Judge: Michael P. Linfield, Case: 22STCV03189, Date: 2023-02-10 Tentative Ruling

Case Number: 22STCV03189    Hearing Date: February 10, 2023    Dept: 34

SUBJECT:         Motion to Compel Responses to Form Interrogatories Set One and Request for Sanctions against Defendant Steven Barkin

Moving Party:  Plaintiff Eun Chu Lee

Resp. Party:    None

SUBJECT:         Motion to Compel Responses to Special Interrogatories Set One and Request for Sanctions against Defendant Steven Barkin

Moving Party:  Plaintiff Eun Chu Lee

Resp. Party:    None

SUBJECT:         Motion to Compel Responses to Request for Production of Documents Set One and Request for Sanctions against Defendant Steven Barkin

Moving Party:  Plaintiff Eun Chu Lee

Resp. Party:    None

SUBJECT:         Motion to have Requests for Admission, Set One, Deemed Admitted Against Defendant Steven Barkin and Request for Sanctions Against Defendant Steven Barkin

Moving Party:  Plaintiff Eun Chu Lee

Resp. Party:    None

Plaintiff’s RFAs Motion and FROGs Motion are DENIED as MOOT.  Plaintiff’s SROGs Motion, and RPDs Motion are both GRANTED. The RFAs are DEEMED ADMITTED. Defendant shall have 14 days from the issuance of this Order to serve his responses to the SROGs and RPDs listed above.

Monetary sanctions are AWARDED for Plaintiff and against Defendant Steven Barkin in the total amount of $811.60.

BACKGROUND:

On January 26, 2022, Plaintiff Eun Chu Lee filed her Complaint against Defendants Steven Barkin, Tom Choi, and Law Offices of Steven Barkin, Inc. on causes of action of attorney malpractice, fraud (concealment), fraud (intentional misrepresentation), fraud (false promise), and negligent misrepresentation.

On May 3, 2022, Defendant Steven Barkin filed his Answer.

On May 6, 2022, by request of Plaintiff, the Clerk’s Office entered default on Defendants Tom Choi and Law Offices of Steven Barkin, Inc.

On January 3, 2023, Plaintiff filed: (1) Motion to Compel Responses to Form Interrogatories Set One and Request for Sanctions against Defendant Steven Barkin (“FROGs Motion”); (2) Motion to Compel Responses to Special Interrogatories Set One and Request for Sanctions against Defendant Steven Barkin (“SROGs Motion”); (3) Motion to Compel Responses to Request for Production of Documents Set One and Request for Sanctions against Defendant Steven Barkin (“RPDs Motion”); and (4) Motion to have Requests for Admission, Set One, Deemed Admitted Against Defendant Steven Barkin and Request for Sanctions Against Defendant Steven Barkin (“RFAs Motion”). Each motion was concurrently filed with (1) Declaration of Roy Koletsky and (2) Proposed Order.

On February 2, 2023, Plaintiff filed her Non-Receipt of Opposition to each of the four motions.

Defendant Steven Barkin (“Defendant”) has not filed an opposition or other response to the motions.

ANALYSIS:

For ease of analysis, the Court considers the RFAs Motion separately from the other motions.

I.           RFAs Motion

A.      Legal Standard

California Code of Civil Procedure requires a response from the party to whom the request for admissions is directed within 30 days after service of the request for admissions. (Code Civ. Proc., § 2033.250, subd. (a).) If the party fails to serve a timely response, “the party to whom the requests for admission are directed waives any objection to the requests.” (Code Civ. Proc., § 2033.280, subd. (a).) The requesting party may then “move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for monetary sanction under Chapter 7.” (Code Civ. Proc., § 2033.280, subd. (b).)

A motion to deem admitted requests for admissions is based upon a showing of failure to respond timely. (Code Civ. Proc., § 2033.280, subd. (b); Demyer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393, 395 [disapproved on other grounds by Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 983]; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2013) ¶ 8:1370.) Requests for admissions must be deemed admitted where no responses in substantial compliance were served before the hearing. (Code Civ. Proc., § 2033.280, subd. (c); Edmon & Karnow, supra, at ¶ 8:1375.)

“[W]oe betide the party who fails to serve responses before the hearing. In that instance, the court has no discretion but to grant the admission motion, usually with fatal consequences for the defaulting party. One might call it ‘two strikes and you're out’ as applied to civil procedure.” (Demyer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393, 395–396, disapproved on other grounds in Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 983.)

 A court will deem requests admitted, “unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.” (Code Civ. Proc., § 2033.280, subd. (c).) “It is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.” (Code Civ. Proc., § 2033.280, subd. (c).)

B.      Analysis

1.       The Requests for Admission

The following are the requests for admission that Defendant/Cross-Complainant moves the Court to deem admitted:

REQUEST FOR ADMISSION NO. 1

Admit that YOU entered into several joint business ventures with PLAINTIFF and DEFENDANTS.

REQUEST FOR ADMISSION NO. 2

Admit that YOU entered into several joint business ventures with PLAINTIFF and DEFENDANTS.

REQUEST FOR ADMISSION NO. 3

Admit that PLAINTIFF made a number of investments with you and DEFENDANTS totaling $342,000 funded by multiple checks.

REQUEST FOR ADMISSION NO. 4

Admit that YOU induced PLAINTIFF to invest in FEEL karaoke bar.

REQUEST FOR ADMISSION NO. 5

Admit that YOU did not intend to invest any of PLAINTIFF'S investment of FEEL karaoke bar into said venture.

REQUEST FOR ADMISSION NO. 6

Admit that PLAINTIFF invested in FEEL karaoke bar because YOU and DEFENDANTS said that YOU would set up FEEL karaoke as a startup and sell it right away to order to [sic] share the profits of a sale at an escalated price.

REQUEST FOR ADMISSION NO. 7

Admit the PLAINTIFF provided checks for the construction fixtures for FEEL karaoke bar because of YOUR representations.

REQUEST FOR ADMISSION NO. 8

Admit the PLAINTIFF provided checks for the lease deposit for FEEL karaoke bar because of YOUR representations.

REQUEST FOR ADMISSION NO. 9

Admit the PLAINTIFF provided checks for the Alcohol Beverage Control Licenses for FEEL karaoke bar because of YOUR representations.

REQUEST FOR ADMISSION NO. 10

Admit the PLAINTIFF provided checks for the Conditional Use Permit for FEEL karaoke bar because of YOUR representations.

REQUEST FOR ADMISSION NO. 11

Admit that YOU did not follow California Rules of Professional Conduct when entering into FEEL Karaoke bar with PLAINTIFF.

REQUEST FOR ADMISSION NO. 12

Admit that YOU entered into a business venture with PLAINTIFF and DEFENDANTS for INVESTMENT PROPERTY 1.

REQUEST FOR ADMISSION NO. 13

Admit that PLAINTIFF contributed $55,000 towards the purchase price of INVESTMENT PROPERTY 1.

REQUEST FOR ADMISSION NO. 14

Admit that YOU represented to PLAINTIFF that after opening escrow on INVESTMENT PROPERTY 1, YOU would find a new buyer and transfer the property at a higher price.

REQUEST FOR ADMISSION NO. 15

Admit that YOU represented to PLAINTIFF that after opening escrow on INVESTMENT PROPERTY 1 and finding a new buyer and transferring the property at a higher price, YOU would then return PLAINTIFF’S investment with interest.

REQUEST FOR ADMISSION NO. 16

Admit that if escrow did not close on INVESTMENT PROPERTY 1, YOU were to return the $55,000 to PLAINTIFF.

REQUEST FOR ADMISSION NO. 17

Admit that YOU did not intend to return any of PLAINTIFF’S $55,000 of INVESTMENT PROPERTY 1.

REQUEST FOR ADMISSION NO. 18

Admit that YOU Represented to PLAINTIFF if the investment on INVESTMENT PROPERTY 1 did not go through, PLAINTIFF could instead open up a school in that location.

REQUEST FOR ADMISSION NO. 19

Admit that because of YOUR represented [sic] to PLAINTIFF if the investment on INVESTMENT PROPERTY 1 did not go through, PLAINTIFF could instead open up a school in that location.

REQUEST FOR ADMISSION NO. 20

Admit that YOU did not intend to invest any of PLAINTIFF’s $55,000 towards INVESTMENT PROPERTY 1.

REQUEST FOR ADMISSION NO. 21

Admit that YOU did not follow California Rules of Professional Conduct Rule 3-300 when entering into INVESTMENT PROPERTY 1 with PLAINTIFF.

REQUEST FOR ADMISSION NO. 22

Admit that YOU entered into a business venture with PLAINTIFF and DEFENDANTS for INVESTMENT PROPERTY 2.

REQUEST FOR ADMISSION NO. 23

Admit that PLAINTIFF contributed an $89,000 check to T & S Services to be used towards the down payment of INVESTMENT PROPERTY 2.

REQUEST FOR ADMISSION NO. 24

Admit that YOU represented to PLAINTIFF that a previous client of YOURS could not pay the mortgage on INVESTMENT PROPERTY 2.

REQUEST FOR ADMISSION NO. 25

Admit that due to YOUR previous client not being able to pay the mortgage on INVESTMENT PROPERTY 2, YOU told PLAINTIFF that YOU would be able to purchase INVESTMENT PROPERTY 2 at a lower price.

REQUEST FOR ADMISSION NO. 26

Admit that due to YOUR previous client not being able to pay the mortgage on INVESTMENT PROPERTY 2 and YOU representing to PLAINTIFF that YOU would be able to purchase INVETSMENT PROPERTY 2 at a lower price, YOU told PLAINTIFF you would subsequently be able to sell INVESTMENT PROPERTY 2 at an escalated price in order to make profit.

REQUEST FOR ADMISSION NO. 27

Admit that because of YOUR representation in Special Interrogatory 37 and 41, Plaintiff detrimentally relied on the statements before investing INVESTMENT PROPERTY 2.

REQUEST FOR ADMISSION NO. 28

Admit that YOU did not intend to invest any of PLAINTIFF'S $89,000 towards INVESTMENT PROPERTY 2.

REQUEST FOR ADMISSION NO. 29

Admit that YOU have failed after multiple requests, to make proper account of the funds, distribute proceeds or return principle [sic] to PLAINTIFF.

REQUEST FOR ADMISSION NO. 30

Admit that YOU did not follow California Rules of Professional Conduct Rule 3-300 when entering into INVESTMENT PROPERTY 2 with PLAINTIFF.

REQUEST FOR ADMISSION NO. 31

Admit that YOU did not enter into a fair and reasonable transaction with PLAINTIFF, required by California Rules of Professional Conduct Rule 3-300 when entering into an investment in FEEL Karaoke with PLAINTIFF because YOU continue and refuse to reimburse PLAINTIFF of her contributions.

REQUEST FOR ADMISSION NO. 32

Admit that YOU did not enter into a fair and reasonable transaction with PLAINTIFF, required by California Rules of Professional Conduct Rule 3-300 when entering into INVESTMENT PROPERTY 1 with PLAINTIFF because YOU continue and refuse to reimburse PLAINTIFF of her contributions.

REQUEST FOR ADMISSION NO. 33

Admit that YOU did not enter into a fair and reasonable transaction with PLAINTIFF, required by California Rules of Professional Conduct Rule 3-300 when entering into INVESTMENT PROPERTY 2 with PLAINTIFF because YOU continue and refuse to reimburse PLAINTIFF of her contributions.

REQUEST FOR ADMISSION NO. 34

Admit that YOU are the owner, officer, and/or alter-ego of Defendant LOSB.

REQUEST FOR ADMISSION NO. 35

Admit that YOU have diverted funds and other assets of Defendant LOSB to other than corporate uses.

REQUEST FOR ADMISSION NO. 36

Admit that YOU treated the assets of Defendant LOSB as YOUR own.

REQUEST FOR ADMISSION NO. 37

Admit that YOU failed to maintain legitimate corporate minutes of Defendant LOSB.

REQUEST FOR ADMISSION NO. 38

Admit that YOU failed to maintain accurate financial records of Defendant LOSB.

REQUEST FOR ADMISSION NO. 39

Admit that YOU have and will divert assets from Defendant LOSB to the detriment of PLAINTIFF.

REQUEST FOR ADMISSION NO. 40

Admit that YOU used Defendant LOSB as a mere shell, instrumentality, or conduit.

REQUEST FOR ADMISSION NO. 41

Admit that YOU are insolvent and are unable to satisfy any judgment against YOU.

REQUEST FOR ADMISSION NO. 42

Admit that YOU are personally liable for the acts of Defendant LOSB as its alter ego.

(Decl. Koletsky, Ex. A (“Request for Admissions”).)

2.       Admittance of These Requests

On April 21, 2022, Plaintiff propounded Requests for Admission on Defendant. (RFAs Motion, p. 4:11–12.) Although a series of extensions were granted, no responses have been served. (RFAs Motion, p. 5:4–6; Decl. Koletsky, ¶ 8.)

Two days before today’s hearing, Defendant served responses to the Requests for Admission. 

Therefore, the Court DENIES the request to deem the Requests for Admission admitted as MOOT.

3.       Sanctions

Plaintiff requests sanctions against Defendant.

As Defendant has failed to serve a timely response to requests for admission, which necessitated this motion, the Court must impose a monetary sanction on Defendant. (Code Civ. Proc., § 2033.280, subd. (c).)

Plaintiff’s Counsel declares that they spent three hours preparing the RFAs Motion, anticipate spending another three hours on the opposition and reply, charge an hourly rate of $250 per hour, and incurred a filing fee of $61.65. (Decl. Koletsky, ¶ 9.)

The Court AWARDS monetary sanctions for Plaintiff and against Defendant in the amount of $811.65.

II.        FROGs Motion, SROGs Motion, and RPDs Motion

A.      Legal Standard

California Code of Civil Procedure requires a response from the party to whom form interrogatories, special interrogatories, and demand requests are propounded within 30 days after service of the requests, unless the time is extended by agreement of the parties. (Code Civ. Proc., §§ 2030.260, subd. (a), 2030.270, subd. (a), 2031.260, subd. (a), 2031.270, subd. (a).) If a party fails to serve timely responses, "the party making the demand may move for an order compelling response to the demand.” (Code Civ. Proc., § 2030.300, subd. (b).) By failing to respond, the offending party waives any objection to the demand. (Code Civ. Proc., § 2030.290, subd. (a).)

For a motion to compel, all a propounding party must show is that it properly served its discovery requests, that the time to respond has expired, and that the party to whom the requests were directed failed to provide a timely response. (See Leach v. Super. Ct. (1980) 111 Cal.App.3d 902, 905, 906.) Indeed, "[o]nce [a party] 'fail[ed] to serve a timely response,' the trial court had authority to grant [opposing party's] motion to compel responses." (Sinaiko Healthcare Counseling, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 405.)

B.      Discussion

1.       Form Interrogatories Propounded

Plaintiff propounded the following form interrogatories (FROGs) upon Defendant: 1.1, 2.1 through 2.13, 4.1 through 4.2, 12.1 through 12.7, 13.1 through 13.2, 14.1 through 14.2, 15.1, 17.1, and 50.1 through 50.6.  (Decl. Koletsky, Ex. A (“Form Interrogatories”).)

2.       Special Interrogatories Propounded

The following special interrogatories (SROGs) have been propounded upon Defendant:

SPECIAL INTERROGATORY NO. 1:

State all facts that pertain to YOUR investment of FEEL karaoke bar with PLAINTIFF and DEFENDANTS.

SPECIAL INTERROGATORY NO. 2:

IDENTIFY all PERSONS with knowledge of YOU and the investment of FEEL karaoke are with PLAINTIFF and DEFENDANTS.

SPECIAL INTERROGATORY NO. 3:

IDENTIFY all DOCUMENTS of YOUR investment of FEEL karaoke bar with PLAINTIFF and DEFENDANTS.

SPECIAL INTERROGATORY NO. 4:

State all facts that pertain to PLAINTIFF providing YOU with checks for the construction fixtures for FEEL karaoke bar.

SPECIAL INTERROGATORY NO. 5:

IDENTIFY all PERSONS with knowledge of PLAINTIFF providing YOU with checks for the construction fixtures for FEEL karaoke bar.

SPECIAL INTERROGATORY NO. 6:

Identify all DOCUMENTS of PLAINTIFF's checks provided to YOU for the construction fixtures for FEEL karaoke bar.

SPECIAL INTERROGATORY NO. 7:

State all facts that pertain to PLAINTIFF providing YOU with checks for the lease deposit for FEEL karaoke bar.

SPECIAL INTERROGATORY NO. 8:

IDENTIFY all PERSONS with knowledge of PLAINTIFF providing YOU with checks for the lease deposit for FEEL karaoke bar.

SPECIAL INTERROGATORY NO. 9:

Identify all DOCUMENTS of PLAINTIFF's checks provided to YOU for the lease deposit for FEEL karaoke bar.

SPECIAL INTERROGATORY NO. 10:

State all facts that pertain to PLAINTIFF providing YOU with checks for the Alcohol Beverage Licenses for FEEL karaoke bar.

SPECIAL INTERROGATORY NO. 11:

IDENTIFY all PERSONS with knowledge of PLAINTIFF providing YOU with checks for the Alcohol Beverage Licenses for FEEL karaoke bars

SPECIAL INTERROGATORY NO. 12:

Identify all DOCUMENTS of PLAINTIFF's checks provided to YOU for the Alcohol Beverage Licenses for FEEL karaoke bar.

SPECIAL INTERROGATORY NO. 13:

State all facts that pertain to PLAINTIFF providing YOU with checks for the conditional use permit for FEEL karaoke bar.

SPECIAL INTERROGATORY NO. 14:

IDENTIFY all PERSONS with knowledge of PLAINTIFF providing YOU with checks for the conditional use permit for FEEL karaoke bar.

SPECIAL INTERROGATORY NO. 15:

Identify all DOCUMENTS of PLAINTIFF providing YOU with checks for the conditional use permit for FEEL karaoke bar.

SPECIAL INTERROGATORY NO. 16:

State all facts that pertain to YOUR investment of INVESTMENT PROPERTY 1.

SPECIAL INTERROGATORY NO. 17:

IDENTIFY all PERSONS with knowledge of YOUR investment of INVESTMENT PROPERTY 1.

SPECIAL INTERROGATORY NO. 18:

IDENTIFY all DOCUMENTS of YOUR investment of INVESTMENT PROPERTY 1.

SPECIAL INTERROGATORY NO. 19:

State all facts that pertain to PLAINTIFF providing YOU with check towards the purchase price of $55,000 for INVESTMENT PROPERTY 1.

SPECIAL INTERROGATORY NO. 20:

IDENTIFY all PERSONS with knowledge of PLAINTIFF providing YOU with check towards the purchase price of $55,000 for INVESTMENT PROPERTY 1.

SPECIAL INTERROGATORY NO. 21:

Identify all DOCUMENTS of PLAINTIFF providing YOU with check towards the purchase price of $55,000 for INVESTMENT PROPERTY 1.

SPECIAL INTERROGATORY NO. 22:

State all facts that pertain to YOU representing to PLAINTIFF that after opening escrow on INVESTMENT PROPERTY 1, YOU would find a new buyer and transfer the property at a higher price.

SPECIAL INTERROGATORY NO. 23:

IDENTIFY all PERSONS with knowledge of YOU representing to PLAINTIFF that after opening escrow on INVESTMENT PROPERTY 1, YOU would find a new buyer and transfer the property at a higher price.

SPECIAL INTERROGATORY NO. 24:

Identify all DOCUMENTS of YOU representing to PLAINTIFF that after opening escrow on INVESTMENT PROPERTY 1, YOU would find a new buyer and transfer the property at a higher price.

SPECIAL INTERROGATORY NO. 25:

State all facts that pertain to YOU representing to PLAINTIFF that after opening escrow on INVESTMENT PROPERTY 1 and finding a new buyer for the property at a higher price, YOU would return PLAINTIFF'S investment with interest.

SPECIAL INTERROGATORY NO. 26:

IDENTIFY all PERSONS with knowledge of YOU representing to PLAINTIFF that after opening escrow on INVESTMENT PROPERTY 1 and finding a new buyer for the property at a higher price, YOU would return PLAINTIFF'S investment with interest.

SPECIAL INTERROGATORY NO. 27:

Identify all DOCUMENTS of YOU representing to PLAINTIFF that after opening escrow on INVESTMENT PROPERTY 1 and finding a new buyer for the property at a higher price, YOU would return PLAINTIFF'S investment with interest.

SPECIAL INTERROGATORY NO. 28:

State all facts that pertain to YOU representing to PLAINTIFF that if the investment on the PROPERTY did not go through, PLAINTIFF would be able to instead set up a school at the location of INVESTMENT PROPERTY 1.

SPECIAL INTERROGATORY NO. 29:

IDENTIFY all PERSONS with knowledge of YOU representing to PLAINTIFF that if the investment on the PROPERTY did not go through, PLAINTIFF would be able to instead set up a school at the location of the PROPERTY.

SPECIAL INTERROGATORY NO. 30:

Identify all DOCUMENTS of YOU representing to PLAINTIFF that if the investment on the PROPERTY did not go through, PLAINTIFF would be able to instead set up a school at the location of the PROPERTY.

SPECIAL INTERROGATORY NO. 31:

State all facts that pertain to YOUR investment of INVESTMENT PROPERTY 2.

SPECIAL INTERROGATORY NO. 32:

IDENTIFY all PERSONS with knowledge of YOUR INVESTMENT PROPERTY 2.

SPECIAL INTERROGATORY NO. 33:

IDENTIFY all DOCUMENTS of YOUR investment of INVESTMENT PROPERTY 2.

SPECIAL INTERROGATORY NO. 34:

State all facts that pertain to PLAINTIFF providing YOU with check for $89,000 to T & S services to be used towards the down payment of the INVESTMENT PROPERTY 2.

SPECIAL INTERROGATORY NO. 35:

IDENTIFY all PERSONS with knowledge of PLAINTIFF providing YOU with check for $89,000 to T & S services to be used towards the down payment of the INVESTMENT PROPERTY 2.

SPECIAL INTERROGATORY NO. 36:

Identify all DOCUMENTS of PLAINTIFF providing YOU with check for $89,000 to T & S services to be used towards the down payment of the INVESTMENT PROPERTY 2.

SPECIAL INTERROGATORY NO. 37:

State all facts that pertain YOU [sic] through an agreement specifically provided that T & S Services through escrow shall reimburse PLAINTIFF $89,000 plus 30% of the net profit obtained from the subsequent sale of the INVESTMENT PROPERTY 2.

SPECIAL INTERROGATORY NO. 38:

IDENTIFY all PERSONS with knowledge of YOU through an agreement specifically provided that T & S Services through escrow shall reimburse PLAINTIFF $89,000 plus 30% of the net profit obtained from the subsequent sale of the INVESTMENT PROPERTY 2.

SPECIAL INTERROGATORY NO. 39:

Identify all DOCUMENTS of YOU through an agreement specifically provided that T & S Services through escrow shall reimburse PLAINTIFF $89,000 plus 30% of the net profit obtained from the subsequent sale of the INVESTMENT PROPERTY 2.

SPECIAL INTERROGATORY NO. 40:

Identify all DOCUMENTS of YOU through an agreement specifically provided that T & S Services through escrow shall reimburse PLAINTIFF $89,000 plus 30% of the net profit obtained from the subsequent sale of the INVESTMENT PROPERTY 2.

SPECIAL INTERROGATORY NO. 41:

State all facts that pertain YOU representing to PLAINTIFF that since a previous client of YOURS could not pay the mortgage on INVESTMENT PROPERTY 2, YOU would be able to purchase the property at a lower price and subsequently sell at an escalated price in order to make a profit.

SPECIAL INTERROGATORY NO. 42:

IDENTIFY all PERSONS with knowledge of YOU representing to PLAINTIFF that since a previous client of YOURS could not pay the mortgage on INVESTMENT PROPERTY 2, YOU would be able to purchase the property at a lower price and subsequently sell at an escalated price in order to make a profit.

SPECIAL INTERROGATORY NO. 43:

Identify all DOCUMENTS of YOU representing to PLAINTIFF that since a previous client of YOURS could not pay the mortgage on INVESTMENT PROPERTY 2, YOU would be able to purchase the property at a lower price and subsequently sell at an escalated price in order to make a profit.

SPECIAL INTERROGATORY NO. 44:

State all facts that pertain YOU waiting for YOUR own individual appraisers to appraise the value of the property before a subsequent sale may take place, as the bank's appraisals were too low.

SPECIAL INTERROGATORY NO. 45:

IDENTIFY all PERSONS with knowledge of YOU waiting for YOUR own individual appraisers to appraise the value of the property before a subsequent sale may take place, as the bank's appraisals were too low.

SPECIAL INTERROGATORY NO. 46:

Identify all DOCUMENTS of YOU waiting for YOUR own individual appraisers to appraise the value of the property before a subsequent sale may take place, as the bank's appraisals were too low.

SPECIAL INTERROGATORY NO. 47:

State all facts that pertain to YOUR investment of rooftop restaurants with PLAINTIFF and DEFENDANTS.

SPECIAL INTERROGATORY NO. 48:

IDENTIFY all PERSONS with knowledge of YOUR investment of rooftop restaurants with PLAINTIFF and DEFENDANTS.

SPECIAL INTERROGATORY NO. 49:

IDENTIFY all DOCUMENTS of YOUR investment of rooftop restaurants with PLAINTIFF and DEFENDANTS.

SPECIAL INTERROGATORY NO. 50

State all facts that pertain to PLAINTIFF providing YOU with check for $50,000 cashier check to be used towards the investment of the rooftop restaurant(s).

SPECIAL INTERROGATORY NO. 51

IDENTIFY all PERSONS with knowledge of PLAINTIFF providing YOU with check for $50,000 cashier check to be used towards the investment of the rooftop restaurant(s).

SPECIAL INTERROGATORY NO. 52

Identify all DOCUMENTS of PLAINTIFF providing YOU with check for $50,000 cashier check to be used toward the investment of the rooftop restaurant(s).

(Decl. Koletsky, Ex. A (“Special Interrogatories”).)

3.       Requests for Production of Documents Propounded

The following requests for production of documents (RPDs) have been propounded upon Defendant:

REQUEST FOR PRODUCTION NO. 1:

Please produce all DOCUMENTS identified in YOUR responses to the Special Interrogatories, Set One, served concurrently with these requests.

REQUEST FOR PRODUCTION NO. 2:

Please produce all DOCUMENTS YOU referenced to produce YOUR responses to the Special Interrogatories, Set One, served concurrently with these requests.

REQUEST FOR PRODUCTION NO. 3:

Please produce any and all DOCUMENTS RELATING TO YOUR investment of FEEL karaoke bar with PLAINTIFF and DEFENDANTS.

REQUEST FOR PRODUCTION NO. 4:

Please produce any and all DOCUMENTS RELATING TO YOUR experience in setting up similar style restaurant such as the FEEL karaoke bar.

REQUEST FOR PRODUCTION NO. 5:

Please produce any and all DOCUMENTS RELATING TO PLAINTIFF’S checks provided to YOU for the construction [of] fixtures for FEEL karaoke bar.

REQUEST FOR PRODUCTION NO. 6:

Please produce any and all DOCUMENTS RELATING TO PLAINTIFF’S checks provided to YOU for the lease deposit for FEEL karaoke bar.

REQUEST FOR PRODUCTION NO. 7:

Please produce any and all DOCUMENTS RELATING TO PLAINTIFF’S checks provided to YOU for the Alcohol Beverage Licenses for FEEL karaoke bar.

REQUEST FOR PRODUCTION NO. 8:

Please produce any and all DOCUMENTS RELATING TO PLAINTIFF providing YOU with checks for the conditional use permit for FEEL karaoke bar.

REQUEST FOR PRODUCTION NO. 9:

Please produce any and all DOCUMENTS RELATING TO YOUR investment of INVESTMENT PROPERTY 1.

REQUEST FOR PRODUCTION NO. 10:

Please produce any and all DOCUMENTS RELATING TO PLAINTIFF providing YOU with check towards the purchase price of $55,000 for INVESTMENT PROPERTY 1.

REQUEST FOR PRODUCTION NO. 11:

Please produce any and all DOCUMENTS RELATING TO YOU representing to Plaintiff that after opening escrow on INVESTMENT PROPERTY 1, YOU would find a new buyer and transfer the property at a higher price.

REQUEST FOR PRODUCTION NO. 12:

Please produce any and all DOCUMENTS RELATING TO YOU representing to PLAINTIFF that after opening escrow on INVESTMENT PROPERTY 1 and finding a new buyer for the property at a higher price, YOU would return Plaintiff’s investment with interest.

REQUEST FOR PRODUCTION NO. 13:

Please produce any and all DOCUMENTS RELATING TO YOU representing to PLAINTIFF that if the investment on INVESTMENT PROPERTY 1 did not go through, PLAINTIFF would be able to instead set up a school at the location of INVESTMENT PROPERTY 1.

REQUEST FOR PRODUCTION NO. 14:

Please produce any and all DOCUMENTS RELATING TO YOUR investment of INVESTMENT PROPERTY 2.

REQUEST FOR PRODUCTION NO. 15:

Please produce any and all DOCUMENTS RELATING TO PLAINTIFF providing YOU with check for $89,00 to T & S services to be used towards the down payment of the INVESTMENT PROPERTY 2.

REQUEST FOR PRODUCTION NO. 16:

Please produce any and all DOCUMENTS RELAING TO YOU through an agreement, specifically providing that T & S Services through escrow, shall reimburse PLAINTIFF $89,000 plus 30% of the net profit obtained from the subsequent sale of the INVESTMENT Property 2.

REQUEST FOR PRODUCTION NO. 17:

Please produce any and all DOCUMENTS RELATING TO YOU representing to PLAINTIFF that since a previous client of YOURS could not pay the mortgage on INVESTMENT PROPERTY 2, YOU would be able to purchase the property at a lower price and subsequently sell at an escalated price in order to make a profit.

REQUEST FOR PRODUCTION NO. 18:

Please produce any and all DOCUMENTS RELATING TO YOU waiting for YOUR own individual appraisers to appraise the value of the property before a subsequent sale may take place, as the bank’s appraisals were too low.

REQUEST FOR PRODUCTION NO. 19:

Please produce any and all DOCUMENTS RELATING TO YOUR investment of rooftop restaurants with PLAINTIFF and DEFENDANTS.

REQUEST FOR PRODUCTION NO. 20:

Please produce any and all DOCUMENTS RELATING TO PLAINTIFF providing YOU with check for $50,000 cashier check to be used towards the investment of the rooftop restaurant(s).

(Decl. Koletsky, Ex. A (“Request for Production of Documents”).)

4.       Analysis

On April 21, 2022, Plaintiff propounded Requests for Admission on Defendant. (FROGs Motion, p. 4:14–15; SROGs Motion, p. 4:14–15; RPDs Motion, p. 3:20.)  

Although a series of extensions were granted, no responses have been served to the SROGs and the Requests for Production of Documents. (FROGs Motion, p. 5:8–9; SROGs Motion, p. 5:8–9; RPDs Motion, p. 3:22–25; Decl. Koletsky, ¶ 8.)  However, at the hearing on these motions, both counsel agreed that Defendant had filed some responses to the form interrogatories.

The Court finds that Defendant has failed to timely respond to the SROGs and RPDs.

The Court GRANTS the SROGs Motion and RPDs Motion. Defendant shall have 14 days from the issuance of this Order to serve his responses to the SROGs, and RPDs listed above.

5.       Sanctions

Plaintiff requests sanctions against Defendant.

Defendant has failed to serve a timely response to the FROGs, SROGs, and RPDs. The Court does not have evidence before it that would indicate there is substantial justification or other circumstances that would make the imposition of a sanction unjust. Thus, the Court must impose a monetary sanction on Defendant. (Code Civ. Proc., §§ 2030.290, subd. (c), 2031.300, subd. (c).)

Normally, the Court would impose sanctions; particularly because Defendant, even though he is technically representing himself, is actually a licensed California attorney.  In fact, the address listed on the answer is defendant Barkin’s Law Office address, and he has listed his email as lawofficesofsjbarkin@gmail.com.  (See Answer, filed 5/3/22.)  Attorney Barkin should know better.

However, in this case, the declarations asking for attorney's fees and accompanying each motion are identical.  The relevant paragraph states:

“Due to Defendant's failure to comply with her discovery obligations, Plaintiff has incurred, and will incur, reasonable attorneys' fees in connection with this motion and hearing as follows: 3 hours of attorney time spent preparing the motion and supporting documentation; 3 hours anticipated time reviewing the opposition and drafting a reply to this motion, for a total of 6 hours. (I anticipate our office will spend 3 hours preparing for the court date and attending the hearing on this motion). My billing rate is $250 per hour, which is a reasonable rate for a case involving Fraud. In addition, the filing fee for this motion was $61.65. Plaintiff therefore requests $2,311.65 in monetary sanctions against Defendant.”  (See each Koletsky Declaration, ¶9.)

The Court does not believe the declarations submitted by Plaintiff’s counsel; it is inconceivable that counsel would have spent an exactly $2,311.65 in attorney's fees on each of three different motions.  Rather, it appears that Plaintiff’s counsel has picked a figure for sanctions out-of-the-air – believing either that the figure was “reasonable” or that the Court would not notice.

        The Court did notice this fact and finds that the amount claimed is not reasonable.

“If . . . the Court were required to award a reasonable fee when an outrageously unreasonable one has been asked for, claimants would be encouraged to make unreasonable demands, knowing that the only unfavorable consequence of such misconduct would be reduction of their fee to what they should have asked in the first place. To discourage such greed, a severer reaction is needful.”  (Serrano v. Unruh (1982) 32 Cal.3d 621, 635 [cleaned up].)   “A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.” (Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 990; Ketchum v. Moses (2001) 24 Cal.4th 1122, 1137; Serrano v. Unruh (1982) 32 Cal.3d 621, 635.)

The Court declines to award attorney's fees sanctions.  Instead, the Court will simply award the filing fee for each of these three motions.  The Court AWARDS monetary sanctions for Plaintiff and against Defendant in the amount of $184.95 ($61.65 x 3.)

III.     Conclusion

Plaintiff’s RFAs Motion and FROGs Motion are DENIED as MOOT.  Plaintiff’s SROGs Motion, and RPDs Motion are both GRANTED. The RFAs are DEEMED ADMITTED. Defendant shall have 14 days from the issuance of this Order to serve his responses to the SROGs and RPDs listed above.

Monetary sanctions are AWARDED for Plaintiff and against Defendant Steven Barkin in the total amount of $811.60.