Judge: Martha K. Gooding, Case: 2019-01082926, Date: 2022-10-24 Tentative Ruling
1) Motion to Compel Further Responses to Form Interrogatories – Defendant Bright
2) Motion to Compel Further Responses to Form Interrogatories – Defendant Sabetian
3) Motion to Compel Further Responses to Document Requests – Defendant Bright
4) Motion to Compel Further Responses to Document Requests – Defendant Sabetian
Currently pending before the Court are four discovery motions brought by Plaintiff Hockenbergs Equipment and Supply Co., Inc. (“Plaintiff”) against Defendants Christopher Bright (“Bright”) and Amir Sabetian (“Sabetian”) (collectively, “Defendants”). They include two Motions to Compel Further Responses to Form Interrogatories (Set Two) – one against Bright and the other against Sabetian. There are also two Motions to Compel Production of Documents – one against Bright (on Set Three) and the other against Sabetian (on Set One).
Two other motions by Plaintiff against Defendants Bright and Sabetian – to compel Further Responses to Requests for Admission – were withdrawn by Plaintiff pursuant to Notices of Withdrawal filed with the Court.
MOTIONS TO COMPEL FURTHER RESPONSES BY DEFENDANT BRIGHT AND DEFENDANT SABETIAN TO FORM INTERROGATORIES
The two Motions by Plaintiff to compel further responses to the Form Interrogatories (Set Two) served on Defendant Bright and Defendant Sabetian are DENIED AS MOOT. The two Motions are substantively the same. Both seek to compel further responses to Form Interrogatory 17.1, as it relates to Requests for Admission Nos. 1-5 concerning the authenticity of various documents.
Defendants filed a joint opposition to these two motions (ROA 324), which indicates that amended responses to the form interrogatories at issue – one by Bright and another by Sabetian – were served concurrently with the Opposition and are attached to the Opposition. Defendants therefore argue the Motion is moot. Opp. at 2:21-24.
Defendants’ further responses to Form Rog 17.1 state that the documents referenced in the RFAs 1-4 appear to be copies of various agreements, but that the request “fails to specify which parties the agreement is between” for purposes of the RFA. In addition, with respect to RFA No. 5, each Defendant’s further responses to form Rog 17.1 (1) states that the document appears only to be a quote from Plaintiff, and not a contract, and that he did not sign it, so he cannot attest to its authenticity; (2) identifies himself and his attorney as witnesses; and (3) states “NA” with respect to subd. (d) regarding documents to support the response.
In its Reply, Plaintiff argues the further responses are incomplete and deficient. But Plaintiff did not include copies of the exhibits to the RFAs with the moving papers. Thus, the Court is unable to determine whether further responses are adequate based on the moving papers alone.
Accordingly, the Court finds that service of the further responses moots the Motions and denies both Motions on that basis. Plaintiff is free to meet and confer on the further responses and file any motions it deems necessary and appropriate regarding the new responses pursuant to the Code of Civil Procedure.
Finally, Plaintiff’s Notices of Motion on each motion seek awards of monetary sanctions as follows: (1) sanctions of $1,125 jointly and severally against Defendant Bright and his counsel Thomas Gruenbeck; and (2) sanctions of $1,125 jointly and severally against Defendant Sabetian and his counsel, Thomas Gruenbeck.
Because it took a motion to prompt each of the Defendants to serve their further responses, the Court concludes that sanctions are appropriate. However, given that the two motions are substantively identical, the Court concludes that the amounts sought are unreasonable.
The Court awards reasonable sanctions as follows: (1) $750 jointly and severally against Bright and his counsel, Thomas Gruenbeck; and (2) $750 jointly and severally against Sabetian and his counsel, Thomas Gruenback. Both sanctions are to be payable to Plaintiff and his counsel within 30 days.
MOTION TO COMPEL DEFENDANT BRIGHT TO PROVIDE FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS
Plaintiff moves for an order compelling Defendant Bright (“Bright”) to provide “full and complete further written responses” to Plaintiff’s Requests for Production of Documents, Set Three and produce documents. Plaintiff also seeks an award of sanctions of $1,125 against both Bright and his counsel, Thomas Gruenbeck.
Specifically at issue are nine document requests: Nos. 6, 7, 9, 10, 12, 13, 14, 15 and 16.
As an initial matter, the Court notes that two such motions were filed, ROA # 285 and ROA #289. They appear to be duplicative, so the Court addresses only the latter-filed document, ROA #289.
For the reasons set forth below, the Motion is GRANTED and sanctions are awarded jointly and severally against Plaintiff and his counsel, Thomas Gruenbeck, in the sum of $1,125, payable within 30 days.
For all nine requests at issue, Defendant Bright objected that they were “burdensome and oppressive.” Bright did not provide any facts in his opposition to support either of these objections. Accordingly, all of these objections are overruled.
For all nine requests at issue, Bright asserted an additional objection under Civil Code section 3295(c) that the requests exceeded the scope of permissible discovery. The Court finds the objections not well taken.
Under section 3295, pretrial discovery of a defendant's financial condition in connection with a claim for punitive damages is prohibited absent a court order permitting such discovery. (I-CA Enterprises, Inc. v. Palram Americas, Inc. (2015) 235 Cal.App.4th 257, 283.) But the only requests that actually seek financial data are Nos. 15 and 16. And those two discovery requests are not directed at Bright’s or Sabetian’s financials, but the entities’ financial data. Moreover, the information sought is relevant to the fraud and misrepresentation claims asserted in this action. Thus, the discovery does not contravene the statute.
Finally, even if the other seven document requests could reasonably be construed to request financial data, the section 3295 objection would fail as to them for the same reason.
Request No. 6 asks for “all agreements relating to [Bright’s] business relationship with ZPizza International from January 1, 2010 to the present.” In response, Bright asserted the following additional objection: “Same Request previously asked and timely objection served creating bar to asking the same question.”
In Opposition to the Motion, Bright argues that the Motion should be denied in its entirety (as to all nine requests) because Plaintiff is “demanding the same documents in a new Request for Production that requests the same documents as before” and therefore “Plaintiff is time barred and cannot make the same requests again.” Opposition at 2.
The Court notes that Plaintiff asserted this objection only in his response to Request No. 6. He did not object to any of the other eight Requests on this ground.
Even if, despite the lack of such objections, the Court could properly consider this issue as to all nine Requests at issue here, Bright has not sufficiently supported his argument.
The problem is that Bright did not actually identify which of the prior document requests he contends are the same as either Request No. 6 or any of the other requests at issue in this Motion. Bright simply attaches the earlier document requests and responses to his Opposition and, in effect, tells the Court to go figure it out for itself. That is not the Court’s obligation. Bright has not met his burden to show that any of the nine requests at issue on this Motion actually duplicate one or more of Plaintiff’s prior document requests.
For Request Nos. 12 and 13, 14, Bright asserted the objections the Court has found to be without merit – and then responded: “Documents in possession of Responding Party will be provided.” But this is not a Code-compliant response. If documents will be provided, Defendant must respond that he “will comply with the particular demand for inspection” either in whole or in part, and that “all documents or things in the demanded category that are in the possession, custody, or control of that party … will be included in the production.” (Code Civ. Proc., § 2031.210(a)(1)). A further response is required.
For Request Nos. 10, 12, 13, and 14, Defendant Bright asserted the following additional objection: “Documents previously provided to Plaintiff.” Plaintiff, however, states that Defendant has not produced anything since his early 2021 production. Defendant does not dispute this in opposition. The Court finds further responses are warranted.
In sum, the Motion is GRANTED as to all nine requests.
Defendant is ordered to serve further responses and produce documents to the extent such are in his possession, custody or control in compliance with Code Civ. Proc., Sections 2031.220 and/or 2031.230.
Sanctions are awarded against Defendant Bright and his counsel as set forth above.
Plaintiff is ordered to give notice.
MOTION TO COMPEL DEFENDANT SABETIAN TO PROVIDE FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS
Plaintiff’s motion to compel further responses to its requests for production of documents, set one, from Defendant Amir Sabetian (“Sabetian”) asserts that Sabetian’s responses to eight requests for production (“RFP”) – Nos. 6, 7, 9, 10, 13, 14, 15, and 16 – are “incomplete, deficient, [and] evasive.” Motion at 1:3-6.
Plaintiff did not previously propound Requests for Production of Documents on Defendant Sabetian.
Request No. 6 asks for agreements relating to Sabetian’s business relationship with ZPizza International from January 1, 2010 to the present.
Request No. 7 seek all agreements relating to Sabetian’s business relationship with ZBV, LLC from January 1, 2010 to the present. [same obejctions]
Request No. 9 seeks all agreement relating to Sabetian’s business relationship with Avita Pizza, LLC from January 1, 2010 to the present.[same objection]
In response to these three requests – 6, 7 and 9 – Defendant Sabetian asserted the same objections: he objected that each request is burdensome and oppressive and is outside the scope of discovery pursuant to Civil Code section 3295(c).
In opposition, Sabetian makes no effort to support his objections. He argues only that documents responsive to these requests were already produced on January 15, 2021. Plaintiff points out that whatever production was made on that date was “before the current fraud claims against the new defendants including Defendant Sabetian came to light.”
The Court finds Sabetian’s objections are without merit. Moreover, whatever documents may have been produced previously by other parties, Plaintiff is entitled to a verified, Code compliant response from this Defendant. Sabetian’s response is far from Code-compliant.
If documents will be provided, Defendant must respond that he “will comply with the particular demand for inspection” either in whole or in part, and that “all documents or things in the demanded category that are in the possession, custody, or control of that party … will be included in the production.” (Code Civ. Proc., § 2031.210, subd. (a)(1); Code Civ. Proc., § 2031.220.)
Conversely, a “representation of inability to comply with the particular demand for inspection … shall affirm that a diligent search and reasonable inquiry has been made in an effort to comply with that demand.” (Code of Civ. Proc., § 2031.230.) If such a statement of inability to comply is made, Defendant “shall also specify 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.” (Id.) Lastly, a statement of inability to comply also “shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.” (Id.)
Motion is GRANTED as to these Requests. Sabetian is ordered to provide a Code-compliant further response within 15 days.
For Request Nos. 10, 13, and 14, Sabetian asserted the same objections and added: “Documents in possession of Responding Party will be provided.”
For the same reasons set forth above, this is far from a Code-compliant response. Motion is GRANTED as to these Requests. Sabetian is ordered to provide a Code-compliant further response within 15 days.
Requests No. 15 and 16, respectively, ask for “all financial statements for Avita Pizza LLC from January 1, 2010 to the present” and “all bank statements for any bank accounts for Avita Pizza, LLC from January 1, 2010 to the present.”
Sabetian’s response to both requests is the same: he objects under Civil Code section 3295(c) and also objects that the requests are “burdensome and oppressive.”
Sabetian offers no factual showing in his Opposition to support his “burdensome and oppressive” objections. And the Court finds Civil Code § 3295(c) is not applicable under these circumstances. Pretrial discovery of a defendant's financial condition in connection with a claim for punitive damages is prohibited absent a court order permitting such discovery. (I-CA Enterprises, Inc. v. Palram Americas, Inc. (2015) 235 Cal.App.4th 257, 283.) Here, the discovery requests are not directed at Bright’s or Sabetian’s financials, but the entities’ – and the requested documents are relevant to the basic claims in this litigation relating to the fraud and misrepresentation claims. The discovery does not violate the statute as it is not made in connection with the punitive damages claim.
In sum, the motion directed to Defendant Sabetian is GRANTED in its entirety.
Plaintiff’s request for sanctions against Defendant and his attorney is GRANTED. (Code Civ. Proc., § 2031.310(h).) The Courts orders Defendant Sebatian and his counsel, Thomas Gruenbeck, jointly and severally, to pay Plaintiff and his counsel sanctions in the sum of $1,125.00 within 30 days.