Mark Shevitz et al vs Bradley G Vernon et al

Case Number

23CV04471

Case Type

Hearing Date / Time

Fri, 12/06/2024 - 10:00

Nature of Proceedings

Motion to Compel

Tentative Ruling

For all of the reasons discussed herein, the motion for monetary sanctions is 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 Shevitzes), 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 Shevitzes 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 a 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 Shevitzes 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 Shevitzes 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 Shevitzes’ 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 Shevitzes’ 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 Shevitzes 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 Shevitzes 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 Shevitzes discovered that Lynch was constructing the cabana directly in the Shevitzes 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 Shevitzes’ 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 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 ordered 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 Shevitzes (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 Shevitzes 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 Shevitzes 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 Shevitzes 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 Shevitzes filed their complaint in this action. (Id. at ¶ 9.) The Vernons believe that the Shevitzes 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 Shevitzes elected to cut and remove the trees at a time when they knew the Vernon property would be unoccupied. (Id. at ¶ 11.)

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).

The Shevitzes filed their answer to the cross-complaint on July 16, 2024.

On August 23, 2024, the court consolidated the Association Action with the present action, with the present action being the lead case.

As a result of discovery disputes, several motions to compel further responses were filed by the Shevitzes, including, on September 4, 2024, a motion to compel Hope Ranch Park Homes Association (HRPHA) to produce documents and provide further responses to the Sevitzes requests for production of documents, set one, and request for monetary sanctions. HRPHA opposed the motion.

As a result of subsequent discussions and production of additional documents, the Shevitzes withdrew their discovery motions, directed at HRPHA, other than the request for sanctions associated with the motion to compel HRPHA to produce documents and provide further responses to requests for production of documents, set one.

The Shevitzes filed a reply to HRPHA’s opposition on November 27, 2024, which the court has reviewed and considered.

Analysis:

In order to determine if monetary sanctions should be imposed against any party, as a result of the filing of the motion to compel, the motion to compel further responses itself must be considered.

Code of Civil Procedure, section 2031.010 provides, in pertinent part:

“(a) Any party may obtain discovery . . . by inspecting, copying, testing, or sampling documents, tangible things, land or other property, and electronically stored information in the possession, custody, or control of the party on whom the demand is made.

“(b) A party may demand that any other party produce and permit the party making the demand, or someone acting on the demanding party’s behalf, to inspect and to copy a document that is in the possession, custody, or control of the party on whom the demand is made.”

“The party to whom a demand for inspection, copying, testing, or sampling has been directed shall respond separately to each item or category of item by any of the following:

“(1) A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling . . .

“(2) A representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item, or

“(3) An objection to the particular demand for inspection, copying, testing, or sampling.” (Code Civ. Proc. § 2031.210, subd. (a).)

Code of Civil Procedure, section 2031.240, provides:

“(a) If only part of an item or category of item in a demand for inspection, copying, testing, or sampling is objectionable, the response shall contain a statement of compliance, or a representation of inability to comply with respect to the remainder of that item or category.

“(b) If the responding party objects to the demand for inspection, copying, testing, or sampling of an item or category of item, the response shall do both of the following:

“(1) Identify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made.

“(2) Set forth clearly the extent of, and the specific ground for, the objection. If an objection is based on a claim of privilege, the particular privilege invoked shall be stated. If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted.

“(c)(1) If an objection is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.

“(2) It is the intent of the Legislature to codify the concept of a privilege log as that term is used in California case law. Nothing in this subdivision shall be construed to constitute a substantive change in case law.”

A motion to compel further responses to a demand for production of documents “shall set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).) To establish good cause, the burden is on the moving party to make a “fact-specific showing of relevance.” (Glenfed Development Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117.)

“If a party filing a response to a demand for inspection, copying, testing, or sampling under Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280 thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that party’s statement of compliance, the demanding party may move for an order compelling compliance.” (Code Civ. Proc., § 2031.320, subd. (a).)

One issue with the Shevitzes motion is that it conflates a motion to compel further responses to the requests for production of documents with the actual production of the documents. They are two separate issues and are governed by different code sections. The motion should have been filed as two separate motions. Because separate motions were not filed, it makes it difficult to determine which argument the Shevitzes intend to apply to each of the two separate issues.

For example, most of the actual responses to the request for production of documents fully comply with Code of Civil Procedure section 2031.210 by asserting objections and stating: “Subject to and without waiving the forgoing objections, Responding Party responds as follows: After a diligent search and reasonable inquiry, Responding Party will comply and produce responsive documents within its possession, custody, or control.”

The Shevitzes’ argue that: “Defendant needs to either identify the specific documents responsive to the particular Demand in its response to that particular Demand, or provide an index identifying the specific documents that are responsive to each particular Demand, incorporate the index by reference in its Responses and include it as part of the Responses that are being verified.” As the Shevitzes were advised in the court’s ruling on their motion to compel further responses to requests for production of documents from the Vernons, there is no requirement that a responding party, such as HRPHA, identify the specific documents responsive to the particular demand, in the formal written response, nor is HRPHA required to incorporate a verified index as an exhibit to their written responses.

Additionally, the Shevitzes fail, for some of the requests, to meet their burden of providing a fact-specific showing of the relevance of the documents sought. The reasons given are repetitive of each other, general, conclusory, and do not provide sufficient reasons for production of each particular category of document.

Further, the court has reviewed the declarations, and attachments, describing the meet and confer process and finds that the motion would likely not have been required if a little more time and effort were put forth. Despite the Shevitzes’ argument to the contrary contained in their reply brief and supplemental declaration, as it was for other discovery disputes and motions filed against other defendants in this matter, it is obvious from the correspondence that counsel for HRPHA was willing to provide further code-compliant responses to the requests, and was actively working to do so. While doing so, an extension was offered allowing the Shevitzes more time in which to file a motion to compel. Rather than take advantage of the extended time within which to file the motion, the Shevitzes chose to prepare and file the motion. Motions to compel should only be filed if the parties are at a complete impasse or if there is a pressing deadline. While the court understands that the Shevitzes wanted the issues resolved more expeditiously, progress was being made and, due to the offered extension and a trial date that is nearly a year off, there was no pressing deadline.

“Civil discovery is intended to operate with a minimum of judicial intervention. “ ‘[I]t is a ‘ “central precept” ’ of the Civil Discovery Act . . . that discovery ‘ “be essentially self-executing[.]” ’ ” [Citations.]” (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 402.)

However, had the parties not eventually resolved their discovery dispute, the motion to compel would have been partially granted and partially denied.

Given the totality of the circumstances, the imposition of sanctions against any party to the discovery dispute would be unjust. Neither side is free of blame for the dispute. No sanctions will be awarded.