Judge: Alison Mackenzie, Case: BC667234, Date: 2023-11-30 Tentative Ruling

Case Number: BC667234    Hearing Date: November 30, 2023    Dept: 55

NATURE OF PROCEEDINGS:  Motion to Compel Further Responses and Documents in Response to Deposition Notice of Defendant Thomas Amalfitano [Sr.] and Request for Monetary Sanctions.

The motion is denied.

The opposing request for sanctions is granted.

On or before 12/15/23, Plaintiff MARIO LINO MIRAMONTES and counsel BENJAMIN P. WASSERMAN shall pay discovery sanctions in the sum of $4,213.35 to Defendant THOMAS AMALFITANO SR., the Court finding the absence of substantial justification.    E.g., CCP   § 2023.030.

On 7/3/17, Plaintiff MARIO LINO MIRAMONTES ("Plaintiff') filed a Complaint.  On 8/8/18, Plaintiff MARIO LINO MIRAMONTES filed a First Amended Complaint, alleging that defendants breached a verbal agreement, granting Plaintiff exclusive rights to proprietary custom spice blends, formulations and recipes, in growing the business called “San Pedro Fish Market,” including by interfering with Plaintiff’s business arrangements, and reneging on compensation agreements.  The causes of action are:  1)  Breach Of Oral Contract;  2)  Tortious Interference With Written Contract Or Prospective Business Advantage;  3)   Negligent Interference With Prospective Business Advantage;  4)  Violation Of Business & Professions Code § 17500;  5)  Violation Of Business & Professions Code § 17200.6;  6)  Fraud;  and 7)  Restitution.

Plaintiff requests the Court to compel further documents responses, pursuant to deposition-notice requests 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 15, 16, and 17, and to impose $5,225.00 in sanctions, on grounds including the following:  1) Defendant Amalfitano Sr. (“Defendant”) objected to every document request at issue, with the same boilerplate objections.  On 1/19/23, Plaintiff sent a detailed meet and confer letter.  Defendants sent a letter indicating that they would be producing documents, but later reneged by claiming the letter was a mistake.

Defendant opposes the motion, and requests monetary sanctions, for reasons including:  1)  Plaintiff’s attorney cancelled the deposition after receiving Defendant’s objections to the document production requests, such that no motion lies to compel  (CCP   § 2025.450, 2025.480);  2)  every category of documents is patently overbroad, requests irrelevant matter, requests documents far beyond any potential statute of limitations, among other valid objections;  3) if the motion, filed 2/21/23, is considered under the code sections cited in the motion, pertaining to requests for production of documents, then the motion to compel is not timely filed within 45 days (CCP § 2031.310), after the objections served 12/21/22;  and 4) meeting and conferring efforts were not done in good faith.

            Procedure

As specified above, Defendant objected as to procedure.

A separate statement is to address a motion to “compel or to quash the production of documents or tangible things at a deposition”  CRC Rule 3.1345(a)(5).  [Emphasis added.]  Also, it is to include the “text of the request, interrogatory, question, or inspection demand….”  Ibid. at 3.1345(c)(1).

A deposition notice shall contain:  “[t]he specification with reasonable particularity of any materials or category of materials, including any electronically stored information, to be produced by the deponent.”  CCP § 2025.220 (a)(4). 

A motion lies to compel deposition attendance or document production, after service of a deposition notice, where a deponent fails to appear at, or proceed with, a deposition, without having served a valid objection under Section 2025.410.  CCP §2025.450(a). 

A motion to compel deposition attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing, shall “shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.”  CCP   § 2025.450(a)-(b).  Specifically, “[t]he motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.”  CCP §2025.450(b)(1).

“If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.”  CCP   § 2025.480(a);  Unzipped Apparel, LLC v. Bader (2007) 156 Cal. App. 4th 123, 129 (quoting CCP §2025.480(a)).

“‘If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition.’"   Maldonado v. Sup. Ct. (2002) 94 Cal. App. 4th 1390, 1398.

As to the instant motion, the Court concludes that it does not follow any authorized procedure of the Discovery Act or California Rules of Court.  They do not include motions to compel document production pursuant to a deposition notice specifying materials or categories.  E.g.,  CRC Rule 3.1345.  Further, they do not contemplate deposition notices as to which no deposition occurred.  Additionally, the Court finds that the deposition notice failed to specify with reasonable particularity of any materials or category to be produced by the deponent.  Similarly, the Court finds that the motion fails to set forth specific facts showing good cause justifying the production of any document, electronically stored information, or tangible thing that the deposition notice describes. 

Hence, the motion is denied, as being based upon no authorized procedure.

            Request and Response Requirements

As specified above, Defendant has raised issues as to the merits of the requests and responses.

As to overbreadth objections involving no claim of privilege, courts determine whether the discovery is “ ‘reasonably calculated to lead to the discovery of admissible evidence’ ”, generally resolving doubt in favor of permitting discovery.  Williams v. Sup. Ct. (2017) 3 Cal.5th 531, 542.  “When discovery requests are grossly overbroad on their face, and hence do not appear reasonably related to a legitimate discovery need, a reasonable inference can be drawn of an intent to harass and improperly burden.”  Obregon v. Sup. Ct. (1998) 67 Cal.App.4^th 424, 431.  [Emphasis added.]

Here, assuming, arguendo, that the instant motion is based upon a procedure of authorized document requests, the Court denies the motion, by finding that the deposition notice requests are vague, grossly overbroad and broadly sweeping categories, encompassing countless of irrelevant documents, possibly existing for over 3 decades, in an unprecedented fishing expedition that is on its face overly burdensome, as exemplified by the following items:

·         “REQUEST FOR PRODUCTION NO. 1:  ANY and ALL DOCUMENTS, which in any way, EVIDENCE, REFER, PERTAIN OR RELATED TO the SPJCE PRODUCTS utilized in the preparation of food items and/or drinks at San Pedro Fish Market ("SPFM") and/or sold at San Pedro Fish Market ("SPFM") or any of its affiliates from 1981 to 2014;”

·         “REQUEST FOR PRODUCTION NO. 2:  ANY and ALL DOCUMENTS, which in any way, EVIDENCE, REFER, PERTAIN OR RELATED TO any of Plaintiff’s claimed PRODUCTS from 1981 to the 2014;”

·         “REQUEST FOR PRODUCTION NO. 3:  ALL DOCUMENTS which in any way EVIDENCE, REFER, PERTAIN OR RELATE to business dealings between the named Defendants and Pacific Spice Company from 1981 to 2014, including but not limited to, contracts, invoices and statements….”

            Sanctions

Opposing party has requested monetary sanctions against Plaintiff and counsel.

Generally, monetary sanctions are mandatory as to parties losing discovery motions, unless courts find substantial justification or other injustice.  E.g.,  Foothill Properties v. Lyon/Copley Corona Assocs., L.P. (1996) 46 Cal.App.4^th 1542, 1557-58.  “ ‘[S]ubstantial justification” has been understood to mean that a justification is clearly reasonable because it is well-grounded in both law and fact.”  Doe v. U.S. Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1434.  “If the party seeking a monetary sanction meets its burden of proof, the burden shifts to the opposing party attempting to avoid a monetary sanction to show that it acted with ‘substantial justification.’ ”  Doe v. U.S. Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1435.

Here, the Court finds that Plaintiff and counsel lacked substantial or other justifications for the customized procedure expressly conflating Discovery Act sections addressing depositions and document demands, and for seeking to compel grossly overbroad document productions.  Therefore, the Court imposes monetary sanctions.