Case Number: BC505985 Hearing Date: April 18, 2014 Dept: 93

The Court hereby GRANTS Defendant Dragon Martial Arts Studio, Inc.’s (1) Motion to Compel Supplemental Responses to Form Interrogatories; (2) Motion to Compel Supplemental Responses to Special Interrogatories; and (3) Motion to Compel Supplemental Responses to Demand for Production; and Request for Sanctions (although, as detailed below, the court has decreased the amount requested). Plaintiff Jason Cohen is ordered to produce supplemental responses to the following:

Form Interrogatories #s 8.7 and 8.8;
Special Interrogatories #s 45, 46, 48, 49, 51 and 52, and
Requests for Production #s 2, 3 and 4
Verified responses are to be produced and sanctions paid in the amount of $1180.00 within 10 days of this order.

Discussion

At the Informal Discovery Conference, the parties stipulated that plaintiff would provide supplemental responses as follows: documentation and details that support his past and future loss of income/earnings (e.g. profit and loss statements, business tax returns). If no such documents exist, plaintiff is to so state in unequivocal language.
Form and Special Interrogatories

These interrogatories seek information regarding plaintiff’s total lost income, loss of future earnings, and how those amounts were calculated.

Plaintiff originally responded that he lost an estimated $300,000.00 in past earnings; in his supplemental response this figure increased to $400,000.00 to $600,000.00. Regarding the calculation of this number, he points to his response regarding loss of future earnings and hypothesizes what his earnings would have been based on earnings of $283,491.00 in 2012. This response is insufficient because it appears to be based on nothing more than plaintiff’s conjecture regarding his ability to earn more money over time instead of a calculation that specifically accounts for the cases he was working on and would have continued to work on but for the eye injury. Nor is there any explanation of what losses plaintiff might have incurred from the additional marketing efforts and growth of his practice, which should be part of the calculation of his net income.

With respect to lost future earnings, plaintiff provides an estimate of $350,000.00 in lost annual income based on the purportedly rapidly expanding and potentially unlimited growth of his law practice. He also mentions the number of cases referred to him from another attorney and contends that since the injury he has been forced to refer out cases, decline new clients and cannot undertake marketing or networking. Again, this response is too generalized and does not address how this claim is specifically calculated. There are numerous details that could and should be provided to demonstrate how the $350,000.00 figure was reached, such as his law practice’s case load before the accident as compared to after the accident, which of the cases referred to him he would have taken on but had to instead refer to other attorneys, the approximate value of those cases in terms of his earnings, how many cases he has referred out and their approximate value, how many new clients he has been forced to decline, and how that number translates to lost earnings.

Plaintiff offers no legal authority for his argument that he should not have to summarize his deposition testimony in responding to written discovery. If indeed plaintiff provided calculation of his lost earnings claims at his deposition, providing responses to the interrogatories at issue presumably be relatively easy to do. Furthermore, an argument could be made that plaintiff would be interested in serving written discovery responses that are not inconsistent with deposition testimony to minimize the opportunity for impeachment by defendant. For these reason, plaintiff is ordered to provide further responses to the above interrogatories.

Request for Production of Documents

The RFPs request documents that support plaintiff’s loss of income and future earnings claims. Plaintiff’s responses failed to include the profit and loss statements mentioned at his deposition. Oppo., Exh. B (“Cohen Depo.”), p. 352:5-9. In providing supplemental responses, plaintiff still has not produced these statements and provided only additional tax documents. Oppo., Ehx. A. Although plaintiff argues that these documents were already provided by his disability insurance carrier this is not a basis for declining to produce them himself. Dragon Martial Arts is entitled to the most current production of these documents from plaintiff; indeed he agreed to produce these in the stipulation reached at the IDC but still has not done so. The failure to produce these documents constitutes a violation of a court order. For these reasons, plaintiff is be ordered to produce further responses to Dragon Martial Arts’ RFPs.

Sanctions

Pursuant to CCP §§ 2030.300(d) and 2031.310(h) and based on the discussion herein, sanctions are appropriate. However, the amount requested is overstated. The motions are substantially similar given that the issues overlap and there will only be one hearing for all three motions. Hence, defendant’s request for $1810.00 per motion is a stretch. Plaintiff and/or plaintiff’s counsel is ordered to pay sanctions in the amount of $ 1180.00 (four hours for preparation of the motions and replies, one hour for the hearing, and filing fees) to defendant and/or defendant’s counsel of record within 10 days of the date of this order.
Moving party is ordered to give notice.