Case Number: BC684506 Hearing Date: June 18, 2019 Dept: 26

Superior Court of California
County of Los Angeles
Department 26

Christopher zangara-payer,

Plaintiff,

v.

david payer et al.,

Defendants.

Case No.: BC684506

Hearing Date: 6/18/2019

[TENTATIVE] order RE:

motion to compel plaintiff’s further RESPONSES TO defendant’s REQUESTS FOR PRODUCTION OF DOCUMENTS, FOrm interrogatories, and request for admissions; motion for sanctions

BACKGROUND

Plaintiff Christopher Zangara-Payer (“Plaintiff”) is the nephew of defendant David Payer (“Defendant”). This action arises out of a dispute concerning ownership of real property located at 905 Dickson St., Marina Del Rey, CA. The property was owned by the Payer Family LLC. Plaintiff alleges that upon the death of Robin Payer (Plaintiff’s father), Plaintiff obtained a 50% ownership interest in the LLC. Plaintiff engaged in discussions with Defendant to either sell his interest to Defendant, or wind up the LLC and sell its property on the open market. Plaintiff alleges that Defendant refused to conclude negotiations and has occupied the property without paying market rent.

The complaint brings two claims for relief:

1. judicial dissolution pursuant to Corp. Code § 17707.02(a); and

2. breach of fiduciary duty.

DISCUSSION

Defendant now moves the court an order compelling further responses to the following:

1. First Set of Requests for Admissions;

2. First Set of Requests for Production of Documents;

3. First Set of Form Interrogatories 17.1.

Requests for Admission

Under CCP section 2033.290, on receipt of a response to requests for admissions, the party requesting admissions may move for an order compelling a further response if that party deems that either or both of the following apply:

(1) An answer to a particular request is evasive or incomplete.

(2) An objection to a particular request is without merit or too general.

(b) A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040.

As a preliminary matter, Defendant contends that Plaintiff has “not demonstrated any honest or earnest effort to meet and confer.” (Motion 12:19-20). Specifically, Defendant contends that Plaintiff provided no substantive response to Defendant’s May 6, 2019 meet-and-confer letter. (Rosemblat Decl. ¶ 5; Exh. 3).

Plaintiff opposes this argument by asserting that he responded to the meet-and-confer letter on May 7, 2019. (Godwin Decl. Exh. 4). Attached to the Godwin declaration is a May 8, 2019 email from Godwin to Rosemblat in which he asserts to have attempted calling Rosemblat on multiple occasions to no avail. (Id. Exh. 7). Also attached is a May 31, 2019, email from Godwin to Rosemblat substantively discussing the RFA at issue. (Id. Exh. 9).

The court finds that the parties engaged in a meet-and-confer, albeit an unfruitful and confrontational one.

Defendant argues that Plaintiff’s responses to Requests for Admission (“RFA”) 9-20, 23-54, 58-59, 61-63, and 65-66 are non-meritorious general objections, and as such, they should be deemed admitted pursuant to CCP § 2033.280(b).

On substantive grounds, Plaintiff opposes the motion on grounds that the subject RFAs relate to the procedural history of the 2006 Probate Proceeding, and thus, fall outside of the scope of discovery. Plaintiff contends that the RFAs are irrelevant because the 2007 Final Distribution Order is conclusive. Because no appeal was taken on the Stipulated Final Distribution Order, it is final, and Defendant’s arguments that RFAs questioning the proceedings are relevant is unavailing. (Opposition 11:4-8). However, Plaintiff does not provide authority or demonstrate why his res judicata argument renders any discovery into the probate action irrelevant or impermissible.

Defendant contends that upon death of Robin Payer, Defendant became the sole owner of the property because he was the surviving tenant with right of survivorship. (Motion 5:22-23; Rosemblat Decl. ¶ 8). Defendant contends that the language of the first page of the LLC’s operating agreement specified that the LLC was owned by Robin Payer and Defendant “as joint tenants with right of survivorship (Exhibit “B”).” (Reply 4:19-22). As such, Defendant argues that the RFAs are relevant because they request an admission to various statements concerning the disputed 2006 probate proceedings.

Plaintiff opposes this argument by citing to an admission made by Defendant that Plaintiff owned a 50% ownership interest in the LLC. (RJN Exh. 16, 17). The court takes judicial notice of the complaint and answer. However, the answer does not include an unqualified admission that Plaintiff owns 50% of the LLC, as Plaintiff contends. Instead, the answer reads that Defendant challenges as false the following paragraphs:

Plaintiff obtained interest through intestate secession but chain of title reflects forged deed by Robin Payer as set out in greater detail in affirmative defense and in cross complaint. Paragraph 7: Legal title may reflect 50% ownership by Defendant Payer; however, there is greater than 50% interest as reflected in the affirmative defenses; Paragraph 9: Operating agreement has been produced and available to Plaintiff during course of administration of estate of father of plaintiff, who first held an interest in the LLC

(Answer ¶ 3.b.)

Defendant replies that the probate order is not conclusive on issues such as the rights of people who do not get notice of the issues and rights being decided, and that the probate court did not verify ownership of the LLC (Defendant also notes that he has petitioned to reopen the probate case). Specifically, Defendant argues that had the probate court been provided with a copy of the LLC operating agreement, “there would have been nothing to probate”. (Reply 4:10-14). To illustrate the relevance of his RFAs, Defendant refers the court to RFA 9, which requests that Defendant admit that he “did not present an executed copy of the OPERATING AGREEMENT to the probate court throughout YOUR administration of the estate of Robin Payer . . .” (Reply 2:21-22).

Plaintiff is bringing claims of judicial dissolution and breach of fiduciary duty. Defendant’s RFAs are relevant to his defenses to this action, notably that Plaintiff cannot seek the dissolution of the LLC because Defendant is the 100% owner pursuant to the Operating Agreement. A party opposing discovery has the burden to justify objections in response to a motion filed to compel further responses. (Fairmont Ins. Co. v. Sup. Ct. (2000) 22 Cal.4th 245, 255.) Here, Plaintiff fails to justify his objections. Plaintiff’s argument that res judicata and the 2006 probate order render Defendant’s discovery requests irrelevant is unavailing. Plaintiff provides no authority to support his contention that Defendant may not serve discovery requests relating to a closed probate matter, or that a res judicata argument raised in a discovery opposition is grounds to deny a motion to compel RFAs. If Plaintiff seeks to raise the argument of res judicata, he can do so by appropriate means. Plaintiff has provided no grounds that this argument raised in a discovery opposition would deprive Defendant from inquiring into the probate proceedings altogether. Paragraph 16 of Plaintiff’s own complaint alleges that “Defendant Payer has refused, and continues to refuse, to carry on the business of Nominal Defendant Payer LLC in conformity with its operating agreement.”

Plaintiff’s general objections to the RFAs provide no meritorious objections, and Defendant is entitled to discovery which may allow Defendant to litigate the claims brought against him. Further, regardless whether the res judicata argument has merit, Plaintiff has not shown that such an argument bars RFAs inquiring into the procedural aspects of the probate case.

Plaintiff is ordered to serve code-compliant responses, without objections, to RFAs 9-20, 23-54, 58-59, 61-63, and 65-66 within 10 days.

Requests for Production of Documents

Defendant moves the court for an order compelling Plaintiff to produce documents responsive to Requests for Production (“RPD”) 4, 9-20, 23-54, 58-63, and 65, to which Defendant argues that Plaintiff provided only limited responses with general objections. Defendant contends that only limited responses, accompanied by the same general objections, were provided to RPDs 1, 2, 3, 5, 6, 7, 21, 22, 55, 56, and 64.

Defendant’s RPDs are derivative of Defendant’s RFAs. Each RPD requests that Plaintiff “[s]et forth all documents UPON WHICH YOU DENY Document Demand (First set) No. [number] propounded by defendant to YOU.”

Pursuant to CCP § 2031.310(b) “[a] motion under subdivision (a) shall comply with both of the following: (1) The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand . . .”

First, Defendant argues that the entirety of Plaintiff’s objections are identical, general, and without merit.

Second, Defendant shows good cause for his RPDs. Defendant’s answer to the complaint alleges that the “chain of title reflects [a] forged deed by Robin Payer,” and that “[l]egal title may reflect 50% ownership by Defendant Payer; however, there is greater than 50% interest as reflected in the affirmative defense.” (Answer ¶ 3.b.(1)). Finally, the answer alleges that the subject “[o]perating agreement has been produced and available to Plaintiff during course of administration of estate of father of plaintiff, who first held an interest in the LLC.” (Id.) The operating agreement was brought into issue by Plaintiff in his complaint: “Defendant Payer has refused, and continues to refuse, to carry on the business of Nominal Defendant Payer LLC in conformity with its operating agreement . . .” (Compl. ¶ 16).

Defendant contends that his RPDs may lead to the discovery of admissible evidence as to the ownership of the parties in the LLC, the chain of title, and Defendant’s claim that Plaintiff’s ownership arose from forgery. Furthermore, Defendant contends that neither this court nor the 2006 probate court “decreed what was the state of title,” and that “Plaintiff never presented any operating agreement even though the court, the county assessor and the court appraiser asked for it.” (Motion 9:3-4, 14-15).

Plaintiff’s opposition argues again that the probate action discovery referee requested a copy of the Operating Agreement in January 2007. Plaintiff further contends that Defendant never produced it. Plaintiff’s RJN of Defendant’s Supplement to Petition for Authorization to File Late Creditor’s Claim in LASC case BP099946 is granted. (RJN 4, p. 44, Exh. 2). The above-mentioned exhibit is a letter from Plaintiff’s counsel in the probate case, addressed to Defendant. Plaintiff contends that “[t]hroughout the entire 2006 Probate Proceeding, David Payer did not file a single document that either (1) attached an executed copy of the Company’s Operating Agreement or (2) disputed that Zangara-Payer was entitled to succeed to his father’s fifty-percent ownership interest in the Company.” Even if this were so, Plaintiff’s argument does not furnish a ground for denying Defendant’s request for this discovery.

In sum, Defendant has shown good cause for discovery in that ownership of the LLC is disputed by the parties, and he has filed a petition to reopen the 2006 probate case. Plaintiff cannot initiate an action against Defendant for judicial dissolution of property for which ownership is disputed, yet refuse to answer all RFAs pertaining to the action. As mentioned above, regardless whether the res judicata argument carries merit, Plaintiff has not shown that such an argument renders discovery requests pertaining to a relevant prior proceeding improper.

Plaintiff is ordered to produce code-compliant responses to the RPDs 4, 9-20, 23-54, 58-63, and 65, as well as RPDs 1, 2, 3, 5, 6, 7, 21, 22, 55, 56, and 64, without objections, within 10 days.

Form Interrogatories

Defendant moves the court for an order compelling Defendant to provide further responses to Form Interrogatory (“FI”) 17.1 as to RFAs 9-19, 20-54, 58-63, and 65-66, for which Defendant states that there is no admission or denial. Defendant moves for responses to FIs 1-8, 21, 22, 55-57, 60, and 64, for which Defendant contends that Plaintiff failed to provide the requested information.

FI 17.1 asks whether all responses to the RFAs are unqualified admissions, and if not, asks that Plaintiff provide the facts upon which Plaintiff’s response is based. As such, the FIs, like the RPDs, are derivative of the RFAs and rely on the same arguments and oppositions.

For the reasons discussed above, Plaintiff’s boilerplate objections are unavailing, and Defendant is entitled to conduct discovery relevant to his preparation of litigation in this action.

Plaintiff is ordered to serve code-compliant responses to FI 17.1 as to RFAs 9-19, 20-54, 58-63, and 65-66, as well as FIs 1-8, 21, 22, 55-57, 60, and 64, without objections, within 10 days.

Sanctions

Pursuant to CCP 2030.300(d), “the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, 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.”

Plaintiff’s counsel requests sanctions in the amount of $10,000 for 20 hours of attorney time at $500 an hour. (Godwin Decl. ¶ 17-18). Plaintiff’s request for sanctions is denied.

Defense counsel requests $2,800 for the failure to respond to the FIs, $3,500 for the RPDs, and $3,500 for the RFAs. Multiple discrepancies arise in Defense counsel’s requests. For example, Defense counsel requests $3,500 for ten hours of attorney’s fees at $450 an hour for the RFAs (which would arithmetically calculate to be $3,500/10=$350 per hour), but requests only $2,800 for the FIs for which counsel alleges that he spent 10.9 hours at $450 an hour (which would arithmetically calculate to be $4905). (Rosemblat Decl. ¶ 13). Thus, Defense counsel has mismatched his hours and sanction requests.

The court finds that $750 for 3 hours of attorney time at $250 an hour is reasonable for each of these discovery motions. Thus, Defendant’s request for sanctions is GRANTED in the total amount of $2,250 for all three motions. Plaintiff and Plaintiff’s counsel Thomas Godwin are jointly and severally ordered to pay sanctions totaling $2,250 to defendant by and through counsel within 30 days.

CONCLUSIONS AND ORDER

Defendant’s motion to compel further responses to the Requests for Admission, Requests for Production of Documents, and Form Interrogatory 17.1 is GRANTED. Plaintiff is ordered to serve code-compliant responses without objections within 10 days.

Defendant’s request for sanctions is GRANTED in the total amount of $2,250 for all three motions. Plaintiff and Plaintiff’s counsel Thomas Godwin are jointly and severally ordered to pay sanctions totaling $2,250 to defendant by and through counsel within 30 days. Plaintiff’s request for sanctions is denied.

DATED: June 18, 2019 ___________________________

Elaine Lu

Judge of the Superior Court