Case Number: EC060783    Hearing Date: July 25, 2014    Dept: NCB

6. EC060783
DAVID HANK KWONG et al v. ATLANTIC TIMES SQUARE II et al
Motion for:
1. Order compelling Defendant to serve further responses to Plaintiff’s requests for admission and form interrogatory 17.1; order imposing monetary sanctions on Defendant of $4,460.
2. Order compelling Defendant to serve further responses to Plaintiff’s form interrogatories; order imposing monetary sanctions on Defendant of $4,060.

This case arises from Plaintiffs’ claim that they suffered damages when the Defendants breached a provision in the lease agreement that barred the Defendants from leasing to competing restaurants that sell dumplings during the term of the Plaintiffs’ lease.
This hearing concerns the Plaintiff’s motions to compel further responses to form interrogatories and requests for admission.

Under CCP sections 2030.300 and 2033.290, a propounding party may move for an order compelling a further response if the propounding party deems that a response is evasive, incomplete, or contains unmerited objections. CCP sections 2030.300 and 2033.290 require that the motion be accompanied by a meet and confer declaration as defined under CCP section 2016.040. Under CCP section 2016.040, a meet and confer declaration shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.
The purpose of the meet and confer requirement is to encourage the parties to make a serious attempt to work out their differences informally so as to avoid the necessity for a formal order. Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal. App. 4th 1006, 1016. This process will lessen the burden on the Court and reduce the unnecessary expenditure of resources by litigants through the promotion of informal, extrajudicial resolution of discovery disputes. Id.

The pending motions concern issues in the Defendant’s second supplemental responses. A review of the declaration of Plaintiff’s attorney, Adam Rollins, reveals that there are no facts demonstrating that the Plaintiff made an attempt to meet and confer about his issues with the second supplemental responses. In his declaration, Mr. Rollins discusses meet and confer efforts regarding the initial responses and the first supplemental responses. However, after the Defendant served the second supplemental responses on June 27, 2014, Mr. Rollins offers no facts to demonstrate that he made any effort to meet and confer regarding the issues in the second supplemental responses, as required by CCP sections 2030.300 and 2033.290. Instead, the Plaintiff filed the pending motions without making the required effort to meet and confer.
The opposition presents evidence of this lack of a good faith attempt. The Defendant’s attorney, Austiag Parineh, states in paragraph 41 that he emailed the second supplemental responses at 6:55 on July 6, 2014. Mr. Parineh states in paragraph 42 that 24 minutes later, he received an email from Adam Rollins that indicated that while he has only had a few minutes to do a very cursory review of some of the responses, it is clear that many appear to be defective and that it would be best to allow the judge to resolve the issues. A copy of this email is attached as the second exhibit labeled “M” to his declaration. This is not an informal attempt to meet and confer. It does not even indicate that Adam Rollins had reviewed all of the responses. Further, by failing to make a good faith effort to meet and confer, it thwarts the above cited legal authority holding that the meet and confer requirement is designed to lessen the burden on the Court and reduce the unnecessary expenditure of resources by litigants.

In addition, a review of the responses reveals that several of the responses are substantially different. In order to review the responses, it is necessary to search through the Plaintiff’s motion because the attorney neglected to file a separate statement that was a separate document. Instead, a search of the Plaintiff’s motion reveals that the separate statement is attached as an untabbed exhibit to the motion.
Request for Admission 3 stated “Admit that YOU share employees with KSC.” The untabbed exhibit containing the separate statement indicates that the initial response to request for admission 3 was only objections. The first supplemental response contained six objections, a reference to additional “General Objections”, and a denial. The second supplemental response contains a single objection that the information is private and then a denial of the request for admission. Since there had been a substantial change in the response, it was necessary to meet and confer in an attempt to resolve the Plaintiff’s issue with this response.
Further, the Plaintiff’s arguments for a further response to request for admission 3 appear to have been drafted before the second supplemental response was received. For example, the Plaintiff began by arguing in their separate statement that there was nothing vague or ambiguous with respect to request for admission 3. This argument refers to an objection in the first supplemental response. However, the second supplemental response does not include an objection that the discovery item was vague or ambiguous.

Finally, the opposition papers include facts demonstrating that further efforts to meet and confer could have resolved these issues. For example, Austiag Parineh, the attorney for the Defendants, states in paragraph 43 that while reviewing the second supplemental response to form interrogatory 50.2, he realized he inadvertently forgot to provide supplemental information. Mr. Parineh states that he then served a third supplemental response for form interrogatory 17.1, request for admission 31 and 32, and form interrogatory 50.2 on July 11, 2013. A copy of the third supplemental response is attached as the second exhibit labeled “N” to his declaration. This indicates that the Defendant remained willing to resolve this dispute informally.

Accordingly, the Court denies the Plaintiff’s two motions because they do not include facts demonstrating an attempt to meet and confer regarding the issues in the second supplemental responses, as required under CCP section 2030.300 and 2033.290.

In its opposition, the Defendant requests that the Court impose monetary sanctions. Under CCP sections 2030.300 and 2033.290, the Court may impose monetary sanctions on a party that unsuccessfully files a motion to compel further responses. Accordingly, there are grounds to impose monetary sanctions on the Plaintiff and its attorney for the failure to meet and confer on the issues in the second supplemental responses before filing these motions. Defendant’s attorney, Austiag Parineh, provides facts his declarations to demonstrate that he expects to bill for 24.3 hours of time billed at $270 per hour. The Court reduces the number of hours to a total of 8 hours because this is a reasonable amount of time to spend on the opposition papers to these two motions, and reduces the hourly rate to $250. This results in $2,000 in monetary sanctions, or $1000 per motion.
Accordingly, the Court orders sanction against the Plaintiff in the amount of $1000 per motion payable in 30 days..