Judge: James L. Crandall, Case: 18-1035821, Date: 2022-09-02 Tentative Ruling
1. Motion to Compel Answers to Form Interrogatories
2. Motion to Compel Production
Plaintiffs, Leonard M. Parker and Ennovus Group, LLC’s (Plaintiffs) Motion for an Order (1) Compelling Defendant Gary Chamness’ Compliance with This Court’s Prior Discovery Orders; (2) Awarding Monetary or Other Sanctions Against Gary Chamness Due to His Failure to Comply with This Court’s Prior Discovery Orders (Motion) is GRANTED in part, MOOT in part and DENIED in part.
Defendant Gary Milo Chamness is ordered to serve supplemental, verified responses to Form Interrogatories, Set One, number 15.1 within 20 days of this date.
Gary Milo Chamness is also ordered to pay monetary sanctions of $4,500 to Plaintiffs and their counsel within 45 days of this date.
Plaintiffs’ Motion is MOOT as to the request for supplemental responses to Requests for Production, Set One, numbers 1, 2, 7, 8-10, 20-22, 27-28 and production of documents.
Plaintiffs’ Motion is DENIED as to the alternative request for evidentiary, issue or terminating sanctions. (Notice of Motion, No. 5.)
On receipt of responses to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that an objection is without merit or too general or an answer is evasive or incomplete. (Code Civ. Proc., § 2030.300 (a)(1)-(3).)
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 Code Civ. Proc., §§ 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.)
Plaintiffs Motion seeks an order that:
1. Defendant Gary Milo Chamness be ordered to a serve a full and complete verified Response to Form Interrogatory No. 15.1, without objections, on Plaintiffs, by email and U. S. Mail, no later than twenty (20) days from the date of the Court rules on the Motion.
2. Defendant Gary Milo Chamness is hereby complete his full compliance with this Court’s Orders of January 2, 2020 (“First Order”) and October 29, 2020 (“Second Order”), no later than twenty (20) days from the date of the Court rules on the Motion.
3. Defendant Gary Milo Chamness shall serve a make a full production and complete delivery to Plaintiffs, without objection, of all documents responsive to the following categories of Plaintiffs’ Request for Production of Documents and Things To Defendant Gary Milo Chamness, Categories Nos. 1, 2, 7, 8 through 10, 20 through 22, 27 and 28, no later than 20 days from the date of the Court rules on the Motion; and that Defendant’s document production shall be accompanied by a signed response, verified by Defendant under oath, stating that all documents responsive to Categories Nos. 1, 2, 7, 8 through 10, 20 through 22, 27 and 28 within the possession, custody, and control of Defendant have been produced, which shall also be served no later than twenty (20) days from the date of the Court rules on this Motion.
4. Defendant Gary Milo Chamness shall pay monetary sanctions of $4,500 to Plaintiffs no later than twenty (20) days from the date of the Court rules on this Motion
5. In the event Defendant Gary Milo Chamness fails to comply with all aspects of this Order, the Court may award evidentiary, issue, and/or terminating sanctions, including but not limited to striking of Chamness’ the denials and affirmative defenses in his answer, and further monetary sanctions, pursuant to Code of Civil Procedure, section 2023.010, etc.
Meet and Confer Efforts
A motion to compel further responses “shall be accompanied by a meet and confer declaration.” (Code Civ. Proc., §§ 2031.310 (b)(2), 2030.300 (b)(1).)) The declaration must state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented in the motion. (Code Civ. Proc., § 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.)
Plaintiffs submit the declaration of Charles E. Patterson (Patterson) to demonstrate compliance with their statutory meet and confer obligations.
The Patterson Declaration submits copies of meet and confer emails between Jeffrey A. Robinson of Patterson’s office and Chamness. (Patterson Decl., Ex. G, J, L, M.) These emails demonstrate that Plaintiffs’ counsel discussed the reasons they find Chamness’ responses to Plaintiffs’ requests deficient and why Plaintiff’s counsel assert that further responses are warranted.
The Patterson Declaration is sufficient for purposes of Code of Civil Procedure sections 2031.310 and 2030.300.
Procedural History
On January 2, 2020, the court granted Plaintiffs’ Motions to Compel Answers to Form Interrogatories and Requests for Production against all defendants, including Gary Milo Chamness. (Chamness) (First Order) [ROA 103] The court denied Plaintiffs’ request for monetary sanctions against all defendants “since it appears that this case will be resolved by default.”
On January 22, 2020, Chamness served Responses to Requests for Production. (Patterson Decl., Ex. K.)
On October 29, 2020, the court granted Plaintiffs’ Motions to Compel Answers to Form Interrogatories and Requests for Production in part against all defendants, including Chamness. (Second Order) [ROA 230] Specifically, the Second Order stated as follows:
1. The request to compel a further response to Form Interrogatory No. 15.1 is GRANTED.
2. Plaintiff’s request to compel further documents for Request Nos. 8 through 10, 20 through 22, 27 and 28 is GRANTED. Defendant is ORDERED to produce all documents in response to these Requests, without redactions, and identify the category to which any of the documents produced are responsive within 20 days of the notice of this order.
On February 3, 2021, Chamness served Second Amended Responses to Request for Production of Documents. (Second Amended Responses)(Patterson Decl., Ex. E.) On February 3, 2021, Chamness also served Amended Answers to Interrogatories. (Patterson Decl., Ex. F.)
On June 20, 2022, Chamness served “Gary Milo Chamness’s Amended Responses to Request for Production of Documents,” which were undated, unsigned, and unverified. (Patterson Decl., Ex. K.)
On August 11, 2022, George Chikovani and Putterman, Yu & Wang LLP filed a Substitution of Attorney substituting in as Chamness’ counsel of record.
Request for Further Responses to Form Interrogatory No. 15.1
Plaintiffs contend that a further response to Form Interrogatory number 15.1 is required because Chamness’ Amended Answers to Interrogatories, served February 3, 2021, were unverified. (Separate Statement [ROA 328], pp. 2-4.) Plaintiffs specifically state that they do not object to the substance of Chamness’ amended responses.
In opposition, Chamness asserts that he is currently working with new counsel to prepare amended responses to Form Interrogatory number 15.1, which will be served as soon as possible. (Opposition, 5; Declaration of George Chikovani Decl. ¶¶ 7-8.)
The court finds that a further response to this interrogatory is required. Unverified responses are tantamount to no responses. (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 635-636.)
For these reasons, Plaintiff’s Motion is GRANTED as to this interrogatory.
Request for Order Compelling Compliance with First Order and Second Order
Plaintiffs’ Motion requests that Chamness comply with the First Order and Second Order. Specifically, the Motion requests an order that “Defendant Gary Milo Chamness is hereby complete his full compliance with this Court’s Orders of January 2, 2020 (“First Order”) and October 29, 2020 (“Second Order”), no later than twenty (20) days from the date of the Court rules on the Motion.”
As will be discussed below, Chamness admits in his opposition that he has not fully complied with the First Order or Second Order.
Therefore, because Chamness has not complied with the First Order or Second Order, Plaintiffs’ Motion is GRANTED as to the request for Chamness to comply with the First Order and Second Order.
Request for Further Responses to Requests for Production, Nos. 1, 2, 7, 8-10, 20-22, 27-28
Plaintiffs argue that a further response to each of request numbers 1, 2, 7, 8-10, 20-22 and 27-28 is required because the Second Amended Responses are deficient and Chamness has not produced responsive documents to date
In opposition, Chamness argues that the motion is moot because he has complied with the First Order and Second Order or will be complying shortly. (Opposition, 2.) Specifically, Chamness argues that after recently retaining counsel, he has already served Third Amended Responses to Request for Production which attests that he will comply with each request at issue in this motion. (Declaration of George Chikovani, Ex. A.)
Chamness also submits his own declaration in support of the opposition. Chamness attests that since approximately July 2021, he has experienced a “series of severe health crises.” (Chamness Decl., ¶ 3.) Specifically, Chamness developed a wound on his left foot in late July 2021 and subsequently began treatment for necrotizing cellulitis and gangrene of the left foot, including hospitalization and surgery from August 2021 to September 28, 2021. (Chamness Declaration, ¶¶ 4-8.)
Chamness was then required to undergo hyperbaric chamber treatment and additional foot complications from December 2021 to March 2022. (Chamness Decl., ¶¶ 10-11.) Chamness underwent additional surgery and inpatient treatment from June 2022 to August 2022. (Chamness Decl., ¶¶ 12-16.) Chamness attests that his conditions have prevented him from devoting the necessary attention to this action and his discovery obligations. (Chamness Decl., ¶¶ 21-22.)
Exhibit A to the Chikovani Declaration is a copy of Plaintiffs’ Third Amended Responses to Request for Production. These responses supplemented each of the requests at issue in Plaintiffs’ Motion and are verified.
Therefore, the court finds Plaintiffs’ Motion MOOT as to the request for further responses to requests for production, numbers 1, 2, 7, 8-10, 20-22, 27-28.
Plaintiffs’ Motion was filed on Chamness’ Second Amended Responses served February 3, 2021. As Chamness has now served Third Amended Responses, the motion is MOOT.
Request for Monetary Sanctions
The court may impose sanctions against any party for engaging in conduct constituting a “misuse of the discovery process.” (Code Civ. Proc., § 2023.030 (a).) Misuse of the discovery process includes “failing to respond or submit to an authorized method of discovery.” (Code Civ. Proc., § 2023.010 (d).)
Plaintiffs request monetary sanctions against Chamness in the amount of $4,500.
Plaintiffs request sanctions for 10 hours of attorney time spent on this motion. Patterson attests that this represents time spent by Jeffrey A. Robinson, who is a partner in Plaintiffs’ counsel’s firm. (Patterson Decl., ¶ 47.) Mr. Robinson’s billing rate is $450 per hour. (Id.) The 10 hours requested represents time spent on drafting meet and confer correspondence, reviewing Chamness’ discovery responses and document production, drafting the motion, researching applicable citations, assembling exhibits, assisting in drafting the declaration, and drafting the proposed order. (Id.)
The court finds that monetary sanctions against Chamness are warranted. Plaintiffs served the discovery that is the subject of this motion in 2019 and have filed two previous motions to compel further responses. Chamness admits that he has not fully complied with either the First Order or the Second Order to date. Trial in this matter is scheduled for December 5, 2022, less than four months away. Thus, Chamness’ delay in providing full and complete responses constitutes a misuse of the discovery process such that sanctions are warranted.
The court finds Plaintiffs’ requested monetary sanctions reasonable. Therefore, the Motion is GRANTED as to the request for monetary sanctions in the amount of $4,500.
Request for Evidentiary, Issue, or Terminating Sanctions
Plaintiffs’ Notice of Motion, number 5 makes the following request: “[i]n the event Defendant Gary Milo Chamness fails to comply with all aspects of this Order, the Court may award evidentiary, issue, and/or terminating sanctions, including but not limited to striking of the denials and affirmative defenses in his answer, and further monetary sanctions, pursuant to Code of Civil Procedure, section 2023.010, etc.”
Plaintiffs’ Reply states as follows regarding this request for sanctions: “Plaintiffs request that the court’s order warn Chamness that further noncompliance will not be tolerated.” (Reply, 5.)
Thus, it is not clear to the court whether Plaintiffs intended to withdraw their request for evidentiary, issue or terminating sanctions.
To the extent that Plaintiffs did not intend to withdraw their request for evidentiary, issue and/or terminating sanctions, the court DENIES the request. Plaintiffs do not specifically state which evidentiary, issue and/or terminating sanctions they seek against Chamness. The court is therefore unable to grant any such sanctions.
Additionally, the court accepts the Chamness Declaration as evidence that Chamness’ failure to comply with the First Order and Second Order were in part due to extenuating circumstances. Based on the circumstances Chamness attests to in his declaration, the court finds that issuing sanctions beyond monetary sanctions is not warranted.
Therefore, Plaintiffs’ request for evidentiary, issue, or terminating sanctions is DENIED.
In summary, Plaintiffs, Leonard M. Parker and Ennovus Group, LLC’s (Plaintiffs) Motion for an Order (1) Compelling Defendant Gary Chamness’ Compliance with This Court’s Prior Discovery Orders; (2) Awarding Monetary or Other Sanctions Against Gary Chamness Due to His Failure to Comply with This Court’s Prior Discovery Orders (Motion) is GRANTED in part, MOOT in part and DENIED in part.
Defendant Gary Milo Chamness is ordered to serve supplemental, verified responses to Form Interrogatories, Set One, number 15.1 within 20 days of this date.
Gary Milo Chamness is also ordered to pay monetary sanctions of $4,500 to Plaintiffs and their counsel within 45 days of this date.
Plaintiffs’ Motion is MOOT as to the request for supplemental responses to Requests for Production, Set One, numbers 1, 2, 7, 8-10, 20-22, 27-28 and production of documents.
Plaintiffs’ Motion is DENIED as to the alternative request for evidentiary, issue or terminating sanctions. (Notice of Motion, No. 5.)
Future hearing dates
12/5/22 – Jury trial