NUSSBAUM APC VS 2304 SAWTELLE, LLC.

Tentative Rulings

Case Number: 19STLC02621    Hearing Date: March 10, 2021    Dept: 26

Nussbaum, APC. v. 2304 Sawtelle, LLC, et al.

MOTIONS TO COMPEL DEFENDANT’S FURTHER RESPONSES TO INTERROGATORIES; REQUEST FOR SANCTIONS

(CCP § 2030.300)

TENTATIVE RULING:

Plaintiff Nussbaum, APC’s Motion for Order Compelling Defendant’s Further Responses to Form Interrogatories and Special Interrogatories and Request for Sanctions is GRANTED. DEFENDANT IS TO SERVE FURTHER RESPONSES TO ALL INTERROGATORIES WITHIN 20 DAYS’ SERVICE OF THIS ORDER. DEFENDANT AND COUNSEL OF RECORD ARE JOINTLY AND SEVERALLY ORDERED TO PAY SANCTIONS OF $810.00 TO PLAINTIFF’S COUNSEL WITHIN 20 DAYS’ SERVICE OF THIS ORDER.

ANALYSIS:

On March 15, 2019, Plaintiff Nussbaum, APC (“Plaintiff”) filed this action against Defendant 2304 Sawtelle, LLC (“Defendant”) for breach of contract and common counts. The action arises out of a retainer agreement for Plaintiff to represent Defendant in an unlawful detainer case. (Compl., ¶5.)

On August 27, 2020, Plaintiff filed the instant Motion for Order Compelling Defendant’s Further Responses to Form and Special Interrogatories and Request for Sanctions (“the Motion”). To date, no opposition has been filed.

Discussion

Notice of the motion to compel further must be given “within 45 days of service of the verified response, or any supplemental verified response, or any specific later date to which the requesting party and the responding party have agreed in writing,” otherwise, the propounding party waives any right to compel a further response. (Code Civ. Proc., § 2030.300, subd. (c).) Here, the parties mutually agreed to extend the time to respond to September 17, 2020. (Motion, Simon Decl., Exh. 6.) The Motion was timely filed on August 27, 2020.

Also, the Motion must be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2030.300, subd. (b)(1).) Plaintiff filed declaration demonstrating that the parties engaged in an email and telephonic meet and confer effort following the receipt of Defendant’s initial responses on June 25, 2020. (Motion, Simon Decl., ¶¶3-5 and Exhs. 5-6.) No supplemental responses were served prior to the filing of the Motion. (Id. at ¶¶6-8 and Exh. 6.) The meet and confer requirement, therefore, is satisfied.

Finally, Cal. Rules of Court Rule 3.1345 requires all motions or responses involving further discovery contain a separate statement with the text of each request, the response, and a statement of factual and legal reasons for compelling further responses. (Cal. Rules of Court, Rule 3.1345, subd. (a).) Alternatively, “the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute.” (Code Civ. Proc., § 2030.300, subd. (b)(2).) The Motion is accompanied by a separate statement. (Separate Statement, filed 8/27/20.)

Compel Further Responses to Form Interrogatories

Plaintiff moves to compel further responses to Form Interrogatory Nos. 101.1, 103.1, 112.1, 115.2, 150.1, 150.5, 150.6, 150.7, 150.8, 150.9, 150.10 and 150.11.

With respect to Form Interrogatories Nos. 101.1, 103.1, Defendant responded that it would submit a response by way of supplement. This is not a proper response. Under Code of Civil Procedure section 2030.220, subdivision (c), a responding party must explain if it lacks personal knowledge to respond and must make a good faith effort to obtain the information.

For the remaining interrogatories, Defendant incorporated a general objection by reference that discusses how the discovery is “in its infancy” so that only information in Defendant’s possession will be provided. (Separate Statement, p. 2.) Again, this objection violates Code of Civil Procedure section 2030.220, subdivision (c). The general objection also reserves the right to supplement or modify the responses, and objects to the extent the requests seek privileged or protected information. The general objection is also without merit because it violates the requirement that Defendant respond “separately to each interrogatory” under oath. (Code Civ. Proc., § 2030.210, subd. (a).)

In addition to the incorporation of this meritless general objection, Defendant objects to certain terms as vague and ambiguous, or that the interrogatories seek attorney work product or the premature disclosure of expert witnesses. The term “incident,” however, is not overbroad, vague or ambiguous. “Incident” is plainly defined in the interrogatories as the circumstances surrounding the alleged breach of contract. (Separate Statement, Interrogatory No. 112.1.) Other objections that certain interrogatories are overbroad as to time and scope similarly ignore that the interrogatories are limited to the parties’ retainer agreement and obligations thereunder. (Separate Statement, Interrogatory Nos. 150.1, 150.5, 150.6, 150.7, 150.8, 150.9, 150.10, 150.11.)

The privilege-based objections also are inapplicable to the interrogatories, which seek a statement of facts or identification of documents regarding the contract dispute. Nothing in the interrogatories or in the objections suggests that privileged information is being sought. (Separate Statement, Interrogatory Nos. 112.1, 115.2, 150.1, 150.5, 150.6, 150.7, 150.8, 150.9, 150.10, 150.11.) This is a boilerplate objection that the Court finds inapplicable.

Finally, it is undisputed that Defendant agreed to produce further responses during the parties’ meet and confer, thereby admitting the initial production was not compliant with its discovery obligations and that additional responses were required. (Motion, Simon Decl., Exh. 6.)

Based on the foregoing, the Court finds that Plaintiff is entitled to an order compelling Defendant’s further responses to Form Interrogatory Nos. 101.1, 103.1, 112.1, 115.2, 150.1, 150.5, 150.6, 150.7, 150.8, 150.9, 150.10 and 150.11.

Compel Further Responses to Special Interrogatories

Plaintiff moves to compel further responses to Special Interrogatories Nos. 1-7.

In response to these interrogatories, Defendant again asserts the objections made against the Form Interrogatories. As noted above, incorporating the general objection violates Code of Civil Procedure section 2030.210. The objection to certain phrases as vague or ambiguous is also without merit. The terms “services,” “performance or tendered performance” and the like clearly relate to the parties’ agreement and what was required pursuant to that agreement. (Separate Statement, Interrogatory Nos. 3-7.) For the same reason, the objection that certain interrogatories are overbroad in time and scope is improper. (Separate Statement, Interrogatory Nos. 1-7.) 

Also as discussed above, Defendant has not shown how any of the Special Interrogatories seek privileged information or documents.

Again, Defendant agreed to provide further responses to these interrogatories in tacit agreement that the initial responses were insufficient.

Plaintiff is entitled to an order compelling Defendant’s further responses to Special Interrogatory Nos. 1-7.

Sanctions

Sanctions are appropriate and have been properly noticed. (Code Civ. Proc., §§ 2023.010, 2023.030.) However, the Court finds the amount sought is excessive under a lodestar calculation. Plaintiff’s request for monetary sanctions is granted in the amount of $750.00 in attorney fees and $60.00 in costs. (Motion, Simon Decl., ¶11.)

Conclusion

Plaintiff Nussbaum, APC’s Motion for Order Compelling Defendant’s Further Responses to Form Interrogatories and Special Interrogatories and Request for Sanctions is GRANTED. DEFENDANT IS TO SERVE FURTHER RESPONSES TO ALL INTERROGATORIES WITHIN 20 DAYS’ SERVICE OF THIS ORDER. DEFENDANT AND COUNSEL OF RECORD ARE JOINTLY AND SEVERALLY ORDERED TO PAY SANCTIONS OF $810.00 TO PLAINTIFF’S COUNSEL WITHIN 20 DAYS’ SERVICE OF THIS ORDER.

Moving party to give notice. 

Case Number: 19STLC02621    Hearing Date: March 8, 2021    Dept: 26

Nussbaum, APC. v. 2304 Sawtelle, LLC, et al.

MOTIONS TO COMPEL DEFENDANT’S FURTHER RESPONSES TO REQUEST FOR PRODUCTION AND REQUEST FOR ADMISSION; REQUEST FOR SANCTIONS

(CCP § 2031.310, 2033.290)

TENTATIVE RULING:

Plaintiff Nussbaum, APC’s Motion for Order Compelling Defendant’s Further Responses to Request for Production of Documents and Request for Sanctions is GRANTED AS TO REQUEST NOS. 1-4. DEFENDANT IS TO SERVE FURTHER RESPONSES WITHIN 20 DAYS’ SERVICE OF THIS ORDER. DEFENDANT AND COUNSEL OF RECORD ARE JOINTLY AND SEVERALLY ORDERED TO PAY SANCTIONS OF $810.00 WITHIN 20 DAYS’ SERVICE OF THIS ORDER.

Plaintiff Nussbaum, APC’s Motion for Order Compelling Defendant’s Further Responses to Requests for Admission and Request for Sanctions is GRANTED AS TO REQUEST NOS. 1-5, 7-11. DEFENDANT IS TO SERVE FURTHER RESPONSES WITHIN 20 DAYS’ SERVICE OF THIS ORDER. DEFENDANT AND COUNSEL OF RECORD ARE JOINTLY AND SEVERALLY ORDERED TO PAY SANCTIONS OF $810.00 WITHIN 20 DAYS’ SERVICE OF THIS ORDER.

ANALYSIS:

On March 15, 2019, Plaintiff Nussbaum, APC (“Plaintiff”) filed this action against Defendant 2304 Sawtelle, LLC (“Defendant”) for breach of contract and common counts. The action arises out of a retainer agreement whereby Plaintiff would represent Defendant in an unlawful detainer case. (Compl., ¶5.)

On August 27, 2020, Plaintiff filed the instant (1) Motion for Order Compelling Defendant’s Further Responses to Request for Production of Documents and Request for Sanctions; and (2) Motion for Order Compelling Defendant’s Further Responses to Requests for Admission and Request for Sanctions (“the Motions”). Defendant filed a joint opposition on February 23, 2021 and Plaintiff filed a joint reply on March 1, 2021.

Discussion

Notice of the motion to compel further must be given “within 45 days of service of the verified response, or any supplemental verified response, or any specific later date to which the requesting party and the responding party have agreed in writing,” otherwise, the propounding party waives any right to compel a further response. (Code Civ. Proc., § 2031.310, subd. (c); § 2033.290, subd.(c).) Here, the parties mutually agreed to extend the time to respond to September 17, 2020. (Motions, Simon Decl., Exh. 4.) The Motions were timely filed on August 27, 2020.

Also, the motions must be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2031.310, subd. (b).; § 2033.290, subd. (b).) Plaintiff filed declaration demonstrating that the parties engaged in an email and telephonic meet and confer effort following the receipt of Defendant’s initial responses on June 25, 2020. (Motions, Simon Decl., ¶¶3-6 and Exhs. 2-5.) No supplemental responses were served prior to the filing of the Motions. (Id. at ¶¶6-8 and Exh. 5.) The meet and confer requirement, therefore, is satisfied.

Finally, Cal. Rules of Court Rule 3.1345 requires all motions or responses involving further discovery contain a separate statement with the text of each request, the response, and a statement of factual and legal reasons for compelling further responses. (Cal. Rules of Court, Rule 3.1345, subd. (a).) Alternatively, “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, subd. (b)(3); § 2033.290, subd. (b)(2).) The Motions are both accompanied by a separate statement. (Separate Statements, filed 8/27/20.)

Compel Further Responses to Request for Production

Plaintiff moves to compel further responses to Requests for Production Nos. 1-4. A motion to compel further responses to request for production must “set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(2).) The requests ask Defendant to produce:

1. Every document or writing relating to or reflecting any communications between Plaintiff and Defendant to the effect that Plaintiff was not performing;

2. Every document or writing relating to any objection you made to any invoice sent to you by Plaintiff;

3. Any and all documents or writings relating to or reflecting payments from Defendant to Plaintiff; and

4. Any agreements or contracts listed by Defendant in response to Plaintiff’s Special Interrogatory #1 served concurrently herewith.

(Motion to Compel RFPs, Separate Statement.) “To establish good cause, a discovery proponent must identify a disputed fact that is of consequence in the action and explain how the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact.” (Digital Music News LLC v. Superior Court (2014) 226 Cal.App.4th 216, 224, disapproved on other grounds by Williams v. Superior Court (2017) 3 Cal.5th 531, 537, n. 8.) The Motion sets forth specific facts showing good cause for each of these requests based on the dispute between the parties. Namely, that the parties entered into a retainer agreement under which Plaintiff performed its obligations, but that Defendant has failed in its obligation to pay Plaintiff for its legal services, fees and costs. (Motion, p. 1:5-7.) The requests above will tend to prove Defendant’s performance under the retainer agreement.

The Court also finds that Defendant’s initial responses were inadequate insofar as they asserted generic objections such as “overbroad,” “vague,” or “ambiguous.” The scope of the requests is limited to the parties’ retainer agreement and the obligations thereunder. The opposition only addresses its objection to the term “writing” as ambiguous. The term “writing,” is not only defined with reference to the Evidence Code but is such a commonly used word that Defendant cannot credibly argue it is unable to understand what is sought in the requests. Next, the privilege-based objections are not supported argument demonstrating what potentially privileged documents might be subject to production. This, too, is a boilerplate objection on which Defendant has not met its burden. Finally, it is undisputed that Defendant agreed to produce further responses during the parties’ meet and confer, thereby admitting the initial production was not compliant with its discovery obligations and that additional responses were required. (Motion, Simon Decl., Exh. E.) Defendant did not serve supplemental responses, which were due by August 3, 2020, until February 23, 2021. (Opp., Zelig Decl., Exh. A.)

Based on the foregoing, the Court finds that Plaintiff is entitled to an order compelling Defendant’s further responses to Request for Production of Documents, Nos. 1-4. Sanctions are also appropriate and have been properly noticed. (Code Civ. Proc., § 2031.310, subd. (h).) However, the amount sought is excessive under a lodestar calculation. Plaintiff’s request for monetary sanctions is granted in the amount of $750.00 in attorney fees and $60.00 in costs. (Code Civ. Proc., §§ 2023.010, 2023.030, 2031.310.)

Requests for Admission

Plaintiff moves to compel further responses to Requests for Admission Nos. D-1 and 1-11. (Motion to Compel RFAs, Separate Statement.) Defendant responded to Request for Admission Nos. 1-3 with “Responding Party will further respond by way of supplement.” (Id. at Nos. 1-3.) This an improper response because a party must respond to a request for admission by admitting or denying the request. (Code Civ. Proc., §§ 2033.210, 2033.220.)

Defendant’s overbreadth and privilege objections to Request Nos. D-1, 4, 5, 7, 8 are without merit for the reasons discussed above. The requests pertain to a specific agreement between the parties and the obligations thereunder. Defendant has not shown a good faith lack of understanding of the terms in the Requests for Admission. Also, to the extent the opposition raises different objections to the Requests than those set forth in Defendant’s initial responses, the Court will not make a ruling on their propriety. Those objections should have been raised in the initial response or during the parties’ meet and confer in order to facilitate resolution prior to bringing this Motion to Court. Otherwise, the Court would have to conclude that Defendant’s offer to supplement its responses was not in good faith.

The responses to Request Nos. 6, 9 and 10 object that the requests are compound. Request No. 6 asks Defendant to “[a]dmit that Defendant breached the CONTRACT by failing to make payments due to Plaintiff for the legal services Plaintiff has performed and costs Plaintiff has incurred.” This is compound in that it asks Defendant to make an admission regarding its obligation to pay for services performed and its obligation to pay for costs Plaintiff incurred. Request No. 9 asks Defendant to “admit that Defendant failed or refused to pay any of the $19,408.30 due Plaintiff on March 15, 2019 or anytime thereafter.” This request is not compound. “Failed or refused” means the same thing in the request, specifically that Defendant did not pay. Similarly, “on March 15, 2019 or anytime thereafter” refers to a single period of time, not two separate periods of time. Finally, Request No. 10 asks Defendant to “[a]dmit that as a direct and proximate result of Defendant’s breach of the CONTRACT, Plaintiff has suffered damages in the principal amount of $19,408.30.” This request is also not compound. “Direct and proximate” refers to the same type of causality and $19,408.30 is defined as the principal amount of Plaintiff’s damages.

Based on the foregoing, the Court finds that Plaintiff is entitled to an order compelling Defendant’s further responses to Requests for Admission, Nos. 1-5, 7-11. Sanctions are also appropriate and have been properly noticed. (Code Civ. Proc., § 2033.290, subd. (d).) However, the Court again finds the amount sought is excessive under a lodestar calculation. Plaintiff’s request for monetary sanctions is granted in the amount of $750.00 in attorney fees and $60.00 in costs. (Code Civ. Proc., §§ 2023.010, 2023.030, 2033.290.)

Conclusion

Plaintiff Nussbaum, APC’s Motion for Order Compelling Defendant’s Further Responses to Request for Production of Documents and Request for Sanctions is GRANTED AS TO REQUEST NOS. 1-4. DEFENDANT IS TO SERVE FURTHER RESPONSES WITHIN 20 DAYS’ SERVICE OF THIS ORDER. DEFENDANT AND COUNSEL OF RECORD ARE JOINTLY AND SEVERALLY ORDERED TO PAY SANCTIONS OF $810.00 WITHIN 20 DAYS’ SERVICE OF THIS ORDER.

Plaintiff Nussbaum, APC’s Motion for Order Compelling Defendant’s Further Responses to Requests for Admission and Request for Sanctions is GRANTED AS TO REQUEST NOS. 1-5, 7-11. DEFENDANT IS TO SERVE FURTHER RESPONSES WITHIN 20 DAYS’ SERVICE OF THIS ORDER. DEFENDANT AND COUNSEL OF RECORD ARE JOINTLY AND SEVERALLY ORDERED TO PAY SANCTIONS OF $810.00 WITHIN 20 DAYS’ SERVICE OF THIS ORDER.

Moving party to give notice.