Judge: Curtis A. Kin, Case: 21STCV44342, Date: 2023-03-09 Tentative Ruling
Case Number: 21STCV44342 Hearing Date: March 9, 2023 Dept: 72
MOTIONS TO COMPEL FURTHER RESPONSES TO:
(1) FORM INTERROGATORIES, SET ONE;
(2) SPECIAL INTERROGATORIES, SET ONE; AND
(3) REQUESTS FOR PRODUCTION, SET ONE
Date: 3/9/23
(8:30 AM)
Case: Oleg Volkov v. John Lynn et
al. (21STCV44342)
TENTATIVE RULING:
Defendant Wallin & Klarich’s
Motion to Compel Further Responses to Form Interrogatories, Set One is GRANTED.
Defendant Wallin & Klarich’s
Motion to Compel Further Responses to Special Interrogatories, Set One is GRANTED.
Defendant Wallin & Klarich’s
Motion to Compel Further Responses to Requests for Production, Set One is
GRANTED.
Defendant’s requests to take
judicial notice are DENIED as “unnecessary to the resolution” of the issues
before the Court. (Martinez v. San Diego County Credit Union (2020) 50
Cal.App.5th 1048, 1075.)
In the instant three motions, defendant Wallin & Klarich
moves to compel further responses from plaintiff Oleg Volkov to: (1) Form
Interrogatories, Set One, Nos. 6.3-6.7, 8.4-8.8, 9.1, 9.2, 10.1, 10.3, 11.1,
11.2, 12.1-12.4, 12.6, 13.1, and 13.2; (2) Special Interrogatories, Set One,
Nos. 14, 16, and 18; and (3) Requests for Production, Set One, Nos. 1-24.
Plaintiff maintains that he was never electronically served
with the subject discovery.
No statute or rule states that mail service is not
effective. Moreover, the Rules of Court require self-represented parties to be
served by non-electronic methods unless the party affirmatively consents to
electronic service. (Rule of Court 2.251(c)(3)(B).) Plaintiff did not request
electronic service until April 20, 2022, after defendant served plaintiff with
the subject discovery. (Cf. Volkov Decl. ¶ 2 with Scott Decls. ¶¶ 2
& Exs. 1 [service date of April 19, 2022].) In any event, plaintiff served
verified responses to the subject discovery on August 1, 2022. (Scott Decls. ¶¶
6 & Exs. 4.) Defendant is entitled to move to compel further responses
based on these responses.
Plaintiff also contends that the instant motions were
untimely served. Notwithstanding any previously agreed upon extension or
purported conditions to such extensions, on December 1, 2022, plaintiff agreed
to extend defendant’s time to file motions to compel to December 16, 2022.
(Scott Decls. ¶¶ 14 & Ex. 12; CCP §§ 2030.300(c), 2031.310(c) [allowing
parties to agree “in writing” to “specific later date” for propounding party to
file motion to compel further response].) The motions were timely filed on
December 16, 2022.
“[I]f a timely motion to compel has been filed, the burden
is on responding party to justify any objection.” (Fairmont Ins. Co. v.
Superior Court (2000) 22 Cal.4th
245, 255, citing Coy v. Superior Court (1962) 58 Cal.2d 210, 220-21.)
With respect to the Form Interrogatories, plaintiff objected
on the ground that the term “INCIDENT” is vague and ambiguous. Defendant
clearly defined the term “INCIDENT” to mean “[t]he legal representation
provided to you by Wallin & Klarich, a Law Corporation John Lynn, and Paul
Wallin, and the claims of malpractice asserted by you.” (Scott Decl. ¶ 2 &
Ex. 1 at Sec. 4(a)(2).) With respect to plaintiff’s contention that the form
interrogatories are not tailored for malpractice complaints, even if “the
question is somewhat ambiguous, but the nature of the information sought is
apparent, the proper solution is to provide an appropriate response.” (Deyo
v. Kilbourne (1978) 84 Cal.App.3d 771, 783.) “If an interrogatory cannot be
answered completely, it shall be answered to the extent possible.” (CCP §
2030.220(b).)
With respect to Form Interrogatory Nos. 8.7 and 8.8,
pertaining to plaintiff’s contentions regarding lost income, and Form
Interrogatory No. 9.2, seeking the identification of documents supporting any
item of damages, plaintiff asserted the attorney-client privilege. “The
attorney-client privilege attaches to a confidential communication between the
attorney and the client and bars discovery of the communication irrespective of
whether it includes unprivileged material.” (Costco Wholesale Corp. v.
Superior Court (2009) 47 Cal.4th 725, 734.) Form Interrogatory Nos. 8.7,
8.8, and 9.2 do not seek any communications between plaintiff and his clients.
Further responses to Form Interrogatories, Set One, Nos.
6.3-6.7, 8.4-8.8, 9.1, 9.2, 10.1, 10.3, 11.1, 11.2, 12.1-12.4, 12.6, 13.1, and
13.2 are required.
With respect to Special Interrogatories, Special
Interrogatory Nos. 14, 16, and 18 ask plaintiff to identify all damages he
contends that he sustained as a proximate result of conduct attributable to
defendants Wallin & Klarich, John Lynn, and Paul Wallin. Defendant defined
“IDENTIFY” such that plaintiff was required to “state with specificity the type
of damage allegedly sustained and the corresponding dollar value of each
alleged item.” Plaintiff does not dispute that he failed to identify the dollar
value of his purported damages. Rather, plaintiff contends that the requested
information is protected by the attorney-client privilege. Like Form
Interrogatory Nos. 8.7, 8.8, and 9.2, Special Interrogatory Nos. 14, 16, and 18
do not seek any communications between plaintiff and his clients, only an
identification of damages.
Further responses to Special Interrogatories, Set One, Nos.
14, 16, and 18 are required.
With respect to the Requests for Production, plaintiff
maintains that defendant did not specify the location and date when documents
must be produced, as required by CCP § 2031.030(c). However, the requests
provided that responses shall be served within 30 days of the date of service
and that “[c]ompliance with this request may be made by submitting photocopies
of all documents and photographic duplicates of all photographs to the
undersigned….” (Scott Decl. ¶ 2 & Ex. 1 at 2:1-7.) Plaintiff’s
response that “[s]ome documents will be produced without any waiver of the objections”
does not comply with CCP § 2031.220, because plaintiff does not indicate that “all
documents or things in the demanded category that are in the possession,
custody, or control of that party and to which no objection is being made will
be included in the production.” Plaintiff’s non-code-compliant phrasing leaves
open the possibility that he is withholding other documents for which he does
not have any objection. For those documents that plaintiff withheld based on an
objection, plaintiff is required to identify such documents with particularity
and set forth the objection clearly. (CCP § 2031.240(b)(1).)
With respect to plaintiff’s contention that it is unclear
how a law firm can send correspondence, corporate entities act through individuals,
such as its employees and agents. (Janken v. GM Hughes Electronics
(1996) 46 Cal.App.4th 55, 77 [“A corporation can act only through its
individual employees”].) “A party may not deliberately misconstrue a question
for the purpose of supplying an evasive answer.” (Deyo, 84 Cal.App.3d at
783.)
Plaintiff is also required to serve a privilege log with
respect to those documents for which he asserts privilege. (See Catalina
Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, 1130,
citing CCP § 2031.240(b), (c) and Wellpoint Health Networks, Inc. v.
Superior Court (1997) 59 Cal.App.4th 110, 130 [requirements for privilege
log].) If plaintiff wishes to withdraw objections based on the attorney-client privilege
to any document requests, then plaintiff may serve verified supplemental
responses with the objections withdrawn and produce documents that were
withheld based on privilege.
Further responses to Requests for Production, Set One, Nos.
1-24 are required.
The motions are GRANTED. No later than fifteen (15) days
hereof, plaintiff Oleg Volkov shall serve further verified responses, without
objection, to Form Interrogatories, Set One, Nos. 6.3-6.7, 8.4-8.8, 9.1, 9.2,
10.1, 10.3, 11.1, 11.2, 12.1-12.4, 12.6, 13.1, and 13.2; Special
Interrogatories, Set One, Nos. 14, 16, and 18; and Requests for Production, Set
One, Nos. 1-24.
For failing to comply with discovery obligations, thereby
forcing defendant to file these three motions, the Court imposes monetary
sanctions against plaintiff Oleg Volkov as follows:
·
$1,385 for Form Interrogatories, Set One, based
on 4 hours preparing the motion and 1.3 hours reviewing the opposition and
preparing the reply (instead of the total 7 hours claimed), at an hourly rate
of $250, plus $60 for the filing fee
·
$935 for Special Interrogatories, Set One, based
on 2.5 hours preparing the motion and 1 hour reviewing the opposition and
preparing the reply (instead of the total 6 hours claimed), at an hourly rate
of $250, plus $60 for the filing fee
·
$1,935 for Requests for Production, Set One, based
on 6 hours preparing the motion and 1.5 hours reviewing the opposition and
preparing the reply (instead of the total 10 hours claimed), at an hourly rate
of $250, plus $60 for the filing fee
Such monetary sanctions in the total amount of $4,255
shall be paid to counsel for defendant Wallin & Klarich within thirty (30)
days hereof.