Case Number: BC529357 Hearing Date: April 17, 2014 Dept: 58

JUDGE ROLF M. TREU
DEPARTMENT 58
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Hearing Date: Thursday, April 17, 2014
Calendar No: 5
Case Name: E-Tail Network Inc. v. Sotoodeh
Case No.: BC529357
Motion: Motion to Compel Further Responses to Request for Production of Documents and Electronically Stored Information, Request for Admissions, and Special Interrogatories
Moving Party: Defendant Hossein Sotoodeh
Responding Party: Plaintiff E-Tail Network Inc.
Notice: OK

Tentative Ruling: Motion to compel further discovery responses are denied as moot. No sanctions are awarded.
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Background –
On 12/3/13, Plaintiff E-Tail Network Inc. filed this action against Defendant Hossein Sotoodeh arising out of the alleged failure to pay the balance due on a credit card account. Plaintiff asserts causes of action for (1) breach of contract, (2) money lent, (3) money had and received, (4) account stated, and (5) open book account. On 12/16/13, Sotoodeh, in propria persona, filed a cross-complaint against E-Tail and George Louis Cohn (E-Tail’s counsel) alleging violation of the federal and state Fair Debt Collection Practices Act.

Motion to Compel Further Responses –
Sotoodeh submits that he propounded requests for production of documents and electronically stored information, requests for admissions, and special interrogatories on 1/14/14 on E-Tail and Cohn. Sotoodeh Decl. ¶ 3, Ex. A. On 2/14/14, responses were provided that contained only objections. Id. ¶ 4, Ex. B. Sotoodeh mailed a meet and confer letter on 2/21/14 requesting supplemental responses by 3/5/14. Id. ¶ 5, Ex. C. On 3/6/14, Sotoodeh filed this motion to compel further responses having received no supplemental responses. See id. ¶ 6.

In opposition, E-Tail and Cohn submit that Cohn was required to fly to Portland, Oregon due to a family emergency (Cohn Decl. ¶ 2); that Sotoodeh was contacted on 2/13/14 to seek an extension to respond to discovery; and that Sotoodeh declined an extension but stated he would consider a mailed letter. Pulido Decl. ¶¶ 2-4. E-Tail and Cohn therefore quickly prepared objections. Pulido Decl. ¶ 5. Sotoodeh’s letter was received when Cohn was out of the office, and Cohn’s legal assistant responded that Cohn would return on 3/10/14. Pulido Decl. ¶ 7, Ex. 2. E-Tail and Cohn have subsequently lodged copies of their supplemental responses with the Court. Cohn Decl. ¶ 4.

The Court notes that E-Tail and Cohn argued that Sotoodeh’s motion was procedurally deficient because it did not include a notice of motion (CRC 3.1110(a) or a separate statement (CRC 3.1345(a)(1)-(3)). However, Sotoodeh’s combined the notice of motion and motion (Mot’n p. 1-2) which is permitted (CRC 3.1112(c)) and Sotoodeh subsequently filed a separate statement on 4/8/14. There has been no showing of prejudice, especially where it appears that E-Tail and Cohn admit that the objections were “quickly prepared” (Pulido Decl. ¶ 5) in contrast to the “over seven hours” spent preparing the supplemental responses (Cohn Decl. ¶ 4).

In light of the supplemental responses, the Court finds the motion to compel further discovery responses to be moot. Sotoodeh fails to offer any explanation why he did not agree to an extension as requested by E-Tail and Cohn. Notably, although Sotoodeh’s 2/21/14 letter appears to raise a dispute as to E-Tail and Cohn’s request for an extension, Sotoodeh failed to submit any declaration under penalty of perjury describing the conversation with Cohn’s legal assistant on 2/13/14. Therefore, the Court finds that an award of monetary sanctions would be unjust. See CCP §§ 2030.300(d), 2031.310(h), 2033.290(d).