Judge Walter P. Schwarm, Case 30-2022-01262431 2023-05-25 Tentative Ruling

Judge: Walter P. Schwarm, Case: 30-2022-01262431, Date: 2023-05-25 Tentative Ruling

Motion No. 1:

Relator’s (Michael Schlesinger) Motion to Compel Response to Subpoena to Ring Bender LLP (Motion), filed on 4-24-23 under ROA No. 336, GRANTED in part and DENIED in part as set forth below.

The court DENIES Relator’s Requests for Judicial Notice, filed on 4-24-23 under ROA Nos. 304 and 316 as immaterial to the court’s decision as set forth below. (Silverado Modjeska Recreation & Parks District v. County of Orange (2011) 197 Cal.App.4th 282, 307, fn. 18; The court notes that ROA Nos. 304 and 316 appear duplicative.)

Toshiba America Electronic Components v. Superior Court (2004) 124 Cal.App.4th 762, 767-768 (Toshiba), states,“ ‘Management of discovery generally lies within the sound discretion of the trial court. [Citations.] Where there is a basis for the trial court's ruling and it is supported by the evidence, a reviewing court will not substitute its opinion for that of the trial court. [Citation.] The trial court's determination will be set aside only when it has been demonstrated that there was ‘no legal justification’ for the order granting or denying the discovery in question. [Citations.]’ [Citation.]”

Code of Civil Procedure section 2017.010 states, “Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property.”

In re Tobacco Cases I (In re Tobacco) (2013) 216 Cal.App.4th 570, 584-585, states, “ ‘In a contest over what time was reasonably and necessarily spent in the preparation of a case, it is obvious that the time that the opposition found necessary to prepare its case would be probative. Each party must prepare to question the same witnesses, must review the same documents and other evidence, and must anticipate a presentation by the opposition of a complexity related to the facts in issue. Similarly, work on pretrial motions would reflect what volume of work opposing attorneys deemed reasonable.’ (Stastny v. Southern Bell Telephone and Telegraph Company (W.D.N.C.1978) 77 F.R.D. 662, 663–664; Blowers v. Lawyers Co–op. Pub. Co., Inc. (D.C.N.Y.1981) 526 F.Supp. 1324, 1327 [‘The amount of time spent by defendants’ attorneys on a particular matter may have significant bearing on the question whether plaintiff’s attorney expended a reasonable time on the same matter.’]; Dupont Plaza Hotel Fire Litigation (1st Cir.1995) 56 F.3d 295, 301 [decision whether to allow discovery of information regarding fees and expenses of opposing counsel is generally within trial court’s discretion].)”

Syers Properties III, Inc. v. Rankin (Syers) (2014) 226 Cal.App.4th 691, 698–700 (Syers Properties III, Inc.) states, “The trial court did not abuse its discretion in accepting defense counsel's computation of attorney hours as hours reasonably spent working on the case. It is well established that ‘California courts do not require detailed time records, and trial courts have discretion to award fees based on declarations of counsel describing the work they have done and the court's own view of the number of hours reasonably spent. [Citations.]’ [Citations.] . . . [¶] ‘Because time records are not required under California law . . ., there is no required level of detail that counsel must achieve. See, e.g., PLCM Group[, supra, 22 Cal.4th at p.] 1098, 95 Cal.Rptr.2d 198, 997 P.2d 511 (“We do not want ‘a [trial] court, in setting an attorney's fee, [to] become enmeshed in a meticulous analysis of every detailed facet of the professional representation. It . . . is not our intention that the inquiry into the adequacy of the fee assume massive proportions, perhaps dwarfing the case in chief,’ ” quoting Serrano v [.] Unruh (Serrano IV) (1982) 32 C[al.]3d 621, 642 [186 Cal.Rptr. 754, 652 P.2d 985]). See, e.g., . . . Jaramillo v [.] County of Orange (2011) 200 [Cal.App.] 4th 811, 830 [133 Cal.Rptr.3d 751] (noting that records included very general descriptions, e.g., ‘trial prep,’ ‘T/C-Client’); City of Colton v [.] Singletary (2012) 206 [Cal.App.] 4th 751, 784 [142 Cal.Rptr.3d 74] (declaration stating time spent on various activities); [citation].’ [Citation.]”

Code of Civil Procedure section 2020.020 states in part, “A deposition subpoena may command any of the following: . . . [¶] (b) Only the production of business records for copying under Article 4 (commencing with section 2020.410).”

Code of Civil Procedure section 2020.430, subdivision (c), provides, “If the delivery required by subdivision (a) is made at the office of the business whose records are the subject of the deposition subpoena, the custodian of those records or other qualified person shall do one of the following: [¶] (1) Permit the deposition officer specified in the deposition subpoena to make a copy of the originals of the designated business records during normal business hours, as defined in subdivision (e) of Section 1560 of the Evidence Code. [¶] (2) Deliver to the deposition officer a true, legible, and durable copy of the records on receipt of payment in cash or by check, by or on behalf of the party serving the deposition subpoena, of the reasonable costs of preparing that copy, together with an itemized statement of the cost of preparation, as determined under subdivision (b) of Section 1563 of the Evidence Code. This copy need not be delivered in a sealed envelope.”

Code of Civil Procedure section 2025.480, provides in part, “(a) 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 discovery may move the court for an order compelling that answer or production. [¶] (b) This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040. . . .”

Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431 (Obregon), states, “A determination of whether an attempt at informal resolution is adequate also involves the exercise of discretion. The level of effort at informal resolution which satisfies the ‘reasonable and good faith attempt’ standard depends upon the circumstances. In a larger, more complex discovery context, a greater effort at informal resolution may be warranted. In a simpler, or more narrowly focused case, a more modest effort may suffice. The history of the litigation, the nature of the interaction between counsel, the nature of the issues, the type and scope of discovery requested, the prospects for success and other similar factors can be relevant. Judges have broad powers and responsibilities to determine what measures and procedures are appropriate in varying circumstances. [Citations.]”

Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 127 (Unzipped), states, “If a deponent fails to produce a requested document under his or her control, the subpoenaing party may bring a motion to compel production ‘no later than 60 days after the completion of the record of the deposition.’ [Citation.]” [¶] The question on appeal is whether this 60–day limit applies to a subpoena for business records as distinguished from a subpoena for an oral or written deposition. Here, in response to a subpoena for business records, the nonparties served timely objections and did not produce any documents. The trial court granted a motion to compel brought more than 60 days after the objections were received, stating that, because no ‘deposition’ had been taken, the time limit was not applicable. We reverse, concluding that the 60–day limit applies because a response to a business records subpoena, namely, objections, is a ‘record of the deposition.’ ” “Nor is the 60–day period rendered inapplicable to business records subpoenas merely because section 2025.480 refers to the ‘completion’ of the record of the deposition. (See § 2025.480, subd. (b).) Not all document productions are completed on the date stated in the subpoena. If the subpoenaing party opts to inspect and copy the original documents at the office of the responding business, “the record” of the production could take days to complete. This may occur in part because the subpoenaing party's access to the documents is limited by statute to either the business's normal hours—the time when the business is normally open to the public—or six hours a day, whichever is greater. (See § 2020.430, subd. (c)(1); Evid.Code, § 1560, subd. (e).) Until the entire inspection is finished, including the raising of any objections during that process, the necessity and scope of a motion to compel may not be known. Consequently, if on the first day of an inspection, a party is escorted to a warehouse full of documents, the party can rest assured that the 60–day period will not begin to run until the production is over.” (Id., at p. 134.)

Here, Relator served non-party—Ring Bender LLP (RB) with a Deposition Subpoena on 1-20-23. (Hand Decl., ¶ 3 and Exhibit B.) The Deposition Subpoena required RP to produce the requested records to the deposition officer “. . . by making the original business records described in item 3 available for inspection at your business address by the attorney's representative and permitting copying at your business address under reasonable conditions during normal business hours. . . .” (Hand Decl., ¶ 3 and Exhibit B; Emphasis in Deposition Subpoena.) The date for compliance listed in the Deposition Subpoena was 2-20-23. (Hand Decl., ¶ 3 and Exhibit B.) Instead of complying with the terms of the Deposition Subpoena “. . . by making the original records . . . available for inspection . . ., or filing a motion to quash, RB produced a document on 4-20-23. (Hand Decl., ¶¶ 3 and 6, and Exhibits B and D; Emphasis in Deposition Subpoena.)

Under Code of Civil Procedure section 2025.480, subdivision (b), the Motion appears timely because RB served Relator with its response on 4-20-23. (Hand Decl., ¶¶ 3 and 6, and Exhibits B and D; Emphasis in Deposition Subpoena.) Relator filed this Motion on 4-24-23 which is within 60 days of the response by deeming 4-20-23 as the response to the Deposition Subpoena. The court notes that Relator did not engage in reasonable and good faith efforts to meet and confer after receiving the response from RB and the filing of this Motion. (Hand Decl., ¶¶ 20, 21, and 22.) Mr. Fink sent a meet and confer letter to RB on 4-21-23. (Hand Decl., ¶ 21 and Exhibit F.) There was no meet and confer between the parties before the filing of this Motion. Although there was no meet and confer, the parties significantly met and conferred regarding the issues pertaining to the Deposition Subpoena before RB provided its response. (Hand Decl., ¶¶ 9, 10, 14, 15, 18, and 19.) These meet and confer efforts sufficiently complied with Code of Civil Procedure section 2025.480, subdivision (b).

The Motion seeks only the documents relating to Request Nos. 3, 12, and 13 in the Deposition Subpoena. (Motion; 8:20-23.)

RB’s Opposition to Relator Michael Schlesinger’s Motion to Compel Response to Subpoena (Opposition), filed on 5-12-23 under ROA No. 358, states, “Neither Plaintiff nor his counsel contacted Ring Bender to confirm it would make the records ‘available for inspection’ at its business office. Neither Plaintiff nor his counsel sent the Deposition Officer (First Legal) to Ring Bender after April 20th to perform this document review at their offices.” (Opposition; 6:8-10.) Under Code of Civil Procedure section 2020.430, subdivision (c), the Custodian of Records for RB was responsible for making the requested records available. Code of Civil Procedure section 2020.430, subdivision (c), does not require Relator to inquire as to whether RB would make the requested records available.

The court will address the merits of the requests at issue. The issue is the scope of discovery in the context of a motion for attorney’s fees. In re Tobacco allows for the discovery as to the amount of time spent by RB on this case at the trial level.

As to Request No. 3, RB has provided Exhibit A which is a description of the hours expended at the trial court level as to this case. (Hand Decl., ¶ 6 and Exhibit D.) Exhibit A refers to contact that Mr. Bobko had with Mr. Dupont and Mr. Tufano. Exhibit A does not reflect the hours expended by Mr. Dupont and Mr. Tufano based on the contact with Mr. Bobko. Further, Exhibit A does not describe the time spent by Mr. Bobko or any other attorney with RB as to the efforts, if any, in responding to Relator’s motion for attorney fees and the discovery motions relating to attorney’s fees. Therefore, the court GRANTS the Motion as to Request No. 3 and ORDERS RB to provide a supplemental response that provides the hours expended by Mr. Dupont and Mr. Tufano pertaining to their efforts at the trial court level. The court further ORDERS RB to provide a supplemental response that addresses any time devoted to responding to Relator’s motion to compel attorney fees and the discovery pertaining to the motion for attorney fees. RB may redact the supplemental response to the extent it included privileged information. The court ORDERS RB to provide the supplemental response no later than 6-9-23.

The court DENIES the Motion as to Request Nos. 12 and 13. As discussed by Syers, the inquiry into an attorney’s fees motion does not require the court to “. . . become enmeshed . . .” in every aspect of Relator’s representation or RB’s representation. (Syers, supra, 226 at pp. 698–700.) In re Tobacco allows discovery for the time spent by RB at the trial level. RB has provided some of this information, and will provide supplemental information. Therefore, the court finds that the information requested by Request Nos. 12 and 13 are irrelevant under Code of Civil Procedure section 2017.010 in light of In re Tobacco and the court’s decision as to Request No. 3.

The court DENIES Relator’s request for a monetary sanction because Relator was substantially justified in bringing this Motion, and RB was substantially justified in opposing this Motion. (Code Civ. Proc., 2025.480, subd. (j); Hand Decl., ¶¶ 23-27.) The court DENIES Relator’s request for an evidentiary sanction or “. . . from opposing Relator’s claim that the number of hours expended by Relator in this action is unreasonable . . .” because Relator does not provide legal authority for the imposition of these sanctions in the context of a motion for attorney’s fees. (Motion; 2:10-14.) Further, it appears that the imposition of an evidentiary sanction would result in the abdication of the court’s legal responisbility to determine a reasonable fee award.

In summary, the court GRANTS Relator’s (Michael Schlesinger) Motion to Compel Response to Subpoena to Ring Bender LLP, filed on 4-24-23 under ROA No. 336, in part as set forth above. The court DENIES the Motion in part as set forth above.

Relator is to give notice.

Motion No. 2:

Relator’s (Michael Schlesinger) Motion to Compel Response to Subpoena to Harper & Burns (Motion), filed on 4-24-23 under ROA No. 339, is DENIED.

Here, Relator served non-party—Harper & Burns (HB) with a Deposition Subpoena on 1-20-23. (Hand Decl., ¶ 4 and Exhibit C.) The Deposition Subpoena required RP to produce the requested records to the deposition officer “. . . by making the original business records described in item 3 available for inspection at your business address by the attorney's representative and permitting copying at your business address under reasonable conditions during normal business hours. . . .” (Hand Decl., ¶ 4 and Exhibit C; Emphasis in Deposition Subpoena.) The date for compliance listed in the Deposition Subpoena was 2-20-23. (Hand Decl., ¶ 4 and Exhibit C.) Instead of complying with the terms of the Deposition Subpoena “. . . by making the original records . . . available for inspection . . ., or filing a motion to quash, HB produced a document on 4-20-23. (Hand Decl., ¶¶ 4 and 7, and Exhibits C and E; Emphasis in Deposition Subpoena.)

Under Code of Civil Procedure section 2025.480, subdivision (b), the Motion appears timely because HB served Relator with its response on 4-20-23. (Hand Decl., ¶¶ 4 and 7, and Exhibits C and E; Emphasis in Deposition Subpoena.) Relator filed this Motion on 4-24-23 which is within 60 days of the response by deeming 4-20-23 as the response to the Deposition Subpoena. The court notes that Relator did not engage in reasonable and good faith efforts to meet and confer after receiving the response from HB and the filing of this Motion. (Hand Decl., ¶¶ 20, 21, and 22.) Mr. Fink sent a meet and confer letter to Ring Bender LLP, whom the court understands as acting on behalf of HP for the purpose of the meet and confer, on 4-21-23. (Hand Decl., ¶ 21 and Exhibit F.) There was no meet and confer between the parties before the filing of this Motion. Although there was no meet and confer, the parties significantly met and conferred regarding the issues pertaining to the Deposition Subpoena before HB provided its response. (Hand Decl., ¶¶ 9, 10, 14, 15, 18, and 19.) These meet and confer efforts sufficiently complied with Code of Civil Procedure section 2025.480, subdivision (b).

The Motion seeks only the documents relating to Request Nos. 3, 12, and 13 in the Deposition Subpoena. (Motion; 8:21-23.)

HB’s Opposition to Relator Michael Schlesinger’s Motion to Compel Response to Subpoena (Opposition), filed on 5-12-23 under ROA No. 362, states, “Neither Plaintiff nor his counsel contacted Ring Bender to confirm it would make the records ‘available for inspection’ at its business office. Neither Plaintiff nor his counsel sent the Deposition Officer (First Legal) to Ring Bender after April 20th to perform this document review at their offices.” (Opposition; 5:18-21.) Under Code of Civil Procedure section 2020.430, subdivision (c), the Custodian of Records for HB was responsible for making the requested records available. Code of Civil Procedure section 2020.430, subdivision (c), does not require Relator to inquire as to whether RB would make the requested records available.

As to Request No. 3, HB has provided Exhibit A which is a description of the hours expended at the trial court level as to this case. (Gonzalez Decl., ¶ 8 and Exhibit A; Curley Decl., ¶¶ 5-9.) As discussed by Syers, the inquiry into an attorney’s fees motion does not require the court to “. . . become enmeshed . . .” in every aspect of Relator’s representation or RB’s representation. (Syers, supra, 226 at pp. 698–700.) In re Tobacco allows discovery for the time spent by HB at the trial level. Exhibit A responds to Request No. 3 by by providing the time entries related to the tasks HB performed at the trial level in this case. Therefore, the court DENIES the Motion as to Request No. 3.

The court DENIES the Motion as to Request Nos. 12 and 13. The court finds that the information requested by Request Nos. 12 and 13 are irrelevant under Code of Civil Procedure section 2017.010 in light of In re Tobacco and the court’s decision as to Request No. 3.

In summary, the court DENIES Relator’s (Michael Schlesinger) Motion to Compel Response to Subpoena to Harper & Burns filed on 4-24-23 under ROA No. 339.

HB is to give notice.

Motion No. 3:

Relator’s (Michael Schlesinger) Motion to Compel Response to Request for Production of Documents (Motion), filed on 4-24-23 under ROA No. 342, is GRANTED.

Code of Civil Procedure section 2031.300 states in part, “If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it, the following rules shall apply: . . . [¶] (b) The party making the demand may move for an order compelling response to the demand.”

Here, Relator served the City of Mission Viejo (City) with “Plaintiff’s First Set of Requests for Production of Documents (Contingent)” on 1-20-23. (Hand Decl., ¶ 2 and Exhibit A.) Relator has not received any response to this discovery request. (Hand Decl., ¶ 5.)

The Motion seeks only the documents relating to Request Nos. 3, 12, and 13 in the Deposition Subpoena. (Motion; 7:20-23.)

The City’s Opposition to Relator’s Motion to Compel Request for Production (Opposition), filed on 5-12-23 under ROA No. 366, states, “Before filing his motion to compel, Plaintiff was required to make a genuine, good faith effort to meet and confer with the City’s attorneys to resolve Plaintiff’s issues.” (Opposition; 3:11-13.) Code of Civil Procedure section 2031. 300 does not require meet and confer efforts before the filing of a motion pursuant to Code of Civil Procedure section 2031.300.

The Opposition also states, “As to Request for Production No. 3, although the City did not submit separate discovery responses relating to its legal fees, there was no reason to do so. Both of its law firms provided the documents—i.e. detailed summaries of time expended by defense counsel—that Plaintiff requested. (Bobko Dec. ¶3.) This occurred on April 20th as to Ring Bender and as to Harper Burns on May 2, 2023, eight days after the Plaintiff filed its motion to compel. (Bobko Dec. ¶3.) Because Plaintiff received exactly what it requested from the City’s law firms, any further production would have been duplicative and unnecessary.” (Emphasis in Opposition.)

The court recognizes that the parties have engaged in significant meet and confer efforts to resolve the discovery issues. (Hand Decl., ¶¶ 9, 10, 14, 15, 18, and 19.) Unlike Motion Nos. 1 and 2, the issue on this Motion is whether the City provide responses that comply with Code of Civil Procedure sections 2031.210, 2031.220, 2031.230, and 2031.240. The Opposition does not dispute that the City did not provide responses pursuant to 2031.210, 2031.220, 2031.230, and 2031.240.

Therefore, the court GRANTS Relator’s (Michael Schlesinger) Motion to Compel Response to Request for Production of Documents filed on 4-24-23 under ROA No. 342. The court ORDERS the City to provide verified Code of Civil Procedure compliant responses (Code Civ. Proc., § 2031.250), without objection, to Request for Production Nos. 3, 12, and 13 within 30 days of the date of service of the notice of the court’s ruling.

The court DENIES Relator’s request for a monetary sanction because the imposition of a monetary sanction would be unjust in light of the significant meet and confer efforts to resolve this discovery issue, and the production of responsive documents within the meaning of In re Tobacco and Syers. (Code Civ. Proc., 2031.300, subd. (c); Hand Decl., ¶¶ 23-27.) The court DENIES Relator’s request for an evidentiary sanction or “. . . from opposing Relator’s claim that the number of hours expended by Relator in this action is unreasonable . . .” because Relator does not provide legal authority for the imposition of these sanctions in the context of a motion for attorney’s fees. (Motion; 2:10-14.) Further, it appears that the imposition of an evidentiary sanction would result in the abdication of the court’s legal responsibility to determine a reasonable fee award.

Relator is to give notice.