Judge Elaine Lu, Case 20STCV36064 2023-05-23 Tentative Ruling

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 in favor of RLGPC and Reif.

On December 8, 2022, Cross-Complainant RLGPC filed the instant motion to compel Spotora’s further response to Requests for Admission, Set One (“RFAs”). On May 10, 2023, Spotora’s Counsel filed a declaration in response. No opposition or reply has been filed.

(a) On receipt of a response to requests for admissions, the party requesting admissions may move for an order compelling a further response if that party deems that either or both of the following apply:

(b)(1) A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040.

(a) Each answer in a response to requests for admission shall be as complete and straightforward as the information reasonably available to the responding party permits.

(1) Admit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by the responding party.

(3) Specify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge.

(c) If a responding party gives lack of information or knowledge as a reason for a failure to admit all or part of a request for admission, that party shall state in the answer that a reasonable inquiry concerning the matter in the particular request has been made, and that the information known or readily obtainable is insufficient to enable that party to admit the matter.

Cross-Complainant RLGPC seeks to compel Cross-Defendant Spotora’s further response to RFAs Nos. 3, 7-15, 17-20, 22-24, 26-32.

On June 8, 2022, RLGPC served the RFAs 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 RFAs 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 RFAs 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, Exh. D.) 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. (Reif Decl. ¶ 7, Exh. E; Greene Decl. ¶ 6.) However, no further response was provided. (Reif Decl. ¶ 7.)

Here, Spotora’s objections to each of the at issue RFAs that are identical. The original response provided that:

“Responding Party Objects to this request on the basis that it is prefaced by an improper and unauthorized set of instructions in violation of CCP 2033.060 (d). Responding Party further Objects to this request on the basis that it improperly refers to a separate outside unattached document and/or its alleged contents and is therefore not full and complete in and of itself in violation of CCP 2033.060 (d). Responding Party further Objects to this request on the basis that it is grossly compound, conjunctive and/or disjunctive and is not complete in and of itself in violation of CCP 2033.060 (d) and (f).” (Original Response to RFAs No. 3, 7-15, 17-20, 22-32.) In supplemental response, Cross-Defendant Spotora reasserted the same objections but also included substantive responses subject to those objections. Specifically, “Without waiving these objections responding party responds as follows: Admit that we were provided with an unacceptable agreement.” (Further Response to RFA No.3.) “Without waiving these objections responding party responds as follows: Deny to the extent that Reif Law Group was never to exceed my insurance policy coverage with Nationwide.” (Further Response to RFAs Nos. 7-12, 15, 26-32.) “Without waiving these objections responding party responds as follows: I cannot answer this request without reviewing the actual document.” (Further Response to RFAs Nos. 13-14, 17-20, 24.) “Without waiving these objections responding party responds as follows: Admit that Brandon Reif retained experts without Responding Party’s authorization.” (Further Response to RFAs Nos. 22-23.)

Spotora’s objection that the requests for admission are compound are unsupported. “No request for admission shall contain subparts, or a compound, conjunctive, or disjunctive question” (CCP § 2033.060(f).) Since any question using an ‘and’ or ‘or’ could be compound and conjunctive this “‘rule should probably apply only where more than a single subject is covered by the question.’” (Clement v. Alegre, (2009) 177 Cal. App. 4th 1277, 1291) [quoting Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, supra, ¶ 8:978.1, p. 8F–21] [emphasis in original].) Here, each of the requests at issue involves a single subject and is thus not a compound question. For example, RFA No. 18, requests Spotora to “[a]dmit that from September 1 through September 5, 2019, Brandon Reif sent Anthony J. Spotora multiple emails that even though his policy limits had eroded, multiple litigation tasks had to be incurred, including the retention of necessary expert witnesses.” This involves a single topic – i.e., an exchange of emails regarding the necessity multiple litigation tasks despite the policy limit having eroded.

Similarly, Spotora’s objection on the grounds that each request is not full and complete in and of itself is unsupported. (CCP § 2033.060(d).) To the extent that there is some instruction, no party has filed any indication showing as such. Further, each request is self-explanatory in that no special terms are needed to understand the requests. Though the RFAs do cite emails and other documents, the substantive portions have been directly quoted. As such, the RFAs are full and complete in and of themselves.

Accordingly, Spotora’s objections are unsupported. Spotora must serve further, code compliant responses without objection.[1] Therefore, Cross-Complainant RLGPC’s motion to compel further responses is GRANTED.

RLGPC seeks sanctions of $3,097.50 against Spotora and his counsel of record, Greene. RLGPC’s Counsel states that he bills at an hourly rate of $675.00 per hour and spent 4.5 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 [further response], 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 § 2033.290(d) [italics added].) Accordingly, sanctions are mandatory unless the circumstances make the imposition of sanctions unjust.

However, a firm represented by its member is self-represented. (Sands & Associates v. Juknavorian (2012) 209 Cal.App.4th 1269, 1276 [147 Cal.Rptr.3d 725, 729.) A self-represented attorney cannot obtain attorney’s fees. (See Argaman v. Ratan (1999) 73 Cal.App.4th 1173, 1180 [“an attorney litigating in propria persona may not be awarded monetary discovery sanctions based on compensation for time and effort expended as a result of a misuse of the discovery process.”].) Here, the only cost identified is the filing fee of $60. (See Kravitz v. Superior Court (2001) 91 Cal.App.4th 1015, 1020 [“a pro se lawyer cannot recover attorney's fees as a discovery sanction. But we think that some of the costs that pro se litigants incur, if reasonably identifiable and allocable, are recoverable as sanctions-even though those costs are ones that lawyers ordinarily include in their hourly rates or other fee structures.”].)

Here, Cross-Complainant RLGPC’s Counsel – Brandon S. Reif is the managing shareholder of RLGPC. Therefore, RLGPC is self-represented for purposes of attorney’s fees, and the Court cannot award attorney’s fees to this self-represented party as sanctions. Accordingly, only the filing fee of $60 is permitted for monetary sanctions.

Anthony J. Spotora is ordered to pay sanctions to Reif Law Group, P.C. by and through counsel of record, in the amount of $60.00, within 30 days.

On April 11, 2023, the Court awarded attorney’s fees to RLGPC as a discovery sanction. This resulted from an oversight as RLGPC is a self-represented party and should not have been awarded sanctions. Given the authority above, the Court is inclined to reconsider its previous order.

The court may reconsider an interim order previously issued on its own motion, but any written submission that the court do so by a party must comport with either section 437c(f)(2) or 1008(c). (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1107-1108. If the court wishes to reconsider on its own motion, “it should inform the parties of this concern, solicit briefing, and hold a hearing.” (Id. at p.1108.) The responding party does not bear the burden of opposition unless the court indicates an interest in reconsideration. (Ibid.)

Based on the authority above, the Court is inclined to modify its April 11, 2023 Order changing the award of sanctions to RLGPC from $2,085.00 against Cross-Defendant Anthony J. Spotora to an award of costs only of $60.00.

Any party who opposes the Court’s own motion for reconsideration articulated above must file and serve a written opposition (not exceeding 15 pages) no later than June 9, 2023. The hearing on Motion for Reconsideration of Court's April 11, 2023 Order is scheduled for June 27, 2023 at 08:30 AM in Department 26 at Stanley Mosk Courthouse.

Based on the foregoing, Cross-Complainant Reif Law Group, P.C.’s motion to compel a further response to Request for Admission, Set One from Cross-Defendant Anthony J. Spotora is GRANTED.

Cross-Defendant Anthony J. Spotora is ordered to serve further, verified, code compliant responses as to Request for Admissions, Set One Nos. 3, 7-15, 17-20, 22-24, 26-32 within twenty (20) days of notice of this order.

Anthony J. Spotora is ordered to pay sanctions to Reif Law Group, P.C. by and through counsel of record, in the amount of $60 within 30 days.

The Court is inclined on its own motion to modify its April 11, 2023 Order, reducing the award of sanctions against Cross-Defendant Anthony J. Spotora from $2,085.00 to an award of costs only of $60.00.

Moving Party is to give notice to all parties (including Anthony J. Spotora, Esq. at his address on file with the California State Bar and through his counsel Lance Greene at his new address) and file proof of service of such within 2 court days. Lance Greene is also ordered to give notice to Anthony J. Spotora, Esq. at his current address and file proof of service of such within 2 court days.

[1] Spotora’s supplemental, substantive responses are evasive in that they each rephrase and recharacterize the request for admission and admit a different fact than the corresponding, original request for admission. Thus, Spotora’s supplemental, substantive responses are not code-compliant

County of Los Angeles

Department 26