Case Number: 20STCV39132    Hearing Date: March 2, 2023    Dept: 40

Case No.:           20STCV39132

[TENTATIVE] RULING RE:

Plaintiffs/Cross-Defendants’ Arthur Toukhlandjian and AIAA Home Modelings, L.L.C.’s Motion to Compel Further Responses to Form Interrogatories [Set No. 1] and Request for Sanctions; and

Defendant/Cross-Complainant Moushekh Petrosian and Counsel Richard Avetisyan’s Opposition to Request for Sanctions.

Background

Plaintiffs Arthur Toukhlandjian and AIAA Home Modelings, L.L.C. bring this action against Defendants Moushekh Petrosian, 25920 Del Sol Road, LLC, and Does 1 through 50 pursuant to a Complaint advancing claims of (1) Promissory Estoppel, (2) Fraud and Intentional Misrepresentation, (3) Quiet Title, and (4) Deceit.  A First Amended Complaint was filed on November 12, 2020 adding claims for (5) Breach of Contract and (6) Breach of Fiduciary Duty. The Plaintiffs’ claims are based on allegations that they provided financing to purchase and remodel (“flip”) two homes in Los Angeles County pursuant to an agreement with Defendant Petrosian, where Petrosian—who was charged with remodeling and selling the purchased homes—sold the homes without the knowledge of the Plaintiffs, keeping the profits therefrom without respect to the parties’ financial agreements, and leveraging the same profits to purchase and form an LLC for a third property located in Los Angeles County.

Defendant Moushekh Petrosian, in turn, has filed a Cross-Complaint against Plaintiffs Toukhlandjian, AIAA Home Modelings, Cross-Defendant Vahan Sarkissian (a California corporation), and ROES 1 through 50 pursuant to claims of (1) Breach of Oral Agreement, (2) Promissory Estoppel, (3) Breach of Covenant of Good Faith and Fair Dealing, (4) Fraud and Conspiracy to Commit Fraud, (5) Conversion, and (6) Money Had and Received. These claims are based on allegations that, pursuant to an oral agreement between the parties, Plaintiffs Toukhlandjian and AIAA provided financing for the purchase of a fourth Los Angeles County property in the name of Defendant Petrosian, only for the Plaintiffs to later purchase and sell the property under the name of Cross-Defendant Vahan Sarkissian (a California corporation) and fail to share the profits therefrom with Defendant Petrosian, thus breaching the oral agreement.

Now before the Court is Plaintiffs Toukhlandjian and AIAA Home Modelings’ opposed Motion to Compel Further Responses to Form Interrogatories [Set No. 1] from Defendant Petrosian and Request for Sanctions from Petrosian and his Counsel. Defendant Petrosian’s Opposition makes a responsive Request for Sanctions against Plaintiff Toukhlandjian.

A hearing on this Motion was previously continued from October 19, 2022.

Motion to Compel Further Responses to Interrogatories and Request for Sanctions

Legal Standard

A motion to compel a further response is used when a party gives unsatisfactory answers or makes untenable objections to interrogatories, demands to produce, or requests for admission. (See Code Civ. Proc., §§ 2030.300, subd. (a) [interrogatories], 2031.310, subd. (a) [production], 2033.290, subd. (a) [admissions]; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403 [interrogatories and demand to produce].) A movant may move to compel further interrogatory responses upon a showing that: (1) the responding party’s answer to a particular interrogatory is evasive or incomplete (Code Civ. Proc., § 2030.300, subd. (a)(1)); (2) the responding party’s exercise of the option to produce documents in response to an interrogatory was unwarranted or the required specification of those documents was inadequate (Code Civ. Proc., § 2030.300, subd. (a)(2); or (3) the responding party’s objection to an interrogatory is without merit or too general (Code Civ. Proc., § 2030.300, subd. (a)(3); see, e.g., William v. Superior Court (2017) 3 Cal.5th 531, 550 [defendant’s argument that plaintiff was required to establish good cause or prove the merits of underlying claims before propounding interrogatories was without merit].)

Overview

Plaintiffs Toukhlandjian and AIAA Home Modelings move to compel further responses to Interrogatories, Set One, Nos. 15.1, 17.1, 50.2, and 50.5, served on Defendant Petrosian on September 16, 2021. (Mot., 4:1-3, Keropian Decl., ¶ 2; see Mot., Keropian Decl., Ex. 1 [Requests for Admission, Set One, served on Defendant Petrosian on the same day and subject of Interrogatory No. 17.1].) The Plaintiffs makes this Motion on the grounds that Defendant Petrosian’s initial and supplemental responses to these specific interrogatories are comprised of objections without merit or otherwise evasive responses. (Mot., 4:25-6:17; see Mot., Keropian Decl., ¶¶ 2-9, Exs. 2, 3.)

Compelling Further Discovery, Interrogatory No. 15.1: GRANTED.

Interrogatory No 15.1 requests that Defendant Petrosian identify material allegations and special or affirmative defendants in Petrosian’s pleadings and to (a) state facts upon which Petrosian bases these defenses, (b) provide specific information related to persons who have knowledge of those facts, and (c) identify all documents and tangible things supporting the defenses, as well as the information related to persons in possession of such documents. (Mot., Separate Statement, 2:1-8.)

Defendant Petrosian’s response to this interrogatory is comprised of objections that the interrogatory is premature and violates attorney privilege and the work product doctrine by requesting documents created by Defendant Petrosian’s attorney and containing opinions, conclusions, and impressions regarding the requested documents. (Mot., Separate Statement, 2:9-13.)

Plaintiffs argue that Defendant Petrosian’s responses to Interrogatory No. 15.1 consist of boilerplate objections because “Form Interrogatory 15.1 does not call for the production of any documents or the disclosure of any communications,” for which reason “it does not implicate the attorney-client privilege,” and that “[t]he objection that the interrogatory is premature is an improper objection” because “Petrosian filed an answer and asserted affirmative defenses” that “require facts to support Defendant’s contentions.” (Mot., Separate Statement, 3:19-22.)

On Opposition, Defendant Petrosian argues that its responses were “substantially code compliant.” (Opp’n, 7:22.) However, Petrosian’s Separate Statement’s argument for why the response to Interrogatory No. 15.1 is code compliant confusingly revolves around the requests for admission served on the same date as Form Interrogatories, Set One. (Opp’n, Separate Statement 2:1-4:22.)

The Court finds that further discovery of Interrogatory No. 15.1 is merited and GRANTS this Motion as to this issue because the interrogatory requests non-privileged information that is relevant to the matters raised in this action and may lead to discoverable evidence, i.e., the factual grounds and individuals who may have information supporting the materials allegations and special or affirmative defenses advanced by Defendant Petrosian in this action. (Code Civ. Proc., § 2017.010.)

Compelling Further Discovery, Interrogatory No. 17.1: DENIED.

Interrogatory No. 17.1 requests that Defendant Petrosian clarify whether his responses to 25 of 26 of the Requests for Admissions, Set One, served on Petrosian on September 16, 2021, were unqualified admissions, and where not unqualified, to (a) state the number of the requests, (b) state the facts upon which the response is based, (c) provide information for persons having knowledge of those facts, and (d) identify all documents and tangible things supporting the responses, as well as the information related to persons in possession of such documents. (Mot., Separate Statement, 4:1-8.)

The RFAs at issue are RFAs Nos. 1-20 and 22-26. (Mot., Separate Statement, 4:9-24:7.)

Plaintiffs Toukhlandjian and AIAA Home Modelings Separate Statement makes various arguments for why the responses to the RFAs were improper, devoid of specific facts, or otherwise deficient. (See Mot., Separate Statement, 4:9-24:7.)

Defendant Petrosian responds by arguing that his responses were substantially code compliant because “Defendant has no personal knowledge of a couple of the RFA statements that Plaintiff is attempting to use this Court to force Defendant to admit” and because “Defendant interposed applicable objections and then continued with a substantially code compliant, good faith response that he was able to admit or deny and described the reasons why.” (See, e.g., Opp’n, Separate Statement, 5:23-7:26 [Argument re: Interrogatory No. 17.1 vis-à-vis RFA No. 1], 22:19-24:21 [identical argument for Interrogatory No. 17.1 vis-à-vis RFA No. 7], 41:9-43:11 [identical argument for Interrogatory No. 17.1 vis-à-vis RFA No. 14], 57:7-59:9 [identical argument for Interrogatory No. 17.1 vis-à-vis RFA No. 21].)

A review of Defendant Petrosian’s responses to Interrogatory 17.1 leads to the conclusion that responses to this interrogatory vis-à-vis RFA Nos. 1-20 and 22-26 are substantially compliant because they sufficiently elaborate the information buttressing Defendant Petrosian’s RFA denials, for which reason the Court DENIES this Motion as to compelling further responses to Interrogatory No. 17.1.

Compelling Further Discovery, Interrogatory No. 50.2: DENIED.

Interrogatory No. 50.2 requests that Defendant Petrosian indicate whether there was a breach of any agreement alleged in the pleadings and to describe and give the date of every act or omission Petrosian claims comprises a breach of an identified agreement. (Mot., Separate Statement, 24:8-10.)

Defendant Petrosian’s response to this interrogatory points to breaches of unspecified agreements between the parties as based on “no post sale accounting for any of the properties” relating to the “Omelveny, Mather, and Roscoe” properties, Plaintiffs’ failure to return or account for $20,000 in profits to which they were not entitled on the sale of the “Omelveny and Mather” properties, and Plaintiff’s “pocket[ing]” of $200,000 “for the subsequent sale of the Wish property.” (Mot., Separate Statement, 24:11-17.)

Plaintiffs Toukhlandjian and AIAA Home Modelings conclusorily argue that this response is “deficient, evasive and … a deftly worded conclusion” without further elaboration other than to cite case law without application of such law to the circumstances surrounding this interrogatory response. (Mot., Separate Statement, 24:18-24.)

Defendant Petrosian, in turn, responds by arguing that his responses were substantially code compliant because “Defendant has no personal knowledge of a couple of the RFA statements that Plaintiff is attempting to use this Court to force Defendant to admit” and because “Defendant interposed applicable objections and then continued with a substantially code compliant, good faith response that he was able to admit or deny and described the reasons why.” (Opp’n, Separate Statement, 73:21-75:24.)

The Court finds that no further discovery is merited as to this interrogatory and therefore DENIES this Motion as to Interrogatory No. 50.2. Defendant Petrosian’s responses clearly provide grounds responsive to Interrogatory 50.2 by indicating that agreements between the parties related to the Omelveny, Mather, Roscoe, and Wish properties were breached by the Plaintiffs through the Plaintiffs’ retention of profits to which they were not entitled and providing information as to the monies alleged to have been wrongfully retained by the Plaintiffs.

Compelling Further Discovery, Interrogatory No. 50.5: DENIED.

Interrogatory No. 50.5 requests that Defendant Petrosian identify whether any agreement in the pleadings is unenforceable, and if so, to identify and explain why such agreement is not enforceable. (Mot., Separate Statement, 24:25-27.)

Defendant Petrosian responded to this interrogatory by indicating that, yes, an unspecified agreement between the parties was unenforceable insofar as “[t]here was no agreement between the parties that Petrosian will use [Plaintiff] Toukhlandjian as his [i.e., Defendant Petrosian’s] exclusive financier for his [Petrosian’s] real estate ventures.” (Mot., Separate Statement, 25:1-7.)

Plaintiffs Toukhlandjian and AIAA Home Modelings again conclusorily argue that this response is “deficient, evasive and … a deftly worded conclusion” without further elaboration other than to cite case law without application of such law to the circumstances surrounding this interrogatory response. (Mot., Separate Statement, 25:5-10.)

Defendant Petrosian, in turn, again responds by arguing that “Defendant has no personal knowledge of a couple of the RFA statements that Plaintiff is attempting to use this Court to force Defendant to admit” and because “Defendant interposed applicable objections and then continued with a substantially code compliant, good faith response that he was able to admit or deny and described the reasons why.” (Opp’n, Separate Statement, 76:9-78:11.)

As with Interrogatory Response No. 50.2, the Court finds that no further discovery is merited as to Interrogatory No. 50.5 and therefore DENIES the Motion as to this interrogatory. Defendant Petrosian’s responses clearly provide grounds responsive to Interrogatory 50.5 by indicating an unspecified agreement between the parties is not enforceable insofar as it purports to make Plaintiff Toukhlandjian Defendant Petrosian’s exclusive financier in real estate transactions.

Sanctions: DENIED.

The court must impose monetary sanctions against anyone (party, nonparty, or attorney) who unsuccessfully makes or opposes the motion, unless it finds that the person sanctioned acted with substantial justification or other circumstances makes the imposition of the sanctions unjust. (Code Civ. Proc., §§ 2030.290, subd. (d) [interrogatories], 2031.310, subd. (d) [production], 2033.290, subd. (d) [admissions].) The court may also impose a monetary sanction against one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct. (Code Civ. Proc., § 2023.030.)

Both parties having been substantially justified in making or opposing this Motion—with the Plaintiffs justified in seeking further responses to Interrogatory No. 15.1 and Defendant Petrosian justified in defending against further responses to Interrogatories No. 17.1, 50.2, and 50.5—the Court DENIES the cross Requests for Sanctions made by the parties in the moving and opposing papers.

Conclusion

Plaintiffs’ Arthur Toukhlandjian and AIAA Home Modelings, L.L.C.’s Motion to Compel Further Responses to Form Interrogatories [Set No. 1] is:

(1) GRANTED as to Interrogatory No. 15.1 because the response and objections advanced thereto by Defendant Moushekh Petrosian were evasive and unjustified, requiring a further response; and

(2) DENIED as to Interrogatories No. 17.1, 50.2, and 50.5 because the responses to these interrogatories were substantially code compliant.

The cross Requests for Sanctions made by Plaintiffs Arthur Toukhlandjian and AIAA Home Modelings, L.L.C.’s and Defendant Moushekh Petrosian and his Counsel are DENIED as both parties were substantially justified in making or opposing this Motion.