Nov 30, 2022
A A A
TENTATIVE RULINGS
LAW & MOTION CALENDAR
COURTROOM 10
Monday, September 12, 2022, 1:30 p.m.
Hon. Christopher Honigsberg
600 Administration Drive, Santa Rosa, CA  95403
 
 
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ABEL V. MCCUTCHAN, SCV-263456

RULING:

 Plaintiff, Richard Abel (“Plaintiff”) alleges that he hired Edward McCutchan (“McCutchan”) with his firm Sunderland/McCutchan LLP (“SMP”), to represent him in SCV-245738, Liebling, et al. v. Goodrich, et al. (“the Prior Action”). Plaintiff has added several additional defendants through Doe Amendments, including but not limited to Jacinda Duval (“Duval”), Bill Hing (“Hing”), Verna Fung (“Fung”), Justin Poeng (“Poeng”), Nansi Ida Weil (“Weil”), Matthew Zdanek (“Zdanek”), Robert J. Sunderland (“Sunderland”), Dale Davis (“Davis”), Jim Nord (“Nord”)(Nord, Davis, Duval, Hing, Fung, Poeng, and Zdanek hereinafter referred to as “Represented Doe Defendants”), and Sunderland McCutchan, Inc. (“SMI”) (SMI, SMP, McCutchan and Sunderland jointly referred to as “Attorney Defendants”) (all defendants together referred to as “Defendants”). The Prior Action involved 97 plaintiffs and 28 defendants. Plaintiff alleges that Defendants negligently mishandled the litigation which resulted in Plaintiff’s award being diminished, allowed defendant Zuckerman to obtain bankruptcy protection shielding him from the judgment, miscalculated how much of the award Plaintiff was entitled to, failed to allocate any of the award for fees and costs to Plaintiff, and has refused to pay back to Plaintiff a credit which he owes Plaintiff. 

This matter is on calendar for the twelve motions by filed by Plaintiff and Defendants.

             I.     

Preliminary Matters

Any objections which are not mentioned particularity are OVERRULED. All unopposed requests for judicial notice are GRANTED.

It is obvious to the Court that prior to the Court’s May 27, 2022, order, the acrimonious history of the parties interfered with the efforts of all parties to meet and confer. It appears that the efforts of the parties are in parity. As such, further belaboring on this issue would only serve to revive these tensions. None of the motions on the instant calendar were filed after the Court’s May 27, 2022, order. It is the expectation that the parties have been and will continue to comply with the Court’s order that such meet and confer efforts are improved through joint efforts.

          II.     

Motions to Dismiss

Plaintiff filed the initial complaint on November 2, 2018, naming 100 Doe defendants (the “Complaint”). Plaintiff filed the First Amended Complaint (“FAC”) on November 16, 2020, adding causes of action for accounting and injunctive relief.  On December 9, 2021, Plaintiff filed 11 Doe amendments, including Jacinda Duval as Doe 7, Bill Hing as Doe 8, Verna Fung as Doe 9, Justin Poeng as Doe 11, Nansi Ida Weil as Doe 15, and Matthew Zdanek as Doe 16 (hereinafter collectively referred to as “Dismissing Defendants”). Jacinda Duval was served on February 18, 2022. Verna Fung, Matthew Zdanek and Bill Hing were served on February 24, 2022. Justin Poeng was served on March 14, 2022. Nansi Ida Weil was served on March 24, 2022. Dismissing Defendants have each filed motions to dismiss under Code of Civil Procedure (“CCP”) section 583.210.

A.   

Governing Law

Under CCP § 583.210, mandatory dismissal of an action is required in the event of failure to serve and return summons within 3 years after the commencement of the action. The exceptions are a stipulation in writing or another act that constitutes a general appearance in the action (CCP § 583.220); if service was for some reason impossible, impractical, or futile due to causes beyond the plaintiff's control (CCP § 583.240); and under general principles of waiver and estoppel (CCP § 583.140). If none of the exceptions apply, the trial court's denial of a motion to dismiss under the statute is in excess of the court's jurisdiction. Sanchez v. Superior Court (1988) 203 Cal.App.3d 1391, 1396-1397.

The mandatory 3–year period for service run from the “commencement of the action.” This means the time the complaint is filed. CCP § 583.210(a); see Bishop v. Silva (1991) 234 Cal.App.3d 1317, 1327.

An action is “commenced” when the original complaint is filed against the defendants named therein. Therefore, the 3–year period for service and filing proof of service runs from that date, rather than from the date of any later amended complaint (even if the amended complaint is the only one served). CCP § 411.10; Perati v. Atkinson (1964) 230 Cal.App.2d 251, 253–254. This includes “Doe” defendants. The above rule applies even where the defendant seeking dismissal was served as one of the “Doe” defendants named in the original complaint, which was later amended to show his true name. Because “Doe” was named in the original complaint, the 3–year period for service and filing proof of service of summons runs from the date it was filed. Lesko v. Sup.Ct. (Lopez) (1982) 127 Cal.App.3d 476, 484–485 [original complaint named only “Doe” defendants to stop running of statute of limitations].

The application of excuses based on impossibility, impracticability or futility are strictly construed Bishop v. Silva (1991) 234 Cal.App.3d 1317, 1327. While stays in other cases may serve to toll the period under CCP § 583.240, the stay must actually interfere with the ability of the plaintiff to serve the matter on the defendant to which the CCP § 583.210 period applies. Higgins v. Superior Court (2017) 15 Cal.App.5th 973, 982 (the bankruptcy stay as applied to one defendant did not serve to toll the period as applied to other unserved defendants); cf. Deas v. Knapp (1982) 129 Cal.App.3d 443, 451 (in suit for fraudulent conveyance against a judgment creditor, a stay pending appeal in the underlying action served to toll the predecessor to CCP § 583.210). Stays imposed in cases are not required to impede service as a legal matter in order to toll CCP § 583.210 if they impede service as a practical one. Steciw v. Petra Geosciences, Inc. (2020) 52 Cal.App.5th 806, 812 (a stay which served to suspend discovery that would have assisted plaintiff in identifying a defendant would toll CCP § 583.210 in a case.)

Where an amended or supplemental complaint joins new defendants (not simply substituting a real name for one of the “Does” named in the original complaint), the action is deemed “commenced” as to the new defendants from the date of filing of the amended or supplemental complaint. See Hennessey's Tavern, Inc. v. American Air Filter Co. (1988) 204 Cal.App.3d 1351, 1354 [it makes no difference that defendants first named in amended complaint were allegedly alter egos of defendant named in original complaint]; See also Barrington v. A. H. Robins Co. (1985) 39 Cal.3d 146, 154 (“Barrington”).

Emergency Rule 9 was instituted April 6, 2020, because of the COVID-19 pandemic, and the statutes of limitations and repose for civil causes of action that exceed 180 days were tolled from April 6, 2020, until October 1, 2020. Rule Emergency Rule 9 - Tolling statutes of limitations for civil causes of action, Cal. R. app. I Emergency Rule 9. However, this applies only to statutes of limitations, and only applies to initial pleadings to commence a civil cause of action or special proceeding. See Advisory Committee Comment to Emergency rule 9 [“Emergency rule 9 is intended to apply broadly to toll any statute of limitations on the filing of a pleading in court asserting a civil cause of action,” italics added]; Circulating Order at p. 1 [“emergency rule 9 ... tolled statutes of limitations on the commencement of civil causes of action,” italics added]; id. at p. 5 [discussing “the time for filing certain initial pleadings,” italics added]; id. at pp. 6, 9 [Emergency rule 9 “is intended to apply broadly to toll any statutory limitation on the filing in court of a pleading commencing a civil cause of action,” italics added]; id. at p. 6 [Emergency rule 9 is intended to relieve “difficulty timely filing initial pleadings in the trial court,” italics added]. Emergency rule 9 does not serve to toll other periods which run during the lifetime of a case. People v. Financial Casualty & Surety, Inc. (2021) 73 Cal.App.5th 33, 42. The time to bring a civil action to trial is extended from five years to five years and six months for cases impacted by the COVID-19 pandemic. Rule Emergency Rule 10 – Extensions of time in which to bring a civil action to trial, Cal. R. app. I Emergency Rule 10.

B.    

Analysis

Emergency Rule 9 did not serve to toll the period within this case, as that provision does not serve to toll any periods not associated with the initiation of a case. See People v. Financial Casualty & Surety, Inc. (2021) 73 Cal.App.5th 33, 42. This position is further supported by Emergency Rule 10, which explicitly extends the time to bring civil actions to trial under CCP § 583.310. Were similar extensions intended to be applied to CCP § 583.210, the emergency rules would indicate this intent. However, Plaintiff’s assertion that the closure of the Courts due to the COVID 19 pandemic should toll the period are availing. The Sonoma Superior Court suspended civil hearings between March 16, 2020, until resuming June 1, 2020. See Sonoma County Court order of the Presiding Judge issued April 28, 2020. This constitutes 77 days of closures. During this period, the Clerk’s office was not accepting civil filings between March 26, 2020, and April 15, 2020. No civil hearings occurred during the 77-day suspension of hearings. The COVID-19 pandemic, including but not limited to the institution of long term stay at home orders, and a substantial period of suspended court proceedings, represented an unprecedented period of disruption in the progress and adjudication of cases. During this period, it is proper to find that the three-year period was tolled. However, the Dismissing Defendants were served between 108 days and 142 days after the expiration under the three-year period prescribed by CCP § 583.210. Tolling the period for 77 days is inadequate alone to cure Plaintiff’s alleged delinquency in serving the Dismissing Defendants.

Plaintiff argues that the FAC contains new factual allegations sufficient to restart the time accruing under CCP § 583.210. The FAC contains inadequate allegations for the Court to find that the actions “commenced” as of the filing of the FAC. The FAC contains no new allegations which seem to apply to the Dismissing Defendants. In fact, the FAC does not have any allegations which seem to apply particularly to Dismissing Defendants, and the only date alleged after the filing of the Complaint pertains to the contingency fee arrangement between Plaintiff and SMP. See FAC ¶ 107. The FAC contains no allegations which change the gravamen of Plaintiff’s claims within the Complaint. Therefore, Plaintiff’s claims against Dismissing Defendants began accruing when he filed the complaint on November 2, 2018.

Plaintiff’s assertion that he was ignorant of the basis of liability against Dismissing Defendants at the time the Complaint was filed is also unavailing. First, being ignorant of the basis of liabilities against defendants is the purpose of Doe pleadings, but this assertion is entirely disconnected from the procedural hurdle presented by CCP § 583.210. See Barrington, supra, 39 Cal.3d at 155 (“The relation-back doctrine, however, is not concerned with circumstances which excuse a failure to serve and return summons within the three-year period, but with the question of when the three-year period starts on a cause of action unrelated to the original complaint, a matter not considered by the Legislature.”) It is not relevant to the analysis whether Plaintiff’s claims relate back, but rather almost the inverse, Plaintiff’s claims must be “amended to allege a new cause of action based on different operative facts, the new cause of action is different in nature from any cause of action contained in the earlier complaint, and hence does not relate back.” Id. at 154. Plaintiff’s claims in the FAC clearly relate back and assert causes of action which rely on the gravamen of the Complaint. There are new facts alleged, but these facts are not different in nature and do not change the gravamen of the action alleged against Defendants adequate to restart the three-year period upon the filing of the FAC.

Similarly, Plaintiff’s allegations that the matter was tolled while the Prior Action was stayed awaiting the determinations of the Bankruptcy Court is unavailing. A stay only automatically applies under CCP § 583.240 (b) if it prevents service, otherwise the question is whether the stay made it impossible or impractical under CCP § 583.240 (d). Steciw v. Petra Geosciences, Inc. (2020) 52 Cal.App.5th 806, 813. Here, the bankruptcy stay in the underlying case did not prevent Plaintiff from discovering the identity of Dismissing Defendants. There was no stay which directly affected service in this case, and therefore CCP § 583.240 (b) did not apply. Similarly, there was no stay on discovery in this case which may have impeded Plaintiff’s ability to identify the Dismissing Defendants. Based on the Prior Action, Plaintiff was clearly aware of the existence of Dismissing Defendants as fellow plaintiffs. Plaintiff has not shown that the bankruptcy stay in the Prior Action stood as a bar to discovering the identity of Dismissing Defendants. As such, the bankruptcy stay did not serve to toll the period under CCP § 583.240 (d).

Plaintiff argues that the Dismissing Defendants are precluded from asserting CCP § 583.210 under the doctrine of equitable estoppel. See CCP § 583.14. However, Plaintiff’s arguments to this effect are entirely targeted to the actions of McCutchan and SMP. While McCutchan and SMP represent the Dismissing Defendants, Plaintiff produces no authority showing that Dismissing Defendants may be estopped based on the actions of their attorney in another action. None of the allegations as related to Dismissing Defendants speak to their actions in lulling Plaintiff into a false sense of security resulting in inaction, and this assertion is thoroughly rebutted by the record within this case. Plaintiff was engaging in a flurry of activity between August 14, 2019 and August 4, 2021, filing motions in this case and pursuing it diligently against McCutchan. There is no indication that McCutchan’s promise to amend the judgment in the Prior Action lulled Plaintiff into any sense of security, not to mention a false one. Plaintiff has not shown estoppel applies here.

Plaintiff’s assertion that the August 4, 2021 entry of the Second Amended Judgment in the Prior Action was the last act in a chain of causation is also unavailing, as this act is not within the FAC. It is noted that Plaintiff has a motion for leave to file a second amended complaint which may cure this argument. Having dealt with the balance of Plaintiff’s other positions, it is appropriate to continue the motions to dismiss until after the Court has ruled on the motion for leave to amend.

Therefore, the Dismissing Defendant’s motions for dismissal are CONTINUED to October 31, 2022 at 1:30 pm. The parties are free to file supplemental briefing if they see fit per the time requirements under CCP § 1005.

       III.     

Motions Regarding SMI

 

A.   

SMI’s Motion to Vacate and Set Aside Default.

SMI filed a demurrer to Plaintiff’s FAC on July 23, 2021. Plaintiff moved for default against Sunderland McCutchan, LLC on July 29, 2021. A default having been entered against it’s alter ego, SMI had moved the Court to vacate its default, which was entered due to clerical error. The Court, cognizant of SMI’s suspended corporate status, continued the matter for SMI to rectify its suspension and thereby be allowed to consider the motion on its merits. SMI and Plaintiff have both filed evidentiary declarations regarding whether SMI has cured its suspension.

                                                              i.     

Governing Law

Courts may take judicial notice of public records, but not take notice of the truth of their contents. Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375; see also Evid. Code § 452(c). The scope of the judicial notice taken is limited to the action of the executive agency. Herrera at 1375.

A corporation which fails to pay their corporate taxes shall have its corporate powers suspended, including the ability to prosecute or defend court actions. Rev. & Tax. Code, § 23301. Upon securing revivor, a corporation “shall become reinstated but the reinstatement shall be without prejudice to any action, defense or right which has accrued by reason of the original suspension or forfeiture.” Rev. & Tax. Code, § 23305a. A corporate party to litigation which is suspended may be sanctioned for discovery misuse when it continues to participate in litigation despite its suspended status, including promulgating and responding to discovery. Palm Valley Homeowners Ass'n, Inc. v. Design MTC (2000) 85 Cal.App.4th 553, 563. Once corporate status is revived, it serves to validate procedural steps taken by a corporation in litigation, including undertaking discovery during the suspended period. Benton v. County of Napa (1991) 226 Cal.App.3d 1485, 1490, citing Diverco Constructors, Inc. v. Wilstein (1970) 4 Cal.App.3d 6, 12.

It is not the purpose of the corporate suspension statutory scheme to hobble corporations so their opponents may freely seek default. See Schwartz v. Magyar House, Inc. (1959) 168 Cal.App.2d 182, 190, (“the taking of a default judgment by virtue of the fact that defendant may not defend is not a ‘right’ within the contemplation of (California Revenue and Taxation Code §23305a).” Where a corporation secures revivor, that revival shall be “without prejudice to any action, defense or right which has accrued by reason of the original suspension or forfeiture”. See Rev. & Tax. Code, § 23305a. “(T)he policy of the law is to have every litigated case tried upon its merits, and it looks with disfavor upon a party, who, regardless of the merits of the case, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary.” Weitz v. Yankosky (1966) 63 Cal.2d 849, 854-55.

“A domestic corporation, including a tax-exempt domestic corporation, must obtain a tax clearance certificate from the Franchise Tax Board before it can dissolve.” Cal. Code Regs. tit. 18 § 23334 (a).

The Code provides that if the defendant has been served, other than by publication, and no response has been filed, “the clerk, upon written application of the plaintiff, shall enter the default of the defendant” and “[t]he plaintiff thereafter may apply to the court for the relief demanded in the complaint.” CCP §585(b).  “The court shall hear the evidence offered by the plaintiff, and shall render judgment in the plaintiff’s favor for that relief, not exceeding the amount stated in the complaint, in the statement required by Section 425.11, or in the statement provided for by Section 425.115, as appears by the evidence to be just.”  Id.

However, CCP § 412.20(a) states in relevant part that a summons must be “directed to the defendant”.  Any complaint targeted to a corporation named in its correct capacity, and failure to name a corporation in its proper capacity makes default inappropriate. Earl W. Schott, Inc. v. Kalar (1993) 20 Cal.App.4th 943, 947 (“[I]t cannot be seriously argued that the Kalar Construction Co., an association or partnership, is the same entity as Kalar Construction Co., Inc. By law, they are distinct.”). Where a corporation is named in the complaint under both the corporate name and a “DBA” name, and answers the complaint under its corporate name, a plaintiff cannot thereafter move for default under the alternative name in the complaint as a legally distinct entity. Pinkerton's, Inc. v. Superior Court (1996) 49 Cal.App.4th 1342, 1346.

Where the court has made error which constitutes extrinsic mistake affecting the rights of a party and resulting in default, the proper remedy is for the court to set aside the default. See Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981-983; Baske v. Burke (1981) 125 Cal.App.3d 38, 43-44. A clerk in receipt of a responsive pleading has no authority to enter default. Goddard v. Pollock (1974) 37 Cal.App.3d 137, 143. “The power to set aside judgments obtained through extrinsic fraud and mistake is within the equity jurisdiction of a court. Bloniarz v. Roloson (1969) 70 Cal.2d 143, 147.

                                                            ii.     

Analysis

SMI has presented evidence that it is now dissolved per the California Secretary of State. This by necessity means that they cured the underlying tax burden. See Cal. Code Regs. tit. 18 § 23334 (a). SMI has cured their suspension as required. Plaintiff’s arguments regarding possible perjury as related to the statements made to the California Secretary of State do not appear to be within the jurisdiction of this Court, nor relevant to the analysis of vacating SMI’s default. SMI continues to be within the jurisdiction of this Court for the purposes of the instant action despite its dissolution. Corp. Code, § 2011. Whether these allegedly false statements merit some punitive action would appear to otherwise be better addressed through the Secretary of State.

Plaintiff’s arguments that the demurrer and answer filed by SMI were not legally effective to count as responsive pleadings from SMI are unavailing. First, SMI’s suspension has been remedied, and having been cured, they are to be revived “without prejudice to any action, defense or right which has accrued by reason of the original suspension or forfeiture”. See Rev. & Tax. Code, § 23305a. SMI’s subsequent revival serves to validate procedural steps taken during their suspension. Benton v. County of Napa (1991) 226 Cal.App.3d 1485, 1490. SMI’s previous suspended status cannot stand as a bar to their relief here.

Similarly, Plaintiff’s argument is unavailing in positing that it was not error of the clerk to enter the default despite entry of a responsive pleading under the appearance, “Sunderland McCutchan, Inc. (Erroneously also sued herein as Sunderland McCutchan, LLC).” The verbiage of this appearance is adequate to make clear that: 1) Sunderland McCutchan, LLC does not at this time exist; 2) SMI was responding to the complaint and appearing in the case; and 3) the responsive pleading filed served to answer for both named entities. A default taken against a company which has already answered under another name is void. Pinkerton's, Inc. v. Superior Court (1996) 49 Cal.App.4th 1342, 1346. The entry of default against SMI was extrinsic mistake based on the error of the clerk. As such, setting it aside is within the equitable powers of the Court, and proper here.

Nor is requiring SMI to post bond appropriate. SMI appears to have dissolved, meaning there are no assets therein for Plaintiff to collect. Plaintiff has already properly named SMP, Sunderland and McCutchan as defendants. Plaintiff not shown or argued that his claims against SMI, as a potential holder of SMP, Sunderland or McCutchan’s assets, have any other basis. The Court continues to have jurisdiction to enforce any findings against SMI should that be appropriate. See Corp. Code § 2011(a). Plaintiff has not presented adequate reason to require a bond.

SMI’s request to vacate default is GRANTED.

B.    

Plaintiff’s November 30, 2021, Motion to Compel Further Responses from SMI

Plaintiff served SMI with requests for admission (“RFAs”), form interrogatories (“FIs”), and demands for inspection (or archaically called requests for production, hereinafter referred to as “RPODs”). SMI provided only boilerplate objections, refusing to substantively respond on the basis that the discovery requested was duplicative of the requests made to the other Attorney Defendants. SMI also moved timely for protective order to avoid having to provide substantive responses. The protective order was granted by the Court, as it was not apparent at that time that SMI was a suspended corporation without the right to defend or prosecute its case. Plaintiff has moved to compel substantive responses from SMI on November 30, 2021. Subsequent to this, it became apparent that SMI was suspended by the Secretary of State and was not entitled to prosecute or defend its case. The protective order was rescinded as a result on May 25, 2022. SMI filed a request for judicial notice with proof of its status as a dissolved corporation on June 1, 2022.

 

                                                              i.     

Governing Law

 

Unless otherwise limited by order of the court in accordance with this title, 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. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property.

 

CCP § 2017.010.

 

Regarding the FIs, a party responding to an interrogatory must provide a response that is “as complete and straightforward as the information reasonably available to the responding party permits” and “[i]f an interrogatory cannot be answered completely, it shall be answered to the extent possible.”  CCP §2030.220(a)-(b).  “If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.” CCP §2030.220(c). 

 

Upon receipt of a response, the propounding party may move to compel further response if it deems that an answer to a particular interrogatory is evasive or incomplete, an exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate, or an objection to an interrogatory is without merit or too general. CCP §2030.300(a).  When such a motion is filed, the Court must determine whether responses are sufficient under the Code and the burden is on the responding party to justify any objections made and/or its failure to fully answer the interrogatories. Coy v. Sup. Ct. (1962) 58 Cal.2d 210, 220-21; Fairmont Ins. Co. v. Sup. Ct. (2000) 22 Cal.4th 245, 255.

Regarding the RPODs, a demand for production may request access to “documents, tangible things, land or other property, and electronically stored information in the possession, custody, or control” of another party. A party to whom a document demand is directed must respond to each item in the demand with an agreement to comply, a representation of inability to comply, or an objection. CCP § 2031.210(a). If only part of an item or category demanded is objectionable, the response must contain an agreement to comply with the remainder, or a representation of the inability to comply. CCP § 2031.240(c)(1). If a responding party is not able to comply with a particular request, that party “shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand.” CCP § 2031.230. “This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party” and “[t]he statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.” Id.

Upon receipt of a response to a request for production, the propounding party may move for an order compelling further response if the propounding party deems that a statement of compliance with the demand is incomplete; a representation of inability to comply is inadequate, incomplete, or evasive; or an objection in the response is without merit or too general. CCP § 2031.310(a).  A motion to compel further responses to a request for production of documents must “set forth specific facts showing ‘good cause’ justifying the discovery sought by the demand.” CCP §2031.310(b)(1). Absent a claim of privilege or attorney work product, the party who seeks to compel production has met his burden of showing ‘good cause’ simply by showing that the requested documents are relevant to the case, i.e., that it is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence under CCP § 2017.010. See also Kirkland v. Sup. Ct. (2002) 95 Cal.App.4th 92, 98. Once good cause is shown, the burden shifts to the responding party to justify its objections. See Coy, 58 Cal.2d at 220–221. It is insufficient to claim that a requested document is within the possession of another person if the party has control over that document. Clark v. Superior Court of State In and For San Mateo County (1960) 177 Cal.App.2d 577, 579.

Regarding the RFAs, CCP § 2033.010 provides that “[a]ny party may obtain discovery ... by a written request that any other party to the action admit ... the truth of specified matters of fact, opinion relating to fact, or application of law to fact” relating to any “matter that is in controversy between the parties.” It is well-established that requests for admissions may go to the “ultimate issues” of a case. St. Mary v. Sup. Ct. (2014) 223 Cal.App.4th 762, 774; see also Stull v. Sparrow (2001) 92 Cal.App.4th 860, 864. Each response to a request for admission “shall be as complete and straightforward as the information reasonably available to the responding party permits” and must either object or answer, in writing and under oath, with an admission of so much of the matter as is true; a denial of so much of the matter as is untrue; or a specification of so much of the matter as the responding party is unable to admit or deny based on insufficient knowledge or information.  CCP §§2033.210(a)-(b), 2033.220. “If a responding party gives lack of information or knowledge as a reason for a failure to admit all or part of a request for admission, that party shall state in the answer that a reasonable inquiry concerning the matter in the particular request has been made, and that the information known or readily obtainable is insufficient to enable that party to admit the matter.” CCP § 2033.220(c). “If only a part of a request for admission is objectionable, the remainder of the request shall be answered” and if an objection is made to a request or part thereof, “the specific ground for the objection shall be set forth clearly in the response.” CCP §2033.230.

Upon receipt of a response, a requesting party may move for a further response if it determines that an answer to a particular request “is evasive or incomplete” or if an objection to a particular request “is without merit or too general.” CCP § 2033.290(a).

 

FIs, RPODs, RFAs may be served on “any other party to the action.” CCP §§ 2030.010, 2031.010, 2033.010. A party has the right to serve each other party with 35 requests for admission unrelated to the genuineness of documents. CCP § 2033.030. Motions to compel further responses are a proper motion when confronted with “boilerplate” responses. Best Products, Inc. v. Superior Court (2004) 119 Cal.App.4th 1181, 1189.

 

“California law provides parties with expansive discovery rights.”  Lopez v. Watchtower Bible & Tract Society of N.Y., Inc. (2016) 246 Cal.App.4th 566, 590-591.  Specifically, the Code provides that “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.”  CCP § 2017.010; see also, Garamendi v. Golden Eagle Ins. Co. (2004) 116 Cal.App.4th 694, 712, fn. 8.  “For discovery purposes, information is relevant if it ‘might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement…”  See Lopez, supra, 246 Cal.App.4th at 590-591, citing Garamendi, supra, 116 Cal.App.4th at 712, fn. 8.  “Admissibility is not the test and information[,] unless privileged, is discoverable if it might reasonably lead to admissible evidence.”  Id.   “These rules are applied liberally in favor of discovery, and (contrary to popular belief), fishing expeditions are permissible in some cases.”  Id. The scope of discovery is one of reason, logic and common sense. Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1612. The right to discovery is generally liberally construed. Williams v. Superior Court (2017) 3 Cal.5th 531, 540.

 

Timely unverified responses containing both objections and answers may serve to maintain objections. Food 4 Less Supermarkets, Inc. v. Superior Court (1995) 40 Cal.App.4th 651, 657. Similarly, responses containing only objections need only be signed by the representing attorney.

Blue Ridge Ins. Co. v. Superior Court (1988) 202 Cal.App.3d 339, 343. Generally, failure to assert a discovery objection in a response waives that objection later. Stadish v. Superior Court (1999) 71 Cal.App.4th 1130, 1140. When a party serves response after a motion to compel is filed, the court maintains jurisdiction within its discretion to determine whether the requested sanctions are appropriate. Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 410-411. For the court to order sanctions against an attorney, the motion must advise the attorney that joint and several liability against the attorney is sought for the sanctions. Blumenthal v. Superior Court (1980) 103 Cal.App.3d 317, 319.

 

                                                            ii.     

Analysis

In neither their opposition nor their prior motion for protective order does SMI produce an authority supporting the concept that Plaintiff is not entitled to discovery from each defendant. It is very clear that SMI has depended upon the now dissolved protective order in not answering Plaintiff’s requests with substantive responses. In consideration of their reliance on the Court’s order, SMI objections are not deemed waived. However, SMI has asserted all their current objections in a clearly boilerplate manner without asserting factual justification which is facially inadequate for genuine judicial consideration. SMI is a party to this case. Plaintiff is entitled to serve each other party to the case with discovery.

 

Though it has never been functional, SMI was purportedly formed to hold McCutchan and Sunderland’s business interests in scopes outside of attorney-client relationships (such as expert witness services). See SMI’s Points and Authorities in Support of Ex Parte Motion for Protective Order, pg. 3:21-4:19. However, SMI has made no showing that Plaintiff must take them at their word that this is the case. SMI attempts to frame Plaintiff’s naming of associated businesses run by the same individuals as bordering on unprecedented. Plaintiff’s attempts to obtain responses to explore the relationship between SMI and SMP, and whether SMI has any involvement in his claims, is within the purpose of discovery.

 

SMI makes a point of stating they are a legally distinct company from SMP. See SMI’s Points and Authorities in Support of Ex Parte Motion for Protective Order, pg. 3:21-4:19. This supports Plaintiff’s contention that he is entitled to substantive responses from SMI. SMI’s responses to this point were boilerplate.

 

Plaintiff’s motion to compel is GRANTED. SMI will serve code compliant responses to the RFAs, RPODs and FIs within 30 days of notice of this order.

 

CCP §2033.290(d) (relating to requests for admission), CCP § 2030.300(d) (relating to interrogatories), and CCP § 2031.310(h) (relating to requests for production of documents) each provide that a monetary sanction “shall” be imposed against the party losing a motion to compel further responses unless the court finds “substantial justification” for that party’s position or other circumstances making sanctions “unjust.” CCP § 2023.030(a) states that these sanctions are for “reasonable expenses”. The purpose of monetary sanctions is to mitigate the effects of the necessity of discovery motions and responses on the prevailing party. The discovery responses at issue are only objections, and therefore bear the signature of counsel; therefore, it is fair to infer that this was undertaken, on the advice of counsel. Plaintiff requests $337.91 from SMI and their counsel for costs associated with making this motion. All the enumerated costs other than travel are reasonable. The Sonoma County Superior Court has access to e-filing, and digital appearances at hearings. The Court finds Plaintiff’s travel fees as elective, rather than necessary. SMI and/or their counsel are ordered to pay Plaintiff $310.31 within 20 days’ of notice of this order.

 

       IV.     

Discovery Motions as to Plaintiff’s Deposition

 

On March 4, 2022, counsel for Attorney Defendants served Plaintiff with a deposition notice, to which Plaintiff responded that he was not available on that date. Counsel and Plaintiff eventually agreed on a deposition date on March 31, 2022. On March 28, 2022, Attorney Defendants received a letter from Plaintiff asserting that he intended to appear remotely, and he refused to appear in person at the deposition. Plaintiff filed a motion for protective order on March 29, 2022, requesting that the court grant Plaintiff a remote deposition or to quash the notice of deposition. Attorney Defendants filed a motion to compel Plaintiff’s deposition on April 2, 2022. Represented Doe Defendants have filed an opposition to the motion for protective order, asserting their right to confront Plaintiff in deposition.

 

Plaintiff’s objections 1 and 6 to the declaration of Alexander Promm are SUSTAINED. Plaintiff’s objection 13 is SUSTAINED as to the time for reply. The balance of Plaintiff’s objections to the declaration of Alexander Promm are OVERRULED.

 

A.   

Governing Law

 

CCP § 2025.450(a), provides: “If, 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 under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document 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 or tangible thing described in the deposition notice.” On non-appearance of a deponent, the moving party shall attempt to meet and confer in good faith regarding the non-appearance. Leko v. Cornerstone Building Inspection Service (2001) 86 Cal.App.4th 1109, 1124. A deposition is limited to “seven hours of total testimony” CCP § 2025.290.

 

CCP § 2025.420(a) provides that “before, during, or after a deposition” a party or deponent may promptly move for a protective order. CCP § 2025.420(b) provides that the Court may, for good cause shown, make any order that justice requires to protect any party or deponent from “unwarranted annoyance, embarrassment, or oppression, or undue burden and expense,” which may include that “the deposition be taken only on certain specified terms and conditions,” that “certain matters not be inquired into,” and that “all or certain of the writings or tangible things designated in the deposition notice not be produced, inspected, copied, tested, or sampled.” CCP §2025.420(g) provides: “If the motion for a protective order is denied in whole or in part, the court may order that the deponent provide or permit the discovery against which protection was sought on those terms and conditions that are just.” In moving for a protective order, it is the burden of the moving party to establish good cause for whatever order is sought. Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 318.

 

“At the election of the deponent or the deposing party, the deposition officer may attend the deposition at a different location than the deponent via remote means. A deponent is not required to be physically present with the deposition officer when being sworn in at the time of the deposition.” CCP § 2025.310 (a). A deponent must appear as required by statute or as agreed to by the parties and deponent, but on motion by any person, the court in a specific action may make such other orders as it deems appropriate. Cal. Rule of Court, Rule 3.1010 (c)&(d). Any party or attorney other than the deposing party and the deponent may be physically present at the deposition so long as they have provided notice of appearance at least five court days prior to the deposition, subject to any possible issuance of protective orders. Cal. Rule of Court, Rule 3.1010 (a)(3); see also CCP § 2025.310 (b).

 

B.    

Analysis

Plaintiff’s request to quash is denied as lacking any relevant authority. CCP § 2025.290 allows for depositions to be comprised of “seven hours of total testimony”. Conceivably, this could take multiple days depending on breaks or other issues. As such, nothing in the deposition notice facially violates CCP § 2025.290. Plaintiff provides no other basis to quash the deposition notice.

Plaintiff has not provided any authority that CCP § 2025.310 allows a deponent to participate in the deposition in a location separate from the deposing party. In fact, this interpretation is directly countermanded by Cal. Rule of Court, Rule 3.1010 (c). The only thing established by CCP § 2025.310 (a) is that Plaintiff may elect for the deposition officer to attend the deposition remotely. Plaintiff’s ability to elect that the deposition officer attend remotely to allay his concerns regarding number of possible exposures is his remedy here short of a showing that the risks involved are sufficient to overcome Attorney Defendants’ rights to conduct discovery, including an in-person deposition. Attorney Defendant’s motion to compel deposition is GRANTED.  Plaintiff’s motion for protective order to have a remote deposition is DENIED. Plaintiff shall attend a deposition in person noticed by Attorney Defendants on or before October 12, 2022.

Represented Doe Defendants also oppose the motion for protective order and filed a reply to Plaintiff’s opposition to the motion to compel, but they have not established that they properly noticed Plaintiff their intent to attend the deposition. See Cal. Rule of Court, Rule 3.1010 (a)(3); see also CCP § 2025.310 (b). Represented Doe Defendants were required to notice their intent to appear physically five court days prior to the deposition. Cal. Rule of Court, Rule 3.1010 (a)(3). They have presented no evidence such notice was given. The gist of Plaintiff’s request is to minimize the possibility of exposure to COVID-19. Certainly, if Represented Doe Defendants had properly noticed their intent to physically appear, something they would have had to do before the March 28, 2022 communication that indicated Plaintiff had no intent to appear physically, Plaintiff would have raised his concerns which are reflected on reply of a room full of people in a time where the COVID-19 pandemic remains a very real consideration. To the degree it is addressed by the motion for protective order and reply, Represented Doe Defendants are not entitled to attend the deposition in person. They did not properly place the issue before the Court by failing to notice Plaintiff of their intent to appear.

The Court orders that physical presence is restricted to Plaintiff, Attorney Defendants, and any respective counsel. Reasonably, this would restrict the physical attendance to 6 individuals, and allow greater physical distancing as necessary. If Represented Doe Defendants properly give notice of their intent to appear remotely, this would still be allowable at the ordered deposition.

C.    

Sanctions

With respect to monetary sanctions, CCP § 2025.450(g)(1) provides that if a motion to compel is granted, the court “shall” impose a monetary sanction against “the deponent” “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.” However, CCP § 2023.030 states that “(a) request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought.” (Emphasis added.) Attorney Defendants have failed to specify the type of sanction sought in the notice of motion. This is a procedural failing, and the Court finds good cause to DENY the sanctions requested on the motion to compel.

Similarly, CCP § 2025.420(h) provides that the Court shall impose monetary sanction against any party that makes or opposes a motion for protective order unsuccessfully. Plaintiff has unsuccessfully moved for protective order to prevent the deposition occurring in person. Attorney Defendants are entitled to sanctions in opposing this motion. Attorney Defendants request $1,480 representing 8 hours of attorney work at $185 per hour. However, 2 hours was requested for a reply and 3 hours of this is allocated to the hearing on this matter, which is excessive in attributing time to the issue of the discovery motion. Attorney Defendants are not the moving party on the protective order and did not prepare a reply. At this time, there has been no hearing on this motion. This brings the total attributable attorney time to this motion to 3 hours. Therefore, Attorney Defendants’ request for sanctions in opposing the protective order are GRANTED in the amount of $555.00. Plaintiff is to pay this amount to Attorney Defendants within 20 days of this order.

Represented Doe Defendants (through their counsel, McCutchan) filed opposition to Plaintiff’s motion for protective order. However, Represented Doe Defendants have not established that they properly noticed Plaintiff their intent to attend the deposition. See Cal. Rule of Court, Rule 3.1010 (a)(3); see also CCP § 2025.310 (b). Represented Doe Defendants were required to notice their intent to appear physically five court days prior to the deposition. Cal. Rule of Court, Rule 3.1010 (a)(3). They have presented no evidence such notice was given. Their appearance not being allowable at the deposition, their opposition to the motion is neither probative nor did it affect the Court’s denial of the protective order. As such, any grant of sanctions to Represented Doe Defendants would be unjust.

 

          V.     

Defendants’ Enforcement of Sanctions and Additional Sanctions

The remaining request under this motion after the May 25, 2022, hearing is Defendants request for additional sanctions which rest within the Court’s discretion under CCP § 177.5 and California Rule of Court 2.30. The Court at that time did not request supplemental declarations as to the status of the ordered payment, but at this time the Court would find that information highly probative to the analysis. It is the Court’s expectation that to this point and going forward all sanctions will be paid timely by all parties. The parties are ordered to meet and confer regarding any allegedly unfulfilled monetary sanctions orders and settle accounts within 20 days of this order. Consideration on this matter is continued to October 31, 2022 at 1:30 in Department 10. The Court requests that the parties file declarations as to the status of all sanctions ordered to this point, and any relevant points and authorities as they may see fit to address Attorney Defendants’ requested additional sanctions.

 

       VI.     

Motion to Compel Further Responses to RFAs

First, as to Duval, it strikes the Court as problematic that Duval asserts that the Court has no jurisdiction over her, but she actively participates in the case in propounding discovery and motions for enforcement thereon. It currently stands that Duval may not be a party to the case. As to the RFAs related to Duval’s requests, the motion is continued to October 31, 2022, at 1:30 in Department 10.

A.   

Governing Law

Regarding the RFAs, CCP § 2033.010 provides that “[a]ny party may obtain discovery ... by a written request that any other party to the action admit ... the truth of specified matters of fact, opinion relating to fact, or application of law to fact” relating to any “matter that is in controversy between the parties.” It is well-established that requests for admissions may go to the “ultimate issues” of a case. St. Mary v. Sup. Ct. (2014) 223 Cal.App.4th 762, 774; see also Stull v. Sparrow (2001) 92 Cal.App.4th 860, 864. Each response to a request for admission “shall be as complete and straightforward as the information reasonably available to the responding party permits” and must either object or answer, in writing and under oath, with an admission of so much of the matter as is true; a denial of so much of the matter as is untrue; or a specification of so much of the matter as the responding party is unable to admit or deny based on insufficient knowledge or information.  CCP §§2033.210(a)-(b), 2033.220. “If a responding party gives lack of information or knowledge as a reason for a failure to admit all or part of a request for admission, that party shall state in the answer that a reasonable inquiry concerning the matter in the particular request has been made, and that the information known or readily obtainable is insufficient to enable that party to admit the matter.” CCP § 2033.220(c). “If only a part of a request for admission is objectionable, the remainder of the request shall be answered” and if an objection is made to a request or part thereof, “the specific ground for the objection shall be set forth clearly in the response.” CCP §2033.230.

Upon receipt of a response, a requesting party may move for a further response if it determines that an answer to a particular request “is evasive or incomplete” or if an objection to a particular request “is without merit or too general.” CCP § 2033.290(a).

Most of the other discovery procedures are aimed primarily at assisting counsel to prepare for trial. Requests for admissions, on the other hand, are primarily aimed at setting at rest a triable issue so that it will not have to be tried. Thus, such requests, in a most definite manner, are aimed at expediting the trial. For this reason, the fact that the request is for the admission of a controversial matter, or one involving complex facts, or calls for an opinion, is of no moment. If the litigant is able to make the admission, the time for making it is during discovery procedures, and not at the trial.

Cembrook v. Superior Court In and For City and County of San Francisco (1961) 56 Cal.2d 423, 429.

Parties are entitled to define special terms within RFAs, so long as those terms are capitalized whenever they appear. CCP § 2033.060 (e). The purpose of preventing parties from engaging in the use of compound questions and prefacing is to prevent parties from obtaining more information than would be available in their allotted 35 discovery requests. Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1288. Such prefacing is not, in and of itself, adequate justification for failing to substantively respond to discovery. Id.

CCP §2033.290(d) (relating to requests for admission) and CCP § 2030.300(d) (relating to interrogatories) each provide that a monetary sanction “shall” be imposed against the party losing a motion to compel further responses unless the court finds “substantial justification” for that party’s position or other circumstances making sanctions “unjust.” It is within the discretion of a court to award partial sanctions for partial success in a discovery motion. Mattco Forge, Inc. v. Arthur Young & Co. (1990) 223 Cal.App.3d 1429, 1437 (where moving party was successful in four fifths of their discovery motion, awarding one quarter the requested sanctions was “both fair and legally correct.”)

B.    

Analysis

It is common practice for parties to define terms prior to engaging in their listed requests. The Court does not find issue with Davis’s use of the beginning of the requests for admission in order to delineate his allowed special definitions. See CCP § 2033.060 (e). This objection is overruled, as the prefacing does not interfere with the purpose, complexity or even affect the majority of the RFAs at issue. See Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1288.

Plaintiff asserts that he does not have any obligation to search through public records to answer the RFAs. This is true as to interrogatories, but requests for admissions may go to the “ultimate issues” of a case. St. Mary v. Sup. Ct. (2014) 223 Cal.App.4th 762, 774; see also Stull v. Sparrow (2001) 92 Cal.App.4th 860, 864. Davis’s requests have the potential legal effect of placing issues outside of dispute, they are not akin to interrogatories where parties are seeking information. See Cembrook v. Superior Court In and For City and County of San Francisco (1961) 56 Cal.2d 423, 429. Plaintiff is required to respond to each request for admission with either an admission, a denial, some elucidated combination of the two, or an inability to admit or deny despite diligent efforts. CCP § 2033.220.

Plaintiff’s objections that the terms “onward” as utilized in RFAs 2 and 5 and “dismissed” as to RFA 8 are vague is compelling. Plaintiff accurately points out that the current financial situation of the judgment debtor in the prior action is not something reasonably within the ambit of Plaintiff’s knowledge. Similarly, the term dismissed encompasses a number of legal meanings depending on nuances not present in Davis’s RFAs. These objections raise adequate concern for the Court to deny further responses. For RFAs 16 and 17, Plaintiff has denied them. Davis does not provide any convincing reason why such denial is an inadequate response.

Therefore, Davis’s requests to compel further responses are GRANTED as to RFAs 1, 3, 10, 11, 12, 13, 14, and 15. Davis’s requests are DENIED as to requests 2, 5, 8, 16, and 17.

C.    

Sanctions

Davis and Duval request 6.7 attorney hours for their combined motion, at $425 per hour. There is only evidence that 2.9 hours have been expended, as no reply was filed by Davis to Plaintiff’s opposition. With Duval’s portion of the motion pending, the Court will address 1.5 hours of the currently requested 2.9 hours, with the remaining 1.4 hours to be addressed on October 31. 1.5 hours at $425 per hour is $637.50 in fees. The Court does not find the rate of $425 per hour unreasonable as applied to a long practicing attorney who has the status of partner. However, Davis was successful in requesting supplemental responses to 8 of 13 RFAs. Therefore, the Court finds it appropriate to award $400 in monetary sanctions for attorney’s fees, plus $60 in filing fees for total monetary sanctions of $460. See Mattco Forge, Inc. v. Arthur Young & Co. (1990) 223 Cal.App.3d 1429, 1437. Plaintiff is to pay this amount to Davis within 20 days of this order.

 

 

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