Judge: Michael P. Linfield, Case: 22STLC02420, Date: 2023-05-01 Tentative Ruling
Case Number: 22STLC02420 Hearing Date: May 1, 2023 Dept: 34
SUBJECT: Motion to Compel Further Responses to
Form Interrogatories, Request for Production of Documents, Set No. 1 and
Special Interrogatories [and] Request for Order Awarding Monetary Sanctions
Moving Party: Defendant/Cross-Complainant
David Moezinia
Resp. Party: Plaintiff/Cross-Defendant Chavez General
Construction, Inc. and Cross-Defendant Salvador Chavez Gonzalez
SUBJECT: Motion for Leave to File a First
Amended Cross-Complaint
Moving Party: Defendant/Cross-Complainant
David Moezinia
Resp. Party: None
The Motion to Compel is DENIED.
Monetary sanctions are AWARDED in favor of
Chavez General Construction, Inc. and against David Moezinia and his counsel,
jointly and severally, in the amount of $3,500.00.
The Motion for Leave is DENIED without prejudice.
PRELIMINARY NOTE:
For clarity, the
Court avoids using the terms “Plaintiff,” “Defendant,” “Cross-Complainant,” and
“Cross-Defendant.”
David Moezinia’s
Motion to Compel lacks a separate statement, improperly combines three
different discovery issues, and lists more than 100 pages of distinct exhibits
as “Exhibit A.” Future filings must comply with the Code of Civil Procedure and
the California Rules of Court. In addition, the Court expects counsel to
separate exhibits so that multiple different exhibits are not placed together
without separate exhibit markings. Lastly, the Court notes that Exh. A – the
discovery in dispute – has not even been authenticated. The Court expects counsel to act more professionally
in the future.
BACKGROUND:
On April 8, 2022, Chavez General Construction, Inc. filed
its Verified Complaint against David Moezinia on causes of action of breach of
contract, common counts, and mechanics lien foreclosure.
On May 20, 2022, Chavez General Construction, Inc. filed
its Amendment to Complaint.
On June 23, 2022, David Moezinia filed his Verified
Answer to the Complaint.
On June 23, 2022, David Moezinia filed his
Cross-Complaint against Chavez General Construction, Inc., Salvador Chavez
Gonzalez, and Hudson Insurance Company.
On July 8, 2022, Chavez General Construction, Inc. filed
its Amendment to Complaint.
On July 21, 2022, Hudson Insurance Company filed its
Answer to David Moezinia’s Cross-Complaint.
On July 26, 2022, Hudson Insurance Company filed its
Cross-Complaint against David Moezinia and Chavez General Construction.
On September 20, 2022, Chavez General Construction, Inc.
and Salvador Chavez Gonzalez filed their Joint Verified Answer to Cross-Complaint
of David Moezinia.
On September 20, 2022, Chavez General Construction, Inc.
filed its Answer to Cross-Complaint of Hudson Insurance Company.
On October 11, 2022, David Moezinia filed his Answer to
Cross-Complaint of Hudson Insurance Company.
On March 15, 2023, David Moezinia filed: (1) Motion to
Compel Further Responses to Form Interrogatories, Request for Production of
Documents, Set No. 1 and Special Interrogatories [and] Request for Order
Awarding Monetary Sanctions (“Motion to Compel”); and (2) Motion for Leave to
File a First Amended Cross-Complaint (“Motion for Leave”). David Moezinia filed
Declaration of Steven S. Loeb in support of the Motion to Compel and Proposed
Order in support of the Motion for Leave.
On April 17, 2023, Chavez General Construction, Inc.
filed its Opposition to Motion to Compel [and] Counter Request for Sanctions
(“Opposition”). In support of its Opposition, Chavez General Construction, Inc.
filed its Separate Statement.
On April 24, 2023, David Moezinia filed his Reply.
No opposition or other response has been filed regarding
the Motion for Leave.
ANALYSIS:
I.
Motion
to Compel
A. Legal Standard
On receipt of a
response to form interrogatories, special interrogatories, and/or demand
requests, the propounding and/or demanding party “may move for an order
compelling further response” if: (1) the response is evasive or incomplete; (2)
the representation of inability to comply is inadequate, incomplete, or
evasive; or (3) the objection is without merit or too general. (Code Civ.
Proc., §§ 2030.300, subd. (a), 2031.310, subd. (a).)¿¿¿
“Unless notice of
this motion is 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 demanding party and the responding party have agreed in writing, the
demanding party waives any right to compel a further response” to the demands
or interrogatories. (Code Civ. Proc., §§ 2030.300, subd. (c), 2031.310, subd.
(c).)
B. Discussion
1.
Form
Interrogatories Propounded
David Moezinia propounded form interrogatories (“FROGs”) on Chavez
General Construction, Inc. (Motion to Compel, Exh. A.) The sole form interrogatory
at issue is FROG No. 304.1.
2.
Special
Interrogatories Propounded
David Moezinia propounded special interrogatories (“SROGs”) on Chavez
General Construction, Inc. (Motion to Compel, Exh. A.) The following SROGs
remain at issue.
Special Interrogatory No. 25
Identify the addresses for all other roof replacements that you have
contracted for in the past five (5) years including but not limited to
demolition and/or installation.
Special Interrogatory No. 26
For any location identified in the preceding Special Interrogatory, did
those projects involve the installation of asphalt roof shingles?
3.
RPDs
Propounded
David Moezinia propounded the following requests for production of
documents (“RPDs”) on Chavez General Construction, Inc. (Motion to Compel, Exh.
A.) The following RPDs remain at issue. (The Court notes that an RPD No. 25 is
also listed as being at issue, but it appears no such RPD exists.)
REQUEST FOR PRODUCTION NO.: 20
Copies of any and all corporate documents including but not limited to
corporate Articles, Minutes, Bylaws and Share Certificate from the date of
incorporation until the date of request.
REQUEST FOR PRODUCTION NO.: 21
Copies of any and all documents which evidence the capitalization of
the corporation.
REQUEST FOR PRODUCTION NO.: 22
Copies of any and all documents evidencing any loans made to the
corporation from the date of incorporation until the date of your response.
REQUEST FOR PRODUCTION NO.: 23
Copies of any and all bank records including statements and checks for
any and all corporate bank accounts from the date of incorporation until the
date of your response.
REQUEST FOR PRODUCTION NO.: 24
Copies of bank statements where any and all checks given to you by
Moezinia for the Fulton Project were deposited.
4.
The
Parties’ Arguments
David Moezinia moves the Court to compel Chavez General Construction,
Inc. to provide further responses to the FROG, SROGs, and RPDs listed above.
(Motion to Compel, p. 7:25–27.) He argues that these issues are pertinent to
the litigation. (Id. at 9–10.)
Chavez General Construction, Inc. opposes the Motion, arguing: (1) that
there are procedural issues, including that the Motion did not have an informal
discovery conference, combined three different discovery requests as a single
motion, and did not include separate statement; (2) that Chavez General
Construction, Inc. fully responded to FROG No. 304.1; (3) that Chavez General
Construction, Inc. properly objected to SROG Nos. 25 and 26; and (4) that
Chavez General Construction, Inc. properly objected to RPD Nos. 20–24.
(Opposition, pp. 3:19–22, 4:21–23, 6:1–3, 7:1–3.)
In his Reply, David Moezinia argues: (1) that there is no informal
discovery conference requirement; (2) that Chavez General Construction, Inc.
has unilaterally decided what proper responses are to FROGs; (3) that this case
is about a construction work using unsupervised, unlicensed, non-employees; (4)
that David Moezinia has alleged alter ego and is entitled to do discovery to validate
his claim; (5) that the objections to the RPDs lack merit; and (6) that the
right to privacy argument lacks merit. (Reply, pp. 2:1–2, 2:16–20, 3:25–28,
4:1–2, 4:20–22, 5:10–11, 7:20.)
5.
Discussion
The Court considers each of the arguments made. They are not addressed
in any particular order.
(1)
An
informal discovery conference is not required in Department 34 for non-lemon
law cases. However, informal discovery conferences are encouraged.
(2)
As
mentioned in the preliminary note, the Court agrees that the Motion is
procedurally deficient. However, for the sake of judicial economy, the Court will
reach the merits of the Motion.
(3)
Some of
arguments made in the Reply (e.g., that allegations are made about alter ego)
are irrelevant to the analysis regarding discovery.
(4)
The
Court finds that Chavez General Construction, Inc.’s response to FROG No. 304.1
is sufficient. (Separate Statement, p. 4:12–18.)
(5)
The
Court finds that Chavez General Construction, Inc.’s objections to SROG Nos. 25
and 26 are warranted. (Separate Statement, pp. 6:8–9, 7:8–9.) These SROGs are
overbroad.
(6)
The
Court finds that Chavez General Construction, Inc.’s response to RPD No. 20 is
sufficient and that the objections to RPD Nos. 21–24 are warranted. (Separate Statement,
pp. 8:5–6, 10:27–28, 11:1, 13:17–19, 16:8–11, 18:26–28, 19:1–2.) Specifically,
David Moezinia has not explained what further documents are needed in response
to RPD No. 20. Further, the Court agrees with the argument that RPD Nos. 21–24
are overboard and violate Chavez General Construction, Inc.’s constitutional
right to privacy. (Cal.
Const., Art. I, § 1.) David Moezinia has not made a sufficient
showing for the Court to find that he meets either the balancing test set forth
in Hill v. National Collegiate Athletic Association (1994) 7 Cal.4th 1, 35 or the compelling
interest test. (See Williams v.
Super. Ct. (2017) 3 Cal.5th 531,
552.)
In summary, David Moezinia has not shown that he is entitled to any
further discovery.
The Court DENIES the Motion.
6.
Sanctions
a. Legal
Standard
¿
The court shall impose
monetary sanctions against any party, person, or attorney who unsuccessfully
makes or opposes a motion to compel further interrogatories and/or a motion to
compel further production of documents, unless the Court finds that the one
subject to 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).)
¿
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, 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., § 2033.290, subd.
(d).)
b. Discussion
¿
Both David Moezinia
and Chavez General Construction, Inc. requested sanctions.
The Court has denied David Moezinia’s Motion.
Monetary sanctions would not be appropriate against Chavez General
Construction, Inc., who has successfully opposed the Motion. David Moezinia’s
Request for Sanctions is DENIED.
The Court does not
find that David Moezinia acted with substantial justification or that other
circumstances make the imposition of a monetary sanction unjust. Thus, the
Court is required to impose a monetary sanction on David Moezinia and his
Counsel.
It is not uncommon for courts to compare
opposing counsel’s fees to help determine whether the moving party’s fees are
reasonable. That is because a “comparative analysis of each side’s respective
litigation costs may be a useful check on the reasonableness of any fee
request.”¿¿(Mountjoy v. Bank of Am., N.A.¿(2016) 245 Cal.App.4th 266,
273, 281, quoting¿Donahue v. Donahue¿(2010) 182 Cal.App.4th 259,
272.)¿“[T]here is one particularly good indicator of how much time is necessary
[for the purpose of determining reasonableness of attorneys’ fees] . . . and
that is how much time the other side’s lawyers spent . . . [S]uch a comparison is a useful guide in evaluating the appropriateness
of time claimed. If the time claimed by the prevailing party is of a
substantially greater magnitude than what the other side spent, that often
indicates that too much time is claimed. Litigation has something of the tennis
game, something of war, to it; if one side hits the ball, or shoots heavy
artillery, the other side necessarily spends time hitting the ball or shooting
heavy artillery back.” (Democratic Party of Washington State v. Reed¿(9th¿Cir.
2004) 388 F.3d 1281, 1287.)
Here, Chavez General
Construction, Inc. requested $7,000.00, and David Moezinia requested $2,860.00.
The Court finds that $7,000.00 to oppose three discovery motions is too
high. Among other things, the Court does
not award attorney's fees for meet-and-confer efforts; further the hearing on
this matter will probably consume no more than 15 minutes of counsel’s time,
not the 2 hours requested. (See Opposition,
Counts Declaration, ¶ 4.)
However, by submitting his own request for
$2,860.00 in sanctions, Moezina admits that at least this amount is reasonable.
Further, the Court notes that Chavez General has complied with the rules of Court,
and inter alia, has submitted a separate statement.
Monetary sanctions are AWARDED in favor of
Chavez General Construction, Inc. and against David Moezinia and his counsel,
jointly and severally, in the amount of $3,500.00 (7 hours @ $500/hour).
C.
Conclusion
The Motion to Compel is DENIED.
Monetary sanctions are AWARDED in favor of
Chavez General Construction, Inc. and against David Moezinia and his counsel,
jointly and severally, in the amount of $3,500.00.
II.
Motion
for Leave
A. Legal Standard
The court may, in furtherance of justice and
on any proper terms, allow a party to amend any pleading. (Code Civ. Proc., §
473, subd. (a)(1); Branick v. Downey Savings & Loan Association
(2006) 39 Cal.4th 235, 242.)
The court may also, in its discretion and
after notice to the adverse party, allow, upon any terms as may be just, an
amendment to any pleading or proceeding in other particulars; and may upon like
terms allow an answer to be made after the time limited by this code. (Code
Civ. Proc., § 473, subd. (a); Branick, supra, 39 Cal.4th at
242.)
“This discretion should be exercised liberally
in favor of amendments, for judicial policy favors resolution of all disputed
matters in the same lawsuit.” (Kittredge Sports Co. v. Super. Ct. (1989)
213 Cal.App.3d 1045, 1047.) Leave to amend is thus liberally granted, provided
there is no statute of limitations concern. (Kolani v. Gluska (1998) 64
Cal.App.4th 402, 411.) The Court may deny the plaintiff’s leave to amend if
there is prejudice to the opposing party, such as delay in trial, loss of
critical evidence, or added costs of preparation. (Id.)
Under California Rules of Court, rule 3.1324,
a motion to amend a pleading before trial must (1) include a copy of the
proposed amendment or amended pleading, which must be serially numbered to
differentiate it from previous pleadings or amendments; (2) state what
allegations in the previous pleading are proposed to be deleted, if any, and
where, by page, paragraph and line number, the deleted allegations are located;
and (3) state what allegations are proposed to be added to the previous
pleading, if any, and where, by page, paragraph, and line number, the
additional allegations are located. (Cal. Rules of Court, rule
3.1324(a).) A separate supporting declaration specifying (1) the effect
of the amendment; (2) why the amendment is necessary and proper; (3) when the
facts giving rise to the amended allegations were discovered; and (4) the
reason why the request for amendment was not made earlier must accompany the
motion. (Id., rule 3.1324(b).)
B. Discussion
1.
Rules
of Court
David Moezinia has not complied with California Rules of Court, rule
3.1324.
His Counsel did: (1) submit a copy of the proposed amended pleading;
and (2) submit a declaration that, more or less, describes the effect of the
amendment (making new allegations regarding usage of unlicensed independent
contractors), why the amendment is necessary and proper (it is potential
evidence for the claims in the Cross-Complaint), when the facts giving rise to
the amendments were discovered (after receiving discovery responses), and the
reason why the request for amendment was not made earlier (the discovery
requests were propounded in December 2022).
However, the submitted declaration does not include a list of the items
that would be deleted and added, with references to where those deletions and
additions are located.
C. Conclusion
The Motion for Leave is DENIED without prejudice.