Judge: Armen Tamzarian, Case: 22STCV10400, Date: 2023-02-09 Tentative Ruling

Case Number: 22STCV10400    Hearing Date: February 9, 2023    Dept: 52

Plaintiff Above the Boulevard LLC’s Motions to Compel: Defendant Blossom.Space Inc. to (1) Respond to Special Interrogatories; (2) Further Respond to Form Interrogatories; and (3) Further Respond to Requests for Production; Defendant Patrick Cheh to (4) Further Respond to Special Interrogatories; (5) Further Respond to Form Interrogatories; and (6) Further Respond to Requests for Production

Motion to Compel Blossom.Space Inc. to Respond to Special Interrogatories

Plaintiff Above the Boulevard LLC moves to compel defendant Blossom.Space Inc. to respond to special interrogatories.  When a party fails to timely respond to interrogatories, the propounding party may move for an order compelling responses.  (CCP §§ 2030.290(b).)  Failure to timely respond waives any objections to the interrogatories.  (CCP §§ 2030.290(a).)

Plaintiff served special interrogatories, set one, on August 26, 2022.  (Borden Decl., ¶ 3, Ex. A.)  Plaintiff agreed to extend the deadline to respond (without objections) to October 17, 2022.  (Borden Decl., ¶ 6, Ex. B.)  Blossom.Space had not served any response to the special interrogatories when plaintiff filed this motion on November 23, 2022.  (Borden Decl., ¶¶ 7, 9.)  Plaintiff is entitled to an order compelling Blossom.Space to respond to special interrogatories, set one.

Motion to Compel Patrick Cheh to Further Respond to Special Interrogatories

            Plaintiff moves to compel defendant Patrick Cheh to serve further responses to special interrogatories Nos. 4-7, 9-11, 13-28, and 30-33.  A party may move to compel further responses to interrogatories when an answer “is evasive or incomplete.”  (CCP § 2030.300(a)(1).) 

            Cheh gave evasive or incomplete responses to these special interrogatories.  Nos. 4 and 5 ask Cheh to identify each debt he contends Above the Boulevard, LLC owe to him and Blossom.Space.  The interrogatories defined “‘IDENTIFY’ a debt” to include stating the original and current amounts of the debt, the date the debt arose, and to identify people with knowledge and documents reflecting the debt.  Cheh responded only with a brief explanation of the reason for the debt: “Above the Boulevard owes Cheh money for the work Cheh did in procuring Bottom Space to produce yoga and meditation apps.”  (No. 4.)  “Above the Boulevard owes Blossom Space money for work done and continuing on the development of a yoga meditation app and additional multi media ventures.”  (No. 5.)  Cheh provided none of the details the interrogatories ask for.

Nos. 6-7, 9-11, and 13-24 similarly ask Cheh to identify facts, including supporting witnesses and documents, supporting numerous contentions.  He again responded with brief descriptions but not the requested details about witnesses with knowledge of the facts or documents reflecting those facts.

Nos. 25-29 ask Cheh to identify a promissory note and various loans, including the same details about amounts and supporting witnesses and documents.  Again, Cheh responded only with brief descriptions.  He did not provide the details about the amounts, witnesses with knowledge of the facts, or documents reflecting the note or loans.

Finally, Nos. 30-33 ask Cheh to identify all facts supporting various related contentions that he still manages or is a member of Above the Boulevard, LLC (or that he was not removed as a manager or member).  His responses were incomplete for the same reasons as the other interrogatories.  Moreover, Cheh’s responses include that he “was coerced into signing the management agreement, proxy agreement and option agreement.”  That is a conclusion without the necessary supporting facts.  He does not state what happened that constituted coercion.

Plaintiff is therefore entitled to an order compelling Cheh to serve further responses to special interrogatories Nos. 4-7, 9-11, 13-28, and 30-33.

Motions to Compel Blossom.Space and Cheh to Further Respond to Form Interrogatories

            Plaintiff moves to compel: Cheh to further respond to form interrogatory No. 2.11,  Blossom.Space to further respond No. 3.7, and both defendants to further respond to Nos. 15.1 and 17.1.  Defendants gave incomplete or evasive responses to these interrogatories.

Form interrogatory – general No. 2.11 asks Cheh to answer whether he acted as an agent or employee for any person at the time of the events underlying the action and for “a description of your duties.”  He responded, “Employee for Blossom Space Inc. 1732 n. Vermont Ave. LA CA 90027. Self employed.”  That response answers the first part of the question but does not describe Cheh’s duties.

            No. 3.7 asks Blossom.Space to answer whether any public entity registered or licensed your business, and if so, to provide various details about the license or registration.  Blossom.Space’s response did not answer the yes or no question and provided information about its registration as a corporation with the Secretary of State.  The answer concerns its incorporation, not licensing or registration of a business. 

            No. 15.1 asks defendants to identify each denial or affirmative defense in his answer and: (a) state all supporting facts, (b) identify all witnesses with knowledge of those facts, and (c) identify all documents that support each denial or affirmative defense.  Defendants did not identify all supporting facts for their defenses.  For nearly all defenses, they restated the first amended answer’s allegations without identifying any facts. 

For example, the 22nd affirmative defense is “substantial compliance of contract.”  To No. 15.1(a), defendants responded, that they “substantially complied with any contract.”  The response does not state what they did to substantially comply with which contract or contracts.

The 30th affirmative defense is “collateral estoppel/judicial estoppel/res judicata.”  Defendants responded to No. 15.1(a), “There is no cause of action for declaratory relief or injunctive relief because it is barred by the equitable doctrines of res judicata and collateral estoppel and judicial estoppel.”  That response includes no supporting facts of why those doctrines apply—for example, identifying the prior action. 

            Form interrogatory No. 17.1 asks defendants to (a) identify requests for admission they did not admit, (b) state supporting facts, (c) identify all witnesses with knowledge of those facts, and (d) identify all supporting documents, including by stating the contact information for any person who has each document.  As with No. 15.1, defendants did not identify all supporting facts.  Most of their responses to No. 17.1(b) do little more than restate that they denied the requests.

For example, request for admission No. 8 asks Blossom.Space to admit it “was never sufficiently capitalized.”  To No. 17.1(b), defendant responded only, “Blossom Space had sufficient capital.”  That answer does not identify all supporting facts, such as how much capital Blossom.Space had.  Furthermore, to No. 17.1(d), defendant responded, “Blossom Space bank account in possession of Patrick Cheh.”  A bank account is not itself a document.

Similarly, request for admission No. 32 to Blossom.Space and No. 46 to Cheh ask defendants to admit Cheh wrote a check to Blossom.Space for $20,000 from plaintiff’s account on January 31, 2022.  Defendants denied the requests and responded to No. 17.1(b), “Blossom Space had performed work and was continuing to perform work on behalf of Above the Boulevard.”  That answer does not identify facts supporting the denial.  Instead, it seemingly attempts to explain why Cheh wrote the check. 

Plaintiff is entitled to orders compelling further responses by Blossom.Space to form interrogatories – general, Nos. 3.7, 15.1, and 17.1 and compelling further responses by Cheh to Nos. 2.11, 15.1, and 17.1.            

Motions to Compel Blossom.Space and Cheh to Further Respond to Requests for Production

            Plaintiff moves to compel Blossom.Space to further respond to requests for production Nos. 1-54 and Cheh to further respond to Nos. 1-63.  A party propounding requests for production may move to compel further responses if “[a] statement of compliance with the demand is incomplete,” “[a] representation of inability to comply is inadequate, incomplete, or evasive,” or “[a]n objection in the response is without merit or too general.”  (CCP § 2031.310(a).)

            Defendants’ responses are insufficient.  To many requests, they gave incomplete statements of compliance, such as describing only particular documents they agreed to produce.  A statement of compliance “shall state that the production … will be allowed either in whole or in part, that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.”  (CCP § 2031.220.)

 For example, to No. 22, Blossom.Space responded, “All applicable bank records will be produced.”  To No. 24, Blossom.Space responded, “This will be provided.  Dated Dec 13, 2021.”  To No. 25, Blossom.Space responded, “Promissory note will be provided.  Date 13, 2021.”  These responses do not state defendants will produce all demanded documents in their possession, custody, or control.  A statement of compliance must include that language because it states under oath not only that the responding party will produce specified documents, but also that the responding party is not withholding any responsive documents.   

To many requests, defendants gave incomplete representations of inability to comply.  “A representation of inability to comply … shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand.  This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party.  The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.”  (CCP § 2031.230.)

For example, Blossom.Space responded to Nos. 29, 30, and 37, “None.”  That response does not “affirm that a diligent search and a reasonable inquiry has been made in an effort to comply,” explain why defendants cannot comply, or identify anyone believed to possess responsive documents as required under Code of Civil Procedure section 2031.230.

To numerous requests about various agreements or services, defendants responded with neither a statement of compliance, representation of inability to comply, nor objections.  For example, for Nos. 13-16 to both defendants, they responded, “Much of the agreements between Cheh and ATB were oral.  Discovery is continuing.  This responding party reserves the right to supplement these responses.”  That response is not a statement of compliance or inability to comply.  Assuming it means defendants cannot comply, it does not “affirm that a diligent search and a reasonable inquiry has been made in an effort to comply” or explain why defendants cannot comply as required under Code of Civil Procedure section 2031.230.

            Plaintiff is entitled to orders compelling Blossom.Space to further respond to requests for production Nos. 1-54, compelling Cheh to further respond to requests for production Nos. 1-63, and compelling defendants to produce all responsive documents.

Sanctions

Plaintiff moves for monetary sanctions against defendants and their counsel on each of the six motions.  The Discovery Act’s “definitional statutes … do not authorize the court to impose sanctions in a particular case.”  (City of Los Angeles v. PricewaterhouseCoopers, LLC (2022) 84 Cal.App.5th 466, 498.)  Instead, sanctions require an independent authorizing statute, such as those governing each discovery method.  (Ibid.)  For interrogatories and requests for production, sanctions are authorized against a party who unsuccessfully opposes a motion to compel or who disobeys an order compelling responses.  (CCP §§ 2030.290(c), 2030.300(d)-(e), 2031.310(h)-(i).)

The court cannot impose sanctions on defendants for the four motions regarding special interrogatories and requests for production.  Defendants did not oppose them.  Nor did defendants disobey an order compelling responses.    

Monetary sanctions against defendants and their counsel are appropriate for unsuccessfully opposing the two motions to compel further responses to form interrogatories.  Such sanctions are mandatory unless the court finds defendants “acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”  (CCP § 2031.300(d).) 

Defendants fail to show they acted with substantial justification or that other circumstances make sanctions unjust.  They argue defense counsel mistakenly failed to respond to a meet and confer letter.  “ ‘There is no requirement that misuse of the discovery process must be willful for a monetary sanction to be imposed.’ ”  (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1286.)  Defendants rely on R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 496 for the proposition that discovery sanctions require a willful misuse of discovery.  That case, however, is about terminating sanctions (not monetary sanctions) and applied the former version of the Discovery Act. 

Plaintiff adequately tried to meet and confer.  Defense counsel was responsible for responding to plaintiff’s efforts.  Because he did not, plaintiff incurred significant expenses.  Sanctions are just under the circumstances.

Plaintiff, however, moves for an excessive amount of sanctions.  Plaintiff moves for $11,812.50 for the motion to compel Cheh’s further responses to form interrogatories.  Plaintiff seeks recovery of 14 hours of attorney fees at $520 hourly and 1.5 hours at $645 for drafting the motion, and 5.5 hours at $520 plus 1 hour at $645 for the reply and the hearing.  (Borden Decl., ¶ 11.)  For Blossom.Space, plaintiff moves for $9,347.50 in sanctions for 10.5 hours at $520 and 1 hour at $645 to draft the motion and 5.5 hours at $520 plus 0.5 hours at $645 for the reply and hearing.  (Borden Decl., ¶ 11.) 

Plaintiff did not reasonably incur those expenses.  These motions were duplicative.  Much of each motion concerns form interrogatory No. 15.1, where both defendants made the same responses, and plaintiff made the same arguments about those responses.  Plaintiff also seeks fees for 12.5 hours of work on the two replies.  Defendants, however, filed a joint opposition.  Rather than filing a joint reply, plaintiff filed two substantively identical replies.

The court finds plaintiff reasonably incurred 8 hours of attorney fees at $520, 1 hour at $645, plus the $60 filing fee, for a total of $4,865 on each motion.

Disposition

            Plaintiff Above the Boulevard, LLC’s motion to compel defendant Blossom.Space to respond to special interrogatories is granted.  Blossom.Space is ordered to serve verified responses without objections to special interrogatories, set one, within 30 days.

            Plaintiff Above the Boulevard, LLC’s motion to compel defendant Patrick Cheh to further respond to special interrogatories is granted.  Cheh is ordered to serve further verified responses without objections to special interrogatories Nos. 4-7, 9-11, 13-28, and 30-33 within 30 days.

            Plaintiff Above the Boulevard, LLC’s motion to compel defendant Blossom.Space to further respond to form interrogatories is granted.  Blossom.Space is ordered to serve further verified responses without objections to form interrogatories – general Nos. 3.7, 15.1, and 17.1 within 30 days.  Blossom.Space and its counsel David Nakatsu are ordered to pay plaintiff $4,865 in sanctions within 30 days.  Defendant and its counsel shall be jointly and severally liable for the sanctions.

Plaintiff Above the Boulevard, LLC’s motion to compel defendant Patrick Cheh to further respond to form interrogatories is granted.  Cheh is ordered to serve further verified responses without objections to form interrogatories – general Nos. 2.11, 15.1, and 17.1 within 30 days.  Cheh and his counsel David Nakatsu are ordered to pay plaintiff $4,865 in sanctions within 30 days.  Defendant and his counsel shall be jointly and severally liable for the sanctions.

Plaintiff Above the Boulevard, LLC’s motion to compel defendant Blossom.Space to further respond to requests for production is granted.  Blossom.Space is ordered to serve further verified responses without objections to requests for production Nos. 1-54 and to produce all responsive documents in its possession, custody, or control within 30 days.

Plaintiff Above the Boulevard, LLC’s motion to compel defendant Patrick Cheh to further respond to requests for production is granted.  Cheh is ordered to serve further verified responses without objections to requests for production Nos. 1-63 and to produce all responsive documents in his possession, custody, or control within 30 days.