Sethi v. Mitsakos, et al.		CASE NO. 114CV258862
DATE: 22 August 2014	TIME: 9:00	LINE NUMBER: 21

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 21 August 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 22 August 2014, the motion of defendant Nicholas Mitsakos (“Mitsakos”) to compel further discovery responses and for monetary sanctions was argued and submitted.  Plaintiff Ravinder S. Sethi (“Sethi”) filed an opposition to Mitsakos’s motion in which he also requests monetary sanctions.

I.       Statement of Facts.

In 2001, Sethi and Mitsakos filed lawsuits against each other in the Superior Court of California.  (Sethi v. Kohli, et al. (Superior Court Santa Clara County, No. 1-01-CV-801293) (hereinafter, the “Underlying Action”) and Mitsakos v. Sethi (Superior Court Alameda County, No. 01-016787).)  They took their dispute to binding arbitration, and the arbitrator issued a default award against Mitsakos.  This Court (Hon. Mark H. Pierce) confirmed the arbitration award and entered judgment against Mitsakos in the Underlying Action on 3 December 2013.

On 10 January 2014, Sethi filed the present action against Mitsakos and defendant Arcadia International Investment Advisors, Inc. (“Arcadia,” [1] collectively with Mitsakos, “Defendants”), initially asserting a single cause of action for “creditor’s suit.”  On 29 May 2014, Sethi filed the operative first amended complaint (the “FAC”), asserting two causes of action for “creditor’s suit” and a third cause of action for fraudulent conveyance against both Defendants.

In his first two causes of action, Sethi alleges that Arcadia and other persons or entities presently unknown to him have possession or control of certain securities in which Mitsakos has an interest.  In his third cause of action, he further alleges that he obtained a lien on a bank account owned by Mitsakos that contained certain shares of common stock, but Mitsakos caused all of his personal securities holdings to be transferred to a brokerage account opened in Arcadia’s name, then closed that account and transferred its contents to a new and different brokerage account opened in the name of an unknown person or entity.  Sethi seeks an order applying this property to his judgment against Mitsakos in the Underlying Action.

On 27 January 2014 the Court (Hon. Carol W. Overton) granted in part Sethi’s request for injunctive relief, ordering that Mitsakos and his agents be enjoined from selling or transferring any interest of Mitsakos in certain securities and proceeds therefrom.

 

II.      Discovery Dispute.

On 28 May 2014, Mitsakos served his first set of requests for production of documents (the “RPD”s) and his first set of special interrogatories (the “SI”s) upon Sethi.  The 11 RPDs and and 31 SIs seek documents and information supporting specified allegations in the FAC.  On 2 July 2014, Sethi served responses to the RPDs and SIs consisting entirely of objections.

On 11 July 2014, Mitsakos’s counsel emailed Sethi’s counsel to ask him whether he was aware of any facts or documents responsive to the RPDs and SIs and, if so, to confirm that he would provide supplemental responses by 21 July 2014.  On 14 July 2014, Sethi’s counsel responded that he wanted to receive documents in response to certain third party subpoenas before serving any supplemental responses, because many of those documents would be responsive to the SIs and RPDs and it would be a waste of time to prepare two sets of supplemental responses.  The third party subpoenas had been the subject of a prior discovery motion, and the Court’s 10 July 2014 order granting that motion in part and denying it in part directed the subpoena recipients to respond by 30 July 2014.

Mitsakos’s counsel responded on 14 and 17 July 2014, stating that Sethi’s counsel could not dictate the order of discovery and must respond as to documents and information currently known to Sethi, or Mitsakos would file a motion to compel.  On 25 July, Sethi’s counsel responded, stating that Sethi would provide supplemental responses within one week of receiving documents in response to the subpoenas, which would be well before Mitsakos’s deadline to file a motion to compel, and would agree to extend Mitsakos’s deadline to move to compel as appropriate.  The same day, Sethi’s counsel responded that he had no choice but to move to compel.

On 29 July 2014, Mitsakos filed the present motion to compel, along with a request for judicial notice.  On 12 August 2014, Sethi filed papers in opposition to the motion to compel.

III.     Discussion.

Mitsakos moves to compel further responses to RPDs 1-11 and SIs 1-31.  Sethi opposes Mitsakos’s motion on the grounds that Mitsakos failed to adequately meet and confer prior to filing it, and the Court should exercise its discretion to delay the time for Sethi to respond to the RPDs and SIs until after the third party subpoena recipients comply with the Court’s 10 July 2014 order directing them to produce relevant documents.

A.  Legal Standard

A party propounding a request for production may move for an order compelling a further response if it deems that an objection in the response is without merit or too general.  (Code Civ. Proc. (“CCP”), § 2031.310, subd. (a)(3).)  The motion must set forth “specific facts showing good cause justifying the discovery sought by the demand.”  (CCP, § 2031.310, subd. (b)(1); Kirkland v. Superior Court (Guess? Inc.) (2002) 95 Cal.App.4th 92, 98.)  Good cause is established simply by a fact-specific showing of relevance.  (Kirkland v. Superior Court, supra,95 Cal.App.4that p. 98.)  If good cause is shown, the burden shifts to the responding party to justify any objections.  (Id.)

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.  (CCP, § 2030.300, subd. (a).)  The statute does not require any showing of good cause in support of a motion compelling further responses to interrogatories.  (See CCP, § 2030.300; see also Coy v. Superior Court (Wolcher) (1962) 58 Cal.2d 210, 220-221.)  The burden is on the responding party to justify any objections or failure to fully answer.  (Coy v. Superior Court supra, 58 Cal.2d at pp. 220-221.)

B.               Request for Judicial Notice.

In support of his motion, Mitsakos requests judicial notice of: (1) the complaint in Mitsakos v. Sethi (Superior Court Alameda County, No. 01-016787); (2) and (3) the complaint and cross-complaint in the Underlying Action; (4) and (5) the Court’s (Hon. Mark H. Pierce) orders confirming the arbitration award and entering judgment in the Underlying Action; (6) and (7) the original complaint in this action and the FAC; and (8) the Court’s 10 July 2014 order granting in part and denying in part Defendants’ motions to quash the third party subpoenas discussed above.  Judicial notice of these documents is appropriate given that they are court records relevant to the scope and procedural history of this action.  Mitsakos’s request is thus GRANTED in its entirety.  (Evid. Code, § 452, subd. (d); People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 [only relevant matters are subject to judicial notice].)

To the extent that the request is granted, however, the Court takes judicial notice of the existence of documents other than orders and judgments only, and not of the truth of statements contained therein.  (See Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564 [a court may take judicial notice of the existence of each document in a court file, but can only take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments].)

C.               Meet and Confer.

A motion to compel further responses 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.”  (CCP, §§ 2016.040, 2030.300, subd. (b); 2031.310, subd. (b)(2).)  A reasonable and good faith attempt at informal resolution entails something more than argument with opposing counsel.  (Townsend v. Superior Court (EMC Mortgage Co.) (1998) 61 Cal.App.4th 1431, 1435, 1439.)  It requires that the parties present the merits of their respective positions with candor, specificity, and support. (Id.) The level of effort at informal resolution that satisfies the “reasonable and good faith attempt” standard depends upon the circumstances of the case.  (Obregon v. Superior Court (Cimm’s, Inc.) (1998) 67 Cal.App.4th 424, 431.) The court has discretion to deny discovery absent efforts to meet and confer, but must consider whether a less drastic remedy is appropriate given the circumstances presented. (See Townsend v. Superior Court, supra, 61 Cal.App.4th at p. 1439; Obregon v. Superior Court, supra, 67 Cal.App.4th at p. 434.)

Sethi contends that Mitsakos’s counsel failed to adequately meet and confer because he would not wait “a few days” for supplemental responses so that documents responsive to the third party subpoenas and information reflected therein could be included with documents and information already in Sethi’s possession in a single set of responses.  However, it is obvious from the correspondence discussed above that the parties’ positions on this issue were clear to one another and they had reached an impasse.  While it might have been preferable for Mitsakos to delay filing this motion until closer to his deadline to do so, the Court notes that Sethi apparently still has not served supplemental responses, whether due to a delay in receiving documents in response to the subpoenas or for some other reason.  Given that Sethi would not agree to a firm deadline by which to provide supplemental responses, it was not unreasonable for Mitsakos to move to compel in order to ensure he would receive responses to the RPDs and SIs within a reasonable amount of time.

Consequently, the Court finds that Mitsakos satisfied his obligation to meet and confer.

D.               Timing of Discovery.

Sethi’s remaining argument in opposition to Mitsakos’s motion is that the Court should exercise its discretion to delay the time for Sethi to respond to the RPDs and SIs until after the third party subpoena recipients comply with the Court’s order.

As an initial matter, the Court ordered the subpoena recipients to comply by 30 July 2014, so this argument is likely moot.

Further, CCP section 2019.020 expressly states that “the methods of discovery may be used in any sequence, and the fact that a party is conducting discovery, whether by deposition or another method, shall not operate to delay the discovery of any other party.” (CCP, § 2019.020, subd. (a).) While the CCP provides that a party may move the court to establish the sequence and timing of discovery on a showing of good cause “for the convenience of [the] parties and . . . in the interests of justice” (CCP, § 2019.020, subd. (b)), Sethi did not file such a motion, but instead unilaterally elected to serve responses to the RPDs and SIs consisting solely of objections that he does not now defend.  The Court does not condone this strategy and declines to issue an order altering the timing of Sethi’s responses to the RPDs and SIs under the circumstances.

IV.     Analysis.

As discussed above, the SIs and RPDs seek documents and information supporting specified allegations in the FAC.  There is clearly good cause for this discovery given that it is directly tied to allegations in the operative complaint.  (See Burke v. Superior Court (Fidelity and Deposit Co. of Maryland) (1969) 71 Cal.2d 276, 283-285 [approving interrogatories seeking the facts, grounds, and evidence upon which a party relied in support of various contentions].)

Sethi’s objections, which he does not defend in his opposition papers, are overruled, with the exception of his objections to the RPDs based on the attorney-client privilege and work product doctrine, which are preserved.  (See Best Products, Inc. v. Superior Court (Granatelli Motorsports, Inc.) (2004) 119 Cal.App.4th 1181, 1188-1189 [holding that where a defendant asserted the attorney-client and work product privileges in a timely manner, albeit in a boilerplate fashion, the trial court erred in finding a waiver of the privileges].)

Mitsakos’s motion to compel is accordingly GRANTED as to all of the discovery requests at issue.

1.       Requests for Monetary Sanctions.

A.  Mitsakos’s Requests for Monetary Sanctions.

Mitsakos makes a code-compliant request for monetary sanctions against Sethi and his attorney pursuant to CCP sections 2030.300, subdivision (d), 2031.310, subdivision (h), and 2023.020.

Sections 2030.300, subdivision (d) and 2031.310, subdivision (h) provide that the court shall impose a monetary sanction against any party or attorney who unsuccessfully opposes a motion to compel further responses to interrogatories or requests for production, respectively, unless he or she acted with substantial justification or other circumstances make the imposition of the sanction unjust.  Here, Sethi’s opposition was unsuccessful, he and his counsel did not act with substantial justification, and no other circumstances make the imposition of a sanction unjust.  Accordingly, the Court will award a monetary sanction against Sethi and his counsel.[2]

Mitsakos’s counsel declares that he spent an hour attempting to meet and confer with Sethi’s counsel regarding this motion, but the Court does not award sanctions for time spent in meet and confer efforts.  Counsel further declares that his associate spent 10 hours on the present motion at an hourly rate of $295, his paralegal spent 1.8 hours on the motion at an hourly rate of $215, and he spent two hours supervising and working on the motion at an hourly rate of $460.  These hours spent and hourly rates are reasonable, and the Court will thus award $4,257 in monetary sanctions ((10 hours x $295/hr = $2,950) + (1.8 hours x $215/hr = $387) + (2 hours x $460/hr = $920) = $4,257).  The $60 filing fee is also compensable, but the $23.12 courier fee is not.

Accordingly, Mitsakos’s request for monetary sanctions is GRANTED in the amount of $4,317.

B.  Sethi’s Requests for Monetary Sanctions.

Sethi also requests monetary sanctions against Mitsakos and his counsel pursuant to CCP sections 2030.300, subdivision (d), 2031.310, subdivision (h), and 2023.020.[3]  Given that Mitsakos’s motion was successful, sanctions are not authorized by CCP sections 2030.300, subdivision (d) or 2031.310, subdivision (h).  Section 2023.020 provides that the court shall impose a monetary sanction against any party or attorney who fails to meet and confer as required, notwithstanding the outcome of a particular discovery motion.  However, as discussed above, Mitsakos’s meet and confer efforts were adequate here.

Consequently, Sethi’s request for monetary sanctions is DENIED.

VI.     Conclusion and Order.

Mitsakos’s request for judicial notice is GRANTED.

The motion to compel further responses is GRANTED.  Sethi shall serve verified, code-compliant further responses to RPDs 1-11 and SIs 1-31, without objections (except for attorney-client privilege and attorney work product doctrine, which have been preserved with respect to the RPDs) and produce all responsive documents in conformity with his responses to the RPDs within 20 calendar days of this Order.  To the extent that Sethi withholds documents based upon the attorney-client privilege and/or work product doctrine, he shall provide Mitsakos with a privilege log identifying the documents withheld and providing a factual basis for the privilege claimed.

Mitsakos’s request for monetary sanctions is GRANTED in the amount of $4,317.  Sethi and his counsel shall pay $4,317 to Mitsakos’s counsel within 20 calendar days of the filing of the Court’s order.

Therefore, Sethi’s request for monetary sanctions is DENIED.

________________­­­____________ DATED:

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

 

[1] Arcadia was sued as Arcadia International Investment Advisors, Inc., formerly known as Arcadia Holdings, Inc.  Mitsakos declares that these are names for the same entity, which are both currently in use.

[2] In light of this ruling, it is unnecessary to address Mitsakos’s request for monetary sanctions pursuant to CCP section 2023.020.

[3] Counsel for Sethi indicates in his papers that he is seeking $3555 in attorneys fees to oppose the motion, and anticipates incurring an additional $2765 for a total of 6,$320.  Declaration of Ted. C. Lindquist, page 7, ¶ 21.