Judge Mark E. Windham, Case Number: 20STLC00307, Date: 2023-08-03 Tentative Ruling

Judge: Mark E. Windham, Case: 20STLC00307, Date: 2023-08-03 Tentative Ruling

Case Number: 20STLC00307 Hearing Date: August 3, 2023 Dept: 26

Basta, Inc. v. Zendano, et al.

MOTION TO COMPEL FURTHER RESPONSES TO INTERROGATORIES

(CCP § 2030.300)

TENTATIVE RULING:

Defendant Irene Zendano’s Motion for Order Compelling Further Responses to Interrogatories, Set One, and Request for Sanctions is GRANTED AS TO SPECIAL INTERROGATORY, NOS. 6, 7, AND 8; AND DENIED AS TO THE REMAINING REQUESTS. THE FURTHER RESPONSES ARE TO BE SERVED WITHIN 20 DAYS OF THIS ORDER.

DEFENDANT AND COUNSEL OF RECORD ARE JOINTLY AND SEVERALLY ORDERED TO PAY SANCTIONS OF $2,125.00 TO PLAINTIFF’S COUNSEL, ALSO WITHIN 20 DAYS OF THIS ORDER.

ANALYSIS:

On January 10, 2020, Plaintiff Basta, Inc. (“Plaintiff”) filed this action for “wrongful use of civil proceedings” against Defendant Irene Zendano, individually and as trustee of the Irene Valerie Zendano Family Revocable Living Trust U.T.D. May 9, 2015 (“Defendant”). Following Defendant’s failure to file a responsive pleading, Plaintiff obtained entry of default on August 13, 2021. On February 3, 2022, the Court granted Defendant’s motion to vacate the entry of default and set an Order to Show Cause Re Proof of Service of Summons and Complaint for April 6, 2022. (Minute Order, 02/03/22.) On August 1, 2022, the OSC Re Failure to File Proof of Service was discharged. (Minute Order, 08/01/22.)

Defendant, through a special appearance, filed a Motion to Quash Service of the Summons and Complaint on August 18, 2022. The Motion to Quash was denied on October 10, 2022, and Defendant filed a Motion to Strike Portions of the Complaint. The Motion to Strike was denied on March 22, 2023. (Minute Order, 03/22/23.) Plaintiff’s Motion for Order Compelling Further Responses to Special Interrogatories and Request for Sanctions was denied on March 15, 2023.

Defendant filed the instant Motion to Compel Responses to Interrogatories and Request for Monetary Sanctions on July 10, 2023. Plaintiff filed an opposition on July 21, 2023.

Discussion

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., § 2030.300, subd. (c).) The 45-day deadline is mandatory and jurisdictional. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1409.)

Defendant served Plaintiff with the subject Special and Form Interrogatories on April 18, 2023. (Motion, Zaslavsky Decl., Exh. A.) Plaintiff electronically served responses on May 22, 2023. (Id. at Exh. B.) The instant Motion was timely filed and served on July 10, 2023.

Nor is the Motion barred by Code of Civil Procedure section 2024.020, as Plaintiff argues. That statute provides that discovery motions must be “heard on or before the 15th day, before the date initially set for the trial of the action.” (Code Civ. Proc., § 2024.020, subd. (a).) However, the opposition does not address Code of Civil Procedure section 599, which is cited in the Motion. Under section 599, corresponding deadlines are extended with the trial date as of March 19, 2020 until 180 days after the end of the COVID-19 state of emergency (Code Civ. Proc., § 599.) The discovery motion cutoff date, therefore, tracks with the August 29, 2023 trial date, and does not expire until August 14, 2023.

Next, the Motion must be accompanied by a meet and confer declaration demonstrating a good faith effort at informal resolution. (Code Civ. Proc., § 2030.300, subd. (b)(1).) The parties dispute whether Defendant’s meet and confer effort was sufficient. Following receipt of Plaintiff’s responses, defense counsel sent an email to Plaintiff’s counsel on May 23, 2023. (Motion, Zaslavsky Decl., ¶6.) The attorneys emailed back between May 23-31, 2023 but were unable to reach a resolution. (Id. at Exh. C.) A review of the emails shows that Defendant took issue with the some of objections, namely that some of the interrogatories were burdensome or ambiguous, and providing a 20,000-word response is essentially non-responsive, but otherwise does not explain in what manner the responses were not code-compliant. (Ibid.) Plaintiff’s counsel’s replies to the meet and confer showed an attempt to obtain more specific information about how the responses were deficient, but defense counsel refused to provide more information in writing. (Ibid.) The Court, therefore, is not convinced that the meet and confer requirement has been satisfied.

Finally, Cal. Rules of Court Rule 3.1345 requires all motions or responses involving further discovery include 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 07/10/23.)

Special Interrogatories, Nos. 1-10, 15

Special Interrogatory, No. 1 asks Plaintiff to describe with specificity each reason supporting its contention that Basta, Inc. is a “reviled and villainous” organization. Plaintiff objected to the term “contend” as ambiguous because it can have a different legal meaning than lay meaning but regardless provided a response that explained its use of the phrase was a semantic inversion. (Motion, Separate Statement, p. 1:8-19.) Defendant does not explain why this response was “non-responsive, evasive, and incomplete.” (Id. at p. 2:5-6.) The request for a further response is denied.

Special Interrogatory, No. 2 asks Plaintiff to describe with specificity each reason supporting the contention that “[n]o reasonable person in Zendano’s situation would have believed that there were reasonable grounds to bring the federal action against BASTA.” In response, Plaintiff cites to lengthy portions of its filings in the federal racketeering case Defendant brought against Plaintiff and others. (Id. at pp. 2:20-24:18.) These portions of Plaintiff’s federal filings explain in detail its position that Defendant’s racketeering action was without merit. Admittedly, the response is extremely lengthy, but it appropriately responds to the breadth of the interrogatory, which refers to the entire federal action. Defendant’s separate statement does not explain how these filings do not set forth the reasons Defendant’s filing of the federal action was unreasonable. (Id. at p. 24:19-26.) The request for a further response is denied.

Special Interrogatory, No. 3 asks Plaintiff to describe with specificity each reason supporting its contention that Defendant “acted primarily for a purpose other than succeeding on the merits of” her federal claims. In response, Plaintiff cites the response to Interrogatory No. 2 and to other specific conduct by Defendant and defense counsel in litigating the federal action. (Id. at pp. 25:5-26:11.) Again, Defendant’s separate statement does not explain why the response is non-responsive, evasive, and incomplete. (Id. at p. 26:12-14.) The request for a further response is denied.

Special Interrogatory, No. 4 asks Plaintiff to describe with specificity each reason supporting the contention that Defendant named Plaintiff in the federal lawsuit “to encourage the other parties to settle or to justify discovery into [Plaintiff’s] representation of other parties.” Plaintiff objected to this interrogatory as compound because it seeks information about two alternative reasons Defendant might have named Plaintiff in the federal action. (Id. at p. 27:1-8.) Defendant’s argument to compel a further response does not explain why this is not a compound interrogatory. (Id. at p. 27:14.) The request for a further response is denied.

Special Interrogatory, No. 5 asks Plaintiff to identify with specificity each party Defendant tried to encourage to settle the federal action. Plaintiff’s response provided the name, company, address, phone number and email address of the named parties. (Id. at p. 28:3-9.) Defendant does not identify what specific information is missing from the response. (Id. at p. 28:10-12.) The request for a further response is denied.

Special Interrogatory, No. 6 asks Plaintiff to identify with specificity each debt that Plaintiff incurred “to the attorney who represented it in the federal lawsuit.” Plaintiff identifies a “debt to Benjamin Ramm for time spent defending it in that case.” (Id. at p. 25-26.) The Court agrees with Defendant this response lacks the necessary specificity to identify the debt as it does not include the specific amount owed. Plaintiff is to provide a further response to Special Interrogatory, No. 6.

Special Interrogatory, No. 7 asks Plaintiff to identify with specificity how the allegations in Defendant’s federal lawsuit injured Plaintiff’s reputation. Plaintiff objected that the phrase “identify with specificity” should be followed by a determiner or pronoun, not an adverb. The Court agrees with Defendant that this objection is without merit by being deliberately obtuse about the information sought in the interrogatory. (Id. at p. 29:16-19.) It is clear that the interrogatory seeks specific information about the manner in which Plaintiff was injured by the federal lawsuit. Plaintiff is to provide a further response to Special Interrogatory, No. 7.

Special Interrogatory, No. 8 asks Plaintiff to identify with specificity how the allegations in Defendant’s federal lawsuit damaged Plaintiff’s ability to represent its clients. Plaintiff makes the same objection as to Special Interrogatory, No. 7, which remains without merit. (Id. at p. 30:11-14.) Plaintiff is to provide a further response to Special Interrogatory, No. 8.

Special Interrogatory, No. 9 asks Plaintiff to describe with specificity each instance where “other attorneys who oppose BASTA in unlawful detainer actions incorporated the fact that allegations of racketeering had been made into other arguments in other cases.” Plaintiff’s response described two specific incidents and Defendant does not explain how the response is non-responsive, evasive, and

Incomplete. (Id. at p. 31:25-26.) The request for a further response is denied.

Special Interrogatory No. 10 asks Plaintiff to identify with specificity each damage it contends it incurred as a result of the federal lawsuit, including identifying the amount of the damage, the nature of the damage, the date the damage accrued, and any attempts at mitigation. Plaintiff objected to the interrogatory as compound or including subparts, and burdensome because it repeats a previously-propounded form interrogatory. (Id. at p. 32:15-20.) Again, Defendant offers no argument as to why the interrogatory is not compound or overly burdensome. (Id. at p. 32:24.) The request for a further response is denied.

Special Interrogatory No. 15 asks Plaintiff to identify with specificity every reason why Plaintiff’s responses were not an unqualified admission to the concurrently served Requests for Admission. Plaintiff objected that this interrogatory violates the prohibition on subparts or the statutory limit on discovery requests. (Id. at p. 33:11-14.) Defendant does not explain how this interrogatory does not contain subparts insofar as it pertains to more than one Request for Admission. (Id. at p. 33:15.) The request for a further response is denied.

Form Interrogatories, Nos. 108.1-108.4, 190.1, 112.1, 112.4, 115.1

Form Interrogatory, Nos. 108.1 to 108.4 ask Plaintiff to identify the source of lost income as a result of the federal lawsuit, how the lost income was calculated, the sources of future lost income, and how the expected future lost income is calculated. In response, Plaintiff uniformly responded that knowing this information is impossible based on how it earns money. (See id. at p. 34:4-5.) Defendant moves for further responses on the grounds that the responses are non-responsive, evasive, and incomplete but fails to explain why. (See id. at p. 34:6-6-7.) The request for further responses is denied.

Form Interrogatory, No. 190.1 asks Plaintiff to describe each other item of damage it attributes to the federal action, stating the dates of occurrence and the amount. Plaintiff responded with a description of the attorney’s fees incurred defending the federal action and attached exhibits supporting the fees incurred. (Id. at pp. 36:19-37:2.) Defendant’s conclusory argument that the response is non-responsive, evasive, and incomplete fails to demonstrate that a further response should be ordered. The request for a further response is denied.

Form Interrogatory No. 112.1 asks Plaintiff to identify and provide contact information for each person who has knowledge of facts relating to the federal lawsuit. Plaintiff objected that the interrogatory is burdensome with respect to the number of persons it would have to identify, including members of the judicial branch. Plaintiff also provided the names of numerous witnesses it was able to identify. (Id. at pp. 37:26-39:11.) Defendant argues that providing contact information for potential witnesses is not overly burdensome. The Court disagrees due to the phrasing of the interrogatory, which is overbroad as to all persons who have knowledge of the facts of the federal action. Nor does Defendant explain why the response is non-responsive, evasive, and incomplete. (Id. at p. 39:15-16.) The request for a further response is denied.

Form Interrogatory, No. 112.4 asks Plaintiff to “[i]dentify each document or photograph that describes or depicts any place, object, or individual concerning the federal action or Plaintiff’s injuries.” In response, Plaintiff objects on the grounds of burden as the parties have already exchanged documents and the documents are identified in Defendant’s appeal. (Id. at p. 40:10-15.) Plaintiff then responds that any documents not covered by the objection will be produced. (Id. at p. 40:16-17.) Again, Defendant does not explain why this response is non-responsive, evasive, and incomplete. (Id. at p. 40:18-19.) Nor does the separate statement directly address Plaintiff’s objection. The request for a further response is denied.

Form Interrogatory, No. 115.1 asks Plaintiff to “[s]tate in detail the facts upon which you base your claims that the PERSON asking this interrogatory is responsible for your damages.” Plaintiff responded by providing facts regarding Defendant’s involvement as the plaintiff in the federal action. (Id. at 41:9-12.) No explanation is provided in the separate statement as to why this response is non-responsive, evasive, and incomplete. (Id. at 41:13-16.) Nor does Defendant explain why Plaintiff cannot provide a response that relies, in part, on inadmissible hearsay. (Id. at 41:25.) The request for a further response is denied.

Sanctions

In light of the majority of the requests for further responses being denied, the Court declines Defendant’s request for sanctions against Plaintiff. (See Code Civ. Proc., § 2030.300, subd. (d) [“the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories.”] Plaintiff also requests sanctions due to Defendant’s inadequate meet and confer effort, which the Court finds appropriate pursuant to Code of Civil Procedure section 2023.020. The lack of specific argument in Defendant’s meet and confer letter regarding the responses is mirrored by the lack of argument in the instant motion, as noted above. Plaintiff is awarded sanctions in the reduced amount of $2,125.00 based on five hours of attorney time billed at $425.00 per hour. (Opp., Ramm Decl., ¶10.)

Conclusion

DEFENDANT AND COUNSEL OF RECORD ARE JOINTLY AND SEVERALLY ORDERED TO PAY SANCTIONS OF $2,125.00 TO PLAINTIFF’S COUNSEL, ALSO WITHIN 20 DAYS OF THIS ORDER.

Plaintiff to give notice.