Judge Virginia Keeny, Case 21VECV01604 2023-02-15 Tentative Ruling

Judge: Virginia Keeny, Case: 21VECV01604, Date: 2023-02-15 Tentative Ruling

Case Number: 21VECV01604 Hearing Date: February 15, 2023 Dept: W

AVEDIS DONOYAN v. SOLOMON COHEN, et al.

Plaintiff’s motions to compel discovery

Date of Hearing: February 15, 2023 Trial Date: None set.

Department: W Case No.: 21VECV01604

Moving Party: Plaintiff Avedis Donoyan

Responding Party: Defendant Solomon Cohen

BACKGROUND

This is a quiet title action. Plaintiff Avedis Donoyan alleges they purchased certain real property from Defendant Solomon Cohen upon Defendant’s representation that Plaintiff purchasing the property would be a good financial investment. Upon the short sale being approved by the Bankruptcy Court, Plaintiff raised monies from his family members. Plaintiff further alleges they paid $770,000 to Wells Fargo and $100,000 to Defendant as part of the terms of the short sale. Plaintiff further alleges Defendant misrepresented to Plaintiff that he would make Plaintiff a member of an LLC and that it would then be beneficial for Plaintiff to transfer the property to the LLC. Plaintiff discovered Defendant never made Plaintiff a member of the LLC and ultimately transferred the property from the LLC back to Defendant. Plaintiff also alleges Defendant wrongfully caused the LLC to borrow $800,000 from S&R Income Fund and use the subject property as collateral without letting Plaintiff know. Plaintiff further alleges Defendant breached an oral agreement sell the property back to Defendant.

Plaintiff Avedis Donoyan filed a Second Amended Complaint (“SAC”) against Defendants Solomon Cohen and 4796 Del Moreno LLC asserting causes of action for (1) Quiet Title; (2) Clearing Cloud on Title; (3) Fraud; (4) Negligent Misrepresentation; (5) Unjust Enrichment; and (6) Breach of Contract.

[Tentative] Ruling

Plaintiff’s Motion to Compel Further Responses to First Set of Form Interrogatories from Defendant Solomon Cohen is GRANTED.

Plaintiff’s Motion to Compel Further Responses to First Set of Request for Production of Documents from Defendant Solomon Cohen is GRANTED.

Plaintiff’s Motion to Compel Further Responses to First Set of Special Interrogatories from Defendant Solomon Cohen is GRANTED.

Plaintiff’s Motion to Compel Further Responses to First Set of Request for Admissions from Defendant Solomon Cohen is GRANTED.

discussion

Plaintiff moves the court for an order compelling Defendant Cohen’s responses to Plaintiff’s Form Interrogatories (Set One), Special Interrogatories (Set Two), Request for Admissions (Set One), and Request for Production of Documents (Set One). Plaintiff also moves this court for an order Defendant Cohen and/or his counsel, Barney Balonick, pay the sum of $3,181.65 per motion.

A propounding party may bring a motion to compel further responses to interrogatories, requests for production, or request for admissions if it believes the received responses are evasive or incomplete or the objections raised are meritless or too general. (CCP §§2030.300(a), 2031.310(a), 2033.290(a).) Objections to interrogatories and demands for production are not required to be verified because “objections are legal conclusions interposed by counsel, not factual assertions by a party.” (Blue Ridge Insurance Co. v. Superior Court (1988) 202 Cal.App.3d 339, 345.) A motion to compel further responses “shall be accompanied by a meet and confer declaration.” (CCP §§ 2030.300(b); 2031.310(b), 2033.290(b).)

The court first addresses the parties meet and confer obligations. Defendant argues the motion must be denied due to Plaintiff’s failure to meet and confer. Specifically, Defendant contends the meet and confer letter was sent after Plaintiff had reserved this motion and the discussions prior concerned only Plaintiff’s testimony and the filing of the second amended complaint. Plaintiff disputes this and notes they sent a meet and confer letter to which Defendant’s counsel failed to respond. The court questions whether the tone and tenor of either party’s counsel reflects a good faith effort by either party to informally resolve the dispute. Nevertheless, the court believes it is clear that the parties have reached an impasse as to this issue and the court will address the motion on its merits. (See Volkswagenwerk Aktiengesellschaft v. Superior Court (1981) 122 Cal.App.3d 326, 332.)

Turning to the merits of the motion, Plaintiff first argues Defendant’s responses are late. Plaintiff states Defendant’s responses were due no later than October 23, 2022. (Arnold Decl. ¶11.) However, Defendant’s responses and proofs of service are dated October 24, 2022. (Arnold Decl. ¶12.) As a result, Defendant’s objections have been waived. In opposition, Defendant argues Plaintiff’s counsel stated the October 24, 2022 response would be “fine” and even if they are deemed late, one day late does not result in a waiver. Because there appears to be a dispute between counsel as to whether Defendant was given more time to respond to the discovery requests, the court relieves Defendant of any waiver that may have occurred by the October 24, 2022 service. (CCP §2031.300(a)(2).)

Plaintiff next argues Defendant’s objections are inadequate, incomplete, and improper. Plaintiff contends there is a strong and relevant relationship between the information sought by these interrogatories and the issues framed in both the SAC and in Defendant Cohen’s answer, claims and defenses. Moreover, any deficiencies in pleadings generally do not affect either party’s right to conduct discovery and as such, the standing objection is improper.

In opposition, Defendant argues their standing objection is jurisdictional and therefore, can never be waived. While it is true a plaintiff’s lack of standing to sue on a claim is treated as a jurisdictional defect (See Cummings v. Stanley (2009) 177 Cal.App.4th 493, 501), Defendant has previously raised the issue of standing on demurrer and this court has addressed it. As such, any failure to respond to Plaintiff’s propounded discovery is improper.

The court notes Defendant did provide amended responses in their opposition. However, as noted by Plaintiff, the verifications are not properly signed. Moreover, many of the amended responses are blank. Defendant must provide amended responses to the blank responses and properly signed verifications within 20 days. Defendant must also provide documents requested and a privilege log for any withheld within that period.

Monetary Sanctions

Plaintiff requests this court grant Plaintiff’s request for sanctions for $12,726.60 ($3,181.65 per motion). Plaintiff argues sanctions are warranted because Defendant’s are stonewalling Plaintiff’s legitimate discovery efforts and despite Defendant’s service of the amended responses, the responses still contain several issues. Plaintiff’s counsel bills at the rate of $400/hour.

The court agrees. This court has already ruled on Defendant’s standing objection twice. Even so, deficiencies in pleadings generally do not affect either party’s right to conduct discovery. (See Mattco Forge, Inc. v. Arthur Young & Co. (1990) 223 Cal.App.3d 1429, 1437.) Moreover, as noted by Defendant, standing is jurisdictional and can be made at any time. Thus, Defendant should have responded to discovery.

The court grants Plaintiff’s request for sanctions in the reduced amount of $4304.95 (4 hours to prepare initial motion and one and a half hours each to prepare the remaining motions, 1.8 hours to prepare the reply to the opposition and attend the hearing and the $184.95 in filing fees). The motions are nearly identical. Moreover, the court finds only one appearance was necessary on all four motions. Defendant is ordered to pay sanctions to Plaintiff.