Judge Ashfaq G. Chowdhury, Case Number: 23GDCV00055, Date: 2023-10-20 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 23GDCV00055, Date: 2023-10-20 Tentative Ruling

Case Number: 23GDCV00055 Hearing Date: October 27, 2023 Dept: E

Case Name: VAHAN DER GRIGORIAN v. BENY SARKSIAN; E CHE PIZZA & PASTA & MORE LLC; and DOES 1-20 inclusive

Hearing Date: 10/27/2023 – 10:00am
Case No: 23GDCV00055
Trial Date: UNSET

2 - TENTATIVE RULINGS ON (2) MOTIONS TO COMPEL FURTHER RESPONSES

BACKGROUND

Plaintiff filed a Complaint on 01/11/2023. The Court heard Defendant, Beny Sarksian’s, Demurrer to the Complaint on 04/21/2023.

On 05/02/2023, Plaintiff filed a First Amended Complaint (FAC) alleging the following nine causes of action: (1) Damages for Breach of Oral Agreement, (2) Damages for Breach of Written Agreement, (3) Damages for Breach of Fiduciary Duty, (4) Damages for Fraud, (5) Damages for Fraud, (6) Promissory Estoppel, (7) Accounting, (8) Damages for Unjust Enrichment, and (9) Dissolution of Partnership. The first through sixth causes of action were alleged against Defendant Sarksian only. The seventh through ninth causes of action were alleged against all Defendants.

On 08/18/2023, the Court heard Defendant’s demurrer to the second, fourth, and eighth causes of action in the FAC, and the Court heard Defendant’s motion to strike as to the FAC.

The Court sustained the demurrer with leave to amend as to the second cause of action for breach of written agreement. The Court sustained without leave to amend the demurrer to the fourth cause of action for fraud (intentional misrepresentation). The Court sustained without leave to amend the demurrer to the eighth cause of action for unjust enrichment.

On 08/28/2023, Plaintiff filed a Second Amended Complaint (SAC) alleging six causes of action: (1) Damages for Breach of Oral Agreement, (2) Damages for Breach of Fiduciary Duty, (3) Damages for Fraud (Negligent Misrepresentation), (4) Promissory Estoppel, (5) Accounting, and (6) Dissolution of Partnership. The first through fourth causes of action are alleged against Defendant Sarksian. The fifth through sixth causes of action are alleged against all Defendants – Beny Sarksian and E Che Pizza & Pasta & More LLC.

In the SAC, Plaintiff alleges that Defendant, Sarksian, in July 2019 approached him and made a business proposal. (SAC ¶ 7.) Plaintiff alleges that Sarksian had no financial ability to create or maintain a business of his own and represented to Plaintiff that if Plaintiff contributed financial resources to a restaurant business, Sarksian would handle the day-to-day operations of the parties’ business. (SAC ¶8.)

Plaintiff alleges that Sarksian represented to Plaintiff that Sarksian would have Defendant-LLC created and that he, Sarksian, would manage and operate the resulting restaurant and would pay all profits equally to Plaintiff and Sarksian. (SAC ¶9.) Plaintiff alleges that he gave Sarksian at least $25,000.00 to form Defendant-LLC and to operate a restaurant. (SAC ¶10.) Plaintiff alleges that pursuant to the parties’ agreement, Defendant-LLC was created wherein Plaintiff and Sarksian were equal members in Defendant-LLC and the restaurant business. (SAC ¶11.)

Plaintiff alleges that pursuant to the parties’ agreement, Plaintiff executed a written property lease so that Defendant-LLC had a location from which to conduct a restaurant business. (SAC ¶12.)

Plaintiff alleges that Sarksian failed and refused to honor the parties’ agreement, and unbeknownst to Plaintiff, engaged in a scheme to take, for himself and for all defendants, funds received by the restaurant through its operations, excluding Plaintiff from those funds. (SAC ¶15.)

These two motions are motions to compel further responses. Both are filed by Defendant, Beny Sarksian.

MOTION 1 – Compel Further Responses to Form Interrogatories, Set One

RELIEF REQUESTED

Defendant Beny Sarksian moves this Court pursuant to CCP § 2030.300 for an order compelling Plaintiff, Vahan Der Grigorian, to serve further responses to Form Interrogatories, Set One, without objection.

Defendant also move this Court for an order pursuant to CCP §§ 2023.020, 2023.030, and 2030.300(d), that Plaintiff Vahan Der Grigorian and his counsel of record, Anahid Agemian, shall pay a monetary sanction to Defendant Beny Sarksian in at least the sum of $9,429.74 for reasonable attorneys’ fees and expenses incurred by the moving party in connection with the necessity of making this motion.

LEGAL STANDARD - COMPEL FURTHER RESPONSES TO INTERROGATORIES

Under CCP § 2017.010, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action..., if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” The Section specifically provides that “[d]iscovery may relate to the claim or defense of the party seeking discovery or of any other party to the action,” and that 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.”

On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply:

(1) An answer to a particular interrogatory is evasive or incomplete.

(2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate.

(3) An objection to an interrogatory is without merit or too general.

(CCP §2030.300(a).

If a timely motion to compel has been filed, the¿burden is on the responding party¿to justify any objection or failure fully to answer.¿(Coy v. Superior Court of Contra Costa County (1962) 58 Cal.2d 210, 220–221 [addressing a motion to compel further responses to interrogatories]; see also¿Fairmont Ins. Co. v. Superior Court¿(2000) 22 Cal.4th 245, 255.)

Furthermore, to the extent there is any doubt in whether these records should be discoverable, California’s liberal approach to discovery provides that doubt should be resolved in favor of permitting discovery. (Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 173.)

The party to whom interrogatories have been propounded shall respond in writing under oath separately to each interrogatory by any of the following:

(1) An answer containing the information sought to be discovered.

(2) An exercise of the party’s option to produce writings.

(3) An objection to the particular interrogatory.

(CCP §2030.210(a).)

ANALYSIS

As a preliminary matter, Defendant does not state in its motion or notice of motion which form interrogatories Defendant is moving to compel further responses to.

However, based on Defendant’s Separate Statement, Defendant appears to be moving to compel further responses to Form Interrogatories (FROGs), Set One, numbers: 2.7, 2.9, 3.6, 3.7, 8.2, 9.1, 9.2, 12.1, 12.6, and 17.1 re: RFAs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 19, 20, 21, 22, 23, 24, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, and 52.

Meet and Confer
“A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040.” (CCP §2030.300(b)(1).)

Plaintiff argues that the meet and confer was not in good faith. Plaintiff states that Mr. Stein waiting 2 days before the time to file Defendant’s motions to demand further responses was not proper. The Court does not find this argument availing. First, Plaintiff offers no legal support to establish that this was not proper. Second, Plaintiff provides no proof that the meet and confer was not in good faith. Plaintiff simply concludes the meet and confer was not in good faith and provides no arguments as to why. Further, Plaintiff could have extended the deadline for Defendant to file this motion.

DISCUSSION

FROGs 2.9, 8.2, 12.1, 12.6, and 17.1
Plaintiff stated in its Opposition that further responses were served to all FROGs except 2.7, 3.6, 3.7, 9.1, and 9.2. Both parties seem to agree that as to the FROGs in which further responses were served, compelling further responses is moot; however, the issue of sanctions on those FROGs is not moot.

The Court DENIES Defendant’s motion to compel further responses to FROGs 2.9, 8.2, 12.1, 12.6, and 17.1 as MOOT because Plaintiff served further responses; however, sanctions are not moot as to those FROGs.

FROGs 2.7, 3.6, 3.7, 9.1, and 9.2
As to FROGs 2.7, 3.6, 3.7, 9.1, and 9.2, Plaintiff stated that he has not served further responses.

FROG 2.7
State:
(a) The name and address of each school or other academic or vocational institution you have attended beginning with high school;

(b) The dates you attended;

(d) The degree received.

Response FROG 2.7
Objection, irrelevant and not calculated to lead to any admissible evidence.

FROG 3.6
Have you done business under a fictitious name during the past 10 years? If so, for each fictitious name state: (a) The name; (b) The dates each was used; (c) The state and county of each fictitious name filing; and, (d) The address of the principal place of business.

Response FROG 3.6
Objection, irrelevant and not calculated to lead to any admissible evidence; interrogatory directed to an individual not a business.

FROG 3.7
With the past five years has any public entity registered or licensed your business? If so, for each license or registration: (a) Identify the license or registration; (b) State the name of the public entity; and, (c) State the dates of issuance and expiration.

Response FROG 3.7
Objection, irrelevant and not calculated to lead to any admissible evidence; interrogatory directed to an individual not a business.

FROG 9.1
Are there any other damages that you attribute to the incident? If so, for each item of damage state: (a) The amount; (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.

Response FROG 9.1
Objection, vague and ambiguous as to the term “other damages.”

FROG 9.2
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.

Response FROG 9.2
Not applicable.

TENTATIVE RULING MOTION 1
As to FROG, Set One, Numbers 2.9, 8.2, 12.1, 12.6, and 17.1, the Court denies Defendant’s motion as MOOT because Plaintiff served further responses; however, sanctions are not moot as to those FROGs.

As to FROGs 2.7, 3.6, 3.7, 9.1, and 9.2, Defendant’s motion to compel further responses, without objections, is GRANTED. As to 2.7, 3.6, 3.7, and 9.1,

Plaintiff’s responses included objections, and those objections were waived. As discussed in Defendant’s motion, Plaintiff did not serve initial responses within 30 days, and Plaintiff did not serve responses by the extended deadline that Defendant gave to Plaintiff. “If a party to whom interrogatories are directed fails to serve a timely response, the following rules apply: (a) The party to whom the interrogatories are directed waives any right to exercise the option to produce writings under Section 2030.230, as well as any objection to the interrogatories, 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 2030.210, 2030.220, 2030.230, and 2030.240. (2) The party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.” (CCP §2030.290(a).)

Plaintiff did not move to be relieved from waiver of objections. As to FROG 9.2, the response did not assert an objection, but instead stated, “Not applicable.” However, FROG 9.2 is based on FROG 9.1, and the Court has compelled a further response to FROG 9.1.

Defendant’s motion to compel further responses to FROGs 2.7, 3.6, 3.7, 9.1, and 9.2 is GRANTED. Plaintiff is to provide further, verified responses, without objection, within 10 days from the date of this hearing.

Sanctions

“The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, 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.” (CCP §2030.300(d).)

“The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.” (Cal. Rules of Court, Rule 3.1348(a).)

Defendant moves for this Court for order that Plaintiff, Vahan Der Grigorian, and his counsel of record, Anahid Agemian, shall pay a monetary sanction to Defendant Beny Sarksian in at least the sum of $9,429.74 for reasonable attorneys’ fees and expenses incurred by the moving party in connection with the necessity of making this motion.

Defendant’s counsel, Stein, explains his sanctions request as follows:

As the direct result of Plaintiff’s service of discovery responses containing frivolous objections, and the result of Plaintiff’s refusal to amend even a single response, following the “meet and confer” effort, Defendant has unnecessarily incurred attorney’s fees and costs in the preparation, filing and hearing of this motion. Specifically, Defendant has incurred and will incur prorated attorney’s fees in at least the amount of $9,350.00 (representing 12 hours prorated for the preparation of this motion as one of four), and an expected additional two and a half hours in connection with reviewing the opposing papers and preparing a reply memorandum, and two and a half hours in preparation for and attending the hearing on this motion, at Defendant’s counsel’s customary hourly rate of $550 per hour), plus filing fees in the amount of $79.74 ($60.00, plus e-filing service fees of $19.74). Accordingly, Defendant Sarksian seeks an ordcr awarding monetary sanctions in his favor of at least $9,429.74.

(Stein Decl. ¶3.)

In Opposition, Plaintiff argues that “Mr. Stein waiting 2 days before the time to file Defendant’s motions to demand further responses was not proper.” (Oppo. p.3.) The Court does not find this argument availing as Plaintiff provides no legal support for this argument. Plaintiff also argues that the meet and confer was not in good faith. The Court also does not find this argument availing either. Plaintiff provides no proof that the meet and confer was not in good faith. Plaintiff simply concludes the meet and confer was not in good faith and provides no arguments as to why. Further, Plaintiff could have extended the deadline for Defendant to file this motion.

Additionally, Plaintiff stated that nowhere in Mr. Stein’s communication was there any indication that that is what was taking place. Presumably, Plaintiff is referring to the meet and confer and is arguing that since the Defendant’s meet and confer didn’t state that the communication was a meet and confer, a meet and confer did not occur. The Court also finds this argument unavailing because the Plaintiff provided the Court with no evidence to evaluate the meet and confer. Plaintiff just made conclusions as to the inadequacy of the meet and confer and has provided the Court no ability to determine what happened because no email exchanges or letters were provided to the Court in moving, opposing, or reply papers.

The issue of sanctions will be taken up at the hearing.

MOTION 2 – Compel Further Responses, SROGs, Set One

RELIEF REQUESTED

Defendant Beny Sarksian moves this Court pursuant to CCP § 2030.300 for an order compelling Plaintiff Vahan Der Grigorian to serve further responses to Special Interrogatories, Set One, without objection.

Defendant will also move this Court for an order pursuant to CCP §§ 2023.020, 2023.030, 2030.300(d), that Plaintiff Vahan Der Grigorian and his counsel of record, Anahid Agemian, shall pay a monetary sanction to Defendant Beny Sarksian in at least the sum of $9,429.74 for reasonable attorneys’ fees and expenses incurred by the moving party in connection with the necessity of making this motion.

LEGAL STANDARD - COMPEL FURTHER RESPONSES TO INTERROGATORIES

On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply:

(4) An answer to a particular interrogatory is evasive or incomplete.

(5) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate.

(6) An objection to an interrogatory is without merit or too general.

(CCP §2030.300(a).

The party to whom interrogatories have been propounded shall respond in writing under oath separately to each interrogatory by any of the following:

(1) An answer containing the information sought to be discovered.

(2) An exercise of the party’s option to produce writings.

(3) An objection to the particular interrogatory.

(CCP §2030.210(a).)

ANALYSIS

As a preliminary matter, Defendant does not state in its motion or notice of motion which Special Interrogatories Defendant is moving to compel further responses to. However, based on Defendant’s Separate Statement, Defendant appears to be moving to compel further responses to Special Interrogatories (SROGs), Set One, numbers: 2, 3, 4, 5, 6, 7, 9, 10, 11, 12, 13, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 48, 49, 50, 51, 52, 53, 54, and 55.

45-Day Requirement

“Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories.” (CCP §2030.300(c).)

Neither party addresses whether the instant motion is timely. In Plaintiff’s Opposition, Plaintiff notes how the deadline to file a motion to compel further responses would expire on July 7, 2023; however, Plaintiff does not state whether this motion was filed by the deadline. Here, Defendant’s motion appears to be filed by the deadline indicated in Plaintiff’s Opposition. Therefore, the Court finds this motion timely since neither party argued otherwise.

Meet and Confer

“A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040.” (CCP §2030.300(b)(1).)

DISCUSSION

The Plaintiff states in Opposition that he served further responses on September 13, 2023. Both parties seem to agree that this motion is moot with respect to compelling further responses. However, the Court notes that this motion is not moot as to sanctions.

TENTATIVE RULING

Defendant’s motion to compel further responses to special interrogatories, set one, is DENIED as moot because Plaintiff served further responses after the filing of this motion. However, this motion is not moot as to sanctions.

Defendant’s counsel, Stein, explains his sanctions request as follows:

(Stein Decl. ¶3.)

Additionally, Plaintiff stated that nowhere in Mr. Stein’s communication was there any indication that that is what was taking place. Presumably, Plaintiff is referring to the meet and confer and is arguing that since the Defendant’s meet and confer didn’t state that the communication was a meet and confer, a meet and confer did not occur. The Court also finds this argument unavailing because the Plaintiff provided the Court with no evidence to evaluate the meet and confer. Plaintiff just made conclusions as to the inadequacy of the meet and confer and has provided the Court no ability to determine what happened. Additionally, in Reply, Defendant’s counsel submits emails showing that Defendant gave Plaintiff the option to have more time to respond to the meet and confer, and Plaintiff’s counsel ignored this issue.

The issue of sanctions will be taken up at the hearing.

The Court notes once again, as it observed at the hearing in this matter on 10/20/23—on yet another discovery dispute between counsel—that the meet-and-confer process in this matter appears to have broken down. Counsel are reminded that discovery is meant to be a process handled by counsel, in good faith, extending professional courtesy to opposing counsel, with discussions conducted calmly and professionally—and ideally without need to resort to court intervention:

We feel compelled to observe that resort to the courts easily could have been avoided here had both parties actually taken to heart Justice Stone's admonitions . . . that the statute requires that there be a serious effort at negotiation and informal resolution. . . . Perhaps . . . it is necessary to remind trial counsel and the bar once again that argument is not the same as informal negotiation . . . ; that attempting informal resolution means more than the mere attempt by the discovery proponent to persuade the objector of the error of his ways . . .; and that a reasonable and good faith attempt at informal resolution entails something more than bickering with [opposing] counsel.... Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.

(Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294 [cleaned up].)