Judge: Mark A. Young, Case: 21SMCV01753, Date: 2023-05-16 Tentative Ruling
Case Number: 21SMCV01753 Hearing Date: May 16, 2023 Dept: M
CASE NAME: Golden
Development LLC, et al., v. Universal Herbal Center Inc., et al.
CASE NO.: 21SMCV01753
MOTION: Motion for a Protective Order
HEARING DATE: 5/16/2023
Legal
Standard
A court
may make any order that justice requires to protect a party from “unwanted
annoyance, embarrassment or oppression or undue burden and expense.” (CCP, § 2030.090 (b).) CCP section 2031.060 provides that a party
can move for a protective order “[w]hen an inspection, copying, testing, or
sampling of documents, tangible things, places, or electronically stored
information has been demanded.” (CCP, § 2031.060(a).) The court may make any
order that justice requires to protect any party from unwarranted annoyance,
embarrassment, or oppression, or undue burden and expense upon a showing of
good cause. (§ 2031.060(b).) The burden of proof is on the party seeking the
protective order to show “good cause” for the order he or she seeks. (Fairmont
Insurance Co. v. Superior Court (2000) 22 Cal.4th 245, 255.) A motion for a protective order “shall be
accompanied by a meet and confer declaration under Section 2016.040. “A meet
and confer declaration in support of a motion shall state facts showing a
reasonable and good faith attempt at an informal resolution of each issue presented
by the motion.” (CCP § 2016.040.)
California’s standard for discovery
is broad: “any party may obtain discovery regarding any matter, not privileged,
that is relevant to the subject matter involved in the pending action or to the
determination of any motion made in that action, if the matter either is itself
admissible in evidence or appears reasonably calculated to lead to the
discovery of admissible evidence.” (CCP, § 2017.010.) Courts construe the right
to discovery liberally to permit discovery whenever possible. (Williams v.
Superior Court (1997) 3 Cal.5th 531, 541.) One of the purposes of the
discovery is “to educate the parties concerning their claims and defenses so as
to encourage settlements and to expedite and facilitate trial.” (Emerson
Electric Co. v. Superior Court (1997) 16 Cal.4th 1101, 1107.)
Analysis
Defendants Universal Herbal Center,
Inc. (“UHC”), Capital Growth Investments, Inc. (“CGI”), PNPLXPRESS, Inc.
(“PNPL”), and Neu-Ventures, Inc. (“NVI”) (collectively, “Defendants”) move for
a protective order that Defendants need not answer Plaintiff’s propounded
discovery, including the following eight items:
i. Special Interrogatories, Set One
as to UHC;
ii. Demand for Inspection, Set One
as to UHC;
iii. Special Interrogatories, Set
One as to NVI;
iv. Demand for Inspection, Set One
as NVI;
v. Special Interrogatories, Set One
as to PNPL;
vi. Demand for Inspection, Set One
as to PNPL;
vii. Special Interrogatories, Set
One as to CGI; and
viii. Demand for Inspection, Set
One as to CGI.
Defendants represent that the
instant discovery was propounded after the judgment was paid. Since the
judgment has been paid, Defendants reason that the discovery is unduly
burdensome, unwarranted, and propounded for no other reason than to annoy,
harass, and unduly burden Defendants. Relevantly,
following arbitration, on July 27, 2022, the Court confirmed an arbitration
award based on Plaintiff’s petition to confirm the award. No opposition was
submitted. The Court entered judgment in the amount of $146,178.99, as required
by the award.
On August 8, 2022, Plaintiff served
each defendant with a set of Special Interrogatories and a set of Demand for
Production of Documents (2 sets on each defendant for total of 8 sets of
discovery) to aid in the enforcement of Plaintiff’s money judgment against the
Defendants. On September 9, 2022, Defendants served a response consisting of
only blanket objections to each and every Interrogatory and Demand. The parties
met and conferred, and attended an IDC via Zoom. On October 20, 2022, Plaintiff
filed against each defendant a motion to compel further responses. Defendants
failed to file timely oppositions to the motions. Instead, on the same day as
the hearings for the motions, Defendants filed an untimely opposition and the
instant motion for a protective order concerning the subject discovery. Since
Defendants did not file this motion and opposition until the day of the
hearing, the Court did not review or consider the opposition.
The Court notes that the
outstanding principal and interest which remains on the judgment is largely
Defendants’ fault. Defendants failed to oppose critical motions at issue, such
as the confirmation motion and underlying discovery motions, leading the Court
to render judgment and impose sanctions. Critically, Defendants failed to
object to the various memoranda of costs after judgment, which claimed
principal and interest that Defendants now contend are unjustified. However,
based on the various memoranda filed in this action, there is an outstanding
principal of $16,427.92 (as of January 31, 2023).
A judgment debtor who contests any of the
claimed costs must file a noticed motion to tax or strike costs within 10 days
after service of the memorandum. (CCP §§ 685.070(c), (f), 684.010; see Bach
v. County of Butte, (1989) 215 Cal.App.3d 294, 308 [properly verified
memorandum of costs is considered prima facie evidence that the costs
listed in the memorandum were necessarily incurred]; see also CCP § 1013 [longer
if service is by mail, fax, Express Mail or other overnight delivery method].) Costs, such as fees incurred in enforcing
the judgment, may be claimed as a matter of right under section 685.070. Simply
put, uncontested costs are automatically
allowed and added to the judgment. (CCP § 685.070(d); see Lucky United
Properties Investment, Inc. v. Lee (2013) 213 Cal.App.4th 635, 643; see
also David S. Karton, A Law Corp. v. Dougherty (2009) 171
Cal.App.4th 133, 147 [when post-judgment enforcement costs are allowed, they
become part of the principal amount of the judgment; interest accrues upon
those costs at the rate of 10 percent per annum].)
On August 10, 2022, Plaintiff filed
a memorandum of costs after judgment, claiming $2,504.02 in post judgment
costs, comprising of $2,493.75 in attorneys’ fees, and $10.27 in other
costs. Plaintiff acknowledged
$143,932.81 in payments to date, which credited to the judgment principal of
$141,686.63. Plaintiff claimed that the amount of judgment principal remaining
due was therefore $2,246.18, and $8.50 in interest remaining due. Defendants
made no objection or motion with regards to this memo.
On October 21, 2022, a day
following Plaintiff’s filing of the post-judgment discovery motions, Plaintiff
filed a memorandum of costs after judgment, claiming $11,814.16 in
post-judgment costs, including $8,692.50 in attorneys’ fees and $617.64 of
other accrued costs. The memo acknowledged $143,932.81 in payments, applying
first to accrued interest of $591.00 and then to the principal of $143,327.89.
The memo claimed $3,095.02 of judgment principal was due, with accrued interest
of $13.92. Defendants made no objection or motion with regards to this memorandum
of costs.
On January 31, 2023, Plaintiff
filed a memorandum of costs after judgment, claiming $3,087.50 in attorneys’
fees and $12.22 in other accrued costs as post judgment costs. In addition to
the previously allowed post-judgment costs of $12,737.20, the memo claimed a
cost total of $15,836.92. Plaintiff credited $591.00 in accrued interest,
$143,341.81 as to the judgment principal. Plaintiff claimed $16,427.92 as the
principal remaining due and owing, with accrued interest of $219.00 remaining
due. Defendants made no objection or motion with regards to this memorandum of costs.
Lastly, on May 3, 2023, Plaintiff apparently
re-filed the January 31, 2023, memorandum of costs after judgment. This memo also
claimed $3,087.50 in fees, plus $12.22 in other costs. With the previously
allowed costs of $12,737.20, the total claimed post-judgment costs came to
$15,836.92. Plaintiff acknowledged the previous $143,932.81 in costs. The memo again
claimed an outstanding principal of $16,427.92, with $219.00 in interest. Again,
Defendants failed to move to tax.
Defendants apparently ignored all these
memoranda, and failed to file the required motion to tax costs or otherwise
object within 10 days of service of any of the memoranda. (See CCP § 685.070(c).)
Thus, the current outstanding principal is $16,427.92. This is not an insubstantial
amount of money such that the instant enforcement discovery would be unreasonable.
Even at the time that the instant discovery motions were made, there were
substantial amounts still due and owing per the memoranda. The August 10, 2022,
memorandum claimed $2,246.18 in principal and $8.50 in interest. The October
21, 2022, memorandum claimed $3,095.02 of judgment principal was due, with
accrued interest of $13.92. Defendants’ October 20, 2022, proffer of $603.96
would not have fully paid the principal remaining. These amounts still owing undercuts
Defendants’ argument that the discovery served no purpose but to annoy or
harass, because the underlying judgment was not fully paid off. As shown by the
memoranda, there were substantial amounts due and owing. Thus, Defendants’
principal argument for a protective order is without merit. If Defendants
believed that the memoranda were inaccurate or included unwarranted costs, they
had the burden to file the appropriate challenge. Since they did not, the costs
claimed by the memoranda became part of the judgment as a matter of law.
Moreover, Defendants had the
opportunity to oppose the underlying motions to compel further, but chose to
file an extremely late opposition the day of the hearing. Since Defendants had
the burden to justify their blanket objections, their failure to oppose led to,
in part, the discovery and sanctions order.
Accordingly, Defendants do not
provide good cause for a protective order regarding the targeted discovery. Therefore,
the motion is DENIED.
Sanctions are mandatory, unless the
Court finds that the one subject to the sanction acted with substantial
justification or that other circumstances make the imposition of the sanction
unjust. (CCP § 2030.090(d), 2031.060(h).)
Given the lack of good cause demonstrated by the motion, the Court does not
find a substantial justification for the protective order.
Plaintiff requests sanctions in the
amount of $1,793.47 for opposing the protective order motion. Counsel spent
2.75 hours reviewing defendant’s motion, doing research, and preparing this
opposition, and anticipates another 1 hour reviewing defendant’s reply and
attending the hearing on this motion. (Omrani Decl., ¶5 [at $475.00/hr.].)
Additionally, there was $12.22 in filing fees. (id.) The requested sanctions
are facially reasonable. Therefore, the Court imposes sanctions in the total
amount of $1,793.47 against Defendants and their attorney of record Mainak
D’Attaray, jointly and severally.
As the Court has already ordered
Defendants to provide further responses, and Defendants did not move for
reconsideration or appeal of this ruling, Defendants are still required to
provide further responses. Furthermore, as this motion was denied in whole, the
Court again orders Defendants to provide responses consistent with the December
2, 2022 ruling. (CCP § 2030.090(c), 2031.060(g).) Those responses are due within 10 days.