Judge: Stephen P. Pfahler, Case: 21CHCV00760, Date: 2023-08-29 Tentative Ruling

Case Number: 21CHCV00760    Hearing Date: September 6, 2023    Dept: F49

Dept. F-49

Date: 9-6-23

Case # 21CHCV00760

Trial Date: 1-22-24

PROTECTIVE ORDER

MOVING PARTY: Defendant/Cross-Complainant, Olga Kapustin

RESPONDING PARTY: Plaintiffs/Cross-Defendants, Maya Shulman dba Shulman Family Law Group

RELIEF REQUESTED

Motion for Protective Order

SUMMARY OF ACTION

Plaintiff Maya Shulman dba. Shulman Family Law Group alleges Defendant Olga Kapustin owes $93,931.48 for legal services rendered.

On September 30, 2021 and January 14, 2022, Plaintiff filed a complaint and first amended complaint for Breach of Contract, and Common Counts. Defendant answered and filed a cross-complaint for fraud and declaratory relief on June 6, 2022.

On September 26, 2022, the case was assigned from Department 49 to Department 51. Following a 170.6, the case was assigned back to Department 49 on October 25, 2022.

RULING: Denied.

Defendant/Cross-Complainant, Olga Kapustin moves for a protective order as to Request for Admissions (set 5) served by plaintiffs/cross-defendants, Maya Shulman, a Law Corporation dba Shulman Family Law. Kasputin maintains the requests were served without a supporting declaration, and the latest set is otherwise excessive. Shulman in opposition maintains the motion lacks a supporting meet and confer effort, was untimely filed, and the declaration in support of additional discovery was sufficient. Kasputin in reply maintains an “informal” effort was made to resolve the “excessive discovery” issue, the motion was timely filed, and the declaration in support of further discovery lacks compliance.

“When requests for admission have been made, the responding party may promptly move for a protective order. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2033.080, subd. (a).) A Court may make any order that justice requires to protect a party from “unwanted annoyance, embarrassment or oppression or undue burden and expense.” (Code Civ. Proc., § 2033.080, subd. (b).) The burden of proof is on the party seeking the protective order to show “good cause” for the order he or she seeks. (Fairmont Insurance Co. v. Superior Court (2000) 22 Cal.4th 245, 255.)  “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 discovery was served on March 30, 2023, by e-mails service according to moving counsel. [Gentino Decl., Ex. A.] Responses were due by Monday May 3, 2023 given the two day extension for electronic service and compliance date falling on a Saturday. (Code Civ. Proc., §§ 12, 12b, 1005, subd. (b), 1010.6.) The motion was filed on May 3, 2023—the exact date the responses were due. The court finds the motion timely.

The court contains a terse meet and confer effort, which relies on conclusions regarding the insufficiency of the declaration for additional discovery. [Gentino Decl., Ex. C.] The court declines to make a qualitative determination on the merits, and finds the meet and confer sufficient, especially given the extensive attrition based tactics engaged by both sides in this action.

The subject motion constitutes the second of this nature following the June 28, 2023, motion for protective order as to Request for Admissions (Set 4). The subject items seek unpaid invoice information, but according to Kasputin the declaration only states the discovery was propounded as described in the declaration: “Defendant has attacked the legal capacity of Plaintiff to contract, Defendant’s commitment to having Plaintiff represent her, issues related to insurance disclosures, and alleged ‘unconscionable’ terms in the disputed retainer agreement. Each of these allegations, not to mention the general denial, affirmative defenses, and allegations in the cross-complaint, must be fully examined, analyzed and vetted.” Plaintiff counters that the subject items constitute a follow-up from the withdrawn set of Request for Admissions (set 3), when Plaintiff omitted a declaration justifying further responses.

The opposition and declaration of Plaintiff’s counsel lacks a specific response to the challenges raised to the declaration, and instead relies on collateral opinions regarding the tactics of opposing counsel. Again, given the history of the subject case and the inordinate, continuing resource burden forthcoming the regularly presented disputes to the court from this action, the court finds the declaration sufficient within the context of the subject action. The sought after information is relevant to the adjudication of the action, and the court favors a policy of completed discovery before the January 22, 2024, trial date. The court finds no sufficiently articulated basis beyond the form over substance challenge of the supporting declaration. The motion for protective order is therefore DENIED on grounds of an insufficient showing warranting preclusion of the subject discovery.

Court policy favors the imposition of sanctions against a party bringing unmeritorious motions. Plaintiffs/Cross-Defendants requests sanctions. The court generally declined to award sanctions to either party on the basis due to the continuing series of discovery motions--some of which are heard, some of which go off-calendar before the hearing date, some of which maintain questionable bases for even being presented to the court—on grounds of further incentivizing continuing the motion practice. The court however now imposes sanctions and reminds the parties of continuing consideration of referee referral, even on an expedited basis should the parties seek to propound last minute discovery on the eve of trial and the discovery cutoff.

Sanctions in the amount of $250 against Kasputin and counsel of record Gentino joint and several and payable within 30 days. (Code Civ. Proc., § 2033.080, subd. (d).)

Trial remains set for January 22, 2024.

Kasputin to give notice.

Dept. F-49

Date: 9-06-23

Case # 21CHCV00760

Trial Date: 1-22-24

ADMISSIONS

MOVING PARTY: Plaintiff, Maya Shulman dba Shulman Family Law Group

RESPONDING PARTY: Defendant, Olga Kapustin

RELIEF REQUESTED

Motion to Deem Request for Admissions Admitted

SUMMARY OF ACTION

Plaintiff Maya Shulman dba Shulman Family Law Group or Maya Shulman, a Law Corporation DBA Shulman Family Group alleges Defendant Olga Kapustin owes $93,931.48 for legal services rendered.

On September 30, 2021 Maya Shulman dba Shulman Family Law Group filed a complaint for Breach of Contract, and Common Counts. On January 14, 2022, Maya Shulman, a Law Corporation DBA Shulman Family Group filed a first amended complaint for Breach of Contract, and Common Counts. On June 6, 2022, Kasputin answered the complaint, and filed  cross-complaint for Fraud and Declaratory Relief.

On September 26, 2022, the case was assigned from Department 49 to Department 51. Following a 170.6, the case was assigned back to Department 49 on October 25, 2022.

RULING: Denied Subject to Service of Responses

Plaintiff Maya Shulman dba Shulman Family Law Group moves to deem Request for Admissions (set five) admitted. Defendant Olga Kapustin counters that the subject discovery should be subject to a protective order. 

The separately filed 85 page declaration to the 90 page motion represents service of Request for Admissions (set five) on March 30, 2023, though no proof of service of the discovery is incorporated. [Declaration of Joshua Friedman, ¶ 2, Ex. A.] According to Plaintiff, at the time of the filing of the motion, no responses were received. [Id., ¶ 7.] The court finds the subject motion proper and not barred by the protective order. The motion is therefore conditionally denied.

Because Kasputin properly filed a motion for protective order, the court grants Kasputin 10 days from the date of this order to comply. The court refrains from entering sanctions at this time given the motion was filed nine (9) days after the protective order. Failure to timely serve responses opens the door for an ex parte request to deem the non-responded items admitted and imposition of sanctions. (Code Civ. Proc., § 2033.080, subd. (c).)

If the responses consist of objections, warranted or otherwise, and a motion to compel further responses is presented, the court will consider setting an OSC re: Referee Referral on an expedited basis in lieu of any hearing.

Trial remains set for January 22, 2024.

Plaintiff to give notice.