Judge: Richard Y. Lee, Case: 30-2020-01133604, Date: 2022-11-17 Tentative Ruling

Plaintiff/Cross-Defendant, Fifth Third Bank, National Association (“Fifth Third”) has filed three discovery motions and moves for an order compelling Defendant and Cross-Complainant Soldream, Inc.’s responses to Form Interrogatories, Set One; Special Interrogatories, Set One; and Requests for Production, Set One. Third Bank also moves for an order compelling responses to Requests for Admission, Set One, or alternatively, an order deeming facts admitted.

Fifth Third contends that all of the discovery responses to the First Set of Form Interrogatories, Special Interrogatories, Requests for Production and Requests for Admission consisted only of objections; were unverified, evasive, incomplete, and improper, and with no production of documents in the case of Requests for Production; that the objections are waived; and that monetary sanctions in amount of $2,125 are warranted for each of the three motions filed.

The opposition by Defendant/Cross-Complainant/Cross-Defendant, Soldream, Inc. (“Soldream”) consists of two declarations, a declaration by new counsel at Angelo & White, Alyssa Milman, and a declaration by the President of Soldream, Jaroslaw Kalecinski (“Kalecinski”). Soldream contends that it just recently retained new counsel on October 31, 2022, three (3) days before oppositions were due; that they are in the process of gathering and reviewing documents and are diligently working on preparing responses to the discovery at issue, specifically the Requests for Admission, Set One; and that they requested a continuance of the hearing but that counsel for Fifth Third denied that request. (Declaration of Alyssa Milman, ¶¶ 3-6.)

A motion to compel further responses to interrogatories, requests for production, and requests for admission must be accompanied by a meet and confer declaration under Code. Civ. Proc. Section 2016.040. (Code Civ. Proc. § 2030.300(b) [interrogatories]; 2031.310(b)(2) [inspection demands]; 2033.290(b) [request for admission].)

Code of Civil Procedure section 2016.040 provides that “[a] meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.”

Here, counsel for Fifth Third provides that it served a meet and confer letter to Soldream’s counsel on September 22, 2021; that on July 20, 2022, Soldream’s counsel responded that they were withdrawing as counsel and that Soldream would be retaining new counsel; and that as of the filing of the motions, their office had not been contacted by any new counsel for Soldream.  (Declaration of Dillon Chen, ¶¶ 6-9; Exs. D-E.)

The evidence submitted to the Court indicates that while knowing that Soldream’s counsel was withdrawing and that Soldream was seeking to obtain new counsel, Fifth Third nevertheless filed the instant motions without any attempt to discuss the matter further with Soldream’s prior counsel, or to determine the status of retaining new counsel. In addition, the evidence indicates that although Soldream’s new counsel was not retained until October 31, 2022, said counsel requested a continuance and represented that they would provide responses, but Fifth Third refused to agree to a continuance.

Under these circumstances, there is an insufficient showing that Fifth Third made attempts to meet and confer in good faith with Soldream’s prior counsel while prior counsel still represented Soldream, as well as Soldream’s new counsel once retained, and that meet and confer efforts may serve to resolve the issues raised by the motions.

The Court ORDERS counsel for Fifth Third to meet and confer in person, by zoom or video remote technology, or over the telephone with Soldream’s newly retained counsel concerning the issues raised in Fifth Third’s counsel’s July 12, 2022 letter and the motions, and to submit a Joint Statement no later than nine (9) court days before the continued hearing date setting forth the efforts made by counsel to meet and confer, as well as stating what issues remain for the Court and why they were unable to resolve their issues, or that no issues remain for the Court to resolve and that the motion is being withdrawn.

No additional briefing is authorized or will be considered. The Joint Statement must be filed and served no later than 9 court days before the continued hearing date. If a Joint Statement is not filed by that date, the Motion will be placed off-calendar.  The motion is continued to February 2, 2023 at 1:30 p.m.

Moving Party to give notice.