Case Name: Benjamin Greenberg, et al. v. Sofia University, FPC, et al.
Case No.: 2015-1-CV-287059

Factual and Procedural Background

This is an action for fraud and unfair business practices. Plaintiffs Benjamin Greenberg (“Greenberg”), Nathan Wright (“Wright”), Betsy Peterson, James Norwood, Joy Riach, Ruchi Patel, Beau Scott, and Korie Leigh (collectively, “Plaintiffs”) were students in the Psychology Doctoral Program (the “Program”) at defendant Sofia University (“Sofia”). Sofia represented that it had the financial and academic resources to ensure that Plaintiffs could timely complete the Program and qualify to be licensed psychologists in California. However, Plaintiffs were misled regarding the financial condition of Sofia. After securing Plaintiffs’ tuition payments, Sofia admitted that the Program would not be continued, that no “teach out” would be offered and strongly encouraged Plaintiffs to apply to other programs to complete their education. Thus, Plaintiffs have sustained damages including tuition and fees paid to Sofia, moving expenses, lost income, and tuition and fees paid to other educational institutions as a result of being unable to complete their education at the university.

On October 20, 2015, Plaintiffs filed a Complaint against defendants setting forth causes of action for: (1) violation of the Consumer Legal Remedies Act; (2) unfair business practices; (3) unfair business practices; (4) fraud; (5) breach of contract; (6) breach of contract (third party beneficiary); (7) negligence; (8) breach of covenant of good faith and fair dealing; and (9) imposition of constructive trust.

On November 12, 2015, Plaintiffs served a request for production of documents (set one) (“RPD”) on defendant Sofia and another set of RPD on defendant Institute of Transpersonal Psychology dba ITP/Sofia Foundation (sued as Sofia University aka Institute of Transpersonal Psychology, Institute of Transpersonal Psychology Foundation aka ITP Foundation) (“ITP”).

On November 20, 2015, plaintiff Greenberg served form interrogatories (set one) (“FI”) on Sofia and another set of FI on ITP.

On December 29, 2015, plaintiff Wright served FI on Sofia and another set of FI on ITP.

Following service of the discovery, Plaintiffs granted multiple extensions to defendants to provide responses and produce documents. Defendants were given a final extension to serve all discovery responses no later than February 12, 2016. On February 11, 2016, defense counsel advised Plaintiffs’ attorney that there was a “potential conflict of interest” that prevented the production of any discovery. When the conflict was not resolved by March 4, 2016, Plaintiffs’ attorney informed defense counsel that they would seek motions to compel the subject discovery.
The following motions are presently before the Court: (1) Plaintiffs’ motions to compel responses to RPD; (2) Greenberg’s motions to compel responses to FI; and (3) Wright’s motions to compel responses to FI. Plaintiffs also seek an award of monetary sanctions in conjunction with the motions. Defendants Sofia and ITP (collectively, “Defendants”) each filed oppositions to the motions. Plaintiffs filed reply papers.

Plaintiffs’ Motions to Compel Responses to RPD

Plaintiffs seek an order from the Court to compel Defendants to serve responses to RPD and produce all non-privileged responsive documents because no responses have been served.

Legal Standard

If a party to whom a demand for inspection is directed fails to serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction. (See Code Civ. Proc., § 2031.300.) A party that fails to serve a timely response to the discovery request waives “any objection” to the request, “including one based on privilege” or the protection of attorney work product. (See Code Civ. Proc., § 2031.300, subd. (a); Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403-404.) The trial court may relieve the party of its waiver, but that party must first demonstrate that (a) it subsequently served a response to the demand; (b) its response “is in substantial compliance” with the statutory provisions governing the form and content of the response; and (c) “[t]he party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.” (See Code Civ. Proc., § 2031.300, subd. (a)(1)-(2); Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants, supra, 148 Cal.App.4th at p. 404.)

“Unlike a motion to compel further responses, a motion to compel responses is not subject to a 45-day limit, and the propounding party does not have to demonstrate either good cause or that it satisfied a ‘meet and confer’ requirement.” (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants, supra, 148 Cal.App.4th at p. 404.)

Analysis

Here, Plaintiffs served Defendants with RPD and did not receive any responses by the February 12, 2016 deadline. Instead, Defendants served untimely RPD responses interposing objections with factual responses while producing approximately 3,000 pages of relevant, responsive documents on April 7, 2016. Defendants concede that their responses were untimely but argue that a delay was necessary to resolve an ethical conflict. Defendants claim that Plaintiffs were not prejudiced by the delay and that equity requires that they be relieved from any waiver of objections. However, a party cannot request relief from waiver of objections in opposition to a motion. Rather, as pointed out in the reply papers, Defendants are required to file a noticed motion in order to seek the requested relief. (See Code Civ. Proc., § 2031.300, subd. (a)(1)-(2).) Upon the filing of such motion, the Court will consider whether Defendants have met the requirements for relief from waiver of objections. Therefore, the motions to compel RPD responses are granted.

Greenberg’s Motions to Compel Responses to FI

Plaintiff Greenberg seeks an order from the Court to compel Defendants to serve FI responses because no responses have been served.

Legal Standard

If a party to whom interrogatories is directed fails to serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction. (See Code Civ. Proc., § 2030.290.) A party that fails to serve a timely response to the discovery request waives “any objection” to the request, “including one based on privilege” or the protection of attorney work product. (See Code Civ. Proc., § 2030.290, subd. (a); Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants, supra, 148 Cal.App.4th at pp. 403-404.) The trial court may relieve the party of its waiver, but that party must first demonstrate that (a) it subsequently served a response to the demand; (b) its response “is in substantial compliance” with the statutory provisions governing the form and content of the response; and (c) “[t]he party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.” (See Code Civ. Proc., § 2030.290, subd. (a)(1)-(2); Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants, supra, 148 Cal.App.4th at p. 404.)

Analysis

Here, plaintiff Greenberg served Defendants with FI and did not receive any responses by the February 12, 2016 deadline. Instead, Defendants served untimely FI responses interposing objections with factual responses on April 7, 2016. Again, Defendants concede that their FI responses were untimely but argue that a delay was necessary to resolve an ethical conflict. Defendants claim that Plaintiffs were not prejudiced by the delay and that equity requires that they be relieved from any waiver of objections. However, as stated above, Defendants are required to file a noticed motion in order to seek relief from waiver of objections. (See Code Civ. Proc., § 2030.290, subd. (a)(1)-(2).) Upon the filing of such motion, the Court will consider whether Defendants are entitled to the requested relief. Therefore, the motions to compel FI responses are granted.
Wright’s Motions to Compel Responses to FI

Plaintiff Wright seeks an order from the Court to compel Defendants to serve FI responses because no responses have been served. Defendants served Wright with untimely FI responses interposing objections with factual responses on April 7, 2016. As stated above, Defendants concede that their FI responses were untimely but argue that a delay was necessary to resolve an ethical conflict. Defendants claim that Plaintiffs were not prejudiced by the delay and that equity requires that they be relieved from any waiver of objections. However, as stated above, Defendants are required to file a noticed motion in order to seek relief from waiver of objections. (See Code Civ. Proc., § 2030.290, subd. (a)(1)-(2).) Upon the filing of such motion, the Court will consider whether Defendants are entitled to the requested relief. Therefore, the motions to compel FI responses are granted.

Plaintiffs’ Request for Monetary Sanctions

Plaintiffs request an award of monetary sanctions in conjunction with the motions to compel. The court shall impose a monetary sanction against any party, person, or attorney who makes or opposes a motion to compel a response to interrogatories or inspection demands, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc. § 2030.290, subd. (c) [interrogatories]; 2031.300, subd. (c) [inspection demands].)

Plaintiffs make a code-compliant request for monetary sanctions against Defendants in the amount of $9,276. Defendants were not substantially justified in opposing the motion. Plaintiffs’ counsel bills his time at $450 per hour. However, the requested amount appears to be excessive given the size and scope of the motions. Furthermore, the Court does not award anticipated expenses as it may become unnecessary for the parties to attend oral argument if both sides submit on the Court’s tentative order. (See Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551 [the court awards sanctions only for expenses actually incurred, not for anticipated expenses].) Thus, the Court will award $3,430.50 in sanctions based on time spent preparing the motions along with the filing fees and attorney charges for each motion.

Disposition

Plaintiffs’ motion to compel responses to RPD is GRANTED. Sofia shall serve a verified code-compliant response, without objections, to RPD and produce all non-privileged responsive documents within five calendar days of this Order. To the extent that any documents are withheld on the basis of privilege, Sofia shall include the appropriate privilege log.

Plaintiffs’ motion to compel responses to RPD is GRANTED. ITP shall serve a verified code-compliant response, without objections, to RPD and produce all non-privileged responsive documents within five calendar days of this Order. To the extent that any documents are withheld on the basis of privilege, ITP shall include the appropriate privilege log.

Greenberg’s motion to compel responses to FI is GRANTED. Sofia shall serve a verified code-compliant response, without objections, to FI within five calendar days of this Order.
Greenberg’s motion to compel responses to FI is GRANTED. ITP shall serve a verified code-compliant response, without objections, to FI within five calendar days of this Order.

Wright’s motion to compel responses to FI is GRANTED. Sofia shall serve a verified code-compliant response, without objections, to FI within five calendar days of this Order.

Wright’s motion to compel responses to FI is GRANTED. ITP shall serve a verified code-compliant response, without objections, to FI within five calendar days of this Order.

Plaintiffs’ request for monetary sanctions is GRANTED IN PART. Defendants shall pay $3,430.50 to Plaintiffs within five calendar days of this Order.