Judge: Michael E. Whitaker, Case: 22SMCV01303, Date: 2024-06-11 Tentative Ruling

Case Number: 22SMCV01303    Hearing Date: June 11, 2024    Dept: 207

TENTATIVE  RULING

Plaintiff Soraya Pourvasei (“Plaintiff”) filed a complaint against Defendants Mikhael Metals LLC and Benjamin Mikhaelfard for Breach of Written Contract; Breach of Written Guarantee; Fraud – Intentional Misrepresentation; Negligent Misrepresentation of Material Facts; Common Count for Account Stated; and Common Count for Open Book Account.   

Plaintiff moves the Court for orders compelling Benjamin Mikhaelfard (“Defendant”) to serve further responses to the following discovery requests: 

1.     Form Interrogatories (“FROG”), Set 1, Propounded to Defendant

·       Propounded:                                        May 11, 2023

·       Initial Responses:                               November 16, 2023

·       Further Responses:                             February 20, 2024

·       Further Supplemental Responses:       March 22, 2024

·       Motion Filed:                                      April 22, 2024

            Defendant filed declarations of himself and his counsel in response to the motion.  Plaintiff replies. 

Procedural Requirements

1.     Timeliness of Motion

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

Here, Plaintiff filed the motion on the date set forth above.  Defendant has not objected to the timeliness of the motion. 

2.     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. 

            Here, Plaintiff filed a separate statement related to the motion which complies with Rule 3.1345.

3.     Meet and Confer

            A motion to compel must be accompanied by a meet and confer declaration under Code of Civil Procedure section 2016.040.  (Code Civ. Proc., §§ 2030.300, subd. (b)(1), 2031.310, subd. (b)(2), 2033.290, subd. (b)(1).)  A meet and confer declaration must state facts showing a reasonable and good-faith attempt at an informal resolution of each issue presented in the motion.  (Code Civ. Proc., § 2016.040.) 

            “The Discovery Act requires that, prior to the initiation of a motion to compel, the moving party declare that he or she has made a serious attempt to obtain an informal resolution of each issue. This rule is designed to encourage the parties to work out their differences informally so as to avoid the necessity of a formal order.  . . .  This, in turn, will lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes.”  (Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1434-1435 [cleaned  up].)  To comply, “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; see also Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294 [to satisfy the attempt at informal resolution required in section 2016.040 opposing parties must do more than try to persuade each other of their errors].)  In short, the Discovery Act “requires that there be a serious effort at negotiation and informal resolution.”  (Townsend v. Superior Court, supra, 61 Cal.App.4th at p. 1438.)

            To that end, trial courts are entrusted with discretion and judgment to determine the necessary effort required to satisfy the requirement of an informal resolution. (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 433.)  In determining if parties have satisfied Section 2016.040, judges may consider “the history of the litigation, the nature of the interaction between counsel, the nature of the issues, the type and scope of discovery requested, the prospects for success and other similar factors can be relevant.” (Id. at pp. 431-432 [holding that the trial court was correct in determining that sending a letter with oppositions was an insufficient attempt at an informal resolution].)  In sum, meet and confer efforts should go beyond merely sending letters to each other stating each party’s respective positions.

            Here, as set forth in the Declaration of Brad A. Mokri (“Mokri”), counsel for Plaintiff, Plaintiff implies she engaged in a reasonable and good faith attempt at an informal resolution of the issues presented in the motion.  In particular, after Defendant served the initial responses to the FROG on November 16, 2023, Mokri  avers that he sent three emails to counsel for Defendant, Behrouz Shafie (“Shafie”) on November 28, 2023, December 6, 2023 and December 13, 2023 concerning Defendant’s responses.  (Declaration of Brad A. Mokri, ¶ 6, Exhibit D.) 

            In the November 28 email, Mokri states:

·       Response to Form Interrogatory 3.6, 3.7, and 14.1: The responses are incomplete. Further responses must be provided.

·       Response to Form Interrogatory 15.1: The response is evasive, incomplete, and nonresponsive. Further responses stating all facts, persons and documents supporting the affirmative defenses must be provided.

·       Response to Form Interrogatory 50.1 to 50.5: These responses are evasive, incomplete and nonresponsive. Please provide further responses.

The December 6^th email is a follow-up because Shafie did not respond to the November 28th email.  Shafie responded on December 8 stating that he had health issues and was willing to extend the deadline for Plaintiff to file a motion to compel further discovery responses.  In response, Mokri states in the December 13^th email in pertinent part: 

·       Plaintiff’s simple Form Interrogatories were served on May 11, 2023. After over five months, Defendant responded which were evasive and incomplete. I have made several attempts to receive the proper further responses to no avail. Please consider this email as my final attempt to obtain the complete further responses prior to filing motion to compel. Unless I receive proper further responses by no later than Monday December 18, 2023, in my office, I will proceed with filing a motion to compel and request to recover all fees incurred.

(Declaration of Brad A. Mokri, Exhibit D.) 

            Thereafter, on January 22, 2024, Mokri left a message for Shafie inviting him to participate in an Informal Discovery Conference; according to Mokri, Shafie did not cooperate.  (Declaration of Brad A. Mokri, ¶ 7.)  Then, on February 20, 2024, Defendant served further responses to the FROG which was followed by an Informal Discovery Conference on March 5, 2024.  (Id. at ¶ 8.)  Subsequently, Defendant served further supplemental responses to the FROG on March 22, 2024.  (Id. at ¶ 10.)

            In response to the motion, Shafie filed a declaration indicating that Mokri did not meet and confer with him after Defendant served the further supplemental responses on March 22, and argues that the Court should deny the motion.  (Declaration of Behrouz Shafie, ¶ 5.)

            Apart from the emails, Mokri does not set forth any other efforts to meet and confer with counsel for Defendant, especially after the further supplemental responses were served on March 22.  The Court notes that Mokri does not telephone counsel for Defendant to discuss the discovery responses, and does not attempt to schedule a telephonic or remote conference with counsel for Defendant by suggesting dates or times to confer.  

            Instead, Mokri demands that counsel for Defendant serve further responses and to participate in an Informal Discovery Conference which the Court notes is not part of the Discovery Act’s meet and confer requirements.  Moreover, in the only substantive meet and confer correspondence, the November 28^th email, Mokri does not explain with specificity how or why Defendant’s responses are incomplete, except in reference to FROG 15.1 in which Mokri claims “Further responses stating all facts, persons and documents supporting the affirmative defenses must be provided.” 

            The procedural history related to the FROG begs the question:  Does it reflect a party interested and/or willing to “talk the matter over, compare their views, consult, and deliberate” in an effort to avoid a court’s intervention in a discovery dispute?  Without more, the Court finds that the answer is No. 

            Accordingly, the Court finds that Plaintiff has failed to meet and confer with Defendant in a reasonable and good faith attempt at an informal resolution of the issues presented in the motion for the reasons stated.  The Court finds that Plaintiff’s meet and confer efforts in advance of filing the subject motion was woefully inadequate and certainly did not fulfill Plaintiff’s obligations under the Discovery Act.  In other words, the Court finds that there was no serious effort at negotiations and an informal resolution by Plaintiff.         

4.     Monetary 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; making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery; and failing to confer in a reasonable and good faith attempt to resolve informally any dispute concerning discovery. (See Code Civ. Proc., § 2023.010, emphasis added.)

            In addition, Code of Civil Procedure section 2030.300, subdivision (d) 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 a further response to interrogatories, 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.” 

            Here, Plaintiff seek monetary sanctions.  But with the Court finding that Plaintiff failed to engage in a reasonable and good faith attempt to informally resolve the discovery issues before filing the subject motion, the Court concludes that Plaintiff engaged in the misuse of the discovery process.  Consequently, the Court will deny Plaintiff’s request for monetary sanctions against Defendant. 

CONCLUSION AND ORDERS

Therefore, the Court denies Plaintiff’s motion to compel further responses to Form Interrogatories, Set 1, for the reasons stated above. 

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

DATED: June 11, 2024                                              ___________________________

                                                                                    Michael E. Whitaker

                                                                        Judge of the Superior Court