Judge Lynette Gridiron Winston, Case Number: 21PSCV00585, Date: 2024-03-26 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 21PSCV00585, Date: 2024-03-26 Tentative Ruling

1.      Motion of Plaintiff to Compel Responses to Supplemental Request for Production of Documents from Defendant and for Sanctions;
2.      Motion of Plaintiff to Compel Responses to Supplemental Interrogatories from Defendant and for Sanctions;
3.      Motion of Plaintiff to Compel Responses to Requests for Production of Documents, Set Two, from Defendant and for Sanctions; and
4.      Motion of Plaintiff to Compel Responses to Special Interrogatories, Set Two, from Defendant and for Sanctions.

Defendant Hassan Hashemian is ordered to give notice of the Court’s ruling within five calendar days of this order.

This is a breach of contract action. On July 20, 2021, plaintiff Michael Hashemian (Plaintiff) filed this action against defendants Hassan Hashemian (Hassan), Shokufeh Mostofi and Does 1 through 20. On February 28, 2023, Plaintiff filed the operative First Amended Complaint, alleging causes of action for breach of contract, breach of fiduciary duty and undivided loyalty – failure to use reasonable care, breach of covenant of good faith and fair dealing, fraud and deceit – intentional misrepresentation and concealment, conversion, negligent misrepresentation, negligence, unfair business practices, intentional infliction of emotional distress, constructive trust, and violation of Penal Code section 496(a).

On February 27, 2024, Plaintiff moved to compel responses to request for production of documents, set two, supplemental request for production of documents, special interrogatories, set two, and supplemental interrogatories from Defendant Hassan and for sanctions. On March 15, 2024, Hassan opposed the motions. Plaintiff did not reply.

When a party to whom interrogatories are directed fails to respond, under Code of Civil Procedure section 2030.290, subdivision (b), the party propounding the interrogatories may move for an order compelling a response. A party who fails to provide a timely response waives any objection, including one based on privilege or work product. (Code Civ. Proc., § 2030.290, subd. (a).) “The court shall impose a monetary sanction… against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories, 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.” (Id., § 2030.290, subd. (c).)

When a party to whom an inspection demand is directed fails to respond under Code of Civil Procedure section 2031.300, subdivision (b), a party making the demand may move for an order compelling a response to the inspection demand. A party who fails to provide timely responses waives any objection, including one based on privilege or work product. (Code Civ. Proc., § 2031.300, subd. (a).) “[T]he court shall impose a monetary sanction… against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to a demand, 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.” (Id., § 2031.300, subd. (c).)

Given the March 25, 2024 hearing date for these motions, Defendant Hassan’s oppositions were due no later than March 12, 2024. (Code Civ. Proc., § 1005, subd. (b).) Hassan’s oppositions were filed on March 15, 2024, and are therefore untimely. Nevertheless, the Court exercises its discretion to still consider the oppositions, but admonishes Hassan to comply with the requirements of the Code of Civil Procedure going forward. (See Cal. Rules of Court, rule 3.1300, subd. (d); Juarez v. Wash Depot Holdings, Inc. (2018) 24 Cal.App.5th 1197, 1202.)

Although meeting and conferring is not required for motions to compel initial responses, (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 404), the Court does request that the parties meet and confer before bringing any motions, (Department 6 Courtroom Information; see also Stewart v. Colonial W. Agency, Inc. (2001) 87 Cal.App.4th 1006, 1016 [“’The Discovery Act requires that, prior to the initiation of a motion to compel, the moving party declare that he or she has made a serious attempt to obtain ‘an informal resolution of each issue.’ [Citation.] This rule is designed ‘to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order....’ [citation.] This, in turn, will lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes. [Citations.]’ [Citation.]”)

Plaintiff contends that he served Supplemental Requests for Production of Documents, Set One, and Supplemental Interrogatories, Set One, on Defendant Hassan on January 18, 2024. (Whitmer-Cabrera Decls., ¶ 2.)[1] Plaintiff also contends he served Requests for Production of Documents, Set Two, and Special Interrogatories, Set Two, on Defendant Hassan on January 24, 2024. (Whitmer-Cabrera Decls., ¶ 2.)[2] Plaintiff contends he received no responses at the time the motions were filed. (Whitmer-Cabrera Decls., ¶ 3.)

In opposition, Defendant Hassan contends his responses to the supplemental requests were deposited in the mail on February 20, 2024. (Foley Decls., ¶ 5.)[3] Hassan contends his responses to the second set of discovery requests were deposited in the mail on February 23, 2024. (Foley Decls., ¶ 5.)[4] Hassan further contends Plaintiff received those responses. (Ramachandani Decls., ¶¶ 27-28, Ex. 7.)[5] Plaintiff did not file any reply to refute any of Defendant Hassan’s contentions.

The Court declines to grant Plaintiff’s discovery motions because Defendant contends all responses were timely served and Plaintiff has received Defendant Hassan’s responses. Plaintiff filed the motions on February 27, 2024 and the responses to the discovery, set two were due on February 26, 2024. Plaintiff did not allow any time for the discovery responses to be delivered by mail before filing the motions to compel. Plaintiff’s March 6, 2024 meet and confer letter to Hassan confirms that Plaintiff received the responses on March 1, 2024, and March 4, 2024, respectively. (Ramchandani Decls., Ex. 7.) Accordingly, since Defendant Hassan’s responses have been received, the Court exercises its discretion to deny the motions as unnecessary. (See Sinaiko Healthcare Consulting, Inc., supra, 148 Cal.App.4th at p. 409.) If further issues arise in connection with the underlying discovery responses, the parties may seek an Informal Discovery Conference. (Department 6 Courtroom Information.)

With respect to monetary sanctions, the Court declines to impose any monetary sanctions. The Court finds that Defendant Hassan acted with substantial justification in timely depositing the discovery responses in the mail. The Court also finds that the imposition of sanctions would be unjust given that Defendant Hassan contends that the responses were timely served, and Plaintiff’s counsel made no effort to see if responses had been served or to allow time for them to be delivered by mail before filing these motions to compel.

Notwithstanding, the Court further declines to impose monetary sanctions due to Plaintiff’s failure to adequately specify the parties against whom the monetary sanctions are sought. (Code Civ. Proc., § 2023.040, italics added [“A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought.”]; Cal. Rules of Court, rule 2.30, subd. (c), italics added [“A party's motion for sanctions must (1) state the applicable rule that has been violated, (2) describe the specific conduct that is alleged to have violated the rule, and (3) identify the attorney, law firm, party, witness, or other person against whom sanctions are sought.”].) Plaintiff’s notices fail to identify the parties against whom the sanctions are sought.

Accordingly, for all of the above reasons, the requests for monetary sanctions are DENIED.

Defendant Hassan Hashemian is ordered to give notice of the Court’s ruling within five calendar days of this order.

[1] Declarations of Bryan Whitmer-Cabrera submitted in support of motions to compel responses to supplemental requests.

[2] Declarations of Bryan Whitmer-Cabrera submitted in support of motions to compel responses to second set of discovery requests.

[3] Declarations of Lara Foley submitted in support of oppositions to motions to compel responses to supplemental requests.

[4] Declarations of Lara Foley submitted in support of oppositions to motions to compel responses to second set of discovery requests.

[5] The Court notes that counsel Ramachandani’s declarations submitted in support of the motions to compel responses to supplemental requests do not mention the March 6, 2024 letter from Plaintiff, but they are attached to the declarations.