Judge: Michael E. Whitaker, Case: 22STCV07260, Date: 2023-11-30 Tentative Ruling

Case Number: 22STCV07260    Hearing Date: November 30, 2023    Dept: 207

TENTATIVE  RULING

Plaintiffs Peyman Banooni, Stan Gershovich, Faramarz (Fred) Shaham and Matrix Clinical Research, Inc. (collectively, “Plaintiffs”) filed a complaint against Defendants Law Offices of Saul Reiss, P.C., Saul Reiss and Firouzeh (Fay) Pugh for attorney malpractice.    

Firouzeh (Fay) Pugh (“Defendant”) moves the Court for orders compelling Plaintiffs to serve further responses to the following discovery requests: 

1.      Form Interrogatories (“FROG”), Set 1, Propounded to Plaintiff Matrix Clinical Research, Inc.

·         Propounded:                                              June 27, 2023

·         Responses Served:                                    July 28, 2023

·         Motion Filed:                                            September 13, 2023

2.      Form Interrogatories (“FROG”), Set 1, Propounded to Plaintiff Peyman Banooni

·         Propounded:                                              June 27, 2023

·         Responses Served:                                    July 28, 2023

·         Motion Filed:                                            September 13, 2023

3.      Form Interrogatories (“FROG”), Set 1, Propounded to Plaintiff Stan Gershovich

·         Propounded:                                              June 27, 2023

·         Responses Served:                                    July 28, 2023

·         Motion Filed:                                            September 13, 2023

4.      Form Interrogatories (“FROG”), Set 1, Propounded to Plaintiff Faramarz (Fred) Shaham

·         Propounded:                                              June 27, 2023

·         Responses Served:                                    July 28, 2023

·         Motion Filed:                                            September 13, 2023

Plaintiffs oppose the motions and Defendant replies. 

ANALYSIS

1.      Timeliness of Motions

            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, Defendant filed the motions on the date set forth above.  Plaintiffs have not objected to the timeliness of the motions. 

2.      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).)  “A meet and confer declaration must 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.) 

            “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] (hereafter Townsend).)  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.”  (Townsend, supra, 61 Cal.App.4th 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, 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 David D. Samani (“Samani”), counsel for Defendant, Defendant asserts she engaged in a reasonable and good faith attempt at an informal resolution of the issues presented in the motions.  In particular, Samani avers that on August 22, 2023, he prepared and sent a meet and confer letter to counsel for Plaintiffs outlining the deficiencies with Plaintiffs’ discovery responses.  (Declaration of David D. Samani, ¶ 5, Exhibit 5.) 

            According to Samani, on August 31, 2023, counsel for Plaintiffs responded in writing refuting that Plaintiffs’ discovery responses were lacking and contending that an informal discovery conference will be futile.   (Declaration of David D. Samani, ¶ 6, Exhibit. 6.)  Thereafter, on September 12, 2023, Samani sent an email to counsel for Plaintiffs reiterating that Plaintiffs’ discovery responses were factually devoid and non-compliant, and invited counsel for Plaintiffs to “further meet and confer.”  (Declaration of David D. Samani, ¶ 7, Exhibit. 7.) 

            On September 13, 2023, counsel for Plaintiffs responded by arguing that Defendant failed to meet and confer:  “You do not explain in what respects the responses are deficient and I do not know why the responses are not full and complete.”  (Declaration of David D. Samani, ¶ 8, Exhibit. 8.)  In responding by email on September 13, 2023, Samani contends that the initial meet and confer correspondence was adequate and in part inquired about counsel for Plaintiffs’ availability to confer further.  (Declaration of David D. Samani, ¶ 9, Exhibit. 9.) 

            Apart from those statements, Samani does not set forth any other efforts to meet and confer with counsel for Plaintiffs.  The Court notes that Samani does not telephone counsel for Plaintiffs to discuss the discovery responses, and does not attempt to schedule a telephonic or remote conference with counsel for Plaintiffs by suggesting dates or times to confer.  Instead, Samani asks counsel for Plaintiffs to make himself available to meet and confer. 

            In addition, the Court notes the following history: 

a)      Discovery Propounded:                                              June 27, 2023

b)      Discovery Responded:                                                July 28, 2023

c)      Defendant’s Meet and Confer Letter:                         August 22, 2023

d)      Plaintiffs’ Meet and Confer Response:                       August 31, 2023

e)      Defendant’s Meet and Confer Email:                         September 12, 2023

f)       Plaintiffs’ Meet and Confer Responsive Email:         September 13, 2023

g)      Defendant’s Meet and Confer Responsive Email:      September 13, 2023

h)      Defendant’s Motions Filed:                                        September 13, 2023

            Based upon that chronology, Defendant dispatched her only substantive meet and confer correspondence 25 days after Plaintiffs served their discovery responses, and filed the instant motions 22 days after Defendant sent that correspondence.  Further, Defendant does not respond to Plaintiffs’ meet and confer correspondence of August 31, 2023 until the day before the motions to compel are due with, in large part, an ultimatum:  “Please confirm by the end of the day today that you are willing to attend an IDC and have a further discussion on these issues, and provide my client an extension of time to move to compel as to the 17.1 response to a date at least 2 weeks after an IDC.”  The Court notes that Defendant did not respond substantively to the issues raised in Plaintiffs’ August 31 correspondence. 

            Moreover, the Court notes, during the period of August 23 through August 31, counsel for Defendant does not attempt to reach out to counsel for Plaintiffs by telephone or other means in attempt to further address the issues raised in Defendant’s August 22, 2023 meet and confer correspondence.  The same is true for the period of September 1 through 13 following Defendant’s receipt of Plaintiffs’ August 31, 2023 meet and confer response. 

            This history 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 Defendant has failed to meet and confer with Plaintiffs in a reasonable and good faith attempt at an informal resolution of the issues presented in the motions for the reasons stated.  The Court finds that Defendant’s meet and confer efforts in advance of filing the subject motions were woefully inadequate and certainly did not fulfill Defendant’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 Defendant.            

3.      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, Plaintiffs and Defendant seek monetary sanctions.  But with the Court finding that Defendant failed to engage in a reasonable and good faith attempt to informally resolve the discovery issues before filing the subject motions, and as such, Defendant made motions to compel further discovery responses without substantial justification, the Court concludes that Defendant engaged in the misuse of the discovery process. 

            Consequently, the Court will deny Defendant’s requests for monetary sanctions against Plaintiffs.  Instead, the Court will impose monetary sanctions against Defendant and counsel for Defendant, Lewis Brisbois Bisgaard & Smith LLP, in the amount of $1050 which represents three hours of attorney time to prepare the oppositions to the motions, and to appear at the hearing at $350 per hour.  

CONCLUSION AND ORDERS

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

            In addition, the Court orders Defendant and counsel for Defendant, Lewis Brisbois Bisgaard & Smith LLP, jointly and severally to pay monetary sanctions in the amount of $1050  to Plaintiffs, by and through Counsel for Plaintiffs, on or before December 28, 2023.   

            Defendant shall provide notice of the Court’s ruling and file a proof of service regarding the same. 

DATED: November 30, 2023                                     ___________________________

                                                                                    Michael E. Whitaker

                                                                              Judge of the Superior Court