Superior Court of California 

County of Los Angeles 

Department 78 

 

CREATIVE RESONANCE, INC., 

Plaintiff;  

vs. 

SOUND NUTRITION, INC., SOUND (ABC), LLC, DON DILLON, WILSON SONSINI GOODRICH & ROSATI, ROBERT KORNEGAY, ZACHARY MYERS, and DOES 1-10 inclusive, 

Defendants. Case No.: 21STCV40546 

PLAINITFF’S MOTIONS TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION PROPOUNDED ON DON DILLON AND SNI

Plaintiff’s Motion to Compel Defendant Sound Nutrition, Inc.’s Further Response to Requests for Production (Set Two) is GRANTED in part and DENIED in part.

Defendant Sound Nutrition Inc. is ordered to provide supplemental responses to Request Nos. 16 and 17, any responsive documents and a privilege log if needed within 25 days after the date of this order.

Plaintiff’s Motion to Compel Defendant Dillon’s Further Response to Request for Production (Set Two) is GRANTED in part and DENIED in part. 

Defendant Dillon is ordered to provide supplemental responses to Request Nos. 18, 19, 21, 22 and 23, any responsive documents and a privilege log if needed within 25 days after the date of this order.

The Court declines to award sanctions.

Moving party to provide notice and to file proof of service of such notice within five court days after the date of this order.

FACTUAL BACKGROUND

This is an action for breach of contract, breach of implied covenant of good faith and fair dealing, fraudulent misrepresentation, professional negligence, breach of fiduciary duty, and civil conspiracy. Roberto Capodieci is a food scientist who developed dozens of patents related to the processing of foods that he registered under the name of Plaintiff Creative Resonance, Inc. (“CRI”). (TAC., ¶3.) Capodieci then founded another snack bar company, Defendant Sound Nutrition, Inc. (“SNI”), with a businessman, Defendant Dillon. (TAC ¶4.) Capodieci relied on Dillon and Defendant Wilson Sonsini Goodrich & Rosati (“Wilson Sonsini”), a law firm Dillon recommended, to draft agreements consistent with Dillon’s promise to pay $1.5 million to CRI in exchange for CRI’s transfer of patents to SNI. (TAC ¶¶4, 7.) Under the agreement, CRI transferred nine patents to SNI and would transfer a tenth patent to SNI once SNI achieved $5 million in gross sales. (TAC ¶8.) Dillon and Wilson Sonsini fraudulently induced Capodieci to sign this agreement. (TAC ¶8.)

Wilson Sonsini failed to inform CRI whether the firm had filed UCC-1 filings for the assets transferred to SNI. (TAC ¶10.) In August 2021, SNI produced financial statements that failed to list the $1.5 million owed to CRI as a liability, only listing liabilities to Dillon and his wife. (TAC ¶11.) If SNI liquidated, Dillon alone would collect on SNI’s assets. (TAC ¶11.) In November 2021, accounting firm Armanino, LLP (“Armanino”), retained by Dillon and referred by Wilson Sonsini, informed Capodieci that SNI made a general assignment of all of SNI’s assets to Sound (ABC), LLC (“Sound ABC”). (TAC ¶12.) Sound ABC exists solely to liquidate SNI’s assets and distribute the proceeds to Dillon, SNI’s only documented creditor. (TAC ¶13.) The assets were sold to Treadtone Capital Trust (“Treadstone”), an entity owned by Dillon. (TAC ¶50.)

PROCEDURAL HISTORY 

On November 3, 2021, Plaintiff filed its Complaint against Defendants Sound Nutrition, Inc., Sound (ABC), LLC, Don Dillon, Wilson Sonsini Goodrich & Rosati, Robert Kornegay, and Zachary Myers.

On November 29, 2021, Plaintiff filed a First Amended Complaint.

On January 26, 2022, Wilson Sonsini filed its Answer.

On March 22, 2022, SNI filed its Answer.

On May 27, 2022, Plaintiff filed a Second Amended Complaint.

On September 27, 2022, Plaintiff dismissed its fourth cause of action for fraudulent misrepresentation – legal representation against Defendants Kornegay and Myers only. 

On January 13, 2023, Plaintiff filed a Third Amended Complaint (“TAC”).

On February 15, 2023, Defendants Sound ABC, SNI, and Wilson Sonsini filed Answers.

On Jun 22, 2023, Plaintiff filed the instant motions to compel further responses to RPDs, set two.

DISCUSSION 

Plaintiff moves for orders compelling Defendant Dillon and Defendant SNI to produce further responses to Requests for Production, Set Two (“RPDs”). 

I. Legal Standard

Under Code of Civil Procedure, section 2031.310, the Court may order a responding party to serve a further response to a request for production when the Court finds that any of the following apply: (1) A statement of compliance with the demand is incomplete; (2) A representation of inability to comply is inadequate, incomplete, or evasive. (3) An objection in the response is without merit or too general. 

A party moving for orders compelling further responses to requests for production must first offer specific facts demonstrating good cause justifying the discovery sought by the demand. (Code Civ. Proc., section 2031.310(b)(1).) This burden “is met simply by a fact-specific showing of relevance.” (TBG Ins. Servs. Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 448.) If “good cause” is shown by the moving party, the burden shifts to the responding party to justify any objections made to document disclosure. (Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.) 

II. Discussion

Plaintiff seeks a court order compelling SNI’s responses to Requests for Production (Set Two), numbers 15-17. Plaintiff also seeks an order compelling Dillon’s responses to Requests for Production (Set Two), numbers 17-19 and 20-23.

a. SNI

Plaintiff’s counsel testifies that he propounded RPDs on SNI on August 25, 2022. (Pessah Decl., ¶3.) On September 26, 2022, SNI provided responses. (Id., ¶4.) In October 2022, the parties exchanged meet and confer correspondence on SNI’s responses and could not resolve their dispute. (Id., ¶¶6-8.) On June 16, 2022, the parties stipulated to a protective order. (Id., ¶5, Exh. B.) On June 8, 2023, the parties participated in an Informal Discovery Conference (“IDC”) and could not resolve their dispute over the requests for production. (Id., ¶9.) The June 8, 2023 minute order states that Plaintiff was to file motions related to the IDC by June 22, 2023. The parties met and conferred at the end of June 2022 and could not resolve this dispute. (Id., ¶¶9-12.)

After Plaintiff filed its motion, SNI served supplemental responses to Plaintiff’s RPDs stating SNI already produced responsive, non-privileged documents that concern Sound Nutrition’s assignment for the benefit of creditors. (Stiglitz Decl., ¶6; Exh. 4.)

RPD numbers 15-17 read as follows:

15. ALL COMMUNICATIONS between YOU and Anastasiia Golovacheva RELATING TO SNI.

16. All COMMUNICATIONS between YOU and Anastasiia Golovacheva RELATING TO CRI.

17. All COMMUNICATIONS between YOU and Anastasiia Golovacheva RELATING TO CAPODIECI.

Golovacheva served as the executive assistant to Defendant Dillon at SNI. As such, she worked as an employee at SNI.

Request No. 15 requests all communications sent by Golovacheva to anybody at SNI that relate to SNI and all communications sent by anybody at SNI to Golovacheva that relate to SNI for all time. 

Among a myriad of other objections, Defendant SNI objected to this request based on relevance. This very broad request as drafted is irrelevant to the subject matter at issue here. (CCP Section 2017.010.) Plaintiff’s motion is denied with respect to this request. 

Request No. 16 requests all internal SNI communications relating to CRI to or from Golovacheva. All of Defendant SNI’s objections are overruled, except for attorney client/attorney work product privilege. The request is relevant and intelligible. Any objections as to undue burden, oppression, etc. are also overruled as the objecting party Defendant SNI has not shown the amount of work required to respond. (Williams v. Superior Court (2017) 3 Cal.5th 531, 549-550.) Defendant Dillon’s statement that he believes it would take many hours to complete “the task that CRI is demanding” (Declaration at Paragraphs 5,6 ) is insufficient in two ways as it does not specifically address Request No. 16 and it does not explain in detail the amount of work that would be required. The main focus of the alleged burden seems to relate to email. However, the volume of emails is not addressed nor is the issue of the use of search terms raised with respect to lessening any purported burden.  The issue here is not burden, but rather undue burden since all discovery requests impose a burden of some type. Defendant has not successfully demonstrated the existence of an undue burden. Plaintiff’s motion is granted with respect to this request. To the extent that any privileged communications are responsive to this request, Defendant must provide a privilege log.

 Request No. 17 requests all internal SNI communications relating to Capodieci to or from Golavacheva. The same analysis as above applies. Plaintiff’s motion is granted with respect to this request. To the extent that any privileged communications are responsive to this request, Defendant must provide a privilege log.  

b. Dillon

Plaintiff seeks orders compelling Dillon’s responses to RPD numbers 17-19. These request numbers also seek Dillon’s communications with Golovacheva and are the same as SNI’s request numbers 15-17, except that the requests refer to communications between Defendant Dillon and Golovacheva, as opposed to communications between Defendant SNI and Golavacheva. 

The same analysis as above applies and the Court rules accordingly.

Plaintiff also seeks to compel Dillon’s further responses to request numbers 20-23. The requests read as follows:

20. All COMMUNICATIONS between YOU and Anastasiia Golovacheva RELATING TO SOUND FOODS.

21. All DOCUMENTS RELATING TO the formation of SOUND FOODS.

22. All DOCUENTS RELATING TO any and all assets utilized by SOUND FOODS that were sold in SNI’s ABC liquidation.

23. All DOCUMENTS RELATING TO SOUND FOODS’ registration with the U.S. General Services Administration.

Dillon argues that these requests seek documents about Sound Foods that are beyond the scope of discoverable evidence because this action is about an unsecured promissory note dated December 20, 2018. Dillon argues that Sound Foods’ recent use of assets that were sold years ago in SNI’s liquidation does not have any bearing on Plaintiff’s claims.

As discussed above, Plaintiff’s TAC alleges that Dillon, Sound ABC, and Armanino colluded to unlawfully sell SNI’s assets to Treadstone. As Plaintiff points out, Dillon admits to arranging Treadstone to assign assets it acquired in the assignment of SNI’s assets to Sound Foods. (Dillon Decl., ¶3.) Dillon is also the Chief Executive Officer of Sound Foods. (Id., ¶1.) 

Plaintiff also provides emails between Dillon and Sound  ABC showing that they intended to fire all of SNI’s employees and have a “Newco” rehire some employees and exclude Roberto Capodieci. (Pessah Decl., ¶15; Exh. J.) Plaintiff alleges that “Newco” referred to Sound Foods, which was established after SNI’s liquidation.

Because there is evidence that the alleged conspiracy to unlawfully sell SNI’s assets involved the formation of Sound Foods, the Court finds that documents related to the formation of Sound Foods is relevant to Plaintiff’s claim. Because Sound Foods was only established in July 2022 and the documents are limited to Sound Foods’ establishment, the Court finds that the requests are not unduly burdensome or overbroad. 

Plaintiff’s motion is granted with respect to request numbers 21-23. To the extent that any privileged communications are responsive to this request, Defendant must provide a privilege log. The Court notes that with respect to these requests, Dillon’s declaration at paragraph 6 fails to make a showing of an undue burden because it does not separate out the narrower requests (Nos. 21 to 23) and simply asserts that the documents are voluminous and producing them would require many hours without documenting the volume of materials at issue or what steps could be taken (such as search terms) to decrease the burden.

With respect to request number 20, it fails for the same reason as the other requests seeking essentially all communications without any limitation.  The motion is denied with respect to request number 20.

c. Sanctions

Plaintiff seeks sanctions against SNI and Dillon. SNI and Dillon seek sanctions against Plaintiff.

Sanctions are mandatory against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, 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. (Code Civ. Proc., §2031.310(h).) 

Because both parties were partially successful or unsuccessful depending on how you want to look at it, the Court declines to impose sanctions here.

That said, it appears to the Court that these are matters which could have and should have been resolved between the parties. Going forward, the Court does not expect to see these types of motions.

DATED:  September 26, 2023

______________________

Hon. Jill Feeney 

Judge of the Superior Court