Judge Teresa A. Beaudet, Case BC719661 2022-08-16 Tentative Ruling

Plaintiff Dean Zamani (“Zamani”) filed this action on August 29, 2018 against Defendants Rostam Law Group and Glenn Mertens, Esq. (“Mertens”) (jointly, “Defendants”). The Complaint asserts a cause of action for general negligence (legal malpractice). In the Complaint, Zamani alleges, inter alia, that Defendants negligently represented Zamani in the Los Angeles Superior Court action Dean Zamani vs The Pacific Huntington Hotel Corporation, et al., Los Angeles Superior Court Case No. BC482856 (the “Underlying Action”). (Compl., p. 4.)

On January 24, 2019, Mertens filed a Cross-Complaint for indemnity and contribution against Neil C. Newson & Associates.

Zamani now moves for an order “permitting the completion of document production discovery in this matter” pursuant to Code of Civil Procedure sections 473(b) and 2024.050. Mertens opposes.

The Discovery Act provides that, unless otherwise ordered, all discovery proceedings must be completed 30 days before the date initially set for trial, and all discovery motions must be heard on or before the 15th day before the date initially set for trial. (Code Civ. Proc.,

§ 2024.020.) On motion of any party, the court may allow discovery proceedings to be completed after the “cut-off” date or allow a motion concerning discovery heard closer to the initial trial date. (Code Civ. Proc., § 2024.050, subd. (a).) Such a motion must be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2024.050, subd. (a).) In exercising its discretion to grant or deny such motions, the court must take into consideration any relevant matter, including the following:

2. The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier.

3. Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party.

4. The length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action.

In addition, Code of Civil Procedure section 473, subdivision (b) provides in pertinent part, “[t]he court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect…”

Zamani seeks leave to complete document production in this matter pursuant to Code of Civil Procedure section 2024.050 and Code of Civil Procedure section 473, subdivision (b). Zamani submits the declaration of his counsel, Isaac H. Braddock (“Braddock”), who indicates that he has also been counsel for Zamani in the Underlying Action since May 2018. (Braddock Decl., ¶ 1.) Braddock appears to indicate that he failed to produce certain documents from the file in the Underlying Action in response to discovery requests in the instant case. (Braddock Decl., ¶¶ 2, 3, 6.) Zamani indicates that these documents include a proposed “8-year lease extension” (which he refers to as “Exhibit 12”)[1] as well as interrogatory responses purportedly from Zamani to the “Hotel” (referred to as “Exhibit 13”)[2]. (Braddock Decl., ¶¶ 3, 4, 6.) Zamani states that the proposed 8-year lease extension document is responsive to Mertens’s Request for Production, Set One, which was served on February 2, 2019. (Zamani Decl., ¶ 10, Ex. B.)

In the opposition, Mertens first asserts that it is not clear which new documents Zamani is seeking leave to add to his discovery production. As Mertens notes, although “Exhibit 12” (the lease document) is attached as Exhibit “A” to Zamani’s Declaration, Zamani’s proposed “Exhibit 13” is not included in the moving papers. Although Mertens points out that two documents apparently have been referenced elsewhere as Exhibit 13, including one that pertains to a criminal matter, it is obvious from the motion that the document that references the criminal matter is not the Exhibit 13 that Zamani is discussing in this motion.

Next, Mertens contends that Zamani’s arguments as to the significance of the subject documents are irrelevant for purposes of the motion. However, pursuant to Code of Civil Procedure section 2024.050, subdivision (b)(2), “[i]n exercising its discretion to grant or deny [a motion for leave to complete discovery proceedings], the court shall take into consideration any matter relevant to the leave requested, including, but not limited to…(1) The necessity and the reasons for the discovery.”

Lastly, Mertens contends that the motion fails to provide any credible explanation for why the proposed Exhibits 12 and 13 were not produced in response to Mertens’s discovery requests in 2019, in response to a supplemental document request from Mertens in 2020, or during a six-month process of preparing the joint exhibit list. The Court disagrees. As Mertens notes, Zamani’s counsel (Braddock) indicates that he learned of “Exhibit 12” in May of 2022. (Braddock Decl., ¶ 4) and he explained how it was that “Exhibit 13” was included amongst documents produced to the expert without any recognition thereof by Braddock. This is the mistake that he seeks to remedy.

The Court finds that the motion should be granted for the reasons set forth in the motion, and discovery should be allowed after the “cut-off” date as to both Exhibit 12 and Exhibit 13. The Court orders Zamani to email serve Mertens with supplemental discovery responses that pertain to Exhibits 12 and 13, with copies thereof attached, by August 18, 2022. If Exhibit 13 is not as described by Zamani (i.e., “the Interrogatory Responses served on the Hotel in November, 2016,”), this ruling is without prejudice to Mertens seeking relief therefrom. If Mertens wishes to take the deposition of Zamani with regard to Exhibit 12 and/or Exhibit 13, he may do so on a mutually agreeable date on or before September 6, 2022.

[1]Zamani indicates that he was the sole owner of the florist shop “Flowers By Piccolo,” and that he learned from prior counsel in the Underlying Action that the “Hotel” was making a settlement offer, consisting of a cash bonus of $100,000.00, plus an 8-year extension of its lease to Flowers By Piccolo. (Zamani Decl., ¶¶ 1-2.) Zamani indicates that Mertens, who substituted in as counsel in the Underlying Action, advised Zamani to reject this offer. (Zamani Decl., ¶ 4.)

[2] Zamani indicates that “[i]n May, 2018, when prepping documents to be sent to our expert, in this matter…Exhibit “13” turned up. This was the first time I had ever seen the document, although I recognized the Verification form attached to it as one I had signed in bulk back in 2016 at Mertens’ request.” (Zamani Decl., ¶ 7.) On August 9, 2022, Zamani filed a Declaration indicating that the reference to “2018” was a typographical error and that the correct year should have been “2022.” Braddock also states that he sent “Exhibit 13” to Zamani’s expert in this case in May 2022. (Braddock Decl., ¶ 6.)

DEAN ZAMANI, Plaintiff, vs. ROSTAM LAW GROUP, et al., Defendants.	Case No.:	BC719661
	Hearing Date:	August 16, 2022
	Hearing Time:	10:00 a.m.
	[TENTATIVE] ORDER RE: PLAINTIFFS MOTION TO COMPLETE DISCOVERY PURSUANT TO C.C.P. § 2024.050 & 473(b)
AND RELATED CROSS-ACTION

Superior Court of California

County of Los Angeles

Department 50