Judge: Gail Killefer, Case: BC645873, Date: 2023-06-29 Tentative Ruling

Case Number: BC645873    Hearing Date: June 29, 2023    Dept: 37

HEARING DATE:                 June 29, 2023

CASE NUMBER:                   BC645873

CASE NAME:                        Lief Organics, LLC. v. Hans-Drake International, et al.   

MOVING PARTY:                Plaintiff and Judgment Creditor, Lief Organics, LLC.

OPPOSING PARTY:             Defendant and Judgment Debtor, Musclewerks, Inc.   

TRIAL DATE:                        None  

PROOF OF SERVICE:           OK                 

                                                                                                                                                           

MOTION:                               Plaintiff’s Motion to Compel Responses to Requests for Production, Set One Pursuant to Order to Appear for Examination

OPPOSITION:                        June 15, 2023  

REPLY:                                  June 22, 2023  

                                                                                                                                                           

TENTATIVE:                         Plaintiff’s motion is granted. Plaintiff’s request for sanctions is granted in the amount of $1,900. Plaintiff is to give notice.

 

                                                                                                                                                           

Background

This is a fraud action arising from alleged products supplied by Lief Organics, LLC (“Plaintiff”) which were received by Defendants and Judgment Debtors, specifically Defendant and Judgment Debtor Musclewerks, Inc. (“Judgment Debtor”) without payment, and were sold. On October 18, 2019, the court entered a default judgment in favor of Plaintiff against all Defendants, which include David Garcia (“Garcia”), Hans-Drake International Corporation (“HansDrake”) and Musclewerks, Inc. on its claims for breach of contract and fraud (the “Judgment”). To date, Judgment Debtors Musclewerks and Hans-Drake have not paid a single dollar of the Judgment.

On January 11 and 13, 2023, Plaintiff served an Order to Appear for Examination and Subpoena to Musclewerks, and Garcia, its owner/officer. The Subpoena listed requests for 81 categories of documents. On March 8, 2023, Garcia appeared for examination on behalf of Musclewerks. The Examination was then continued to July 20, 2023, to give Judgment Debtor an opportunity to fulfill discovery obligations.

Plaintiff now moves to compel Defendant/Judgment Debtor to provide responses to Requests for Production, Set One served as an attachment to the Subpoena. Judgment Debtor opposes the motion.

Procedural History

On January 11 and 13, 2023, Plaintiff served Judgment Debtor’s agent and owner/officer with the Subpoena, along with a Request for Production of Documents, Set One for 81 categories of requests. (Motion, 4; Fitzgerald Decl., Exh. B.)

On March 8, 2023, Garcia appeared on behalf of Judgment Debtor, but the examination was continued to July 20, 2023.

Discussion

Responses to requests for production are due “within 30 days after service” of the requests or interrogatories.¿ (CCP § 2031.260(a).) If a party served with requests for production fails to timely respond, the propounding party may move for an order compelling responses. ¿(CCP § 2031.300(b).) Further, a judgment creditor may serve requests for production on any judgment debtor pursuant to CCP § 708.030 “if the demand requests information to aid in enforcement of the money judgment.” The judgment debtor “shall respond and comply with the demand in the manner and within the time provided by Chapter 14 (commencing with Section 2031.010 ) of Title 4 of Part 4.” (CCP § 708.030.)

 

Plaintiff asserts that Defendant/Judgment Debtor must be ordered to provide responses because Plaintiff properly served with Defendant with the Order to Appear and Subpoena, which included the Requests for Production, Set One, and Judgment Debtor has failed provide responses by the deadline required by CCP § 708.030.(c). (Motion, 4-5.)

 

In opposition, Defendant asserts that “Garcia appeared for the [Examination]... Mr. Garcia also produced documents to Lief evidencing that he had previously destroyed all Hans-Drake and Musclewerks documents. Copies of the Invoice and Certificate of Destruction for fourteen boxes, on August 31, 2020,” were provided to Plaintiff. (Opp., 5-6; Garcia Decl., Exh. 2.)

 

Here, Judgment Debtor further argues that Plaintiff has waived its right to compel further responses as it failed to meet and confer as required by CCP § 2031.310. (Opp., 7-8.) However, Judgment Debtor asks this court to apply an entirely different and irrelevant standard here, as the relevant inquiry is not one of further production, but rather for Judgment Debtor’s compliance with the Subpoena and requests for production which accompanied this order for examination. Thus, the court finds this argument unavailing.

 

In reply, Plaintiff also correctly explains that Garcia and Judgment Debtor produced no documents during the March 8, 2023 hearing. (Reply, 2; Paul D. Fitzgerald Decl., Exh. A.) “[I]t is abundantly clear that David Garcia, on behalf of Musclewerks, failed to produce a single document pursuant to subpoena.” (Reply, 2.) As Plaintiffs correctly contend,

 

“[a] simple review on the internet shows the Musclewerks product called D-Fine 8 being sold on various websites such as amazon.com, musclewerks.com, and gotprotein.com. Despite Garcia’s admissions and the active sales of Musclewerks’ product, Musclewerks failed to respond to the Subpoena, or produce a single document in response to the Order to Appear for Examination.” (Motion, 4.)

 

CCP § 708.030 states, in relevant part:

(a) The judgment creditor may demand that any judgment debtor produce and permit the party making the demand, or someone acting on that party's behalf, to inspect and to copy a document that is in the possession, custody, or control of the party on whom the demand is made in the manner provided in Chapter 14 (commencing with Section 2031.010) of Title 4 of Part 4, if the demand requests information to aid in enforcement of the money judgment. The judgment debtor shall respond and comply with the demand in the manner and within the time provided by Chapter 14 (commencing with Section 2031.010) of Title 4 of Part 4.

(b) The judgment creditor may not serve interrogatories or inspection demands pursuant to this section or Section 708.020 within 120 days after the judgment debtor has responded to the interrogatories or demands previously served pursuant to this section or Section 708.020, or within 120 days after the judgment debtor has been examined pursuant to Article 2 (commencing with Section 708.110), and the judgment debtor is not required to respond to any discovery so served.

(c) Inspection demands served pursuant to this section may be enforced to the extent practicable, in the same manner as inspection demands in a civil action. (CCP § 708.030.)

Here, Plaintiff brought this request for documents, as part of its Subpoena and Examination request, to seek “information to aid in enforcement of the money judgement.” While Garcia has represented to this court that the documents regard “suspended corporations since 2016 and 2017,” Plaintiff has raised issues of ongoing commerce, revenue streams, and profits, all of which are information which may aid the Judgment Creditor in enforcing its money judgment. (Paul D. Fitzgerald Decl., Exh. A, 4-9.) Further, Plaintiffs have sufficiently shown that Judgment Debtor’s representations that documents regarding these requests have already been produced are inapposite to the representations Judgment Debtor’s agent made before this court in the prior hearing.

 

The court agrees with Plaintiff that CCP § 708.030 provides it sufficient rights to seek an examination of Judgment Debtor, which necessarily includes an examination of the documents requested. This information is further relevant to, and will aid in, the enforcement of Plaintiff’s judgment.

 

For these reasons, Plaintiff’s motion is granted.

 

Monetary Sanctions

The court may impose sanctions against any party for engaging in conduct constituting a “misuse of the discovery process.”  (CCP § 2023.030 (a).)  Misuse of the discovery process includes “failing to respond or submit to an authorized method of discovery.” (CCP § 2023.010(d).)

Additionally, the court shall impose sanctions against “any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to requests 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 § 2031.310(h).)

 

Plaintiff requests an award of sanctions of $1,900 in connection with this motion. Plaintiff’s counsel Diana L. Fitzgerald attests that this compromises of 3 hours preparing the motion and an anticipated 1 hour in attending the hearing, at $475 per hour. (Fitzgerald Decl. ¶5.) The court finds this amount reasonable and grants Plaintiff’s request.

 

Defendant requests an award of sanctions against Plaintiff of $2,500.00. The court does not award sanctions against Plaintiff, as it finds that Plaintiff acted with substantial justification such that awarding sanctions would be unjust.

 

Conclusion

 

Plaintiff’s motion is granted. Plaintiff’s request for sanctions is granted in the amount of $1,900. Plaintiff is to give notice.