Judge: Colin Leis, Case: 20STCV09612, Date: 2023-04-18 Tentative Ruling

Case Number: 20STCV09612    Hearing Date: April 18, 2023    Dept: 74

Superior Court of California

County of Los Angeles – CENTRAL District

Department 74

MOVING PARTIES:             Defendant/Cross-Complainant Fraser Ross

RESPONDING PARTY:       Plaintiff Glenn Feldman, individually and derivatively on behalf of                                                 Kitross Apparel Los Angeles, LLC

(1)   Motion to Compel Plaintiff’s Further Responses to Form Interrogatories, Set Two

(2)   Motion to Compel Plaintiff’s Further Responses to Special Interrogatories, Set One

(3)   Motion to Compel Plaintiff’s Further Responses to Request for Production of Documents, Set Two

(4)   Motion to Compel Plaintiff’s Further Responses to Request for Admissions, Set Two

The court considered the moving papers, opposition, and reply papers filed in connection with these motions.

BACKGROUND

On November 18, 2020, plaintiff Glenn Feldman (“Plaintiff”), as an individual and derivatively as a member of and on behalf of Kitross Apparel Los Angeles, LLC (“Kitross LLC”), filed the operative First Amended Complaint (“FAC”) against defendants Fraser Ross (“Defendant”), Ali Mir Khan, A-List Inc., Kitross Apparel Los Angeles, LLC, and Christopher Lee, asserting causes of action for (1) intentional misrepresentation, (2) negligent misrepresentation, (3) breach of fiduciary duty, (4) breach of contract, (5) breach of implied covenant of good faith and fair dealing, (6) breach of fiduciary duty, (7) constructive trust, (8) accounting, (9) fraudulent conversion.  Plaintiff is suing Defendant because Defendant allegedly lured him into creating Kitross LLC and signed a memorandum in 2016 (the “2016 Memorandum”) promising to split proceeds of two lawsuits he was maintaining with Plaintiff, but instead looted the LLC’s assets and refused to share the lawsuits’ proceeds.  (FAC, ¶¶ 1, 30.)

On February 24, 2021, Defendant filed a Cross-Complaint against Plaintiff, asserting causes of action for (1) intentional misrepresentation, (2) negligent misrepresentation, (3) breach of fiduciary duty, (4) accounting, and (5) declaratory relief.  The Cross-Complaint alleges that Plaintiff coerced Defendant into forming Kitross LLC, whose operating agreement is patently unconscionable, unethical, and simply unenforceable. (XC, ¶¶ 7, 8.) 

On October 21, 2022, Defendant filed the instant motions to compel Plaintiff’s further responses to his Form Interrogatories – General, Set Two (“FROGs”), Special Interrogatories, Set One (“SROGs”), Request for Production of Documents, Set Two (“RPDs”), and Request for Admissions, Set Two (“RFAs”). 

LEGAL STANDARD

A.    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: ¶ (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.”  (Code Civ. Proc., § 2030.300, subd. (a).) 

B.     Demand for Production

“On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: ¶ (1) A statement of compliance with the demand is incomplete. ¶ (2) A representation of inability to comply is inadequate, incomplete, or evasive. ¶ (3) An objection in the response is without merit or too general.”  (Code Civ. Proc., § 2031.310, subd. (a).)  “The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).) 

C.    Requests for Admission

“On receipt of a response to requests for admissions, the party requesting admissions may move for an order compelling a further response if that party deems that either or both of the following apply: ¶ (1) An answer to a particular request is evasive or incomplete. ¶ (2) An objection to a particular request is without merit or too general.” (Code Civ. Proc., § 2033.290, subd. (a).) 

DISCUSSION

A.    Timeliness

Motions to compel further responses to interrogatories, request for production of documents, and requests for admission must be brought within 45 days of service of the verified response, supplemental verified response, or on a date to which the propounding and responding parties have agreed to in writing; otherwise, the propounding party waives the right to compel further responses. (Code Civ. Proc., §§ 2030.300, subd. (c); 2031.310, subd. (c); 2033.290, subd. (c).)

The instant motions are timely as they were filed on October 21, 2022, within 45 days of Defendant receiving Plaintiff’s allegedly deficient responses on September 13 and supplemental responses on September 23, 2022.  (Motions, declarations of Jeremy D. Smith (“Smith Decl.”), ¶¶ 7, 8.)

B.     Meet and Confer

The instant motions to compel further responses must be accompanied by a meet and confer declaration.  (Code Civ. Proc., §§ 2030.300, subd. (b)(1); 2031.310, subd. (b)(2); 2033.290, subd. (b)(1).)

The Court finds that Defendant has satisfied this requirement.  (Smith Decl., ¶ 8.)  Plaintiff does not deny that the parties met and conferred, but only argues they could have conferred further.

C.    Separate Statement

Defendant has filed a separate statement with each motion as required. (Cal. Rules of Court, rule 3.1345(a)(1), (2), and (3) [requiring motions to compel further responses to requests for admission, interrogatories, and demand for inspection of documents to be accompanied by a separate statement].)

D.    Defendant’s Form Interrogatories

Defendant moves to compel Plaintiff’s further responses to his Form Interrogatories – General, Set Two (“FROG”), No. 17.1, which asked Plaintiff:

Is your response to each request for admission served with these interrogatories an unqualified admission [e.g., a denial]? 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.

(FROG Separate Statement, p. 2:5-14 [part (b) of FROG No. 17.1.)

Defendant argues Plaintiff failed to fully answer FROG No. 17.1 with regards to RFA Nos. 33, 38-42, 43-45, and 60-61.[1]  (Notice of FROG Motion, p. ii:7-8.)

“Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits.” (Code Civ. Proc., § 2030.220, subd. (a).)

RFA No. 33.  The Court finds that Plaintiff’s explanation of his response to RFA No. 33 was both complete and straightforward.  The RFA asked Plaintiff: “Admit that YOU did not advise [Defendant] in writing to seek the advice of an independent lawyer regarding [Kinross LLC’s] OPERATING AGREEMENT.” (Reply, p. 2:14-15.) Plaintiff “Admit[ted],” because he “had no obligation to do so,” and that Defendant “was well versed in the area of business in which the Operating Agreement applied.” (Reply, p. 2:15-17.) The Court does not find a further response necessary. Accordingly, the request to compel further response to FROG No. 17.1 – RFA No. 33 is denied.

RFA Nos. 38-42 and 45: The Court finds that Plaintiff’s response to subpart (b) of FROG 17.1 (i.e., state all facts upon which you base your response) for RFA Nos. 38, 39, 40, 41, and 42 complete.  The RFAs asked Plaintiff to state all basis for denying that he never communicated with Defendant’s attorney regarding the Operating Agreement and 2016 Memorandum, and Plaintiff responded that he denied the request because he spoke with Jeremy Smith. (Reply, pp. 2:18-3:14; Motion, p. 6:14-17.) Defendant argues that Plaintiff should have answered “[w]hen did the discussion occur, where did it occur, what was discussed, and so forth.”  (FROG Separate Statement, p. 7:21.) However, the interrogatory did not ask for that information. It only asked Plaintiff to explain why he denied not having communicated with Defendant’s counsel and he explained because he spoke with Smith. That is sufficient. Plaintiff’s response to subpart (b) of FROG 17.1 for RFA No. 45 is also sufficient because he admitted to never having discussed with Defendant whether Smith should review the Operating Agreement. Nevertheless, the Court agrees with Defendant that Plaintiff’s responses to subpart (d) of FROG 17.1 (i.e., “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 RFA Nos. 38-42 and 45, were incomplete. Plaintiff only answered: “Communications between Responding Party, [Defendant] and Smith. Investigation and discovery continue.” (Reply, pp. 2:18-3:14; 3:23-27.) Plaintiff did not provide the information requested for by subpart (d). Accordingly, the request to compel further response to FROG No. 17.1 – RFA Nos. 38-42 and 45 is granted.

RFA Nos. 43-44: The Court agrees with Defendant that Plaintiff’s responses to subpart (b) of FROG 17.1 for RFA Nos. 43 and 44 are evasive. “RFA Nos. 43 and 44 asked [Plaintiff] to admit or deny that he: (a) never sent [Defendant] a draft Operating Agreement; and (b) never provided any draft Operating Agreement to [Defendant] before he signed it.” (Motion, pp. 6:27-7:1; Reply, p. 3:14-22.) Plaintiff denied the RFA, but instead of simply saying that he denied the RFA because he provided a draft Operating Agreement to Defendant, he responded: “[Defendant] signed the Operating Agreement, therefore prior to signing, [Defendant] was in possession of a draft.” (Reply p. 3:14:22.) That response is evasive because it is not clear whether Plaintiff gave Defendant the draft. Accordingly, the request to compel further responses to FROG No. 17.1 – RFA Nos. 43-44 is granted.

RFA Nos. 60-61: The Court finds Plaintiff’s responses to subpart (b) for RFA Nos. 60-61 evasive. “RFA Nos. 60-61 asked [Plaintiff] to admit that the ‘ongoing general counsel and advise [sic]’ stated as the consideration provided by [Plaintiff] to [Defendant] in the 2016 Memorandum was a reference to legal advice that [Plaintiff] provided to Kitross as its corporate counsel, and to [Defendant] personally.” (FROG Motion, p. 7:7-9.) “[Plaintiff] denied both requests and described the following facts in subpart (b) to Form Interrogatory 17.1: ‘Responding Party did not provide legal advice to [Defendant] or KITROSS related to the matters addressed in the 2016 Memorandum.’” (Motion, p. 7:10-12.) The parties have not produced a copy of the alleged 2016 Memorandum and it is not attached to the FAC or Cross-Complaint. Nonetheless, since Plaintiff does not deny that the memorandum states he will give or gave “ongoing general counsel and advise [sic]” as consideration, he should explain what that phrase meant in the document if he is now denying that he gave Defendant and Kitross LLC legal advice. The Court also finds Plaintiff’s response to subpart (d) (i.e., “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 RFA Nos. 60-61 incomplete. Plaintiff only responded the “2016 Memorandum, Communications between Responding Party, [Defendant] and SMITH,” but failed to specify the communications he is referring to, as well as the name, address, and telephone number of the person that has those communications. Accordingly, the request to compel further responses to FROG No. 17.1 – RFA Nos. 60-61 is granted.

Sanctions: Defendant requests sanctions of $2,672.50 against Plaintiff and Plaintiff’s counsel. The Court finds the requested sanctions of $2,672.50 excessive given that Defendant was justified in failing to provide some supplemental responses.

For the reasons set forth above, Defendant’s request to compel further responses to his Form Interrogatories – General, Set Two (“FROG”), No. 17.1 is DENIED as to RFA No. 33, but GRANTED as to RFA Nos. 38, 39, 40, 41, 42, 43, 44, 45, 60 and 61. The Court grants monetary sanctions against Plaintiff, but in the reduced amount of $1,000. 

E.     Defendant’s Special Interrogatories

Defendant states that he is moving to compel Plaintiff’s further responses to his Special Interrogatories, Set One (“SROG”) “Nos. 2-4, 5-6, 10-11, 13, 21-22, 25, 26-28, 40-45, 49-51, 53, and 54-56.” (Notice of SROG Motion, p. iv:7.) 

However, Defendant fails to discuss SROG Nos. 40-45, and 51 in his moving papers.  Defendant also fails to discuss SROG No. 29 in his separate statement. Accordingly, the request to compel further responses to SROG Nos. 29, 40-45, and 51 is denied.

The Court also notes that even though Defendant fails to mention SROG Nos. 12, 14-20, 23, and 24, he is also moving to compel further responses to those SROGs. (SROG Motion, p. 7:10.)

SROG Nos. 2, 3, 4, 21, and 22: The Court finds it proper to grant the request to compel further responses to SROG Nos. 2-4, 21, and 22. The SROGs asked Plaintiff to identify the number of hours he spent performing legal services on Kitross LLC and Defendant’s behalf, and Plaintiff answered he was “currently unaware of the specific number of hours.” (SROG Motion, p. 5:6-10.) However, “[i]f 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.” (Code Civ. Proc., § 2030.220, subd. (c).) Here, it is not evident from Plaintiff’s response whether he made a reasonable and good faith effort to obtain the number of hours he spent performing legal services to Kitross LLC and Defendant’s behalf. Accordingly, the request to compel further responses to SROG Nos. 2-4, 21, and 22 is granted.

SROG No. 5: The Court finds it proper to deny Plaintiff’s request to compel further response to SROG No. 5. Both parties agree that the SROG asked Plaintiff to state the time period that he shared an attorney-client relationship with the Defendant. (Motion, p. 6:2-3; Opposition, p. 7:22-23.) Plaintiff answered: “ROSS was represented by Responding Party’s prior law firm for a single matter that resolved in or around 2003 or 2004. Thereafter, Responding Party represented ROSS as his Quebec, Canada counsel from 2004 to 2018.” (Opposition, p. 7:23-25; Reply, p. 9-12.) The Court finds that response sufficient. Accordingly, the request to compel further responses to SROG No. 5 is denied.

SROG No. 6: The Court finds it proper to grant the request to compel further response to SROG No. 6, which asked Plaintiff to identify each written attorney-client agreement he formed with the Defendant. (Motion, p. 6:9-11.) Plaintiff answered that “to the extent that responsive documents exist, they are no longer in his possession, custody, or control.” (Reply, p. 3:18-19.) However, it is not evident from Plaintiff’s response (1) whether those agreements existed and, (2) if they exist, whether he made a reasonable and good faith effort to find them. Accordingly, the request to compel further responses to SROG No. 6 is granted.

SROG Nos. 10-11 and 13: The Court finds it proper to deny Defendant’s request to compel further responses to SROG Nos. 10, 11 and 13. As Plaintiff argues in his opposition, Code of Civil Procedure section 2030.060, subdivision (f), states “[n]o specially prepared interrogatory shall contain subparts, or a compound, conjunctive, or disjunctive question.” Here, SROG Nos. 10, 11, and 13 contained subparts, compound and disjunctive questions.  (SROG Separate Statement, pp. 8:18-20, SROG No. 10 [“If YOU contend that YOU orally formed any attorney-client agreement with ROSS, please describe the date of formation, date of termination, parties, and material terms to each such agreement”]; 9:26-28, SROG No. 11 [“If YOU contend that YOU orally formed any attorney-client agreement with KITROSS, please describe the date of formation, date of termination, parties, and material terms to each such agreement”]; 11:17-19, SROG No. 13 [“If YOU contend that ROSS was advised or represented by independent counsel of his choice regarding the OPERATING AGREEMENT, state all facts and IDENTIFY (by Bates number) each DOCUMENT that supports YOUR contention”].) Accordingly, the request to compel further responses to SROG Nos. 10, 11, and 13 is denied.

SROG Nos. 12, 14-20: Defendant asked Plaintiff to identify certain documents; Plaintiff answered, “no responsive documents exist.” Plaintiff’s response is not code compliant. Accordingly, the court grants the request to compel further responses to SROG Nos. 12 and 14-20.

SROG Nos. 23-25: The Court finds it proper to grant the request to compel further responses to SROG Nos. 23-25. The interrogatories asked Plaintiff to (a) state the total amount of monetary compensation he received from Defendant and Kitross LLC for the ongoing general counsel and advice described in the 2016 Memorandum and (b) identify each document that relates to those calculations. (Separate Statement, pp. 21:16-18; 22:20-22; 23:24-26.) Plaintiff only answered that he “does not recall the amount,” and, therefore, he could not identify the documents related to the amounts. (Separate Statement, responses to SROGs 23-25.) It is not evident from Plaintiff’s response whether he made reasonable and good faith effort to obtain the information. (Code Civ. Proc., § 2030.220, subd. (c).) Accordingly, the request to compel further responses to SROG Nos. 23-25 is granted.

SROG Nos. 26-28: The Court finds it proper to grant the request to compel further responses to SROG Nos. 26-28. The SROGs asked Plaintiff to identify documents where he disclosed in a Canadian action, his ownership stake interest in Kitross LLC, alleged right to monthly payments from Kitross, and his right to share Defendant’s settlement proceeds under the 2016 Memorandum. (SROG Motion, p. 8:13-19.) Plaintiff objects to the requests contending that they will force him to violate Quebec’s Civil Code of Procedure section 15 which requires family law hearings to be in held in camera unless the court orders they can be held publicly. (SROG Opposition, pp. 8:26-9:8.) However, Plaintiff fails to explain why Quebec’s Civil Code of Procedure applies in this case. In any event, “‘a responding party may object to an interrogatory that seeks privileged information by clearly stating the objection and the particular privilege invoked. But the existence of a document containing privileged information is not privileged. [Citations.] Interrogatories may be used to discover the existence of documents in the other party's possession. [Citation.] If an interrogatory asks the responding party to identify a document, an adequate response must include a description of the document. [Citation.]’” (Best Products, Inc. v. Superior Court (2004) 119 Cal.App.4th 1181, 1190 [italics in original].) Here, SROG Nos. 26-28 only ask Plaintiff to identify (not produce) the documents where his disclosed matters relevant to this action. Accordingly, the request to compel further responses to SROG Nos. 26-28 is granted.

SROG Nos. 49-50: The Court finds it proper to deny the request to compel further responses to SROG Nos. 49-50 because (1) the SROGs asked Plaintiff to state all reasons why he never communicated with Defendant’s attorney Smith regarding the Operating Agreement (No. 49) and 2016 Memorandum (No. 50), and (2) Plaintiff answered he “did communicate with Smith.” (SROG Separate Statement, pp. 29:18-30:8; 30:20-31:8.) That response was sufficient as Plaintiff indicates he communicated with Smith concerning the Operating Agreement and 2016 Memorandum. Accordingly, the request to compel further responses to SROG Nos. 49-50 is denied.

SROG Nos. 53-55: The Court finds it proper to grant the request to compel further responses to SROG Nos. 53-55. The SROGS asked Plaintiff to describe (a) all details in connection with obtaining Defendant’s signature on the Operating Agreement (No. 53), (b) when Plaintiff first presented Defendant with the Operating Agreement (No. 54), and (c) all reasons why Plaintiff never provided any draft of the Operating Agreement (No. 55). (SROG Separate Statement, pp. 31:20-22; 32:21; 33:20-21.) Plaintiff answered (a) Defendant was provided a draft prior to signing, which he then signed, (b) he does not recall when the draft was provided to Defendant prior to signing, and (c) the last SROG assumes Defendant never obtained a draft of the Operating Agreement. (SROG Separate Statement, Responses to SROG Nos. 53-55.) Those responses do not answer the questions asked, do not show that Plaintiff made reasonable and good faith effort to obtain the information he does not know, and the objections are meritless. Accordingly, the request to compel further responses to SROG Nos. 53-55 is granted.

SROG No. 56: The Court finds it proper to grant the request to compel further response to SROG No. 56 because (1) it asked Plaintiff to describe “all discussions” he had with Defendant regarding the execution of the Operating Agreement and (2) Plaintiff clarified in his meet and confer letter that he is only requesting descriptions of all discussions “prior to” execution of the agreement. (SROG Motion, p. 10:13-23.)  Under Code of Civil Procedure section 2030.220, “[e]ach answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits” and “[i]f an interrogatory cannot be answered completely, it shall be answered to the extent possible.” (Code Civ. Proc., § 2030.220, subds. (a) and (b).) Here, Plaintiff’s main objection to SROG No. 56 was that it was overbroad. However, Plaintiff can simply describe the discussions he remembers having prior to the execution of the agreement and state he answered the SROG to the extent possible after reasonable and good faith effort to obtain additional information. Accordingly, the request to compel further responses to SROG No. 56 is granted.

Sanctions: Defendant requests sanctions of $2,672.50 against Plaintiff and Plaintiff’s counsel. As with the FROG motion, the Court finds the requested sanctions excessive given that Defendant was justified in failing to provide some supplemental responses.

For the reasons set forth above, Defendant’s request to compel further responses to his Special Interrogatories, Set One, is DENIED as to Nos. 5, 13, 29, 40-45, 49-51, and GRANTED as to Nos. 6, 2-4, 12, 14-28, 53-56. The Court grants monetary sanctions against Plaintiff, but in the reduced amount of $1,000. 

F.     Defendant’s Request for Production of Documents

Defendant moves to compel Plaintiff’s further responses to his Request for Production of Documents, Set Two (“RPD”) Nos. 96-98, 113-115, 119-120, 129-134, 138-139, 141, 144, 151, and 153-154. (RPD Reply, p. 7:16-19 [identifying the RPDs still at issue].)

RPD Nos. 96-98 and 129-134: The Court finds it proper to grant the request to compel further responses to RPD Nos. 96-98 and 129-134. Defendant argues the following with regards to those RPDs. Plaintiff is a party to a divorce proceeding titled Tova Benaroch v. Glenn Joseph Feldman in Quebec, Canada (the “Benaroch Action”), and has filed mandatory asset disclosures in that case. (RPD Motion, pp. 6:24-27; 7:4-5.) RPD Nos. 96-98 and 129-134 asked Plaintiff “to produce: (1) any court filings where [Plaintiff] disclosed to the Quebec court his alleged 25% ownership stake interest in [Kitross LLC], his alleged right to monthly allowance payments from [Kitross LLC], or his right to share in [Defendant’s] settlement proceeds under the 2016 Memorandum; (2) any K1s or distributions that Feldman received from [Kitross LLC]; or (3) any judgments relevant to [Plaintiff’s] alleged entitlements in this action.” (RPD Motion, p. 6:27-7:4.) Plaintiff objects to producing those documents, arguing that (1) they violate Quebec’s Civil Code of Procedure section 15 (mentioned above) and (2) violate his right to financial privacy. (RPD Opposition, pp. 7:4-8:20.) However, even if Plaintiff’s objection based on Quebec’s Civil Code of Procedure had merit, Defendant has identified a way to produce the documents requested without invading Plaintiff’s right to privacy. As Defendant suggests, Plaintiff can simply redact the identifying information that violates the Quebec rule and produce the items responsive to the RPDs that do not violate the rule. (Reply, p. 3:15-17.) As for Plaintiff’s right to financial privacy objection, Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1 (“Hill”) “sets forth in detail the analytical framework for assessing claims of invasion of privacy under the state Constitution.” (Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 370.) “The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. [Citation.]” (Williams v. Superior Court (2017) 3 Cal.5th 531, 552, citing Hill, supra, 7 Cal.4th at pp. 35-40.) “The party seeking information may raise in response whatever legitimate and important countervailing interests’ disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy.” (Ibid.) “A court must then balance these competing considerations.” (Ibid.) In other words, a court must balance competing rights (the right of a litigant to discover relevant facts and the right of an individual to maintain reasonable privacy) in determining whether the information is discoverable.  (Ibid.) Here, there is no doubt that Plaintiff has a right to privacy in his financial matters. (Shaffer v. Superior Court (1995) 33 Cal.App.4th 993, 999 [stating that right to privacy “protections extend to both a person’s personal and financial matters”].) However, Defendant has raised legitimate and important countervailing interests the disclosure will serve by pointing out that the requested documents are relevant to the issue of whether Plaintiff had any ownership interest in Kitross LLC and Defendant’s legal settlements. (RPD Separate Statement, pp. 5:27-6:4.) Upon balancing those competing considerations, the Court finds it proper to grant the request to compel further responses to RPD Nos. 96-98 and 129-134, because those RPDs are narrowly tailored to only seek financial information relevant to this case; Plaintiff can simply redact the information that is not relevant.

RPD Nos. 113-115 and 154: The Court grants Defendant’s request to compel Plaintiff’s further responses to RPD Nos. 113-115 and 154 because Plaintiff promised to produce those documents. (RPD Motion, declaration of Jeremy D. Smith, Exhibit E, p. 3.)

RPD Nos. 119-120, 138-139, 141, 144, and 153: The Court denies the request to compel further responses to those RPDs because, as Plaintiff argues, his responses complied with Code of Civil Procedure section 2031.230. (RPD Opposition, p. 9:3-11; Code Civ. Proc., § 2031.230 [“A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling 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”]; RPD Separate Statement, Responses to RPD Nos. 119-120, 138-139, 141, 144, and 153.)

RPD No. 151: The Court finds it proper to grant the request to compel further responses to RPD No. 151. The RPD asked Plaintiff to produce all communications between him and anyone related to the Defendant, but Plaintiff only responded with objections. (RPD Separate Statement, p. 34:8-18.) The Court finds Plaintiff’s compound, vague, and ambiguous objections meritless. As for the attorney-client privilege and attorney work-product doctrine, Code of Civil Procedure provides: “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.” (Code Civ. Proc., § 2031.230, subd. (c)(1).) Here, there is no evidence that Plaintiff provided a privilege log or provided sufficient factual information to allow Defendant to evaluate the merits of that claim. As for Plaintiff’s overly broad argument (i.e., the request is not reasonably limited as to scope or time, or described with reasonable particularity), Defendant argues that he is “willing to narrow the scope of the request to cover communications sent or received since 2016 that relate to [Defendant’s] negotiation, acceptance, performance, or rights or obligations under the Operating Agreement or 2016 Memorandum. Such communications are reasonably calculated to lead to discovery of admissible evidence that may disprove [Plaintiff’s] claims for relief arising under those agreements and/or prove [Defendant’s] counterclaims arising from same.” (RPD Motion, p. 8:8-12.) The Court finds Defendant has reasonably limited the requested documents. Again, to the extent Plaintiff is claiming privilege, he should comply with Section 2031.230. Accordingly, the request to compel further responses to RPD No. 151 is granted, but only to seek the production of communications sent or received since 2016 that relate to Defendant’s negotiation, acceptance, performance, or rights or obligations under the Operating Agreement or 2016 Memorandum.

Sanctions: Defendant requests sanctions of $2,672.50 against Plaintiff and Plaintiff’s counsel. As with the other motion, the Court finds the requested sanctions excessive given that Defendant was justified in failing to provide some supplemental responses.

For the reasons set forth above, Defendant’s request to compel further responses to his Request for Production of Documents, Set Two, is DENIED as to Nos. 119-120, 138-139, 141, 144, and 153, but GRANTED as to Nos. 96-98 and 129-134, 113-115, and 154. The request is also GRANTED as to RPD No. 151, but only to seek the production of communications sent or received since 2016 that relate to Defendant’s negotiation, acceptance, performance, or rights or obligations under the Operating Agreement or 2016 Memorandum. The Court grants monetary sanctions against Plaintiff, but in the reduced amount of $1,000. 

G.    Defendant’s Requests for Admission

Defendant moves to compel Plaintiff’s further responses to his Request for Admissions, Set Two (“RFA”), Nos. 26-28, 44-45, 52, and 58.

RFA Nos. 26-28: The Court finds it proper to grant the request to compel further responses to RFA Nos. 26-28. The term “allowance” in the RFAs refers to monthly payments Defendant contends Kitross LLC owes him pursuant to the company’s Operating Agreement. (RFA Separate Statement, p. 2:9-10.) The term “settlement proceeds” refers to the share of legal settlement proceeds Plaintiff contends he is owed pursuant to the 2016 Memorandum. (RPA Separate Statement, p. 5:18-21.) The term “Kitross Membership” refers to the membership interest in Kitross LLC that he contends he owned pursuant to the Operating Agreement. The RFAs asked him to admit he never disclosed in the Benaroch action his (a) allowance (RFA 26), (b) Kitross LLC membership, and (c) settlement proceeds. (RFA Separate Statement, pp. 2:5-6; 4:1-6; 5:16-17.) Plaintiff objected to the RFAs, arguing that the disclosure will violate Quebec’s Civil Code of Procedure section 15 and the RFAs seek private financial information. However, while Plaintiff has a right to privacy in his financial information, the RFAs only seek an admission or denial; they do not seek the production of those documents. Plaintiff fails to explain and cites no authority for his argument that merely admitting or denying to facts relevant in this action will expose him to possible contempt proceedings in Canada or reveal his financial information. Accordingly, the request to compel further responses to RFA Nos. 26-28 is granted.

RFA No. 44: The Court finds it proper to grant the request to compel further responses to RFA No. 44 (which asked Plaintiff to admit that Defendant signed the only version of the Operating Agreement he presented to him), because Plaintiff states he is willing to amend his response to that RFA. (Opposition, p. 8:15-20.)

RFA No. 45: The Court finds it proper to grant the request to compel further response to RFA No. 45. “Each answer in a response to requests for admission shall be as complete and straightforward as the information reasonably available to the responding party permits.” (Code Civ. Proc., § 2033.220, subd. (a).) “Each answer shall: ¶ (1) Admit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by the responding party. ¶ (2) Deny so much of the matter involved in the request as is untrue. ¶ (3) Specify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge.” (Code Civ. Proc., § 2033.220, subd. (b).) Here, Plaintiff’s response to the RFA was not straightforward. Although Plaintiff responded that he admitted to the RFA “in so far as Responding Party provide [sic] a copy to SMITH on request” (RFA Separate Statement, p. 8:7-9), as Defendant argues, that qualifying clause is irrelevant to the question posed (RFA Motion, p. 7:19-23). Accordingly, the request to compel further response to RFA No. 45 is granted.

RFA Nos. 52 and 58: The Court finds it proper to deny the request to compel further response to the RFAs because Defendant fails to explain why whether Plaintiff ever (1) paid Defendant’s attorney Smith (RFA No. 52) or (2) communicated with a “Maurice Wainer” in connection with Defendant’s will (RFA No. 58) are triable issues in this action. (Orange County Water Dist. v. The Arnold Engineering Co. (2018) 31 Cal.App.5th 96, 115 [“The primary purpose of requests for admissions is to set at rest triable issues so that they will not have to be tried; they are aimed at expediting trial”].) Accordingly, the request to compel further response to RFA Nos. 52 and 58 is denied.

Sanctions: Defendant requests sanctions of $2,672.50 against Plaintiff and Plaintiff’s counsel. “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 further response, 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.” (Code Civ. Proc., § 2033.290, subd. (d).) Here, the Court finds sanctions of $1,000 reasonable given that Plaintiff was justified in refusing to supplement his responses to some RFAs.

For the reasons set forth above, Defendant’s request to compel further responses to his Request for Admissions, Set Two, is DENIED as to Nos. 52 and 58, but GRANTED as to Nos. 26-28 and 44-45. The Court grants monetary sanctions against Plaintiff, but in the reduced amount of $1,000. 

CONCLUSION

Based on the foregoing, the court GRANTS IN PART and DENIES IN PART the Defendant Fraser Ross’s discovery motions as follows.

Defendant’s request to compel further responses to his Form Interrogatories – General, Set Two, No. 17.1 is DENIED as to RFA No. 33, but GRANTED as to RFA Nos. 38, 39, 40, 41, 42, 43, 44, 45, 60 and 61. The Court grants monetary sanctions against Plaintiff in connection with that motion, but in the reduced amount of $1,000. 

Defendant’s request to compel further responses to his Special Interrogatories, Set One, is DENIED as to Nos. 5, 13, 29, 40-45, 49-51, and GRANTED as to Nos. 6, 2-4, 12, 14-28, 53-56. The Court grants monetary sanctions against Plaintiff in connection with that motion, but in the reduced amount of $1,000.

Defendant’s request to compel further responses to his Request for Production of Documents, Set Two, is DENIED as to Nos. 119-120, 138-139, 141, 144, and 153, but GRANTED as to Nos. 96-98 and 129-134, 113-115, and 154. The request is also GRANTED as to RPD No. 151, but only to seek the production of communications sent or received since 2016 that relate to Defendant’s negotiation, acceptance, performance, or rights or obligations under the Operating Agreement or 2016 Memorandum. The Court grants monetary sanctions against Plaintiff in connection with that motion, but in the reduced amount of $1,000. 

Defendant’s request to compel Plaintiff Glenn Feldman’s further responses to his Request for Admissions, Set Two, is DENIED as to Nos. 52 and 58, but GRANTED as to Nos. 26-28 and 44-45. The Court grants monetary sanctions against Plaintiff in connection with that motion, but in the reduced amount of $1,000. 

Plaintiff is ordered to serve the further responses within 30 days of this ruling.

Defendant is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED:  April 18, 2023

_____________________________

Colin Leis

Judge of the Superior Court