Judge: Kenneth J. Medel, Case: 37-2023-00003700-CU-DF-CTL, Date: 2023-09-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - September 14, 2023

09/15/2023  09:30:00 AM  C-66 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Kenneth J Medel

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Civil - Unlimited  Defamation Discovery Hearing 37-2023-00003700-CU-DF-CTL AMERIVET CONTRACTING VS RYAN PEACOCK INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Compel Discovery, 05/15/2023

Timeliness as to both Motions to Compel Further Responses to Form Interrogatories and Compel Further Responses to Request for Production of Documents Plaintiff first argues that the motions to compel are untimely. Pursuant to code, a motion to compel a further response must be filed 'within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing,...' In this case, the parties agreed in writing to extend the deadline for supplemental responses to April 17, 2023. Amerivet served its supplemental responses to RPI's first set of requests for production on March 31, 2023. Apparently, those supplemental responses did not include a response to FROG 8.4 or relevant RFPs. Amerivet argues that the time to file a motion to compel as to the responses relevant to these motions was not extended.

The statute provides for service within 45 days of the service of 'any supplemental response.' Discovery is usually treated as a whole and not interrogatory by interrogatory. The corresponding motion to compel deadline is May 15, 2023, or 45 days after RPI received Amerivet's supplemental responses.

Note that there was no agreement as to the date to file a motion to compel further responses. There was an agreement to file supplemental responses.

Motion to Compel re FROG No. 8.4: The Court GRANTS the Motion.

State your monthly income at the time of the INCIDENT and how the amount was calculated.

Damages for the various contractual claims seek loss of income damages. This case also includes defamation, where defendant would be seeking damages related to loss of income. Financial information is relevant to plaintiff's unique claims in this case.

Further responses are due within 10 days.

The Court orders Amerivet to pay sanctions in the amount of $1,000 within 10 days of notice of this ruling.

Motion to Compel Further Responses to Requests for Production: The motion is GRANTED.

Further Responses are due within 20 days of Notice of this Order.

Request for Production No. 2: All DOCUMENTS and COMMUNICATIONS that PERTAIN TO YOUR equipment ownership required under the DVBE, including an equipment list identifying equipment by license plate or Special Equipment ('SE') registration number and Vehicle Identification Number ('VIN'), California Department of Motor Vehicles ('DMV') Vehicle Registrations for highway legal vehicles or SE Registrations for off-highway equipment/vehicles registered in the Disabled Veterans ('DV') owners name or firm name, California DMV Certificate of Title in the DV owners name of firm name, California DMV Title/Transfer Only Receipts in the DV owners name or firm name, and any Current Equipment Rental Agreement.

In the SAC, Amerivet claims that RPI and Peacock defamed Amerivet, making false claims that Amerivet Calendar No.: Event ID:  TENTATIVE RULINGS

2961640  34 CASE NUMBER: CASE TITLE:  AMERIVET CONTRACTING VS RYAN PEACOCK INC [IMAGED]  37-2023-00003700-CU-DF-CTL lied in relation to RPI's equipment. Amerivet further alleges that RPI and Peacock took that tortious action with the specific intent 'to induce the State of California and its agencies to sever its business relationships with' Amerivet. FAC ⁋ 53. Request No. 2 asks Amerivet to produce all 'documents and communications' pertaining to its equipment ownership required under the DVBE. (Exhibit 1.) Amerivet's defamation claim, in part, alleges that an email sent by Ryan Peacock (Peacock) defamed Amerivet because it included the statement, 'Amerivet is defrauding me by using my fleet and representing my fleet as their own creating an unfair advantage through their disabled veterans [DVBE] status in California.' (Amerivet's Verified Compl. at ¶ 32.) As such, RPI seeks to evaluate Amerivet's defamation claim by obtaining documents that would prove or disprove whether Amerivet, in fact, represented RPI's generators as its own, which directly relates to whether RPI defamed Amerivet. The issue of whether Amerivet did, in fact, fact, falsely tell State of California agencies that it owned its own generators requires discovery of documents where Amerivet made claims regarding its equipment.

Amerivet argues that the discovery should be limited to lists of equipment involving RPI's equipment.

However, the representations regarding equipment could be much broader.

Financial privacy is not an absolute right, and must be balanced with the need for discovery. Further, Amerivet necessarily discloses this information to the relevant State of California Agencies, and no privacy is indicated by these records.

The parties have executed a protective order.

REQUEST FOR PRODUCTION NO. 5 All DOCUMENTS and COMMUNICATIONS that PERTAIN TO YOUR submission for certification as a SMALL BUSINESS, including, but not limited to, Internal Revenue Service official documentation verifying the firm's Federal Employer Identification Number or Social Security Number, Gross Annual Receipts for the applicant business (and each affiliate listed, if any) for the three most recently completed tax years, Affidavit of Income forms, Quarterly Contribution Return & Report of Wages, any Continuation (Form DE 9C) submitted, copies of out-of-state and/or out-of-country documents equivalent to Form DE 9c, if applicable.

Amerivet is agreeing to provide the certification certificates only.

RPI relies on the same reasoning for RFP No. 2. The alleged defamation is that Amerivet was engaging in 'fraud' with RPI. As alleged in the SAC, 'Amerivet cannot engage in fraud and maintain contracts and certifications with the above federal, state and local government entities.' Listed among the certifications are at least two involving small business certification. Discovery related to these certifications is relevant and certainly could lead to the discovery of admissible evidence. A protective order is in place.

REQUEST FOR PRODUCTION NO. 9 All DOCUMENTS and COMMUNICATIONS that PERTAIN TO the PROJECT.

Amerivet has limited its response to 'the contract relating to the project' and related invoices, refusing to produce the requested communications and other documents relating to the project.

Documents related to the project are relevant or could lead to the discovery of admissible evidence.

Amerivet sued RPI for breach of contract, defamation, and requested injunctive and declaratory relief.

(See, Amerivet's FAC.) In response, RPI filed a cross-complaint against Amerivet for breach of an oral contract, fraud, negligence, quantum meruit, open book account, and conversion. (See, RPI's Cross-Compl.) Every cause of action in this litigation stems from the Project for which RPI provided generators.

REQUEST FOR PRODUCTION NO. 13 All DOCUMENTS and COMMUNICATIONS between YOU and any State of California Government Agency where RPI's equipment was used or to be used by YOU, including all bids, applications for those bids, and subsequent awarded bids.

Amerivet is agreeing to produce the relevant portions of the contract(s) and invoices wherein RPI' s equipment 'was used'.

This Request, like the above requests, seek information relevant to the claims, particularly damages.

REQUEST FOR PRODUCTION NO. 61 All DOCUMENTS and COMMUNICATIONS of internal negotiations PERTAINING TO RPI.

Amerivet is suing for breach of contract. The interpretation of the contract is at issue in this case, which may require understanding how Amerivet understood it. RPI asserts that the terms of the agreement remain unclear.

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2961640  34 CASE NUMBER: CASE TITLE:  AMERIVET CONTRACTING VS RYAN PEACOCK INC [IMAGED]  37-2023-00003700-CU-DF-CTL RPI alleges that the agreement was always for Amerivet to rent generators from RPI and in return, Amerivet would pay rental rates on those generators. (See, RPI's Cross-Compl. at ¶¶ 1-4, 10-31.) To evaluate the strength of both alleged breaches, as well as the other causes of action involved in this litigation, documents and communications related to the Project should be available for both parties' review and analysis.

REQUEST FOR PRODUCTION NO. 62 All DOCUMENTS and COMMUNICATIONS of internal negotiations PERTAINING TO PEACOCK.

Like Request No. 61, this Request seeks to obtain more information about the alleged causes of action asserted by both parties, including the breach of an alleged agreement and/ or contract.

REQUEST FOR PRODUCTION NO. 63 All DOCUMENTS and COMMUNICATIONS of internal negotiations PERTAINING TO the PROJECT.

Based on the claims in this case, this request is relevant as stated above.

REQUEST FOR PRODUCTION NO. 65 All DOCUMENTS reflecting contracts from CAL FIRE that you received subsequent to September 14, 2021.

The request is relevant to damages related to the defamation. This request seeks documents that reflect any contracts that Amerivet entered into with Cal Fire that it received after the first instance of alleged defamation on September 14, 2021, and also captures the two instances of alleged defamation on September 17, 2023. (Exhibit 1.) Amerivet has alleged that RPI and Peacock defamed it when Peacock sent an email on September 14, 2021 that CC'd the DVBE advocate stating, 'Please send preliminary lien today. Client is not responding. I want this collection on the radar.' (Amerivet's FAC at ¶ 41.) Amerivet also alleges that RPI twice defamed it on September 17, 2023. The request is relevant to Amerivet's defamation claim. First, Amerivet alleges that RPI defamed it by sending another email that CC'd the DVBE advocate that made several statements, including that Amerivet defrauded RPI/ Peacock and that Amerivet was representing RPI's generators as its own to gain an unfair business advantage. (See, id. at ¶ 42.) As such, whether these statements were defamatory is disputed, and documents that show that Amerivet obtained contracts with this governmental entity is necessary to prove or disprove its alleged damages.

REQUEST FOR PRODUCTION NO. 67 All DOCUMENTS reflecting contracts from DGS that you received subsequent to September 14, 2021.

Same analysis as above.

Sanctions The Court orders sanctions in the amount of $2000 payable by Amerivet to RPI within 20 days of notice of this order.

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