Judge: Michelle Williams Court, Case: BS164568, Date: 2022-09-19 Tentative Ruling

Case Number: BS164568    Hearing Date: September 19, 2022    Dept: 74

BS164568          JOHN LINTON VS JEFFREY A MILLER

Judgment Creditor John Linton’s Motion to Compel Further Responses to Post-Judgment Special Interrogatories Propounded to Jeffrey A. Miller (Set One) and Request for Sanctions Against Jeffrey A. Miller in the Amount of $7,760.00

TENTATIVE RULING:  Judgment Creditor John Linton’s Motion to Compel Further Responses to Post-Judgment Special Interrogatories Propounded to Jeffrey A. Miller (Set One) and Request for Sanctions Against Jeffrey A. Miller in the Amount of $7,760.00 is GRANTED.

Jeffrey A. Miller is ordered to provided complete, verified responses to Judgment Creditor John Linton’s Post-Judgment Special Interrogatories Propounded to Jeffrey A. Miller (Set One) Nos. 7, 13-19, 21, 22, 25, 29-32, and 35 without objections, within 20 days.

Pursuant to Code of Civil Procedure section 2030.300(d), the Court imposes sanctions upon Jeffrey A. Miller in the amount of $1,810.00, payable to John Linton, via his counsel of record within 60 days.

Background

On September 7, 2016, Defendant filed a Confessing Statement, where the Defendant confessed to a judgment of $1,210,000.00. The parties have been engaged in post-judgment litigation in this action since that filing.

Motion

On May 13, 2022, Plaintiff/Judgment Creditor John Linton filed the instant motion seeking to compel further responses to Post-Judgment Special Interrogatories (Set One) Nos. 7, 13-19, 21, 22, 25, 29-32, and 35.

Opposition

In opposition, Miller contends he provided sufficient responses to Special Interrogatories Nos. 7 and 35 and he should not be required to answer the other interrogatories at issue.

The opposition was untimely filed on September 9, 2019. (Code Civ. Proc. § 1005(c).) However, Linton responded on the merits and was not prejudiced.

Reply

In reply, Linton contends Miller’s responses are not sufficient, he has not justified his objections, and further responses are warranted.

Motion to Compel Further Responses to Post-Judgment Interrogatories

Standard

Pursuant to Code of Civil Procedure section 708.020(a), “[t]he judgment creditor may propound written interrogatories to the judgment debtor, in the manner provided in Chapter 13 (commencing with Section 2030.010) of Title 4 of Part 4, requesting information to aid in enforcement of the money judgment. The judgment debtor shall answer the interrogatories in the manner and within the time provided by Chapter 13 (commencing with Section 2030.010) of Title 4 of Part 4.” “Interrogatories served pursuant to this section may be enforced, to the extent practicable, in the same manner as interrogatories in a civil action.” (Code Civ. Proc. § 708.020(c).)

The propounding party may bring a motion to compel further responses to interrogatories if it believes the responses received are evasive or incomplete, the attempt to produce writings pursuant to Code of Civil Procedure section 2030.230 is unwarranted or inadequate, or if the objections raised are meritless or too general. (Code Civ. Proc. § 2030.300(a).) The motion must be accompanied by a good-faith meet and confer declaration, (Code Civ. Proc. § 2016.040), and be accompanied by a separate statement. (Cal. R. Ct., rule 3.1345.) 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 filed within 45 days of service of the responses. (Code Civ. Proc. §§ 2016.050; 2030.300(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.”).)

Background of Discovery and Meet and Confer

On October 27, 2021, Judgement Creditor Linton served Post-Judgment Special Interrogatories (Set One) upon Judgment Debtor Miller. (Pavlos Decl. ¶ 9, Ex. E.) After a series of extensions, Miller served initial responses on January 6, 2022. (Id. ¶ 14, Ex. G.) After the parties engaged in a meet and confer conference, Miller served supplemental responses on February 16, 2022. (Id. ¶ 18, Ex. J.) On March 23, 2022, Linton sent a meet and confer letter addressing the amended responses. (Id. ¶ 20, Ex. K.) Counsel engaged in a meet and confer phone call on April 1, 2022. (Id. ¶ 21.) Miller indicated he would stand on his objections and responses. (Id. ¶ 22.) Miller granted an extension to the motion deadline to May 13, 2022, the date Linton filed the instant motion. (Id. ¶ 24, Ex. M.)

Miller Must Provide Further Responses

Miller’s amended responses assert nine “general objections” that he contends apply to each special interrogatory, additional objections to specific interrogatories, and one substantive response. (Pavlos Decl. Ex. J.)

Special Interrogatory No. 7 asks whether Miller is employed, to which he responded “Without waiving any of the foregoing general objections, Miller responds as follows: No.” Miller contends he “has answered Interrogatory No. 7 fully and completely, that he is not employed.” (Opp. at 2:1-2; 3:3-13.) Miller has not justified his asserted objections and Linton is entitled to an objection-free response. However, the Court notes that Linton’s contention that Miller’s response is “contradictory to Miller’s statements made in Linton’s debtor examination of Miller taken March 9, 2021,” (Mot. at 17:2-4), is not a basis to compel a further response. (Code Civ. Proc. § 2030.300(a).)

Linton also argues “[i]n Linton’s efforts to meet and confer, Linton’s explanation of ‘employed’ was expounded to include employment as a W2 employee or payroll employee, or employment as a 1099 work, a non-payroll employee. (GP Decl., ¶20, Exh. K, p. 2.) Being ‘employed’ also included being self-employed as someone who is an independent contractor, sole proprietor of business(es), and individual engaged in partnerships.” (Mot. at 17:1-14.) Linton must propound more specific discovery if he seeks information regarding other sources of income other than Miller’s employment. Linton’s post-hoc definition of “employed” is not a basis to compel Miller to further respond to an interrogatory that contained no relevant definition. The motion is GRANTED as to Special Interrogatory No. 7 for Miller to provide a response without objection.

Special Interrogatory No. 13 asks “Do you have or have you had any ownership interest in any business during the RELEVANT TIME PERIOD.” The term “relevant time period” is defined as January 1, 2017 to the present. (Pavlos Decl. Ex. E.) Special Interrogatories Nos. 14-19 are follow-up questions seeking details regarding any such ownership interest. Miller did not provide a substantive response, asserted objections to Special Interrogatory No. 13, and responded “See Response to Special Interrogatory No. 13 herein” to Special Interrogatories Nos. 14-19. Miller failed to justify its objections, merely stating he already provided some information in his debtor examination and the interrogatories are overbroad. The interrogatories are not overbroad and Miller must provide complete, verified responses without objection.

Special Interrogatories Nos. 21 and 22 seek the identities of persons and entities to which Miller is indebted for more than $1,000.00 and Special Interrogatory No. 25 requests that Miller identify “all transfers or dispositions of assets or funds greater than $200” made by Miller within the past 12 months. Special Interrogatories Nos. 29-32 request that Miller identify his income for the years 2017 to 2020, which are years during which the judgment has remained unpaid. Miller solely asserted objections to these interrogatories and failed to justify his objections. The interrogatories are reasonably calculated to lead to evidence that will aid in enforcement of the judgment, including whether Miller is hiding assets or transferred property to avoid payment of the judgment. “There is no policy favoring the concealment of the judgment debtor's assets from the judgment creditor.” (Yolanda's, Inc. v. Kahl & Goveia Commercial Real Estate (2017) 11 Cal.App.5th 509, 515.) Miller must provide complete, verified responses without objection.

Special Interrogatory No. 35 seeks the identity of any person that assisted Miller in filing his taxes during the relevant period. Miller responded solely with objections in his amended responses. In opposition, Miller indicates he provided a substantive response of “No” in his initial response and failed to carry over that response to the amended responses. (Opp. at 3:14-22.) Linton is entitled to a verified, substantive response without objections.

Sanctions

Pursuant to Code of Civil Procedure section 2030.300(d), “[t]he 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.”

In the initial motion, Linton sought sanctions in the amount of $7,760.00 consisting of twenty-two hours of attorney time by attorney Geraldine Pavlos at a rate of $350.00 per hour plus the $60.00 motion filing fee. (Pavlos Decl. ¶ 25.) In reply, Linton seeks an additional $3,880.00 in sanctions, consisting of 9.7 hours of attorney time at a rate of $400.00 per hour for work performed by attorney Nikko Stevens solely on the reply. (Stevens Reply Decl. ¶ 4.)

Considering the documents filed in support of the motion and reply, as well as the work necessary to respond to Miller’s four-page opposition that did not contain legal authority, the sanction request is unreasonable and excessive. The Court finds a reasonable sanction to be $1,810.00, consisting of 5 hours of attorney time at a rate of $350.00 per hour and the $60.00 filing fee.