Judge: Ronald F. Frank, Case: 20TRCV00772, Date: 2023-01-04 Tentative Ruling
Case Number: 20TRCV00772 Hearing Date: January 4, 2023 Dept: 8
Tentative Ruling¿
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HEARING DATE: January 4, 2023¿¿
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CASE NUMBER: 20TRCV00772
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CASE NAME: Avakian
Engineering, Inc. and Marine Gasparian, et al v. Rolls-Royce
Motor Cars NA, LLC, et al
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MOVING PARTY: Defendants/Cross-Complainants, O’Gara Coach Company, LLC
and Neil Martin
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RESPONDING PARTY: Plaintiffs, Avakian Engineering, Inc. and Marine Gasparian
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TRIAL DATE: None set¿
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MOTION:¿ (1) Motion to Compel Plaintiff,
Avakian Engineering, Inc.’s and Marine Gasparian’s Further Verified Responses
to Requests for Production of Documents, Set One; Requests for Monetary
Sanctions
(2)
Motion to Compel Plaintiff, Marine Gasparian’s Further Verified Responses to
Form Interrogatories, Set One; Requests for Monetary Sanctions
(3)
Motion to Compel Plaintiff Avakian Engineering, Inc.’s Further Verified
Responses to Form Interrogatories, Set One; Requests for Monetary Sanctions
(4)
Motion to Compel Plaintiff, Avakian Engineering, Inc. and Marine Gasparian’s
Further Verified Responses to Requests for Monetary Sanctions
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Tentative Rulings: (1) Defendants’ Motions to Compel
further responses to form interrogatories are taken off calendar. The MTC further responses to the RFP is
GRANTED in part.¿
(2)
Defendants’ Request for Sanctions is GRANTED in the amount of $1200, payable
within 30 days
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I. BACKGROUND¿¿
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A. Factual¿¿
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On October 26, 2020, Plaintiffs
Avakian Engineering, Inc., and Marine Gasparian (collectively “Plaintiffs”)
filed this action against Rolls-Royce Motor Cars NA, LLC, Rolls-Rpyce Cars
Financial Services, a division of BMW Financial Services NA, LLC, O’Gara Coach
Company LLC, Neil Martin, and DOES 1 through 20. On May 31, 2022, Plaintiffs
filed a third amended complaint (“TAC”) against Defendants alleging causes of
action for: (1) Breach of Contract; (2) Negligence; (3) Negligence; and (4)
Fraud.
On May 12, 2022, Plaintiffs were
served with Defendants O’Gara Coach Company, LLC and Neil Martin’s: (1) Form
Interrogatories, Set One; (2) Special Interrogatories, Set One; (3) Requests
for Production of Documents, Set One; and (4) Requests for Admission, Set One. On
June, 8, 2022, the Defendants’ counsel was called by counsel for Plaintiffs to
meet and confer on a few issues. (Declaration of Jon C. Abramson,
Esq. (“Abramson Decl.”), ¶ 4.) During this phone call, Plaintiffs’ counsel requested
an extension of their deadline to serve responses, which was granted by
Defendants. (Id.) Counsel for the Defendants followed up via email on
June 8, 2022 confirming that Avakian and Gasparian were granted an extension to
reply to July 5, 2022. (Abramson Decl., ¶ 4, Exhibit 2.)
Defendants
note that Plaintiffs did not serve their responses to this discovery until July
6, 2022 (Id. at ¶ 5, Exhibit 4.) Plaintiffs’ counsel notes in his
Declaration that: “on or about July 5, 2022, my legal assistant, Farzan
Parandeh (hereinafter referred to as “Assistant”), sent Plaintiffs’ discovery
responses to Defendant counsel via electronic mail communication, however, the
email was “too large” for Defendant counsel’s server to receive and as a result
the email containing Plaintiffs’ discovery responses and attachments were not
delivered to Defendant counsel on the mutually agreed upon date. A true and
correct copy of the message stating the email containing Plaintiff’s discovery
responses was not delivered due to Defendant counsel’s server is attached as
“Exhibit #2.” (Declaration of Sam Zreik, Esq. (“Zreik Decl.”), ¶ 4, Exhibit 2.)
Zreik noted that “[o]n or about July 6,
2022, [his] Assistant realized the email containing Plaintiffs’ discovery
responses was not delivered due to the size of the email, and its attachments.
[His] Assistant then reduced the size of the attachments and resent the email
containing Plaintiffs’ discovery to Defendant counsel.” (Zreik Decl., ¶ 5.)
On
July 18, 2022, Defendants’ counsel sent a meet and confer letter to Plaintiff’s
counsel asserting that Plaintiffs’ discovery responses were untimely and as a
result “Plaintiffs had waived all of their objections to the written discovery
propounded on each of them” by Defendants. Defendants’ counsel also allowed
until August 1, 2022, to serve Plaintiffs’ Further Verified Discovery Responses
absent objections, otherwise Defendants’ counsel would move forward to Compel
together with monetary sanctions. (Zreik Decl., ¶ 6.)
B. Procedural¿¿
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On August 19, 2022, Defendants’
attorney filed the motions to compel further responses at issue here. On
October 7, 2022, Plaintiffs filed Declaration of Farzan Parandeh in Opposition
to Defendants O’Gara Coach Company, LLC and Neil Martin’s Motion to Compel and
Request for Sanctions and Declaration of Sam Zreik, Esq, in opposition to
Defendants O’Gara Coach Company, LLC and Neil Martin’s Motion to Compel and
Request for Sanctions. Mr. Zreik’s
declaration attaches the supplemental responses to seven sets of initial
discovery but none of the promised documents.
The supplemental responses bear proof of service dates in October of
2022. On December 22, Defense counsel
filed a notice of taking four discovery motions off calendar, leaving the motion
to compel documents and the requests for monetary sanctions on calendar for
January 4, 2023.
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III. ANALYSIS¿
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A.
Motions to
Compel Responses
A
party must respond to interrogatories and requests for production of documents
within 30 days after service. (Code Civ. Proc., § 2030.260, subd. (a); Code
Civ. Proc., § 2031.260, subd. (a).) If a party to whom interrogatories or
requests for production of documents are directed does not provide timely
responses, the requesting party may move for an order compelling responses to
the discovery. (Code Civ. Proc., § 2030.290, subd. (b); Code Civ. Proc., §
2031.300, subd. (c).) The party also waives the right to make any objections,
including one based on privilege or work-product protection. (Code Civ. Proc.,
§ 2030.290, subd. (a); Code Civ. Proc., § 2031.300, subd. (a).) There is no
time limit for a motion to compel responses to interrogatories or production of
documents other than the cut-off on hearing discovery motions 15 days before
trial. (Code Civ. Proc., §§ 2024.020, subd. (a), 2030.290; Code Civ. Proc., §
2031.300.) No meet and confer efforts are required before filing a motion to
compel responses to the discovery. (Code Civ. Proc., § 2030.290; Code Civ.
Proc., § 2031.300; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare
Consultants (2007) 148 Cal.App.4th 390, 411.)
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Code of Civil Procedure
section 2023.030, subdivision (a) provides, in pertinent part, that the court
may impose a monetary sanction on a party engaging in the misuse of the
discovery process to pay the reasonable expenses, including attorney’s fees,
incurred by anyone as a result of that conduct. A misuse of the discovery process
includes failing to respond or submit to an authorized method of discovery.
(Code Civ. Proc., § 2023.010, subd. (d).)¿¿
Here, Plaintiffs concede that due to an error, they did not
serve responses to Defendants’ discovery requests by the agreed July 5, 2022
date. (Zreik Decl., ¶¶ 4-5.) The written responses were served a day
late because of that error. Additionally,
Plaintiffs note that on or about October 7, 2022, Plaintiffs emailed their
responses to Defendants absent any objections. (Id., at ¶ 8.) As such, Plaintiffs assert that the sanctions
against them are not warranted because Defendants’ counsel has received the
Plaintiffs’ email containing their responses to Defendants’ discovery absent
objections. But in the defense meet-and-confer
letter, Defendants sought written responses without objection by August 1,
2022, in order to avoid a discovery motion.
Plaintiffs’ further responses were not served until October 7, 2022,
making monetary sanctions warranted since it appears only the filing of the
discovery motions ultimately resulted in Plaintiffs’ supplemental responses over
two months later. Further, the October
supplemental responses did not provide any of the promised non-privileged
responsive documents. Although
defendants seem to be satisfied with the further responses to the form
interrogatories and requests for admission, they are appropriately dissatisfied
with the lack of any production of the promised documents. No substantial justification is even presented
by Plaintiffs’ counsel for the failure to have provided the promised documents,
unless the parties have neglected to advise the Court that a still further
response was provided.
With respect to defendants’ objections to the RFPs, the
Court finds excusable mistake by Plaintiffs’ counsel and his paralegal in
emailing the initial written responses one day late. Accordingly, the Court finds plaintiffs did
not waive their tax return privilege as to the document demands seeking all
documents pertaining to plaintiffs’ income and as to the demand seeking the
returns themselves.
IV. CONCLUSION¿¿¿
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For the foregoing reasons, Defendants’
Motion to Compel further response to the Request for Production of Documents in
GRANTED, with the promised documents being ordered to be produced on or before
January 18, 2023.
Defendants’ Request for Sanctions is GRANTED in the amount
of $1,200, payable by Plaintiff’s counsel to defense counsel on or before February
3, 2023. Moving
party is ordered to give notice.¿¿¿¿¿
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The motions to compel as to the two
plaintiffs’ responses to form interrogatories are mooted by Defendants having
taken them off calendar.
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