Judge: Lee W. Tsao, Case: 21NWCV00299, Date: 2023-10-10 Tentative Ruling

Case Number: 21NWCV00299    Hearing Date: October 10, 2023    Dept: C

Culinary International, LLC v. C & F Foods, Inc.

CASE NO.:   21NWCV00299

HEARING:  10/10/23 @ 9:30 a.m.

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TENTATIVE ORDER 

Intervenor’s Protective Order is GRANTED.

Intervenor’s Request for Sanctions is DENIED.

Moving party(s) to give notice.  

Background

          On May 21, 2021, Plaintiff Culinary International, LLC. filed a Complaint against Defendant C & F Foods, Inc. alleging: (1) Breach of Contract; (2) Breach of Implied Warranty of Merchantability; (3) Breach of Implied Warranty of Fitness for a Particular Purpose; and (4) Negligent Interference with Prospective Economic Advantage.

          On July 29, 2022, this Court granted leave for Intervenor Zurich (“Intervenor” or “Zurich”), as insurer for Defendant C&F Foods, to file a Complaint in Intervention and Zurich filed its Complaint in Intervention, on the same day.

          On September 12, 2023, Intervenor filed the instant Motion for Protective Order on Discovery directed to Insolvent Insured C & F Foods.

 Analysis

a.             Meet and Confer 

The motion for a protective order must be accompanied by a meet and confer declaration. (CCP § 2030.090(a).) The parties’ meet and confer efforts must be a significant attempt at informal resolution of the dispute. (Stewart v. Colonial Western Agency, Inc.¿(2001) 87 Cal.App.4th 1006, 1016 (internal quotations and citations omitted); CCP § 2016.040.) This rule encourages “parties to work out their differences informally so as to avoid the necessity for a formal order....”¿¿(McElhaney v. Cessna Aircraft Co.¿(1982) 134 Cal.App.3d 285, 289.) And it lessens¿“the burden on the court and reduce[s] the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes.” (Townsend v. Superior Court¿(1998) 61 Cal.App.4th 1431, 1435.) The court has discretion in determining whether a significant attempt has been made. (Stewart, supra, 87 Cal.App.4th at 1016.) 

Here, Intervenor’s counsel demonstrates an attempt to meet and confer with Plaintiff prior to bringing this motion for a protective order. Therefore, Intervenor has complied with CCP § 2030.090(a).

b.             Protective over

“When interrogatories have been propounded, the responding party, and any other party or affected natural person or organization may promptly move for a protective order.” (C.C.P. § 2030.090(a).)

Motions to compel discovery responses must be directed to the party to whom the discovery was propounded, because only the “the party to whom the [interrogatories or requests] have been propounded” must respond to the discovery. (Code of Civ. Proc. §§2030.210; 2031.210; 2033.210.)

Here, Intervenor argues that Plaintiff has improperly directed discovery to Defendant C&F Foods, an insolvent corporation, then filed a motion to compel Intervenor to respond to that discovery.  Intervenor asserts it cannot adequately respond as it does not have enough information to answer the requests. Plaintiff has refused to withdraw the discovery. 

In Opposition, Plaintiff argues it is justified in compelling Intervenor to respond to discovery because Intervenor previously propounded discovery upon Plaintiff on behalf of Defendant C&F Foods.  Further, Plaintiff offers that Intervenor has not signed a declaration stating that it does not have responsive information, but rather offers that it is not authorized to accept service of discovery on behalf of Defendant C&F Foods.  Lastly, Plaintiff argues that Intervenor falls under the definition of “YOU” in the definition of the discovery requests, because the Intervenor is an entity purporting to act on Defendant C & F’s behalf by intervening in this lawsuit.

In Reply, Intervenor contends that they cannot be responsible for answering a motion to compel on another party. Intervenor states that as an insurance company it is merely present to protect the amount of its insurance policy from an unfair windfall. Further, Intervenor argues that a reasonable response would have been to serve discovery to Intervenor – or locate employees of C&F Foods who may have the information sought.

Here, the Form Interrogatories, Special Interrogatories, Request for Admissions, and Request for Production propounded by Plaintiff list the Responding Party as Defendant C&F Foods.  (Mot., Exhibits D, E, F, G.)  The Form Interrogatories propounded by Intervenor list the Asking Party as “C & F Foods, Inc.” (Opp., Exhibit A.) But C&F Foods is insolvent and has not filed any pleadings in this lawsuit.  Intervenor’s current counsel informed Plaintiff’s Counsel that Intervenor’s prior counsel mistakenly listed C&F Foods as the asking party on Intervenor’s propounded interrogatories. (Mot., Exhibit J.)  Intervenor’s current counsel asked Plaintiff’s counsel to direct its discovery to Zurich, rather than C & F Foods, but Plaintiff stated it had not decided whether to withdraw its motions. (Mot., Exhibit J.)

The burden of proof is generally on the party seeking the protective order to show¿good cause¿for whatever order is sought.¿¿(Fairmont Ins. Co. v. Superior Court¿(2000) 22 Cal.4th 245, 255.)¿¿The concept of good cause requires a showing of specific facts demonstrating undue burden, etc., and justifying the relief sought.¿¿(See¿Goodman v. Citizens Life & Casualty Ins. Co.¿(1967) 253 Cal.App.3d 807, 819.)

An intervenor becomes a party to the action. (See Code Civ. Proc., § 387, subd. (b); Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1183, fn. 6.) Despite the initial mistaken naming on the propounded discovery, Zurich is its own entity and thus the propounded discovery on C & F Foods is not directed to the party to whom the discovery was propounded. (Code of Civ. Proc. §§2030.210; 2031.210; 2033.210.)  Zurich informed Plaintiff of the mistake and how the parties were separate entities and yet, Plaintiff refused to propound new discovery on Zurich. (Dunkel Decl., ¶ 25, Exhibit J.) Therefore, Zurich does not have to respond to the discovery requests propounded on another entity and has good cause to request a protective order.

Therefore, Intervenor’s Motion for Protective Order is GRANTED.

c.             Sanctions

A court shall impose sanctions against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order, unless it 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. Pro. section 2030.090, subd. (d).) 

Here, Intervenor argues sanctions are warranted, because even after informing Plaintiff of the mistake in the initial propounded discovery, Plaintiff refused to remove the motions to compel discovery off calendar. 

However, Intervenor, regardless of whether it was through former counsel, was the cause of the previous mistake by propounding discovery and stating the requesting party was C & F Foods.  Plaintiff had reason to believe it had propounded discovery correctly, and it was within its right to await a court ruling before removing the motions from the calendar.

Therefore, Sanctions are Denied. 

Conclusion 

Intervenor’s Protective Order is GRANTED.

Intervenor’s Request for Sanctions is DENIED.