Judge: Kenneth J. Medel, Case: 37-2021-00032169-CU-MC-CTL, Date: 2023-10-20 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - October 19, 2023

10/20/2023  09:30:00 AM  C-66 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Kenneth J Medel

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited  Misc Complaints - Other Discovery Hearing 37-2021-00032169-CU-MC-CTL TALLEY AMUSEMENTS INC VS THE 22ND DISTRICT AGRICULTURAL ASSOCIATION [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Compel Discovery, 05/15/2023

Motion to Compel Further Responses to Request for Production No. 1 Request No. 11 all documents 'sufficient to show the financial arrangement between YOU and any PERSON for YOUR provision of rides, games, or food within the past ten years.' GRANT Defendants argue that the documents are relevant to their defense that Plaintiffs' bid for RFP 20-05 was a 'loss leader sham bid.' In their counterclaim. Defendants allege a declaratory relief cause of action.

Defendants allege that plaintiffs submitted a 'sham bid', which 'misrepresented its qualifications, intentionally ignored the RFP requirements, and artificially inflated its financial proposal in an attempt to buy the contract. . . . Specifically, Talley Amusements cannot be the 'winner' of RFP 20-05 when its bid contained multiple material misstatements and omissions, which constitute grounds for its rejection.' According to defendants, Talley Amusements' bid misrepresented and misled the 22nd DAA with respect to the number of rides and games it contemplated bringing to the 2021 San Diego County Fair, did not bid the full 70+ ride and 50+ game 2021 San Diego County Fair as required by RFP 20-05.

Counterclaim, ¶¶ 3-5, 54-55 Plaintiffs contend that the 'loss leader' defense is inapplicable in the context of a public contract bid and the 22nd DAA never raised this issue while it scored Talley' s bid for RFP 20-05. Further, Plaintiffs argue that Defendant Carlene Moore admitted she never informed Talley that their bid for RFP 20-05 was a lost leader and never informed the 22nd DAA' s Board of Directors that RFP 20-05 was being cancelled because Talley's bid was being disqualified for being a lost leader. Thus, plaintiffs contend that defendants have not established 'good cause' to compel further discovery related to financial arrangements with others.

Plaintiffs essentially are seeking a determination of the merits of the counterclaim via its opposition to discovery. Even if a 'loss leader defense' is inapplicable in the context of a public contract bid, taken broadly, the 'defense' or 'counterclaim' relates on Talley's ability to perform to the contract. Defendants position is (a) Talley Amusements submitted a sham and loss leader bid in response to RFP 20-05; (b) that Talley Amusements would have had to take on a substantial loss if it had to perform pursuant to the express terms of RFP 20-05 (which loss is part of the 22nd DAA's loss leader defense); (c) that Talley Amusements has never and could never perform per the financial terms it proposed; (d) that performing under the financial terms proposed would have compromised the safety of San Diego County Fair patrons and/or their fairgoing experience; (e) that Talley Amusements' proposal was a bald and improper attempt to buy the contract contemplated by RFP 20-05; and (f) that Talley Amusements made multiple, material misrepresentations in its RFP 20-05 proposal.

The discovery related to the financial relationships with vendors is relevant or will lead to the discovery of admissible evidence regarding these defenses. Defendants contend that Plaintiff has not produced any Calendar No.: Event ID:  TENTATIVE RULINGS

2973593  27 CASE NUMBER: CASE TITLE:  TALLEY AMUSEMENTS INC VS THE 22ND DISTRICT AGRICULTURAL  37-2021-00032169-CU-MC-CTL agreements with its proposed subcontractors identified in RFP 20-05 pre-dating its bid.

Request No. 12 'ALL DOCUMENTS CONCERNING your alleged damages in this case.' GRANT Plaintiffs responded that there were no responsive documents at this time as a temporary injunction was entered and the nature and extent of damages were not ascertainable at that point and would be subject to expert review. According to plaintiffs, there is no set date for the parties' expert exchange and discovery is still ongoing. It is simply premature to produce documents regarding any alleged damages when the total damages require expert review and discovery is ongoing that may provide additional information pertaining to Plaintiffs' damages. Talley states it has provided the detailed financial statements for the 2022 San Diego County Fair, which is likely the most relevant documents that will be used to calculate lost profits.

Defendants argue that Plaintiffs fail to affirm that a diligent search and reasonable inquiry has been made, whether the responsive documents ever existed, and that it is simply not credible that there are no documents concerning Plaintiffs' alleged damages.

Plaintiff cites no authority that it is premature to require Plaintiff to produce documents supporting its damages claims. Code compliant responses are required.

Request No. 13 'audited financial statements for the past ten years.' GRANT Aside from the multiple objections raised, Plaintiff in meet and confer has stated that there were no audited financial statements.

Privacy objection is not available, particularly when Talley places its financial capability in issue by way of its response to RFP 20-05. Further, a protective order is in place that addresses any legitimate confidentiality concerns.

If the documents truly do not exist, the Code provides for a response.

Request No. 14, Request 15 balance sheets for the past ten years.

'YOUR profit and loss statements for the past ten years.' GRANT Plaintiffs have asserted relevance, privacy and burden. Plaintiffs produced balance sheets from 2017-2020.

Defendants argue that balance sheets for 2021 and prior to 2017 are relevant to the 'loss leader sham' defense.' As discussed above, plaintiffs argue that the defense is inapplicable.

However, the financial condition of Talley is relevant to this case. The documents are significant to the defense.

Request No. 19 'sufficient to show the amount of money YOU either made or lost at each of the fairs YOU participated in within the past ten years.' GRANT After asserting objections, plaintiffs stated no documents were produced. However, after meet and confer and specific fairs were identified, plaintiffs were able to produce some responsive documents. To the extent that other documents exist responsive to the request, plaintiffs should produce them.

Request No. 21 'DOCUMENTS CONCERNING the 22nd DAA, Moore, and/or Mueller sent to or received from the California Department of Justice' GRANT In their supplemental responses, Plaintiffs objected to the request on the grounds of the attorney-work product privilege, but also responded that there are no responsive documents. Plaintiff now argues that given that California Dept of Justice is the counsel for the 22nd DAA, Defendants should be in possession of all documents.

The communication here is not between counsel for Talley and its attorneys. If documents are in Talley's possession, they are relevant and should be produced.

Request No. 24 all documents 'CONCERNING the 22nd DAA, Moore, and/or Mueller sent to or received from Adam Calendar No.: Event ID:  TENTATIVE RULINGS

2973593  27 CASE NUMBER: CASE TITLE:  TALLEY AMUSEMENTS INC VS THE 22ND DISTRICT AGRICULTURAL  37-2021-00032169-CU-MC-CTL West or All State 38.' GRANT Defendants contend that Adam West and Plaintiff entered into an agreement in which Mr. West would provide consulting services to Plaintiff regarding Plaintiff's proposal submitted to the 22nd DAA that is at issue in this case (i.e., RFP 20-05) in exchange for a role at the 2021 San Diego County Fair that was not disclosed to Defendants. Thus, defendants seek all documents and communications concerning Mr.

West's consulting work as directly relevant to Plaintiff's claims and Defendants' defenses, including whether Mr. West proposed that Plaintiff submit a sham loss leader bid, and what Mr. West's undisclosed role at the 2021 San Diego County was intended to be.

Apparently, a written agreement has been produced. In the opposition, Plaintiff argues 'Defendants provide no factual basis showing that this agreement was in writing or that this was not contained in Plaintiffs' document production.' Documents surrounding this agreement (including drafts and related communications), the 22nd DAA, and RFP 20-05, the litigation, Ms. Moore and Mueller are all relevant.

Request No. 27; Request 28 documents 'CONCERNING Michael Ceragioli and the 22nd DAA, Moore, and/or Mueller CONCERNING the allegations in the COMPLAINT.' all 'DOCUMENTS CONCERNING the 22nd DAA, Moore, and/or Mueller sent to or received from Michael Ceragioli CONCERNING the allegations in the COMPLAINT.' GRANT Mr. Ceragioli is a key witness in the case. The Court relied on his declaration for the preliminary injunction that was issued in this case. Documents related to Mr. Ceragioli, particularly those he refers to in his declaration (emails, etc.) Request No. 29; Request No. 30 all documents 'CONCERNING Tim Fennell and the 22nd DAA, Moore, and/or Mueller CONCERNING the allegations in the COMPLAINT.' all documents 'CONCERNING the 22nd DAA, Moore, and/or Mueller sent to or received from Tim Fennell CONCERNING the allegations in the COMPLAINT.' GRANT Mr. Fennell was the CEO of the 22nd DAA for 20 years or so while Talley was a vendor at the fair.

According to Defendants, Mr. Fennell provided input concerning the 80/20 agreement with RCS referenced in the SAC and was CEO of the 22nd DAA during the time of earlier RFPs referenced in the SAC.

Plaintiff seems to contend that documents would be irrelevant because 'during much of this same time period when San Diego was an independent midway.' However, given that Mr. Fennell is a witness and provided input regarding issues involved in this litigation, the documents are clearly relevant.

Request No. 31; Request 32 all documents 'CONCERNING Donna Ruhm CONCERNING the allegations in the COMPLAINT.' all documents 'CONCERNING the 22nd DAA, Moore, and/or Mueller sent to or received from Donna Ruhm CONCERNING the allegations in the COMPLAINT.' GRANT Ms. Ruhm worked for years as the midway coordinator while Talley was an independent operator. The documents are relevant.

Request No. 33; Request No. 34 all documents 'CONCERNING Tony Guadagno and the 22nd DAA, Moore, and/or Mueller CONCERNING the allegations in the COMPLAINT.' all documents 'CONCERNING the 22nd DAA, Moore, and/or Mueller sent to or received from Tony Guadagno CONCERNING the allegations in the COMPLAINT.' GRANT Tony Guadagno was a part time employee who worked with Donna Ruhm for many years while Talley was an independent operator at the fair. According to defendants, Mr. Guadagno had historically helped manage the San Diego County Fair and all ride vendors, including Talley Amusements. If no documents exist, then plaintiffs must provide code compliant response.

Request No. 43; Request No. 44; No. 45 all documents 'CONCERNING any PERSON contacting YOU to file a lawsuit against the 22nd DAA.' all documents 'CONCERNING Tony Guadagno and any claim, demand or lawsuit against the 22nd Calendar No.: Event ID:  TENTATIVE RULINGS

2973593  27 CASE NUMBER: CASE TITLE:  TALLEY AMUSEMENTS INC VS THE 22ND DISTRICT AGRICULTURAL  37-2021-00032169-CU-MC-CTL DAA.' all documents 'CONCERNING Adam West or All State 38 and any claim, demand, or lawsuit against the 22nd DAA.' GRANT In response, Plaintiff has asserted relevance and privilege objections. These communications are relevant and not privileged since Plaintiff is not an attorney. (Plaintiff's attorney would be excluded.) Defendants position is that the move to a master midway model displaced vendors who coordinated to prevent their displacement. The requests as phrased do not seek communications between attorney and client.

Request No. 47 'CONCERNING YOUR LAWSUIT against the 32nd District Agricultural Association.

DENY This is a separate lawsuit. It would seem to be overburdensome to provide every document related to separate litigation.

Request No. 48 'sufficient to show all fairs YOU intended to participate in but were canceled because of the COVID-19 pandemic.

DENY Request No. 48 seeks documents 'sufficient to show all fairs YOU intended to participate in but were canceled because of the COVID-19 pandemic. Defendants argue that, in her declaration in support of Plaintiffs' third ex parte application for a TRO, Ms. Talley states Talley Amusements was able to offer its outsized financial bid because it was able to play fairs in 2020 and 2021. 'The requested documents will show that was not true and Talley Amusements was not in the financial condition to perform the San Diego County Fair as bid.' The request is overbroad and vague. What are all documents 'sufficient to show' all fairs you intended to participate in. What specific documents are requested here? Sanctions for RFP Set One Defendants seek sanctions against Plaintiff and its attorneys of record, in the amount of $7,914. The Court orders plaintiff to pay sanctions in the amount of $5000.

Request for Production of Documents (Set Two) The Court rules as follows: Given the supplemental responses after the motion has been filed, plaintiff argues that the motion is moot. Defendant contends that plaintiff still has not provided code compliant responses particularly to responses where plaintiff agrees to produce documents in the future. The Court can order compliance with the code. In addition, defendant contends that certain responses are still incomplete.

A response to a request for production of documents must consist of: (1) an agreement to comply, stating whether the production or inspection will be allowed 'in whole or in part,' and that all documents or things in the possession, custody or control of the respondent, as to which no objection is made, will be included, by the date set for inspection (unless informally extended in writing, or the designated timing is subject to objections); (2) a representation of inability to comply, affirming that 'a diligent search and a reasonable inquiry has been made in an effort to comply with that demand;' specifying 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;' and specifying any person believed or known to have possession of documents; or (3) objections and specifications of withheld documents, identifying with particularity the document to which the objection is being made and providing a privilege log where the objection is based on privilege. (Cal. Civ. Proc. Code §§ 2031.210(a), 2031.220, 2031.240; 2031.280(b); see also Weil & Brown, Civ. Proc. Before Trial (The Rutter Group 2022) ¶¶ 8:1469-8:1474.) As stated by defendant, the supplemental responses to Request Nos. 52, 55, 64, 71, 73, 75 , 76, 78, 81, 83, 85, 102, 103, 107, 108, 111, 112, 113, 121, 122, 123, 127, 128, 132, 133, 140, 156, 157, 158, 161, 163, 166, 167, 168, 171, 172, 173, 176, 178, and 181 state the Plaintiff 'will produce' responsive documents, but fail to state that all responsive documents will be or have been produced, or if any are being withheld on the basis of objections, the responses fail to identify them.

The supplemental responses to Request Nos. 53, 54, 66, 67, 68, 69, 77, 80, 86, 87, 88, 105, 109, 114, Calendar No.: Event ID:  TENTATIVE RULINGS

2973593  27 CASE NUMBER: CASE TITLE:  TALLEY AMUSEMENTS INC VS THE 22ND DISTRICT AGRICULTURAL  37-2021-00032169-CU-MC-CTL 124, 126, 129, 131, 134, 141, 159, 164, 169, 174, and 179 state that Plaintiff 'has produced' responsive documents, but fail to state that all responsive documents have been produced, or if any are being withheld on the basis of objections, the responses fail to identify them.

The supplemental response to Request No. 162 is nonresponsive. Request No. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 seeks documents sufficient to show the gross revenue Plaintiff received by year related to its involvement in Trinity Valley Exposition. But Plaintiff's supplemental response states, 'Will provide a copy of its agreement regarding its involvement in the Trinity Valley Exposition.' This is non-responsive as Plaintiff does not agree to produce the documents called for by the request.

Plaintiff's responses to Request Nos. 82, 84, 99, 100, 101, 110, 116, 117, 118, 119, 120, 125, 130, 135, 137, 138, 139, 142, 144, 145, 146, 147, 148, 149, 150, 151, 152, 154, 155, 160, 165, 170, 175, 177, 180, 182, 183, and 184 state that, 'After a diligent search and reasonable inquiry, Responding Party is not in possession, custody or control of any responsive documents.' The responses fail to comply with Code of Civil Procedure section 2031.230, because they do not specify the reason for the inability to comply, including '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.' Beginning at pages 5-6 to the Reply, Defendants argue that plaintiffs have not produced all responsive documents as requested to certain requests. The Court orders that the parties meet and confer regarding these requests and further motions can be filed if necessary.

Sanctions Related to RFP Set Two Defendants request the Court order sanctions in the sum of $15,306. The Court orders plaintiff to pay sanctions in the amount of $7000.

Motion to Compel Further Responses Form Interrogatories Form Interrogatory No. 9.1 and No. 2 FI No. 1 asks whether there are any other damages Plaintiff attributes to the incident and if so, to state the nature, date, and amount, and the name, address, and telephone number of each person to whom an obligation was incurred.

Form Interrogatory No. 9.2 asks Plaintiff whether any documents support the existence or amount of any item of damages claimed in interrogatory 9.1 and if so, to describe each document and state the name, address, and telephone number of the person who has each document.

Plaintiff has only responded that plaintiff is claiming lost profits in June, 2021. According to Defendant, Plaintiff has failed to identify the amount; failed to identify each person to whom an obligation was incurred; and failed to state whether any documents support the existence or amount of its alleged lost profits or to identify each document and identify the person who has each document.

Plaintiff contends that the final amount has not been calculated and will be once experts are designated.

In reply, defendants contend that a specific estimate of $12,300,000 has been pled in paragraph 28 of the Second Amended Complaint filed on March 11, 2022. What is the basis for this amount? While it is true that expert calculations will be the ultimate determination here, if there is discovery that supports the value of the lost profits, that amount and support should be provided.

Form Interrogatory No. 14.1 identification of statutes or regulations it claims Defendants violated and who purportedly did so Plaintiff should provide a complete response.

Form Interrogatory No. 17.1 whether Plaintiff's response to each request for admission was an unqualified admission. If not, Plaintiff is required to provide facts upon which Plaintiff bases the response, the name and contact information of all persons with knowledge of the facts, and identify all documents that support Plaintiff's such response.

Plaintiff's responses to Defendants' Request for Admission, Set One, Nos. 1-5, 7-15, 18-21, 23-31, and 33-48 were not unqualified admissions. Thus, Defendants are entitled to corresponding answers to Form Interrogatory No. 17.1 to ascertain the factual basis for Plaintiff's denials of Defendants' Request for Admission Nos. 1-5, 7-15, 18-21, 23-31, and 33-48.

Plaintiff argues that responses were included in the denials. However, even if that is the case, the code requires a response to this form interrogatory.

Sanctions Defendant requests sanctions in the amount of $4,372. The Court orders sanctions against plaintiff in Calendar No.: Event ID:  TENTATIVE RULINGS

2973593  27 CASE NUMBER: CASE TITLE:  TALLEY AMUSEMENTS INC VS THE 22ND DISTRICT AGRICULTURAL  37-2021-00032169-CU-MC-CTL the amount requested.

Calendar No.: Event ID:  TENTATIVE RULINGS

2973593  27