8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10
11 PROJECT SENTINEL, Case No. 19-CV-00708 DAD-EPG 12 Plaintiff, ORDER GRANTING MOTION TO 13 v. COMPEL AND AWARDING EXPENSES
TO PLAINTIFF UNDER FED. R. CIV. P. 14 MEYER KOMAR; JEANETTE KOMAR; 37(a)(5) 15 and SARAH KOMAR, (ECF No. 46) 16 Defendants.
17 18 Before the Court is Plaintiff Project Sentinel’s motion to compel. (ECF No. 46.) In the 19 motion, Plaintiff seeks to compel further responses from defendant Meyer Komar (“Mr. 20 Komar” or “Defendant”) to Plaintiff’s first set of interrogatories and first request for 21 production of documents. Plaintiff also requests that Mr. Komar be ordered to pay Plaintiff’s 22 attorneys’ fees and costs incurred in bringing the motion to compel. Finally, Plaintiff requests 23 that the Court enter an order precluding Mr. Komar from using undisclosed evidence and 24 warning Mr. Komar that his ongoing refusal to comply with discovery rules and the Court’s 25 orders may lead to entry of default against him. (Id. at 2.) Neither Mr. Komar, nor the other 26 defendants, have filed an opposition to the motion. 27 The Court will grant the unopposed motion and will award Plaintiff reasonable expenses incurred in bringing the motion. 1 I. BACKGROUND 2 Plaintiff initiated this action alleging housing discrimination on account of race on May 3 20, 2019, with the filing of a complaint. (ECF No. 1.) The complaint brings claims against 4 Meyer Komar, Jeanette Komar, and Sarah Komar, for violation of the Fair Housing Act, 42 5 U.S.C. § 3601 et seq.; violation of the California Fair Employment and Housing Act, Cal. 6 Gov’t Code § 12927 et seq.; negligence; unfair business practices in violation of Cal. Bus. & 7 Prof. Code § 17200 et seq., and violation of 42 U.S.C. § 1981. (Id.) The only defendant to file 8 an answer as of the date of this order is Meyer Komar (“Mr. Komar” or “Defendant”). Default 9 was entered against the remaining defendants, Jeanette Komar and Sarah Komar, on September 10 24, 2019. (ECF No. 16.) 11 As detailed below, Mr. Komar has repeatedly failed to comply with the Court’s orders 12 and his obligations under the Federal Rules of Civil Procedure. 13 A. Initial Scheduling Conference 14 On May 21, 2019, the Court issued its Order Setting Mandatory Scheduling 15 Conference. (ECF No. 3-1.) This order informed the parties that attendance at the scheduling 16 conference was mandatory, and set the scheduling conference for September 10, 2019, at 10:00 17 a.m. (Id.) The order also required all parties to participate in the preparation of, and to execute, 18 a joint scheduling report. (Id.) 19 Prior to the scheduling conference, Plaintiff’s counsel and Mr. Komar conferred and 20 Mr. Komar participated in the drafting of the joint scheduling report. (See ECF No. 10.) 21 However, Mr. Komar failed to execute that report. (See id.) Mr. Komar also failed to appear at 22 the September 10, 2019, initial scheduling conference. (See ECF No. 11.) 23 On September 11, 2019, the Court entered an order to show cause (“OSC”) requiring 24 Mr. Komar to show cause for his failure to appear at the mandatory scheduling conference. 25 (ECF No. 12.) Mr. Komar responded to the OSC on September 16, 2019. (ECF No. 13.) In his 26 response, Mr. Komar explained that he had previously informed Plaintiff’s counsel that he was 27 innocent of the claims Plaintiff was bringing against him, and that any attempt by Plaintiff to 1 valid evidence supporting Plaintiff’s claims and he “did not wish to be subjected to further 2 harassment.” (Id.) Mr. Komar explained that, for those reasons, he did not appear at the 3 September 10, 2019, scheduling conference. (Id.) 4 In an order entered on October 9, 2019, the Court found that Mr. Komar had failed to 5 provide an adequate justification for his failure to appear at the mandatory initial scheduling 6 conference. (ECF No. 23.) The Court nonetheless declined to impose sanctions at that time and 7 discharged the OSC. (Id.) The Court cautioned Mr. Komar “that any further violations of the 8 Court’s orders, failures to appear at court hearings, or failures to otherwise comply with Court 9 procedures and rules, will be met with less tolerance and could result in the imposition of 10 sanctions.” (Id.) The Court also stated as follows:
11 [T]his is a troubling beginning to this case. Mr. Komar has already 12 demonstrated an unwillingness to follow Court orders and abide by his legal obligations in this case. His reasons for failing to do so are without merit. 13 The Court reminds Mr. Komar of his duty to comply with all Court orders, his 14 duty to appear at all conferences and hearings, and his duty to comply with all applicable federal and local rules. The Court cautions Mr. Komar that while 15 the Court is being flexible about his failure to appear at the scheduling conference in violation of the Court’s order, and is declining to impose 16 sanctions on Mr. Komar for this violation, any future violations of Court orders, failures to appear at court hearings or conferences, or failures to 17 comply with the Court’s procedures and the federal and local rules, will be met with less tolerance and could result in the imposition of sanctions, including 18 the entry of judgment against Mr. Komar and in favor of Plaintiff. 19 (Id.) 20 On October 30, 2019, the Court issued the Scheduling Order (ECF No. 24) based on the 21 scheduling report that had been submitted by Plaintiff. 22 B. First Informal Discovery Dispute Conference and First Motion to Compel 23 On October 2, 2019, Plaintiff filed a motion to compel, seeking to compel Mr. Komar 24 to make his initial disclosures, which were due no later than September 3, 2019.1 (See ECF 25
26 1 The parties held their Federal Rule of Civil Procedure 26(f) conference to plan for discovery on August 19, 2019, when Plaintiff called Mr. Komar to discuss the joint scheduling report. (See ECF No. 20.) The parties 27 discussed setting September 3, 2019, a date fifteen days after the conference, as the deadline for initial disclosures, and Plaintiff included that date in the draft joint scheduling reports provided to Mr. Komar. Mr. 1 Nos. 10, 18, 20, 24.) Following an informal discovery dispute conference, held on November 2 15, 2019, the Court ordered Mr. Komar to serve his initial disclosures by December 6, 2019. 3 (ECF No. 28.) The Court also denied Plaintiff’s previously filed motion to compel but gave 4 leave to Plaintiff to file a renewed motion to compel regarding initial disclosures if Mr. Komar 5 failed to comply with the Court’s order. (Id.) 6 C. Second Informal Discovery Dispute Conference 7 At the request of Plaintiff, the Court set a second informal discovery dispute conference 8 for January 28, 2020, regarding the adequacy of Mr. Komar’s responses to Plaintiff’s first set 9 of interrogatories and first requests for production, which were served on Mr. Komar by mail 10 on December 12, 2019. (ECF Nos. 34, 48 at 4.) 11 At the January 28, 2020, informal discovery dispute conference, the Court determined 12 that Mr. Komar’s failure to respond to Plaintiff’s discovery requests was not justified and 13 directed him to serve his responses. The Court also granted Plaintiff leave to file a motion to 14 compel regarding the issues raised by Plaintiff in its letter brief and as discussed during the 15 conference. (ECF No. 34.) 16 D. Mid-Discovery Status Conference 17 Following the second informal discovery dispute conference, Mr. Komar continued to 18 indicate an unwillingness to participate in discovery or otherwise proceed with the case. Mr. 19 Komar repeatedly expressed his belief that the case should dismissed, and indicated he was 20 unwilling to proceed with discovery or the case in general because a motion to dismiss was 21 pending. 2 Mr. Komar also represented, through Jeanette Komar, his wife and a co-defendant, 22 that he was suffering from serious health issues. (See ECF Nos. 39, 41.) 23
24 that Mr. Komar agreed to the September 3, 2019, initial disclosure deadline, and the Court incorporated that initial disclosure deadline into the scheduling order. (ECF No. 24.) 25 Moreover, even if the parties did not reach an agreement regarding the initial disclosure deadline, initial disclosures were due by September 3, 2019, pursuant to Federal Rule of Civil Procedure 26(a)(1)(C), which 26 provides: “A party must make the initial disclosures at or within 14 days after the parties’ Rule 26(f) conference unless a different time is set by stipulation or court order, or unless a party objects during the conference that 27 initial disclosures are not appropriate in this action and states the objection in the proposed discovery plan.” 2 On December 30, 2019, Mr. Komar filed a motion to dismiss the case (ECF No. 29). The motion was 1 On February 27, 2020, the Court received the first letter from Jeanette Komar 2 indicating that Mr. Komar was suffering from a serious health condition and would not be able 3 to attend the telephonic mid-discovery status conference set for March 24, 2020. (ECF No. 39.) 4 Based on the representation of Jeanette Komar regarding Mr. Komar’s health condition, the 5 Court continued the mid-discovery status conference to April 29, 2020, at 10:00 a.m. (ECF No. 6 40.) The Court reminded the parties that “discovery is ongoing and that the pendency of the 7 motion to dismiss does not relieve either party of their obligations to participate in discovery 8 and respond to discovery requests served on them by the opposing party.” (Id.) 9 On April 8, 2020, the Court received a second letter from Jeanette Komar, indicating 10 that Mr. Komar was suffering from a different serious medical condition than had been 11 indicated in the first letter. (ECF No. 41; see ECF No. 39.) The Court declined to again 12 continue the telephonic mid-discovery status conference and reminded Mr. Komar that the 13 previously set dates in the case remain in place. (ECF No. 42.) The Court also reminded the 14 parties of their obligation to file a joint status report a week prior to the April 29, 2020, 15 telephonic mid-discovery status conference. (See ECF Nos. 40, 42.) 16 On April 22, 2020, Plaintiff filed a joint status report. (ECF No. 43.) In this report, 17 Plaintiff explained that Plaintiff’s counsel had diligently attempted by both phone and email to 18 obtain Mr. Komar’s participation in the drafting of the report, but that Mr. Komar had not 19 responded. (Id.) Plaintiff also set forth the status of various discovery requests it had 20 propounded on Mr. Komar and the status of Mr. Komar’s responses, many of which Plaintiff 21 deemed to be inadequate. (Id.) 22 The Court held the telephonic mid-discovery status conference on April 29, 2020, at 23 10:00 a.m., as scheduled. Plaintiff appeared through counsel. Defendant failed to appear. (ECF 24 No. 44, 45.) The Court granted Plaintiff leave to file a motion to compel and to seek sanctions, 25 and also granted an extension of the discovery deadlines. (ECF No. 45.) 26 E. Second Motion to Compel 27 On May 15, 2020, Plaintiff filed a second motion to compel, which is now before the 1 further responses to Plaintiff’s first set of interrogatories and first request for production of 2 documents; and requiring Mr. Komar to pay Plaintiff’s attorneys’ fees and costs incurred in 3 connection with the motion to compel. (ECF No. 47.) Plaintiff also seeks to have the Court 4 warn Mr. Komar that failure to abide by the Court’s order will result in the exclusion of 5 evidence or entry of default against him. 6 The Court set a deadline of May 29, 2020, for any response to the motion to compel. 7 (ECF No. 49.) Mr. Komar has not filed a response and the time to do so has passed. 8 II. LEGAL STANDARDS 9 Under Federal Rule of Civil Procedure 26(b)(1), a party may obtain 10 discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the 11 importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the 12 importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information 13 within this scope of discovery need not be admissible in evidence to be 14 discoverable. 15 Fed. R. Civ. P. 26(b)(1). For purposes of discovery, relevance “has been construed broadly to 16 encompass any matter that bears on, or that reasonably could lead to other matter that could 17 bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 18 340, 351 (1978) (citing Hickman v. Taylor, 329 U.S. 495, 501 (1947)). 19 A party seeking discovery may move for an order compelling production by a party 20 who has failed to answer an interrogatory or produce requested documents. Fed. R. Civ. P. 21 37(a)(3). ). “[A]n evasive or incomplete disclosure, answer, or response must be treated as a 22 failure to disclose, answer, or respond.” Fed. R. Civ. P. 37(a)(4). Further, “a failure to object to 23 discovery requests within the time required constitutes a waiver of any objection.” Richmark 24 Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992); see Burlington N. 25 & Santa Fe Ry. Co. v. U.S. Dist. Court for Dist. of Mont., 408 F.3d 1142, 1149 (9th Cir. 2005). 26 The party seeking to compel discovery responses must make a threshold showing that 27 the discovery sought is relevant. See, e.g., Nugget Hydroelectric, L.P. v. Pac. Gas & Elec. Co., 981 F.2d 429, 438-39 (9th Cir. 1992). Once relevancy is shown, or if relevancy is plain from 1 the face of the request, the party who is resisting discovery has the burden to show that 2 discovery should not be allowed. Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 3 1975); see Superior Commc'ns v. Earhugger, Inc., 257 F.R.D. 215, 217 (C.D. Cal. 2009) (“The 4 party who resists discovery has the burden to show discovery should not be allowed, and has 5 the burden of clarifying, explaining, and supporting its objections.”). 6 III. DISCUSSION 7 A. Discovery regarding Defendant’s tenants, former tenants, and rental applicants 8 Plaintiff moves to compel Mr. Komar to serve a response to Interrogatory 11, and to 9 produce documents in response to Document Production Requests 20, 21, 22, and 23, which 10 seek information about Defendant’s African American tenants, former tenants, and rental 11 applicants. (ECF No. 47.) 12 Plaintiff’s Interrogatory 11 requests: “Identify by tenant name, address, and the dates of 13 occupancy, each African American or person of color who has occupied a unit at the subject 14 premises at any time since January 1, 2010.” Mr. Komar’s response to this request is: “Will not 15 answer that question based on tenant privacy.” (ECF No. 47 at 7.) 16 Plaintiff’s Document Request 20 requests: 17 A complete copy of all tenant files, including the file covers, as kept in the ordinary course of business, that are or were maintained regarding each tenant or 18 occupant who is African American and has resided at any residential rental property owned in whole or in part by you at any time since January 1, 2010, 19 including a copy of all leases or rental agreements, applications, notices, rent receipts, security deposit refunds, eviction documents, complaints, notes, and 20 communications. 21 (ECF No. 47 at 7.) Mr. Komar’s response to Document Request 20 is: “Will not supply that 22 information due to past and current tenant privacy concern.” (Id.) 23 Plaintiff’s Document Request 22 requests: “A complete copy of all documents 24 mentioning, referencing, regarding, or pertaining to tenant Michael Baldwin, including but not 25 limited to rental applications, rental agreements, and correspondence.” (Id.) Defendant’s 26 response to this request is: “Same answer as question #20 [Will not supply that information 27 due to past and current tenant privacy concern.]” (Id. at 8.) 1 Plaintiff’s Document Request 23 requests: “A complete copy of all documents 2 mentioning, referencing, regarding, or pertaining to tenant Gayleenya Miller, including but not 3 limited to rental applications, rental agreements, and correspondence.” (Id.) Defendant’s 4 response to this request is: “Same answer as question #20 [Will not supply that information 5 due to past and current tenant privacy concern.]” (Id.) 6 The Court finds that the documents and information Plaintiff seeks through these 7 discovery requests are relevant, are not privileged, and are proportional to the needs of this 8 case. The right to privacy, asserted by Mr. Komar, does not shield the documents and other 9 information from disclosure to Plaintiff. 10 To protect confidential information that may be contained in responses to Interrogatory 11 11 and Documents Requests 20, 21,22, and 23, or any other discovery response, Mr. Komar, as 12 the party from whom the discovery is sought, has the burden of filing a motion for a protective 13 order. See Fed. R. Civ. P. 26(c). To obtain a protective order, Mr. Komar must demonstrate 14 that specific prejudice or harm will result if the information is not protected. See id.; see also 15 Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1210 (9th Cir. 2002) 16 (“Generally, the public can gain access to litigation documents and information produced 17 during discovery unless the party opposing disclosure shows ‘good cause’ why a protective 18 order is necessary.”). Mr. Komar has not, however, moved for a protective order. 19 The Court therefore orders Mr. Komar to serve a complete response to 20 Interrogatory 11. Mr. Komar is further ordered to provide a signed verification under penalty 21 of perjury that his response to Interrogatory 11 is complete. 22 Mr. Komar is also ordered to serve complete responses to Document Requests 20, 21, 23 22, and 23. 24 Although the obligation is on Mr. Komar to seek a protective order in connection with 25 these and other discovery responses, to expediate discovery and protect the privacy rights of 26 third parties, the Court directs Plaintiff to maintain the confidentiality of any medical or 27 financial information contained within the responsive documents, including Social Security 1 numbers, and file a proposed protective order to cover any such information. See Fed. R. Civ. 2 P. 26(c). 3 B. Discovery Regarding Defendant’s Employees and Agents 4 Plaintiff moves to compel a further response to Interrogatory 4, which requests Mr. 5 Komar to: “Identify by name, last known address and telephone number each employee, agent, 6 relative, tenant, or contractor who has assisted in the rental of any units at the subject premises 7 at any time since January 1, 2010. If you do not have a current address for each person 8 identified, please provide that person’s social security number and date of birth so that they 9 may be located.” Defendant’s response to this interrogatory is: “The property has been 10 exclusively managed by Meyer & Jeanette Komar.” 11 Plaintiff also moves to compel a further response to Document Request 11, which 12 requests Mr. Komar to produce: “Any document that refers to the last known address, 13 telephone number or Social Security number of all past employees and agents, including 14 former real estate salespersons, real estate brokers, property supervisors, managers, assistant 15 managers, and leasing agents, retained or employed by any defendant in connection with the 16 rental of housing, at any time since January 1, 2015, including but not limited to W-2 or 1099 17 tax forms and mail forwarding requests.” Defendant’s response to this request is: “Answered in 18 question #10 [Property managed by Meyer & Jeanette Komar – no agents or employees are 19 used].” (ECF No. 47 at 15.) 20 Plaintiff asserts that Mr. Komar’s responses are not complete because someone named 21 “Sarah,” who is believed to be the adult daughter of Mr. Komar and a co-defendant in this 22 case, responded to rental inquiries from Plaintiff’s fair housing testers as described in 23 Plaintiff’s complaint. (ECF No. 47 at 20-21.) Mr. Komar also previously claimed in 24 correspondence with Plaintiff’s counsel that he does not know where Sarah Komar currently 25 resides. (ECF No. 48 at 2.) 26 The Court agrees with Plaintiff that Mr. Komar’s responses to these discovery requests 27 appear inadequate. Accordingly, Defendant is directed to supplement his responses to 1 who returned the calls to the housing testers, as well as the requested information for anyone 2 else—employee, relative, tenant, or contractor—who assisted in the rental of units since 3 January 1, 2010. Defendant is further ordered to provide a signed verification under penalty of 4 perjury that his response to Interrogatory 4 is accurate and complete. 5 Defendant is also directed to provide the requested documents in response to Document 6 Request 11 regarding “Sarah,” and any other employees, agents, or others who have assisted in 7 the rental of units. For the reasons set forth above, if any sensitive information, Social Security 8 numbers, financial data, or medical information, is included in the production, Plaintiff is 9 directed to maintain it confidentially and file a proposed protective order to cover such 10 information. 11 C. Discovery Regarding Relevant Records within Defendant’s Control 12 Plaintiff moves to compel production of records in response to Document Requests 9, 13 27, and 28. Document Request 9 requests: “A complete copy of phone records for the phone 14 number 209-247-5586 [Defendants’ rental agent] reflecting calls made or received between 15 March 2017 and August 2017.” Mr. Komar’s response to this request is: “These records are not 16 kept.” (ECF No. 47 at 16.) 17 Document Request 27 requests: “All documents that you have received from or 18 provided to the Department of Fair Employment and Housing in connection with the complaint 19 filed by Project Sentinel against you in DFEH case No. 201803-01441605.” (ECF No. 47 at 20 16.) Mr. Komar’s response to this request is: “Project Sentinel has this information as it was 21 copied to them by HUD.” 22 Document Request 28 requests: “A copy of any and all insurance agreements covering 23 the subject premises during 2017, and correspondence from the insurance company indicating 24 any and all reasons that they are denying coverage for plaintiff’s claims.” Mr. Komar did not 25 respond to this request. (Id.) 26 Mr. Komar’s responses to these discovery requests are inadequate. Under Federal Rule 27 of Civil Procedure 34, a party responding to a request for production of documents must either 1 “possession, custody, or control”; or (3) state objections to the request. Fed. R. Civ. P. 2 34(a)(1), (b)(2)(B). Indicating a responsive document is not currently in the responding party’s 3 possession is an inadequate response. The responding party “cannot furnish only that 4 information within his immediate knowledge or possession; he is under an affirmative duty to 5 seek that information reasonably available to him from his employees, agents, or others subject 6 to his control.” Rogers v. Giurbino, 288 F.R.D. 469, 485 (S.D. Cal. 2012) (internal quotation 7 marks and citations omitted); see Lopez v. Florez, 2013 WL 1151948 at *2 (E.D. Cal. March 8 19, 2013) (“A responding party has an affirmative duty to reasonably seek information 9 requested under Rule 34(a) from its agents or others under its control.”) (citing Hill v. Eddie 10 Bauer, 242 F.R.D. 556, 560 (C.D. Cal. 2007)). “A party is deemed to have control over 11 documents if he or she has a legal right to obtain them.” Giurbino, 288 F.R.D. at 485 (citations 12 omitted). 13 Thus, although Mr. Komar may not himself have responsive documents, he is under an 14 affirmative duty to seek and obtain documents from employees, agents, or others subject to his 15 control. If Mr. Komar or his agent does not presently have, for example, records for the cell 16 phone, he has the obligation to seek to obtain those records from the cell phone carrier. 17 Defendant must also disclose the information from DFEH case no. 201803-01441605. 18 That Plaintiff may have been copied by a third party with some of this information does not 19 justify Mr. Komar’s failure to disclose all information in his possession, custody, or control. 20 Finally, Defendant gave no reason for failing to respond to the request for insurance 21 information regarding the subject premises. 22 Mr. Komar is ordered to produce all responsive documents to Document Requests 9, 23 27, and 28, that are within his possession, custody or control. This includes documents that are 24 in the possession of someone else, such as employees, accountants, or others, from which Mr. 25 Komar has the legal right to obtain the documents. 26 D. Discovery Regarding Defendant’s Net Worth 27 Plaintiff moves to compel a response to Interrogatory 9, and Documents Requests 15, 1 financial condition. Specifically, Interrogatory 9 requests: “State your present net worth, listing 2 all assets and liabilities.” (ECF No. 47 at 21.) Mr. Komar’s response to this request is: “Our net 3 worth is not relevant to this case.” (Id.) 4 Document Request 15 seeks: “A copy of any net worth statement prepared by or on 5 behalf of Meyer Komar at any time since January 1, 2010, including but not limited to any loan 6 applications, credit applications, or refinancing applications.” (ECF No. 47 at 21.) Mr. 7 Komar’s response is: “This request is unrelated to this case as this case applies only to 2200 8 San Lucas Ct in Modesto, CA.” (Id.) 9 Document Request 16 seeks: “A copy of any appraisal, conducted at any time since 10 January 1, 2010, of any business or personal or real property owned by Meyer Komar.” (ECF 11 No. 47 at 22.) Mr. Komar’s response is: “Same answer as in question #15 [This requested 12 information is unrelated to this case as this case applies only to 2200 San Lucas Ct in Modesto, 13 Ca] – San Lucas Court bldg. value has not been determined.” (Id.) 14 Document Request 17 seeks: “A copy of all most recent year-end statements reflecting 15 the account number and balance of any accounts held by Meyer Komar, including savings, 16 checking, annuities, or mutual, stock or bond funds.” (Id.) Mr. Komar’s response is: “Same 17 answer as in question #15 [This requested information is unrelated to this case as this case 18 applies only to 2200 San Lucas Ct in Modesto, Ca].” (Id.) 19 Document Request 18 seeks: “A copy of all most recent year-end statements reflecting 20 the account number and balance of any loans or debts of Meyer Komar, including but not 21 limited to mortgages, vehicle or boat loans, or tax liens.” (Id.) Mr. Komar’s response is: “There 22 are none.” 23 Finally, Document Request 19 seeks: “A copy of schedule C to your most recent IRS 24 income tax return, as filed by Meyer Komar.” (Id.) Mr. Komar’s response is: “Unrelated to 25 case which is limited to San Lucas Ct.” (Id.) 26 Discovery of documents and information concerning Mr. Komar’s net worth is 27 relevant, is not privileged, and is proportional to the needs of this case. The Fair Housing Act 1 relevant to the amount of punitive damages. See City of Newport v. Facts Concerts, Inc., 453 2 U.S. 247, 270 (1981); United States v. Big D Enterprises, Inc., 184 F.3d 924, 932 (8th Cir. 3 1999); EEOC v. California Psychiatric Transitions, 258 F.R.D. 391, 394 (E.D. Cal. 2009). The 4 Court therefore overrules Mr. Komar’s objections to these discovery requests. 5 Mr. Komar is ordered to respond to Interrogatory 9 and Document Requests 15, 16, 17, 6 18, and 19. As set forth above, Plaintiff is directed to maintain Mr. Komar’s financial and any 7 other private information included in the production confidentially and to file a proposed 8 protective order to cover such information. 9 E. Discovery Regarding Defendant’s Rental Operations 10 Plaintiff moves to compel further responses to Interrogatory 7 and Interrogatory 16, 11 which relate to Defendants’ rental operations. 12 Interrogatory 7 requests Mr. Komar: “Identify by address and number of units each 13 residential rental property owned in part or in full by any defendant at any time since January 14 1, 2010.” (ECF No. 47 at 25.) Mr. Komar’s response is: “Answered in question #6 [Property 15 has been owned by Meyer & Jeanette Komar.]” (Id.) 16 Interrogatory 16 requests Mr. Komar: “Describe the steps or procedures that you have 17 followed to fill a vacancy at the subject premises between 2015 and the present, including 18 when and how you advertise vacancies, who responds to phone inquiries regarding vacancies, 19 who shows the unit to prospective tenants, and who screens or selects tenants to fill a 20 vacancy.” (Id.) Mr. Komar’s response is: “There were no vacancies during that period.” 21 The information sought by Plaintiff through Interrogatories 7 and 16 is relevant, is not 22 privileged, and is proportional to the needs of this case. See Na’im v. Sophie’s Arms Fine 23 Residences, LLC, 2014 WL 3537807 at *4 (S.D. Cal. 2014) (In a housing discrimination case, 24 “information regarding other residential rental properties owned by Defendants is relevant and 25 reasonably calculated to lead to the discovery of admissible evidence.”). 26 Further, Mr. Komar’s responses appear to be inaccurate or incomplete based on 27 evidence Plaintiff represents it gathered investigating this case and other responses to 1 2017, and that Defendants own more than one rental property. Accordingly, Mr. Komar is 2 ordered to provide supplemental responses to Interrogatory 7 and Interrogatory 16. Mr. Komar 3 is further ordered to provide a signed verification under penalty of perjury that he has provided 4 complete and accurate responses to these interrogatories. 5 F. Discovery Regarding Defendant’s Contentions 6 Plaintiff moves to compel Mr. Komar to produce “all documents that constitute, 7 describe, reflect, record, mention, comment upon or otherwise support or rebut your denial of 8 the allegations made in the complaint in this matter,” as requested in Document Request 29.3 9 (ECF No. 47 at 24.) Mr. Komar’s response is: “There is absolutely no reason for this case to 10 have been filed or begin as the alleged acts of discrimination never occurred—the case should 11 be dismissed as there was no crime committed.” (Id.) 12 Mr. Komar’s response is evasive and non-responsive as it states only his belief that the 13 case has no merit. Further, the information Plaintiff seeks through Document Request 29 is 14 relevant, is non-privileged documents, and is proportional to the needs of the case. Documents 15 that support a party’s contentions are not only the proper topic of a discovery request, such 16 documents are also required to be automatically disclosed under Federal Rule of Civil 17 Procedure 26(a)(1)(A)(ii). 18 Mr. Komar is ordered to either produce documents responsive to Document Request 29 19 or admit that no such documents exist. Even if discovery and investigation is ongoing, Mr. 20 Komar is obligated to produce all documents currently in his possession, custody, or control, 21 and supplement later as required by Federal Rule of Civil Procedure 26(e). 22 G. Award of Expenses and Imposition of Sanctions Under Rule 37 23 Plaintiff also seeks sanctions under Federal Rule of Civil Procedure 37, which provides 24 for sanctions against parties who fail to comply with disclosure requirements, oppose 25 meritorious motions to compel, or disobey discovery orders. 26
27 3 As Plaintiff explained in its motion to compel, this request was the final request in Plaintiff’s first set of requests but was not numbered. Plaintiff has designated the request as Document Request 29 for purposes of this 1 1. Reasonable Expenses, Including Attorneys’ Fees under Rule 37(a)(5)(A) 2 Plaintiff seeks an award of reasonable expenses, including attorneys’ fees, incurred in 3 bringing the motion to compel. 4 Under Rule 37(a)(5)(A): 5 If the motion [to compel] is granted—or if the disclosure or requested discovery is provided after the motion was filed—the court must, after giving an 6 opportunity to be heard, require the party or deponent whose conduct necessitated the motion . . . to pay the movant’s reasonable expenses incurred in making the 7 motion, including attorney’s fees. But the court must not order this payment if: (i) the movant filed the motion before attempting in good faith to obtain the 8 disclosure or discovery without court action; 9 (ii) the opposing party's nondisclosure, response, or objection was substantially justified; or 10 (iii)other circumstances make an award of expenses unjust. 11 Fed. R. Civ. P. 37(a)(5)(A). 12 Here, the Court is granting Plaintiff’s motion to compel. Mr. Komar was provided an 13 opportunity to be heard by filing an opposition to Plaintiff’s motion but failed to take 14 advantage of that opportunity. 15 The record in this case demonstrates that Plaintiff attempted in good faith to obtain the 16 discovery from Mr. Komar without court action, and there is no information before the Court 17 indicating that Mr. Komar’s nondisclosures, responses, or objections were substantially 18 justified or that there are other circumstances making an award of expenses unjust. While the 19 Court recognizes that Mr. Komar may be dealing with health issues, the record in this case 20 demonstrates that he has engaged in a pattern of conduct that includes repeated refusals to 21 comply with the Court’s orders and his obligations under the Federal Rules of Civil Procedure. 22 The court finds that an award to Plaintiff of reasonable expenses, including attorneys’ 23 fees, incurred in bringing the motion to compel is warranted here. Within fourteen days, 24 Plaintiff shall file a notice providing a summary of its attorneys’ fees and costs incurred in 25 bringing its motion to compel, including time spent seeking compliance from Mr. Komar, 26 participating in the informal discovery conference, and preparing the motion to compel and 27 /// 1 supporting documents. Within thirty days of service4 of Plaintiff’s notice summarizing its 2 attorneys’ fees and costs, Mr. Komar must pay Plaintiff the attorneys’ fees and costs as set 3 forth in the notice. Alternatively, within fourteen days of service of such notice, Mr. Komar 4 may file an objection to the amount claimed by Plaintiff. Mr. Komar shall also file a statement 5 certifying that he has complied with his obligation to pay Plaintiff’s attorneys’ fees and costs 6 within three days of making such payment. If Mr. Komar fails to fully comply with these 7 requirements, the Court will issue a recommendation that default be entered against him. 8 2. Sanctions under Federal Rule of Civil Procedure 37(c)(1) 9 Plaintiff also requests that the Court issue an order excluding any evidence (including 10 witnesses, information, and documents) from use in motions, hearings, and trial, that should 11 have been but was not included in Rule 26(a) disclosures, or that was responsive to discovery 12 requests but was not disclosed. 13 Under Rule 37(c)(1): 14 If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply 15 evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the 16 court, on motion and after giving an opportunity to be heard: (A) may order payment of the reasonable expenses, including attorney’s fees, 17 caused by the failure; (B) may inform the jury of the party’s failure; and 18 (C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).5 19
20 4 Under Federal Rule of Civil Procedure 5(b)(2)(C), if service on Defendant is made by mail to Defendant’s last known address, “service is complete upon mailing.” 21 5 Rule 37(b)(2)(A)(i)-(iv) provides: If a party or a party's officer, director, or managing agent--or a witness designated under Rule 30(b)(6) or 22 31(a)(4)--fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders. They may include the following: 23 (i) directing that the matters embraced in the order or other designated facts be taken as established 24 for purposes of the action, as the prevailing party claims; (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or 25 from introducing designated matters in evidence; 26 (iii) striking pleadings in whole or in part; (iv) staying further proceedings until the order is obeyed; 27 . . . . 1 Fed. R. Civ. P. 37(c)(1) (footnoted added). 2 Thus, the failure to disclose relevant witnesses or information may lead to a range of 3 sanctions, including the exclusion of withheld evidence and claims and rendering default 4 judgment against the non-disclosing party. See, e.g., Benjamin v. B & H Educ., Inc., 877 F.3d 5 1139, 1150 (9th Cir. 2017) (a party who fails to disclose relevant information or witnesses is 6 not allowed to use that information or witness to supply evidence on a motion, at a hearing, or 7 at a trial, “unless the failure was substantially justified or is harmless”). Any evidence that 8 should have been included in Rule 26(a) disclosures or was responsive to discovery requests— 9 including witnesses, information, and documents—that Mr. Komar fails to timely disclose may 10 accordingly be excluded from use in any motions, hearings, and trial. 11 The Court declines to make any rulings at this time regarding the potential exclusion of 12 undisclosed evidence. Questions of admissibility at trial and in dispositive motions will be 13 before the District Judge. However, in light of the lengthy history of Mr. Komar’s non- 14 compliance with the Court’s orders and deadlines, repeated failures to abide by the Federal 15 Rules of Civil Procedure, and limited cooperation during discovery, the Court warns 16 Mr. Komar that anything less than full compliance with this order may result in the imposition 17 of additional sanctions, including having his answer stricken, and entry of default and 18 judgment against him. 19 IV. CONCLUSION 20 IT IS ORDERED that Plaintiff’s Motion to Compel (ECF No. 46) is GRANTED as 21 follows: 22 1. Defendant Meyer Komar shall serve Plaintiff with further responses to Plaintiff’s 23 First Set of Interrogatories, Interrogatories 4, 7, 9, 11, and 16, accompanied by a 24 verification signed under penalty of perjury, within thirty (30) days of the date of this 25 order. 26 2. Defendant Meyer Komar shall conduct a diligent search and produce all documents in 27 his possession, custody or control in response to Plaintiff’s First Request for 4:40 EUOO MARE ED SMMC PIO VI er OY 40 VE LO
1 Production of Documents, Request numbers 9, 11, 15-19, 20-23, 27, and 28, with 2 such production within thirty (30) days of the date of this order. 3 3. Defendant Meyer Komar is cautioned that anything less than full compliance 4 with this order may result in the imposition of additional sanctions, including the 5 exclusion of evidence, having his answer stricken, and entry of default and 6 judgment against him. 7 4. The Court awards Plaintiff reasonable attorneys’ fees and costs incurred in bringing 8 the motion to compel, with such costs and fees to be paid by Defendant Meyer 9 Komar. 10 a. Within fourteen (14) days of the date of this order, Plaintiff shall file a notice 11 summarizing its attorneys’ fees and costs. 12 b. Within thirty (30) days of service of Plaintiff's notice summarizing its 13 attorneys’ fees and costs, Mr. Komar shall pay Plaintiff the attorneys’ fees and 14 costs as set forth in the notice. Alternatively, within fourteen (14) days of 15 service of such notice, Defendant may file an objection to the amount claimed 16 by Plaintiff. 17 c. Defendant shall also file a statement certifying that he has complied with his 18 obligation to pay Plaintiffs attorneys’ fees and costs as ordered by the Court, 19 with such statement to be filed within three (3) days of making such payment. 20 d. IfDefendant fails to fully comply with these requirements, the Court will 21 issue a recommendation that default judgment be entered against him. 22 73 T IS SO ORDERED. 241 Dated: _ July 6, 2020 [Je hey 5 UNITED STATES MAGISTRATE JUDGE 26 27 28