Judge: Mark A. Young, Case: 20SMCV00486, Date: 2023-08-04 Tentative Ruling
Case Number: 20SMCV00486 Hearing Date: January 5, 2024 Dept: M
CASE NAME: Liu, v. JCTLA
Investment Corp., et al.
CASE NO.: 20SMCV00486
MOTION: Motion
to Compel Further Responses
HEARING DATE: 1/5/2024
Legal
Standard
In
the absence of contrary court order, a civil litigant’s right to discovery is
broad. “[A]ny party may obtain discovery regarding any matter, not privileged,
that is relevant to the subject matter involved in the pending action . . . if
the matter either is itself admissible in evidence or appears reasonably
calculated to lead to the discovery of admissible evidence.” (CCP § 2017.010;
see Davies v. Superior Court
(1984) 36 Cal.3d 291, 301.) “For discovery purposes, information is relevant if
it ‘might reasonably assist a party in evaluating the case, preparing for
trial, or facilitating settlement.’ [Citation] Admissibility is not the test
and information, unless privileged, is discoverable if it might reasonably lead
to admissible evidence. [Citation] These rules are applied liberally in favor
of discovery.” (Gonzales v. Superior Court (1995) 33 Cal.App.4th 1539,
1546.)
A motion to compel further responses to form (FI) or
specially prepared interrogatories (SI) may be brought if the responses
contain: (1) answers that are evasive or incomplete; (2) an unwarranted or
insufficiently specific exercise of an option to produce documents in lieu of a
substantive response; or (3) unmerited or overly generalized objections.
(CCP § 2030.300(a).)
A motion to compel further responses
to a demand for inspection or production of documents (RPD) may be brought
based on: (1) incomplete statements of compliance; (2) inadequate, evasive or incomplete
claims of inability to comply; or (3) unmerited or overly generalized
objections. (CCP§ 2031.310(c).) A motion to compel
further responses to requests for production “shall set forth specific facts
showing good cause justifying the discovery sought by the inspection demand.”
(CCP. § 2031.310(b)(1).) “To establish ‘good cause,’ the burden is on the
moving party to show both: [¶] Relevance to the subject matter (e.g., how the
information in the documents would tend to prove or disprove some issue in the
case); and [¶] Specific facts justifying discovery (e.g., why such information
is necessary for trial preparation or to prevent surprise at trial.)
[Citations.] [¶] The fact that there is no alternative source for the
information sought is an important factor in establishing ‘good cause’ for
inspection. But it is not essential in every case.” (Edmon & Karnow,
California Practice Guide: Civ. Proc. Before Trial (The Rutter Group 2017) ¶
8:1495.6.)
A motion to compel further must be
noticed within 45 days of the
service of a response, or any supplemental response, or on or before any
specific later date to which the propounding party and the responding party
have agreed in writing. Otherwise, the propounding party waives any right
to compel further response to the inspection demand. (See, e.g., CCP §
2031.310(c).)
Motions to compel further responses
must always be accompanied by a meet-and confer-declaration (per CCP §
2016.040) demonstrating a “reasonable and good faith attempt an informal
resolution of each issue presented by the motion.” (CCP §§ 2030.300(b),
2031.310(b)(2), 2033.290(b).) They must also be accompanied by a separate
statement containing the requests and the responses, verbatim, as well as
reasons why a further response is warranted. (CRC, rule 3.1345(a).) The
separate statement must also be complete in itself; no extrinsic materials may
be incorporated by reference. (CRC rule 3.1345(c).)
If a timely motion to compel has
been filed, the¿burden is on the responding party¿to justify any objection or
failure fully to answer.¿(Coy v. Superior Court (1962) 58 Cal.2d 210,
220–221 [addressing a motion to compel further responses to interrogatories];
see also¿Fairmont Ins. Co. v. Superior Court¿(2000) 22 Cal.4th 245,
255.)
Analysis
Plaintiff Justin Liu moves to
compel further responses from Defendant JCTLA as to 1) Special Interrogatories,
Set Two, Nos. 217, 223, 226, 229, 232, 235, 238, 240, 241, 243, 244, 247, 249,
250, 253, 255, 256, 262, 265, 271, 274, 277, 279, 280, 282, 283, 286, 291, 294,
295, 297, 298, and 301; and 2) Requests for Production of Documents, Set Three,
Nos. 13-17,
SROGs, Set Two
JCTLA asserts procedural challenges
to the SROG motion. First, JCTLA objects to the notice of motion, observing that
Plaintiff cited the incorrect CCP section in the notice. Instead of citing CCP section
2030 et seq., the notice of motion cites section 2031.310(a)(3)
(relating to RFAs) and 2023.030 (relating to discovery sanctions generally).
However, JCTLA has waived any error in the notice by substantively responding. Clearly,
the error in the notice did not meaningfully prejudice JCTLA. Therefore, the Court
will overlook this technical error. JCTLA
also objects to the separate statement, arguing that it does not reflect the
interrogatories served. However, the separate statement is consistent
with the Special Interrogatories, set two, proffered by JCTLA. (See Gentino
Decl., Ex. 1.)
As to the merits, the Court concurs
that further supplemental responses are required. On September 27, 2023, JCTLA
served the operative responses to Plaintiff’s SROG, set two. (Gentino Decl.,
Ex. 2.) Each of the above-noted SROGs at issue required JCTLA to either state
all facts that support its contentions in this action, or identify all
documents that evidence those contentions. JCTLA provided two types of
boilerplate and evasive supplemental responses which rely on improper qualifying
language and which state matters on information and belief. The improper
responses are typified by SROG no. 217 and 240.
INTERROGATORY NO. 217: Identify all
DOCUMENTS that evidence or support YOUR contention in paragraph 5 of YOUR
CROSS-COMPLAINT that JUSTIN LIU was in exclusive possession of those accounting
books and tenant ledgers.
SUPPLEMENTAL RESPONSE TO
INTERROGATORY NO. 217: Accounting books and tenant ledgers, if existing, in
Justin Liu’s possession.
No. 217 and the other substantially
identical responses provide for conditional language that is not code compliant.
JCTLA must provide “as complete and straightforward” of an answer as to what
documents exist supporting their contentions. (See CCP § 2030.220.) A full and
complete response would state whether or not the documents actually exist, or
that
JCTLA lacks sufficient knowledge despite a reasonable and
good faith inquiry and a description
of what reasonably and good faith efforts were made. JCTLA’s
supplemental response use of the qualifying phrase “if existing” does neither. Additionally,
while some responses to this SROGs also include references to “Deed to the
Property” and an “Affidavit dated April 6, 2010 in Green & McCahill v.
JCTLA #22SMCV02817”, these additions do not materially affect the analysis. (See
SROGs nos. 226, 232, 235.)
INTERROGATORY NO. 240: State all
facts that evidence or support YOUR contention in paragraph 14 of YOUR
CROSS-COMPLAINT that as a consequence of Cross-Defendants' breach of their
fiduciary duties, Cross-Complainant has been damaged in an amount not less than
$800,000.00.
SUPPLEMENTAL RESPONSE TO
INTERROGATORY NO. 240: On information and belief, Justin Liu has converted rent
money belonging to JCTLA in an estimated amount of $800,000.
This response is evasive because it
is made “on information and belief” and therefore provides no foundation and
avoids the required verification of facts.
Accordingly, the motion to compel
further is GRANTED.
RPDs Set Three
RPD nos. 13-17 sought production of
shareholder and board of directors’ meeting agendas, minutes, and resolutions
during the relevant time period. JCTLA served unverified responses which state
that documents will be produced in response to only three of the requests.
Otherwise, JCTLA only provided a bare-bones relevancy objection. Additionally,
JCTLA has not produced responsive documents. On April 11, 2023, this Court held
an Informal Discovery Conference regarding a number of discovery items in
dispute, including RPD, set three. The Court ordered JCTLA to serve verified
supplemental responses to the RPDs. However, to date, JCTLA has not served any verified
supplemental responses to the RPDs. (Turner Decl., ¶¶ 9-12.) As such, the
responses remain deficient for the reasons discussed at the IDC. Further, the
motion is unopposed, and JCTLA thereby fails to justify their objections.
Accordingly, the motion to compel
further is GRANTED.
SANCTIONS
Sanctions are mandatory. The Court must
sanction any party that unsuccessfully makes or opposes a motion to compel a
further response, “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.” (See, e.g., CCP, § 2030.300(d).)
Here, sanctions are mandatory
because JCTLA does not provide substantial justification for their failure to
serve supplemental responses to the RPDs or for their evasive answers to the
SROGs.
Plaintiff requests $2,210 in
sanctions as to the RPDs and $4,015 in sanctions as to the SROGs. Plaintiff
evidences these sanctions with counsel’s declaration. The Court finds that the requested sanctions
are unreasonably high. The Court will therefore impose reasonable sanctions in
the amount of $1,335.00 as to the RPDs and $2,515.00 as to the SROGs. Sanctions
are therefore imposed in the reduced total amount of $3,850.00 against JCTLA
and its counsel of record, Gentino, Esq., and Law Office of Robert Gentino,
jointly and severally. Sanctions are to be paid within 30 days to Plaintiff’s
counsel.