Judge Walter P. Schwarm, Case 30-2018-01002061 2022-10-25 Tentative Ruling

Judge: Walter P. Schwarm, Case: 30-2018-01002061, Date: 2022-10-25 Tentative Ruling

Motion No. 1:

Cross-Complainant’s (Nili N. Alai) Motion for Order Deeming Admitted Truth of Facts (RFA Set One Jocelyn Plummer), filed on 3-18-19 under ROA No. 368 (Motion), is DENIED as set forth below:

Code of Civil Procedure section 2033.280, states, in part, “If a party to whom requests for admission are directed fails to serve a timely response, the following rules apply: . . . [¶] (b) The requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the request be deemed admitted, as well as for a monetary sanction under Chapter 7 (commencing with Section 2023.010.)”

Here, on 11-28-18, Cross-Complainant served Cross-Defendant (Jocelyn Plummer) with “Defendant’s Request for Admissions to Cross-Defendant Jocelyn Plummer Set No. One.” (Alai Decl., ¶ 2 Exhibits A and C.) The declaration from Cross-Complainant indicates that Plaintiff had not provided responses to this discovery request as of 3-15-19. (Alai Decl., ¶ 5.)

Cross-Defendant’s Opposition to Motion to Compel Response to Request for Admissions Set 1 (Opposition), filed on 5-30-19 under ROA No. 511, states, “As noted from the timeline, NILI ALAI claims that she propounded discovery while all discovery was stayed as a result of her own filing and then she proceeded to file the subject Motion to Compel while the discovery was stayed.” (Opposition; 3:22-24.)

On 11-15-18 under ROA No. 165, Defendant filed a “Motion to Deem High Frequency Plaintiff Mark B. Plummer a Vexatious Litigant Pursuant to Code of Civil Procedure § 391” (Vexatious Litigant Motion).

Code of Civil Procedure section 391.6 provides in part, “Except as provided in subdivision (b) of Section 391.3, when a motion pursuant to Section 391.1 is filed prior to trial the litigation is stayed, and the moving defendant need not plead, until 10 days after the motion shall have been denied, or if granted, until 10 days after the required security has been furnished and the moving defendant given written notice thereof. . . .”

On 12-18-18 under ROA No. 194, Cross-Defendants (Law Offices of Mark B. Plummer and Jocelyn B. Plummer) filed a “Special Motion to Strike” (MTS) pursuant to Code of Civil Procedure section 425.16. Code of Civil Procedure section 425.16, subdivision (g), states, “All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this section. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion. The court, on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subdivision.”

On 2-5-19 under ROA No. 263, the court denied Defendant’s Vexatious Litigant Motion. The discovery stay as to the MTS, however, remained in effect. On 3-18-19, Defendant filed this Motion. On 5-7-19, the court denied Plaintiff’s MTS. On 5-10-19 under ROA No. 489, Plaintiff filed a Notice of Appeal as to the court’s ruling on the MTS. Varian v. Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 186 (Varian), states, “We now determine whether the perfecting of an appeal from the denial of a special motion to strike automatically stays all further trial court proceedings on the merits upon the causes of action affected by the motion. We conclude that it does.”

Under Varian, the stay remained in effect until the Court of Appeal issued its Remittitur on 11-12-20 under ROA No. 707.

Defendant’s filing of the Vexatious Litigant Motion stayed the litigation in this action, and Plaintiff did not have an obligation to respond to this discovery request during the period that the stay was in effect pending the Vexatious Litigant Motion. This stay continued when Plaintiff filed the MTS. Based on the Vexatious Litigant Motion and the MTS, the stay was in effect from 11-15-18 to 11-12-20. The stay based on the MTS was in effect when Defendant filed this Motion. Thus, Defendant did not have the authority to file this Motion on 3-18-18 because the stay was in effect.

On 9-9-21, the court denied the motion for the reasons discussed above. (9-9-21 Minute Order.)

The litigation was stayed again on 9-24-21 based on the filing of Cross-Complainant’s (Sam Nabili) Motion to Deem Plaintiffs Law Offices of Mark B. Plummer and Mark B. Plummer Vexatious Litigations, filed on 9-13-21 under ROA No. 960 (Second Vexatious Litigant Motion) pursuant to Code of Civil Procedure section 391.6.

On 3-8-22, the court denied the Second Vexatious Litigant Motion which lifted the stay. (3-8-22 Minute Order.)

On 5-31-22, the court issued a minute order stating, “Plaintiff and Defendants are to prepare a Joint Statement, of no more than 5 pages, identifying which motions need to be rescheduled and explaining each sides position as to the status of the case. The parties Joint Statement is to be filed no later than 06/17/2022.” (5-31-22 Minute Order.) Defendant submitted a statement on 6-21-22 (ROA No. 1038) requesting that the present motion be set for hearing. Plaintiff (Law Offices of Mark B. Plummer did not submit a statement.

On 10-11-22 under ROA No. 1099, Plaintiff (Law Offices of Mark B. Plummer) and Cross-Defendant filed an Opposition to Motion to Deem Facts Admitted that repeated the contentions from the initial opposition.

Based on the above, the court DENIES Cross-Complainant’s (Nili N. Alai) Motion for Order Deeming Truth of Facts, filed on 3-18-19 under ROA No. 368. The court does not award Plaintiff’s request for a monetary sanction because Code of Civil Procedure section 2033.280, subdivision (c), does not authorize a monetary sanction in the favor the party to whom request for admission have been directed. However, “Management of discovery generally lies within the sound discretion of the trial court. [Citations.]” (Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1612; See also, Kleitman v. Superior Court (1999) 74 Cal.App.4th 324, 330 (Kleitman).) Here, due to the procedural history described above, the court exercises its discretion and deems “Defendant’s Request for Admissions to Cross-Defendant Jocelyn Plummer Set No. One” to have been served as of the date of service of notice of this ruling. Jocelyn Plummer shall serve responses to this discovery request within 30 days of service of notice of the ruling.

Plaintiff is to give notice.

Motion No. 2:

Cross-Complainant’s (Nili N. Alai) Motion for Order Deeming Admitted Truth of Facts as to Requests for Admissions, Set Four directed to Law Offices of Mark B. Plummer (Motion), filed on 3-18-19 under ROA No. 369, is DENIED as set forth below:

Here, on 11-28-18, Cross-Complainant served Plaintiff (Law Offices of Mark B. Plummer) with “Defendant’s Request for Admissions to Plaintiff Law Offices of Mark B. Plummer Set No. Four.” (Alai Decl., ¶ 2 Exhibits A and C.) The declaration from Cross-Complainant indicates that Plaintiff had not provided responses to this discovery request as of 3-15-19. (Alai Decl., ¶ 5.)

For the reasons set forth as to Motion No. 1, the court DENIES Cross-Complainant’s (Nili N. Alai) Motion for Order Deeming Admitted Truth of Facts as to Requests for Admissions, Set Four directed to Law Offices of Mark B. Plummer filed on 3-18-19 under ROA No. 369. The court does not award Plaintiff’s request for a monetary sanction because Code of Civil Procedure section 2033.280, subdivision (c), does not authorize a monetary sanction in the favor the party to whom request for admission have been directed. However, “Management of discovery generally lies within the sound discretion of the trial court.” (Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1612; See also, Kleitman v. Superior Court (1999) 74 Cal.App.4th 324, 330 (Kleitman).) Here, due to the procedural history described above, the court exercises its discretion and deems “Defendant’s Request for Admissions to Plaintiff Law Offices of Mark B. Plummer Set No. Four” to have been served as of the date of service of notice of this ruling. Law Offices of Mark B. Plummer shall serve responses to this discovery request within 30 days of service of notice of the ruling.

Plaintiff is to give notice.

Motion No. 3:

Cross-Complainant’s (Nili N. Alai) Motion for Order Deeming Admitted Truth of Facts as to Requests for Admissions, Set One directed to Law Offices of Mark B. Plummer, filed on 3-18-19 under ROA No. 370 (Motion), is DENIED as set forth below:

Here, on 11-28-18, Cross-Complainant served Plaintiff (Law Offices of Mark B. Plummer) with “Defendant’s Request for Admissions to Plaintiff Law Offices of Mark B. Plummer Set No. One.” (Alai Decl., ¶ 2 Exhibits A and C.) The declaration from Cross-Complainant indicates that Plaintiff had not provided responses to this discovery request as of 3-15-19. (Alai Decl., ¶ 5.)

For the reasons set forth as to Motion No. 1, the court DENIES Cross-Complainant’s (Nili N. Alai) Motion for Order Deeming Admitted Truth of Facts as to Requests for Admissions, Set One directed to Law Offices of Mark B. Plummer filed on 3-18-19 under ROA No. 370. The court does not award Plaintiff’s request for a monetary sanction because Code of Civil Procedure section 2033.280, subdivision (c), does not authorize a monetary sanction in the favor the party to whom request for admission have been directed. However, “Management of discovery generally lies within the sound discretion of the trial court.” (Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1612; See also, Kleitman v. Superior Court (1999) 74 Cal.App.4th 324, 330 (Kleitman).) Here, due to the procedural history described above, the court exercises its discretion and deems “Defendant’s Request for Admissions to Plaintiff Law Offices of Mark B. Plummer Set No. One” to have been served as of the date of service of notice of this ruling. Law Offices of Mark B. Plummer shall serve responses to this discovery request within 30 days of service of notice of the ruling.

Plaintiff is to give notice.

Motion No. 4:

Cross-Complainant’s (Nili N. Alai) Motion for Order Deeming Admitted Truth of Facts as to Requests for Admissions, Set Two directed to Law Offices of Mark B. Plummer, filed on 3-18-19 under ROA No. 371 (Motion), is DENIED as set forth below:

Here, on 11-28-18, Cross-Complainant served Plaintiff (Law Offices of Mark B. Plummer) with “Defendant’s Request for Admissions to Plaintiff Law Offices of Mark B. Plummer Set No. Two.” (Alai Decl., ¶ 2 Exhibits A and C The court notes the declaration attaches Set No. 1 rather than Set No. 2.) The declaration from Cross-Complainant indicates that Plaintiff had not provided responses to this discovery request as of 3-15-19. (Alai Decl., ¶ 5.)

For the reasons set forth as to Motion No. 1, the court DENIES Cross-Complainant’s (Nili N. Alai) Motion for Order Deeming Admitted Truth of Facts as to Requests for Admissions, Set Two directed to Law Offices of Mark B. Plummer, filed on 3-18-19 under ROA No. 371. The court does not award Plaintiff’s request for a monetary sanction because Code of Civil Procedure section 2033.280, subdivision (c), does not authorize a monetary sanction in the favor the party to whom request for admission have been directed. However, “Management of discovery generally lies within the sound discretion of the trial court.” (Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1612; See also, Kleitman v. Superior Court (1999) 74 Cal.App.4th 324, 330 (Kleitman).) Here, due to the procedural history described above, the court exercises its discretion and deems “Defendant’s Request for Admissions to Plaintiff Law Offices of Mark B. Plummer Set No. Two” to have been served as of the date of service of notice of this ruling. Law Offices of Mark B. Plummer shall serve responses to this discovery request within 30 days of service of notice of the ruling.

Plaintiff is to give notice.

Motion No. 5:

Cross-Complainant’s (Nili N. Alai) Motion for Order Deeming Admitted Truth of Facts as to Requests for Admissions, Set Three directed to Law Offices of Mark B. Plummer, filed on 3-18-19 under ROA No. 372 (Motion), is DENIED as set forth below:

Here, on 11-28-18, Cross-Complainant served Plaintiff (Law Offices of Mark B. Plummer) with “Defendant’s Request for Admissions to Plaintiff Law Offices of Mark B. Plummer Set No. Three.” (Alai Decl., ¶ 2 Exhibits A and C The court notes the declaration attaches Set No. 1 rather than Set No. 2.) The declaration from Cross-Complainant indicates that Plaintiff had not provided responses to this discovery request as of 3-15-19. (Alai Decl., ¶ 5.)

For the reasons set forth as to Motion No. 1, the court DENIES Cross-Complainant’s (Nili N. Alai) Motion for Order Deeming Admitted Truth of Facts as to Requests for Admissions, Set Three directed to Law Offices of Mark B. Plummer, filed on 3-18-19 under ROA No. 372. The court does not award Plaintiff’s request for a monetary sanction because Code of Civil Procedure section 2033.280, subdivision (c), does not authorize a monetary sanction in the favor the party to whom request for admission have been directed. However, “Management of discovery generally lies within the sound discretion of the trial court.” (Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1612; See also, Kleitman v. Superior Court (1999) 74 Cal.App.4th 324, 330 (Kleitman).) Here, due to the procedural history described above, the court exercises its discretion and deems “Defendant’s Request for Admissions to Plaintiff Law Offices of Mark B. Plummer Set No. Three” to have been served as of the date of service of notice of this ruling. Law Offices of Mark B. Plummer shall serve responses to this discovery request within 30 days of service of notice of the ruling.

Plaintiff is to give notice.

Motion No. 6:

Defendant’s (Nili N. Alai) Motion to Compel Responses to Special Interrogatories, Set One, filed on 3-18-19 under ROA No. 380 (Motion), is DENIED as set forth below:

Code of Civil Procedure section 2030.290 states in part, “If a party to whom interrogatories are directed fails to serve a timely response, the following rules apply: [¶]. . . [¶] (b) The party propounding the interrogatories may move for an order compelling response to the interrogatories.”

Here, on 11-28-18, Defendant served Plaintiffs (Mark Plummer and Law Offices of Mark B. Plummer) with “Defendant’s Special Interrogatory to Plaintiff Mark Plummer and Law Offices of Mark B. Plummer Set No. One.” (Alai Decl., ¶ 2 Exhibits A and C The court notes the declaration attaches Set No. 1 rather than Set No. 2.) The declaration from Defendant indicates that Plaintiff had not provided responses to this discovery request as of 3-15-19. (Alai Decl., ¶ 5.)

For the reasons set forth as to Motion No. 1, the court DENIES Defendant’s (Nili N. Alai) Motion to Compel Responses to Special Interrogatories, Set One directed to Law Offices of Mark B. Plummer filed on 3-18-19 under ROA No. 380. The court does not award a monetary sanction against either party because a monetary sanction would be unjust in light of the procedural history of this action. (Code Civ. Proc., § 2030.290, subd. (c).) However, “Management of discovery generally lies within the sound discretion of the trial court.” (Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1612; See also, Kleitman v. Superior Court (1999) 74 Cal.App.4th 324, 330 (Kleitman).) Here, due to the procedural history described above, the court exercises its discretion and deems “Defendant’s Special Interrogatory to Plaintiff Mark Plummer and Law Offices of Mark B. Plummer Set No. One.” to have been served as of the date of service of notice of this ruling. Plaintiffs shall serve responses to this discovery request within 30 days of service of notice of the ruling.

Plaintiffs are to give notice.

Motion No. 7:

Defendant’s (Nili N. Alai) Motion to Compel Responses to Special Interrogatories, Set Two, filed on 3-18-19 under ROA No. 381 (Motion), is DENIED as set forth below:

Code of Civil Procedure section 2030.290 states in part, “If a party to whom interrogatories are directed fails to serve a timely response, the following rules apply: [¶]. . .[¶] (b) The party propounding the interrogatories may move for an order compelling response to the interrogatories.”

Here, on 11-28-18, Defendant served Plaintiffs (Mark Plummer and Law Offices of Mark B. Plummer) with “Defendant’s Special Interrogatory to Plaintiff Mark Plummer and Law Offices of Mark B. Plummer Set No. Two.” (Alai Decl., ¶ 2 Exhibits A and C The court notes the declaration attaches Set No. 1 rather than Set No. 2.) The declaration from Defendant indicates that Plaintiff had not provided responses to this discovery request as of 3-15-19. (Alai Decl., ¶ 5.)

For the reasons set forth as to Motion No. 1, the court DENIES Defendant’s (Nili N. Alai) Motion to Compel Responses to Special Interrogatories, Set Two, filed on 3-18-19 under ROA No. 381. The court does not award a monetary sanction against either party because a monetary sanction would be unjust in light of the procedural history of this action. (Code Civ. Proc., § 2030.290, subd. (c).) However, “Management of discovery generally lies within the sound discretion of the trial court.” (Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1612; See also, Kleitman v. Superior Court (1999) 74 Cal.App.4th 324, 330 (Kleitman).) Here, due to the procedural history described above, the court exercises its discretion and deems “Defendant’s Special Interrogatory to Plaintiff Mark Plummer and Law Offices of Mark B. Plummer Set No. Two” to have been served as of the date of service of notice of this ruling. Plaintiffs shall serve responses to this discovery request within 30 days of service of notice of the ruling.

Plaintiffs are to give notice.

Motion No. 8:

Defendant’s (Nili N. Alai) Motion to Compel Responses to Special Interrogatories, Set Three, filed on 3-18-19 under ROA No. 382 (Motion), is DENIED as set forth below:

Code of Civil Procedure section 2030.290 states in part, “If a party to whom interrogatories are directed fails to serve a timely response, the following rules apply: [¶]. . .[¶] (b) The party propounding the interrogatories may move for an order compelling response to the interrogatories.”

Here, on 11-28-18, Defendant served Plaintiffs (Mark Plummer and Law Offices of Mark B. Plummer) with “Defendant’s Special Interrogatory to Plaintiff Mark Plummer and Law Offices of Mark B. Plummer Set No. Three.” (Alai Decl., ¶ 2 Exhibits A and C The court notes the declaration attaches Set No. 1 rather than Set No. 2.) The declaration from Defendant indicates that Plaintiff had not provided responses to this discovery request as of 3-15-19. (Alai Decl., ¶ 5.)

For the reasons set forth as to Motion No. 1, the court DENIES Defendant’s (Nili N. Alai) Motion to Compel Responses to Special Interrogatories, Set Three, filed on 3-18-19 under ROA No. 382. The court does not award a monetary sanction against either party because a monetary sanction would be unjust in light of the procedural history of this action. (Code Civ. Proc., § 2030.290, subd. (c).) However, “Management of discovery generally lies within the sound discretion of the trial court.” (Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1612; See also, Kleitman v. Superior Court (1999) 74 Cal.App.4th 324, 330 (Kleitman).) Here, due to the procedural history described above, the court exercises its discretion and deems “Defendant’s Special Interrogatory to Plaintiff Mark Plummer and Law Offices of Mark B. Plummer Set No. Three” to have been served as of the date of service of notice of this ruling. Plaintiffs shall serve responses to this discovery request within 30 days of service of notice of the ruling.

Plaintiffs are to give notice.

As to Motion Nos. 1-8, the court DENIES Defendant’s/Cross-Complainant’s Request for Judicial Notice, filed on 9-8-21 under ROA No. 907, as immaterial to the court’s decisions as to Motion Nos. 1-8. (Silverado Modjeska Recreation & Parks District v. County of Orange (2011) 197 Cal.App.4th 282, 307, fn. 18.)

Motion No. 9:

Plaintiff’s (Law Offices of Mark B. Plummer, PC) Motion to Compel Attendance at Deposition (Motion), filed on 1-3-19 under ROA No. 201, is GRANTED.

Code of Civil Procedure section 2025.450(a) provides, “If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent's attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.”

Code of Civil Procedure section 2025.460, subdivision (e), states, “If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent's control that is specified in the deposition notice or a deposition subpoena, the party seeking that answer or production may adjourn the deposition or complete the examination on other matters without waiving the right at a later time to move for an order compelling that answer or production under Section 2025.480.”

On 1-3-19, Plaintiff filed this Motion to compel the further deposition of Defendant Nabili. The court ruled on the motion on 8-12-21 and the minute order stated in part the following (8-21-Minute Order):

“Motion No. 3: [¶] Plaintiff’s (Law Office of Mark B. Plummer) to Compel Attendance at Deposition (Motion), filed on 1-3-19 under ROA No. 201, is GRANTED. [¶] The Motion states, “This motion will be made on the grounds that Cross-Complainants [sic], SIAMACK NABILI, walked out of his deposition before it was completed on October 25, 2018 and has refused to resume the deposition, despite Mr. Satalino sting [sic] that he would.” (Motion; 2:4-6.) Plaintiff brings this Motion pursuant to Code of Civil Procedure section 2025.450. (Motion; 5:18-25.) It appears that the statutory authority for this Motion is Code of Civil Procedure section 2025.480 because Defendant appeared at the deposition and proceeded with it. [¶] Defendant’s (Siamack Nabili) Opposition to Plaintiff Motion to Compel Completion of Deposition to Defendant Siamack Nabili (Opposition), filed on 1-15-19 under ROA No. 221, states, “Further, with no trial date yet set, and the bulk of the questioning by Plaintiff completed, there was no rush or urgency to immediately bring the present motion as the parties would have eventually agreed to complete the deposition, which has been virtually completed.” (Opposition; 4:24-28.) [¶] Since Defendant agrees to complete the deposition, the parties are to meet and confer before the hearing on 8-12-21 and select a date, time, and place to resume Defendant’s deposition. Therefore, the court Plaintiff’s (Law Office of Mark B. Plummer) to Compel GRANTS Attendance at Deposition filed on 1-3-19 under ROA No. 201. Defendant’s continued deposition will occur no later than September 12, 2021. The court DENIES both parties request for a monetary sanction because it does not appear that there was substantial justification for bringing or opposing the Motion.” (8-12-21 Minute Order; Emphasis in 8-12-21 Minute Order.)

The 8-12-21 minute order further states, “The parties have agreed to conduct a continued deposition of Dr. Nabili on 09-17-2021 at 1:00 p.m. at the office of the Court Reporter, who will take the deposition.”

On 10-29-21 under ROA No. 970, however, the court vacated its ruling on the motion due to the case being stayed as discussed above under Motion No. 1. (10-29-21 Minute Order.) Now that the stays have been lifted, the court reinstates its 8-12-21 ruling granting the motion for the reasons set out above. The parties shall meet and confer prior to the hearing to select a mutually agreeable date within 30 days for the continued deposition of Defendant at the office of the court reporter. The court reminds all parties to comply with the Civility Guidelines as discussed in the court’s 10-4-22 Minute Order.

Plaintiff is to give notice.