Judge: Daniel S. Murphy, Case: 22STCV05663, Date: 2022-10-19 Tentative Ruling

Case Number: 22STCV05663    Hearing Date: October 19, 2022    Dept: 32

BACKGROUND

            On February 15, 2022, Plaintiff Jorge Luis Ramos filed this legal malpractice action against Defendants Bradley S. Wallace, Alon M. Aliav, The Wallce Firm, PC, Elie I. Aghabi, Douglas C. Pease, Gregory Mohrman, Meghry Garabedian, and Aghabi Law, APC. The operative pleading is the First Amended Complaint filed April 27, 2022. The FAC asserts two causes of action for (1) negligence and (2) breach of fiduciary duty.

            Defendants represented Plaintiff in a personal injury action. (FAC ¶ 7.) Defendants allegedly failed to disclose a Section 998 offer, and Plaintiff lost at trial. (Id., ¶¶ 7-8.) Defendants allegedly failed to inform Plaintiff of his appellate rights. (Id., ¶ 8.) Plaintiff requested his files from Defendants in order to defend a subsequent subrogation action, but Defendants allegedly refused to produce hard copies. (Id., ¶¶ 9-10.) From the files that he obtained, Plaintiff discovered the Section 998 offer and a draft Notice of Appeal that was never filed. (Id., ¶ 11.)

            On August 19, 2022, Defendant The Wallace Firm, PC filed the instant motion to compel Plaintiff’s further responses to Requests for Production Nos. 5 and 12.

LEGAL STANDARD

On receipt of a response to a request for inspection, the demanding party 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, or (3) an objection in the response is without merit or too general. (Code Civ. Proc., § 2031.310, subd. (a).)

MEET AND CONFER

Motions to compel further responses must be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2031.310(b)(2).) The Court finds that Defendant has satisfied the meet and confer requirement. (See Scott Decl. ¶¶ 4-10.)

DISCUSSION

            RFP No. 5 requests all documents Plaintiff received from Defendant. RFP No. 12 requests all documents evidencing receipt of the underlying casefile from Defendant. Plaintiff responded to both RFPs with the following: “Responding party has parts of his file currently in his possession, custody and control, however, these will not be produced as they are also in the possession of Propounding party.”

            There is good cause for the production because Plaintiff alleges that Defendants did not advise him of the Section 998 offer or his appellate rights, and refused to produce a hard version of his casefile. Defendant is entitled to rebut these allegations with evidence that it did notify Plaintiff and did provide his casefile.

            Plaintiff’s response is improper. First, it is nonresponsive, because the requests do not ask for just the casefile itself. Rather, they ask for all documents received from Defendant and all documents evidencing receipt of the casefile. Second, there is no basis to refuse production merely because responsive documents are in the possession of the propounding party. Plaintiff does not articulate any undue burden. Additionally, Defendant’s possession of the casefile is immaterial because the requests are aimed at verifying whether Plaintiff received notice of the Section 998 offer and his appellate rights.

            Plaintiff’s opposition does not attempt to defend the validity of his responses. Instead, Plaintiff argues that the motion is moot because he has served supplemental responses. (Opp. 2:2-3.) However, service of supplemental responses does not moot a motion to compel. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408.) Sanctions are still warranted for Plaintiff’s failure to provide adequate responses in the first place, for which Plaintiff provides no substantial justification.  

            Plaintiff argues that sanctions must be denied because the notice of motion fails to identify the parties against whom sanctions are sought. (Opp. 3:17-20.) The notice of motion clearly identifies “Plaintiff and his attorney of record.” (Mtn. 2:10-13.) Plaintiff claims that this is insufficient because it does not provide the actual names of the individuals. Plaintiff cites no authority for this proposition, nor can Plaintiff credibly argue that it is unclear who he and his attorney of record are.

            Plaintiff also argues that sanctions are unwarranted because Defendant failed to meet and confer in good faith. (Opp. 4:18-22.) This argument is not well-taken. Plaintiff does not dispute that Defendant sent a meet and confer letter on July 27, followed up on August 8, and agreed to extend the motion deadline to August 19. (See Scott Decl. ¶¶ 4-6.) While Plaintiff sent a letter on August 8 expressing his willingness to provide supplemental responses, he had not provided them by August 16. (Id., ¶ 9.) Defendant sent a follow-up email on August 16, which Plaintiff admits he did not respond to. (Id., ¶¶ 9-10; Hacker Decl. ¶ 3.) Plaintiff’s original responses were not even timely. (Scott Decl. ¶ 3.) Defendant was not required to wait indefinitely after multiple delays. The record shows that Defendant diligently pursued further responses and filed this motion only after being ignored.

            Given the simplicity of the motion, the reasonable amount of sanctions is 3 hours at $300 per hour, plus a $60 filing fee. (See Scott Decl. ¶¶ 11-12.)

CONCLUSION

            Defendant The Wallace Firm, PC’s motion to compel further responses is GRANTED. Plaintiff is to provide verified responses and documents within 10 days. Sanctions are awarded against Plaintiff and his counsel in the amount of $960.