Judge Mark E. Windham, Case 18STLC13954 2022-08-29 Tentative Ruling

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Defendant SAB Investment Property, LLC’s Motion for Order Compelling Further Responses to Post-Judgment Request for Production, Set One, and Request for Sanctions is GRANTED. PLAINTIFF EGAL SHAHBAZ IS TO SERVE FURTHER RESPONSES WITHIN 20 DAYS’ SERVICE OF THIS ORDER. PLAINTIFF EGAL SHAHBAZ AND COUNSEL OF RECORD ARE JOINTLY AND SEVERALLY ORDERED TO PAY SANCTIONS OF $2,060.00 TO DEFENSE COUNSEL WITHIN 20 DAYS’ SERVICE OF THIS ORDER.

REQUEST FOR RELIEF: Compel Plaintiff’s further responses to post-judgment requests for production. Plaintiff’s responses included meritless objections and do not identify whom Plaintiff believes has possession, custody, or control of the requested item or category of item. Defendant is entitled to an award of sanctions in the amount of $4,260.00.

OPPOSITION: Some unnecessary objections were served with the initial responses, but Plaintiff complied with his obligation to provide complete responses. Also, Plaintiff served supplemental responses on July 5, 2022, despite which Defendant filed the instant Motion to Compel Further responses.

REPLY: Plaintiff’s opposition is procedurally improper and yet again demonstrates that his responses are improper. Defendant never received the purported supplemental responses, and even if it had, they continue to be defective. The supplemental responses continue to fail to identify the name and address of the person or organization believed to be in possession or control of the documents. Nor has Plaintiff produced documents in response to Request No. 10, as he stated he would.

Plaintiff Egal Shahbaz (“Plaintiff”) filed the instant action for discrimination on the basis of disability against Defendant SAB Investment Property, LLC (“Defendant”) on November 9, 2018. On February 19, 2020, the Court granted Defendant’s Motions to Compel Plaintiff’s Responses to the Special Interrogatories and Requests for Production. (Minute Order, 2/19/20.) Plaintiff’s counsel submitted on the Court’s ruling by email. (Minute Order, 2/19/20.) Following Plaintiff’s failure to comply with the Court’s discovery order, Defendant brought a motion for terminating sanctions. The motion for terminating sanctions was granted on August 20, 2020 and an order of dismissal was entered on August 26, 2020.

On April 13, 2021, the Court granted Defendant’s Motion for Attorney’s Fees in the amount of $46,777.50. (Minute Order, 04/13/21.) On October 4, 2021, the Court granted Defendant’s Motion for Order Compelling Responses to Post-Judgment Interrogatories and Request for Sanctions. (Minute Order, 10/04/21.)

On July 21, 2022, Defendant filed the instant Motion for Order Compelling Responses to Post-Judgment Request for Production and Request for Sanctions. Plaintiff filed an opposition on August 16, 2022 and Defendant replied on August 19, 2022.

Notice of the motion to compel further must be given “within 45 days of service of the verified response, or any supplemental verified response, or any specific later date to which the requesting party and the responding party have agreed in writing,” otherwise, the propounding party waives any right to compel a further response. (Code Civ. Proc., § 2030.310, subd. (c).) Plaintiff’s responses to the subject request for production were served on June 20, 2022. (Motion Song Decl., ¶5 and Exh. C.) The Motion was timely filed and served on July 21, 2022.

Also, the Motion must be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2030.300, subd. (b)(1).) Defendant contends it served a meet and confer declaration on June 29, 2022, to which Plaintiff has made no response. (Motion, Song Decl., ¶¶6-7 and Exh. D.) In opposition, Plaintiff’s counsel declares that supplemental responses were served on July 5, 2022. (Opp., Shafie Decl., ¶5 and Exh. A.) However, Defendant denies receipt of the supplemental responses. (Reply, Katofsky Decl., ¶¶3-4.) Based on the foregoing informal attempt to resolve this discovery dispute, the meet and confer requirement is satisfied.

Next, Cal. Rules of Court Rule 3.1345 requires all motions or responses involving further discovery contain a separate statement with the text of each request, the response, and a statement of factual and legal reasons for compelling further responses. (Cal. Rules of Court, Rule 3.1345, subd. (a).) Alternatively, “the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute.” (Code Civ. Proc., § 2030.300, subd. (b)(2).) The Motion is accompanied by a separate statement. (Separate Statement, filed 07/21/22.) The opposition, however, is not accompanied by either a memorandum of points and authorities or opposing separate statement.

Defendant moves to compel further responses to Post-Judgment Request for Production, Set One, Nos. 1-25. The requests were propounded to assist Defendant in its collection of the attorney’s fees judgment entered on April 13, 2021, by seeking information regarding Plaintiff’s current and prior assets, including real and personal property. In response, Plaintiff uniformly objected that the requests were overbroad, vague or ambiguous, unduly burdensome and oppressive, invaded their privacy rights, invades third parties’ privacy rights, sought confidential information, and sought information not readily available such that its production would be burdensome. (Motion, Separate Statement, Nos. 1-35.) Plaintiff also responded that it made a diligent search and a reasonable inquiry but has been unable to locate the documents requested. (Ibid.)

Plaintiff’s overbreadth objections pertain to the definition of “you” and “your” including persons action on behalf of Plaintiff. This does not render the terms overbroad unless Plaintiff shows that the definition of the terms renders the request burdensome or irrelevant. (Code Civ. Proc., §§ 2017.010, 2017.020; Williams v. Superior Court (2017) 3 Cal.5th 531, 549.) No such information is provided in Plaintiff’s response. The additional objections that the requests are burdensome or oppressive are likewise unsupported by any showing of the time and effort required to locate the requested documents. These objections, therefore, are without merit. (Ibid.)

Nor has Plaintiff shown that any of the documents sought regarding his assets, with the exception of civil judgments mentioned in Request No. 4, are equally available to Defendant. The objection that the requests are vague and ambiguous is also without merit. Such an objection is only valid when the request is essentially unintelligible. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783.) Here, it is evident was documents are sought in the Requests for Production.

Plaintiff’s confidentiality objection based on privacy is facially legitimate. As Defendant points out, the Court must “carefully balance the right of privacy with the need for discovery.” (Tylo v. Superior Ct. (1997) 55 Cal.App.4th 1379, 1387.) “[A] compelling public interest is demonstrated only where the material sought is directly relevant to the litigation.” (Ibid.) Here, Defendant has demonstrated that its inquiry into Plaintiff’s assets is directly relevant to recovery of the attorney’s fees judgment. Plaintiff, in comparison, makes no argument to show that the privacy objection overcomes Defendant’s interest in enforcing the judgment. The same is true for Plaintiff’s specific confidentiality objection to the tax returns sought in Request No. 8.

Finally, Plaintiff contends that his supplemental response complies with his obligation to respond. The supplemental responses, however, merely, reiterate that last part of the initial responses, as follows: “A diligent search and a reasonable inquiry has been made in an effort to comply with this demand. Responding party is not able to comply because the particular item or category has never existed nor has it been in possession, custody, or control of Responding Party or any other person.” (See Separate Statement, No. 1, p. 2:24-27; Opp., Shafie Decl., Exh. A, p. 1:22-24.) This blanket statement is not complaint with Code of Civil Procedure section 2031.230, which requires the responding party to specifically identify which of these circumstances is applicable, not cite to all circumstances as applicable. (See Code Civ. Proc., § 2031.230.) Nor does the response identify the persons or entities that might be in possession of the documents, as required. Also, the response lacks credibility. It is not plausible, for example that no documents exist that that “refer or relate to your current residence, including but not limited to writings identifying your address, how long you have lived there, whether you own or rent the residence, and the amount of your rent or monthly mortgage payment.” (See Motion, Separate Statement, No. 1, p. 2:5-8.) Plaintiff cannot evade his discovery obligations by simply submitting an opposition declaration from counsel stating he has no assets or income. (Opp., Shafie Decl., ¶4.)

Based on the foregoing, Defendant is entitled to an order compelling Plaintiff’s further responses to the post-judgment Request for Production, Set One, Nos. 1-25.

Defendant is also entitled to an award of sanctions, which have been properly noticed. (Code Civ. Proc., §§ 2023.010, 2023.030.) However, the Court finds the amount sought is excessive under a lodestar calculation. Defendant’s request for monetary sanctions is granted in the amount of $2,060.00 based on five hours of attorney time billed at $400.00 per hour, plus $60.00 in costs. (Motion, Song Decl., ¶¶8-10.) The sanctions are awarded jointly and severally against Plaintiff and counsel Jacob A. Shahbaz, Esq.