Judge: Colin Leis, Case: BC597857, Date: 2023-10-09 Tentative Ruling

Case Number: BC597857    Hearing Date: March 1, 2024    Dept: 74

SoCal Diesel, Inc. v. Extrasensory Software, Inc., et al.

 

Plaintiff SoCal Diesel Inc.’s Motion to Compel Further Responses to Requests for Production of Documents (Set One) from Defendant Extrasensory Software, Inc. and Request for Sanctions

 

The court considered the moving papers, opposition, and reply.

BACKGROUND

            This action arises from a dispute over alleged misappropriation of trade secrets.

            In October 2015, Plaintiff SoCal Diesel, Inc. (Plaintiff) filed a complaint against Robyn Emus, Ira Emus, and ExtraSensory Software, Inc. (Defendant).

            On May 19, 2023, Plaintiff propounded requests for production of documents on Defendant.

            On July 7, 2023, Defendant served Plaintiff with its responses. Plaintiff was dissatisfied.

            On July 28, 2023, Defendant served Plaintiff with supplemental responses. Plaintiff was still dissatisfied.

            The parties met and conferred to no avail.

            On September 13, 2023, Plaintiff filed this motion to compel further response to RFP Nos. 6-16, 61, 62, 65, 123, and 124.

LEGAL STANDARD 

            A propounding party may move for an order compelling a further response to a demand for inspection if the propounding party deems that an answer or statement of compliance is evasive or incomplete, or that an objection is “without merit or too general.” (Code Civ. Proc., § 2031.310, subd. (a).) Such a motion must set forth specific facts showing good cause for the discovery sought and be accompanied by a meet and confer declaration. (Code Civ. Proc., §§ 2031.310, subd. (b), 2031.210, subd. (b).)

DISCUSSION

            Plaintiff seeks further response to RFP Nos. 6-16, 61, 62, 65, 123, and 124. As a preliminary matter, the court finds that the parties have sufficiently met and conferred. Moreover, Plaintiff has demonstrated good cause for the requested discovery, as much of the information is relevant to Defendant’s costs, which are needed to calculate damages and Defendant’s alleged unjust enrichment. Accordingly, the court will address the disputed RFPs in turn:

RFP Nos. 6-11

            These requests seek documents that identify costs Defendant incurred when it developed, manufactured, assembled, and marketed the FT switch from 2018 to 2023. After Plaintiff filed this motion, Defendant produced responsive documents. If those documents are insufficient, Defendant has invited Plaintiff to review its QuickBooks files at Defendant’s counsel’s office. Further response is not necessary.

RFP Nos. 12-16

            These requests concern documents Defendant gave to all persons for the preparation of, or advice regarding, Defendant’s California State and United States Federal tax returns for the following years: 2018, 2019, 2020, 2021, and 2022. During the meet-and-confer process, the parties agreed to limit the scope of these requests to documents that demonstrate Defendant’s gross revenues and costs derived from sales of the switches. Moreover, Defendant agreed to produce those documents in its supplemental responses. After agreeing to produce those documents, Defendant belatedly invoked the tax-return privilege. Generally speaking, a party cannot raise in a supplement response a new objection not asserted in the original response. (See Stadish v Superior Court (1999) 71 Cal.App.4th 1130, 1140.) But a waiver of the tax-return privilege must be voluntary – which necessarily means a knowing waiver – not one of inadvertence or oversight. (Fortunato v. Superior Court (2003) 114 Cal.App.4th 475, 481-482.) And although Plaintiff does not seek the tax returns themselves, the requests indirectly seek information concerning entries in Defendant’s tax returns. (See Sav-On Drugs, Inc. v. Superior Court (1975) 15 Cal.3d 1, 7.) Accordingly, further response is not necessary.

RFP Nos. 61, 62, and 65

            RFP No. 61 seeks all documents between Defendant and resellers related to FT switches from January 1, 2018, until present. RFP No. 62 requests all documents between Defendant and resellers related to SoCal switches from September 2013 until December 31, 2017. And RFP No. 65 seeks documents between Defendant and resellers related to EFILive products from January 2018 until the present. Defendant claims it has produced all the responsive documents in its possession. (Opposition, p. 6-7.) Further response is not necessary.

RFP Nos. 123 and 124

            RFP No. 123 seeks documents related to Defendant’s agreements, licenses, leases, contracts, or permits for “Condo No. 5.” And RFP No. 124 seeks documents related to Defendant’s agreements, licenses, leases, contracts, or permits for “Condo No. 6.” In its revised supplemental responses, Defendant stated it would comply with these requests but then claimed it does not possess responsive documents. To the extent such documents exist, further response is necessary.

Sanctions

            Because Defendant opposed Plaintiff’s motion with substantial justification, the court denies Plaintiff’s request for sanctions.

CONCLUSION

                The court grants Plaintiff’s motion to compel further responses in part. Defendant shall provide further, Code-compliant responses to RFP Nos. 123 and 124 by March 11.

                Plaintiff shall give notice.