Judge: Melvin D. Sandvig, Case: 21CHCV00349, Date: 2023-01-03 Tentative Ruling
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Case Number: 21CHCV00349 Hearing Date: January 3, 2023 Dept: F47
Dept. F47
Date: 1/3/23
Case #21CHCV00349
MOTION TO
COMPEL FURTHER RESPONSES
(Requests for
Admissions, Set 1)
Motion filed on 12/5/22.
MOVING PARTY: Plaintiff Vaping360
GMBH
RESPONDING PARTY: Defendant
Newhere Inc. dba CBDFX.COM aka Newhere Products aka Newhere Brands
NOTICE: ok
RULING: The motion is granted. Further responses are due and sanctions are
payable within 20 days.
This action arises out of the alleged breach of a contract
between Plaintiff VAPING360 GMBH (Plaintiff) and Defendant NEWHERE, INC. D/B/A
CBDFX.COM, A/K/A NEWHERE PRODUCTS, A/K/A NEWHERE BRANDS (Defendant) for use of
Plaintiff’s website hyperlinks to promote and sell Defendant’s products. Plaintiff contends that the contract
stipulated that Plaintiff would receive commission based on the use of the
hyperlinks from Plaintiff’s website to Defendant’s website to purchase
Defendant’s products.
On 8/15/22, Plaintiff served Defendant with Request for
Admission, Set 1, by mail. (Ross Decl.
¶3). After an extension to respond,
Defendant served responses on 10/3/22.
(Ross Decl. ¶4). Plaintiff found
responses to certain of the requests to be deficient. Despite meet and confer efforts, the parties
were unable to resolve this discovery dispute.
(Ross Decl. ¶¶5-7). During the
meet and confer process, the parties agreed to extend the time to bring a
motion to compel further responses to 12/5/22.
(Ross Decl. ¶8).
On 12/5/22, Plaintiff filed and served the instant motion
seeking an order compelling Defendant to
provide further responses to Plaintiff’s Requests for Admissions, Set 1,
numbers 18, 20, 23, 25, 28 and 30.
Additionally, Plaintiff requests sanctions against Defendant and/or its
attorney of record in the amount of $1,935.00.
Defendant has opposed the motion.
The opposition contends that Defendant served further
responses on 11/7/22, before this motion was filed, and again on 12/8/22, after
this motion was filed. (See Liu
Decl. ¶¶6-7). However, Defendant does
not attach the further responses purportedly served on 11/7/22, they are not
set forth in Defendant’s responsive separate statement and Plaintiff makes no
mention of receiving such further responses in the motion or reply.
Contrary to Defendant’s assertion, the service of further
responses served on 12/8/22 does not render the motion moot. Such further responses are not verified;
therefore, they are the equivalent to no response. See Appleton (1988) 206 CA3d
632, 635-636 ; (Liu Decl. ¶7, Ex.A).
Even if the further responses served on 12/8/22 had been
verified, they are deficient as to the Requests for Admissions at issue. These further responses still include the
meritless objections originally made in response to the requests. Defendant has failed to show that the
requests are vague, ambiguous,
oppressive and/or burdensome. If
Defendant believes that the requests assume facts not in evidence and/or which
are not true, Defendant has the option to deny the requests. Defendant’s further responses to the subject
requests are incomplete and evasive as they appear to admit the requests while
including a confusing qualification.
Plaintiff is entitled to responses which are as complete and
straightforward as the information reasonably available to Defendant
permits. CCP 2033.220(a).
Plaintiff is entitled to sanctions against Defendant and
Defendant’s attorney of record for their failure to comply with their discovery
obligations. CCP 2023.010(e), (f), (h);
CCP2023.030(a); CCP 2033.290(d). The Court
finds the $1,935.00 requested by Plaintiff to be reasonable for the 5 hours
spent in relation to the motion at $375/hour plus the $60 filing fee. (See Ross Decl. ¶11).
If any of Defendant’s further responses to the subject
Requests for Admissions are not unqualified admissions, Defendant is also
ordered to serve further responses to Form Interrogatory 17.1 in relation to
such requests.
Date: 1/3/23
Case #21CHCV00349
MOTION TO
COMPEL FURTHER RESPONSES
(Requests for
Production of Documents, Set 1)
Motion filed on 12/5/22.
MOVING PARTY: Plaintiff Vaping360
GMBH
RESPONDING PARTY: Defendant
Newhere Inc. dba CBDFX.COM aka Newhere Products aka Newhere Brands
NOTICE: ok
RELIEF REQUESTED: An order
compelling Defendant Newhere Inc. dba CBDFX.COM aka Newhere Products aka
Newhere Brands to provide further responses to Plaintiff Vaping360 GMBH’s Requests for
Production of Documents, Set 1, numbers 10, 11, 12, 13, 14, 15, 16, 17, 18, 19,
20, 21, 22, 23, 24, 25 and 26.
Additionally, Plaintiff requests sanctions against Defendant and/or its
attorney of record in the amount of $2,310.00.
RULING: The motion is granted at to Requests for
Production of Documents, numbers 16-20 and 26 and denied as to Requests for
Production of Documents, numbers 10-15 and 21-25. Further responses are due within 20 days. Sanctions are denied.
This action arises out of the alleged breach of a contract
between Plaintiff VAPING360 GMBH (Plaintiff) and Defendant NEWHERE, INC. D/B/A
CBDFX.COM, A/K/A NEWHERE PRODUCTS, A/K/A NEWHERE BRANDS (Defendant) for use of
Plaintiff’s website hyperlinks to promote and sell Defendant’s products. Plaintiff contends that the contract
stipulated that Plaintiff would receive commission based on the use of the
hyperlinks from Plaintiff’s website to Defendant’s website to purchase
Defendant’s products.
On 8/15/22, Plaintiff served Defendant with Requests for
Production of Documents, Set 1, by mail.
(Ross Decl. ¶3). After an
extension to respond, Defendant served responses on 10/3/22. (Ross Decl. ¶4). Plaintiff found responses to certain of the requests
to be deficient. Despite meet and confer
efforts, the parties were unable to resolve this discovery dispute. (Ross Decl. ¶¶5-7). During the meet and confer process, the
parties agreed to extend the time to bring a motion to compel further responses
to 12/5/22. (Ross Decl. ¶8).
On 12/5/22, Plaintiff filed and served the instant motion
seeking an order compelling Defendant to
provide further responses to Plaintiff’s Requests for Production of Documents,
Set 1, numbers 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25
and 26. Additionally, Plaintiff requests
sanctions against Defendant and/or its attorney of record in the amount of
$2,310.00. Defendant has opposed the
motion.
The opposition contends that Defendant served further
responses on 11/7/22, before this motion was filed, and again on 12/8/22 as to requests
16-20 and 26, after this motion was filed.
(See Liu Decl. ¶¶6-7).
However, Defendant does not attach the further responses purportedly
served on 11/7/22, they are not set forth in Defendant’s responsive separate
statement and Plaintiff makes no mention of receiving such further responses in
the motion or reply.
Contrary to Defendant’s assertion, the service of further
responses served on 12/8/22 does not render the motion moot as to Requests
16-20 and 26. Such further responses are
not verified; therefore, they are the equivalent to no response. See Appleton (1988) 206 CA3d
632, 635-636; (Liu Decl. ¶7, Ex.A).
Even if the further responses served on 12/8/22 had been
verified, they are deficient as to Requests 16-20 and 26 because these further
responses still include the meritless objections originally made in response to
the requests. Defendant has failed to show
that these requests are vague, ambiguous, overbroad, uncertain, unintelligible,
unduly burdensome, oppressive, harassing and/or argumentative. As such, Plaintiff is entitled to further
verified responses without objection as to Requests 16-20 and 26. See CCP 2031.310(a)(3).
The Court finds Defendant’s objections (based on
overbreadth, undue burden, harassment, oppression)
to Requests 10-15 and 21-25 to have merit.
The requests ask Defendant to produce all documents showing Defendant’s
gross revenue for the years 2017 (Request 10), 2018 (Request 11), 2019 (Request
12), 2020 (Request 13), 2021 (Request 14) and 2022 (Request 15) and Defendant’s
gross revenue from wholesale customers for the years 2018 (Request 21), 2019
(Request 22), 2020 (Request 23), 2021 (Request 24) and 2022 (Request 25).
As noted by Plaintiff in its argument in relation to the
foregoing requests “[t]his action is based on breach of contract in which
Plaintiff contends that Defendant failed to perform under the contract by
failing to pay Plaintiff pursuant to the commission structure based on the
costumers using Plaintiff’s hyperlinks to purchase Defendant’s products.”
(emphasis added) (See Plaintiff’s Separate Statement “Reasons Warranting
Further Response To Request[s]” 10-15 and 21-25). As such, documents showing Defendant’s gross
revenue from customers who clicked hyperlinks on Plaintiff’s website to arrive
at Defendant’s online retail platform are relevant to Plaintiff’s claims in
this action. Such information is sought
in Requests 16-20 and 26 to which further responses are being ordered. Plaintiff has failed to establish that it is
entitled to any other documentation
regarding Defendant’s gross revenue for the subject years.
Since the motion is denied as to 11 of the 17 requests at
issue, the Court finds that the imposition of sanctions on Defendant and/or its
attorney of record would be unjust. CCP
2031.310(h).
Date: 1/3/23
Case #21CHCV00349
MOTION TO
COMPEL FURTHER RESPONSES
(Special
Interrogatories, Set 1)
Motion filed on 12/5/22.
MOVING PARTY: Plaintiff Vaping360
GMBH
RESPONDING PARTY: Defendant
Newhere Inc. dba CBDFX.COM aka Newhere Products aka Newhere Brands
NOTICE: ok
RULING: The motion is granted at to Special
Interrogatories 4, 5, 6, 7 and 8 and denied as to Special Interrogatories 9 and
10. Further responses are due and
sanctions are payable within 20 days.
This action arises out of the alleged breach of a contract
between Plaintiff VAPING360 GMBH (Plaintiff) and Defendant NEWHERE, INC. D/B/A
CBDFX.COM, A/K/A NEWHERE PRODUCTS, A/K/A NEWHERE BRANDS (Defendant) for use of
Plaintiff’s website hyperlinks to promote and sell Defendant’s products. Plaintiff contends that the contract
stipulated that Plaintiff would receive commission based on the use of the
hyperlinks from Plaintiff’s website to Defendant’s website to purchase
Defendant’s products.
On 8/15/22, Plaintiff served Defendant with Special
Interrogatories, Set 1, by mail. (Ross
Decl. ¶3). After an extension to
respond, Defendant served responses on 10/3/22.
(Ross Decl. ¶4). Plaintiff found
responses to certain of the interrogatories to be deficient. Despite meet and confer efforts, the parties
were unable to resolve this discovery dispute.
(Ross Decl. ¶¶5-7). During the
meet and confer process, the parties agreed to extend the time to bring a
motion to compel further responses to 12/5/22.
(Ross Decl. ¶8).
On 12/5/22, Plaintiff filed and served the instant motion
seeking an order compelling Defendant to
provide further responses to Plaintiff’s Special Interrogatories, Set 1,
numbers 4, 5, 6, 7, 8, 9, 10.
Additionally, Plaintiff requests sanctions against Defendant and/or its
attorney of record in the amount of $1,935.00.
Defendant has opposed the motion.
The opposition contends that Defendant served further
responses on 11/7/22, before this motion was filed, and again on 12/8/22 as to
special interrogatories 4 through 8, after this motion was filed. (See Liu Decl. ¶¶6-7). However, Defendant does not attach the
further responses purportedly served on 11/7/22, they are not set forth in
Defendant’s responsive separate statement and Plaintiff makes no mention of
receiving such further responses in the motion or reply.
Contrary to Defendant’s assertion, the service of further
responses served on 12/8/22 does not render the motion moot as to Special
Interrogatories 4 through 8. Such
further responses are not verified; therefore, they are the equivalent to no
response. See Appleton
(1988) 206 CA3d 632, 635-636 ; (Liu
Decl. ¶7, Ex.A).
Even if the further responses served on 12/8/22 had been
verified, they are deficient as to Special Interrogatories 4 through 8 because
these further responses still include the meritless objections originally made
in response to the interrogatories. Defendant
has failed to show that these special interrogatories are vague, ambiguous, overbroad,
uncertain, unintelligible and/or argumentative.
As such, Plaintiff is entitled to further verified responses without
objection as ti Special Interrogatories 4, 5, 6, 7 and 8. See CCP 2030.300(a)(3).
The Court finds Defendant’s objections (based on
overbreadth, undue burden, harassment, oppression, invasion of privacy rights
of third parties, trade secrets) to Special Interrogatories 9 and 10 to have
merit. The interrogatories ask Defendant
to identify all third parties with whom Defendant had any type of revenue
sharing agreement at any time between January 2017 and present (Special
Interrogatory 9) and to list all amounts paid to any third party under any revenue
sharing agreement by party and year from January 2017 to the present (Special
Interrogatory 10). Plaintiff has failed
to show why such information is relevant to the issues in this case which
concerns a contract between Plaintiff and Defendant, not any third
parties.
Plaintiff is entitled to sanctions against Defendant and
Defendant’s attorney of record for their failure to comply with their discovery
obligations. CCP 2023.010(e), (f), (h);
CCP 2023.030(a); CCP 2030.300(d). The
Court finds the $1,935.00 requested by Plaintiff to be excessive since
Plaintiff was not entirely successful on the motion. Therefore, the Court awards Plaintiff
$1,560.00 in sanctions for 4 hours spent in relation to the motion at $375/hour
plus the $60 filing fee. (See
Ross Decl. ¶11).