Superior Court of California

County of Los Angeles

North Central District

Department B

DBIK construction & design, inc.,

Plaintiff,

FOUR JOY INVESTMENT LLC,

Defendants.

Case No.: 21BBCV00674

Hearing Date: December 8, 2023

[TENTATIVE] order RE:

motion to compel further responses

BACKGROUND

A. Allegations

Plaintiff DBIK Construction & Design, Inc. (“DBIK”) alleges that it entered into a construction agreement with Defendant Four Joy Investment LLC on April 30, 2019, in which DBIK agreed to provide certain improvements to real property located at 1200 E Huntington Dr., Duarte, CA 91010 including the renovation of the exterior and roof of a 67-unit hotel building, the exterior renovation of a separate 8-unit commercial building, and landscaping of the entire property. In exchange, Defendants agreed to pay Plaintiff a total of $945,000. In the next 4 months, structural safety concerns were discovered with respect to the commercial building, which necessitated the addition of a central column in the building and other design changes. During the construction, supervision costs escalated due to increased scope of work, COVID-19 pandemic challenges, involvement of third-party contractors hired by Four Joy Investment LLC, etc. DBIK alleges that for the additional supervision, it is entitled to a project management fee of $828,823.31, or approximately 20%. DBIK alleges that the total change order between the parties increased the contract amount by $3,899,454.44, resulting in an adjusted contract amount of $4,844,454.44. DBIK alleges it made a demand for $4,844,454.44 and Defendants have failed to pay $1,776,084.08 of that amount.

The complaint, filed July 30, 2021, alleges causes of action for: (1) breach of contract; (2) open book account; (3) account stated; (4) reasonable value of labor and materials furnished; and (5) foreclosure of mechanic’s lien.

On October 1, 2021, DBIK filed an Amendment to Complaint, naming Doe 1 as “Four Joy One LLC a California limited liability company.” On October 8, 2021, DBIK filed an Amendment to Complaint, correcting the name of “Four Joy Investment LLC, a California Corporation” to “Four Joy Investment LLC, a California Limited Liability Company.”

On October 24, 2023, DBIK dismissed without prejudice Four Joy One LLC as to the complaint.

B. Cross-Complaints

On July 11, 2022, Cross-Complainants DBIK and Danny Hung Cheng filed a cross-complaint against Cross-Defendants Angel Development, Inc., N Pro Electric, and Albert Harding Butcher Jr. dba Harding Construction for: (1) implied indemnity; (2) contribution and indemnity; (3) declaratory relief; and (4) negligence. On September 21, 2023, the default of N Pro Electric, Inc. was entered upon the request of DBIK and Cheng.

On January 20, 2023, Four Joy Entities filed a cross-complaint against Cross-Defendant Angel Development, Inc. for: (1) intentional misrepresentation (fraud/deceit); (2) negligent misrepresentation; (3) breach of contract; (4) breach of implied covenant of good faith and fair dealing; (5) negligence; and (6) recovery of payments made to unlicensed subcontractors pursuant to Business & Professions Code, § 7031(b). That same day, the Four Joy Entities filed an Amendment to Cross-Complaint naming Roe 1 as DC International Design & Construction, Inc.

On February 17, 2023, Cross-Complainants Four Joy Investment, LLC and Four Joy One, LLC (“Four Joy Entities”) filed a First Amended Cross-Complaint (“Four Joy FAXC”) against Cross-Defendants DBIK and “Danny” Hung Cheng for: (1) violation of Business & Professions Code, §§ 7125.2 and 7031(b) (disgorgement action against unlicensed contractor); (2) violation of Business & Professions Code, § 7160 (statutory fraud by unlicensed contractor); (3) (deceit) intentional misrepresentation; (4) deceit (negligent misrepresentation); (5) negligence; and (6) violation of Business & Professions Code, § 17200 et seq. On September 14, 2023, the Four Joy FAXC was dismissed without prejudice.

C. Motion on Calendar

On September 12, 2023, Defendant Four Joy Investment, LLC (“Four Joy”) filed a motion to compel Plaintiff DBIK’s further responses to Special interrogatories, set 2 (“SROG”). Four Joy seeks sanctions against DBIK and its counsel of record in the amount of $3,267.36.

On November 27, 2023, DBIK filed an opposition brief.

On December 1, 2023, Four Joy filed a reply brief.

DISCUSSION

Four Joy moves to compel DBIK’s further response to SROG No. 32.

SROG No. 32 asks DBIK to state the services provided by each and every “CONTRACOTR[sic]” identified. In the SROG requests’ definitions, “CONTRACTOR” is defined as “General contractor or subcontractor or workers retained for the construction work retained by DBIK relating to the Hotel Huntington project.” (Mot., Ex. 1.) In response, DBIK stated it was unable to respond to the request because “CONTRACOTR” was not a defined term and it is not aware of any responsive information.

Four Joy argues that a further response is required because DBIK did not timely serve responses, thereby waiving all objections. Four Joy argues that the parties met and conferred about any ambiguity of the terms and the misspelled word “CONTRACOTR,” but DBIK failed to provide a response without objection despite Four Joy clarifying the correct spelling of the word.

In opposition, DBIK argues that it inadvertently failed to timely provide a response because Four Joy’s counsel refused to include DBIK’s counsel’s calendaring staff in his emails. DBIK states that it has elected to respond to the SROGs without objections as opposed to filing a motion for relief from waiver of objections, but with respect to SROG No. 32, DBIK lacks any factual information due to the way it was written. DBIK argues that No. 32 is ambiguous because it references the term “CONTRACOTR” and that this term has not been defined, though the term “CONTACTOR” was defined. DBIK states that it responded to SROG Nos. 31, 33, 34, and 35, which correctly spelled “CONTRACTOR,” but it could not respond to No. 32 because the term “CONTRACOTR” was ambiguous.

It is apparent that the term “CONTRACOTR” was a simple misspelling of the word “CONTRACTOR.” If there was any ambiguity as to the term, the parties should have discussed this during meet and confer efforts and DBIK should have provided a further response. DBIK argues that Four Joy should have re-propounded SROG No. 32 and if Four Joy had done so, DBIK would have had an unambiguous response to the SROG. (Opp. at p.3.)

The motion to compel further responses to SROG No. 32. DBIK is ordered to respond to SROG No. 32 as clarified as follows: “State the services provided by each and every CONTRACTOR identified.”

Four Joy seeks $3,267.36 in sanctions against DBIK. In opposition, DBIK seeks $1,110 against Four Joy. The Court grants Four Joy’s request for sanctions in the reasonable sum of $1,000. The parties should have been more cooperative during meet and confer efforts such that this motion and discovery delays by both parties could have been avoided. As discussed above, the typographical error was minor and DBIK should have responded to the SROG upon clarification.

CONCLUSION AND ORDER

Defendants Four Joy Investment, LLC’s motion to compel further responses to SROG No. 32 is granted. Plaintiff DBIK Construction & Design, Inc. is ordered to provide a further response, without objection, within 20 days of notice of this order to SROG No. 32 as clarified as follows: “State the services provided by each and every CONTRACTOR identified.”

Plaintiff and its counsel of record, jointly and severally, are ordered to pay monetary sanctions in the amount of $1,000 to Defendant Four Joy Investment, LLC, by and through counsel, within 20 days of notice of this order.

Defendant shall give notice of this order.

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