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Stolz v. Travelers Commercial Insurance Co.

United States District Court, E.D. California

September 12, 2019

EDWARD ROYCE STOLZ, II, Plaintiff,
v.
TRAVELERS COMMERCIAL INSURANCE COMPANY, et al. Defendants.

          ORDER ON DEFENDANT'S SECOND MOTION TO ENFORCE (ECF No. 105)

          KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.

         This case arises out of a claim for insurance coverage under a homeowner's policy issued by Travelers. The property is located in El Dorado Hills, California, and Plaintiff Stolz holds some property interest in it. The case has been significantly side-tracked by multiple discovery disputes, which have largely emanated from Stolz's abuse of the discovery process.

         The instant dispute concerns Traveler's allegation that Stolz has failed to provide meaningful responses to interrogatories and requests for production of documents--originally served in September of 2018. (ECF No. 105.) Stolz insists he has responded as best he can, and has asserted multiple objections over the past year--including based on relevance, proportionality, and privacy grounds. (ECF No. 106.) Despite considerable guidance from the Court, Stolz's latest answers still fail to show that he has conducted a “reasonable inquiry” into the matters at issue. Thus, in order provide some final guidance, the Court orders Stolz's attorney to thoroughly analyze his client's records, as detailed below, so that Stolz can supplement within 21 days.

         Background

         Stolz filed this action in California state court, and on July 11, 2018, Travelers removed the action to this Court. (ECF No. 1.) In his Complaint, Stolz alleges that between December 2016 and March 2017, his house in El Dorado Hills suffered extensive damage due to severe storms and associated flooding. (Id. at ¶ 2.) Because of the damage, Stolz contends he was unable to continue living in the house. (Id. at ¶ 16.) Stolz asserts he submitted a timely claim to Travelers under the relevant Policy, but Travelers, acting in bad faith, refused to pay. (Id. at ¶ 3.) The Complaint asserts claims for breach of contract, breach of the implied covenant of good faith and fair dealing, and unfair business practices. (Id. at ¶¶ 3-5.) For damages, the Complaint prays for, inter alia, compensatory, special and consequential damages. (Id. at p. 15.) This claim apparently includes damages for loss of use of the home, and additional living expenses, and “diminution of value” of the home--all of which are governed by the Policy. (See ECF No. 117 at ¶ 1.)

         Travelers denied liability, and asserted a number of affirmative defenses, including: (3) comparative fault, (5) other causes, (6) superseding causes, and (7) failure to mitigate, as well as other Policy-based defenses (e.g. (10) “recovery [is] barred by the terms, conditions, definitions, limitations and exclusions contained in the Policy.”). (ECF No. 1 at pp. 28-38.) From what the Court has gleaned, Travelers intends to argue that coverage under the Policy only extends to “the dwelling on the ‘residence premises, '” which the Policy defines as “the one family dwelling where you reside . . . and which is shown as the ‘residence premises' in the Declarations.” (See ECF No. 105 at p. 4.) The thrust of Traveler's defense appears to be that the El Dorado property was not Stolz's “residence premises”--and was likely left abandoned for a large portion of the coverage period.[1] (See ECF No. 109 at pp. 2-4 for Traveler's summarized theory of the case.) Thus, Travelers intends to argue that it is not liable for “loss of use” damages (because Stolz was not using the El Dorado property), “additional living expense” damages (because Stolz owns somewhere between 3-5 other properties), and “diminution of value” damages (because any reduction in the property's value was due to Stolz's negligence/absence/failure to mitigate).

         To inquire into the extent of Stolz's use of the El Dorado Property, Travelers propounded discovery on September 28, 2018--seeking among other things the following information:

[ROG] 1: Identify the address(es) of the property that YOU have resided at since January 1, 2013 to the PRESENT.
[ROGS] 2/3: State, with specificity the amount of time, including but not limited to the number of days per month, YOU have resided at each property identified in response to Interrogatory Number 1/the [El Dorado] property from January 1, 2013 to the PRESENT.
[ROG] 4: Identify, with specificity (by stating the name, title, address, telephone number and e-mail address), each and every PERSON who resided with YOU from January l, 2013 to the PRESENT.
[RPD] 4: Any and all DOCUMENTS EVIDENCING YOUR business or personal trips taken from the January 1, 2015 to the PRESENT, including but not limited to DOCUMENTS related to airline tickets, any form of transportation, hotel receipt, and/or other housing.
[RPD] 11: Any and all DOCUMENTS EVIDENCING any claim for Additional Living Expense that YOU are seeking under YOUR CLAIM and as part of YOUR COMPLAINT.

(ECF No. 106-3 and -4.) On November 2, 2018, Stolz, aided by counsel from the Adli Law Group, responded with 18-19 general objections, plus the following boilerplate objections to the above requests: “overbroad as to time [and] scope”; “not reasonably calculated to lead to the discovery of admissible evidence”; “attorney-client privilege”; “privacy”; and “unintelligible, vague, and ambiguous regarding the phrases ‘the address(es) of the property' and the undefined word ‘resided.'” (See ECF No. 105-5 and -6.)

         On December 7, Travelers filed a motion to compel. (ECF No. 22.) On December 18, Stolz supplemented Rog 3: “[S]ince the incident . . ., [Stolz] has not resided at the PROPERTY. Prior to that, the number of days per month during which he resided at the PROPERTY fluctuated widely and cannot be stated with specificity for the time period requested.” (ECF No. 106-7 at p. 7.) Additionally, Stolz stated that he was “not making a claim for Additional Living Expenses[.]” (Id. at p. 8, Rog 7 Response.) On January 11, 2019, the Court ordered Stolz's attorney to confer with his client concerning the scope of Stolz's claims and requested damages, including whether he was seeking loss of use damages, then supplement his responses. (ECF No. 43.)

         Between January and May, a number of events caused further delays to the case. First, Stolz's attorney requested to withdraw in January--which took effect in March. (ECF Nos. 44, 57.) Second, the Court devoted significant time to resolving a separate discovery dispute concerning Stolz's refusal to permit a site inspection.[2] (See ECF No. 104 for a thorough account of this dispute.) Third, the Court's service on Stolz (acting pro se) was often returned as undeliverable due to Stolz's failure to keep his address current. Relevant to the instant dispute, Stolz failed to supplement the Rogs and RPDs, even after Travelers personally re-served Stolz. (See ECF No. 76.) On April 19, the Court again ordered responses, due by May 9, 2019. (ECF No. 65.)

         Ten days after this latest deadline, Stolz supplemented his responses to 10 of the 25 Rogs, including Rogs 1-4. (ECF No. 106-10). For his residences, Stolz listed the El Dorado house as well as a house in Sacramento and two houses in Rancho Mirage, CA (at San Marino Circle and Toscana Way). (Id. at Rog 1 Response.) Stolz stated that he considered the El Dorado property his “residence, ” and that up until 2017, his “best estimate is that [he] spent approximately ½ of [his] time (approximately 15 days per month) at that location.” (Id. at Rog 2 Response.) He stated he has “occasionally occupied” the two Rancho Mirage houses, but despite “a diligent search for data which might identity with particularity the number of days per month each property has been occupied, Plaintiffs do not have such data.” (Id. at Rog 3 Response.) Finally, Stolz stated that no one else lives at the El Dorado property, and that he was not seeking additional living expenses. (Id. at Rogs 4 and 7 Responses.) On May 30, Travelers filed a motion to enforce, asserting that Stolz's Rogs supplements did not comply with the Court's order, as well as that he completely failed to supplement his RPD responses. (See ECF No. 76.)

         Stolz then retained Ben Thomas Hamilton as counsel, and Mr. Hamilton appeared alongside Stolz at a June 13 hearing. (ECF Nos 81, 83.) Mr. Hamilton assured the Court he would work with his client to supplement the responses; the Court granted Stolz 21 days to comply, and ordered that Stolz waived all objections except as to privacy.[3] (ECF No. 87.)

         On August 15, 2019, Travelers submitted a second motion to enforce, requesting either dismissal of the action in total or dismissal of both Stolz's breach of contract claim and any loss of use damages and additional expense damages. Therein, Travelers demonstrated that between June and August, counsel for both parties conferred extensively over Stolz's supplements to the Rogs and RPDs, and were able to resolve other issues raised by Travelers (not relevant to the instant dispute). Stolz's supplements reasserted that he resided in the two Rancho Mirage properties and the El Dorado property, but inexplicably failed to mention the Sacramento property.[4] (ECF No. 106-17, Rog 1 Response.) Stolz also reasserted that he spent 15 days per month at the El Dorado property, and added the following qualifier:

Despite a diligent search, I do not have any records which would help me provide a more accurate estimate of time at the above-mentioned locations. My cell phone billing statements do not indicate my location in relation to cell phone calls I make or receive. I do not keep track of my location on my cell phone. I do not keep a permanent personal or business calendar. I generally keep track of appointments and events via notes made on notepads and then discard said notepads once the appointment or event has occurred or the note is no longer needed

(Id. at Rogs 2 and 3 Responses.) As to RPD 4 (re: documents evidencing Stolz's business or personal trips), Stolz stated he “[did] not have any responsive documents in [his] possession, custody or control relating to business or personal trips taken from the January 1, 2015, to the time of the incident in 2017. Had any such records existed, they no longer exist and are not in [his] possession.” (ECF No. 106-18, RPD 4 Response.) Stolz repeated his “despite a diligent search” assertion from Rogs 2 and 3 regarding his cell phone location and business calendar, but stated he was “in the process of locating and copying gas receipts” which he promised to produce. (Id.) As for RPD 11 (re: documents evidencing additional living expenses), Stolz stated he had “no responsive documents in [his] possession, custody or control.” (Id., RPD 11 Response). Stolz did not supplement his response to Rog 7 (re: ‘not seeking additional living expenses') in either the June 13 or July 3 submissions. (See ECF Nos. 106-15 and -17.)

         Travelers deposed Stolz on July 23 regarding these issues, and Stolz offered testimony that was consistent with his responses in some ways, but inconsistent in other ways. (See ECF No. 105-6.) For example, while Stolz has consistently stated in his Rogs that he “occasionally” resided at the San Marino Circle home, he testified at his deposition that this property has been unoccupied. (Id. at 42:23-43:22.) Stolz also testified that he has leased a condominium in Las Vegas, Nevada since 2017, despite never having mentioned it in his Rog responses. (Id. at 35:7- 36:14.) He also testified that he often traveled to Northern California, Las Vegas, San Francisco, Washington D.C., and New York City in the past few years. (Id. at 23:21-25; 58:10-20.)

         Finally, from what the Court can glean from counsels' meet-and-confer emails, Stolz has delivered to Travelers his cell phone records, his gas/electric/water utility bills for the El Dorado property, and his automobile gas receipts. (See ECF No. 106-22.) Further, the Court notes Mr. Hamilton's assertion that in fact ‚ÄúStolz is making a claim for additional living expenses ...


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