Judge: Armen Tamzarian, Case: 21STCV27825, Date: 2024-07-31 Tentative Ruling

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Case Number: 21STCV27825    Hearing Date: July 31, 2024    Dept: 52

Defendants Steven Loeb and Rosen and Loeb’s Motions to Compel Plaintiff Victor Enright to Respond to (1) Requests for Production, (2) Form Interrogatories, and (3) Special Interrogatories

Requests for Production

Defendants Steven Loeb and Rosen and Loeb move to compel plaintiff Victor Enright to respond to requests for production, set one.  When a party fails to serve a timely response to requests for production, the requesting party may move for an order compelling responses.  (CCP § 2031.300(b).)  Failing to serve a timely response waives any objections.  (Id., subd. (a).)

Defendants served requests for production, set one, on plaintiff on March 14, 2023.  (Goldman Decl., ¶ 5, Ex. 1.)  Plaintiff had not served any response as of June 7, 2024, when defendants filed this motion.  (Id., ¶ 17.)  Plaintiff failed to serve a timely response to defendants’ requests for production.  Defendants are therefore entitled to an order compelling verified responses without objections.

Form and Special Interrogatories

Defendants Steven Loeb and Rosen and Loeb move to compel plaintiff Victor Enright to respond to form interrogatories – general, set one, and special interrogatories, set one.  When the responding party fails to serve a timely response to interrogatories, the propounding party may move for an order compelling responses.  (CCP § 2030.290(b).)  Failing to serve a timely response waives any objection to the interrogatories.  (Id., subd. (a).)

            Defendants served form interrogatories - general, set one and special interrogatories, set one, on plaintiff on March 14, 2023.  (Goldman Decls., ¶ 5, Ex. 1.)  Plaintiff had not served any response as of June 7, 2024, when defendants filed this motion.  (Id., ¶ 17.)  Plaintiff failed to serve a timely response to defendants’ form interrogatories and special interrogatories.  Defendants are therefore entitled to an order compelling verified responses without objections.

Pending Anti-SLAPP Motion

Plaintiff filed an objection to defendants’ motions to assert that all discovery proceedings are stayed under Code of Civil Procedure 425.16.  Section 425.16, subdivision (g) provides, “All discovery proceedings in the action shall be stayed upon the filing of a notice of” an anti-SLAPP motion. 

The stay does not apply to the discovery proceedings in the action between plaintiff and defendants.  The purpose of the anti-SLAPP statute and the discovery stay is “to protect defendants from having to expend resources defending against frivolous SLAPP suits unless and until a plaintiff establishes the viability of its claim by a prima facie showing.”  (Britts v. Superior Court (2006) 145 Cal.App.4th 1112, 1124.)  “The purpose of this [discovery] limitation is only to further the purposes of the special motion to strike, i.e., to minimize the costs and burdens of unmeritorious litigation directed at free speech rights.”  (Slauson Partnership v. Ochoa (2003) 112 Cal.App.4th 1005, 1021.)

Defendants/cross-complainants Steven Loeb and Rosen and Loeb filed a second amended cross-complaint against cross-defendants Richie Litigation, P.C. and DRE A.P.C.  Cross-defendants filed an anti-SLAPP motion to strike the second amended cross-complaint.  Plaintiff is not a party to the second amended cross-complaint.  “A complaint and a cross-complaint are, for most purposes, treated as independent actions.”  (Security Pacific National Bank v. Adamo (1983) 142 Cal.App.3d 492, 496.)  “Where there are both a complaint and a cross-complaint there are actually two separate actions pending and the issues joined on the cross-complaint are completely severable from the issues under the original complaint and answer.”  (Ibid.) 

Here, the anti-SLAPP procedure’s purpose is to protect cross-defendants from the expense of defending against the second amended cross-complaint.  The anti-SLAPP motion does not involve plaintiff.  The subject discovery between plaintiff and defendants/cross-complainants does not involve the cross-defendants who filed an anti-SLAPP motion.  Cross-defendants represent plaintiff as his attorneys, but they are not parties to the action between plaintiff and defendants.  Staying the subject discovery would not protect cross-defendants in their capacity as parties defending against the second amended cross-complaint.  This discovery would remain outstanding even if cross-defendants succeeded in striking the entire second amended cross-complaint without leave to amend. 

In these circumstances, “the action” in which all discovery proceedings are stayed (CCP § 425.16(g)) means the second amended cross-complaint.  The term “the action” does not include plaintiff’s first amended complaint, which is considered a separate and independent action. 

Sanctions      

In each motion, defendants move for monetary sanctions against plaintiff and his counsel.  Plaintiff acted with substantial justification based on the position that Code of Civil Procedure 425.16(g) stayed this discovery.  Though the court rejects that argument, it was reasonable.  The court therefore will not impose monetary sanctions.

Disposition 

Defendants Steven Loeb and Rosen and Loeb’s motion to compel responses to requests for production is granted.  Plaintiff Victor Enright is ordered to serve verified responses to requests for production, set one, without objections within 30 days.  Plaintiff is further ordered to produce all responsive documents concurrently with the written responses. 

Defendants Steven Loeb and Rosen and Loeb’s motion to compel responses to form interrogatories is granted.  Plaintiff Victor Enright is ordered to serve verified responses to form interrogatories – general, set one, without objections within 30 days. 

Defendants Steven Loeb and Rosen and Loeb’s motion to compel responses to special interrogatories is granted.  Plaintiff Victor Enright is ordered to serve verified responses to special interrogatories, set one, without objections within 30 days.