Judge: Armen Tamzarian, Case: 23STCV16136, Date: 2024-05-16 Tentative Ruling

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Case Number: 23STCV16136    Hearing Date: May 16, 2024    Dept: 52

Defendants’ 6 Motions to Compel Further Discovery Responses  

Form Interrogatories by Defendants Allen, N. Sehmi, and T. Sehmi

            Defendants Allen Corporation Supply Co., Inc. (Allen), Navjot Sehmi, and Tejroop Sehmi move to compel plaintiff Cacker Capital, Inc. to further respond to form interrogatories.  Allen moves to compel further responses to form interrogatories – general Nos. 9.1, 9.2, 12.1, and 17.1.  Navjot Sehmi and Tejroop Sehmi move to compel further responses to No. 17.1.

A party propounding interrogatories may move to compel further responses when an answer “is evasive or incomplete,” “[a]n exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate,” or “[a]n objection to an interrogatory is without merit or too general.”  (CCP § 2030.300(a).) 

Nos. 9.1 and 9.2

            After Allen filed this motion, plaintiff served supplemental responses to Nos. 9.1 and 9.2.  No. 9.1 asks, “Are there any other damages that you attribute to the INCIDENT?  If so, for each item of damage state: (a) the nature; (b) the date it occurred; (c) the amount; and (d) the name, ADDRESS, and telephone number of each person to whom an obligation was incurred.”  Initially, plaintiff responded, “Damages include but are not limited to damages allowed under Civil Code section 3336, interest on the funds that defendants did not promptly return, statutory damages and attorney fees under Penal Code section 496(c).”  That answer is incomplete because it only addresses subpart (a).  Moreover, stating the damages “include but are not limited to…” is evasive.

            Plaintiff ultimately responded, “As of December 20, 2023: (a) Attorney fees and statutory damages under Penal Code section 496(c), compensation under Civil Code section 3336 ( compensation for time and money expended in pursuit of property), and interest on $135,000.  (b) December 31, 2021 (c) $65,339 as of December 20, 2023.  ( d) Matt Bloodgood, Christina Bloodgood.”  (Mink Decl., Ex. 10.)

            This response is also incomplete and evasive.  No. 9.1 asks questions (a)-(d) “for each item of damage.”  The response identifies four forms of purported damages: (1) attorney fees, (2) statutory damages under Penal Code section 496(c), (3) compensation under Civil Code section 3336, and (4) interest on $135,000.  Subpart (c), however, states only a single amount instead of answering “for each item of damage.”

No. 9.2 asks, “Do any DOCUMENTS support the existence or amount of any item of damages claimed in interrogatory 9.1?  If so, describe each document and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT.”  Initially, plaintiff responded, “Yes.”  That response was incomplete.  It does not answer the follow-up question beginning, “If so... .” 

Plaintiff ultimately supplemented the response: “Yes.  As to attorney fees, bills were produced to defendants’ counsel.  As to CC 3336, none.  As to interest, calculations at 7% on scratch pads that were discarded.” (Mink Decl., Ex. 10.)  This response is valid.  Though it does not directly identify who has each document, it suffices that plaintiff produced the bills and that the other documents “were discarded,” meaning nobody has them. 

No. 12.1

            No. 12.1 asks, “State the name, ADDRESS and telephone number of each individual: (a) who witnessed the INCIDENT or the events occurring immediately before or after the INCIDENT; (b) who made any statement at the scene of the INCIDENT; (c) who heard any statements made about the INCIDENT by any individual at the scene; and (d) who YOU OR ANYONE ACTING ON YOUR BEHALF claim has knowledge of the INCIDENT (except for expert witnesses covered by Code of Civil Procedure section 2034).”

            To all four subparts, plaintiff responded, “Matthew Bloodgood, Christina Bloodgood, Andrew White, employees at Franchise Tax Board, whose identities will be stated when ascertained.  Investigation and discovery are continuing.  The response to 17.l(c), below, is incorporated herein by this reference.” 

This response is inadequate.  As Allen argues, “Plaintiff failed to properly identify the witnesses, including the employees at the FTB it communicated with.”  (Separate Statement, p. 3.)  Interrogatory responses “shall be as complete and straightforward as the information reasonably available to the responding party permits.”  (CCP § 2030.220(a).)  “If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.”  (Id., subd. (c).)  “Verification of the answers is in effect a declaration that the party has disclosed all information which is available to him.  If only partial answers can be supplied, the answers should reveal all information then available to the party.  If a person cannot furnish details, he should set forth the efforts made to secure the information.  He cannot plead ignorance to information which can be obtained from sources under his control.”  (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 782 (Deyo).)

Plaintiff does not set forth any efforts made to identify which employees at the Franchise Tax Board (FTB) it communicated with.  That information is not equally available to Allen.  The response is therefore incomplete or evasive.   

No. 17.1

            No. 17.1 asks, “Is your response to each request for admission served with these interrogatories an unqualified admission?  If not, for each response that is not an unqualified admission: (a) state the number of the request; (b) state all facts upon which you base your response; (c) state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of those facts; and (d) identify all DOCUMENTS and other tangible things that support your response and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or thing.”

            For each subject request for admission, plaintiff responded to subpart (b) with a long narrative.  Defendants argue this narrative merely regurgitates the complaint’s allegations.  The response does repeat several allegations from the complaint, but that does not make it incomplete or evasive.  The response states facts and specifically describes events by date. 

Defendants’ position regarding No. 17.1(b) amounts to arguing the facts plaintiff gives are not persuasive.  For example, request for admission No. 30 asked, “Admit that YOU have no EVIDENCE that” Tejroop Sehmi “participated in any aspect of the incident described in YOUR COMPLAINT.”  Plaintiff’s response to 17.1(b) included the following statements: “Defendant Tejroop Sehmi is the chief financial officer of Allen owned an interest in Allen, and was doing business as an individual through Allen.  …  Each of the defendants participated in the conduct described herein were agents of each other acting within the course and scope of their agency and employment with the knowledge, consent, or ratification of each other defendant.” 

In Tejroop Sehmi’s and Navjot Sehmi’s motions, they ask the rhetorical question, “[W]hat evidence does Cacker have to name [Tejroop or Navjot] Sehmi other than his happening to be a shareholder and officer of the company?”  (Motions, p. 6.)  This argument goes to the merits of the case against the individual defendants, not whether the response complies with the Civil Discovery Act.  Plaintiff is not required to admit it has no evidence to support various claims when it can point to facts it believes permit an inference supporting its allegations.  Whether those facts or evidence are persuasive is a separate matter.  Acquiring what defendants consider weak sworn responses constitutes achieving the objects of their discovery.

Plaintiff’s response to No. 17.1(c), however, is incomplete and evasive.  Plaintiff responded, “Matthew Bloodgood, Christina Bloodgood, Murray Greiff, Marla Robinson, Moises Cardoso, Brian Young, Mike Krycler, Andrew White, Lori at FTB.”  This response does not state their names, addresses, or telephone numbers.  As for “Lori at FTB,” plaintiff did not set forth any effort to learn Lori’s full name.  (See Deyo, supra, 84 Cal.App.3d at p. 782.) 

Plaintiff’s response to No. 17.1(d) is also incomplete and evasive.  For each disputed request for admission, plaintiff responded, “Documents will be produced after plaintiff’s counsel concludes his trial, currently estimated to be November 1, 2023.”  That is incomplete and evasive.  The Civil Discovery Act sets forth deadlines for discovery responses.  The responding party is not entitled to unilaterally extend those deadlines.  Plaintiff’s opposition argues plaintiff produced documents on November 2 and 3, 2023.  That is not a substitute for an interrogatory response stating, under oath, every document that supports plaintiff’s denial of a request for admission.   

Special Interrogatories

            Defendant Allen moves to compel further responses by plaintiff to special interrogatories Nos. 1-7, 10-25.  Plaintiff gave evasive and incomplete responses to each interrogatory.  These interrogatories all ask plaintiff to “identify” documents supporting various allegations in the complaint.  The interrogatories defined “identify” to mean “set forth the date, the author of the document, any recipients of the document, the bates number of the document, if available, or if the document has not been previously produced, the location of the document.”

After objecting, plaintiff responded, “[T]he documents include but are not limited to the email correspondence with Matt Bloodgood, Christina Bloodgood, Murray Grieff, Marla Robinson, and the Franchise Tax Board; the web pages of the accounts of plaintiff and defendant Allen; the records of the California secretary of state, which are equally available to defendants.  Investigation and discovery are continuing.”

            Responding that documents “include but are not limited to” those listed is evasive.  That qualification constitutes an effort to give plaintiff room to refuse to identify documents it believes support its allegations. 

            The response is incomplete because it only generically describes documents.  It vaguely refers to “email correspondence with” specified people and the FTB but does not state the dates, authors, and recipients of those emails.  Responding, “[W]eb pages of the accounts of” the parties and “records of the California secretary of state” is also too vague.  Plaintiff must specify which “web pages of the accounts” (including their locations, i.e. web addresses or URLs) and which “records” it refers to.

Requests for Admission

            Defendant Allen moves to compel plaintiff to further respond to requests for admission Nos. 3-7.  A party requesting admissions may move to compel further responses if “[a]n answer to a particular request is evasive or incomplete” or “[a]n objection to a particular request is without merit or too general.”  (CCP § 2033.290(a).)

            Plaintiff made meritless objections to requests for admission Nos. 3-7.  It objected to various phrases in Nos. 3, 4, 6, and 7 as “vague and ambiguous.”  Those phrases are not vague or ambiguous.  They are plain English.  “A party may not deliberately misconstrue a question for the purpose of supplying an evasive answer.  …  [W]here the question is somewhat ambiguous, but the nature of the information sought is apparent, the proper solution is to provide an appropriate response.”  (Deyo, supra, 84 Cal.App.3d at p. 783.) 

For example, request No. 4 demands, “Admit that the funds sent and credited to PROPOUNDING PARTY were sent and credited to PROPOUNDING PARTY by the FTB.”  Plaintiff responded, “Objection.   ‘[S]ent and credited’ is vague and ambiguous.  Unable to admit or deny due to the objections.”  None of the terms plaintiff objected to are vague or ambiguous.  They are plain English.  The dispute giving rise to this action is simple.  Plaintiff’s complaint itself alleges, “The Franchise Tax Board credited [plaintiff’s] payments to Allens’ tax account.”  (¶ 10.)  It further alleges, “[P]laintiff had mistakenly caused $135,000 of its funds to be credited to Allen’s state tax account with the California Franchise Tax Board.”  (¶ 14.)      

Plaintiff’s objection to No. 5 is also meritless.  No. 5 asks, “Admit that the funds sent to PROPOUNDING PARTY, as alleged in paragraph 26 of YOUR COMPLAINT, were sent by the FTB to PROPOUNDING PARTY on checks from the Treasurer of the State of California.”  Plaintiff responded, “Objection.  Paragraph 26 does not allege funds were sent by the FTB to the propounding party.  Denied.”  This response is evasive.  Paragraph 26 of the complaint alleges, “Defendants owed plaintiff a duty to use ordinary care and to return to plaintiff the $135,000 defendants had received as a result of plaintiff’s mistake.”  That defendant “received” the $135,000 implies somebody “sent” the money.  Moreover, regardless of what the complaint alleges, the question is clear.  Did Allen receive the money in the form of checks from the Treasurer?  The only proper response is to either admit, deny, or state plaintiff “lacks sufficient information or knowledge” to admit or deny.  (CCP § 2033.220(b)(3).) 

Plaintiff’s objections to requests for admission Nos. 3-7 are overruled.

Requests for Production

            Defendant Allen moves to compel plaintiff to further respond to requests for production Nos. 1-8 and 11-27.  A party demanding documents 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).)

Plaintiff made meritless objections to Nos. 1-5.  They request, “All DOCUMENTS between the FTB and” plaintiff and four specified individuals, respectively, “from December 2021 to the present relating to the allegations in YOUR COMPLAINT.”  Plaintiff objected “that ‘relating to the allegations’ is vague and ambiguous.”  It is not.  This case arises from a simple dispute over two transactions.  It is not difficult to determine which documents between the FTB and plaintiff or the named individuals relate to the allegations and which documents do not.  This objection to request Nos. 1-5 is overruled. 

Plaintiff’s substantive responses to each request also do not comply with the Civil Discovery Act.  Each response states, “Responding party assumes propounding party is not asking for attorney-client communications with his clients before and during the pendency of this action, or counsel’s work product for this action.  The documents in this category that are in the possession, custody or control of responding party and to which no objection is being made will be included in the production. Discovery and investigation are continuing.”

Plaintiff does not clearly make objections based on attorney-client privilege or work product.  Assuming plaintiff wishes to do so, it must “[i]dentify with particularity any document … to which an objection is being made.”  (CCP § 2031.240(b)(1).)  “If an objection is based on a claim of privilege, the particular privilege invoked shall be stated.”  (CCP § 2031.240(b)(2).)  “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.”  (CCP § 2031.240(c)(1).)  Plaintiff did not do so.

The statement of compliance is also incomplete.  A statement of compliance must state 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.)  Plaintiff responded, “The documents in this category that are in the possession, custody or control of responding party and to which no objection is being made will be included in the production.”  This response omits the crucial word “all.”  A statement of compliance must include the precise language stated in section 2031.220 because it states under oath not only that the responding party will produce some documents, but also that the responding party is not withholding any responsive documents—except those subject to objections and identified with particularity as required under section 2031.240(b)(1).

Sanctions      

Defendants move for sanctions against plaintiff and its counsel, Lyle R. Mink.  Courts must impose sanctions against one who unsuccessfully opposes a motion to compel further responses, unless the opposing party acted with substantial justification or other circumstances make sanctions unjust.  (CCP §§ 2030.300(d) [interrogatories]; 2031.310(h) [requests for production]; 2033.290(d) [requests for admission].)  “Making, without substantial justification, an unmeritorious objection to discovery” and “[m]aking an evasive response to discovery” are misuses of the discovery process subject to sanctions.  (CCP § 2023.010(e) & (f).) 

Plaintiff unsuccessfully opposed each motion, with minimal exceptions.  Plaintiff made meritless objections and evasive responses.  Plaintiff did not act with substantial justification.  Sanctions are just under the circumstances.

The three moving defendants each move for $1,460 in sanctions on their motions regarding form interrogatories.  Allen moves for $2,510 in sanctions for the motion regarding requests for admission, $1,460 for the requests for production, and $1,460 for the special interrogatories.  Defendants reasonably incurred these expenses as a result of plaintiff’s misuse of the discovery process.    

Disposition

            Defendant Allen Corporation Supply Co., Inc.’s motion to compel further responses to form interrogatories is granted as to Nos. 9.1, 12.1, and 17.1(c), and 17.1(d).  The motion is denied as to Nos. 9.2 and 17.1(b).  Plaintiff Cacker Capital, Inc. is ordered to serve further verified responses to Allen’s form interrogatories Nos. 9.1, 12.1, 17.1(c), and 17.1(d) within 30 days.  Plaintiff Cacker Capital, Inc. and its counsel, Lyle R. Mink, are ordered to pay defendant Allen $1,460 in sanctions within 30 days.  Plaintiff and its counsel shall be jointly and severally liable for the sanctions.

            Defendant Navjot Sehmi’s motion to compel further responses to form interrogatories is granted as to No. 17.1(c) and No. 17.1(d).  The motion is denied as to No. 17.1(b).  Plaintiff is ordered to serve further verified responses to Navjot Sehmi’s form interrogatory No. 17.1(c) and No. 17.1(d) within 30 days.  Plaintiff Cacker Capital, Inc. and its counsel, Lyle R. Mink, are ordered to pay defendant Navjot Sehmi $1,460 in sanctions within 30 days.  Plaintiff and its counsel shall be jointly and severally liable for the sanctions.

Defendant Tejroop Sehmi’s motion to compel further responses to form interrogatories is granted as to No. 17.1(c) and No. 17.1(d).  The motion is denied as to No. 17.1(b).  Plaintiff is ordered to serve further verified responses to Tejroop Sehmi’s form interrogatory No. 17.1(c) and No. 17.1(d) within 30 days.  Plaintiff Cacker Capital, Inc. and its counsel, Lyle R. Mink, are ordered to pay defendant Tejroop Sehmi $1,460 in sanctions within 30 days.  Plaintiff and its counsel shall be jointly and severally liable for the sanctions.

Defendant Allen Corporation Supply Co., Inc.’s motion to compel further responses to special interrogatories is granted.  Plaintiff is ordered to serve further verified responses to Allen’s special interrogatories Nos. 1-7 and 10-25 within 30 days.  Plaintiff Cacker Capital, Inc. and its counsel, Lyle R. Mink, are ordered to pay defendant Allen $1,460 in sanctions within 30 days.  Plaintiff and its counsel shall be jointly and severally liable for the sanctions.

Defendant Allen Corporation Supply Co., Inc.’s motion to compel further responses to requests for admission is granted.  Plaintiff is ordered to serve further verified responses without objections to requests for admission Nos. 3-7 within 30 days.  Plaintiff Cacker Capital, Inc. and its counsel, Lyle R. Mink, are ordered to pay defendant Allen $2,510 in sanctions within 30 days.  Plaintiff and its counsel shall be jointly and severally liable for the sanctions.

Defendant Allen Corporation Supply Co., Inc.’s motion to compel further responses to requests for production is granted.  Plaintiff is ordered to serve further verified responses to requests for production Nos. 1-8 and 11-27, and a privilege log within 30 days.  Plaintiff must make no objections except those based on attorney-client privilege or the work product doctrine.  Plaintiff shall produce all additional responsive documents concurrently with its written responses.  Plaintiff Cacker Capital, Inc. and its counsel, Lyle R. Mink, are ordered to pay defendant Allen $1,460 in sanctions within 30 days.  Plaintiff and its counsel shall be jointly and severally liable for the sanctions.