Judge: Sarah J. Heidel, Case: 23GDCV01135, Date: 2024-03-08 Tentative Ruling

Case Number: 23GDCV01135    Hearing Date: March 8, 2024    Dept: V

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES – NORTHEAST DISTRICT

DEPARTMENT V

TABITHA DE LA TORRE, Plaintiff, vs. PETER K. ROBBINS, Defendant. Case No.: 23GDCV01135 Hearing Date: March 8, 2024 Time: 9:00 a.m. [TENTATIVE] ORDER RE: DEFENDANT’S MOTION FOR RELIEF FROM WAIVER; PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET ONE AND REQUEST FOR SANCTIONS

MOVING PARTY: Defendant Peter K. Robbins

RESPONDING PARTY: Plaintiff Tabitha De La Torre

Motion for Relief from Waiver

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

Motion to Compel Further Responses to Special Interrogatories, Set One, and Request for Sanctions

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

BACKGROUND

On June 2, 2023, Plaintiff Tabitha De La Torre (“Plaintiff”) brought this action against defendant Peter K. Robbins (“Defendant”) arising from Defendant’s alleged conduct with respect to denying access to De La Torre’s Gmail Account and other documentation, and asserting causes of action for Breach of Contract, Breach of Covenant of Good Faith and Fair Dealing, and Conversion. Defendant filed an Answer to the Complaint on November 6, 2023.

On December 11, 2023, Plaintiff filed and served a Motion to Compel Further Responses to Special Interrogatories, Set One, Nos. 1 through 5 also seeking monetary sanctions in the amount of $4,750.00. On February 26, 2024, Defendant filed an opposition to Plaintiff’s motion to compel further responses, to which Plaintiff replied on March 1, 2024.

On December 15, 2023, Defendant filed and served a Motion for Relief from Waiver pursuant to CCP § 2031.3001, in which Defendant requests that the Court “grant the . . . motion . . . for relief from waiver of objections, if any, in the responses to special interrogatories.” (Mem. P&A, p. 1:1-4.) Plaintiff filed an opposition to Defendant’s motion on February 26, 2024, to which Defendant replied on March 1, 2024.

The Court will address the parties’ respective motions in this one ruling.

MOTION FOR RELIEF FROM WAIVER

Where interrogatories are propounded, the responding party has 30 days from service of the interrogatories to respond. (Code Civ. Proc., § 2030.260, subd. (a).) Where a party fails to serve a timely response to interrogatories, “[t]he party to whom the interrogatories are directed waives . . . any objection to the interrogatories, including one based on privilege or on the protection for work product.” (Code Civ. Proc., § 2030.290, subd. (a).)

A party to whom interrogatories are served may respond in writing and under oath by “[a]n objection to the particular interrogatory.” (Code Civ. Proc., § 2030.210, subd. (a)(3).)

“Each answer in response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits.” (Code Civ. Proc., § 2030.220, subd. (a).) A party may also answer an interrogatory by referring to writings to which the answer may be derived or ascertained but such “specification shall be in sufficient in detail to permit the propounding party to locate and to identify, as readily as the responding party can, the documents from which the answer may be ascertained.” (Code Civ. Proc., § 2030.230.) “If only a part of an interrogatory is objectionable, the remainder of the interrogatory shall be answered.” (Code Civ. Proc., § 2030.240, subd. (a).) “If an objection is made to an interrogatory or to a part of an interrogatory, the specific ground for the objection shall be set forth clearly in the response.” (Code Civ. Proc., § 2030.240, subd. (b).)

On motion, a party may be relieved from its waiver if: (1) the party subsequently served a response that is in substantial compliance “with Sections 2030.210, 2030.220, 2030.230, and 2030.240” and (2) “[t]he party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.” (Code Civ. Proc., § 2030.290, subds. (a)(1)-(2).)

“[T]he Legislature intended to incorporate the principles of section 473 into those provisions of the discovery act which employ similar language.” (Zellerino v. Brown (1991) 235 Cal.App.3d 1097, 1107.) “[I]n several sections of the discovery act the Legislature provided for relief by using language similar to section 473.” (Id. at p. 1106.) “[T]he sole remedy for relief from waiver in the context of discovery is contained within the provisions of the [Discovery] Act and [a party] cannot rely upon the provisions of section 473.” (Scottsdale Ins. Co. v. Superior Court (1997) 59 Cal.App.4th 263, 274-75.)

An assessment of whether mistake, inadvertence, or general neglect was excusable requires a court to ascertain “whether a reasonably prudent person under the same or similar circumstances might have made the same error.” (Younessi v. Woolf (2016) 244 Cal.App.4th 1137, 1146, emphasis in original, internal quotations omitted.) “[A] mistake of fact is when a person understands the facts to be other than what they are; a mistake of law is when a person knows the facts as they really are but has a mistaken belief as to the legal consequences of those facts.” (Baratti v. Baratti (1952) 109 Cal.App.2d 917, 921.) “Inadvertence is defined as lack of

heedfulness or attentiveness, inattention, [and] fault from negligence.” (Ibid.) Excusable neglect is defined as “neglect which might have been the act of a reasonably prudent person under the same circumstances.” (Ibid.)

A. Evidence in Support of the Relief from Waiver Motion

In support of Defendant’s motion, defense counsel Stephen G. Preonas (“Preonas”) states that he and Kenneth S. Katzoff, both of Katzoff & Riggs LLP, represent Defendant in this action and that both are listed as counsel of record for all pleadings in this matter. (Preonas Decl. ¶ 3.) (Katzoff and Preonas are also counsel of record for Defendant in another case involving Plaintiff and Defendant. (Preonas Decl. ¶ 3.)) Preonas states he and Katzoff have participated in all aspects of Defendant’s representation in this case and the other case and have reliably communicated via e-mail to litigate the claims and provide dozens of timely responses to discovery. (Preonas Decl. ¶ 5.)

Preonas states that on September 22, 2023, Mr. King sent him an e-mail inquiring as to the status of responses to Plaintiff’s special interrogatories and requests for production that King that had been served via an August 7, 2023 e-mail from Ms. Ramirez to Preonas. Preonas notes that Mr. Katzoff was not included on the email. (Preonas Decl. ¶ 7.) Preonas states that he had not previously seen the written discovery in his regular inbox and, after searching his filtered messages and locating the e-mail, he informed Mr. King via e-mail that he would provide responses by October 22, 2023, which was a Sunday. (Preonas Decl. ¶ 7; Exh. B.) On Monday, October 23, 2023, counsel’s office served Defendant’s responses to special interrogatories. (Preonas Decl. ¶ 8; Exh. D.) Plaintiff will not stipulate to relief from any waiver of objections even after meet and confer discussions. (Preonas Decl. ¶¶ 8-9; Exh. D.) Preonas states that “[t]he failure to respond to the Special Interrogatories resulted from the inadvertent filtering of the August 8 service e-mail by [his] e-mail system that resulted in [him] not viewing the e-mail until after the response deadline had expired. The effect of this inadvertent filtering could have been avoided had Plaintiff copied [his] co-counsel, Mr. Katzoff, on the e-mail.” (Preonas Decl. ¶ 10.)

B. Evidence in Opposition to the Relief from Waiver Motion

In opposition to the motion for relief from waiver, Tyler J. King (“King”), declares that

since January 2022, Preonas has been in constant communication with numerous individuals from at Ross LLP and has sent at least 36 e-mails to different individuals at Ross LLP. (King Decl. ¶ 3.) On Monday, August 7, 2023, King’s assistant, Marie Ramirez, e-mail served Preonas with the discovery at issue. (King Decl. ¶ 7; Exh. C.) Defendant did not provide responses on or before the deadline of September 8, 2023. (King Decl. ¶ 8.) On September 22, 2023, two weeks after responses were due, King sent a follow-up e-mail asking when responses would be provided and noting that objections had been waived. (King Decl. ¶ 8; Exh. D.) Counsel for Defendant responded on September 29, 2023 stating that the August 7 service e-mail had been received but did not go through to his regular inbox. (King Decl. ¶ 8; Exh. D.) Defendant promised to provide responses by October 22, 2023, however, such deadline was missed, and responses were not served until October 23, 2023. (King Decl. ¶¶ 8-9; Exh. D and E.)

King declares that prior to the service of the discovery at issue, Preonas did not inform Plaintiff that Mr. Katzoff would also be representing Defendant or request that he be added to the e-mail service list. (King Decl. ¶ 11.) King states that Preonas never cc’d Mr. Katzoff on a single e-mail in this action prior to the service of discovery or even when discovery was pending. (King Decl. ¶ 11.) King declares that Plaintiff reasonably believed that Defendant was only being represented by Preonas in this action. (King Decl. ¶ 11.)

C. Analysis

Defendant argues that Plaintiff failed to serve the discovery at issue on Mr. Katzoff. However, Katzoff’s email was not included on any pleading filed by Defendant prior to the instant motion and there is nothing else to indicate that Katzoff should have been included on the service. The issue of Katzoff being omitted from the service is not a basis for relief from the waiver.

In any event, Defendant failed to subsequently serve responses that are substantially compliant. Defendant provided responses with identical objections to Special Interrogatories Nos. 1-5. (Preonas Decl. ¶ 8; Exh. C.) Specifically, Defendant stating “Responding Party objects that this interrogatory improperly seeks to invalidate his contractual rights to control the digital infrastructural date [sic] of Bird Design, Inc.” (Preonas Decl. ¶ 8; Exh. C.) The responses are

unverified. CCP § 2030.210(a) requires that a response to interrogatories be responded to “in writing under oath.” “Unsworn responses are tantamount to no response at all.” (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.) Accordingly, Defendant has not technically responded to the special interrogatories at issue. Defendant’s responses are therefore not substantially compliant with CCP § 2030.210 and Defendant has not established he is entitled to relief from waiver of objections.

The Court DENIES Defendant’s Motion for Relief from Waiver.

MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET ONE, AND REQUEST FOR SANCTIONS

Plaintiff seeks an order compelling Defendant to provide further responses to Plaintiff’s Special Interrogatories, Set One, Nos. 1-5.

In California, discovery statutes “must be construed liberally in favor of disclosure unless the request is clearly improper.” (Williams v. Superior Court, supra, 3 Cal.5th 531, 541.) “Under the discovery statutes, information is discoverable if it is unprivileged and is either relevant to the subject matter of the action or reasonably calculated to reveal admissible evidence.” (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1186.) “Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action.” (Ibid.)

A party may move for an order compelling a further response to interrogatories where: (1) an answer to a particular interrogatory is evasive or incomplete; (2) an exercise of the option to produce documents under CCP § 2030.320 is unwarranted or the required specification of those documents is inadequate; or (3) an objection is without merit or is too general. (Code Civ. Proc., § 2030.300, subds. (a)(1)-(3).)

“While the party propounding interrogatories may have the burden of filing a motion to compel if it finds the answers it receives are unsatisfactory, the burden of justifying any objection and failure to respond remains at all times with the party resisting an interrogatory.” (Williams v. Superior Court, supra, 3 Cal.5th 531, 541.)

A. The Meet and Confer Requirement

“The Discovery Act requires that, prior to the initiation of a motion to compel, the moving party declare that he or she has made a serious attempt to obtain an informal resolution of each issue.” (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1016.) “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.” (Code Civ. Proc., § 2016.040.)

The Court finds that the meet and confer requirement has been met. (King Decl. ¶ 6; Exh. E.)

B. Timeliness of the Instant Motion

A motion to compel further responses must be made “within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing” otherwise “the propounding party waives any response to compel a further response to the interrogatories.” (Code Civ. Proc., § 2030.300, subd. (c).)

Here, Plaintiff received responses to her first set of special interrogatories on October 23, 2023, and did not file the motion to compel until December 11, 2023, which is 49 days from the date Defendant served his responses. (King Decl. ¶ 5; Exh. D.) However, Defendant’s responses are not verified and therefore Defendant has not technically served any responses to the discovery at issue under Appleton v. Superior Court, supra, 206 Cal.App.3d 632, 636. The court will accordingly construe this as a motion to compel initial responses.

C. Special Interrogatories Nos. 1-5 and Defendant’s Objections Thereto

Special Interrogatory No.1 states: “Provide all ‘LOG-IN CREDENTIALS’ for the following email account: tab@birdlosangeles.com. (As used in this set of interrogatories, LOG-IN CREDENTIALS includes usernames, passwords, security questions and answers, and any other information required to obtain full access to the account in question.)

Special Interrogatory No.2 states: “Provide all LOG-IN CREDENTIALS for the following email account: tabitha@birdlosangeles.com”

Special Interrogatory No.3 states: “Provide all LOG-IN CREDENTIALS for the following email account: adrienne@ birdlosangeles.com”

Special Interrogatory No.4 states: “Provide all LOG-IN CREDENTIALS for the following email account: peter@birdlosangeles.com

Special Interrogatory No.5 states: “Provide all LOG-IN CREDENTIALS for the admin account authorized to access the Google Admin console for Bird Design.”

(Plaintiff’s Separate Statement at pp. 6-15.)

Defendant responded to each interrogatory by stating “Responding Party objects that this interrogatory improperly seeks to invalidate his contractual rights to control the digital infrastructural date [sic] of Bird Design, Inc.” (Plaintiff’s Separate Statement, pp. 6-15.)

D. Appropriateness of Compelling Further Responses

Defendant argues that: (1) the motion is moot as to Special Interrogatories Nos. 1-3 because he has provided the login information requested in Special Interrogatories Nos. 1-3; and (2) Plaintiff has abandoned further response to Special Interrogatory No.4.

Defendant’s counsel declares that his office provided Plaintiff with the login credentials requested in the interrogatories as to the e-mail addresses of Plaintiff and the parties’ former bookkeeper, Adrienne Chang. (Preonas Decl. ¶ 3; Exh. A.) Defendant’s counsel states “[t]o do so, Defendant, as the administrator created new logins for those e-mails and I provided the logins to King via e-mail dated December 27, 2023.” (Preonas Decl. ¶ 3; Exh. A.) Defense counsel informed Plaintiff’s counsel that Defendant could not provide Plaintiff with the login credentials for the administrator of the e-mail system because Defendant has continued to use, maintain, and pay for the Google hosting of the e-mail, and Defendant has unrelated private matters there and is unable to substitute Plaintiff as the administrator. (Preonas Decl. ¶ 5.) Counsel states that “Defendant’s whole business, that is wholly unrelated to the subject matter of this litigation, is supported by the Google e-mail account and all his confidential business information is there.” (Preonas Decl. ¶ 5.)

In reply, Plaintiff contends that Special Interrogatories Nos. 1-4 are not moot. Plaintiff’s counsel declares that he never stated in communications with defense counsel that he was

withdrawing or would not pursue the instant motion as it concerns Special Interrogatory No. 4. (King Supp. Decl. ¶ 2.) Counsel states that he never told opposing counsel that Plaintiff was seeking to replace Defendant as the administrator of the Bird email system or obtain unilateral control thereof. (King Supp. Decl. ¶ 3.) Plaintiff declares that she could not access the email accounts at issue using the login credentials provided by Defendant. (De La Torre Decl. ¶¶ 2-3.) Plaintiff states that she is seeking login credentials to the Bird admin account to determine what actions Defendant took while in exclusive possession of her account. (De La Torre Decl. ¶5.) Plaintiff states she will happily stipulate not to change the credentials to the admin account once she has them. (De La Torre Decl. ¶ 5.)

The Court finds that Defendant’s objections to the interrogatories at issue are without merit. As stated above in ruling on Defendant’s motion for relief from waiver of objections, Defendant has waived any objections to the special interrogatories due to his failure to timely respond to Plaintiff’s special interrogatories. This includes the privacy objection to Special Interrogatory No. 5 first raised in the opposition brief, which was not set forth in Defendant’s response to such interrogatory.

Moreover, Defendant has failed to meet his burden in justifying the objections to the Special Interrogatories as the opposition presents no legal authority or argument as to his contractual rights to control the digital infrastructural data of Bird, which is his sole objection to all the interrogatories at issue. Indeed, Counsel’s declaration in opposition to the motion does not reference such a contractual right, and Defendant did not file a separate statement in opposition to Plaintiff’s motion.

The Court also finds that the information sought by Plaintiff pursuant to the special interrogatories is relevant. The crux of this action is that Defendant purportedly removed Plaintiff’s access to her Bird e-mail accounts. Plaintiff’s requests seek information as to Bird e-mail accounts, relates to the claims raised in this action, and may lead to the discovery of admissible evidence as to Defendant’s purported actions.

The Court therefore finds it appropriate to compel Defendant’s further responses. The Court GRANTS Plaintiff’s request to compel Defendant’s further responses to Plaintiff’s Special Interrogatories, Set One, Nos. 1-5.

Defendant is ORDERED to provide verified, complete, and code-compliant responses, without objections, to Plaintiff’s Special Interrogatories, Set One, Nos. 1 through 5 within 30 days of the date of this order.

E. Monetary Sanctions

“A basic rule of law and motion practice is the notice of motion shall state in the opening paragraph the nature of the order being sought and the grounds for the issuance of the order.” (Sole Energy Co. v. Hodges (2005) 128 Cal.App.4th 199, 207.) “A request for sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought.” (Ibid.)

Here, Plaintiff’s request for monetary sanctions is procedurally improper. The notice of motion does not state against whom monetary sanctions are sought.

The Court therefore DENIES Plaintiff’s request for monetary sanctions.

CONCLUSION

Based on the foregoing, the Court DENIES Defendant’s Motion for Relief from Waiver.

Plaintiff’s Motion to Compel Further Responses to Special Interrogatories is GRANTED IN PART. The Court GRANTS Plaintiff’s request to compel Defendant’s further responses to Plaintiff’s Special Interrogatories, Set One, Nos. 1-5. Defendant is ORDERED to provide verified, complete, and code-compliant responses, without objections, to Plaintiff’s Special Interrogatories, Set One, Numbers 1 through 5 within 30 days of the date of this order. The Court DENIES Plaintiff’s request for monetary sanctions.

Plaintiff is ordered to give notice of this ruling in its entirety.

IT IS SO ORDERED