Judge: David A. Rosen, Case: EC067612, Date: 2023-08-18 Tentative Ruling

Case Number: EC067612    Hearing Date: August 18, 2023    Dept: E

Hearing Date: 8/18/2023 – 8:30am

Case No: EC067612 
Trial Date: UNSET

Case Name: RAKESH KOTHARI v. GOVING R. VAGASHIA, et al.

TENTATIVE RULING ON MOTION FOR PROTECTIVE ORDER

RELIEF REQUESTED

Defendants/Cross-Complainants, Prashant Vaghashia and Mita Vaghashia (Prashant Defendants), move this court for a protective order pursuant to CCP §§ 2017.020, 2030.090(b), 2031.060(b), and 2033.080(b) concerning certain discovery requests propounded by Defendant Govind Vaghashia in this case and for an order staying further prosecution of this case and the afore-captioned related case by the Govind Defendants.

The Prashant Defendants further request sanctions against the Defendant, Govind Vaghashia and his attorney Harry Lal, Esq. and his law firm (LAL, Harris and Edwards) in the amount of $7,800.00, pursuant to CCP §§2017.020, 2030.090(d), 2031.060(i), and 2033.080(d) for abuse of the discovery process and for failing to properly meet and confer to avoid this needless motion.

PROCEDURAL

Moving Party: Defendants, Prashant Vaghashia and Mita Vaghashia

Responding Party: Defendant, Govind Vaghashia

Moving Papers: Notice/Motion; Notice of Lodging Under Seal [The Court notes that nothing was lodged under seal.]

Opposition Papers: Opposition; Request for Judicial Notice; Lal Declaration [The Court notes that Exhibit 1 to the Lal Declaration alleged that Exhibit 1 was to be submitted under seal, but nothing was submitted under seal by Opposition.]

Reply Papers: Reply

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): Yes

BACKGROUND
Plaintiff filed a Complaint on 11/22/2017 and an Amended Complaint on or about 04/12/2018. The Amended Complaint alleges 12 causes of action. A Cross-Complaint was filed on or about 06/04/2018.

Plaintiff Rakesh Kothari alleges that in July of 2014 he entered a written agreement with defendants Govind Vaghashia dba Quality Inn and Suites, Sonal Vaghashia dba Travelodge Burbank, Prashant Vaghashia dba Quality Inn Burbank Airport, Mita Vaghashia and Vaghasia Family Partnership Limited, the owners of hotels/motels in Southern California, wherein it was agreed that plaintiff would be responsible for the management of defendants’ Quality Inn hotel/motel in Burbank, and their Quality Inn and Suites hotel/motel located in Camarillo. Plaintiff alleges that under the agreement he was entitled to an hourly wage and a 10% commission of gross revenue for each hotel/motel, to be paid three years after entering the contract. It is also alleged that plaintiff would be allowed to move with his family to defendants’ real property located close to the Quality Inn Burbank, with plaintiff to take possession of the rented property for the seven-year duration of the contract without payment of rent and utilities. The parties agreed that plaintiff could live at the rented property until he ceased to work under the contract or was terminated for any justifiable reason, and that if terminated, plaintiff would be entitled to twelve months’ notice to vacate the rented property.

Plaintiff alleges that plaintiff performed under the contract, significantly increasing the gross revenues of the hotels/motels, and in January of 2015 entered into a separate agreement for plaintiff to take over and manage defendants’ Travelodge Burbank, which also included an agreement for paying a commission.

Plaintiff alleges that defendants would pay plaintiff late or not pay the monthly agreed upon stipends, and did not pay plaintiff overtime, or the required minimum wage.

It is also alleged that defendant Govind ordered plaintiff to obtain workers’ compensation insurance coverage in his own name, and when plaintiff declined began to harass plaintiff by threatening to terminate him and calling him names in the presence of other employees. Plaintiff alleges that he was made to sign papers in blank at the beginning of his employment, as Govind had a practice of taking signatures of new employees and later using those signatures on agreements drafted by Govind. Plaintiff alleges that defendant instructed plaintiff to commit acts that violated the law such as preparing false statements to be submitted in workers compensation claims, or forging documents in civil cases. Plaintiff alleges that when he refused to commit the illegal acts, defendants decided to terminate his employment, and have otherwise breached the contract by failing to pay the commissions due.

Plaintiff alleges that after he filed the initial complaint in this action he was inundated with numerous requests by defendants that plaintiff dismiss his lawsuit, and on March 8, 2018, plaintiff received a letter terminating his employment without justifiable reasons, but because plaintiff was about to testify regarding defendant Govind’s fraud in forging documents and signatures of employees who sued defendants for violation of various wage laws. On the same day plaintiff’s employment was terminated, defendant Govind posted a thirty-day notice for plaintiff and his family to vacate and quit the rented property.

Plaintiff also alleges that in a further effort to harass plaintiff, defendant Govind filed a request for restraining order seeking to restrain plaintiff from his place of residence, but the court denied the request for a temporary restraining order until the day of the hearing, and before the hearing Govind dismissed the case, because it was baseless.

Defendants Prashant Vaghashia and Mita Vaghashia have filed a cross-complaint for equitable indemnity and declaratory relief against cross-defendants Govind Vaghashia and the Vaghashia Family Partnership Limited, alleging that cross-complainants were in no way connected with the termination of plaintiff’s employment or of any of the acts or conduct complained of in the complaint, but that any injuries or damages alleged will be founded on the fault of cross-defendants.

Defendants Vaghashia Family Limited Partnership, Govind Vaghashia and Sonal Vaghasia filed a special motion to strike the fifth and tenth causes of action of the first amended complaint (anti-SLAPP), which was heard on June 22, 2018. The motion was granted as to the fifth cause of action for Injunction Relief, and denied as to the tenth cause of action for Harassment. The motion was also denied with respect to a request to strike specific allegations in the pleading in connection with the harassment claim. The court’s order has been affirmed on appeal and remittitur was issued dated July 15, 2020.

Notably, the case at bar has not yet been set for Trial as this Tentative is written, so the Govind defendants’ arguments of prejudice in opposition to this Motion are hollow.

LEGAL STANDARD
“The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. The court may make this determination pursuant to a motion for protective order by a party or other affected person. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (CCP §2017.020(a).)

Under CCP §2030.090:

(a) When interrogatories have been propounded, the responding party, and any other party or affected natural person or organization may promptly move for a protective order. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.

(b) The court, for good cause shown, may make any order that justice requires to protect any party or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions:

(1) That the set of interrogatories, or particular interrogatories in the set, need not be answered.

(2) That, contrary to the representations made in a declaration submitted under Section 2030.050, the number of specially prepared interrogatories is unwarranted.

(3) That the time specified in Section 2030.260 to respond to the set of interrogatories, or to particular interrogatories in the set, be extended.

(4) That the response be made only on specified terms and conditions.

(5) That the method of discovery be an oral deposition instead of interrogatories to a party.

(6) That a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a certain way.

(7) That some or all of the answers to interrogatories be sealed and thereafter opened only on order of the court.

(c) If the motion for a protective order is denied in whole or in part, the court may order that the party provide or permit the discovery against which protection was sought on terms and conditions that are just.

(CCP §2030.090(a)-(c).)

Under 2031.060:

(a) When an inspection, copying, testing, or sampling of documents, tangible things, places, or electronically stored information has been demanded, the party to whom the demand has been directed, and any other party or affected person, may promptly move for a protective order. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.

(b) The court, for good cause shown, may make any order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions:

(1) That all or some of the items or categories of items in the demand need not be produced or made available at all.

(2) That the time specified in Section 2031.260 to respond to the set of demands, or to a particular item or category in the set, be extended.

(3) That the place of production be other than that specified in the demand.

(4) That the inspection, copying, testing, or sampling be made only on specified terms and conditions.

(5) That a trade secret or other confidential research, development, or commercial information not be disclosed, or be disclosed only to specified persons or only in a specified way.

(6) That the items produced be sealed and thereafter opened only on order of the court.

(CCP §2031.060(a)-(b).)

Under 2033.080:

(a) When requests for admission have been made, the responding party may promptly move for a protective order. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.

(b) The court, for good cause shown, may make any order that justice requires to protect any party from unwarranted annoyance, embarrassment, oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions:

(1) That the set of admission requests, or particular requests in the set, need not be answered at all.

(2) That, contrary to the representations made in a declaration submitted under Section 2033.050, the number of admission requests is unwarranted.

(3) That the time specified in Section 2033.250 to respond to the set of admission requests, or to particular requests in the set, be extended.

(4) That a trade secret or other confidential research, development, or commercial information not be admitted or be admitted only in a certain way.

(5) That some or all of the answers to requests for admission be sealed and thereafter opened only on order of the court.

(c) If the motion for a protective order is denied in whole or in part, the court may order that the responding party provide or permit the discovery against which protection was sought on terms and conditions that are just.

(CCP §2033.080(a)-(c).)

TENTATIVE RULING
The Court notes that many of the previously mentioned standards in the “Legal Standard” section of this ruling have meet and confer requirements. Here, moving Defendants sufficiently met and conferred before filing this motion as indicated by Anyia’s declaration and exhibits. Opposition’s argument about there being no meet and confer is unavailing.

Prashant Defendants and the Opposition do not do a good job of explaining the context of this case with respect to other related cases and unrelated cases that are allegedly pertinent to this motion. However, moving Defendants’ declaration better helps put the instant motion and cases, both related and unrelated, into context to glean a better understanding of what is going on in this motion in the context of the other cases.

Moving Defendants argue that since a global settlement agreement was reached in the “downtown case” (moving Defendants allege this to be BC696133), the Govind Defendants should not be allowed to propound discovery in the instant case and the related case. However, it is unclear based on the moving papers and the Reply what the moving Defendants are referring to is the case related to the instant case. The basis for their argument is that a settlement agreement was reached in the downtown case wherein there was a clause where the Prashant Defendants indemnified Govind R. Vaghashia, Sonal Vaghashia, and the Vaghashia Family Limited Partnership in the Kothari case, and wherein the Prashant Parties were given the ability to choose counsel for the Govind Parties in the Kothari Case.

Generally speaking, the Court agrees with moving Defendants that a protective order is appropriate here based on the settlement agreement in the downtown case; however, there a few issues the moving Defendants would need to address at the instant hearing.

The Court does not find Opposition’s argument convincing that the settlement agreement and indemnification in the downtown case is irrelevant to the instant case because the settlement agreement in the downtown case explicitly mentions the Kothari case, which is the instant case.

However, the Court admits that its mention of the settlement agreement explicitly mentioning the Kothari case is an assumption. In Exhibit C, moving Defendants attached a meet and confer letter with a page that appears to be a portion of the alleged settlement agreement that contains a clause titled “Kothari Case Indemnification.” Although moving Defendants allegedly filed the settlement agreement under seal, nothing was filed under seal with the Court. Likewise, Opposition’s declaration mentioned it filed documents under seal that were also not under seal. Therefore, at the instant hearing, moving Defendants would need to come forward with the entire settlement agreement in the downtown case so the Court can evaluate the entirety of the merits of moving Defendants’ instant motion.

Further, Govind Vaghashia’s argument about an appeal in the downtown case is unavailing, as the moving papers submitted Exhibits D and E which were minute orders from the downtown case, BC696133, wherein the Court denied Govind’s motion to vacate or set aside settlement and wherein the Court granted Prashant and Mita’s motion to enforce settlement.

Further, what is confusing about the Opposition is that the Opposition itself mentions an appeal in BC696133, and Opposition refers to this case as Vaghashia v. Vaghashia at Stanley Mosk; however, Opposition’s request for judicial notice, Exhibit 1, refers to Exhibit 1 as Vipulkumar Patel v. Govind Vaghashia Case No. EC064357.

Either way, in whatever case Opposition is trying to indicate they filed an appeal, this Court does not find convincing Opposition’s arguments that a possibly pending appeal constitutes grounds to deny the instant motion for protective order.

Further, at the instant hearing, Moving Defendants need to clarify what exactly the protective order seeks. For example, Prashant Defendants attach Exhibit B1, B2, and B3 presumably to indicate the discovery Prashant Defendants want the Court to issue a protective order on so that Prashant Defendants do not have to respond to it. However, the motion itself and the declaration do not indicate precisely what discovery propounded on Prashant Defendants they want a protective order issued on. Further, some of the discovery referenced in the Exhibits do not indicate in which case the discovery was propounded, which leads the Court to its next point.

The instant motion seeks an order staying further prosecution of this case and the “the afore-captioned related case.” The moving Defendants do not indicate what the aforementioned related case is. Further, based on the limited evidence before the Court because of the lack of the sealed documents being submitted to the Court, this Court is not convinced as of now that a protective order shall apply to any discovery in a “related case.” Based on the already mentioned Exhibit C which had what appeared to be a portion of the settlement agreement, that portion of the settlement agreement only mentioned the Kothari Case. Nothing in the clause titled “Kothari Case Indemnification,” mentioned anything about a related case. The clause only mentioned the instant case, the Kothari Case.

It is also important to note that the alleged Settlement Agreement clause the Court can see with respect to the Kothari Case Indemnification mentions Govind R. Vaghashia, Sonal Vaghashia, and the Vaghashia Family Limited Partnership. It is thus not clear whether the settlement agreement covers all the Defendants in the FAC.  The Court must be sure that all parties are accounted for in the alleged settlement agreement.

Therefore, at the instant hearing, the Moving Defendants must provide this alleged sealed settlement agreement. Further Moving Defendants would need to specify precisely what the protective order seeks, i.e, the discovery instruments, who it was propounded on, who it was propounded by, and in what case the discovery was propounded in. The Court is not convinced that the protective order would apply to a related case, as moving Defendants so far have come forth with no evidence indicating that the settlement agreement applies to a related case.

Further, this Court is considering appointing a discovery referee in this case. CCP 639.

Sanctions
Moving Defendants request sanctions against Defendant, Govind Vaghashia and his attorney Harry Lal, Esq. and his law firm, Lal, Harris and Edwards in the amount of $7,800.00 pursuant to CCP §§ 2017.020, 2030.090(d), 2031.060(i) and 2033.080(d) for abuse of the discovery process and for failing to properly meet and confer to avoid this needless motion.

“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 for a protective order, 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 §2017.020(b).)

“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 for a protective order under this section, 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 §2030.090(d).)

“Except as provided in subdivision (i), 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 for a protective order, 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 §2031.060(h).)  However, the moving party moved under 2031.060(i) and not (h).

“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 for a protective order under this section, 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 §2033.080(d).)

Here, Moving Defendants’ notice of motion requests sanctions in the amount of $7,800.00; however, the motion itself and the Anyia Declaration request sanctions in the amount of $7,860.00.

Moving Defendants’ counsel, Anyia requests sanctions based on the following: 12 hours preparing this motion; a billing rate of $650 per hour; and $60.00 for the filing fee.

Opposition seeks sanctions under 2030.030 for misuse of the discovery process by arguing that Prashant Defendants’ motion for protective order was meant in bad faith as a delay tactic.

The Lal Declaration states that he and his partner Jack W. Rippy spent approximately $8,771 to prepare the Opposition. Lal alleges:

We spent approx. 3 hrs. drafting discovery, and also approx. 1.2 hrs. in meet and confer letters and emails attempting to receive supplemental responses to vague and evasive answers. The meet and confer efforts were extensive and laborious. We also spent approx. 1.2 hrs. in the preparation of a Rule 3.3 compliant Statement, and approx. 1.25 hrs. researching and writing the Legal arguments. With regards to this declaration, we spent approx. 1.65 hrs. preparing this declaration. Additionally, we shall spend approx. 1 hour drafting the reply brief and .5 hrs. for the additional declaration attached to the reply brief. The total hours spent in bringing this motion to court shall be 10.8 at our billing rate of $895.00 per hour amounting to $8,771.00 . I have been a trial litigation counsel for past 43 years and have wide experience and knowledge in this area and my partner Mr. Rippy has similar experiences with approx. 30 years as a trial litigation counsel.

(Lal Decl. ¶17.)

This declaration also mentions a Reply, but the Reply would have been filed by the moving party, not the opposing parties.

The Court finds that it would be unjust to award sanctions to any party on this Motion in view of the lack of completeness of the Movant’s presentation, and the justification for the albeit likely unsuccessful Opposition.

Request for Judicial Notice
The Court grants Opposition’s request for judicial notice.