Judge Michael Small, Case Number: 23STCV21161, Date: 2024-11-18 Tentative Ruling

Judge: Michael Small, Case: 23STCV21161, Date: 2024-11-18 Tentative Ruling

Case Number: 23STCV21161 Hearing Date: November 18, 2024 Dept: 57

Plaintiff Maria Elena Salazar (“Plaintiff”) has sued Defendants Claudia Osuna and the Osuna and Dotson Law Firm (“Defendants”) for legal malpractice in connection with Defendants’ representation of Plaintiff in a Family Court proceeding related to Plaintiff’s marriage to her former husband Cesar Salazar (“Cesar”).

Pending before the Court are three discovery motions that Defendants filed seeking orders compelling Plaintiff to provide further responses to (i) Special Interrogatories (Set One), Numbers 37, 68, 69, 70, and 79 (“SROGs”); (ii) Request for Admissions 13, 14, 27, 28, 31, 32, 42, 48, 47, and 52 (“RFAs”); and Form Interrogatories (Set One) Number 17.1 (“FROG”). The Court is granting all three motions. Plaintiff must provide the further responses that Defendants are seeking by December 18, 2024. The bases for the Court’s rulings are set forth below.

Motion Related to the RFAs

The Civil Discovery Act provides that each answer to an RFA must do one of the following:

“(1) Admit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by the responding party.

(2) Deny so much of the matter involved in the request as is untrue.

(3) Specify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge.”

(Code of Civil Procedure Section 2033.220 (b)(1-3).) If the responding party’s answer to an RFA is “lack of information or knowledge as a reason for a failure to admit all or part of [the RFA], that party shall state in the answer that a reasonable inquiry concerning the matter in the particular request has been made, and that the information known or readily obtainable is insufficient to enable the party to admit the matter.” (Section 2033.220(c).)

RFA numbers 13, 14, 27, 28, 31, 32 ask Plaintiff to admit that she “transferred” certain specified real properties to certain specified individuals. Plaintiff’s answers to each of these RFAs were identical. In particular, she denied the RFAs on the basis of the Defendants’ use of the word “transferred,” stating that the word “did not distinguish between free transfer or transfer based on undue influence or fraud of Cesar . . . in getting [Plaintiff] to effect any so-called ‘transfer.’” Plaintiffs’ answers to these RFAs is non-complaint with Section 2033.220(b)(2), which does not permit the responding party to deny an RFA based on a qualification connected to the meaning of a word in the RFA. Plaintiff either transferred the specified properties to the specified persons, or she did not. Whether fraud or undue influence on the part of Cesar was behind the transfers is not pertinent to the RFAs as formulated. To the extent that Plaintiff is objecting to the use of the word “transferred” on the ground that is vague and ambiguous under the circumstances of her relationship with Cesar, Plaintiff waived that objection because her responses to the RFAs were late. (Section 2033.280(a).)

RFA Number 42 ask Plaintiff to admit that the Defendants provided the entire client file in the Family Court proceeding to Plaintiff’s subsequent counsel in that proceeding. RFA Number 48 RFA asked Plaintiff to admit that she did not list three specified properties in a declaration that she filed. RFA Number 52 asked Plaintiff to admit that her subsequent counsel in the Family Court proceeding did not file any motions to postpone the trial date in that proceeding. As to each of these three RFAs, Plaintiff answered that she did not know or recall. These answers are non-complaint with Section 2033.220(c) because Plaintiff did not couple her statement of lack of knowledge/recall with the required statement that she made a reasonable inquiry into the matters at issue.

RFA Number 47 asked Plaintiff to admit that she “chose not to enjoin the buyers” of certain specified properties. Plaintiff’s answer was as follows: “Denied. [Defendants] never discussed enjoying [sic] with [Plaintiff].” Plaintiff’s answer is non-responsive. The question does not ask Plaintiff if she discussed enjoining the buyers. It simply asks if she chose not to enjoin them.

The caption of Defendants’ motion to compel further responses to the RFAs states that Defendants are seeking sanctions against Plaintiff in the amount of $1,380. Neither in the notice of motion nor the memorandum in support of the motion, however, did the Defendants state that they are requesting sanctions. And there is no declaration from Defendants addressing sanctions. Accordingly, the Court is not imposing sanctions against Plaintiff in connection with the RFA motion.

Motion Related to the FROG

FROG Number 17.1 asks Plaintiff if her answers to each of the RFAs that are the subject of Defendants’ RFA motion is an unqualified admission, and if not, then FROG Number 17.1 directs Plaintiff to state the number of the request; all facts on which the response is based; the names and contact information for persons who have knowledge of the facts; and all documents or other tangible things that support the response, along with the name and contact information of the person who has the document or thing.

Plaintiff’s answers to FROG Number 17.1 as to each of the RFAs at issue are non-responsive because the answers to the RFAs are themselves deficient in that they are not unqualified admissions or proper denials/statements of lack of knowledge.

Motion Related to the SROGs

Responses to interrogatories must be as complete and straightforward as the information available to the responding party permit. If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state but also shall make a reasonable and good faith effort to obtain the information by inquiry to others. (Code of Civil Procedure Section 2030.220(a), (c).) Plaintiff’s responses to the SROGs are non-compliant.

SROG Number 37 asks Plaintiff to identify documents that support her contention that she informed Defendants of her marital properties in the Family Court proceeding. In response, Plaintiff stated that she does not recall all the documents, but that Defendants filed documents in the proceeding that referenced Plaintiff’s marital properties. The response that Plaintiff cannot recall all the documents she used to inform Defendants of her martial properties does not manifest a good faith effort to locate these documents. Plaintiff must disclose the documents she is aware of, even if she contends that there are more that she cannot locate..

SROG Number 68 asks Plaintiff to identify the sale date of a property she owned in Mexico. In response, Plaintiff stated that the Family Law Court previously ordered the proceeds of the sale of that property to be deposited in Defendants’ trust account, and Defendants have not informed Plaintiff of the date the property sold. This is non-responsive. Plaintiff was the owner of the property and should be aware as to whether it has sold and when the sale occurred, even if the proceeds were not disbursed directly to her.

SROG Number 69 asks Plaintiff to state why she has not sold her interest in the property in Mexico. In response, Plaintiff again stated the Family Law Court previously ordered the proceeds of the sale of that property to be deposited in Defendants’ trust account, and Defendants have not informed Plaintiff of the date the property sold. This is non-responsive. SROG Number 69 inquires as to Plaintiff’s motivations for her actions/inactions. She did not answer that question.

SROG Number 70 asks Plaintiff to state facts demonstrating actions she has taken to sell her interest in the property in Mexico pursuant to the Court order. Here too, Plaintiff responds that the Court previously ordered the proceeds of the sold property to be deposited in Defendant’s trust account, and Defendant has not informed Plaintiff of the date the property sold. This is non-responsive. Plaintiff does not answer the question as to what she has done to sell her property.

SROG Number 79 asks Plaintiff to state reasons why she did not file a motion to postpone or continue the trial date in the Family Court proceeding. Plaintiff states that she was not in pro per and could not file a motion for continuance on her own, and she had new counsel representing her after Defendants ceased to be her counsel. This is non-responsive. Plaintiff does not state why she did not seek to postpone or continue the trial date after she was represented by new counsel. This is information that should be within Plaintiff’s personal knowledge, yet she failed to supply it.