Judge: Anne Richardson, Case: 22STCV33839, Date: 2024-06-13 Tentative Ruling

DEPARTMENT 40 - JUDGE ANNE RICHARDSON - LAW AND MOTION RULINGS
The Court issues tentative rulings on certain motions.The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) email Dept 40 by 8:30 a.m. on the day of the hearing (smcdept40@lacourt.org) with a copy to the other party(ies) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no email is necessary and all parties should appear at the hearing in person or by Court Call. 

Case Number: 22STCV33839    Hearing Date: June 13, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

I. Background

On February 16, 2024, Cross-Defendant Stallion, Inc. (Stallion) filed a motion to compel further responses to six production requests served on Cross-Plaintiff Michael Pappas (Michael Pappas) around December 5, 2023 (hereafter, RPDs, Set One, Nos. 1-6), to which Michael Pappas served objection-only responses on January 8, 2024.

On May 31, 2024, Michael Pappas filed an opposition. The opposition argues that this motion is moot because Michael Pappas served supplemental responses to RPDs, Set One, Nos. 1-6 on May 29, 2024. A review of the proof of service for the opposition shows that service was effected on Stallion’s counsel at a P.O. box address, which is the same address that appears in the proof of service attached to Stallion’s February 20, 2024, motion, as well as its March 28, 2023, Answer to Cross-Complaint.

No reply appears in the record.

Stallion’s motion is now before the Court.

II. Motion to Compel Further Production and Motion for Sanctions

A. Motion to Compel Further Production: MOOT.

1. Legal Standard

A motion to compel a further response is used when a party gives unsatisfactory answers or makes untenable objections to interrogatories, demands to produce, or requests for admission. (See Code Civ. Proc., § 2031.310, subd. (a); Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403(Sinaiko).)

To request further production, a movant must establish: (1) good cause for the production (Code Civ. Proc., § 2031.310, subd. (b)(1); Sinaiko, supra, at p. 403); and (2) that a further response is needed because (a) the responding party’s statement of compliance with the demand to produce is incomplete Code Civ. Proc., § 2031.310, subd. (a)(1)), (b) the responding party’s representation that it is unable to comply is inadequate, complete, or evasive (Code Civ. Proc., § 2031.310, subd. (a)(2)), (c) the responding party’s objection in the response is without merit or is too general (Code Civ. Proc., § 2031.310, subd. (a)(3); Catalina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, 1127), or (d) if the responding party objected to the production of ESI on the ground that it is not reasonably accessible the movant can show that the (i) ESI is reasonably accessible or (ii) there is good cause for production of the ESI regardless of its accessibility (Code Civ. Proc., § 2031.310, subd. (e)).

2. Analysis

“Whether a particular response does resolve satisfactorily the issues raised by a motion is a matter best determined by the trial court in the exercise of its discretion, based on the circumstances of the case.” (Sinaiko, supra, 148 Cal.App.4th at p. 409.)

Here, the Court determines that Stallion’s motion is MOOT as to further responses.

Stallion served RPDs, Set One, Nos. 1-6 on Michael Pappas around December 5, 2023, in response to which Plaintiff served objection only responses. (Mot., Kalajian Decl., Exs. A, B.)

On May 29, 2024, Stallion served supplemental responses to RPDs, Set One, Nos. 1-6. A review of these responses shows statements satisfying Code of Civil Procedure section 2021.230. These responses represent that Michael Pappas has made a diligent search and reasonable inquiry into the production requests and has been unable to locate responsive documents, giving distinct reasons for why responsive documents were not located as to each of the production requests. (Opp’n, Abramson Decl., Ex. 1, Supplemental Responses to RPDs, Set One, Nos. 1-6.)

Based on these responses, the Court determines that Stallion’s motion is moot insofar as it seeks an order compelling further responses to RPDs, Set One, Nos. 1-6.

B. Motion for Sanctions: GRANTED in part.

1. Legal Standard

Except in certain circumstances involving electronic stored information, the court must impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) 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).)

The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed. (Cal. Rules of Court, rule 3.1348(a).)

2. Analysis

The Court GRANTS sanctions in part as follows.

There was a nearly five-month delay between service of the initial January 8, 2024, objection-only responses and service of the supplemental responses on May 29, 2024.

Michael Pappas’s opposition argues and cites evidence for the contention that the objection-only responses were served in light of scheduling difficulties for counsel, which necessitated a continuance that counsel for Stallion refused to accommodate. (Opp’n, Abramson Decl., ¶¶ 3-6, 10, Exs. 2-4.)

Michael Pappas’s opposition also details post-January 8, 2024, time conflicts arising from (1) the death of Michael Pappas’s brother, where Michael Pappas was appointed executor in charge of administering the estate, (2) the frequent travel of Michael Pappas, and (3) the birth of counsel’s first grandchild in Arizona. The death of Michael Pappas’s brother is stated as having occurred in January 2024, while the birth of counsel’s grandchild is represented to have occurred in February 2024, with the estate proceedings continuing in February 2024 as well. (Opp’n, Abramson Decl., ¶¶ 11-12.)

However, the same evidence shows that counsel for Stallion refused the extension request based on past extensions resulting in purportedly inconsistent and evasive responses from Michael Pappas and where the client, Stallion, did not wish to provide an extension. (Opp’n, Abramson Decl., Ex. 4.)

The moving papers’ evidence, in turn, shows that the objections were asserted on January 8, 2024, seemingly to preserve objections while also promising to “get [Stallion’s counsel] supplemental answers to the discovery and requested documents in the next 14 days.” (Mot., Kalajian Decl., Ex. B.)

Stallion’s counsel’s declaration attached to the moving papers also details emails between counsel on January 28, January 30, and February 2, 2024, which are quoted in the declaration rather than incorporated by attachment. Those efforts included Michael Pappas’s counsel asking for more time to produce discovery in relation to RPDs, Set One, Nos. 1-6 and promising to produce discovery twice by a certain date only to fail to serve discovery by those dates. (Mot., Kalajian Decl., ¶¶ 8-11.)

Under these circumstances, the Court relies on California Rule of Court, rule 3.1348(a) to determine that even though supplemental responses were served, sanctions may still be imposed on Michael Pappas and his counsel, John M. Kalajian for failing to respond to an authorized method of discovery in RPDs, Set One, Nos. 1-6, through May 29, 2024. (Code Civ. Proc., §§ 2023.010, subd. (d), 2023.030, subd. (a), 2031.310, subd. (h).)

The Court however, will reduce the amount awarded. Counsel’s declaration shows experience and skill supporting the modest $400 per hour fee rate. The declaration sets out a ceiling of $1,600 in monetary sanctions, connoting four hours of work by counsel on this motion and on the hearing, which is reasonable. Last, the $60 motion fee is reasonable.

As to joint and several sanctions, the Court orders sanctions be paid jointly and severally by counsel. While the Court understands that estate and family matters conflicted with production in January and February 2024, supplemental responses were not served until May 29, 2024, well beyond January and February 2024. (Opp’n, Abramson Decl., ¶¶ 10-15.) It is unclear why this delay took place, but the evidence attached to the moving papers represents that Michael Pappas’s counsel agreed to serve production following the January 8, 2024, objections only to twice fail to make production. (Mot., Kalajian Decl., ¶¶ 8-11.) Under these circumstances, sanctions against Michael Pappas and counsel appear appropriate.

However, the Court, in the interests of justice, reduces the sanctions amount to $860 as opposed to the requested $1,660, splitting the $1,600 requested in pure sanctions between the parties to balance the emergencies that arose in relation to Michael Pappas and counsel.

Sanctions are thus GRANTED, in part, as against Michael Pappas and counsel, Joe R. Abramson, Esq. (SBN 105241), jointly and severally. 

III. Conclusion

A. Motion to Compel Further Production

Cross-Defendant Stallion, Inc.’s Motion to Deem Objections to Production Demand to be Without Merit; [and] to Compel a Code Compliant Response to the Production Demand is MOOT.

B. Request for Sanctions

Cross-Defendant Stallion, Inc.’s Motion for Sanctions Against Cross-Complainant and His Attorney is GRANTED, in part, as against Michael Pappas and counsel, Joe R. Abramson, Esq. (SBN 105241), jointly and severally.

Cross-Complainant Michael Pappas and counsel, Joe R. Abramson, Esq. (SBN 105241), are ordered, jointly and severally, to remit sanctions of $860 to Cross-Defendant Stallion, Inc. within 14 days of this order.