Judge: Peter A. Hernandez, Case: KC069311, Date: 2022-09-13 Tentative Ruling

Case Number: KC069311    Hearing Date: September 13, 2022    Dept: O

1.         Plaintiff Michael J. Hemming’s Motion for Deemed Admissions is DENIED. Sanctions are awarded to Basu in the reduced amount of $350.00 and are payable within 30 days from the date of the hearing.

2.         Plaintiff Michael J. Hemming’s Motion for Order Compelling Response to Plaintiff’s Form Interrogatories—General is DENIED. Sanctions are awarded to Basu in the reduced amount of $350.00 and are payable within 30 days from the date of the hearing.

Background   

Plaintiff Michael J. Hemming (“Plaintiff”) alleges as follows:

Plaintiff is an attorney. On December 22, 2012, Plaintiff and Chandra Basu (“Basu”) on behalf of Doctors Reimbursement Services LLC, dba Professional Billing Services (“Doctors”) entered into an “Attorney-Client Contingency Fee Agreement.” Doctors does not exist and the real party is Basu. Plaintiff provided legal services to Basu but has not been paid. In or about July 2019, Plaintiff and Basu on behalf of PPJ Enterprises entered into an “Attorney-Client Contingency Fee Agreement.” Plaintiff provided legal services to PPJ Enterprises but has not been paid. On or about June 30, 2015, a lawyer representing PPJ Enterprises, i.e., Pamela Tahim aka Pamela Thakor (“Tahim”) of Treadway, Lumsdaine and Doyle, LLP (“the Tredway Firm”), falsely represented that funds claimed by Plaintiff for costs would be held in an attorney/client trust account and she would file an interpleader if an agreement could not be reached between Plaintiff and Firm on behalf of Basu.

On October 23, 2017, Plaintiff filed a Second Amended Complaint (“SAC”), asserting causes of action against Basu, PPJ, Tahim, the Tredway Firm and Does 1-10 for:

1.                  Breach of Contract—Basu

2.                  Breach of Contract—PPJ

3.                  Common Counts—Basu

4.                  Common Counts—PPJ

5.                  Fraud

6.                  Breach of Fiduciary Duty

On April 12, 2018, Plaintiff filed an “Amendment to Complaint,” wherein PPJ Healthcare Enterprises, Inc. (“PPJ Healthcare”) was named in lieu of Doe 1. On July 18, 2018, PPJ Healthcare’s default was entered.

On August 27, 2018, Basu filed a Second Amended Cross-Complaint (“SACC”), asserting causes of action against Plaintiff, Michael J. Hemming and Associates and Does 1-100 for:

1.                  Breach of Contract

2.                  Breach of Covenant of Good Faith and Fair Dealing

3.                  Conversion

4.                  Fraud and Deceit—Negligence

5.                  Fraud and Deceit—Intentional Misrepresentation

6.                  Intentional Interference with Economic Advantage

7.                  Intentional Misconducts

8.                  Violation of Business and Professions Code section 17200

9.                  Common Count

10.              Breach of California Rules of Professional Conducts—Rule 3-110, Rule 3-300, Rule 3-310, Rule 3-320, Rule 3-300, Rule 5-200, Rule 5-220

On December 18, 2018, the court sustained Plaintiff’s demurrer to the first through ninth causes of action in Basu’s SACC without leave to amend.

On April 23, 2019, an “Order Granting Motion for Determination of Good Faith Settlement” as between Plaintiff and the Tredway Firm was filed.

On February 18, 2020, Plaintiff filed an “Amendment to Complaint,” wherein Doctors Reimbursement Services LLC was named in lieu of Doe 2.

On April 27, 2020, Plaintiff dismissed Tahim, with prejudice. On April 29, 2020, Plaintiff dismissed the Treadway Firm, with prejudice.

The Final Status Conference is set for October 4, 2022. Trial is set for October 18, 2022.

1.         Motion to Deem RFAs Admitted

Legal Standard

A response to requests for admission is due 30 days after service. (Code Civ. Proc., § 2033.250, subd. (a).)

“If a party to whom requests for admission are directed fails to serve a timely response, . . . (b)

The requesting party may move for an order that the genuineness of any documents and the truth

of any matters specified in the requests be deemed admitted, as well as for a monetary

sanction . . .” (Code Civ. Proc., § 2033.280, subd. (b).)

“The court shall make this order, unless it finds that the party to whom the requests for admission

have been directed has served, before the hearing on the motion, a proposed response to the

requests for admission that is in substantial compliance with Section 2033.220. It is mandatory

that the court impose a monetary sanction . . . on the party or attorney, or both, whose failure to

serve a timely response to requests for admission necessitated this motion. (Code Civ. Proc., §

2033.280, subd. (c).)

Discussion

Plaintiff moves the court for an order that the truth of all specified matters in Plaintiff’s Requests

for Admissions, Set No. One, propounded to Basu be deemed admitted. Plaintiff also seeks

monetary sanctions against Basu and her attorney of record (i.e., in the amount of $1,650.00.)

Basu, in opposition, asserts that the subject discovery was propounded after the discovery cut-off had already passed. On February 2, 2022, the court vacated the March 1, 2022 trial date and set a Trial Setting Conference for May 11, 2022. The subject discovery was propounded on March 30, 2022. (Janz Decl., ¶ 4, Exh. 1.) On May 11, 2022, the court scheduled trial for October 18, 2022. There is nothing in the February 2, 2022 or May 11, 2022 minute orders which suggests that the discovery cut-off was continued to the new trial date. Per Code of Civil Procedure § 2024.020, “any party shall be entitled . . . to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action.” It appears to the court, then, that the cutoff for discovery was January 31, 2022 and that the discovery motion cutoff was February 14, 2022.

Plaintiff has not filed a reply (i.e., as of September 7, 2022, 5:38 p.m.; due September 6, 2022) refuting Basu’s position on the issue of the discovery cutoff date. The court construes Plaintiff’s lack of reply on the issue as a concession that the discovery cut-off date has passed. The court notes that Basu advised Plaintiff of her position not only in correspondence predating the filing of this motion, but also during the August 16, 2022 hearing. (Denison Decl., ¶ 5, Exh. 6 and ¶ 7.) The court further notes that Plaintiff has not filed a motion to reopen discovery under Code of Civil Procedure § 2024.050, to date.

Basu further represents that, while she was under no obligation to do so since discovery cutoff had already passed, she provided responses to the subject discovery and to the form interrogatories (set forth below) on June 6, 2022 and subsequently provided verifications on August 26, 2022. (Denison Decl., ¶ 6, Exh. 7.)

Under the circumstances, the motion is denied as untimely.

Sanctions

The court declines Plaintiff’s request for sanctions, based on the outcome of the motion. Basu  seeks sanctions (i.e., for both motions) against Plaintiff in the total amount of $2,500.00 [calculated as follows: 6 hours preparing opposition, plus 1 hour preparing for/attending hearing at $350.00/hour; Note: this equals $2,450.00].

Utilizing a Lodestar approach, and in view of the totality of the circumstances, the court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the instant motion is $350.00 (i.e., 1.0 hours at $350.00/hour). Sanctions are payable within 30 days from the date of the hearing.

2.         Motion to Compel Re: Form Interrogatories

Legal Standard

A response to interrogatories is due 30 days after service. (Code Civ. Proc., § 2030.260, subd.

(a).) “If a party to whom interrogatories are directed fails to serve a timely response, . . . [t]he

party propounding the interrogatories may move for an order compelling response to the

interrogatories.” (Code Civ. Proc., § 2030.290, subd. (b).)

The court shall impose a monetary sanction . . . 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 . . .” (Code Civ. Proc., § 2030.290, subd. (c).)

Discussion

Plaintiff moves the court for an order compelling Basu to provide verified responses, without

objections, to Plaintiff’s Form Interrogatories, Set No. One. Plaintiff also seeks

monetary sanctions against Basu and her attorney of record (i.e., in the amount of $1,650.00.)

The motion is denied as untimely (see discussion on Motion #1).

Sanctions

The court declines Plaintiff’s request for sanctions, based on the outcome of the motion. Basu  seeks sanctions (i.e., for both motions) against Plaintiff in the total amount of $2,500.00 [calculated as follows: 6 hours preparing opposition, plus 1 hour preparing for/attending hearing at $350.00/hour; Note: this equals $2,450.00].

Utilizing a Lodestar approach, and in view of the totality of the circumstances, the court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the instant motion is $350.00 (i.e., 1.0 hours at $350.00/hour). Sanctions are payable within 30 days from the date of the hearing.