On 02/14/2017 SOFIA VERGARA filed an Other lawsuit against NICHOLAS LOEB. 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.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
ART REPRODUCTIVE CENTER INC
DOES 1 TO 20
SILBERBERG FRED ESQ.
PHILIPS PAUL N.
MCGRATH JENNIFER J.
10/26/2017: REQUEST FOR ENTRY OF DEFAULT
12/17/2018: Certificate of Mailing for
4/26/2019: Proof of Service by Mail
4/14/2017: REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANT NICHOLAS LOEB'S MOTION TO STRIKE PURSUANT TO CIV. PROC. CODE SECTION 425.16
4/14/2017: *REDACTED* NOTICE OF MOTION AND MOTION OF DEFENDANT NICHOLAS LOEB TO STRIKE COMPLAINT PURSUANT TO CIV. PROC. CODE 425.16
7/11/2017: PROOF OF SERVICE: 1. PLAINTIFF SOFIA VERGARA'S REPLY IN SUPPORT OF HER MOTION TO ALLOW USE OF DISCOVERY AND TRANSCRIPTS FROM LOS ANGELES SUPERIOR COURT PROCEEDING NO. SS 024581 IN THE OPPOSITIONS TO D
7/21/2017: RULING RE SUBMITFED MATTER (PLAINTIFF'S MOTION TO USE DISCOVERY FROM LASC CASE SS024581)
7/21/2017: Minute Order
8/3/2017: Minute Order
8/21/2017: DECLARATION OF FRED SILBERBERG IN SUPPORT OF PLAINTIFF VERGARA'S EX PARTE APPLICATION FOR THE COURT TO ENTER A PROTECTIVE ORDER
8/28/2017: PLAINTIFF'S NOTICE OF ASSOCIATION OF COUNSEL
9/15/2017: DEFENDANT NICHOLAS LOEB'S REPLY TO PLAINTIFF'S OPPOSITION TO THE DEMURRER TO PLAINTIFF'S COMPLAINT
9/20/2017: PLAINTIFF'S RESPONSE TO DEFENDANT'S OBJECTIONS TO PLAINTIFF'S EVIDENCE OFFERED IN OPPOSITION TO MOTION TO STRIKE COMPLAINT PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE 425.16
9/22/2017: PROOF OF SERVICE: CASE MANAGEMENT STATEMENT
10/6/2017: NOTICE OF INTENT NOT TO AMEND COMPLAINT AFTER RULING ON DEMURRER.
10/27/2017: PROOF OF SERVICE: 1. REQUEST FOR ENTRY OF DEFAULT 2. PROOFS OF SERVICE
11/13/2017: NOTICE OF FILING OF NOTICE OF APPEAL U(UNLIMITED JURISDICTION)
Hearingat 08:30 AM in Department 73 at 111 North Hill Street, Los Angeles, CA 90012; Jury TrialRead MoreRead Less
Hearingat 08:30 AM in Department 73 at 111 North Hill Street, Los Angeles, CA 90012; Final Status ConferenceRead MoreRead Less
Hearingat 08:30 AM in Department 73 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Attorney FeesRead MoreRead Less
Hearingat 08:30 AM in Department 73 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to be Admitted Pro Hac ViceRead MoreRead Less
Hearingat 15:45 PM in Department 73 at 111 North Hill Street, Los Angeles, CA 90012; Informal Discovery Conference (IDC)Read MoreRead Less
DocketMotion to Be Admitted Pro Hac Vice; Filed by Nicholas Loeb (Defendant)Read MoreRead Less
DocketNotice of Lien; Filed by Nicholas Loeb (Defendant)Read MoreRead Less
Docketat 08:30 AM in Department 73; Status Conference - HeldRead MoreRead Less
Docketat 08:30 AM in Department 73; Hearing on Motion for Attorney Fees ((Res ID5757)) - Held - ContinuedRead MoreRead Less
DocketCase Management Order; Filed by ClerkRead MoreRead Less
DocketPROOF OF SERVICE: 1. DEMAND FOR JURY TRIAL; ETC.Read MoreRead Less
DocketDemand for Jury Trial; Filed by Sofia Vergara (Plaintiff)Read MoreRead Less
DocketCIVIL DEPOSITRead MoreRead Less
DocketDEMAND FOR JURY TRIALRead MoreRead Less
DocketReceipt; Filed by Sofia Vergara (Plaintiff)Read MoreRead Less
DocketNotice; Filed by Sofia Vergara (Plaintiff)Read MoreRead Less
DocketNOTICE OF POSTING JURY FEES.Read MoreRead Less
DocketComplaint; Filed by Sofia Vergara (Plaintiff)Read MoreRead Less
DocketSUMMONSRead MoreRead Less
DocketCOMPLAINT FOR DECLARATORY RELIEF [CCP 1060]; PERMANENT INJUNCTIVE RELIEF [CCP 526(A)1; BREACH OF CONTRACT; PROMISSORY FRAUD; PROMISSORY ESTOPPEL; AND MALICIOUS PROSECUTION.Read MoreRead Less
Case Number: BC650580 Hearing Date: March 12, 2020 Dept: 73
Rafael Ongkeko, Judge presiding
SOFIA VERGARA v. NICHOLAS LOEB, et al. (BC650580)
Counsel for plaintiff/opposing party: Fred Silberberg (Fred Silberberg P.C.); Susan Allison; Lauren Babst (JMBM LLP)
Counsel for defendant/moving party Nicholas Loeb: Michael Caspino; Michael Weiler (Buchalter APC); Jalesia McQueen (McQueen Kuenzel LLC)
Counsel for defendant/opposing party ART Reproductive Center, Inc.: Paul Philips (Philips, APLC)
DEFENDANT’S MOTION TO BE RELIEVED OF WAIVER OF OBJECTIONS UNDER CCP § 2031.300 (filed 2/7/20)
Defendant’s motion to be relieved of waiver of discovery objections is DENIED.
Plaintiff’s request for $8,092 in monetary sanctions pursuant to Code of Civil Procedure section 2031.300 is DENIED.
Plaintiff’s request for monetary sanctions pursuant to Code of Civil Procedure section 1008 is DENIED.
On February 7, 2020, Defendant filed this motion seeking relief from waiver of his objections to set 2 of Plaintiff’s Demand for Production of Documents (RFP2 for convenience) pursuant to CCP § 2031.300. Defendant argues that he has already served responses that are in substantial compliance with the Discovery Act and his failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect because Defendant had switched his counsel and the . Finally, Defendant also argues that relief from waiver is important because he seeks to object based on attorney-client privilege relating to money spent on Defendant’s alleged other children.
If a party to whom requests for production of documents are directed fails to serve a timely response, the party waives any objection to the interrogatories or requests for production of documents, including one based on privilege or on the protection for work product. (CCP § 2031.300.) However, a party may be relieved of that waiver if “(1) [t]he party has subsequently served a response that is in substantial compliance with [the Discovery Act]” and “(2) [t]he party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.” (Id., subd. (a).)
The Civil Discovery Act does not include a definition of “substantial compliance,” and few cases have addressed the circumstances under which a response will be deemed not in substantial compliance. (See St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 778.) Substantial compliance means actual compliance with respect to the substance essential to every reasonable objective of the statute. (Id. at 790.) However, substantial compliance should not be understood as requiring actual compliance with every specific statutory requirement. (Ibid.)
A court may not find that only some portions of a document containing responses are code-compliant, but must instead determine whether the document as whole substantially complies. (Ibid. [this position is supported by the fact that there is an effective statutory vehicle to compel a responding party to cure unsatisfactory responses].)
The statutory language “mistake, inadvertence, or excusable neglect” in the discovery statute should be interpreted using the same general principles developed in application of the identical language in section 473, subdivision (b). (Scottsdale Ins. Co. v. Superior Court (1997) 59 Cal.App.4th 263, 275.) Although the party moving for relief under section 473 has the burden to show that the mistake, inadvertence, or neglect was excusable, any doubts as to that showing must be resolved in favor of the moving party. (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1420.)
On May 10, 2019, Plaintiff mail-served RFP2 on Defendant’s previous counsel.
No responses were served before the due date of 6/14/19. After the court ruled on a discovery motion heard on 1/22/20, on 2/7/20, Defendant served supplemental responses to RFP 2. (Weiler Decl. Ex. 9.) A more detailed chronology is set forth below.
The parties dispute whether Defendant satisfies the two conditions for waiver: “(1) [t]he party has subsequently served a response that is in substantial compliance with [the Discovery Act]” and “(2) [t]he party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.” (Code Civ. Proc., § 2031.300, subd. (a).)
The parties dispute whether Defendant’s responses substantially comply with the Discovery Act.
Defendant claims that his responses to RFP2 are in “substantial compliance.” (Motion 3:13, 7:10, 9:26.) In opposition, Plaintiff argues that Defendant’s responses are not in substantial compliance because his responses “still contain numerous meritless and boilerplate objections.” (Opposition 7:19-20.) In reply, Defendant argues that his responses are “substantial compliance” because Defendant has given everything he could produce. (Reply 2:13-17.)
The court examines Defendant’s responses to RFP2. (Weiler Decl. Ex. 9.) RFP 2 makes 23 demands. First and most importantly, Defendant’s responses are replete with boilerplate objections (e.g., “overly broad, unduly burdensome, irrelevant”) without explanation why they apply here. Additionally, to the extent Defendant seeks to assert valid (assuming not waived) objections based on attorney-client privilege, Defendant fails to include the requisite privilege log. (See Code Civ. Proc., § 2031.240, subd. (c)(1).) Facially deficient responses likely lead to a motion to compel further responses to the extent Defendant does not supplement his responses.
Defendant appears to produce or intends to produce additional documents including “credit card statements, bank statements, and utility statements.” (Weiler Decl. Ex. 9.) However, it is unclear whether Defendant actually produced documents in connection with his responses. Defendant does not refer to their volume (e.g., Bates stamp numbers) or otherwise state whether responses attached responsive documents. (See Weiler Decl. ¶¶ 20, 30.) The evidence regarding production is lacking.
Finally, Defendant’s reply fails to respond adequately to Plaintiff’s opposition arguing that his responses were not in substantial compliance. Defendant merely says he has given “everything he can produce…” and has complied by providing “responses within 15 days of the Hearing…” (Reply 2:13-17)
Defendant has the burden to satisfy the first condition for waiver of his objections. (Code Civ. Proc., § 2031.300, subd. (a).) Defendant fails to meet his burden.
The court denies Defendant’s motion for failing to satisfy the first required condition for waiver of his objections.
Because the court denies Defendant’s motion for failing to satisfy the first required condition for waiver of his objections, the court does not need to address the second condition. Nevertheless, the court addresses the second condition.
In order to determine whether Defendant’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect entitled to relief from waiver, it is important to identify the timeline of the discovery request and response.
On 5/10/19, Plaintiff mail-served RFP2 on Defendant’s previous counsel.
On 6/6/19, Defendant’s current counsel substituted in for his previous counsel.
On 6/14/19, responses were due.
On 6/25/19, the parties’ counsel telephonically spoke about Plaintiff’s Request for Production, Set One and Set 2. (See Babst Decl. 10/04/2019 Ex. 19.) In that conversation, Plaintiff’s counsel informed Defendant’s counsel that his responses to Set 2 were overdue. “You will respond to same Tuesday, July 2. Any objections on this demand have been waived.” (Id.)
Defendant’s counsel claims that he was unaware of RFP2 until that phone call. (Weiler Decl. ¶¶ 9, 21.) On 6/25/19 Plaintiff’s counsel emailed Defendant’s counsel an electronic courtesy copy of RFP2. (Weiler Decl. Ex. 3.)
On 7/10/19, Defendant served responses to RFP2. (Weiler Decl. Ex. 4.)
On 8/13/19 Plaintiff’s counsel wrote a lengthy meet and confer letter addressing, among other things, RFP2, repeating that “all objections, including those based on privilege, were waived when Loeb failed to respond within the given statutory period.” (Babst decl., 10/4/19, Ex. 22)
On 8/14/19, the court (Judge Christopher Lui) conducted an informal discovery conference. The parties dispute whether the court ordered or the parties otherwise agreed that Defendant could maintain his objections in response to RFP2.
On 1/22/20 this court ordered Defendant to provide verified, code-compliant further responses to RFP 2 without objections. (Weiler Decl. Ex. 8.)
On 2/7/20, Defendant served supplemental responses to RFP2. (Weiler Decl. Ex. 9.)
Defendant maintains that change in counsel eight days before the responses were due and RFP2’s not even within counsel’s knowledge or possession caused the blown deadline. Defendant’s current counsel might have been ignorant of RFP2, but previous counsel could not have been and there is no evidence of that. Defendant’s counsel fails to state in his declaration the actions he took to assess any discovery obligations and deadlines or any events that support a justification for not knowing about RFP2. The court does not find Defendant’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect from the mere timing of counsel’s substitution into the case.
Nevertheless, even if Defendant’s failure to serve a timely response by the original 6/14/19 deadline was the result of mistake, inadvertence, or excusable neglect, the court finds that Defendant should be estopped from making this argument because Defendant inexcusably delayed in filing this motion seeking relief until approximately seven months later. The record reflects that current defense counsel was aware of RFP2 and Plaintiff’s insistence on waiver, at least as early as 6/25/19. More importantly, Plaintiff’s counsel specifically stated a deadline for the response, which Defendant missed by eight days without apparent excuse. Defendant was aware of the need to move for relief from waiver as early as 6/25/19. The record reflects that Plaintiff again reminded Defendant of his inappropriate objections on later dates, including for example on July 18, 2019 and August 13, 2019. (Babst Decl. 10/04/2019 Ex. 21, 22.) To conclude that Plaintiff relinquished such position the next day at the IDC is not reasonable without solid evidence.
Defendant made an active choice not to move for relief from waiver until he received an unfavorable ruling on 1/22/20. Defendant is unable to justify as excusable his long delay in filing this motion. Additionally, there is nothing in the record supporting Defendant’s claim that Plaintiff or the court agreed to allow Defendant to include objections in his response to RFP 2. After all, the discovery conference with Judge Lui was informal. Defendant’s counsel’s self-serving declaration unsupported by any records is insufficient and is disputed by Plaintiff in any event. (Compare Weiler Decl. ¶13 and Babst Decl. ¶2)
Defendant’s additional arguments in reply are also insufficient. Defendant’s insistence that he would not have served supplemental responses with objections if they were not permitted is self-serving and not helpful as solid evidence. (Reply 2:2-3.) Plaintiff’s willingness to discuss Defendant’s meritless objections does not otherwise demonstrate that Plaintiff agreed to waive its long-expressed claim of waiver. (Id. 2:7-12.)
The court rejects Defendant’s argument that the court should grant relief from waiver because of the importance of the objections. (See motion 9:3-16.) Defendant fails to satisfy the conditions required by the Discovery Act for relief from waiver. The court finds no reason to consider this policy argument, especially considering Defendant fails to cite any supporting authority why the court should do so here.
The court rejects Defendant’s argument that the court should grant relief from waiver because the documents sought are irrelevant. (See motion 9:17-23.) Defendant fails to satisfy the conditions required by the Discovery Act for relief from waiver. The Discovery Act does not otherwise allow for relief from waiver of objections because the documents are “irrelevant.”
Plaintiff requests $8,092 in monetary sanctions for two separate reasons.
First, Plaintiff requests monetary sanctions because Defendant has willfully refused to comply with the court’s 1/22/20 order ordering Defendant to provide responses to RFP2 without objections. As a preliminary matter, the court rejects Plaintiff’s reliance on Code of Civil Procedure section 2031.300. (Opposition 10:6-12.) This is a motion for relief from waiver, not a motion (or opposition to a motion) to compel a response to demand for inspection. (Code Civ. Proc., § 2031.300, subd. (c).) The court does have authority to impose a monetary sanction based on Defendant’s failure to obey a court order. (Id., §§2023.010, subd. (g), 2023.030, subd. (a).) However, the court finds the imposition of monetary sanctions is inappropriate because Defendant acted with substantial justification and/or the imposition of a sanction is unjust. The court’s order did not preclude this motion. The court finds that Defendant is exercising his right to make this motion and not disobey a court order.
Second, Plaintiff requests unspecified monetary sanctions because the court should treat Defendant’s unsuccessful motion as an unsuccessful motion for reconsideration pursuant to Code of Civil Procedure section 1008. This is not a reconsideration motion and the court declines to adopt Plaintiff’s liberal interpretation of the controlling authority that Defendant here seeks to reconsider the January 22, 2020 order, which denied Defendant’s oral request for relief from waiver of objections primarily because Defendant did not file a noticed motion. (Weiler Decl. Ex. 8.) The court does not otherwise find Defendant’s conduct merits sanctions under Code of Civil Procedure section 128.7. (CCP § 1008, subd. (d).)
Unless waived, notice of ruling by Plaintiff.
 The court notes that Plaintiff did not file the exhibits as part of this motion “for the sake of brevity.” (Opposition 3-4 fn. 1.) Nevertheless, Defendant fails to object on this basis and the court can take judicial notice of documents already filed with the court.
 Although Plaintiff does not specify the amount of monetary sanctions, Plaintiff’s opposition appears to argue this justification as an alternative basis to award Plaintiff’s earlier request for $8,092 in monetary sanctions. (See opposition 11:3-5, 12:6-8.)