Judge: Frank M. Tavelman, Case: 22BBCV00461, Date: 2023-03-03 Tentative Ruling

Case Number: 22BBCV00461    Hearing Date: March 3, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION TO COMPEL FURTHER RESPONSES

ALLEGATIONS: 

On June 24, 2022 Mikayel Israyelyan (“Plaintiff”) filed a complaint against Krikor Bardakjian (“Bardakjian”), Krikor Bardakjian, DDS, Inc., Noho Dental Group by Bardakjian DDS, Inc., Sherman Oaks Dental Group by Krikor Bardakjian DDS, Inc., and 485 Cliff Dr. LLC, alleging nine causes of action.  The Complaint seeks compensatory damages in excess of $3,000,000.00, general damages, punitive and exemplary damages, attorney’s fees and costs of suit.

Defendant and Cross-Complainants BDP filed their Cross Complaint (“XC”) on August 2, 2022, against Mikayel Israyelyan (“Israyelyan”), Alina Bagasian (“Bagasian”), Liana Sahakyan (“Sahakyan”), Suren Minasyan (“Minasyan”), Irnes Okanovich (“Okanovich”), Muse Lifestyle Group, LLC (“Muse”), Laureate Aesthetics Management (“Laureate”), and Does 1 Through 50, alleging 15 causes of action and seeking a jury trial as to triable issues, general, special, actual and compensatory damages, exemplary and punitive damages, attorneys fees, cost of suit, restitution and disgorgement of all benefits and other undue compensation obtained by Cross-Defendants at the expense of Cross-Complainants, declaratory and punitive damages, interest, equitable and/ or injunctive relief, nominal damages, and other relief that the Court deems proper.

HISTORY:

Plaintiff filed his Motion to Compel Further Responses to Requests for Production of Documents on January 20, 2023. Bardakjian filed his opposition on February 17, 2023. Reply was filed February 24, 2023.

RELIEF REQUESTED:   

Plaintiff requests that the Court issue an order compelling Bardakjian’s responses to Plaintiff’s first set of Requests for Production of Documents and to award monetary sanctions in the amount of $3,661.65.

ANALYSIS: 

I.                LEGAL STANDARD 

A motion to compel further responses to a demand for inspection or production of documents (“RFPD”) may be brought based on: (1) incomplete statements of compliance; (2) inadequate, evasive, or incomplete claims of inability to comply; or (3) unmerited or overly generalized objections.  (C.C.P. § 2031.310(c).) 

A motion to compel further production must set forth specific facts showing good cause justifying the discovery sought by the inspection demand. (See C.C.P. § 2031.310(b)(1).) In Digital Music News LLC v Superior Court (2014) 226 Cal.App.4th 216 at 224, the Court defined “good cause” as a showing that there is “a disputed fact that is of consequence in the action and the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact.”  

If the moving party has shown good cause for the requests for production, the burden is on the objecting party to justify the objections. (Kirkland v. Superior Court (2002) 95 Cal. App.4th 92, 98.) 

"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." (C.C.P. § 2017.020(a).) Generally, objections on the ground of burden require the objecting party to produce evidence of (a) the propounding party's subjective intent to create burden or (b) the amount of time and effort it would take to respond. (See West Pico Furniture Co. of Los Angeles v. Superior Court (1961) 56 Cal.2d 407, 417.) However, no such evidence is necessary where discovery is obviously overbroad on its face. (See Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431.)  

“In many cases involving untimely responses, the propounding party will take the motion off calendar or narrow its scope to the issue of sanctions.” (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390.) “If the propounding party proceeds with the motion, however, the trial court has the discretion to rule on the motion. The trial court might compel responses without objection if it finds no legally valid responses have been provided to one or more interrogatories; it might deny the motion to compel responses as essentially unnecessary,  in whole or in part, and just impose sanctions; it might treat the motion as one under section 2030.300 and either determine that further answers are required, or order the propounding party to “meet and confer” (§ 2030.300(b)) and file a separate statement (Cal. Rules of Court, rule 3.1020(a)(2), (c)); or it might take the motion off calendar, thereby requiring the propounding party to file a motion under section 2030.300.” (Id.)

II.              MERITS

The Court notes that Plaintiff filed their motion to compel further responses on January 20, 2023. Plaintiffs first set of Requests for the Production of documents totaled 203 categories of documents to be produced and were propounded on Bardakijan on October 7, 2022. Bardakijan initially produced a list of objections to each of these requests on various grounds. On December 15, 2022 Plaintiff requested that responsive documents be served by December 22, 2022. The parties then agreed to extend this deadline to January 20, 2023. Bardakijan did not render the documents as per the agreed upon extension deadline, instead rendering a total of 3,096 documents in response on February 16, 2023. Bardakijan explains that he was out of country due to the sudden passing of his father and was unable to comply with the January 20 deadline. (Oppo. pg. 4.) At that time Bardakijan requested Plaintiff remove this motion from the calendar. (Oppo. pg. 5.) Bardakijan then filed his opposition to the motion on February 17, 2023. Plaintiff declined to remove the motion from the calendar and filed a reply on February 24, 2023.

As the motion was filed prior to the late service of the documents the Court finds that it cannot grant the motion as filed. Plaintiff’s motion was filed with a separate statement that responds to the objections originally rendered by Bardakijan as pursuant to CRC Rule 3.1345(c). The legal reasoning provided for the request to produce further documentation as to each of the 203 documents requests thus reflects Bardakijan’s original objections and not the documents Bardakijan ultimately rendered. The Court is unable to parse out which of the 203 documents remain needing further production without further instruction from the parties.

Plaintiff acknowledges in their reply that they received documents which correspond to their requests but that there remain documents to be produced which were not satisfied. Specifically, plaintiff claims the following issues:

·       Bardakijan’s documents contained no communications related to the Letter of Intent as requested in RFPD Nos. 1-4.

·       Bardakijan’s only produced some documents relating to banking statements and tax records from 2013 to present as requested by RFPD Nos. 7-12.

·       In response to RFPD Nos. 15, 16, 31, 32, 33, Bardakijan supplemented his responses to state that the responsive documents are not in Defendant’s possession.

·       Bardakijan claims that the documents in RFPD Nos. 34 – 7 that the documents are not in his possession.

·       Bardakijan objects to RFPD Nos. 72 – 203 on the basis that Plaintiff is in possession of “most” of the documents requested. Plaintiff argues that at the least Bardakijan must specify which of these documents Plaintiff controls.

The Court finds Plaintiff’s Reply to be enlightening but it does not contain the legal reasoning required by CRC Rule 3.1345(c), nor does it afford Plaintiff the opportunity to respond in kind. The Court recognizes that this is not the fault of the Plaintiff as they are simply responding within the confines of a Reply. Regardless the Court is unable to make a determination as to what documents remain to be produced without proper outlining of the legal issues as per CRC Rule 3.1345(c). The Court does not wish to reward Bardakijan’s untimely response to the requests for documents, but it similarly does not wish to entirely grant a motion to compel which is based on outdated arguments.  

In light of these issues the Court finds that it would be most advantageous to continue this motion and hold an informal discovery conference or the parties may meet and confer regarding any missing documents. The Court orders that Plaintiff appropriately outline the legal issues for the documents which remain to be produced.

Sanctions

The Court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. (C.C.P. § 2023.030(a).) As concerns motions to compel, the law only requires sanctions in the event that a party unsuccessfully makes or opposes a motion to compel a response. (C.C.P. §§ 2031.300 and 2031.290.) As such, any monetary sanctions granted are within the discretionary power of the Court as per C.C.P. § 2030.290.

“The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though … the requested discovery was provided to the moving party after the motion was filed.” (Sinaiko supra, at 409.)

Bardakijan argues that he should not be subject to sanctions as his initial objections were meritorious and therefore not insubstantial. The fact that Bardakijan then rendered thousands of documents in response belies the fact that the initial objections were insubstantial. While the Court recognizes that Bardakijan’s late response was due in part to his father’s passing, it also notes that Bardakijan did not request a further extension of the time to reply.   The Court will defer  decision on sanctions until after the additional meet and confer, optional informal discovery conference and a determination of what documents remain outstanding and what it any legal basis may exist for failing to comply with discovery.

III.            CONCLUSION

The Court orders the current motion continued pending the conducting of a further meet and confer or an informal discovery conference to be scheduled at the date of the hearing. The Court orders Plaintiff to prepare a summary of the documents whose production remains.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Mikayel Israyelyan’s Motion to Compel Further Responses to Requests for Production of Documents came on regularly for hearing on March 3, 2023, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS IS CONTINUED TO APRIL 14, 2023 AT 9:00 AM PENDING FURTHER MEET AND CONFER OR AN INFORMAL DISCOVERY CONFERENCE, AND SUPPLEMENTAL BRIEFING.

PLAINTIFF IS ORDERED TO PREPARE A SUMMARY OF THE DOCUMENTS WHOSE PRODUCTION REMAINS IN PREPARATION FOR THE IDC.

SANCTIONS WILL BE DETERMINED AT THE NEXT COURT DATE.

UNLESS ALL PARTIES WAIVE NOTICE, PLAINTIFF TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE: March 3, 2023                            _______________________________ 

                                                                         F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles