Judge: Margaret L. Oldendorf, Case: EC067254, Date: 2022-10-14 Tentative Ruling
Case Number: EC067254 Hearing Date: October 14, 2022 Dept: P
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
NORTHEAST DISTRICT
I. INTRODUCTION
This lawsuit concerns allegations about concerted efforts to defame an attorney and damage his business. Plaintiff Dennis P. Block, individually and dba Dennis P. Block & Associates (Block) alleges he is a preeminent lawyer who represents landlords in unlawful detainer and other landlord-tenant disputes. Defendant Basta, Inc. (Basta) and its founder and CEO Defendant Daniel Bramzon (Bramzon) are alleged to defend tenants in such disputes. Defendant Brett Schulte (Schulte) is alleged to be a self-professed tech-guy and hacker, who was a client of Basta and Bramzon.
The pleading contains extensive allegations about the creation of a fake twitter account (@dennispblock) that was used to tweet defamatory statements about Dennis Block and his associates, Plaintiffs Hasti Rahsepar (Rahespar) and Paul Eric Gold (Gold), and office manager Plaintiff Azam (Amy) Riesen (Riesen); and of placing defamatory and denigrating material on Yelp and other social commentary sites. It is also alleged that Defendants took actions resulting in Block being “spam bombed” with email and telephone calls from businesses who had been led to believe that Block was interested in their services. Further, it is alleged Defendants created fake websites and acquired the domain name for Dennis Block, unfairly used his name and likeness, all in an effort to ridicule and defame him, and disclosed Block’s private cell phone number and home address, causing him to fear for his safety. Defendants are also alleged to have invaded Block, Rahsepar, and Riesen’s privacy by disclosing private facts and posting pictures without their permission and by making derogatory and despicable comments about them.
At issue here are Block’s motions to compel Bramzon’s responses to Form Interrogatories, Set Two, Special Interrogatories, Set Two, and Requests for Production, Set Two. Bramzon served responses without objections to all discovery the day after these motions were filed, rendering the motions moot except as to sanctions. Block’s requests for monetary sanctions in connection with the motions are denied, as Bramzon had substantial justification to oppose the motions.
II. PROCEDURAL HISTORY
On May 26, 2022, Block served Bramzon with the following:
Second Set of Requests for Admissions (RFAs 76-96);
Form Interrogatories, Set Two (mistakenly labeled Set One) (Sole interrogatory is Rog. 17.1 regarding unadmitted RFAs);
Special Interrogatories, Set Two (Rogs. 118-133);
Second Set of Requests for Production (Nos. 67-73).
Bramzon failed to serve responses within the time permitted. Block sent a letter on July 8, 2022, noting this. On July 11, 2022, Block sent a second letter indicating that to avoid the filing of motions to compel he needed, by the end of that business day, assurance that Bramzon would provide complete responses without objections. The response was that Bramzon would provide unverified responses by July 13 with verifications the following week as he was out of town and unable to sign.
On July 12, 2022, Block filed three motions to compel and one motion to deem matters admitted, concerning the discovery served May 26, 2022. The motions to compel were calendared for today’s date and the motion to deem matters admitted was calendared for August 19, 2022.
On July 13, 2022, Bramzon served unverified responses without objections to all four sets of discovery. On July 20, 2022, he followed up with verifications. On August 8, 2022, he filed an opposition to the Admissions motion. Block filed a reply August 10, 2022.
On August 19, 2022, the motion for an order deeming matters admitted was heard and denied on the basis that verified responses without admission had been provided prior to the hearing. (Code Civ. Proc. §2033.280 (a)(1).) Bramzon was ordered to pay monetary sanctions in the amount of $1,400 (reduced from the $3,660 requested) to Block within 30 days pursuant to Code Civ. Proc. §2033.280 (c) (“It is mandatory that the court impose a monetary sanction [] on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion”).
III. ANALYSIS
As noted, Bramzon has provided verified responses without objections to the three sets of discovery at issue. Consequently, the motions are moot except as to monetary sanctions. Block has not asked to have the motions taken off calendar. It is his position that sanctions are not just warranted but mandatory. This is not correct.
Unlike the sanction language in the code governing motions to deem matters admitted (Code Civ. Proc. §2033.280: “It is mandatory that the court impose a monetary sanction”), the code sections governing motions to compel responses to interrogatories and requests for documents do not make sanctions mandatory. Code Civ. Proc. §2030.290 (c) and §2031.300 (c) both provide that the court “shall impose a monetary sanction [] against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel responses [] 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.”
Block relies on Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390 in arguing that sanctions are mandatory. But Sinaiko merely reiterates what the statute says: “If a party fails to serve a timely response, and the propounding party moves for and obtains a court order compelling a response, the trial court must impose a monetary sanction against the delinquent party unless that party acted with ‘substantial justification’ or the sanction would otherwise be unjust. (§§ 2030.290, subd. (c); 2031.300, subd. (c).)” (Id. at 404.)
Bramzon argues that sanctions are not warranted here because the motions were unnecessary. He argues that until the July 8, 2022 letter he was unaware of these four sets of discovery because they were lost amid a barrage of emails, and that once he learned of them he promptly provided responses.
Regarding the barrage of emails, Block counters that most of this came from defense counsel’s side and not from him. Block also urges that this excuse amounts to an admission that the failure to timely provide responses was due to the mistake or inadvertence of counsel, making him liable for sanctions pursuant to Code Civ. Proc. §473 (b). This section applies where a party seeks relief from a “judgment, dismissal, order, or other legal proceeding taken against him.” As there is no judgment, dismissal, order or legal proceeding from which Bramzon is seeking relief, there is no basis for Block to ask for sanctions in connection with such relief.
The argument that Bramzon promptly provided responses without objections once he was made aware of this discovery carries substantial weight. Based on the declarations and attached email chains, it is more than clear that the parties and counsel have a general distrust and lack of good working relationship. This may be due in large part to the nature of the underlying allegations. But even after crediting Block with the benefit of the doubt as to Bramzon’s past discovery abuses, when a party promises to provided responses without objections in two days with verifications to follow, it is not reasonable to file motions to compel the next day. Block strongly believes that the only reason Bramzon provided responses is because the motions were filed. That argument would have more weight if Block had waited a week before filing.
Code Civ. Proc. §2023.010 enumerates sanctionable discovery conduct.
“Misuses of the discovery process include, but are not limited to, the following:
(a) Persisting, over objection and without substantial justification, in an attempt to obtain information or materials that are outside the scope of permissible discovery.
(b) Using a discovery method in a manner that does not comply with its specified procedures.
(c) Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.
(d) Failing to respond or to submit to an authorized method of discovery.
(e) Making, without substantial justification, an unmeritorious objection to discovery.
(f) Making an evasive response to discovery.
(g) Disobeying a court order to provide discovery.
(h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery.
(i) Failing to confer in person, by telephone, or by letter with an opposing party or attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery, if the section governing a particular discovery motion requires the filing of a declaration stating facts showing that an attempt at informal resolution has been made.”
Under the circumstances here, it cannot be said that Bramzon failed to respond to an authorized method of discovery (d). What he did was provide untimely responses without objections. Whether he unsuccessfully opposed a motion to compel without substantial justification (h) is a closer call. If Block is correct that Bramzon would not have provided responses absent the filing of these motions, sanctions would be appropriate. That is not something that can be ascertained at this point. What the declarations and attached emails demonstrate is that once Bramzon learned of this discovery he (1) promised to provide responses within two days with verifications to follow, and (2) followed through on that promise. This makes it appear that Block could have saved himself the expense of these motions by simply not filing them. Consequently, the Court finds that Bramzon had substantial justification for opposing these motions such that sanctions are not warranted.
IV. CONCLUSION
Block’s motions compel Bramzon’s responses to Form Interrogatories, Set Two, Special Interrogatories, Set Two, and Requests for Production, Set Two, are denied on the basis that responses without objections were served prior to the hearing. Block’s request for monetary sanctions is denied on the ground that Bramzon had substantial justification to oppose the motions.
No further discovery motions are to be filed in this action without an Informal Discovery Conference. Code Civ. Proc. §2016.080(a).
Bramzon is ordered to provide notice of this order.
Dated: _______________________________
MARGARET OLDENDORF
JUDGE OF THE SUPERIOR COURT
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
NORTHEAST DISTRICT
I. INTRODUCTION
This lawsuit concerns allegations about concerted efforts to defame an attorney and damage his business. Plaintiff Dennis P. Block, individually and dba Dennis P. Block & Associates (Block) alleges he is a preeminent lawyer who represents landlords in unlawful detainer and other landlord-tenant disputes. Defendant Basta, Inc. (Basta) and its founder and CEO Defendant Daniel Bramzon (Bramzon) are alleged to defend tenants in such disputes. Defendant Brett Schulte (Schulte) is alleged to be a self-professed tech-guy and hacker, who was a client of Basta and Bramzon.
The pleading contains extensive allegations about the creation of a fake twitter account (@dennispblock) that was used to tweet defamatory statements about Dennis Block and his associates, Plaintiffs Hasti Rahsepar (Rahespar) and Paul Eric Gold (Gold) and office manager Plaintiff Azam (Amy) Riesen (Riesen); and of placing defamatory and denigrating material on Yelp and other social commentary sites. It is also alleged that Defendants took actions resulting in Block being “spam bombed” with email and telephone calls from businesses who had been led to believe that Block was interested in their services. Further, it is alleged Defendants created fake websites and acquired the domain name for Dennis Block, unfairly used his name and likeness, all in an effort to ridicule and defame him, and disclosed Block’s private cell phone number and home address, causing him to fear for his safety. Defendants are also alleged to have invaded Block, Rahsepar, and Riesen’s privacy by disclosing private facts and posting pictures without their permission and by making derogatory and despicable comments about them.
At issue in this motion is a deposition subpoena for business records Block seeks from Bank of America, where Basta maintains an account. The subpoena seeks records showing payments by Basta to Schulte. However, because of the way the subpoena is worded, information concerning payments to and receipt of payments from third parties could occur. Modification of the subpoena is necessary to prevent this. For the reasons that follow, the motion is therefore granted.
II. LEGAL STANDARD
Code Civ. Proc. §1987.1 allows for the modification of subpoenas upon motion by a party. Section 1987.2 provides that the court may, in its discretion, issue monetary sanctions in connection with such a motion, “if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.”
III. ANALYSIS
At issue in this motion is the scope of the subpoena Block served on Bank of America and whether by requesting “statements,” the subpoena is overly broad and sweeps in the private information of third parties. After defining the capitalized terms, the deposition subpoena seeks the following:
“Produce any and all DOCUMENTS concerning or relating to any payments or transfers made from all of BASTA’s accounts at this institution to SCHULTE including but not limited to copies of all checks, statements, Zelle transfers, Venmo transfers, wire transfers, direct deposits, debit and credit memos, deposit statements, withdrawal statements, and payroll information or documents from 2010 to the present.”
Basta argues the subpoena should be modified to remove “statements” in order to protect the privacy rights of third parties. Block takes the position that the subpoena is narrowly tailored since it only requests information concerning payments from Basta to Schulte, and so no modification is needed.
While producing copies of checks, Zelle and Venmo, wire transfers and the like would not implicate the privacy rights of others, if Bank were to produce all monthly statements containing transfers/payments to Schulte, the privacy of other persons and entities identified on that statement would be intruded upon. The obvious nature of this intrusion seems to be why, in meet and confer letters, Block indicated that he was not seeking “monthly statements.” Yet when requested to resolve this informally by removing the word “statements,” he declined to do so.
To the extent the word “statements” is understood by Bank of America to mean “monthly statements,” the motion to modify has merit. Monthly statements would in all likelihood include names and associated dollar amounts for transactions with multiple third-parties having no connection to this litigation. Block has not demonstrated a compelling public interest that would overcome the privacy rights of these third-parties. See Kirchmeyer v. Phillips (2016) 245 Cal.App.4th 1394, 1403-04. That there is a protective order in place is a separate issue; the privacy of third parties cannot be invaded without a showing that doing so is necessary to the litigation.
If Block obtains the information it needs without production of monthly statements, then there will be no need to engage in the process of weighing third-party privacy rights against Block’s rights to the information. Thus, at least for the time being, the word “statements” is stricken from the subpoena. If, after receiving the responsive documents, Block believes there is additional relevant information that cannot be obtained without production of the monthly statements, he may file a follow-up motion to have the subpoena enforced as to those statements and attempt to show a compelling interest overcoming the privacy rights of any third-parties.
Both parties request monetary sanctions in connection with this motion. Here, the subpoena appears to have been carefully and rather narrowly tailored. However, since it could have been interpreted by Bank of America as requiring the production of monthly statements, modification is needed in order to protect the privacy rights of others. Under these circumstances, in its discretion, the Court finds the motion was neither made nor opposed in bad faith. All requests for monetary sanctions are therefore denied.
IV. CONCLUSION AND ORDER
Basta’s motion to modify the Bank of America subpoena is granted as follows. The word “statements” is stricken from the subpoena. Bank of America is ordered to comply with the modified subpoena. This order is without prejudice to a follow-up motion by Block on a showing that additional relevant material contained in the statements is needed which outweighs the privacy rights of any third-party whose information would be at risk.
All requests for monetary sanctions are denied.
On a go-forward basis, no discovery motions are to be filed in this case without first engaging in an Informal Discovery Conference pursuant to Code Civ. Proc. §2016.080.
Basta is ordered to provide notice of this order.
Dated: _______________________________
MARGARET OLDENDORF
JUDGE OF THE SUPERIOR COURT