Judge Alison Mackenzie, Case Number: 23STCV07931, Date: 2024-08-13 Tentative Ruling

Judge: Alison Mackenzie, Case: 23STCV07931, Date: 2024-08-13 Tentative Ruling

Case Number: 23STCV07931 Hearing Date: August 13, 2024 Dept: 55

(1) Defendant’s Motion to Compel Compliance with Form Interrogatories, Set One and Request for Monetary Sanctions against Plaintiff Central Metal and/or Its Counsel of Record, Eanet, PC, in the amount of $2,405;

(2) Defendant’s Motion to Compel Compliance with Special Interrogatories, Set One and Request for Monetary Sanctions against Plaintiff Central Metal and/or Its Counsel of Record, Eanet, PC, in the amount of $3,190; and

(3) Defendant’s Motion to Compel Compliance with Requests for Production, Set Two, and Request for Monetary Sanctions against Plaintiff Central Metal and/or Its Counsel of Record, Eanet, PC, in the amount of $2,797.50

Plaintiff Jong Uk Byun is the owner of Plaintiff Central Metal, Inc. (“Plaintiff CMI”) and together Plaintiffs filed sued against Daniel Park and Christine Chong (“Defendants”) for their alleged fraudulent conduct in connection with loans Plaintiffs obtained for their properties. Plaintiffs note in the First Amended Complaint (“FAC”) that they have dismissed the remaining defendants, but the Request for Dismissal only seeks to dismiss Plaintiff Byun’s claims against the other defendants. Plaintiff CMI is listed as alleging claims against these other defendants in the FAC. The Court can clear this up with Plaintiffs’ counsel at the hearing.

Before the Court is Defendant Daniel Park’s (“Defendant Park”) motion to compel responses to the Form Interrogatories, Set One, and request for sanctions against Plaintiff CMI. The Court advances the hearing on Defendant Park’s motions to compel responses to the Special Interrogatories, Set One, Requests for Production, Set Two, and request for sanctions, to today’s date. This tentative ruling addresses all three motions.

Defendant Park contends that he served Plaintiff CMI with the form interrogatories, special interrogatories, and document requests on 3/20/2024 and Plaintiff did not serve timely responses and had not served responses by the time the motions were filed on 5/28/2024. (Izzo Decl. ISO motions, ¶ 3.) Defendant Park contends that Plaintiff CMI has therefore waived its objections to the discovery requests.

Plaintiff CMI contends that, notwithstanding the proofs of service attached to the discovery requests, counsel for Plaintiff CMI did not receive the requests. (Eanet Decl., ¶¶ 2-3.) Plaintiff’s counsel attached email correspondence demonstrating that he immediately contacted defense counsel when he learned of the motions to compel in early May (when the case was assigned to a different department) to alert counsel that he had never received the requests and requesting that he be given 30 days to respond to the discovery. (Id., Ex. A.) Defense counsel refused. (Id.)

Defendant maintains in his reply briefs that the metadata from the email with the discovery requests sent to Plaintiff’s counsel “clearly demonstrates” that Plaintiff CMI received the discovery requests in March. (Reply Briefs, 2:10-11.) Defense counsel goes so far as to call Plaintiff’s counsel a liar. (Id., 2:9.) Defense counsel attaches a document with the metadata, but this document merely consists of a string of letters and numbers. (Izzo Reply Decl. ISO motions, ¶ 4, Ex. 1.) The Court has no way of concluding, as defense counsel contends, that this string of letters and numbers “clearly indicates” that Plaintiff’s counsel received the requests. (Id.) Moreover, the Court is concerned that defense counsel would resort to calling an opposing counsel a liar in a court document. As defense counsel surely knows, technical glitches happen. Mistakes happen. There is no indication in the email correspondence that defense counsel considered the possibility that Plaintiff’s counsel, for whatever reason, did not receive the requests as he stated. There is certainly no indication that counsel, as a professional courtesy, agreed to let bygones be bygones and give counsel an opportunity to respond to the discovery regardless of whether defense counsel was convinced counsel had not received the discovery. This is disappointing.

The Court agrees with Plaintiff CMI that the motions are moot because Plaintiff CMI has now served verified responses to the discovery requests. Given the events laid out above, the Court also concludes that Plaintiff CMI is relieved from the waiver of its objections to the discovery requests.

Both parties seek monetary sanctions. Defendant Park’s request is denied because the record demonstrates that Plaintiff CMI arguably did not receive the requests and acted diligently to serve responses once alerted to the lack of responses. Thus, Plaintiff CMI acted with substantial justification. Plaintiff CMI’s request is denied because Defendant Park followed the Code of Civil Procedure, which permits a motion to compel responses when no responses have been timely received. Thus, Defendant Park acted with substantial justification.

Counsel for both parties shall review Department 55’s Courtroom Information page, which explains that the Court expects parties to hold an Informal Discovery Conference with the Court prior to filing any motion to compel further responses.