Michael Younessi vs. Chaim J Woolf

Motion to Compel Answers to Request for Admissions

Cal. Super. - 4th Dist.October 15, 2013

O O ® 9 8 n n B L N = N O N N N N O N N N N = e m e m e m e d p e p m e e f e e d c o 1 O N L h B R W N = O Y N Y N N R W e e MITCHELL F. MULBARGER, BAR ID #166266 mmulbarger@bknlawyers.com BAKER, KEENER & NAHRA, LLP 633 West 5" Street Suite 4900 Los Angeles, California 90071 Telephone: (213) 241-0900 Facsimile: (213) 241-0990 Attorneys for Defendant, CHAIM J. WOOLF SUPERIOR COURT FOR THE STATE OF CALIFORNIA IN THE COUNTY OF ORANGE MICHAEL YOUNESSI, an individual; ALEA INVESTMENTS, LLC, a California Limited Liability Company, Plaintiffs, VS. CHAIM J. WOOLF,an individual; CHIAM JACOB WOOLF, aka CHIAM WOOLF,an individual; RONAN COHEN, an individual; STEVEN K. CAMHI, aka STEVEN KASSAN CAMHI, aka STEVEN CAMHI, an individual; RONALD RANDY CAMHI, aka RONALD R. CAMHI, aka RON CAMHI, an individual; MICHELMAN & ROBINSON, LLP; and DOES 1-100, Inclusive, Defendants. 1966-5197-0001 Case No. 30-2013-00681537-CU-PN-CIC [Assigned for all purposes to Judge Sheila Fell, Dept. C-25] Complaint Filed: 10-15-2013 SAC Filed: 09-29-2014 NOTICE OF SECOND CONTINUANCE OF MOTION AND MOTION OF DEFENDANT CHAIM J. WOOLF TO COMPEL PLAINTIFFS, MICHAEL YOUNESSI AND ALEA INVESTMENTS, TO PROVIDE FURTHER RESPONSES TO REQUESTS FOR ADMISSIONS, SET ONE, AND REQUEST FOR MONETARY SANCTIONS AGAINST PLAINTIFFS AND THEIR COUNSEL; MEMORANDUM OF POINTS AND AUTHORITIES [Filed concurrently with Separate Statementof Items in Dispute andDeclaration of Mitchell F. Mulbarger] First Date: = June 11, 2014 Second Date: January 21, 2015 NEW DATE: July 27,2016 TIME: 10:00 a.m. DEPT.: C-25 RESERVATION NO.: 72369577 1- DEF WOOLF’S NOTICE OF SECOND CONTINUANCE OF MOTION TO COMPEL PLAINTIFFS TO PROVIDE FURTHER RESPONSES TO REQUEST FOR ADMISSIONS, SET ONE f k N O N O N N N N R N R H m e m e m e m p e p e pe e e e d R X A n R e W N = D N Y N Y l s W N R O O o 0 0 N N N N n n W N TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD HEREIN: PLEASE TAKE NOTICE that on July 27, 2016 at 10:00 a.m., or as soon thereafter as the matter may be heard in Department C-25 of the Orange County Superior Court, located at 700 Civic Center Drive West, Santa Ana, California 92701, Defendant, CHAIM J. WOOLF (“WOOLF”), will move the Court for an order compelling Plaintiffs, MICHAEL YOUNESSI (“YOUNESSI”) and ALEA INVESTMENTS (“ALEA”), to provide further responses to Request for Admissions. WOOLF further requests that the Court order that Plaintiffs, YOUNESSI and ALEA, and their attorney of record, Robert Drescher, pay monetary sanctions, jointly and severally, in the amount of $1,575.00 for the misuse of the discovery process and the failure to participate in any meaningful meet and confer despite numerous requests that they do so. This Motion is brought because Plaintiffs have failed to provide responses in compliance with Code of Civil Procedure § 2033, and the objections asserted are without merit and are evasive pursuant to Code of Civil Procedure § 2023.010. The request for monetary sanctions against Plaintiffs and their counsel of record herein is brought pursuant to Code of Civil Procedure § 2033.290, and 2023.010, et seq. This Motion is based upon this Notice, the attached Memorandum of Points and Authorities, the Declaration of Mitchell F. Mulbarger, the exhibits attached hereto, the Separate Statement of Items in Dispute, the court files and records in this matter, and any other further evidence provided at the hearing of this Motion. DATED: May 5, 2016 BAKE ENER & NAHRA, LLP B y MITCHELL F. MULBARGER Attorneys for Defendant, CHAIM J. WOOLF 966-5197-0001 22 - DEF WOOLF’S NOTICE OF SECOND CONTINUANCE OF MOTION TO COMPEL PLAINTIFFS TO PROVIDE FURTHER RESPONSES TO REQUEST FOR ADMISSIONS, SET ONE f d 0 N N N L n l s W Y = O Y Y R W = O Y N Y Y W MEMORANDUM OF POINTS AND AUTHORITIES 1. INTRODUCTION. ~ Thisis a legal malpractice action arising out of Defendant WOOLF’S prior representation of Plaintiffs in an underlying civil litigation matter entitled Diamond Enterprises, Ltd. v. Younessi,et al., Orange County Superior Court Case No. 30-2009-0012544. Plaintiffs lost the underlying action due to the fact that the Judge found that Mr. Younessi had made material misrepresentations and omissions to Dr. Houman (Diamond) regarding two commercial real estate investments and that Mr. Younessi’s testimony was self-serving, evasive and not credible. Plaintiffs allege a long laundry list of both pre-trial and trial decisions and tactics which Plaintiffs now contend were negligent, including an alleged failure to object to the Second Amended Complaint, post jury fees, prepare for trial, depose witnesses, or object to the underlying plaintiffs evidence that was offered at trial. (See Exhibit “A” — Plaintiffs’ Complaint, paragraph 10.) In addition to allegations of negligence, Plaintiffs also contend that Defendants breached their fiduciary duty as it relates to the billing and invoicing from the underlying matter and allegedly overbilled or billed for purportedly incompetent work. (See Plaintiffs’ Complaint, paragraphs 27, 29, 44, and 49 as examples of these allegations.) | 2. PROCEDURAL HISTORY. a. History of Discovery. In November 2013, discovery was propounded upon Plaintiffs, including Form Interrogatories, Special Interrogatories, Request for Production of Documents and Request for Admissions. (Mulbarger Declaration, Para. 3-5 and Exhibits B-E.) Plaintiffs’ counsel requested a 30-day extension to respond to discovery, which was granted. (Mulbarger Declaration, Para. 6.) When the discovery was ultimately “responded to” on January 24, 2014, Defendant was met with almost nothing more than standardboilerplate objections. (Mulbarger Declaration, Para. 7-9 and Exhibits F-1.) Defense counsel made numerous attempts to meet and confer with Plaintiffs’ counsel in both January and early February 2014. (Mulbarger Declaration, Para. 10 and Exhibit J.) Eventually, on February 12,2014, Plaintiffs’ counsel telephoned defense counsel and agreed, orally, that he would supplementall of the outstanding discovery responses by March 19, 2014. (Mulbarger Declaration, 966-5197-0001 23 DEF WOOLF’S NOTICE OF SECOND CONTINUANCE OF MOTION TO COMPEL PLAINTIFFS TO PROVIDE FURTHER RESPONSES TO REQUEST FOR ADMISSIONS, SET ONE O O 0 0 3 O N W n h h W N ) N D N O b o N o N N N N M N n N N o — — _ — — _ — _ — — _ — _ — _ p t o o ~ J a N w n a N w o b h = o \ O 0 a N W n EE N w a N o — o O Para. 11.) However, there was some confusion and a requestfor clarification email was sent on February 13, 2014 requesting that Plaintiffs’ counsel agree to a mutual 35-day extension on the 45-day time limit to file a motion to compel. Without an extension of time for the motion to compel, Plaintiffs’ counsel could conceivably fail to respond or supplement the discovery as promised on March 19™, andit would be too late for the defense to file a motion to compel concerning the prior inadequate responses. Defense counsel asked Plaintiffs’ counsel for a clarification in an agreement to the extension of the motion to compel cutoff date, and was met with no response whatsoever. (Mulbarger Declaration, Para. 12, Exhibit K.) A day later, a second email was sent making the same request, which likewise went unresponded to. (Mulbarger Declaration, Para. 13) A third email was sent requesting a response on February 18, 2014, which likewise went unanswered. (Mulbarger Declaration, Para. 14, Exhibit L.) Finally, after receiving no response at all to any telephone messages or emails, a formal meet and confer letter was sent on February 24, 2014, since it seemed that Plaintiffs’ counsel was not willing to grant an extension to the 45-day time limit to file a motion to compel in order to conform with the date by which defense counsel agreed Plaintiffs could supplement discovery responses. As with the previous emails and telephone messages, Plaintiffs’ former counsel, Robert Drescher, failed to respond to the formal February 24, 2014 “meet and confer” letter that was sent to him. (Mulbarger Declaration, Para. 15 and Exhibit M.) This Motion was originally filed on March 13, 2014 for a hearing on June 11, 2014. However, this case was dismissed on May 29, 2014 when Plaintiffs failed to file an amendment to the Complaint and was only later re-activated, as a result of Plaintiffs’ Motion for relief from dismissal. Afterthat relief was granted, the Motions were re-filed. Defendants then Appealed the Court’s Motion Granting Relief. On April 20, 2016 the Court ofAppeal issued its Remittitur re-activating the case. 3. APPLICABLE LAW. A motion to compel is proper when responding party serves objections to the Request for Admissions. California Code of Civil Procedure § 2033.290 states as follows, in pertinent part: “(a) On receipt of a response to requests for admissions, the party requesting admissions may move for an order compelling a further response if that party deemsthat either or both of the following apply: 966-5197-0001 DEF WOOLF’S NOTICE OF SECOND CONTINUANCE OF MOTION TO COMPEL PLAINTIFFS TO PROVIDE FURTHER RESPONSES TO REQUEST FOR ADMISSIONS, SET ONE S O L N N N n n A W N N O N N N O N N N N O N m = m e e m e e e a e m C O 3 A N n n R k W R N = O O N Y N A W N (1) An answerto a particular Request is evasive or incomplete. (2) An objection to a particular Request is without merit or too general. (b) A motion under subdivision (a) shall be accompanied by a meet and confer declaration under section 2016.040. (c¢) Unless notice of this motion is given within 45 days ofthe service of the response, or any supplemental response, or any specific later date to which the requesting party and the responding party have agreed in writing, the requesting party waives any right to compel any further response to the requests for admission.” 4. THE REQUESTS ARE PROPER AND DO NOT SEEK INADMISSIBLEOPINION OR CONCLUSION AND ARE NEITHER ARGUMENTATIVE NOR LACKING FOUNDATION. Plaintiffs’ Complaint against Defendants concerns allegations of both legal malpractice, as well as allegations that Defendant purportedly overbilled or billed for incompetent work for his legal services. (See Plaintiffs’ Complaint, paragraphs 27, 29, 44, and 49, as examples) | In order to obtain details concerning Plaintiffs’ allegations of alleged billing improprieties, Defendant propounded 11 Requests for Admissions (“RFAs”) each to both of the Plaintiffs referring to each and every invoice that was sent to Plaintiffs and asking each Plaintiff to admit that the entries accurately reflect the time spent by Defendant WOOLF in representing Plaintiffs during the applicable billing periods. Rather than respond to the discovery, Plaintiffs’ counsel stated the same identical boilerplate objection to each and every Request,stating: “Objection: The question seeks plaintiff’s opinion or conclusion without establishing a proper foundation. Further objection: The question assumes facts not established; thus there is no foundation for the question. Again, further objection: The question is argumentative in form and requires an expert opinion.” Each of these objections is without merit. Nothing in the Requests requires an opinion or lacks foundation. Rather, the Requests merely seek that the Plaintiffs either admit or deny whether or not they are contending that the invoices, attached to the RFAs, accurately reflect the time spent on each of the tasks described. It is well recognized that RFAs are commonly used to establish the truth of specified facts and are authorized for discovery purposes. In the present case, Plaintiffs’ Complaint 966-5197-0001 -5- DEF WOOLF’S NOTICE OF SECOND CONTINUANCE OF MOTION TO COMPEL PLAINTIFFS TO PROVIDE FURTHER RESPONSES TO REQUEST FOR ADMISSIONS, SET ONE S S O L N N N n h W N = N O N O N O N N N N N N N e m e m e d e k ee d p m p e d 0 ~ ~ O N n n b h W N D O D N N B R W N e m alleges that Defendants overbilled them. Plaintiffs’ Complaint does not specify what was overbilled and what was not. <8RFAs may be properly used to establish “opinions relating to fact,” “an application of law to fact,” or a matter thatis in controversy between the parties. Code of Civil Procedure § 2033.010. In Burke v. Superior Court (1969) 71 Cal.2d 276, 280, the court held that a request for admission seeking an application of law to fact as to whether or not an attachment levy was “regular on its face” was an acceptable form of request for admission. Further, in Garcia v. Hyster (1994) 28 Cal.App.4™ 724,735, the court foundthat a request for admission seeking whether or not an employer was “negligent” and the “legal cause” of plaintiff's injury was likewise a valid use ofthe request for admissions. In the present case, Defendant’s Requests for Admissions merely seek Plaintiffs’ contentions as to whether or not the invoices which the Plaintiffs received, and which are attached to the Request for Admissions themselves, accurately reflect the time spent by MR. WOOLF in representing them during the applicable time periods. These RFAs are designed to seek the factual basis for Plaintiffs’ contention that Defendant WOOLF allegedly overbilled them during the time that he represented them. The use of a request for admission to obtain the factual basis of Plaintiffs’ contentions is a permissible use of the discovery device. Garcia, supra. Otherwise, should Plaintiffs’ objections be sustained, Defendant would have no recourse but to wait until an expert witness is deposed, which is often weeks or days before the trial date, in order to ascertain what the details are of the contentions that are being made by the Plaintiffs against him. 5. SANCTIONS ARE WARRANTED. Plaintiffs’ counsel refused to respond to any efforts to resolve this discovery dispute short of a Motion to Compel. As stated more fully in the Declaration of Mitchell F. Mulbarger, three and one- half hours were spent preparing this present motion and accompanying documents and it is anticipated that an additional three and one-half hours will be spent reviewing the opposition, preparing a reply brief, and attending the hearing on this motion. (Mulbarger Declaration, Para. 17-18.) 1 1 1 966-5197-0001 -6- DEF WOOLF’S NOTICE OF SECOND CONTINUANCE OF MOTION TO COMPEL PLAINTIFFS TO PROVIDE FURTHER RESPONSES TO REQUEST FOR ADMISSIONS, SET ONE © 0 3 A& A U n A W O N = N O N N N N O N N N N m m m p m m m p m e m p m p m p d fe a © 3 A N n h R R W N = D Y e N Y Y E W N = O Plaintiffs’ conduct with respect to the objections, and in particular their counsel’s refusal to respond to meet and confer efforts required defense counselto file this present motion, which should have otherwise been unnecessary. Code of Civil Procedure § 2023.010 states in pertinent part as follows: “Misuses of the discovery process include, but are not limited to, the following: * kx (d) Failing to respond or submit to an authorized method of discovery; (e) Making, without substantial justification, an unmeritorious objection to discovery. (f) Making an evasive response to discovery.” Plaintiffs’ counsel has not identified if Plaintiffs are going to supplement any of the discovery responses and has failed to communicate with defense counsel with regard to his intentions, presumably hoping, strategically, that Defendant will fail to file a motion to compel within the 45-day time period. Such conduct warrants sanctions in orderto reimburse the defense for the cost of preparing the present Motion to Compel. Plaintiffs’ new counsel has not made any effort to supplement these responses or respond to any of the outstanding discovery. 6. CONCLUSION. Based upon the foregoing, and the Separate Statement of Items in Dispute, as well as the Declaration of Mitchell F. Mulbarger, a court order that Plaintiffs, Younessi and Alea, provide full and complete responses to Requests for Admissions 1 through 11, and sanctions in the amount of $1,575.00 be awarded against Plaintiffs and their attorney, jointly and severally, in order to reimburse the defense for the cost of compelling further responses. DATED: May 5, 2016 BAKERZ KEENER & NAHRA, LLP By / TT MITCHELL F. MULBARGER Attorneys for Defendant, CHAIM J. WOOLF 966-5197-0001 -7- DEF WOOLF’S NOTICE OF SECOND CONTINUANCE OF MOTION TO COMPEL PLAINTIFFS TO PROVIDE FURTHER RESPONSES TO REQUEST FOR ADMISSIONS, SET ONE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE Michael Younessi, etc., et al. v. Chaim J. Woolf, etc., et al. Orange County Superior Court, Case No. 30-2013-00681537-CU-PN-CJC STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am overthe age of 18 and not a party to the within action; I am employed by BAKER, KEENER & NAHRA, LLP in the County of Los Angeles at 633 West Fifth Street, 55h Floor, Los Angeles, California, 90071. On May 5, 2016, I served the foregoing document(s) described as NOTICE OF SECOND CONTINUANCE OF MOTION AND MOTION OF DEFENDANT CHAIM J. WOOLF TO COMPEL PLAINTIFFS, MICHAEL YOUNESSI AND ALEA INVESTMENTS, TO PROVIDE FURTHER RESPONSES TO REQUESTS FOR ADMISSIONS, SET ONE, AND REQUEST FOR MONETARY SANCTIONS AGAINST PLAINTIFFS AND THEIR COUNSEL; MEMORANDUM OF POINTS AND AUTHORITIES [Filed concurrently with Separate Statement of Items in Dispute and Declaration of Mitchell F. Mulbarger] by placing true copies thereof enclosed in sealed envelope(s), as follows: (BY MAIL) I caused to be placed said envelope(s) for collection and mailing, following ordinary business practices, at the business offices of BAKER, KEENER & NAHRA, LLP,at the address set forth and addressed as shown on the attached service list, for deposit in the United States Postal Service. I am readily familiar with the practice ofBAKER, KEENER & NAHRA, LLP for collection and processing correspondence for mailing with the United States Postal Service, and said envelope(s) will be deposited with the United States Postal Service on said date in the ordinary course of business. ] (BY OVERNIGHT DELIVERY) I caused to be placed said document(s) in envelope(s) for collection following ordinary business practices , at the offices ofBAKER, KEENER & NAHRA, LLP,at the address set forth and addresses as shown on the attached service list, for collection and delivery to a courier authorized to receive said document(s), with delivery fees provided for. I am readily familiar with the practice ofBAKER, KEENER & NAHRA, LLP for collection and processing document(s) for overnight delivery, and said envelope(s) will be deposited for receipt by on said date in the ordinary course of business. [] 'RSONAL SERVICE) I caused to be delivered such envelope(s) by hand to the offices of the addressee(s). : (BY ELECTRONIC SERVICE)I caused the above-referenced document(s) to be transmitted to the interested parties via electronic transmission to the e-mail dresses as stated on the attached service list. (STATE) I declare that I am employed in the office of a member of the Bar of this Court at whose direction the service was made. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on May 5, 2016 at Los Angeles, Calif; KIMBERBEY L. MIJARES 966-5197-0001 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SERVICE LIST Michael Younessi, etc., et al. v. Chaim J, Woolf, etc., et al. Orange County Superior Court, Case No. 30-2013-00681537-CU-PN-CJC George S. Wass, Esq. 2145 E. Tahquitz Canyon Way Suite 4-911 Palm Springs, CA 92262 Gwass.wasslaw(@gmail.com Tel 760-774-3000; Fax 760-406-6022 Clifford L. Casey, Esq. Attorney at Law 777 E. Tahquitz Canyon Way Suite 200-19 Palm Springs, CA 92262 Tel 760-318-2830; Fax 760-318-2898 Vikram Sohal, Esq. NEMECEK & COLE 15260 Ventura Boulevard, Suite 920 Sherman Oaks, CA 91403-5344 vsohal@nemecek-cole.com Tel 818.788.9500 | Fax 818.501.0328 RONAN COHEN,ESQ. 644 Flint Avenue Long Beach, CA 90814 ronancohen(@yahoo.com Tel 740-498-1820 Alejandro S. Angulo, Esq. Eliot M. Houman, Esq. RUTAN & TUCKER, LLP 611 Anton Boulevard, Suite 1400 Costa Mesa, CA 92626-1931 ehouman@rutan.com Tel 714-641-5100 Fax 714-546-9035 966-5197-0001 Attorneys for Plaintiffs Counsel for Appellants (Plaintiffs) Attorneys for Defendant STEVEN K. CAMHI Pro Per Defendant Courtesy Copy Attorneys for Lienholder, DIAMOND ENTERPRISES, LTD., LP Page 1 of 1 Mijares, Kim From: donotreply@occourts.org Sent: Thursday, May 05, 2016 11:00 AM To: Mijares, Kim Subject: Superior Court of Orange County - Motion Reservation Request - CONFIRMATION LonCourt ofCalifornia,CountyofCEES dad iJase]2 Your reservation request has been CONFIRMED by the Superior Court. The hearing date and time below has been reserved. You will be asked to provide your reservation number to the court at a later date. MOVING PAPERS MUST BE E-FILED WITHIN 24 HOURS AFTER COMPLETING THE ON-LINE RESERVATION. Failure to submit your moving papers within 24 hours will result in the automatic CANCELLATION of the reservation. NOTE: To EXPEDITE your MOTIONfiling place the appropriate Court Reservation number (e.g. 7XXXXXXX) on each Motion being submitted. Please do nott reply¢to this email. Reservation Number: 72368577 Hearing Date: July 27, 2016 Hearing Time: 10:00 AM Department: C25 Motion Type: Motion to Compel Response to Requests for Admissions Case Number: 30-2013-00681537-CU-PN-CIC Case Title: Younessi vs. Woolf Judicial Officer: Hon. Sheila Fell Email: kmijares@bknlawyers.com Date of Request: May 5, 2016 Time of Request: 10:58 AM Transaction Number: 632120291 STa 5/5/2016