Case Name: Mina Shahkarami v. Niaz Baig, et al.
Case No.: 2014-1-CV-275135

This action arises out of a construction dispute between plaintiff Mina Shahkarami (“Plaintiff”) and the contractors she hired to build her home, defendants Niaz Baig, Villa Developer, Inc. (“VD, Inc.”), and Villa Developers & Investment, LLC (“VDI, LLC”) (collectively “Defendants”). According to Plaintiff, Defendants engaged in a scheme to defraud her by providing contracting services for the construction of her home in Mountain View, for which they accepted payments totaling $327,000, without a contracting license and in violation of California’s contractor licensing and construction laws.

Based on these allegations, Plaintiff filed the operative complaint asserting causes of action for: (1) recovery of compensation paid pursuant to Business and Professions Code section 7031; (2) violations of the Consumers Legal Remedies Act (“CLRA”), Civil Code section 1750, et seq.; (3) unfair business practices in violation of Business and Professions Code section 17200, et seq.; (4) violations of Business and Professions Code sections 7160 and 7161; (5) negligence; (6) rescission and restitution; (7) breach of contract; and (8) declaratory relief.

Currently pending before the Court is Plaintiff’s motion to compel further responses from Defendants to her first and second sets of special interrogatories (“SI”) and her second and third sets of requests for the production of documents (“RPD”), as well as an accompanying request for monetary sanctions. Defendants also request an award of monetary sanctions.

I. Discovery Dispute

On January 5, 2016, Plaintiff served two sets of RPD and two sets of SI on Defendants. (Hongisto Decl., ¶ 3.) Defendants responded and made an initial production of documents in February. Defendants then produced additional documents in March. Plaintiff was dissatisfied with the volume of documents produced. Consequently, counsel engaged in meet and confer efforts.

Both counsel agree that Plaintiff’s focus in propounding the discovery requests at issue was to obtain “billing records, evidence of payments, invoices for materials, and bank statements.” (Hongisto Decl., ¶ 5; see also D’Anjou Decl., ¶ 5.) Both parties encountered difficulties in obtaining these categories of documents from third parties, but continued to meet and confer and to work with the third party vendors and banks to obtain the documents. (D’Anjou Decl., ¶ 7.) On April 11, 2015, Defendants made an additional production. (Ibid.) On April 12, 2015, Defendants obtained bank statements responsive to Plaintiff’s discovery requests. (D’Anjou Decl., ¶ 9.) Defendants produced the bank statements and continued producing responsive documents leading up to and following the filing of Plaintiff’s motion. (D’Anjou Decl., ¶ 9-13.) It is unclear when the parties’ meet and confer efforts broke down, if at all, as Plaintiff’s counsel offered to withdraw the motion to compel further responses so long as Defendants produced bank records in time for trial. (D’Anjou Decl., ¶ 8.)

Ultimately, on April 19, 2016, Plaintiff filed the instant motion to compel further responses to RPD sets two and three and SI sets one and two citing Code of Civil Procedure sections 2023.010 and 2031.310. Plaintiff argues that Defendants’ production is incomplete based on the volume of documents produced and the fact that Defendants have produced invoices and receipts but not “any evidence of payments,” including bank statements and cancelled checks. (Plaintiff’s Memo. of Pts. & Auth. at 4.)

On April 21, 2016, after Plaintiff filed her motion, Defendants served verified supplemental responses to RPD sets two and three and SI sets one and two. Additionally, Defendants produced documents including bank statements and additional invoices. (D’Anjou Decl., Exh. B.)

II. Motion to Compel

A. SI

Plaintiff moves to compel further responses to SI set one numbers 1, 2, 3, 5, 6, 9, 17, and 18 and SI set two numbers 27 and 28. Defendants served verified supplemental responses to SI set one numbers 1, 5, and 6 and SI set two number 28. (D’Anjou Decl., Exh. B.)

As a preliminary matter, Defendants argue that Plaintiff’s motion should be denied because her meet and confer efforts were insufficient. A party moving to compel further responses to interrogatories must file a meet and confer declaration along with his or her motion. (Code Civ. Proc., § 2030.300, subd. (b).) The declaration must set forth facts “showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc., § 2016.040, italics added.) The level of effort a party must invest in order to have made a reasonable good faith attempt at informal resolution depends upon the circumstances of the case. (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431.) A court may summarily deny a motion to compel further responses to interrogatories based on inadequate meet and confer efforts. (Ibid.)

Defendants assert that Plaintiff did not address SI set one numbers 2, 3, 9, 17, and 18 and SI set two number 27 during the meet and confer process. Indeed, Plaintiff’s meet and confer letter dated April 1, 2016 does not address these requests. (Hongisto Decl., Exh. A.) Furthermore, Plaintiff provides no additional information from which the Court could conclude that these requests were discussed. Given the total absence of meet and confer efforts as to these requests, Plaintiff’s motion to compel further responses to SI set one numbers 2, 3, 9, 17, and 18 is DENIED.

As to SI set one numbers 1, 5, and 6 and SI set two number 28, Defendants argue that Plaintiff’s motion should be denied as moot. The Court agrees. When a party serves supplemental responses after a motion to compel further responses has been filed, a court has substantial discretion in deciding how to rule in light of the particular circumstances presented. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408.) For example, a court has discretion to deny the motion as moot. (Id. at 409.) The record reflects that Defendants served verified supplemental responses to SI set one numbers 1, 5, and 6 and SI set two number 28 after Plaintiff filed her motion. The Court therefore deems her motion as moot as to these requests. Accordingly, Plaintiff’s motion to compel further responses to SI set one numbers 1, 5, and 6 and SI set two number 28 is DENIED as moot.

B. RPD

Plaintiff moves to compel further responses to RPD set two numbers 3, 4, 5, 7, 8, 9, 10, 12, 23, 24, and 25 and RPD set three number 29. As a preliminary matter, while Plaintiff captions her motion as a motion to compel further responses and only cites Code of Civil Procedure section 2031.310, which governs such motions, she dedicates the vast majority of her motion to taking issue with Defendants’ production of documents as opposed to the content of their written responses. To the extent Plaintiff takes issue with the volume of documents Defendant has produced so far, the Court considers her motion as a motion to compel compliance with an agreement to produce documents, governed by Code of Civil Procedure section 2031.320. The Court will consider each aspect of Plaintiff’s motion in turn.

1. Motion to Compel Further Responses

Plaintiff seeks further responses to RPD set two numbers 3, 4, 5, 7, 8, 9, 10, 12, 23, and 24 and RPD set three number 29. A court may deny a motion to compel further responses to RPD as moot when a party serves supplemental responses after the motion to compel was filed. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants, 148 Cal.App.4th at 408.) Here, Defendants served verified supplemental responses to each RPD at issue after Plaintiff filed her motion. Plaintiff’s motion to compel further responses to these RPD is therefore DENIED as moot.

With respect to Plaintiff’s motion to compel a further response to RPD set two number 25, while Defendants served a supplemental response, that supplemental response is identical to their initial objection-only response. As such, the Court will not treat Plaintiff’s motion as to this individual RPD as moot.

In their response, Defendants object on the grounds that RPD set two number 25 (1) seeks documents that are equally available to Plaintiff, (2) is argumentative, (3) is vague and ambiguous, and (4) seeks legal reasoning and theories. A moving party may bring a motion to compel further responses on the ground that the responding party’s objections are “without merit or too general.” (Code Civ. Proc., § 2031.310, subd. (a)(3).) Here, however, Plaintiff only challenges Defendants’ objection on the ground that she seeks documents that are equally available to her. She does not argue that any of the other objections lack merit. Plaintiff therefore has not substantiated her request for a further response. Plaintiff’s motion to compel a further response to RPD set two number 25 is DENIED.

2. Motion to Compel Compliance

Plaintiff also appears to move to compel compliance with Defendants’ agreements to produce documents responsive to RPD set two numbers 3, 4, 5, 7, 8, 9, 10, 12, 23, 24, and 25 and RPD set three number 29. As an initial matter, Defendants’ initial agreements to produce were qualified. Specifically, Defendants agreed to produce documents in their possession “to which no objection is being made,” and one or more objections were interposed in the response to each request. (Plaintiff’s Separate Statement at 2.) Plaintiff’s motion is therefore problematic as the Court cannot readily determine what Defendants have agreed to produce or not produce. Moreover, Defendants have since served verified supplemental responses, changing the landscape of the motion.

Based on a review of the supplemental responses and opposition papers, it appears that production has continued on a rolling basis even after the filing of this motion. The declaration of Defendants’ counsel and the verified supplemental responses seem to reflect that all responsive documents are being produced. In fact, Defendants’ counsel confirms that he received documents from a third-party vendor on April 19, 2016 and that he immediately emailed those documents to Plaintiff’s counsel. (D’Anjou Decl., ¶ 9-10.) The following day, Defendants obtained responsive bank statements which were emailed to Plaintiff’s counsel that same day. (Ibid.) Defendants’ counsel further attests that Bank of America confirmed that copies of checks, which had been previously ordered by Defendants, would be available on April 25, 2016. (Ibid.) Consistent therewith, in the supplemental responses, Defendants respectfully state that they “anticipate receiving copies of checks reflecting payments on or about April 25, 2016,” and that they will produce these as part of their supplemental production. (D’Anjou Decl., Exh. A.) Accordingly, it appears that check copies, which were not available until after Plaintiff filed her motion, are the only documents that remain outstanding. As there no longer appears to be a dispute over document production, Plaintiff’s motion to compel compliance with RPD set two numbers 3, 4, 5, 7, 8, 9, 10, 12, 23, 24, and 25 and RPD set three number 29 is DENIED. Nonetheless, the Court will issue an order requiring that Defendants, within two calendar days of receipt from the Bank or third party in possession, produce any bank records, including check copies, received.

III. Requests for Sanctions

Plaintiff requests monetary sanctions in the amount of $5,240.00. “A request for sanctions shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought. . . .” (Code Civ. Proc., § 2023.040, italics added.) Plaintiff’s request is deficient because she failed to identify the person, party, or attorney against whom her sanction is sought in her Notice of Motion. Plaintiff’s request for sanctions is therefore DENIED.

Defendants request monetary sanctions against Plaintiff in the amount of $1,875.00. A court shall impose a monetary sanction against the party who unsuccessfully makes or opposes a motion to compel unless it finds that the party subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (See Code Civ. Proc., §§ 2030.300, subd. (d), 2031.310, subd. (h).) An award of monetary sanctions under these circumstances would be unjust because the motion was not wholly unjustified as evidenced by the fact that Defendants provided supplemental responses and produced many additional documents after the motion was filed. Accordingly, Defendants’ request for monetary sanctions is DENIED.

The Court will prepare the order.