Judge Andrew E. Cooper, Case Number: 23CHCV01483, Date: 2023-10-05 Tentative Ruling

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MARCH 12, 2024

(Special Interrogatories, Set One)

Los Angeles Superior Court Case # 23CHCV01483

RESPONDING PARTIES: Defendants Jay William Smith; and David M. Robinson (collectively, “Defendants”)

RELIEF REQUESTED: Orders compelling further responses to Plaintiff’s Special Interrogatories, Set One, Nos. 1–10 (as to Defendant David M. Robinson) and Nos. 1–12 (as to Defendant Jay William Smith), within 10 calendar days. Plaintiff further requests monetary sanctions to be imposed against each Defendant and their counsel in the amount of $1,560.00.

TENTATIVE RULING: The unopposed motions are granted in part. Defendants to provide further code-compliant responses to Plaintiff’s first set of Special Interrogatories, Interrogatory Nos. 1–4 and 6–10, (as to Defendant David M. Robinson) and Nos. 1–12 (as to Defendant Jay William Smith), within 30 days. The Court imposes sanctions against each Defendant in the amount of $750.00.

This is a legal malpractice action wherein Plaintiff alleges that on 12/7/22, it entered into a legal services agreement with Defendant Jay William Smith to represent Plaintiff in Los Angeles Superior Court Case No. 19STCV08264. (Compl. ¶ 5.) Plaintiff alleges that all communications regarding the retainer and legal representation were conducted between Plaintiff and Defendant David M. Robinson, and the retainer fee was paid to Robinson’s personal account. (Id. at ¶¶ 6–8.) Plaintiff alleges that neither Defendant “notified Plaintiff in writing or verbally that ROBINSON is a disbarred attorney from April 14, 2011 at any time.” (Id. at ¶ 9.)

Plaintiff further alleges that it learned that 11 Motions to Compel Discovery had been filed against it in LASC Case No. 19STCV08264 due to Defendants’ failure to respond to discovery requests on Plaintiff’s behalf. (Id. at ¶¶ 12–14.) “Plaintiff has been harmed in amounts of $7,500.00 in legal fees paid, plus interest at 7% per annum, plus another $30,000.00 in legal fees to retain new counsel with the need to expedite file review in 19STCV08264 where 11 motions to compel are still on calendar that need to be opposed as well as the discovery requests answered, plus punitive damages in the amount of $100,000.00 for the purposeful and malicious act of concealing the fact that the de facto individual performing 95% of the representation of Plaintiff, ROBINSON, is a disbarred attorney whom is forbidden to be the sole client contact, to give legal advice, and to accept legal fees directly into their own personal account.” (Id. at ¶ 15.)

On 5/22/23, Plaintiff filed its complaint, alleging against Defendants the following causes of action: (1) Fraud; (2) Violation of Business & Professions Code § 17200; (3) Breach of Fiduciary Duty; and (4) Negligent Misrepresentation.

On 9/13/23, Plaintiff served its Special Interrogatories, Set One, on Defendants. (Decl. of Brian W. Lee ¶ 2.) On 10/17/23, Defendants served their responses thereto. (Id. at ¶ 4.)

On 11/17/23, Plaintiff filed the instant motions to compel further responses to its Special Interrogatories, Set One, against each Defendant. No oppositions have been filed to date.

“The party to whom interrogatories have been propounded shall respond in writing under oath separately to each interrogatory by any of the following: (1) An answer containing the information sought to be discovered; (2) An exercise of the party’s option to produce writings; or (3) An objection to the particular interrogatory.” (Code Civ Proc. § 2030.210, subd. (a).) “Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits.” (Code Civ Proc. § 2030.220.) “If an objection is made to an interrogatory or to a part of an interrogatory, the specific ground for the objection shall be set forth clearly in the response. If an objection is based on a claim of privilege, the particular privilege invoked shall be clearly stated.” (Code Civ Proc. § 2030.240, subd. (b).)

A propounding party may move for an order compelling further responses to interrogatories if any of the following apply: “(1) An answer to a particular interrogatory is evasive or incomplete; (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate; or (3) An objection to an interrogatory is without merit or too general.” (Code Civ. Proc. § 2030.300, subd. (a).)

Here, Plaintiff seeks to compel additional responses to its first set of Special Interrogatories, specifically to interrogatory Nos. 1–10 (as to Defendant David M. Robinson) and Nos. 1–12 (as to Defendant Jay William Smith), which generally seek financial payments between the Defendants as they relate to Plaintiff. Plaintiff argues that the instant motions are warranted because Defendants unjustifiably refused to respond to the interrogatories and made meritless objections thereto.

A motion to compel further responses to interrogatories must be accompanied by a meet and confer declaration stating “facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc. §§ 2030.300, subd. (b)(1); 2016.040.)

Here, Plaintiff’s counsel declares that on 10/25/23, he sent Defendants’ counsel a meet and confer letter raising the issues set forth in the instant motions. (Lee Decl. ¶ 5.) On 10/30/23, counsel for the parties met and conferred telephonically. (Id. at ¶ 6.) On 11/6/23, Defendants’ counsel responded that Defendants would stand by the objections made in their discovery responses. (Id. at ¶ 7.) Therefore, the Court finds that counsel has satisfied the preliminary meet and confer requirements under Code of Civil Procedure section 2031.310, subdivision (b)(2).

Here, Plaintiff argues, in part, that Defendants’ objections to its first set of special interrogatories are without merit. (Code Civ. Proc. § 2030.300, subd. (a)(3).) Defendants objected to each interrogatory[1] at issue as follows:

“Objection, This SPROG is vague, ambiguous and unintelligible. Further, it seeks personal, private financial information which is protected and exempt from Discovery on individual Privacy considerations. The substance of the protected financial information sought by this Discovery does not touch upon any relevant matter raised in the pleadings and thus is irrelevant on that basis. This Discovery Request is not calculated to lead to the discovery of admissible evidence and is thus irrelevant on that basis as well. In light of the foregoing, this SPROG is propounded for the improper purpose of harassing and vexing the responding party and is calculated to require this Defendant to expend time, energy and funds for no proper purpose or for any valid litigation objective. This SPROG is thus burdensome, harassing and oppressive. Beyond registering these objections, Defendant cannot respond further.”

Discovery is relevant if it is admissible as evidence, or “appears reasonable calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc. § 2017.010.) “Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action.” (Ibid.)

Here, Plaintiff argues that Defendants’ objections to the subject interrogatories on the basis that they seek irrelevant matter are meritless because each interrogatory “is narrowly tailored to request proof that the legal fees that Plaintiff admittedly paid to the disbarred former attorney David Robinson, the ‘case manager’ of Jay Smith, actually got to the licensed attorney Jay Smith. If Jay Smith enabled David Robinson to illegally practice law and receive earnings as an attorney through the guise of Smith’s bar license, or if Robinson’s illegal receipt of client funds never even got to the attorney that he was allegedly an assistant to, or just a general evidencing of why the disbarred Robinson illegally collected attorney fees on his Zelle bank account, it is proof of Defendants’ illegal acts.” (Pl.’s Sep. Stmt.)

Based on the foregoing, the Court finds that Plaintiff has made a sufficient showing that the subject documents sought are discoverable as relevant. Information about payments Plaintiff made directly to defendant Robinson for the purposes of legal representation are relevant to Plaintiff’s claims that Defendants defrauded Plaintiff and engaged in unfair business practices in violation of Business and Professions Code section 17200 et seq. (the “UCL”). Plaintiff’s interrogatories may reasonably lead to the discovery of information as to Defendants’ handling of Plaintiff’s funds. “To the extent that Defendants argue that defendant Robinson is not ‘a proper defendant’ in this action, those issues are not before the Court in this proceeding.” (12/20/23 Min. Order, pp. 4–5.)

Accordingly, the Court finds that Defendants’ relevance objections to Plaintiff’s Special Interrogatories, Set One, are without merit.

“The right to privacy under article I, section 1 of the California Constitution ‘extends to one's confidential financial affairs.’ … This right embraces confidential financial information in ‘whatever form it takes, whether that form be tax returns, checks, statements, or other account information.’” (Overstock.com, Inc. v. Goldman Sachs Group, Inc. (2014) 231 Cal.App.4th 471, 503.) When the production of such private information is sought by way of discovery, the burden falls on the party asserting a privacy interest to show that their privacy interests are so serious that they outweigh the interests of the requesting party’s prospective invasion. (Williams v. Superior Court (2017) 3 Cal.5th 531, 557.)

Here, Plaintiff further argues that Defendant’s privacy objections to the subject interrogatories are meritless. “There is no privacy protection against explaining where Plaintiff’s money (Plaintiff was a fiduciary client of Defendants) went to pay and it is highly relevant to a showing of the illegal acts of Defendants at the heart of this litigation. In fact, for privacy concerns, this request was narrowed to just Plaintiff’s legal fee funds that he Zelled to the disbarred attorney’s account at Robinson’s instruction to protect the privacy of Robinson and all other third parties.” (Pl.’s Sep. Stmt.)

The Court notes that Defendants have failed to oppose the instant motions, and therefore have not made any showing that their privacy interests are so serious that they outweigh the interests of Plaintiff’s prospective invasion thereinto. (Williams, 3 Cal.5th at 557.) Based on the foregoing, the Court finds that Defendants’ privacy objections to Plaintiff’s Special Interrogatories, Set One, are without merit.

As set forth above, Defendants’ objections to the subject interrogatories are stricken/overruled, therefore the Court orders Defendants to provide further code-compliant responses to the subject interrogatories within 30 days.

“The court shall impose a monetary sanction … against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc. § 2031.310, subd. (h).)

Here, Plaintiff requests sanctions in the total amount of $1,560.00 to be imposed on each Defendant and its counsel. This amount includes: (1) 2 hours of Plaintiff’s attorney’s time working on this motion, at his hourly billing rate of $500.00 per hour; (2) an anticipated 1 hour preparing for and attending the instant hearing; and (3) a $60.00 filing fee. (Lee Decl. ¶¶ 8–9.)

In granting the instant motion, the Court finds it reasonable to award Plaintiff sanctions against each Defendant in the amount of $750.00.

The unopposed motions are granted in part. Defendants to provide further code-compliant responses to Plaintiff’s first set of Special Interrogatories, Interrogatory Nos. 1–4 and 6–10, (as to Defendant David M. Robinson) and Nos. 1–12 (as to Defendant Jay William Smith), within 30 days. The Court imposes sanctions against each Defendant in the amount of $750.00.

[1] The Court notes that Defendant David M. Robinson provided a substantive, objection-free response to Special Interrogatory No. 5. To that extent, The Court’s excludes this interrogatory from its below analysis as inapplicable.