Judge: Elaine Lu, Case: 19STCV15991, Date: 2023-04-18 Tentative Ruling

Case Number: 19STCV15991    Hearing Date: April 18, 2023    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Background

On May 8, 2019, Plaintiff Meridian Pacific Holdings, LLC (“MPH”) filed the instant action arising out of approximately $1.6 million in advances made pursuant to three business financing agreements.  On April 1, 2021, Plaintiffs MPH and Meridian Financial Group, LLC (“MPG”) (jointly “Plaintiffs”) filed the operative Third Amended Complaint (“TAC”) against defendants Ameritek Ventures, Inc. (“Ameritek”); Lion Den, LLC (“Lion”); PPB Engineering & Systems Design, Inc. (“PPB”); Michael Stokes (“MStokes”); Constantina Frial (“Frial”); Kenneth Mayeaux (“KM”); Jamie Mayeaux (“JM”); and Clinton Stokes (“CStokes”). 

The TAC asserts eleven causes of action for (1) Breach of Contract against PPB, CStokes, MStokes, JM, and KM; (2) Breach of Contract against Ameritek, CStokes, MStokes, KM, and JM; (3) Breach of Contract against Lion, Frial, and MStokes; (4) Money Had and Received against all defendants; (5) Unjust Enrichment against all defendants; (6) Promissory Fraud against PPB, CStokes, MStokes, JM, and KM; (7) Promissory Fraud against Ameritek, CStokes, MStokes, KM, and JM; (8) Promissory Fraud against Lion, Frial, and MStokes, (9) Fraud against PPB, CStokes, MStokes, JM, and KM; (10) Fraud against Ameritek, CStokes, MStokes, KM, and JM; and (11) Fraud against Lion, Frial, and MStokes.

On March 10, 2021, MPH and Arjan Zeiger (“Zeiger”) filed the operative third amended cross-complaint against CStokes for (1) Breach of Agreement, (2) Money had and Received, and (3) Fraud. 

On April 9, 2021, Defendants and Cross-Complainants CStokes, KM, and JM filed a cross-complaint against Ameritek and Shaun Passley (“Passley”).  The cross-complaint asserts six causes of action for (1) Indemnity, (2) Breach of Contract, (3) Breach of Contract, (4) Breach of Contract, (5) Breach of Contract, and Tortious Interference with Contract.

On January 28, 2022, CStokes filed the operative third amended cross-complaint against MPH, Zeiger, Garry Weyand, Steven Davis, and Colonial Stock Transfer Company, Inc. for (1) Fraud, (2) Breach of Contract, (3) Money had and Received, (4) Quasi-Contract, and (5) Implied Contract. 

On October 27, 2022, Defendants/Cross-Complainants CStokes, KM, and JM (collectively “Cross-Complainants”) filed the instant motion to compel Cross-Defendant/Cross-Complainant Zeiger’s further response to Special Interrogatories, Set One (“SROGs”).  On April 5, 2023, Zieger filed an opposition.  On April 12, 2023, Cross-Complainants filed a reply.

Legal Standard

Code of Civil Procedure section 2030.300 provides that “[o]n 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; [or] (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate; [or] (3) An objection to an interrogatory is without merit or too general.”  (CCP § 2030.300(a).)

Notice of the motion must be given within 45 days of service of the verified response, or upon a later date agreed to in writing.  Otherwise, the propounding party waives any right to compel a further response.  (CCP § 2031.310(c).)  The motion must also be accompanied by a meet and confer declaration.  (CCP § 2031.310(b)(2).)

The burden is on the responding party to justify any objection or failure fully to answer the interrogatories.  (Fairmont Ins. Co. v. Superior Court (Stendell) (2000) 22 Cal. 4th 245, 255.)

Meet and Confer

Pursuant to Code of Civil Procedure section 2030.300(b)(1) a motion to compel further responses to interrogatories “shall be accompanied by a meet and confer declaration under Section 2016.040.”  (CCP § 2030.300(b)(1).)  “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.”  (CCP § 2016.040.)

On August 8, 2022, Cross-Complainants electronically served Zieger with the SROGs at issue.  (Meehan Decl. ¶ 2, Exh. 1; Miller Decl. ¶ 2.)  On September 12, 2022, Zieger served his response containing identical objections to each response.  (Meehan Decl. ¶ 3, Exh. 2; Miller Decl. ¶ 3.).)  On September 16, 2022, Cross-Complainants’ Counsel sent a meet and confer letter requesting that Zieger provide further responses to the SROGs at issue.  (Meehan Decl. ¶ 4, Exh. 3; Miller Decl. ¶ 4.)  On September 26, 2022, Zieger’s Counsel responded by email stating that he was speaking to the client and would respond shortly.  (Meehan Decl. ¶ 5.)  On September 27, 2022, Zieger’s Counsel emailed Cross-Complainants’ Counsel stating that Zieger would provide supplemental responses by the end of the week.  (Meehan Decl. ¶ 6, Exh. 4; Miller Decl. ¶ 5.)  However, Zieger did not serve any supplemental responses by the end of the week.  (Meehan Decl. ¶ 7.)

On October 6, 2022, Cross-Complainants’ Counsel again requested supplemental responses and noted that Cross-Complainants would otherwise have to file the instant motion to compel further responses.  (Meehan Decl. ¶ 8, Exh. 4.)  On October 7, 2022, Zieger’s Counsel represented that they had the supplemental responses and were waiting for their Client to review the supplemental responses.  (Meehan Decl. ¶ 9, Exh. 4; Miller Decl. ¶ 5.)  On October 10, 2022, Cross-Complainants’ Counsel contacted Zieger’s Counsel as to whether Zieger was going to provide further responses.  (Meehan Decl. ¶ 10.)  Zieger’s Counsel did not respond.  (Meehan Decl. ¶ 11.)  On October 11 and October 14, 2022, Cross-Complainants’ Counsel attempted to call and discuss the SROGs at issue, but Zieger’s Counsel failed to respond.  (Meehan Decl. ¶¶ 12-13.)

Accordingly, on October 27, 2022, Cross-Defendants filed the instant motion.  On December 14, 2022, Zieger electronically served a supplemental response.  (Miller Decl. ¶ 7, Exh. 1; Supp. Meehan Decl. ¶ 4.)  On December 19, 2022, the parties met for an informal discovery conference which involved – in part – the SROGs at issue.  (Minute Order 12/19/22.)  As supplemental responses had been served, the Court noted that the instant motion was moot expect as to sanctions and that a new motion to compel further responses would need to be filed to compel any further response beyond the supplemental response.  (Minute Order 12/19/22.)  Following the informal discovery conference, on January 10, 2023, Zieger served a further supplemental response to the SROGs at issue.  (Miller Decl. ¶ 10, Exh. 3; Supp. Meehan Decl. ¶ 6.) 

Discussion

            Pursuant to Code of Civil Procedure § 2030.300 “[o]n receipt of a response a response to interrogatories, the propounding party may move for an order compelling a further response …”  (Id., [italics added].)  Zieger has served further responses since the filing of the instant motion.  Cross-Complainants have thus received the further response beyond the original response that they move to compel.  As the parties note in the opposition and reply, the instant motion is moot except as to sanctions.

Sanctions

Cross-Complainants seeks sanctions of $4,400.00 to compensate Cross-Defendants for attorneys’ fees in bringing the instant motion.  Cross-Complainants’ Counsel states that he bills at an hourly rate of $550.00 and claims to have spent 4.0 hours in attempting to meet and confer and drafting the instant motion.  Cross-Complainants’ Counsel further anticipates spending 2.0 hours reviewing any opposition and drafting a reply, and spending 2.0 hours preparing for and attending the hearing for the instant motion.

“The court shall impose a monetary sanction … against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to [interrogatories or request for production], 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 § 2031.300(c), [italics added].)  Accordingly, sanctions are mandatory unless the circumstances make the imposition of sanctions unjust.  Further, it is an abuse of discovery to make an evasive response or make unsubstantiated objections to discovery.  (CCP § 2023.010(e)-(f).)

Here, sanctions are warranted.  Under Code of Civil Procedure section 2030.260 subdivision (a), a party must respond to interrogatories within 30 days of service.  However, these time limits are extended if served by mail, overnight delivery, fax, or electronically.  (CCP §§ 1010.6(a)(4), 1013.)  Failure to timely respond waives all objections including privilege or on the protection of work product.  (See CCP § 2030.290(a).)  Zieger’s original response was untimely, waiving all objections. 

Cross-Complainants served the SROGs at issue on August 8, 2022 electronically.  Zieger had until September 9, 2022 to timely respond.  Zieger’s original responses served on September 12, 2022 were untimely, and thus, all objections were waived.  Accordingly, the inclusion of any objection would be improper.  (CCP § 2023.010(e)-(f).)  Moreover, even if Zieger had timely served his responses and had therefore not waived all objections, the original responses were only boilerplate objections that appear largely inapplicable.  Zieger’s response thus warrants sanctions for this additional reason.  Finally, despite these issues and a clear understanding that the original responses were improper, Zieger failed to provide a further response until more than a month after Cross-Complainants filed the instant motion.

However, as Zieger serve supplemental responses well before the hearing for the instant motion, and the hours sought appears slightly excessive.  The court finds that the amount requested – $4,400.00 – is slightly unreasonable in view of the totality of the circumstances.  The Court finds that $2,200.00 reasonably compensates Cross-Complainants for attorney’s fees incurred in bringing these motions.

Ari Zeigler and his attorney of record, Russell Miller, are jointly and severally liable and ordered to pay monetary sanctions in the amount of $2,200.00 to Clinton Stokes, Jamie Mayeaux, and Kenneth Mayeaux by and through counsel, within thirty (30) days of notice of this order.

CONCLUSIONS AND ORDER

            Based on the foregoing, Defendants/Cross-Complainants Clinton Stokes, Jamie Mayeaux, and Kenneth Mayeaux’s motion to compel Ari Ziegler’s further responses to Special Interrogatories, Set One is MOOT.

            Clinton Stokes, Jamie Mayeaux, and Kenneth Mayeaux’s request for sanctions is GRANTED AS MODIFIED.

Ari Zeigler and his attorney of record, Russell Miller, are jointly and severally liable and ordered to pay monetary sanctions in the amount of $2,200.00 to Clinton Stokes, Jamie Mayeaux, and Kenneth Mayeaux by and through counsel, within thirty (30) days of notice of this order.

            Moving Parties are to give notice of this order to all parties and file proof of service of such.

DATED: April 18, 2023                                                         ___________________________

                                                                                          Elaine Lu

                                                                                          Judge of the Superior Court