Judge: Mark H. Epstein, Case: SC125609, Date: 2024-12-27 Tentative Ruling
Case Number: SC125609 Hearing Date: December 27, 2024 Dept: I
This is one of a series of motions that was made by
plaintiff Caraveo against defendant O’Gara.
The motion involves a few special interrogatory responses (for SI
562-564—and those numbers are not typos) that were aimed at obtaining the
information that formed the basis of part of O’Gara’s claims. O’Gara’s original responses were viewed as
inadequate by the propounding party—Caraveo—and a motion to compel was
filed. The motion was originally made
before the discovery referee, but it became moot because O’Gara
supplemented. Caraveo also found those
responses insufficient and brought another motion to compel. That motion was granted and the discovery
referee warned O’Gara that its conduct was close to warranting sanctions. O’Gara supplemented again, and again Caraveo
felt that the responses were inadequate.
Caraveo then brought a motion for sanctions. The discovery referee initially questioned
whether there was still had jurisdiction in the referee over the case to hear
the motion. After a clarifying order by
this court that there was, the referee considered the motion but found that it
could not be granted because it came too late.
More specifically, the referee concluded that the discovery cut off had
passed and that therefore in order to bring the motion as filed and calendared
discovery had to be re-opened. And while
the referee found that there had been plenty of meet and confer on the merits,
there had been none on whether to re-open discovery and no motion to
re-open. Accordingly, the referee
recommended that the motion be denied because discovery had closed. This court agreed with the referee’s
recommendation. That led Caraveo to
bring a motion before the court to re-open discovery so that the sanctions
motion could be brought. The court had
been inclined to grant the motion, concluding that the sanctions motion ought
to be heard. But the actual minute
order states that the motion to reopen discovery was continued to this date
(and directed the parties to meet and confer).
In reviewing the transcript, though, it appears that the minute order might
have been in error. On page 13, line 16
of the transcript, the court states “The motion is granted.” The court was referring to the motion to
re-open discovery, not the motion for sanctions. To give a bit of additional background, the
court stated at the hearing that what it wanted to do was to get the discovery
to Caraveo so that Caraveo knew the target at which it was shooting. The court was far less interested in imposing
sanctions, which is what the underlying motion sought (and all it sought). So the court granted the motion that was most
clearly before it—the motion to re-open discovery—but it said that after the
meet and confer, plaintiffs would have to bring another motion to compel
further or other sanctions if plaintiffs felt that they did not get what they
needed. Because of the upcoming trial,
the court reserved a hearing date on the motion to compel further or sanctions
if one was to be filed. The court then
specially reserved a date. But the court
was also clear on timing. Caraveo stated
that he understood that he would file a “new motion based on whatever happened
from this, and we’re narrowly focused on what was done before.” The court agreed and said that if a new
motion was filed, it should be brought quickly.
Specifically, the court said “If you’re going to bring the motion, I’d
like you to bring it within two weeks.
So meet and confer before that because, if you bring it after that, it’s
not going to get heard in time.” The
goal was for a narrower motion. At the
very end of the hearing, the court’s judicial assistant said that the earliest
available hearing date would be December 27, 2024.
From the above, it is clear, at least to the court, that the
court granted the motion to re-open discovery for the purpose of having the
parties meet and confer very quickly and, if and only if it was necessary, to
have Caraveo file a new motion to compel further or for sanctions, preferably
within two weeks of the October 24, 2024, hearing. What actually happened was nothing for almost
two weeks. 13 days after the hearing, Caraveo’s
counsel reached out to O’Gara’s counsel to set up the meet and confer. Specifically, on November 6, 2024, Caraveo’s
counsel sent a one-line email to O’Gara’s counsel asking if there was a middle
ground (which actually was not even a request to meet and confer). The response was to say that Caraveo’s
counsel waited too long. Accordingly,
O’Gara’s counsel stated that the meet and confer was inadequate. O’Gara’s counsel did agree to discuss matters
on November 8, 2024, but said that was after the deadline to file the
motion. Caraveo said that there was no
filing deadline and assumed that the court had said two weeks but impliedly
countermanded that when the December 27, 2024, date was set. O’Gara reiterated that the meet and confer
effort came too late and stated that the timing issue would form the basis of
the opposition to any motion Caraveo might file. Caraveo’s counsel disagreed. O’Gara’s counsel then said that the meet and
confer would only be about re-opening discovery again and anything else was a
waste of time and money. The response
was a demand to meet and confer on the merits.
O’Gara then asked that Caraveo “clarify” the court’s meaning before
having any discussions. Caraveo
suggested to meet and confer on the merits and if no agreement was reached,
then O’Gara could oppose any motion that followed, and asked if O’Gara was
refusing to do that. O’Gara said there
was no refusal to meet and confer, at least on whether to re-open discovery,
but nothing else. That communication was
on November 8, 2024. So far as the court
can tell, nothing happened after that two-day flurry of angry emails. In an apparent attempt to provide as little
notice as possible, Caraveo then waited until December 2, 2024, to serve the
motion electronically.
The court is left with only one option: to throw up its
hands. Both sides just do not seem to
understand this court or how it operates.
When the court said to meet and confer and bring the motion within two
weeks, it did not mean six weeks. It did
not mean to wait two weeks before even reaching out to the other side about the
concept of the discovery responses. It
meant that the parties needed to set a high priority on this and get to work
cooperatively to resolve the issue.
Because Caraveo was the party seeking information, the burden would (in
the first instance) naturally fall on Caraveo, although Caraveo’s view
apparently was that O’Gara should do the reaching out. The court’s hope, for what it is worth, was that
the parties would approach the issue cooperatively and who made the initial
contact would be a non-issue. But that
is not the game counsel are playing. In
any event, this issue was apparently not important enough to Caraveo to bother
to address the issue until about two weeks had expired. O’Gara, rather than approach this in the way
the court had suggested—trying to resolve the issue—decided to go the technical
route. Notwithstanding counsel’s
repeated statements that a meet and confer could be had, it is plain to the
court that counsel meant no such thing.
Because there was no time to bring the motion within the two weeks
suggested by the court, O’Gara continued to draw from its stall-the-case
playbook and would have no meaningful merits meet and confer. Frankly, no one was interested in taking this
seriously except the court, and now the court is done trying to change
counsel’s behavior. The parties need to
move the case to trial, but instead they seem far more intent on procedural
discussions motion practice. If the
parties do not take discovery seriously, they can expect little help or
sympathy from the court. Enough taxpayer
money has already been spent on an issue that only the court seems to want to
resolve.
Because this court needs to get this case to trial, the
court has, reluctantly, reviewed the responses.
Caraveo is right. The
interrogatories do not call for a narrative response with O’Gara’s theory of
the case written overbroadly but without detail. The interrogatories call for the recitation
of specific facts that O’Gara believes constitute the fraudulent statements and
the amount of damages allegedly suffered and how those damages were
calculated. The responses are obviously
designed to obfuscate, not illuminate.
That is in part the function of getting this information through
interrogatory, but it is in part because O’Gara prefers to leave Caraveo in the
dark despite repeated warnings. Because
O’Gara decided to play the “all or nothing” game, the court will GRANT the
motion in part. O’Gara will be precluded
from relying on any fact, witness, or document not specifically identified in
its responses unless O’Gara can demonstrate that the fact was disclosed by it
elsewhere in the discovery process with specificity and it cannot seek damages
in excess of any specific dollar amount set forth in the responses nor can it
explain to the jury how the damages are calculated or why they are appropriate
other than the specific calculation described in the responses. By way of example, O’Gara mentions credit
histories, but does not identify any.
That means that O’Gara will not be able to rely on specific histories at
trial. O’Gara mentions that Ra made
statements, but does not say specifically what those statements were. O’Gara will not be able to rely on
generalized comments or statements at trial.
Caraveo’s request for monetary sanctions is DENIED. Neither side approached this motion with the
mind set of resolution. It turns out
that Caraveo was right about the responses, but the court will not reward this
sort of behavior with a monetary sanction.
The court has also considered Caraveo’s over-the-top request for
terminating sanctions. The court does
not believe that the responses are so egregious as to warrant such
sanctions. Nor are issue sanctions
appropriate. The goal here was to get
information so that Caraveo knew the evidence that was going to be used against
him. An issue sanction goes too
far. The court believes that the
evidentiary sanction is the appropriate one.
The court does not intend to hold a lengthy hearing on this
matter today. If the parties discern a
bit of frustration in this tentative, that would be a perceptive observation.