Judge: Cherol J. Nellon, Case: 23STCV14022, Date: 2024-03-07 Tentative Ruling

Case Number: 23STCV14022    Hearing Date: March 7, 2024    Dept: 14

CW Owner vs. Masitbi

Case Background

Plaintiff alleges that Defendants rented space from it in Michigan, but have failed to pay rent.

On June 16, 2023, Plaintiff filed its Complaint for (1) Breach of Contract and (2) Breach of Guaranty against Defendants Masitbi, LLC (“Masitbi”), Tarick Kamal Smaili aka Tarick Smiley (“Tarick”), Fathi Karkoukli (“Karkoukli”), Mike Smaili (“Mike”), M.A. Smaili aka Mike Smaili (“M.A.”), Jihad Smaili (“Jihad”), and DOES 1-20.

On August 30, 2023, Defendant Jihad filed his Answer.

On September 5, 2023, the defaults of Defendants Masitbi and Tarick were entered.

On January 9, 2024, the default of Defendant Karkoukli was entered.

            No trial date has yet been set.

Instant Motion

            Plaintiff now moves this court for an order compelling Defendant to provide further responses to its Form Interrogatories, Set No. One. Plaintiff also seeks sanctions of $5,461.25.

Decision

            The motion is DENIED as MOOT. The request for sanctions is DENIED.

Discussion

            Plaintiff served the Form Interrogatories on September 11, 2023. Defendant served responses on October 16, 2023.

            In the month of November, 2023, Plaintiff’s counsel sent two emails to Defense counsel about the responses. Receiving no response, Plaintiff filed the instant motion.

            The court held an Informal Discovery Conference on February 9, 2024. After the conference, counsel engaged in further discussions.

            On February 23, 2024, Defense counsel served supplemental responses concurrently with the opposition to this motion.

            In the Reply, Plaintiff urges this court to grant the motion because the initial responses were deficient and the supplemental responses contain some of the same asserted deficiencies. The court declines this invitation, for three reasons. First, Plaintiff failed to file the exhibits referenced in his moving papers, and this deficiency cannot be cured by attaching the evidence to the reply. Second, the court does not view two form emails, spaced out over several weeks, as a proper attempt to meet and confer. See Code of Civil Procedure §§ 2030.300(b) & 2016.040. Third, it is an idle act to compel further responses when further responses have already been provided. See Civil Code § 3532.

            With that said, the opposition speculates on how the court would have ruled if the motion were heard on its merits. While the court ordinarily would let such speculation pass, these particular comments seem to reveal a misunderstanding of the court’s comments at the IDC. A brief discussion is necessary to correct that issue and prevent the miscommunication from recurring.

            It is common practice to preface discovery responses with a “Preliminary Statement” and a series of “General Objections” which purport to apply to all the questions posed. This practice is, commonality notwithstanding, improper. No portion of the Discovery Act authorizes the use of Preliminary Statements or General Objections and (as Defense concedes) neither has any real effect. Applying the ancient rule of “no harm no foul,” Defense suggests that there is no reason to bother about these portions of their responses. But there is: they do not belong. 

            It is likewise common practice to begin each individual response with a series of objections, then close by offering a substantive answer “notwithstanding” and “consistent with” the objections. And this practice is likewise improper. The lawyer reading such responses has no way of telling whether or not any material is being withheld, and if so, based on which objection.

Where an objection results in the withholding of information, there should either be (a) no substantive response at all, or (b) the response should indicate what precisely is being withheld. Further, objections based on privilege or privacy should always be accompanied by a privilege log (see Code of Civil Procedure § 2031.240) so that counsel – and later the court, if necessary – can meaningfully evaluate the objection.

Given the deficiencies and misunderstandings on both sides, the imposition of sanctions under these circumstances would be unjust. Therefore, none are imposed.