Judge: Malcolm Mackey, Case: 21STCV02033, Date: 2023-09-05 Tentative Ruling

Case Number: 21STCV02033    Hearing Date: September 7, 2023    Dept: 55

MURRAY v. PAYTON,                                                        21STCV02033

Hearing:  9/7/23,  Dept. 55.

#8:   

MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES, SET ONE.

MOTION TO COMPEL PLAINTIFF’S DEPOSITION.

Notice:  Not Okay (no notice of continuance as ordered 8/1/23).

Opposition

MP:  Defendants

RP:  Plaintiffs

Summary

On 1/20/21, Plaintiff PATRICIA ANN MURRAY filed a Complaint against MAXCINE PAYTON, individually and as agent for 2 PRESMAXTON 9 CORPORATION.

On 8/9/21, Plaintiff filed a First Amended Complaint, alleging that Defendant’s financial elder abuse of decedent WANDA SNEED also caused Plaintiff to be deprived of her expected inheritance, in that Defendant interfered with title to assets, personal properties, and interfered with obtaining the monies belonging to the estate of Wanda Sneed.

The causes of action are:

1) INTENTIONAL INTERFERENCE WITH EXPECTED INHERITANCE;

2) DEPENDENT ADULT ABUSE;

3) FRAUD;

4) NEGLIGENT MISREPRESENTATION;

5) CONVERSION;

6) CONSTRUCTIVE TRUST;

7) DEMAND FOR ACCOUNTING OF AGENT UNDER POWER OF ATTORNEY.

MP Positions

Moving parties request an order compelling Plaintiff to serve further responses to form interrogatory 17.1 regarding admissions support, and to attend a deposition, and imposing sanctions as to interrogatories ($1,061.65), against Plaintiff and counsel, on grounds including the following:

·         Plaintiff served merely objections to every Request for Admission, and, on the basis of those objections, provided the same objection to Form Interrogatory 17.1 (that requests factual information related to admission responses).

·         Each of the admissions definitions cites to a specific code section and subsection.

·         Contention interrogatories are authorized.

·         The parties met and conferred.

·         Plaintiff does not have any basis for asserting deposition priority.  The local rule states a party must not notice a deposition to proceed earlier than another noticed deposition, but Defendants’ depositions were never noticed.  Instead, Plaintiff’s counsel merely asked for dates.

·         Sanctions are appropriate.

RP Positions

Opposing parties advocate denying, and imposing sanctions ($800 and $1200) on moving parties and counsel, for reasons including the following:

·         Plaintiffs' objections were proper.

·         Plaintiffs should not be required to figure out the statute and interpretation that Defendants want plaintiffs to respond to.

·         Form Interrogatory 17.1 requires Plaintiff to respond to the request for admissions, and would cause waiving their objections as to the requests for admissions.

·         Defendant’s definitions were improper and required plaintiff to lookback not only at definitions, but at legal codes/statutes contrary to the California Rules of Court .

·         Plaintiffs' counsel is not obligated to prepare the defendant’s case. (Sav-On Drugs, Inc. v. Superior Court of Los Angeles County (1975) 15 Cal.3d 1, 5.) A plaintiff is not required to prepare the case of his opponent. (Ryan v. Superior Court of Los Angeles County (1960) 186 Cal.App.2d 813, 819.)

·         While it is proper to discover a plaintiff ’s legal contentions, the legal reasoning or theories behind the contentions are not discoverable. (Sav-On Drugs, Inc. v. Superior Court of Los Angeles County (1975) 15 Cal.3d 1.)

·         The written discovery was ambiguous and harassing.

·         Defendant failed to provide a legally compliant separate statement.

·         Plaintiff has not refused or failed to appear for a deposition.

·         Plaintiff has deposition priority to take the deposition of Defendant Maxcine Payton, first, because plaintiffs’ counsel requested dates for her deposition first.

·         Defendants unilaterally set the time of the deposition of plaintiff.

·         Plaintiffs are entitled to sanctions at the reasonable attorney fees rate of $400.00 per hour.

Tentative Ruling

The motion to compel further responses to form interrogatories is denied.

On or before 10/5/23, the moving parties, defendants MAXCINE PAYTON, INDIVIDUALLY AND AS AGENT FOR 2 PRESMAXTON 9 CORPORATION, and counsel KELLY, TROTTER & FRANZEN, and JESSICA MUNOZ, jointly and severally, shall pay discovery sanctions in the total sum of $800 to opposing parties, Plaintiffs PATRICIA ANN MURRAY, INDIVIDUALLY AND AS SUCCESSOR IN INTEREST FOR DECEDENT WANDA J. SNEED.

The motion to compel deposition attendance is granted.

Commencing 9/5/23 at 10:00 a.m., deponent, Plaintiff PATRICIA ANN MURRAY shall attend a deposition at CARROLL, KELLY, TROTTER & FRANZEN, 111 West Ocean Boulevard, 14th Floor, Long Beach, California 90801-5636.

The Court awards no opposing sanctions as to the deposition motion, it finding substantial justification for debating Court discretion as to deposition dates and priorities.  E.g., CCP   § 2023.030.

Asking about contentions is authorized, but not asking admissions or explanations of any legal reasoning behind contentions.  The instant discovery requests include responses and admissions addressing specified laws, such that an admission or support of a contention necessarily would include responses adopting specified laws in support of legal reasoning behind the contention. 

Additionally, the failure to file a separate statement, done with a lack of court permission for summaries instead, is a basis to deny the interrogatories motion.

Conclusions of applicable law are set forth below.

“A party's contention may be the subject of discovery, but not the legal reasoning or theory behind the contention.”  Sav-On Drugs v. Sup. Ct. (1975) 15 Cal. 3d 1, 5.

Contention interrogatories involve the reflection of attorneys in formulating a response in a sophisticated process of legal reasoning, sorting through evidence and organizing it in terms of contentions a party is asserting.  Rifkind v. Sup. Ct. (1994) 22 Cal. App. 4th 1255, 1263.  “A party responding to discovery requests may be required to state whether or not he or she makes a particular contention, and to disclose the evidentiary facts underlying each such contention, as well as each allegation of his complaint or affirmative defense.”  Hernandez v. Sup. Ct.  (2003) 112 Cal.App.4th 285, 301 (citing  Burke v. Sup. Ct. (1969) 71 Cal.2d 276, 281 (“Discovery necessarily serves the function of ‘testing the pleadings,’ i.e., enabling a party to determine what his opponent's contentions are and what facts he relies upon to support his contentions.” )). 

Admission requests together with Judicial Council form interrogatory No. 17.1 require respondents to state all facts that support the contentions.   Union Bank v. Sup. Ct. (1995) 31 Cal. App. 4th 573, 580.

When no separate statement is filed with a discovery motion, the matter may be ordered off calendar.  BP Alaska Exploration, Inc. v. Sup. Ct. (1988) 199 Cal.App.3d 1240, 1270.  See also  CRC Rule 3.1345 (requirements of discovery separate statements).  Courts have discretion to deny discovery motions where a filed separate statement lacks the content and format required by the California Rules of Court.  Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 893.  Accord  St. Mary v. Sup. Ct.  (2014) 223 Cal. App. 4th 762, 778.

A motion lies to compel deposition attendance and document production, after service of a deposition notice, where a deponent fails to appear at, or proceed with, a deposition, without having served a valid objection under Section 2025.410.  CCP §2025.450(a). 

No meet and confer is required to compel initial deposition attendance, but instead there must be a declaration showing that moving party inquired about the nonappearance.  CCP §2025.450(b)(2).   "Implicit in the requirement that counsel contact the deponent to inquire about the nonappearance is a requirement that counsel listen to the reasons offered and make a good faith attempt to resolve the issue," including by rescheduling.  Leko v. Cornerstone Bldg. Inspection Serv. (2001) 86 Cal. App. 4th 1109, 1124.  See also L.A.S.C.L.R. 3.26 (“guidelines adopted by the Los Angeles County Bar Association are adopted as civility in litigation recommendations….”).

Generally, discovery methods may be pursued in any sequence, without delaying other discovery, but, on motion, for good cause shown, courts may establish the sequence and timing of discovery, for the convenience of parties and witnesses, and in the interests of justice.  CCP §2019.020.  Generally, depositions proceed in the order noticed, subject to a protective order based on unfair advantage from deposition timing.   Poeschl v. Sup.Ct. (1964) 229 Cal.App.2d 383, 386–87.  See also  L. A. Sup. Ct. L. R. 3.26(e)(3)  (civility guidelines providing that, “[w]hen a deposition is noticed by another party in the reasonably near future, counsel should ordinarily not notice another deposition for an earlier date without the agreement of opposing counsel.”)