Judge: David A. Rosen, Case: EC065113, Date: 2023-03-02 Tentative Ruling
Case Number: EC065113 Hearing Date: March 2, 2023 Dept: E
Hearing Date: 03/03/2023 – 8:30am
Case No: EC065113
Trial Date: 06/05/2023
Case Name: INTEGRATED DYNAMIC SOLUTIONS v. AUTOMATED SYSTEMS AMERICA
TENTATIVE
RULING ON MOTION TO COMPEL FURTHER RESPONSES
Opposition,
Reply, and Supplemental Declaration submitted.
As
the Reply accurately points out, the Opposition was submitted late; however,
the Court utilizes its discretion and will consider the late submitted
opposition. The Reply also accurately pointed out that Opposition did not
submit a Separate Statement.
Proof
of Service Timely Filed (CRC Rule 3.1300): Ok
16/21 Court Days Lapsed (CCP 1005(b)): Ok
Proper Address: Ok
Moving
Papers: Notice of Motion/Motion; Separate Statement; Decl. Katherine J.
Vescera; Proposed Order
Opposition
Papers: Notice of Opposition/Opposition; Decl. Rob L. Phillips
Reply
Papers: Reply; Supplemental Declaration Vescera; Request for Judicial Notice
Additional
Papers: Plaintiff’s counsel, Phillips, submitted a supplemental Declaration on
2/28/2023
RELIEF
REQUESTED
Defendant/Cross-Complainant,
Automated Systems America, Inc. (Defendant or ASAI) moves the Court for an
order compelling Plaintiff/Cross-Defendant, Integrated Dynamic Solutions, Inc.
(Plaintiff or IDS) to provide further verified responses to Form
Interrogatories (FROGs), Set Two, No. 17.1 with respect to Requests for
Admission (RFAs) Nos. 12, 14, 16, 18, 31, and 32 without
objections within twenty days of the Court ruling on this motion and for
monetary sanctions in favor of ASAI and against Plaintiff in the amount of
$10,800.00.
BACKGROUND
This
case arises from claims by Plaintiff, IDS, that Defendant, ASAI, breached a
contract that was entered into by ASAI and Plaintiff on or about September 17,
2009 (the 2009 Agreement). (Def. Mot. p.1.) Specifically, Plaintiff claims that
ASAI failed to pay it all the monies it was entitled to pursuant to the terms
of the 2009 Agreement.
On or about March 14,
2016, IDS filed its Complaint against ASAI for (1) Breach of Contract; (2)
Intentional Fraudulent Misrepresentation; (3) Negligent Misrepresentation; (4)
Accounting; (5) Declaratory Relief; (6) Unjust Enrichment; and (7) Conversion
(the “Complaint”). (Decl. Vescera ¶4.)
On or about August 10,
2016, ASAI filed a First Amended Cross-Complaint (“FACC”) against IDS and IDS’
owner, Defendant Nasrollah Gashtili (Gashtili), for (1) Breach of the 2009
Agreement; (2) Breach of the 2014 Agreement; (3) Fraud; (4) Negligent
Misrepresentation; (5) Declaratory Relief; (6) Unjust Enrichment; and (7)
Conversion.
[Gashtili has since been
dismissed as an individual defendant in the FACC and Plaintiff has dismissed
four of the seven causes of action in the Complaint, and the only remaining
causes of action are for breach of contract, accounting, and declaratory
relief.]
Defendant states that to
date, Plaintiff has served three sets of supplemental responses to the FROGs at
issue in this motion, but none of these supplemental responses have addressed
the inadequacies identified by Defendant in its four meet and confers.
ANALYSIS
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).)
Here, Defendant states
that IDS agreed to extend ASAI’s deadline to bring this motion until December
22, 2022. (Decl. Vescera ¶21, Ex. 20.) Defendant attached the email wherein IDS
agreed to extend the date to filing this motion until December 22, 2022.
Defendant filed and served this motion on December 21, 2022; therefore, this
motion is timely.
Plaintiff’s argument
in Opposition about this motion being untimely by six years based on responses
to prior RFAs is unavailing. First, the instant motion pertains to compelling
further responses to FROG 17.1, Set Two, not prior RFAs served in 2016. Second,
Plaintiff agreed to this extension.
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).)
Here, Defendant met
and conferred. (Decl. Vescera ¶¶19-20.)
Preliminary
Matter
Since this motion pertains to compelling
further responses based on Plaintiff’s third supplemental responses, the Court
will focus on Plaintiff’s third supplemental responses to the FROGs. Further, as
to the relevant RFAs pertaining to the FROGs, the Court will note only the
original response because the original and supplemental responses were all the
same for all the relevant RFAs. Additionally, any bolding or crossed out
portions appearing in responses contained herein were included by Plaintiff.
ASAI has not added any emphasis or otherwise modified Plaintiff’s responses.
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:
(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 (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).)
DISCUSSION
FROG
17.1 with respect to RFA 12
RFA
12
Admit
that the software provided by YOU to ASAI under the 2009 AGREEMENT was not
compliant with the existing CARD ASSOCIATION’S RULES.
Response
RFA 12
Deny
FROG
17.1
Is
your response to each request for admission served with these interrogatories
an unqualified admission? 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;
(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.
THIRD SUPPLEMENTAL
RESPONSE TO FORM INTERROGATORY NO. 17.1 – RFA 12
No,
(a) Request No. 12
(b) IDS is unaware
whether the minor software bug in the CAS Software rendered it noncompliant
with the CARD ASSOCIATION’S RULES.
(c) Nasrollah Gashtili
(d) ASAI possesses the
documents related to any issues with the CAS Software. IDS does not
possess any documents
which relate to CAS Software being non-compliant with the CARD
ASSOCIATION’S RULES. Documents
bates labeled IDS 62415 - IDS 62429 produced
herewith include
references to PCI matters between the parties.
TENTATIVE RULING FROG
17.1, Set Two, With Respect to RFA 12
Defendant’s
argument as to 17.1(b) is convincing because Plaintiff denied RFA 12 in its entirety
yet Plaintiff’s response to 17.1(b) stated it was unaware. Defendant points out
how if Plaintiff is not aware of whether the software was compliant with
certain card association rules, then Plaintiff should not be denying outright
RFA 12. Further, Plaintiff’s argument that 17.1(b) is cumulative of Defendant’s
SROG 24 which Plaintiff fully answered is unpersuasive, as that is not relevant
to this motion.
Defendant’s argument with
respect to 17.1(c) is unavailing. Defendant tries to argue that it would be
impossible for Gashtili to be the only person with knowledge of the facts
because surely other IDS personnel would also have knowledge. Defendant’s
displeasure with or disbelief of Plaintiff’s response are not proper bases for
a motion to compel a further response. However, the Court notes that Plaintiff
did not fully respond to 17.1(c) that states, “state the names, ADDRESSES, and
telephone numbers of all PERSONS who have knowledge of those facts” because
Plaintiff only stated the name.
Defendant’s argument as
to Plaintiff’s response to 17.1(d) being inappropriate is convincing because as
Defendant noted, Plaintiff stated it did not possess any documents;
however, this relates to documents that exist, not whether
Plaintiff is in possession. The Court finds Plaintiff’s response evasive.
Plaintiff’s arguments in Opposition are unavailing because Plaintiff argues how
this is cumulative because it was already answered in a different set of
discovery. Other sets of discovery are irrelevant to this motion.
Defendant’s motion to
compel further responses to FROG 17.1(b), 17.1(c), and 17.1(d), set two, with
respect to RFA 12 is GRANTED. Plaintiff must provide verified, code compliant,
further responses within 20 days of the ruling on this motion.
FROG 17.1 with respect to
RFA 14
RFA 14
Admit that the software
provided by YOU to ASAI under the 2014 AGREEMENT was not compliant with the
existing CARD ASSOCIATION’S RULES.
Response RFA 14
Deny
FROG
17.1
Is your response
to each request for admission served with these interrogatories an unqualified
admission? 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;
(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.
THIRD SUPPLEMENTAL
RESPONSE TO FROG 17.1 – RFA 14
(a) Request No. 14
(b) The CAS Software was
completed by the time the 2014 Agreement was entered into and ASAI had been
using it for 5 years.
(c) Nasrollah Gashtili
(d) ASAI possesses the
documents related to any issues with the CAS Software. IDS does not possess
any documents which relate to CAS Software being completed by the time the 2014
Agreement was entered into and ASAI had been using it for 5 years. IDS does
not possess any documents which relate to CAS Software being non-compliant with
the CARD ASSOCIATION’s RULES.
TENTATIVE RULING FROG
17.1, Set Two, With Respect to RFA 14
As
to 17.1(b), the Court finds Defendant’s arguments convincing that the response
is not complete or straightforward as possible because it is entirely unclear
how Plaintiff’s response supports its denial. Further, Plaintiff’s arguments in
opposition are unavailing.
As to 17.1(c), Plaintiff’s
response is not code compliant because it did not state the names, addresses,
and telephone numbers of all persons who have knowledge of those facts.
Plaintiff only stated the name. However, the Court is not persuaded by
Defendant’s argument that Plaintiff’s response is not code compliant because of
the fact that Defendant believes it is not possible for Gashtili to be the only
one with knowledge. Defendant’s argument that Plaintiff is essentially not
telling the truth is not a proper basis for a motion to compel further.
As to 17.1(d), the Court
finds Defendant’s arguments persuasive that whether Plaintiff possesses
documents is different than whether the documents exist. Therefore, this response
is evasive. Plaintiff’s argument that this request is cumulative of other discovery
not at issue in this motion is unavailing.
FROG 17.1 with respect to
RFA 16
RFA 16
Admit that the software
provided by YOU to ASAI under the 2009 AGREEMENT was not PCI COMPLIANT.
Response RFA 16
Deny
FROG 17.1
Is
your response to each request for admission served with these interrogatories
an unqualified admission? 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;
(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.
THIRD
SUPPLEMENTAL RESPONSE TO FROG 17.1 – RFA 16
(a)
Request No. 16
(b) IDS is unaware
whether the minor software bug in the CAS Software rendered it PCI
noncompliant.
(c) Nasrollah Gashtili
(d) ASAI possesses the
documents related to any issues with the CAS Software. Other than,
Documents bates labeled
IDS 62415 – IDS 62429, IDS does not possess any documents which
relate to CAS Software
being PCI non-compliant. Documents bates-labeled IDS 62415 – IDS
62429 produced herewith
include references to PCI matters between the parties.
TENTATIVE RULING FROG
17.1, Set Two, With Respect to RFA 16
With
respect to 17.1(b), Defendant notes how the response is not complete,
straightforward, and is ambiguous. The Court finds Defendant’s argument
convincing because Plaintiff denied the RFA outright, yet Plaintiff then stated
it was unaware of certain facts. The Court finds Plaintiff’s response evasive
and incomplete. Further, Plaintiff’s arguments in Opposition are unavailing.
As to 17.1(c) Plaintiff’s
response is not code compliant because it did not state the names, addresses,
and telephone numbers of all persons who have knowledge of those facts.
Plaintiff only stated the name. Defendant’s argument that Plaintiff’s response
is not code compliant because Defendant believes it is not possible for
Gashtili to be the only one with knowledge, Defendant’s argument that Plaintiff
is essentially not telling the truth is not a proper basis to move to compel
further.
As to 17.1(d), Defendant
argues that the response is unclear. Plaintiff identified a document, but then
Plaintiff did not state the name, address, and telephone number of the person
who has the document. Further, it seems somewhat contradictory to identify a
document then also state Plaintiff does not possess any documents.
Additionally, as noted before, the request doesn’t pertain to possession, it
pertains to existence. Therefore, Plaintiff’s response is evasive and not code
compliant. Plaintiff’s argument that the request is cumulative of other
discovery that is not the subject of this motion is unavailing.
FROG 17.1 with respect to
RFA 18
RFA 18
Admit that the software
provided by YOU to ASAI under the 2014 AGREEMENT was not PCI COMPLIANT.
Response RFA 18
Deny
FROG 17.1
Is
your response to each request for admission served with these interrogatories
an unqualified admission? 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;
(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.
THIRD SUPPLEMENTAL
RESPONSE TO FROG 17.1 – RFA 18
(a) Request No. 18
(b) IDS is unaware
whether the bug in the CAS Software rendered it PCI non-complaint.
(c) Nasrollah Gashtili
(d) ASAI possesses the
documents related to any issues with the CAS Software. Other than,
Documents bates labeled
IDS 62415 – IDS 62429, IDS does not possess any documents
which
relate to CAS Software
being PCI non-compliant. Documents bates labeled IDS 62415 – IDS
62429 produced herewith
include references to PCI matters between the parties.
TENTATIVE RULING FROG
17.1, Set Two, With Respect to RFA 18
The
Court adopts the same reasoning and ruling that it stated in FROG 17.1 with
respect to RFA 16.
Defendant’s motion to
compel further response to FROG 17.1(b), (c) and (d), set two, with respect to
RFA 18 is GRANTED. Plaintiff is to provide verified, code compliant further
responses within 20 days of the ruling on this motion.
FROG
17.1 with respect to RFA 31
RFA
31
Admit
that YOU did not perform all of YOUR obligations under the 2009 AGREEMENT.
Response
RFA 31
Deny
FROG
17.1
Is your response to each request for admission served with these
interrogatories an unqualified admission? 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;
(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.
THIRD SUPPLEMENTAL
RESPONSE FROG 17.1, Set Two, with Respect to RFA 31
(a)
Request No. 31
(b) IDS performed its
obligations under the 2009 Agreement.
(c) Nasrollah Gashtili
(d) ASAI possesses the
documents related to any issues with the CAS Software. IDS does not
possess any documents
which related directly to whether IDS performed its obligations under
the 2009 Agreement. IDS
does not possess any documents relative to ASAI’s claims that the
CAS Software was not PCI
Compliant or was non-compliant with the CARD
ASSOCIATION’S RULES. Documents
bates labeled IDS 62415 – IDS 62429 produced
herewith include
references to PCI matters between the parties.
TENTATIVE RULING FROG
17.1, Set Two, with respect to RFA 31
As
to 17.1(b), the Court finds Plaintiff’s response evasive. Plaintiff was not
straightforward and complete with its response, as indicated by its Opposition
wherein Plaintiff provided its supplemental response to SROG 18 because
Plaintiff alleges that this FROG seeks the same information. However, if
Plaintiff is stating that its response to SROG 18 is also responsive to this
FROG, then Plaintiff needs to respond as such if it is alleging that that is a
factual basis for the response. Here, Plaintiff’s response is conclusory and
does not state any facts that it bases its response on.
As to 17.1(c), the Court
adopts the ruling/analysis it stated with respect to RFA 16.
As to 17.1(d), Defendant’s
argument is convincing that possession and existence are two different things.
Further, In Opposition, Plaintiff states it will serve a supplemental response.
FROG 17.1 with respect to
RFA 32
RFA 32
Admit
that YOU did not perform all of YOUR obligations under the 2014 AGREEMENT.
Response RFA 32
Deny
FROG 17.1
Is your response to each request for admission served with these
interrogatories an unqualified admission? 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;
(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.
Third Supplemental
Response to FROG 17.1 with respect to RFA 32
(a)
Request no. 32
(b) IDS performed all its
obligations under the 2014 Agreement.
(c) Nasrollah Gashtili
(d) ASAI possesses the
documents related to any issues with the CAS Software. IDS’
obligations under the
2014 Agreement were limited in that the CAS Software was already being
used for 5 years
previously and ASAI rarely used IDS to perform any maintenance or software
updates to the CAS
Software under the 2014 Agreement. IDS does not possess any documents
which relate to whether
IDS performed its obligations under the 2014 Agreement.
TENTATIVE RULING FROG
17.1, Set Two, with Respect to RFA 32
The Court adopts the same
reasoning and ruling that it stated in FROG 17.1 with respect to RFA 31.
Defendant’s motion to
compel further responses to FROG 17.1(b), (c) and (d) with respect to RFA 32 is
GRANTED. Plaintiff is to provide verified, code compliant, further responses
within 20 days of the ruling on this motion.
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).)
Here, Defendant’s
counsel requests sanctions in the amount of $10,800.00. Defendant arrives at
this request based on an hourly rate of $400 and 16 hours preparing the motion
and accompanying papers, 3 hours reviewing and analyzing the Opposition,
another 5 hours preparing any reply, and 3 hours preparing for and attending
any hearing on the motion. Defendant therefore arrives at a total of 27 hours.
Opposition argues
that the Court should deny Defendant’s request for sanctions. Opposition argues
if the Court award sanctions, a request of 27 hours is unreasonable. Further,
Opposition argues it should be awarded sanctions because this motion was
unnecessary because the information had already been provided to Defendant.
Here, the Court
GRANTS reasonable discovery sanctions in favor of Defendant and against
Plaintiff in the amount of $6,800.00 [17 total hours x $400-], to be paid
within 30 days. Defendant’s motion was not unnecessary, as Plaintiff did not
provide code compliant responses. Further, Plaintiff did not prepare a separate
statement so all the information in Opposition had to be fished for and was not
in an appropriate order as it would be on the separate statement.
Request for judicial notice-
Defendant’s Request is denied in the Court’s discretion as untimely and
superfluous.