Judge: Alison Mackenzie, Case: 23STCV00559, Date: 2023-11-14 Tentative Ruling
Case Number: 23STCV00559 Hearing Date: November 14, 2023 Dept: 55
NATURE OF PROCEEDINGS: Motion To Compel Responses To
Interrogatories; Request For Sanctions. Motion
To Compel Compliance With Document Demands;
Request For Sanctions.
Tentative- Both motions are denied.
On 1/11/23, ABELSON HERRON HALPERN LLP and HALPERN MAY
YBARRA GELBERG LLP (“plaintiffs”) filed a Complaint asserting causes of action
including breach of contract and various common counts, and alleging that they seek
recovery of over $400,000 in attorneys’ fees, costs and interest owed by ELIOT
CARMI (“Defendant”) for legal services undertaken on his behalf.
Plaintiffs filed two motions to compel further
discovery responses, both with monetary sanctions requests. The first motion is to compel further
responses to form interrogatory number 15.1 regarding support for certain
affirmative defenses. The second motion
is to compel production of documents as agreed. Defendant opposes the motion regarding form
interrogatory responses, essentially arguing that the response complies with
the California Discovery Act. Defendant
opposes the documents motion, arguing that he made a full production after the
filing of the motion and his delay was justified due to his travel schedule.
Motion To Compel Responses To
Interrogatories
Discovery Act Compliance
Plaintiffs argue that Form Interrogatory No. 15.1
asked Defendant to “state all facts upon which you base [your] affirmative
defense,” but Defendant simply repeated his allegation that “Plaintiff
overbilled and overcharged Defendant for legal services,” and he accused the
law firms of malpractice. (Mot., 5:24.) Further,
Defendant contends that, until Defendant identifies the actual facts that are
the basis of the defenses, plaintiffs’ attorneys have no idea why Defendant
contends he was over-billed. (Rep., 4:13.)
Contention interrogatories involve the reflection of
attorneys in formulating a response in a sophisticated process of legal
reasoning, sorting through evidence, and organizing it in terms of contentions
a party is asserting. Rifkind v. Sup.
Ct. (1994) 22 Cal. App. 4th 1255, 1263.
“‘There is no doubt that a defendant is entitled to discover by
appropriate interrogatories the facts, if any, presently known to the plaintiff
upon which he bases the allegations of his complaint and upon which he presently
relies to prove his case.’” Tehachapi-Cummings
Cnty. Water Dist. v. Superior Court of Kern Cnty. (1968) 267 Cal. App. 2d
42, 46 (applying the rule to interrogatory responses by answering
defendants). Analogously, admission
requests and Judicial Council form interrogatory No. 17.1 together require
respondents to state all facts that support the contentions, and any factually
devoid or unsupportive responses may shift the burden of proof for a motion for
summary judgment. Union Bank v. Sup.
Ct. (1995) 31 Cal. App. 4th 573, 580.
Also, the right to discovery
does not depend on the status of the pleadings, such as where a pleading is
vulnerable to a motion. Mattco
Forge, Inc. v. Arthur Young & Co. (1990) 223 Cal.App.3d 1429,
1436. And a motion to compel further
discovery responses cannot be granted based on the reason that verified answers
served are really untrue. Holguin
v. Sup.
Ct. (1972) 22 Cal.App.3d 812,
820, 821.
Here, the Court agrees that Defendant’s discovery
responses, stated identically as to each subject affirmative defense, are not well
supportive of the allegations of overbilling.
However, that is not decided as part of the Discovery Act instead
requiring responding parties to state facts that they subjectively have decided
to base their pleading contentions upon.
Thus, the Court denies the motion.
Sanctions
Plaintiffs advocate sanctions in the sum of $10,500,
because they says it seems that counsel cannot provide facts to support the
affirmative defenses alleging overbilling or because Defendant has not provided
his lawyer with such facts or asked his lawyer to dismiss the defense because
no such facts exist.
Generally, monetary sanctions are mandatory as to
parties losing discovery motions, unless courts find substantial justification
or other injustice. E.g., Foothill Properties v. Lyon/Copley
Corona Assocs., L.P. (1996) 46 Cal.App.4th 1542, 1557-58. “ ‘[S]ubstantial justification” has been
understood to mean that a justification is clearly reasonable because it is
well-grounded in both law and fact.” Doe
v. U.S. Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1434.
Here, in denial of the sanctions request, the Court
finds substantial justification, including because the Discovery Act and
applicable law does not require sufficient substantive support for pleadings’
contentions, as analyzed above.
Motion To Compel Documents Compliance
Discovery Act Compliance
Plaintiffs argue that Defendant failed to produce
documents as agreed in the responses. In
response, Defendant argues that he has produced the documents after a delay
caused by a few months of travelling.
A motion to
compel compliance as agreed with a request for production of documents is based
upon a showing that the respondents failed “to permit an inspection ‘in
accordance with that party’s statement of compliance.’" Standon Co. v. Sup. Ct. (1990) 225
Cal. App. 3d 898, 903. See also CCP §2031.320(a).
In the matter at hand, Defendant’s opposition
represents that all documents have been produced as agreed. While the reply memorandum asserts that Defendant
did not produce all documents, Plaintiffs have no evidence of noncompliance
with Defendant’s response to the document requests, which defines his obligation: “Defendant will produce all documents
responsive to this Request in his possession, custody or control.” (Mot., 10:20-21.)
No basis therefore remains to grant this motion.
Sanctions
Plaintiffs advocate sanctions in the sum of $14,000,
because of the failure to produce documents as agreed. But sanctions are denied as to the documents motion
because the Court finds substantial justification in that Defendant has the
excuse of a difficulty producing while travelling. While the reply memorandum asserts that Defendant’s
delay extended beyond his travel period, the reply declaration does not
evidence that, and the reply exhibit consists of email assertions, not
admissible evidence. Further, sanctions
are not properly used to punish for delays after discovery has been
produced. Discovery sanctions are not to
be imposed for punishment, but instead are used to encourage a fair disclosure
of discovery to prevent unfairness resulting from the lack of information. Electronic
Funds Solutions, LLC v. Murphy (2005) 134 Cal. App. 4th 1161, 1183; McGinty v. Sup. Ct. (1994) 26 Cal.
App. 4th 204, 214.
Conclusion
The motion to compel further interrogatory responses and
request for sanctions is denied. The
motion to compel production and request for sanctions is denied.