Judge James L. Crandall, Case 20-1176426 2022-07-21 Tentative Ruling

Judge: James L. Crandall, Case: 20-1176426, Date: 2022-07-21 Tentative Ruling

1. Motion to Compel Answers to Form Interrogatories

2. Motion to Compel Answers to Form Interrogatories

3. Motion to Compel Answers to Form Interrogatories

4. Motion to Compel Answers to Form Interrogatories

5. Motion to Compel Production

6. Motion to Compel Production

7. Motion to Compel Production

8. Motion to Compel Production

MOTION NO. 1:

Plaintiff Jaime Askew’s motion to compel defendants Crest Recovery, LLC, Truvida Solutions, LLC, Nick Roshdieh and Vincent Bindi, to serve full and complete verified responses, without objections, to Plaintiff Jamie Askew’s Form Interrogatories, Set One is GRANTED.

New evidence submitted with Reply:

“The general rule of motion practice, which applies here, is that new evidence is not permitted with reply papers.” (Jay v. Mahaffey (2013) 218 Cal. App. 4th 1522, 1537.)

However, where the evidence is to fill in gaps raised by the opposition or goes to the admissibility of evidence submitted in opposition to the motion, the evidence may be properly considered. (Jay v. Mahaffey (2013) 218 Cal. App. 4th 1522, 1538 [“[t]o the extent defendants argue they had the right to file any reply declarations at all, they are not wrong. Such declarations, however, should not have addressed the substantive issues in the first instance, but only filled gaps in the evidence created by the limited partners’ opposition.”]

Here, Plaintiff has submitted with her Reply declarations of her prior counsel, Amy Howse, and a supplemental declaration of her current counsel, Garrett PryBylo, which attach additional exhibits. The evidence submitted with the Reply responds to Defendants’ argument in the Opposition to the Motion, therefore, the Court can consider this evidence in ruling on the Motion.

Code of Civil Procedure section 2030.290 states, in part, “If a party to whom interrogatories are directed fails to serve a timely response, the following rules apply: (a) The party to whom the interrogatories are directed waives any right to exercise the option to produce writings under Section 2030.230, as well as any objection to the interrogatories, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010) . . . [¶] (b) The party propounding the interrogatories may move for an order compelling response to the interrogatories.”

On December 17, 2021, Plaintiff propounded Form Interrogatories, Set One (“Form Rogs”) on Defendants. (Decl. Prybylo, ¶ 3, Exs. A-D.) Plaintiff states that Defendants were granted a two-week extension to respond to the Form Rogs. (Decl. Prybylo, ¶ 6, Exs. E.)

After Plaintiff filed this Motion, on July 11, 2022, Defendants provided responses to the Form Rogs. (Sofonio Decl., ¶ 33, Ex. A.) The responses provide substantive responses to some Form Interrogatories but in response to the majority of the Form Rogs Plaintiff asserted objections.

Plaintiff contends that the responses are untimely therefore Defendants waived all objections and must provide responses without objections.

Defendants contend that Plaintiff’s prior counsel provided an open-ended extension to respond to the discovery. Specifically, Defendants contends that after Plaintiff filed her First Amended Complaint, the Department of Justice filed criminal charges against the Defendants, Vincent Bindi and Nick Roshdieh, in a multi-count and multi-defendant federal felony Indictment pending before the Central District of California (“Federal Indictment”). (Sofonio Decl., ¶¶ 8, 9.)

Defendants are the owners of Crest Recovery, LLC and Truvida Solutions, LLC the other named defendants in this lawsuit, therefore, discovery that has been requested from the Plaintiff involves the Defendants and their companies. (Sofonio Decl., ¶ 10.)

The facts at issue here are the same facts, circumstances and events that are directly involved in Defendants’ Indictments. (Sofonio Decl., ¶ 10.)

Defendants contend that on December 17, 2021, Jaime Askew propounded written discovery on Defendants but after several discussions regarding the indictment and defendants’ fifth amendment rights Amy Howse granted an extension of time until February 2, 2022, to respond to the discovery. (Sofonio Decl., ¶¶ 13, 14.)

Defendants’ counsel further states that on January 24, 2022, Amy Howse emailed Defendant’s counsel and indicated that she may be able to get an additional extension of time regarding the discovery responses if Defendants were able to produce the following documents: The financial statements that were provided to the investor, copies of the independent contractor agreements, and the CollabMD documents. (Sofonio Decl., ¶ 16.)

Defendants state that on February 2, 2022, Defendant’s counsel provided the requested documents to Amy Howse and the parties entered into settlement negotiations based on the documents that were provided. (Sofonio Decl., ¶ 17.)

Defendant’s counsel further states that Plaintiff’s original counsel did not ever indicate after the February 2, 2022 document exchange that the responses to the written discovery were to be provided or that they were due. (Sofonio Decl., ¶ 20.)

Plaintiff’s dispute that former counsel Amy Howse provided Defendants an open-ended extension to respond to the discovery requests and have submitted a declaration of Howse in support. In her declaration, Howse acknowledges that she offered to talk to Plaintiff about the possibility of another extension if Defendants provided certain key documents. (Howse Decl., ¶ 3.) Howse states that although on February 2, 2022, Sofonia emailed her firm some documents, he did not provide the key documents that Howse had demanded previously. (Howse Decl., ¶ 4.)

Plaintiff did not receive (1) independent contractor agreements or (2) CollabMD Documents. (Howse Decl., ¶ 4.)

Further, the financial documents received on February 2, 2022, appeared to be documents created by Defendants for the purposes of this litigation and were not the original financials requested in discovery. (Howse Decl., ¶ 4.)

Howse states that this production did not come close to satisfying the demands in her January 24, 2022 email. (Howse Decl., ¶ 4.)

Consequently, the parties never engaged in further discussions regarding additional extensions and Sofonio did not request a further extension thereafter, and Plaintiff did not agree to a further extension. (Howse Decl., ¶ 4.) The discovery deadline remained February 2, 2022. (Howse Decl., ¶ 4.)

Accordingly, Plaintiff has sufficiently shown that Defendant’s deadline to respond to the discovery responses was February 2, 2022.

Since Plaintiff did not serve responses until July 11, 2022, the responses to the Form Rogs are untimely.

Based on the foregoing, Plaintiff’s Motion to compel response to Form Interrogatories is GRANTED.

Defendants are ordered to provide verified responses, without objection, to Plaintiff’s Form Interrogatories, Set One, within 30 days of the date of service of the notice of this order.

Defendants are also ordered to pay Plaintiff $860 in sanctions within 30 days of the date of service of the notice of this order.

Plaintiff to give notice.

MOTION NO. 2:

Code of Civil Procedure section 2031.300, subdivision (b), provides, “If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it, the following rules shall apply: (a) The party to whom the demand for inspection, copying, testing, or sampling is directed waives any objection to the demand, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010) . . . [¶] (b) The party making the demand may move for an order compelling response to the demand.”

On December 17, 2021, Plaintiff propounded Request for Production, Set One (“RFP”) on Defendants. (Decl. Prybylo, ¶ 3, Exs. A-D.) Plaintiff states that Defendants were granted a two-week extension to respond to the RFPs. (Decl. Prybylo, ¶ 6, Exs. E.)

After Plaintiff filed this Motion, on July 11, 2022, Defendants provided responses to the RFPs. (Sofonio Decl., ¶ 33, Ex. B.) In their responses Defendants assert objections to the RFPs. (Sofonio Decl., ¶ 33, Ex. B.) Plaintiff contends that the responses are untimely therefore Defendants waived all objections and must provide responses without objections.

Defendants make the same arguments as in their opposition to Plaintiff’s Motion to Compel responses to Form Interrogatories and contend that Plaintiff’s prior counsel provided an open-ended extension to respond to the discovery.

For the reasons, discussed in Plaintiff’s Motion to Compel Form Interrogatories, Defendant’s responses to the RFPs are untimely and the Motion to Compel response to the Request for Production, Set One is GRANTED.

Defendants are ordered to provide verified responses, without objection, to Plaintiff’s Request for Production, Set One, within 30 days of the date of service of the notice of this order.

Defendants are also ordered to pay Plaintiff $860 in sanctions within 30 days of the date of service of the notice of this order.

Plaintiff to give notice.

Future hearing dates

12/1/22 – (2) Mtn. for Protective Order

12/1/22 – (2) Mtn. for Relief of Waiver of Objections

3/3/23 – MSC

4/3/23 – Jury Trial