Judge: Malcolm Mackey, Case: 21STCV22686, Date: 2023-02-08 Tentative Ruling
Case Number: 21STCV22686 Hearing Date: February 8, 2023 Dept: 55
ZARIN
v. SCHWARTZ 21STCV22686
Hearing Date: 2/8/22,
Dept. 55
#8:
MOTION TO COMPEL FURTHER RESPONSES TO DEFENDANTS’
SPECIAL INTERROGATORIES, SET ONE, AND REQUEST FOR SANCTIONS IN THE AMOUNT OF
$4,435.00. (TAKEN OFF
CALENDAR 1/31 BY MOVING PARTY AFTER COURT REVIEWED BOTH MOTIONS)
MOTION TO COMPEL FURTHER RESPONSES TO THE REQUEST FOR PRODUCTION
OF DOCUMENTS, SET ONE.
Notice: Okay
Opposition
MP:
Defendants
RP:
Plaintiff
Summary
On 6/17/21, Plaintiff filed a Complaint alleging that Defendants,
as attorneys, represented Plaintiff in a number of cases, spanning a
significant period of time, but as to one case, Defendants negligently advised
her, resulting in the striking of her answer and entry of default and default judgment.
The causes of action are:
1. PROFESSIONAL
NEGLIGENCE
2. BREACH
OF FIDUCIARY DUTY
3. BREACH
OF CONTRACT
4. BREACH
GOOD FAITH AND FAIR DEALING.
On 7/26/21, Defendant FELDMAN BERMAN SCHWARTZ, LLP
filed a Cross-Complaint against Plaintiff, alleging that, in a 2019 Retainer
Agreement, Cross-Complainant agreed to represent Plaintiff in various,
specified legal matters, but she has not paid for the legal services she
received.
MP
Positions
Moving parties requests an order compelling
Plaintiff’s further responses to special interrogatories, and imposing sanctions
($4,435), on bases including the following:
·
On August 2, 2022, Plaintiff served
responses to Defendants’ Special Interrogatories. The responses were deficient
as to Special Interrogatory Nos. 2, 5, 8, 11, 14, 17, 20, 23, and 26.
·
Plaintiff refuses to identify any
documents.
·
Defendants met and conferred with
Plaintiff regarding the deficient responses.
Moving parties requests an order compelling
Plaintiff’s further responses to document requests, on bases including the
following:
·
On August 2, 2022, Plaintiff served
initial responses to Defendants’ Requests for Production.
·
Plaintiff failed to provide any responsive
documents and instead provided the same boilerplate response to each request:
“All of the documents
known to plaintiff in response to this demand/request for documents are already
in the possession, custody and control of defendants. Also, the pleadings and
other papers filed in the BIDARI ACTION, MIKHAIL ACTION, NICK BENE ACTION, and
REGHABI ACTION, which are believed to be in the possession of defendants or are
obtainable from some other source that is more convenient, less burdensome, and
less expensive. [California Code of Civil Procedure §2019.030(a)(1)]. Plaintiff
would note that the documents she has in her possession were delivered over to
her by defendants and at this time it is believed that no other documents
relevant to this matter exist that are not in the possession of defendants.
Defendants do have materials that plaintiff does not have.”
·
After meeting and conferring to no avail,
Defendants are now forced to file this instant motion to compel responses.
RP
Positions
1.
Counsel for defendant GARY N. SCHWARTZ, made no real or good faith
effort
to meet and confer in relation to this discovery motion with counsel for
plaintiff
Ahang Zarin.
2.
Plaintiff Ahang Zarin revealed to counsel for defendants, the meritorious
nature
of the responses to discovery she served on defendant GARY N.
SCHWARTZ.
3.
Though under a mandatory and quasi-jurisdictional duty to file this motion to
compel
with the required 45-day time period as set out in California Code of
Civil
Procedure § 2030.300(c),defendant GARY N. SCHWARTZ, and his
counsel
failed to do so.
4.
Defendant GARY N. SCHWARTZ, and his counsel without reason, cause, or
excuse,
and without any statutory or case law support, intentionally and
deliberately
misused the discovery process and filed this discovery motion even
though
such a motion was prohibited by statute.
5.
There is no separate statement filed in this matter with a hearing date of
February
8, 2023, thus rendering defendant Schwartz incompetent and further
subject
to denial under California Rules of Court, Rule 3.1345(c).[See Mills
vs.
U.S. Bank [2008] 166 Cal.App.4th 871, 893.]
6.
Sanctions are compelled to be in granted in favor of plaintiff Ahang Zarin and
against
defendant GARY N. SCHWARTZ, in the amount of four thousand five
hundred
dollars [$4,500.00], pursuant to pursuant to California Code of Civil
Procedure
§§ 2030.290(c) and 2023.010.
(Opposition
re special interrogatories, pp. 2 – 3.)
Opposing party advocates denying as to documents, and imposing $4,500 in sanctions against
Defendant GARY N. SCHWARTZ, for reasons including the following:
1. Counsel for defendant
GARY N. SCHWARTZ, made no effort, good faith or
otherwise to meet and
confer in relation to the FURTHER RESPONSES served
by plaintiff Ahang Zarin
on August 26, 2022.
2. Plaintiff Ahang Zarin
served meritorious FURTHER RESPONSES to the
Request/Demand for
Production on defendant GARY N. SCHWARTZ, on
August 26, 2022.
3. Defendant Schwartz his
counsel Christian R. Castro, Esq., have
misrepresented to this
court that the further responses were the same as the
initial responses served
by plaintiff Ahang Zarin.
4. Defendant GARY N.
SCHWARTZ, and his counsel without reason, cause, or
excuse, and without any
statutory or case law support, intentionally and
deliberately misused the
discovery process and filed this discovery motion even
though such a motion was
prohibited by statute.
5. There is no separate
statement filed in this matter with a hearing date of
February 8, 2023, thus
rendering defendant Schwartz incompetent and further
subject to denial under
California Rules of Court, Rule 3.1345(c).[See Mills
vs. U.S. Bank [2008] 166
Cal.App.4th 871, 893.]
6. There was no attempt
to meet and confer by moving party’s counsel in
relation to the further
responses provided by Ahang Zarin, on August 26, 2022,
in violation of
California Code of Civil Procedure § 20230.020.
7. Sanctions are
compelled to be in granted in favor of plaintiff Ahang Zarin and
against defendant GARY N.
SCHWARTZ, in the amount of four thousand five
hundred dollars
[$4,500.00], pursuant to pursuant to California Code of Civil
Procedure §§ 2030.290(c)
20230.020 and 2023.010.
(Opposition re document requests, pp. 2 – 3.)
Motion is denied.
The opposing requests for sanctions as to both motions
are granted.
Sanctions in the amount of $9,000.00 total are awarded
to Plaintiff and against defendant GARY N. SCHWARTZ.
The 45-day rule expired as to special interrogatories,
even considering 5 days for mailing. Specifically,
the special interrogatory responses were served on 8/2/22. The motion was filed on 10/6/22.
Motions to compel further responses as to
interrogatories and document requests must be served 45 days from the date of
the original or supplemental responses.
CCP §§2030.300(c), 2031.310(c).
The 45-day limitation to move to compel further responses as to
interrogatories and document requests is jurisdictional, and courts are without
authority to rule on untimely motions to compel except just to deny them. Sexton v. Sup. Ct. (1997) 58 Cal. App.
4th 1403, 1410; Sperber v. Robinson
(1994) 26 Cal. App. 4th 736, 746; Standon
Co. v. Sup. Ct. (1990) 225 Cal. App. 3d 898, 902. The failure to file a timely motion to compel
further responses to unsatisfactory discovery responses constitutes a waiver of
an ability to obtain further responses. Saxena
v. Goffney (2008) 159 Cal.App.4th 316, 333.
The 45-day time limit to move to compel further discovery responses runs
upon service of verified responses, as to mixed responses having factual
responses and objections. Golf &
Tennis Pro Shop, Inc. v. Sup.Ct. (2022) 84 Cal.App.5th 127, 136.
Also, the initial document responses properly expressed
the inability to specify some documents, because defendants have them and
discovery is continuing, such as the following example:
All of the documents
known to plaintiff in response to this demand/request for documents are already
in the possession, custody and control of defendants. Also, the pleadings and
other papers filed in the BIDARI ACTION, MIKHAIL ACTION, NICK BENE ACTION, and REGHABI ACTION, which are
believed to be in the possession of defendants or are obtainable from some
other source that is more convenient, less burdensome, and less expensive.
(California Code of Civil Procedure §2019.030(a)(1)). Plaintiff would note that
the documents she has in her possession were delivered over to her by
defendants and at this time it is believed that no other documents relevant to
this matter exist that are not in the possession of defendants. Defendants do
have materials that plaintiff does not have including notes and other materials
that are no longer protected by work product or attorney-client privileges.
Discovery is still continuing in relation to this demand/request
(Motion re
documents, ex. C, 2:8.)
Additionally, the supplemental document responses
served 8/26/22 also properly indicated the inability to respond, as follows:
A diligent search and
reasonable inquiry has been made in an effort to comply with this request and
no documents responsive to this request is in possession, custody or control of
the responding party, and the party in possession of these documents include defendant
GARY N. SCHWARTZ and the law firm of FELDMAN BERMAN SCHWARTZ, LLP.
(Opposition re documents, 5:23.)
If a respondent does not have personal knowledge for a
full interrogatory response, the party shall so state and make a reasonable and
good faith effort to obtain the information by inquiries. Sinaiko Healthcare
Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal. App. 4th
390, 406; Regency Health Services, Inc. v. Sup. Ct. (1998) 64 Cal.App.4th
1496, 1504.
With regard to document requests, a response
expressing an inability to comply shall state that a diligent search and
reasonable inquiry was made to locate the items, and the reason for an
inability to comply, including that the item never existed, was lost or stolen,
was destroyed, or is not in respondent’s possession, along with the identity
and address of anyone believed to have the document. CCP §2031.230. Compliance
includes all documents or things in the demanded category that are in the
“‘possession, custody, or control’” of the responding party, such as from other
corporations. Roche v. Hyde
(2020) 51 Cal.App.5th 757, 813 (quoting
CCP § 2031.220).
Because of a lack of information pending discovery, opposing
party is not required to comply with these rules: “If an interrogatory asks the responding
party to identify a document, an adequate response must include a description
of the document.” Best Products, Inc. v. Sup. Ct. (2004) 119 Cal. App.
4th 1181, 1190. A document response must
consist of: 1) an agreement to comply,
stating whether the productions or inspection will be allowed “in whole or in
part,” and that all documents or things in the possession, custody or control
of the respondent, as to which no objection is made, will be included, by the
date set for inspection (unless informally extended in writing, or the
designated timing is subject to objection);
2) a representation of inability to comply, with a specification of any
person believed or known to have possession of documents; or, 3) objections and specification of
withheld documents. CCP §§2031.210(a),
2031.220, 2031.270, 2031.280(b).
Also, the Court notes that moving party filed separate
statements, on 10/7/22, but two-out-of-three of them have the wrong hearing
date—2/9/23 instead of 2/8/23.
Finally, because there is no justification for filing
the untimely motion to compel special interrogatories, and for filing both
motions as to code-compliant responses, monetary sanctions are mandatory. Generally, monetary sanctions are mandatory
as to parties losing discovery motions, unless courts find substantial
justification or other injustice. E.g., Foothill Properties v. Lyon/Copley
Corona Assocs., L.P. (1996) 46 Cal.App.4th 1542, 1557-58. “ ‘[S]ubstantial justification” has been
understood to mean that a justification is clearly reasonable because it is
well-grounded in both law and fact.” Doe
v. U.S. Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1434.