Judge: Mark H. Epstein, Case: 19SMCV01709, Date: 2023-08-30 Tentative Ruling

Case Number: 19SMCV01709    Hearing Date: September 7, 2023    Dept: I

There are two matters.  One is a request by cross-defendant Lerner-Hill for attorneys’ fees following a successful Special Motion to Strike.  The other is a motion to compel discovery from cross-defendant Coffey.

The court turns first to the fee motion.  In an earlier order, the court granted a Special Motion to Strike brought by a number of attorneys.  Lerner-Hill was one of them.  Lerner Hill is employed by CNB, the plaintiff in this matter and also a cross-defendant.  All cross-defendants were represented by Ervin Cohen & Jessup LLP (ECJ).  All of the individual attorney cross-defendants other than Lerner-Hill were a part of ECJ, and ECJ was also a cross-defendant.  Lerner-Hill seeks to recover her fees in full; that is, she has not reduced or apportioned them in any way to account for the fact that none, or virtually none, of the hours worked were unique to her case as opposed to that of the other attorney cross-defendants. 

The SMS statute states that a prevailing defendant (or cross-defendant) is entitled to recover “his or her attorney’s fees and costs.”  There is no doubt in the court’s mind that Lerner-Hill was a prevailing defendant as to the SMS.  And Tenser does not really dispute as much.  His basic claim is that a self-represented litigant is not entitled to recover attorneys’ fees, even in the context of an SMS.  Lerner-Hill counters that argument by noting that none of the other attorney cross-defendants are seeking fees; only her.  She states that there should be no apportionment because the work did double-duty; that is, it was equally helpful to her as to the other parties and it is difficult or impossible to attempt to separate the activities into compensable and non-compensable buckets, citing to Brown Bark III, L.P. v. Haver (2013) 219 Cal.App.4th 809.

In the court’s view, however, the matter is not as simple as Lerner-Hill, who is not actually paying for anything herself, would make it appear.  Brown Bark is distinguishable.  That case involved trying to allocate between contract and non-contract causes of action in a 1717 case.  The Court of Appeal held that the trial court erred by not awarding fees on the contract action simply because there were also tort causes of action and the work did double-duty.  The policies there at issue are quite different than here.  In that case, the question was whether contractual fees ought to be awarded where the same work was also done for tort causes of action for which fees were not recoverable in light of the parties’ agreement that fees would be recoverable in contract.  In the instant case, the question is whether a slew of cross-defendants who are not entitled to recover fees can nonetheless recover fees because one party would be entitled to recover.  While the other attorney cross-defendants state that they are not recovering their fees, that is only because for purposes of this motion they have agreed amongst themselves that Lerner-Hill will bear the fees for all of them together.

However, there is a body of law that is more on point that Brown Bark: cases where (like here) some prevailing parties are self-represented attorneys and at least one is not.  Sadly, though, that body of law is not dispositive.  It is settled that a lawyer is not eligible to recover fees that lawyer incurs to defend (or prosecute) the attorney’s own suit.  And the same is true where the attorney’s own law firm represents the lawyer, at least to the extent that the law firm is also a party or is essentially the one with the financial interest.  (The situation is different where the law firm has no interest in the case.)  Two cases were address that issue and the policies underlying the rule: Carpenter & Zuckerman, LLP v. Cohen (2011) 195 Cal.App.4th 373 and Witte v. Kaufman (2006) 141 Cal.App.4th 1201.  In Carpenter, plaintiff prevailed in a lawsuit.  The plaintiff was a law firm and an associate in the firm represented the firm.  The Court of Appeal there held that no fees were recoverable.  And the same was true in Witte, an SMS case.  However, neither case involved the situation we have here, where there is one party that is not self-represented or represented by a firm having a financial interest in the moving party’s outcome.  And the court has not been able to find a case directly on point.  What the court must do, then, is look at the logic articulated in those cases.

Because Witte involved an SMS, the court looks there primarily.  The Witte Court noted that a fee award in the context of a successful moving party in an SMS is not a punitive award, like an award under CCP 128.5.  Rather, it is compensatory.  It is intended to compensate the moving party.  Further, self-represented litigants are to be treated the same, whether they are attorneys or not.  That is, a self-represented attorney litigant ought not get more favorable treatment than a self-represented non-attorney litigant.  And that is where the problem lies.  Were the court to credit Lerner-Hill’s position, 100% of the fees incurred would be borne by Tenser (who cannot himself recover fees because he is a self-represented attorney).  All of the other attorney parties would in fact be compensated fully for their time even though public policy as articulated in Witte is to the contrary.  And to add to the irony, Lerner-Hill is never going to see a bill (although the court agrees that this latter point is not dispositive of itself).  Were there some effort by the attorney cross-defendants to differentiate, so as to ensure that the self-represented attorneys were treated no differently (meaning better) than a self-represented non-attorney, or to apportion the fees reasonably among them, the court may have considered some award.  But Lerner-Hill (and the other attorneys) elected to go forward with an all-or-nothing approach.  Similarly, were there some evidence that Lerner-Hill was going to be actually responsible for the fee without offset or the like, that might at least place into play the notion that a represented party ought not be out of pocket in terms of bringing the SMS.  But again, there is no indication of any such fee responsibility, even by CNB, and that ship has now sailed.  Nor would the court find a private agreement between CNB and the other attorney cross-defendants conclusive.  The attorney cross-defendants cannot game the system in that manner so the court would have to have evidence to demonstrate that such an arrangement was in good faith.

The court recognizes that this appears to be a novel question of law and that reasonable minds may differ.  But the court’s view is that there must be some differentiation between what is needed to compensate Lerner-Hill so that she is not forced to bear the financial brunt of bringing the SMS and what is needed to ensure that attorney self-represented litigants are treated no differently than non-attorney self-represented litigants.  Because Lerner-Hill made no effort to do so, choosing instead to recover 100% of the fees at issue here, the court cannot award fees.  The motion is DENIED.

With that, the court turns to the discovery motion.  Tenser issued special interrogatories to cross-defendant Coffey.  The motion is a bit odd.  It is styled as a motion to compel responses.  But the caption is not accurate.  Responses were served.  It is really a motion to compel further responses.  Such a motion requires a separate statement.  None was attached here.  Tenser claims to be between a rock and a hard place.  He contends that Coffey’s response deliberately included scandalous accusations of wrongdoing that have nothing to do with this case and (in Tenser’s view) are not even germane to the objections.  Rather, Tenser maintains that the language was placed in the responses primarily so that Tenser would have to republish them to get the motion heard.   The gist, without going into detail, is that in response to a request for Coffey’s home address, Coffey claimed a safety fear should the address be given to Tenser.  The same is true regarding the interrogatory requesting Coffey’s home address and estimated market value.  And whatever merit there might or might not be to the claim that Tenser ought not be forced to self-publish what he believes to be defamatory comments, there is no reason Tenser could not have filed a separate statement as to the other 31 special interrogatories about which he complains and that do not include the problematic language.  Tenser also argues that the court should not allow the technicality of a missing separate statement to defeat the motion.  But the separate statement is not a technicality.  In a case like this one, the separate statement would allow the court to look at the responses and the specific efforts made to come to an agreement along with the specific justification for each item of discovery.  Not including it is not a technical defect, like forgetting to date include a table of authorities.  It is a substantive problem and it is fatal to the motion.  Moreover, the court recalls that it granted Tenser leave to file under seal at the ex parte, so there is no reason why it was not done, even belatedly.

Having said all of that, the court, frankly, doubts the sincerity of the alleged safety fear.  But there is a very legitimate question as to whether Tenser has made a showing sufficient to overcome Coffey’s privacy interest.  Assuming Coffey can be served through counsel such that Tenser does not need to send a process server to Coffey’s home to serve papers, the address is without import.  (There could also be a potential question if Coffey lives out of state because, if so, Coffey cannot be compelled to testify at trial.  But even there, the question can just be asked whether Coffey resides out of state).  And the purported reason for getting a value of the home is so that Tenser can show the jury just how wealthy Coffey is—something that has absolutely no relevance to this case and is not reasonably calculated to lead to the discovery of admissible evidence unless or until a showing is made (if ever) pursuant to Civil Code section 3295 that Coffey may be liable for punitive damages.  It smacks of harassment.

Because there is no separate statement, the motion is DENIED as to all interrogatories on that ground, other than interrogatories 1 and 4.  As to those interrogatories, the court believes that an adequate showing has been made under Hill so as to protect that information from discovery assuming Coffey agrees: (1) that Coffey can be served with any pleading or process in this case only through counsel of record; (2) if there ever comes a time that Coffey is unrepresented, Coffey will disclose a service address to Tenser and all parties hereto and the court so that service can be effected; and (3) Coffey discloses whether California is Coffey’s residence.  Should there later come a time where Coffey’s address becomes pertinent (such as whether Coffey is within a particular distance to the location of a noticed deposition), the court will entertain whether further disclosures are required.  The court makes no rulings on whether, had there been a separate statement, Coffey’s responses to the other interrogatories would have been adequate, although the court hints that Tenser had some very strong arguments.  Coffey ought to take no comfort whatsoever as to that issue from this ruling.  And, were similar (though not identical) interrogatories propounded with similar responses, and were a motion to compel further responses timely made with a separate statement, the court is not suggesting the motion would be denied or that sanctions would not be imposed. 

The requests for sanctions are DENIED.

For the parties’ edification, the court appends its guidelines on discovery.  (The court may already have done this, but it never hurts to re-iterate.)  The court notes that due to the animosity between counsel here, the in person (or voice-to-voice) requirement would not be enforced if the remainder of the meet and confer guidelines were met.

DISCOVERY RELATED GUIDELINES FOR DEPARTMENT I

The guidelines below are not “rules” and they are not universally applicable in all cases.  Rather, they are guidelines as to the court’s general views.  Each case, of course, will be decided on its own facts and circumstances, and some of the guidelines below may not apply to particular circumstances.  That said, the court does take these views seriously.

Discovery Responses

The Court provides the following guidance concerning its general views on some common issues regarding responses to written objections.  The Court has noticed that many attorneys view objections and the manner of making them in a way different than does the Court.  To avoid these common pitfalls, the Court offers the following in addition to the provisions of the Litigation Guidelines appended to the Los Angeles County Superior Court Local Rules.

First, “General Objections” are not permitted.  The Code of Civil Procedure does not provide for them, and therefore they are disregarded by the Court.  Any response that “incorporates” the “General Objections” is improper by definition. 

Second, the Court often views boilerplate objections as being in bad faith.  A bad faith response is no response at all in the Court’s view.  Therefore, making boilerplate objections does not preserve those objections nor does it constitute a good faith response to written discovery.  A bad faith response is viewed by the Court for what it is: bad faith.  The objections will be stricken and deemed waived.  In the context of a Request for Admission, such objections may lead to a finding that the request is deemed admitted, although that will depend on the facts of the particular case and the specific discovery at hand.

Objections should be tailored to each specific request.  If a request truly is overbroad, then an objection to that effect is proper.  But such an objection is best accompanied by some reasonable limitation by the responding party that will narrow the request appropriately and (as narrowed) provide a substantive response rather than a mere statement that the request is overbroad.  The same is true as to an objection that a request is unduly burdensome.  The Court also notes that the party asserting that a request is unduly burdensome has the obligation at some point to provide an evidentiary basis for the objection, including evidence as to what the burden of compliance would be.  (West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407.)  Often such an objection will include a statement by the responding party as to a narrower request that would not be unduly burdensome and provide substantive responses as so limited.  Objections that a request is “vague and ambiguous” must set forth the vague and ambiguous term as well as the responding party’s reasonable interpretation of that term as well as a statement that, so interpreted, the response will provide the discovery requested.  If there is no reasonable interpretation possible (which is a rare situation), then the responding party must so state.  Objections as to privilege must set forth the basis explaining why the information sought is in fact privileged.  Where a privilege is asserted in the context of a document request, a privilege log must accompany the answer or be provided within a short and reasonable time after the answer.  Where the objection is made in the context of an interrogatory, it must be clear from the objection the scope of the information being withheld.  If there is no log, there should be no privilege objection to a document request (meaning that a prophylactic privilege objection is the equivalent of no objection; it preserves nothing).  There are some rare exceptions, such as where the entire point of the discovery is to get allegedly privileged information or where compliance would require a log that is in essence an index of counsel’s file.  In that situation, the log is unnecessary, but the assertion should be made that the request is in that rare context.

Third, if an objection is made to the discovery but a response is being given, it must be clear whether information or documents are in fact being withheld on the basis of the objections.  If the objections are clear and done in the manner set forth above, with statements in the objection as to a narrowing that will make the request proper, this is usually a simple task.  The objections themselves state the limit and the response will be full and complete as limited.  But where the objections are not so clear, the response must clearly state whether any information or document is being withheld on the basis of the objection and, if so, the extent of the withholding.  Accordingly, in those situations, phrases like “Notwithstanding and subject to the foregoing objections, responding party states as follows” are improper.  Those sorts of phrases make the verification useless, as the verifier can always fall back on the ”objections” as the reason why a document was not produced or information was not disclosed.  On the other hand, where the line of demarcation is clear, the verification will still serve its purpose.

Fourth, for document requests, the substantive response must conform to the Code.  There are relatively tight rules as to what the response must say, and the response must say it.  For example, where a responding party is not producing documents because they are not in the party’s possession, custody, or control, the responding party must verify that a diligent search has been made and must further provide the information set forth in the Code of Civil Procedure in such cases.  In the case of interrogatories, the responses must also conform to the Code of Civil Procedure and must be made after diligent inquiry.  It is not proper to refuse to respond because the responding party has no personal knowledge.  If the knowledge is hearsay, it must still be disclosed, although it can be qualified to make it clear that it is not based on the verifier’s personal knowledge.

Fifth, the Court frowns on responses that do not conform to the foregoing rules being served with the view that the responses will moot themselves out in the meet and confer process.  That is not how the process works.  A good faith response is required before the meet and confer process begins.  The meet and confer process will (hopefully) bridge the gaps between the parties’ respective positions.  Further, where a response to a request for documents is made and documents are to be produced subject to certain objections (with the documents withheld properly delineated), the documents should be turned over irrespective of the meet and confer.  The documents are to be produced with alacrity to the extent that there is no objection to them.

What this means is that the response to a discovery request is not a trivial undertaking.  Nabbing the response from the form file is a generally bad idea and can lead to all objections being waived.  The point is that the boilerplate often renders the remainder of the response useless.  The only exception is where it is clear that the substantive response is not in any way limited by the objections.  In that case, the objections do no harm, although they also do no good.

Meet and Confer

The Code of Civil Procedure requires that before a motion to compel further responses or a motion for a protective order is filed, the parties engage in a good faith attempt to resolve their differences.  They are to “meet and confer” for that purpose.  Only if that effort fails can a motion be brought. 

Sadly, many litigants view the meet and confer process as just another procedural hoop through which they must jump in order to bring the motion, similar to the need to include an actual demurrer with the demurrer papers.  The Code requires it, so they do it, but no one’s heart is really in it.  That is not sufficient.

Given that, the Court believes it appropriate to set forth how the Court views the meet and confer requirement.  Failure to abide by the guidelines below may well justify denial of the motion or a continuance of it to allow the process to take place.  If one party but not the other refuses to participate as set forth, more likely than not the party refusing to participate will find itself on the losing end of the motion.  The following quotation fairly sums up the Court’s own view.

“[W]e feel compelled to observe that resort to the courts easily could have been avoided here had both parties actually taken to heart Justice Stone's admonitions in Townsend that ‘the statute requires that there be a serious effort at negotiation and informal resolution.’ (Townsend, supra, 61 Cal.App.4th at p. 1438.) Perhaps after 11 years it is necessary to remind trial counsel and the bar once again that ‘[a]rgument is not the same as informal negotiation’ (id at p. 1437); that attempting informal resolution means more than the mere attempt by the discovery proponent ‘to persuade the objector of the error of his ways’ (id. at p. 1435); and that ‘a reasonable and good faith attempt at informal resolution entails something more than bickering with [opposing] counsel....  Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.’ (Id. at p. 1439.)” (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294, emphasis in original, parallel citations omitted.) 

In practical terms, it means as follows.  It is entirely appropriate to begin the process with a letter or other correspondence.  The letter should not include a demand in the form of an ultimatum, but it can certainly include the relief that is being sought with an invitation to meet and confer.  It is also entirely appropriate for the other party to respond with a letter or other correspondence to set forth its position on the issues.  Such an initial exchange can often be helpful to narrow the dispute.  Whether further exchanges make sense will depend on each case and each dispute.

However, at some point, before impasse is reached the process must include an actual “meet.”  The letters might well suffice to “confer,” but an exchange of correspondence is not a meeting.  In the COVID-19 era, the “meeting” can be virtual or telephonic, but a meeting there must be.  The meeting must be attended by a person from each side with the authority to agree to the other side’s position without getting further permission from anyone, including the client.  If only the client can give the needed authority, then the client must be available instantaneously at all times during the meeting.  This does not mean that one side or the other must concede, but it does mean that the people meeting have the ability in real and practical terms to strike a deal then and there.

The parties should approach the meet and confer process as a problem-solving exercise.  The purpose of the meet and confer is not to convince the other side of the bankruptcy of its position; rather the purpose is to reach an agreement by which the party seeking discovery is able to obtain the information that it reasonably needs and the party providing discovery is not put to an undue burden or forced to provide unnecessary information that might infringe on a privacy interest or disclose a competitive trade secret or the like.

At the conclusion of the meet and confer, the parties should have an agreed statement as to the outcome.  If the outcome is a total impasse, then they should agree on that.  If they have resolved some or all of their differences, then they should state—in writing—what that agreement is so that there will be no confusion later.  Often, an agreement will be without prejudice to a further request by the propounding party for more information after that party receives the responses.

If a motion is still required, the declaration in support should describe with some detail the meet and confer process.  While the Court is not interested in the back and forth, the Court is interested in when the meeting took place, who was there, and how long it lasted.

All communications—in writing or oral—must be civil, polite, and professional.  Name-calling and accusations are devices that undermine the process; they do not further it.  A party engaging in such activity generally is not acting in a good faith effort to reach an agreement.