Gilinski v. Kenig

The court does have a problem, though. The court cannot start the trial on September 11, but it may be able to start the trial on September 14. The court will, however, need a good and firm estimate on the length. The court will be dark starting September 21, so if the case is not in the jury's hands by week's end (likely meaning Thursday) then the court would need to declare a mistrial. If the parties are confident that they can meet that deadline, the court is prepared to go forward. If not, the court will discuss the matter further with the parties. The court might also be able to see if there is another department in Santa Monica that can hear the case on September 14, and the court will discuss that with the parties as well. The court will defer ruling on the in limine motions until after the above discussion.

Plaintiff asserts that there is another case--originally filed back in 2016--that is intertwined with this one. The cases were earlier related, but after plaintiff filed a 170.6 against the other judge, Department 1 unrelated the cases. The other case has gone to trial and is now on appeal. According to plaintiff, many of the issues raised here are at issue there. Specifically, plaintiffs here claim conversion based on defendant's cashing of old checks for rent that plaintiffs assert was no longer due or truly owing.

The jury apparently went the other way in the other case. The court agrees that it makes sense to allow the appeal to run its course. That decision might moot this case, or it might at least moot out some issues. Any rulings there would likely be res judicata or collateral estoppel here once final. Therefore, the court will VACATE THE FSC AND TRIAL DATES. The court will set a status conference for a time after the appeal ought to be over. However, this is not a stay. All other deadlines remain in place, and discovery is not stayed absent stipulation of the parties approved by the court or motion.

Case Number: 24SMCV05129 Hearing Date: September 4, 2026 Dept: I This is a motion to compel further brought by cross complainant Gilinski against defendant Kenig. The response by Kenig is essentially that everything that was a problem has since been rectified and the motion is essentially moot. The court will inquire as to the production. If it is now complete, that is something and moots out that part of the motion. The court agrees with the moving party as to "if any." That is not an appropriate qualifier.

If there are no responsive documents, then a statement under 2031.230 is required. If some documents can be produced but others cannot, then a statement of compliance is required as well as a statement under 2031.230. If all responsive documents are being produced, then "if any" has no meaning. However, the court puts little weight on this if the statement is made on the theory that in the time available the responding party has not completed the search for documents and plans to supplement with a 2031.230 statement (verified) if appropriate.

"Available from others" is not a valid objection. The requesting party is entitled to know what the producing party has. The requests do not appear to be vague or ambiguous, and to the extent that they are, the response needs to explain how. The opposing party is correct that it need not produce documents not in its possession, custody, or control, but if there are documents not being produced on that basis, then 2031.230 may come into play. Also, the fact that technically the document is in the possession of a jural entity that the responding party controls, does not mean it need not be produced. It still must be produced because it is in the responding party's control and possession and custody.

Kenig seems to be saying that no documents have been withheld on a basis of privilege, so that is good. Further, the responses are all subject to the objections. That is not appropriate. The responding party needs to be clear as to whether any documents are in fact being withheld on the basis of the objections, otherwise the verification is useless. If no information is being withheld, then the objections are really a non-issue. The responding party can object because it's Tuesday so long as nothing is being withheld on that basis. But if something is being withheld, the other side needs to know where the line is so that a proper decision on whether to file a motion can be made. However, all of the above needs to be set forth with a supporting verification so that the responding party can be held to the answers at trial.

The court will inquire as to whether these issues have really been resolved. If they were, then there is the question of sanctions. That will depend in part on the meet and confer. Two letters and an email is not sufficient. And when the court reviewed the record, one of the emails/letters related to the original bad faith responses (which were in bad faith and were objection only). The other said a meet and confer letter would follow. The court is not sure it saw the actual meet and confer letter. Assuming that this is the extent of the meet and confer efforts, there will be no sanctions. As stated, the court will discuss whether the other issues are now resolved.

For the parties' future guidance, the court appends its Guidelines on Discovery. DISCOVERY RELATED GUIDELINES FOR DEPARTMENT I The guidelines below are not "rules" and they are not universally applicable in all cases. Rather, they are guidelines as to the court's general views. Each case, of course, will be decided on its own facts and circumstances, and some of the guidelines below may not apply to particular circumstances. That said, the court does take these views seriously. Discovery Responses The court provides the following guidance concerning its general views on some common issues regarding responses to written objections.