Jafari, et al. v. Gillmor, et al. CASE NO. 113CV248067
DATE: 1 May 2014 TIME: 9:00 LINE NUMBER: 23
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 Wednesday 30 April 2014. Please specify the issue to be contested when calling the Court and counsel.

On 1 May 2014, the motion of plaintiffs Julia Jafari and Manssor Jafari Poshtkoohi (collectively “Plaintiffs”) to compel further responses to form interrogatories (“FI”), special interrogatories (“SI”), requests for admission (“RFA”), and requests for production of documents (“RPD”) and for monetary sanctions was argued and submitted. Defendants Lisa Gillmor and Gillmor Properties, LLC (collectively “Defendants”) filed a formal opposition to the motion in which they also request monetary sanctions.

All parties are reminded that all papers must comply with California Rules of Court, rule 3.1110(f).

Statement of Facts

This case involves claims for interference with prospective economic advantage and slander, and arises from actions taken following a settlement between the parties in a commercial rental dispute. Plaintiffs were formerly commercial tenants at a property located in Santa Clara and owned by Defendants. Plaintiffs operated a nightclub at the property. On 4 October 2011, two days after submitting notice of their intent to exercise their final five-year option to renew their lease, Plaintiffs were served with a no-fault “30 Day Notice of Termination of Tenancy” stating Defendants’ desire to sell the property as the reason for the termination. Plaintiffs subsequently filed suit against Defendants for breach of contract. Shortly thereafter, Defendants responded by filing an unlawful detainer action claiming that Plaintiffs had breached their lease by subletting the kitchen without Defendants’ knowledge or consent.

Four months after both actions had been filed, the parties agreed to a stipulated judgment for possession only, under the terms of which Defendants would waive all claims to rents and moneys owed and permit Plaintiffs to retain possession of the subject property, rent free, for an additional five months in exchange for Plaintiffs’ promise to dismiss the breach of contract action, withdraw the notice by which they exercised their final five-year option, and turn over possession on 1 August 2012. Under the terms of the parties’ agreement, once Plaintiffs relinquished possession of the property, Defendants would vacate the judgment and dismiss their case.

In April of 2012, Plaintiffs agreed to an amendment of the settlement which called for them to vacate a month earlier in exchange for $50,000. Plaintiffs complied with the terms of the agreement and dismissed their claims against Defendants on 2 April 2012.

Shortly after the case settled, Plaintiffs signed a sublease agreement to take over a property being vacated by Garden City Casino pending final approval of the master lessor. On 9 June 2012, less than one month before the move, Plaintiffs received a letter from the master lessor’s attorney informing them that the sublease would not be approved. The letter explained that the master lessor’s broker had contacted Lisa Gillmor (Plaintiffs’ former landlord) regarding Plaintiffs’ tenancy and was advised that the lease ended in litigation, that substantial amounts of rent due were not paid and that Plaintiffs had breached their lease agreement by wrongfully subleasing the property to a third party without Defendants’ knowledge or consent. According to Plaintiffs, Ms. Gillmor’s representations regarding back-rent owed and the improper subleasing of the property are false. Plaintiffs also claim that Defendants failed to dismiss or mask the stipulated judgment as required by the terms of the stipulation executed by the parties.

Based upon these allegations, on 17 June 2013, Plaintiffs filed the instant action against Defendants, asserting claims for: (1) tortious interference with prospective economic advantage; (2) slander per se; (3) intentional infliction of emotional distress; and (4) negligent infliction of emotional distress.

Discovery Dispute

On 24 December 2013, Plaintiffs served Defendants with seven sets of discovery requests—four sets directed to Lisa Gillmor and three sets directed to Gillmor Properties, LLC. More specifically, Plaintiffs served the following requests: (1) FI, Set One, to Lisa Gillmor; (2) SI, Set One, to Lisa Gillmor; (3) RFA, Set One, to Lisa Gillmor; (4) RPD, Set One, to Lisa Gillmor; (5) FI, Set One, to Gillmor Properties, LLC; (6) SI, Set One, to Gillmor Properties, LLC; and (7) RPD, Set One, to Gillmor Properties, LLC.

Given the voluminous nature of the requests and the fact that they were served on Christmas Eve, defense counsel requested an extension of time to file Defendants’ responses. Plaintiffs agreed to only a two-week extension, making the responses due 11 February 2014.

Defendants served Plaintiffs with timely responses to each of the seven sets of discovery requests prior to the 11 February 2014 extended deadline. Both Defendants’ responses consisted almost exclusively of objections. For instance, Ms. Gillmor objected to every RFA as follows:

This request is overbroad as to time and scope. This request is not reasonably calculated to lead to the discovery of admissible evidence. This request is vague and ambiguous. Accordingly, Responding Party does not have enough information to admit or deny this request, and on that basis, denies it. Discovery and investigation are continuing. (Pl.s’ Mot. to Compel, p. 4.)

Ms. Gillmor responded to every one of the SI as follows:

Objection. This interrogatory is overbroad as to time and scope. This interrogatory is also vague and ambiguous. This interrogatory seeks information which is work product and/or protected by the attorney client privilege. Discovery is continuing. (Pl.s’ Separate Statement, p. 10.)

Similarly, Ms. Gillmor objected to every one of the RPD and did not produce any documents. Ms. Gillmor also objected to all of the FI and provided very limited substantive responses. For instance, in response to FI No. 2.1, which asked Ms. Gillmor to state (a) her name, (b) every other name she has used, and (c) the dates she used each name, Ms. Gillmor responded as follows:

Objection. This interrogatory is overbroad as to time and scope and not reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving said objections, Responding Party responds as follows: Lisa M. Gillmor. (Pl.s’ Separate Statement, p. 12.)

Like Ms. Gillmor’s responses, Gillmor Properties, LLC objected to almost all of Plaintiffs’ discovery requests and the limited substantive responses are in the same vein as Ms. Gillmor’s responses.

On 19 February 2014, Plaintiffs’ counsel sent defense counsel a meet and confer letter. In the letter, Plaintiffs’ counsel stated:

You requested an extension to respond to our discovery requests and we granted one. But you could have produced the same responses one day after receiving the requests, simply by mixing and matching objections. There is not a single substantive response. Your response is completely unacceptable and if you do not respond to this letter appropriately, we will bring a motion to compel after a reasonable attempt to meet and confer—and your client will have to pay for the unnecessary work that I am doing right now.

Now I am obliged to waste my time and my client’s money in responding to approximately 500 illegitimate “objections.”

In short: some non-responses may be reasonable; all non-responses cannot. You may even be correct that some of our questions are irredeemably objectionable—but how am I to know which, if you’ve failed to respond to any of them with anything but boilerplate? (Decl. of Counsel in Support of Mot. to Compel, Ex. 1, emphasis in original.)

Following the above statement, Plaintiffs’ counsel provided seven additional pages of explanation as to why the responses are deficient.

On 27 February 2014, defense counsel responded to Plaintiffs’ counsel letter. In the letter, defense counsel indicated that, by serving the discovery requests, Plaintiffs violated the parties’ agreement to wait to serve discovery until after a ruling on Defendants’ motion for judgment on the pleadings, stating:

Given the unsettled nature of the pleadings, we agreed that we would wait to serve discovery requests on each other pending the outcome of the motion. We informed the court of this plan at the December 10, 2013 Case Management Conference. I held off on filing a motion to stay discovery believing that we would each respect the agreement we entered. (Decl. of Counsel in Support of Mot. to Compel, Ex. 1.)

Defense counsel went on to state that, notwithstanding the parties’ agreement, Plaintiffs decided to serve seven sets of discovery requests on Christmas Eve and that, since defense counsel elected to spend the holidays with his family, he did not have a chance to look at the requests until the first week of January.

Defense counsel further indicated that he had previously informed Plaintiffs’ counsel that he was extremely busy with other matters and that an extension was necessary to adequately respond, but Plaintiffs’ counsel informed him “that plaintiffs were unwilling to grant more than a two week extension for defendants to respond to the discovery requests.” (Id.) Defense counsel then went on to address the perceived deficiencies outlined in Plaintiffs’ counsel’s letter.

Counsel for the parties continued to meet and confer through the month of March, the details of which will be discussed more fully below in connection with the Court’s discussion of the parties’ requests for monetary sanctions. The gist of the correspondence is that defense counsel indicated that Defendants would serve supplemental responses, but asked that Plaintiffs give them until 11 April 2014 to serve the responses. Plaintiffs’ counsel informed defense counsel that Plaintiffs were not amenable to any further extensions and that Plaintiffs would move forward with their motion to compel.

On 25 March 2014, Plaintiffs filed their motion to compel, seeking further responses to each of the seven sets of discovery requests served on Defendants. Defendants filed their opposition on 14 April 2014. On the same day, Defendants served Plaintiffs with verified amended responses to all seven sets of discovery requests.

The hearing on Plaintiffs’ motion was originally set to be heard on 25 April 2014. Pursuant to a stipulation of the parties, the hearing was continued to 1 May 2014.

Plaintiffs filed their reply on 24 April 2014.

Discussion

I. Motion to Compel Further Responses

Plaintiffs seek further responses to each of the seven sets of discovery requests served on Defendants, i.e., Plaintiffs want further responses to the FI, SI, RPD, and RFA served on Ms. Gillmor and the FI, SI, and RPD served on Gillmor Properties, LLC. Plaintiffs contend that the responses are wholly inadequate and that the assertion of approximately 500 objections with essentially no substantive answers constitutes a misuse of the discovery process.

On 14 April 2014, after Plaintiffs filed their motion to compel further responses, Defendants served Plaintiffs with verified supplemental responses to each of the discovery requests addressed in Plaintiffs’ motion.

When discovery responses are served after a motion to compel is filed, the court has substantial discretion in deciding how to rule in light of the particular circumstances presented. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408-409 (“Sinaiko”).) Through this discretion, the court might deny the motion to compel as moot and just impose sanctions, or examine the responses to determine if they are code-compliant. (Id., at p. 409.)

Defendants have attached the supplemental responses to their opposition. (Decl. of David Shane in Opp. to Pl.s’ Mot. to Compel (“Decl. of Shane”), Ex. H.) The Court has reviewed the supplemental responses. Unlike the initial responses, the supplemental responses consist primarily of substantive responses. For instance, whereas Ms. Gillmor’s initial responses to Plaintiffs’ RFA and SI consisted entirely of objections, the supplemental responses to the RFA provide an admission or denial as to each of the requests and the supplemental responses to the SI now provide some form of substantive answer to each of the interrogatories. With that in mind, the Court is not ruling on the adequacy of the supplemental responses. The point is that the supplemental responses are substantially different than the initial responses and the supplemental responses were not addressed in Plaintiffs’ motion to compel. Consequently, the Court is not in a position to determine whether the supplemental responses are code-compliant.

Given these circumstances, the Court finds that the appropriate action is to deny Plaintiffs’ motion as moot in accordance with the holding in Sinaiko. Accordingly, Plaintiffs’ motion to compel further responses is DENIED AS MOOT.

II. Requests for Monetary Sanctions

Plaintiffs and Defendants both seek the imposition of monetary sanctions in connection with the discovery dispute presently before the Court. For the reasons set forth below, neither party is entitled to sanctions.

A. Plaintiffs’ Request

Plaintiffs seek the imposition of monetary sanctions against Defendants and their attorneys in the amount of $13,500. Plaintiffs cite Code of Civil Procedure sections 2023.010 through 2023.040 as the statutory bases for the sanctions request.

As an initial matter, three of the four Code sections cited by Plaintiffs do not authorize an award of sanctions. Section 2023.010 provides a list of actions that constitute misuses of the discovery process. (Code Civ. Proc. [“CCP”], § 2023.010, subd. (a)-(i).) The section does not authorize an award of sanctions. Section 2023.040 sets forth what is required to be included in a request for sanctions. Like section 2023.010, it does not authorize sanctions. Section 2023.030 authorizes an award of sanctions for the misuse of the discovery process, but only “[t]o the extent authorized by the chapter governing any particular discovery method.” (CCP, § 2023.030, subd. (a), emphasis added.) 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. In this case, the applicable provisions are section 2030.300, subdivision (d) (authorizing sanctions in connection with motions to compel further responses to interrogatories), section 2031.310, subdivision (h) (authorizing sanctions in connection with motions to compel further responses to document requests), and section 2033.290, subdivision (d) (authorizing sanctions in connection with motions to compel further responses to requests for admission). Plaintiffs did not cite to any of the above underlying Code sections.

Section 2023.020 authorizes an award of sanctions, regardless of the outcome of the motion to compel, where a party or his or her attorney fails to meet and confer. But, Plaintiffs do not argue that Defendants or their counsel failed to meet and confer.

Plaintiffs have failed to set forth the legal basis for their sanctions request. Consequently, Plaintiffs’ request for sanctions will be denied on that basis. (See CCP, § 2023.040 [requiring notice of motion for sanctions to be supported by memorandum of points and authorities]; see also Quantum Cooking Concepts, Inc. v. LV Assocs., Inc. (2011) 197 Cal.App.4th 927, 934 [indicating that court may deny motion not accompanied by a memorandum setting forth the legal basis for the relief requested].) However, because Plaintiffs’ counsel claims to have expended $13,000 in prosecuting the present motion, which will be charged to his clients, and because the Court finds that Plaintiffs’ counsel does not have clean hands in this matter, the Court will briefly address why Plaintiffs’ request for sanctions lacks merit.

California Rules of Court, rule 3.1348 provides that “[t]he court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery . . . [if] the requested discovery was provided to the moving party after the motion was filed.” (Cal. Rules of Court, rule 3.1348(a); see also Sinaiko, supra, 148 Cal.App.4th at pp. 408-409.) Unlike most of the provisions authorizing sanctions in connection with motions to compel further responses, rule 3.1348(a) is discretionary. In other words, the rule does not mandate sanctions in every instance that the rule is implicated.

As indicated above, Plaintiffs’ counsel contends that Defendants’ actions in this case required him to expend over $13,000 in bringing the present motion. While the Court agrees that Defendants’ initial responses were inadequate in many respects, the Court also finds that Plaintiffs’ counsel could have avoided the necessity of filing the present motion. Put another way, the more than $13,000 worth of work expended to prosecute the present motion was unnecessary.

Even disregarding the fact that Plaintiffs served their seven sets of discovery requests on Christmas Eve in contravention of the parties’ agreement to hold off on discovery until matters concerning the pleadings were resolved, the Court agrees with Defendants that, had Plaintiffs’ counsel continued to meet and confer, the motion presently before the Court would have more than likely been unnecessary.

On 17 March 2014, a week before Plaintiffs filed their motion, defense counsel sent a letter to Plaintiffs’ counsel indicating that he was willing to provide supplemental responses in the hope of avoiding a motion to compel. (Decl. of Counsel in Support of Mot. to Compel, Ex. 2.) Defense counsel requested less than one month to serve the supplemental responses and indicated that he would agree to an extension for Plaintiffs to file a motion to compel if Plaintiffs deemed one necessary after reviewing the supplemental responses. In the letter, defense counsel wrote:

I intend to re-visit all responses previously made in this matter in good faith and will produce supplemental responses thereto. In doing so I will also revisit all objections made to the discovery requests and evaluate their grounds and merits. Any information or documents which [Defendant’s prior counsel] agreed to produce previously will be included in these responses, in addition to any supplemental responses which are warranted.

My request is that you simply provide me with a reasonable amount of time within which to draft such supplemental responses. Today is March 17, 2014. I propose providing full supplemental responses by Friday, April 11, 2014. At that time I would be happy to engage in a further meet and confer process. Of course, in exchange for the time I will need to provide supplemental responses I will agree to extend the time by which any motion to compel would need to be filed. (Id.)

On 20 March 2014, Plaintiffs’ counsel sent defense counsel an email, refusing any further extension to allow Defendants to serve supplemental responses. (Id.) In the email, Plaintiffs’ counsel wrote that “[t]here is no excuse for this delay in getting the answers from your client. The answer to your requests below is no. We will be filing the motion to compel at our earliest convenience.” (Id.)

The Court will remind the parties that a “central precept” of the Civil Discovery Act is that “civil discovery be essentially self-executing.” (Townsend v. Sup. Ct. (1998) 61 Cal.App.4th 1431, 1434-1435.) To implement this central precept, the Civil Discovery Act requires that, prior to the initiation of a motion to compel, the moving party declare that he or she has made a serious attempt to obtain an informal resolution of each issue presented in the motion. (See CCP, § 2016.040.) As the Court of Appeal has noted, this rule is designed “to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order” which, in turn, “will lessen the burden on the court and reduce the unnecessary expenditure of resourced by litigants through promotion of informal, extrajudicial resolution of discovery disputes.” (Townsend, supra, 61 Cal.App.4th at p. 1435.)

The record in this case indicates that Plaintiffs’ counsel minimally satisfied his obligation to meet and confer in that he raised his concerns about the initial responses and sought further responses. In light of the fact that Defendants’ initial responses were facially inadequate and Plaintiffs’ counsel satisfied his obligation to meet and confer, Plaintiffs certainly had the right to file their motion to compel further responses. However, particularly in light of the fact that defense counsel informed Plaintiffs’ counsel that he would be serving supplemental responses and offering an extension for Plaintiffs to file their motion to compel, the Court finds that Plaintiffs’ motion likely could have been avoided through further meet and confer efforts. In bringing this motion, Plaintiffs have caused the unnecessarily expenditure of judicial resources which, not surprisingly, the Court does not look favorably upon.

Because Plaintiffs’ filed to cite the applicable authority authorizing an award of sanctions, and for the other reasons set forth above, Plaintiffs’ request for monetary sanctions is DENIED.

B. Defendants’ Request

Defendants seek monetary sanctions against Plaintiffs and their counsel in the amount of $1,675. Defendants cite Code of Civil Procedure sections 2016.040 (requirements for contents of meet and confer declaration), 2030.300, subdivision (b) (requirement that motion to compel further responses to interrogatories must be accompanied by a meet and confer declaration), and 2023.010, subdivision (h) (indicating that filing a discovery motion without substantial justification is a misuse of the discovery process). Defendants’ request suffers from the same initial infirmity as Plaintiffs’ request because Defendants have not cited any authority authorizing the Court to award sanctions.

Moreover, even if Defendants had requested sanctions under the proper code section, the Court would nonetheless deny the request for the reasons set forth below.

Through this order, the Court denies Plaintiffs’ motion to compel further responses as moot. As noted by the Civil and Small Claims Advisory Committee (the “Committee”) (an advisory group created to assist the Judicial Council of California), concerning the adoption of former California Rules of Court, rule 341 (current rule 3.1348), “[i]t is occasionally contended that the discovery statutes on sanctions do not cover the [] situation [where a party serves responses after the filing of a motion to compel rendering the motion moot] because they refer to sanctions against parties, persons, and attorneys who ‘unsuccessfully’ make or oppose a motion to compel.” (Judicial Council of Cal., Advisory Com. Rep. on adoption of former Cal. Rules of Court, rule 341 (current rule 3.1348) Nov. 29, 2000.) According to the Committee:

This argument is based on a strained, overly-technical reading of the statutes and is contrary to the purposes of the Discovery Act. [¶] A party that . . . ultimately provides discovery in response to the pending motion, is in effect the unsuccessful party.

(Id.) Based upon the Committee’s above statements, although Plaintiffs’ motion is denied as moot, Defendants cannot claim that they successfully opposed the motion.

Further, in the preceding section, the Court admonishes Plaintiffs’ counsel for unnecessarily expending judicial resources in bringing this motion. The Court will take the time here to remind counsel for Defendants that, regardless of the fact that he was not the attorney that drafted or served the initial responses, Defendants are not relieved of their obligation to comply with the requirements of the Civil Discovery Act. The Act requires code-compliant responses to discovery requests to be served on the requesting party in the first instance. Responding with boilerplate objections to entire sets of discovery requests and objecting to form interrogatories asking the party to state his or her name and place of birth as overly broad are precisely the type of improper objections contemplated by Code of Civil Procedure section 2023.010, subdivision (e), which prohibits responding parties from “[m]aking, without substantial justification, an unmeritorious objection to discovery.”

The Court appreciates defense counsel’s willingness to cure the defects in the initial responses through supplemental responses. That, however, does not alleviate Defendants of their responsibility to comply with the statutory requirements in the first instance.

Because Defendants have failed to cite any basis authorizing an award of sanctions and are not otherwise entitled to an award of sanctions, Defendants’ request for monetary sanctions is DENIED.

Conclusion and Order

Plaintiffs’ motion to compel further responses is DENIED AS MOOT.

Plaintiffs’ request for monetary sanctions is DENIED.

Defendants’ request for monetary sanctions is DENIED.