Judge: Jon R. Takasugi, Case: 23STCV06977, Date: 2025-01-15 Tentative Ruling

Case Number: 23STCV06977    Hearing Date: January 15, 2025    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

RDF’s motion to compel further responses to its Form Interrogatories is granted in part, consistent with the ruling set forth below. Cross-Defendants are sanctioned, jointly and severally with counsel, $700.00.

RDF’s motion to compel further responses to its Special Interrogatories is granted in part, consistent with the ruling set forth below. Cross-Defendants are sanctioned, jointly and severally with counsel, $700.00.

RDF’s motion to compel further responses to its Requests for Production is granted in part, consistent with the ruling set forth below. Cross-Defendants are sanctioned, jointly and severally with counsel, $700.00.

Responses are due within 20 days.  Payment of sanctions is due within 30 days.

On 3/29/2023, Plaintiff Michelle Ramos (Plaintiff) filed suit. On 9/8/2023, Plaintiff filed a first amended complaint (FAC) against Caroline Ramos, Katherine Ramos, and Rituel De Fille, Inc. (collectively, Defendants), alleging: (1) breach of license agreement; (2) breach of license agreement; (3) breach of fiduciary duty (partnership); (4) breach of fiduciary duty (corporate); (5) breach of employment agreement/wrongful termination; (6) misappropriation of trade secret; (7) accounting; and (8) unfair competition.

On 10/10/2023, Cross-Complainant Rituel de Fille, Inc. (RDF) filed a Cross-Complaint (XC1) against Michelle Ramos, Steven Wright, and Wright Myers & Co., Inc., alleging: (1) breach of contract; (2) breach of fiduciary duty; (3) aiding and abetting breach of fiduciary duty; (4) professional negligence; (5) intentional interference with contractual relation; (6) conversion; (7) unfair business practices; and (8) intentional misrepresentation.

On 10/11/2023, Cross-Complainant Caroline and Katherine Ramos filed a Cross-Complaint (XC2) against Michelle Ramos, Steven Wright, and Wright Myers & Co., Inc., alleging: (1) breach of contract; (2) breach of fiduciary duty; (3) aiding and abetting breach of fiduciary duty; (4) professional negligence; (5) intentional interference with contractual relation; (6) conversion; (7) unfair business practices; and (8) intentional misrepresentation.

            On 11/15/2024, RDF moved to compel Cross-Defendants Steven Wright and Wright Myers & co. Inc. (collectively, Cross-Defendants) to provide further responses to Form Interrogatories, Special Interrogatories, and Requests for Production (RFPs). RDF seeks monetary sanctions in connection with these motions.

Discussion

            RDF seeks to compel further responses to: Wright Form Interrogatory Nos. 4.1, 12.1, 15.1, 16.1, 16.2, 16.3, 17.1, 50.1, 50.2, 50.3, 50.4, 50.5, 50.6; and WMCI Form Interrogatory Nos. 3.6, 3.7, 4.1, 12.1, 15.1, 16.1, 16.2, 16.3, 17.1, 50.1, 50.2, 50.3, 50.4, 50.5, 50.6.

            RDF seeks to compel further responses to: Wright Special Interrogatory Nos. 1-18; WMCI Special Interrogatory Nos.1- 18.

            RDF seeks to compel further responses to: Wright RFP Nos. 1-15; WMCI RFPs Nos.1-15

I.                    FROGs

            As for the Wright Form Interrogatories, Wright responded to each of the Interrogatories with the same response:

Responding Party was diagnosed with Alzheimer’s with dementia in October 2020, has no ability to recall any of the information requested and is therefore unable to answer this Interrogatory.

RDF contends “[i]f Wright cannot answer this Form Interrogatory completely, Wright has to answer “to the extent possible” which is more than stating its knowledge of Wright’s Alzheimer’s with dementia diagnosis.” (CCP § 2030.220(b).)

The Court agrees. Wright must supplement the response to clarify to provide as much information as possible, e.g., whether there is anyone, such as Mr. Ramos who has been identified as the person most knowledgeable about Wright’s Business, would have responsive information.

Moreover, RDF argues that Cross-Defendants’ responses fail to include their failure to retain RDF’s records and to notify RDF of WMCI’s sale.

California accountants are required to maintain client accounting records, including but not limited to “programs, analyses, memoranda, letters of confirmation and representation, copies of abstracts of company documents, and schedules or commentaries prepared or obtained by the licensee” for a minimum of seven years. (Bus. and Prof. Code., § 5097(e); see also Cal. Code Reg., § 68.3). In addition, California accountants are required to send notice to their clients regarding the sale or transfer of their business that must include “a request for the client’s consent to transfer that client’s records.” (Cal. Code Reg., § 54.3.)

Apparently, Wright not only failed to retain any files, documents, flash drives, or hard drives of his and/or WMCI’s client records for a minimum of seven years but apparently shredded all of them before selling WMCI. RDF contends that “[a]lthough the destruction of documents cannot be undone, at a minimum, RDF is entitled to supplemental responses describing the details related to the destruction of WMCI’s client records and sanctions for destruction of evidence.” (RDF, 6: 4-6.)

However, a motion for sanctions related to destruction of evidence is not properly raised through a motion to compel further. Here, unless the requests pertain to the actual process of destruction of evidence, Cross-Defendants need not provide that explanation in response to unrelated questions. While, of course, Cross-Defendants must explain if no response is possible due to destruction of evidence, the Court finds that sanctions related to destruction of evidence must be raised through a motion for sanctions, wherein evidence documenting the destruction can be submitted and reviewed.  

Still, the Court finds Cross-Defendants’ responses to be deficient as they fail to provide as much information as possible and “to the extent possible” as their ability to provide responsive answers in light of Wright’s Alzheimer’s diagnosis.  (CCP § 2030.220(b).) As such, supplemental responses must be provided.

Based on the foregoing, RDF’s motion to compel further responses is granted in part. Cross-Defendants are sanctioned, jointly and severally with counsel, $700.00. ($350/hr x 2 hr.)

II.                 SROGs

As for the SROGS, Wright provided the following response to the Requests:

Responding Party was diagnosed with Alzheimer’s with dementia in October 2020, has no ability to recall any of the information requested and is therefore unable to answer this Interrogatory.

WMCI  provided the following response to the Requests:

Steven Wright was diagnosed with Alzheimer’s with dementia in October 2020, Wright Myers’ client list was sold and the corporation was essentially defunct. The company has not existed since then and there is no other corporate officer or employee who might be able to respond to these Interrogatories.

For the same reasons set forth above, the Court finds these responses to be deficient as they fail to provide as much information as possible and “to the extent possible” as their ability to provide responsive answers in light of Wright’s Alzheimer’s diagnosis.  (CCP § 2030.220(b).) As such, supplemental responses must be provided.

Based on the foregoing, RDF’s motion to compel further responses is granted in part. Cross-Defendants are sanctioned, jointly and severally with counsel, $700.00. ($350/hr x 2 hr.)

III.              RFPs

As for the RFPs, Wright provided the following response to the Requests:

Upon a diligent search and reasonable inquiry, Responding Party is unable to produce any responsive documents. Because he was diagnosed in October 2020 with Alzheimer’s with dementia, he is unable to state whether any such documents ever existed, whether he ever had such documents in his custody, possession or control, whether any such documents, if they existed, were destroyed or lost. Responding Party does not currently have any such documents in his custody, possession or control

(See Separate Statement.)

WCMI provided the following response to the Requests:

Upon diligent search and reasonable inquiry, Responding Party is unable to produce any responsive documents. Steven Wright was diagnosed with Alzheimer’s with dementia in October 2020, Wright Myers’ client list was sold and the corporation was essentially defunct. The company has not existed since then and there is no other corporate officer or employee who might be able to respond to these Requests. Responding Party is unable to state whether any such documents ever existed whether it ever had such documents in its custody, possession or control, whether any such documents, if they existed, were destroyed or lost. Responding Party does not currently have any such documents in its custody, possession or control.

(See Separate Statement.)

RDF contend that these responses are deficient, arguing :

Wright not only failed to retain any files, documents, flash drives, or hard drives of his and/or WMCI’s client records for a minimum of seven years but apparently shredded all of them before selling WMCI. Wright’s failure to maintain the records and likely destruction of client records is even more shocking because of his failure to send his clients notification. These egregious violations only strengthen RDF’s allegations against Wright and WMCI and demonstrate an active attempt to conceal their wrongdoing by destroying any evidence. Although the destruction of documents cannot be undone, at a minimum, RDF is entitled to supplemental responses describing the details related to the destruction of WMCI’s client records and sanctions for destruction of evidence.

            (Motion, 5:24-6:2.)

            Moreover, RDF contends that while Cross-Defendants’ responses affirm a diligent search with reasonable inquiry was made and stated the reason for its inability to produce any responsive documents, Cross-Defendants were required to set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item. CCP § 2031.230 requires:

A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.

            (emphasis added.)

            As noted above, RDF’s contentions that Cross-Defendants have destroyed evidence are properly the subject of a motion for sanctions, rather than a motion to compel further, as the latter motion is only intended to compel supplemental production. If evidence has, in fact, been destroyed, its production cannot be compelled.

            However, the Court agrees that Cross-Defendants response is not a complete as possible, as it does not comply with CCP section 2031.230. In particular, Cross-Defendants must amend their responses to clarify whether any person exists with documents and/or communications possibly maintained electronically or perhaps with access to Wright’s e-mail account that could have potentially responsive documents.

It is so ordered.

Dated:  January    , 2025

   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.