Judge: Mark A. Young, Case: 21STCV3897, Date: 2024-09-12 Tentative Ruling
Case Number: 21STCV3897 Hearing Date: September 12, 2024 Dept: M
CASE NO.: 21STCV38979
MOTION: Motion
to Compel Further Responses to Special Interrogatories (Set One) as to Natalie
Keshishian and Richard Frye
HEARING DATE: 9/12/2024
Legal
Standard
In
the absence of contrary court order, a civil litigant’s right to discovery is
broad. “[A]ny party may obtain discovery regarding any matter, not privileged,
that is relevant to the subject matter involved in the pending 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;
see Davies v. Superior Court
(1984) 36 Cal.3d 291, 301.) Section 2017.020(a) vests the Court with authority
to limit the scope of discovery if the burden, expense, or intrusiveness of the
discovery sought “clearly outweighs the likelihood that the information sought
will lead to the discovery of admissible evidence.” CCP § 2019.030 directs the Court to consider
the needs of the case, amount in controversy, and the importance of the issues
at stake in the litigation, and to consider whether the discovery being sought
is unreasonably cumulative or duplicative, or is obtainable by a more
convenient or less expensive or less burdensome way, when deciding whether to
restrict the frequency of extent of use of an authorized discovery method.
CCP section 2030.220(a) requires
that “[e]ach answer in a response to interrogatories shall be as complete and
straightforward as the information reasonably available to the responding party
permits.” Pursuant to CCP section 2030.300, a party may move to compel further
responses to a form interrogatory if the other party’s answer is “evasive or
incomplete.” The responding party has the burden of justifying the objections
to the form and special interrogatories. (Coy v. Superior Court (1962)
58 Cal.2d 210, 220-221.)
If a party to whom a demand for
inspection, copying, testing, or sampling is directed fails to serve a timely
response, the propounding party may move for an order compelling response to
the demand. (CCP § 2031.300(b); see Sinaiko
Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007)
148 Cal.App.4th 390, 403-404.) However, when responses are served, the proper
motion is a motion to compel further responses, which is governed by CCP §§
2030.300 and 2031.310. A motion to compel further responses must set forth
specific facts showing “good cause” justifying the discovery sought by the
demand and must be accompanied by a declaration showing a “reasonable and good
faith attempt” to resolve the issues outside of court. (CCP §§ 2016.040,
2031.310(b)(2).)
A motion to compel further responses
to a demand for inspection or production of documents may be brought based on:
(1) incomplete statements of compliance; (2) inadequate, evasive or incomplete
claims of inability to comply; or (3) unmerited or overly generalized
objections. (Code Civ. Proc., § 2031.310(c).) A motion
for order compelling further responses “shall set forth specific facts showing
good cause justifying the discovery sought by the demand.” (CCP §
2031.310(b)(1).) Absent a claim of privilege or attorney work product, the
moving party meets its burden of showing good cause by a fact-specific showing
of relevance. (See Kirkland v.
Superior Court (2002) 95 Cal.App.4th 92, 98.) If the moving party
has shown good cause for the RPDs, the burden is on the objecting party to
justify the objections. (Ibid.)
On receipt of a response to requests for admission
the propounding party may move for an order compelling a further response if
the propounding party deems that an objection to an RFA is without merit or too
general. (CCP § 2033.290(a)(2).)
Sanctions are generally mandatory against
the party that unsuccessfully makes or opposes a motion to compel a further
response. The Court must sanction any such party “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.” (See, e.g., CCP §
2030.300(d).)
PROCEDURAL ISSUES
Plaintiff did not undergo the informal
discovery conference process mandated by the Court, which would have avoided the
needless motion practice currently before the Court. Despite this failure, the Court will address
the merits of the motion.
Analysis
Plaintiff Daniela Cohen moves to
compel third party Natalie Keshishian and Defendant Richard Frye’s further
responses to Plaintiff’s post-judgment Special Interrogatories (Sets One),
without objections. The instant motions are a part of a set of seven motions
currently on-calendar which pertain to Plaintiff’s post-sanctions discovery on
the financial assets of Defendant and his counsel of record, including the Law
Offices of Robyn Hosmer, Robyn Hosmer, Natalie Keshishian, and Chantalle
Zakarian (collectively, “Responding Parties”). Defendant has also filed two
motions which relate to Plaintiff’s collection activities, including a motion
to tax costs (targeting Plaintiff’s memorandum of costs filed on May 15, 2024) and
a motion for a protective order.
On March 1, 2024, and March 12, 2024,
the Court issued discovery orders, including sanctions against Responding
Parties in the combined sum of $5,489.00. Plaintiff claims that by May 8, 2024,
the sanction awards had not been paid. In his motion, Plaintiff does not
explain what informal efforts he made to secure payment. Plaintiff also does
not state whether Defendant or counsel were unwilling to pay the sanctions. Instead,
on May 8, 2024, Plaintiff electronically served post-judgment interrogatories
on Frye and Keshishian, among other discovery devices. Fully, Plaintiff served
the following post-judgment discovery:
(1) FROG (Set 1) – Chantalle
Zakarian;
(2) FROG (Set 1) – Natalie
Keshishian;
(3) FROG (Set 1) – Robyn Hosmer;
(4) FROG (Set 1) – Richard Frye;
(5) FROG (Set 1) – Law Offices of
Robyn Hosmer;
(6) SROG (Set 1) – Chantalle
Zakarian;
(7) SROG (Set 1) – Natalie
Keshishian;
(8) SROG (Set 1) – Robyn Hosmer;
(9) SROG (Set 1) – Richard Frye;
(10) SROG (Set 1) – Law Offices of
Robyn Hosmer;
(11) RFP (Set 1) – Chantalle
Zakarian;
(12) RFP (Set 1) – Natalie
Keshishian;
(13) RFP (Set 1) – Robyn Hosmer;
(14) RFP (Set 1) – Richard Frye;
and
(15) RFP (Set 1) – Law Offices of
Robyn Hosmer.
(Moghadam Decl. ¶ 4; Ex. A.)
The Court
notes that there is some dispute as to the timeliness of the objection only
responses, which is not actually pertinent to the outcome of the motion or
sanctions. Defendant and counsel attempted timely service of the
responses on June 10, 2024, but served the responses on the wrong email address.
(Counsel had noticed the change of email address on May 8, 2024.) Of note, the email address that the responses
were served is still an email address used by counsel.
Responding parties explain that,
upon being sanctioned, they promptly had their insurer, Allstate, issue checks.
On March 12, 2024, Allstate issued a check for $4,425 payable to Law Offices of
Rafi Moghadam, APC and on March 21, 2024, Allstate issued a check for $1,064
payable to Law Offices of Rafi Moghadam, APC. (Keshishian Decl., ¶ 8, Ex. 3.)
However, these checks were inadvertently issued to the wrong entity, as Mr.
Moghadam had recently changed his firm name to “Halo Law” in December 2023. Thus,
Responding Parties would have timely made payment, but for an apparent clerical
error. When Mr. Moghadam notified Responding Parties of the error, they had their
insurer re-issue the checks. (Keshishian Decl., ¶ 10.) Unfortunately, because a
new claims adjuster was recently assigned to the case, Allstate re-issued the
checks to the wrong name again. (Id., ¶ 11, Ex. 3.) Ultimately, on May
14, 2024, Allstate re-issued the checks with the correct payee, Halo Law. (Id.,
Ex. 5.) Mr. Moghadam received the checks on May 21, 2024, and rejected the
checks on May 22, 2024, advising that the checks were insufficient to satisfy
the additional fees he incurred in his efforts to collect the $5,489.00.
(Id., Ex. 6.)
While Responding Parties should
have timely issued a check to the correct entity, the subject discovery was
unwarranted, oppressive and unduly burdensome in light of the circumstances. In
the realm of discovery misuse and abuse, it is hard to imagine a more egregious
response by counsel. Mr. Moghadam
admittedly received the $5,489 in full, mooting the purpose of the discovery, prior
to the deadline to respond to said discovery. Moreover, Mr. Moghadam issued the
subject discovery – consisting of over 14 sets of discovery with over 400
discovery requests – while negotiating payment. (Keshishian Decl., ¶ 10, Ex. F.)
During this period, Responding Parties never showed any intention not to pay,
and, in fact, made several attempts to pay including the initial on-time payment
that was payable to Mr. Moghadam’s prior law firm. Responding Parties fully
explained the mistakes made and the delays that ensued – and those were all
reasonable. There is not even any
evidence before the Court that Mr. Moghadam could not have cashed the mis-labeled
checks despite starting a new law firm.
During these negotiations, despite forthcoming
payment, Plaintiff issued the post-judgment discovery concerning Responding
Parties’ private financial information. Of course, since payment was
forthcoming, the subject post-judgment discovery did not reasonably “aid in
enforcement of the money judgment.” (CCP § 708.020(a).) Then, two weeks later, Mr.
Moghadam refused to withdraw the discovery or accept the checks, apparently
believing he had Responding Parties on the hook for either intrusive and purposeless
discovery, or additional attorneys’ fees. As such, the Court can only conclude
that the discovery had no purpose other than to harass Defendant and counsel of
record. Counsel’s course of action in
pursuing these discovery motions and sanctions appears completely tone deaf to
the recent emphasis the courts and the State Bar have placed on civility in the
practice of law.
Accordingly,
Plaintiff’s motions to compel are DENIED. In addition to monetary sanctions, the Court strikes the Abstracts of Judgment
filed on May 8, 2024, and the memorandum of costs filed May 15, 2024, as a
sanction for this blatant discovery abuse. To be clear, Plaintiff is entitled
to exactly $5,489.00 as set forth in the March discovery orders, with no
further fees-on-fees. The Court also
will grant a protective order concerning the subject post-judgment discovery as
follows: Responding Parties do not have to respond to Plaintiff’s May 8, 2024,
discovery or any further discovery regarding collection of the March 2024
discovery sanctions.
As to sanctions, counsel’s outrageous
response to a series of reasonable mistakes by the Responding Parties must be
addressed by the Court. The Court
expects, and in fact, demands better. When
the Court considers the facts leading to the filing of these motions, it is
clear that counsel was not interested in using discovery methods to advance litigation,
but to needlessly hammer opposing counsel into submission. It was unwarranted and violates common sense
and every civility guideline. The
sanctions were promptly paid, although made out to counsel’s prior law
firm. There is no evidence that these
checks could not have been cashed. In
any event, there was no basis for counsel to conclude this mistake would not be
promptly corrected. There was also no
justification for the ensuing discovery that clearly was meant to either punish
the opposing parties or as a fee generating exercise. As such, monetary
sanctions must be imposed. The Court has
great discretion to impose sanctions pursuant to Code of Civil Procedure sections
2023.010 and 2030.030, for both individual discovery abuses and a pattern of
abuse. (City of Los Angeles v. Pricewaterhouse-Coopers LLC (2024 DJDAR
8056 (“The court was not limited to imposing sanctions for each individual
violation of the rules governing depositions or other methods of discovery.”).)
Sanctions is this matter would serve
both purposes.
Therefore, the Court imposes
sanctions against Mr. Moghadam in the amount of $9,975. Those Sanctions are payable to counsel for the
Responding Parties within 30 days.
The Court vacates the hearing dates on the following future
motions:
1.
Motion to Compel Responses to Plaintiff's
Post-Judgment Special Interrogatories (Set One) To Robyn Hosmer on 9/18/2024;
2.
Motion to Compel Discovery (not "Further
Discovery") on 09/19/2024;
3.
Motion to Compel Discovery (not "Further
Discovery") on 09/24/2024;
4.
Motion to Compel Discovery (not "Further
Discovery") on 09/25/2024; and
5.
Motion to Compel Discovery (not "Further
Discovery") on 09/26/2024.
Finally, this order moots the Responding Parties Motion to
Tax Costs set for hearing on October 7, 2024, and the motion for a Protective
Order set for hearing on November 14, 2024.
Thus, those motions are taken off calendar.