Judge Ashfaq G. Chowdhury, Case Number: 23GDCV01569, Date: 2024-11-06 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 23GDCV01569, Date: 2024-11-06 Tentative Ruling

Case Number: 23GDCV01569 Hearing Date: November 6, 2024 Dept: E

Hearing Date: 11/6/2024 – 8:30am
Case No: 23GDCV01569
Trial Date: UNSET
Case Name: OSHEIN KHACHIKIAN, an individual, v. LA CCS, INC., a California corporation; A. ERLICH ARCHITECT, a California corporation; DOES 1-10 inclusive

2 MOTIONS-COMPEL FURTHER RESPONSES

BACKGROUND
Plaintiff, Oshein Khachikian, filed the instant action on 07/25/2023. The first cause of action for breach of contract is alleged against Defendant, LA CCS, Inc. The second cause of action for negligence is alleged against both Defendants, LA CCS, Inc., and A. Erlich Architect.

MOTION 1 – Res ID 4687

RELIEF REQUESTED
“Defendant A. ERLICH ARCHITECT (hereinafter “AEA”) will seek an Order from this Court compelling further responses of Plaintiff OSHEIN KHACHIKIAN (hereinafter “Plaintiff”) to AEA’s Requests for Production of Documents, Set One.

AEA further moves this Court for an Order sanctioning Plaintiff and his counsel of record, jointly and severally, in the amount of $1,170.00.

This Motion is made pursuant to California Code. Civ. Proc. section 2031.310, and will be based upon this Notice of Motion, the attached Memorandum of Points and Authorities, the attached Declaration of Zachary Law, the Separate Statement, the entire court file in this action, and upon such oral and documentary evidence as may be presented at the hearing of the Motion.”

(Def. Mot. p. 1-2.)

Preliminary Procedural Analysis

Moving Party: Defendant, A. Erlich Architect

Responding Party: Plaintiff, Oshein Khachikian

Proof of Service Timely Filed (CRC Rule 3.1300): Ok
16/21 Court Days Lapsed (CCP § 1005(b)): Ok
Proper Address (CCP § 1013, § 1013a, § 1013b): Ok

Moving Papers: Notice/Motion; Separate Statement

Opposition Papers: Opposition

Reply Papers: Reply

LEGAL STANDARD – COMPEL FURTHER – REQUESTS FOR PRODUCTION

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.”

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.”

(CCP § 2031.310(a).)

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.)

PROCEDURAL ANALYSIS

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 demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand. (CCP § 2031.310(c).)

Here, the instant motion is timely. Movant’s counsel explains that Plaintiff’s counsel granted an extension to file this motion until September 30, 2024, and this motion was filed on September 30, 2024.

Meet and Confer
“The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (CCP § 2031.310(b)(2).)

Here, Defendant’s counsel met and conferred. (See Law Decl. ¶ 5.)

TENTATIVE RULING MOTION 1 – Res ID 4687
Defendant, A. Erlich Architect (AEA) moves to compel further responses from Plaintiff Oshein Khachikian to AEA’s Request for Production of Documents, Set One.

The Separate Statement is confusing, as it is unclear which RFPs Defendant seeks to compel further responses to.

Plaintiff’s Opposition points out this confusion by explaining that Defendant’s motion actually pertains to RFPs 4, 6, and 20 despite the misnumbering in Defendant’s Separate Statement.

Plaintiff’s Opposition also argues that this motion should be denied because Plaintiff provided supplemental responses after the filing of the motion, but before the instant hearing.

Plaintiff’s Opposition states that Plaintiff was forced to spend at least double the amount of time preparing supplemental responses to the requests trying to determine what RFPs Defendant was seeking supplemental responses to.

In Reply, although Defendant does not explicitly state so, Defendant appears to concede that this motion is moot as to compelling further responses based on Plaintiff providing supplemental responses. Defendant appears to concede this as moot with respect to compelling further responses because Defendant argues that Plaintiff should still be required to pay monetary sanctions despite amending responses because Defendant had to bring this motion to invoke Plaintiff to amend discovery responses.

Here, the Court DENIES this motion as moot with respect to compelling further responses; however, the Court does not find this motion moot as to sanctions.

Sanctions

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 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).)

Defendant moves for sanctions against Plaintiff and his counsel of record, jointly and severally, in the amount of $1,170.00.

Defendant argues it had to file this motion because Plaintiff’s counsel did not respond to Defendant’s counsel’s multiple attempts to meet and confer.

Defendant’s counsel calculates its sanctions request as follows: (1) Hourly rate of $195; (2) three hours preparing all the moving papers; and (3) another three hours for the reply and appearing at the hearing. (See Law Decl. ¶ 7.)

Plaintiff argues that sanctions are not warranted because Defendant had possession, custody, and control all along of the very same documented communications related to the architectural drawings and engineering calculations that Defendant is requesting from Plaintiff.

In Reply, Defendant argues that without asking for documents relevant to the issues at hand, Defendant was unable to know if the information and documents it had was the whole universe of information.

Here, the Court will hear argument. It appears as if Defendant should be awarded sanctions because Defendant was forced to file this motion. As Defendant explained, it was forced to file this motion because Plaintiff failed to meet and confer despite several attempts by Defendant to meet and confer with Plaintiff. Plaintiff’s Opposition did not address the fact that Plaintiff failed to meet and confer, and instead focused on the fact that it took Plaintiff longer than it should have to figure out what responses needed supplemental responses due to Defendant’s misnumbering of RFPs in the separate statement. Defendant requested three (3) hours of time for the reply and appearing at the hearing, but the Court notes that this may appear to be excessive considering the fact that the Reply is only three (3) pages. The Reply essentially conceded that the motion was moot as to compelling further responses, but not moot as to sanctions.

TENTATIVE RULING MOTION 2

Defendant, A. Erlich Architect (AEA), moves to compel further responses from Plaintiff, Oshein Khachikian, to Form Interrogatories, Set One, and Special Interrogatories, Set One, propounded by AEA. Defendant also seeks sanctions against Plaintiff and his counsel of record, jointly and severally, in the amount of $1,170.00.

Generally speaking, the Court notes that the preliminary procedural analysis, procedural analysis, and the analysis explained in Tentative Ruling Motion 1 is the same as it is here for Motion 2.

Or to phrase it differently, Defendant sought to compel further responses, and Plaintiff provided supplemental responses.

Therefore, this motion is DENIED as moot as to compelling further responses to Form Interrogatories, Set One, and Special Interrogatories, Set One. However, this motion is not moot as to sanctions.

However, the Court needs Defendant to address the following issues explained below at the hearing.

First, the instant motion did not contain a CRS #/reservation ID on eCourt. In fact, in Defendant’s motion, it used the same exact reservation ID as it used for the motion to compel further regarding RFPs. This is improper.

Second, not only did Defendant not have its own reservation ID for this motion, but this motion improperly combined two motions into one motion. Defendant combined compelling further response to SROGs and FROGs in the instant motion, which is improper.

A motion must be brought separately as to each discovery method at issue. The instant motion should have been filed as two separate motions and two filing fees paid. Instead, Defendant filed only one motion to compel further responses to two different discovery instruments: form interrogatories and special interrogatories. “[P]ayment of filing fees is both mandatory and jurisdictional.” (Hu vs. Silgan Containers Corp. (1999) 70 Cal. App. 4^th 1261, 1269.)

Therefore, it appears that Defendant still has to pay two filing fees for the instant two motions because Defendant didn’t get a Res ID for this motion, and because this motion should have been two motions, not one.

Sanctions

“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).)

Defendant moves for sanctions against Plaintiff and his counsel of record, jointly and severally, in the amount of $1,170.00.

Defendant argues it had to file this motion because Plaintiff’s counsel did not respond to Defendant’s counsel’s multiple attempts to meet and confer.

Plaintiff’s counsel argues that sanctions aren’t warranted because none of the information Defendant seeks is new information.

In Reply, Defendant argues that sanctions are warranted for Plaintiff failing to meet and confer.

The Court will hear argument. Defendant appears to be entitled to sanctions. Plaintiff’s argument in Opposition doesn’t make sense. Plaintiff argues sanctions aren’t warranted because Defendant was aware of issues with respect to permitting and the plans drawn up and provided by Defendant to the Plaintiff.

The Court notes that Plaintiff’s arguments makes zero sense to the Court. The Court has no idea what Plaintiff is talking about, nor does Plaintiff attempt to give context to whatever Plaintiff is trying to say.

Ultimately, the Court fails to understand how Plaintiff’s argument is relevant to how Defendant is entitled to code-compliant discovery responses.

Further, Plaintiff ignores that Plaintiff did not meet and confer even though Defendant attempted on several occasions to meet and confer with Plaintiff.

However, the Court does note that Defendant should be prepared to discuss its sanctions request because Defendant’s motion was improperly combined into one motion when it should have been two. Therefore, if the Court is to grant sanctions, it notes how this motion does not separate its sanctions request with respect to how much time Defendant took on each individual motion because Defendant combined everything into one motion here and sought sanctions based on the combination of the two motions.