Judge Deborah C. Servino, Case 30-2012-00582125 2022-10-07 Tentative Ruling

Judge: Deborah C. Servino, Case: 30-2012-00582125, Date: 2022-10-07 Tentative Ruling

MOTION AGAINST BRAND GENETIX, INC.

Plaintiff/Cross-Defendants Pui Chan, TTGlobal and Princo Global, Inc.’s (“Moving Parties”) motion for terminating sanctions, in the alternative, issue sanctions and monetary sanctions against Defendant Brand Genetix, Inc. (“Brand Genetix”), is denied.

Brand Genetix was previously ordered to serve further responses to discovery. (5/03/2021 Minute Order [ROA 1315]; 4/11/2022 Minute Order [ROA 1468].) Brand Genetix served further responses on May 3, 2022, but did not produce any documents. In response to requests no. 44, 48 and 49, Brand Genetix said it would “comply with this request” and that “all responsive documents that are in Plaintiff’s [sic] custody or control will be produced.” (Lu Decl., at ¶ 21, Exh. 8 [ROA 1503].)

The court has expressed in prior rulings that the trial court should tailor the sanction for such conduct to “fit the crime.” (Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1293.) While the court may have been inclined to agree that an evidentiary sanction would be proper here, (i.e., to prohibit Brand Genetix from introducing any documents that would have been responsive to requests nos. 44, 48 and 49), the requested terminating and issue sanctions do not “fit the crime.” And, because Moving Parties never properly noticed evidentiary sanctions, (aside from a single mention of evidence sanctions in the caption of the motion), the court cannot grant relief that was not properly sought by the motion. (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125.)

As for the only other request at issue, no. 47, Brand Genetix stated it would not comply with these requested because “after a diligent search and reasonable inquiry,” “no such documents have ever existed.” Moving Parties argue that this response is “inadequate, evasive and is not made in good faith,” because, supposedly, “Brand Genetix is able to produce records concerning its sales . . .” This court cannot order Brand Genetix to produce documents that it claims do not exist. If Brand Genetix has concealed records, the court has the power to exclude documents or other physical evidence at trial that has been concealed and that would cause unfair surprise at trial. (Pate v. Channel Lumber Co. (1997) 51 Cal.App.4th 1447, 1455.) However, trial is not until October 31, 2022.

The court declines to award additional monetary sanctions.

MOTION AGAINST TAGTRENDS

Moving Parties’ motion for terminating sanctions, in the alternative, issue sanctions, and monetary sanctions against Defendant/Cross-Complainant, TagTrends, Inc. (“TagTrends”), is denied.

TagTrends was previously ordered to serve further responses to discovery. (5/03/2021 Minute Order [ROA 1315]; 4/11/2022 Minute Order [ROA 1468].) TagTrends served further responses on May 3, 2022. (Lu Decl. at ¶ 21, Exh. 8 [ROA 1505].) Moving Parties claim that the further responses to special interrogatories, nos. 60-62, remain deficient. These interrogatories asked TagTrends to “identify all customers Plaintiff has stolen from YOU,” and to identify their addresses and phone numbers. TagTrends responded that “this happened TWO DECADES AGO and cross-complainant does not have current information,” and that the “stolen customers” have already been “listed in [the] SAXC as well as exhaustive discovery provided to plaintiff before first trial in 2017.”

The SAXC does in fact list a number of customers, that were “stolen by Chan.” (Second Amended Cross-Complaint [“SAXC”], at ¶ 45 [ROA 189].) By its response, TagTrends has basically confirmed that the “stolen customers” its claiming is limited to those that have been identified. If TagTrends tries to introduce evidence of other “stolen customers,” i.e., ones that were not alleged in the SAXC, then the court would be inclined to grant an evidentiary sanction to preclude any evidence of other, previously unidentified “stolen customers.” However, Moving Parties never requested evidentiary sanctions. Instead, TagTrends seeks terminating sanctions, or, in the alternative, issue sanctions establishing that Moving Parties “did not steal or convert any of Mr. Haroutoonian, tagTrends, Inc., or tagTrends Asia's customers or accounts” and that all the allegedly stolen customers “have all returned to do business with Brand Genetix, so Mr. Haroutoonian and tagTrends have not suffered any damages.”

As explained, above, the court will not issue severe sanctions that are not tailored to address the wrongful conduct or crime. Here, TagTrends has refused to divulge the names of any “stolen customers.” At most, it responded to the interrogatories by referring to the SAXC, rather than re-typing their names in the discovery responses. While this might warrant a further response, it does not warrant the requested issue sanctions, much less terminating sanctions.

The court declines to award additional monetary sanctions.

Moving Parties shall give notice of the rulings.