23CV04471

Case Number

Mark Shevitz vs Bradley G Vernon et al

Case Type

Hearing Date / Time

Fri, 01/24/2025 - 10:00

Nature of Proceedings

Motion for Protective Order

Tentative Ruling

For all of the reasons discussed herein, the Shevitzes motion for protective order is denied. The Shevitzes shall provide complete, code-compliant, verified responses, without objection, no later than March 14, 2025. Monetary sanctions, in the amount of $9,427.50, are awarded in favor of the Vernons and against the Shevitzes and their attorneys, to be paid to counsel for the Vernons no later than March 14, 2025.

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.

There have been several discovery disputes that have involved motions and rulings by the court. Currently, the Shevitzes move for a protective order re: special interrogatories propounded by the Vernons, and request monetary sanctions. The Vernons oppose the motion and also request sanctions.

Analysis:

As the parties to this action have previously been reminded:

“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.)

The Shevitzes seek an order, as to each of them, limiting the number of special interrogatories propounded by the Vernons “from 139 down to 35 or any other reasonable number, and extending the time within which to respond.” (Notice of Motion p. 2, ll. 10-13.)

“Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property.” (Code Civ. Proc., § 2017.010.)

“(a) Any party may obtain discovery within the scope delimited by Chapter 2 (commencing with Section 2017.010), and subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), by propounding to any other party to the action written interrogatories to be answered under oath.

“(b) An interrogatory may relate to whether another party is making a certain contention, or to the facts, witnesses, and writings on which a contention is based. An interrogatory is not objectionable because an answer to it involves an opinion or contention that relates to fact or the application of law to fact, or would be based on information obtained or legal theories developed in anticipation of litigation or in preparation for trial.” (Code Civ. Proc., § 2030.010.)

“A trial court must be mindful of the Legislature’s preference for discovery over trial by surprise, must construe the facts before it liberally in favor of discovery. . .” (Williams v. Superior Court (2017) 3 Cal.5th 531, 540.)

“(a) Subject to the right of the responding party to seek a protective order under Section 2030.090, any party who attaches a supporting declaration as described in Section 2030.050 may propound a greater number of specially prepared interrogatories to another party if this greater number is warranted because of any of the following:

“(1) The complexity or the quantity of the existing and potential issues in the particular case.

“(2) The financial burden on a party entailed in conducting the discovery by oral deposition.

“(3) The expedience of using this method of discovery to provide to the responding party the opportunity to conduct an inquiry, investigation, or search of files or records to supply the information sought.

“(b) If the responding party seeks a protective order on the ground that the number of specially prepared interrogatories is unwarranted, the propounding party shall have the burden of justifying the number of these interrogatories.” (Code Civ. Proc., § 2030.040.)

“(a) When interrogatories have been propounded, the responding party, and any other party or affected natural person or organization may promptly move for a protective order. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.

“(b) The court, for good cause shown, may make any order that justice requires to protect any party or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions:

“(1) That the set of interrogatories, or particular interrogatories in the set, need not be answered.

“(2) That, contrary to the representations made in a declaration submitted under Section 2030.050, the number of specially prepared interrogatories is unwarranted.

“(3) That the time specified in Section 2030.260 to respond to the set of interrogatories, or to particular interrogatories in the set, be extended.

“(4) That the response be made only on specified terms and conditions.

“(5) That the method of discovery be an oral deposition instead of interrogatories to a party.

“(6) That a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a certain way.

“(7) That some or all of the answers to interrogatories be sealed and thereafter opened only on order of the court.

“(c) If the motion for a protective order is denied in whole or in part, the court may order that the party provide or permit the discovery against which protection was sought on terms and conditions that are just.

“(d) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order under this section, 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., § 2030.090.)

Contention interrogatories have long been an integral part of discovery practice in California.

“Discovery necessarily serves the function of ‘ “testing the pleadings,” ’ i.e., enabling a party to determine what his opponent’s contentions are and what facts he relies upon to support his contentions. [Citations.] ‘ “(T)o say that ‘ “contentions” ’ are not a proper subject of interrogatories is to subvert the whole theory of the (discovery) rules and to make it more difficult for a party to find out what the case against him is about than it was under the old practice. * * * To the extent that interrogatories are used to clarify the contentions of the parties, they are an adjunct to the pleadings, * * *. Liberal use of interrogatories for the purpose of clarifying and narrowing the issues made by the pleadings should be permitted and encouraged by the courts.” ’ (4 Moore, Federal Practice (2d ed.) 33.17, pp. 2311—2312.) Professor Moore’s observation, relating to the federal discovery rules from which California’s discovery laws are largely derived, is even more pertinent to California practice since, as we have noted, the federal system of pleading, unlike California’s, permits a party to clarify his opponent’s contentions through devices such as a motion for more definite statement, thus making it less crucial for a party in federal court to obtain information concerning contentions through discovery. [Citation.]” (Burke v. Superior Court of Sacramento County (1969) 71 Cal.2d 276, 281.)

As required by Code of Civil Procedure section 2030.050, the Vernons provided a declaration for additional discovery that contains all the required information. As for the reason for the additional interrogatories, counsel for the Vernons stated: “This number of questions is warranted under Code of Civil Procedure § 2030.040 because of the quantity of issues in dispute in this matter. To represent this, 93% of the interrogatories propounded arise from contentions made by Plaintiff in his COMPLAINT. The number is also warranted by the cross-claims involved in the case and the expedience of using this method of discovery to provide to the responding party the opportunity to conduct an inquiry, investigation, or search of files or records to supply the information sought.” (Elias-Wheelock Dec., ¶ 8 & Exh. 1a.)

The Vernons point out that the Shevitzes complaint contains 130 paragraphs, alleging five causes of action, and is unverified. The contention interrogatories pertain to 43 of the paragraphs contained in the complaint. They seek: (1) facts supporting the contention; (2) witnesses; and (3) identification of documents. This is extremely common and the Shevitzes argument that the answers are “self-evident” is not a valid objection, and assumes much. A defendant cannot be expected to know the thinking of a plaintiff related to a plaintiff’s contentions. This is especially true given that the complaint is unverified. The Vernons are entitled discover whether the Shevitzes are able to support the allegations of their complaint, with facts, witnesses, and documents, under oath. The court has reviewed the interrogatories and compared them to the complaint, and the Shevitzes’ answer to the cross-complaint, in this matter. The Vernons have met their burden of justifying the number of interrogatories. The number of interrogatories does not create such an undue burden on the Shevitzes that they are oppressive, and the Shevitzes have not provided any evidence tending to show that they are.

The fact that the sets of contention interrogatories sent to each of the Shevitzes are identical, is irrelevant. It should be expected that a defendant would want verified discovery responses from each plaintiff. Likewise, the Shavitzes’ arguments in their reply are unpersuasive. They argue that an unverified complaint does not necessitate additional interrogatories because a verified complaint only verifies the factual allegations and not the legal contentions or theories. (Reply, p. 5, ll. 2-5.) The argument is illogical and begs the question as to why that would matter at all. The contentions were made, whether factual or legal, and the Vernons are entitled to conduct discovery regarding those contentions. The Shevitzes also argue that the interrogatories are not really contention interrogatories. (Id. at ll. 6-10.) Simply put: Yes, they are typical contention interrogatories. A statement of “fact” by a party is a contention that they are making. To the extent that the Shevitzes attempt to dictate how the Vernons conduct discovery (see Reply p. 5, l. 22 - p. 6, l. 15) they are not permitted to do so. So long as the Vernons conduct their discovery in accord with the law, they are permitted to proceed as they see fit. The same holds true for any litigant. Further, the Shevitzes reliance on Rifkind v. Superior Court (1994) 22 Cal.App.4th 1255 (Rifkind), is misplaced. Rifkind applies to a very specific legal issue during depositions. Rifkind contains no holding relevant to the present motion relating to interrogatories. Lastly, the Shevitzes argue, at several different locations of their motion and their reply, that somehow it is “nonsensical” to ask for facts upon which another fact is based. (See Reply p. 9, ll. 6-9.) There is nothing nonsensical about it. Facts are often based on, or supported by, other facts.

The motion for a protective order will be denied. The Shevitzes will be expected to provide non-evasive, complete, and code-compliant verified responses. The court will allow the Shevitzes enough time to fully respond. This ruling is not to be construed to mean that discovery going forward will be unchecked. Without making it a part of this ruling, it appears to the court that if the Shevitzes provide complete responses to the contention interrogatories, it will be unlikely that many more, if any, interrogatories, directed at them by the Vernons, will be necessary.

            Sanctions

As noted above, Code of Civil Procedure section 2030.090, subdivision (d), provides: “The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order under this section, 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.”

The Vernons seek $9,427.50 in fees and costs incurred in opposing the Shevitzes’ motion, as set forth in the declaration of their counsel at paragraphs 16-22. The Shevitzes’ objections to counsels declaration in support of the request is overruled. The court does not find that the Shevitzes acted with substantial justification in bringing the motion. Rather, it appears to the court that they simply did not want to answer questions about contentions that they have affirmatively made in this matter.

Sanctions will be awarded against the Shevitzes and in favor of the Vernons for the fees and costs incurred in opposing the motion.