Sonya S. Weinfeld v. Justin David Fox, et al

Case Number

25CV01512

Case Type

Hearing Date / Time

Mon, 12/01/2025 - 10:00

Nature of Proceedings

Motion of Plaintiff Sonya S. Weinfeld to Compel Further Responses to Requests for Production, Set One, and Request for Monetary Sanctions

Tentative Ruling

Sonya S. Weinfeld v. Justin David Fox, et al.       

Case No. 25CV01512

           

Hearing Date: December 1, 2025                               

HEARING: Motion of Plaintiff Sonya S. Weinfeld to Compel Further Responses to Requests for Production, Set One, and Request for Monetary Sanctions

ATTORNEYS:        For Plaintiff Sonya S. Weinfeld: Adam D.H. Grant, Ryan T. Koczara, Thomas R. Dreblow, Grant Shenon, Grant Shenon Almaraz  

                                    For Defendants Justin David Fox and Thyne Taylor Fox Howard LLP: Frances M. O’Meara, Wood, Smith, Henning & Berman LLP                   

TENTATIVE RULING:

The motion of plaintiff Sonya S. Weinfeld to compel further responses to requests for production of documents, set one, is denied. No monetary sanctions are awarded in favor of or against any party.

Background:

This action commenced on March 10, 2025, by the filing of the complaint by plaintiff Sonya S. Weinfeld against defendants, attorney Justin David Fox and his law firm Thyne Taylor Fox Howard LLP (TTFH) (collectively, defendants).

Following the partial granting of a motion to strike portions of the original complaint, Weinfeld filed her operative first amended complaint (FAC) on October 16, 2025, for: (1) professional negligence, (2) breach of fiduciary duty, (3) intentional misrepresentation, (4) negligent misrepresentation, (5) concealment, and (6) deceit.

As alleged in the FAC:

On December 6, 2021, defendants commenced a joint representation of both Weinfeld and her then-boyfriend Damian Deveze to advise each of them in regard to forming a limited liability company named 792 Chelham Way, LLC (Chelham LLC). (FAC, ¶ 9.)

According to Fox, Weinfeld and Deveze contacted Fox to form the Chelham LLC as a way for Deveze to acquire a percentage ownership interest in a single family home (the Property) that was already owned free and clear by Weinfeld. (FAC, ¶ 9.) About a week later, on December 13, 2021, defendants completed the formation documents. (Ibid.) At the time of contacting Fox, Weinfeld and Deveze were already parties to a written agreement dated March 26, 2020, titled “Agreement and Release,” by which Weinfeld and Deveze waived any right, title or interest in the sole property of the other. (Ibid.) The Agreement and Release further specified the agreed conditions by which property by either party could become joint property of Weinfeld and Deveze. (Ibid.)

Neither Weinfeld nor Deveze had a written engagement agreement with Fox or TTFH. (FAC, ¶ 10.) Fox stated that he would charge defendants less than $1,000. (Ibid.)

Fox learned from defendants that Weinfeld planned to contribute the entire multi-million dollar Property into Chelham LLC while Deveze would be contributing only “sweat equity.” (FAC, ¶ 12.) Fox understood that they would be splitting ownership of Chelham LLC 35 percent for Deveze and 65 percent for Weinfeld, with a plan to make it evenly split over a few years. (Ibid.)

After all of the written work was completed and delivered to Deveze, on December 13, 2021, defendants sent a potential waiver of conflict letter to Deveze and Weinfeld. (FAC, ¶ 13.)

Fox failed to disclose to Weinfeld that the contribution of the Property into Chelham LLC with a 35 percent interest to Deveze would have potentially significant gift tax consequences. (FAC, ¶ 17.)

On July 21, 2023, Fox testified that he created a sham operating agreement to show 100 percent ownership of the Property by Weinfeld as a ruse to avoid any red flags by the Recorder’s Office and was intended to and ultimately revoked, destroyed, as if it never existed. (FAC, ¶ 18.) After Fox committed the ruse on the Recorder’s Office, a new operating agreement was drafted with the proper membership ownership. (Ibid.)

Fox also prepared a Transfer Tax Affidavit (TTA) in which Fox falsely declared under penalty of perjury that no transfer tax was due because the transfer into the LLC would result in the transferor and transferee owning the same proportionate interest as before the transfer. (FAC, ¶ 19.)

After the transfer of interests in the Property, Weinfeld was forced to spend millions of dollars in purchasing back the interests in the Property and in attorney fees and costs. (FAC, ¶ 20.)

On November 18, 2025, defendants answered the FAC with a general denial and 46 affirmative defenses.

On May 12, 2025, Weinfeld served requests for production of documents, set one (RFPs), on defendants. (Dreblow Decl., ¶ 7 & Exh. 2.) Defendants’ deadline to respond to the RFPs was June 13, 2025, but on June 16, 2025, defense counsel’s office acknowledged that they did not timely respond. (Id., at ¶¶ 8, 9 & Exh. 3.)

Following the granting of extensions by Weinfeld, on July 28, 2025, defendants served written responses to the RFPs and produced 171 pages of documents. (Dreblow Decl., ¶¶ 10, 11 & Exhs. 4, 5.) The initial responses each contained objections. (Ibid.)

Following meet and confer attempts, on August 13, 2025, defendants served supplemental responses that continued to assert attorney client privilege to requests Nos. 7 and 8. (Dreblow Decl., ¶ 14 & Exh. 7.)

Weinfeld filed the present motion to compel further responses to RFP Nos. 7 and 8 on September 9, 2025, essentially arguing that defendants have waived the attorney client and work product privileges.

Defendants oppose the motion, arguing that the motion is procedurally deficient, that it is moot because further supplemental responses were served on September 5, 2025, and that defendants have not waived their right to assert attorney client privilege or the work product doctrine.

Analysis:

The motion is moot. Defendants served further supplemental responses, along with privilege logs, four days prior to the filing of the present motion (Mokhtari Decl., ¶ 13 & Exh. K), and the motion does not address this fact. The court will note that plaintiff counsel’s declaration indicates it was signed one day before the supplemental responses were served, but that does not excuse plaintiff’s counsel from failing to apprise the court that the supplemental responses were served prior to the filing of the motion. Further, the court has no evidence that plaintiff attempted to meet and confer with defendants regarding the further supplemental responses.

The motion will be denied as moot. However, because the underlying dispute persists under the further supplemental responses, the motion will also be denied on substantive grounds.

“Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property.” (Code Civ. Proc., § 2017.010.)

“A trial court must be mindful of the Legislature’s preference for discovery over trial by surprise, must construe the facts before it liberally in favor of discovery. . .” (Williams v. Superior Court (2017) 3 Cal.5th 531, 540.)

Code of Civil Procedure, section 2031.010 provides, in pertinent part:

“(a) Any party may obtain discovery . . . by inspecting, copying, testing, or sampling documents, tangible things, land or other property, and electronically stored information in the possession, custody, or control of the party on whom the demand is made.

“(b) A party may demand that any other party produce and permit the party making the demand, or someone acting on the demanding party’s behalf, to inspect and to copy a document that is in the possession, custody, or control of the party on whom the demand is made.”

“The party to whom a demand for inspection, copying, testing, or sampling has been directed shall respond separately to each item or category of item by any of the following:

“(1) A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling . . .

“(2) A representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item, or

“(3) An objection to the particular demand for inspection, copying, testing, or sampling.” (Code Civ. Proc. § 2031.210, subd. (a).)

Code of Civil Procedure, section 2031.240, provides:

“(a) If only part of an item or category of item in a demand for inspection, copying, testing, or sampling is objectionable, the response shall contain a statement of compliance, or a representation of inability to comply with respect to the remainder of that item or category.

“(b) If the responding party objects to the demand for inspection, copying, testing, or sampling of an item or category of item, the response shall do both of the following:

“(1) Identify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made.

“(2) Set forth clearly the extent of, and the specific ground for, the objection. If an objection is based on a claim of privilege, the particular privilege invoked shall be stated. If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted.

“(c)(1) If an objection is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.

“(2) It is the intent of the Legislature to codify the concept of a privilege log as that term is used in California case law. Nothing in this subdivision shall be construed to constitute a substantive change in case law.”

The requests in dispute are Nos. 7 and 8.

Request No. 7 seeks: “All DOCUMENTS including but not limited to COMMUNICATIONS between YOU and any insurer regarding YOUR representation of WEINFELD.”

Request No. 8 seeks: “All DOCUMENTS including but not limited to COMMUNICATIONS between YOU and any insurer regarding YOUR representation of DEVEZE.”

To each of the requests, on July 28, 2025, defendants served their initial responses that included a long list of objections to requests Nos. 7 and 8, including attorney-client privilege and attorney work product doctrine.

On August 13, 2025, following meet and confer efforts, defendants served their first supplemental responses to the requests for production, including requests Nos. 7 and 8. The first supplemental response, to each of the requests in dispute, is: “After reasonable inquiry and diligent search, Responding Party is unable to comply with this request due to attorney-client privilege and attorney work product doctrine. Responding Party is currently engaging in meet and confer discussions with Plaintiff’s counsel and will provide a supplemental response should the need arise. Discovery is continuing and ongoing.”

On September 5, 2025, further supplemental responses to requests Nos. 7 and 8 were served that stated: “After reasonable inquiry and diligent search, Responding Party is unable to comply with this request due to attorney-client privilege and attorney work product doctrine. Responding Party will concurrently produce a Privilege Log identifying responsive documents. Discovery is continuing and ongoing.”

The dispute is whether defendants have waived their right to assert the attorney client privilege and work product doctrine.

Code of Civil Procedure section 2031.300, subdivision (a) provides:

“If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it, the following rules shall apply:

(a) The party to whom the demand for inspection, copying, testing, or sampling is directed waives any objection to the demand, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010). The court, on motion, may relieve that party from this waiver on its determination that both of the following conditions are satisfied:

(1) The party has subsequently served a response that is in substantial compliance with Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280.

(2) The party's failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.”

Here, despite missing the deadline to initially respond, by a mere three days before contacting plaintiff’s counsel, defendants were granted extensions to provide the responses. Defendants met the newly given deadline. This fact reset the clock on the time to respond. Thus, the court will not deem the responses untimely. Even if the responses were deemed untimely, that mere technicality would not necessarily result in a waiver of privilege.

Plaintiff relies heavily on Scottsdale Ins. Co. v. Superior Court (1997) 59 Cal.App.4th 263 (Scottsdale) in support of their waiver argument. However, plaintiff conflates the concept of failure to assert objections based on privilege in the initial responses, with a failure to timely assert them. In Scottsdale, the court held: “We conclude that failure to include an objection expressly based upon attorney-client privilege in the initial response results in waiver of the attorney-client privilege.” (Id. at p. 274; italics added.)

“[L]ate compliance does not constitute a waiver of the privilege claimed. . . . In California privileges are created by statute (Evid.Code, § 911) and the means by which privilege may be waived are also controlled by statute (Evid.Code, § 912).” (Motown Record Corp. v. Superior Court (1984) 155 Cal.App.3d 482, 492.)

“The privilege afforded the client’s communications to counsel is the oldest of the confidential communication privileges. [Citation.] Our Supreme Court has stated the privilege “ ‘is given on grounds of public policy in the belief that the benefits derived therefrom justify the risk that unjust decisions may sometimes result from the suppression of relevant evidence.’ ” [Citations.] The privilege is an important right given to protect a relationship that must be “ ‘sedulously fostered’ ” [citations], and has even been referred to as “ ‘sacred.’ ” [Citations.] “ ‘It is not to be whittled away by means of specious argument that it has been waived. Least of all should the courts seize upon slight and equivocal circumstances as a technical reason for destroying the privilege.’ ” [Citation.]” (Blue Ridge Ins. Co. v. Superior Court (1988) 202 Cal.App.3d 339, 345.)

Defendants asserted the privileges in their initial responses to discovery. The objections based on privilege were not waived. It does not matter that the initial responses may be considered untimely (which, because of the extensions granted, is arguable), and it does not matter that plaintiff’s counsel attempted to dictate to defendants that the responses are to be without objections. That is not something one attorney can unilaterally dictate to another. Plaintiff’s motion will be denied.

            Sanctions

Plaintiff seeks $5,805.00 in monetary sanctions in connection with bringing the present motion. Defendants seek $2,410.00 in monetary sanctions in connection with defending the present motion.

The court “shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2031.310.)

While the court considered imposing sanctions against plaintiff, and her attorneys of record, for bringing this motion after the further supplemental responses were served, and not informing the court that they had been served, under the circumstances the court will decline to award sanctions in favor of or against any party.