Judge Holly J. Fujie, Case Number: 22STCV28337, Date: 2023-12-14 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

This action arises out of an attorney-client relationship. Plaintiff’s complaint (the “Complaint”) alleges: (1) legal malpractice; (2) breach of contract; and (3) breach of fiduciary duty.

On November 18, 2023 and November 20, 2023, respectively, Plaintiff filed: (1) a motion for protective order regarding the Requests for Admissions, Set One propounded by Defendant (the “RFA Motion”); and (2) a motion for protective order regarding the Requests for Production, Set One propounded by Defendant (the “RFP Motion”) (collectively, the “Motions”).[1]

Under California Code of Civil Procedure (“CCP”) section 2033.080, when requests for admission have been made, the responding party, the responding party may promptly move for a protective order. (CCP § 2033.080, subd. (a).) The motion shall be accompanied by a meet and confer declaration under CCP section 2016.040. (Id.) The court, for good cause shown, may make any order that justice requires to protect any party or natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. (CCP § 2033.080, subd. (b).) If the motion for a protective order is denied in whole or in part, the court may order that the party provide or permit the discovery against which protection was sought on terms and conditions that are just. (CCP § 2033.080, subd. (c).)

No party shall request, as a matter of right, that any other party admit more than 35 matters that do not relate to the genuineness of documents. (CCP § 2033.030, subd. (a).) If the initial set of admission requests does not exhaust this limit, the balance may be requested in subsequent sets. (Id.) Unless a declaration as described in CCP section 2033.050 has been made, a party need only respond to the first 35 admission requests served that do not relate to the genuineness of documents, if that party states an objection to the balance under CCP section 2033.230 on the ground that the limit has been exceeded. (CCP § 2033.030, subd. (b).) When a party requests a protective order based on the excessive number of RFAs, the propounding party shall have the burden of justifying the number of requests for admission. (CCP § 2033.040, subd. (b).)

Under CCP section 2031.060, subdivision (a), when an inspection, copying, testing, or sampling of documents, tangible things, places, or electronically stored information has been demanded, the party to whom the demand has been directed, and any other party or affected person, may promptly move for a protective order. (CCP § 2031.060, subd. (a).) The court, for good cause shown, may make any order that justice requires to protect any party or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. (CCP § 2061.060, subd. (b).) Where a party must resort to the courts, the burden is on the party seeking the protective order to show good cause for whatever order is sought. (Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 318.) In law and motion practice, factual evidence is provided to the court by way of declarations. (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 224.)

Defendant propounded 176 RFPs on September 27, 2023. (See RFP Declaration of Shahrokh Mokhtarzadeh (“Mokhtarzadeh Decl.”) ¶ 16, Exhibit A.) The RFAs that Defendant contemporaneously propounded contain 453 requests for admissions. (See RFA Mokhtarzadeh Decl. ¶ 16, Exhibit A.) After receiving the RFPs and RFAs, Plaintiff attempted to confer with Defendant about the breadth of the discovery requests. (See Mokhtarzadeh Decl. ¶ 11.) While Defendant did not agree to pare down or otherwise limit the scope of the discovery requests, he communicated a willingness to extend Plaintiff’s deadline to submit responses to November 7, 2023. (See Mokhtarzadeh Decl. ¶ 13.)

In support of the RFP reply, Plaintiff provides evidence of the RFP responses that he served on February 12, 2024. (See Supp. RFP Mokhtarzadeh Decl. ¶ 3.)

The Court finds that the Declaration for Additional Discovery attached to the RFAs is insufficient to justify the number of RFAs that Defendant propounded on Plaintiff. The declaration served with the RFAs includes a general recitation of the statutory language stating that the greater number of RFAs is warranted in order to enable a proper investigation of the issues in the case, but does not offer specific information to connect the facts of this case with the substantive requirements of a CCP section 2033.050 declaration. The conclusory declaration does not address why Defendant needs an amount of RFAs that significantly exceeds the general maximum of 35 requests in order to prepare his defense. (See CCP § 2033.030, subd. (a).) Furthermore, Defendant’s opposition (the “RFA Opposition”) does not satisfy Defendant’s burden of justifying the propounding of more than 35 RFAs. (See CCP § 2033.040, subd. (b).)

In contrast to RFAs, the number of permissible RFPs is not subject to a statutory limit. The Court notes that the RFP Motion does not clearly articulate the contours of Plaintiff’s preferred protective order regarding the RFPs. Nonetheless, the Court agrees that the number of document categories sought by Defendant in the RFPs is burdensome and that several of the RFPs request cumulative or redundant categories of documents. Plaintiff’s evidence indicates that Plaintiff has substantially responded to the RFPs, subject to certain objections, and without the production of identified categories of difficult-to-access electronically stored information (“ESI”). (See Supp. RFP Mokhtarzadeh Decl. ¶ 11.) The RFP Opposition does not raise arguments that rebut Plaintiff’s contention that several of the categories of documents requested in the RFPs are overly burdensome, redundant, and not reasonably calculated to lead to admissible evidence. The Court finds that Plaintiff has sufficiently demonstrated that there is good cause to limit Plaintiff’s burden of providing the ESI and other categories of documents to which Plaintiff has asserted objections.

Based on the foregoing, the Court GRANTS both the Motions. Plaintiff is not required to submit responses to Defendant’s RFAs, Set One numbers 36-453. Plaintiff is also not required to produce documents in response to the RFPs to which valid objections have been asserted.

Plaintiff requests monetary sanctions in the amount of $8,810 in connection with the RFA Motion and $7,060 in connection with the RFP Motion. (See Supp RFA Mokhtarzadeh Decl. ¶¶ 25-26; Supp. RFP Mokhtarzadeh Decl. ¶¶ 15-16.)[2] With respect to the RFA Motion, this amount represents: (1) 12 hours preparing the moving papers at an hourly rate of $500 per hour; (2) 6.5 hours reviewing the RFA Opposition and drafting the RFA Reply; and (3) a $60 filing fee. (Supp. RFA Mokhtarzadeh Decl. ¶ 26.)[3] With respect to the RFP Motion, this amount represents: (1) 12 hours preparing the moving and reply papers collectively at an hourly rate of $500 per hour; (2) an anticipated hour preparing for and attending the hearing; and (3) a $60 filing fee. (Supp. RFP Mokhtarzadeh Decl. ¶ 16.)[4]

The Court exercises its discretion and awards Plaintiff monetary sanctions in the total reasonable amount of $3,120, which represents six hours of work at an hourly rate of $500 per hour in connection with the Motions collectively and $120 total in filing fees. (Moran v. Oso Valley Greenbelt Assn. (2004) 117 Cal.App.4th 1029, 1034.) Defendant is ordered to pay this amount within 30 days of the date of this order.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court

[1] The Court exercises its discretion and has considered the reply papers supporting the RFP Motion (the “RFP Reply” filed late by Plaintiff on February 13, 2024.

[2] These amounts reflect the work performed when the Replies were filed. When the Motions were filed, Plaintiff requested $4,060 in connection with each Motion. (See RFA Mokhtarzadeh Decl. ¶ 37; RFP Mokhtarzadeh Decl. ¶ 37.)

[3] Although the number of hours stated above total to 18.5 hours, Plaintiff’s counsel declares that 17.5 total hours were spent in connection with the RFA Motion at an hourly rate of $500 per hour. (See Supp. RFA Mokhtarzadeh Decl. ¶ 26.)

[4] The Court notes that this amount—13 hours total at a rate of $500 per hour and the filing fee—totals $6,560.