PANKAJ SHARMA vs. PAUL SUNAK

Case No. FCS055977

Motion to Compel Further Responses to Discovery

Motion to Compel Further Responses

Plaintiffs’ motion to compel further responses to their first sets of form and special interrogatories, requests for production of documents, and requests for admission is denied without prejudice.

Plaintiffs’ meet and confer declaration does not “state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented” (Code Civ. Proc. § 2016.040) and fails to establish that counsel engaged in a “serious effort at negotiation

and informal resolution” that amounted to a sufficient “attempt to talk the matter over, compare their views, consult, and deliberate.” (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294; Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1439.) The declaration establishes only that Attorney Roundy did not immediately respond to Plaintiffs’ counsel’s attempts to meet and confer. (Decl. of Benjamin, ¶ 4.) Counsel have not actually “talk[ed] the matter over, compare[d] their views, consult[ed], and deliberate[d]” regarding any of the discovery requests.

The parties are directed to actually meet and confer, in person, by telephone, or by videoconference, to compare their views, consult and deliberate regarding each discovery request and issue presented in this motion. If, after actually discussing the matter, the parties are ultimately unable to informally resolve each and every issue regarding the outstanding discovery, Plaintiffs may file a motion to compel further responses within 45 days of the date of the hearing or any later date agreed upon by the parties.

No monetary sanctions are awarded at this time.

Motion for Sanctions

The motion for sanctions filed by Cross-defendants Kennedy Wilson Properties Ltd. and Eric Rehn is denied.

The motion seeks sanctions pursuant to Code of Civil Procedure section 128.7 against Cross-complainant Paul Sunak and recently substituted attorney Ronald Roundy for the refusal to dismiss the cross-complaint. However, Cross-complainant Sunak, a represented party, could not have violated section 128.7 because the statute applies only to an attorney or a party without attorney who signs, files, or later advocates a pleading, motion, or similar paper. (Code Civ. Proc. § 128.7(b); In re Marriage of Reese & Guy (1991) 73 Cal.App.4th 1214, 1220.) Additionally, the court notes that, unlike the circumstances in Peake v. Underwood (2014) 227 Cal.App.4th 428, 449-450, Crossdefendants have not presented any evidence suggesting that Cross-complainant Sunak and his counsel do not actually believe in the merits of his claims.

As for current attorney Ronald Roundy, counsel can only be sanctioned for his own conduct, not the conduct of his predecessors. (Primo Hospitality Group, Inc. v. Haney (2019) 37 Cal.App.5th 165, 175.) At the time the motion was filed and served, Attorney Roundy had not taken any action that might be construed as further advocating the crosscomplaint. (See, id. at 175-176 [“at the time Libarle was served with the motion for sanctions, Libarle had not presented any of the objectionable claims in the complaint to the court, whether by signing, filing, submitting, or further advocating the claims, so he could not be held liable for sanctions under section 128.7 based on the notice of motion that was served”].)

To the extent Attorney Roundy has advocated the cross-complaint in his opposition, that conduct is not a part of this motion.