Judge: Jon R. Takasugi, Case: 20STCV07283, Date: 2024-11-19 Tentative Ruling

Case Number: 20STCV07283    Hearing Date: November 19, 2024    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Cross-Defendants’ motion to compel compliance is GRANTED. Southern Motion is sanctioned, jointly and severally with counsel, $7,000.

On 2/21/2020, Plaintiff Era Nouveau Holdings, LLC (ENH or Era Nouveau or Enouvation) filed a Complaint against Southern Motion, Inc. (SM or Southern Motion), setting forth a claim for declaratory relief and a claim for breach of contract. Southern Motion answered and cross-complained against Era Nouveau, adding Era Nouveau USA, LLC (EN USA LLC) and Era Nouveau, LLC (EN LLC) as Cross-Defendants and setting forth claims for: (1) fraudulent misrepresentations; (2) fraudulent concealment; (3) breach of implied warranty of merchantability; (4) breach of implied warranty of fitness for particular purpose; (5) breach of contract; and (6) violation of Business and Professions Code section 17200. 

            On 10/7/2024, Defendants Era Nouveau USA, LLC (ENUSA), Era Nouveau, LLC (ENLLC), John Samuel Contreras, and Thomas Peper (collectively, Cross-Defendants), moved to compel Southern Motion’s compliance.

            The motion is unopposed.

Discussion

Cross-Defendants seek an order directing Southern Motion to comply with: (1) Southern Motion’s February 16, 2024, agreement to supplement its responses; and (2) Southern Motion’s February 2, 2024 agreement to produce documents responsive to Cross-Defendants’ RFPs:

-         1. Cross-Defendant ENUSA’s Request for Production of Documents to Cross-Complainant Southern Motion, Inc. (Set 1);

-         2. Cross-Defendant ENLLC’s Request for Production of Documents to Cross-Complainant Southern Motion, Inc. (Set 1);

-         3. Cross-Defendant John Samuel Contreras’ Request for Production of Documents to Cross-Complainant Southern Motion, Inc. (Set 1); and

-         4. Cross-Defendant Thomas Peper’s Request for Production of Documents to Cross-Complainant Southern Motion, Inc. (Set 1)

(collectively, the Requests, attached as Exhs. A-1 to A-4 to Mesa Decl.)

In support, Cross-Defendants submitted the following facts:

-         On February 2, 2024, counsel for Southern Motion sent an email to counsel for Cross Defendants indicating Southern Motion had agreed to serve and in fact “mailed today” a USB drive containing Southern Motion’s document production in response to Cross-Defendants’ Requests. (Mesa Decl., Exh. Q.)

-         In a February 14, 2024, email counsel for Southern Motion stated the USB was sent in the mail only to Chan Punzalan, LLP. (Mesa Decl., Exh. BB.)

-         In a subsequent February 16, 2024, email counsel for Southern Motion indicated the USB was sent without any mail tracking and that a proof of service for the productions would be provided to Cross-Defendants (Mesa Decl., Exh. DD.)

-         As of the time of the filing of this motion, Chan Punzalan has not received a proof of service, document production, or USB in the mail from Southern Motion. (Popper Decl., ¶ 9.)

-         On February 16, 2024, counsel for Southern Motion agreed in an email to provide supplemental responses to the Requests by March 1, 2024. (Mesa Decl. Exh. DD.)

-         Cross-Defendants received no supplemental responses on March 1, 2024. (Mesa Decl. ¶ 34.)

-         On March 1, March 12 and March 18 counsel for Cross-Defendants emailed counsel for Southern Motion outlining that no supplemental responses or USB drive had been received and requested the items subject to the Discovery Agreement be served. None of these communications received a response. (See Mesa Decl. ¶¶ 35-37; Mesa Decl, Exhs. EE, FF and GG.)

-         In an additional March 18, 2024, email, counsel for Cross-Defendants informed counsel for Southern Motion of their intention to file a motion to compel compliance with the Discovery Agreement as no supplemental responses were ever received. (See Mesa Decl. ¶ 38; Mesa Decl, Exh. HH.)

-         On March 18, 2024, counsel for Southern Motion responded that despite the February 16, 2024, Discovery Agreement to provide supplemental responses by March 1, 2024, the promises to amend discovery were “a gesture of good faith and good faith only” and contended that the deadline for filing a motion to compel further responses, and any related motion had passed. (Mesa Decl., Exh. JJ.)

As such, Cross-Defendants have submitted evidence that Southern Motion has not complied with the parties’ Discovery Agreement to provide supplemental responses to the Requests, and Cross-Defendants have not received either of the two USBs for the first document production responsive to the Requests.

Where an agreement to comply with a discovery request has been made, but compliance is not forthcoming, compliance may be compelled by motion. (CCP. §2031.320(a).) There is no fixed time limit on a motion to compel compliance (Ibid.) Furthermore, the party moving to compel compliance need not show any “attempt to resolve informally,” and needs only to show the responding party's failure to comply as agreed. (CCP § 2031.320(a); Standon Co., Inc. v. Superior Court (1990) 225 Cal.App.3d 898, 902-903.)

Here, Southern Motion did not oppose this motion, and thus has not submitted any contrary facts or evidence which could show that they have complied with the Discovery Agreement. The Court takes their failure to oppose as a concession on the merits.

Based on the foregoing, Cross-Defendants’ motion to compel compliance is granted. Southern Motion is sanctioned, jointly and severally with counsel, $7,000. ($350/hr x 20 hr.)

It is so ordered.

Dated:  November    , 2024

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  For more information, please contact the court clerk at (213) 633-0517.