Judge: Frank M. Tavelman, Case: 23BBCV02695, Date: 2024-10-25 Tentative Ruling
Case Number: 23BBCV02695 Hearing Date: October 25, 2024 Dept: A
The Court is not
requesting oral argument on this matter. The Court is guided by
California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear
is requested. Unless the Court directs argument in the Tentative Ruling,
no argument is requested and any party seeking argument should notify all other
parties and the court by 4:00 p.m. on the court day before the hearing of the
party’s intention to appear and argue. The tentative ruling will become
the ruling of the court if no argument is received.
Notice may be given
either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.
ALLEGATIONS:
Mido Khalil (Plaintiff) brings this action against Ivan
Koumaev, Matt Aylward, Anthony Bellissimo (Individual Defendants), and HUBNOHO,
LLC (Hub) (collectively Defendants). Plaintiff alleges that he and the
individual Defendants formed Hub in 2018 as a partnership. Plaintiff further
alleges that his interest in the partnership has been unjustly usurped by
Individual Defendants. Plaintiff states he has been deprived of profits from
Hub and barred from examining its financial records.
Before the Court are two motions, both brought by Plaintiff.
Plaintiff seeks to compel Hub’s responses to his Form Interrogatories, Special
Interrogatories, and Request for Production of Documents (RFPD). Plaintiff also
seeks to have matters in his Request for Admissions (RFA) deemed admitted. Hub
opposes both motions. Plaintiff replies.
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, he or she
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 C.C.P. § 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).)
II.
MERITS
On
April 2, 2024, Plaintiff served Hub with his Form Interrogatories, Special
Interrogatories, Request for Production of Documents (RFPD), and Request for
Admissions (RFA) via email and mail to Hub’s counsel. (Nwabuzor Decl. ¶ 2,
Exh. 1.) Accordingly, Hub’s responses were due on May 2, 2024. Although it is
not mentioned in Plaintiff counsel’s declaration, it appears from Plaintiff’s June
28, 2024 meet and confer letter that Hub was granted an extension to respond to
May 21, 2024. (See Nwabuzor Decl., Exh. 4.) Plaintiff’s counsel states that no
responses were received as of the filing of these motions on August 24, 2024.
(Nwabuzor Decl. ¶ 5.)
Hub
proposes two arguments in opposition. First, Hub argues that all the discovery
propounded on the four Defendants is identical. From this, Hub reasons that the
responses of Defendant Anthony Bellissimo function to absolve Hub of its
discovery obligations. Second, Hub argues that Plaintiff’s motion is untimely.
The Court will address each argument in turn.
Hub’s
argument concerning identical requests is problematic in several regards. The
Court is not aware of any authority stating that a party does not need to
respond to discovery demands if another party has already responded to
similar/identical demands. Further, Plaintiff issuing identical discovery
demands to the four Defendants does not mean that each Defendant will respond
identically. To the extent that Hub argues all Defendants responses would be
the same, they have failed to demonstrate as such. No discovery responses are
attached to either of Hub’s oppositions, nor has counsel for the Hub stated
whether he represents all Defendants or only Hub. In short, Hub’s argument is
presented without legal or factual support.
Pertaining
to Hub’s timeliness argument, Hub’s counsel asserts that Plaintiff’s motions
are untimely because C.C.P. §§ 2030.300(c), 2031.300(c), & 2033.290(c)
require a motion to compel discovery responses be brought within 45 days. Hub
argues that because its responses were due on May 2, 2024, Plaintiff’s motions
are outside the 45 day limit. This argument is misplaced.
To
begin, Hub’s reference to a 45 day time limit applies to motions to compel further
responses and not motions to compel initial responses. The statutes which
govern motions to compel initial responses, C.C.P. §§ 2030.290, 2031,300, &
2033.280, contain no time limit in which such a motion must be brought.
Even
if this time limit did apply, the Court has serious concerns about the validity
of Hub’s argument. Hub’s oppositions completely omit the fact that Hub’s
counsel obtained an extension of time to reply on multiple occasions. (Nwabuzor
Decl., Exh. 4.) From review of the meet and confer letter it appears that two
extensions were granted. On May 8, 2024, Plaintiff requested, and was granted,
an extension to May 21, 2024. (Id.) On May 17, 2024, a second extension was
requested and granted. (Id.) It appears there is a typo in the meet and
confer letter as this second extended date is also listed as May 21, 2024. Presumably
this second extended date was sometime prior to the June 28 letter. Fortunately,
the Court noticed the incorrect citation to statute and the extensions in
Plaintiff’s exhibit, otherwise it may have been misled as to the time limit for
filing. To argue that Plaintiff’s motions should be denied as untimely based on
the original deadline of May 2, 2024 is at best negligent and at worst something
more nefarious. The Court will presume
the best.
Lastly,
Hub’s counsel represented in his declaration that Hub would serve responses to
all discovery prior to this hearing date. (Jiminez Decl. ¶ 8.) Plaintiff’s
reply papers do not indicate any compliance prior to today’s hearing. Should
Hub be able to demonstrate that it has since served code compliant responses
upon Plaintiff at the hearing, the Court is inclined to declare the motions
moot; they have failed to do so. In either event, the Court finds the
imposition of monetary sanctions is warranted here.
Sanctions
The Court has
discretion to impose a monetary sanction against a party engaging in the misuse
of the discovery process, or any attorney advising that conduct. (C.C.P. §
2023.030(a).) In contrast, the Court must grant sanctions against any party,
person, or attorney who unsuccessfully makes or opposes a motion to compel a response
to interrogatories or RFPD, 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) &
2031.300(c).) Sanctions are also mandatory in cases where of 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).)
Here,
the Court finds the imposition of sanctions to be mandatory as a result of
Hub’s failure to respond timely to RFA. If, after hearing, the motions to
compel are not found mooted by Hub’s subsequent production, sanctions would
also be warranted on grounds of Hub’s opposition being without substantial
justification. In either event, the Court awards sanctions in the amount of
$1,770. This amount reflects three hours of attorney work at a rate of $550 per
hour, as well as the $60 fee for each filing. In the Court’s experience this
amount is sufficient to compensate Plaintiff in bringing these motions.
As a
last matter, the Court cautions that omnibus motions to compel, that is those
which combine Special/Form Interrogatories and RFA, are usually rejected by the
Clerk’s office. In general, motions to compel must be individually filed as to
each type of discovery demand. The Court has elected to consider the merits of
these motions in the interest of expediency, but Plaintiff’s counsel should be
aware that future filings of this nature may be rejected.
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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
Mido Khalil’s Motions
to Compel Responses to Discovery & Deem RFA Matters Admitted came on regularly for hearing on October 25, 2024, 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 MOTIONS TO COMPEL RESPONSES TO PLAINTIFF’S
FORM INTERROGATORIES, SPECIAL INTERROGATORIES, AND REQUESTS FOR PRODUCTION ARE GRANTED.
RESPONSES DUE WITHIN 30 DAYS.
THE MOTION TO DEEM RFA MATTERS ADMITTED IS GRANTED.
SANCTIONS ARE GRANTED IN THE AMOUNT OF $1,770
AS AGAINST COUNSEL FOR HUBNOHO, LLC.
SANCTIONS TO BE PAID WITHIN 30 DAYS.
PLAINTIFF TO GIVE NOTICE.
IT IS SO ORDERED.