Case Name:??? Benjamin Greenberg, et al. v. Sofia University, FPC, et al.?????? ?????
Case No.:??????? 2015-1-CV-287059
Factual and Procedural Background
This is an action for fraud and unfair business practices.? Plaintiffs Benjamin Greenberg (?Greenberg?), Nathan Wright (?Wright?), Betsy Peterson, James Norwood, Joy Riach, Ruchi Patel, Beau Scott, and Korie Leigh (collectively, ?Plaintiffs?) were students in the Psychology Doctoral Program (the ?Program?) at defendant Sofia University (?Sofia?).? Sofia represented that it had the financial and academic resources to ensure that Plaintiffs could timely complete the Program and qualify to be licensed psychologists in California.? However, Plaintiffs were misled regarding the financial condition of Sofia.? After securing Plaintiffs? tuition payments, Sofia admitted that the Program would not be continued, that no ?teach out? would be offered and strongly encouraged Plaintiffs to apply to other programs to complete their education.? Thus, Plaintiffs have sustained damages including tuition and fees paid to Sofia, moving expenses, lost income, and tuition and fees paid to other educational institutions as a result of being unable to complete their education at the university.
On October 20, 2015, Plaintiffs filed a Complaint against defendants setting forth causes of action for: (1) violation of the Consumer Legal Remedies Act; (2) unfair business practices; (3) unfair business practices; (4) fraud; (5) breach of contract; (6) breach of contract (third party beneficiary); (7) negligence; (8) breach of covenant of good faith and fair dealing; and (9) imposition of constructive trust.
On November 12, 2015, Plaintiffs served a request for production of documents (set one) (?RPD?) on defendant Sofia and another set of RPD on defendant Institute of Transpersonal Psychology dba ITP/Sofia Foundation (sued as Sofia University aka Institute of Transpersonal Psychology, Institute of Transpersonal Psychology Foundation aka ITP Foundation) (?ITP?).
On November 20, 2015, plaintiff Greenberg served form interrogatories (set one) (?FI?) on Sofia and another set of FI on ITP.
On December 29, 2015, plaintiff Wright served FI on Sofia and another set of FI on ITP.
Following service of the discovery, Plaintiffs granted multiple extensions to defendants to provide responses and produce documents.? Defendants were given a final extension to serve all discovery responses no later than February 12, 2016.? On February 11, 2016, defense counsel advised Plaintiffs? attorney that there was a ?potential conflict of interest? that prevented the production of any discovery.? When the conflict was not resolved by March 4, 2016, Plaintiffs? attorney informed defense counsel that they would seek motions to compel the subject discovery.? Plaintiffs? motions to compel discovery were filed on March 14th, 16th, and 18th.
Defendants resolved the conflicts issue on April 4, 2016.? On April 7, 2016, Defendants served untimely discovery responses interposing objections with factual responses.
The following motions are presently before the Court: (1) the motion for relief from waiver of objections by defendants Sofia and ITP (collectively, ?Defendants?); (2) Plaintiffs? motions to compel responses to RPD; (3) Greenberg?s motions to compel responses to FI; and (4) Wright?s motions to compel responses to FI.? Plaintiffs also seek an award of monetary sanctions in conjunction with the motions to compel.? Both sides filed oppositions and reply papers.
Defendants? Motion for Relief from Waiver of Objections??????
Defendants move for relief from waiver of objections because they served responses that are substantially code compliant and their failure to serve timely responses was the result of an actual conflict that developed between jointly-represented defendants.? In opposition, Plaintiffs claim that the responses are not substantially compliant and that Defendants made a strategic decision to resolve the conflict which does not constitute mistake, inadvertence, or excusable neglect.
Legal Standard
Interrogatory and document responses are due within 30 days from the date the requests were served.? (Code Civ. Proc., ?? 2030.260, subd. (a), 2031.260, subd. (a).) Failing to respond within the time limit waives most objections to the document requests, including claims of privilege and ?work product? protection.? (See Code Civ. Proc., ?? 2030.290, subd. (a), 2031.300, subd. (a).)? The court may relieve a party of a waiver of objections for failure to serve a timely response to discovery if, on noticed motion, the affected party demonstrates that (1) they have subsequently served responses to the subject discovery requests that substantially comply with the relevant sections of the Code of Civil Procedure, and (2) the failure to serve timely responses was the result of mistake, inadvertence, or excusable neglect. ?(Ibid.)
Substantial Compliance
To be eligible for relief, Defendants must first show that they served discovery responses in substantial compliance with the pertinent sections of the Code of Civil Procedure.? With respect to interrogatories, a party may respond by any of the following: (1) an answer containing the information sought to be discovered; (2) an exercise of the party?s option to produce writings; and (3) an objection to a particular interrogatory.? (Code Civ. Proc., ? 2030.210, subd. (a).)? Similarly, with respect to inspection demands, a party may respond by any of the following: (1) a statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling; (2) a representation that the party lacks the ability to comply with the inspection demand; and (3) an objection to the particular demand for inspection, copying, testing, or sampling.? (Code Civ. Proc., ? 2031.210.)
To demonstrate substantial compliance, Defendants attach their FI and RPD responses to the motion.? (See Declaration of Linda K. Adler at Exhibits 18-24.)? As stated above, Defendants served a combination of objections with factual responses. (Ibid.)? There were no verifications included with the responses in the moving papers.? However, in reply, Defendants claim that all verifications to these responses were also produced.? (See Reply Declaration of Linda K. Adler at ? 4.)? Plaintiffs dispute this contention and state that they could not locate any verifications for responses to Wright?s FI or Greenberg?s FI.? (See Supplemental Declaration of Kenneth Franklin at ?? 5-6.)? In order for the responses to be substantially compliant, verifications must be served as an unverified response is the equivalent of no response at all.? (See Appleton v. Sup. Ct. (1988) 206 Cal.App.3d 632, 636.)? The Court will take defense counsel at her word that, under penalty of perjury, she served all verification to these responses.? If that is not the case, Defendants shall serve Plaintiffs with the missing verifications.? The Court will now examine whether Defendants failure to serve timely responses was the result of mistake, inadvertence, or excusable neglect.
Mistake, Inadvertence, or Excusable Neglect
In determining what constitutes ?mistake, inadvertence, or excusable neglect? under the Discovery Act, the same standards apply as for relief from default under Code of Civil Procedure section 473, subdivision (b).? (City of Fresno v. Sup. Ct. (1988) 205 Cal. App. 3d 1459, 1467 [applying case law interpreting standard under Code of Civil Procedure, section 473 to Discovery Act].)? ?A mistake of fact is when a person understands the facts to be other than they are; a mistake of law is when a person knows the facts as they really are but has a mistaken belief as to the legal consequences of those facts.? [Citation.]?? (Baratti v. Baratti (1952) 109 Cal.App.2nd 917, 921.)? ?Inadvertence is defined as lack of heedfulness or attentiveness, inattention, fault from negligence.? [Citations.]?? (Ibid.)? ?The ?excusable neglect? referred to in the section is that neglect which might have been the act of a reasonably prudent person under the same circumstances.? [Citation.]?? (Ibid.)
Generally, the standard of what constitutes ?mistake, inadvertence, or excusable neglect,? depends on the facts of the case.? (See City of Fresno v. Sup. Ct. (1988) 205 Cal.App.3d 1459, 1466-1467.)? For example, an attorney?s mistaken interpretation of the law, where the law is simple and not subject to debate, would not qualify as a basis for relief, nor would a mistake or inadvertent action as the result of having a busy practice provide a basis for relief.? (Id. at p. 1467; see also Scottsdale Ins. Co. v. Sup. Ct. (1997) 59 Cal.App.4th 263, 275-276.)
In deciding whether counsel?s error is excusable, the Court ?looks to: (1) the nature of the mistake or neglect; and (2) whether counsel was otherwise diligent in investigating and pursuing the claim.?? (Tackett v. City of Huntington Beach (1994) 22 Cal.App.4th 60, 65, citing Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276.)? In determining whether the attorney?s mistake or inadvertence was excusable, ?the court inquires whether ?a reasonably prudent person under the same or similar circumstances? might have made the same error.?? (Bettencourt, supra, 42 Cal.3d at p. 276.)
As a threshold matter, Defendants? motion does not identify whether they seek relief on the grounds of either mistake, inadvertence or excusable neglect.? In fact, the moving papers largely discuss the merits of Defendants? objections which are beyond the scope of this motion.? Defendants? core argument is that they failed to timely respond to discovery to address a conflict regarding jointly-represented defendants.? Neither party provides any legal authority establishing that resolution of a conflict involving jointly-represented parties provides a basis for relief from waiver of objections.? However, while it appears that Defendants worked diligently to resolve the conflict, this does not support a basis for relief under mistake, inadvertence, or excusable neglect.? Rather, Defendants made the conscious and deliberate decision to ignore their discovery demands for the purpose of resolving the ethical conflict.? As the opposition points out, Defendants could have discontinued their joint representation and sought independent counsel.? While this option may necessitate some delay in the case, it would seem practical in resolving the conflict and thus allowing Defendants to meet their discovery obligations.? Furthermore, it appears unfair and prejudicial for any plaintiff to have to wait for discovery indefinitely while a defendant attempts to resolve an ethical conflict.? While the Court sympathizes with Defendants? ethical dilemma, the current state of law does not allow a party to obtain relief from waiver of objections on the ground that they need to address a conflict of joint representation.
Accordingly, the motion for relief from waiver of objections is DENIED.?
Plaintiffs? Motions to Compel Responses to RPD?????
Plaintiffs seek an order from the Court to compel Defendants to serve responses to RPD and produce all responsive documents because no responses have been served.
Legal Standard
If a party to whom a demand for inspection is directed fails to serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction.? (See Code Civ. Proc., ? 2031.300.)? A party that fails to serve a timely response to the discovery request waives ?any objection? to the request, ?including one based on privilege? or the protection of attorney work product.? (See Code Civ. Proc., ? 2031.300, subd. (a); Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403-404.)? The trial court may relieve the party of its waiver, but that party must first demonstrate that (a) it subsequently served a response to the demand; (b) its response ?is in substantial compliance? with the statutory provisions governing the form and content of the response; and (c) ?[t]he party?s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.?? (See Code Civ. Proc., ? 2031.300, subd. (a)(1)-(2); Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants, supra, 148 Cal.App.4th at p. 404.)
?Unlike a motion to compel further responses, a motion to compel responses is not subject to a 45-day limit, and the propounding party does not have to demonstrate either good cause or that it satisfied a ?meet and confer? requirement.?? (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants, supra, 148 Cal.App.4th at p. 404.)
Analysis???????
Here, Plaintiffs served Defendants with RPD and did not receive any responses by the February 12, 2016 deadline.? Instead, Defendants served untimely RPD responses interposing objections with factual responses while producing approximately 3,000 pages of relevant, responsive documents on April 7, 2016.? Defendants concede that their responses were untimely and thus all objections are waived (except those based on third party privacy) given the Court?s ruling on the motion for relief from waiver of objections stated above.? (See Boler v. Sup. Ct. (1987) 201 Cal. App. 3d 467, 472 [?An inflexible waiver rule would?infringe upon the constitutional privacy rights of citizens not participating in the lawsuit.?].)? Therefore, the motions to compel RPD responses are granted.
Greenberg?s Motions to Compel Responses to FI??????
Plaintiff Greenberg seeks an order from the Court to compel Defendants to serve FI responses because no responses have been served.
Legal Standard
If a party to whom interrogatories is directed fails to serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction.? (See Code Civ. Proc., ? 2030.290.)? A party that fails to serve a timely response to the discovery request waives ?any objection? to the request, ?including one based on privilege? or the protection of attorney work product.? (See Code Civ. Proc., ? 2030.290, subd. (a); Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants, supra, 148 Cal.App.4th at pp. 403-404.)? The trial court may relieve the party of its waiver, but that party must first demonstrate that (a) it subsequently served a response to the demand; (b) its response ?is in substantial compliance? with the statutory provisions governing the form and content of the response; and (c) ?[t]he party?s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.?? (See Code Civ. Proc., ? 2030.290, subd. (a)(1)-(2); Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants, supra, 148 Cal.App.4th at p. 404.)
Analysis???????
Here, plaintiff Greenberg served Defendants with FI and did not receive any responses by the February 12, 2016 deadline.? Instead, Defendants served untimely FI responses interposing objections with factual responses on April 7, 2016.? Again, Defendants concede that their FI responses were untimely thus all objections are waived (except those based on third party privacy) given the Court?s ruling on the motion for relief from waiver of objections stated above.? Therefore, the motions to compel FI responses are granted.
Wright?s Motions to Compel Responses to FI??????
Plaintiff Wright seeks an order from the Court to compel Defendants to serve FI responses because no responses have been served.? Defendants served Wright with untimely FI responses interposing objections with factual responses on April 7, 2016.? Defendants concede that their FI responses were untimely thus all objections are waived (except those based on third party privacy) given the Court?s ruling on the motion for relief from waiver of objections stated above.? Therefore, the motions to compel FI responses are granted.
Plaintiffs? Request for Monetary Sanctions
Plaintiffs request an award of monetary sanctions in conjunction with the motions to compel.? The court shall impose a monetary sanction against any party, person, or attorney who makes or opposes a motion to compel a response to interrogatories or inspection demands, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.? (Code Civ. Proc. ? 2030.290, subd. (c) [interrogatories]; 2031.300, subd. (c) [inspection demands].)
Plaintiffs make a code-compliant request for monetary sanctions against Defendants in the amount of $9,276.? Defendants were not substantially justified in opposing the motions to compel.? Plaintiffs? counsel bills his time at $450 per hour.? However, the requested amount appears to be excessive given the size and scope of the motions.? Furthermore, the Court does not award anticipated expenses as it may become unnecessary for the parties to attend oral argument if both sides submit on the Court?s tentative order.? (See Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551 [the court awards sanctions only for expenses actually incurred, not for anticipated expenses].)? Thus, the Court will award $3,430.50 in sanctions based on time spent preparing the motions along with the filing fees and attorney charges for each motion.
Disposition
Defendants? motion for relief from waiver of objections is DENIED.
Plaintiffs? motion to compel responses to RPD is GRANTED.? Sofia shall serve a verified code-compliant response to RPD and produce all responsive documents within 20 calendar days of this Order.? All objections are waived except for those based on third party privacy rights.
Plaintiffs? motion to compel responses to RPD is GRANTED.? ITP shall serve a verified code-compliant response to RPD and produce all responsive documents within 20 calendar days of this Order.? All objections are waived except for those based on third party privacy rights.
Greenberg?s motion to compel responses to FI is GRANTED.? Sofia shall serve a verified code-compliant response to FI within 20 calendar days of this Order.? All objections are waived except for those based on third party privacy rights.
Greenberg?s motion to compel responses to FI is GRANTED.? ITP shall serve a verified code-compliant response to FI within 20 calendar days of this Order.? All objections are waived except for those based on third party privacy rights.
Wright?s motion to compel responses to FI is GRANTED.? Sofia shall serve a verified code-compliant response to FI within 20 calendar days of this Order.? All objections are waived except for those based on third party privacy rights.
Wright?s motion to compel responses to FI is GRANTED.? ITP shall serve a verified code-compliant response to FI within 20 calendar days of this Order.? All objections are waived except for those based on third party privacy rights.
Plaintiffs? request for monetary sanctions is GRANTED IN PART.? Defendants shall pay $3,430.50 to Plaintiffs within 20 calendar days of this Order.