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MOTIONS TO COMPEL FURTHER RESPONSES |
BACKGROUND
A. Allegations
Plaintiff Boiling Crab Operations, LLC (“Plaintiff”) entered into a contract with Defendant Greenberg Farrow Architecture, Inc. (“Greenberg”) on August 18, 2016, for professional architectural and engineering services for the buildout of a new Boiling Crab restaurant located at 140 Palm Avenue, Suite 210 in Burbank. While Plaintiff was responsible for providing all kitchen equipment information and selecting the kitchen exhaust hood manufacturer, Greenberg was responsible for coordinating with the kitchen exhaust hood manufacturer to provide plans that would be incorporated into the planned set. Plaintiff alleges that in August 2016, Greenberg contracted with Defendant Wright Consulting Group, Inc. dba Wright Engineers (“Wright”) to perform mechanical, electrical, and plumbing engineering, design, and drawing for the subject restaurant. Pursuant to the agreement Wright was responsible for the design of the HVAC and the fan and duct work for the chosen kitchen hood.
Construction of the buildout was completed in July 2017 and Plaintiff opened the subject restaurant to the public. However, Plaintiff alleges it observed that the HVAC and kitchen hood vent system were not working according to specifications. In August 2018, Plaintiff contacted Greenberg and Wright that there was insufficient airflow into the kitchen, which made the kitchen extremely hot. Plaintiff alleges that Greenberg and Wright have failed to adequately respond and refused to repair or pay for the improperly designed HVAC system.
The complaint, filed January 7, 2019, alleges causes of action for: (1) breach of contract and (2) professional negligence. On October 21, 2020, Plaintiff amended the complaint to name Jason K. Millheim as Doe 1.
On April 10, 2019, Wright filed a cross-complaint against Greenberg and Moes 1-20 for: (1) equitable indemnity; (2) apportionment of fault/contribution; (3) declaratory relief; (4) breach of contract; (5) express indemnity and defense; (6) declaratory relief – duty to defend; (7) declaratory relief – duty to indemnify; and (8) declaratory relief – limitation of liability. On May 8, 2019, Wright dismissed without prejudice Greenberg only from the cross-complaint.
On September 23, 2020, Cross-Defendant/Cross-Complainant Commercial Air Solutions (Moe 4) filed a cross-complaint against Roes 1-20 for: (1) equitable indemnity and (2) contribution.
B. Motion on Calendar
On October 19, 2020, Wright filed 2 motions to compel Plaintiff’s further responses to: (1) Requests for Production of Documents, set one (“RPD”); and (2) Requests for Admission, set one (“RFA”).
On November 30, 2020, Plaintiff filed oppositions to the two motions.
On December 4, 2020, Wright filed reply briefs.
DISCUSSION
A. RPD
Wright seeks Plaintiff’s further responses to RPD Nos. 23, 24, 36, 37, 39, 40, and 41.
RPD Nos. 23 and 24 seek documents related or referring to repairs or modifications made to the subject property’s (23) make up air system and (24) kitchen hoods. RPD No. 36 seeks all plans and specifications for repairs or modifications for the subject property. RPD No. 37 seeks all documents related to shop drawings for repairs or modifications for the subject property. RPD No. 39 seeks all photographs of repairs or modifications for the subject property. RPD Nos. 40 and 41 seek all written reports related or referring to (40) the project construction and (41) repairs or modifications made to the subject property.
Plaintiff initially objected to the RPDs on the grounds that the RPDs were vague, not reasonably particularized, invaded the attorney-client and/or attorney work product privileges, sought irrelevant information, and would be unduly burdensome and expensive to produce. In its supplemental response, Plaintiff stated that it was unable to comply with the RPDs and despite a diligent search and reasonable inquiry regarding the category of documents, Plaintiff is not in possession, custody, or control of any responsive documents.
Plaintiff’s supplemental response is not code complaint as it fails to respond fully as required under CCP § 2031.230, which states: “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.” Plaintiff has not provided the contact information of a person or organization known or believed by Plaintiff to have the documents sought. If no such person or organization exists, then Plaintiff should also respond to that effect.
Further, the Court does not find Plaintiff’s objections to have merit. As an initial matter, the objections are repeated across these RPDs, such that they appear to be boilerplate in nature. Where such general “boilerplate” objections are made, this Court has the authority to order a further response. (See Best Prods., Inc. v. Superior Court (2004) 119 Cal.App.4th 1181, 1189.) In addition, the crux of Plaintiff’s complaint is that there are issues with the HVAC, kitchen hood, and airflow in the kitchen of the subject restaurant, following the work performed by Greenberg and Wright. Thus, documents regarding any repairs or modifications to the subject property’s air system and kitchen hoods are relevant to the action. It is also unclear why or how the attorney-client privilege or attorney work product doctrine would apply to protect repair and modification documents, as such documents would not include privileged communications or attorney’s work. Also, the RPDs are limited to the subject property only and their make-up air system and kitchen hoods, such that the request is not vague, overbroad, overly burdensome, or expensive to produce.
Thus, the motion is granted as to RPD Nos. 23, 24, 36, 37, 39, 40, and 41. To the extent Plaintiff has no documents or that it never made repairs or modifications, it should state so in its responses clearly. To the extent that Plaintiff is claiming the privileges apply, it should produce a privilege log that conforms with CCP § 2031.240(c).
B. RFA
Wright seeks Plaintiff’s further responses to RFA Nos. 14-15, 18-22, 24, 36-43, and 53. Wright also seeks to establish the truths of the matters asserted in RFA Nos. 34, 35, 44, and 49-51 as deemed admitted by Plaintiff.
1. Request to Deem Admitted RFA Nos. 34, 35, 44, and 49-51
Wright argues that Plaintiff did not timely serve its original responses as to these RFAs and that when it did provide responses, they were purely objections. Wright also argues that Plaintiff did not provide any further responses to these RFAs. Thus, relying on CCP § 2033.280(b), it argues because Plaintiff has failed to timely serve responses, Wright may move for an order that the genuineness of any documents and the truth of any matters specified in the RFAs be deemed admitted.
By way of background, Wright propounded the RFA on Plaintiff on April 23, 2020. (Stec Decl., ¶3.) Plaintiff did not serve responses to the RFA or request an extension before the May 27, 2020 deadline, but instead requested a 30-day extension on June 2, 2020. (Id., ¶4.) Wright’s counsel, Charles K. Stec, offered a 2-week extension for substantive responses without objections, which Plaintiff’s counsel refused and stated he would be providing responses by June 18, 2020 and would not waive objections. (Id.) On June 17, 2020, Plaintiff requested another 2-week extension to July 2, 2020, to which Mr. Stec agreed to provide and informed Plaintiff’s counsel that the RFA responses were untimely and all objections were now waived. (Id., ¶5.) On July 2, 2020, Plaintiff served its responses. (Id., ¶6, Ex. D.) The parties engaged in meet and confer efforts and then Plaintiff served further response to the RFA on September 18, 2020. (Id., ¶¶7-9, Ex. G.)
The Court will consider the merits of Plaintiff’s objections to RFA Nos. 34, 35, 44, and 49-51 and will not find that they have been waived. Thus, the Court will discuss whether further responses to these RFAs should be compelled.
2. Request to Compel Further Responses to RFA Nos. 14-15, 18-22, 24, 34-44, 49-51, and 53
RFA Nos. 14 and 15 ask Plaintiff to admit that a single 8800 CFM fan was installed at the project to exhaust air from four 2200 CFM kitchen hoods and that the 8800 CFM exhaust fan removes air to the outside of the project’s building. RFA Nos. 18 and 19 ask Plaintiff to admit that a single 7560 CFM MUA supply fan was installed to supply make-up air for the project’s four kitchen hoods and that the MUA supply fan draws air from outside the project’s building.
Initially, Plaintiff objected that the RFAs were compound and conjunctive/disjunctive, contained subparts, the request was not full/complete in and of itself, and sought premature expert work product. Plaintiff responded in its initial and further response that: “Despite a reasonable inquiry into the matter that is the subject of this request, responding party lacks sufficient information to admit or deny the request.”
The objections raised by Plaintiff in its initial responses are essentially boilerplate in nature. As stated above, where objections are merely boilerplate, the Court has the authority to order a further response. Further, “[a] party to an action may not necessarily avoid responding to a request for admission on the ground that the request calls for expert opinion and the party does not know the answer.” ( Bloxham v. Saldinger (2014) 228 Cal.App.4th 729, 751.) Because RFAs are “not limited to matters within personal knowledge of the responding party, that party has a duty to make a reasonable investigation of the facts before answering items which do not fall within his personal knowledge.” (Id. at 751-52.)
In its further response, Plaintiff did not include objections and instead responded that it lacked information to admit or deny the request. According to CCP § 2033.220(c), “If a responding party gives lack of information or knowledge as a reason for a failure to admit all or part of a request for admission, that party shall state in the answer that a reasonable inquiry concerning the matter in the particular request has been made, and that the information known or readily obtainable is insufficient to enable that party to admit the matter.” While Plaintiff’s response is technically code compliant, the Court finds it highly doubtful that Plaintiff would lack this information or would be unable to ascertain this information upon further investigation. With the opposition papers, Plaintiff provides the declaration of Bill Kilmer (Plaintiff’s controller), who states that he is not an engineer, he does not have personal knowledge of the type of fans used or what the fans do, and that Plaintiff has not retained an expert. (Kilmer Decl., ¶¶4-5, 6-7.) Thus, it appears that Plaintiff has not undertaken its full duty in making a reasonable inquiry on the matters. Further, if Plaintiff is alleging in the complaint that there are issues with the installation of kitchen equipment, then it should be prepared to support such allegations and apprise Defendants with evidence through the discovery process. Thus, the motion is granted as to RFA Nos. 14-15 and 18-19.
RFA Nos. 20, and 22 ask Plaintiff to admit that the outside air is used to supply make-up air to be exhausted by the kitchen hoods’ exhaust fan (no. 20), and the MUA supply returns direct air downward at the front of the kitchen equipment. RFA No. 21 asks Plaintiff to admit the 9/27/16 CaptiveAir Kitchen Hood drawings specify that the kitchen hoods incorporate a “SUPPLY RISER WITH VOLUME DAMPER” return at the face of the kitchen hood. RFA No. 24 asks Plaintiff to admit that a certain drawing (provided with the RFA request) depicts the kitchen hoods’ air flow pattern from MUA supply returns to the kitchen hoods’ exhaust fan. RFA No. 34 asks Plaintiff to admit that sheet no. M1.2 of the 9/29/16 Wright Mechanical Plans, Rev. 1 (provided with the RFA request) shows that make up air is to be ducted to each of the kitchen hoods’ MUA supply returns. Plaintiff initially objected on the same grounds as above and on the ground that the RFA sought irrelevant information. Plaintiff’s further responses state that despite a reasonable inquiry, it lacked sufficient information to admit or deny the RFAs.
For the reasons stated above, the Court finds that the objections are essentially boilerplate in nature. Further, the RFAs appear to be directed towards relevant matters as it involves the kitchen and equipment at issue for the subject property. With regard to nos. 21, 22, and 34, to the extent that the RFAs refer to a drawing (which was provided with the text of RFAs), the Court finds that the RFAs are full and complete in and of themselves. Plaintiff’s responses are technically code-complaint and Mr. Kilmer declares that Plaintiff lacks sufficient information to admit or deny the RFAs because he is not an engineer, the RFAs ask technical questions, and Plaintiff has not retained an expert. (Kilmer Decl., ¶¶8-12.) However, as stated above, Plaintiff cannot ignore its discovery duties by objecting that the RFAs seek expert opinion. Instead, Plaintiff should make a reasonable inquiry into the matters and answer the RFAs. The motion is granted as to RFA Nos. 20-22, 24, and 34.
RFA No. 35 asks Plaintiff to admit that a certain photograph (taken by Wright at the 10/24/19 site inspection) depicts an uncapped duct at the project as of October 24, 2019. RFA Nos. 36 to 38 ask Plaintiff to admit that it did not repair the uncapped duct, the uncapped duct directs make-up air into the project’s attic space, and the uncapped duct is not compliant with sheet no. M1.2 of the plans. RFA No. 39 asks Plaintiff to admit that a certain photograph (taken by Wright at the site inspection) depicts duct work connected from the project’s HVAC unit to the kitchen hood’s MUA supply returns as of October 24, 2019. RFA Nos. 40 and 41 ask Plaintiff to admit that it did not reroute the HVAC ducting from the kitchen hoods’ MUA supply returns after October 24, 2019 and that the pictured duct work is not compliant with sheet no. M1.2. RFA No. 42 asks Plaintiff to admit that the 9/27/16 CaptiveAire Kitchen Hood drawing’s “HVAC Distribution Note” states that “it is recommended not to install high velocity diffusers or HVAC returns within ten (10) feet of the exhausted hood.” RFA Nos. 43 and 44 asks Plaintiff to admit that the HVAC condition air should not be ducted to the MUA supply returns because the kitchen hood manufacturer advised against installing HVAC returns within 10 feet of the kitchen hoods, and the duct work depicted is not compliant with the HVAC Distribution Note. RFA Nos. 49-51 and 53 ask Plaintiff to admit that the as-built overhead clearance between the top of the kitchen burners and bottom of the kitchen hood is equal to or greater than 60 inches, the clearance does not comply with sheet no. 3 “section View” specification (provided in RFA No. 48), the clearance is not compliant with sheet no. M1.2, and the clearance reduces the capacity for the kitchen hoods to remove heat generated by the kitchen burners.
To RFA Nos. 35-44, 49-51, and 53, Plaintiff initially objected on the same grounds as above and also objected on the ground that the RFAs were vague and ambiguous as written. In its further responses to Nos. 36-43, Plaintiff further responded that despite a reasonable inquiry, it lacked sufficient information to admit or deny the RFAs.
As discussed above, it appears that Plaintiff is relying solely on Mr. Kilmer’s statements that he is not an engineer, lacks information to admit or deny the requests, and Plaintiff has not retained an expert to decline responding fully to the RFAs. (Kilmer Decl., ¶¶13-26.) Thus, for the reasons stated above, the Court will order further responses to RFA Nos. 35-44, 49-51, and 53.
C. Sanctions
Wright seeks $2,084.10 in connection with the RPD motion and $2,257.61 in connection with the RFA motion. The Court grants Wright’s request for fees in the total amount of $1,504 (Mr. Stec’s billing rate of $173/hour x 8 hours, plus $120 in filing fees).
Plaintiff’s request for sanctions is denied.
CONCLUSION AND ORDER
The Court grants Wright’s motions to compel Plaintiff’s further responses to RPD Nos. 23, 24, 36, 37, 39, 40, and 41and RFA Nos. 14-15, 18-22, 24, 34-44, 49-51, and 53. Plaintiff is ordered to provide further responses within 30 days of notice of this order. Plaintiff and its counsel of record, jointly and severally, are ordered to pay monetary sanctions in the amount of $1,504 to Wright, by and through counsel, within 30 days of notice of this order.
Wright shall provide notice of this order.