Judge: Katherine Chilton, Case: 21STLC00170, Date: 2022-09-13 Tentative Ruling

Case Number: 21STLC00170     Hearing Date: September 13, 2022    Dept: 25

PROCEEDINGS:      MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS; STAY ACTION

MOVING PARTY:   Defendant Kamal Madjidi

RESP. PARTY:         Plaintiff Brian Whitaker

MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS; STAY ACTION

(CCP §§ 2030.300, 2031.310, 404.5.)

TENTATIVE RULING:

(1)   Defendant Kamal Madjidi’s Motion to Compel Further Responses to Special Interrogatories is DENIED.

(2)   Defendant Kamal Madjidi’s Motion to Compel Further Responses to Request for Production of Documents is DENIED.

(3)   Defendant Kamal Madjidi’s Motion to Stay Action is DENIED.

SERVICE: 

[X] Proof of Service Timely Filed (CRC, rule 3.1300)                 YES

[X] Correct Address (CCP §§ 1013, 1013a)                                                 YES

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     NO

OPPOSITION:          Filed on September 1, 2022                                    [X] Late                       [   ] None

REPLY:                     Filed on September 6, 2022                                    [   ] Late                      [   ] None

ANALYSIS:

I.                Background

On January 7, 2021, Plaintiff Brian Whitaker (“Plaintiff”) filed an action against Defendant Kamal Madjidi (“Defendant”) for violation of the Unruh Civil Rights Act.  The action arose out of an alleged violation of the Act by Defendant’s business, Printop Printing & Graphics.  (See Compl.)

On April 28, 2021, Defendant submitted Notice of Federal Order Dismissing Federal Action, demonstrating that an action in U.S. District Court for the Central District of California, No: 2:19-CV-10079, filed by Plaintiff against Defendant, premised on the same facts and alleging violation of the Americans with Disabilities Act (“ADA”), had been dismissed.

On July 1, 2021, Defendant filed an Answer in the instant case, denying all allegations in the Complaint.

On May 11, 2022, Defendant filed an Ex Parte Application for Stay Order (1) because a federal complaint was filed against Plaintiff’s attorneys in connection with ADA lawsuits, and (2) a federal judge in San Francisco ordered three plaintiffs, including Plaintiff Whitaker, to prove that they have standing in certain federal lawsuits.  The Court denied the Ex Parte Application on May 12, 2022, for failure to demonstrate why Defendant was entitled to ex parte relief.  (5-12-22 Minute Order.)

On May 12, 2022, Defendant filed a Motion to Compel Further Responses to Interrogatories and Production of Documents and/or Stay Action.  On June 6, 2022, the Court denied Defendant’s Motion on grounds that Defendant should have filed two separate motions to compel, and Defendant failed to include a separate statement, as required by California Rules of Court, rule 3.1345(a)(2), (3).  (6-6-22 Minute Order.)

Subsequently, on June 14, 2022, Defendant filed an Ex Parte Application for Order Granting Motion to Compel Further Production of Documents, Motion to Compel Further Responses to Interrogatories, and/or to Stay the Action, which the Court once again denied on June 15, 2022, finding that ex parte relief was unwarranted.  (6-15-22 Minute Order.)

            On August 23, 2022, Defendant filed the instant (1) Motion to Compel Further Discovery Responses to Special Interrogatories and/or Stay this Action (“MTCF Sp.”) and (2) Motion to Compel Further Production of Documents and/or Stay Action (“MTCF Prod.”).  On September 1, 2022, Plaintiff filed Oppositions to both Motions and on September 6, 2022, Defendant filed Replies to both Oppositions.

II.              Legal Standard

Code of Civil Procedure § 2030.300 provides that “[o]n receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that” the responses contain: (1) answers that are evasive or incomplete; (2) an unwarranted or insufficiently specific exercise of an option to produce documents in lieu of a substantive response; or (3) unmerited or overly generalized objections.  (Code of Civ. Proc. § 2030.300(a).)  Notice of the motions must be given within 45 days of service of the verified response, otherwise, the propounding party waives any right to compel a further response.  (Code Civ. Proc. § 2030.300(c).)  The motion must also be accompanied by a meet and confer declaration “showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.”  (Code of Civ. Proc. §§ 2016.040, 2030.300(b).)  California Rules of Court, rule 3.1345 requires that all motions or responses involving further discovery contain a separate statement with the text of each request, the response, and a statement of factual and legal reasons for compelling further responses.  (Cal. Rules of Court, rule 3.1345(a)(2)).

Furthermore, “[o]n receipt of a response to demand for inspection . . ., the demanding party may move for an order compelling further response if the demanding party deems that (1) [a] statement of compliance with the demand is incomplete; (2) [a] representation of inability to comply is inadequate, incomplete, or evasive; [or] (3) [a]n objection in the response is without merit or too general.” (Code Civ. Proc., § 2031.310(a).)  If the motion is granted, the Court shall impose monetary sanctions, “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.” (Code Civ. Proc., § 2031.310(h).)  Notice of the motion must be given within 45 days of service of the verified response, otherwise the propounding party waives any right to compel a further response.  (Code Civ. Proc., § 2031.310(c).)  The motion must also be accompanied by a meet and confer declaration. (Code Civ Proc., § 2031.310(b)(2).)  Finally, California Rules of Court, rule 3.1345 requires that all motions involving further discovery contain a separate statement with the text of each request, the response, and a statement of factual and legal reasons for compelling further responses. (Cal. Rules of Court, Rule 3.1345(a)(3)).

III.            Discussion

Defendant has filed two Motions to Compel – 1) Motion to Compel Further Responses to Special Interrogatories and 2) Motion to Compel Further Production of Documents.  Defendant states that the First Set of Special Interrogatories and Request for Production of Documents was propounded on Plaintiff on March 17, 2022.  (MTCF Sp. - Lopez Decl. ¶ 10 – Ex. H; MTCF Prod. - Lopez Decl. ¶ 10 – Ex. H.)  The discovery demands included requests for information about Plaintiff’s cell phone “which Defendant believed would lead to a determination of whether Plaintiff was at Defendant’s store on the day Plaintiff alleged,” particularly because Defendant believes Plaintiff has provided inconsistent and falsified information regarding the date he visited Defendant’s business.  (MTCF Sp. pp. 7-8; MTCF. Prod. pp. 8-9.)  Defendant states that on March 28, May 26, and May 31, 2022, “Plaintiff provided unverified and/or evasive and/or incomplete responses and supplemental responses, and/or provided objections without merit.”  (MTCF Sp. p. 8; Lopez Decl. ¶ 11, Exs. I-J; MTCF. Prod. p. 9, Lopez Decl. ¶ 11; Exs. I-J.) 

Starting on May 6, 2022, Defendant began email communications with Plaintiff’s counsel to meet and confer regarding a motion to compel; however, Plaintiff’s counsel offered dates after the deadline for Defendant to file such a motion.  (MTCF Sp. p. 9; Lopez Decl. ¶ 15; Ex. N; MTCF Prod. p. 10, Lopez Decl. ¶ 15; Ex. N.)  Defendant proceeded with filing the timely Motion to Compel on May 12, 2022.  On May 27, 2022, Plaintiff submitted “unverified and inadequate and/or evasive and/or incomplete Supplemental Responses” to the Special Interrogatories and Requests for Production.  (MTCF Sp. pp. 9-10; Lopez Decl. ¶ 17; Ex. P; MTCF Prod. pp. 10-11; Lopez Decl. ¶ 17; Ex. P.)  The Court denied Defendant’s Motion for failing to include a separate statement and for failing to file each motion separately with its own fees.  (Lopez Decl. ¶ 20; 6-6-22 Minute Order.)  Since there were no available hearing dates prior to the trial date set on July 7, 2022, on June 14, 2022, Defendant filed three Ex Parte Applications to correct the defects the Court had identified.  (MTCF Sp. p. 10; MTCF Prod. p. 11.)  The Court found that ex parte relief was unwarranted and thus, denied the Applications and continued the trial date to October 11, 2022.  (6-15-22 Minute Order.)  Following the Court’s decision, Defendant has repeatedly communicated with Plaintiff’s counsel on July 1 and 8, August 1, 2, 10, and 16, regarding the discovery requests and the grounds on which they were not sufficient.  (Lopez Decl. ¶ 21; Ex. S.)  Plaintiff’s counsel has refused to address or discuss the issues and during the last communication stated that “‘[n]o further responses will be forthcoming absent a court order.’”  (MTCF Sp. p. 11; Ex. S; MTCF Prod. p. 12, Ex. S.)

            Defendant argues that his Motions to Compel were originally timely filed within 45 days of service of verified responses to the Special Interrogatories and unverified responses to the Requests for Production because the original Motion was filed on May 12, 2022, and an Ex Parte Application was filed on June 14, 2022.  (MTCF Sp. p. 11; MTCF Prod. p. 12.)  However, the Court denied both and thus, Defendant has re-submitted the Motions with an attempt “in good faith to address the court’s concerns and to comply with the applicable procedure.”  (MTCF Sp. p. 12; MTCF Prod. p. 13.)  Defendant states that he has interpreted the “court’s initial denial without prejudice to mean that the timely filing of the First Motion to Compel would constitute sufficient timely notice,” as it was given within 45 days of receipt of the verified responses to the Special Interrogatories and unverified responses to the Requests for Production.  (MTCF Sp. p. 12; MTCF Prod. p. 13.)  Defendant also contends that he has “subsequently made repeated efforts to reach an informal resolution, including to the discovery related matters” through persistent email communication.  (MTCF Sp. p. 12; MTCF Prod. p. 13.)

            Plaintiff opposes the Motion on several grounds, including that it was filed “approximately one hundred and forty-eight (148) days after Plaintiff’s verified responses were served” and is thus, “untimely and impermissible under CCP § 2030.200(c).”  (Oppos. p. 4.)

            In his Reply to Plaintiff’s Opposition to the Motion to Compel Further Responses to Special Interrogatories, Defendant does not address the issue of timeliness, but states that the Supplemental Responses provided are not verified.  (Reply re: Sp. Int. - p. 2.)  In his Reply to Plaintiff’s Opposition to the Motion to Compel Further Production of Documents, Plaintiff reiterates that the responses to the Requests for Production were submitted without verification because they “contained more than mere objections.”  (Reply re: Prod. of Docs. - p. 2.)

            First, the Court notes that Plaintiff’s initial responses to the interrogatories and requests for production contain objections to each discovery demand, and thus, did not need to be verified.  (Lopez Decl. ¶ - Ex. I; Blue Ridge Insurance Co. v. Superior Court (1988) 202 Cal.App.3d 339, 345 (objections to interrogatories and requests for production are not required to be verified because “objections are legal conclusions interposed by counsel, not factual assertions by a party.”))  Furthermore, when a response to an interrogatory or request for production contains a mix of objections and unverified responses there is no waiver of the objections made.  (Food 4 Less Supermarkets, Inc. v. Superior Court (1995) 40 Cal.App.4th 651, 657-58.)  Thus, the 45-day deadline for filing a motion to compel begins from the date these responses were served on Defendant.  Defendant states that responses were provided on March 28, 2022.  (Lopez Decl. ¶ 11.)  Although Defendant argues that his initial motion to compel further responses to discovery demands was timely because it was filed on May 12, 2022, the Court denied this motion because it was defective.  The instant Motion was filed on August 23, 2022, well-beyond the 45-day deadline and 79 days after the Court’s denial of the initial motion.  Defendant does not point to any legal authority that would permit him to file a motion to compel further responses nearly five months after Plaintiff served responses to the discovery demands.

            For this reason, Defendant’s Motion to Compel Further Responses is DENIED.

IV.           Stay Proceedings

In his Motions to Compel, Defendant also requests that the Court stay the proceedings because of ongoing proceedings against Plaintiff’s counsel in the San Francisco County Superior Court, People v. Potter Handy, LLP, et al., Case No: CGC-22-5990-79, for allegations of fraudulent business practices and litigation.  (Lopez Decl. ¶ 13; Ex. L.)  Defendant states that “the fraud and standing allegations alleged in Defendant’s Answer are related to the factual and legal allegations in the People’s Complaint.”  (MTCF Sp. p. 15; MTCF Prod. p. 18.)

In his Opposition, Plaintiff states that this “complaint was predicated on false reasoning and did not survive the demurrer stage” and thus, “[t]he entire matter has since been dismissed, without leave to amend.”  (Reply p. 7, Hemming Decl. p. 2, Ex. F.)

Defendant does not address his request for stay in his Reply to the Opposition.

Defendant relies on California Rules of Court, rule 3.515 to request a stay of the proceedings.  (MTCF Sp. p. 13; MTCF Prod. p. 14.)  Rule 3.515 states: “[a]ny party may file a motion for an order under Code of Civil Procedure section 404.5 staying the proceedings in any action being considered for, or affecting an action being considered for, coordination, or the court may stay the proceedings on its own motion.”  Code of Civil Procedure § 404.5 states that “[p]ending any determination of whether coordination is appropriate, the judge making that determination may stay any action being considered for, or affecting an action being considered for, coordination.”

Here, in addition to the fact that the Court has already ruled on this issue, the Court finds that Defendant’s Demurrer to the Complaint in People v. Potter Handy, LLP, et al. was sustained and the case was dismissed on August 29, 2022.  (People of the State of California v. Potter Handy LLP, et al., 8-29-22 Minute Order.)  Thus, the Court does not analyze Defendant’s request for stay any further.

For this reason, Defendant’s Motion to Stay Proceedings is DENIED.

V.             Conclusion & Order

For the foregoing reasons:

(1)   Defendant Kamal Madjidi’s Motion to Compel Further Responses to Special Interrogatories is DENIED.

(2)   Defendant Kamal Madjidi’s Motion to Compel Further Responses to Request for Production of Documents is DENIED.

(3)   Defendant Kamal Madjidi’s Motion to Stay Action is DENIED.

Moving parties are ordered to give notice.