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Tentative Ruling
Judge Colleen Sterne
Department 5 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION

McCoy Electric Corporation v. Annette Rubin, et al.

Case No: 16CV035911
Hearing Date: Mon Jan 27, 2020 9:30

Nature of Proceedings: Demurrer to Cross-Complaint of The Las Canoas Co. dba Construction Plumbing; Motion Compel The Rubins to Serve Further Responses to Req. for Admission and Form Interrog. 17.1

 

 

McCoy Electric Corporation v. A. Stuart Rubin and Annette Rubin (Judge Sterne)

Case No. 16CV03591

           

Hearing Date: January 27, 2020                                                        

 

HEARING:             

(1)       Demurrer of Cross-Defendants A. Stuart Rubin and Annette Rubin to Cross-Complaint of Construction Plumbing

 (2)       Motion of Cross-Defendant Construction Plumbing

 

ATTORNEYS:       

For Plaintiff McCoy Electric Corporation: Barton C. Merrill

 For Defendants, Cross-Complainants, and Cross-Defendants A. Stuart Rubin and Annette Rubin: Patrick C. McGarrigle, Michael J. Kenney, McGarrigle, Kenney & Zampiello

For Cross-Defendant and Cross-Complainant The Las Canoas Co. dba Construction Plumbing: Daniel E. Engel

                              

 

TENTATIVE RULING:

 

(1)       The demurrer of cross-defendants A. Stuart Rubin and Annette Rubin to the cross-complaint of The Las Canoas Co. dba Construction Plumbing is overruled in its entirety. Cross-defendants shall file and serve their answer to the cross-complaint on or before February 11, 2020.

(2)      The motion of cross-defendant The Las Canoas Co. dba Construction Plumbing to compel further responses to discovery is granted. On or before February 11, 2020, cross-complainants A. Stuart Rubin and Annette Rubin shall serve further verified responses, without objection except as to privilege, in a form complying with the Code of Civil Procedure to requests for admission, set one, Nos. 1, 3, 5, 7, 9, 14, 15, and 16, and to responses to form interrogatory No. 17.1 corresponding to those requests for admission. With respect to any response for which information is qualified or withheld on the grounds of privilege, the Rubins shall include in their response sufficient additional information for the court to rule upon claim of privilege.

  

Background:

 

This action arises from construction work performed by plaintiff McCoy Electric Corporation (McCoy) at property owned by defendants Annette and Stuart Rubin (collectively, the Rubins). McCoy filed suit against the Rubins in August 2016 seeking unpaid fees for the work. On October 17, 2016, the Rubins answered and cross-complained against plaintiff and its principal, including claims involving defective construction, overcharging, and conversion of materials. They filed a First Amended Cross-Complaint on January 23, 2017. On February 10, 2017, McCoy Electric then filed a cross-complaint for indemnity, contribution and declaratory relief solely against fictitiously named defendants.

 

After various substitutions of counsel and discovery disputes, on August 26, 2019 (followed by written order entered September 16, 2019), the court granted the Rubins leave to file a cross-complaint against multiple contractors involved in the construction at issue. This second, third-party cross-complaint was filed on September 19, 2019. Among the claims in this cross-complaint are the third cause of action for negligence and the seventh cause of action breach of contract asserted against cross-defendant The Las Canoas Co. dba Construction Plumbing (Construction Plumbing).

 

On October 25, 2019, Construction Plumbing filed its answer to the Rubins’ cross-complaint, generally denying the allegations of thereof and asserting affirmative defenses. Construction Plumbing concurrently filed a cross-complaint against the Rubins.

 

(1)       Construction Plumbing Cross-Complaint

 

As alleged: Construction Plumbing was asked by Lindsey Adams, a general contractor, to submit a proposal to install the radiant heating system (System) for a home that the Rubins had hired Adams to build. (Construction Plumbing Cross-Complaint [CP Cross-Complaint], ¶ 1.) Construction Plumbing prepared and sent a proposal to Adams for installing the System. (CP Cross-Complaint, ¶¶ 2-4 & exhibit 1.)

 

Thereafter, Adams or the Rubins selected Construction Plumbing to install the System depicted in the plans and specifications provided. (CP Cross-Complaint, ¶ 5.) On March 12-13, 2012, Adams directed Construction Plumbing to install the System. (CP Cross-Complaint, ¶ 6.) From mid-March onward, Construction Plumbing installed more and more radiant tubing according to the plans and specifications. (CP Cross-Complaint, ¶¶ 15-17.)

 

In May 2012, the Rubins fired Adams and hired Leonard Unander to take over as the general contractor for the project. (CP Cross-Complaint, ¶ 18.) On May 15, 2012, Construction Plumbing submitted a proposal to Unander which was virtually identical to the March 12, 2012, proposal given to Adams. (CP Cross-Complaint, ¶ 19.) Unander and Construction Plumbing subsequently entered into a contract based on the May 15, 2012, proposal. (CP Cross-Complaint, ¶ 20.) Construction Plumbing continued to install the System according to the plans and specifications. (CP Cross-Complaint, ¶ 21.)

 

On June 11, 2012, Adams sued the Rubins to collect amounts owed by the Rubins for work related to the project (the Adams-Rubins Lawsuit). (CP Cross-Complaint, ¶ 22.)

 

On September 30, 2012, the Rubins fired Unander and hired Gerald De Mill to take over as general contractor. (CP Cross-Complaint, ¶ 23.) By that time, a significant portion of radiant heating tubing installed by Construction Plumbing had been encased in the slab per the plans and specifications. (CP Cross-Complaint, ¶ 24.) Shortly thereafter, the Rubins asked Construction Plumbing to enter into a new contract directly with them for the System. (CP Cross-Complaint, ¶ 25.) On October 5, 2012, Construction Plumbing entered into a written contract with Annette Rubin to install the System (the Radiant Contract). (CP Cross-Complaint, ¶¶ 26-28 & exhibit 3.) Sometime after the Radiant Contract was executed, Construction Plumbing was provided with a revised set of plans and specifications which continued to call for the same System as originally designed. (CP Cross-Complaint, ¶¶ 29-31 & exhibit 4.) At the direction of De Mill, after October 5, 2012, Construction Plumbing continued to install the System called for in the plans and specifications. (CP Cross-Complaint, ¶ 32.)

 

On November 26, 2012, Annette Rubin filed a cross-complaint against Adams in the Adams-Rubin Lawsuit. (CP Cross-Complaint, ¶¶ 33-34 & exhibit 5.)

 

In April 2013, Adams cross-complained against Construction Plumbing in the Adams-Rubin Lawsuit seeking indemnity and generally alleging that Construction Plumbing was negligent in the performance of its work at the project. (CP Cross-Complaint, ¶¶ 37-38 & exhibit 6.) Construction Plumbing stayed on the job notwithstanding the lawsuit and accusations. (CP Cross-Complaint, ¶ 39.)

 

In July 2013, at the insistence of De Mill and others, Construction Plumbing executed a change order to install different air sensors to be supplied by the designer of the System. (CP Cross-Complaint, ¶ 45-46.)

 

On January 31, 2015, having successfully installed the System, Construction Plumbing sent its final invoice. (CP Cross-Complaint, ¶ 52.)

 

In March 2015, Construction Plumbing and the Rubins settled the Adams-Rubins Lawsuit and entered into a written settlement agreement (Settlement Agreement). (CP Cross-Complaint, ¶¶ 53-54 & exhibit 10 [the Settlement Agreement].) In the text of its cross-complaint, Construction Plumbing alleges that the Settlement Agreement waives and releases all claims relating to work completed prior to May 7, 2014. (CP Cross-Complaint, ¶¶ 54-56.) The attached Settlement Agreement includes the following provisions:

 

“1.1 RUBIN, for herself and her husband, Stuart Rubin, [Adams and affiliates (LAC)], LOWE, RADIS and CONSTRUCTION PLUMBING and on behalf of their RELATED PARTIES among each other mutually agree to forgive, waive, extinguish, relinquish satisfaction, release, acquit and discharge, each other as well as persons described herein from liability, claims, indemnities, causes of action, demands, rights, damages, obligations, contracts, debts, controversies, costs, losses of any kind whatsoever, known or unknown, past, present or future, suspected or unsuspected, disclosed or undisclosed, anticipated or unanticipated, patent and latent construction defects as defined by the California Code of Civil Procedure sections 337.1 and 337.15, resulting from any claim, contract, agreement, lien, cause of action, chose, chose in action, act or omission, including but not limited to any and all claims for negligence, breaches of contract, breaches of duty, or of any relationship, damages of any nature, breaches of warranty, representation, misrepresentations, negligent omissions, any and all claims or complaints with the California Contractors State License Board, any and all claims or complaints concerning the California Business & Professions Code, or claims for attorneys’ fees and costs, whether based on tort, contract or any other theory of recovery, and whether for compensatory or punitive damages as against each other regarding any and all materials and products and/or work performed under LAC between the dates of September 1, 2011 and May 7, 2012, at 4347 Marina Drive, Hope Ranch, Santa Barbara, CA 93110. This release is intended to encompass any and all claims based upon any legal theory, whether mature or inchoate, and whether known or unknown, suspected or unsuspected by the Claimants, regarding any and all materials and products and/or work performed under LAC between the dates of September 1, 2011 and May 7, 2012 at 4347 Marina Drive, Hope Ranch, Santa Barbara. CA 93110.” (Settlement Agreement, § 1.1.)

 

“1.3 RUBIN, for herself and her husband, Stuart Rubin, as to CONSTRUCTION PLUMBING agree to release, forgive, waive, extinguish, relinquish satisfaction, acquit and discharge from liability, any property damages and financial damages to the existing RUBIN property or work product of prior contractors and subcontractors during the time period LAC and Leonard Unander Associates were at the SUBJECT PROPERTY. Said damages are alleged to include but are not limited to nails, screws, blocking various attachments into/resting on Redbuilt Trusses and the cutting, drilling and notching of Redbuilt Trusses, in the West Wing basement of the SUBJECT PROPERTY. This release is intended to release CONSTRUCTION PLUMBING of any and all damages of any type or kind to existing RUBIN property or work product of prior contractors or subcontractors up to and through the date of September 30, 2012. RUBIN and CONSTRUCTION PLUMBING further agree that subject to the releases in 1.1 and 1.2 herein, this Settlement Agreement and Release does not in any way release or waive any claims, rights, equitable or statutory rights, liabilities, warranties, causes of action or damages against CONSTRUCTION PLUMBING or any of its subcontractors or material suppliers for any of its/their own plumbing work, products, labor and materials installed or supplied to the SUBJECT PROPERTY after the date of May 7, 2014.” (Settlement Agreement, § 1.3.)

 

“1.8 Save and except as specifically stated herein in 1.3 as to CONSTRUCTION

PLUMBING, each SETTLING PARTY hereto as described in paragraphs 1.1 and 1.2 and insofar as the RELEASED MATTERS, acknowledges that there is risk in that, subsequent to the execution of this Agreement, it may incur, suffer or sustain injury, loss, damage, costs, attorneys’ fees expenses, or any of these, which are in some way caused by and/or connected with the persons, entities and/or matters referred to in the Dispute, or which are unknown and unanticipated at the time this Agreement is signed or which are not presently capable of being ascertained. Each SETTLING PARTY hereto further acknowledges that there is a risk that such damages as are known may become more serious than any of them now expect or anticipate. Nevertheless, each party hereto acknowledges that this Agreement has been negotiated and agreed upon in light of those realizations and each of them hereby expressly waives all rights each may have in such unsuspected claims. In so doing, each party hereto has had the benefit of counsel, has been advised of, understands and knowingly and specifically waives its rights under California Civil Code §1542, which provides as follows:

“A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time 0f executing the Release, which if known by him or her must have materially affected his or her settlement with the debtor.” (Settlement Agreement, § 1.8, italics omitted.)

 

Construction Plumbing further alleges that the instant lawsuit by the Rubins against Construction Plumbing alleges claims that were waived and released by the Rubins as part of the settlement of the Adams-Rubin Lawsuit. (CP Cross-Complaint, ¶ 57.)

 

The CP Cross-Complaint asserts one cause of action for breach of contract, i.e., breach of the Settlement Agreement.

 

The Rubins now demur to the CP Cross-Complaint. The Rubins argue that the CP Cross-Complaint is barred by the same Settlement Agreement upon which the CP Cross-Complaint is based and is barred by the litigation privilege of Civil Code section 47, subdivision (b). Construction Plumbing opposes the demurrer.

 

(2)       Motion of Construction Plumbing to Compel Further Responses to Discovery

 

On October 24, 2019, Construction Plumbing electronically served its requests for admission, set one, and form interrogatory No. 17.1. (Engel decl., ¶ 3.) On November 21, counsel for Construction Plumbing, attorney Daniel Eric Engel, received an email from counsel for the Rubins, attorney Patrick McGarrigle, disputing the effectiveness of such service and offering to resolve the dispute by deeming the discovery served as of November 15. (Engel decl., ¶ 4.) Engel refused the offer, and responded that the October 24 service was sufficient but offered to extend the deadline to respond to 32 days measured from November 15. (Ibid.)

 

On December 17, 2019, the Rubins electronically served responses to this discovery. (Engel decl., ¶ 8.) The responses consist of repeated objections. (Engel decl., ¶ 10.)

 

On December 20, 2019, Engel sent to McGarrigle an email as a meet and confer statement, including a draft separate statement. (Engel decl., ¶ 16 & exhibit B.) On December 27, McGarrigle responded, commenting generally about the state of discovery and about litigation matters. (Engle decl., ¶ 18 & exhibit D.) (Note: The exhibits are not electronically bookmarked in violation of Rules of Court, rule 3.1110(f)(4).)

 

On January 3, 2020, Construction Plumbing filed this motion to compel further responses to its requests for admission, set one, Nos. 1, 3, 5, 7, 9, 14, 15, and 16, and corresponding further responses to form interrogatory No. 17.1.

 

The motion is opposed by the Rubins.

 

Analysis:

 

(1)       Demurrer

 

“ ‘The rules by which the sufficiency of a complaint is tested against a general demurrer are well settled. We not only treat the demurrer as admitting all material facts properly pleaded, but also ‘give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.’ ” (Zhang v. Superior Court (2013) 57 Cal.4th 364, 370, internal quotation marks and citations omitted.)

 

The court notes that the declaration of attorney Patrick C. McGarrigle in support of the demurrer not only addresses the unsuccessful efforts to meet and confer as required by Code of Civil Procedure section 430.41, but also includes 163 pages of exhibits. “Because a demurrer challenges defects on the face of the complaint, it can only refer to matters outside the pleading that are subject to judicial notice.” (Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482.) The court does not consider any of the exhibits to the declaration in support of the demurrer and considers the declaration only to the extent of its compliance with section 430.41.

 

The Rubins make two arguments in support of their demurrer. The first argument is that Construction Plumbing does not state a cause of action for breach of the Settlement Agreement because those claims are precluded by the Settlement Agreement itself. “A cause of action for breach of contract requires pleading of a contract, plaintiff’s performance or excuse for failure to perform, defendant’s breach and damage to plaintiff resulting therefrom.” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.)

 

The contract alleged is the Settlement Agreement; the breach of contract alleged is the “maintenance and prosecution of the instant action” (CP Cross-Complaint, ¶ 59). The instant action refers to the Rubins’ cross-complaint against Construction Plumbing. (CP Cross-Complaint, ¶ 57.) The Rubins’ cross-complaint asserts in its third cause of action a claim for damages based upon negligence: “Construction Plumbing … provided work, labor and materials to the Project including, but not limited to, the installation of the radiant heating system and related wiring and certain components for the Property. Construction Plumbing … owed a duty of care to Cross-Complainants, as the owners of the Property, to perform construction services and work within the applicable standard of care applicable to licensed plumbing contractors providing the above professional services for the type and scope of the Project at issue here. [¶] Construction Plumbing … breached said duties owed to Cross-Complainants because, in fact, the professional services provided by Construction Plumbing to and for the Project were negligent and below the standard of care including, without limitation, Construction Plumbing’s failure to competently construct and install the radiant heating system and its components for the Property.” (Rubins’ Cross-Complaint, filed Sept. 19, 2019, ¶¶ 31-32.) The “Project” is defined in the Rubins’ pleadings as work done at the real property. (Rubins’ Cross-Complaint, ¶ 15.) The Rubins’ allegations of negligent construction state that such negligent construction was discovered within the last year, but the allegations do not state when the construction took place. (See Rubins’ Cross-Complaint, ¶¶ 4, 32.) Construction Plumbing alleges that it performed construction on the project from March 2012 until completion sometime before January 31, 2015. (CP Cross-Complaint, ¶¶ 6, 17, 48-52.)

 

The parties argue about the time period to which the release in the Settlement Agreement applies. It is not necessary for the court to determine the proper time period to which the Settlement Agreement applies to determine this challenge to the pleadings. Whether the scope of the Settlement Agreement is broad or narrow, the Rubins’ cross-complaint asserts claims that potentially fall within the scope of the release and therefore, under the allegations of the CP Cross-Complaint, constitute a basis for breach of contract. “[A] demurrer cannot rightfully be sustained to part of a cause of action or to a particular type of damage or remedy.” (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047.) The general demurrer as to the pleading of a cause of action for breach of contract will be overruled.

 

For the same reason, the CP Cross-Complaint is not uncertain. The Rubins assert uncertainty in the difference between the language of the Settlement Agreement and the legal effect of the Settlement Agreement asserted by Construction Plumbing in the text of the CP Cross-Complaint. Construction Plumbing has alleged the terms of the Settlement Agreement by attaching the Settlement Agreement itself. “The uncertainty, if any, does not arise out of the allegations of the relevant facts, but out of the legal effect thereof. Plaintiff may not be required to resolve such uncertainty on demurrer, however [citations], and it is entitled to seek any relief consistent with the facts alleged.” (Santa Clara County v. Hayes Co. (1954) 43 Cal.2d 615, 619–620.) The demurrer for uncertainty will be overruled.

 

The Rubins’ second argument is that the CP Cross-Complaint is barred by the litigation privilege of Civil Code section 47, subdivision (b): “A privileged publication or broadcast is one made: [¶] … [¶] (b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure ….”

 

In the California Supreme Court case of Navellier v. Sletten (2002) 29 Cal.4th 82, the issue presented was whether an action for fraud and breach of contract (a settlement agreement) based on the defendant’s having filed counterclaims in a prior, unrelated proceeding in federal court, is one “arising from” activity protected by Code of Civil Procedure section 425.16 (the anti-SLAPP statute). (Id. at p. 85.) The Supreme Court stated: “In alleging breach of contract, plaintiffs complain about [the defendant’s] having filed counterclaims in the federal action. [The defendants], plaintiffs argue, ‘counterclaimed for damages to recover money for the very claim he had agreed to release a year earlier’ and ‘was sued for that act.’ A claim for relief filed in federal district court indisputably is a ‘statement or writing made before a ... judicial proceeding’ (§ 425.16, subd. (e)(1)).” (Id. at p. 90.) “That contract and fraud claims are not categorically excluded from the operation of the anti-SLAPP statute does not mean, as plaintiffs suggest, that [the defendant] therefore cannot be sued for breaching his promises because his alleged breach was in filing claims in court.” (Id. at p. 93.) Because the Court of Appeal had not considered the probability of prevailing element of an anti-SLAPP motion, the Supreme Court remanded the action to the Court of Appeal for reconsideration in light of that decision. (Id. at pp. 95-96.)

 

On remand from the Supreme Court, the Court of Appeal addressed the issue of whether these claims were barred by the litigation privilege. (Navellier v. Sletten (2003) 106 Cal.App.4th 763, 766-767 (Navellier II).) After finding that the fraud claim was barred by the litigation privilege (id. at pp. 769-773), the court found that the contract claim failed because of lack of proof of damages (id. at pp. 775-777). With respect to the application of the litigation privilege to the contract claim, the court stated:

 

“Defendant urges us to hold that the litigation privilege bars the breach of contract cause of action as well as the fraud claim. We decline to do so for a number of reasons. [¶] First, the privilege is generally described as one that precludes liability in tort, not liability for breach of contract. … [¶] Second, the Supreme Court majority in this case has indicated that ‘a defendant who in fact has validly contracted not to speak or petition has in effect “waived” the right to the anti-SLAPP statute’s protection in the event he or she later breaches that contract.’ [Citation.] This statement is sandwiched between an observation that the second prong of the anti-SLAPP test ‘preserves appropriate remedies for breaches of contracts involving speech by ensuring that claims with the requisite minimal merit may proceed,’ and a comment that the anti-SLAPP statute does not ‘unduly burden plaintiffs alleging breach of an agreement not to sue.’ [Citation.] … [¶] Third, in [Stacy & Witbeck, Inc. v. City and County of San Francisco (1996) 47 Cal.App.4th 1], … [the court] noted that the claim was required under the parties’ contract, and thus ‘had a life of its own wholly apart from any judicial action,’ even though it ‘also served a litigation purpose.’ [Citation.] We continued: ‘The paper trail of contractual performance and course of dealing between parties under a contract cannot be immunized from use in later judicial proceedings just because that paper trail is also a publication that serves a litigation purpose. If that same paper trail amounts to wrongful performance or conduct under the contract, it escapes section 47(b).... [¶] ... The litigation privilege was never meant to spin out from judicial action a party’s performance and course of conduct under a contract.’ [Citation.] This same reasoning could be applied to a counterclaim filed in breach of a release, and thus suggests that the privilege would not bar the breach of contract claim herein. [¶] Fourth, defendant acknowledges that the litigation privilege might not apply if the contract were a covenant not to sue, rather than a release, because it ‘may frustrate the very purpose of the contract’ if there were a privilege to breach the covenant. Thus, defendant himself suggests that the privilege does not categorically preclude all breach of contract actions.” (Navellier II, supra, 106 Cal.App.4th at pp. 773–774.)

 

In Wentland v. Wass (2005) 126 Cal.App.4th 1484 (Wentland), the plaintiffs brought an action for an accounting in three partnerships. (Id. at p. 1487.) The defendant, the manager of the partnerships, filed a cross-complaint against the plaintiffs asserting that they had breached a settlement agreement that concerned a fourth partnership by making statements, contrary to a non-disparagement provision, concerning the defendant. (Id. at pp. 1487-1488.) The plaintiffs demurred on the grounds of the litigation privilege, which the trial court sustained without leave. (Id. at p. 1488.) On appeal, the Wentland court reversed. (Id. at p. 1496.) After discussing the Court of Appeal opinion in Navellier II, the Wentland court stated:

 

Our review of … cases that have considered the litigation privilege in the context of a breach of contract case[] instructs that whether the litigation privilege applies to an action for breach of contract turns on whether its application furthers the policies underlying the privilege. [Citations.] [¶] The ‘principal purpose’ of the litigation privilege ‘is to afford litigants and witnesses [citation] the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort action.’ [Citation.] The privilege ‘promotes the effectiveness of judicial proceedings by encouraging “open channels of communication and the presentation of evidence” in judicial proceedings.’ [Citation.] The privilege ‘promotes the effectiveness of judicial proceedings by encouraging attorneys to zealously protect their clients’ interests.’ [Citation.] ‘Finally, in immunizing participants from liability for torts arising from communications made during judicial proceedings, the law places upon litigants the burden of exposing during trial the bias of witnesses and the falsity of evidence, thereby enhancing the finality of judgments and avoiding an unending roundelay of litigation, an evil far worse than an occasional unfair result. [Citation.]’ [Citation.] In summary, the purpose of the litigation privilege is to ensure free access to the courts, promote complete and truthful testimony, encourage zealous advocacy, give finality to judgments, and avoid unending litigation.” (Wentland, supra, 126 Cal.App.4th at p. 1492.)

 

“The policies behind the litigation privilege are not furthered by its application in this case. Unlike in the usual derivative tort action, application of the privilege in the instant case does not serve to promote access to the courts, truthful testimony or zealous advocacy. This cause of action is not based on allegedly wrongful conduct during litigation, …. Rather, it is based on breach of a separate promise independent of the litigation …. This breach was not simply a communication, but also wrongful conduct or performance under the contract …. Like the example of the covenant not to sue in Navellier II, here application of the privilege would frustrate the purpose of the [prior settlement] agreement.” (Wentland, supra, 126 Cal.App.4th at p. 1494.)

 

For the same reasons discussed in Navellier II and Wentland, here, the terms of the settlement agreement that are alleged to have been breached are those that release Construction Plumbing from liability. The breach alleged is in asserting liability contrary to the release. Thus, the Rubins’ litigation privilege argument would have the effect of preventing Construction Plumbing from obtaining the benefit of its settlement while not furthering the policies behind the litigation privilege. The litigation privilege does not operate to bar an action for breach of the settlement agreement alleged here. Accordingly, the demurrer will be overruled on this ground as well.

 

(2)       Motion to Compel

 

“On receipt of a response to requests for admissions, the party requesting admissions may move for an order compelling a further response if that party deems that either or both of the following apply:

            “(1) An answer to a particular request is evasive or incomplete.

            “(2) An objection to a particular request is without merit or too general.” (Code Civ. Proc., § 2033.290, subd. (a).) “A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2033.290, subd. (b)(1).)

 

The meet and confer process was not productive. Construction Plumbing sent an email addressing the specific responses at issue in this motion. The Rubins responded by addressing the entirety of the discovery between the parties, bringing in general litigation matters as well. Underlying this particular discovery dispute is a larger issue that the court touched upon in ruling on Construction Plumbing’s previous motion to sequence discovery. The statutory scheme is designed for the parties to initiate their respective discovery according to their own schedule and for the parties to resolve any disputes among themselves with court intervention as a last resort. Where the process of discovery raises issues, the parties may make appropriate motions, including motions for protective orders. As the court explained in denying the motion to sequence discovery, any such motion needs to meet its statutory prerequisites with an appropriate factual showing. If discovery is unduly burdensome and oppressive, the court may address that issue upon a proper motion. A party may not simply object to some discovery on the grounds that other discovery is burdensome. The Rubins spend much time doing just this. The court instead focuses solely upon the discovery that is the subject of this motion.

 

At the same time, the court does find that the timing of the meet and confer process and the filing of this motion contributed to the failure of the parties to address this discovery issue in earnest. An email on Friday, December 20, requiring a response by Friday, December 27, with this motion being filed on Friday, January 3, is not calculated to engage counsel meaningfully. The email response states that “substantive verified responses would follow in about two weeks.” (Engel decl., exhibit D.) This was not followed up. At the same time, however, there is no evidence presented by the Rubins that they provided the responses as promised. (See also Engel reply decl., ¶ 18.)

 

The motion addresses two different, but interrelated, discovery responses. The Rubins object that this approach improperly combines two motions into a single motion. There is neither authorization nor prohibition for combining these motions. The court’s approach depends on the context. Properly speaking, each request is a separate motion because different orders are required for each set of discovery. (See Code Civ. Proc., § 1003 [“Every direction of a court or judge, made or entered in writing, and not included in a judgment, is denominated an order. An application for an order is a motion.”].) There are four components to a discovery motion: the notice; the memorandum in support; the separate statement; and, the evidence, including the meet and confer declaration. Where items are closely related, there may be much efficiency in combining some of these components, such as addressing related issues in a single memorandum. Combining unrelated items is highly disfavored because it makes for lengthy and unwieldy documents, such as separate statements that run to hundreds of pages. Moreover, the court’s resources are not unlimited and combining unrelated items misleads the court by docketing a single motion where there are effectively multiple motions. There is also the matter of assuring that all required fees are paid and that the combining of motion is not a subterfuge to avoid filing fees. Here, the items are closely related and combining them does not impose an unreasonable burden on the court. The court will consider the motion as presented.

 

Request for Admission (RFA) No. 1 is: “Annette Rubin provided Construction Plumbing with the Plans and Specifications for the Radiant Heating System.”

“Plans and Specifications” are defined as “those ‘plans and specifications’ referred to in the Contract Agreement Dated October 5, 2012, which is attached to this set of Form Requests for Admission as Exhibit 1.D.”

 

“Radiant Heating System” is defined as “the radiant floor heating system depicted in the Plans and Specs.”

 

The response to RFA No. 1 consists of general objections and specific objections. The general objections are:

 

“1. Responding Party objects to each and every discovery request insofar as the documents and/or information requested are protected by any privilege, including without limitation, the attorney-client privilege and/or the attorney work-product and consulting doctrine, or any other applicable privilege or exemption from discovery. Nothing contained in the following responses and/or in any documents produced is intended to be or should be considered as a waiver of attorney-client privilege, the work-product and consulting expert doctrine, trade secret or confidential information, the right of privacy or any other applicable privilege and to the extent that any demand may be construed as calling for production of documents protected by such privilege or doctrine, a continuing objection to each and every discovery request is hereby imposed. Responding Party has attempted to make specific objections to specific Discovery Requests on the basis of the within named privilege and/or exemptions. However, some of the Discovery Requests are potentially so open-ended that this more general objection is made.

 

“2. Responding Party specifically reserves their right to assert privileges as to any privileged information, document and/or material that is inadvertently provided or produced in response to a discovery request. In the event that such information, documents and/or materials are inadvertently provided or produced, the inadvertent providing of or production by Responding Party of information, document and/or material that contains an attorney client communication, attorney work product or information that is otherwise privileged or exempt from production is not intended to be a waiver of the privilege or exemption and such information may not be used and such document shall be returned to Responding Party immediately upon request. This reservation specifically includes information, documents and/or materials promulgated by Responding Party and protected information, documents and/or materials provided or produced by Responding Party that may have been promulgated by others.

 

“3. Responding Party objects to each and every discovery request to the extent it calls for information, documents and/or materials generated after the initiation of the above-captioned action. Such information, documents and/or materials are not reasonably calculated to lead to the discovery of admissible evidence.

 

“4. Responding Party further objects to each discovery request to the extent that Propounding Party seeks to impose a burden upon Responding Party to search for information, documents and/or materials in the possession, custody and/or control of entities or individuals other than Responding Party and pertaining to the parties hereto for the reason that such a request is overly broad and burdensome, beyond the scope of discovery as provided by the California Code of Civil Procedure and violative of such entities and individuals’ privacy rights under California and Federal law. Responding Party further objects to any effort to require it to search for information, documents and/or materials in the possession, custody or control of unnamed entities or individuals other than Responding Party as unduly burdensome.

 

“5. Responding Party further objects to each and every one of Propounding Party’s discovery Requests as over broad, burdensome and oppressive to the extent that any attempt to impose a duty on Responding Party to provide and/or produce information, documents and/or materials already in the possession, custody and/or control of Propounding Party, including Propounding Party’s’ legal representatives, agents and assigns.”

 

The specific objections are:

 

“Responding Parties object to the instant discovery request on the grounds that the request is vague, ambiguous, assumes facts not in evidence, seeks information known and/or equally available to the propounding party, violates C.C.P. Section 2033.060(d) and (g) in that it is not full and complete in and of itself and relies on the genuineness of a document not attached, calls for legal reasoning and conclusions, speculation and/or expert testimony, and violates attorney client privileges and/or attorney work product privileges. Because Propounding Party’s request is defectively worded and unclearly presumes certain actions or events, Responding Party is unable to respond to this request at this time and reserves the right to provide a supplemental response subsequent to Propounding Party clarifying and/or rewording the request to overcome the objections and defects.”

 

“[I]if a timely motion to compel has been filed, the burden is on responding party to justify any objection.” (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.) In opposition to the motion, the Rubins make no effort to justify any of their objections. The Rubins instead argue that Construction Plumbing’s extensive discovery is designed to drive up the cost of this litigation. The Rubins’ argument is not addressed to the specific issues of the discovery that is the subject of this motion—indeed, the Rubins have previously promised to provide substantive responses. Further responses will be required.

 

The same analysis and result applies to all of the discovery at issues in this motion.

 

 

 
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