See, e.g., Sep. Stmt. at pp. 5, 6, & 8.) The Shevitz offer no reasoned argument to demonstrate why this response is does not contain the information sought in subpart (c), or is incomplete not straightforward. As the Vernons’ response to subpart (c) of FI no. 17.1 with respect to RFA nos. 13 through 15 provides the information requested, and appears to be complete and straightforward, the Court will deny the FI motion with respect to FI no. 17.1, subpart (c), as to RFA nos. 13 through 15.

To the extent the Shevitz seek to compel a further response to subpart (b) of FI no. 17.1, there exist procedural deficiencies with the separate statement submitted in support of the FI motion. For example, the definition of the term “Chain-Link Fence” is not provided. (See Cal. Rules of Court, rule 3.1345(c)(4) [a separate statement served with a discovery motion must, if necessary, include “the text of all definitions … required to understand each discovery request and the responses to it”].) As the Court requires the definition of the term “Chain-Link Fence” to understand the admission request stated in RFA No. 6, the Shevitz’s failure to include this information warrants a denial of the FI motion with respect to subpart (b) of FI no. 17.1. (Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 893 (Mills) [describing the court’s discretion to deny a motion to compel discovery based on a nonconforming separate statement].)

Moreover, and notwithstanding the procedural deficiencies noted above, in their responses to subpart (b) of FI no. 17.1 as to RFA nos. 13 through 15, the Vernons offer factual responses stating that the Shevitz removed landscaping, including a privacy hedge and several trees on the Shevitz’s side of a boundary line, which obscured the Shevitz’s view which they now claim is being obscured by the cabana. (Sep. Stmt. at pp. 4, 6, & 8.) The Vernons further state that, at the same time and without their authorization, one tree was removed from the Vernon property and another tree was cut back which further opened up the view from the Shevitz property. (Ibid.) The Vernons contend that they were out of the country when the Shevitz removed or cut back the hedge and trees. (Ibid.)

The responses of the Vernons to subpart (b) of FI no. 17.1 as to RFA nos. 13 through 15 are factually specific, do not include objections, and do not improperly refer the Shevitz to other materials. (See, e.g., Best Products, Inc. v. Superior Court (2004) 119 Cal.App.4th 1181, 1189-1190 [general discussion of boilerplate responses justifying relief]; Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783-784, superseded by statute on another ground as stated in Guzman v. General Motors Corp. (1984) 154 Cal.App.3d 438, 444 [examples of improper evasive responses].) Therefore, the responses of the Vernons to subpart (b) of FI no. 17.1 do not on their face appear to be evasive or incomplete, nor do the Shevitz sufficiently explain why they believe there exists any information reasonably available to the Vernons which is not included in these responses, also considering that the Vernons contend they were not present when the conduct described in their subpart (b) responses occurred. For these reasons, the Shevitz have failed to meet their burden to demonstrate that the responses of the Vernons to subpart (b) of FI no. 17.1, as to RFA nos. 13 through 15, are deficient. Therefore, and for all reasons discussed above, the Court will deny the FI motion to the extent the Shevitz seek an order compelling a further response to subpart (b) of FI no. 17.1 as to RFA nos. 13 through 15.

(3) The RFP Motion

In the McCarthy declaration submitted in support of the RFP motion, McCarthy states that the Vernons were each served with the RFP, which are identical as to Bradley and Shannon, on March 29, 2024. (McCarthy Decl., ¶ 3 & Exh. 1.) In the RFP, the Shevitz request the production of documents concerning the Vernons’ allegations of trespass to timber, intent to conceal, and malice and the damages claimed by the Vernons. (Id. at ¶ 3 & Exh. 1.) After the Vernons’ response deadline was extended by the Shevitz, the Vernons served responses to RFP nos. 1 through 15, 17 through 21, and 23 through 35, objected only to RFP nos. 16 and 22, and did not produce responsive documents. (Id. at ¶¶ 4-5 & Exhs. 3-5.) In addition, on June 4, 2024, counsel for the Vernons transmitted, through a hyperlink to a “Dropbox”, the Vernons’ document production together with an index to the document production. (Id. at ¶ 6 & Exh. 6.)

On June 5, 2024, the Shevitz sent two letters to the Vernons detailing issues with the objections to and responses of the Vernons to the RFP, and issues raised by the document production including the failure by the Vernons to provide a privilege log. (McCarthy Decl., ¶ 7-8 & Exhs. 7-8.) The Vernons responded on June 11, 2024, stating their agreement to provide further or amended responses to certain RFP and a privilege log. (Id. at ¶ 9 & Exh. 9.) The Vernons refused to provide further responses to RFP nos. 10, 11, 12, 22, 26, 28 and 29. (Ibid.)

In the parties’ July 1 and 8, 2024, communications, the Shevitz agreed to provide the Vernons with additional time to serve amended responses and the Vernons agreed to extend the Shevitz’s deadline to file a motion to compel to one week after service of amended responses by the Vernons. (McCarthy Decl., ¶ 10.) The Vernons served amended responses on July 18, 2024, but did not provide a privilege log or an index incorporated into the amended responses. (Id. at ¶ 11 & Exhs. 11-12.) On July 18, 22, and 23, 2024, the Shevitz sent communications to the Vernons regarding the amended responses and requesting an extension of time for the Shevitz to move to compel further responses, to which the Vernons did not respond. (Id. at ¶ 13 & Exh. 13.) Based on the parties’ agreement, the Shevitz’s deadline to file a motion to compel fell on July 25, 2024. (Id. at ¶ 10 & Exh. 10.)

In the notice of the RFP motion, the Shevitz state that they seek an order compelling the Vernons to serve amended responses to RFP nos. 1 through 3, 5 through 12, 16, 18 through 20, and 23 through 31. (Notice [RFP motion] at p. 2, ll. 1-8.) The separate statement submitted in support of the RFP motion includes a preface in which the Shevitz state that “if the Court reads the ‘Reasons Why Good Cause Exists to Compel a Further Response’ to [RFP] [n]os. 1, 10, 16, 26 and 28, it will have read each of the various reasons set forth herein for compelling further responses to all the Demands at issue in the [RFP] [m]otion.” (Sep. Stmt. at p. 2.) As the Shevitz effectively contend that they have established good cause for RFP nos. 1, 10, 16, 26, and 28, and that the showing of good cause for these specific RFP applies equally to all RFP at issue in the RFP motion, the Court will first address RFP nos. 1, 10, 16, 26, and 28.

RFP no. 1:

In the request stated in RFP no. 1, the Shevitz demand the production of “all contracts, agreements and authorizations, including powers of attorney and/or special powers of attorney” that the Vernons “executed and/or entered into” with Lynch or Evoke “pertaining to the development and improvement” of the Vernon property. (Sep. Stmt. at p. 4.)

A motion for an order compelling a further response to inspection demands “shall set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1); Williams v. Superior Court (2017) 3 Cal.5th 531, 550 (Williams).) The burden to show good cause “is met simply by a fact-specific showing of relevance.” (Glenfed Development Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117.) In addition, a separate statement submitted in support of a motion to compel must, for each request, 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).) 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].)

Though it would appear that, based on the allegations asserted by the parties to this action as further discussed above, there may exist good cause for the discovery sought in RFP no. 1, wholly absent from the separate statement is any fact specific showing of good cause. As the separate statement fails to demonstrate, with factual specificity, good cause for the request stated in RFP no. 1, there exist sufficient grounds to deny the RFP motion as to this request.

Notwithstanding the deficiencies noted above, 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).) Based on the information included in the moving separate statement, the Vernons do not assert objections to RFP no. 1 and do not represent that they lack any ability to comply with its demand. Rather, the Vernons have responded to RFP no. 1 with a statement that they will “produce all documents responsive to this category in [the Vernons’] possession, custody, or control.” (Sep. Stmt. at p. 4.) Shevitz fails to explain why this response in which the Vernons effectively state that they will comply with the demand is not code compliant.

Furthermore, though subdivision (a) of section 2031.280 requires that “[a]ny documents or category of documents produced in response to a demand for inspection, copying, testing, or sampling shall be identified with the specific request number to which the documents respond” (Code Civ. Proc., § 2031.280, subd. (a)), the Court is unaware of, and the Shevitz do not cite any, statutory provision that would require the Vernons to, in their written response to RFP no. 1, identify specific responsive documents or provide an index. For this reason, the contention of the Shevitz that the response of the Vernons to RFP no. 1 fails to comply with section 2031.280, subdivision (a), is without merit. In addition, as the Vernons do not assert any objections to RFP no. 1 including those based on privilege, it is unclear to the Court on what basis the Shevitz contend that the Vernons must produce a privilege log.

For all reasons discussed above, the Court finds that the response of the Vernons to RFP no. 1 is substantially code compliant. Therefore, the Court will deny the RFP motion as to RFP no.1.

RFP no. 10:

RFP no. 10 requests that the Vernons produce documents and “ESI” which “depict, show, or otherwise evidence the survey stakes delineating the boundary line between” the Vernon property and the Shevitz property from September 4 through September 9, 2023. (Sep. Stmt. at p. 11.) In their reasons to compel a further response to RFP no. 10 set forth in the separate statement, the Shevitz contend that Lynch, “Ed Cox, and Fred Hammar were each hired by the Vernons and performed work for the Vernons related to the survey stakes they allege delineate the boundary line of the Vernon Property. The Vernons have an absolute right to the records reflecting the work that each performed them. The Vernons paid for that work, they are entitled to demand and obtain the related records from their designer, surveyor, agents and/or contractors as a matter right. Accordingly, Lynch, Cox and Hammar are sources of documents within the Vernons’ control, and the Vernons are required to obtain the responsive documents from them and produce them to the Shevitzs in response to this [RFP].” (Sep. Stmt. at p. 12.) The Court notes that Lynch, Ed Cox, and Fred Hammar are persons identified in the Vernons’ response as further discussed below.

Thought the Shevitz contend that the Vernons must obtain documents from Lynch, who is a party to this action, or other persons who are not parties to this action, absent from the separate statement is any information demonstrating good cause for the specific discovery sought in RFP no. 10. Therefore, for reasons discussed above, there exist sufficient procedural grounds on which the Court may deny the RFP motion as to RFP no. 10.

Though the Shevitz have failed to meet their burden to demonstrate good cause for the request stated in RFP no. 10, the Court notes that the pleadings in this matter indicate that the location of the boundary line between the Vernon property and the Shevitz property, which the Vernons contend was delineated by survey stakes, is at issue with respect to the location of the trees that the Vernons contend were cut or removed by the Shevitz. (See, e.g., Cross-Compl. ¶¶ 8 & 10.) Further, the Vernons do not appear to contend that there does not exist good cause justify the discovery sought in RFP no. 10. Therefore, the Court finds that there exists sufficient good cause for the request stated in RFP no. 10.

In their response to RFP no. 10, the Vernons state that, despite a diligent reasonable inquiry, they are unable to respond because they have “never had any documents responsive to this category in her possession, custody, or control and that such documents to the extent they exist may be in the possession of … Lynch, Ed Cox, or Fred Hammar.” (Sep. Stmt. at p. 11.) The Vernons do not assert any objections to the request stated in RFP no. 10. (Ibid.)

Relevant here, “[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.)

In their response to RFP no. 10, the Vernons represent that they lack the ability to comply with the demand because the documents are not in the possession, custody, or control of the Vernons. This response is permissible under section 2031.210, subdivision (a)(1), and section 2031.230. The Vernons also sufficiently identify, for purposes of section 2031.230, persons known or believed by the Vernons to have possession, custody, or control of the category of documents described in this request, who also appear to be known to the Shevitz. However, though the Vernons affirm that a reasonable inquiry was made, the Vernons fail to state that they made a diligent search. For this reason, the responses of the Vernons to RFP no. 10 do not fully comply with section 2031.230. Therefore, the Court will grant the RFP motion, in part, as to RFP no. 10, and will require the Vernons to provide a further verified response to this request.

RFP no. 16:

RFP no. 16 seeks the discovery of documents, including electronically stored information, “identifying the dates of each VACATION that YOUR family took during the calendar year of 2023.” (Sep. Stmt. at p. 16.) The term “YOUR” refers to the Vernons, separately and collectively, and the term “VACATION” is defined to mean “a period of four or more consecutive days” during which the Vernons’ family was not “physically occupying or present at” the Vernon property. (Sep. Stmt. at p. 3, ¶ 2 & p. 4, ¶ 7.) In their response to RFP no. 16, the Vernons assert an objection on the sole ground that the request “calls for discovery of information that is not itself admissible nor reasonably calculated to lead to the discovery of admissible evidence.” (Id. at p. 16.) In their amended responses to RFP no. 16, the Vernons state that, subject to this objection, they will produce documents in their possession, custody, or control “demonstrating the dates of [their] vacation taken in September 2023.” (Ibid.)

To demonstrate good cause for the discovery sought in RFP no. 16, the Shevitz note that the Vernons allege in this action that the Shevitz injured trees on the Vernon property between September 4 through September 18, 2023, when the Vernons were on vacation, and that the Shevitz were aware that the Vernons were on vacation and chose this time period to conceal their actions or alleged trespass. (Cross-Compl., ¶ 8.) The Shevitz contend that the discovery sought in RFP no. 16 will show that the Vernons vacationed often in 2023, that the alleged acts were wholly unrelated to whether the Vernon property was occupied, and that the timing of the alleged acts and the Vernons’ vacation was coincidental based on other vacations taken by the Vernons in 2023. (Sep. Stmt. at p. 17.)

The Vernons contend that the request stated in RFP no. 16 constitutes a fishing expedition that would require the Vernons to produce all electronically stored information reflecting every vacation they took in 2023 including emails, texts, credit card invoices, and purchase receipts. (Resp. Sep. Stmt. at pp. 27-28.) For this reason, the Vernons contend, discovery of their vacation schedule during the entirety of 2023 violates privacy rights, imposes an undue burden and expense, among other things, and is impermissible. (Ibid.)

“For discovery purposes, information is relevant if it ‘might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement....’ [Citation.] Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence. [Citation.] These rules are applied liberally in favor of discovery [citation], and (contrary to popular belief), fishing expeditions are permissible in some cases. [Citation.]” (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546, original italics.) As the Vernons’ vacation schedule is at issue and as the Shevitz have sufficiently demonstrated that  discovery regarding this issue may lead to admissible evidence that would assist the Shevitz to evaluate the Vernons’ claims and prepare for trial, the Court finds that good cause exists for the discovery sought in RFP no. 16.

Once a party seeking to compel production of documents meets its burden to demonstrate good cause, the burden shifts to the responding party to justify any objections to the demand. (Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.) For all reasons discussed above, the objection of the Vernons to RFP no. 16 on the grounds stated above is without merit and will be overruled. In addition, though the Vernons effectively assert additional objections to RFP no. 16 in their response to the moving separate statement based on undue burden, annoyance, embarrassment, and oppression, these objections are not asserted in their written responses.  

Moreover, apart from offering conclusory statements regarding the burden, expense, or intrusiveness of producing electronically stored or other information relating to vacations taken by the Vernons in 2023, the Vernons offer no evidence to show “the quantum of work required” or an “intent to create an unreasonable burden or that the ultimate effect of the burden is incommensurate with the result sought.” (West Pico Furniture Co. of Los Angeles v. Superior Court (1961) 56 Cal.2d 407, 417, 418; see also Williams, supra, 3 Cal.5th at p. 549 [the party opposing discovery bears the burden to “supply the basis” for a determination that discovery is burdensome, expensive, or intrusive].) Therefore, though the Vernons do not, in their written responses, assert objections to RFP no. 16 based on burden, expense, or intrusiveness, the ostensible additional objections offered in the response separate statement appear, for present purposes only, to be without merit.

Though the Court finds that the amended response to RFP no. 16, in which the Vernons state they will comply with the demand stated, substantially complies with section 2031.210, subdivision (a)(1), for all reasons discussed above, the Court will grant the RFP motion as to RFP no. 16, in part, to require the Vernons to serve a further response to this request, without the specific objection overruled herein. Nothing herein shall be construed to prohibit the Vernons from asserting additional objections to RFP no. 16 to the extent any such objections have not been waived.

RFP No. 26:

The request stated in RFP no. 26 demands the production of “all contracts, agreements, permits” between the Vernons and the Association pertaining to the “development and/or improvement of” the Vernon property. (Sep. Stmt. at p. 23.) Wholly absent from the reasons to compel a further response offered in the separate statement is any factual showing of good cause for all of the documents described in RFP no. 26, which appears to include within its scope contracts or agreements that may have no bearing on or relationship to the factual or legal issues presented in this litigation. (Id. at pp. 23-24.) Therefore, the Court will deny the RFP motion as to RFP no. 26 for all reasons discussed above.

RFP No. 28:

In the request stated in RFP no. 28, the Shevitz demand that the Vernons produce all documents, including electronically stored information, which pertain to their “neighbors’ concerns and/or complaints about [the Vernons’] plans to develop and/or improve [the Vernon property] during the period of time from January 1, 2018 to present.” (Sep. Stmt. at p. 25.)

In their separate statement, the Shevitz contend that good cause exists for the demand stated in RFP no. 28 because the “paramount” subject of their complaint is the agreement which, according to the Shevitz, specifies the location of the cabana. (Sep. Stmt. at p. 26.) The Shevitz further assert that the Vernons have challenged the formation of the agreement and deny mutual intent and Lynch’s authority to bind them to the agreement. (Id. at pp. 26-27.) The Shevitz further contend that any accommodations, promises, representations, agreements, contracts, or resolutions that the Vernons made with their neighbors are relevant to show that the agreement at issue in this litigation is not an “outlier” and is consistent with how the Vernons dispatched their neighbors’ concerns or opposition to their project. (Id. at p. 27.) Therefore, the Shevitz argue, documents responsive to RFP no. 28 are likely to show representations made to other neighbors and by whom, the identity of persons who signed any agreements with other neighbors, the form of those agreements, and the role the Association played in those agreements. (Ibid.) According to the Shevitz, these documents are relevant to disprove the Vernons’ challenges to or denials of the formation, intent, and effect of the agreement. (Ibid.)

It is unclear to the Court why the existence of other unspecified concerns or complaints, without regard to whether the complaints or concerns address the matters at issue in this litigation, made by unspecified neighbors over a period of 6 years and which may or may not relate to the cabana or protected views, would assist the Shevitz to determine whether there exist any agreements with these neighbors. Further, to the extent any concerns or complaints culminated in an agreement between the Vernons and a neighbor, it is unclear to the Court how this information would assist the Shevitz to evaluate their case with respect to the terms of or enforceability of the agreement, or would lead to the discovery of admissible evidence with respect to the agreement, considering that the referenced complaints and concerns are potentially unlimited in scope. Moreover, in their amended response to RFP no. 28, the Vernons state that they “did not enter into any agreements with any neighbors related to” any plans to develop or improve the Vernon property. (Sep. Stmt. at p. 26.)

As there does not appear to be sufficient good cause for the demand stated in RFP no. 28, which is potentially unlimited in scope, the Court will, for all reasons further discussed above, deny the RFP motion as to this request.

RFP nos. 2, 3, 5-9, 11, 12, 18-20, 23-25, 27, and 29-31:

There exists procedural problems with the RFP motion as to the remaining RFP at issue.

In addition to the statement further discussed above, the preface of the separate statement also includes assertion that good cause justifying the discovery sought by the Shevitz “is the same for [RFP] [n]os. 1-3, 5-9, 18-20, 23-25, 27-29, 30-31. Similarly, the reasons to compel further responses to [RFP] [n]os. 10-12 are identical to one another; as are the reasons to compel further responses to [RFP] [n]os. 28-29.” (Sep. Stmt. at p. 2.) This statement is unclear and appears to suggest that the same good cause exists with respect to each of the RFP at issue. Alternatively, this statement may be interpreted to mean that, to the extent there exists good cause for compelling a further response to RFP nos. 1, 10, 16, 26, and 28 further discussed above, there exists good cause for the discovery sought in all of the RFP at issue. However, the subject matter of and categories of documents described in RFP nos. 1, 10, 16, 26, and 28 is not the same, nor is the subject matter of these RFP identical to the subject matter of each of the remaining RFP at issue.

For example, the subject matter of RFP nos. 3, 5, 6, 18, and 19 is the location of trees described in the cross-complaint, the condition, size, or canopy of these trees, and where in relation to the cabana the trees were situated. (Sep. Stmt. at pp. 6-8 & 17-18.) By way of further example, the subject matter of RFP nos. 7 and 8 relates to the alleged entry by the Shevitz onto the Vernon property. (Id. at pp. 8-9.) The subject matter of RFP nos. 23 and 24 relates to authorizations executed by the Vernons to permit Lynch or Evoke to act on their behalf with respect to obtaining permits for the project and agreements and contracts with these parties. (Id. at pp. 20-21.) The subject matter of these RFP is different from the subject matter and categories of documents described in the RFP further described above. The Shevitz fail to explain how the subject matter of these RFP is the same as the RFP discussed above or other RFP at issue.

The examples offered above are intended to be illustrative but not exhaustive, and the same issues appear throughout the separate statement with respect to the subject matter of the remaining RFP at issue. Moreover, to the extent that the Shevitz have addressed certain RFP in their supporting memorandum, the Court is not obligated to review other materials to discern whether good cause exists for the discovery sought in RFP nos. 2, 3, 5 through 9, 11, 12, 18 through 20, 23 through 25, 27, or 29 through 31. Furthermore, the memorandum does not sufficiently demonstrate good cause for each of these RFP in a clear or concise manner.

It is the Shevitz who bear the burden to demonstrate good cause justifying the discovery sought in each of the RFP at issue in the RFP motion. To meet this burden, the Shevitz must include in their separate statement and for each RFP at issue, a full and complete calibrated statement of the factual and legal reasons why good cause exists to compel a further response. By failing to include in the separate statement a sufficient or concise tailored showing of good cause for the discovery sought in each RFP nos. 2, 3, 5 through 9, 11, 12, 18 through 20, 23 through 25, 27, or 29 through 31, the Shevitz have effectively shifted their burden to the Court by forcing the Court to expend scarce judicial resources to sift through the separate statement or search other materials, including material incorporated by reference, to determine whether the Shevitz have shown good cause for the discovery sought in these requests. As the Shevitz have failed to sufficiently show, with facts specific to each, good cause for the discovery sought in RFP nos. 2, 3, 5 through 9, 11, 12, 18 through 20, 23 through 25, 27, or 29 through 31, the Court will, for all reasons discussed above, deny the RFP motion as to these requests.

(4) Efforts To Informally Resolve The Issues

The Vernons contend that the Shevitz failed to meet and confer in good faith to resolve the issues presented in the discovery motions. The Vernons submit separate declarations of their counsel, Forouzandeh, who states that, after the Vernons served their amended responses to the FI and RFP on July 18, 2024, he and McCarthy continued to engage in a meet and confer process during which Forouzandeh informed McCarthy that he would be out of the country as of August 1, 2024, and would return two weeks later. (Forouzandeh Decl., ¶ 7 [Opp. RFP motion].) Forouzandeh does not dispute that on July 23, 2024, McCarthy sent an email requesting that the Vernons amend their responses to the RFP and FI and agree to extend the Shevitz’s deadline to file a motion to compel to August 15, 2024. (Id. at ¶¶ 7-8 [Opp. FI motion] & ¶ 8 [Opp. RFP motion].) Forouzandeh adds that on July 25, 2024, he informed McCarthy that the Vernons would amend their responses and agreed to extend the motion to compel deadline to August 15, 2024, as requested by McCarthy. (Id. at ¶¶ 9 & Exhs. 5.) Forouzandeh states that “a few hours” later, McCarthy served Forouzandeh with the discovery motions seeking to compel further responses to discovery requests to which the Vernons agreed to provide amended responses. (Id. at ¶ 10.)

Forouzandeh further states that, as he was out of the country, it was difficult to oppose the discovery motions with limited internet access and time in order to meet the response deadline. (Forouzandeh Decls., ¶ 12.) Forouzandeh had to ask another attorney at his firm to assist with the Vernons’ oppositions to the discovery motions. (Ibid.) Forouzandeh also states that the Vernons have drafted second amended responses to the FI and RFP which have not yet been served. (Id. at ¶ 13 & Exhs. 7.)

The record of correspondence between the parties demonstrates that the Shevitz initiated and continued to engage in a reasonable and good faith attempt to informally resolve purported issues with the responses of the Vernons to the discovery requests at issue. (See Volkswagenwerk Aktiengesellschaft v. Superior Court (1981) 122 Cal.App.3d 326, 330 [“the burden of initiating such efforts is placed upon the moving party”]; Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294 [“some effort is required in all instances”].) The record of correspondence also shows that, although McCarthy asserts that the deadline to file a motion to compel further responses was July 25, 2024, McCarthy also stated in an email to Forouzandeh on July 23, 2024, that it was her understanding that the deadline to file the discovery motions was August 1, 2024. (Forouzandeh Decl., Exh. 5 [RFP Motion].) Therefore, there appears to exist some confusion as to the correct or applicable deadline to file the discovery motions. Notwithstanding this apparent confusion, the Court finds that the Shevitz made a reasonable and good faith attempt to informally resolve each issue presented in the discovery motions.

(5) Sanctions

The Shevitz and the Vernons each request an award of sanctions against the other. The court “shall” impose a monetary sanction against any party who “unsuccessfully makes or opposes a motion to compel a further response” to interrogatories or an inspection demand, “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).) A court may award sanctions in favor of the moving party even when the requested discovery is provided after the motion was filed. (Cal. Rules of Court, rule 3.1348(a).) “The award of discovery sanctions is a matter within the trial court’s discretion” and should be “ ‘ “ ‘appropriate to the dereliction, and … not exceed that which is required to protect the interests of the party entitled to but denied discovery.’ ” ’ ” (Karz v. Karl (1982) 137 Cal.App.3d 637, 648; Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604.)

Under the totality of the circumstances present here, and considering that the Shevitz were only partially successful in making the discovery motions, the Court finds that the imposition of sanctions against the Vernons would be unjust. The same reasoning and analysis applies with respect to the Vernons’ request for an award of sanctions, also considering that the Vernons were only partially successful in bringing their oppositions and that there exists some justification for the discovery motions for all reasons further discussed above. For these reasons, the Court will deny both parties’ requests for an award of sanctions.