Judge: Elaine Lu, Case: 20STCV36064, Date: 2023-04-11 Tentative Ruling

Case Number: 20STCV36064    Hearing Date: April 11, 2023    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Procedural Background

On September 21, 2020, Plaintiffs Spotora & Associates, A.P.C. (“S&APC”) and Anthony J. Spotora (“Spotora”) filed the instant legal malpractice action.

On June 16, 2021, S&APC and Spotora filed a First Amended Complaint against Defendants Winget, Spadafora & Schwartzberg, LLP (“WS&SLLP”); Nationwide Insurance Company (“Nationwide”); Scottsdale Insurance Company (“Scottsdale”); Reif Law Group, P.C. (“RLGPC”); Greer & Associates, P.C. (“G&APC”), Bruce A. Fields, A.P.C., (“BAFPC”); James Greer (“Greer”); Brandon Reif (“Reif”); and Bruce Fields (“Fields”). 

On July 9, 2021, RLGPC filed a cross-complaint against S&APC and Spotora.  The Cross-Complaint asserts five causes of action for (1) Promissory Fraud, (2) Common Count for Account Stated, (3) Common count for Open Book, (4) Common Count for Quantum Meruit, and (5) Common Count for Work Labor And Services Rendered Theft of Labor.

On March 4, 2022, the Court sustained Defendants G&APC and Greer’s demurrer to the First Amended Complaint and granted S&APC and Spotora leave to amend.  (Order 3/4/22.)  On May 26, 2022, the Court sustained Defendants WS&SLLP’s demurrer to the First Amended Complaint and granted S&APC and Spotora leave to amend.  (Order 5/26/22.)  On May 27, 2022, the Court sustained Defendants Fields and BAFPC’s demurrer to the First Amended Complaint with leave to amend.  (Order 5/27/22.)  On July 15, 2022, the Court sustained Defendants Reif and RLGPC’s demurrer to the complaint with leave to amend.  (Order 7/15/22.)  On July 26, 2022, the Court sustained Defendants Nationwide and Scottsdale’s demurrer to the First Amended Complaint with leave to amend.  (Order 7/26/22.) 

On August 12, 2022, Plaintiffs S&APC and Spotora filed a Second Amended Complaint against Reif, RLGPC, Nationwide, and Scottsdale.  The Second Amended Complaint did not name the other named defendants of the First Amended Complaint.  On September 19, 2022, judgment was entered in favor of G&APC, Greer, and WS&SLLP.  On December 22, 2022, S&APC and Spotora dismissed Nationwide and Scottsdale from the complaint with prejudice. 

On December 23, 2022, the Court sustained RLGPC and Reif’s demurrer to the Second Amended Complaint without leave to amend.  On March 20, 2023, the Court entered a judgment of dismissal as to RLGPC and Reif. 

Accordingly, only RLGPC’s Cross-Complaint remains at issue.

On December 8, 2022, Cross-Complainant RLGPC filed the instant motion to compel Sporota’s further response to Form Interrogatories, Set One (“FROGs”).  On March 29, 2023, Sporota filed an opposition.  On April 4, 2023, RLGPC filed a reply.

Legal Standard

Code of Civil Procedure section 2030.300 provides that “[o]n receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (1) An answer to a particular interrogatory is evasive or incomplete; [or] (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate; [or] (3) An objection to an interrogatory is without merit or too general.”  (CCP § 2030.300(a).)

Notice of the motion must be given within 45 days of service of the verified response, or upon a later date agreed to in writing.  Otherwise, the propounding party waives any right to compel a further response.  (CCP § 2031.310(c).)  The motion must also be accompanied by a meet and confer declaration.  (CCP § 2031.310(b)(2).)

The burden is on the responding part to justify any objection or failure fully to answer the interrogatories.  (Fairmont Ins. Co. v. Superior Court (Stendell) (2000) 22 Cal. 4th 245, 255.)

Discussion

            RLGPC seeks to compel Spotora’s further response to FROG No. 15.1 and FROG No. 17.1 with regard to Requests for Admissions 3, 7-15, 17-20, 22-24, 26-32.

Meet and Confer

Pursuant to Code of Civil Procedure section 2030.300(b)(1) a motion to compel further responses to a request for production “shall be accompanied by a meet and confer declaration under Section 2016.040.”  (CCP § 2030.300(b)(1).)  “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.”  (CCP § 2016.040.)

On June 8, 2022, RLGPC served the FROGs at issue on Crosss-Defendant Spotora.  (Reif Decl. ¶ 2.)  On July 8, 2022, Cross-Defendant Spotora – through Counsel – requested an extension to respond, which RLGPC granted.  (Reif Decl. ¶ 3, Exh. A.)  On August 26, 2022, Spotora served responses to the FROGs at issue.  (Reif Decl. ¶ 4.)  On September 7, 2022, RLGPC sent a meet and confer letter requesting further responses as the responses were insufficient.  (Reif Decl. ¶ 4, Exh. B.)  On September 12, 2022, Spotora requested further time to provide further responses.  (Reif Decl. ¶ 5, Exh. C.)  On September 21, 2022, Spotora served further responses as to the FROGs at issue.  (Reif Decl. ¶ 6.)  Again on October 11, 2022, RLGPC sent another letter to Spotora noting that the responses were still insufficient and requested a further response.  (Reif Decl. ¶ 7.)  On October 17, 2022, Spotora – through Counsel – requested an extension to October 24, 2022.  (Reif Decl. ¶ 7, Exh. E.) 

On October 23, 2022, Cross-Defendant’s Counsel – Lance G. Greene – requested a further two-week extension to respond as Greene was leaving S&APC which RLGPC granted extending the deadline to November 7, 2022.  (Greene Decl. ¶ 6.)  However, no further response was provided.  (Reif Decl. ¶ 7.)

On December 8, 2022, Cross-Complainant RLGPC filed the instant motion to compel Sporota’s further response to Form Interrogatories, Set One (“FROGs”).  On March 29, 2023, Sporota filed an opposition.  On April 4, 2023, RLGPC filed a reply.

FROG 15.1

            “Identify each denial of a material allegation and each special or affirmative defense in your pleadings and for each:

a) state all facts upon which you base the denial or special or affirmative defense;

b) state the names, ADDRESSES and telephone numbers of all PERSONS who have knowledge of those facts; and

c) identify all DOCUMENTS and other tangible things that support your denial or special or affirmative defense, and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT.”

(FROG No. 15.1.)

            “Responding party objects to this interrogatory on the basis that it is premature as discovery has just begun as this is the first written set of Discovery from Cross-Complainant. Each denial of a material allegation and each special or affirmative defense pled in Cross-Defendant’s Answer to Cross-Complainant’s Cross-Complaint were alleged and pled as a matter of right. As such, responding party is presently investigating further issues surrounding the disputed allegations set forth in Cross- Defendant’s Cross-Complainant’s Cross-Complaint and will supplement this response upon receipt of further responsive information.”  (Response to FROG No. 15.1.)

            “Responding party objects to this interrogatory on the basis that it is premature as discovery has just begun as this is the first written set of Discovery from Cross-Complainant. Each denial of a material allegation and each special or affirmative defense pled in Cross-Defendant’s Answer to Cross-Complainant’s Cross-Complaint were alleged and pled as a matter of right. As such, responding party is presently investigating further issues surrounding the disputed allegations set forth in Cross- Defendant’s Cross-Complainant’s Cross-Complaint and will supplement this response upon receipt of further responsive information.”  (Further Response to FROG 15.1.)

            The Responses Are Improper

            A motion to compel further responses lies where an answer is evasive or incomplete, the exercise to produce documents is unwarranted or without sufficient specification, or an objection is without merit or too general.  (CCP § 2030.300(a)(1)-(3).)  As explained in Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, “[a]nswers must be complete and responsive. Thus, it is not proper to answer by stating, ‘See my deposition,’ ‘See my pleading,’ or ‘See the financial statement.’ Indeed, if a question does require the responding party to make reference to a pleading or document, the pleading or document should be identified and summarized so the answer is fully responsive to the question.”  (Id. at pp.783–784, [italics added].)  Moreover, “[p]arties, like witnesses, are required to state the truth, the whole truth, and nothing but the truth in answering written interrogatories.”  (Id. at p.783.)

            Here, Cross-Defendant’s claim that the request is premature does not respond to the request.  Cross-Defendant’s answer to the cross-complaint includes thirty affirmative defenses.  However, Cross-Defendant fails to specify any facts to support any affirmative defense.  Nor is there any identification of witnesses or documents to support the various affirmative defenses. 

            Accordingly, Cross-Defendant must serve a further, code compliant response that responds to the FROG 15.1.

FROG 17.1

            “Is your response to each request for admission served with these interrogatories an unqualified admission? If not, for each response that is not an unqualified admission:

a) state the number of the request;

b) state all facts upon which you base your response;

c) state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of those facts; and

d) identify all DOCUMENTS and other tangible things that support your response and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or thing.”

(FROG No. 17.1.)

            “ALL SPECIFIC OBJECTIONS TO REQUESTS FOR ADMISSIONS 1-32 SET FORTH IN RESPONDING PARTY’S RESPONSES TO THE REQUESTS FOR ADMISSIONS ARE INCORPORATED HEREIN.”  (Response to FROG No. 17.1.)

            FROG 17.1 as to Requests for Admission 3, 12-15, 17-20, and 22-24

            With regard to requests for admission, 3, 12-15, 17-20, and 22-24 no further response was provided.  The above response is improper.  “[I]t is not proper to answer by stating, ‘See my deposition,’ ‘See my pleading,’ or ‘See the financial statement.’ Indeed, if a question does require the responding party to make reference to a pleading or document, the pleading or document should be identified and summarized so the answer is fully responsive to the question.”  (Deyo, supra, 84 Cal.App.3d at pp.783–784, [italics added].)  Thus, merely referring to Spotora’s response to the Request for Admissions is improper and a further response is required.  

            FROG 17.1 as to Requests for Admission 7-11, 26-32

            With regard to requests for admission 7-11, and 26-32, Spotora did provide a further response.  For example, Request for Admission No. 8 requested Spotora to admit that Spotora had received litigation budgets disclosing that the defense of the underlying action would exceed the $250,000.00 insurance policy which Spotora denied stating that “Deny to the extent that Reif Law Group was never to exceed my insurance policy coverage with Nationwide.”  (Response to Request for Admission No. 8.)

            In the further response to FROG No. 17.1 as to Request for Admission No. 8, Spotora responded stating that:

            “(a) 8

            (b) Reif Law Group was never to exceed my insurance policy coverage with Nationwide. In addition, the supporting facts as stated on information and belief in the SAC on information and belief remain that after REIF permanently left WS&SLLP REIF started his own law firm RLGPC and that Nationwide transferred S&SPC and AJS’s case to RLGPC and REIF to defend. Thereafter RLGPC and REIF represented S&APC, AJS and FIELDS until the evening before the Mandatory Settlement Conference when he abandoned S&APC and AJS case and yet continued to represent FIELDS. RLGPC and REIF in the course of their representation failed to join G&APC and GREER (indispensable necessary parties) and knew and/or should have knew that there was not even a valid contract between the affected parties in the underlying matter that led to the 2017 Action. Further that FIELDS possessed additional material information during the course of the defense of S&APC and AJS’s case that could have ended that matter in its preliminary phase as based on that material information there never should have been a lawsuit filed against S&APC and AJS. Cross-Defendant will amend this response when additional facts are uncovered as discovery has just begun and there is no trial date yet for this matter.

            (c) Persons including but not limited to: Anthony J. Spotora, Esq.; Bruce A. Fields, Esq.; Amanda Wilson (S&A Admin); Kara Paliokas (S&A Admin); Dr. Cadrin Gill; Alvaro Cerda, Broadway Radiology, Vernon Properties. Alexander Petale, Esq.; Paul Hock; Winget Spadafora attorneys (Brandon Reif, Tamar Yeghiayan, Rebecca MacLaren); Mark Giacopelli (Nationwide); Reif Law attorneys (Justin S. Kim, Shiqi (Sara) Borjigin, Rebecca MacLaren) additional responsive information in the documents being produced by responding party.

            (d) Pursuant to CCP 2030.230 See the documents produced in my document production produced in response to your Requests for Production of Documents.”

            The further responses to FROG No. 17.1 as to Request for Admissions 7, 9-11, and 26-32 have similar statements.  Subsection (a) correctly identifies the Request for Admission that Spotora is responding to.  While somewhat sparse on facts, subsection (b) does provide response facts that do support the denial – i.e., that RLGPC was not to exceed Spotora’s insurance policy coverage with Nationwide.  Thus, these sections are full and complete.  However, the responses to subsection (c) and (d) are improper.  As to Subsection (c), Spotora fails to provide the contact information for the listed witnesses.  As to Subsection (d), Spotora refers to a separate document production which is improper as “if a question does require the responding party to make reference to a pleading or document, the pleading or document should be identified and summarized so the answer is fully responsive to the question.”  (Deyo, supra, 84 Cal.App.3d at pp.783–784, [italics added].) 

            Accordingly, a further code compliant response is required.

Sanctions

RLGPC seeks sanctions of $2,085.00 against Spotora and his counsel of record, Greene.  RLGPC’s Counsel states that he has an hourly rate of $675.00 er hour and spent 3 hours preparing the moving papers, appearing at the hearing, and for the reply.  (Reif Decl. ¶ 8.)  RLGPC’s Counsel further states that he incurred filing fees of $60.00.  (Reif Decl. ¶ 8.) 

For a motion to compel further responses, “[t]he court shall impose a monetary sanction … against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to [request for production], 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 § 2031.300(c), [italics added].) Accordingly, sanctions are mandatory for the motion unless the circumstances make the imposition of sanctions unjust.

Here, sanctions are warranted against Spotora and his counsel of record Greene.  While Greene no longer works at S&APC as of October 2022, Greene failed to move to be relieved from the instant action.  (Greene Decl. ¶¶ 3-4.)  While Greene reserved a motion to be relieved, Greene has never filed any motion to be relieved.  (Greene Decl. ¶ 5.)  Accordingly, as no motion to be relieved has been filed and granted, nor has a substitution of counsel been filed, Greene is still Spotora’s counsel of record.  As such it was incumbent on Greene to request to be relieved before the instant motion was filed.  Moreover, Spotora’s response to discovery that Greene – as counsel for Spotora submitted – is evasive and improper as noted above.  Accordingly, the request for sanctions is GRANTED.

            Anthony J. Spotora and his attorney of record, Lance G. Greene, jointly and severally, are ordered to pay sanctions to Reif Law Group, P.C. by and through counsel of record, in the amount of $2,085.00, within 30 days.

Conclusion and ORDER

Based on the foregoing, Cross-Complainant Reif Law Group, P.C.’s motion to compel a further response to Form Interrogatories Nos. 15.1 and 17.1 from Cross-Defendant Anthony J. Spotora is GRANTED.

Cross-Defendant Anthony J. Spotora is to serve further, verified, code compliant responses as to Form Interrogatories Nos. 15.1 and 17.1 within twenty (20) days of notice of this order.

            Anthony J. Spotora and his attorney of record, Lance G. Greene, jointly and severally, are ordered to pay sanctions to Reif Law Group, P.C. by and through counsel of record, in the amount of $2,085.00, within 30 days.

            Moving Party is to give notice and file proof of service of such.

DATED:  April 11, 2023                                                        ___________________________

            Elaine Lu

                                                                                          Judge of the Superior Court