Judge Kerry Bensinger, Case Number: 21STCV34685, Date: 2024-02-05 Tentative Ruling

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On September 20, 2021, Plaintiff, Cyrous Forouzesh, filed a Complaint against Defendants, Shahram Einalhori (“Einalhori”), and Harvest Trading Co., Inc., alleging causes of action for (1) Breach of Contract; (2) Fraud; and (3) Common Counts. This action arises out of an alleged oral agreement by Plaintiff to lend Einalhori and his Company, Harvest Trading Co. $802,495.47 in return for repayment of the full amount plus profits of the company split 50/50 between Einalhori and Plaintiff. Einalhori allegedly did not pay back $152,010.97 of the loan and has refused to pay Plaintiff his 50% share of the Company’s profits. Einalhori is further alleged to have falsely inflated the expenses of the Company to reduce Plaintiff’s share of profits, among other things.

Plaintiff served Einalhori with Form Interrogatories—General, Set Two, and Request for Admissions, Set Two. The interrogatories consisted of Form Interrogatory No. 17.1, which refers to responses to Request for Admissions.

On October 13, 2023, Einalhori served a response to Form Interrogatory No. 17.1. Einalhori objected because Plaintiff did not serve the requests for admissions with the interrogatories.

On October 24, 2023, Plaintiff filed this motion to compel Einalhori’s response to Form Interrogatories—General, Set Two. Plaintiff requests sanctions against Einalhori and its counsel.

If a party to whom interrogatories are directed fails to serve a timely response, the propounding party may move for an order to compel responses without objections.¿ (Code Civ. Proc., §§ 2030.290, subd. (b).)¿ Failure to timely serve responses waives objections to the requests.¿ (Code Civ. Proc., §§ 2030.290, subd. (a).)¿¿¿¿ ¿¿

Code of Civil Procedure section 2023.030 is a general statute authorizing the Court to impose discovery sanctions for “misuse of the discovery process,” which includes (without limitation) a variety of conduct such as: making, without substantial justification, an unmeritorious objection to discovery; making an evasive response to discovery; and unsuccessfully and without substantial justification making or opposing a motion to compel or limit discovery.¿ (Code Civ. Proc., § 2023.010.)¿¿¿

If sanctions are sought, Code of Civil Procedure section 2023.040 requires that the notice specify the identity of the person against whom sanctions are sought and the type of sanction requested, that the motion be supported in the points and authorities, and the facts be set forth in a declaration supporting the amount of any monetary sanction.¿¿

If the court finds that a party has unsuccessfully made or opposed a motion to compel responses to interrogatories or inspection demands, the court “shall impose a monetary sanction . . . 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., §§ 2030.290, subd. (c), 2031.310, subd. (h).)¿¿¿

Sanctions against counsel:¿ The court in Kwan Software Engineering, Inc. v. Hennings (2020) 58 Cal.App.5th 57, 81 (Hennings) noted that discovery sanctions against an attorney are governed by a different standard than sanctions against a party:¿¿¿¿

By the terms of the statute, a trial court under section 2023.030(a) may not impose monetary sanctions against a party’s attorney unless the court finds that the attorney “advised” the party to engage in the conduct resulting in sanctions. (§ 2023.030(a); Ghanooni v. Super Shuttle (1993) 20 Cal.App.4th 256, 261, 24 Cal.Rptr.2d 501.)¿ “Unlike monetary sanctions against a party, which are based on the party's misuse of the discovery process, monetary sanctions against the party's attorney require a finding the ‘attorney advis[ed] that conduct.’ ” (Ibid.) “It is not enough that the attorney's actions were in some way improper.” (Corns v. Miller (1986) 181 Cal.App.3d 195, 200, 226 Cal.Rptr. 247 (Corns).) Because an attorney's advice to a client is “peculiarly within [his or her] knowledge,” the attorney has the burden of showing that he or she did not counsel discovery abuse. (Ibid.) Accordingly, when a party seeking sanctions against an attorney offers sufficient evidence of a misuse of the discovery process, the burden shifts to the attorney to demonstrate that he or she did not recommend that conduct. (Id. at pp. 200–201, 226 Cal.Rptr. 247; Ghanooni, at p. 262, 24 Cal.Rptr.2d 501.)¿

Plaintiff seeks an order compelling Einalhori to provide responses to Plaintiff’s Form Interrogatories, Set Two, No. 17.1.

The parties disagree on the date of service of the at-issue discovery. Plaintiff’s notice of motion states the discovery was served on May 16, 2023. In reply, Plaintiff changes course and states the discovery was actually served on May 30, 2023. Courts generally do not consider matters raised for the first time in reply.

Defendant also effectively challenges that Form Interrogatories, Set Two, was served any earlier than September 13, 2023. He attaches an email dated September 13, 2023 wherein Plaintiff’s counsel states “Turns out we previously served a set one, without FROG 17.1. We will serve a set two with only No. 17.1.” (Ingman Decl., Ex. 2.) For these reasons, Plaintiff is not entitled to an order compelling Defendant’s initial response to Form Interrogatory No. 17.1.

Further, whatever the date of service, Defendant served a response (an objection) on October 13, 2023, prior to the filing of this motion. (See Motion, Ex. D.) Plaintiff’s recourse is to file a motion to compel further.[1]

The motion to compel responses to Form Interrogatories—General, Set Two, is DENIED.

Kerry Bensinger

Judge of the Superior Court

[1] The court does not resolve whether the basis for Defendant’s objection to Form Interrogatory No. 17.1 is valid.