Judge: Mel Red Recana, Case: 21STCV03986, Date: 2024-11-08 Tentative Ruling

All rulings shown here are TENTATIVE ONLY, and thus oral argument WILL be heard. All Counsel are still required to attend.

Case Number: 21STCV03986    Hearing Date: November 8, 2024    Dept: 45

Superior Court of California 

County of Los Angeles 

Hearing date:              11/08/2024 

Moving Party:             Defendants Lucky’s Two-Way Radios, Inc., Communications Relay LLC, and James Kay Jr.  

Responding Party:      None (Unopposed as of November 5, 2024)  

Motion:                       1. Motion to Compel Further Discovery Responses (CRS 7349)

                                    2. Motion to Compel Further Discovery Responses (CRS 7104)

                                    3. Motion to Compel Further Discovery Responses (CRS 3056)

                                    4. Motion to Compel Proper Deposition Responses (CRS 8280)

The Court considered the moving papers. No opposition and reply papers were filed.

            Defendants’ Motion to Compel Further Responses to Requests for Admission, Motion to Compel Further Responses to Special Interrogatories, and Motion to Compel Further Responses to Requests for Production filed on May 1, 2024 are GRANTED. The Court requests that Defense Counsel provide calculations for the requested sanctions prior to the Court imposing sanctions on Relator and his counsel.

            Defendants’ Motion to Compel Proper Deposition Responses filed on April 2, 2024 is DENIED. 

Background 

            This case stems from accusations of insurance fraud. On February 1, 2021, Frank J. Cannata (Relator) filed a Complaint against Lucky’s Two-Way Radios, Inc., Buddy Corporation, and James A. Kay Jr. The Complaint alleges that defendants violated the California Insurance Frauds Prevention Act (IFPA or INS §1871.7). On July 15, 2024, the Court sustained the Demurrer to the First Amended Complaint filed on March 22, 2023. On August 12, 2024, Relator filed the operative Second Amended Complaint (SAC) against Lucky’s Two-Way Radios, Inc., Buddy Corporation, Communications Relay, LLC, and James A. Kay Jr.

The SAC alleges the following: In 1993, the California legislature enacted the Insurance Frauds Prevention Act (IFPA), codified at Insurance Code §§ 1871, et seq. The IFPA permits civil enforcement of relevant provisions of the Penal Code either by the State or by any “interested person” on behalf of the State, i.e., a relator in a qui tam action. (SAC, ¶¶ 13-14.) Relator is a former employee of defendants Lucky’s Two-Way Radios, Inc. and Buddy Corporation. (Id. at ¶ 23.) In 2018, defendants made a claim to Harford Fire Insurance Company (Harford) for commercial property loss, claiming that they were damaged by the supposed theft, loss, or disappearance of certain defunct electronic equipment. (Id. at ¶¶ 24-26.) The equipment was of negligible value, but defendants entered into a scheme to misrepresent the property’s value to Harford. (Id. at ¶¶ 28-29.) Relator then filed suit.

There are now four motions before the Court filed by defendants Lucky’s Two-Way Radios, Inc., Communications Relay, LLC, and James A. Kay Jr. (collectively Defendants): (1) Motion to Compel Further Responses to Requests for Admissions; (2) Motion to Compel Further Responses to Special Interrogatories; (3) Motion to Compel Further Responses to Requests for Production of Documents; and (4) Motion to Compel Responses to Deposition Questions. Defendants request monetary sanctions against Relator and his counsel in connection with each motion.

On May 31, 2024, the Court continued the motions to November 1, 2024. The Court also granted Defendants’ Motion to Compel Further Responses to Form Interrogatories.

On October 28, 2024, the Court again continued the motions to November 8, 2024.

As of November 5, 2024, Relator has not opposed any of the motions.[1]

Trial Setting Conference is scheduled for January 17, 2025.   

Legal Standard for Motion to Compel Further

Where responses to interrogatories, requests for production, or requests for admissions have been served but requesting party believes that they are deficient because the answers are evasive or incomplete or because an objection is without merit, that party may move for an order compelling a further response. (Code Civ. Proc., §§ 2030.300, subd. (a); 2031.310, subd. (a); 2033.290, subd. (a).) A respondent has the burden to justify objections in response to a motion filed to compel further responses. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.)       

The court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response 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. (Code Civ. Proc. §§2030.300, subd. (d); 2031.310, subd. (h); 2033.290, subd. (d).) 

Before bringing a motion to compel further responses to any discovery request, the moving party is required to make efforts to meet and confer in good faith and must submit a declaration attesting to those efforts. (Code Civ. Proc., §§ 2031.310, subd. (b)(2); 2030.300, subd. (b)(1); 2033.290, subd. (b)(1).) “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc. § 2016.040.)¿However, a discovery motion need not be denied automatically based upon the reason that the moving parties failed to meet and confer in good faith.¿(See Obregon v. Sup. Ct. (1998) 67 Cal.App.4th 424, 434.) 

Discussion for Motion to Compel Further

The parties met and conferred before Defendants filed their motions to compel further. (McGonigle Decl., ¶¶ 4-5; Exs. E-G .) Upon review of the meet and confer letters, the Court finds that the parties sufficiently met and conferred in compliance with Code of Civil Procedure section 2016.040.  

Defendants move to compel further responses to requests for admissions, special interrogatories, and requests for production of documents.

1.      Motion to Compel Further Responses to Requests for Admissions

Defendants move to compel further responses from Relator to Requests for Admissions numbers 6-8, 11, 20-23, 25, 34, and 35. Defendants also request an order deeming numbers 1-5, 9-10, 12-19, 22, 24, and 26-33 admitted as no responses to these requests were provided.[2] Defendants request sanctions against Relator and his counsel in the amount of $2,500.

Because no responses to requests numbers 1-5, 9-10, 12-19, 22, 24, and 26-33 were provided and without a timely objection, an order deeming them admitted is warranted. (Code Civ. Proc. § 2033.280, subd. (b); McGonigle Decl., ¶¶ 2-5.) Further, as to requests numbers  6-8, 11, 20-23, 25, 34, and 35, the Court agrees with Defendants that Relator states improper boilerplate objections. For example, Relator objected to requests on the ground that they were contention requests, however contention requests are standard as “requests for admission may ask a party to admit the truth of specified fact, opinion relating to fact, or application of law to fact. A request for admission may relate to a matter that is in controversy between the parties.” (Code of Civ. Proc. § 2033.010.) Further, Relator’s other responses that constitute objections including “contention of law,” undefined phrases, harassment, and attorney client privilege are unpersuasive, and Relator fails to substantiate them as no opposition has been filed.

Accordingly, the motion is granted and sanctions are warranted. Defense counsel requests $2,500 in attorney’s fees and costs for bringing the Motion to Compel Further Responses to Requests for Admissions, however, Defense counsel provides no calculations for how they arrived at this figure. (McGonigle Decl., ¶ 6.) Defense counsel merely states, “[b]etween the time spent by attorneys and paralegals in my office in researching, preparing and finalizing these moving papers and any Reply papers, and time spent preparing for and appearing at oral argument, I anticipate that Defendants will have incurred greatly in excess of $4,500 in attorneys’ fees and costs in bringing this motion.” (Ibid.) Defense counsel should provide calculations for the requested sanctions prior to the Court imposing sanction on Relator and his counsel.

2.      Motion to Compel Further Responses to Special Interrogatories

Defendants move to compel further responses from Relator to Special Interrogatories numbers 7-11 and 15-16 as these responses contained no objections but instead a promise that supplemental responses will be provided. Defendants also request further responses from Relator to Special Interrogatories numbers 1-6, 12-14, and 17-42 as Relator stated improper boilerplate objections. Defendants request sanctions against Relator and his counsel in the amount of $4,500.

Defendants contend that after propounding Special Interrogatories to Relator, the responses received back were evasive and when supplemental responses were promised by Relator they were never received. The Court agrees and grants the motion. Defendants propounded their Special Interrogatories on December 19, 2023. (McGonigle Decl., ¶ 2.) Responses were received on January 29, 2024 which contained objections and promises that substantive responses would follow. (Ibid.) As of the filing of the motion, no substantive responses were received. Attempts to meet and confer by Defendants proved futile. (Id. at ¶¶ 4-5.)

Responses to Interrogatories numbers 7-11 and 15-16 contained no objections but stated that “supplemental responses will be furnished shortly.” However, no responses were furnished. Additionally, responses to Interrogatories numbers 1-6, 12-14, and 17-42 contained meritless objections. For example, Relator objected on the basis that he intends to designate under section 2030.230, however he failed to satisfy the other requirements of this section such as “specify the writing from whichever the answer may be derived or ascertained.” (Code Civ. Proc. § 2030.230.) Further, Relator objected on the basis that the interrogatories were “unduly burdensome and overbroad,” however this objection is conclusory as Relator failed to explain how the interrogatories are burdensome and overbroad. Similarly, Relator failed to explain how the interrogatories requested information protected by the attorney-client privilege, nor did Relator provide a privilege log. Finally, the objections that claim the interrogatories call for a legal conclusion and interfere with privacy rights are unpersuasive. Relator fails to substantiate any of the objections as no opposition has been filed to this motion.

Accordingly, the motion is granted and sanctions are warranted. Defense counsel requests $4,500 in attorney’s fees and costs for bringing the Motion to Compel Further Responses to Special Interrogatories, however, Defense counsel provides no calculations for how they arrived at this figure. (McGonigle Decl., ¶ 6.) Defense counsel should provide calculations for the requested sanctions prior to the Court imposing sanction on Relator and his counsel.

3.      Motion to Compel Further Responses to Requests for Production

Defendants move to compel further responses from Relator to Requests for Production of Documents numbers 1-15 as Relator stated improper boilerplate objections. Defendants request sanctions against Relator and his counsel in the amount of $2,500. 

Defendants contend that after propounding Requests for Production to Relator, Relator served Defendants with boilerplate objections and a promise to provide supplemental responses although responses were never received. The Court agrees and grants the Motion.

There are 15 Requests for Production in dispute. Relator failed to provide any documents requested by Defendants despite promising to do so. (McGonigle Decl., ¶ 4.) Further, Relator’s response that constitutes an objection is meritless. For each of the 15 Requests for Production, Relator objects on the basis the requests are burdensome and overbroad, call for attorney-client privileged information and work product information, call for a legal conclusion, and violate privacy rights. However, the objections are unpersuasive for the same reasons as noted above regarding the requests for admissions and special interrogatories. Moreover, Relator fails to substantiate any of the objections as no opposition has been filed to this motion.

Accordingly, the motion is granted and sanctions are warranted. Defense counsel requests $2,500 in attorney’s fees and costs for bringing the Motion to Compel Further Responses to Request for Production, however, Defense counsel provides no calculations for how they arrived at this figure. (McGonigle Decl., ¶ 6.) Defense counsel should provide calculations for the requested sanctions prior to the Court imposing sanction on Relator and his counsel.

Legal Standard for Motion To Compel Proper Deposition Responses

Code of Civil Procedure, section 2025.480, subdivision (a) provides: “If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” (Code Civ. Proc., § 2025.480, subd. (a).) “This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040.” (Id., § 2025.480, subd. (b).)  The 60-day deadline is mandatory. (Weinstein v. Blumberg (2018) 25 Cal.App.5th 316, 321.) 

If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition. (Code Civ. Proc., § 2025.480, subd. (i).) 

If the proposed deponent made some response, then a separate statement must accompany any motion to compel deposition attendance or production. (See Cal. Rules of Court, rule 3.1345, subd. (b).) 

Discussion for Motion To Compel Proper Deposition Responses

Defendants move pursuant to Code of Civil Procedure section 2025.480, subdivision (a) for an order compelling Relator to properly respond to questions propounded to him in his deposition arguing that Relator evaded answering the questions or was instructed by counsel without good cause not to answer. In connection with the motion, Defendants request sanctions against Relator and his counsel in the amount of $4,500.

Defendants noticed Relator’s deposition for December 12, 2023, and on January 17, 2024, the deposition was continued. (Motion, pp. 4-6; McGonigle Decl., ¶ 6; Ex. B.) During the deposition, Defendants sought Relator to provide the factual basis of the various claims and to disclose the facts that were provided to the Department of Insurance to determine whether he was an “original source.” (Motion, p. 7.) Insurance Code §1871.7, subd. (h)(2), provides:

(A) No court shall have jurisdiction over an action under this section based upon the public disclosure of allegations or transactions in a criminal, civil, or administrative hearing in a legislative or administrative report, hearing, audit, or investigation, or from the news media, unless the action is brought by the Attorney General or the person bringing the action is an original source of the information.

(B) For purposes of this paragraph, ‘original source’ means an individual who had direct and independent knowledge of the information on which the allegations are based and has voluntarily provided the information to the district attorney or [insurance] commissioner before filing an action under this section which is based on the information.

Defendants state that they were required to file this motion compelling Relator to disclose the facts he provided to the Department of Insurance and the basis of his claims because Relator refused to answer, incorrectly claimed he already answered, or was instructed not to answer questions at the deposition. (Motion, pp. 7-8.)

There is a mandatory 60-day deadline to file a motion to compel under section 2025.480, subdivision (a). (Weinstein, supra, 25 Cal.App.5th at 320.) Based upon the date of January 17, 2024—the date the deposition was continued—it appears that Defendants had until 60 days or March 17, 2024 to file their motion. However, Defense counsel declares that opposing counsel agreed to extend the deadline for Defendants’ motion until April 1, 2024. (McGonigle Decl., ¶ 5.) Defendants served and filed their motion on April 2, 2024. Therefore, notwithstanding the agreement for an extension, Defendants’ motion appears untimely, and Defendants do not state that opposing counsel agreed to the late motion.

Accordingly, the motion is denied as well as the request for sanctions.  

Conclusion 

            Defendants’ Motion to Compel Further Responses to Requests for Admission, Motion to Compel Further Responses to Special Interrogatories, and Motion to Compel Further Responses to Requests for Production are GRANTED. The Court requests that Defense Counsel provide calculations for the requested sanctions prior to the Court imposing sanctions on Relator and his counsel.

            Defendants’ Motion to Compel Proper Deposition Responses is DENIED. 

It is so ordered. 

Dated: November 8, 2024 

_______________________ 

Mel Red Recana 

Judge of the Superior Court