AARON KWESKIN, AN INDIVIDUAL VS. RONNIE CHARLES KING

Tentative Rulings

Case Number: EC066951    Hearing Date: February 14, 2020    Dept: E

MOTION TO COMPEL FURTHER RESPONSES

TO REQUESTS FOR PRODUCTION OF DOCUMENTS

(CCP § 2031.310)

Date: 2/14/20

Case: Aaron Kweskin, et al. v. Ronnie Charles King, et al. (EC 066951)

TENTATIVE RULING:

Plaintiff Aaron Kweskin’s Motion to Compel Further Response to Requests for Production of Documents, Set Two, Nos. 1 through 6 is GRANTED.

Kweskin has good cause to request the recording between defendant Ronnie Charles King and plumber Carlos, as it may contain evidence of a purported attempt by Kweskin to shift blame for mold on the premises to the Kings by claiming that the Kings hit the water heater with a car. Indeed, none of the parties dispute the relevance of the recording or its contents.

Defendant’s objection to producing the recording due to its potential illegality is not well taken. Penal Code § 631 does not appear to apply to the circumstances, as the recording did not involve any wiretap (or similar activity) of the conversation with Carlos. Penal Code § 632 may very well apply if King recorded his conversation with Carlos without consent. But even if King violated Penal Code § 632, thereby potentially rendering the recording inadmissible under subsection 632(d), the recording is still discoverable, as it is reasonably calculated to lead to the discovery of admissible evidence. (See CCP § 2017.010.) Certainly, the conversation that was subject to recording, including testimony about it and evidence related thereto, may be admissible at trial, even if the recording itself is not. (See Frio v. Superior Court (1988) 203 Cal.App.3d 1480, 1493.) Indeed, under certain circumstances, the recording might also potentially be used at trial, including for impeachment. (See id. at 1497.) Further, the Court does not find that counsel for defendant would be liable for complying with discovery obligations in this case, as there is no allegation or suggestion counsel is responsible for having engaged in potentially unlawful activity concerning the recorded conversation of Carlos without consent.

Accordingly, defendant/cross-complainant Ronnie Charles King is ordered to produce further verified code-compliant responses to Request for Production, Set Two, Nos. 1 through 6 within 10 days hereof. Defendant King is further ordered to affirm whether privileged documents were withheld and, if so, provide a privilege log. (CCP § 2031.240(c)(1); Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 129-30.)

Kweskin’s request for sanctions is DENIED. Given the valid concern regarding the illegality of the recording at issue, the Court finds King and his counsel opposed discovery with substantial justification.

Case Number: EC066951    Hearing Date: December 11, 2019    Dept: E

TENTATIVE RULING

DEMURRER & MOTION TO STRIKE

[CCP §430.10 et. seq.]

Date: 12/11/19

Case:    Aaron Kweskin, et al. v. Ronnie Charles King, et al. (EC 066951)

TENTATIVE RULING:

Defendants Aaron Kweskin’s and Susan Kweskin’s Demurrer to the Third Amended Complaint (“TAC”) is OVERRULED.

The Court previously overruled demurrers on several of the same grounds and to the same causes of action in connection with the First Amended Complaint (“FAC”). There is no indication in the moving papers how the situation has changed such that the Court should now reconsider those rulings. As to the third cause of action for breach of warranty of habitability, however, it does not appear that defendants previously challenged the cause of action for breach of warranty of habitability, which was the ninth cause of action in the FAC. Nonetheless, CCP § 430.41(b) prevents consideration of the defendants’ demurrer to that previously unchallenged cause of action, as it provides:

A party demurring to a pleading that has been amended after a demurrer to an earlier version of the pleading was sustained shall not demur to any portion of the amended complaint, cross-complaint, or answer on grounds that could have been raised by demurrer to the earlier version of the complaint, cross-complaint, or answer.

In any case, even if the Court were to consider the demurrer to the breach of the warranty of habitability claim, the Court finds that the TAC sufficiently alleges such a claim on the part of all plaintiffs, who are alleged to have occupied the subject premises and been tenants of defendants. (See TAC ¶¶ 10, 13.)

Defendants’ Motion to Strike Third Amended Complaint is DENIED. As with the overruling of the demurrer on grounds previously raised, the Court also denied defendants’ motion to strike punitive damages in connection with the FAC. As before, the facts supporting a prayer for punitive damages are again sufficiently alleged in the TAC. The Court finds that valid fraud claims are stated in the fifth cause of action, which alone is sufficient. The facts alleged support a finding of conduct constituting malice, namely, the defendant landlords’ failing to remediate or warn of conditions of which they had actual knowledge, and which posed a significant health and safety risk to the occupants of the premises. [See TAC ¶¶ 14-16, 23-33, 36-39]. That is sufficient to support a claim for punitive damages. (See Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1068 [landlord’s failure to remediate problems caused by excessive moisture and mold infestation may support a claim for punitive damages].)

Ten days to answer.