Opposition_to_motion_to_compel__rfaOppositionCal. Super. - 4th Dist.April 12, 2019oO 0 3 a Un BA W N ND N N N N N N N m e e e e e e s e e em 0 N N Ln BA W N = O O N Y B R E W —= Oo Daniel Watts, Esq. SBN 277861 Dominick Severance, Esq. SBN 292507 G10 Galuppo Law A Professional Law Corporation 2792 Gateway Road, Suite 102 Carlsbad, California 92009 Phone: (760) 431-4575 Fax: (760) 431-4579 Attorneys for Real Party in Interest Ninus Malan SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO CENTRAL DIVISION In Re: RM Property Holdings, LLC Case No.: 37-2019-00018974-CU-PT-CTL Petitioner, Real Party in Interest Ninus Malan’s Opposition to Petitioner RM Property Holdings, LL.C’s Motion to Compel Further Ninus Malan, Responses to Requests for Admission to Real Party in Interest. Ninus Malan — Set One Date: January 30, 2020 Time: 1:30 P.m. Dept.: C-61 Petition Filed: April 12, 2019 INTRODUCTION Petitioner RM Property Holdings, LLC’s motions to compel are untimely, filed and scheduled to be heard after the discovery cutoff date. Code of Civil Procedure §2024.020(a) requires motions to compel to be heard by October 21, 2019. Consequently, the Petitioner’s motion is untimely. Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, 1585. This Court also cannot hear the Petitioner’s motions to compel because CCP §2024.020(a) prevents this Court from hearing a discovery motion on the same day as the petition hearing. Moreover, by waiting to even try to meet and confer until after the discovery motion hearing cutoff date, Petitioner failed to make a In Re RM Property Holdings, LLC Opposition to Motion to Compel Further Responses to Requests for Admission — Set One 1 oO 0 3 a Un BA W N ND N N N N N N N m e e e e e e s e e em 0 N N Ln BA W N = O O N Y B R E W —= Oo “reasonable and good faith attempt at an informal resolution of each issue presented by the motion” under CCP §§2016.040, 2030.090(a), 2031.060(a), and 2033.080(a). Finally, Petitioner is estopped from arguing that Malan must respond to discovery. Petitioner refused to answer questions during his deposition because he thinks discovery is stayed. This is not correct, but it is nevertheless what he said. He said an anti-SLAPP motion filed in a separate lawsuit against a different party somehow stays all discovery in this case that could possibly be relevant to that separate lawsuit. All of Petitioner’s questions are relevant to that other lawsuit, so if Petitioner thinks the anti-SLAPP stay (and subsequent appellate stay) prevents discovery in this case, then Petitioner’s motions must be denied or continued until after the stay is lifted. Consequently, this Court should not hear and deny Petitioner’s Motions to Compel. Because the motions are untimely and, according to Petitioner, stayed, the court should deny the motions to compel. STATEMENT OF FACTS A. This Court advanced the January 2020 initial hearing date to November 4, 2019, thereby advancing the discovery motion hearing cutoff date to October 2019. On April 12, 2019, Petitioner filed this petition for reinstatement. Register of Actions (“ROA”) #1. The initial hearing date on the petition was January 2020. On September 4, 2019, Petitioner appeared ex parte before this Court to specially set the hearing on the petition to a time earlier than January 2020. ROA #7-8. The Court granted the ex parte and specially set the hearing on the petition to November 4, 2019. ROA #10-12. Under Code of Civil Procedure §2024.020(a), motions to compel must be heard by October 21, 2019. B. Petitioner filed its Motions to Compel on November 19 and 20, 2019, which was almost a month after the discovery motion hearing cut-off date. Petitioner served its written discovery consisting of Requests for Admission, Form Interrogatories, Requests for Production, and Special Interrogatories to Real-Party-in-Interest Ninus Malan on September 5, 2019. Declaration of Daniel Watts (“Watts Decl.””) at 4. Malan served his discovery responses to Petitioner’s written discovery on October 4, 2019. Id. at 5. In Re RM Property Holdings, LLC Opposition to Motion to Compel Further Responses to Requests for Admission — Set One 2 oO 0 3 a Un BA W N ND N N N N N N N m e e e e e e s e e em 0 N N Ln BA W N = O O N Y B R E W —= Oo Petitioner did not complain about the responses or file a motion to compel before October 21%; instead, Petitioner waited until November 19 and November 20 to file its Motions to Compels regarding its written discovery propounded on Malan. ROA #42-57, 59-64. C. This Court ultimately continued the petition hearing and specially set the Petitioner’s Motions to Compel hearings to January 30, 2020. At the end of October, the Court continued the petition hearing date of November 4, 2019 to December 18, 2019 at the request of Malan’s counsel to permit a deposition of Petitioner’s person most knowledgeable, Salam Razuki. ROA #22-33. At the ex parte request of Petitioner, this Court continued the December 18, 2019 petition hearing date and the Petitioner’s Motions to Compel hearing dates for January 30, 2020. ROA #65-67, 81-88. D. Petitioner’s counsel and Razuki’s counsel objected at Razuki’s deposition based on an order from Judge Sturgeon and an Anti-SLAPP stay in a different case yet filed their Motions to Compel the same day. On November 19, 2019, Malan’s counsel deposed Razuki. Watts Decl. at 7. At the deposition, Razuki’s counsel, Steven Elia, filed objections to Razuki’s notice of deposition. Id. at 8 and Exhibit A. Both Steven Elia and Petitioner’s counsel, Timothy Daley, relied on those objections in the deposition in arguing that an order from Judge Sturgeon in a different case related to an anti-SLAPP motion filed by Malan prevented Malan’s counsel from asking - and Razuki from answering - certain questions. /d. at 49. Neither Elia nor Daley attached or filed the order from Judge Sturgeon upon which they relied in the deposition. Id. at 10. At the deposition, Razuki’s and Petitioner’s counsel objected based on Judge Sturgeon’s order and the Anti-SLAPP stay. Id. at 11 and Exhibit B. Elia instructed Razuki not to answer questions based on the order and stay. Id. Yet despite its own objections regarding the stay and order, Petitioner filed Motions to Compel against Malan the same day and the day after the deposition. ROA #65-67, 81-88. Petitioner filed motions to compel against Malan on the same day he argued that discovery was stayed. Judge Sturgeon ultimately refused to hear to the Anti-SLAPP motion. Id. at 12. Malan’s counsel has appealed Judge Sturgeon’s decision on the Anti-SLAPP motion. Id. at {13. In Re RM Property Holdings, LLC Opposition to Motion to Compel Further Responses to Requests for Admission — Set One 3 oO 0 3 a Un BA W N ND N N N N N N N m e e e e e e s e e em 0 N N Ln BA W N = O O N Y B R E W —= Oo E. Petitioner did not meet or confer about the written discovery requests despite multiple opportunities. Petitioner spoke in person to counsel for Malan at the ex parte heard before this court on October 28, 2019. Id. at {6. Petitioner spoke to counsel for Malan in early November. Id. Petitioner also spoke in person to counsel at the deposition of Salam Razuki on November 19, 2019, the day that Petitioner filed its Motions to Compel. Id. Yet at none of those meetings did Petitioner’s counsel ever mention the discovery responses. Id. He also never telephoned Malan’s counsel to talk about the discovery responses, either. /d. Instead, Petitioner sent a demand letter purporting to satisfy its “meet and confer” obligations about the written discovery. Id. It was not a meaningful attempt to meet or confer. Id. ARGUMENT A. The motions to compel are untimely under Code of Civ. Proc. §2024.020(a) and the court lacks the power to hear them. Code of Civil Procedure §2024.020(a) states, “any party shall be entitled ... to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action.” The rule regarding the discovery cut-off date is so strict that the CEB recommends that “counsel should personally serve the demand at least 90 days before the date scheduled for trial to ensure that there will be sufficient time before trial to [review the responses and/or documents], and to make any follow-up motions that may be required.” California Civil Discovery Practice (CEB) §8.15. The CEB further warns, “When calculating the amount of time needed to serve discovery requests before trial, remember that because many courts have busy schedules, counsel may not be able to schedule discovery motions on the date of his or her choice. Counsel must be sure to allow ample time to schedule discovery motions within the time requirements of CCP §2024.020.” Id. The Code’s rules are mandatory. In Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, the case was set for trial on November 14, 2005 with a discovery motion hearing cutoff date of October 31, 2005. Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, 1572. The appellate court In Re RM Property Holdings, LLC Opposition to Motion to Compel Further Responses to Requests for Admission — Set One 4 oO 0 3 a Un BA W N ND N N N N N N N m e e e e e e s e e em 0 N N Ln BA W N = O O N Y B R E W —= Oo found that “[The plaintiff] did not file its motion until December 6, and the hearing on the motion was not set, and did not occur, until January 11—nearly two and one-half months late... [The plaintiff] simply ignored the close of discovery and sought an order compelling responses to its inspection demands as though there had been no discovery motion cutoff date.” Id. at 1585- 1587. “[A] continuance or postponement of the trial date does not operate to reopen discovery proceedings” (§ 2024.020, subd. (b)).” Id. at 1575, fn. 10. Thus, the appellate court ruled that “that the motion to compel was untimely.” Id. at 1585. Here, the “date initially set for the trial of the action” was January 2020. On September 4, 2019, Petitioner appeared ex parte before this Court to specially set the hearing on the petition to a time earlier than January 2020. ROA #7-8. The Court granted the ex parte and specially set the hearing on the petition to November 4, 2019. ROA #10-12. As this Court advanced the hearing for the petition from January 2020 to November 4, 2019, by necessity the discovery motion cut-off dates under CCP §2024.020(a) were also advanced; otherwise, the parties could engage in discovery after the very hearing on the petition for which the discovery was necessary. Thus, the Petitioner had until October 21, 2019" to have his Motion to Compel filed and heard by this Court. Instead of following the CEB’s advice and warnings regarding the discovery motion cut- off dates, Petitioner served its written discovery on Real-Party-in-Interest Ninus Malan on September 5, 2019, which was the last possible day it could serve written discovery. Watts Decl. at 4. Why Petitioner waited four plus months to serve discovery on Malan is unknown. What is known is that under the Code, therefore, Real-Party-in-Interest Ninus Malan had 30 days to respond to Petitioner’s written discovery, which is October 5, 2019. Thus, with an October 21, 2019 discovery motion cut-off date, Petitioner left itself with only one day to (1) review all the 1 October 20, 2019 is exactly 15 days before the petition hearing date of November 4, 2019. However, October 20, 2019 is a Sunday. CCP §2016.060 requires that, “When the last day to perform or complete any act provided for in this title falls on a Saturday, Sunday, or holiday as specified in Section 10, the time limit is extended until the next court day closer to the trial date.” Thus, the discovery cut-off date is October 21, 2019 based on the November 4, 2019 petition hearing date. In Re RM Property Holdings, LLC Opposition to Motion to Compel Further Responses to Requests for Admission — Set One 5 oO 0 3 a Un BA W N ND N N N N N N N m e e e e e e s e e em 0 N N Ln BA W N = O O N Y B R E W —= Oo provided discovery, (2) adequately meet and confer with Malan’s counsel, and (3) file a Motion to Compel to satisfy CCP §1005(b)’s 16-days written notice requirement. Petitioner did not do any of these things by the deadline. Malan timely served responses to Petitioner’s written discovery on October 4, 2019. Watts Decl. at 5. Petitioner made no effort to meet and confer with Malan, however, to satisfy CCP §§1005(b) and 2024.020(a). Id. at 46. The only evidence Petitioner provides for how it satisfied its meet and confer obligation is a November 7" demand letter to Malan’s counsel. November 7" is over a month after the deadline to file the motion to compel under CCP §8$1005(b) and 2024.020(a), and three days after the November 4" date set for hearing/trial in this action. Petitioner then waited until November 19 and November 20 to file its Motions to Compel regarding its written discovery propounded on Malan, which is almost two months after CCP §§1005(b) and 2024.020(a) required Petitioner to file its Motion to Compel and 15-days after the November 4, 2019 petition hearing date. ROA #42-57, 59-64. The petition hearing date of November 4, 2019 was continued to December 18, 2019 at the request of Malan’s counsel to permit a deposition of Petitioner’s person most knowledgeable, Salam Razuki. ROA #22-33. And the December 18, 2019 petition hearing date was then continued to January 30, 2020 to permit the deposition of Malan. ROA #65-67, 81-88. But none of the discovery deadlines were continued. Code of Civ. Proc. §2024.020(b) expressly states, “a continuance or postponement of the trial date does not operate to reopen discovery proceedings,” much less the motion cutoff date. CCP §2024.020(b); Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, 1575, fn. 10. Thus, even though this Court ultimately continued the petition hearing to January 30, 2020, the discovery motion hearing cutoff date remained October 21, 2019. Although the Court ordered the parties to complete oral depositions in its October 30" minute order, it did not reopen discovery or allow written discovery or extend the deadline to file motions to compel written discovery. ROA #33. The motions to compel are untimely under CCP §2024.020(a) and should not be heard. In Re RM Property Holdings, LLC Opposition to Motion to Compel Further Responses to Requests for Admission — Set One 6 oO 0 3 a Un BA W N ND N N N N N N N m e e e e e e s e e em 0 N N Ln BA W N = O O N Y B R E W —= Oo A. This Court cannot hear the Petitioner’s Motion to Compel as CCP §2024.020(a) prevents this Court from hearing a discovery motion on the same day as the petition hearing. CCP §2024.020(a) expressly states, “any party shall be entitled ... to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action.” Here, in addition to being untimely, the hearing on the present Motion to Compel and the petition hearing itself are on the same date — January 30, 2020 — thereby violating CCP §20204.020. Not only is the Petitioner’s Motion to Compel hearing not “on or before the 15" day” of the initial trial date, but the Petitioner’s Motion to Compel hearing is not even 15 days before the continued petition hearing date. Based on the foregoing, the Motion to Compel hearing date violates CCP §2024.020(a) and the Petitioner’s Motion to Compel should not be heard. B. By their own argument in Razuki’s deposition that discovery in this matter is stayed due to Malan’s anti-SLAPP motion in a separate action, Petitioner’s counsel cannot in good faith claim that its Motion to Compel is somehow exempt from that same stay. Petitioner is estopped from arguing that Malan must answer questions, when Petitioner refused to answer questions based on a supposed discovery stay that remains in effect today. At Salam Razuki’s deposition on November 19, 2019, his counsel, Steven Elia filed objections to Razuki’s notice of deposition. Watts Decl. at {7-8 and Exhibit A. In his numerous filed objections based on Judge Sturgeon’s order, Razuki’s counsel claimed: The request would require the Responding Party to produce discovery in the Razuki v. Malan. el al. matter (Case No. 37-2018-00034229-CU-BC-CTL). Pursuant to Hon. Judge Eddie Sturgeon's Order issued on November 5, 2019, all discovery in the Razuki v. Malan. el al. matter is stayed due to Defendant Malan's pending Anti-SLAPP Motion. For reference, a true and correct copy of the minute order denying Plaintiff’s Ex Parte Request to Continue Trial and for an Order Shortening Time on Motion for Leave to Conduct Discovery is attached as Exhibit A hereto. Id. Both Steven Elia and Petitioner’s counsel, Timothy Daley, relied on those objections in the deposition in arguing that an order from Judge Sturgeon in a different case related to an Anti- In Re RM Property Holdings, LLC Opposition to Motion to Compel Further Responses to Requests for Admission — Set One 7 oO 0 3 a Un BA W N ND N N N N N N N m e e e e e e s e e em 0 N N Ln BA W N = O O N Y B R E W —= Oo SLAPP motion filed by Malan prevented Malan’s counsel from asking - and Razuki from answering - certain questions. Watts Decl. at 9. At the deposition, Razuki’s and Petitioner’s counsel instructed Razuki not to answer questions: MR. DALEY: ...Counsel, there is an order directing that there will be no discovery based on your SLAPP motion in the underlying case or, quite frankly, in any other case. So I'm going to let him answer to the best of his ability, but you're walking a very thin line. Go ahead. [2019-11-19 Razuki Depo 13:4-7] MR. ELIA: I'll object at this point. Counsel, this is a reinstatement case. There's a stay order in the Razuki v. Malan case that you filed an Anti-SLAPP motion that caused that. I think you're getting into that. So I'm going to instruct him not to answer, because I'm not going to violate that court order. [2019-11-19 Razuki Depo 57:7-12] MR. ELIA: I'm going to object. I'm going to instruct the witness not to answer any further questions. I'm not getting into discovery in the Razuki v. Malan matter that is stayed per Judge Sturgeon's court order. [2019-11-19 Razuki Depo 61:9-12] MR. ELIA: Same objections, instruct not to answer. The same objections are lodged or attached as Exhibit 3. Those are my objections. So I'll refer to it as beyond the scope. When I say beyond the scope, I mean it violates Judge Sturgeon's order that there's a discovery stay in the Razuki versus Malan case. [2019-11-19 Razuki Depo 66:10-16] MR. ELIA: I'll instruct him not to answer the question because it violates Judge Sturgeon's order. It's beyond the scope of this deposition. [2019-11-19 Razuki Depo 90:4- 6] MR. ELIA: I'm not going to allow any questioning on this -- the Razuki versus Malan lawsuit that's stayed. You're attempting to conduct discovery in an action that's stayed. [2019-11-19 Razuki Depo 90:25-91:3] MR. ELIA: Mr. Razuki, you're not to answer that question. Mr. -- counsel is violating Judge Sturgeon's order and I'm not going to allow it. You're free to dismiss your frivolous Anti-SLAPP motion. Then you can ask discovery and you can conduct it, but you don't get to do that, file an Anti-SLAPP motion, automatically freeze discovery and attempt to gain discovery in another case. [2019-11-19 Razuki Depo 91:16-23] MR. ELIA: Objection. He's not going to answer this question. Daniel, move along. I'm not going to allow this. You're violating a court order knowingly at this point. [2019-11-19 Razuki Depo 92:20-23] MR. ELIA: I'm going to instruct the witness not to answer this question. It violates Judge Sturgeon's order. Beyond the scope of this deposition. [2019-11-19 Razuki Depo 98:23- 25] MR. ELIA: I'm going to object. I'm going to instruct him not to answer for the same objections as before. This violates Judge Sturgeon's order on the freeze on discovery. This goes to the very heart of Mr. Razuki's complaint in the matter entitled Razuki v. Malan. In Re RM Property Holdings, LLC Opposition to Motion to Compel Further Responses to Requests for Admission — Set One 8 oO 0 3 a Un BA W N ND N N N N N N N m e e e e e e s e e em 0 N N Ln BA W N = O O N Y B R E W —= Oo And I'm going to instruct the witness not to answer any questions on this document. [2019-11-19 Razuki Depo 105:10-17] MR. DALEY: You know what? I'm going to — I think for the record, Counsel, you are out of bounds. I think you're unprofessional. I think that you're now acting in violation of Judge Sturgeon's order as well as other criminal matters that may or may not be pending. [2019-11-19 Razuki Depo 124:21-25] Decl. Watts at {11 and Exhibit B. Filing an anti-SLAPP motion stays discovery and discovery motions. Britts v. Superior Court (2006) 145 Cal. App.4th 1112, 1128. According to Petitioner’s arguments at the deposition, the anti-SLAPP stay in Razuki v. Malan applies to this lawsuit, too, which means it applies to Petitioner’s motions to compel, which were filed on the same day as the deposition. ROA #65-67, 81-88. San Diego Superior Court Local Rules, civil rule II(C) states, “We expect lawyers to conduct themselves in the discovery process as if a judicial officer were present.” Justice requires that Petitioner be estopped from claiming that the very order and stay they used to prevent Razuki from answering questions does not equally apply to their own Motions to Compel. To do otherwise would allow Petitioner to claim one argument in deposition (where it was to act as if a judicial officer were present) while presenting an entire different argument before this Court by its filing of its Motions to Compel. Either all discovery was stayed or it wasn’t; Petitioner cannot have its cake (prevent Razuki from answering) and eat it too (simultaneously file Motions to Compel Malan). C. Petitioner did not meet and confer before filing this motion. Except when moving for a protective order under CCP §2032.510(d)-(e), each discovery method requires that the parties engage in a "reasonable and good faith attempt at an informal 2 Malan’s position, and the position argued at Razuki’s deposition, is that a discovery stay in a different case for a different party does not affect this case and these parties. Moreover, Malan’s position is that any claimed order from Sturgeon (which was not included in Petitioner’s and Razuki’s objections and never cited specifically by Elia and Daley) does not over-ride this Court's order to Razuki to be deposed and answer questions from Malan. Malan’s position is that Elia’s and Daley’s objections were frivolous and, consequently, Malan filed a Motion to Compel with this Court based thereon. In Re RM Property Holdings, LLC Opposition to Motion to Compel Further Responses to Requests for Admission — Set One 9 A W N OO © 0 NN O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 2a 23 24 25 26 27 28 resolution of each issue presented by the motion." See CCP §§2016.040, 2030.090(a) (interrogatories), 2031.060(a) (inspection demands), and 2033.080(a) (requests for admission). Here, Petitioner refused to meet and confer with Malan’s counsel, despite several opportunities. Petitioner spoke in person to counsel for Malan at the ex parte heard before this court on October 28", but Petitioner did not try to confer about discovery. Id. at 96. Petitioner spoke to counsel for Malan in early November, but still did not discuss discovery. Id. Petitioner also spoke in person to counsel at the deposition of Salam Razuki on November 19, 2019, the day that Petitioner filed its Motions to Compel, and again, Petitioner did not mention the written discovery responses. Id. Petitioner never telephoned Malan’s counsel or met with him to talk about the discovery responses. /d. Instead, Petitioner sent a demand letter purporting to satisfy its “meet and confer” obligations about the written discovery — and did so affer the discovery motion hearing cutoff date of October 21, 2019. Id. Thus, by waiting to even fry to meet and confer until affer Petitioner was prohibited from filing its motions to compel, Petitioner failed to make a “reasonable and good faith attempt at an informal resolution of each issue presented by the motion” under CCP §§2016.040, 2030.090(a), 2031.060(a), and 2033.080(a). CONCLUSION Based on the foregoing, this Court should not hear Petitioner’s untimely and improper Motion to Compel. Dated: January 16, 2020 G10 Galuppo Law A Professional Law Corporation By: (ma DANIEL WATTS, ESQ. DOMINICK SEVERANCE, ESQ. Attorneys for Ninus Malan, Real Party in Interest In Re RM Property Holdings, LLC Opposition to Motion to Compel Further Responses to Requests for Admission — Set One 10
