Judge Holly J. Fujie, Case Number: 19STCV34550, Date: 2023-07-11 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

On September 8, 2020, Plaintiffs Hans H. Kim and Aqua Wetclean, LLC (“Plaintiffs”) filed the operative Second Amended Complaint (“SAC”) against Defendants Cuil Investments LLC; Jane’s Management Systems, LLC; Magic Properties, Inc.; Xiang Hao Cui; John Ko; David Yoo; and DOES 1 through 10 (“Defendants”), inclusive for (1) Breach of Contract; (2) Breach of the Covenant of Repair; (3) Contractual Abatement of Rent; (4) Fraud and Deceit; (5) Fraudulent Concealment; (6) Conspiracy to Defraud; (7) Negligent Misrepresentation; (8) Breach of Fiduciary Duty; (9) Intentional Interference with Prospective Economic Advantage; and (10) Unfair Business Practices.

On November 17, 2023, Defendant Cuil Investments, LLC (“Cuil LLC”) filed this instant Motion to Compel Further Responses to Requests for Admission, Form Interrogatories, Specially Prepared Interrogatories, and Requests for Production of Documents. On March 6, 2024, Plaintiffs filed their opposition. On March 12, 2024, Cuil LLC filed its reply.

Motions to compel further responses to interrogatories, requests for admissions, and requests for production of documents must also be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2030.300, subd. (b); Code Civ. Proc., § 2033.290, subd. (b); Code Civ. Proc., § 2031.310, subd. (b).)¿¿¿¿ The Court finds that this requirement has been met. Therefore, the Court will review the moving, opposition, and reply papers on the merits below.

Pursuant to Code of Civil Procedure Sections 2030.300, subdivision (a), 2033.290, and 2031.310 parties may move for a further response to interrogatories, requests for admissions, or requests for production of documents where an answer to the requests are evasive or incomplete or where an objection is without merit or too general.¿¿

Notice of the motions must be given within 45 days of service of the verified response, otherwise, the propounding party waives any right to compel a further response. (Code Civ. Proc., § 2030.300, subd. (c); Code Civ. Proc., § 2033.290, subd. (c); Code Civ. Proc., § 2031.310, subd. (c).)

Finally, Cal. Rules of Court, Rule 3.1345, subdivision (a)(3) requires that all motions or responses involving further discovery contain a separate statement with the text of each request, the response, and a statement of factual and legal reasons for compelling further responses. (Cal. Rules of Court, Rule 3.1345, subd. (a)(3)).¿

As an initial matter, the Court notes that Cuil LLC improperly filed multiple motions to compel further responses into a single motion, which is contrary to court policy. Nonetheless, the motion is timely made. Cuil LLC filed this motion on November 17, 2023 and Plaintiff Aqua Wetclean, LLC’s initial responses to the discovery requests were served on October 3, 2023, after having received an extension of time to respond. (Sergenian Decl., ¶¶ 7-12, Ex. E-I.) Thus, the motion was filed within 45 days of Plaintiff Wetclean, LLC’s initial response and the Court is not jurisdictionally prohibited from considering the instant motion. (Code Civ. Proc., § 2030.300, subd. (c); Code Civ. Proc., § 2033.290, subd. (c); Code Civ. Proc., § 2031.310, subd. (c).)

Cuil LLC moves for an order compelling Aqua Wetclean to serve further responses to Cuil LLC’s set of Requests for Admission, Form Interrogatories, Specially Prepared Interrogatories, and Requests for Production of Documents served on Aqua Wetclean on August 23, 2023. Cuil LLC argues that Aqua Wetclean has refused to provide responses to numerous discovery requests that are directly relevant to damages issues; contract formation and standing; communications regarding alleged leak and request for abatement; Aqua Wetclean’s contentions in the SAC; Natures Best Garment Care, Inc.; and documents relating to this action. Cuil LLC further argues Aqua Wetclean provided evasive, incomplete, and missing responses to RFA No. 38, Form Interrogatory No. 17.1 (RFA 37), RFA Nos. 41-42, Form Interrogatory No. 17.1 (RFA 47). Moreover, Cuil LLC contends Aqua Wetclean’s objections are without merit because the terms used were self-explanatory and/or clear and unambiguous. Cuil LLC also contends Aqua Wetclean’s privacy objections to Special Interrogatories Nos. 36-37, 43, 47, and 50-53 should not be sustained because corporations do not have a constitutional right to privacy and the discovery’s relevance to the subject matter of the pending case and whether it is reasonably calculated to lead to discovery of admissible evidence is balanced against the corporate right of privacy. Similarly, Cuil LLC contends third party privacy interests are also outweighed by the relevance of the discovery requests. Likewise, Cuil LLC argues Aqua Wetclean’s confidential, propriety, and trade secret objections to Special Interrogatories Nos. 38-41 and RFP Nos. 72, 76-78, and 80-85 are boilerplate objections without merit but to the extent there are valid concerns, they can be ameliorated by a standard protective order, which it has informed Aqua Wetclean it is willing to enter. Additionally, Cuil LLC asserts Aqua Wetclean’s objections to Special Interrogatories Nos. 54, 56-60 and RFP Nos. 69, 73-74, 76, 80, 82-83, and 88 as duplicative/cumulative should be overruled because Aqua Wetclean made no attempt to explain how they are duplicative or cumulative. Furthermore, Cuil LLC argues Aqua Wetclean’s objections to RFP Nos. 66-78, 80-85, and 88 on the grounds that they violate Code of Civil procedure Section 2033.060, subdivision (d) should be overruled because that provision applies to RFAs not RFPs. Also, Cuil LLC asserts Aqua Wetclean’s equally available objections are improper to a document a request. Cuil LLC further asserts Aqua Wetclean’s objections to RFP Nos. 67, 69-85, and 88 on the grounds that the requests fail to comply with Code of Civil Procedure Section 2031.030, subdivision (c)(1) should be overruled because it has complied with this provision. In addition, Cuil LLC argues Aqua Wetclean has provided no information to supports its claim that Special Interrogatories Nos. 38-41 and 43, and RFP Nos. 66-67, 69-85, 87-88 are burdensome or oppressive. Finally, Cuil LLC argues Aqua Wetclean’s objections to RFP Nos. 66, 70-72, and 85 on the basis of attorney work product doctrine and RFP Nos. 70, 72, 85, and 87 on the basis of attorney-client privilege can be addressed by Aqua Wetclean providing a privilege log.

In opposition, Plaintiffs argue that they have supplemented their responses as previously agreed and otherwise, in an effort to move this process forward, thus the motion is moot and should be denied. Nevertheless, Plaintiffs go on to argue that its responses to RFA Nos. 34-35, 38-39, 41, 44-46 were sufficient because the RFAs are entirely irrelevant or cleverly worded seeking to craft admissions of disputed facts. Furthermore, Plaintiffs contend no further response is required to Form Interrogatory 17.1 as it corresponds to RFA Nos. 34-35, 37-39, 41-42, 44-47 is required. Moreover, Plaintiffs assert Special Interrogatories Nos. 36-37, 39, 44-47, and 52-59 have been substantially complied with and their objections are substantially justified because Plaintiffs do not have to prove their damages to the penny but in the event they are not supplemented by the date of this opposition, supplemented responses will be provided before the hearing on the motion. Additionally, Plaintiffs contend Cuil LLC lacks good cause to compel further responses to the RFPs. Lastly, Plaintiffs argue Cuil LLC filed this motion instead of awaiting their supplemental responses.

In reply, Cuil LLC argues Aqua Wetclean’s assertion that this motion could have been avoided is baseless because Aqua Wetclean refused to provide supplemental responses to the majority of discovery requests at issue in this motion during the meet and confer process. Cuil LLC further argues Aqua Wetclean served it supplemental responses on March 6, 2024 and March 11, 2024, which is four months after Aqua Wetclean originally stated it might provide supplemental responses to some of the requests at issue. Cuil LLC also contends Aqua Wetclean’s only substantive argument concerning RFA No. 35 is without merit because Cuil LLC is entitled to admission or denial under oath and there is no exception based on whether the other party knowns the answer to the request for admission. Additionally, Cuil LLC argues Aqua Wetclean makes no argument with respect to any other RFA that is raised in the motion or with respect to any other specific discovery requests at issue, so this is a concession that the motion is meritorious. Last, Cuil LLC asserts Aqua Wetclean failed to provide supplemental responses to Form Interrogatory No. 17.1 (RFAs 37, 42, and 47) and Special Interrogatories 36-37, 39, 44-47, 52-59.

The Court finds that to the extent Aqua Wetclean has supplemented responses to certain discovery responses, this motion is moot as to those responses only. To the extent that Aqua Wetclean has not supplemented responses to Form Interrogatory No. 17.1 (RFAs 37, 42, and 47) and Special Interrogatories 36-37, 39, 44-47, 52-59, supplemental responses to these discovery requests are warranted because Cuil LLC has shown they are relevant, reasonably calculated to lead to the discovery of admissible evidence, and can be protected by Aqua Wetclean providing a privilege log or submitting a proposed protective order as discussed previously by the parties. Furthermore, Aqua Wetclean did not make any arguments regarding other RFAs and other discovery requests, suggesting Aqua Wetclean concedes to their merits. Finally, Aqua Wetclean in its opposition agreed to provide supplemental responses to the remaining discovery requests.

Therefore, the Motion to Compel Further Responses to Requests for Admission, Form Interrogatories, Specially Prepared Interrogatories, and Requests for Production of Documents is GRANTED, with further responses due within thirty (30) days of the date of this Order. For any privilege and privacy matters, Plaintiff Aqua Wetclean must provide a privilege log and the parties are ordered to stipulate to and file a protective order in the format approved by the Court for Confidential Documents within ten (10) court days of the date of this order.

Where the court grants a motion to compel further responses, sanctions shall be imposed against the party who unsuccessfully makes or opposes a motion to compel, unless the party acted with substantial justification or the sanction would otherwise be unjust. (Code Civ. Proc., § 2030.300, subd. (d); Code Civ. Proc., § 2031.300, subd. (c); Code Civ. Proc., § 2033.290, subd. (d).)

Cuil LLC requests monetary sanctions in the amount of $9,045.00 for (1) 20.1 hours meet and conferring with opposing counsel and preparing the moving papers; and (2) anticipate 3.0 hours preparing a reply and preparing for and participating in a hearing on the motion at an hourly rate of $450.00 per hour. (Sergenian Decl., ¶ 24.) Although a portion of the motion was rendered moot because Aqua Wetclean supplemented some responses to the discovery at issue, the supplemental responses were provided months after the filing of this instant motion. Furthermore, Aqua Wetclean did not provide evidence that it acted with substantial justification is refusing to supply the supplemental responses before the filing of this motion. Additionally, no other circumstances have been raised to suggest imposing the requested sanctions would be unjust.

Thus, the request for sanctions is GRANTED the Court will impose sanctions against Plaintiff Aqua Wetclean and its counsel, jointly and severally, in favor of Defendant Cuil Investments, LLC. for a total of 6 hours expended on preparing this motion and supporting documents, reviewing the opposition and supporting documents, preparing the reply brief, and attending the hearing this motion at an hourly rate of $450.00 per hour for a total of $2,700.00, payable within twenty (20) days of the date of this Order.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court