Judge: Virginia Keeny, Case: LC106864, Date: 2022-10-28 Tentative Ruling
Case Number: LC106864 Hearing Date: October 28, 2022 Dept: W
lucky’s two-way radios, inc. et al., v.
cannata
(1)
motion to compel mental examination of
defendant/cross-complainant frank j. cannata (filed on 9/9/2022)
(2)
MOTION to compel further DISCOVERY responses; For
TERMINATING SANCTIONS; IN THE ALTERNATIVE, FOR ISSUE SANCTIONS (filed on
9/21/2022)
(3)
AMENDED motion to compel further discovery responses;
for terminating sanctions; for issue and evidentiary sanctions (filed on
9/26/2022)
Date of Hearing: October 28, 2022 Trial Date: March
13, 2023
Department: W Case
No.: LC106864
Moving Parties: (1)
Plaintiffs Lucky’s Two-Way Radios, Inc. and Buddy Corporation
(2)
Defendant and Cross-Complainant Frank J. Cannata
(3)
Defendant and Cross-Complainant Frank J. Cannata
Responding Parties: (1) Defendant and Cross-Complainant Frank J.
Cannata
(2)
No opposition filed for the second motion.
(3)
Plaintiffs Lucky’s Two-Way Radio, Inc. and Buddy Corporation
BACKGROUND
Plaintiffs Lucky’s Two-Way Radios, Inc.
and Buddy Corporation (“Plaintiffs”) allege that Frank J. Cannata (“Defendant”)
was a consultant for Plaintiffs’ business pursuant to a consulting services
agreement. While consulting for Plaintiffs, Defendant allowed or arranged for
valuable company property to be taken by “Mr. Recycling” without Plaintiffs’
consent. Plaintiffs further claim that on December 8, 2017, Defendant
improperly transferred proprietary information via e- mail to personal
accounts. Plaintiffs allege a loss of $500,000 in property.
On August 2, 2019, Defendant filed a
Second Amended Cross-Complaint (“SAXC”) against the Plaintiffs alleging 14
causes of action: 1) breach of contract; 3) indemnity & specific
performance, 5) unlawful retaliation – Lab. C. § 1102.5; 6) unlawful
retaliation – Lab. C. § 6310; 7) wrongful termination (Tameny); 10)
waiting time penalties – Lab. Co. §§ 201-202; 227.3; 11) inaccurate wage
statements – Lab. C. §§ 226 et seq.; 12) unpaid overtime – Lab. C. §§ 204, 510,
558, 1194; 13) false representations to induce acceptance of employment in
California – Lab. C. § 970; 14) fraud; 16) battery; 18) Stored Communications
Act (“SCA”) violations; 20) trespass; and 21) unfair, fraudulent, and unlawful
business practices – UCL. The numbering is listed as in the SAXC.
On September 13, 2021, Plaintiffs filed
their Fifth Amended Complaint (“5AC”), alleging: 1) breach of contract; 2)
conversion; 3) breach of fiduciary duty; 4) fraud and fraudulent concealment;
5) misappropriation of trade secrets (Civil Code § 3426); 6) unauthorized access
to computers, computer systems, and computer data (Penal Code § 502); 7)
intentional misrepresentation; 8) negligent misrepresentation; 9) specific
performance; and 10) permanent injunction.
Plaintiffs now move to compel
Defendant’s mental examination. Defendant opposes.
Defendant filed two motions to compel Plaintiffs’
further responses to his discovery requests: one on September 21, and the other
a few days later on September 26, 2022.
[Tentative] RulingS
Plaintiffs Lucky’s Two-Way Radios, Inc. and Buddy
Corporation’s Motion to Compel Mental Examination of
Defendant/Cross-Complainant, Frank J. Cannata is CONTINUED to November 9, 2022,
at 8:30 AM, Dept. W, to allow the parties to meet and confer concerning the
issues discussed in the motion. Parties
are ordered to file a joint statement 3 court days prior to the hearing setting
forth the results of their meet and confer.
Defendant and Cross-Complainant Frank J. Cannata’s Motion to
Compel Further Discovery Responses; for Terminating Sanctions; in the
Alternative, for Issue Sanctions (filed on September 21, 2022) is DENIED as
moot.
Defendant and Cross-Complainant Frank J. Cannata’s Motion to
Compel Further Discovery Responses; for Terminating Sanctions; for Issue and
Evidentiary Sanctions is DENIED in its entirety.
MOTION TO COMPEL
MENTAL EXAMINATION
Plaintiffs move to compel Defendant’s
mental examination.
A. Request for Judicial Notice
On September 9, 2022, Plaintiffs filed a request seeking
judicial notice of two documents filed in this case by Defendant: (1) Request
for Accommodations by Persons with Disabilities and Response filed on (Exhibit
A) and (2) Notice of Errata (Exhibit B).
The request for judicial notice is GRANTED. (Evid. Code., §
452, subd. (d) [providing that a court may take judicial notice of any court
records of this state].)
B. Objections
On September 28, 2022, Plaintiffs
filed evidentiary objections to Defendant’s request for judicial notice filed
on September 21, 2022, on the ground that the highlighted portion of the exhibit
(in which the Court only summarized Defendant’s argument in his moving papers)
is irrelevant, unfairly prejudicial, and lacks probative value.
The Court SUSTAINS the objection,
on relevance grounds.
C. Legal Standard
Where any party seeks to obtain discovery by a physical
examination other than that described in Section 2032.220, or by a mental
examination, the party shall obtain leave of the court. (Code of Civ. Proc., §
2032.310, subd. (a).)
A mental examination shall be performed only by a licensed
physician, or by a licensed clinical psychologist who holds a doctoral degree in
psychology and has had at least five years of postgraduate experience in the
diagnosis of emotional and mental disorders. (Code of Civ. Proc., § 2032.020,
subd. (c)(1).)
The court shall grant the motion only for good cause shown.
(Code of Civ. Proc., § 2032.310, subd. (a).)
D.
Analysis
A motion
seeking an order compelling mental examination “shall be accompanied by
a meet and confer declaration under Section 2016.040.” (Code
of Civ. Proc., § 2032.310, subd. (b) [emphasis added].) “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 of Civ. Proc., § 2016.040.)
Here,
Defendant argues (and the Court agrees) that Plaintiffs have failed to satisfy
the meet and confer requirement.
Plaintiffs’
counsel declares that on August 17, 2022, he sent defense counsel a “meet and
confer” letter (“August 17 Letter”) requesting that Defendant stipulate to an
independent medical examination (“IME”). (Motion, declaration of Peter Crossin
(“Crossin Decl.”), ¶ 5; Exhibit A – a copy of the letter.) The letter included
a demand requiring Defendant to appear for a mental examination on September
21, 2022, at 1:30pm, with Plaintiffs’ psychiatric medical expert (Dr. Saint
Martin), at Neurobehavioral Medicine and Law, 8616 La Tijera Blvd., Suite 400,
Los Angeles, CA 90045. (Crossin Decl., ¶ 6; Exhibit B, p. 2.) The August 17 Letter
demanded defense counsel to advise whether his client “will stipulate to the
IME …,” by August 19, 2022, at 5:00 p.m., only two days after the letter was
sent to defense counsel. (Motion, Exhibit A, p. 1.)
However, the
August 17 letter did not state that it was a “meet and confer” letter, or warn
defense counsel that if counsel failed to respond to the demand or otherwise
objected to it, that Plaintiffs intended to file the instant motion.
In response
to Defendant’s arguments concerning the meet and confer requirement, Plaintiffs
argue in their reply: “In the misguided belief that [defense counsel] would
also want to avoid unnecessary law and motion and agree to stipulate to the
Mental IME, [Plaintiff’s counsel] included a Demand for Mental IME [in the
August 17 Letter] to reduce unnecessary delays given the trial date at that
time was October 24, 2022.” (Reply, filed on September 28, 2022, p. 2:10-13.)
“The Demand for Mental IME was properly noticed pursuant to the statute as the
examination date was scheduled for September 21, 2022, more than thirty (30)
days later.” (Reply, p. 2:13-15.) Both parties acknowledge that there were 21
days between the date Plaintiffs’ counsel sent defense counsel the August 17
Letter, and the date Plaintiffs filed their instant motion on September 7,
2022. Plaintiffs essentially argue that because defense counsel failed to
respond within those 21 days, they showed good faith attempt to resolve the
issues presented in the instant motion.
However, as
Defendant points out, an IME requires leave of court. (Code
of Civ. Proc., § 2032.310, subd. (a).) Therefore, the fact that Defendant failed to
respond to the initial demand or agree to a date for the demand does not necessarily
mean that the Defendant failed or waived the right to meet and confer. In
addition, Plaintiffs’ reply ignores that the August 17 Letter only gave defense
counsel two (2) days to respond. Therefore, there was no reason for defense
counsel to believe that the 21 days between the dates Plaintiffs sent the
letter and filed their motion were available for the parties to meet and
confer.
The Court
finds there is no evidence that Defendant was aware of the issues presented in
the instant motion before this motion was filed or that Plaintiffs’ counsel
warned defense counsel of a potential motion to compel Defendant’s IME if he
failed to respond to the August 17 letter. Therefore, Plaintiffs have failed to
attach a declaration “showing a reasonable and good faith
attempt at an informal resolution of each issue presented by the motion,” as
required by Code of Civil Procedure section 2016.040.
Accordingly,
the Court will continue the hearing to allow the parties to meet and confer.
E. Conclusion
Plaintiffs’ Motion to Compel Mental Examination of Defendant
is CONTINUED.
MOTION TO COMPEL
FURTHER DISCOVERY RESPONSES
On September 21, 2022, Defendant filed
a “Motion to Compel Further Discovery Responses; for Terminating Sanctions; in
the Alternative, for Issue Sanctions; for a § 2023.050 Sanction of $250 Against
Peter H. Crossin; and for a § 2023.050(B) Self-Reporting Order.”
However, on September 28, 2022,
Defendant filed a Notice of Partial Withdrawal of that motion and its
accompanying declaration.
Accordingly, Defendant’s Motion to
Compel Further Discovery Responses (filed on September 21, 2022) is DENIED as
moot.
AMENDED MOTION TO
COMPEL FURTHER RESPONSES
On September 26, 2022, Defendant filed
an “Amended Motion to Compel Further Discovery Responses; for Terminating
Sanctions; for Issue and Evidentiary Sanctions; for a § 2023.050 Sanction of
$250 Against Peter H. Crossin; and for a § 2023.050(B) Self-Reporting Order.”
Plaintiffs oppose the motion.
A. Legal Standard
1)
Further Request for Production of
Documents
A motion to compel further responses to request for
production of documents (“RPDs”) may be brought when the responses contain: (1)
“a statement of compliance when the demand is incomplete;” (2) “answers that
are inadequate, incomplete or evasive;” and (3) “an objection to a particular
request is without merit or too general.” (Code Civ. Proc. § 2031.310.)
A motion to compel further responses must set forth specific
facts showing good cause justifying the discovery sought by the demand. (Code
Civ. Proc., § 2031.310, subd. (b)(1).) It is not necessary for the motion to
show that the material sought will be admissible as evidence. “Good cause” may
be found to justify discovery where specific facts show that the discovery is
necessary for effective trial preparation or to prevent surprise at trial. (Associated
Brewers Dist. Co. v. Superior Court (1967) 65 Cal.2d 583, 586-58.)
Furthermore, “[a] motion under subdivision (a) shall be accompanied by a meet
and confer declaration under Section 2016.040. In lieu of a separate statement
required under the California Rules of Court, the court may allow the moving
party to submit a concise outline of the discovery request and each response in
dispute.” (Code Civ. Proc., § 2031.310(b)(2-3).)
A party waives his right to compel further responses unless he
provides notice of the motion to compel further RPDs within 45 days of 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.” (Code Civ. Proc., § 2031.310, subd. (c).)
2)
Terminating,
Issue, and Evidentiary Sanctions
If a party engages in the misuse of the discovery
process, the court may impose monetary, issue, evidence, or terminating
sanctions. (Code Civ. Proc., § 2023.030.)
“Misuses of the discovery process include, but are not
limited to, the following: . . . (d)
Failing to respond or to submit to an authorized method of discovery . . . (g) Disobeying a court order to provide
discovery.” (Code Civ. Proc., § 2023.010.)
“The trial court may order a terminating sanction for
discovery abuse ‘after considering the totality of the circumstances: [the]
conduct of the party to determine if the actions were willful; the detriment to
the propounding party; and the number of formal and informal attempts to obtain
the discovery.’” (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th
377, 390, quoting Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.)
B. Request to Compel Further Response to
Request for Production of Documents
Defendant
moves to compel Plaintiffs’ further responses to his Inspection for Demands,
Set Eight, No. 112. (Separate Statement, filed on September 26, 2022, p.
2:6-20.)
Notice of motions to compel further responses to requests production of
documents must be given within 45 days of service of the verified responses,
supplemental verified responses, or a specific later date that the parties have
agreed to in writing. (Code
Civ. Proc., § 2031.310, subd. (c).) If not, the requesting party waives any
right to compel further responses to the requests. (Code Civ. Proc., § 2031.310, subd.
(c).)
“‘Failure to
[timely move to compel] within the specified period constitutes a waiver of any
right to compel a further response; indeed, similar provisions have been held
at least quasi-jurisdictional. [Citations.]’ [Citation.] We do not believe the
45–day limitation is ‘jurisdictional’ in the fundamental sense, but is only
‘jurisdictional’ in the sense that it renders the court without authority to
rule on motions to compel other than to deny them.” (Sexton v.
Superior Court (1997) 58 Cal.App.4th 1403, 1410 [emphasis added]; see also Weinstein
v. Blumberg (2018) 25 Cal.App.5th 316, 322, fn. 3 [“[D]iscovery deadlines
are mandatory and we have treated them as jurisdictional [citation], even
though a trial court may grant relief from deadlines to file motions to compel.
Where a party does not obtain trial court relief from the statutory deadline,
‘failure to move for further answers within the statutory time forecloses
further relief ....’ [Citation]”].)
Here,
Plaintiffs testify (and Defendant does not deny) that Plaintiffs served their
further response to No. 112, on August 2, 2022, electronically.
(Opposition, filed on October 14, 2022, Crossin Decl., ¶ 2.)
Therefore, Defendant had 45 days plus two (2) court days from that date to file
the motion. (See Civ. Code. Proc., § 1010.6(a)(4)(B) [extending by two court
days any duty to do any act after service of a document by electronic means].)
This means that Defendant had until September 20, 2022, to file and serve his
motion. (Evid. Code § 452, subd. (h) [providing that a court may take judicial
notice of a fact not reasonably subject to dispute and capable of immediate and
accurate determination].) However, Defendant did not file this amended
motion until September 26. Therefore, the motion is untimely, and the court is
without jurisdiction to rule on Defendant’s request to compel Plaintiffs’
further responses to Inspection Demand, No. 112.
Accordingly, the Court DENIES Defendant’s request to compel
Plaintiffs’ further responses to Defendant’s Inspection for Demands, Set Eight, No. 112.
C. Request to Impose Terminating, Issue,
and/or Evidentiary Sanctions
“Generally, ‘[a] decision to order terminating sanctions
should not be made lightly. But where a violation is willful, preceded by a
history of abuse, and the evidence shows that less severe sanctions would not
produce compliance with the discovery rules, the trial court is justified in
imposing the ultimate sanction.’” (Los Defensores, supra, 223 Cal.App.4th at
p. 390 (citation omitted).)
The Court cannot grant Defendant’s request for
terminating, issue, evidentiary, monetary, or other sanctions against
Plaintiffs or their counsel for the following reasons.
First, Defendant cannot accuse Plaintiffs of allegedly
misusing the discovery process and foregoing statutory meet and confer
requirements (as argued in his opposition to Plaintiffs’ motion to compel his
IME) while at the same engaging in gamesmanship to obtain unfair advantage.
California Rules of Court, rule 2.108(1) clearly states: “The lines on each
page [of a motion] must be one and one-half spaced or double-spaced and
numbered consecutively.” In addition, rule 3.1113(d) requires: “Except in a
summary judgment or summary adjudication motion, no opening or responding
memorandum may exceed 15 pages.” Perhaps realizing the 15-page limitation,
Defendant condensed his lines on each page of his motion to fit the 15-page
limit, but clearly violated the rule requiring that each line must be one and
one-half spaced or double-spaced. Indeed, instead of 28 lines on a page, there
are 35. Which means had Defendant properly followed the rules, he would have
been 3.75 pages over the 15-page limit.
Second, despite the length of Defendant’s brief and
defense counsel’s declaration (which has 115 paragraphs), it is unclear exactly
what Plaintiffs did wrong to warrant terminating, issue, evidentiary, or other sanctions.
Defendant goes on a tangent, vigorously listing the discovery requests that
this Court allegedly compelled Plaintiffs to serve responses to and makes a lot
of arguments, but fails to clearly state (1) which order compelled Plaintiffs
to serve responses to which requests, (2) whether there was a deadline imposed
for those responses, and (3) how many times Plaintiffs failed to obey the
Court’s order. Without those basic facts outlined in a clear manner, the Court
cannot impose such drastic sanctions on the Plaintiffs.
Third, defense counsel’s declaration is not helpful.
While parties often expect their counsel to zealously advocate on their behalf,
counsel must remember that he has a duty to be professional towards this court
and other parties. Here, counsel’s declaration spends pages making arguments instead
of attesting to matters relevant to this Court’s determination of whether
Plaintiffs engaged in misuse of discovery process.
For those reasons, the Court denies Defendant’s request
to impose sanctions against Plaintiffs and their counsel.
D. CONCLUSION
Defendant’s Motion to Compel Further Discovery Responses;
for Terminating Sanctions; for Issue and Evidentiary Sanctions (filed on
September 26, 2022) is DENIED in its entirety.