Judge: Andre De La Cruz, Case: 2021-01207635, Date: 2023-08-21 Tentative Ruling

1. Motion to Compel Production
2. Motion to Compel Production filed by Bettie Blauser on 3/29/23
3. Motion to Compel Response to Requests for Admissions
4. Motion to Compel Response to Requests for Admissions filed by Bettie Blauser on 4/20/23

Motion to Compel Further Responses to Requests for Production (ROA 128, 129)

Plaintiff, Bettie Blauser moves for an order compelling Defendants Eric J. Dubin and The Dubin Law Firm to provide further responses, without objections, and actual production of documents in response to Requests for Production, Set One (“RFP”), Nos. 1 to 23, and awarding monetary sanctions in the amount of $2,440 against each defendant. This Motion is DENIED, in its entirety, as follows.

A motion to compel a further response to a demand for inspection must set forth specific facts showing good cause justifying the discovery sought by the discovery request. Code Civ. Proc. § 2031.310(b)(1).) For a request to produce documents, “a party who seeks to compel production must show ‘good cause’ for the request . . . but where . . . there is no privilege issue or claim of attorney work product, that burden is met simply by a fact-specific showing of relevance.” Glenfed Develop. Corp. v. Superior Court, 53 Cal. App. 4th 1113, 1117 (1997) (hereinafter Glenfed). “To establish good cause, a discovery proponent must identify a disputed fact that is of consequence in the action and explain how the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact.” Digital Music News LLC v. Superior Court, 226 Cal. App. 4th 216, 224  (2014) (disapproved of on other grounds); Glenfed, supra, 53 Cal. App. 4th at 1117. If the moving party demonstrates good cause, then the opposing party must justify any objections. Kirkland v Superior Court, 95 Cal. App. 4th 92, 98 (2002).  

Here, RFP, Nos. 1 to 23 are identical except one set relates to Defendant Eric J. Dubin, and the other set relates to Defendant Dubin Law Firm.

Each request from RFP, Nos. 1 to 14, seeks various bank records which “confirms all sources of funds paid by William Jordan” to Defendant Eric J. Dubin or Defendant Dubin Law Firm.  Plaintiff fails to show good cause for requesting documents which “confirms all sources of funds paid by William Jordan” to Dubin or Dubin Law Firm as Plaintiff fails to make a fact-specific showing of relevance of such documents to her claims.

As to RFP, Nos. 15 to 23, the reply argues that these requests will show the fees that Defendants received in certain cases that should have been paid toward the promissory notes but that were used by Defendants for other purposes in breach of the January 4, 2017 and April 4, 2017 Security Agreements as the January 4, 2017 Security Agreement gave Plaintiff’s assignor a security interest in personal injury contingency cases in which Defendants were entitled to receive fees if they prevailed.

However, RFP, Nos. 15 to 19 do not seek documents showing fees Defendants received, but seek various bank records “which confirms all sources of funds paid from” certain identified cases as well as all legal cases to Defendants from January 1, 2015 to the present date. Plaintiff again fails to show good cause for documents that confirm “all sources of funds from” cases handled by the Defendants.

RFP, Nos. 20 to 23 seek documents “which confirms a structured attorney fee payment plan for all sources of funds paid or going to be paid” from specifically identified cases. While such documents may show the fees that Defendants received or is to receive in the identified cases, Plaintiff did not present good cause in the moving papers. The general rule of motion practice is that new evidence is not permitted with reply papers and should only be allowed in an exceptional case. Jay v. Mahaffey, 218 Cal. App. 4th 1522, 1537 (2013). “[P]oints raised in a reply brief for the first time will not be considered unless good cause is shown for the failure to present them before. [Citations.]” Balboa Ins. Co. v. Aguirre, 149 Cal. App. 3d 1002, 1010 (1983). Plaintiff fails to show good cause for failing to present this argument, and evidence in support thereof, in Plaintiff’s moving papers.

Motion to Compel Further Requests to Requests for Admission (ROA 148, 149)

Plaintiff Bettie Blauser moves for an order compelling Defendants Eric J. Dubin and The Dubin Law Firm to provide further responses, without objections, to Requests for Admission, Set One (“RFA”), Nos. 1-5, 8-39, 41-45, and 58-60, and awarding monetary sanctions in the amount of $3,715 against each defendant. This Motion is GRANTED as follows.

Each answer in response to requests for admission shall be as complete and straightforward as the information reasonably available to the responding party permits. Code Civ. Proc. § 2033.220(b). Section 2033.220(b) also provides that each answer shall admit so much of the matter involved in the request as is true, deny so much of the matter as is untrue, and/or specify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge. Id. Finally, Section 2033.220(c) provides:  “If a responding party gives lack of information or knowledge as a reason for a failure to admit all or part of a request for admission, that party shall state in the answer that a reasonable inquiry concerning the matter in the particular request has been made, and that the information known or readily obtainable is insufficient to enable that party to admit the matter.” 

“If only a part of a request for admission is objectionable, the remainder of the request shall be answered.” Code Civ. Proc. § 2033.230(a). Code of Civil Procedure Section 2033.230(b), states in relevant part: “If an objection is made to a request or to a part of a request, the specific ground for the objection shall be set forth clearly in the response.” Code Civ. Proc. § 2033.230(b).

“No request for admission shall contain subparts, or a compound, conjunctive, or disjunctive request unless it has been approved under Chapter 17 (commencing with Section 2033.710).” Code Civ. Proc. § 2033.060(f). The rule for no compound, conjunctive, or disjunctive questions “should probably apply only where more than a single subject is covered by the question. Questions regarding the same subject should be allowed although they include an ‘and’ or ‘or.’” See Weil & Brown, Cal. Practice Guide: Civ. Proc. Before Trial (The Rutter Group June 2023 update) ¶ 8:979. “However, the rule against subparts may apply where two discrete matters are covered by the same question—i.e., where there are really two separate questions linked together by an ‘and’ or ‘or.’” Id.

The burden is on the responding party to justify the objections raised and the failure to fully answer the requests. Fairmont Ins. Co. v. Superior Court, 22 Cal. 4th 245, 255 (2000); Coy v. Superior Court, 58 Cal. 2d 210, 220-221 (1962).

Defendants argue that all of the discovery questions involve documents Plaintiff now admits she had never even seen before filing the lawsuit and were never “orally assigned” to give her any standing, such that no further responses are warranted. However, no evidence is submitted to support these contentions.

Defendants do not otherwise justify their objections or the failure to provide code-compliant responses to RFA, Nos. 1-5, 8-39, 41-45, and 58-60. Nevertheless, the term “YOU” is limited to only the defendant against whom the discovery is directed.

Defendants’ responses to RFA, Nos. 1-5, 8-35, 41-45, and 58-60 do not comply with Code of Civil Procedure section 2033.220(b) as it does not admit so much of the matter involved in the request as true, or deny so much of the matter involved in the request as is untrue. The response appears evasive.

Defendants to provide further, verified responses, without objections, to RFA, Nos. 1-5, 8-39, 41-45, and 58-60 within 14 calendar days of the notice of ruling.

The Court AWARDS monetary sanctions in the reduced total amount of $4,625 against Defendants Eric J. Dubin and The Dubin Law Firm for both latter motions discussed herein, jointly and severally, to be paid within 30 calendar days of the notice of ruling.

Plaintiff to give notice as to all motions herein addressed.