Case Name: Grellas Shah LLP v. Pokarney
Case No.: 16-CV-292971

This is a breach of contract action initiated by plaintiff Grellas Shah LLP (“Plaintiff”) against Linda Pokarney (“Defendant”).

According to the Complaint, Plaintiff and Defendant entered into a written attorney-client agreement, providing that Plaintiff would legally represent Defendant in connection with “an action against Dan Carpenter, Northwestern Life, and certain officers and directors of Clear View Technologies.” (Complaint, pg. 1, 5, Ex. A.) Defendant failed to pay outstanding invoices in the amount of $124,477.23 in connection with the underlying case. On March 21, 2016, Plaintiff filed the Complaint and asserts a claim for breach of contract and common counts to recover the outstanding balance. (Ibid.)

On May 16, 2016, Defendant filed a Cross-Complaint against Plaintiff and Dhaivat Shah, her former counsel from the law firm. According to Defendant, Plaintiff overcharged her for legal services in excess of the estimate and performed legal work in connection with her case without her permission. (Cross-Complaint, pg. 3.) Defendant asserts two causes of action for breach of contract and common counts.

On May 20, 2016, Plaintiff served Form Interrogatories, Set One (“FI”) on Defendant. (Shah Decl., ¶ 4, Exhibit C.) On July 6, 2016, Plaintiff still had not yet received a response and her counsel contacted Defendant’s counsel to inquire as to whether she would respond without requiring it to file a motion to compel. (Id. at ¶ 5, Exhibit D.) Defendant served her response the following week on July 22, 2016. (Ibid., Exhibit E.)

On August 15, 2016, counsel for Plaintiff e-mailed Defendant’s attorney a meet and confer correspondence regarding her responses to FI Nos. 9.1, 15.1, 50.1, and 50.2. (Shah Decl., ¶ 7.) Defendant’s counsel apparently never responded, and Plaintiff’s counsel sent a second e-mail on August 22, 2016. (Id. at ¶ 8.) In response, Defendant’s counsel stated her client would serve amended responses to the FI. (Ibid.) On September 9, Plaintiff served her first amended responses. (Id. at ¶ 9, Exhibit H.) On October 17, Plaintiff’s counsel sent a meet and confer letter to Defendant’s attorney regarding the deficiencies in the first amended responses. (Id. at ¶ 10.) Plaintiff’s counsel and Defendant’s counsel sent several communications back and forth regarding the first amended responses and held a telephone conference on November 11, 2016 to discuss them. (Id. at ¶ 13-15.) On December 5, 2016, Defendant served second amended responses to the FI. (Id. at ¶ 17, Exhibit O.) According to Plaintiff, the second amended responses did not address any of the deficiencies discussed throughout the meet and confer process. (Id. at ¶ 18.)

Plaintiff presently moves to compel further responses to FI Nos. 9.1, 15.1, 50.1, and 50.2.

I. Legal Standard

A party may respond to an interrogatory by providing “[a]n answer containing the information sought to be discovered[,]” producing writings, or objecting. (Code Civ. Proc., § 2030.210, subd. (a).) Each answer must be “as complete and straightforward as the information reasonably available to the responding party permits.” (Code Civ. Proc., § 2030.220, subd. (a).) If it cannot be answered completely, the responding party must answer it to the extent possible. (Code Civ. Proc., § 2030.220, subd. (b).)

A party propounding interrogatories may move for an order compelling further responses if that party deems an answer is evasive or incomplete and/or an objection is without merit or too general. (Code Civ. Proc., § 2030.300, subd. (a).) In opposing a motion to compel further responses, the burden is on the responding party to justify any objections or failure to fully answer any interrogatory. (Coy v. Superior Court. (Wolcher) (1962) 58 Cal.2d 210, 220-221 (“Coy”).)

II. Meet and Confer

It appears as though Defendant questions whether Plaintiff’s meet and confer efforts were adequate. In his declaration, Defendant’s counsel states “[a]fter the Second Amended Response was served, Mr. Shah declined to meet and confer regarding its contents.” (McDaniel Decl., ¶ 12, Exhibit 11.) Defendant also asserts she would have amended her responses a third time to include more information regarding specific dates had Plaintiff further met and conferred with her prior to filing this motion. (Opp., p. 9: lis. 16-21.)

A motion to compel further responses to an interrogatory shall be accompanied by a meet and confer declaration “showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc., §§ 2016.040, 2030.300, subd. (b).) The rule requiring parties to meet and confer is designed “to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order” which, in turn, “will lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes.” (Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1435.) The burden of initiating the meet and confer process is on the moving party. (Volkswagenwerk Aktiengesellschaft v. Superior Court (1981) 122 Cal.App.3d 326, 330.)

The Court is inclined to find Plaintiff did not adequately meet and confer prior to filing this motion. Plaintiff and Defendant engaged in a lengthy meet and confer process in regard to the original response and first amended response to the FI. The meet and confer efforts began on
August 15, 2016 and appears to have continued until mid-December. (Shah Decl., ¶¶ 7-15.) It included multiple correspondences and a conference call regarding the deficiencies of Defendant’s responses. (Ibid.) The meet and confer initially appeared to be successful as Defendant served two amended responses to the FI without court intervention. (Ibid.) However, there is no indication of any meet and confer efforts with regard to the adequacy of the second amended responses. According to Plaintiff, the second amended responses did not address any of the deficiencies discussed throughout the meet and confer process. (Id. at ¶ 18.) Instead of addressing them with Defendant’s counsel, Plaintiff’s counsel e-mailed him and stated the responses were still insufficient and did not address the concerns he raised in their previous discussions in relation to the first amended responses. (McDaniels Decl., ¶ 11.) Plaintiff then filed the instant motion without ever addressing the substance of the second amended responses with Defendant. Plaintiff’s effort was inadequate as the burden to informally resolve the pending issues is on the moving party. (See Volkswagenwerk Aktiengesellschaft v. Superior Court, supra, 122 Cal.App.3d at p. 330.) Plaintiff should have addressed the purported deficiencies in the second amended responses prior to filing the instant motion in order to adequately meet and confer.

Despite Plaintiff’s inadequate meet and confer efforts, the Court will exercise its discretion and reach the motion on its merits.

III. Merits of the Motion

Defendant did not object to the FI and provided only substantive responses.

A. FI No. 9.1

FI No. 9.1 seeks Defendant to identify any damages she has allegedly suffered, and for each item of damage, to identify the nature, date, and amount of damage. In response, Defendant stated “[n]o other additional damages other than is claimed in the Cross-Complaint.” The damages include Plaintiff: (1) overcharging her for legal services by inflating bills with unnecessary work, thereby vastly exceeding the estimate; (2) continuing expensive and out of state discovery without her authorization and against her instructions; and (3) billing unconscionable rates and amounts. These damages were incurred between May 2013 and March 2016. As of October 2014, Plaintiff had already billed $100,000.00, and all bills thereafter were in excess of the amount it represented the billing would not exceed. Defendant further responded she “provided all available information from the sources within her control at this time but expects to perform additional fact investigation and obtain an expert opinion which may reveal additional responsive information. Which specific entries and amounts constitute overbillings will be the subject of expert opinion, disclosure of such expert opinions is premature at this time.” (Shah Decl., Exhibit O, p. 3: lis. 6-18.)

Plaintiff argues the response consists of only vague allegations and improper objections. Plaintiff additionally contends an expert is not required to respond to FI No. 9.1, as all it requests are existing facts supporting Defendant’s contention she was overbilled.

In opposition, Defendant asserts she has not yet retained an expert and thus cannot more thoroughly respond to the FI because she is merely a layperson and cannot determine which specific billing entries constitute excessive or unconscionable billing. Defendant avers she is not required to exchange expert witness information until 10 days after the initial trial date has been set or 70 days before the trial, neither of which have passed. With respect to the amount billed, Defendant claims the amount was set forth in the Cross-Complaint and was incorporated into her response by reference. Defendant also states Plaintiff “can calculate how much was over-billed and how much was paid after October 2014 from the invoices in their possession just as easily as [Defendant].” (Opp., p. 6: lis. 19-21.) She further argues that while she cannot identify the exact dates of overbilling, her response to FI No. 9.1 indicates it generally occurred between May 2013 and March 2016.

First, while the value of legal services is often proved by expert opinion, the Court is unaware of any legal authority requiring an expert opinion to determine the reasonableness of attorney’s fees. (See 1 Witkin, Cal. Evidence (4th ed. 2000) Opinion Evidence, § 64, p. 608; see also State By and Through State Public Works Bd. v. Westover Co. (1956) 140 Cal.App.2d 447, 456.) Thus, Defendant’s contention that she cannot further develop the factual basis for her claims without an expert is unpersuasive. Further, Plaintiff served the FI on May 20, 2016. (Shah Decl., ¶ 4, Exhibit C.) If Defendant knew she needed to better understand the information from sources in her control, she had ample time to do so in light of the lengthy meet and confer process and the fact she twice amended her response. (Shah Decl., ¶ 4, Exhibit C.)

Second, Defendant’s response is not as complete and straightforward as the information reasonably available to her permits. (See Code Civ. Proc., § 2030.220, subd. (a).) The responding party must furnish information available from sources in his or her control; a party “cannot plead ignorance to information which can be obtained from sources under his control.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783-784; see also Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (Rutter Group 2016) ¶ 8:1054.) The responding party must also make a reasonable effort to obtain whatever information is sought and, if he or she is unable to do so, must specify why the information is unavailable and what efforts were made to obtain it. (Deyo v. Kilbourne, supra, 84 Cal.App.3d at p. 782.) Defendant does not assert she lacks access to the billing records, but rather that she cannot independently discern which entries constitute overbilling without an expert. (Def. Sep. Stmnt., p. 8: lis. 4-12.) As she does not contest the documents are within her possession, it is reasonable to expect her to furnish all facts available from sources in her control to fully answer the interrogatory. If the billing records and other pertinent documents are not in her possession, she should clearly and affirmatively state so in her response. Additionally, she does not describe what efforts she made in order to fully respond to the interrogatory and merely responds that she cannot state what actions and billing entries represent the “unnecessary and duplicated work, [and] expensive out of state discovery,” and why the “rates and amounts are unconscionable.” (Def. Sep. Stmnt., p. 8: lis. 1-12.)

Third, Defendant’s response is not code-compliant because it does not fully provide the information sought. Defendant does not fully identify the amount of alleged damages or provide an estimated sum. Defendant’s argument she “incorporated” the Cross-Complaint into her response is misguided. It is not proper to respond to an interrogatory by referring to another document. (Deyo v. Kilbourne, supra, 84 Cal.App.3d at pp. 783-784.)

Fourth, turning to whether Defendant asserted improper objections, the Court does not consider the two subject statements to constitute objections. Defendant’s statement “[t]he facts constituting the overbillings are detailed in the billing records, which are equally within the possession of [Plaintiff]” is not an objection, but rather a statement of the availability of the evidence. (Shah Decl., Exhibit O.) Similarly, the other purported objection, “[w]hich specific entries and amounts constitute overbillings will be the subject of expert opinion, disclosure of such expert opinions is premature at this time[,]” is not an objection to the interrogatory. (Ibid.) This statement supports Defendant’s argument that she is presently unable to identify which billing entries support her claim for damages because she has not yet retained an expert and is not required to have done so.

In sum, a further response to FI No. 9.1 is warranted because Defendant’s response is not as complete and straightforward as the information reasonably available to her permits and does not state all facts from the sources of information available to her.

B. FI No. 15.1

FI No. 15.1 requests Defendant to identify each denial of a material allegation and each special or affirmative defense in the pleadings, and for each, to state the factual basis, state the names, addresses, and telephone numbers of the persons having knowledge of such facts, and identify all documents supporting the facts, and the identities of those in possession of the documents. Defendant served a lengthy response which stated the facts upon which she bases her affirmative defenses and claims. (Shah Decl., Exhibit O, pp. 6-18.) Defendant additionally listed four individuals who have knowledge of the facts and stated “emails between Grellas Shaw [sic] and Defendant/Cross-Complainant, Rob Cisneros, and Bob Deluca, which emails are in the possession of Plaintiff/Cross-Defendant. Billing records generated by Grellas Shaw [sic], which records are in the possession of Plaintiff/Cross-Defendant. The pleadings, notes, memoranda, and papers prepared and/or filed in the underlying litigation, which documents are in the possession of Plaintiff/Cross-Defendant.” (Id. at p. 17: li. 27-p. 18: li. 11.)

Plaintiff asserts the response contains only vague allegations and reads like a pleading rather than a list of “all facts” in response to the FI. Plaintiff additionally avers Defendant’s list of documents is not code-compliant because the documents are not identified with sufficient particularity for it to find them. In opposition, Defendant contends she has stated all facts possible without retaining an expert to analyze all billing entries. Defendant additionally argues she sufficiently identifies the documents responsive to the request.

Similar to FI No. 9.1, Plaintiff asserts this response is vague and does not contain all responsive facts. Specifically, Plaintiff argues the statement it “performed unnecessary legal work, duplicated legal work amongst themselves” and “continued billing excessive amounts” is insufficient to constitute “all facts.” (Pts. Sep. Stmnt., p. 21: lis. 8-16.) Plaintiff contends these statements are insufficient because Defendant does not explain what work was unnecessary or where the unnecessary work appeared on the invoices. Just as the discussion above in response to FI No. 9.1, Defendant’s argument that she does not presently have these facts because she has not retained an expert is unpersuasive. Defendant’s duty was to reasonably obtain the information in her possession, which she failed to do. (Deyo v. Kilbourne, supra, 84 Cal.App.3d at p. 782.)

Turning to the identification of the documents, Plaintiff argues unspecified “emails,” “[b]illing records,” and “pleadings, notes, memoranda, and papers” is not sufficiently particular for it to find them. If an interrogatory requires reference to a document, the responding party should identify it and summarize its contents so that the answer itself is fully response to the interrogatory. (Deyo v. Kilbourne, supra, 84 Cal.App.3d at pp. 783-784.) Defendant asserts her document descriptions are more detailed than those contained in Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, where the responding party referred to the “deposition,” the “pleading,” and “the financial statement.” (Id. at p. 784.) However, there is little difference between describing the responsive document as “the pleading” and, as Defendant did here, “the pleadings, notes, memoranda, and papers prepared and/or filed in the underlying litigation[.]” Further, the “financial statement” is equally as vague as Defendant’s description of “[b]illing records[.]” Thus, Defendant’s description of responsive documents is insufficient.

Therefore, a further response to FI No. 15.1 is warranted because Defendant’s response is not as complete and straightforward as the information reasonably available to her permits and does not adequately describe the documents responsive to the interrogatory.

C. FI No. 50.1
FI No. 50.1 has six subparts relating to the identification of documents and the identities of witnesses who possess them relating to each agreement alleged in the pleadings. Specifically, subpart (b) requests the responding party to “state each part of the agreement not in writing, the name, ADDRESS, and telephone number of each PERSON agreeing to that provision, and the date that part of the agreement was made[.]” Defendant responded by stating she engaged in ongoing discussions with Plaintiff and its attorneys and, in late April or early May 2013, it represented and agreed that the fees in the case would not exceed $100,000.00. She periodically instructed Plaintiff to stay within the budget and settle the case without incurring additional fees, and it agreed to do so. Subpart (c) demands the responding party to “identify all DOCUMENTS that evidence any part of the agreement not in writing, and for each state the name, ADDRESS, and telephone number of each PERSON who has the DOCUMENT[.]” In response, Defendant stated “[e]mails between Grellas Shaw [sic] and Defendant/Cross-Complainant, Rob Cisneros, and Bob Deluca, which emails are in the possession of Plaintiff/Cross-Defendant. Billing records generated by Grellas Shaw [sic], which records are in the possession of Plaintiff/Cross-Defendant. The pleadings, notes, memoranda, and papers prepared and/or filed in the underlying litigation, which documents are in the possession of Plaintiff/Cross-Defendant.” (Shah Decl., Exhibit O, p. 19: li. 13-p. 20: li. 11.)

Plaintiff asserts Defendant fails to provide the information provided by subpart (b). More particularly, Plaintiff contends Defendant cannot have fully stated all facts regarding any oral agreement because she stated the conversations took place “periodically” throughout three years of representation with three different attorneys, but does not list the dates or substance of any of these conversations. In opposition, Defendant “agrees that the response to Form Interrogatory No. 50.1 could be clarified” to “explain that after a reasonable investigation [Defendant] does not recall the specific dates of the other conversations in which [Plaintiff] agreed to stay within budget, to settle the case without incurring substantial additional fees, and to not bill for unnecessary and duplicative work.” (Def. Sep. Stmnt., p. 32: li. 25 – p. 33: li. 3.)

As to the deficient identification of documents, as discussed above, Defendant’s response is inadequate because she fails to identify the documents with sufficient particularity. (See Deyo v. Kilbourne, supra, 84 Cal.App.3d at pp. 783-784.)

In light of the above, a further response to FI No. 50.1 is warranted.

D. FI No. 50.2

FI No. 50.2 asks the responding party to state whether there was a breach of any agreement alleged in the pleading and, if so, to describe and provide the date of every act or omission that is the breach of the agreement. Defendant responded there was a breach because Plaintiff’s attorneys working on her case performed unnecessary legal work, duplicated work amongst themselves to generate billable time and failed to follow her instructions. (Shah Decl., Exhibit O, p. 20: li. 28-p. 21: li. 8.)

Plaintiff contends the response is general and conclusory, and contains improper objections. In opposition, Defendant avers she responded with all the information she presently has and needs to engage an expert to be able to provide more specific responses, and the objections are merely explanatory statements.

Plaintiff’s argument that the response does not completely answer the interrogatory is similar to its contention previously addressed in response to FI No. 9.1. Defendant’s argument that she has sufficiently responded because she has not yet retained an expert is misguided here as well. Defendant’s conclusory response is inadequate because she has sources of information to aid her in fully responding to the interrogatory.

With respect to the objection, as discussed above, the statement that “specific entries and amounts [which] constitute overbillings will be subject of expert opinion, disclosure of such expert opinions is premature at this time” is not an asserted objection. Additionally, the statement that the billing record is equally within the possession of Plaintiff is not an asserted objection.

For the foregoing reasons, a further response to FI No. 50.2 is warranted because Defendant failed to respond as complete and straightforward as the information reasonably available to her permits.

IV. Conclusion

Plaintiff’s motion to compel further responses to FI Nos. 9.1, 15.1, 50.1, and 50.2 is GRANTED. Defendant shall produce verified, code-compliant further responses, without objections, within 20 calendar days of this Order.