Judge Kerry Bensinger, Case Number: 22STCV22459, Date: 2024-01-02 Tentative Ruling

MOTION TO COMPEL DEFENDANT JOHANN PEETERS TO PROVIDE FURTHER RESPONSES TO THE SPECIAL INTERROGATORIES, SET TWO

MOTION TO COMPEL DEFENDANT JOHANN PEETERS TO PROVIDE FURTHER RESPONSES TO THE REQUEST FOR PRODUCTION OF DOCUMENTS, SET TWO

MOTION TO COMPEL DEFENDANT J.P. MONEY TAX GROUP, INC. TO PROVIDE FURTHER RESPONSES TO THE SPECIAL INTERROGATORIES, SET TWO

MOTION TO COMPEL DEFENDANT J.P. MONEY TAX GROUP, INC. TO PROVIDE FURTHER RESPONSES TO THE REQUEST FOR PRODUCTION OF DOCUMENTS, SET TWO

On July 12, 2022, Plaintiff, German Pantoja Reyes, filed a Complaint against Defendants, Johann Peeters (“Peeters”) and J.P. Money Tax Group, Inc. (“J.P. Money”), alleging causes of action for (1) Violation of the Tax Preparation Act (Bus. & Prof. Code §§ 22250 et seq.), (2) Fraud, (3) Violation of Penal Code § 496, and (4) Unfair Competition.

On December 5, 2023, Plaintiff filed these motions to compel Peeters’s and J.P. Money’s further responses to Special Interrogatories, Set Two, and Request for Production of Documents, Set Two. Plaintiff requests sanctions against Peeters, J.P. Money, and their counsel of record.

Under Code of Civil Procedure sections 2030.300 and 2031.310, parties may move for a further response to interrogatories and requests for production of documents where an answer to the requests are evasive or incomplete or where an objection is without merit or too general.¿ A motion to compel further response to requests for production “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.”¿ (Code Civ. Proc., § 2031.310, subd. (b)(1).)¿¿¿

Notice of the motions must be given within 45 days of service of the verified response, otherwise, the propounding party waives any right to compel a further response.¿ (Code Civ. Proc., §§ 2030.300, subd. (c); 2031.310, subd. (c).)¿ The motions must also be accompanied by a meet and confer declaration.¿ (Code Civ. Proc., §§ 2030.300, subd. (b)(1); 2031.310, subd. (b)(2).)¿¿¿

Finally, Cal. Rules of Court, Rule 3.1345 requires that all motions or responses involving further discovery contain a separate statement with the text of each request, the response, and a statement of factual and legal reasons for compelling further responses.¿ (Cal. Rules of Court, rule 3.1345(a)(3).)¿¿

Code of Civil Procedure section 2023.030 is a general statute authorizing the Court to impose discovery sanctions for “misuse of the discovery process,” which includes (without limitation) a variety of conduct such as: making, without substantial justification, an unmeritorious objection to discovery; making an evasive response to discovery; and unsuccessfully and without substantial justification making or opposing a motion to compel or limit discovery.¿ (Code Civ. Proc., § 2023.010.)¿¿

If sanctions are sought, Code of Civil Procedure section 2023.040 requires that the notice specify the identity of the person against whom sanctions are sought and the type of sanction requested, that the motion be supported in the points and authorities, and the facts be set forth in a declaration supporting the amount of any monetary sanction.¿¿¿¿

“If a motion under [Code of Civil Procedure section 2025.450] subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”¿ (Code Civ. Proc., § 2025.450, subd. (g)(1).)¿¿¿¿

Sanctions against counsel:¿ The court in Kwan Software Engineering, Inc. v. Hennings (2020) 58 Cal.App.5th 57, 81 (Hennings) noted that discovery sanctions against an attorney are governed by a different standard than sanctions against a party:¿¿¿¿¿

By the terms of the statute, a trial court under section 2023.030(a) may not impose monetary sanctions against a party’s attorney unless the court finds that the attorney “advised” the party to engage in the conduct resulting in sanctions. (§ 2023.030(a); Ghanooni v. Super Shuttle (1993) 20 Cal.App.4th 256, 261, 24 Cal.Rptr.2d 501.)¿ “Unlike monetary sanctions against a party, which are based on the party's misuse of the discovery process, monetary sanctions against the party's attorney require a finding the ‘attorney advis[ed] that conduct.’ ” (Ibid.) “It is not enough that the attorney's actions were in some way improper.” (Corns v. Miller (1986) 181 Cal.App.3d 195, 200, 226 Cal.Rptr. 247 (Corns).) Because an attorney's advice to a client is “peculiarly within [his or her] knowledge,” the attorney has the burden of showing that he or she did not counsel discovery abuse. (Ibid.) Accordingly, when a party seeking sanctions against an attorney offers sufficient evidence of a misuse of the discovery process, the burden shifts to the attorney to demonstrate that he or she did not recommend that conduct. (Id. at pp. 200–201, 226 Cal.Rptr. 247; Ghanooni, at p. 262, 24 Cal.Rptr.2d 501.)¿

Unless notice of the motion is given within 45 days of the service of the verified response, or any supplemental verified response, or any specific later date to which the requesting party and the responding party have agreed in writing, the requesting party waives any right to compel further response to the interrogatory, demand for inspection, or request for admission.¿ (Code Civ. Proc., §§ 2030.290, subd. (c), 2031.290, subd. (c).)¿ Here, Peeters and J.P. Money served objection-only responses to the at issue discovery requests. There is no dispute over the timeliness of these motions. Accordingly, the court finds the motions are timely.¿ The court further finds that the Informal Discovery Conference (IDC) requirement and meet and confer requirement have been satisfied.

Plaintiff seeks a further response from Peeters and J.P. Money (hereafter, “Defendants”) to Special Interrogatory (“SROG”), Set Two, Nos. 4-14. As Defendants asserted the same objections to each interrogatory, the court addresses Defendants’ responses together.

SROG Nos. 4-14 each seek contact information of Defendants’ customers from 2013 to 2023.

“Responding Party objects to this Interrogatory on the grounds that it is vague and ambiguous. Responding Party further objects to this Interrogatory on the grounds that it is overbroad as to time and scope. Responding Party further objects to this Interrogatory on the grounds that it seeks information that is neither relevant to the subject matter of this action nor reasonably calculated to lead to the discovery of admissible evidence. Responding Party further objects to this Request on the grounds that it seeks confidential information without the specific consent of the clients. (See Cal. Bus. & Prof. Code § 22252.1; See also AICPA Rule 301.)”

Defendants’ principal point of contention is that Plaintiff does not have standing to bring a representative action under Business and Professions Code section 22257. Plaintiff argues to the contrary. However, as alleged in the Complaint, Plaintiff brings this action in his individual capacity. There is no indication this case (at this time) is a class action lawsuit with Plaintiff serving as a representative of a class of individuals. Therefore, the court finds Nos. 4-14 do not seek any information that is relevant to the prosecution of Plaintiff’s individual claims. Specifically, the customers to whom Defendants provided services have no bearing on Defendants’ alleged violations in providing tax services to Plaintiff. The objections have merit. A further response is not warranted.

Plaintiff seeks a further response to Request for Production of Documents (“RPD”), Set Two, Nos. 11-54. [1] As Defendants asserted the same objection to the same production requests, the court addresses Defendants’ responses together.

Plaintiff classifies the productions requests into four categories: Nos. 11-21; Nos. 22-32; Nos. 33-43; and Nos. 44-54.

Nos. 11-21 seek written contracts between Defendants and their customers from 2013 to 2023.

Responding Party objects to this Request on the grounds that the undefined term “customer” is vague and ambiguous. Responding Party further objects to this Request on the grounds that it seeks documents that are neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. Responding Party further objects to this Request on the grounds that it seeks confidential information without the specific consent of the clients. (See Cal. Bus. & Prof. Code § 22252.1; See also AICPA Rule 301.)

For the same reasons stated above, Defendant’s objections have merit. A further response is not warranted.

Nos. 22-32 seek evidence of Defendants’ compliance with the bonding requirements of Business & Professions Code section 22250.1, including the bond number provided to each customer Defendants provided services to, from 2013 to 2023.

Nos. 33-43 seek copies of the written notices of the California Tax Education Council’s (CTEC) web address that Defendants provided to each of their customers from 2013 to 2023.

Nos. 44-45 seeks copies of the completely redacted return documents that Defendants prepared for their customers from 2013 to 2023.

In response to Nos. 33-43 and Nos. 44-54, Defendants asserted the following similar objection:

Responding Party objects to this Request on the grounds that it is overbroad and seeks documents that are neither relevant nor reasonably calculated to lead to the discovery of admissible evidence because this is not a representative action, requests information during a time period where no services may have been provided to Propounding Party, and improperly assumes the scope of the services that Responding Party agreed to provide to Propounding Party. Responding Party further objects to this Request on the grounds that it seeks confidential information without the specific consent of the clients. (See Cal. Bus. & Prof. Code § 22252.1; See also AICPA Rule 301.)

As discussed above, Defendants’ compliance with bonding requirements, written notices of the CTEC’s web address, and the tax return documents as they pertain to other customers are not relevant to Plaintiff’s individual claims. Plaintiff’s only ground for seeking this information is his insistence that he has standing to bring a representative action under Business and Professions Code section 22257. That may be true. But Plaintiff’s theory has yet to be tested because this case as pleaded involves a single defendant. Defendants’ objections have merit. A further response is not warranted.

Plaintiff requests sanctions against Peeters, J.P. Money, and their counsel of record. Given that the court has found further responses are not warranted to the at-issue discovery requests, there is no basis to impose sanctions.

Based on the foregoing, the motions are DENIED. The request for sanctions is DENIED.

Kerry Bensinger

Judge of the Superior Court

[1] The court is under the impression the requests for production of documents called for herein do not involve the Plaintiff individually as that information has already been disclosed. However, if this impression is incorrect, then with respect to the request for production of documents as they relate to the Plaintiff individually, the motions to compel is granted.