JUNLONG CAO, ET AL. VS SCOTT WARMUTH, ET AL.

Tentative Rulings

Case Number: *******1051 Hearing Date: March 15, 2023 Dept: L

1. Defendant Scott A. Warmuth’s Motion to Compel Plaintiff Junlong Cao to Further

Respond to the Request for Production of Documents, Set One is DENIED. Sanctions are awarded against Warmuth and in favor of Plaintiff Cao in the reduced amount of $700.00 and are payable within 30 days of the date of the hearing.

2. Defendant Scott A. Warmuth’s Motion to Compel Plaintiff Junlong Cao to Further

Respond to the Form Interrogatories, Set One is GRANTED in part (i.e., as to 2.11, 6.4-6.7, 8.2 and 12.4-12.6) and DENIED in part (i.e., as to No. 4.1). Cao is to provide further responses, without objections, to Nos. 2.11, 6.4-6.7, 8.2 and 12.4-12.6 within 20 days from the date of the hearing.

3. Defendant Scott A. Warmuth’s Motion to Compel Plaintiff Junlong Cao to Further

Respond to the Special Interrogatories, Set One is DENIED. Sanctions are awarded against Warmuth and in favor of Plaintiff Cao in the reduced amount of $700.00 and are payable within 30 days of the date of the hearing.

4. Defendants Scott A. Warmuth’s and Law Offices of Scott Warmuth, APC’s Motion to

Compel the Deposition of Plaintiff Junlong Cao is GRANTED. Sanctions are awarded in the reduced amount of $760.00 and are payable within 30 days of the date of the hearing.

Background

Plaintiffs Junlong Cao and Honyan Zhang (“Plaintiffs”) allege as follows: On November 28, 2018, Plaintiffs retained Defendants Scott Warmuth, Esq. and Law Offices of Scott Warmuth, APC (together, “Defendants”) to represent them and make claims for damages on their behalf in relation to a November 22, 2018 commercial tractor-trailer collision that occurred in Louisiana. Defendants failed to file a lawsuit on Plaintiffs’ behalf. The statute of limitations has now run.

On December 15, 2021, Plaintiffs filed a complaint, asserting a cause of action against Defendants and Does 1-20 for:

1. Legal Malpractice

A Final Status Conference is set for November 21, 2023. Trial is set for December 5, 2023.

1. Motion to Compel Furthers Re: Request for Production

Legal Standard

“[T]he demanding party may move for an order compelling further response to the demand if the demanding party deems that. . . (1) A statement of compliance with the demand is incomplete. (2) A representation of inability to comply is inadequate, incomplete, or evasive [and/or] (3) An objection in the response is without merit or too general.” (Code Civ. Proc., 2031.310, subd. (a).)

The moving party must demonstrate a “reasonable and good faith attempt” at an informal resolution of each issue presented. (Code Civ. Proc., 2016.040, 2031.310, subd. (b)(2).) “In lieu of a separate statement required under the California Rules of Court, 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).)

A motion to compel further responses to a demand for inspection or production of documents must set forth specific facts showing “good cause” justifying the discovery sought by the demand. (Code Civ. Proc., 2031.310, subd. (b)(1).) If the moving party has shown good cause for the production of documents, the burden is on the objecting party to justify the objections. (Kirkland v. Superior Court (2002) 95 Cal.App.4^th 92, 98.)

Notice of the motion must be provided “within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing . . .” (Code Civ. Proc., 2030.310, subd. (c).)

“[T]he court shall impose a monetary sanction. . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further 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).)

Discussion

Defendants move the court for an order compelling Plaintiff Junlong Cao (“Cao”) to provide further responses to their Request for Production of Documents, Set One (i.e., Nos. 1-8). Defendants also seek sanctions against Cao in the amount of $1,960.00.

At the outset, the court notes that the discovery in issue was propounded by Defendant Scott Warmuth, Esq. (“Warmuth”) only.

Defendants’ counsel Christian R. Castro (“Castro”) represents as follows: On July 13, 2022, the subject discovery was propounded. (Castro Decl., 2, Exh. A.) After several requests for extensions to respond, Cao served his responses thereto on September 16, 2022. (Id., 3, Exh. B.) On September 21, 2022, Castro sent a meet and confer letter to Cao’s counsel, Drew Evans (“Evans”), wherein he requested that further responses be provided by September 27, 2022. (Id., 4, Exh. C.) Castro’s letter and subsequent emails went unanswered. (Id., 4.)

Cao, in turn, argues that, although objections were asserted as to the form of the requests, substantive responses were, in fact, provided. Cao asserted the following substantive response to Nos. 1-6 and 8: “All responsive documents are contained within Plaintiff’s client file regarding the underlying collision, to which Defendant has equal access.” Evans attests that the client file was “provided to Plaintiff in Defendants’ discovery responses a couple months prior.” (Evans Decl., 5.) These responses, then, are sufficient and the motion is denied in this regard.

Warmuth’s separate statement misquotes Cao’s substantive response to No. 7, which is as follows[1]: “After conducting a diligent search, Plaintiff cannot locate any non-privileged responsive documents in in [sic] his possession, custody or control.” Warmuth fails to explain how this response is deficient. The motion is denied in this regard.

Sanctions

Warmuth’s request for sanctions is denied, based on the above ruling. Plaintiff seeks sanctions of $1,750.00 for having to oppose the motion [calculated as follows: 3 hours reviewing motion and preparing opposition, plus 0.5 hours reviewing reply brief and attending hearing at $500.00/hour]

Utilizing a Lodestar approach, and in view of the totality of the circumstances, the court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motion is $700.00 (i.e., 2 hours at $350.00/hour). Sanctions are payable within 30 days of the date of the hearing.

2. Motion to Compel Furthers Re: Form Interrogatories

Legal Standard

“[T]he propounding party may move for an order compelling a further response if the propounding party deems that . . . (1) An answer to a particular interrogatory is evasive or incomplete[,] (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate[, and/or] (3) An objection to an interrogatory is without merit or too general.” (Code Civ. Proc., 2030.300, subd. (a).)

The moving party must demonstrate a “reasonable and good faith attempt” at an informal resolution of each issue presented. (Code Civ. Proc., 2016.040, 2030.300, subd. (b)(1).) “In lieu of a separate statement required under the California Rules of Court, 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).)

Notice of the motion must be provided “within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing. . .” (Code Civ. Proc., 2030.300, subd. (c).) The responding party has the burden of justifying the objections to the requests. (Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221.)

“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 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.” (Code Civ. Proc., 2030.300, subd. (d).)

Discussion

Defendants move the court for an order compelling Cao to provide further responses to their Form Interrogatories, Set One (i.e., Nos. 2.11, 4.1, 6.4-6.7, 8.2 and 12.4-12.6).

Again, the court notes that the discovery in issue was propounded by Warmuth only.

See synopsis of Motion #1. The court notes that, while Castro represents that his September 21, 2022 meet and confer letter is attached to his declaration as Exhibit C, there appears to be no Exhibit C. With that said, Cao does not appear to dispute that a meet and confer letter was sent.

Again, the interrogatories in issue are Nos. 2.11, 4.1, 6.4-6.7, 8.2 and 12.4-12.6. A further response to No. 2.11 is warranted, inasmuch as Cao failed to respond to subparts (a) and (b). No further response, however, is needed as to No. 4.1; since Cao substantively answered “unknown,” it logically follows that no response to any of the subsequent subparts could be made.

Further responses to Nos. 6.4-6.7 are warranted, inasmuch as Cao failed to respond to any of the respective interrogatories’ subparts and as they do not call for a Code of Civil Procedure 2030.230 “compilation, abstract, audit, or summary.” Further responses are warranted as to Nos. 8.2 and 12.4-12.6, inasmuch as Cao failed to respond to any of the respective interrogatories’ subparts.

Warmuth’s motion, then, is granted in part (i.e., as to 2.11, 6.4-6.7, 8.2 and 12.4-12.6) and denied in part (i.e., as to No. 4.1). Cao is to provide further responses, without objections, to Nos. 2.11, 6.4-6.7, 8.2 and 12.4-12.6 within 20 days from the date of the hearing.

3. Motion to Compel Furthers Re: Special Interrogatories

Legal Standard

See Motion #2.

Discussion

Defendants move the court for an order compelling Cao to provide further responses to their Special Interrogatories, Set One (i.e., Nos. 2, 5, 8, 12, 16 and 19-34). Defendants also seek sanctions against Cao in the amount of $2,860.00.

The court notes that the discovery in issue was propounded by Warmuth only.

See synopsis of Motion #1.

Again, the interrogatories in issue are Nos. 2, 5, 8, 12, 16 and 19-34. Cao argues that, although objections were asserted as to the form of the requests, Cao asserted the following substantive response to Nos. 2, 5, 8 and 12: “All responsive documents are contained within Plaintiff’s client

file regarding the underlying collision, to which Defendant has equal access.” These responses, then, are sufficient and the motion is denied in this regard.

Warmuth’s separate statement misquotes Cao’s substantive response to No. 16[2], which is as follows: “The other driver and his employer in the underlying collision were 100% liable for causing the collision and Plaintiff’s injuries. Plaintiff suffered significant physical injuries and emotional distress as a result.” Warmuth provides the court with no argument as to why the foregoing response is deficient, and instead references Code of Civil Procedure 2030.230, which is not set forth anywhere in Cao’s response. No further response, then, is warranted on this basis.

Warmuth’s separate statement also misquotes Cao’s substantive response to Nos. 19-26[3], which is as follows: “After conducting a diligent search, Plaintiff cannot locate any non-privileged responsive documents in in [sic] his possession, custody or control.” Warmuth, then, fails to explain how this response is deficient; as such, the motion is denied in this regard.

Finally, Cao’s objection-only responses to Nos. 27-34 are appropriate, inasmuch as these interrogatories seek information regarding “an underlying accident involving P.F. Chang’s Bistro,” whereas the case in issue involved a truck accident.

Warmuth’s motion, then, is denied.

Sanctions

Warmuth’s request for sanctions is denied, based on the above ruling. Plaintiff seeks sanctions of $1,750.00 for having to oppose the motion [calculated as follows: 3 hours reviewing motion and preparing opposition, plus 0.5 hours reviewing reply brief and attending hearing at $500.00/hour]

Utilizing a Lodestar approach, and in view of the totality of the circumstances, the court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motion is $700.00 (i.e., 2 hours at $350.00/hour). Sanctions are payable within 30 days of the date of the hearing.

4. Motion to Compel Deposition

Legal Standard

Code of Civil Procedure 2025.450, subdivision (a) provides that “[i]f, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection . . ., fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.”

A motion to compel deposition “shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance. (Code Civ. Proc., 2025.450, subd. (b)(2).)

The motion shall also “set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.” (Code Civ. Proc., 2025.450, subd. (b)(1).) “Good cause” for production of documents may be established where it is shown that the request is made in good faith and that the documents sought are relevant to the subject matter and material to the issues in the litigation. See Associated Brewers Distributing Co. v. Superior Court of Los Angeles County (1967) 65 Cal.2d 583, 588.

A court shall impose monetary sanctions if the motion to compel is granted, unless the one subject to sanction acted with substantial justification or other circumstances would make the imposition of the sanction unjust. (Code Civ. Proc., 2025.450, subd. (g)(1).)

Discussion

Defendants move the court for an order compelling Cao to appear for a deposition on March 16, 2023 and day-to-day thereafter, or another date as ordered by the court. Defendants also seek sanctions against Cao in the amount of $2,160.00.

Castro represents as follows: On November 4, 2022, Defendants served a “Notice of Taking Plaintiff Junlong Cao’s Deposition and Request for Production of Documents,” setting Cao’s deposition for December 1, 2022. (Castro Decl., 2, Exh. A.) On November 28, 2022, the deposition was cancelled by Evans’ assistant Sally Garcia (“Garcia”) on the basis that Evans was starting trial. (Id., 3, Exh. B.) Castro, in turn, agreed to take the deposition off calendar but advised Garcia that Evans needed to provide him with available dates in early January. (Id.) On December 5, 2023, Castro again advised Garcia that he needed available January dates from Evans. (Id.) No alternate dates were given to reschedule. ((Id., 3).

On January 20, 2023, Defendants served a “First Amended Notice of Taking Plaintiff Junlong Cao’s Deposition and Request for Production of Documents,” setting Cao’s deposition for February 1, 2023. (Id., 4, Exh. C.) On January 30, 2023, the deposition was cancelled by Evans’ assistant Maria Blanco (“Blanco”) due to a “scheduling conflict;” Defendants’ counsel Marshall Cole, in turn, asked Blanco what the scheduling conflict was and advised that Defendants would move to compel and seek sanctions unless counsel provided them with a new date for the deposition to be completed prior to February 15^th. (Id.) No dates were provided by Cao’s counsel, as of the motion filing date. (Id., 5.)

Evans, in turn, represents that on February 6, 2023, Castro emailed him and advised that he intended to move forward with filing the instant motion, inasmuch as no dates re: availability had been received. (Evans Decl., 7, Exh. 1.) That day, Evans advised that he did not have any availability prior to February 15, 2023, and that his office was “attempting to get potential dates” for the deposition. (Id., 9, Exh. 2.) Castro, in turn, requested that Evans provide a new date for Cao’s deposition by the end of the work day. (Id., 10, Exh. 3.) On February 15, 2023, Evans advised that Cao was available for deposition on March 16, 2023 (Id., 11, Exh. 4); by that time, however the instant motion had already been filed.

The motion is granted. The above record reflects that Defendants’ counsel made repeated unsuccessful efforts to procure an alternate deposition date for Cao prior to filing the instant motion. Cao is ordered to provide Defendants with three dates Cao is available for deposition within the next 30 days.

Sanctions

Again, Defendants seek sanctions against Cao in the amount of $2,160.00 [calculated as follows: 2 hours preparing motion, plus 1 hour reviewing opposition, plus 1 hour preparing reply, plus 1 hour attending hearing at $400.00/hour, plus $60.00 filing fee, plus $100.00 attorney service fees].

Utilizing a Lodestar approach, and in view of the totality of the circumstances, the court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motion is $760.00 (i.e., 2 hours at $350.00/hour, plus $60.00 filing fee). Sanctions are payable within 30 days of the date of the hearing.