Judge Monica Bachner, Case 21STCV03788 2023-02-07 Tentative Ruling

Judge: Monica Bachner, Case: 21STCV03788, Date: 2023-02-07 Tentative Ruling

Case Number: 21STCV03788 Hearing Date: February 7, 2023 Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

WESLEY ROBBINS,

vs.

CARL SHAFF, II, et al.

Case No.: 21STCV03788

Hearing Date: February 7, 2023

Defendant US Storage Centers, Inc.’s motion to compel Plaintiff Wesley Robbins to serve verified responses to Defendant’s Special Interrogatories (Set One) is granted. Plaintiff is ordered to comply within 30 days.

Defendant’s request for sanctions is granted in the reduced total amount of $786.35.

Plaintiff’s request for sanctions is denied.

Defendant US Storage Centers, Inc.’s motion to compel Plaintiff Wesley Robbins to serve verified responses to Defendant’s Request for Production (Set One) is granted. Plaintiff is ordered to comply within 30 days.

Defendant’s request for sanctions is granted in the reduced amount of $78.35.

Plaintiff’s request for sanctions is denied.

Defendants Benson Williams II’s, US Storage Centers, Inc.’s, Westport Properties, Inc.’s, Hawthorne Mini Venture, LLC’s, Stephen Pattillo’s individually and dba Quality Stamp Shows and Orcoexpo, Eric Pattillo’s, Briana Pattillo’s, Edwin Kawasaki’s, Carl Shaff II’s, Steve Radell’s, William Miller’s, William Janson’s, Lois Evans’, Caj Brejtfus’, Lionel Pereira’s, and Southern California Coin and Stamps’ unopposed motion to compel Plaintiff Wesley Robbins to appear for an additional deposition is granted. Plaintiff is ordered to appear for a third deposition, in-person, at Storage Defendants’ counsel’s office at 3100 Bristol Street, Suite 100, Costa Mesa, California, within 30 days of this ruling.

Defendant US Storage Centers, Inc. (“USSC”) (“Defendant”), moves to compel Plaintiff Wesley Robbins (“Robbins”) (“Plaintiff”) to serve verified responses to Defendant’s Special Interrogatories (“SROG”) (Set One). (Notice of Motion SROG, pg. 2.) Defendant also requests an award of monetary sanctions against Plaintiff in the amount of $1,297.85. (Notice of Motion SROG, pg. 2.) In opposition, Plaintiff requests sanctions against Defendant in the amount of $2,130. (Opposition SROG, pg. 8.)

Defendant US Storage Centers, Inc. (“USSC”) (“Defendant”), moves to compel Plaintiff to serve verified responses to Defendant’s Request for Production (“RFP”) (Set One). (Notice of Motion RFP, pg. 2.) Defendant also requests an award of monetary sanctions against Plaintiff in the amount of $1,281.35. (Notice of Motion RFP, pg. 2.) In opposition, Plaintiff requests sanctions against Defendant in the amount of $2,130. (Opposition RFP, pg. 8.)

Defendants Benson Williams II, USSC, Westport Properties, Inc., and Hawthorne Mini Venture, LLC (“Storage Defendants”); Stephen Pattillo individually and dba Quality Stamp Shows and Orcoexpo, Eric Pattillo, Briana Pattillo (“Pattillo Defendants”); Edwin Kawasaki, Carl Shaff, II, Steve Radell, William Miller, William Janson, Lois Evans, Caj Brejtfus (“Kawasaki Defendants”); and Lionel Pereira, and Southern California Coin and Stamps (“Pereira Defendants”) move unopposed to compel Plaintiff to appear for an additional deposition. (Notice of Motion Deposition, pg. 2; C.C.P. §§2025.450(a), 2025.290.)

USSC’s Motion to Compel SROG

Background

On February 8, 2022, Defendant served its SROG on Plaintiff, with responses initially due on or before March 15, 2022. (Decl. of Wright ¶2, Exh. A.) On March 4, 2022, Plaintiff requested a 60-day extension to respond to discovery, and Defendant instead agreed to a 30-day extension, making Plaintiff’s responses due on or before April 8, 2022. (Decl. of Wright ¶3, Exh. B.) Defendant declares it contacted Plaintiff via email on April 15, 2022, informing him it did not receive his responses to written discovery via mail, and Plaintiff replied that he would email responses, which Defendant never received, even after following up on May 10, 2022. (Decl. of Wright ¶5, Exh. C.) Defendant declares it attempted to facilitate a meet and confer call on May 20, 2022, and on May 23, 2022, which did not resolve Plaintiff’s failure to respond to the SROG. (Decl. of Wright ¶¶6-7, Exhs. D, E.)

Defendant filed the instant motion on May 24, 2022. Plaintiff filed his opposition on June 7, 2022. As of the date of this hearing, Defendant has not filed its reply.

Motion to Compel Responses to SROG

If a party to whom interrogatories were directed fails to serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction. (C.C.P. §2030.290(b); see Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 404, citing text.)

Plaintiff argues Defendant’s motion should be denied because (1) Defendant was not properly identified in the original discovery request, (2) Defendant’s discovery requests are punitive in nature, (3) Defendant’s arguments are contrary to that of their recent motion for a protective order, and (4) Defendant’s counsel has exacted an enormous toll on Plaintiff. (Opposition SROG, pgs. 3-7.)

Plaintiff does not dispute that he has not produced responses that were due on April 8, 2022. However, by failing to respond at all, Plaintiff has waived all objections, including those based on privilege or work product. The Court notes that certain Special Interrogatories are duplicative: Nos. 5 and 18 appear to be the same interrogatory, accordingly Plaintiff need only respond once. The Court also notes that as to No. 6, 14, 15, and 18, Plaintiff does not need to describe every page in the boxes.

Accordingly, Defendant’s motion for Plaintiff to comply with its responses to Defendant’s SROG (Set One) is granted. Plaintiff is ordered to provide verified responses to Defendant’s SROG within 30 days.

Request for Monetary Sanctions

C.C.P. §2030.290(c) provides:

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 a 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. If a party then fails to obey an order compelling answers, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to that sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).

(C.C.P. §2030.290(c).)

Failing to respond to written discovery as well as opposing a motion to compel discovery without substantial justification constitutes misuse of the discovery process. (C.C.P. §§2023.030(a), 2023.010(d), (h).) Here, Plaintiff failed to timely respond to Defendant’s SROG, despite receiving the courtesy of an extension to respond, failed to respond to USSC’s attempts to meet and confer regarding Plaintiff’s failure to respond, and as of the date of this hearing, has not provided responses to the SROG.

Defendant’s counsel declares her reasonable hourly rate is $165.00. (Decl. of Wright ¶9.) Defendant’s counsel declares she spent 1.1 hours meeting and conferring with Plaintiff and an additional 3.2 hours preparing the moving papers, and anticipates an additional 2.0 hours to review Plaintiff’s opposition and to prepare a reply brief, and an additional 1.0 hour to attend the hearing on this motion via court call for a fee of $15.00 in addition to the filing fee of $61.65 and e-filing fee for $16.70. (Decl. of Wright ¶10.) Defendant’s counsel did not file a reply brief, and would not need two hours to review Plaintiff’s Opposition. Accordingly, Defendant’s counsel is granted attorneys’ fees in the reduced amount of $693.00 and costs in the amount of $93.35 for the total amount of $786.35.

USSC’s Motion to Compel RFP

Background

On February 8, 2022, Defendant served its RFP on Plaintiff, with responses initially due on or before March 15, 2022. (Decl. of Wright ¶2, Exh. A.) On March 4, 2022, Plaintiff requested a 60-day extension to respond to discovery, and Defendant instead agreed to a 30-day extension, making Plaintiff’s responses due on or before April 8, 2022. (Decl. of Wright ¶3, Exh. B.) Defendant declares it contacted Plaintiff via email on April 15, 2022, informing him it did not receive his responses to written discovery via mail, and Plaintiff replied that he would email responses, which Defendant never received, even after following up on May 10, 2022. (Decl. of Wright ¶5, Exh. C.) Defendant declares it attempted to facilitate a meet and confer call on May 20, 2022, and on May 23, 2022, which did not resolve Plaintiff’s failure to respond to the RFP. (Decl. of Wright ¶¶6-7, Exhs. D, E.)

Defendant filed the instant motion on May 24, 2022. Plaintiff filed his opposition on June 7, 2022. As of the date of this hearing, Defendant has not filed its reply.

Motion to Compel Responses to RFP

C.C.P. §2031.300 provides:

If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it, the following rules apply:

The party to whom the demand for inspection, copying, testing, or sampling is directed waives any objection to the demand, including one based on privilege or on the protection for work product.
The party making the demand may move for an order compelling response to the demand.

If a party then fails to obey the order compelling a response, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction. In lieu of or in addition to this sanction, the court may impose a monetary sanction.

(C.C.P. §2031.300.)

Plaintiff does not dispute that he has not produced responses that were due on April 8, 2022. Plaintiff has waived all objections, including those based on privilege or work product.

Accordingly, Defendant’s motion for Plaintiff to comply with its responses to Defendant’s RFP (Set One) is granted. Plaintiff is ordered to comply with Defendant’s RFP and produce the requested documents within 30 days.

Request for Monetary Sanctions

C.C.P. §2031.300(c) provides:

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 a response to a demand for inspection, copying, testing, or sampling, 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. If a party then fails to obey an order compelling a response, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to that sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).

(C.C.P. §2031.300(c).)

Failing to respond to written discovery as well as opposing a motion to compel discovery without substantial justification constitutes misuse of the discovery process. (C.C.P. §§2023.030(a), 2023.010(d), (h).) Here, Plaintiff failed to timely respond to Defendant’s RFP, despite receiving the courtesy of an extension to respond, failed to respond to USSC’s attempts to meet and confer regarding Plaintiff’s failure to respond, and as of the date of this hearing, has not produced documents responsive to the RFP.

Defendant’s counsel declares her reasonable hourly rate is $165.00. (Decl. of Wright ¶9.) Defendant’s counsel declares she spent 1.1 hours meeting and conferring with Plaintiff and an additional 3.1 hours preparing the moving papers and anticipates an additional 2.0 hours to review Plaintiff’s opposition and to prepare a reply brief, and an additional 1.0 hour to attend the hearing on this motion via court call for a fee of $15.00 in addition to the filing fee of $61.65 and e-filing fee for $16.70. (Decl. of Wright ¶10.) Considering Defendant’s motion is substantively similar to the motion to compel SROG, and Defendant will attend the hearing on this motion the same day as the motion to compel SROG, Defendant’s attorneys’ fees and costs are awarded in the reduced amount of $78.35.

Defendants’ Motion to Compel Deposition

Background

Plaintiff’s first deposition was held remotely on March 22, 2022, by Storage Defendants. Storage Defendants were unable to complete their deposition of Plaintiff. (Decl. of Wright ¶4.) This Court ordered Plaintiff to engage in an in-person Deposition, which was held on November 2, 2022. (Decl. of Wright ¶5.) Storage Defendants were unable to depose Plaintiff at the November 2, 2022, deposition, and Cobb Defendants have been unable to depose Plaintiff. (Decl. of Wright ¶¶6-8, Exhs. A-B.) Plaintiff’s November 2, 2022, deposition exceeded the seven-hour statutory time limit, per C.C.P. §2025.290(a) and Plaintiff refused to agree to an informal continuance of the deposition. (Decl. of Wright ¶7, Exhs. A, B.)

Defendants filed the instant motion on January 3, 2023. Defendants filed a notice of Plaintiff’s non-opposition on January 31, 2023.

Motion to Compel Deposition

Under C.C.P. §2025.010, “[a]ny party may obtain discovery . . . by taking in California the oral deposition of any person, including any party to the action.” (C.C.P. §2025.010.) “A party is entitled to take the testimony of his opponent before trial for the purposes of discovery.” (Meyer v. Cooper (1965) 233 Cal.App.2d 750, 754.)

C.C.P. §2025.290(a) provides: “a deposition examination of the witness by all counsel, other than the witness’ counsel of record, shall be limited to seven hours of total testimony. The court shall allow additional time, beyond any limits imposed by this section, if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.” (C.C.P. §2025.290(a).)

This seven-hour limit is “merely presumptive and applicable only if the court does not order otherwise. Thus, the language of subdivision (a) indicates unambiguously that the court has the discretion to allow additional time to examine a deponent beyond the seven hour limit under subdivision (a).” (Certainteed Corp. v. Superior Court (2014) 222 Cal.App.4th 1053, 1060.)

C.C.P. §2025.480(a) provides: “If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” (C.C.P. §2025.480(a).)

C.C.P. §2025.450(a) authorizes a party to bring a motion to compel a deposition where the deponent “fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice . . ..” (C.C.P. §2025.450(a).)

Defendants move for an order allowing additional time to examine a Plaintiff beyond the seven-hour limit under C.C.P. §2025.290(a). Storage Defendants estimate a minimum of an additional 2.5 hours of questioning, contingent on Plaintiff providing responsive, succinct, and relevant testimony. (Decl. of Wright ¶11.) Pattillo Defendants estimate 2 hours left in terms of additional questions. (Decl. of Wright ¶12.) Cobb Defendants estimate a minimum of 1 hour of questioning. (Decl. of Wright ¶13.) Kawasaki Defendants estimate 45 minutes of questioning. (Decl. of Kunstler ¶3; Decl. of Wright ¶14.) Pereira Defendants estimate no longer than 1 hour of questioning. (Decl. of Brownstein ¶3.) Defendants request an additional 7 hours and 15 minutes to continue and complete Plaintiff’s deposition. (Decl. of Wright ¶16.) The Court grants Defendants’ request for 7 hours and 15 minutes of total additional time to fairly examine the Plaintiff due to his evasive and unresponsive testimony during his depositions and compels Plaintiff to answer questions during his deposition to avoid any further and unnecessary delays. (C.C.P. §§2025.290(a), 2025.480(a), 2025.450(a).) Plaintiff is ordered to appear for a third deposition, in-person at Storage Defendants’ counsel’s office at 3100 Bristol Street, Suite 100, Costa Mesa, California, within 30 days of this ruling.

Dated: February _____, 2023

Hon. Monica Bachner

Judge of the Superior Court