Judge: David A. Rosen, Case: 19BBCV00276, Date: 2022-12-16 Tentative Ruling

Case Number: 19BBCV00276    Hearing Date: December 16, 2022    Dept: E

Hearing Date: 12/16/2022 – 10:00am
Case No. 19BBCV00276
Trial Date: 06/12/2023
Case Name: GARY LEFKOWITZ v. KHALED A. TAWNSEY, et al.

TENTATIVE RULING– COMPEL RESPONSES

Moving Party:  Cross-Complainant, Khaled A. Tawansy (“Cross-Complainant”)
Responding Party: No Opposition submitted

No Reply submitted

Moving Papers: Notice of Cross-Complainant’s Motion; Declaration of William F. Clark; Notice of Filing of Amended Proof of Service for Special Interrogatories

RELIEF REQUESTED¿ 
Cross-Complainant, Khaled A. Tawansy, moves the Court for an order to compel responses to special interrogatories and request for sanctions in the amount of $2,265.00. Cross-Complainant moves pursuant to CCP §2030.290. Although it is not noted in the notice of the moving papers, it appears moving party is moving to compel responses to special interrogatories propounded on Cross-Defendant Franciska Von Andrassy.

Procedural
16/21 Day Lapse (CCP §12c and §1005(b): Ok
Proof of Service Timely Filed (CRC, Rule 3.1300): Ok
Correct Address (CCP §1013, §1013a): No – See Analysis Section

BACKGROUND
General Background According to the Court’s perusal of eCourt

On 11/09/2021, Cross-Complainant Khaled A. Tawansy filed a cross-complaint against Cross-Defendants Gary Lefkowitz, Franciska K. Von Andrassy, and Swiss Corrective Skin Care, LLC. Cross-Complainant alleged the following cause of action: (1) Breach of Oral Contract, (2) Breach of Contract Implied in Fact, (3) Breach of Implied-In-Law Contract, (4) Breach of Fiduciary Duty, (5) Conversion, and (6) Accounting.

On November 29, 2021, Plaintiff Gary Lefkowitz filed a Third Amended Complaint for Breach of Contract against Khaled A. Tawansy; Khaled A. Tawansy M.D., a California Corporation; Raymond Renaissance Surgery Center, a California LLC; Renaissance Surgical Holdings, a California LLC; Golden State Eye Center, a California Corporation; Golden State Eye Medical Group, a California Corporation; 95 N. Arroyo, a California LLC. The TAC was subsequently dismissed.

On December 6, 2019, Gary Lefkowitz filed a Cross-Complaint alleging 16 causes of action against what appears to be Cross-Defendants James A. Frieden; Khaled A. Tawansy; Noel Cabezzas; Robert M. Cohen; Zayda Cabezzas; Nehal Tawansy; and Viability HealthCare Consultants LLC.

Background According to Cross-Complainant’s Motion
Cross-Complainant goes into a general introduction about how it filed a Cross-Complaint against Gary Lefkowitz, Franciska K. Von Andrassay, and Swiss Corrective Skin Care LLC for: (1) Breach of Oral Contract, (2) Breach of Contract Implied in Fact, (3) Breach of Implied-In-Law Contract, (4) Breach of Fiduciary Duty, (5) Conversion, and (6) Accounting.

Cross-Complainant further states in his introductory section several alleged facts about money being transferred, checks, attorneys, and parties, providing no context as to why any of this information may be relevant to any operative complaint or cross-complaints or any causes of action therein. Cross-Complainant further provides no context as to the general background of the premise of any operative complaint or cross-complaints.

Cross-Complainant states he served Special Interrogatories on Von Andrassy on December 6, 2021. Cross-Complainant states he has not received responses, so Cross-Complainant is filing the instant motion. Cross-Complainant also states that he did not immediately file this motion because he thought he would be granted a default against Von Andrassy on this cross-complaint.

COMPEL RESPONSES, INTERROGATORIES
Within 30 days after service of interrogatories, the party to whom the interrogatories are propounded shall serve the original of the response to them on the propounding party, unless on motion of the propounding party the court has shortened the time for response, or unless on motion of the responding party the court has extended the time for response. (CCP 2030.260(a).)

If a party to whom interrogatories are directed fails to serve a timely response, the party propounding the interrogatories may move for an order compelling response to the interrogatories. (CCP §2030.290(b).)

“The party to whom the interrogatories are directed waives any right to exercise the option to produce writings under Section 2030.230, as well as any objection to the interrogatories, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010). The court, on motion, may relieve that party from this waiver on its determination that both of the following conditions are satisfied: (1) The party has subsequently served a response that is in substantial compliance with Sections 2030.210, 2030.220, 2030.230, and 2030.240. (2) The party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.” (CCP §2030.290(a).)

Unlike a motion to compel further responses, a motion to compel responses is not subject to a 45-day time limit, and the propounding party does not have to demonstrate either good cause or that it satisfied a “meet and confer” requirement. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4^th 390, 404 citing Weil and Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2006) ¶¶8:1137 to 8:1144, pp. 8F-59 to 8F-60, ¶¶ 8:1483 to 8:1489, pp. 8H-29 to hH-30 (Weil & Brown).)

ANALYSIS
30 Days

Initially, the hearing on this motion was set for November 23, 2022. The Court’s initial analysis as to the “30 Days” issue was as follows:

Here, it appears as if responding party did not respond within 30 days after the special interrogatories were served. However, there are a few potential problems with respect to this issue. Cross-Complainant states in its motion that it served the special interrogatories on December 6, 2021. However, Cross-Complainant attached Exhibit D to this motion, which is the instant Special Interrogatories, Set One. For the proof of service for the special interrogatories that were allegedly served on December 6, 2021, there is no date on the proof of service for when the special interrogatories were served. The proof of service is dated, “December, 2021.” Presumably thirty days has passed from any date in December 2021; however, technically there is no date on the proof of service for when the special interrogatories were propounded. Further, in William F. Clark’s declaration for the instant motion in paragraph 6 he states, “A true and correct copy of the Special Interrogatories propounded upon Cross-Defendant Franciska K. Von Andrassy is attached to Cross-Complainant's moving papers marked as Exhibit D.” Or to phrase it differently, Clark did not state in the declaration to the instant motion that he actually served the special interrogatories on December 6, 2021, he just stated it in the motion itself.

(Minute Order 11/23/2022 p.3.)

However, on November 23, 2022, the Court continued this hearing to December 16, 2022. The Court noted, “Any further evidence or papers which Movant intends to present must be e-served and e-filed on or before December 7, 2022.” (Minute Order 11/23/2022 p.4.)

On 11/30/2022, Cross-Complainant filed a “Notice of Filing of Amended Proof of Service for Special Interrogatories.” In this amended proof of service, on December 6, 2021, “Defendant Khaled A. Tawansy’s Special Interrogatories – Set One; Declaration of William F. Clark in Support of Additional Discovery,” was served via electronic mail.

The Notice of filing of the amended proof of service was served by US Mail to Maniak D’Attaray at 10262 Foothill Boulevard, Lake View Terrace, California, 91342.

Service
The instant motion was thus properly and timely served on Von Andrassy’s attorney, Mainak D’Attaray on August 15, 2022, via mail, thus meeting the 16-court day requirement for notice before the instant hearing on November 23, 2022. The mailing address for D’Attaray at which Cross-Complainant alleges service is the address of record in the Court file for D’Attaray. The proof of service for the instant motion shows that D’Attaray was served at 10262 Foothill Boulevard, Lake View Terrace, California, 91342, the address for which D’Attaray has expressed clear preference on, inter alia, his client’s operative Answer to the operative cross-complaint. Although the proof of service for the instant motion lists the same email address that the Court has on file for D’Attaray’s email address, the proof of service for the instant motion does not purport to have served this motion via email. It only states it was served via mail.

TENTATIVE RULING: The Motion is granted.  Von Andrassy must answer the subject special interrogatories, under oath and without objections, within 20 days.

Sanctions

The instant motion requests sanctions in the amount of $2,265. The declaration of William F. Clark details in paragraph 9 why sanctions of $2,265 is warranted. Clark states he charges $450 per hour for his legal work. Clark also states, “I sent two letters to attorney for Franciska K. Von Andrassy requesting response to Special Interrogatories (Exhibits E and F) and spent .6 hours to do so. In order to prepare this Motion to Compel Response to Special Interrogatories, I spent 2.1 hours. I estimate another 1.5 hours to review Opposition papers and prepare a Reply and .7 hours for the remote appearance at the Hearing of this matter for a total of 4.9 hours. I expect to charge my client a total of $2,205 for attorney fees at $450 per hour for 4.9 hours spent on this Motion to Compel. In addition, the filing fee for this matter was $60. Cross-Complainant requests total sanctions of $2,265 to reimburse him for the attorney fees which he incurred as a result of Franciska K. Von Andrassy's unlawful conduct.” (Decl. Clark ¶9.)

Here, no time should be awarded for 1.5 hours to review opposition and prepare a reply because there is no opposition or reply.

“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 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 §2030.290(c).)

The Court awards reasonable discovery sanctions, against cross-defendant Von Andrassy, and in favor of Movant, in the amount of $1,410.00 (3 hours attorney time, plus the filing fee), to be paid within 35 days.