Judge: Curtis A. Kin, Case: 21STCV05918, Date: 2023-05-02 Tentative Ruling

Case Number: 21STCV05918    Hearing Date: May 2, 2023    Dept: 72

MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION, SET ONE

Date:               5/2/23 (8:30 AM)                                             

Case:               FWD Future, LLC et al. v. Blue Avian Ventures LLC et al. (21STCV05918)

TENTATIVE RULING:

Defendant Natural Care USA, Inc.’s Motion to Compel Further Responses to Requests for Production, Set One is GRANTED IN PART.

Defendant Natural Care USA, Inc. moves to compel further responses from plaintiff The Raw Office, Inc. to Requests for Production, Set One, Nos. 1-3, 12-21, 30-33, 35, 40, 61, 62, 69, 71, 72, 74, 77, 78, 80, 90-94, and 96.

As a preliminary matter, plaintiff’s general objections based on the attorney-client privilege and the attorney work product doctrine were timely, even though the privileges were not asserted in the separate initial responses to each request. (Bardavid Decl. ¶ 3 & Ex. B at 2:3-6; Korea Data Systems Co. v. Superior Court (1997) 51 Cal.App.4th 1513, 1516 [finding that timely, but nonspecific objections based on the attorney-client privilege and the work product doctrine did not result in waiver of privilege].)

With respect to Nos. 1-3, 69, 72, and 74, which ask for correspondence exchanged between plaintiff and purported assignors—FWD Future, LLC, Peach Medical, LLC (“Peach”), and Eapen Enterprises, LLC (“Eapen”)—as well as documents related to a settlement and exchange of moneys between plaintiff, Eapen, and/or Peach, plaintiff responded that it is providing certain responsive documents. Based on the phrasing of the requests, plaintiff’s responses are sufficient. Plaintiff’s objection based on overbreadth is well-taken because the requests are not limited based on the sale of the gloves at issue. No further responses to Nos. 1-3, 69, 72, and 74 are required.

With respect to Nos. 12-14 and 16-21, which ask for documents supporting plaintiff’s alter ego allegations against the entity defendants, plaintiff withheld certain documents on the basis that they were confidential and proprietary. The party asserting trade-secret objections has the burden to establish their existence and operation. (Bridgestone/Firestone, Inc. v. Superior Court (1992) 7 Cal.App.4th 1384, 1390.) Plaintiff purports that it takes measures to support the privacy of its client lists and derives economic value from such lists. (Opp. at 7:1-22; Code Civ. Proc. § 3426.1, subd. (d) [“trade secret” is “information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (1) [d]erives independent economic value… from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and (2) [i]s the subject of efforts that are reasonable under the circumstances to maintain its secrecy.”].) However, the declaration of Jeff Goldman purportedly supporting plaintiff’s trade secret objection was never filed. As such, plaintiff’s arguments in its opposition are unavailing. (Hebberd-Kulow Enterprises, Inc. v. Kelomar, Inc. (2013) 218 Cal.App.4th 272, 283 [“An attorney's argument in pleadings is not evidence”].) To the extent that plaintiff withheld documents, further responses to and production in accordance with Nos. 12-14 and 16-21 are required.

With respect to No. 15, which asks for documents supporting plaintiff’s allegation that no stock was ever issued, plaintiff responded that, upon a diligent search and reasonable inquiry, it cannot comply with the requests because the requested documents have never been in the possession, custody, or control of plaintiff. This response complies with CCP § 2031.230. No further response to No. 15 is required.

With respect to Nos. 30, which asks for the assignment executed by plaintiff and its assignors; No. 31, which asks for correspondence between plaintiff and its customers related to the subject goods; Nos. 32, 33, 35, 40, 61, 62, 80, and 90, which ask for documents supporting plaintiff’s contentions; No. 77, which ask for correspondence between plaintiff and its clients related to the subject gloves; and No. 78, which ask for plaintiff’s client list in 2020, plaintiff responded that it is willing to produce unredacted responsive documents subject to a protective order. Pursuant to the parties’ stipulation, the Court issued a protective order on April 28, 2023. Moreover, with respect to its client list, for the reason stated above, plaintiff has not supported its trade secret objection. Accordingly, to ensure that defendant receives responsive documents, further responses to and production in accordance with Nos. 30-33, 35, 40, 61, 62, 77, 78, 80, and 90 are required.

With respect to Nos. 71, which asks for documents related to an arbitration involving plaintiff, Eapen Enterprises, LLC, and Peach Medical, LLC, plaintiff asserted objections but also responded that responsive documents were not in plaintiff’s possession. This is sufficient. No further response to No. 71 is required. 

With respect to No. 91, defendant did not set forth the text of plaintiff’s response or the reasons why a further response should be compelled, as required by Rule of Court 3.1345(c). (See Def. Sep. Stmt. at 58:25-27.) No further response to No. 91 is required.

With respect to No. 92, which asks for bank statements and check copies for any checking account maintained by plaintiff form 2017 to the current date, this request is not limited to the issue of plaintiff’s assertion of lost sales and is accordingly overbroad. No further response to No. 92 is required.

With respect to No. 93, which asks for plaintiff’s financial statements from 2017 through the current date, plaintiff alleges a loss of $8,825,000 related to the subject transaction. (SAC ¶ 74.) Although the requested documents pertain to plaintiff’s financial condition, because plaintiff squarely places its financial losses at issue, the financial statements “go[] to the heart of the cause of action itself,” which allow for discovery. (Rawnsley v. Superior Court (1986) 183 Cal.App.3d 86, 91, quoting GT, Inc. v. Superior Court (1984) 151 Cal.App.3d 748, 754.) However, a beginning date of 2017 is not reasonably related to the subject transaction which occurred in 2020. A further response to and production in accordance with No. 93 for a period from 2019 to the current date is required.

With respect to No. 94, which asks for documents evidencing plaintiff’s contention that numerous customers have stopped ordering from plaintiff as a result of the nonconforming defective goods, plaintiff responded that it is complying with the request by producing the declaration of Jeffrey Golfman. This is sufficient. No further response to No. 94 is required.

With respect to No. 96, which asks for financial statements and bank statements evidencing its loss of business, plaintiff stated that it is producing loss reports, documents displaying transactions relating to the subject gloves, and documents relating to damages resulting from the gloves. This is sufficient. No further response to No. 96 is required.

The motion is GRANTED IN PART. No later than twenty (20) days hereof, plaintiff The Raw Office, Inc. is ordered to serve further verified responses, without objection, to Requests for Production, Set One, Nos. 12-14, 16-21, 30-33, 35, 40, 61, 62, 77, 78, 80, 90, and 93 propounded by defendant Natural Care USA, Inc.

Given the mixed result, the Court declines to impose monetary sanctions.