Judge: David A. Hoffer, Case: 30-2021-1227845, Date: 2022-08-15 Tentative Ruling
Before the Court are Defendant/Cross-Complainant Peter Gorla’s (“Gorla”) Motions to Compel Plaintiff/Cross-Defendant Hospitality Marketing Concepts, LLC’s (“HMC”) Further Responses to Request for Production (“RFP”), and Form Interrogatories (“Form Rogs”)-General and Employment Law, all Sets One.
The motions are GRANTED, in part, and DENIED, in part, as set forth below. Further responses are to be provided once an appropriate protective order is in place.
The Court finds that monetary sanctions in the amount of $800 per motion are warranted against HMC and its counsel. (Code Civ. Proc. §§ 2030.300(d), 2031.310(h) & 2031.320(b).) This results in $2,400 in sanctions against HMC and its counsel of record, Law Offices of Charles Ferrari. Sanctions are payable to Gorla’s counsel of record within 60 days of the date of this ruling.
A. Requests for Production (ROA 129)
The motion is GRANTED as to RFP Nos. 4-5, 7-8, 11-13, 25-28 and 32-35 and DENIED as to RFP Nos. 1-3, 6, 9-10, 14-24 and 29-31.
RFP 4-5, 7-8, 11-13, 25-28 and 32-35:
Gorla has set forth good cause justifying the discovery sought by these RFP. These requests seek documents that are generally tailored to the claims and defenses in this litigation. (See Cross-Complaint, ROA 47.) In its initial responses to these RFP, HMC asserted various objections and provided no substantive response. In its supplemental responses served on August 3, 2022, HMC stood by its objections.
HMC failed to meet its burden of justifying its objections. (Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98 [burden shifts to objector after good cause shown for RFPs].) HMC provides no legal or factual authority to support its attorney-client privilege objection and, thus, failed to establish that the privilege applies to any particular RFP. (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733 [party claiming the privilege has burden of establishing preliminary facts necessary to support objection]; see also, State Farm Fire & Casualty Co. v. Superior Court (1997) 54 Cal.App.4th 625, 639.)
HMC also offered no reasoned argument for its burdensome and oppressive objection and thus failed to meet its burden of justifying that objection. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255 [responding party’s burden to justify objection]; see also, Williams v. Superior Court (2017) 3 Cal.5th 531, 549 [“An ‘objection based upon burden must be sustained by evidence showing the quantum of work required.’”].)
HMC’s relevancy objection is not well-taken as these RFP seek documents that are relevant to the claims and defenses in this litigation.
HMC also failed to offer any legal or factual support for its privacy objection. Moreover, as to RFP Nos. 4-5, 7-8, 11-13 and 25-28, it is unclear how these RFPs implicate the privacy rights of third parties as they seek documents related to Gorla’s salary and employment agreements. With respect to RFP Nos. 32-35, these requests seek documents related to Mokhtar Ramadan’s use of personal credit cards and, thus, do implicate Mr. Ramadan’s privacy rights. (Cobb v. Sup.Ct. (1979) 99 Cal.App.3d 543, 550.) However, Gorla has demonstrated a compelling need for the information sought by these RFP that outweighs the privacy right implicated. (Britt v. Sup.Ct. (San Diego Unified Port Dist.) (1978) 20 Cal.3d 844, 859; Alch v. Sup.Ct. (Time Warner Entertainment Co.) (2008) 165 Cal.App.4th 1412, 1427.) These documents relate to Mokhtar Ramadan’s alleged commingling of HMC’s assets, which is relevant to the Cross-Complaint’s alter-ego allegations. Further, any privacy concerns can be assuaged by an appropriate protective order. (Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 371.)
HMC also failed to set forth any argument in support of its objections based on trade secrets and premature expert witness testimony and, thus, failed to meet its burden of justifying these objections. Further, HMC’s concerns regarding potential unauthorized disclosure of its trade secret information can be minimized by entry of an appropriate protective order.
Accordingly, the motion is granted as to RFP Nos. 4-5, 7-8, 11-13, 25-28 and 32-35. To the extent that any documents are withheld on the basis of privilege, HMC is ordered to provide a privilege log. (Code Civ. Proc. § 2031.240(c).) The parties are also ordered to meet and confer within 5 days regarding entry of an appropriate protective order.
RFP Nos. 1, 3, 6, 9-10, 14-21 and 29-31:
The Court finds HMC’s supplemental responses to these RFP to be code compliant. (See Code Civ. Proc., §§ 2031.210(a); 2031.230; ROA 181, Ex. 4.) Thus, no further response will be compelled. With regard to RFP Nos. 1, 3, 6, 9-10, 17 and 29-31, Gorla takes issue with HMC’s statement that no other responsive documents are “believed” to exist and argues that HMC “has an affirmative duty to search for documents and produce them.” However, HMC’s supplemental responses reflect that it has made the required diligent search and reasonable inquiry in an effort to locate documents, but that no further responsive documents are believed to exist. (ROA 181, Ex. 4.)
Regarding RFP Nos. 14-16 and 18-21, the Court finds that HMC’s supplemental responses contain adequate statements of compliance. (Code Civ. Proc., § 2031.210(a).) Thus, no further response will be compelled. However, HMC must produce a privilege log to the extent that any documents are withheld on the basis of privilege. Further, if HMC fails to produce documents in accordance with its statement of compliance, Gorla is free to seek further relief from the court.
Accordingly, the motion is denied as to RFP Nos. 1, 3, 6, 9-10, 14-21 and 29-31.
RFP Nos. 2 and 22-24:
Gorla failed to show good cause for these RFP. RFP No. 2 seeks all documents that evidence, refer or relate to the organizational structure of HMC’s operations in the world from November 1, 2017, to the present. RFP No. 2 seeks very broad information and documents that are not reasonable for the needs of the case. Thus, HMC’s objection as to relevancy is well-taken.
RFP Nos. 22-24 seek all documents that evidence, refer or relate to HMC’s accrual of Gorla’s deferred salary as an asset, liability and expense from September 1, 2016 to present. These RFP seek documents that do not appear reasonable for the needs of the case and in addition do not define the terms “accrual” or “assets” “liability” or “expense”. Thus, HMC’s objection that these RFP are vague and ambiguous is well-taken. There is no indication that Gorla attempted to limit the scope of these RFP or provided further clarification as to what documents were being sought.
Accordingly, the motion is denied as to RFP Nos. 2 and 22-24.
B. Form Interrogatories (ROA 133 and 137)
The motion is GRANTED as to Nos. 17.1, 50.1-50.6, 207.2, 215.2 and 217.1, and DENIED as to Nos. 2.1, 2.11, 12.1, 15.1, 200.1-200.4, 200.6, 201.3-201.4, 207.1, 209.2, 211.1- 211.3 and 216.1.
Form Rog No. 17.1: Both HMC’s initial response and its supplemental response to this Form Rog are incomplete. HMC failed to state the address and telephone number of all persons having knowledge of responsive facts, as required under subsection (c). HMC’s answer to this interrogatory for RFA Nos. 18-26 is nonresponsive. For RFA Nos. 18-26, HMC responded by stating that these issues are “properly answered by an expert witness.” It is HMC’s burden to justify its failure fully to answer the discovery requests. (Coy v. Sup.Ct. (Wolcher) (1962) 58 Cal.2d 210, 220-221 [re: interrogatories].) Further, “[a] party may not deliberately misconstrue a question for the purpose of supplying an evasive answer. (Citation.) Indeed, where the question is somewhat ambiguous, but the nature of the information sought is apparent, the proper solution is to provide an appropriate response.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783.)
HMC failed to offer any explanation for its failure to fully answer the interrogatory as it pertains to RFA Nos. 18-26 and, thus, failed to meet its burden of justifying its response. A further response that answers all subparts of the interrogatory for each RFA must be provided.
Form Rog Nos. 50.1-50.6: HMC initially objected to these Form Rogs and provided no substantive response. HMC now provides a substantive response in its further responses, but improperly limits its response to only one agreement alleged in the pleadings – the September 28, 2019 contract attached as Exhibit D to Gorla’s Cross-Complaint. However, the Cross-Complaint alleges four written agreements. (Exhs. A-D to the Cross-Complaint.) HMC should provide a further response that addresses each agreement alleged in the pleadings as required by the interrogatory. If it lacks knowledge sufficient to respond fully to the interrogatory, it should so state. (Code Civ. Proc., § 2030.220(c).)
Form Rog No. 207.2: HMC initially objected and provided no substantive response. In its supplemental response, HMC answered subparts (a)-(e), but failed to answer subparts (f)-(j). A further response that answers all subsections of this interrogatory should be provided.
Form Rog No. 215.2: HMC failed to answer this interrogatory at all in both its initial response and supplemental response and failed to offer any justification for its failure to respond. Thus, a response to this interrogatory must be provided.
Form Rog No. 217.1: This Form Rog is identical to Form Rog No. 17.1. The motion is granted as to this interrogatory for the same reasons that a further response to Form Rog No. 17.1 is warranted.
Form Rog Nos. 2.1, 2.11, 12.1, 15.1, 200.1-200.4, 200.6, 201.3-201.4, 207.1, 209.2, 211.1-211.3, 216.1: HMC’s initial responses to these Form Rogs were either incomplete or no substantive response was provided. HMC provided supplemental responses to these Form Rogs on August 2, 2022, which the Court finds to be code compliant. (Exhs. 2 and 3 to ROA 179.) Accordingly, the motion is denied as to these Form Rogs.
The moving party is ordered to give notice of these rulings.