Judge: Michael E. Whitaker, Case: 22SMCV01045, Date: 2025-02-27 Tentative Ruling

Case Number: 22SMCV01045    Hearing Date: February 27, 2025    Dept: 207

TENTATIVE RULING

MOTIONS

This case arises from a dispute between the owners and operators of neighboring businesses.  The Dental Office Plaintiffs allege the neighboring Dry-Cleaning business is contaminating the property. 

Defendant Suzanne Wilde-Anderson, Trustee of the Suzanne Wilde-Anderson 1993 Trust (“Defendant”) moves for an order compelling Plaintiffs (i) Michael Florman DDS, Inc. (“Florman DDS”); (ii) Lewel, LLC (“Lewel”); (iii) Gailani Dental Group, LLC (“Gailani Dental”); (iv)  Dunia Gailani (“Gailani”); and (v) Michael Florman (“Florman”) (together, “Plaintiffs”) to provide further code-compliant, verified responses without objection and produce all responsive documents to Requests for Production, Set 1 (“RFP”), and for monetary sanctions.

Plaintiffs have filed a consolidated opposition, to which Defendant has replied.

PROCEDURAL REQUIREMENTS

            Timeliness of Motion & Meet and Confer

            A notice of motion to compel further responses must be given within 45 days of the service of the verified responses, or any supplemental verified responses, or on or before any specific later date to which the parties have agreed in writing. (Code Civ. Proc., §§ 2030.300, subd. (c); 2031.310, subd. (c).) Failure to file such a motion within this time period constitutes a waiver of any right to compel further responses to interrogatories or requests for production of documents. (Ibid.)

            Here, Defendant propounded the RFP on December 4, 2023.  (Shenian Decl. ¶ 2 and Ex. 1.)  Defendant extended the deadline to respond six times, to February 14, 2024.  (Shenian Decl. ¶ 2 and Ex. 2.) 

On February 14, 2024, Plaintiffs served responses to the RFP.  (Shenian Decl. ¶ 2 and Ex. 3.)  The parties extended Plaintiff’s time to compel further responses to January 31, 2025.  (Ex. 11.)  Plaintiffs periodically produced documents from January 26, 2024.

On March 5, 2024, the Court signed and issued a protective order.

The parties subsequently agreed to extend Defendant’s deadline to move to compel until two weeks after an IDC.  (Shenian Decl. ¶ 4 and Ex. 6.)  The parties participated in an IDC on July 3, 2024.  Plaintiffs’ counsel subsequently extended the deadline to move to compel to September 30, 2024.  (Shenian Decl. ¶ 5 and Ex. 8.)  In light of Plaintiffs’ promise to produce documents, that deadline was further extended to October 30, 2024.  (Shenian Decl. ¶ 6 and Ex. 9.)  That deadline was subsequently extended again to December 16, 2024.  (Shenian Decl. ¶ 6 and Ex. 10.)

Having not received further responses or production, Defendant filed the instant motions on December 11, 2024. 

Therefore, the Court finds the motions to be timely.

            Separate Statement

            California Rules of Court, rule 3.1345 requires that any motion involving the content of discovery contain a separate statement with the text of each request, the response, and a statement of factual and legal reasons for why an order compelling further responses is warranted.

            Defendant has filed separate statements with respect to the RPD for each Plaintiff in compliance with the Rules of Court.

ANALYSIS   

1.     Motions to Compel

“The purpose of the discovery rules is to enhance the truth-seeking function of the litigation process and eliminate trial strategies that focus on gamesmanship and surprise. In other words, the discovery process is designed to make a trial less a game of blindman’s bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.” (Juarez v. Boy Scouts of Am., Inc. (2000) 81 Cal.App.4th 377, 389 [cleaned up].)

Where a party objects or responds inadequately to discovery requests, a motion lies to compel further responses, and that party has the burden to justify the objections or inadequate responses.  (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255; Code Civ. Proc., § 2031.310, subd. (a) [motion to compel further responses lies “[o]n receipt of a response to a demand for inspection”].)  “A trial court’s determination of a motion to compel discovery is reviewed for abuse of discretion.  However, when the facts asserted in support of and in opposition to the motion are in conflict, the trial court’s factual findings will be upheld if they are supported by substantial evidence.”  (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733 [cleaned up].)

Subsequent to the filing of the motions, Plaintiffs provided Supplemental Responses, and produced documents, with the following changes:

1. Plaintiff’s previously produced hundreds of pages of documents, which were not bate stamped. The entire prior production has now been bate stamped, as Anderson demanded.

2. Many hundreds of additional pages (including those relating to the plaintiffs’ financial losses) have now been produced, in bate stamped format.

3. Each response now identifies, by bate stamped number, the documents in the production that are responsive to each request, as Anderson demanded.

4. A log or table of the document production has been separately provided, identifying the documents produced, by title and by bate stamp numbers.

5. Each response provides further detail as to the objections (e.g., noting language in the request which is objectionable, and explaining why).

6. Each response contains language indicating that the documents produced (to the extent not privileged or otherwise objected to) are all documents in defendants’ custody, possession or control. In a couple of instances (relating to purchase and sale documents of the property and corporate revivor), which were not yet produced, those documents will be produced, to the extent not destroyed in the Pacific Palisades fire[1].

7. Each response contains a paragraph providing a privilege log and statement of applicable objections to certain categories of documents, by category. For example, it would specify that documents reflecting communications between Noel E. Macaulay, Esq. and Michael Florman or Dunnia Galaini (individually and on behalf of the entity Plaintiffs), and concerning the claim and the litigation are being withheld on the grounds of attorney-client privilege, and set forth some of the other applicable objections. Some of the category of documents to which objections are raised (e.g., individual patient records) are also identified and the applicable objections set forth separately as to them.

(See Macaulay Decl. ¶ 3.)

            Notwithstanding, Defendant argues Plaintiffs’ supplemental responses are deficient because they still rely on “boilerplate” objections and have not produced all documents within their possession, custody, or control.

            Specifically, Defendant contends Plaintiffs have only produced Profit/Loss statements for Florman DDS, and no other entities.  Further, no documents were produced regarding Lewel’s revival efforts.  Further, no communications between Plaintiffs and Golden-Glo, the Yous, Chung, or the Nazarians (the subsequent purchasers of the property) have been produced.

However, Plaintiffs concede that many of Defendant’s issues with the prior objections were well taken, and have since been supplemented, and further documents produced.  Because the scope of the dispute has changed, the Court cannot discern, from the record before it, which RFP responses Defendant still considers deficient or if any further productions are still outstanding.[2] 

As such, Defendant’s motion to compel further responses is mooted by Plaintiffs’ subsequent supplemental responses and production of documents. 

To the extent Defendant takes issue with those supplemental responses and resulting production, Defendant has recourse under the Code which may include another Informal Discovery Conference after the parties have met and conferred further to ensure compliance with their respective obligations under the Discovery Act. 

2.     Sanctions

            A trial court may sanction a party for engaging in the misuse of discovery, which includes: failure to respond or submit to an authorized method of discovery; making an evasive response to discovery; making, without substantial justification, an unmeritorious objection to discovery; and making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery. (Code Civ. Proc., § 2023.010.)

In addition, Code of Civil Procedure section 2031.310, subdivision (h) provides: “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 further response to a demand, 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.”  (See also Code Civ. Proc., § 2031.320, subd. (b).)

Here, in connection with each motion, Defendant requests monetary sanctions in the amount of $4,860 against Florman DDS and its counsel of record; $3,200 against Lewel and its counsel of record; $3,200 against Gailani Dental and its counsel of record; $2,691 against Gailani and its counsel of record; and $2,835 against Florman and its counsel of record.

As Plaintiffs concede in opposition, not all of their objections were meritorious.  As such, monetary sanctions are warranted.  The Court orders monetary sanctions against each Plaintiff and its counsel, jointly and severally, in the amount of $1,500, which comprises of 3 hours of attorney time to prepare the moving and reply papers, and appear at the hearing at $480 per hour, plus the motion filing fee of $60, for total amount of monetary sanctions in the amount of $7,500.

CONCLUSION AND ORDER

            For the foregoing reasons, Defendant’s motions to compel further responses and production to the RPD are denied, in part, as moot.  However, because Plaintiffs made, without substantial justification, unmeritorious objections to the requested discovery, prompting motion practice, Defendant’s requests for monetary sanctions are granted in part.

The Court orders Plaintiff Florman DDS and its counsel of record, Noel Macaulay of Schwartz & Janzen, LLP, jointly and severally, to pay monetary sanctions in the amount of $1,500 to Defendant, through Defendant’s counsel of record, within 30 days of notice of the Court’s Order.

The Court further orders Plaintiff Lewel and its counsel of record, Noel Macaulay of Schwartz & Janzen, LLP, jointly and severally, to pay monetary sanctions in the amount of $1,500 to Defendant, through Defendant’s counsel of record, within 30 days of notice of the Court’s Order.

The Court further orders Plaintiff Gailani Dental and its counsel of record, Noel Macaulay of Schwartz & Janzen, LLP, jointly and severally, to pay monetary sanctions in the amount of $1,500 to Defendant, through Defendant’s counsel of record, within 30 days of notice of the Court’s Order.

The Court further orders Plaintiff Gailani and its counsel of record, Noel Macaulay of Schwartz & Janzen, LLP, jointly and severally, to pay monetary sanctions in the amount of $1,500 to Defendant, through Defendant’s counsel of record, within 30 days of notice of the Court’s Order.

The Court further orders Plaintiff Florman and its counsel of record, Noel Macaulay of Schwartz & Janzen, LLP, jointly and severally, to pay monetary sanctions in the amount of $1,500 to Defendant, through Defendant’s counsel of record, within 30 days of notice of the Court’s Order.

Defendant shall provide notice of the Court’s orders and file the notice with a proof of service forthwith. 

DATED:  February 27, 2025                                                  ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court