Judge: Frank M. Tavelman, Case: 22BBCV00887, Date: 2023-05-05 Tentative Ruling

Case Number: 22BBCV00887    Hearing Date: May 5, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTIONS TO COMPEL DISCOVERY RESPONSES & DEEM RFA MATTERS ADMITTED

On November 11, 2022, Araz Ebrahimpour (“Plaintiff”) filed suit against BMW of North America, LLC (“Defendant”). Plaintiff alleges Defendant violated certain provisions of Civil Code § 1791.2, commonly known as the Song Beverly Act.  

Plaintiff now moves to compel Defendant’s responses to its (1) Form Interrogatories, (2) Special Interrogatories, and (3) Requests for Production of Documents (“RFPD”).

Plaintiff also requests an order deeming Requests for Admissions (“RFA”) matters admitted.  

Plaintiff requests the Court order sanctions against Defendant in the amount of $1,400 for each of the four motions, totaling $5,600.

HISTORY: 

On March 13, 2023, Plaintiff filed his motions to compel responses and to deem RFA matters admitted. On April 27, 2023, Defendant filed a late omnibus opposition as to each motion. Defendant explains it did not file an opposition by the deadline because it was under the impression the case had settled. On May 1, 2023, Plaintiff filed an omnibus reply and objection to Defendant’s declaration in opposition.

OBJECTIONS:

Plaintiff’s objections to the declaration of Abtin Amir are overruled.

ANALYSIS: 

I.                    LEGAL STANDARD 

If a party to whom interrogatories are directed fails to serve a timely response, the propounding party may move for an order compelling response and for a monetary sanction.  (C.C.P. § 2030.290(b).)  The statute contains no time limit for a motion to compel where no responses have been served.  All that need be shown in the moving papers is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served.  (See Leach v. Superior Court (1980) 111 Cal. App. 3d 902, 905-906.) 

Where there has been no timely response to a demand to produce documents, the demanding party may seek an order compelling a response.  (C.C.P. § 2031.300(b).)  Failure to timely respond waives all objections, including privilege and work product.  (C.C.P. § 2031.300, (a).)  Thus, unless the party to whom the demand was directed obtains relief from waiver, they cannot raise objections to the documents demanded. There is no deadline for a motion to compel responses.  Likewise, for failure to respond, the moving party need not attempt to resolve the matter outside court before filing the motion. 

If a party fails to respond to requests for admission in a timely manner, the requesting party may move for an order that the matters be deemed admitted. (C.C.P. § 2033.280(b) The requesting party’s motion must be granted by the court unless the party to whom the requests for admission have been directed has served a proposed response to the requests for admission that is in substantial compliance with Section 2033.220 prior to the hearing.  (C.C.P. § 2033.280(c).)  By failing to timely respond, the party to whom the requests are directed waives any objection to the requests, including one based on privilege or work product.  (C.C.P. § 2033.280(a).) 

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).)

The Court shall impose monetary sanctions 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. (C.C.P. § 2030.290(c).) The same is true for a motion to compel a response to a demand for the production of documents. (C.C.P. § 2031.300(c).)

The Court shall impose monetary sanctions for failure to timely respond to requests for admission unless the party acted with substantial justification, or the circumstances render imposition of sanctions unjust. (C.C.P. § 2033.280(c).) The Court must impose a monetary sanction on the party or attorney whose failure to serve timely Requests for Admission responses necessitated the motion. (Id.)

C.C.P §§ 2030.290(b), 2031.330(b), and 2033.290(b) all provide that a motion to compel responses be accompanied by a meet and confer declaration under § 2016.040. C.C.P. § 2016.040 states a meet and confer declaration shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue.

II.                 MERITS

Meet and Confer

In support of each motion Plaintiff submits the declaration of his counsel, Sam Azimtash (“Azimtash”). Azimtash states Plaintiff propounded his Form Interrogatories, Special Interrogatories, RFPD, and RFA on January 3, 2023, via email to Plaintiff’s counsel. (Azimtash Decl. Exh. B.) On February 1, 2023, Plaintiff granted a 30-day extension to reply to these requests. (Id. ¶ 4.) Plaintiff states he received no responses as of the extended deadline and so filed these motions. (Id. ¶ 5.) Azimtash makes no statements in his initial declaration referring to an informal effort to meet and confer before bringing this motion. Azimtash does submit correspondence with Defendant’s counsel, labeled Exhibit C.

In an email to Defendant’s counsel on February 2, 2023, Azimtash states:

Discovery was only served after my client's reasonable demand with a reasonable window to review/consider/accept was made and expired. The onus to follow up with your client is with your office, not mine, and several weeks passed before BMW formally rejected our offer with today's counteroffer.

I'll be on standby for now. I recently granted your office's request for a 30-day discovery extension. I don't see much need for work until the responses are due, other than answering my client's occasional call and engaging in today's discussion.

If we have not settled my client's portion of the pending action by the time your client's discovery is currently due, I will likely prepare a 998. It sounds like we won't need to get there, but at least you have some transparency with respect to our litigation strategy.

As a final note, if you have a proposed SAR you'd like to use, I'm happy to take a look at that in advance to avoid any hiccups down the road. I assume it will be similar to our other shared matter but correct me if I'm wrong.

(Azimtash Decl. Exh. C.)

In an email to Azimtash on March 8, 2023, Defendant’s counsel Abtin Amir (“Amir”) replies:

After much back and forth, I got authority to offer you repurchase with the terms you requested, including registration renewal, and fees at $8,500 rather than the $5,000 previously offered. We will send you BMW's standard settlement agreement today so we can wrap up. If you haven't already, please send us the most recent registration and your firm's W9.

(Azimtash Decl. Exh. C.)

Also on March 8, 2023, a Madeline Messinger (“Messinger”) from Amir’s office replies:

As previously discussed, please find attached BMW NA's standard settlement agreement and stipulation for a repurchase. We will modify the repurchase number within the SAR as soon as you send us proof of payment for your client's registration renewal as previously conveyed.

Thank you for working with us in good faith to wrap this up. Given that our client has agreed to your client's terms of settlement, we will hold off on sending you discovery responses for another two weeks while we focus on wrapping this one up. If this is not agreeable, please let us know as soon as possible.

If you have any questions or would like to discuss, please give us a call or email us back here. Thanks again and have a great evening.

(Azimtash Decl. Exh. C.)

The Court finds from Azimtash’s original declaration the parties were in settlement discussions with the final terms to be worked out. It appears the parties intended to hold off on discovery while the parties worked out the terms of the settlement. Azimtash indicated to Defendant’s counsel that if an agreement was not reached by the discovery deadline his likely course of action would be to prepare an offer under C.C.P. § 998. (Azimtash Decl. Exh. C.) In addition, Messinger’s email stated an intention to delay sending discovery responses while the parties focused on finalizing a settlement agreement. (Id.)

Plaintiff and Defendant both submit declarations attesting to the settlement discussions that occurred between February 2, 2023 and the filing of Plaintiff’s reply on May 1, 2023. The Court finds most of these discussions are irrelevant to whether Plaintiff sufficiently met and conferred in good faith prior to the filing of the motions. With respect to that determination, the only communications which matter are those that occurred before Plaintiff filed his motions on March 13, 2023.

Plaintiff submits a supplemental declaration of Azimtash in reply. This declaration provides the entire email chain regarding settlement and discovery responses, attached as Exhibit E.

Azimtash’s declaration states he sought reassurance discovery responses were forthcoming on March 13, 2023. (Azimtash Supp. Decl. ¶ 4G.) Exhibit E to Azimtash’s supplemental declaration contains only one communication from him on March 13, 2023 prior to filing the motion. The email states:

Your email and Madeleine's email are written as if a settlement was reached when that certainly was never the case. Our email history in this chain makes it abundantly clear that your client did not accept our written repurchase demand with $8,500 in fees/costs prior to its expiration. Following the expiration of this offer, we promptly propounded discovery and have communicated with our client.

Your pending offer ("offer," not settlement) is rejected. I will remind you that we can agree to settle my client's claim and leave the issue of fees up to the Court, but for some reason you insist on not doing this and rather take significant issue with our demanded fees/costs.

We have had no discussions other than 1 initial phone call on this case, so I am not sure why you keep saying "as previously discusse as if we had a more recent conversation. This is intentionally misleading and clouding the written record. To make it abundantly clear, our pending offer is a repurchase plus fees by motion, with an agreement that Plaintiff is the prevailing party. We do not intend on further negotiating our fees with you directly, as it is clear you have no intention of doing this in good faith. I have no doubt you would say the same about my [sic] and my firm -- all the more reason to allow the Court to hear the issue.

(Azimtash Supp. Decl. Exh. E.)

The Court finds the above email makes no mention of discovery responses. This email was sent on March 13, 2023 at 2:01 p.m. (Azimtash Supp. Decl. ¶ 4G.)  Azimtash states it was clear Defendant was purposefully withholding discovery responses. (Azimtash Supp. Decl. ¶ 4H.)  Azimtash proceeded to file the motions to compel on March 13, 2023 at 3:16 pm. (Id.) The Court finds Azimtash’s vaguely worded email an hour prior to filing the motions to compel to be insufficient evidence of a good faith effort to informally resolve the matter. As such, the Court does not find that the parties have met and conferred concerning the discovery responses.  The parties are ordered to meet and confer on this issue.

The Court, on its own motion, continues Plaintiff’s motions to compel and deem RFA matters admitted. The motion is continued to June 9, 2023 at 9:00 a.m. Parties are ordered to further meet and confer regarding the discovery demands.

The Court reminds the parties that C.C.P. § 2023.020 provides “Notwithstanding the outcome of the particular discovery motion, the court shall impose a monetary sanction ordering that any party or attorney who fails to confer as required pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.”

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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 

Araz Ebrahimpour’s Motions to Compel Discovery Responses and to Deem Requests for Admissions Matters Admitted came on regularly for hearing on May 5, 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: 

PLAINTIFF’S MOTIONS TO COMPEL DISCOVERY RESPONSES AND  TO DEEM REQUESTS FOR ADMISSIONS MATTERS ADMITTED IS CONTINUED TO JUNE 9, 2023 AT 9:00 A.M.

PARTIES ARE ORDERED TO FURTHER MEET AND CONFER.

UNLESS ALL PARTIES WAIVE NOTICE, PLAINTIFF TO PROVIDE NOTICE.