This case was last updated from Los Angeles County Superior Courts on 11/29/2019 at 13:24:39 (UTC).

DOROTHY DILLER VS BARRY WEISS ET AL

Case Summary

On 01/29/2018 a Other case was filed by DOROTHY DILLER against BARRY WEISS in the jurisdiction of Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1484

  • Filing Date:

    01/29/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Other

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

RANDOLPH M. HAMMOCK

 

Party Details

Plaintiff and Petitioner

DILLER DOROTHY

Defendants and Respondents

WEISS BARRY

DOES 1 THROUGH 100

ROSENBERG EDMUNDO

LAWRENCE KEVIN

FOSTER AND LAWRENCE ACCOUNTANCY

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

MCMILLAN SHELLY D.

MCMILLAN SHELLY DEIDRE

Defendant and Respondent Attorneys

COHEN BARUCH C. ESQ.

MENDES PATRICK JOSEPH

COHEN BARUCH C ESQ.

 

Court Documents

Supplemental Declaration - SUPPLEMENTAL DECLARATION SUPPLEMENTAL DECLARATION OF JEREMY B. FREEDMAN IN SUPPORT OF DEFENDANT KEVIN LAWRENCE'S MOTION TO COMPEL PLAINTIFF DOROTHY DILLER TO RESPOND TO DISC

11/26/2019: Supplemental Declaration - SUPPLEMENTAL DECLARATION SUPPLEMENTAL DECLARATION OF JEREMY B. FREEDMAN IN SUPPORT OF DEFENDANT KEVIN LAWRENCE'S MOTION TO COMPEL PLAINTIFF DOROTHY DILLER TO RESPOND TO DISC

Proof of Service by Mail

10/10/2019: Proof of Service by Mail

Motion to Compel - MOTION TO COMPEL [DEFENDANT FOSTER & ACCOUNTANCY'S] PLAINTIFF DOROTHY DILLER TO RESPOND TO DISCOVERY AND REQUEST FOR MONETARY SANCTIONS

10/10/2019: Motion to Compel - MOTION TO COMPEL [DEFENDANT FOSTER & ACCOUNTANCY'S] PLAINTIFF DOROTHY DILLER TO RESPOND TO DISCOVERY AND REQUEST FOR MONETARY SANCTIONS

Declaration - DECLARATION OF JEREMY B. FREEDMAN IN SUPPORT OF DEFENDANT FOSTER & LAWRENCE ACCOUNTANCY'S MOTION TO COMPEL PLAINTIFF DOROTHY DILLER TO RESPOND TO DISCOVERY AND REQUEST FOR MONETARY SANCT

10/10/2019: Declaration - DECLARATION OF JEREMY B. FREEDMAN IN SUPPORT OF DEFENDANT FOSTER & LAWRENCE ACCOUNTANCY'S MOTION TO COMPEL PLAINTIFF DOROTHY DILLER TO RESPOND TO DISCOVERY AND REQUEST FOR MONETARY SANCT

Memorandum of Points & Authorities

10/10/2019: Memorandum of Points & Authorities

Answer

8/22/2019: Answer

Brief - BRIEF DEFENDANTS KEVIN LAWRENCE AND FOSTER & LAWRENCE ACCOUNTANCY'S SUPPLEMENTAL BRIEF RE TENTATIVE RULING ON THEIR MOTION TO STRIKE DOE AMENDMENTS AND SECOND AMENDED COMPLAINT

6/25/2019: Brief - BRIEF DEFENDANTS KEVIN LAWRENCE AND FOSTER & LAWRENCE ACCOUNTANCY'S SUPPLEMENTAL BRIEF RE TENTATIVE RULING ON THEIR MOTION TO STRIKE DOE AMENDMENTS AND SECOND AMENDED COMPLAINT

Order - FINAL RULING-MOTION TO STRIKE PORTIONS OF SECOND AMENDED COMPLAINT

7/3/2019: Order - FINAL RULING-MOTION TO STRIKE PORTIONS OF SECOND AMENDED COMPLAINT

Minute Order - MINUTE ORDER (RULING ON SUBMITTED MATTER THE COURT, HAVING TAKEN THE MATTE...)

7/3/2019: Minute Order - MINUTE ORDER (RULING ON SUBMITTED MATTER THE COURT, HAVING TAKEN THE MATTE...)

Declaration - DECLARATION OF JEREMY B. FREEDMAN

5/24/2019: Declaration - DECLARATION OF JEREMY B. FREEDMAN

Motion to Strike (not initial pleading)

5/24/2019: Motion to Strike (not initial pleading)

Stipulation and Order - STIPULATION AND ORDER RESCHEDULING THE HEARING ON PLAINTIFFS MOTION TO COMPEL DEPOSITION OF BARRY WEISS

5/28/2019: Stipulation and Order - STIPULATION AND ORDER RESCHEDULING THE HEARING ON PLAINTIFFS MOTION TO COMPEL DEPOSITION OF BARRY WEISS

Status Report

3/11/2019: Status Report

Notice of Ruling

1/2/2019: Notice of Ruling

Proof of Personal Service -

10/9/2018: Proof of Personal Service -

Minute Order - (Ex-Parte Proceedings)

10/9/2018: Minute Order - (Ex-Parte Proceedings)

Declaration - Declaration of Pamela C. Chalk in Support of Defendants Kevin Lawrence and Foster & Lawrence Accountancy's Demurrer

11/16/2018: Declaration - Declaration of Pamela C. Chalk in Support of Defendants Kevin Lawrence and Foster & Lawrence Accountancy's Demurrer

Proof of Service -

7/11/2018: Proof of Service -

86 More Documents Available

 

Docket Entries

  • 08/03/2020
  • Hearing08/03/2020 at 09:30 AM in Department 47 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 07/28/2020
  • Hearing07/28/2020 at 08:30 AM in Department 47 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 12/17/2019
  • Hearing12/17/2019 at 08:30 AM in Department 47 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Compel Deposition Subpoena for Production of Business Records

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  • 12/05/2019
  • Hearing12/05/2019 at 08:30 AM in Department 47 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Deem Request for Admissions Admitted

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  • 12/05/2019
  • Hearing12/05/2019 at 08:30 AM in Department 47 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Compel Discovery (not "Further Discovery")

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  • 11/26/2019
  • DocketSupplemental Declaration (SUPPLEMENTAL DECLARATION OF JEREMY B. FREEDMAN IN SUPPORT OF DEFENDANT FOSTER & LAWRENCE ACCOUNTANCY'S MOTION TO COMPEL PLAINTIFF DOROTHY DILLER TO RESPOND TO DISCOVERY AND REQUEST FOR MONETARY SANCTIONS); Filed by Foster and Lawrence Accountancy (Defendant); Kevin Lawrence (Defendant)

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  • 11/26/2019
  • DocketSupplemental Declaration (SUPPLEMENTAL DECLARATION OF JEREMY B. FREEDMAN IN SUPPORT OF DEFENDANT KEVIN LAWRENCE'S MOTION TO COMPEL PLAINTIFF DOROTHY DILLER TO RESPOND TO DISCOVERY AND REQUEST FOR MONETARY SANCTIONS); Filed by Foster and Lawrence Accountancy (Defendant); Kevin Lawrence (Defendant)

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  • 11/26/2019
  • DocketReply (REPLY BRIEF IN SUPPORT OF DEFENDANT FOSTER & LA WREN CE ACCOUNT AN CY'S MOTION TO COMPEL PLAINTIFF DOROTHY DILLER TO RESPOND TO DISCOVERY AND REQUEST FOR MONETARY SANCTIONS); Filed by Foster and Lawrence Accountancy (Defendant); Kevin Lawrence (Defendant)

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  • 11/26/2019
  • DocketReply ( BRIEF IN SUPPORT OF DEFENDANT KEVIN LAWRENCE'S MOTION TO COMPEL PLAINTIFF DOROTHY DILLER TO RESPOND TO DISCOVERY AND REQUEST FOR MONETARY SANCTIONS); Filed by Foster and Lawrence Accountancy (Defendant); Kevin Lawrence (Defendant)

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  • 11/20/2019
  • DocketOpposition (Plaintiff's Opposition to Defendant Kevin Lawrence's Motion to Compel Discovery Responses); Filed by Dorothy Diller (Plaintiff)

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130 More Docket Entries
  • 02/28/2018
  • DocketProof-Service/Summons; Filed by Dorothy Diller (Plaintiff)

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  • 02/28/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 02/28/2018
  • DocketProof-Service/Summons; Filed by Dorothy Diller (Plaintiff)

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  • 02/26/2018
  • DocketNotice of Case Management Conference; Filed by Dorothy Diller (Plaintiff)

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  • 02/26/2018
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 02/01/2018
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 02/01/2018
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 01/29/2018
  • DocketComplaint; Filed by Dorothy Diller (Plaintiff)

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  • 01/29/2018
  • DocketSUMMONS

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  • 01/29/2018
  • DocketCOMPLAINT FOR DAMAGES FOR: 1. DECLARATORY RELIEF; ETC

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Tentative Rulings

Case Number: BC691484    Hearing Date: February 25, 2020    Dept: 47

Dorothy Diller v. Barry Weiss, et al.

 

MOTION TO COMPEL BANK LEUMI TO RESPOND TO DEPOSITION SUBPOENA FOR PRODUCTION OF DOCUMENTS

MOVING PARTY: Plaintiff Dorothy Diller

RESPONDING PARTY(S): Defendants Barry Weiss & Edmundo Rosenberg

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that Defendants have breached the fiduciary duties owed by partners to a partnership agreement.

Plaintiff moves to compel Bank Leumi to respond to Plaintiff’s deposition subpoena for the production of documents. Defendants oppose the motion and request $2,000 in sanctions.

TENTATIVE RULING:

Plaintiff Dorothy Diller’s motion to compel Bank Leumi to respond to Plaintiff’s deposition subpoena for production of documents is GRANTED. Bank Leumi is ordered to produce the documents requested within 30 days of this order. Bank Leumi is to provide a privilege log if any responsive documents are subject to a privilege.

To the extent that Plaintiff requested sanctions in her reply brief, that request is DENIED. Defendants’ request for sanctions is also DENIED.

DISCUSSION:

Motion To Compel Response To Deposition Subpoena

Plaintiff moves to compel compliance by nonparty Bank Leumi with a deposition subpoena for production of records. Defendant points out that this is Plaintiff’s fourth attempt to obtain this information. In this case, the fourth time is the charm.

In a previous version of this motion, the Court had pointed out that none of the four statutory bases for the motion that Plaintiff cited actually provided a basis for the motion. Undaunted, Plaintiff has now cited at least eight statutory provisions that do not provide a basis for this motion. There is one that does, however: CCP § 1987.1.

When a third party has failed to appear and produce documents in response to a deposition subpoena, a party may move to compel compliance with the subpoena under CCP § 1987.1 (as opposed to CCP § 2025.450, which applies only to parties and their designees). CCP § 1987.1 provides:

If a subpoena requires the attendance of a witness or the production of books, documents, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.

(CCP § 1987.1(a) (bold emphasis added).) There is no meet and confer requirement set forth in CCP § 1987.1. Nor is there any good cause requirement set forth in § 1987.1. (But cf. Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 223-224 [reading a good-faith requirement into former section 2020, reasoning that it was part of the same statutory scheme as former section 2031, which included a good-faith requirement for parties, and “it is unlikely the Legislature intended to place greater burdens on a nonparty than on a party to the litigation”].)

Here, unlike one of the previous times when Plaintiff sought to compel this information and had not properly served Bank Leumi, the bank was properly served on December 23, 2019 and has failed to produce any documents in response. (Declaration of Shelly D. McMillan ¶¶ 2, 9.) Bank Leumi has not responded to the subpoena at all, other than with belated objections improperly served, which are discussed below. (Id. ¶ 13.) Defendants likewise improperly served belated objections, discussed below.

Because Bank Leumi has failed to comply with the deposition subpoena, Plaintiff is entitled to an order compelling a response, unless it would be appropriate for the Court to make an order “to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.” (CCP § 1287.1.) Even considering the belated and improperly served objections of Bank Leumi and Defendants, however, they have not shown that these requests are unreasonable or oppressive or would violate anyone’s privacy. The burden is on the deponent to justify the refusal to appear or produce documents. (San Diego Professional Ass’n v. Superior Court (1962) 58 Cal.2d 194, 199.) The deponent has not done so, and neither have Defendants.

Accordingly, the motion to compel Bank Leumi to respond to Plaintiff’s deposition subpoena for the production of documents is GRANTED. Bank Leumi is ordered to produce the documents requested within 30 days of this order. Bank Leumi is to provide a privilege log if any responsive documents are subject to a privilege.

CCP § 1987.2 authorizes the discretionary imposition of sanctions where a court makes an order pursuant to CCP § 1987.1:

[T]he court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney's fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.

(CCP § 1987.2(a).)

Here, Plaintiff did not request sanctions in the motion itself. Plaintiff states, as an afterthought in her reply brief, that “this Court should impose sanctions on Defendants for their bad faith conduct,” but Plaintiff did not notice this request for sanctions or even request a particular amount supported by a declaration. This belated request, to the extent it can be considered a request, is DENIED. Likewise, as the losing party, Defendants’ request for sanctions is DENIED.

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated: February 25, 2020 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org

Case Number: BC691484    Hearing Date: December 17, 2019    Dept: 47

Dorothy Diller v. Barry Weiss, et al.

 

MOTION TO COMPEL BANK LEUMI TO RESPOND TO DEPOSITION SUBPOENA FOR PRODUCTION OF DOCUMENTS

MOVING PARTY: Plaintiff Dorothy Diller

RESPONDING PARTY(S): Defendants Barry Weiss & Edmundo Rosenberg

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that Defendants have breached the fiduciary duties owed by partners to a partnership agreement.

Plaintiff moves to compel Bank Leumi to respond to Plaintiff’s deposition subpoena for the production of documents. Defendants oppose the motion and request $4,500 in sanctions.

TENTATIVE RULING:

Plaintiff Dorothy Diller’s motion to compel Bank Leumi to respond to Plaintiff’s deposition subpoena for production of documents is DENIED as untimely.

Defendants’ request for sanctions is DENIED.

DISCUSSION:

Plaintiff moves to compel compliance by nonparty Bank Leumi with a deposition subpoena for production of records.

Plaintiff seeks to compel nonparty Bank Leumi to comply with a subpoena to produce documents. The Court agrees with Defendants that this motion is untimely.

None of the statutory bases Plaintiff cites for the motion in her introduction – CCP §§ 2020.010(a)(3), 2020.020, 2020.410(a), and 2025.280(b) – actually provide the statutory basis for a motion to compel documents pursuant to a deposition subpoena. When the deponent has objected to the subpoena, the basis for this type of motion to compel is CCP § 2025.480, which provides:

(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. . . .

(i) If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition. (j) 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 an answer or production, 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.

(CCP § 2025.480 (bold emphasis added).)

Where a deponent serves an objection to a deposition notice and does not appear, the “record of the deposition” is complete no later than the day set for the deposition, thereby triggering the 60-day time limitation as of that day:

By analogy, where a party serves a demand for documents on another party (see §§ 2031.010–2031.040), a motion to compel is subject to a filing deadline as long as a timely response to the demand is made. That deadline applies whether the responding party agrees to a partial production or objects to the demand in its entirety and produces nothing. (See §§ 2031.210–2031.260, 2031.300, 2031.310, subds. (a), (c).) Similarly, a party’s timely response to interrogatories or to requests for admissions—regardless of the number of objections—requires that a motion to compel be filed within a statutory time period. (See §§ 2030.210–2030.260, 2030.290, 2030.300, subds. (a), (c), 2033.210–2033.250, 2033.280, 2033.290, subds. (a), (c).) . . . In discovery between parties—document demands, interrogatories, and requests for admissions—the timely service of objections triggers a filing deadline for a motion to compel. . . .  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).) . . .

Unzipped points out that section 2025.480 appears in a chapter of the Act entitled “Oral Deposition Inside California” (see 21A West's Ann. Code Civ. Proc. (2007 ed.) pt. 4, tit. 4, ch. 9, p. 101), arguing that the 60-day period applies only to oral depositions. But, as the court stated in Monarch, rejecting the same argument: “The title does not make the law. … And despite the title, [the chapter] does contain provisions pertaining to depositions for production of business records … .” (Monarch, supra, 78 Cal.App.4th at pp. 1288–1289, citations omitted.) Further, as Shellfish recognized, “the Legislature included a [business records] subpoena within the general category of ‘oral depositions … .’ ” (Shellfish, supra, 56 Cal.App.4th at p. 21.) Our conclusion that section 2025.480 governs business records subpoenas is also supported by the language of the statute’s first subdivision, which refers not only to the deponent's “fail[ure] to answer any question” but also to the “fail[ure] to … produce any document … under the deponent's control.” (§ 2025.480, subd. (a).) Thus, oral and written depositions and document productions are all covered. In addition, subdivision (a) refers to documents sought by either a “deposition notice or a deposition subpoena,” so the statute applies to parties and nonparties. And, under subdivision (c), notice of the motion to compel may be given either “orally at the examination”—which would apply to a deposition at which the deponent testifies—or “by subsequent service in writing”—which would apply to a subpoena seeking only business records. (See Cal. Rules of Court, rule 3.1025 [discussing notice required for nonparty deponents].)  Nothing in subdivision (d) of section 2025.480 is to the contrary. That provision states that the relevant pages of the deposition transcript, if any, shall be lodged with the trial court before the hearing on the motion. Thus, where the motion to compel involves the failure to answer a question, the pertinent part of the transcript must be lodged. But where the motion involves the failure to produce documents in response to a business records subpoena, no part of any transcript will be relevant. Subdivision (d) ensures that the motion will be tailored to the type of deposition at issue. . . .

In sum, the objections served in response to Unzipped’s business records subpoenas constituted a record of a deposition. The record was complete as of the date set for the production, December 7, 2005, when Unzipped received the objections. Unzipped had 60 days thereafter, until February 6, 2006, to file a motion to compel. It waited until March 1, 2006, which rendered the motion untimely. The deadline was mandatory. (See Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1408–1410 [68 Cal. Rptr. 2d 708].)   The order granting the motion must therefore be reversed. 

(Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 131-136 (bold emphasis added).)

Here, the subpoena at issue was served on June 19, 2019, with the deposition noticed for July 10, 2019. (Declaration of Baruch C. Cohen, Exh. 6.) Defendants served their objections via mail and email on July 2, 2019.[1] (Id., Exh. 7.) Thus, the 60-day period began to run no later than July 10, 2019 and expired no later than September 9, 2019.[2] This motion was filed and served on October 18, 2019 – past the deadline for Plaintiff to bring a motion to compel this deposition.

Although CCP § 2025.450 – another provision that Plaintiff does not cite – also provides a basis for certain motions to compel and does not have a 60-day limit, that section only applies if no valid objection under CCP § 2025.410 has been served. Here, Defendants did serve objections, and thus, the 60-day time limit applies.

Accordingly, the motion to compel is DENIED as untimely.

In their opposition, Defendants seek sanctions against Plaintiff for unsuccessfully making this motion. Under CCP § 2025.480, the Court “shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes . . . a motion to compel an answer or production, 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.” (CCP § 2025.480(j).) Here, although Plaintiff did not act with substantial justification, other circumstances make the imposition of the sanction unjust. Due process requires that a request for monetary sanction expressly “identity each person, party, and attorney against whom the sanction is sought.” (CCP § 2023.040.) Defendants did not do so here and did not even mention the request for sanctions in their notice of opposition. Other than mentioning the amount of sanctions requested in the caption of the opposition, Defendants buried the request for sanctions against “Plaintiff and Plaintiff’s counsel” – again, without specifically naming Plaintiff’s counsel – on page seven of their ten-page opposition. This does not satisfy due process.

In addition, it is well established that a trial court has the discretion to deny a request for attorney’s fees altogether, even though it may be required by law, whenever the request for attorney’s fees is grossly excessive and/or shocks the conscience of the court

“A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.” (Serrano v. Unruh (1982) 32 Cal.3d 621, 635 [186 Cal. Rptr. 754, 652 P.2d 985]; accord, Ketchum v. Moses (2001) 24 Cal.4th 1122, 1137 [104 Cal. Rptr. 2d 377, 17 P.3d 735].)  

(Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 990-991 (bold emphasis added).)

Here, a request for $4,500 in sanctions to oppose an untimely motion -- $1,500 of which is intended to account for time responding to a reply that was never filed and attending the hearing – is excessive enough to deny the award on that additional basis.

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated: December 17, 2019 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org


[1] This was at least three calendar days before the date for which the deposition was scheduled, in accordance with CCP § 2025.410(a).

[2] Sixty days from July 10 is Sunday, September 8, extended to the next Monday pursuant to CCP § 2016.060.

Case Number: BC691484    Hearing Date: December 05, 2019    Dept: 47

Dorothy Diller v. Barry Weiss, et al.

 

(1) MOTION TO COMPEL PLAINTIFF DOROTHY DILLER TO RESPOND TO DISCOVERY AND REQUEST FOR MONETARY SANCTIONS; (2) MOTION TO COMPEL PLAINTIFF DOROTHY DILLER TO RESPOND TO DISCOVERY AND REQUEST FOR MONETARY SANCTIONS

MOVING PARTY: (1) Defendant Kevin Lawrence; (2) Defendant Foster & Lawrence Accountancy

RESPONDING PARTY(S): (1)-(2) Plaintiff Dorothy Diller

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that Defendants have breached the fiduciary duties owed by partners to a partnership agreement.

Defendants Kevin Lawrence and Foster & Lawrence Accountancy separately move to compel multiple sets of discovery and to deem RFAs admitted (as part of the same motion).

TENTATIVE RULING:

Defendant Kevin Lawrence’s motion to compel form interrogatories (set one) is DENIED AS MOOT.

Defendant Kevin Lawrence’s request for sanctions is DENIED.

Defendant Foster & Lawrence Accountancy’s motion to deem requests for admission (set one) admitted is DENIED.

Defendant Foster & Lawrence Accountancy’s request for sanctions is DENIED.

DISCUSSION:

Multiple Motions Improperly Combined

Defendant Kevin Lawrence’s reservation (ID 414755589797) is for exactly one motion: a “motion to compel discovery (not further discovery).” Defendant Foster & Lawrence Accountancy’s reservation (ID 491482741460) is for exactly one motion: a “motion to deem RFAs admitted.”

Contrary to these reservations, Defendants have combined five motions into reservations for two motions. Defendant Kevin Lawrence has combined three motions into one – a motion to compel responses to form interrogatories (set one), a motion to compel responses to special interrogatories (set one), and a motion to compel responses to requests for admission (set one). Defendant Foster & Lawrence Accountancy has combined two motions in one – a motion to compel responses to form interrogatories (set one) and a motion to compel responses to requests for admission (set one) (presumably intended to be a motion to deem RFAs admitted, since that is what was reserved).

Five separate hearing dates should have been reserved for these three motions to compel and two motions to deem RFAs admitted. In the future, both moving parties are ordered to obtain separate hearing reservations and pay separate filing fees. Combining multiple motions under the guise of one motion with one hearing reservation manipulates the Court Reservation System and unfairly jumps ahead of other litigants. Moreover, combining motions to avoid payment of separate filing fees deprives the Court of filing fees it is otherwise entitled to collect.

The Court will proceed to consider only one of Defendant Kevin Lawrence’s motions—the motion to compel responses to form interrogatories (set one) – and only one of Defendant Foster & Lewis Accountancy’s motions – the motion to compel responses to form interrogatories (set one).

The motions to “compel a response” to the RFAs by both moving parties are taken off calendar, for the reasons stated above.[1]

Defendant Kevin Lawrence’s Motion To Compel Form Interrogatories (Set One)

When a party to whom interrogatories are directed fails to respond, a party propounding the interrogatories may move for an order compelling a response. (CCP § 2030.290(b).) A party who fails to provide a timely response waives any objection, including one based on privilege or work product. (CCP § 2030.290(a).) For a motion to compel initial responses, no meet and confer is required. All that must be shown is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response has been served. (Leach v. Sup. Ct. (1980) 111 Cal.App.3d 902, 905-06.)

Here, Defendant served the form interrogatories (set one) by personal service and electronically on March 8, 2019, making the responses due initially on or about April 7, 2019. (Declaration of Jeremy B. Freedman ¶ 7 & Exhs. 1, 5.) Defendant provided an extension through April 19, 2019 and later through September 6, 2019. (Id. ¶¶ 9, 15 & Exhs. 6, 8.) As of the date of the filing of this motion, Defendant had not received any responses to the form interrogatories (set one) from Plaintiff. (Id ¶ 16.)

However, in her opposition, Plaintiff states that she provided full and complete responses on or about November 20, 2019, and Defendant does not argue in reply that the responses were incomplete or deficient. Therefore, this motion to compel is now moot – in other words, there is no need for a court order to compel Plaintiff to serve a response, since she has now done so prior to the hearing date.[2]

Despite its mootness, the motion still can remain on calendar for purposes of any proper requests for sanctions.

Defendant’s request for sanctions is DENIED. In light of the impropriety of Defendant’s three-in-one motion and the corresponding request for sanctions for three separate motions in one, the Court finds that sanctions are not justified and awarding any sanctions would be “unjust” under the totality of the circumstances. See, CCP §2030.290 (c).

Defendant Foster & Lawrence Accountancy’s “Motion To Compel Form Interrogatories (Set One)

Suffice it to state, the same facts and analysis remains in this motion, as in the co-defendant’s motion. Accordingly, it is DENIED AS MOOT.

The request for monetary sanctions is also DENIED for the same reasons.

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated: December 5, 2019 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org

[1] Additionally: News Flash! There is no such thing as a “motion to compel responses” to RFAs; there is a motion to deem RFAs to be admitted. See, CCP § 2033.280(b) and compare with, e.g., CCP § 2033.290 [motion to compel further responses.] Also, there is not a “motion to compel responses to discovery;” there are motions to compel responses to certain specific types of discovery, to wit, interrogatories, request for production of documents, etc., which should be clearly stated in the caption.

[2] Whether these responses are “code-compliant” or not would be the subject of a motion to compel further responses, as opposed to a motion to compel initial responses. Counsel should note the 45-day jurisdictional time limit for the former. (CCP § 2030.300 (c).)