On 28 February 2014, the motion of Jeffrey Marth (“Plaintiff”) for a Default Judgment, Dismissal with Prejudice of the Cross-Complaint, and request for monetary sanctions was argued and submitted. John Zajac and Joseph Moran (“Defendants”) filed formal opposition to the motion and also requested monetary sanctions.

Plaintiff is reminded that all papers must comply with Rule of Court 3.1110(f).

Statement of Facts

On 1 March 2013, Plaintiff filed complaint against Defendant Zajac for breach of contract and fraud. Zajac filed an answer and cross-complained for fraud and fraud in the inducement.

On 31 March 2013, Plaintiff filed a First Amended complaint to correct name of the defendant to Zajac Motors, and add additional fraud claims against a new defendant, Joseph Moran, an investor of Zajac motors.

The initial CMC was continued given Plaintiff’s Motion for leave to amend, ultimately rescheduled for 23 July 2013. On 1 July 2013, Defendant’s Counsel at the time and Plaintiff agreed to hold a CMC by telephone conference 5 July 2013 via a dial-in number. Defendant agreed to this date even though counsel was on vacation. Plaintiff did not agree to any other week for a CMC, regardless of Defendant’s travel plans.

On 5 July 2013, at 7:30 AM, Defendant’s Counsel notified plaintiff of the dial in number for the conference call to take place at 10:00 AM (See Plaintiff Exhibit J). Defendant dialed into the conference call at the predetermined time and the Plaintiff was not on the line. Defendant emailed Plaintiff requesting he join the call, and waited ten minutes before terminating the call.

Plaintiff explained in their statement that they did not receive notice of the dial in due to a power outage the night before.

Defendant suggested as an alternative, to meet and confer via email, which Plaintiff refused.

Discovery was propounded in August 2013 and responses provided in October 2013, after Defendants granted Plaintiff numerous extensions. During the discovery process, Plaintiff became verbally aggressive and wrote abusive emails.

Plaintiff then improperly served Defendant via email on 28 January 2014 and had set a discovery hearing date for 28 February 2014, without conferring first with the other party. Defendant responded stating the improper service, and that they would be unavailable on 28 February 2014 date. Plaintiff refused to change the date and continued to harass the Defendant’s counsel via email.

Discovery Dispute

I. Defective Notice of Motion.

A moving party must give written notice of the motion, stating when the motion will be heard, what grounds upon which it will be made, and the papers, if any, upon which it is based. (Code Civ. Proc. §§ 1010, 1005.)

“A motion shall (1) identify the party or parties bringing the motion; (2) name the parties to whom it is addressed; (3) briefly state the basis for the motion and the relief sought; and (4) if a pleading is challenged, state the specific portion challenged.. . .” Rule of Court 3.1112(b).

A court may reject a motion because the notice is defective. (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1126-1127.)

Plaintiff’s failure to state the basis for the motion in any of the papers also triggers the potential violation of the statutory requirement that the notice must state in the first paragraph exactly what relief is sought and why. (Weil & Brown, California Practice Guide: Civil Procedure Before Trial (Rutter Group 2007) (“Weil & Brown”) at § 9:38 [citing CCP § 1010, CRC 3.1110(a); see People v. American Sur. Ins. Co. (1999) 75 Cal.App.4th 719, 726].) The Court cannot grant different relief, or relief on different grounds, than stated in the notice of motion. (Id. [citing People v. American Sur. Ins. Co., supra, 75 Cal.App.4th at 726; Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1124].)

Code of Civil Procedure, § 2023.040 states:

“A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.”

Plaintiff requests an award of monetary sanctions against Defendants pursuant to Code of Civil Procedure sections 2023.010, 2023.020, and 2023.030. These citations are inapplicable.

Section 2023.010 defines acts that constitute misuses of the discovery process, and does not itself set forth any provisions regarding the issuance of a monetary sanction. Next, section 2023.030 provides that sanctions may be imposed for misuses of the discovery process “[t]o the extent authorized by the chapter governing any particular discovery method or any other provision of this title.” As such, section 2023.030 does not provide an independent basis for an award of sanctions. Finally, although section 2023.020 authorizes an award of sanctions against a party or attorney for failure to satisfy a meet and confer obligation, Defendants did not have any such obligation in this matter. Thus, Plaintiff has not cited any appropriate legal basis for the imposition of sanctions.

II. Motion for Sanctions/Default Judgment

The format of the moving papers does not contain competent actual declarations. In fact, they do not contain much factual discussion at all.

The motion was not properly served under Code Civ. Proc. § 1010.6, which states electronic service is authorized only when parties agree to it.

Here, the Defendants did not agree to electronic service. This Court can deny the Plaintiff’s motion simply based on this procedural error.

California Rule of Court 3.113 (d)-(f) states that a Memorandum of Points and Authorities must include a table of contents, table of authorities, and opening summary. Pursuant to Rule 3.1113(g), “a memorandum that exceeds the rules must be filed and considered in the same manner as a late-filed paper.” Rule 3.1300(d) expressly states that the court has discretion to refuse to consider late filed papers.

Here, the Plaintiff did not include a table of contents and table of authorities. A declaration of exhibits is included, but incorrectly marked as indicated in Footnote 1. This Court can deny the Plaintiff’s motion based on this procedural error.

Local Rule of Court 7C states the moving party should obtain agreement of a moving date from all opposing parties.

Here, Plaintiff did not agree to a date that was acceptable to all parties. Defendant stated they would be in a deposition during this date, yet Plaintiff refused to accommodate, stating Defendant’s counsel is, “nothing more than a pathetic example of a grade school thug . . . .”

California Rule of Court 3.724 states the parties must meet and confer within 30 calendar days before the date of the initial management conference.

Here, the parties agreed to a meet and confer conference on July 5, 2013. Although this falls inside the 30-day window proscribed by Rule 3.724, it appears that both parties were in contact via email to set up this date. Furthermore, Defendant’s counsel was on vacation and still agreed to confer via telephone. Defendant’s counsel made a good faith effort to meet and confer. When Plaintiff did not join the conference call, no attempt was made by plaintiff to meet and confer via email. It does not appear that Plaintiff was prejudiced by a violation of the 30-day window.

Code Civ. Proc. § 2023.030 (d)(4) states the court may render a default judgment for the misuse of the discovery process.

The Defendant made a good faith attempt to meet and confer. This Court questions the Plaintiff’s allegation that they had a power outage ‘the night before’ the meet and confer, so were unable to receive an email message the next day. Moreover, the onus is on the Plaintiff to resolve their email message system, not the Defendant. This Court questions why the plaintiff did not attempt to check their email messages at a different location provided their alleged difficulty. Furthermore, in this current Internet Age, a power outage the night before generally does not affect an email system the morning after.

The motion is DENIED.

III. Motion for a Protective Order

Generally, a motion for a protective order is used to ask the Court to modify, prohibit, or limit discovery procedures to protect a party from excessive or unnecessary burden. Code Civ. Proc. § 2025.420 (b).

Here, Interrogatories were requested in August 2013, and both parties provided responses by October 2013. A trial date is set for 6 March 2014. Discovery for this proceeding has been completed, and there is no need to modify or limit procedures.

The motion is DENIED.

IV. Plaintiff’s Motion for Monetary Sanctions

An attorney litigating in propria persona pays no such compensation. Trope v. Katz (1995) 11 Cal. 4th 274, 280. A similar rule, with some exception, applies to non-attorney litigants who represent themselves. Jacobson v. Simmons Real Estate (1994) 23 Cal. App. 4th 1285. Thus, Plaintiff has shown an insufficient basis for an entitlement to sanctions.

The rule would be no different had Plaintiff been an attorney.

In Serrano v. Priest, the Court noted that the beginning of a determination of a reasonable attorney’s fee involves multiplying the time spend and reasonable hourly compensation of each attorney involved in the presentation of the case. (See Serrano v. Priest (1977) 20 Cal.3d 25, 48-49.)

The court may impose a monetary sanction award against a party that is engaging in the misuse of the discovery process, or any attorney advising that conduct, or both to pay reasonable expenses including attorney’s fees. Code Civ. Proc. § 2023.030 (a).

Here, the Plaintiff did not calculate an hourly rate, or even the amount of time spent to determine a sanction able amount. Serrano v. Priest (1977) 20 Cal.3d at 48-49. Even if determined, monetary sanctions are not appropriate in this context, as Defendants have complied with the discovery process.

The motion is DENIED.

V. Defendant’s Request for Monetary Sanctions

The court may impose a monetary sanction award against a party that is engaging in the misuse of the discovery process, or any attorney advising that conduct, or both to pay reasonable expenses including attorney’s fees. Code Civ. Proc. § 2023.030 (a). Such misuse of the discovery process include: “ (b) using a discovery method in a manner that does not comply with its specified procedures; (c) employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense; (h) unsuccessfully making or opposing a motion to compel discovery without substantial justification. Code Civ. Proc. § 2023.010.

Here, Plaintiffs have misused the discovery process by improperly serving the Defendants, a refusal to meet and confer via email after they missed the telephone meet and confer conference, and submitting an improper motion for default judgment. Code Civ. Proc. § 2023.030(a). Additionally, Plaintiff has caused unwarranted annoyance and oppression with their antagonistic behavior seen in their emails and calls to Defendants’ counsel.

However, the Zajac Defendants failed to cite the correct authority for the imposition of sanctions as result of being required to oppose the unsuccessful motion for a protective order. That section is Code of Civil Procedure, § 2017.020(b) . The request of the Zajac Defendants is denied THAT.

VI. Conclusion

Plaintiff’s motions for Default Judgment, Dismissal with Prejudice of the Cross-Complaint, and request for monetary sanctions is DENIED. Defendant’s Motion for Monetary Sanctions is DENIED.

This Court will find that Plaintiff has been appropriately warned about the consequences of recording a telephone conversation or eavesdropping on a conversation without the knowledge or consent of the other party.