Judge Ashfaq G. Chowdhury, Case Number: 23GDCV01513, Date: 2024-11-22 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 23GDCV01513, Date: 2024-11-22 Tentative Ruling

Case Number: 23GDCV01513 Hearing Date: November 22, 2024 Dept: E

Hearing Date: 11/22/2024 – 8:30am
Case No: 23GDCV01513
Trial Date: UNSET
Case Name: STEARNS BANK, National Association, v. CALIFORNIA SURGICAL MULTI-SPECIALTY GROUP, INC., a California corporation; GEVORG MUTAFYAN, an individual; DOES 1-100 inclusive

4 TENTATIVE RULINGS

BACKGROUND
Plaintiff, Stearns Bank, National Association, filed a Complaint on 7/18/2023 against Defendants California Surgical Multi-Specialty Group, Inc. and Gevorg Mutafyan.

The first cause of action for breach of written agreement is alleged against Defendant California Surgical Multi-Specialty Group, Inc.

The second cause of action for breach of personal guaranty is alleged against Defendant Gevorg Mutafyan.

The third cause of action for account stated is alleged against both Defendants.

Plaintiff alleges that on or about July 25, 2018, Defendant California Surgical Multi-Specialty Group, Inc. (California Surgical) entered into a written agreement whereby Plaintiff agreed to lease equipment to Defendant. (See Compl. ¶ 5.) Plaintiff alleges that on or about April 28, 2020, Defendant breached the terms of the agreement by failing to make the monthly payment required thereunder. (See Compl. ¶ 7.) Plaintiff alleges that Defendant Gevorg Mutafyan (Mutafyan) executed a personal guaranty of all the obligations under the agreement in favor of Plaintiff. (See Compl. ¶ 14.)

PRELIMINARY
The instant hearing involves four motions to compel further responses.

As to all four motions, Movant is Defendant, California Surgical Multi-Specialty Group Inc. (California Surgical or Defendant or Movant).

Motion 1 ends in Res ID 8961.

Motion 1 moves for: “(1) an order compelling further responses from Plaintiff, STEARNS BANK, National Association to Defendants' Form Interrogatories, Set One to DefendanSet One, pursuant to Code of Civil Procedure section 2030.300 and (2) an award of monetary sanctions[.]” (Def. Mot. 1, p. 1.)

Motion 2 ends in Res ID 2153.

Motion 2 moves for: “(1) an order compelling further responses from Plaintiff STEARNS BANK NATIONAL (“Stearns Bank”) to Defendants’ Request for Admissions, Set One, pursuant to Code of Civil Procedure section 2033.290 and (2) an award of monetary sanctions.” (Def. Mot. 2, p.1)

Motion 3 ends in Res ID 5152.

Motion 3 moves for: “(1) an order compelling further responses from Plaintiff STEARNS BANK NATIONAL (“Stearns Bank”) to Defendants’ Special Interrogatories, Set One, pursuant to Code of Civil Procedure section 2030.300 and (2) an award of monetary sanctions.” (Def. Mot. 3, p. 1.)

Motion 4 ends in Res ID 6136.

Motion 4 moves for: “(1) an order compelling further responses from Plaintiff STEARNS BANK NATIONAL (“Stearns Bank”) to Defendants’ Request for Admissions, Set One, pursuant to Code of Civil Procedure section 2031.310 and (2) an award of monetary sanctions.” (Def. Mot. 4, p. 1.)

[The Court notes that the relief requested in Motion 4 appears to be a typographical error. Although the relief requested pertains to RFAs, Set One, the caption in Motion 4 refers to compelling further responses to RFPs, Set One. This further appears to be confirmed by Defendant’s separate statement in support of Motion 4. Therefore, the Court will proceed with Motion 4 under the assumption it pertains to Defendant compelling further responses to RFPs, Set One. ]

[The Court also notes how the relief requested in the first paragraph of all of Defendant’s motions referred to “Defendants’.” The Court notes that it presumes the reference to multiple Defendants in the first paragraph of each motion is a typographical error. The Court assumes this because Movant is a singular Defendant – California Surgical – as noted in the caption. Therefore, all of these rulings only pertain to one Defendant – California Surgical. If Movant is under a different impression, Movant is incorrect. Or to phrase it differently, if the other Defendant, Mutafyan, wants to compel further responses to Mutafyan’s discovery, Mutafyan has to file his own motions. Movant did not attach the instant discovery that was allegedly propounded for each motion; therefore, the Court is not able to see if the discovery was propounded as a single set for each motion by one defendant or multiple defendants. Since the captions refer to just Defendant California Surgical, this Court assumes that moving Defendant is only Defendant California Surgical.]

Papers
For all four motions, the moving papers included a motion, a separate statement, and a Vernon Nelson Declaration.

In Opposition, Plaintiff submitted a combined, singular Opposition for all four motions. [Plaintiff did not submit a Separate Statement for any of its motions.]

In Reply, Defendant submitted a combined, singular Reply and a combined, singular Reply declaration for all four motions.

PROCEDURAL
45-Day Requirement

“Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories.” (CCP §2030.300(c).)

All four motion have a 45-day requirement. (See CCP § 2030.300(c) for interrogatories, 2033.290(c) for RFAs, and 2031.310(c) for RFPs.)

Here, the Court is unable to tell if Movant met the 45-day requirement for all motions.

On the one hand, it appears as if Movant did not meet the 45-day requirement because Movant states that Plaintiff provided responses on February 23, 2024. Movant states that Plaintiff granted a 30-day extension for Movant to file a motion to compel further responses.

Notice for these motions does not appear as if it was given until, at the earliest, September 6, 2024.

When notice was actual received for these motions is disputed because Opposition says that it was not made aware of Defendant’s four motions until October 14, 2024 at the Case Management Conference and that at the CMC the Court ordered Defendant’s counsel to serve Plaintiff by email that day.

In Reply, Defendant argues it did in fact properly serve Plaintiff because it used the service address that Plaintiff’s counsel lists on eCourt.

Either way, the Court notes that even if it views the September 6, 2024 date as the date of notice [the date earliest and most favorable to Movant], the Court fails to see how these motions are timely when Defendant conceded that Plaintiff provided a 30-day extension from when responses were provided on February 23, 2024. Serving these motions on September 6, 2024 would not be within 45 days of the responses provided on February 23, 2024, nor would these motions be timely based on the 30-day extension from February 23, 2024.

On the other hand, the code section pertaining to the 45-day time frame refers to when “verified” responses were served.

Here, Movant did not provide the actual initial response production, nor did Plaintiff. Therefore, it is unclear if the initial responses were verified.

Since Plaintiff did not oppose these motions on grounds of being untimely, the Court finds these motions timely.

Meet and Confer
“A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040.” (CCP §2030.300(b)(1).)

All four motions have a meet and confer requirement. (See 2030.300(b)(1) for interrogatories, 2031.310(b)(2) for RFPs, and 2033.290(b)(1) for RFAs.)

Here, the parties met and conferred. (See Nelson Decl. ¶ 4 and Oppo. p. 2-3..)

LEGAL STANDARD - COMPEL FURTHER RESPONSES TO INTERROGATORIES
Under CCP § 2017.010, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action..., if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” The Section specifically provides that “[d]iscovery may relate to the claim or defense of the party seeking discovery or of any other party to the action,” and that discovery “may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition and location of any document, electronically stored information, tangible thing, or land or other property.”

On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that 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.

(3) An objection to an interrogatory is without merit or too general.

(CCP § 2030.300(a).)

If a timely motion to compel has been filed, the¿burden is on the responding party¿to justify any objection or failure fully to answer.¿(Coy v. Superior Court of Contra Costa County (1962) 58 Cal.2d 210, 220–221 [addressing a motion to compel further responses to interrogatories]; see also¿Fairmont Ins. Co. v. Superior Court¿(2000) 22 Cal.4th 245, 255.)

“While the party propounding interrogatories may have the burden of filing a motion to compel if it finds the answers it receives unsatisfactory, the burden of justifying any objection and failure to respond remains at all times with the party resisting an interrogatory.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 541 citing Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221.)

Furthermore, to the extent there is any doubt in whether these records should be discoverable, California’s liberal approach to discovery provides that doubt should be resolved in favor of permitting discovery. (Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 173.)

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.

(3) An objection to the particular interrogatory.

(CCP § 2030.210(a).)

LEGAL STANDARD – COMPEL FURTHER – REQUESTS FOR PRODUCTION

CCP § 2031.310(a) provides that a party demanding a document inspection may move for an order compelling further responses to the demand if the demanding party deems that:

“(1) A statement of compliance with the demand is incomplete.

(2) A representation of inability to comply is inadequate, incomplete, or evasive.

(3) An objection in the response is without merit or too general.”

Under CCP § 2031.310 (b)(1), “The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand.”

“In the more specific context of a demand for production of a tangible thing, the party who asks the trial court to compel production must show “good cause” for the request—but unless there is a legitimate privilege issue or claim of attorney work product, that burden is met simply by a fact-specific showing of relevance.” (TBG Ins. Services Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 448.)

LEGAL STANDARD – COMPEL FURTHER – RFAs

CCP § 2033.290(a) provides that on receipt of a response to requests for admissions, the party requesting admissions may move for an order compelling a further response if that party deems that either or both of the following apply:

(1) An answer to a particular request is evasive or incomplete.

(2) An objection to a particular request is without merit or too general.

(CCP § 2033.290(a).)

ANALYSIS
Overall, both moving and opposing papers at many times are unhelpful to the Court.

For example, Defendant’s Separate Statements for Motion 1 (FROGs) and Motion 2 (RFAs) don’t comply with CRC, Rule 3.1345(c)(5). “If the response to a particular discovery request is dependent on the response given to another discovery request, or if the reasons a further response to a particular discovery request is deemed necessary are based on the response to some other discovery request, the other request and the response to it must be set forth[.]” (CRC, Rule 3.1345(c)(5).)

As to Plaintiff’s Opposition, it is largely nonresponsive to Defendant’s motions and at many times misstates the law.

Plaintiff misstates the law by arguing that Defendant failed to show good cause as to compelling further responses for RFAs, SROGs, and FROGs. As seen above in the three legal standards that this Court cited, RFPs would be the only motion that Movant has to demonstrate good cause on.

Further, Plaintiff argues it provided supplemental responses, but Plaintiff is almost never clear as to which motions and which specific numbers that Plaintiff provided supplemental responses to.

Therefore, this Court was left to search the discovery responses that Plaintiff provided in Opposition to find out which responses Plaintiff provided further supplemental responses to.

As to Motion 1 (FROGs, Set One) it appears as if Defendant only moved to compel further responses as to FROG 17.1, and it appears that Plaintiff provided a supplemental response to FROG 17.1 on November 7, 2024. Therefore, as to compelling further responses to FROG 17.1, Defendant’s Motion 1 is denied as moot with respect to compelling a further responses in light of the supplemental response. However, Motion 1 is not denied with respect to sanctions because Plaintiff did not provide the supplemental response until November 7, 2024, which was the date Plaintiff filed its Opposition.

As to Motion 2, Defendant moved to compel further responses to RFAs 5, 6, and 10, and it appears that Plaintiff provided amended/supplemental responses to these RFAs on November 7, 2024. Therefore, as to compelling further responses to RFAs 5, 6, and 10, Defendant’s motion is denied as moot with respect to compelling a further response in light of the amended/supplemental responses. However, Motion 2 is not denied with respect to sanctions because Plaintiff did not provide the amended/supplemental responses until November 7, 2024, which was the date Plaintiff filed its Opposition.

As to Motion 3, according to Defendant’s Separate Statement, Defendant moved to compel further responses to SROGs 1-9, 11-21, and 28. As to the SROGs at issue in Defendant’s Separate Statement, Plaintiff provided supplemental responses to SROGs 1-5, 7, 11-21, and 28. Therefore, as to Defendant’s Motion 3 to compel further responses to SROGs 1-5, 7, 11-21, and 28, Defendant’s motion is denied as moot with respect to compelling further responses in light of the supplemental responses. However, Motion 3 is not denied as moot with respect to sanctions because Plaintiff did not provide the supplemental responses until November 7, 2024, which was the date Plaintiff filed its Opposition.

Further as to Motion 3, Plaintiff did not provide supplemental responses to 6, 8, and 9.

Not only did Plaintiff not provide supplemental responses to SROGs 6, 8, and 9, but Plaintiff’s Opposition did not address SROGs 6, 8, and 9.

Since Plaintiff did not make any arguments to justify its objections to SROGs 6, 8, and 9, Defendant’s Motion 3 to compel further responses to SROGs 6, 8, and 9 is GRANTED.

As to Motion 4, Defendant moved to compel further responses to RFPs 1-24, and it appears that Plaintiff provided supplemental responses to these RFPs on November 7, 2024. Therefore, as to compelling further responses to RFPs 1-24, Defendant’s Motion 4 is denied as moot with respect to compelling a further response in light of the supplemental responses. However, Motion 4 is not denied with respect to sanctions because Plaintiff did not provide the supplemental responses until November 7, 2024, which was the date Plaintiff filed its Opposition.

Supplemental Responses
To the extent that Plaintiff’s Opposition and Defendant’s Reply argue about whether or not the supplemental responses were code-compliant, the Court notes that those issues are not before this Court. The Court is not going to examine supplemental responses that were provided after the filing of this motion that were not put in issue with the moving papers.

Further, the Reply seems to argue that these motions would serve no purpose if this Court doesn’t examine the supplemental responses because Plaintiff could just keep serving supplemental responses.

The Court does not find the Reply’s argument availing because the Court can rule that the motions are not moot as to sanctions, and sanctions can be imposed even though Plaintiff provided supplemental responses.

The Reply also seems to argue that the Court should continue these hearings so Defendant can review the supplemental responses and file a supplemental brief.

The Court does not find this argument availing because then the issue would arise as to whether Plaintiff can respond to Defendant’s supplemental brief. Plaintiff may argue that the supplemental brief is technically the moving papers, and that Plaintiff is entitled to an opposition to the supplemental brief. Further, Defendant could potentially argue that the supplemental brief is technically the new moving papers, and Defendant is thus also entitled to a new Reply.

The Court will not go down this rabbit hole, and it prefers clarity as to precisely which discovery is at issue before the Court. If Defendant has an issue with the supplemental responses, Defendant can follow the applicable code sections to compel further responses to the supplemental responses.

TENTATIVE RULING ALL FOUR MOTIONS
Defendant’s Motion 1 is denied as moot with respect to compelling further responses due to Plaintiff’s supplemental response; however, since the supplemental response was not provided until Plaintiff provided its Opposition, Motion 1 is not moot with respect to sanctions.

Defendant’s Motion 2 is denied as moot with respect to compelling further responses due to Plaintiff’s supplemental responses; however, since the supplemental responses were not provided until Plaintiff provided its Opposition, Motion 2 is not moot with respect to sanctions.

Further, as to Motion 3, Plaintiff did not provide supplemental responses to 6, 8, and 9.

Not only did Plaintiff not provide supplemental responses to SROGs 6, 8, and 9, but Plaintiff’s Opposition did not address SROGs 6, 8, and 9.

Since Plaintiff did not make any arguments to justify its objections to SROGs 6, 8, and 9, Defendant’s Motion 3 to compel further responses to SROGs 6, 8, and 9 is GRANTED.

Defendant’s Motion 4 is denied as moot with respect to compelling further responses due to Plaintiff’s supplemental responses; however, since the supplemental responses were not provided until Plaintiff provided its Opposition, Motion 4 is not moot with respect to sanctions.

TENTATIVE RULING SANCTIONS ALL FOUR MOTIONS
“The court shall 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 a further response to interrogatories, 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.” (CCP § 2030.300(d).)

Except as provided in subdivision (j), the court shall 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. (CCP § 2031.310(h).)

“The court shall 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, 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.” (CCP § 2033.290(d).)

“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).)

As to Motion 1, Defendant requests sanctions in the amount of $2,100.00. Defendant’s counsel (Vernon Nelson) alleges he incurred $2,100.00 based on spending 4.2 hours on the motion at an hourly rate of $500/hour. (See Nelson Decl. ¶6, Mot. 1.)

As to Motion 2, Defendant requests sanctions in the amount of $1,800.00. Vernon alleges he incurred $1,800.00 based on spending 3.6 hours on the motion at an hourly rate of $500/hour. (See Nelson Decl. ¶ 6, Mot. 2.)

As to Motion 3, Defendant requests sanctions in the amount of $2,400.00. Vernon alleges he incurred $2,400.00 based on spending 4.8 hours on the motion at an hourly rate of $500/hour. (See Nelson Decl. ¶ 6, Mot. 3.)

As to Motion 4, Defendant requests sanctions in the amount of $3,200.00. Vernon alleges he incurred $3,200.00 based on spending 6.4 hours on the motion at an hourly rate of $500/hour. (See Nelson Decl. ¶ 6, Mot. 4.)

The Court will hear argument as to sanctions.

Generally speaking, the Court tentatively plans to grant sanctions in favor of Defendant because Plaintiff’s argument that it acted with substantial justification does not appear to be convincing.

Plaintiff concedes that the parties met and conferred several times, and Plaintiff argues, “Unfortunately, Defendants’ counsel was not willing to change its stance on any of the discovery issues they raised.” (Oppo. p. 7.)

Plaintiff attempting to place the blame on Defendant by stating that Defendant wouldn’t change its stance isn’t convincing because Plaintiff then goes on to admit that after the October 14, 2024 Case Management Conference, the parties engaged in a meet and confer, and Plaintiff agreed to provide supplemental responses to most of the discovery requests.

Further, the Court notes that Plaintiff didn’t provide supplemental responses until Plaintiff filed its Opposition on November 7, 2024.