Case Number: GC044440 Hearing Date: May 16, 2014 Dept: NCE

Motion to compel further responses to defendants Witkin & Neal’s Request for Production to plaintiff Afshan Multani, Set One and Defendants Witkin & Neal’s Request for Production to plaintiff Rahim Multani, Set One is moot in light of the service of further responses after the filing of this motion. Monetary sanctions sought by each side are denied. Plaintiffs have failed to establish entitlement to sanctions and defendants do not adequately comply with CCP section 2023.040 (requiring that a sanction request “shall be … accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.”) There is no discussion of the amount of time spent or the hourly rate charged.

[N.B. The court has briefly reviewed the further responses and encourages plaintiffs on further meet and confer to provide responses which fully comply with CCP sections 2025.210 and 2025.220.]

Motion of defendants to compel further deposition of Rahim Multani is granted. Plaintiff shall be produced to testify concerning any documents produced in the further responses, as well as the issue of the written instructions of letter allegedly given to the Association concerning where notices affecting condominium issues were to be sent to Mr. Multani. Request for sanctions is denied.

Motion of plaintiffs Afshan and Rahim Multani to strike defendants’ motion for summary judgment is denied. Plaintiffs have failed to meet their burden to establish that the pending summary judgment motion is based on issues asserted in a prior unsuccessful summary judgment motion. Instead, plaintiffs simply argue that “the table of contents for each of the two summary judgment motions are virtually identical, and they raise nearly the same issues challenging the remaining causes of action.” That is wholly inadequate to prove moving plaintiff’s premise. Plaintiffs fail to submit to the court both tables of contents, or both sets of summary judgment papers, to even permit the court to do the analysis. To the extent plaintiff uses the qualifiers “virtually” identical and “nearly” the same issues, it is an apparent concession the issues are not identical or the same, just almost so. Moreover, the opposition argues that the new motion raises new issues based on facts occurring since the determination of the original motion, and is not entirely the same motion. The court declines to read both motions on its own initiative to determine whether the arguments are the same.

The motion is denied, however, without prejudice to making arguments in the opposition papers that certain of the issues, or even all of the issues, are identical to those asserted in the prior motion and do not raise new facts or circumstances or a change of law.

Request of plaintiffs for sanctions is denied for failure to establish a violation of CCP section 1008 and for failure to comply with the procedural requirements of CCP section 128.7.

Request for a continuance of the hearing on the motion for summary judgment is denied. Plaintiffs have failed to satisfy the requirements of CCP section 437c(h), which provides that “[i]f it appears from the affidavits submitted in opposition to a motion for summary judgment … that facts essential to justify the opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just.” Here, the declaration submitted in support of the continuance fails to state what facts essential to an opposition may exist but cannot be presented and how they are essential to opposing the motion. The court is not persuaded that plaintiffs could not have obtained essential facts in the 75 day notice period of the motion with appropriate diligence. See Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254. Plaintiff indicates depositions which have not yet been conducted were noticed in February and no attempt has been made to seek the court’s assistance in compelling those depositions. Moreover, it is not clear to the court why such discovery is even necessary, given plaintiffs’ position that this summary judgment motion is identical to the prior summary judgment motion and presumably the discovery should have been already done for that prior motion.