Judge Ronald F. Frank, Case Number: 21TRCV00666, Date: 2023-11-13 Tentative Ruling

Judge: Ronald F. Frank, Case: 21TRCV00666, Date: 2023-11-13 Tentative Ruling

Case Number: 21TRCV00666 Hearing Date: April 16, 2024 Dept: 8

Tentative Ruling¿

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HEARING DATE: April 16, 2024¿¿

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CASE NUMBER: 21TRCV00666

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CASE NAME: Sebastian Medvei v. Dominique Nikko, et al.

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MOVING PARTY: Defendants

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RESPONDING PARTY: Plaintiff

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TRIAL DATE: None set.

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MOTION:¿ (1) Motion to Strike

(2) Motion to Reclassify

(3) Motion to Compel Further Responses to Form Interrogatories

(4) Motion to Compel Further Responses to Special Interrogatories

(5) Motion to Compel Further Responses to Requests for Production of Documents

(6) Motion to Compel Deposition of Plaintiff

Tentative Rulings: (1) Motion to Strike is DENIED.

(2) Motion to Reclassify is DENIED

(3) Motion to Compel Further Responses to Form Interrogatories is DENIED as untimely

(4) Motion to Compel Further Responses to Special Interrogatories is DENIED as being moot

(5) Motion to Compel Further Responses to Requests for Production of Documents is CONTINUED to date after a Code-compliant separate statement can be filed

(6) Motion to Compel Deposition of Plaintiff is not even filed.

I. BACKGROUND¿¿

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A. Factual¿¿

On September 10, 2021, Plaintiff, Sebastian Medvei (“Plaintiff”) filed a Complaint against Defendant, Dominque Nikko Westmoreland, and DOES 1 through 100. The Complaint alleges a cause of action for Malicious Prosecution.

Plaintiff, as a lawyer of Medvei Law Group, APC, represented a party that sued one of Defendant’s clients, Brandi Linton, in Case No. 20STCV42456. Thereafter, in a subsequent case, 21STCV07905, Defendant, via his client Brandi Linton, filed a Complaint against Plaintiff (who asserts he is not an immigration consultant as defined in the Immigrations Consultants Act (“ICA”)), for violating the ICA. Plaintiff informed Defendant that the ICA does not apply to attorneys. Plaintiff repeatedly asked Defendant to dismiss the case and Defendant refused. Eventually, Plaintiff served a motion for sanctions under Code of Civil Procedure section 128.7 on Defendant. In response to that motion, Defendant voluntarily dismissed Plaintiff. Plaintiff alleges a cause of action for Malicious Prosecution.

On March 15, 2024, Defendant, Dominique Nikko Westmoreland (“Defendant Westmoreland”) filed a Notice of Rescheduling the following motions: (1) Defendant’s Motion to Strike; (2) Defendant Westmoreland’s Motion to Reclassify; (3) Defendant Westmoreland’s Motion to Compel Further Responses to Form Interrogatories; (4) Defendant Westmoreland’s Motion to Compel Further Responses to Special Interrogatories; (5) Defendant Westmoreland’s Motion to Compel Further Responses to Requests for Production of Documents; and (6) Defendant Westmoreland’s Motion to Compel the Deposition of Plaintiff, Sebastian M. Medvei.

B. Procedural¿¿

Preliminarily, this Court notes that as to each of the below procedural backgrounds, the Court has identified reply briefs filed in each of the motions by Defendant Westmoreland. However, each of said reply briefs do not in fact have any substance within them. Instead, the reply briefs only contain the caption page and proof of service.

Motion to Strike

On April 11, 2022, Defendant Westmoreland filed a Motion to Strike portions of the Complaint. On March 15, 2024, Defendant, Westmoreland filed a Notice of Rescheduled Motions. On April 3, 2024, Plaintiff filed an opposition brief. On April 10, 2024, Defendant Westmoreland filed a reply brief.

Motion to Reclassify

On June 6, 2022, Defendant Westmoreland filed a Motion to Reclassify Action. On March 15, 2024, Defendant, Westmoreland filed a Notice of Rescheduled Motions. On April 3, 2024, Plaintiff filed an opposition brief. On April 10, 2024, Defendant Westmoreland filed a reply brief.

Motions to Compel Further Responses to Discovery

On April 26, 2022, Defendant Westmoreland filed a Motion to Compel Further Responses to Form Interrogatories. On March 15, 2024, Defendant, Westmoreland filed a Notice of Rescheduled Motions. On April 3, 2024, Plaintiff filed an opposition brief. On April 10, 2024, Defendant Westmoreland filed a reply brief.

On June 27, 2022, Defendant Westmoreland filed a Motion to Compel Further Responses to Special Interrogatories. On March 15, 2024, Defendant, Westmoreland filed a Notice of Rescheduled Motions. On April 3, 2024, Plaintiff filed an opposition brief. On April 10, 2024, Defendant Westmoreland filed a reply brief.

On June 27, 2022, Defendant Westmoreland filed a Motion to Compel Further Responses to Requests for Production of Documents. On March 15, 2024, Defendant, Westmoreland filed a Notice of Rescheduled Motions. On April 3, 2024, Plaintiff filed an opposition brief. On April 10, 2024, Defendant Westmoreland filed a reply brief.

Motion to Compel Deposition of Plaintiff

Here, this Court notes that it is not seeing any initial filing of moving papers as to Defendant Westmoreland’s alleged Motion to Compel the Deposition of Plaintiff. Instead, the only filing the Court is able to see is the Notice of Non-Opposition filed by Westmoreland on April 10, 2024.

II. REQUEST FOR JUDICIAL NOTICE

Plaintiff, in filing its opposition, has also requested this Court take judicial notice of the following:

1. March 9, 2022 Minute Order in this action. (Exhibit 1.)

2. Department 49’s January 28, 2022 Minute Order. (Exhibit 2.)

3. Department 49’s June 15, 2022 Minute Order. (Exhibit 3.)

The Court GRANTS Plaintiff’s request and takes judicial notice of the above.

III. ANALYSIS¿

Preliminarily, this Court notes that Defendant Westmoreland’s Notice of Rescheduled Motions, as well as the reservation ID for this hearing identifies “Demurrer”. However, there does not appear to be any demurrer filed by Defendant Westmoreland. Instead, it appears that there is only a Motion to Strike filed.

B. Motion to Strike

Legal Authority

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1).) The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].) The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).) An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc., § 431.10, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)¿¿

Discussion

Here, Defendant Westmoreland seeks to strike: (1) language at page 4, at paragraph 17 of the Complaint; and (2) language in the prayer for relief at page 4, lines 23, specifically punitive damages. Civil Code section 3294, subdivision (a) authorizes punitive damages in non-contract cases “where the defendant has been guilty of oppression, fraud, or malice.” Specifically, Defendant Westmoreland argues that Plaintiff’s conclusions that Defendant’s conduct was “despicable” and resulted in malice are unfounded by the facts.

To determine whether Plaintiff has sufficiently pleaded facts to support his prayer for relief of punitive damages, the Court will analyze the strength of the malicious prosecution cause of action. “To establish a cause of action for the malicious prosecution of a civil proceeding, a plaintiff must plead and prove that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiff's, favor; (2) was brought without probable cause; and (3) was initiated with malice.” (Citi-Wide Preferred Couriers, Inc. v. Golden Eagle Ins. Corp. (2003) 114 Cal.App.4th 906, 911.) In the Complaint, Plaintiff alleges that on March 1, 2021, Defendants filed a complaint on behalf of Ms. Brandi Linton against Plaintiff alleging a single cause of action for Violation of the Immigration Consultants Act (“ICA”), codified at Business & Professions Code section 22440, et seq. (Complaint, ¶ 8.) The complaint filed alleged that Plaintiff was engaged in the business of an immigration consultant and had violated the ICA by, for example, not having an immigration consultant bond. (Complaint, ¶ 8.) However, Plaintiff notes that because he is a licensed attorney, the ICA expressly does not apply to him under Business & Professions Code section 22440, and that Defendants knew this prior to filing their complaint. (Complaint, ¶¶ 9-10.) As such, Plaintiff maintains that Defendants had no probable cause to maintain an action against him.

This Court notes that “[p]robable cause exists when a cause of action is, objectively speaking, legally tenable.” (Videotape Plus, Inc. v. Lyons (2001) 89 Cal.App.4th 156, 161.) Attorneys, specifically, “may be liable for malicious prosecution where they have probable cause to commence an action but later learn (while the case is still pending) that it lacks merit.” (Paiva v. Nichols (2008) 168 Cal.App.4th 1007, 1011.) Plaintiff’s Complaint in this action asserts that on the date of filing and service, Plaintiff even informed Defendant Westmoreland that Plaintiff was (and still is) a licensed attorney, and in any event, does not practice in immigration, and asked Westmoreland to dismiss the complaint. (Complaint, ¶11.) However, despite this, Plaintiff alleges that Defendants continued to prosecute the Plaintiff without probable cause. (Complaint, ¶ 11.) Plaintiff alleges that he and/or his attorney repeatedly asked Defendant Westmoreland to dismiss the complaint throughout the pendency of the action, to no avail. (Complaint, ¶ 12) However, Plaintiff contends that Defendant Westmoreland refused to dismiss the complaint, and even stated in emails to Plaintiff that he relished the fact that forcing Plaintiff to litigate the frivolous complaint was causing Plaintiff inconvenience and expense. (Complaint, ¶ 12.) Plaintiff argues in his complaint that the purpose of the frivolous filing was to compel him to dismiss a prior action filed against Ms. Brandi Linton for violation of the ICA. (Complaint, ¶ 12.) In fact, Plaintiff notes that Westmoreland provided no basis for filing the legally untenable complaint against Plaintiff and made it clear to Plaintiff that he would only dismiss the complaint against Plaintiff if he dismissed the prior-filed complaint against Ms. Brandi Linton. (Complaint, ¶12.)

Despite the above, Plaintiff notes that Defendants failed to dismiss the ICA violation complaint against Plaintiff. Moreover, Plaintiff contends that on March 30, 2021, he retained the services of an attorney to represent him, and a demurrer was filed on the grounds that Plaintiff could not be liable under the ICA because he is a licensed attorney. (Complaint, ¶ 13.) However, Plaintiff notes the earliest date available for the demurrer was September 28, 2021. (Complaint, ¶ 13.) Even after the filing of the demurrer, Plaintiff asserts that Defendants continued to maliciously prosecute their legally untenable complaint. (Complaint, ¶ 13.) This was until, on August 13, 2021, Plaintiff’s attorney had served Defendants with a motion for sanctions under Code of Civil Procedure section 128.7. (Complaint, ¶ 14.) Plaintiff notes in his complaint that in order to avoid substantial monetary sanctions for attorney’s fees and costs, Defendants dismissed the complaint against the Plaintiff within the 21-day safe harbor provided under Code of Civil Procedure section 128.7 on September 8, 2021. (Complaint, ¶ 14.) Plaintiff asserts this dismissal was a favorable termination in favor of Plaintiff. (Complaint, ¶14.)

Here, this Court disagrees with Defendants’ argument that Plaintiff has only provided conclusory language. Plaintiff has sufficiently alleged that, on numerous occasions, Plaintiff and/or his counsel informed Defendants that ICA did not apply to Plaintiff. A reading of the plain language of Business and Professions Code section 22440 would clearly inform Defendants that the ICA did not apply to Plaintiff. Plaintiff sufficiently alleges that such efforts were made to inform Defendants that the ICA did not apply to Plaintiff, and despite this, the suit carried on until early September 2021, and was only dismissed after a filing for monetary sanctions for attorney’s fees and costs was filed. If proven, these allegations support the proposition that, as alleged, Defendants acted maliciously when continuing to litigate an action where a clear reading of the statute to which that action was based expressly and clearly states that it would not have applied to Plaintiff. Because, on its face, the Complaint sufficiently states facts to state a cause of action for malicious prosecution, including the malicious allegations themselves, that the Motion to Strike is DENIED. The punitive damages allegations shall stand.

C. Motion to Reclassify

Legal Standard

Code of Civil Procedure § 403.040 allows a plaintiff to file a motion for reclassification of an action within the time allowed for that party to amend the initial pleading.¿ (Code Civ. Proc., §¿403.040(a).)¿ “A party may amend its pleading once without leave of court at any time before an answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer to motion to strike.¿ (Code Civ. Proc., § 472(a).)¿ If the motion is made after the time for the plaintiff to amend the pleading, the motion may only be granted if (1) the case is incorrectly classified; and (2)¿the plaintiff shows good cause for not seeking reclassification earlier.¿ (Code¿Civ.¿Proc.¿§¿403.040(b).)¿

In Walker v. Superior Court (1991) 53 Cal.3d 257, 262, the California Supreme Court held that a matter may be reclassified from unlimited to limited only if it appears to a legal certainty that the plaintiff’s damages will necessarily be less than $25,000.¿ (Walker v. Superior Court (1991) 53 Cal.3d 257.)¿ If there is a possibility that the damages will exceed $25,000.00, the case cannot be transferred to limited civil.¿ (Id.)¿ This high standard is appropriate considering “the circumscribed procedures and recovery available in the limited civil courts.”¿ (Ytuarte v. Superior Court (2005) 129¿Cal.App.4th 266, 278.)¿

In Ytuarte, the Court of Appeal examined the principles it set forth in Walker and held that “the court should reject the plaintiff’s effort to reclassify the action as unlimited only when the lack of jurisdiction as an ‘unlimited’ case is certain and clear.”¿ (Ytuarte, supra, 129 Cal.App.4th at 279 (emphasis added).)¿ Nevertheless, the plaintiff must present evidence to demonstrate a possibility that the damages will exceed $25,000.00 and the trial court must review the record to determine “whether a judgment in excess of $25,000.00 is obtainable.”¿ (Id.)¿

Effective January 01, 2024, the jurisdictional limit in a limited civil jurisdiction case now stands at $35,000.00 per Code of Civil Procedure § 85(a). (Code Civ. Proc. § 85(a).)

Discussion

As noted above, the instant case arises from an alleged malicious prosecution. This case was filed as an unlimited civil action based on damages stemming from Plaintiff’s alleged suffering in the form of general damages, including economic and noneconomic, in the estimated amount of at least $100,000. (Complaint, ¶ 15.) However, Defendant Westmoreland notes that it was discovered, specifically in Plaintiff’s responses to Defendant’s form interrogatories, that Plaintiff responded that he suffered approximately $17,049 in damages. As such, Defendant Westmoreland argues that it is virtually impossible to meet the previous $25,000 standard. Thus, Defendant Westmoreland requests an order from this Court reclassifying this case as limited civil.

In opposition, Plaintiff notes that although the malicious prosecution amounted to approximately $17,049, that Plaintiff is also seeking noneconomic damages, in the form of annoyance and inconvenience of the malicious prosecution as well as punitive damages for Defendant Westmoreland’s malice, to be determined at trial, which claims presently are estimated at $50,000 for general damages and $670,000 for punitive damages. Noneconomic damages have no objective means of computation but instead are left to the judgment of the trier of fact.

As noted above, this Court found that Plaintiff’s complaint sufficiently alleged a cause of action for malicious prosecution, and provided facts that a trier of fact may amount to malicious conduct. As such, this Court finds that the finding of punitive damages as well as an estimated general damages are not unfounded in the complaint. The Court does not find that Defendants carried their burden in showing how meeting the previous jurisdictional requirement of $25,000 or the new jurisdictional requirement of $35,000 would be virtually unobtainable. As such, this Court DENIES the Motion to Reclassify.

C. Motions to Compel Further Responses

Legal Standard

A party must respond to interrogatories within 30 days after service. (Code Civ. Proc., § 2030.260, subd. (a).) If a party to whom interrogatories 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).) 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).) There is no time limit for a motion to compel responses to interrogatories other than the cut-off on hearing discovery motions 15 days before trial. (Code Civ. Proc., § 2024.020, subd. (a); Code Civ. Proc., 2030.290.) No meet and confer efforts are required before filing a motion to compel responses to the discovery. (Code Civ. Proc., § 2030.290; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 411

Section §2031.310(a) provides in pertinent part: “On receipt of a response to an inspection demand, the party demanding an inspection may move for an order compelling a further response to the demand if the demanding party deems that any of the following apply: (1) A statement of compliance with the demand is incomplete…. (3) An objection in the response is without merit or too general.” Further, if the responding party objects to an inspection demand, the response must “identify with particularity” any document or thing failing within any category in the demand to which the objection is made, and set forth the specific ground for objection. (Code Civ. Proc. §2031.240(b).) A statement of inability to comply must also (1) affirm a diligent search and reasonable inquiry has been made, (2) that the inability to comply is because the responsive item has never existed, has been destroyed, lost, misplaced or stolen, or has never been or is no longer in the responding party’s possession, custody, or control. (Code Civ. Proc. §2031.230.) The statement must also set forth the name and address of the person or organization believed to have possession, custody or control of the item. Finally, if any documents are withheld pursuant to a claimed privilege, the responding party must ‘(A) identify with particularity [the] document…, and (B) set forth clearly the extent of, and the specific ground for, the objection…, the particular privilege…[and] if an objection is based on a claim that the information sought is protected work product [under Section 2018.010], that claim shall be expressly asserted.” (Code Civ. Proc. § 2031.240(b).)

Notice of the motions must be given within 45 days of service of the verified response, otherwise, the propounding party waives any right to compel a further response. (Code Civ. Proc., § 2030.300, subd. (c); Code Civ. Proc., § 2033.290, subd. (c).) The motions must also be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2030.300, subd. (b); Code Civ. Proc., § 2033.290, subd. (b).)

Discussion

Preliminarily, this Court notes that pursuant to California Rules of Court, Rule 3.1345, all motions or responses involving further discovery contain a separate statement with the text of each request, the response, and a statement of factual and legal reasons for compelling further responses. (Cal. Rules of Court, Rule 3.1345, subd. (a)(3)). Here, the Court only sees a separate statement filed with respect to the Motion to Compel Further responses to Form Interrogatories, not ones for Special Interrogatories or Requests for Production of Documents. Further, even the separate statement filed for the Form Interrogatories is not code-compliant as it does not follow the requirements of California Rules of Court, Rule 3.1345. This Court would traditionally continue the motions on its calendar and allow for a supplemental filing of a code-compliant separate statement(s), however, as noted below, these motions are untimely, and thus, may not be considered.

Notice of the motions must be given within 45 days of service of the verified response, otherwise, the propounding party waives any right to compel a further response. (Code Civ. Proc., § 2030.300, subd. (c); Code Civ. Proc., § 2033.290, subd. (c).) Plaintiff notes that he served responses to Defendant Westmoreland’s discovery for the Form Interrogatories on October 26, 2021. Subsequently, on November 3, 2021, Defendant Westmoreland filed a special motion to strike complaint, thus staying discovery. At this time, the clock has run seven days on Defendant Westmoreland’s time to file this motion to compel further. Thus, as noted by Plaintiff, when the stay was lifted on March 9, 2022, after the Anti-SLAPP motion was denied, Defendant Westmoreland had 38 days to bring this Motion to Compel Further. Plaintiff contends that the clock would thus run out on April 21, 2022, at the latest. However, Plaintiff notes, as did this Court above, that this motion was not brought until April 26, 2022.

This Court thus notes that Defendant Westmoreland’s Motion to Compel further responses to Form Interrogatories is untimely.

As to the Special Interrogatories, the moving papers do not contain separate statements. However, as noted in Plaintiff’s opposition papers, Plaintiff states that he has provided verified responses on May 31, 2022, a day before the deadline. (Declaration of Adrien Medvei (“Medvei Decl.”), ¶ 3.)

Because Defendant Westmoreland has not provided substantive arguments in the reply brief, the Court’s tentative ruling is also to deny this motion because of the evidence of receipt of the interrogatory responses, mooting the motion.

Lastly, as to the Requests for Production of Documents, Defendant Westmoreland contends that Plaintiff has failed to produce a privilege log, and has asserted meritless objections. Again, this motion is tentatively denied because of the failure to provide a separate statement. The Court will consider continuing the Motion to Compel Further Responses to Requests for Production of Documents pending the filing of a compliant separate staement.

Sanctions

Here, this Court is not inclined to GRANT any of Defendant Westmoreland’s requests for sanctions as two motions appear to be brought despite being untimely, or responses being provided. The sanctions regarding the Motion to Compel Further Responses to Requests for Production of Documents is continued.

Additionally, this Court is inclined to GRANT, in part, Plaintiff’s requests for sanctions as at least for the motions with respect to form and special interrogatories, the motions seem to be improper for various reasons. However, because Defendant Westmoreland failed to provide substantive arguments in its reply brief, the Court will allow oral argument with respect to these two motions.

D. Motion to Compel Deposition of Plaintiff

Here, as indicated above, this Court does not see any filing of a Motion to Compel Deposition of Plaintiff. Instead, the only deposition filing from Defendant Westmoreland is the April 10, 2024 filing asserting that Plaintiff failed to oppose the Motion to Compel the Deposition of Plaintiff. If the Court did not receive this filing, it may also be so that Plaintiff did not receive this motion.

The Court will allow oral argument as to this issue.

IV. CONCLUSION¿¿

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For the foregoing reasons, Defendant Westmoreland’s Motion to Strike and Motion to Reclassify are both DENIED. Defendant Westmoreland’s Motions to Compel Further Responses to Form and Special Interrogatories are DENIED. Defendant Westmoreland’s Motion to Compel Further Responses to Requests for Production of Documents is CONTINUED. The Motion to Compel Deposition of Plaintiff is not on file with this court.

Plaintiff is ordered to give notice.¿¿¿¿

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