LVNV Funding, LLC v. Fareed Sepehry-Fard		CASE NO. 112CV238367
DATE: 25 April 2014	TIME: 9:00	LINE NUMBER: 13

This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.882.6856 and the opposing party no later than 4:00 PM Thursday 24 April 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 25 April 2014, the motion of defendant and cross-complainant Fareed Sepehry-Fard (“Defendant”) to compel further responses to interrogatories and requests for production of documents and for an award of monetary sanctions was argued and submitted. Plaintiff and cross-defendant LVNV Funding, LLC (“Plaintiff”) filed a formal opposition to the motion.

Statement of Facts

On December 24, 2012, Plaintiff, as assignee of Citibank, filed a complaint against Defendant alleging a single common count for indebtedness in the sum of $18,540.33.  The alleged indebtedness arises out of an unpaid credit card balance.

On January 30, 2013, Defendant filed a cross-complaint asserting what he identifies as a “third” cause of action for “quasi contract” and a “fourth” cause of action for “intentional tort.”  That same day, Defendant filed an answer to Plaintiff’s complaint and an attachment to the answer labeled “Attachment 4.”  In Attachment 4, Defendant ostensibly asserts eight causes of action and/or affirmative defenses, which he identifies as follows: (1) declaratory relief; (2) negligence; (3) quasi contract; (4) violation of 15 U.S.C. section 1692, et seq.; (5) violation of Business and Professions Code section 17200, et seq.; (6) accounting; (7) violation of Code of Civil Procedure section 367; and (8) violation of Title 42 sections 1983 Civil Action for Deprivation of Rights and 1985 Conspiracy to Interfere with Civil Rights.

On 17 September 2013, the Court sustained Plaintiff’s demurrer to the cross-complaint in part with leave to amend and Defendant subsequently filed an amended cross-complaint on 20 September 2013.

Discovery Dispute

On 27 January 2014, Defendant served Plaintiff with special interrogatories (“SI”)[1], requests for production of documents (“RPD”), and requests for admission (“RFA”). (See Opp’n., p. 2:21-22; Sepehry-Fard Dec., Ex A.) Plaintiff served timely responses to the SI, RPD, and RFA on 3 March 2014, which contained only objections. (See Opp’n., p. 2:22-24; Mohandesi Dec., Ex B.)

Defendant wrote to Plaintiff’s counsel via email on 7 March 2014, regarding Plaintiff’s responses to his RFA. (See Opp’n., p. 2:24-26; Mohandesi Dec., Ex. A, p. 9-10.)  He advised Plaintiff’s counsel that he believed that the objections to the RFA were without merit and requested further responses. (See id.) Additional emails were exchanged through 10 March 2014, and Plaintiff’s counsel agreed to provide supplemental responses to the RFA by 21 March 2014. (See Mohandesi Dec., Ex. A, p. 5-7.)

On 21 March 2014, Plaintiff provided verified supplemental responses to the RFA which, notwithstanding the objections made, provided a substantive response to each RFA. (See Sepehry-Fard Dec., Ex D.) Upon receipt of Plaintiff’s supplemental responses, Defendant again wrote to Plaintiff’s counsel via email and requested further responses to the RFA. (See Mohandesi Dec., Ex. A, p. 3-4.)  On 24 March 2014, Plaintiff’s counsel advised Defendant that additional responses would not be provided because the objections made to the RFA were appropriate and the substantive responses were code-compliant. (See Mohandesi Dec., Ex. A, p. 2-3.)

On 1 April 2014, Defendant filed the instant motion to compel further responses to the SI, RPD, and RFA, and for an award of sanctions.[2] Plaintiff filed opposition papers on 14 April 2014. Defendant filed identical reply papers on 17 April 2014, and again on 18 April 2014.[3]

I.             Defendant’s Motion to Compel Further Responses to Interrogatories and RPD

Defendant moves to compel further responses to SI, RPD, RFA. Plaintiff opposes the motion and argues that Defendant’s motion should be denied because it is procedurally defective and meritless.

A.           Notice of Motion

Plaintiff argues that Defendant’s motion is procedurally defective and should be denied because he failed to timely file the notice of motion and supporting papers.

Code of Civil Procedure section 1005, subdivision (b) states that all moving and supporting papers are to be filed and served 16 court days before the hearing. (See Cal. Rules of Court, rule 3.1300(d) [all moving and supporting papers must be served and filed in accordance with Code of Civil Procedure section 1005].) This time is extended by 5 calendar days if the notice of motion is served by mail.

The hearing on this discovery motion is scheduled for 25 April 2014. Based on that hearing date, Defendant’s motion and supporting papers were to be filed and served on or before 28 March 2014 because that date is 16 court days before the hearing, plus an additional 5 calendar days for mailing. However, Defendants papers were not served by mail until 1 April 2014. Thus, Defendant did not provide Plaintiff with sufficient notice of the motion.  (See Code of Civ. Proc., § 1005, subd. (b).)

Notwithstanding this defect, Plaintiff opposed the motion on its merits and it is well settled that a party’s opposition to the merits of a motion is a waiver of any defects in the sufficiency of the notice period. (See Carlton v. Quint (2000) 77 Cal. App. 4th 690, 697-699.) Furthermore, Plaintiff has not claimed that it did not have adequate time to prepare a response or was prejudiced by the inadequate notice period. (See id.) Under these circumstances, the Court concludes that Plaintiff waived any inadequate notice.

B.           Meet and Confer

Plaintiff argues that Defendant’s motion is procedurally defective and should be denied because he failed to adequately meet and confer prior to filing the instant motion.

A motion to compel a further response must be accompanied by a meet and confer declaration that sets forth facts showing a reasonable and good faith attempt at informal resolution of each issue presented. (See Code of Civ. Proc. §§ 2016.040, 2030.300, subd. (b), 2033.290, subd. (b), 2031.310, subd. (b)(2).) A serious effort at informal resolution requires that counsel “attempt to talk the matter over, compare their views, consult and deliberate.” (See Townsend v. Super. Ct. (1998) 61 Cal.App.4th 1431, 1433 [the informal resolution requirement is not fulfilled by bickering between counsel].) A determination as to whether attempts at informal resolution were adequate depends upon the particular circumstances and involves the exercise of discretion. (See Obregon v. Super. Ct. (1998) 67 Cal. App. 4th 424, 431.) The court has discretion to deny discovery absent sufficient efforts to meet and confer.  (See Townsend v. Super. Ct., supra, 61 Cal.App.4th at p. 1439; Obregon v. Super. Ct., supra, 67 Cal.App.4th at p. 434.)

Plaintiff asserts that Defendant has not initiated any meet and confer as to its responses to the SI or RPD. Defendant’s meet and confer emails to Plaintiff’s counsel, which began on 7 March 2014, address only Plaintiff’s responses to the RFA. At no time did Defendant indicate that Plaintiff’s responses to the SI or RPD were insufficient. The emails from Defendant contain no exchange or discussion about Plaintiff’s responses to Defendant’s SI or RPD. As a result, prior to the filing of the motion, Plaintiff did not receive notice that Defendant contended that its responses to the SI and RPD were insufficient or that Defendant would be filing a motion regarding the same. Thus, Defendant’s meet and confer efforts were inadequate with regard to the SI and RPD.

Plaintiff further argues that Defendant’s attempts to meet and confer regarding the RFA were not conducted in good faith. Plaintiff points out that Defendant’s emails to its counsel were riddled with threats. In his initial email to Plaintiff’s counsel on 7 March 2014, Defendant stated that he would sue Plaintiff’s counsel if Plaintiff did not provide further responses to the RFA within 10 days or if Plaintiff’s counsel did not withdraw his representation. (See Opp’n., p. 2:24-26; Mohandesi Dec., Ex. A, p. 9-10.) On 10 March 2014, Defendant stated that if Plaintiff’s counsel persisted in his representation of Plaintiff, he would sue Plaintiff’s counsel and seek additional damages. (See Mohandesi Dec., Ex. A, p. 5-7.) Finally, on 24 March 2014, Defendant threatened Plaintiff’s counsel with legal action if Plaintiff did not stipulate to a change of venue based upon his motion to disqualify the trial court judge (Hon. William J. Elfing). (See Mohandesi Dec., Ex. A, p. 2-4.)

Furthermore, after Defendant received Plaintiff’s supplemental responses to the RFA, he did not engage in any meaningful attempts at informal resolution. His emails largely addressed unrelated issues such as change of venue and/or disqualification of the trial judge. While Defendant argued in a conclusory manner that the supplemental responses were non-responsive, he did not explain why he believed they were not code-compliant or how they failed to respond to the RFA. Thus, Defendant’s meet and confer efforts with regard to the RFA were insufficient and not conducted in good faith.

Accordingly, Defendant’s motion to compel further responses is DENIED on this basis.

C.           Separate Statement

Plaintiff argues that Defendant’s motion is procedurally defective and should be denied because he failed to file a separate statement.

California Rules of Court, rule 3.1345(a) states that “[a]ny motion involving the content of a discovery request or the response to such a request must be accompanied by a separate statement.” (See Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 893 [failure to include separate statement required by the California Rules of Court justified the court’s denial of discovery motion].) The separate statement must contain the text of the discovery request, the text of the response, and a statement of the factual and legal reasons for compelling a further response for each matter in dispute. (See Cal. Rules of Court, rule 3.1345(c).)

Defendant has failed to submit a separate statement with his motion to compel further responses. As such, it is impossible for the Court to determine which discovery requests are at issue. Defendant failed to identify, by number or otherwise, the specific SI, RPD, and RFA for which he seeks to compel further responses. Similarly, Defendant does not provide the Court with the factual and legal reasons which support the motion to compel further responses for each SI, RPD, and RFA at issue. Instead, Defendant primarily argues in his motion that he is entitled to judgment in his favor and damages because Plaintiff has “been attempting to collect on an substantiated [sic] claim based on extortion and fraud.” (See Me. Ps & As., p. 5:24-25, 15:7-26.) Thus, the Court is unable to address the merits of the motion in the absence of a separate statement.

Accordingly, Defendant’s motion is DENIED on this basis.

II.            Defendant’s Request for Monetary Sanctions

Defendant requests monetary sanctions in the amount of $3,750.00 under Code of Civil Procedure sections 2030.300, subdivision (d), 2031.310, subdivision (j), 2031.320, subdivision (d) and 2033.290, subdivision (d).[4]

As a preliminary matter, Code of Civil Procedure section 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.” Here, Defendant’s notice of motion does not identify the person, party, or attorney against whom sanctions are sought. Thus, Defendant’s request for sanctions is not code-compliant.

In addition, Code of Civil Procedure section 2031.310, subdivision (j) is inapplicable because it addresses monetary sanctions sought in connection with a motion to compel compliance. Here Defendant seeks to compel further responses, not to compel compliance. Moreover, while Code of Civil Procedure sections 2030.300, subdivision (d), 2033.290, subdivision (d), and 2031.320, subdivision (d) address monetary sanctions in connection with a motion to compel further responses to SI, RFA, and RPD, Defendant’s motion was unsuccessful and he is therefore not entitled to an award of sanctions.

Accordingly, Defendant’s request for sanctions is DENIED.

Conclusion and Order

Defendant’s motion to compel further responses to SI, RFA, and RPD is DENIED.

Defendant’s request for sanctions is DENIED.