Judge Michelle Williams Court, Case 21STCV23965 2022-08-10 Tentative Ruling

Judge: Michelle Williams Court, Case: 21STCV23965, Date: 2022-08-10 Tentative Ruling

TENTATIVE RULING: The motion is GRANTED. Defendant is ordered to serve verified, code compliant responses to Requests Nos. 15-16 and 18-31 within 20 days and to produce all responsive documents within 30 days. To the extent defendant claims a privilege over any of the responsive documents or information, it shall simultaneously serve a privilege log with the document production that, at a minimum, identifies each document for which a privilege or privacy right is claimed, its author, recipients, date of preparation, and the specific privilege claimed. The responses should otherwise be free of objections. Pursuant to Code of Civil Procedure section 2031.310(h), the Court imposes sanctions against Plaintiff and its counsel of record in the amount of $810.00 payable to Defendant, via its counsel of record within 30 days.

On June 29, 2021, Plaintiff Heidari Law Group, P.C. filed this action against Defendant Mesriani Law Group. The complaint alleged five causes of action: (1) conversion, (2) intentional interference with contractual relations, (3) intentional misrepresentation, (4) negligent misrepresentation, and (5) breach of fiduciary duty. Plaintiff alleges that the Plaintiff represented Nina Najafi in relation to a car collision, which included a fee agreement. Plaintiff alleges the insurance company accepted their demand prior to Najafi obtaining new counsel. Plaintiff sent Defendant a Notice of Attorney’s Lien in the amount of $7,809.38. Plaintiff alleges Defendant improperly represented to the insurance company that the fee amount was twenty-five percent of the settlement rather than thirty-three and one third percent.

The propounding party may bring a motion to compel further responses to requests for production if it believes the statement of compliance is incomplete, the representation of an inability to comply is inadequate, incomplete, or evasive, or if an objection is without merit or too general. (Code Civ. Proc. § 2031.310.) The motion must be accompanied by a meet and confer declaration, (Code Civ. Proc. §§ 2016.040; 2031.310(b)(2)), and a separate statement. (Cal. R. Ct., rule 3.1345.)

As an additional requirement only as to requests for production, the motion must set forth specific facts showing good cause justifying the discovery sought. (Code Civ. Proc. § 2031.310(b)(1).) “[T]hat burden is met simply by a fact-specific showing of relevance.” (TBG Ins. Services Corp. v. Superior Court, 96 Cal. App. 4th 443, 447 (2002).) The opposing party bears the burden of justifying any objections. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255; Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 97-98.)

Unless extended, the motion must be noticed within 45 days of service of the responses. (Code Civ. Proc. §§ 2016.050; 2031.310(c); Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410 (“the time within which to make a motion to compel . . . is mandatory and jurisdictional.”).)

On March 17, 2022, Defendant sent a meet and confer letter stating Plaintiff’s responses to Requests for Production Nos. 15-36 were deficient and not code compliant. (Id. Ex. C.) Defendant contended Plaintiff’s objections were meritless and Plaintiff cannot refuse to produce documents based upon a representation that “all documents related to the representation of Nina Najafi have already been produced to Defendant.” (Ibid.) Defendant requested Plaintiff provide authority for its responses and serve supplemental responses by March 25, 2022. (Ibid.) Plaintiff did not respond to this letter. (Id. ¶ 4.) On March 28, 2022, Defendant set a follow-up email to Plaintiff regarding the meet and confer letter. (Id. ¶ 5, Ex. D.) Plaintiff did not respond to this email either, and had failed to respond as of April 21, 2022. (Id. ¶ 5.)

In opposition, Plaintiff contends Defendant failed to adequately meet and confer. (Opp. at 5:8-21.) However, the only evidence before the Court is Plaintiff’s failure to respond to Defendant’s requests to meet and confer. Accordingly, it is Plaintiff, not Defendant, that failed to meet its obligations under the Discovery Act.

Plaintiff also argues Defendant’s separate statement is deficient. (Opp. at 3:18-5:7.) The Court does not find Plaintiff’s argument persuasive. Defendant filed the required separate statement which identifies the requests at issue, provides Plaintiff’s responses and a discussion of their deficiencies, and all relevant definitions. Defendant did fail to provide the special interrogatories referenced in Requests Nos. 32-36 as required. (Cal. R. Ct., rule 3.1345(c)(5) (“If the response to a particular discovery request is dependent on the response given to another discovery request, . . . the other request and the response to it must be set forth.”).) However, the Court does not find this omission fatal to the motion. Both Plaintiff and the Court have sufficient information to resolve the parties’ discovery dispute.

Defendant’s motion and separate statement demonstrate good cause to produce the documents sought as they relate to Plaintiff’s interactions with the insurance company, their retainer agreement, the funds withheld, Plaintiff’s attempts to obtain the funds, Plaintiff’s damages, Plaintiff’s knowledge of the settlement, communications, and evidence supporting Plaintiff’s responses to specific interrogatories.

Plaintiff failed to meet its burden to justify its objections. Plaintiff contends Defendant’s motion seeks further responses to requests that were also contained in Request for Production, Set One. (Opp. at 4:23-27; Cassandra Decl. Ex. 3.) Plaintiff solely identifies “Request for Production No. 22 [Set Two] and No. 6 [Set One]; Request for Production No. 25 [Set Two] and No. 2 [Set One].” (Ibid.) While Plaintiff provided the requests, it failed to provide any evidence demonstrating Defendant’s deadline to file a motion to compel as to these requests has expired. Accordingly, Plaintiff failed to meet its burden on this issue. Moreover, Request for production No. 22 seeks evidence “of HLG’s damages,” whereas Request for Production No. 6 seeks evidence “that HLG has been harmed.” (Imani Decl. Ex. A; Cassandra Decl. Ex. 3.) These requests are not the same because Request No. 22 seeks evidence of the amount of Plaintiff’s alleged damages and Request No. 6 seeks evidence demonstrating it was wronged. Damage and harm are not synonymous and Request No. 22 is not duplicative.

Plaintiff cannot refuse to produce documents and provide a code-compliant response based upon its contention that it either provided the documents outside of discovery or that Defendant is in possession of the documents at issue. The Discovery Act only allows a party to refuse to respond to interrogatories based upon equally available information. (See Code Civ. Proc. § 2030.220(c) (“If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.”).) Plaintiff has not met its burden to demonstrate production of any of the documents would be unduly burdensome or oppressive. (See West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 417-418.)

Additionally, the terms Plaintiff contends are vague and ambiguous, such as “copy” or “fees and expenses,” do not excuse its failure to provide a substantive response and produce documents. (See Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783 (“A party may not deliberately misconstrue a question for the purpose of supplying an evasive answer. Indeed, where the question is somewhat ambiguous, but the nature of the information sought is apparent, the proper solution is to provide an appropriate response.”).) Defendant is entitled to verified, code-compliant responses, without objection, except to the extent Plaintiff asserts the attorney-client privilege supported by a privilege log, to each of the requests at issue and the production of responsive documents in Plaintiff’s possession, custody, or control. The motion is GRANTED as to each Requests Nos. 15-16 and 18-31.

Pursuant to Code of Civil Procedure section 2031.310(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 to a demand, 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.”

The Court finds Plaintiff failed to act with substantial justification and its responses did not comply with the Discovery Act. Defendant’s initial motion sought sanctions in the amount of $2,875.00, consisting of “5 hours of my time spent preparing moving papers and exhibits at $395.00 an hour; 2 hours’ time in anticipation of reviewing Plaintiff’s Opposition, drafting Reply brief, and court appearance; $60.00 filing fee; $50.00 for attorney’s service.” (Mot. at 9:20-23; Imani Decl. ¶ 6.)

However, Defendant cannot recover attorneys’ fees claimed by its an attorney representing his own law firm. (See e.g. Musaelian v. Adams (2009) 45 Cal.4th 512, 520; Carpenter & Zuckerman, LLP v. Cohen (2011) 195 Cal.App.4th 373, 385; Argaman v. Ratan (1999) 73 Cal.App.4th 1173, 1180.) In reply, Defendant cites the Court’s prior rulings and contends, without authority, that “Defendant does not seek its attorneys' fees, but rather requests that the Court issue sanctions against Plaintiff for its bad faith tactics and frivolous objections under the Code.” (Reply at 4:4-6.) Defendant’s argument is not a legal distinction and ignores the relevant authority. (Argaman, supra, 73 Cal.App.4th at 1181 (“Argaman’s declaration stated that he expended his own time, which he valued at $3,500 based on his hourly rate, and incurred $24 in filing fees and duplication costs. The amount representing compensation for Argaman's time cannot be included in the sanctions award.”); Kravitz v. Superior Court (2001) 91 Cal.App.4th 1015, 1020 (“We agree with Argaman that a pro se lawyer cannot recover attorney's fees as a discovery sanction.”).)

Defendant’s recent substitution of attorney to file the reply does not provide a basis for the sanctions claimed in the initial motion. However, the reply is accompanied by the declaration of Michael B. Wilk who attests to spending “five hours reviewing the Motion, Separate Statement, Opposition, Requests, Objections, and exhibits and the preparation of this Reply, including but not limited to analysis of the case law cited by this Court in its Tentative Ruling of today's date regarding attorney fees,” and anticipating spending one hour at the hearing with an hourly rate of $350.00 per hour. (Wilk Decl. ¶ 2.)

The Court finds Plaintiff should not be required to compensate Defendant for duplicative costs incurred because of Defendant’s substitution of counsel, such as Defendant’s counsel’s time to review the existing motion and opposition. The Court finds two hours of attorney time associated with the reply and hearing to be reasonable based upon the reply filed, which includes minimal legal argument.

Accordingly, the Court imposes sanctions in the amount of $810.00 against Plaintiff and its counsel of record consisting of two hours of attorney time at a rate of $350.00 per hour, the $60.00 filing fee, and the $50.00 attorney service fee.