Advance Design Consultants, Inc. v. Gabriel Michel, et al.		CASE NO.112CV226289[1]
DATE: 10 July 2014	TIME: 9:00	LINE NUMBER: 7

This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Wednesday 9 July 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 10 July 2014, the motion of plaintiff/cross-complainant Gabriel Michel, individually, and as Trustee of The Michel Family Trust (“Michel”), for “Misuse of Discovery Process and Sanctions” was argued and submitted.  Plaintiff/cross-defendant Advanced Design Consultants, Inc. (“ADC”) filed a formal opposition to the motion.

All parties are reminded that all papers must comply with Rule of Court 3.1110(f).[2]

1. I.    Statement of Facts

This is an action for malicious prosecution.  According to the allegations of the complaint filed by ADC, The Michel Family Trust (the “Trust”) is the owner of property located in Santa ClaraCounty (the “Property”).  (Complaint at ¶ 9.)  On August 16, 2004, a fired occurred at the Property, resulting in substantial damage to the improvements thereon and destroying a bar known as “Coconut Willie’s,” a tenant of the Trust.  (Id. at ¶ 10.)  On March 2005, the Trust initiated a claim against its insurance carrier, St. Paul Travelers (“Travelers”), for the property damage through its attorney, defendant/cross-defendant Edward Francis Cullen, Jr. (“Cullen”).  (Id. at ¶ 11.)

A dispute subsequently arose between the Trust and Travelers concerning the qualifications of and delays caused by the contractor selected by Travelers to prepare the necessary drawings to be submitted to the County of Santa Clara in order to obtain the permits necessary to repair the fire damage.  (Complaint at ¶ 13.)  Cullen contacted ADC to obtain a bid to conduct certain design and engineering services for construction plans for the repairs.  (Id.) Shortly thereafter, the parties entered into two agreements for the provision of the foregoing services under which ADC fully performed.  (Id. at ¶¶ 13, 14, 15.)  However, despite this performance, the Trust and Cullen failed to pay ADC the sums it was due.  (Id. at ¶ 15.)

On June 9, 2009, two years after Travelers had closed its investigation of the claim due to “lack of further activity,” Cullen, as counsel for the Trust, filed an action against Travelers alleging that the delays and inabilities of the contractor selected by Travelers caused the Trust to incur substantial additional costs and expenses in completing the repairs to the Property.  (Complaint at ¶ 18.)

On January 25, 2010, despite identifying the contractor as the source of the delays, the Trust filed suit against ADC for breach of contract and general negligence (the “Action”) alleging that ADC was the cause of delays in the repairs because it failed to timely obtain the necessary permits, despite the agreements between the parties specifically excluding obtaining permits from ADC’s scope of work.  (Complaint at ¶ 19.)  As a result of the Action, ADC incurred numerous expenses and the loss of business and revenue.  (Id. at ¶ 20.)

On March 12, 2012, after the Trust replaced Cullen with new counsel, the Trust voluntarily dismissed the Action against ADC.  (Complaint at ¶ 21.)  On June 11, 2012, Michel and the Trust filed suit against Cullen and his law firm for legal malpractice, deceit and misrepresentation, intentional infliction of emotional distress, breach of contract and financial elder abuse, alleging that Cullen elected to file suit against ADC to cover his and his firm’s errors in the underlying case against Travelers.  (Id. at ¶ 22.)

On March 5, 2013, ADC filed the Complaint asserting a single cause of action for malicious prosecution, alleging that Cullen and the Trust lacked probable cause in bringing the Action.

1. II.   Discovery Dispute

On March 28, 2014, Michel served ADC with his first set of written discovery, including requests for admission, form interrogatories, special interrogatories and requests for production of documents.  (Declaration of James Mason in Support of Motion Re: Misuse of Discovery Process and Imposition of Sanctions (“Mason Decl.”) at ¶ 3 and Exhibit 1.)  ADC served its initial responses to the foregoing discovery on April 30, 2014.  (Id., Exhibit 2.)

On May 1^st and 2^nd, Michel’s counsel, James Mason (“Mr. Mason”) sent a meet and confer letter to ADC’s counsel articulating what he believed to be deficiencies in ADC’s responses to the discovery propounded.  (Id., Exhibit 3.)

On May 9, 2014, ADC’s counsel responded with a voice message advising opposing counsel that ADC would amend its responses.  (Declaration of Anthony Keiley III in Opposition to Motion Re: Misuse of Discovery Process (“Keiley Decl.”) at ¶ 3.)

On May 14, 2014, Mr. Mason counsel sent another meet and confer letter in an effort to obtain further responses to discovery from ADC.  (Id., Exhibit 4.)  That same day, ADC filed amended responses to the first set of discovery requests.  (Mason Decl.,, Exhibit 7; Keiley Decl. at ¶ 4.)  Verifications followed the next day.  (Keiley Decl. at ¶ 5.)

On May 19, Mr. Mason sent an email to ADC’s counsel wherein he stated that he had yet to receive any documents in response to his client’s request for production and would therefore file a motion to compel unless the documents were received by May 21^st.  (Keiley Decl. at ¶ 6 and Exhibit C.)

On May 21, 2014, ADC provided documents in response to Michel’s request for production of documents which included: two discs, a condensed copy of the deposition of Jason Duboise, and 138 pages of documents.  (Mason Decl., Exhibit 6.)  None of the hard copies of the documents had an ADC bates-stamp.  (Id., Exhibit 6.)

On May 27, 2014, Mr. Mason sent an additional meet and confer letter to opposing counsel requesting all ADC bates-stamped documents produced by ADC in response to a document request from Travelers in the federal action entitled The Michel Family Trust v. Travelers Indemnity Company of Connecticut, et. al., case no. C09-04144 (the “Travelers Action”).  (Id., Exhibit 7.)  Mr. Mason further stated his belief that opposing counsel, Anthony Keiley (“Mr. Keiley”), and his client were concealing and secreting documents, including those obtained by the attorney who had represented Travelers in the Travelers Action.  (Id., Keiley Decl. at ¶ 8.)

On May 28, 2014, Mr. Mason sent an email to opposing counsel stating that he would set a motion to compel on July 11, 2014, if he did not hear back from Mr. Keiley.  (Keiley Decl. at ¶ 9 and Exhibit G.)  Additional emails between counsel for both sides followed, with ADC’s counsel requesting that the parties speak to resolve their issues rather than resort to motion practice, and Mr. Mason canceling two scheduled depositions until after the motion to compel was resolved.  (Id., Exhibits G, H and I.)  Mr. Keiley’s final email that day advised Michel’s counsel that ADC did not have any further documents to produce.  (Id.)

On May 30, 2014, Mr. Mason sent a final meet and confer letter to opposing counsel reiterating his and his client’s belief that ADC were hiding documents and stating that a motion to compel would be filed.  (Keiley Decl. at ¶ 10 and Exhibit I.)  Later that day, Mr. Keiley responded, advising opposing counsel that there was no specific information in Mr. Mason’s letter which would allow him to resolve the dispute and avoid a motion to compel, i.e., no description of what the “missing bate-stamped documents” referenced in the letter were.  (Keiley Decl. at ¶ 10 and Exhibit K.)  Mr. Keiley further stated that his client had produced all responsive documents in its possession, custody or control.  (Id.)

On June 4, 2014, Mr. Mason sent an email to Mr. Keiley affirming that a motion to compel had been set and to let him and his client know if they had a “change in attitude on securing documents.”  (Keiley Decl. at ¶ 11 and Exhibit L.)  Mr. Keiley immediately replied, again requesting that opposing counsel identify the specific document requests at issue to enable him to informally resolve the matter.  (Id.)

On June 9, 2014, Mr. Mason sent Mr. Keiley a letter advising him that the motion was no longer a motion to compel but a motion to address misuses of discovery pursuant to Code of Civil Procedure section 2013.010 and sanctions pursuant to Code of Civil Procedure section 2023.030.  (Mason Decl., Exhibit 11; Keiley Decl. at ¶ 12 and Exhibit M.)

On June 12, 2014, Michel filed the instant “Motion Re: Misuse of the Discovery Process and Sanctions.”  On June 26, 2014, ADC filed its opposition.  On July 3, 2014, Michel filed his reply.

1. III.   Discussion
2. A.     Motion Re: Misuse of Discovery Process and Sanctions

Michel moves for the imposition of monetary sanctions against ADC and their attorneys in the amount of $18,650 pursuant to Code of Civil Procedure section 2023.030 for misuse of the discovery process.

“A court, after notice and opportunity for a hearing, may impose sanctions on a party, person, or attorney for misuse of the discovery process.  (§ 2023.030.)”  (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4^th 1403, 1422.)  “Misuses of the discovery process include, among other things, failing to respond or to submit to an authorized method; making, without substantial justification, an unmeritorious object to discovery; making an evasive response to discovery; and disobeying a court order to provide discovery. (§ 2023.010.)”  (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 168 Cal.App.4^th 1403, 1422.)

Here, the thrust of Michel’s motion is that ADC willfully concealed responsive documents and provided evasive objections and responses to form interrogatories (“FI”) and document requests (“RPD”) in order to deceive him.  Michel identifies ADC’s responses to FI Nos. 12.1, 12.2, 12.3, 12.4, 12.5 and 12.6 and RPD Nos. 7, 9, 12, 17, 21 and 24 as the misuse of discovery upon which the instant motion is based, asserting that ADC purposefully refused to identify all known relevant parties and witnesses as requested by the FI and withheld 651 ADC bates-stamped documents which were responsive to the RPD.

As an initial matter, the Court notes that despite the exchange of numerous meet and confer correspondence, Michel never identified RPD Nos. 9, 12, 15, 21 and 24 as problematic, yet now seeks sanctions based on ADC’s responses and conduct relative to these requests.  The Court also notes that none of Michel’s (i.e., Mr. Mason’s) correspondence ever provided ADC and its counsel with any specific indication as to the documents or information he was seeking and believed them to be concealing.  Had Michel filed a motion to compel further responses, as he initially indicated he would, this conduct would hardly be characterized as a “reasonable and good faith” attempt to informally resolve the issues before the parties as required and thus would likely have compelled denial of such a motion for failure to comply with the meet and confer requirement.  Here, Michel does not move to compel responses, and simply moves for sanctions instead, without appearing to make a sincere effort to informally resolve his concerns with ACD.  The Court finds Michel’s conduct concerning.  Nevertheless, as there is no specific meet and confer requirement for a motion that seeks only sanctions and not further responses, Michel’s conduct does not by itself compel denial of his motion.

That said, ultimately, for all of Michel’s protestations to the contrary, the record before the Court does not reflect serious misuse of the discovery process by ADC.  ADC provides a declaration from its counsel and its president, Lorenzo Rios, affirming that all responsive documents have been provided and that the responses to the requests at issue (barring RPD No. 7, which ADC acknowledges contained an erroneous response) are appropriate and accurate.  Michel does not demonstrate to the contrary.  ADC further affirms that it does not have copies of the bates-stamped documents that Michel insists have been concealed from him that he ultimately obtained from Travelers’ counsel, with Rios noting that ADC never bates-stamped any documents in the first place.  (See Declaration of Lorenzo Rios in Support of Opposition to Motion Re: Misuse of Discovery Process (“Rios Decl.”) at ¶¶ 2, 3.)  Additionally, ADC demonstrates that because it was not a party to the lawsuit between Michel and Travelers, it did not have a complete transcript of Jason DuBose’s deposition, including all exhibits attached thereto.  (Rios Decl. at ¶ 5.)  In sum, there is simply no showing of improper conduct by ADC or its counsel relative to Michel’s discovery requests that would warrant the imposition of monetary sanctions.  Consequently, Michel’s motion is denied.

1. IV.  Conclusion and Order

Michel’s motion for monetary sanctions for misuse of the discovery process is DENIED.