Judge Robert B. Broadbelt, Case Number: 20STCV11534, Date: 2023-12-05 Tentative Ruling

Judge: Robert B. Broadbelt, Case: 20STCV11534, Date: 2023-12-05 Tentative Ruling

RESPONDING PARTIES: Defendants and cross-complainants Elaine Kohn and Berndt Lohr-Schmidt

MOVING PARTIES: Defendants and cross-complainants Elaine Kohn and Berndt Lohr-Schmidt

(3) Motion to Compel Responses to Requests for Production of Documents, Set Two

The court considered the moving, opposition, and reply papers filed in connection with each motion.

The court denies the request of defendants and cross-complainants Elaine Kohn and Berndt Lohr-Schmidt to file a sur-reply in connection with the motion to be relieved from waiver of discovery objections and therefore has not considered those sur-reply papers.

The court rules on the evidentiary objections filed by defendants and cross-complainants Elaine Kohn (“Kohn”) and Berndt Lohr-Schmidt (“Lohr-Schmidt”) (“Defendants”) to the declaration of Jennifer C. Shakouri, filed in support of the motion to be relieved from waivers of objections, as follows:

The court overrules the evidentiary objections filed by plaintiff and cross-defendant Eric Choi (“Plaintiff”) to the declaration of Ernest J. Guadiana, filed in support of Defendants’ opposition to the motion to be relieved from waivers of objections.

The court overrules the evidentiary objections filed by Plaintiff to the declaration of Sean M. McCormick, filed in support of Defendants’ opposition to the motion to be relieved from waivers of objections.

The court has not considered the supplemental declaration of Jennifer C. Shakouri, filed in support of the reply to the motion to be relieved from waivers of objections, because new evidence is not permitted with reply papers. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537.)

The court overrules the evidentiary objections filed by Plaintiff to the declaration of Rebecca Rodriguez, filed in support of the motion to compel responses to form interrogatories.

The court overrules the evidentiary objections filed by Plaintiff to the declaration of Sean McCormick, filed in support of the motion to compel responses to form interrogatories.

The court overrules the evidentiary objections filed by Defendants to the declaration of Jennifer C. Shakouri, filed in support of Plaintiff’s opposition to the motion to compel responses to form interrogatories.

The court overrules the evidentiary objections filed by Plaintiff to the declaration of Sean A. McCormick, filed in support of Defendants’ motion to compel responses to requests for production, set two.

The court overrules the evidentiary objections filed by Plaintiff to the declaration Rebecca Rodriguez, filed in support of Defendants’ motion to compel responses to requests for production, set two.

The court overrules the evidentiary objections filed by Plaintiff to the declaration of Sean A. McCormick, filed in support of Kohn’s motion to deem admitted the matters specified in the requests for admission.

The court overrules the evidentiary objections filed by Plaintiff to the declaration of Rebecca Rodriguez, filed in support of Kohn’s motion to deem admitted the matters specified in the requests for admission.

The court rules on the evidentiary objections filed by Defendants to the declaration of Jennifer C. Shakouri, filed in support of Plaintiff’s opposition to Kohn’s motion to deem admitted the matters specified in the requests for admission, as follows:

The court overrules the evidentiary objections filed by Plaintiff to the declaration of Sean A. McCormick, filed in support of Kohn’s motion to compel responses to special interrogatories.

The court overrules the evidentiary objections filed by Plaintiff to the declaration of Rebecca Rodriguez, filed in support of Kohn’s motion to compel responses to special interrogatories.

The court overrules the evidentiary objections filed by Defendants to the declaration of Jennifer C. Shakouri, filed in support of Plaintiff’s opposition to Kohn’s motion to compel responses to special interrogatories.

The court overrules the evidentiary objections filed by Plaintiff to the declaration of Sean A. McCormick, filed in support of Lohr-Schmidt’s motion to compel responses to special interrogatories.

The court overrules the evidentiary objections filed by Plaintiff to the declaration of Rebecca Rodriguez, filed in support of Lohr-Schmidt’s motion to compel responses to special interrogatories.

The court overrules the evidentiary objections filed by Defendants to the declaration of Jennifer C. Shakouri, filed in support of Plaintiff’s opposition to Lohr-Schmidt’s motion to compel responses to special interrogatories.

Plaintiff moves the court for an order relieving him from his waiver of discovery objections and therefore permitting him to respond with objections to the following sets of discovery: (1) Defendants’ Requests for Production of Documents, Set Two; (2) Kohn’s Special Interrogatories, Set One; (3) Lohr-Schmidt’s Special Interrogatories, Set One; (4) Defendants’ Form Interrogatories, Set One; and (5) defendant Kohn’s Requests for Admission, Set One.

Defendants have filed motions to compel Plaintiff’s responses, without objections, to those sets of discovery or to deem admitted the matters set forth in Kohn’s Requests for Admission, all of which are pending before the court. The court rules on Plaintiff’s motion first in order to determine (1) whether Plaintiff failed to serve timely responses to these sets of discovery, and (2) whether Plaintiff has met his burden to show that he should be relieved from any waiver of his right to assert discovery objections thereto, such that the court will not order Plaintiff to serve responses, without objections, to the subject discovery in ruling on Defendants’ motions.

If a party to whom interrogatories, requests for admissions, or requests for production are directed fails to serve a timely response, that party waives any right to assert objections to the interrogatories and requests, including those based on privilege. (Code Civ. Proc., §§ 2030.290, subd. (a), 2033.280, subd. (a), 2031.300, subd. (a).) The court, on motion, may relieve that party from those waivers upon determining that (1) the party has served responses in substantial compliance with the governing provisions of the Code of Civil Procedure, and (2) the party’s failure to serve timely responses to the discovery was the result of mistake, inadvertence, or excusable neglect. (Ibid.)

As a threshold matter, the court notes that Plaintiff denies that his responses were untimely, contending that the parties agreed to suspend discovery. The court disagrees.

Defendants served the subject discovery requests on Plaintiff on March 16, 2023. (McCormick Decl., ¶ 2.) The parties agreed, in writing, to extend the parties’ deadlines to respond to discovery on multiple occasions. (McCormick Decl., Ex. B.) The final written agreement to extend the deadline to respond was reached on June 16, 2023. (Id. at p. 1 [June 16, 2023 emails from Jennifer Shakouri and Ernest Guadiana].) However, Plaintiff’s counsel asserts that it was her understanding that, while settlement discussions were ongoing, there was no further need to keep requesting extensions to respond to discovery based on the belief that discovery had been suspended. (Shakouri Decl., ¶¶ 5-6.)

The court finds that Plaintiff has not presented evidence establishing the existence of an agreement between the parties that (1) discovery was suspended during settlement negotiations, or (2) extended the time for Plaintiff to respond beyond July 17, 2023. While the court acknowledges that Plaintiff has submitted an email from Defendants’ counsel stating “I assume we should restart discovery[,]” the court finds that this evidence is insufficient to show that the parties had reached an agreement to suspend discovery. (Shakouri Decl., Ex. 2 [emphasis added]; Code Civ. Proc., §§ 2030.270, subd. (b) 2033.260, subd. (b), 2031.270, subd. (b) [stating that agreements to extend the time to respond to interrogatories, requests for admission, and requests for production, respectively, “may be informal, but . . . shall be confirmed in a writing that specifies the extended date for service of a response”] [emphasis added].)

Thus, the court finds that (1) Plaintiff was required to respond to discovery by no later than July 17, 2023, and (2) Plaintiff’s responses, served on October 10, 2023 and October 17, 2023 were untimely. (McCormick Decl., Ex. B, p. 1 [agreeing to a 30-day extension on June 16, 2023]; Shakouri Decl., Exs. 4-8.) Plaintiff has therefore waived his right to assert objections. (Code Civ. Proc., §§ 2030.290, subd. (a), 2033.280, subd. (a), 2031.300, subd. (a).)

The court finds that Plaintiff has met his burden to show that he should be relieved of these waivers.

As set forth above, in order for the court to relieve Plaintiff of these waivers, Plaintiff must show that (1) he served substantially compliant responses, and (2) his failure to serve timely responses was the result of mistake, inadvertence, or excusable neglect. (Code Civ. Proc., §§ 2030.290, subd. (a), 2033.280, subd. (a), 2031.300, subd. (a).)

First, the court finds that Plaintiff’s responses to the subject discovery are in substantial compliance with Code of Civil Procedure sections 2030.210-2030.240 (as to the responses to Defendants’ Form and Special Interrogatories), 2033.210-2033.230 (as to the responses to Kohn’s Requests for Admissions), and 2031.210-2031.240 and 2031.280 (as to the responses to Defendants’ Requests for Production). (Shakouri Decl., Exs. 6 [responses to Kohn’s Special Interrogatories], 7 [responses to Lohr-Schmidt’s Special Interrogatories], 8 [responses to Defendants’ Form Interrogatories], 5 [responses to Requests for Admission], 4 [responses to Defendants’ Requests for Production]; Code Civ. Proc., §§ 2030.290, subd. (a)(1), 2033.280, subd. (a)(1), 2031.300, subd. (a)(1).)

Second, the court finds that Plaintiff has shown that his failure to timely respond was the result of his counsel’s mistake and excusable neglect. (Code Civ. Proc., §§ 2030.290, subd. (a)(2), 2033.280, subd. (a)(2), 2031.300, subd. (a)(2).) Plaintiff’s counsel has stated, in her declaration, that she believed that discovery had been suspended and therefore “had no knowledge of any alleged deadline to respond to past-served discovery.” (Shakouri Decl., ¶¶ 5-6, 9.) While the court has determined, for the reasons set forth above, that Plaintiff did not show that there was an agreement to suspend discovery, the court finds that this evidence is sufficient to show that Plaintiff did not timely serve responses because of counsel’s mistaken belief that discovery was suspended.

The court therefore grants Plaintiff’s motion and orders that Plaintiff is relieved of his waivers of his rights to assert objections to the following discovery requests: (1) Defendants’ Requests for Production of Documents, Set Two; (2) Kohn’s Special Interrogatories, Set One; (3) Lohr-Schmidt’s Special Interrogatories, Set One; (4) Defendants’ Form Interrogatories, Set One; and (5) Kohn’s Requests for Admission, Set One.

DEFENDANTS’ MOTION TO COMPEL PLAINTIFF’S RESPONSES TO FORM INTERROGATORIES

Defendants move the court for an order (1) compelling Plaintiff to serve responses, without objections, to Defendants’ Form Interrogatories, Set One, and (2) awarding sanctions in favor of Defendants and against Plaintiff in the amount of $1,797.27.

If a party to whom interrogatories are directed fails to serve a timely response, the propounding party may move for an order compelling response to the interrogatories.¿ (Code Civ. Proc., § 2030.290, subd. (b).)¿¿¿¿

The court finds that (1) as set forth above, Plaintiff has not presented evidence establishing either an agreement to suspend discovery during settlement negotiations or an agreement extending the time for Plaintiff to respond beyond July 17, 2023, and (2) therefore Plaintiff did not serve timely responses by failing to serve responses by that date. (McCormick Decl., ¶ 6.) In opposition, Plaintiff has presented evidence establishing that he served responses to Defendants’ Form Interrogatories on October 10, 2023. (Shakouri Decl., Ex. 3.)

The court therefore denies Defendants’ motion to compel Plaintiff’s responses to their Form Interrogatories as moot. (Code Civ. Proc., § 2030.290, subd. (b).)

The court finds that the circumstances presented make the imposition of sanctions unjust and therefore denies Defendants’ request for an award of monetary sanctions against Plaintiff. (Code Civ. Proc., § 2030.290, subd. (c).)

DEFENDANTS’ MOTION TO COMPEL PLAINTIFF’S RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS, SET TWO

Defendants move the court for an order (1) compelling Plaintiff to serve responses to Defendants’ Requests for Production of Documents, Set Two,[1] and (2) awarding monetary sanctions in favor of Defendants and against Plaintiff in the amount of $1,797.27.

If a party to whom a demand for inspection is directed fails to serve a timely response, the party making the demand may move for an order compelling response to the demand.¿ (Code Civ. Proc., §¿2031.300, subd. (b).)¿¿¿¿

Defendants served Plaintiff with their Requests for Production of Documents, Set Two, on March 16, 2023. (McCormick Decl., Ex. A.) Responses were due, pursuant to the parties’ agreement to extend the deadline by which to respond, by July 17, 2023. (McCormick Decl., ¶ 5.) Plaintiff did not serve timely responses. (McCormick Decl., ¶ 6.) In opposition, Plaintiff has submitted evidence showing that he served responses to the Requests for Production on October 10, 2023. (Shakouri Decl., Ex. 3.)

The court therefore denies Defendants’ motion to compel Plaintiff’s responses to their Requests for Production of Documents as moot. (Code Civ. Proc., § 2031.300, subd. (b).)

KOHN’S MOTION TO DEEM ADMITTED MATTERS SPECIFIED IN REQUESTS FOR ADMISSION

Kohn moves the court for an order (1) deeming admitted the truth of each matter specified in Kohn’s Requests for Admission, and (2) awarding sanctions in favor of Kohn and against Plaintiff in the amount of $4,000.

If a party to whom requests for admission are directed fails to serve a timely response, the court shall, upon motion by the propounding party, order that the matters specified in the requests be deemed admitted unless the court finds that the party to whom the requests for admission have been directed has served substantially compliant responses before the hearing on the motion.¿ (Code Civ. Proc., § 2033.280, subds. (b), (c).)¿¿¿¿

Kohn served Plaintiff with the Requests for Admission on March 16, 2023. (McCormick Decl., Ex. A.) Responses were due, pursuant to the parties’ agreement to extend the deadline by which to respond, on July 17, 2023. (McCormick Decl., ¶¶ 3-5.) Plaintiff did not serve timely responses. (McCormick Decl., ¶ 7.) However, Plaintiff has presented evidence establishing that he served responses to Kohn’s Requests for Admission on October 17, 2023. (Shakouri Decl., Ex. 3.)

Thus, the court (1) finds that Plaintiff has served, before the hearing on Kohn’s motion, responses to the Requests for Admissions that are in substantial compliance with section 2033.220, and (2) therefore denies Kohn’s motion to deem admitted the truth of the matters specified in the Requests for Admission. (Code Civ. Proc., § 2033.280, subds. (b), (c).)

The court grants Kohn’s request for monetary sanctions. (Code Civ. Proc., § 2033.280, subd. (c) [“It is mandatory that the court impose a monetary sanction . . . on the party . . . whose failure to serve a timely response to requests for admission necessitated this motion”].) The court finds that $2,113.77 ((2.5 hours x Rodriguez’s $465 hourly rate) + (1.5 hours x McCormick’s $585 hourly rate) + $73.77 filing fees) is a reasonable amount of sanctions to impose against Plaintiff in connection with this motion. (McCormick Decl., ¶¶ 9-11; Rodriguez Decl., ¶¶ 2-4.)

KOHN’S MOTION TO COMPEL PLAINTIFF’S RESPONSES TO SPECIAL INTERROGATORIES

Kohn moves the court for an order (1) compelling Plaintiff to serve responses, without objections, to Kohn’s Special Interrogatories, Set One, and (2) awarding sanctions in favor of Kohn and against Plaintiff in the amount of $1,797.27.

Kohn served Plaintiff with the Special Interrogatories, Set One, on March 16, 2023. (McCormick Decl., Ex. A.) Pursuant to the agreement of the parties, responses were due on July 17, 2023. (McCormick Decl., ¶ 5.) Plaintiff did not serve timely responses. (McCormick Decl, ¶ 6.) In opposition, Plaintiff has presented evidence showing that he served, on October 17, 2023, responses to Kohn’s Special Interrogatories, Set One. (Shakouri Decl., Ex. 3.)

The court therefore denies Kohn’s motion to compel Plaintiff’s responses to the Special Interrogatories as moot. (Code Civ. Proc., § 2030.290, subd. (b).)

The court finds that the circumstances presented make the imposition of sanctions unjust and therefore denies Kohn’s request for an award of monetary sanctions against Plaintiff. (Code Civ. Proc., § 2031.300, subd. (c).)

LOHR-SCHMIDT’S MOTION TO COMPEL PLAINTIFF’S RESPONSES TO SPECIAL INTERROGATORIES

Lohr-Schmidt moves the court for an order (1) compelling Plaintiff to serve responses, without objections, to Lohr-Schmidt’s Special Interrogatories, Set One, and (2) awarding sanctions in favor of Lohr-Schmidt and against Plaintiff in the amount of $1,797.27.

Lohr-Schmidt served Plaintiff with the Special Interrogatories on March 16, 2023. (McCormick Decl., Ex. A.) Pursuant to the agreement of the parties, responses were due on July 17, 2023. (McCormick Decl., ¶¶ 3-5.) Plaintiff did not serve timely responses. (McCormick Decl, ¶ 6.) In opposition, Plaintiff has presented evidence establishing that he served responses to Lohr-Schmidt’s Special Interrogatories on October 17, 2023. (Shakouri Decl., Ex. 3.)

The court therefore denies Lohr-Schmidt’s motion to compel Plaintiff’s responses to Special Interrogatories as moot. (Code Civ. Proc., § 2030.290, subd. (b).)

The court finds that the circumstances presented make the imposition of sanctions unjust and therefore denies Lohr-Schmidt’s request for an award of monetary sanctions against Plaintiff. (Code Civ. Proc., § 2031.300, subd. (c).)

The court grants plaintiff and cross-defendant Eric Choi’s motion to be relieved from waiver of discovery objections.

The court orders that plaintiff and cross-defendant Eric Choi is permitted to serve objections to the following sets of discovery requests: (1) defendants Elaine Kohn and Berndt Lohr-Schmidt’s Requests for Production of Documents, Set Two; (2) defendant Elaine Kohn’s Special Interrogatories, Set One; (3) defendant Berndt Lohr-Schmidt’s Special Interrogatories, Set One; (4) defendants Elaine Kohn and Berndt Lohr-Schmidt’s Form Interrogatories, Set One; and (5) defendant Elaine Kohn’s Requests for Admission, Set One.

The court denies defendants and cross-complainants Elaine Kohn and Berndt Lohr-Schmidt’s motion to compel responses to form interrogatories and for sanctions.

The court denies defendants and cross-complainants Elaine Kohn and Berndt Lohr-Schmidt’s motion to compel responses to requests for production, set two, and for sanctions.

The court denies defendant and cross-complainant Elaine Kohn’s motion to deem admitted the matters specified in the requests for admission. The court grants defendant and cross-complainant Elaine Kohn’s request for sanctions on that motion. The court orders plaintiff Eric Choi to pay sanctions to defendant and cross-complainant Elaine Kohn in the amount of $2,113.77 within 30 days of the date of this order.

The court denies defendant and cross-complainant Elaine Kohn’s motion to compel responses to special interrogatories and for sanctions.

The court denies defendant and cross-complainant Berndt Lohr-Schmidt’s motion to compel responses to special interrogatories and for sanctions.

[1] Defendants originally filed, on September 15, 2023, their “Motion to Compel Responses to Defendants and Cross-Complainants’ Requests for Production, Set One,” with the reservation number ending in 8635. Thereafter, on October 10, 2023, Defendants filed a “Notice of Withdrawal and Re-Filing of Motion to Compel Concerning Requests for Production,” withdrawing the motion filed on September 15, 2023. Defendants then filed the pending “Motion to Compel Responses to Defendants and Cross-Complainants’ Requests for Production, Set Two” on October 11, 2023, using the original reservation number ending in 8635.

eric choi ; Plaintiff, vs. elaine kohn , et al.; Defendants.	Case No.:	20STCV11534

	Hearing Date:	December 15, 2023

	Time:	10:00 a.m.

	[Tentative] Order RE: (1) plaintiff’s motion to be relieved from waiver of discovery objections (2) defendants’ motion to compel responses to form interrogatories (3) defendants’ motion to compel responses to requests for production of documents, set two (4) DEFENDANT’S MOTION TO DEEM ADMITTED MATTERS SPECIFIED IN REQUESTS FOR ADMISSION (5) defendant’s motion to compel responses to special interrogatories (6) defendant’s motion to compel responses to special interrogatories