Judge Salvatore Sirna, Case 21PSCV00313 2022-10-26 Tentative Ruling

Judge: Salvatore Sirna, Case: 21PSCV00313, Date: 2022-10-26 Tentative Ruling

Case Number: 21PSCV00313 Hearing Date: October 26, 2022 Dept: A

Plaintiff Isabel M. Coats’s MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR ADMISSION, FORM INTERROGATORY NO. 17.1, AND SPECIAL INTERROGATORIES NOS. 2 AND 3

Respondent: Defendant Gregory Ward

Defendant Gregory Ward’s MOTION TO COMPEL FURTHER RESPONSES TO DEFENDANT’S FIRST SET OF INTERROGATORY REQUESTS

Respondent: Plaintiff Isabel M. Coats

I. TENTATIVE RULING

Plaintiff Isabel M. Coats’s Motion to Compel Further Responses to Plaintiff’s Requests for Admission is construed as a Motion to Deem the Truth of the Matters in the Requests for Admission Admitted and GRANTED.

Plaintiff Isabel M. Coats’s Motion to Compel Further Responses to Plaintiff’s Form Interrogatory No. 17.1 and Special Interrogatory No. 3 is construed as a Motion to Compel and is GRANTED. Defendant Gregory Ward is ordered to serve verified responses to Plaintiff’s Form Interrogatory No. 17.1 and Special Interrogatory No. 3 without objections, within 14 days of the Court’s issuance of this order.

Plaintiff Isabel M. Coats’s Motion to Compel Further Responses to Plaintiff’s Special Interrogatory No. 2 is GRANTED. Defendant Gregory Ward is ordered to serve verified responses to Plaintiff’s Special Interrogatory No. 2 without objections, within 14 days of the Court’s issuance of this order.

Plaintiff Isabel M. Coats’s request for sanctions in Plaintiff’s Motion to Compel Further is GRANTED. Sanctions are AWARDED in the reduced amount of $1,261.65 and are payable within 30 days of the Court’s issuance of this order.

Defendant Gregory Ward’s Motion to Compel Plaintiff Isabel M. Coats Responses to Defendant’s First Set of Interrogatory Requests is DENIED. Plaintiff’s request for sanctions is GRANTED. Sanctions are AWARDED in the reduced amount of $200 and are payable within 30 days of the Court’s issuance of this order.

BACKGROUND

In this malicious prosecution action, Defendant Gregory Ward asked Plaintiff Isabel M. Coats, Defendant’s mother, to help finance the family cabin’s construction in Utah. While Plaintiff initially formed a partnership with Defendant and provided financial support for the project, Plaintiff agreed to be bought out and instead provided finances in the form of a loan. Defendant then claimed overpayment of Plaintiff and filed an unsuccessful breach of contract claim against Plaintiff, while also failing to make payments on Plaintiff’s loan.

On April 21, 2021, Plaintiff, individually and through Isabelle Coats Newman as successor trustee of the inter vivos trust titled Isabel M. Coats Survivor’s Trust Created Under the Terms of the Isabel and Walter Coats Trust Restated January 26, 1994, filed a complaint against Defendant and Does 1 to 10, alleging the following causes of action:

1. Malicious Prosecution

2. Financial Elder Abuse

3. For an Accounting

A CMC is set for October 26, 2022.

ANALYSIS

Plaintiff moves to compel Defendant to provide further responses to requests for admission, form interrogatory number 17.1, and special interrogatories numbered 2 and 3. Defendant also moves to compel Plaintiff to respond to Defendant’s “first set of interrogatory requests” and “remove their objection that [Defendant] falsely labelled his ‘first set of [interrogatory] requests.’”

Pursuant to Code of Civil Procedure section 2030.290, subdivision (b), the propounding party may file a motion to compel responses to interrogatories if a response has not been received. A response must be provided within 30 days of service. (Code Civ. Proc., §§ 2030.260, subd. (a); 2031.260, subd. (a).) If responses are untimely, the responding party waives objections. (Code Civ. Proc., §§ 2030.290, subd. (a); 2031.300, subd. (a).) The court shall impose monetary sanctions against any party, person, or attorney who unsuccessfully makes or opposes such orders to compel absent substantial justification or other circumstances that make imposition of sanctions unjust. (Code Civ. Proc., §§ 2030.290, subd. (c); 2031.300, subd. (c).) While the imposition of sanctions is mandatory, the court “has discretion to reduce the amount of fees and costs requested as a discovery sanction in order to reach a reasonable award.” (Cornerstone Realty Advisors, LLC v. Summit Healthcare Reit, Inc. (2020) 56 Cal.App.5th 771, 791 (Cornerstone).)

Plaintiff’s Special and Form Interrogatories

Plaintiff seeks further responses from the Defendant to Plaintiff’s Form Interrogatory No. 17.1 as well as Special Interrogatories Set One numbers two and three. On December 22, 2021, Plaintiff served special interrogatories set one on the Defendant and on January 11, 2022, Plaintiff served form interrogatories set two on the Defendant. (Woodward Decl., ¶ 6-7.)

On March 7, 2022, Defendant provided unverified responses to Plaintiff’s special interrogatories by answering the first one, stating the second one was “not appropriate for a response,” and providing no answer for the third interrogatory. (Woodward Decl., ¶ 8; Ex. 7; Ex. 8) Defendant also provided no answer Plaintiff’s Form Interrogatory No. 17.1 (Woodward Decl., ¶ 3-4.)

On March 22, 2022, Plaintiff’s counsel sent Defendant a letter noting the deficiencies in Defendant’s response and requesting verified responses. (Woodward Decl., ¶ 9.) Plaintiff’s counsel sent a follow-up letter on April 5, 2022. (Woodward Decl., ¶ 10.) In a letter dated April 11, 2022, Defendant responded asking for a “Standard California Interrogatory Verification Response Form” that Plaintiff would accept and accused Plaintiff’s counsel of “not wanting to meet and confer in good faith.” (Woodward Decl., ¶ 11-12.)

First, the court deems this a motion to compel responses rather than a motion to compel further. Defendant has not provided a response to Form Interrogatory No. 17.1 or Special Interrogatory No. 3 and has provided an unverified response to Special Interrogatory No. 2. (See Ex. 8.) Defendant’s response that “[t]he question is not appropriate for a response” could be construed as an objection, but Defendant does not provide any grounds for objecting and also responded that $500,000 “was only an estimated amount.” Because unverified responses “are tantamount to no responses at all,” (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 635 (Appleton)), Defendant is deemed to have failed to present a timely response to Plaintiff’s interrogatories and has waived any objections.

In opposition to Plaintiff’s motion, Defendant has filed a “Motion for the Court to Deny Plaintiff’s Motion Requesting Gregory Ward to Further Comply on Affirmative Defenses Interrogatory” and a “Motion for the Court to Deny Plaintiff’s Motion for Gregory Ward to Comply to Separate Special Interrogatory.” Defendant argues Defendant “has no record of receiving Plaintiff’s ‘Separate Special Interrogatory Requests,’” even though Plaintiff provided Defendant’s replies to the same requests. While Defendant has also provided what the court will liberally interpret as a verified supplemental response to Special Interrogatory no. 2, erroneously titled as a “Motion for the Court to Deny Plaintiff’s Motion for Gregory Ward to Comply to Separate Special Interrogatory,” (see Opp. Compel Spec. Interrogatories, p. 1.) Defendant has still not provided responses to Plaintiff’s Form Interrogatory No. 17.1 or Special Interrogatory No. 3.

Although the court treats Plaintiff’s motion to compel further as a motion to compel with respect to Plaintiff’s Form Interrogatory No. 17.1 and Special Interrogatory No. 3, the court will consider and grant Plaintiff’s motion to compel further as to Special Interrogatory No. 2. Defendant’s supplemental response fails to provide any itemization or accounting of the money Defendant received from the house sale. Defendant also states the estimate of $500,000 did not include debts or other costs but fails to itemize or provide them as requested.

Thus, as to Plaintiff’s Form Interrogatory No. 17.1 and Special Interrogatory No. 3, Plaintiff’s motion to compel further is deemed a motion to compel and is GRANTED. As to Plaintiff’s Special Interrogatory No. 2, Plaintiff’s motion to compel further is GRANTED. Defendant is further ordered to provide code-complaint and verified responses to Plaintiff’s Form Interrogatory No. 17.1 and Special Interrogatory Nos. 2 and 3 without objection within 14 days of the Court's issuance of this order.

Plaintiff’s Requests for Admission

Plaintiff seeks further responses to Plaintiff’s requests for admission. On January 11, 2022, Plaintiff served its first set of requests for admissions on Defendant. (Woodward Decl., ¶ 2.) On April 7, 2022, Defendant provided unverified responses that did not state they were signed under the penalty of perjury or signed under the laws of the State of California. (Woodward Decl., ¶ 3.) On March 24, 2022, Plaintiff’s counsel sent Defendant a meet and confer letter, placing him on notice that his responses were inadequate and unverified. (Woodward Decl., ¶ 4.) Defendant responded with a letter dated April 4, 2022, that rejected the claim Defendant’s responses were inadequate. (Woodward Decl., ¶ 4.) On April 7, 2022, Plaintiff’s counsel sent a second letter to Defendant, warning he would file a motion to compel and noted Defendant has not filed a code compliant response. (Woodward Decl., ¶ 5.)

The court notes Code of Civil Procedure section 2033.280, subdivision (b) authorizes “an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted . . .” The instant motion is made pursuant to this section and will be construed as a “Motion to Deem Requests for Admissions Admitted.” Code of Civil Procedure section 2033.280, subdivisions (b) and (c) allow the requesting party to file a motion requesting that the truth of any matters specified in the request for admissions be deemed admitted unless the party to whom the requests have been directed has served a response that is in substantial compliance before the hearing. A response to requests for admissions is timely if provided within 30 days of service. (Code of Civ. Proc., § 2033.250.) Monetary sanctions must be imposed pursuant to Code of Civil Procedure section 2033.280, subdivision (c) for failure to timely respond to requests for admissions but, as noted previously, the court has discretion to reduce requested sanctions to make them reasonable. (Cornerstone, supra, 56 Cal.App.5th at p. 791.)

As with the responses to interrogatories, Defendant did not provide responses to Plaintiff’s requests for admission that were verified. And while the Defendant provided a “Motion for the Court to Deny Plaintiff’s Motion Requesting Further Compliance by Gregory Ward for Admission,” Defendant failed to include anything that could be construed as a verification of Defendant’s responses. In addition to lacking any verification, Defendant’s responses also include statements that Defendant lacked information but fail to state under Code of Civil Procedure section 2033.220, subdivision (c) that “a reasonable inquiry concerning the matter in the particular request has been made, and that the information known or readily obtainable is insufficient to enable that party to admit the matter.” Because unverified responses “are tantamount to no responses at all,” (Appleton, supra, 206 Cal.App.3d at p. 635.), Defendant failed to respond to Plaintiff’s requests for admission.

Thus, as to Plaintiff’s requests for admission, Plaintiff’s motion to compel further is deemed a motion to deem requests for admission admitted and is GRANTED.

Plaintiff’s Request for Sanctions

Plaintiff requests sanctions in the amount of $4,550 for 11 hours of preparation and 2 hours for attending the hearing at an hourly rate of $350, as well as filing fees of $61.65. (Woodward Decl., ¶ 13.) Defendant has filed a motion “To Disallow Ai Woodward’s Declaration and Exhibits; and to Deny a Motion Requesting Sanctions be Imposed Against Gregory Ward for Failure to Provide Discovery in Compliance with the Court’s March 9, 2022, Order.”

The court finds Defendant’s motion meritless and irrelevant to the issues at bar. The court also finds sanctions are appropriate as Defendant has failed to file timely code-compliant responses to Plaintiff’s discovery requests. Thus, utilizing a Lodestar approach and in view of the totality of the circumstances, the court awards sanctions to Plaintiff and finds reasonable attorney fees and costs in the total amount of $1,261.65 ($61.65 filing fee plus 5 hours for drafting the motion and 1 hour for attending the hearing at the rate of $200/hour). Sanctions are payable within 30 days of the Court's issuance of this order.

Defendant’s Interrogatories

Defendant seeks to compel Plaintiff to respond to Defendant’s “First Set of Interrogatory Requests” and “remove” Plaintiff’s objection that Defendant falsely labeled the first set of interrogatory requests.

As an initial matter, Defendant has failed to file a timely proof of service for Defendant’s motion as required by California Rules of Court 3.1300, subdivision (c). Defendant’s motion also does not comply with California Rules of Court, rules 2.108, 3.1110, and 3.1112. And Defendant did not provide the required declaration establishing Defendant met and conferred with Plaintiff’s counsel, as required by Code of Civil Procedure section 2030.300. These deficiencies alone are grounds for denial, but the court also denies the motion on its merits.

Defendant’s motion is titled as a motion to compel, but Defendant does not allege in the motion that Plaintiff failed to respond to the interrogatories. Instead, Defendant takes issue with Plaintiff’s objections to the interrogatories on the grounds that they exceeded the maximum allowable number of 35. However, Defendant submitted 46 interrogatories. A party is limited to propounding 35 specially preparing interrogatories and must provide a supporting declaration to propound a greater number if warranted by the complexity of the issues, the financial burden of conducting discovery by deposition, and the expedience of this method. (Code Civ. Proc. §§ 2030.030, subd. (a)(1); 2030.040, subd. (a).) Defendant does not argue these grounds or provide a copy of the declaration as required.

Plaintiff also objected to all “First Set of Interrogatory Requests” on the grounds that they were already submitted in a previous request and answered. (See Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1408-1410 [a party who objects to interrogatory responses cannot resubmit the same interrogatories and must file motion to compel].) Defendant does not explicitly deny sending more than one set of special interrogatories and refers to “Original Interrogatories” as well as “Ward’s First Set of 46 Interrogatories.” On these grounds, Defendant has not demonstrated Plaintiff’s objections were improper, necessitating a motion to compel further.

Thus, Defendant’s motion to compel responses and remove (strike) Plaintiff’s objection is DENIED.

Plaintiff also requests sanctions pursuant to Code of Civil Procedure section 2023.020 for Defendant’s failure to meet and confer in the amount of $350 for spending one hour responding to Defendant’s motion at an hourly rate of $350. (Opp., Woodward Decl., ¶ 2.) The court finds sanctions are appropriate as Defendant failed to meet and confer and filed a meritless motion to compel discovery.

Thus, utilizing a Lodestar approach and in view of the totality of the circumstances, the court awards sanctions to Plaintiff and finds reasonable attorney fees and costs in the total amount of $200 (1 hour of responding to Defendant’s motion at $200/hour).

Defendant to pay $200 is attorneys’ fees within 30 days of the Court's issuance of this order.

Plaintiff is ordered to give notice.

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PLAINTIFF's MOTION FOR SANCTIONS AGAINST GREGORY WARD FOR HIS FAILURE TO PROVIDE DISCOVERY IN COMPLIANCE WITH THE COURT’S ORDER OF MARCH 9, 2022.

Respondent: Defendant Gregory Ward

TENTATIVE RULING

Plaintiff Isabel M. Coats’s Motion for Sanctions Against Gregory Ward for His Failure to Provide Discovery in Compliance with the Court’s Order of March 9, 2022, is DENIED.

However, the court requires Defendant to provide further verified responses to Form Interrogatory 15.1 without objection that contain substantive information as to Defendant’s general denial and affirmative defenses. The court also requires Defendant to provide further verified and substantive responses without objection to Plaintiff’s Form Interrogatories Nos. 50.1, 50.2, 50.4, 50.5, and 50.6.

Defendant is ordered to comply with this court’s March 9, 2022, order by providing the original of Defendant’s first responses to Plaintiff’s interrogatories and the original of the verification for the Defendant’s first responses. Defendant’s responses must be served on Plaintiff within 14 days of the Court’s issuance of this order. If Defendant’s further responses remain unverified and continue to be devoid of substantive information, the Court will entertain a renewed requests for sanctions.

BACKGROUND

1. Malicious Prosecution

2. Financial Elder Abuse

3. For an Accounting

A CMC is set for October 26, 2022.

ANALYSIS

Plaintiff moves for the full range of sanctions under Code of Civil Procedure sections 2023.030 and 2030.300, subdivision (e) to be imposed on Defendant for Defendant’s failure to comply with the court’s discovery order on March 9, 2022.

The court may impose a monetary sanction, issue sanction, evidence sanction, terminating sanction, or contempt sanction on a party who engages in conduct that misuses the discovery process. (Code Civ. Proc., § 2023.030.) Misuse of the discovery process includes “[f]ailing to respond or to submit to an authorized method of discovery” and “[d]isobeying a court order to provide discovery.” (Code Civ. Proc., § 2023.010, subd. (d), (g).) Because the purpose of sanctions is remedial and not punitive, sanctions should “serve to remedy the harm caused to the party suffering the discovery misconduct.” (Kwan Software Engineering, Inc. v. Hennings (2020) 58 Cal.App.5th 57, 74.) “[A]bsent unusual circumstances, nonmonetary sanctions are warranted only if a party willfully fails to comply with a court order.” (Aghaian v. Minassian (2021) 64 Cal.App.5th 603, 618-619.) Terminating sanctions in particular should only be ordered when there has been previous noncompliance and it appears a less severe sanction would not be effective. (Link v. Cater (1998) 60 Cal.App.4th 1315, 1326.)

On March 9, 2022, this court ordered Defendant to provide additional verified responses to Plaintiff’s Form Interrogatories Nos. 15.1, 50.1, 50.2, 50.4, 50.5, and 50.6. (Notice of Ruling 3/10/2022; Minute Order 3/9/2022.) The court also ordered Defendant to provide the original of Defendant’s first responses (with the original signature page) and an original of the verification for the Defendant’s first responses. (Notice of Ruling 3/10/2022, p. 2:2-5.) On March 28, 2022, Defendant sent responses to Plaintiff that included the statement “Prepared and Verified by Defendant Gregory M. Ward,” but the responses remained unverified with no formal verification provided. (Woodward Decl., ¶ 8; Ex. G.) Defendant’s responses were also incomplete as they did not provide answers to Plaintiff’s Form Interrogatories No. 50.1 or 50.6. (Woodward Decl., Ex. G.) Plaintiff also argues that none of the responses provided any information about the factual support for Defendant’s general denial or twenty-seven affirmative defenses, including failing to provide facts, name witnesses, or identify documents that support Defendant’s claims.

On April 27, 2022, Defendant sent a letter that purported to be a retroactive verification of Defendant’s interrogatory responses under the penalty of perjury under the laws of the State of California. (Woodward Decl., Ex. J.) In a letter to Defendant dated June 14, 2022, Plaintiff’s counsel attempted to meet and confer and informed Defendant that the March 28 responses were not verified and requested a further response to Form Interrogatory No. 15.1. (Woodward Decl., Ex. K.) Plaintiff also again requested the originals of Defendant’s first response and verification as ordered by the court. (Woodward Decl., Ex. K.) In a response letter dated July 5, 2022, Defendant disagreed that Defendant’s responses were incomplete and claimed Defendant could not provide details of defenses until Plaintiff provided details of Plaintiff’s claims. (Woodward Decl., Ex. R.)

The court finds that Defendant’s letter attempting to retroactively verify Defendant’s responses is insufficient and does not comply with the court’s order to provide such verification. The court also finds Defendant’s responses to Plaintiff’s interrogatories remain non-responsive.

In response to Form Interrogatory No. 15.1 which requests all the facts, individuals, and documents that support Defendant’s denials or affirmative defenses, Defendant has provided a list of defenses and a general denial but still refuses to provide the required evidentiary support. (PSS (Plaintiff’s Separate Statement), p. 2-6.)

In response to Form Interrogatory No. 50.1 which essentially requests identification of documents and their details supporting agreements alleged in the pleadings, Defendant failed to provide an additional response as ordered by the court. (PSS, p. 6.)

In response to Form Interrogatory No. 50.2 which requested the date for every act or omission that breached agreements alleged in the pleadings, Defendant continued to fail to provide any specific dates. (PSS, p. 7)

In response to Form Interrogatory No. 50.4 which requested the date and basis for the termination of any agreement in the pleadings, Defendant continued to fail to provide the specific date. (PSS, p. 8-9)

In response to Form Interrogatory No. 50.5 which requested the listing of any unenforceable agreements in the pleadings as well as the reasons why, Defendant specified that Plaintiff and Defendant entered into a partnership agreement but did not specify in Defendant’s original or supplemental response how or if that agreement was unenforceable. (PSS, p. 9-11)

In response to Form Interrogatory No. 50.6, Defendant provided no response. (Woodward Decl., Ex. G.)

In light of Defendant’s continued failure to respond to Form Interrogatories Nos. 50.1 or 50.6 and failure to provide adequate and complete responses to Form Interrogatories Nos. 15.1, 50.2, 50.4, and 50.5, the court finds sanctions are appropriate. As a self-represented litigant, the court is required to hold Defendant to the same standard as attorneys. (First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 958 n.1.)

Defendant’s refusal to provide complete responses to Plaintiff’s interrogatories denied Plaintiff the access to location information about alleged agreements between Defendant and Plaintiff. The refusal also prevented Plaintiff from ascertaining the facts, if any, that support Defendant’s defenses. Because discovery is “designed to prevent trial by ambush, . . . ‘[i]t is fundamental that the only objective of the pretrial discovery rules is to allow a party to obtain all of the facts relative to a claim or defense.’” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 781, quoting Garrity v. Kemper Motor Sales (Minn. 1968) 159 N.W.2d 103, 107.)

The court finds nonmonetary sanctions are not warranted, as nonmonetary sanctions are generally more appropriate after all other options for discovery are exhausted. (See Liberty Mutual Fire Ins. Co. v. LcL Administrators, Inc. (2008) 163 Cal.App.4th 1093, 1097.) While Plaintiff requested issue and terminating sanctions, Plaintiff did not request monetary sanctions in Plaintiff’s notice of motion, as required pursuant to Code of Civil Procedure section 2023.040. Therefore, the court declines to award monetary sanctions.

Nevertheless, the court orders Defendant to provide further verified responses to Form Interrogatory 15.1 without objection that contain substantive information as to Defendant’s general denial and affirmative defenses. The court also orders Defendant to provide further verified and substantive responses without objection to Plaintiff’s Form Interrogatories Nos. 50.1, 50.2, 50.4, 50.5, and 50.6.

Defendant is also ordered to comply with this court’s March 9, 2022, order by providing the original of Defendant’s first responses to Plaintiff’s interrogatories and the original of the verification for the Defendant’s first responses. All responses must be served on Plaintiff within 14 days of the court’s issuance of this order. If Defendant’s further responses remain unverified and continue to be devoid of substantive information, the court will entertain a renewed request for sanctions.

Plaintiff is ordered to give notice.