This case was last updated from Los Angeles County Superior Courts on 06/07/2019 at 11:57:10 (UTC).

DAVID FRITH SMITH VS RANK CORNELL

Case Summary

On 12/12/2017 DAVID FRITH SMITH filed a Contract - Other Contract lawsuit against RANK CORNELL. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****6569

  • Filing Date:

    12/12/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • County, State:

    Los Angeles, California

 

Party Details

Plaintiff and Petitioner

SMITH DAVID FRITH

Defendants and Respondents

DOES 1 TO100

CORNELL FRANK

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

BOYKIN MARK H. ESQ.

BOYKIN MARK HOWARD ESQ.

Defendant Attorney

HERICH EMIL WALTER ESQ.

 

Court Documents

ANSWER TO COMPLAINT

2/20/2018: ANSWER TO COMPLAINT

NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE

3/14/2018: NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE

NOTICE OF CASE MANAGEMENT CONFERENCE

3/16/2018: NOTICE OF CASE MANAGEMENT CONFERENCE

NOTICE RE: CONTINUANCE OF HEARING

4/11/2018: NOTICE RE: CONTINUANCE OF HEARING

NOTICE OF CASE REASSIGNMENT

4/23/2018: NOTICE OF CASE REASSIGNMENT

NOTICE OF CASE MANAGEMENT CONFERENCE AND CONTINUANCE

4/23/2018: NOTICE OF CASE MANAGEMENT CONFERENCE AND CONTINUANCE

Unknown

5/15/2018: Unknown

Unknown

5/16/2018: Unknown

Minute Order

6/5/2018: Minute Order

CASE MANAGEMENT ORDER

6/5/2018: CASE MANAGEMENT ORDER

NOTICE OF RULING RE CASE MANAGEMENT CONFERENCE

6/7/2018: NOTICE OF RULING RE CASE MANAGEMENT CONFERENCE

DEFENDANT FRANK CORNELL'S NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES TO FORM INTERROGATORIES: AND FOR MONETARY SANCTIONS

8/29/2018: DEFENDANT FRANK CORNELL'S NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES TO FORM INTERROGATORIES: AND FOR MONETARY SANCTIONS

DECLARATION OF EMIL W. HERICH IN SUPPORT OF DEFENDANT'S MOTION TO COMPEL RESPONSES TO FORM INTERROGATORIES, SET NO.1, AND FOR MONETARY SANCTIONS

8/29/2018: DECLARATION OF EMIL W. HERICH IN SUPPORT OF DEFENDANT'S MOTION TO COMPEL RESPONSES TO FORM INTERROGATORIES, SET NO.1, AND FOR MONETARY SANCTIONS

DECLARATION OF EMIL W. HERICH; ETC.

8/30/2018: DECLARATION OF EMIL W. HERICH; ETC.

DEFENDANT FRANK CORNELL'S NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES TO REQUESTS FOR PRODUCTION; AND FOR MONETARY SANCTIONS

8/30/2018: DEFENDANT FRANK CORNELL'S NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES TO REQUESTS FOR PRODUCTION; AND FOR MONETARY SANCTIONS

DECLARATION OF EMIL W. HERICH L SUPPORT OF DEFERBNANTS MOTION TO COMPEL RESPONSES TO REQUEST FOR PRODUCTION, SET NO.1, AND FOF MONETARY SANCTIONS

8/30/2018: DECLARATION OF EMIL W. HERICH L SUPPORT OF DEFERBNANTS MOTION TO COMPEL RESPONSES TO REQUEST FOR PRODUCTION, SET NO.1, AND FOF MONETARY SANCTIONS

DEFENDANT FRANK CORNELL'S NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES TO SPECIAL INTERROGATORIES: AND FOR MONETARY SANCTIONS

8/30/2018: DEFENDANT FRANK CORNELL'S NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES TO SPECIAL INTERROGATORIES: AND FOR MONETARY SANCTIONS

DEFENDANT FRANK CORNELL'S NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES TO REQUESTS FOR PRODUCTION; AND FOR MONETARY SANCTIONS

8/30/2018: DEFENDANT FRANK CORNELL'S NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES TO REQUESTS FOR PRODUCTION; AND FOR MONETARY SANCTIONS

39 More Documents Available

 

Docket Entries

  • 02/19/2019
  • Docketat 08:30 AM in Department 37; Post-Mediation Status Conference - Not Held - Continued - Stipulation

    [+] Read More [-] Read Less
  • 02/19/2019
  • DocketMinute Order ( (Post-Mediation Status Conference)); Filed by Clerk

    [+] Read More [-] Read Less
  • 01/30/2019
  • DocketNotice (Case Reassignment); Filed by DAVID FRITH SMITH (Plaintiff)

    [+] Read More [-] Read Less
  • 01/22/2019
  • DocketNotice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by Clerk

    [+] Read More [-] Read Less
  • 01/17/2019
  • DocketNotice of Change of Address or Other Contact Information; Filed by Mark Howard Boykin, ESQ. (Attorney)

    [+] Read More [-] Read Less
  • 01/16/2019
  • Docketat 08:30 AM in Department 37; Hearing on Motion to Compel ((Motion to Compel)) - Held - Motion Denied

    [+] Read More [-] Read Less
  • 01/16/2019
  • DocketNotice of Ruling; Filed by FRANK CORNELL (Defendant)

    [+] Read More [-] Read Less
  • 01/16/2019
  • DocketMinute Order ((Hearing on Motion to Compel (Motion to Compel))); Filed by Clerk

    [+] Read More [-] Read Less
  • 01/16/2019
  • DocketCourt's Ruling; Filed by Clerk

    [+] Read More [-] Read Less
  • 01/03/2019
  • DocketReply (TO PLAINTIFF?S SUPPLEMENTAL BRIEF IN OPPOSITION TO MOTION TO ESTABLISH ADMISSIONS AND FOR SANCTIONS); Filed by FRANK CORNELL (Defendant)

    [+] Read More [-] Read Less
74 More Docket Entries
  • 02/20/2018
  • DocketAnswer; Filed by FRANK CORNELL (Defendant)

    [+] Read More [-] Read Less
  • 02/20/2018
  • DocketANSWER TO COMPLAINT

    [+] Read More [-] Read Less
  • 01/16/2018
  • DocketPROOF OF SERVICE SUMMONS

    [+] Read More [-] Read Less
  • 01/16/2018
  • DocketProof-Service/Summons

    [+] Read More [-] Read Less
  • 12/29/2017
  • DocketDECLARATION OF NON SERVICE

    [+] Read More [-] Read Less
  • 12/29/2017
  • DocketDeclaration

    [+] Read More [-] Read Less
  • 12/13/2017
  • DocketSUMMONS

    [+] Read More [-] Read Less
  • 12/13/2017
  • DocketSummons; Filed by Plaintiff/Petitioner

    [+] Read More [-] Read Less
  • 12/12/2017
  • DocketCOMPLAINT FOR REMOVAL OF GENERAL PARTNER; FOR ACCOUNT, TERMINATION AND DISSOLUTION OF PARTNERSHIP AND FOR DAMAGES FOR BREACH OF FIDUCIARY DUTY

    [+] Read More [-] Read Less
  • 12/12/2017
  • DocketComplaint; Filed by DAVID FRITH SMITH (Plaintiff)

    [+] Read More [-] Read Less

Tentative Rulings

Case Number: ****6569 Hearing Date: May 12, 2022 Dept: 37

HEARING DATE: May 12, 2022

CASE NUMBER: ****6569

CASE NAME: David Frith-Smith v. Frank Cornell, et al.

MOVING PARTY: Defendant, Frank Cornell

OPPOSING PARTY: Plaintiff, David Frith-Smith

MOTION: Defendant’s Motion for Attorney’s Fees on Appeal

RULING: Defendant’s motion is granted in part. Defendant is awarded attorney’s fees on appeal of $26,280, plus costs of $532.26, for a total of $26,812.26. The judgment will be amended to include these additional amounts of attorney fees and costs.

Background

This action arises out of a general partnership, California Investors I (“CII”), involving Plaintiff, David Frith-Smith (“Plaintiff”) and Defendant, Frank Cornell (“Cornell”), among others. Plaintiff contends that he is a limited partner of the partnership and that Cornell is a general partner. Plaintiff contends that Cornell has breached his duties as a general partner by failing to wind-up and dissolve the partnership after liquidation of the primary asset, as allegedly required by the partnership agreement. Plaintiff further contends that Cornell, in his capacity as a general partner, has failed to deliver accountings of the partnership upon reasonable demand.

Plaintiff alleges that Cornell, CII and the other defendants have breached their fiduciary duties under the partnership agreement “in employing themselves and related parties upon terms and conditions which unjustly enrich themselves and their related parties to the detriment of the limited partners.” (Complaint, 7.)

Plaintiff’s Complaint, filed December 12, 2017, alleges three causes of action: (1) “removal of general partner and for account,” (2) termination and dissolution of partnership, and (3) breach of fiduciary duty.

On July 21, 2020, the court granted Defendant’s motion for summary judgment. Judgment was entered against Plaintiff on August 6, 2020. On April 2, 2021, the court granted Defendant’s motion for attorney fees and costs.

On November 7, 2020, Plaintiff served and filed a Notice of Appeal of the summary judgment entered against him. On July 30, 2021, the Court of Appeal entered its opinion affirming this court’s summary judgment in full and awarding Defendant his costs on appeal.

Defendant has now moved for attorney fees and costs on the appeal.

Discussion

I. Legal Standard

California follows the “American rule,” pursuant to which litigants ordinarily pay their own attorney fees. (Musaelian v. Adams (2009) 45 Cal.4th 512, 516.) Thus, a request for attorney fees must be based on either a statutory or contractual provision authorizing their recovery. (CCP 1021.)

Civil Code, section 1717, subdivision (a) provides in relevant part:

In any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs.

“[T]he party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract.” (Civ. Code, 1717, subd. (b).) Attorney fees are awarded based “upon the terms of the contractual attorney fee provision” pursuant to CCP 1021. (Santisas v. Goodin (1998) 17 Cal.4th 599, 602.) “The primary purpose of section 1717 is to ensure mutuality of remedy for attorney fee claims under contractual attorney fee provisions.” (Id. at p. 610.) The Supreme Court recognized that in order to ensure mutuality, “it has been consistently held that when a party litigant prevails in an action on a contract by establishing that the contract is invalid, inapplicable, unenforceable, or nonexistent, section 1717 permits that party’s recovery of attorney fees whenever the opposing parties would have been entitled to attorney fees under the contract had they prevailed. (Id. at p. 611.)

“‘[B]ecause contractually authorized attorney fees are now listed as costs under Code of Civil Procedure section 1033.5, … they may either be requested of the court of appeal while the appeal is pending, or of the trial court upon issuance of the remittitur. The trial court has jurisdiction to award them, regardless of the lack of specific instructions in the opinion or the remittitur.’” (Butler-Rupp v. Lourdeaux (2007) 154 Cal.App.4th 918, 924, quoting Harbour Landing-Dolfann, Ltd. v. Anderson (1996) 48 Cal.App.4th 260, 264-265.)

II. Basis for Attorney’s Fees Request

Defendant moves again for attorney’s fees pursuant to the Release Agreement between the parties. (Motion, 4-6; Declaration of Emil W. Herich (“Herich Decl.”), Exh. C.). Defendant contends the Release Agreement entitles him to attorney fees because it formed the basis of his sixth affirmative defense and was intended to protect Defendant “from the risk of any litigation relating to his work for the Limited Partnership once all of the funds otherwise available to indemnify him were dispersed to the Limited Partners.” (Motion, 4.)

Paragraph 11 of the Release Agreement, Attorneys Fees, provides:

In the event a legal action or proceeding is hereinafter brought with regard to this Agreement or any of its terms, the prevailing party in such action shall be awarded its reasonable attorney’s fees and costs of litigation.

As noted above, Plaintiff did not file an opposition and does not challenge Defendant’s entitlement to attorney fees on appeal.

The court finds that Defendant has again demonstrated his entitlement to attorney’s fees on appeal based on section 11 of the Release Agreement.

III. Reasonable Amount of Attorney’s Fees Award

“A trial court assessing attorney fees begins with a touchstone or lodestar figure, based on the ‘careful compilation of the time spent and reasonable hourly compensation of each attorney ... involved in the presentation of the case.” (Christian Research Inst. v. Alnor (2008) 165 Cal.App.4th 1315, 1321.) The Court “need not simply award the sum requested. To the contrary, ascertaining the fee amount is left to the trial court’s sound discretion.” (Ibid.) “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. 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.) “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.” (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 395.) “The law is clear, however, that an award of attorney fees may be based on counsel’s declarations, without production of detailed time records. (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375.)

1) Billing Rates Requested

Defendant submits the declaration of Emil Herich in support of his motion. Herich attests that his billing rate in this action on appeal has increased to $690-$730 per hour during the one year the case has been pending on appeal. (Herich Decl. 11.) According to Herich, the rates of $690 to $730 are reasonable given that this court has already found a billable rate of $690 to be reasonable for Defendant’s counsel, and since he has 36 years of experience and has been practicing commercial litigation continuously since his graduation from law school. (Id.)

Plaintiff again does not challenge the reasonableness of Defendant’s requested billing rates.

According to Exhibit I to the Herich Declaration, Herich’s billing rate increased to $730 per hour beginning with the February 24, 2021 invoice.

The court finds Herich’s requested rates reasonable given his experience and the prevailing rates in the Los Angeles market.

2) Hours Requested

Defendant requests attorney’s fees in connection with a total of 34 hours of attorney time in defense of the appeal of this action and 16 hours that he anticipated spending on this motion for attorney fee’s. (Herich Decl. 12, Exh. I.) According to Herich, the requested hours are reasonable for the year that this present action was on appeal because they represent time spent on a multitude of issues, including: “reviewing the notice of appeal and related documents, reviewing Plaintiff’s opening brief, researching the issues including those relating to Plaintiff’s failure to submit an adequate record on appeal, filing Respondent’s Brief, reviewing Plaintiff’s reply brief, reviewing the Court of Appeal’s tentative ruling, attending oral argument and filing this motion for attorney’s fees.” (Herich Decl., 12, Exh. I)

The court has reviewed Defense counsel’s billing statements, attached as Exhibit D to the Herich Declaration. Based upon this review, the court finds Defendant’s requested hours for his defense of the appeal are reasonable. (36 hours x $730=$26,280.) There is no documentation, however, for the time he spent on preparing this motion for attorney fees. The court considers 16 hours for this unopposed motion, which in large part mirrors the earlier motion for attorney fees, excessive.

IV. Costs

The Court of Appeal awarded Defendant costs on appeal. Defendant’s Memorandum of Costs on appeal amounted to $532.26 (Herich Decl., 10, Exh. I).

Conclusion

Defendant’s motion is granted in part. Defendant is awarded attorney’s fees on appeal of $26,280, plus costs of $532.26, for a total of $26, 812.26. The judgment will be amended to include these additional amounts of attorney fees and costs.



Case Number: ****6569    Hearing Date: April 2, 2021    Dept: 37

HEARING DATE: April 2, 2021

CASE NUMBER: ****6569

CASE NAME: David Frith-Smith v. Frank Cornell, et al.

MOVING PARTY: Defendant, Frank Cornell

OPPOSING PARTY: Plaintiff, David Frith-Smith

TRIAL DATE: None – Summary Judgment granted August 6, 2020

PROOF OF SERVICE: OK

MOTION: Defendant’s Motion for Attorney Fees

OPPOSITION: None as of March 29, 2021

REPLY: No opposition filed.

TENTATIVE: Defendant’s motion is granted. Defendant is awarded attorney fees of $98,456.95. Defendant is to give notice.

Background

This action arises out of Plaintiff, David Frith-Smith (“Plaintiff”) and Defendant, Frank Cornell (“Cornell”)’s general partnership, California Investors I (“CII”) Plaintiff contends that he is a limited partner of the partnership and that Cornell is a general partner. Plaintiff contends that Cornell has breached his duties as a general partner by failing to wind-up and dissolve the partnership after liquidation of the primary asset, as allegedly required by the partnership agreement. Plaintiff further contends that Cornell, in his capacity as a general partner, has failed to deliver accountings of the partnership upon reasonable demand. 

Plaintiff alleges that Cornell, CII and the other defendants have breached their fiduciary duties under the partnership agreement “in employing themselves and related parties upon terms and conditions which unjustly enrich themselves and their related parties to the detriment of the limited partners.” (Complaint, ¶ 7.) 

Plaintiff’s Complaint, filed December 12, 2017, alleges three causes of action: (1) “removal of general partner and for account,” (2) termination and dissolution of partnership, and (3) breach of fiduciary duty. 

On July 21, 2020, Defendant’s motion for summary judgment was granted. Judgment was entered against Plaintiff on August 6, 2020.

Defendant now moves for attorney fees. The motion is unopposed.

Discussion

  1. Legal Standard

    California follows the “American rule,” pursuant to which litigants ordinarily pay their own attorney fees.  (Musaelian v. Adams (2009) 45 Cal.4th 512, 516.)  Thus, a request for attorney fees must be based on either a statutory or contractual provision authorizing their recovery.  (See Code Civ. Proc., ; 1021.)  

    Civil Code, section 1717, subdivision (a) provides in relevant part:

    In any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs.

    (Civ. Code, ; 1717, subd. (a).)  “[T]he party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract.”  (Civ. Code, ; 1717, subd. (b).)  Attorney fees are awarded based “upon the terms of the contractual attorney fee provision” pursuant to Code of Civil Procedures, section 1021.  (Santisas v. Goodin

    “When ‘prevailing party’ status or the ‘reasonableness’ of attorney fees requested must be determined by the trial court, a notice of motion claiming fees for services up to and including rendition of the trial court judgment (including attorney fees on an interim appeal before rendition of the judgment) must be served and filed within the time for filing a notice of appeal (CRC 8.104, 8.108; see ¶ 18:465 ff.). [CRC 3.1702(b)(1); see P R Burke Corp. v. Victor Valley Wastewater Reclamation Auth. (2002) 98 CA4th 1047, 1052, 120 CR2d 98, 101—motion “almost always” filed after entry of judgment because until then “there is technically no prevailing party” and “parties may still incur additional fees”; Saben, Earlix & Assocs. v. Fillet (2005) 134 CA4th 1024, 1029-1031, 36 CR3d 610, 613-615—entry of nonappealable order granting summary judgment, or service of notice of entry of same, as opposed to entry of summary judgment, does not trigger Rule 3.1702(b)(1) limitations period.” (Cal. Prac. Guide Civ. Trials & Ev. (Rutter Group 2020) Ch. 17-E ¶ 17:967.) As notice of entry of judgment was served on August 7, 2020, the motion was timely filed on October 6, 2020.

  2. Basis for Attorney Fee Request

Defendant moves for attorney fees pursuant to the Release Agreement between the parties. (Motion, 3-5; Declaration of Emil W. Herich (“Herich Decl.”), ¶ 4, Exh. C.) The Release Agreement provides in pertinent part as follows:

11. ATTORNEYS FEES

In the event a legal action or proceeding is hereinafter brought with regard to this Agreement or any of its terms, the prevailing party in such action shall be awarded its reasonable attorney’s fees and costs of litigation.

The Release Agreement attached to the Herich Declaration is signed by Plaintiff only. However, according to Defendant, the Release Agreement entitles him to attorney fees because it formed the basis of his sixth affirmative defense and was intended to protect Defendant “from the risk of any litigation relating to his work for the Limited Partnership once all of the funds otherwise available to indemnify him were dispersed to the Limited Partners.”

Plaintiff did not file an opposition and does not challenge Defendant’s entitlement to attorney fees.

The court finds that Defendant has demonstrated his entitlement to attorney fees based on section 11 of the Release Agreement.

  1. Reasonable Amount of Attorney’s Fees Award

“A trial court assessing attorney fees begins with a touchstone or lodestar figure, based on the ‘careful compilation of the time spent and reasonable hourly compensation of each attorney ... involved in the presentation of the case.”  (Christian Research Inst. v. Alnor Barrenechea

  1. Billing Rates Requested

Defendant submits the declaration of Emil Herich in support of his motion. Herich attests that his billing rate in this action has increased from $615 to $690 per hour during the two and one-half years the case has been pending. (Herich Decl. ¶ 6.) According to Herich, the rates of $615 to $690 are reasonable given that he has 36 years of experience and has been practicing commercial litigation continuously since his graduation from law school. (Id.)

Plaintiff does not challenge the reasonableness of Defendant’s requested billing rates.

According to Exhibit D to the Herich Declaration, Herich’s billing rate increased to $650 per hour beginning with the February 15, 2019 invoice, and then $690 per hour from June 18, 2020 to September 30, 2020.

The court finds Herich’s requested rates reasonable given his experience and the prevailing rates in the Los Angeles market.

  1. Hours Requested

Defendant requests attorney’s fees in connection with a total of 154.7 hours of attorney time. (Herich Decl., Exh. D.) According to Herich, the requested hours are reasonable for two and one-half years of litigation because they represent time spent on a multitude of issues, including the following: “researching the potential litigation issues, filing the answer to the complaint, responding to numerous written discovery requests from Plaintiff, producing thousands of pages of documents many of which were years old, serving extensive written discovery, filing five motions to compel discovery from Plaintiff, defending Defendant’s deposition, making numerous attempts to depose Plaintiff and filing a successful motion for summary judgment.” (Herich Decl., ¶ 6, Exh. D.)

The court has reviewed Defense counsel’s billing statements, attached as Exhibit D to the Herich Declaration. Based upon this review, the court finds Defendant’s requested hours reasonable. However, all of the time charged was charged at Mr. Herich’s rates for his time. In a case like this the court would expect to see a fair number of charges by others at lower rates. Given the billing records presented, it is difficult to precisely calculate how much that would reduce the attorney fees, because the persons charging lower rates may not have been as efficient at Mr. Herick. Accordingly, the court reduces the total fees requested by 5%, leaving $94,223.85.

Conclusion

Defendant’s motion is granted. Defendant is awarded attorney fees of $94,223.85. Defendant is to give notice.



Case Number: ****6569    Hearing Date: December 11, 2019    Dept: 37

HEARING DATE: December 11, 2019

CASE NUMBER: ****6569

CASE NAME: David Frith-Smith v. Frank Cornell, et al.

MOVING PARTY: Plaintiff, David Frith-Smith

OPPOSING PARTY: Defendant, Frank Cornell

TRIAL DATE: September 1, 2020 (non-jury)

PROOF OF SERVICE: OK

MOTION: Plaintiff’s Motion to Compel Further Responses to Request for Production, Set One and Request for Sanctions

OPPOSITION: November 27, 2019

REPLY: December 4, 2019 [Reply Declarations only]

TENTATIVE: Plaintiff’s Motion to Compel Production in Connection with the Notice of Deposition of Cornell is DENIED. Both parties’ requests for sanctions are also DENIED. Cornell is to give notice.

Background

This action arises out of Plaintiff, David Frith-Smith (“Plaintiff”) and Defendant, Frank Cornell (“Cornell”)’s general partnership, California Investors I (“CII”) Plaintiff contends that he is a limited partner of the partnership and that Cornell is a general partner. Plaintiff contends that Cornell has breached his duties as a general partner by failing to wind-up and dissolve the partnership after liquidation of the primary asset, as allegedly required by the partnership agreement. Plaintiff further contends that Cornell, in his capacity as a general partner, has failed to deliver accountings of the partnership upon reasonable demand.

Plaintiff alleges that Cornell, CII and the other defendants have breached their fiduciary duties under the partnership agreement “in employing themselves and related parties upon terms and conditions which unjustly enrich themselves and their related parties to the detriment of the limited partners.” (Complaint, ¶ 7.)

Plaintiff’s Complaint, filed December 12, 2017, alleges three causes of action: (1) “removal of general partner and for account,” (2) termination and dissolution of partnership, and (3) breach of fiduciary duty.

Plaintiff now moves to compel Cornell to produce further documents responsive to Requests 6 and 8 in connection a Notice of Deposition to Cornell. and to produce responsive documents. Plaintiff also purports to seek an award of sanctions. Cornell opposes the motion.

Procedural History

Plaintiff contends that the documents at issue in this motion relate to his repeated attempts to take Cornell’s deposition. (Motion, 2-4.) Plaintiff first noticed the deposition for January 10, 2019 and requested that Cornell produce various documents. (Id.) Specifically, Plaintiff seeks to compel documents for the following two requests:

  1. Request No 6: “Any and all reports of the value of plaintiff’s interest in [CII], filed with any taxing authority of the United States for any period commencing on or after January 1, 2015.”

  2. Request No. 8: “Any and all accounts, statements, reports or other compilation of the income, expenses, profits, losses or other indications of the financial results of operations of [CII], compiled by your or at your direction for any period commencing on or after January 1, 2015.”

Plaintiff alleges that he is entitled to documents in these categories because the partnership agreement for CII requires Cornell to make a yearly reporting to the partners, which has been allegedly withheld from Plaintiff is since 2015. (Motion, 3.) Cornell allegedly submitted to deposition on July 30, 2019 and produced 1435 pages of documents “a few days prior.” (Id.)

According to Plaintiff, “it was clear” from reviewing Cornell’s documents that no documents responsive to request number 8 were produced. (Id.) Further, Plaintiff appears to contend that after further meet and confer, Cornell did produce all documents responsive to request number 6, but still failed to produce General Ledgers and other documents responsive to request number 8. (Motion, 4; Declaration of Mark H. Boykin (“Boykin Decl.”), ¶ 3, Exhibit B.) Plaintiff contends that general ledgers are necessary to “judge the accuracy of the tax returns.” (Id.)

The Parties’ Meet and Confer Efforts

Plaintiff’s motion does not clearly demonstrate that he has engaged in sufficient meet and confer efforts prior to bringing the instant motion. Instead, Plaintiff purports to attach groups of emails in one exhibit, which he contends compromises of “multiple requests” to complete the meet-and-confer. (Motion, 5; Boykin Decl., ¶ 2, Exhibit A.) Cornell submits the declaration of Emil W. Herich in support of his contention that meet and confer efforts were insufficient.

On or about December 2, 2018, Plaintiff’s counsel served a notice of deposition of Cornell. (Declaration of Emil W. Herich (“Herich Decl.”), ¶ 2, Exhibit A. On December 18, 2018, Cornell objected to the notice of deposition. (Herich Decl. ¶ 3, Exhibit B.) Plaintiff’s counsel allegedly responded to Cornell’s letter on January 4, 2019 but also allegedly did not meaningfully respond to Cornell’s objections. (Herich Decl., ¶ 4.)

On May 9, 2019, Plaintiff served a new notice of deposition of Cornell. (Id.) On May 21, 2019, Cornell served objections to the new notice of deposition. (Id.) Eventually, the parties agreed that Cornell would appear for deposition on July 30, 2019 and it was further agreed that no new notice of deposition would be served. (Id.; Exhibits C-D.)

On July 30, 2019, Cornell appeared at his deposition. (Herich Decl., ¶ 5.) Prior to the deposition, Cornell produced an extensive amount of documents, including tax returns for CII. (Id.) During the deposition, Cornell’s counsel stated on the record in response to Plaintiff’s counsel’s inquiry that he would produce tax returns for CII if they were inadvertently left out of the production. (Herich Decl., ¶ 6, Exhibit E.) At the deposition, counsel engaged in the following discussion:

Herich: And counsel, I’ve already stated on the record, and I’ll say again, we produced the tax returns for the years that you’ve requested them, I think the last three years.”

Boykin: Well, you produced the federal returns?

Herich: I’m sorry?

Boykin: Did you produced federal returns?

Herich: Did we yet?

Boykin: Did you produce them in your document production?

Herich: I don’t – I don’t have a document production in front of me. I know that I have tax returns, and I know that we will produce them if they weren’t produced, and we will produce them.

(Herich Decl., Exhibit E, 98:14-99:4.)

On August 2, 2019, Plaintiff’s counsel wrote an email, stating that “pursuant to our agreement on the record, please produce the following items: 1. Year-end General Ledger Statements, with 12 months of activity in single reports (not monthly reports), for 2016, 2017, 2018; 2. Federal income-tax returns for the Partnership for 2017 and 2018.” (Herich Decl., ¶ 7, Exhibit F.) On August 21, 2019, Herich responded and stated that the income tax returns had been produced. (Id.) Nevertheless, Herich attests that he caused the tax returns to be produced again, along with the 2018 returns. (Id.)

On September 12, 2019, Plaintiff’s counsel wrote by email to again demand the same documents he demanded on August 2, 2019. (Herich Decl., ¶ 8, Exhibit G.) Herich attests that he produced all documents within his client’s possession, custody or control and that neither he nor his client knew what “partnership reports” referred to. (Id.) Herich further attests that his client had re-located to a smaller office and could not locate the general ledger documents. (Id.)

On October 8, 2019, Plaintiff’s counsel again wrote Cornell’s counsel by email, contending that Cornell had failed to comply with Plaintiff’s requests “after committing on the record.” (Herich Decl. ¶ 9, Exhibit H.) The instant motion was filed on October 11, 2019. On October 28, 2019, Herich responded to Plaintiff’s counsel’s email, stating that it was his understanding that “the general ledger(s) is subsumed with the tax returns.” (Id.)

From the evidence submitted, there clearly were a number of emails regarding discovery, but there was no clearly articulated discussion about exactly what the discovery dispute involved and did not involve. It is questionable that the meet and confer requirement was met, but there are more serious problems with the motion.

Plaintiff’s Motion to Compel Defendant to Further Respond to Demand For Documents Pursuant to Notice of Deposition

  1. Timeliness of Motions

Pursuant to Code of Civil Procedure section 2025.480 subdivision (b), a motion to compel further responses to requests for production in connection with a deposition notice must be made no later than 60 days after the “completion of the record” of the deposition. (Code Civ. Proc., ; 2025.480(b).)

Plaintiff contends that the motion is timely because the transcript on Cornell’s deposition was made available on August 13, 2019 (Motion, 1-2). The instant motion was filed on October 11, 2019. Cornell does not dispute this contention. Accordingly, the motion is timely.

  1. Discussion

Under the Discovery Act, “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.” (Code Civ. Proc., ; 2017.010.)

“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.” (Code Civ. Proc., ; 2025.480(a).) A party moving to compel production of documents at a deposition “must be accompanied by a separate statement.” (Cal. Rules of Court, rule 3.1345(a).) The moving party must also include reasons why further discovery should be ordered: legal or factual arguments why the responses given were incomplete or nonresponsive, or the objections invalid. (Cal. Rules of Court, rule 3.1345(c).) The responding party has the burden to justify objections in response to a motion filed to compel. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.)

Plaintiff seeks an order compelling Cornell to further respond to request numbers 6 and 8 to Cornell’s Notice of Deposition, as discussed above. As discussed above, Plaintiff mainly argues that he is entitled to a further production because general ledgers are necessary to verify the accuracy of CII’s tax returns. (Motion, 6.) Plaintiff does not submit a separate statement in support of his motion. On reply, Plaintiff submits his own declaration, wherein he attests that he is a certified public accountant and that the general ledgers he seeks Cornell to produce are necessary to determine the accuracy of the CII tax returns Cornell has already produced. (Declaration of Plaintiff in Support of Reply, ¶¶ 1, 3.)

Cornell opposes the motion and contends that Plaintiff’s motion is both procedurally and substantively defective.

Cornell first contends that the motion is procedurally defective because it does not include a separate statement. (Opposition, 5.) After a review of Plaintiff’s moving papers, the court is also unable to find a separate statement in connection with Plaintiff’s motion. A separate statemen is mandatory on a discovery motion and the failure to include one is sufficient grounds to deny the motion.

Accordingly, Plaintiff’s motion to compel further responses to request for production, numbers 6 and 8 in connection with Plaintiff’s Notice of Deposition of Cornell is DENIED.

Request for Sanctions

“The court shall impose a monetary sanction . . . against any party, person or attorney who unsuccessfully makes or opposes a motion to compel a further response to response to a demand, 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.” (Code Civ. Proc., ; 2031.310, subd. (h).)

“If a motion under subdivision (a) is granted, the court shall impose a monetary sanction in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., ; 2025.450, subd. (g)(1).)

Plaintiff requests sanctions in the amount of $5,111.65 for attorneys fees and costs incurred by in connection with bringing the instant motion. Cornell also requests attorney’s fees against Plaintiff in the amount of $2,460.

Given the foregoing, the court declines to award sanctions to either party and finds that both parties have acted with substantial justification in bringing and opposing the instant motion.

Conclusion

Plaintiff’s Motion to Compel Production in Connection with the Notice of Deposition of Cornell is DENIED. Both parties’ requests for sanctions are also DENIED. Cornell is to give notice.



related-case-search

Dig Deeper

Get Deeper Insights on Court Cases


Latest cases represented by Lawyer HERICH EMIL W.