Muhn v. Omni Law Group		CASE NO. 112CV230687
DATE: 5 September 2014	TIME: 9:00	LINE NUMBER: 7

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 408.808.6856 and the opposing party no later than 4:00 PM Thursday 4 Spetember 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 5 September 2014, the motion of Defendant Trevor Zink, Esq.[1] for an order compelling Plaintiffs Mark Muhn and Muhn & Sons, Inc. (“Plaintiffs”) to respond to Defendant’s request for production of documents, set one, Defendant’s special interrogatories, set one, and Defendant’s form interrogatories-General, set one, and for monetary sanctions was argued and submitted.[2]

Defendants filed formal opposition to the motion.[3]

I.       Statement of Facts.

On or about July 9, 2009, Plaintiffs Mark Muhn (“Muhn”) and Muhn & Sons, Inc. (“MSI”) retained and employed Defendants Omni Law Group, LLP (“Omni”) and Trevor J. Zink (“Zink”) to represent Plaintiffs in general business matters including IRS and FTB audits.  Defendants Omni and Zink failed to exercise reasonable care and skill in undertaking to perform such legal services and failed to gather available evidence which would have absolved any liability alleged by the IRS/FTB.

On or about June 1, 2008, Plaintiffs Muhn and MSI retained and employed Defendants Just Gurr & Associates Accountancy Corporation (erroneously sued as Just, Gurr & Associates; hereafter, “JGA”) and Kevin Just (“Just”) to represent plaintiffs in general business matters including IRS and FTB audits.  Plaintiffs relied on JGA and Just’s skill and ability as accountants.  JGA and Just failed to exercise reasonable care and skill in undertaking to perform such [accounting] services and failed to gather available evidence which would have absolved any liability alleged by the IRS/FTB.  Had such evidence been presented to the IRS/FTB, there would not have been an assessment for unpaid taxes.

On August 20, 2012, Tiffs in G filed a complaint against Omni, Zink, JGA, and Just alleging causes of action for: (1) negligence [versus Omni/ Zink]; and (2) negligence [versus JGA/ Just]. On April 3, 2013, JGA and Just filed an answer to the Plaintiffs’ complaint. Also on April 3, 2013, Omni and Zink filed an answer to the complaint and also filed a cross-complaint against Muhn and MSI asserting a breach of contract.

II.      Discovery Dispute.

The foregoing discovery was served on 25 April 2014.

In the Judicial Council Form Interrogatories, only interrogatories indicated were 15.1 (denials and special or affirmative defenses) and 17.1 (all facts upon which any response to requests for admissions other than an unqualified admission are based.)

The special interrogatories ask Plaintiffs certain questions about documents that Plaintiffs produced in response to a document requests served by JGA.  A 2-inch-thick stack of records is attached to the special interrogatories Some of these records appeared to have a Bates stamp on them and most do not.

On 27 May 2014, Plaintiffs served an objection to the special interrogatories to the effect that it is overburdensome to require plaintiff to inspect the attached documents and compare those documents to documents previously produced to a different defendant.  Plaintiffs further object that the documents attached are unintelligible.

On 30 June 2014, counsel for Defendant wrote a “meet and confer” letter to counsel for Plaintiffs but a copy of the letter is not attached to the moving papers.

Moving papers were filed on 11 July 2014.  Opposition papers were filed on 29 August 2014.  The opposition papers states that responses to the three discovery devices above have been served and therefore this motion is moot.

Defendant served a reply brief on 29 August 2014.

III.     Analysis.

The opposition papers contest only the special interrogatories.  The opposition makes no argument for the untimeliness of the balance of the discovery.

A.  Mootness.

In Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408-409, the Court of Appeal recognized that, in exercise of its discretion and based on the circumstances of the particular case, the trial court is in the best position to determine whether action taken subsequent to the filing of a discovery motion renders that motion moot.

Since no responses were provided for this Court to review, this Court cannot determine whether they are indeed code-compliant responses.

The motion to compel Plaintiff to respond to Defendant’s request for production of documents, set one, Defendant’s special interrogatories, set one, and Defendant’s form interrogatories-General, set one is MOOT WITHOUT PREJUDICE to a motion to compel further responses.

         B.  Sanctions.

Plaintiff makes a request for monetary sanctions.

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.”  See Rule of Court 2.30.

“The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.”  Rule of Court 3.1348(a); Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal. App. 4th 390, 409.

In support of the request for sanctions, Defendant cites in his memorandum of points and authorities Code of Civil Procedure, §§ 2023.010 and 2023.030.

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.

“Section 2023.030 authorizes a court to impose the specified types of sanctions, “[t]o the extent authorized by the chapter governing any particular discovery method or any other provision of this title.” (Ibid.) This means that the statutes governing the particular discovery methods limit the permissible sanctions to those sanctions provided under the applicable governing statutes.”  (New Albertsons, Inc. v. Superior Court (Shanahan) (2008) 168 Cal.App.4th 1403, 1422.)  As such, section 2023.030 does not provide an independent basis for an award of sanctions and thus is not self-executing.  In other words, to invoke section 2023.030 as a basis for sanctions, the moving party must first be authorized to seek sanctions under the provisions in the Civil Discovery Act applicable to the discovery requests at issue.

Since the request for monetary sanctions is not supported by a memorandum of points and authorities with enabling sections, the request of Defendant for monetary sanctions is not code compliant and is DENIED.

IV.     Order.

The motion to compel Plaintiff to respond to Defendant’s request for production of documents, set one, Defendant’s special interrogatories, set one, and Defendant’s form interrogatories-General, set one is MOOT WITHOUT PREJUDICE to a motion to compel further responses.

The request of Defendant for monetary sanctions is DENIED.

 

 

________________­­­____________ DATED:

_________________________­­­________________________ HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara

 

[1] The notice of the motion designates only Trevor J. Zink as the moving party.

[2] Rule of Court 3.1345(d) states: “A motion concerning interrogatories, inspection demands, or admission requests must identify the interrogatories, demands, or requests by set and number.”

[3] “The failure to file a written opposition or to appear at a hearing or the voluntary provision of discovery shall not be deemed an admission that the motion was proper or that sanctions should be awarded.”  Rule of Court 3.1348(b).