Judge: Malcolm Mackey, Case: 21STCV22686, Date: 2023-02-09 Tentative Ruling

Case Number: 21STCV22686    Hearing Date: February 9, 2023    Dept: 55

ZARIN v. SCHWARTZ                                                       21STCV22686

Hearing Date:  2/9/22,  Dept. 55

#8:   MOTION TO COMPEL FURTHER RESPONSES TO DEFENDANTS’ FORM INTERROGATORIES, 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 form interrogatories, on bases including the following:

 

·         On August 2, 2022, Plaintiff served responses to Defendants’ Form Interrogatories. (Castro Decl., ¶5, Exhibit C). The responses were deficient as to Form Interrogatory No. 17.1.

·         Plaintiff refuses to identify any documents and/or witnesses’ information to support its response to the corresponding denial of the request for admission.

·         Form Interrogatory No. 17.1: Is your response to each request for admission served with these interrogatories an unqualified admission? If not, for each response that is not an unqualified admission: (d) identify all DOCUMENTS and other tangible things that support your response and state the name, ADDRESS, and telephone of the PERSON who has each DOCUMENT or thing.

·         Defendants met and conferred with Plaintiff regarding the deficient responses.

 

RP Positions

 

Opposing party advocates denying,  and imposing $4,500 sanctions against Defendant GARY SCHWARTZ, for reasons including the following:

 

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. 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, pp. 2 – 3.)

 

Tentative Ruling

 

The motion is denied.

The opposing request for sanctions is granted.

Sanctions in the amount of $4,500.00 total are awarded to Plaintiff and against defendant GARY N. SCHWARTZ.

The 45-day rule expired, even considering 5 days for mailing.  Specifically, the 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 responses properly express the inability to specify documents, because defendants have them and discovery is continuing (e.g., motion, ex. C, 2:23  (“9.2 All documents related to damages are in the possession of defendants and included all documents filed and placed in the REGHABI ACTION. Discovery is continuing in relation to this interrogatory.”).

If a respondent does not have personal knowledge for a full 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.

Because of a lack of information pending discovery, opposing party is not required to comply with this rule:  “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.

Moving party did file separate statements, 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 as to code-compliance 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.