Case Name:??? Michael Formico v. Kim Dincel, et al.
Case No.:??????? 2014-1-CV-263366
(1) Motion by Defendants Kim Dincel and Dincel Law Group for Terminating Sanctions or, in the Alternative, an Order Compelling Compliance with the Court Order Dated February 23, 2016, and for an Award of Monetary Sanctions; and (2) the Motion by Plaintiff Michael Formico to be Relieved From Deemed Admissions
Factual and Procedural Background
? ? ? ? ? ?This is an action for legal malpractice. Plaintiff Michael Formico (?Plaintiff?) hired defendants Kim Dincel (?Dincel?) and Dincel Law Group (?DLG?) (collectively, ?Defendants?) to represent him in connection with a lawsuit filed against him in United States District Court, Monterey Bay Boatworks Company v. Formico (Case No. 12-CV04544-LHK) (?Underlying Action?). (Complaint, ? 7.) Plaintiff allegedly ?had a meritorious defense to the claim for the arrest and interlocutory sale of his vessel, the M/V Wild Wave, and informed [Dincel] of the facts concerning his defense within sufficient time for [Dincel] to assert and maintain the defense.? (Id., at ? 8.) Plaintiff alleges that Defendants ?failed to exercise reasonable care and skill in representing [him] and ? defending [the Underlying Action], and failed and neglected to file opposition to a motion for interlocutory sale of the vessel and failed to appear for the hearing on the motion.? (Id., at ? 9.) Plaintiff further alleges that but for Defendants? negligent conduct, ?his vessel would not have been arrested and sold.? (Id., at ? 10.)
Based on the foregoing, Plaintiff filed a complaint against Defendants, alleging a single cause of action for legal malpractice.
Currently before the Court are: (1) the motion by Defendants for terminating sanctions or, in the alternative, an order compelling compliance with the court order dated February 23, 2016, and for an award of monetary sanctions; and (2) the motion by Plaintiff to be relieved from deemed admissions.
Discovery Dispute
On November 15, 2015, Dincel served Plaintiff with several sets of discovery, including requests for admission, set one (?RFA?), form interrogatories, set one (?FI?), and requests for production of documents, set one (?RPD?). (Borger Dec. Ex. A.) Plaintiff, who at the time was self-represented, did not timely respond to the discovery requests. (Ibid.) Consequently, Dincel filed a motion to compel initial responses to the FI and RPD and deem admitted the RFA. (Ibid.)
Dincel?s motion proceeded to hearing on February 4, 2016. (Borger Dec. Ex. B.) The parties did not contest the Court?s tentative ruling, but appeared at the hearing because Dincel requested clarification of the tentative ruling as it pertained to the RFA. (See 2/4/16 Reporter?s Transcript (?RT?), pp. 1-4.) Defendants? counsel informed the Court that he was served with Plaintiff?s unverified responses to the RFA the evening before the hearing and he requested that the Court address this development in its ruling on Dincel?s motion. (See ibid.) In response, Plaintiff informed the Court that he was doing the best he could, he did not understand all of the rules, and he had recently retained an attorney. (See id., at pp. 4-5.) The Court then reviewed Plaintiff?s responses to the RFA and determined that they were unverified. (See id., at pp. 5-6.) The Court subsequently informed the parties that the motion to compel discovery responses and deem admitted the RFA was granted, and instructed Defendants? counsel to prepare the order on the motion. (See id., at pp. 6-7; see also 2/4/16 Min. Order.)
On February 23, 2016, the Court executed its order on Dincel?s motion. (Borger Dec. Ex. B.) The order provided the following: ?Plaintiff Formico will serve code compliant, verified responses to form interrogatories (set one) and document production requests (set one) no later than February 22, 2016?; ?[t]he requests for admissions (set one) served on Plaintiff Formico on November 5, 2015 are deemed admitted?; and ?[m]onetary sanctions are awarded against Plaintiff Formico in the amount of $750, payable to Defendant Dincel?s counsel within thirty (30) days of the court?s execution of this order.? (Ibid.)
While the court order was filed the following day, it does not appear that Plaintiff was served with the order until March 16, 2016, when Dincel served Plaintiff and his newly retained counsel with the Notice of Entry of Order Following Motions to Compel. (Borger Dec. Ex. B.)
On March 29, 2016, Defendants? counsel sent a letter to Plaintiff?s counsel, advising that he had not received Plaintiff?s responses to the FI and RPD, any documents responsive to the RPD, or payment of monetary sanctions in compliance with the February 23, 2016 court order. (Borger Dec. Ex. C.) Defendants? counsel requested Plaintiff provide the outstanding discovery responses, all documents responsive to the RPD, and payment of monetary sanctions by April 4, 2016. (Ibid.)
The next day, Plaintiff served Dincel with his responses to the RPD via email. (Borger Dec., Ex. D.) In his responses to RPD Nos. 1-2 and 4-28, Plaintiff stated that ?[d]ocuments responsive to this request and which are in the possession, custody and/or control of Plaintiff shall be produced at a mutually convenient date and time.? (Ibid.) In response to RPD No. 3, Plaintiff objected to the request on the ground of attorney-client privilege and stated that, without waiving his objection, he would produce non-privileged responsive documents that are in his possession, custody, and control at a mutually convenient place and time. (Ibid.)
The same day, Defendants? counsel sent Plaintiff?s counsel a letter, indicating that he received Plaintiff?s responses to the RPD. (Borger Dec., Ex. E.) Defendants? counsel asserted that Plaintiff was also required to produce documents responsive to the RPD ?over a month ago? and he had failed to do so. (Ibid.) Defendants? counsel stated that if Plaintiff did not ?comply with the discovery order by the end of the day on Monday, April 4th,? Defendants would ?move to hold him in contempt.? (Ibid.)
On April 4, 2016, Plaintiff?s counsel sent Defendants? counsel a reply email, advising that while he had ?gone through [Plaintiff?s] files? and Plaintiff was ?conducting a search,? it appeared that Plaintiff did not have any documents responsive to the RPD. (Borger Dec., Ex. F.) Plaintiff?s counsel further advised Defendants? counsel that Plaintiff did not keep copies of his correspondence with Defendants or other records related to the dispute over his vessel. (Ibid.)
That same day, Plaintiff paid Defendants? counsel the monetary sanctions owed under the February 23, 2016 court order. (See Defs? Mem. Ps & As., p. 4:24-25.)
On April 20, 2016, Defendants filed the instant motion for terminating sanctions against Plaintiff or, alternatively, to compel Plaintiff to comply with the February 23, 2016 court order, and for an award of monetary sanctions. The following day, April 21, 2016, Plaintiff filed the instant motion for relief from matters deemed admitted. Defendants filed papers in opposition to Plaintiff?s motion on May 4, 2016. The next day, Plaintiff filed papers in opposition to Defendants? motion. On May 10, 2016, Plaintiff filed a reply in support of his motion.
Discussion
- Motion for Terminating Sanctions or, Alternatively, an Order Compelling Compliance with the February 23, 2016 Court Order, and for an Award of ??? Monetary Sanctions
??????????? Pursuant to Code of Civil Procedure sections 2030.290 and 2031.300, Defendants move ?for an [o]rder terminating Plaintiff Michael Formico?s action by striking his complaint? or, in the alternative, an order ?requiring [Plaintiff] to comply with the Court?s discovery order dated February 23, 2016,? and an award of monetary sanctions against Plaintiff in the amount of $1,425. (Ntc. Mtn., pp. 1-2.)
- Legal Standard
Code of Civil Procedure section 2030.290, subdivision (c) provides that, if a party fails to obey an order compelling initial responses to interrogatories, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction. Code of Civil Procedure section 2031.300, subdivision (c) authorizes the same sanctions for the failure to obey an order compelling initial responses to requests for production of documents. Both sections further provide that, ?[i]n lieu of, or in addition to, [non-monetary sanctions] the court may impose a monetary sanction ?.? (Code Civ. Proc., ?? 2030.290, subd. (c), 2031.300, subd. (c).)
Two facts are generally prerequisite to the imposition of nonmonetary sanctions: (1) there must be a failure to comply with a court order; and (2) that failure must be willful.[1] (Miranda v. 21st Century Ins Co. (2004) 117 Cal.App.4th 913, 929.) It is the moving party?s burden to establish the responding party?s failure to obey the prior discovery order. (Corns v. Miller (1986) 181 Cal.App.3d 195, 200-201 (?Corns?).)?If noncompliance is shown, then the burdens shifts to the opposing party to show that his or her noncompliance was not willful.?(Id., at p. 201.)
Even where these prerequisite facts are present, the trial court has broad discretion in imposing discovery sanctions and the ?decision to order terminating sanctions should not be made lightly.??(Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992 (?Doppes?); see Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1293.) In exercising this discretion, the court of appeal has indicated that the trial court should consider both the conduct being sanctioned and its effect on the party seeking discovery. (See Doppes, supra, 174 Cal.App.4th at p. 992; see also Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 796-797 (?Deyo?).) Additionally, the trial court should ?attempt to tailor the sanction to the harm caused by the withheld discovery? (Doppes, supra, 174 Cal.App.4th at p. 992) and the court?s discretionary authority in determining the appropriate sanction is limited by the principle that discovery sanctions are meant to be remedial rather than punitive (see Kahn v. Kahn (1977) 68 Cal.App.3d 372, 381). Put another way, the discretionary imposition of a sanction is proper when it is suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery sought, but not when it places the prevailing party in a better position than if discovery had been obtained. (See Wilson v. Jefferson (1985) 163 Cal.App.3d 952, 958.) Finally, non-monetary sanctions are imposed upon an incremental basis depending upon the severity of the violation. (See Doppes, supra, 174 Cal.App.4th at 992.) ?If a lesser sanction fails to curb misuse, a greater sanction is warranted: continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse.? (Ibid., internal quotation marks and citations omitted.)
- Analysis
??????????? Defendants argue that Plaintiff violated the February 23, 2016 court order by failing to serve Dincel with responses to the FI; providing responses to the RPD stating that he would produce documents when, in fact, he did not have any documents responsive to the requests; and failing to produce documents responsive to the RPD. Defendants also argue that Plaintiff has a history of misusing the discovery process because he initially failed to appear at his noticed deposition and they were forced to bring a motion to compel his attendance.[2]
In opposition, Plaintiff does not address the motion as it pertains to the FI. Instead, he asserts that ?there is just one issue: [s]hould [his] Complaint be dismissed because he does not possess any documents responsive to [Dincel?s] Request for Production of Documents.? (Opp?n., p. 1.) Plaintiff contends that he responded in good faith to the RPD and insists that he ?does not have any documentation in this case since he had turned everything over to [Dincel] at the time [Dincel] represented [him].? (Id., at p. 2.) Plaintiff also contends that Dincel already ?has the full gamut of documents sought in [the RPD]? and ?there has been no prejudice to [Dincel] as the result of [his] inability to produce any documents in response to the [RPD].? (Id., at p. 3.)
Defendants? argument that Plaintiff failed to comply with the February 23, 2016 court order because he did not produce any documents responsive to the RPD is not well-taken. The February 23, 2016 court order does not require Plaintiff to produce any documents. Rather, the order, as it pertains to the RPD, merely requires Plaintiff serve code compliant, verified responses on Dincel by a date certain. Thus, the absence of any document production does not constitute a violation of the February 23, 2016 court order.
Next, Defendants? argument that Plaintiff failed to comply with the February 23, 2016 court order because his responses to the RPD state that he will produce documents when, in fact, he does not possess any responsive documents lacks merit. As previously articulated, Plaintiff was ordered to serve Dincel with code compliant, verified responses to the RPD by a date certain. Plaintiff served Dincel with verified responses to the RPD comprised, almost entirely, of statements of compliance. A statement that the party will comply with the particular request for production of documents is a proper response to a request for production of documents under Code Civil Procedure section 2031.210, subdivision (a)(1). (See Code Civ. Proc., ? 2031.210, subd. (a).) Thus, Plaintiff responses to the RPD technically comply with the February 23, 2016 court order. To the extent Defendants believe the responses are deficient and/or Plaintiff has failed to produce documents in accordance with his responses, their remedy is to file a properly noticed motion to compel further responses and/or compliance. (See Code Civ. Proc., ?? 2031.310 [motion to compel further responses], 2031.320 [motions to compel compliance].)
Defendants? final argument?that Plaintiff failed to comply with the February 23, 2016 court order because he did not serve Dincel with any responses to the FI?is persuasive. The February 23, 2016 court order requires Plaintiff to serve Dincel with verified responses to the FI by a date certain and it is undisputed that Plaintiff has failed to serve Dincel with any responses to the FI. Thus, Defendants have established that Plaintiff violated the February 23, 2016 court order.
The burden now shifts to Plaintiff to demonstrate that his noncompliance was not willful. (Corns, supra, 181 Cal.App.3d at pp. 201.) As indicated above, Plaintiff does not address the FI in his opposition to the motion. Consequently, he fails to meet his burden.
The Court also notes that ?[l]ack of diligence may be deemed willful in the sense that the party understood his obligation, had the ability to comply, and failed to comply. A willful failure does not necessarily include a wrongful intention to disobey discovery rules. A conscious or intentional failure to act, as distinguished from accidental or involuntary noncompliance, is sufficient to invoke a penalty.??(Deyo, supra, 84 Cal.App.3d at pp. 787-788, internal citations omitted.)?Here, both Plaintiff and his counsel were served with the February 23, 2016 court order; Plaintiff does not contend that he did not receive the order or that he did not understand the order; and there is no indication that Plaintiff lacked the ability to comply with the order. Thus, Plaintiff?s lack of diligence and/or conscious failure to act constitutes a willful violation of the February 23, 2016 court order.
Even though willful noncompliance with the February 23, 2016 court order has been established, the Court has broad discretion in deciding whether to impose non-monetary sanctions.?(See Doppes, supra, 174 Cal.App.4th at p. 992.) While there is no question that Plaintiff has not been diligent in providing responses to the FI,?at this time, it does not appear to the Court that lesser sanctions (such as monetary, issue, or evidence sanctions) would fail to produce compliance with the discovery. (See Thomas v. Luong (1986) 187 Cal.App.3d 76, 81 [appellate court held that entry of default was an abuse of discretion where no showing that ?lesser sanction will serve to protect the legitimate interests of the [other] party?].) Thus, under the circumstances of this case, terminating sanctions are not warranted.[3]
Instead, an order compelling Plaintiff to comply with the February 23, 2016 court order and awarding monetary sanctions will serve to protect Defendants? legitimate interests. Defendants make a code-compliant request pursuant to Code of Civil Procedure section 2030.290, subdivision (c) for monetary sanctions against Plaintiff in the amount of $1,425. The amount of monetary sanctions requested is based on 7.5 hours spent by Defendants? counsel preparing the motion at his hourly rate of $150 and 2 hours of anticipated time for reviewing the opposition, drafting a reply, and attending the hearing. (See Borger Dec., ? 9.) The Court does not award monetary sanctions for anticipated expenses.?(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].) Therefore, Defendants are only entitled to monetary sanctions in the amount of $1,125 for the time spent by their counsel preparing the instant motion.
- Conclusion
Accordingly, Defendants? motion is DENIED IN PART and GRANTED IN PART. The motion is DENIED as to the request for terminating sanctions. The motion is GRANTED as to: the request for an order compelling Plaintiff to comply with the February 23, 2016 court order; and the request for an award of monetary sanctions, but only in the amount of $1,125. Consequently, within 20 days of the date of the filing of the Order, Plaintiff shall serve Dincel with code-compliant, verified responses to the FI in compliance with the February 23, 2016 court order and pay Defendants? counsel monetary sanctions in the amount of $1,125.
- Motion for Relief from Deemed Admissions?
??????????? Plaintiff moves for relief from deemed admissions on the grounds that his failure to timely serve substantially code-compliant responses to the RFA was due to mistake, inadvertence, and/or excusable neglect, and Defendants will not be substantially prejudiced by the withdrawal of his admissions.
- Legal Standard
A party will be allowed to withdraw an admission only if the court finds: (1) the admission resulted from ?mistake, inadvertence, or excusable neglect?; and (2) the party who obtained the admission will not be substantially prejudiced from allowing the admissions to be withdrawn. (Code Civ. Proc., ? 2033.300, subd. (b).) The moving party bears the burden of demonstrating that the failure to respond to the request for admissions was due to mistake, inadvertence, or excusable neglect. (New Albertsons, Inc., supra, 168 Cal.App.4th at p. 1420.) Since courts favor resolving cases on their merits, any doubts as to that showing must be resolved in favor of the moving party, and a court?s discretion in denying a motion is limited to situations where the mistake, inadvertence, or neglect is clearly inexcusable. (Id., at pp. 1420-1421.)
- Analysis
??????????? Plaintiff argues that his failure to timely serve substantially code-compliant responses to the RFA was due mistake, inadvertence, and/or excusable neglect because he was self-represented at the time the RFA were served; as a ?lay person, he did not understand the time requirements for responding to the request and he did not understand the implications of failing to timely respond?; ?being a lay person, [he] did not know how to oppose or respond to [Dincel?s motion to deem admitted the RFA]?; and ?being a lay person, [he] did not understand the requirement for a verification ?.? (Mem. Ps. & As., p. 3.)
In opposition, Defendants argue that the Court should deny Plaintiff?s motion because ?[t]he case law ? is clear that a party that chooses to represent himself cannot use this as a basis for relief from requests for admissions that the Court deems admitted.? (Opp?n., p. 1.)
The Court finds that Plaintiff fails to establish that the admissions resulted from mistake, inadvertence, or excusable neglect. When a litigant is appearing in propria persona, he or she is entitled to the same, but no greater, consideration than other litigants and attorneys.?(See County of Orange v. Smith (2005) 132 Cal.App.4th 1434, 1444 (?Smith?); see also Kobaysahi v. Super. Ct. (2009) 175 Cal.App.4th 536, 543; Rappleyea v. Campell (1994) 8 Cal.4th 975, 984-985; Taylor v. Bell (1971) 21 Cal.App.3d 1002, 1009.) A self-represented litigant is held to the same standards as an attorney. (Smith, supra, 132 Cal.App.4th at p. 1444.) ?In other words, when a litigant accepts the risks of proceeding without counsel, he or she is stuck with the outcome, and has no greater opportunity to cast off an unfavorable judgment than he or she would if represented by counsel.? (Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1267.) Since an attorney?s mistake of a law or miscalculation of time does not qualify as a basis for relief (see City of Fresno v. Super. Ct. (1988) 205 Cal.App.3d 1459, 1466-1467), it follows that the same holds true for a self-represented litigant.?Moreover, if a self-represented litigant receives documents and does not understand their significance, then he or she should consult a lawyer; excusable neglect cannot be established based his or her failure to take a necessary action to preserve rights upon receipt of the documents.?(See Goodson v. Bogerts, Inc. (1967) 252 Cal.App.2d 32, 40 (?Goodson?); see also Berset v. Berset (1954) 126 Cal.App.2d 684, 687.) Consequently, Plaintiff?s lack of legal knowledge or understanding, and/or his failure to properly represent himself simply does not constitute inadvertence, mistake, or excusable neglect. (See Goodson, supra, 252 Cal.App.2d at p. 40 [?At the outset, plaintiff elected to initiate his action in propria persona, and chose to and did proceed without a lawyer; voluntarily representing himself he is not, for that reason, entitled to any more (or less) consideration than a lawyer. Thus, any alleged ignorance of legal matters or failure to properly represent himself can hardly constitute ?mistake, inadvertence, surprise or excusable neglect? ?.?].)
- Conclusion
For the foregoing reasons, Plaintiff?s motion for relief from deemed admissions is DENIED.
Footnotes:
[1] Although willful failure to obey a prior court order is generally required in order for a court to impose a nonmonetary sanction, some courts have made exceptions for sufficiently egregious misconduct.?(See New Albertsons, Inc. v. Super. Ct. (Shanahan) (2008) 168 Cal.App.4th 1403, 1423, 1426 (?New Albertsons?) [the requirement of a prior order ?provides some assurance that such a potentially severe sanction will be reserved for those circumstances where the party?s discovery obligation is clear and the failure to comply with that obligation is clearly apparent?; however, egregious discovery misconduct may justify the imposition of nonmonetary sanctions without a prior order]; see also Bell v. H.F. Cox, Inc. (2012) 209 Cal.App.4th 62, 76 [plaintiffs not entitled to evidence sanction absent violation of a court order ?or other egregious misconduct?]; Security Pacific Nat. Bank v. Bradley (1992) 4 Cal.App.4th 89, 98.)?These courts have imposed nonmonetary sanctions where the sanctioned party cannot provide discovery it promised it would provide; the sanctioned party misrepresented the existence or availability of discovery; an order would be futile because discovery is unavailable, or was stolen or destroyed; the sanctioned party repeatedly and falsely assured the requesting party that all responsive discovery had been produced; or the sanctioned party?s actions materially impaired the court?s ability to ensure the orderly administration of justice. (New Albertsons, supra, 168 Cal.App.4th at pp. 1424-1431.)
[2] It appears from the parties? papers that Plaintiff has since appeared at, and Defendants? have taken. his deposition.
[3] The Court may revisit the issue of non-monetary sanctions should Plaintiff engage in any future misconduct.