Judge: Yolanda Orozco, Case: 19STCV10435, Date: 2023-01-06 Tentative Ruling
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Case Number: 19STCV10435 Hearing Date: January 6, 2023 Dept: 31
MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL FORM
INTERROGATORIES, SET ONE
TENTATIVE RULING
Defendant CAA’s Motion to Compel Further Responses to Special Form Interrogatories Nos. Nos. 3, 8, 9, 11, and 12 is GRANTED.
The Court awards Defendants $2,500.00 in monetary sanctions against Plaintiff’s counsel of record.
Plaintiff’s
request for monetary sanctions is DENIED.
BACKGROUND
On March 26, 2019, Plaintiff John Musero filed the instant
action against Defendants Creative Artists Agency, LLC (“CAA”); Andrew Miller;
Leah Yerushalaim; and Does 1 to 10. The
The operative First Amended Complaint (FAC) asserts causes
of action for:
1.
Breach of Fiduciary Duty and Confidentiality;
2.
Breach of Contract;
and
3.
Breach of Implied
Covenant of Good Faith and Fair Dealing.
Plaintiff is a professional television writer and was
represented by Defendant CAA through Defendants Miller and Yerushalaim of CAA’s
television literary department beginning in June of 2014. Plaintiff alleges
that Defendants breached their fiduciary duties and duty of confidentiality in
their provision of services to Plaintiff as his agents and also breached
their contract with Plaintiff by, among other things, allegedly
misappropriating Plaintiff’s new original television pilot entitled Main
Justice by developing it with Jerry Bruckheimer and writer Sasha Penn.
On August 31, 2022, Defendant CAA moved to Compel Further
Discovery responses to Special Form Interrogatories, Set One.
On December 22, 2022, Plaintiff filed opposing papers.
On December 29, 2022, Defendant filed a reply.
MEET AND CONFER
Per the Code of Civil Procedure section 2016.040 states that a motion to compel further responses must always be accompanied by a meet-and-confer-declaration demonstrating a “reasonable and good faith attempt an informal resolution of each issue presented by the motion.” (Id., §§ 2030.300(b), 2031.310(b)(2), 2033.290(b).)
The meet and confer requirement has been met. (See e.g., Quattlebaum, IV Decl.)
LEGAL
STANDARD
A motion to compel further responses to form or specially prepared interrogatories may be brought if the responses contain: (1) answers that are evasive or incomplete; (2) an unwarranted or insufficiently specific exercise of an option to produce documents in lieu of a substantive response; or (3) unmerited or overly generalized objections. (Code Civ. Proc., § 2030.300(a).) The motion must also be accompanied by a separate statement containing the requests and the responses, verbatim, as well as reasons why a further response is warranted. (Cal. Rules of Court, rule 3.1345(a).) The separate statement must also be complete in itself; no extrinsic materials may be incorporated by reference. (Id., rule 3.1345(c).)
A
motion to compel further production must set forth specific facts showing good
cause justifying the discovery sought by the inspection demand. (See Code Civ.
Proc., § 2031.310(b)(1).) It is not necessary for the motion to show that the
material sought will be admissible in 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. (See Associated
Brewers Dist. Co. v. Superior Court (1967) 65 Cal.2d 583, 586-588; see also
CCP §§ 2017.010, 2019.030(a)(1) (Information is discoverable if it is itself
admissible in evidence or appears reasonably calculated to lead to the
discovery of admissible evidence and it is not unreasonably cumulative or
duplicative, or is obtainable from some other source that is more convenient,
less burdensome, or less expensive.); Lipton v. Superior Court (1996) 48
Cal.App.4th 1599, 1611-1612 (noting a party may obtain discovery regarding any
matter, not privileged, that is relevant to the subject matter involved in the
pending action if the matter either is itself admissible in evidence or appears
reasonably calculated to lead to the discovery of admissible evidence).)
DISCUSSION
Defendant asserts that the Plaintiff had previously agreed to provide supplemental responses to the Special Form Interrogatories (SROGS), Set One, but Plaintiff has failed to comply. (Quattlebaum IV. Decl. ¶¶ 5-7, Ex. D-G.)
On November 9, 2022, at an Informal Discovery Conference (IDC), both parties agreed to supplement their earlier discovery responses to be code compliant. (Min. Or. 11/09/22.)
Defendant seeks further responses to SROGS Nos. 3, 8, 9, 11, and 12 because Plaintiff’s responses are incomplete, evasive, and contain boilerplate objections that do not conform with the Code of Civil Procedure. (See Code Civ. Proc., § 2030.300(a).) Defendant’s request for further response to SROG No. 21 is moot because Plaintiff provided a supplemental response to SROG No. 21 after Defendant filed this Motion. (See Reply filed on 12/29/22.)
SROG
No. 3: “State all facts
that support YOUR contentions in the FAC that CAA failed to shop YOUR
television pilot titled Influence causing it to lose value and potential buyers
to lose interest.”
SROG No. 8: “State all facts that support YOUR contention in paragraph 34 of the FAC that YOU urged Defendants to pursue potential buyers for YOUR MAIN JUSTICE pilot until The Mark Gordon Company made a formal offer regarding the pilot.”
SROG No. 9: “State all
facts that support YOUR contention in paragraph 35 of the FAC that, in
connection with YOUR MAIN JUSTICE pilot, Defendants favored The Mark Gordon
Company to YOUR detriment.”
SROG No. 11: “State all facts that support YOUR contention in paragraph 41 of the FAC that “Miller and Yerushalaim provided [YOU] and [YOUR] lawyer with no assistance in their attempts to get [YOU] paid monies that were long overdue.”
Defendant’s Separate Statement shows that Plaintiff raised boilerplate objections to the interrogatories, including claims of attorney-client privilege and work product doctrine without facts to substantiate the claims. Plaintiff also asserted that the requests were overbroad, and that the information was equally available to both parties. As the responding party, Plaintiff has the burden of establishing a valid objection, including any claim of privilege. (See Coy v. Superior Court (1962) 58 Cal.2d 210, 220.) If a party asserts a “burdensome” objection, that party bears the burden of “showing the quantum of work required” to respond to discovery and articulate that burden that is being imposed on that party.¿(West Pico Furniture Co.¿v.¿Los Angeles v. Superior Court¿(1961) 56 Cal. 2d 407, 417-418.)
Moreover, although the definition of
“YOUR” is broad in that it refers to Plaintiff himself and “his
present and former agents, representatives, accountants, investigators, and
consultants, and any other person or entity acting on his behalf or on whose behalf
he acted,” the request is not overly broad such as to make that discovery
request impermissible or irrelevant. “Although
the scope of civil discovery is broad, it is not limitless.” (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 223.) “A trial court ‘shall limit the scope of discovery if it determines that
the burden, expense, or intrusiveness of that discovery clearly outweighs the
likelihood that the information sought will lead to the discovery of admissible
evidence.’” (Williams v. Superior Court (2017) 3 Cal.5th 531, 549 [220
Cal.Rptr.3d 472, 487; citing Code of Civ. Proc., § 2017.020, subd. (a).)
“While the party propounding interrogatories may have the burden of filing a
motion to compel if it finds the answers it receives unsatisfactory, the burden
of justifying any objection and failure to respond remains at all times with
the party resisting an interrogatory.” (Id. at 531.)
Here, Plaintiff has failed to meet his burden of showing that the SROGS Nos. 3 to 11 are overly broad such that the request for further responses should be denied. Moreover, denying Defendant’s request would go against the Civil Discovery Act’s liberal policy toward discovery. “[A]bsent a showing by the petitioner that a substantial interest will be impaired by the discovery, the liberal policies of the discovery rules will generally counsel against overturning the trial court's decision granting discovery.” (Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 171.)
Lastly, an objection that information is “equally available” to the other party applies to information contained in records such as those obtainable by the public, not to information maintained by the parties to a litigation. (See Bunnell v. Superior Court of Alameda County (1967) 254 Cal.App.2d 720, 723.) If the information was equally available to Defendant, then Plaintiff was obligated to answer the interrogatory and specify the records from which the answer may be driven or ascertained.
Accordingly, the Court agrees that Plaintiff’s objections to SROGS Nos. 8, 9, and 11 are without merit and a further response is required.
SROG No. 12: “State all facts that support YOUR contention in paragraph 42 of the FAC that “Defendants neglected to advocate on [YOUR] behalf,” including the premise that “Defendants advantaged their larger client, the Mark Gordon Company, to [YOUR] detriment.”
Plaintiff again reiterates the same objections as raised to SROGS Nos. 8, 9, and 11. Plaintiff also asserts that SROG No. 12 is duplicative of SROG No. 11. The Court finds that the requests are not duplicative, and a further response must be provided to SROGS No. 21.
Plaintiff’s
Opposition
It is not material to the ruling on this Motion to Compel whether Plaintiff has substantially complied with other discovery requests or that Defendant has failed to comply with Plaintiff’s discovery requests. If Plaintiff believes that Defendant has not complied with the Discovery Act, Plaintiff is free to bring his own motion to compel, but Defendant’s conduct has no bearing on Plaintiff’s failure to comply with the Discovery Act or the discovery at issue in this instant Motion.
Since Plaintiff has not justified why further responses to SROGS Nos. 3, 8, 9, 11, 12, and 21 are not required, the Motion is GRANTED and Plaintiff’s request for sanctions is DENIED.
Sanctions
Code of Civil Procedure, section 2030.300 subdivision (d) states:
“The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”
The Court agrees that sanctions are appropriate given Plaintiff’s meritless objections and refusal to provide further responses, despite representing to the Court and to Defendant that he would. (Quattlebaum, IV. Decl. ¶¶ 7, 8, Ex. F, G.) Defendant has sought supplemental responses from Plaintiff since August of 2022.
Defendant seeks $16,000.00 in monetary sanctions for costs and fees incurred in bringing this Motion against Plaintiff John Musero and his counsel. (See (Code Civ. Proc., § 2023.040.)
Defense counsel Julian K. Quattlebaum, IV’s hourly rate is over $500.00 per hour. (Quattlebaum IV. Decl. 9.) Defense counsel Craig Holden is a partner whose hourly rate is over $1000.00 per hour. (Id.) Mr. Quattlebaum spent more than 8.0 hours and Mr. Holden spent more than 4.0 hours drafting correspondence with Plaintiff’s counsel, meeting and conferring with Plaintiff’s counsel, and preparing this motion and the supporting Separate Statement. (Id.)
Defense counsels anticipate Mr. Quattlebaum, IV spending 8.0 hours reviewing the opposition and Mr. Holden spending 4.0 hours reviewing the opposition, preparing a reply, and preparing for and attending the hearing.
The Court finds that hours spent billed by Mr. Quattlebaum and Mr. Holden on this matter are excessive, inefficient, and duplicative since both attorneys appeared to work on the same or similar tasks.
“The reasonableness of attorney fees is within the discretion of the trial court, to be determined from a consideration of such factors as the nature of the litigation, the complexity of the issues, the experience and expertise of counsel and the amount of time involved. (Citation.) The court may also consider whether the amount requested is based upon unnecessary or duplicative work.” (Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 448.) Although the court agrees that defense counsels meet and confer efforts were substantive, the motion was not complex, involved only a few discrete interrogatories and did not merit two senior attorneys/partners working on the motion simultaneously. “The basis for the trial court’s calculation must be the actual hours counsel has devoted to the case, less those that result from inefficient or duplicative use of time. (Hosford v. Board of Trustees Of California State University (2005) 132 Cal.App.4th 359, 395.)
The Court awards Mr. Quattlebaum, IV 3.0 hours of work (totaling $1,500.00) and Mr. Holden 1.0 hours of work (totaling $1,000.00) on this motion, totaling $2,500.00 in monetary sanctions.
Moreover, there is no evidence that the failure to provide supplemental responses was due to Plaintiff’s actions, but rather those of his attorney. Therefore, the Court awards $2,500.00 in monetary sanctions against Plaintiff’s counsel of record only.
CONCLUSION
Defendant CAA’s request to Compel Further Responses to Special Form Interrogatories Nos. Nos. 3, 8, 9, 11, and 12 is GRANTED.
The Court awards Defendants $2,500.00 in monetary sanctions against Plaintiff’s counsel of record.
Plaintiff’s request for monetary sanctions is DENIED.
Moving
party to give notice.