Vijay K. Lumba v. Michael H. Miroyan		CASE NO. 114CV261280
DATE: 5 September 2014	TIME: 9:00	LINE NUMBER: 18

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

On 5 September 2014, the Motion of Plaintiff and Cross-Defendant Vijay Lumba to Compel Further Responses to Document Requests and Production of Documents (Set One) and Monetary Sanctions from Defendant Michael H. Miroyan was argued and submitted.

Defendant and Cross Complainant Michael H. Miroyan filed formal opposition to the motion.

All parties are reminded that all papers must comply with Rule of Court 3.1110(f).[1]

Parties are reminded that under Rule of Court 3.1113(b): “a memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.”

1. Statement of Facts

This is an action to collect on an unpaid promissory note for $385,000 from Defendant Mr. Miroyan.

1. Discovery Dispute

On 15 May 2014, Plaintiff served Defendant with a set of 11 requests for inspection and production of documents. (Plaintiff’s Ex. 1.)  These requests asked for production of responsive documents by 20 June 2014. (Id.)

On 19 June 2014 Defendant served written objections to the requests via mail. (Plaintiff’s Ex. 2.)  That same day, attorney Gary Wesley served a second set of objections. (Plaintiff’s Ex. 4.)  These objections were titled “New Objections to Plaintiff Vijay K. Lumba’s First Set of Requests for Inspection and Production of Documents and Things.” (Id.)  These new objections provided one set of objections, ending with a statement that no documents would be produced. (Id.)   The new objection then provided one sentence for each request stating: “The foregoing objections are made and incorporated by reference.” (Id.)

On 20 June 2013, Plaintiff’s counsel wrote a letter to Gary Wesley Esq. in which they discussed potential means of resolving the production of documents issue without resorting to litigation. (Plaintiff’s Ex. 5.) Gary Wesley Esq. responded the same day with a letter expressing his distaste for opposing counsel and for their letter. (Plaintiff’s Ex. 6.)

On 23 June 2013, Plaintiff’s counsel wrote another meet and confer letter which was sent to both Mr. Westley Esq. and Mr. Miroyan.  (Plaintiff’s Ex. 7.)  This letter received similarly vitriolic responses from Mr. Wesley Esq. and no response from Mr. Miroyan. (Plaintiff’s Ex. 8).

On 24 June 2014, Mr. Miroyan’s deposition went forward as scheduled.  (Trombadore Decl. ¶ 9.)  However, Mr. Miroyan did not produce any documents at this deposition. (Id.) Mr. Miroyan stated at this deposition that he did not know whether he had responsive documents due to a house fire two years earlier. (Id.)  Mr. Trombadore took this to mean that Mr. Miroyan had not, at the time of his deposition, made any search for responsive documents. (Id.)  At this deposition, Mr. Miroyan was represented by Mr. Wesley Esq. (Id.)

On 30 June 2014, Mr. Wesley Esq. sent a letter to Plaintiff’s counsel that he would no longer be representing Mr. Miroyan regarding the requests for production. (Trombadore Decl. ¶ 10).

On 28 July 2014, Plaintiff’s counsel e-mailed a letter to Mr. Miroyan and Mr. Wesley Esq. regarding the requests for production.  (Plaintiff’s Ex. 11).  Mr. Miroyan, once again, did not respond to this letter. (Trombadore Decl. ¶ 12).

Mr. Miroyan has not produced any documents in response to the request for production at this point.  (Trombadore Decl. ¶ 16.)

On 4 August 2014, the present Motion to Compel Further Responses to Document Requests and Production of Documents (Set One) and Monetary Sanctions from Defendant Michael H. Miroyan was filed.

III.     Analysis     

1. Service

It is established that an “opposition to [a] motion on its merits constitutes a waiver of the defective notice of motion.”  (Alliance Bank v. Murray (1984) 161 Cal. App. 3d 137.)

Mr. Miroyan alleges that the Plaintiff’s proof of service is insufficient as the documents were signed before service.  However, Mr. Miroyan has waived his objections based on defective notice by filing his opposition on the merits to the motion.

1. Meet and Confer

A code-compliant attempt to meet and confer is an explicit prerequisite in many situations, including compelling further responses to inspection of documents.   (Code Civ. Proc. § 2031.310(b); Rule of Court 3.1345(a)(3).)  Under California Code of Civil Procedure § 2016.040, “a meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.”  The failure to attempt to meet and confer where required is an explicitly named misuse of the discovery process. (See Code Civ. Pro. § 2023.010(i)).

The exhibits provided by the Plaintiff include numerous e-mails and letters which express a desire to work with the Defendant in reaching a solution without resorting to litigation.  These letters have been responded to with responses containing notably vitriolic sentiment.

The Plaintiff has met their meet and confer requirements for this motion.

1. Motion to Compel Further Production of Documents

Code of Civil Procedure sections 2031.210, 2031.220, 2031.230, 2031.420, and 2031.280 address what constitutes a code-complaint response.

In the first paragraph of the response immediately below the title of the case, there shall appear the identity of the responding party, the set number, and the identity of the demanding party. (See Code Civ. Proc., § 2031.210(b).) Each statement of compliance, each representation, and each objection in the response shall bear the same number and be in the same sequence as the corresponding item or category in the demand, but the text of that item or category need not be repeated. (See Code Civ. Proc., § 2031.210(c).) Code of Civil Procedure, § 2031.210(a) gives the responding party three options of responses. “The party to whom an inspection demand has been directed shall respond separately to each item or category of item by any of the following:

(1) A statement that the party will comply with the particular demand for inspection and any related activities

“A statement that the party to whom an inspection demand has been directed will comply with the particular demand shall state that the production, inspection, and related activity demanded will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.” (Code Civ. Proc., § 2031.220.)

(2) A representation that the party lacks the ability to comply with the demand for inspection of a particular item or category of item.

“A representation of inability to comply with the particular demand for inspection shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.” (Code Civ. Proc. § 2031.230.)

(3) An objection to the particular demand.

“(a) If only part of an item or category of item in an inspection demand is objectionable, the response shall contain a statement of compliance, or a representation of inability to comply with respect to the remainder of that item or category. (b) If the responding party objects to the demand for inspection of an item or category of item, the response shall do both of the following: (1) Identify with particularity any document, tangible thing, or land falling within any category of item in the demand to which an objection is being made. (2) Set forth clearly the extent of, and the specific ground for, the objection. If an objection is based on a claim of privilege, the particular privilege invoked shall be stated. If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted. (c)(1) If an objection is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log. (2) It is the intent of the Legislature to codify the concept of a privilege log as that term is used in California case law. Nothing in this subdivision shall be construed to constitute a substantive change in case law.” (Code Civ. Proc., § 20310.240.)

A party propounding a request for production of documents may move for an order compelling further responses if it deems that an objection in the response is without merit. (Code Civ. Proc., § 2031.310, subd. (a).) A motion for an order compelling further responses to the request for production of documents “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).) In order to establish good cause, the burden is on the moving party to show relevance to the subject matter and specific facts justifying the discovery. (See Glenfed Develop. Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117.) Once a showing of good cause is made, the burden shifts to the opposing party to justify his or her objections. (See Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.)

The Plaintiff meets the burden required by this motion through the arguments set forth in their memorandum and separate statement, showing good cause for each of the production requests by showing their relevance to the subject matter and specific facts justifying the discovery.

With the Plaintiff’s burden met, the burden shifts to the Defendant to justify his objections.   Defendant objects in boilerplate fashion, raising the same objections to every production request.  These objections include: documents not in possession, custody, or control; attorney-client privilege; unduly broad and vague; and service issues.  The service issues have been discussed above.  Plaintiff addresses the issue of documents not in possession by pointing out that they specifically agreed to limit production in every response to documents in Defendant’s possession.  In order to assert a claim of attorney-client privilege, Defendant would be required under Code of Civil Procedure § 2031.240(c)(1) to provide factual information in support of this claim.  The Defendant has not prepared a privilege log nor has he asserted any facts in support of the claimed attorney-client privilege in his objections.

Defendant raises an objection to the inclusion of instructions, such as the demand for a written statement explaining six matters with respect to each responsive document that has been lost or destroyed.  Defendant properly states that there is no statutory authority allowing the inclusion of instructions in a request for production of documents.  This lack of authority one way or another does not allow Plaintiff to invent their own authority.  Under Code of Civil Procedure § 2016.030, the parties could agree to modify discovery procedures via written stipulation.  However, that has not occurred here.  The instructions included at the beginning of the request for production of documents are not code-compliant.

In his objection to the motion, Defendant also renews his argument that the requests are unduly broad or vague.  He argues that the terms “relate,” “note,” and “communications” are insufficiently defined.  The Defendant speculates on situations where the language, taken to logical extremes, could apply to any number of documents.  However, a reasonable person, confining themselves to the definitions provided by the Plaintiff, could understand what is requested.  What’s more, what is requested is relevant to the case at hand.  This court does not consider the requests unduly broad or vague.  The definitions provided for relate, note, communication, and person are all sufficiently clear.

Accordingly, Plaintiff’s Motion to Compel Further Production of Documents is GRANTED in part and DENIED as to all instructions included in the production requests.  Defendant is to otherwise provide a code compliant response to each request within 20 days of the date of the filing of this Order.

1. 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 party’s motion must also state the applicable rule that has been violated. (Id.)

In determining the amount for monetary sanctions the calculation of a reasonable attorney’s fee involves multiplying the time spent 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 Plaintiff requests sanctions in the amount of $10,140.  The Plaintiff cites Code of Civil Procedure § 2031.300(c) (providing sanctions where a party opposes a motion to compel production of documents and fails) and § 2023.020 (providing sanctions where a party fails to meet and confer as required) in support of their request for monetary sanctions.  These code sections are both inapplicable to the present motion.  The first section is inapplicable because Code of Civil Procedure § 2031.300(c) deals with motions to compel production of documents instead of motions to compel further production of documents.  The appropriate section to cite would have been Code of Civil Procedure § 2031.310(h).

Code of Civil Procedure § 2023.020 is inapplicable as the Defendant is not required to seek to meet and confer on Plaintiff’s motion to compel further production of documents.  That burden rests with the party bringing the motion.  The failure to cite appropriate authority makes Plaintiff’s request for monetary sanctions non-code-compliant.

Plaintiff is also advised that 22 hours for a fairly routine motion   (at $430 and $325 per hour)  is not reasonable for routine discovery work.

Finally, Defendant was justified in objecting to the special instructions ly, Plaintiff’s request for monetary sanctions in the amount of $10,140 is DENIED.

 

IV.     Conclusion and Order

Plaintiff Vijay Lumba’s Motion to Compel Further Responses to Document Requests and Production of Documents (Set One) is GRANTED in part and DENIED as to all instructions included in the production request.   Defendant is to otherwise provide a code compliant response to each request within 20 days of the date of the filing of this Order.

Plaintiff Vijay Lumba’s request for monetary sanctions in the amount of $10,140 is DENIED.

 

 

________________­­­____________ DATED:

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

 

[1] “Each exhibit must be separated by a hard 81/2 x 11 sheet with hard paper or plastic tabs extending below the bottom of the page, bearing the exhibit designation. An index to exhibits must be provided. Pages from a single deposition and associated exhibits must be designated as a single exhibit.”