Case Number: BC674731 Hearing Date: January 07, 2019 Dept: 78
Superior Court of California
County of Los Angeles
Defendants Burlison Law Group and Robert C. Burlison’s Motion to Compel Responses to Form Interrogatories and Requests for Production is DENIED as to Plaintiff Tony Atallah, but shall be GRANTED as to Plaintiff Michael Atallah if discovery responses are not served by the date of hearing.
Defendants’ Motion to Deem Admitted is DENIED as to Plaintiff Tony Atallah, but shall be GRANTED as to Plaintiff Michael Atallah if responses to the requests are not served by the date of hearing.
The Court shall award $1,050.00 in sanctions against Michael Atallah if discovery responses are not served upon Defendants by the date of hearing on this motion.
This is a legal malpractice action. The First Amended Complaint (“FAC”) alleges as follows. Plaintiffs Tony and Michael Atallah (“Plaintiffs”) retained Defendants Burlison Law Group and Robert C. Burlison (“Defendants”) to represent them in a lawsuit to enforce a commercial property lease with a lease option to purchase the property. (FAC ¶ 8.) Defendants represented that they were competent attorneys with experience in the relevant field of law. (FAC ¶ 10.)
Defendants filed the action on Plaintiff’s behalf in November 2015, but failed to advise Plaintiffs of the case’s progress. (FAC ¶ 14.) They failed to conduct any discovery. (FAC ¶ 20.) They failed to file conforming responses to a Motion for Summary Judgment. (FAC ¶¶ 17–19.) The court entered judgment against Plaintiffs as a result of Defendants’ actions. (FAC ¶ 20.)
Plaintiffs filed a Complaint on September 6, 2017, alleging one cause of action for legal malpractice.
Plaintiffs filed the FAC on June 29, 2018, alleging five causes of action:
This Court on September 12, 2018, sustained Defendants’ Demurrer to the FAC with leave to amend as to the Third, Fourth, and Fifth Causes of Action, but overruled the Demurrer as tot eh First and Second Causes of Action. The Motion to Strike was GRANTED, with leave to amend.
Defendants filed the present Motion to Compel and Deem Admitted on December 7, 2018.
Plaintiffs filed an Opposition on December 21, 2018.
A propounding party may demand a responding party to produce documents that are in their possession, custody or control. (Code Civ. Proc., § 2031.010.) A party may likewise conduct discovery by propounding interrogatories to another party to be answered under oath. (Code Civ. Proc. § 2030.010, subd. (a).) The responding party must respond to the production demand either by complying, by representing that the party lacks the ability to comply, or by objecting to the demand. (Code Civ. Proc., § 2031.210.) The responding party must respond to the interrogatories by answering or objecting. (Code Civ. Proc. § 2030.210, subd. (a).) If the responding party fails to serve timely responses, the propounding party may move for an order compelling responses to the production demand and interrogatories. (Code Civ. Proc., §§ 2030.290, 2031.300.)
“Any party may obtain discovery . . . by a written request that any other party to the action admit the genuineness of specified documents, or the truth of specified matters of fact, opinion relating to fact, or application of law to fact. A request for admission may relate to a matter that is in controversy between the parties.” (Code Civ. Proc., § 2033.010.)
If a party fails to serve a timely response to requests for admissions, “[t]he requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction” (Code Civ. Proc., § 2033.280 subd. (b).) A failure to serve timely responses also “waives any objection to the requests, including one based on privilege or on the protection for work product . . . .” (Code Civ. Proc., § 2033.280 subd. (a).)
Defendants served Form Interrogatories, Requests for Production, and Requests for Admission upon Plaintiffs on October 4, 2018. (Larin Decl. ¶ 3.) Responses were due by November 8, 2018. (Larin Decl. ¶ 4.) Plaintiffs did not provide responses by this time. (Larin Decl. ¶ 6.)
In an opposition, Plaintiffs argue that the discovery sent to Tony Atallah was sent to a PO Box in the wrong zip code (Tony Atallah Decl. ¶ 3), while Michael Atallah declares that he was away from his standard address through November for work reasons. (Michael Atallah Decl. ¶¶ 2–3.) Both declare that they will serve discovery responses by the date of hearing on this motion. (Tony Atallah Decl. ¶ 4: Michael Atallah Decl. ¶ 4.)
Given the incorrect address listed in Defendants’ proofs of service for Tony Atallah, the Court finds that no discovery was served upon him and that the motion to compel must be DENIED as to him. No such excuse is available for Michael however, and the Court will GRANT Defendants’ Motions to Compel and Deem Admitted against him if discovery responses are not served by the date of hearing on this motion.
A party that succeeds in bringing or opposing a motion to compel or motion to deem admitted is entitled to monetary sanctions absent substantial justification. (See Code Civ. Proc. §§ 2030.290, subd. (c); 2031.300, subd. (c); 2033.280, subd. (b).)
Defendants ask for $2,100.00 in sanctions representing 10.2 hours of attorney work at $200 per hour, plus a $60 filing fee. (Larin Decl. ¶ 7.) Because this motion may only be granted in part, the Court will award $1,050.00 against Michael Atallah if discovery responses are not provided by the date of hearing on this motion.
DATED: January 7, 2018 ________________________________
Hon. Robert S. Draper
Judge of the Superior Court