Judge Gail Killefer, Case 21STCV09560 2022-09-19 Tentative Ruling

Judge: Gail Killefer, Case: 21STCV09560, Date: 2022-09-19 Tentative Ruling

Case Number: 21STCV09560 Hearing Date: September 19, 2022 Dept: 37

HEARING DATE: September 19, 2022

CASE NUMBER: 21STCV09560

CASE NAME: Jason Lanc v. Nick T. Movagar, et al.

MOVING PARTIES: Defendants, Nick T. Movagar, Steven Sibouye Yamin, Daniel J. Reeves, and Movagar & Yamin, APLC.

OPPOSING PARTY: Plaintiff, Jason Lanc

TRIAL DATE: July 5, 2023

PROOF OF SERVICE: OK

PROCEEDING: Defendants’ Motions to Compel Further Responses to Special Interrogatories, Sets One, and Requests for Production of Documents, Sets One.

OPPOSITION: June 7-9, 2022; Late Filed on August 22, 2022.

REPLY: June 14, 2022; M&Y—Limited Reply filed August 23, 2022

Tentative: Defendant Movagar’s motions are granted. Defendant M&Y’s motions are also granted as to Special Interrogatories 1-3,5-16, and Requests for Production 1-4, and otherwise denied. Plaintiff is to serve verified, supplemental responses and produce documents within 30 days of this date. Defendants’ request for sanctions are denied. Defendants are to give notice.

Background

This action arises in connection with the representation by Nick Movagar, Steven Yamin, Daniel Reeves and Movagar & Yamin, A Professional Law Corporation (collectively “Defendants”) of Plaintiff, Jason Lanc (“Plaintiff”) in a personal injury action, Jason Lanc v. Liana Hovhannisyan (“Underlying Case”). While Defendants represented Lanc in the Underlying Case through several stages of litigation, the matter was negotiated to settlement with different counsel for Plaintiff. Defendants allegedly Defendants sought to prevent the settlement in order to enforce their rights as Plaintiff’s alleged counsel of record.

On March 11, 2021, Lanc filed this lawsuit again all Defendants alleging claims for: (1) Intentional Interference with Contract; (2) Conversion; (3) Breach of Fiduciary Duty; (4) Declaratory Relief; (5) Intentional Infliction of Emotional Distress; and (6) Negligent Infliction of Emotional Distress.

In an effort to allow Lanc to obtain the settlement sum of $250,000, which was deposited with the Court by former Defendant and Cross-Complainant Safeco, the Parties submitted a Joint Stipulation to the Court on July 29, 2021 for: (1) Discharge of Defendant and Cross-Complainant Safeco; (2) Dismissal of Plaintiff Jason Lanc’s Complaint against Defendant and Cross-Complainant Safeco; and (3) Dismissal of Defendant and Cross-Complainant Safeco’s Cross-Complaint against all Cross-Defendants without Prejudice. The Joint Stipulation was entered by court order on July 30, 2021.

Since the Joint Stipulation, the parties have attempted to informally resolve Defendants’ claims for the reasonable value for their services, but have not come to a resolution.

On May 4, 2022, the court granted Defendants’ request to file a Cross-Complaint in this action against Plaintiff and to name as Cross-Defendants, Michael S. Brown (“Brown”) and California Lawyers Group LLP (“CLG”) alleging: (1) Equitable Indemnity; (2) Contribution; (3) Declaratory Relief regarding Equitable Indemnity and Contribution; and (4) Quantum Meruit. On May 5, 2022, Defendants filed their cross-complaint alleging these causes of action.

Defendants Nick Movagar and Movagar & Yamin (together “Moving Defendants”) have moved to compel responses from Plaintiff on four separate sets of discovery requests: two motions regarding special interrogatories and two motions regarding requests for production of documents. After the parties failed to come to a resolution during an Informal Discovery Conference, the court now considers all four motions together.

Evidentiary Objections

Defendant Movagar’s Objections to Declarations of Michael S. Brown

Objection 1-7: Sustained, Declarant makes improper legal conclusions, argumentative contentions, and lacks personal knowledge and foundation for these claims.

Defendant M&Y’s Objections to Declaration of Michael S. Brown in Opposition to Motion to Compel Further Responses to Special Interrogatories, Set One

Objection 1-7: Sustained. Identical objections as Defendant Movagar above. Declarant lacks personal knowledge and foundation for these claims, makes improper legal conclusions, and argumentative.

Defendant M&Y’s Objections to Declaration of Michael S. Brown in Opposition to Motion to Compel Further Responses to Requests for Production of Documents, Set One

Objection 1-8: The declaration of Plaintiff’s counsel, as part of Plaintiff’s opposition is untimely, as a timely opposition was due August 15, 2022. (CCP §§ 1005(b), 1013(c).) The court does not consider this declaration in making its ruling. (Cal. Rules of Court, Rule 3.1300(d).)

Procedural History

Defendant Nick T. Movagar served Plaintiff with Requests for Production, Set One and Special Interrogatories, Set One on February 8, 2022. (Declaration of Courtney Serrato (“Serrato Decl.”), ¶ 2.) After several correspondences, missed deadlines, and grants of extensions, Defendant Nick Movagar represented to Plaintiff’s counsel that responses were finally due omitting all objections on April 8, 2022. (Serrato Decl. ¶¶3-9.) Most notably, on one occasion, Plaintiff’s counsel failed to serve timely responses on the agreed deadline, and only after failing to serve timely responses and receiving a meet and confer letter from Defendants’ counsel, the parties agreed to a further extension. (Id.) On April 8, 2022, Plaintiff served objection only responses in response to all sixty-eight interrogatories in Special Interrogatories, Set One, and thirty-one requests in Requests for Production, Set One. (Serrato Decl. ¶¶10-11.) No Amended Responses have been filed.

On April 4, 2022, Defendant Movagar & Yamin served Plaintiff with Requests for Production, Set One and Special Interrogatories, Set One. (Movagar & Yamin Serrato Decl. ¶2.) Again, after several correspondences, missed deadlines, and grants of extensions, Plaintiff’s responses were due by May 25, 2022. (M&Y Serrato Decl. ¶¶3-6.) On May 19, 2022, Plaintiff served objection only responses to Defendant’s Special Interrogatories and Requests for Production of Documents, Sets One. (M&Y Serrato Decl. ¶7.)

Meet and Confer Efforts

A motion to compel further responses “shall be accompanied by a meet and confer declaration.” (CCP § 2031.310(b)(2).) The declaration must state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented in the motion. (CCP § 2016.040.) “[A] reasonable and good faith attempt at informal resolution entails something more than bickering with [opposing] counsel…. Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.” (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294.)

Defendants submit the declaration of their counsel Courtney Serrato to demonstrate compliance with statutory meet and confer requirements. Serrato attests that the parties have met and conferred on “numerous accounts” and Plaintiff’s counsel ultimately did not respond to requests for a call but served allegedly insufficient discovery responses. (See both Serrato Decl.)

On June 21 and July 7, 2022, the parties participated in an Informal Discovery Conference regarding the discovery at issue.

The Serrato Declarations are sufficient for purposes of CCP § 2031.310.

Discussion

I. Legal Authority

On receipt of responses to requests for production, the propounding party may move for an order compelling a further response if the propounding party deems that a statement of compliance is incomplete, a representation of inability to comply is inadequate, incomplete, or evasive, or an objection in the response is without merit. (See CCP §§ 2030.310(a)(1)-(3).) The moving party must also include reasons why further answers should be ordered: legal or factual arguments why the answers given were incomplete or nonresponsive, or the objections invalid. (Cal. Rules of Court, rule 3.1345(c).) The responding party has the burden to justify objections in response to a motion filed to compel further responses. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.)

CCP §§ 2030.290(a) and 2031.300(a) provide that a party who fails to timely respond to interrogatories and inspection demands waives all objections to the interrogatories and demands, as well as any right to exercise the option to produce writings under CCP § 2030.230 in response to the interrogatory.¿ The court, on motion, may relieve that party from its waiver on the court’s determination that: (1) the party has subsequently served a response that is in substantial compliance with the Discovery Act, and (2) the party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.¿¿(CCP §§ 2030.290(a); 2031.300(a).)¿

II. Timeliness

A motion to compel further responses to inspection demands must be filed within 45 days of service of the verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, with additional time allowed for the manner of service. (CCP §§ 1013(a); 2031.310(c).) The 45-day requirement of CCP § 2031.310(c) is mandatory and jurisdictional in the sense that it renders the court without authority to rule on a motion to compel further responses to discovery other than to deny the motion. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)

As these discovery motions were first heard by this court during the July 7, 2022 Informal Discovery Conference, and were set for further hearing on this date, the motions are timely.

III. Analysis

According to Defendants’ Separate Statements, Nick T. Movagar requests an order compelling further responses to Requests for Production, Set One, numbers 1-28, 30 and 31; as well as further responses to Special Interrogatories, Set One, numbers 1-68. Movagar and Yamin (“MY”) requests an order compelling further responses to Requests for Production, Set One, numbers 1-4; as well as further responses to Special Interrogatories, Set One, numbers 1-16.

The court will address the parties’ arguments about each request individually.

Movagar Special Interrogatories:

No. 1: State all facts that YOU intend to rely on in support of YOUR Complaint.

Plaintiff objected to this request on the grounds that it is incomplete in its definitions, and “seeks to obtain information through counsel’s personal though processes and therefore invades the attorney work product privilege.” (Separate Statement in Support of Motion, 2-2.)

Defendant contends that pursuant to CCP § 2030.290(a), Plaintiff has served an untimely response and therefore waived “any right to any objection to the interrogatories.” (Movagar Sep. Statement, 3.) Plaintiff asserts that Plaintiff was provided three-time extensions and served responses three weeks after the initial deadline of March 14, 2022. (Opp., 8.) Plaintiff contends he “never agreed to that condition” of waiving objections. (Id.) Plaintiff also contends Movagar’s Special Interrogatories do not comply with CCP § 2030.060 as they have a preface of instructions, and further asserts that the moving papers provide insufficient ground for finding good cause to grant the motion to compel. Plaintiff further contends that the grounds for the order sought have not been stated in the Separate Statement as required by CCP § 1010. (Opp., 13-15.)

In reply, Movagar explains that even with the requested extensions, “Defendant clearly laid out in a meet and confer letter that Plaintiff had waived all rights to object to Defendant’s Special Interrogatories,” yet Plaintiff only served his responses two weeks later on April 8, 2022. (Reply, 2.) “Plaintiff’s Opposition argues that Defendant’s additional courtesy extensions somehow extended Plaintiff’s right to assert objections, but that is simply not the case.” (Id.) Further, the court notes Plaintiff has pointed to no supporting authority which can show that opponent’s granting of extensions necessarily shields the party from the waiver of objections as defined by section 2030.290. The court further notes that Plaintiff has not requested relief from waiver of these objections before the court, and has further not shown that his failure to serve timely responses was due to the “result of mistake, inadvertence, or excusable neglect,” pursuant to CCP §§ 2030.290(a); 2031.300(a).

The court finds that a further response to this request is required. Movagar contends that Plaintiff’s response is incomplete because Plaintiff served responses with only objections to the interrogatory. Plaintiff does not dispute this assertion.

For these reasons, Movagar’s motion is granted as to this request.

No. 2-68: All remaining responses to Special Interrogatories Numbers 2-68 are objection-only responses served by Plaintiff. As discussed above, Plaintiff has provided no supporting authority to necessitate a shield against the waiver of objections as defined by CCP § 2030.290. While Plaintiff attempts to point to deficiencies in the Separate Statement, Plaintiff’s counsel failed to serve discovery responses as due on two separate occasions and only after failing to meet the deadline, met and conferred with Movagar to be granted further extension, when Plaintiff’s counsel served objection-only responses to Movagar’s Special Interrogatories.

The court therefore finds that a further response to these requests is required. As discussed above, Plaintiff does not dispute the assertion that he served objection-only responses to all interrogatories.

For these reasons, Movagar’s motion is granted as to requests for Special Interrogatories no. 2-68.

Movagar Requests for Production of Documents:

Nos. 1-28, 30-31: Plaintiff also served objection-only responses to Movagar’s Requests for Production of Documents, Set One, numbers 1 through 28, 30 and 31. As explained above, Movagar contends that responses to the requests were due on March 24, 2022, and Movagar received no responses. (Motion, 3-5.) After the parties agreed to several extensions, Plaintiff finally served objection-only responses to the requests in question on April 8, 2022. (Id.)

Plaintiff again asserts that Plaintiff served timely responses, but Movagar’s reply makes clear that Plaintiff’s assertions “that Defendant’s additional courtesy extensions somehow extended Plaintiff’s right to assert objections,” are not supported by the Code of Civil Procedure, or other authorities. (Reply, 2-3.)

The court therefore finds that a further response to these requests is required. As discussed above, Plaintiff never disputes the assertion that he served objection-only responses to all interrogatories.

For these reasons, Movagar’s motion is also granted as to Requests for Production of Documents no. 1-28, 30, and 31.

M&Y Special Interrogatories:

Nos. 1-3, 5-16: With regards to Defendant M&Y’s Special Interrogatories, requests 1 through 3 and 5 through 16, Plaintiff again has served objection-only responses. (M&Y Separate Statement, 2-19.) M&Y further explains that responses to these Interrogatories were due on May 6, 2022, and when Defendant did not receive timely responses, sent a meet and confer letter to Plaintiff on May 9, 2022. (Motion, 4.) After two additional courtesy extensions, Plaintiff served objection-only responses on May 19, 2022. (Id.)

Plaintiff again contends that this discovery has “overburdened” Plaintiff and “service of aggregated discovery is needlessly burdensome.” (Opp., 8-9.) To support this contention, Plaintiff simply points to the number of discovery requests propounded by both Defendants. (Id.) Plaintiff again points to issues internally with Plaintiff’s counsel’s associate, counsel’s firm, and an ambiguity over the term “incident.” (Opp., 9.) However, Plaintiff again does not explain as to why Plaintiff’s counsel did not address such ambiguities before the response deadline, and also did not confer with Defendant regarding the personnel issues of the firm prior to the discovery response deadline. As such, Plaintiff again does not show how any of this alleged conduct can be seen as “excusable neglect” under CCP §§ 2030.290(a); 2031.300(a).

In Defendant’s reply, M&Y clearly contends that no responses were received by May 6, 2022, when the responses to these Interrogatories were due. (Reply, 2.) M&Y further again explains that after the deadline had passed, Plaintiff’s counsel did not attempt to seek an extension until M&Y’s May 9, 2022 meet and confer letter. (Id.) Thereafter, Plaintiff was granted two extensions, and yet only served objection-only responses. (Id.) As discussed above, Plaintiff has not shown how any of his conduct can be seen as a shield against the waiver of objections, and Plaintiff further has not requested a relief from such waiver before this court.

The court therefore finds that a further response to these requests is required. As discussed above, Plaintiff again does not dispute the assertion that he served objection-only responses to all interrogatories.

For these reasons, M&Y’s motion is also granted as to Special Interrogatories, nos. 1-3, 5-16.

No. 4: State the exact amount in the aggregate of YOUR medical liens at the time YOU settled YOUR personal injury case Lanc v. Liana Hovhannisyan filed in Los Angeles County Superior Court.

Although Plaintiff’s response included substantially identical objections to the other Interrogatories, Plaintiff did also respond by referring Defendant to inspect and examine documents already produced for such information, namely “Plaintiff’s previously produced healthcare provider liens.” (M&Y Separate Statement, 5.) Thus, even though Plaintiff had waived objections by failing to serve timely responses before asking for extensions, Plaintiff provides an adequate response and identifies responsive documents already produced where Defendant may find the requested information.

The court therefore finds that a further response to this request is not required.

For this reason, M&Y’s motion is denied as to item no.4.

M&Y Requests for Production of Documents:

Nos. 1-4: Plaintiff also provided objection-only responses to M&Y’s Requests for Production of Documents, requests 1 through 4. (M&Y Separate Statement, 2-7.) M&Y again reiterates Plaintiff failed to serve timely responses, only conferred after M&Y sent a meet and confer letter, and after two extensions, again only served objection-only responses to these requests. (Motion, 4-6.)

Plaintiff again contends that timely responses were served, but also does not dispute the assertion that objection-only responses were served. (Opp., 11-14.) In reply, M&Y correctly contends that Plaintiff’s Opposition to this set of Requests was to be briefed following the Informal Discovery Conference before this court. (Reply, 2.) As such, M&Y correctly contends Plaintiff’s opposition was due August 15, 2022, but Plaintiff only filed his opposition on August 20, 2022, five days after the deadline. (Id.) Therefore, aside from the contentions of waiver of objections as discussed above, M&Y asserts the opposition should not be considered and explains that no further responses have been received from Plaintiff. (Reply, 2-3.)

For these reasons, M&Y’s motion is also granted as to Requests for Production of Documents, nos. 1-4.

Monetary Sanctions

The court may impose sanctions against any party for engaging in conduct constituting a “misuse of the discovery process.” (CCP § 2023.030 (a).) Misuse of the discovery process includes “failing to respond or submit to an authorized method of discovery.” (CCP § 2023.010(d).) Additionally, the court shall impose sanctions against “any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to requests 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 § 2031.310(h).)

Here, Movagar requests $4,420.00 and $3,180.00, M&Y requests $3,740.00 and $2,940.00, in connection with these motions for the propounded Special Interrogatories and Requests for Production of Documents respectively. The court does not order sanctions, as it finds that the circumstances surrounding Plaintiff’s claims and this action present a difficult hurdle such that the imposition of sanctions against Plaintiff would be unjust in this instance.

Conclusion

Defendant Movagar’s motions are granted. Defendant M&Y’s motions are also granted as to Special Interrogatories 1-3,5-16, and Requests for Production 1-4, and otherwise denied. Plaintiff is to serve verified, supplemental responses and produce documents within 30 days of this date. Defendants’ request for sanctions are denied. Defendants are to give notice.