Judge Melvin D. Sandvig, Case 22CHCV00327 2022-12-05 Tentative Ruling

Judge: Melvin D. Sandvig, Case: 22CHCV00327, Date: 2022-12-05 Tentative Ruling

Case Number: 22CHCV00327 Hearing Date: December 5, 2022 Dept: F47

Dept. F47

Date: 12/5/22 (originally scheduled for 12/1/22)

Case #22CHCV00327

MOTION TO COMPEL FURTHER RESPONSES

(Special Interrogatories, Set 1)

Motion filed on 8/29/22.

MOVING PARTY: Cross-Complainant William Vilches dba Prestige Builders

RESPONDING PARTY: Cross-Defendants Braa Holdings, LLC

NOTICE: ok

RELIEF REQUESTED: An order compelling Cross-Defendant Braa Holdings, LLC (Braa) to serve verified further responses, without objection, to Special Interrogatories, Set 1, numbers 1, 4, 5, 27, 28, 29, 30, 33, 34 and 35. Additionally, Cross-Complainant William Vilches dba Prestige Builders requests sanctions in the amount of $2,985.00 against Braa and its attorney, Areg Sarkissian, jointly and severally.

RULING: The motion is granted as set forth below. Further responses are due and sanctions are payable within 30 days.

This action arises out of an agreement allegedly entered between Cross-Complainant William Vilches dba Prestige Builders (Vilches or Cross-Complainant) and Cross-Defendants Braa Holdings, LLC (Braa), Areg Aghayants and Armik Aghayants (collectively, Cross-Defendants) whereby Cross-Complainant was to construct a pool for Cross-Defendants. Both Cross-Complainant and Cross-Defendants claim that the other breached the agreement. As a result, on 5/12/22, Cross-Defendant Braa Holdings, LLC, as plaintiff, filed the underlying complaint against Vilches as defendant for: (1) Negligent Misrepresentation, (2) Fraudulent Concealment, (3) Breach of Contract, (4) Unfair Business Practices in Violation of Business & Professions Code 17200, et seq., (5) Breach of the Implied Covenant of Good Faith and Fair Dealing and (6) Intentional Infliction of Emotional Distress. On 5/26/22, Vilches filed his original Cross-Complaint, and, on 5/27/22, he filed his original Answer. On 5/31/22, Vilches filed an Amended Answer and, on 6/3/22, he filed a First Amended Cross-Complaint alleging causes of action for: (1) Breach of Written Contract, (2) Quantum Meruit, (3) Foreclosure of Mechanic’s Lien, (4) Breach of Civil Code 1719, (5) Fraud, (6) Negligent Misrepresentation and (7) Open Book Account.

On 6/28/22, Vilches served, by email, Special Interrogatories, Set 1, on Braa. (Lavaee Decl. ¶2, Ex.A). On 7/27/22, Braa served its responses by email. (Id. ¶3, Ex.B). On 7/28/22, Vilches sent a meet and confer letter to Braa. (Id. ¶4, Ex.C). In response, on 8/3/22, Braa served its first supplemental responses which Vilches still found to be deficient. (Id. ¶5, Ex.D). On 8/9/22, Vilches sent another meet and confer letter. (Id. ¶6, Ex.E). In response, on 8/17/22, Vilches received Braa’s second supplemental responses which Vilches, again, found to be deficient. (Id. ¶7, Ex.F). On 8/18/22, Vilches requested a 30-day extension to meet and confer regarding the second supplemental responses which he found to be deficient because his counsel would be out of the country. (Id. ¶9, Ex.G). Braa responded by stating “you must follow the code” and refused to clarify whether the extension was granted or not. Id. As a result, on 8/29/22, Vilches filed and served the instant motion seeking an order compelling Braa to serve verified further responses, without objection, to Special Interrogatories, Set 1, numbers 1, 4, 5, 27, 28, 29, 30, 33, 34 and 35. Additionally, Vilches requests sanctions in the amount of $2,985.00 against Braa and its attorney, Areg Sarkissian, jointly and severally. (Id. ¶10). Braa has opposed the motion and requested sanctions against Vilches and his counsel, Michael Lavaee, in the amount of $3,000.00.

Braa’s Request for Judicial Notice is denied. Braa cites to “Evidence Code § 430 et seq.” in support of the request for judicial notice. (See Request for Judicial Notice, p.2:2-3). However, Evidence Code 430 does not exist. Presumably, Braa meant to cite to Evidence Code 450, et seq. However, Evidence Code 450, et seq. does not provide a basis to take judicial notice of the discovery responses and/or emails which are the subject of the request.

If a timely motion to compel further responses is filed, the responding party has the burden of justifying any objections or failure to fully respond to the interrogatories. See Coy (1962) 58 C2d 210, 220-221; Fairmont Insurance Co. (2000) 22 C4th 245, 255. Here, Braa, the responding party, fails to justify its objections and/or deficient responses to the subject special interrogatories. Instead, the opposition is based on Vilches purported failure to meet and confer before filing the instant motion. (See Opposition, generally). It is not clear if Braa’s responding separate statement is intended to be third supplemental responses or argument as to why the responses provided are sufficient. (See Braa’s Separate Statement). In either case, it fails to justify the objections and/or responses.

CCP 2030.300(b)(1) provides that “[a] motion [to compel further responses] shall be accompanied by a meet and confer declaration under Section 2016.040.” CCP 2016.040 provides that “[a] meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” The Court finds that Vilches adequately met and conferred before filing and serving the instant motion.

After receiving Braa’s initial and first supplemental responses to the Special Interrogatories, Vilche’s counsel sent meet and confer letters outlining the perceived deficiencies in the responses. (Lavaee Decl. ¶¶4, 6, Ex.C, E). After receiving Braa’s second supplemental responses, which Vilches still found to be deficient, his counsel sent a third meet and confer correspondence to Braa’s counsel stating that the responses were still deficient and requesting an extension to bring a motion so that the parties could further meet and confer. (Id. ¶9, Ex.G). Despite repeated requests for the extension, with the explanation that Vilches’ counsel would be out of the country for most of the 45-day period within which a motion to compel must be filed and served, Braa’s counsel’s only response to the request for the extension was “You must follow the code.” Id. The Court finds that Vilches did, in fact, follow the code by meeting and conferring which resulted in the first and second supplemental responses and attempting to meet and confer by requesting an extension so that his counsel could continue with the meet and confer efforts after he returned from being out of the country. Due to Braa’s failure to grant the extension, Vilches had no reasonable choice but to file and serve the motion when he did (i.e., within the 45-day statutory period based on his counsel’s schedule). See CCP 2030.300(c).

Based on the foregoing, Braa is ordered to serve further responses to Special Interrogatories, Set 1, numbers 1, 4, 5, 27, 28, 29, 30, 33, 34 and 35. Additionally, sanctions are imposed against Braa and its attorney, Areg Sarkissian, jointly and severally, in the amount of $2,310.00 (4.5 hours of attorney time for preparation of the motion, review the opposition, prepare the reply and appear at the hearing at $500/hour + $60 filing fee). Further responses are due and sanctions are payable within 30 days.

The parties are, again, reminded to review the 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil. When e-filing documents, parties must comply with the “TECHNICAL REQUIREMENTS” which are set forth at page 4, line 4 through page 5, line 12 of the Court’s 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil. See also CRC 3.1110(f)(4). Despite being on notice of prior violations of these requirements, both Vilches and Braa have, again, failed to bookmark the declarations, exhibits and proofs of service attached to the motion, opposition and reply papers (notably, the opposition and reply were filed after prior violations were noted by the Court). (See 10/26/22 Minute Order, p.2; 11/4/22 Minute Order, p.3). Bookmarking is essential for judicial economy. Without bookmarks, the Court wastes time scrolling through hundreds of pages to find declarations, exhibits, etc. whereas properly bookmarked papers allow the Court to access the first page of each declaration and/or exhibit by clicking the bookmark to it.

Additionally, both of the separate statements filed in support of the motion and opposition fail to comply with the requirements of CRC 3.1345. Vilches separate statement fails to include “[t]he text of each response, answer or objection, and any further responses or answers.” CRC 3.1345(c)(2). Only one of the three responses provided by Braa is included. Braa’s responsive separate statement does not satisfy any of the requirements. See CRC 3.1345(c). As noted above, it is not clear if Braa’s separate statement is intended to be third supplemental responses or arguments as to why the responses are sufficient. Continued failure to comply with court orders and/or rules may result in matters being continued, placed off calendar, or denied; papers not being considered; and/or the imposition of sanctions.

Dept. F47

Date: 12/5/22 (originally scheduled for 12/2/22)

Case #22CHCV00327

MOTION TO COMPEL FURTHER RESPONSES

(Form Interrogatories, Set 1)

Motion filed on 8/29/22.

MOVING PARTY: Cross-Complainant William Vilches dba Prestige Builders

RESPONDING PARTY: Cross-Defendants Braa Holdings, LLC

NOTICE: ok

RELIEF REQUESTED: An order compelling Cross-Defendant Braa Holdings, LLC (Braa) to serve verified further responses, without objection, to Form Interrogatories, Set 1, numbers 304.1, 305.3 and 326.1. Additionally, Cross-Complainant William Vilches dba Prestige Builders requests sanctions in the amount of $2,335.00 against Braa and its attorney, Areg Sarkissian, jointly and severally.

RULING: The motion is granted as set forth below. Further responses are due and sanctions are payable within 30 days.

On 6/28/22, Vilches served, by email, Form Interrogatories, Set 1, on Braa. (Lavaee Decl. ¶2, Ex.A). On 7/27/22, Braa served its responses by email. (Id. ¶3, Ex.B). On 7/28/22, Vilches sent a meet and confer letter to Braa. (Id. ¶4, Ex.C). In response, on 8/3/22, Braa served its first supplemental responses which Vilches still found to be deficient. (Id. ¶5, Ex.D). On 8/9/22, Vilches sent another meet and confer letter. (Id. ¶6, Ex.E). In response, on 8/17/22, Vilches received Braa’s second supplemental responses which Vilches, again, found to be deficient. (Id. ¶7, Ex.F). On 8/18/22, Vilches requested a 30-day extension to meet and confer regarding the second supplemental responses which he found to be deficient because his counsel would be out of the country. (Id. ¶¶8-9, Ex.G). Braa responded by stating “you must follow the code” and refused to clarify whether the extension was granted or not. Id. As a result, on 8/29/22, Vilches filed and served the instant motion seeking an order compelling Braa to serve verified further responses, without objection, to Form Interrogatories, Set 1, numbers 304.1, 305.3 and 326.1. Additionally, Vilches requests sanctions in the amount of $2,335.00 against Braa and its attorney, Areg Sarkissian, jointly and severally. (Id. ¶¶11-12). Braa has opposed the motion and requested sanctions against Vilches and his counsel, Michael Lavaee, in the amount of $3,000.00.

If a timely motion to compel further responses is filed, the responding party has the burden of justifying any objections or failure to fully respond to the interrogatories. See Coy (1962) 58 C2d 210, 220-221; Fairmont Insurance Co. (2000) 22 C4th 245, 255. Here, Braa, the responding party, fails to justify its objections and/or deficient responses to the subject form interrogatories. Instead, the opposition is based on Vilches’ purported failure to meet and confer before filing the instant motion. (See Opposition, generally). It is not clear if Braa’s responding separate statement is intended to be third supplemental responses or argument as to why the responses provided are sufficient. (See Braa’s Separate Statement). In either case, it fails to justify the objections and/or responses.

After receiving Braa’s initial and first supplemental responses to the Form Interrogatories, Vilches’ counsel sent meet and confer letters outlining the perceived deficiencies in the responses. (Lavaee Decl. ¶¶4, 6, Ex.C, E). After receiving Braa’s second supplemental responses, which Vilches still found to be deficient, his counsel sent a third meet and confer correspondence to Braa’s counsel stating that the responses were still deficient and requesting an extension to bring a motion so that the parties could further meet and confer. (Id. ¶9, Ex.G). Despite repeated requests for the extension, with the explanation that Vilches’ counsel would be out of the country for most of the 45-day period within which a motion to compel must be filed and served, Braa’s counsel’s only response to the request for the extension was “You must follow the code.” Id. The Court finds that Vilches did, in fact, follow the code by meeting and conferring which resulted in the first and second supplemental responses and attempting to meet and confer by requesting an extension so that his counsel could continue with the meet and confer efforts after he returned from being out of the country. Due to Braa’s failure to grant the extension, Vilches had no reasonable alternative but to file and serve the motion when he did (i.e., within the 45-day statutory period based on his counsel’s schedule). See CCP 2030.300(c).

Based on the foregoing, Braa is ordered to serve further responses to Form Interrogatories, Set 1, numbers 304.1, 305.3 and 326.1. Additionally, sanctions are imposed against Braa and its attorney, Areg Sarkissian, jointly and severally, in the amount of $1,810.00 (3.5 hours of attorney time for preparation of the motion, review the opposition, prepare the reply and appear at the hearing at $500/hour + $60 filing fee). Further responses are due and sanctions are payable within 30 days.

Dept. F47

Date: 12/5/22

Case #22CHCV00327

MOTION TO COMPEL FURTHER RESPONSES

(Requests for Production of Documents, Set 1)

Motion filed on 8/29/22.

MOVING PARTY: Cross-Complainant William Vilches dba Prestige Builders

RESPONDING PARTY: Cross-Defendants Braa Holdings, LLC

NOTICE: ok

RELIEF REQUESTED: An order compelling Cross-Defendant Braa Holdings, LLC (Braa) to serve verified further responses, without objection, to Requests for Production of Documents, Set 1, numbers 1, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 25, 28 and 39 and to provide documents in the proper form as to numbers 1-47. Additionally, Cross-Complainant William Vilches dba Prestige Builders requests sanctions in the amount of $2,985.00 against Braa and its attorney, Areg Sarkissian, jointly and severally.

RULING: The motion is granted as set forth below. Further responses and production are due and sanctions are payable within 30 days.

On 6/28/22, Vilches served, by email, Requests for Production of Documents, Set 1, on Braa. (Lavaee Decl. ¶2, Ex.A). On 7/27/22, Braa served its responses by email. (Id. ¶3, Ex.B). On 7/28/22, Vilches sent a meet and confer letter to Braa regarding what he deemed to be insufficient responses. (Id. ¶4, Ex.C). No supplemental responses were received with regard to the document requests. (Id. ¶5). On 8/9/22, Vilches sent another meet and confer letter. (Id. ¶6, Ex.D). Still, no supplemental responses were received. (Id. ¶7). On 8/18/22, Vilches requested a 30-day extension to allow additional time to meet and confer. (Id. ¶8, Ex.G). Braa responded by stating “you must follow the code” and refused to clarify whether the extension was granted or not. Id. As a result, on 8/29/22, Vilches filed and served the instant motion seeking an order compelling Braa to serve verified further responses, without objection, to Requests for Production of Documents, Set 1, numbers 1 , 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 25, 28 and 39 and to provide documents in the proper form as to numbers 1-47. Additionally, Vilches requests sanctions in the amount of $2,985.00 against Braa and its attorney, Areg Sarkissian, jointly and severally. (Id ¶¶10-11). Braa has opposed the motion and requested sanctions against Vilches and his counsel, Michael Lavaee, in the amount of $3,000.00.

If a timely motion to compel further responses is filed, the responding party has the burden of justifying any objections. See Coy (1962) 58 C2d 210, 220-221; Fairmont Insurance Co. (2000) 22 C4th 245, 255. Here, Braa, the responding party, fails to justify its objections and/or deficient responses to the subject document requests. Instead, the opposition is based on Vilches’ purported failure to meet and confer before filing the instant motion. (See Opposition, generally). Braa also claims that it has served supplemental responses to the subject document requests. However, the supplemental responses included in Braa’s improper request for judicial notice do not include supplemental responses to the document requests. (See RJN, Ex.A). It is not clear if Braa’s responding separate statement is intended to be supplemental responses or argument as to why the responses provided are sufficient. (See Braa’s Separate Statement). In either case, it fails to justify the objections and/or responses.

CCP 2031.310(b) provides that “[a] motion [to compel further responses] shall…(2)…be accompanied by a meet and confer declaration under Section 2016.040.” See CCP 2031.310(b)(2). CCP 2016.040 provides that “[a] meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” The Court finds that Vilches adequately met and conferred before filing and serving the instant motion.

After receiving Braa’s responses to the Requests for Production of Documents, Vilches’ counsel sent meet and confer letters outlining the perceived deficiencies in the responses. (Lavaee Decl. ¶¶4, 6, Ex.C, D). Braa failed to provide any substantive response or provide further responses. (Lavaee Decl. ¶¶5, 7). Further, despite repeated requests for an extension of time to further meet and confer, with the explanation that Vilches’ counsel would be out of the country, Braa’s counsel’s only response to the request for the extension was “You must follow the code.” (Lavaee Decl. ¶8, Ex.G). The Court finds that Vilches did, in fact, follow the code by meeting and conferring multiple times and attempting to further meet and confer by requesting an extension so that his counsel could continue the process after he returned from being out of the country. Due to Braa’s failure to grant the extension, Vilches had no reasonable alternative but to file and serve the motion when he did (i.e., within the 45-day statutory period based on his counsel’s schedule). See CCP 2031.310(c).

Additionally, as required, Vilches has met his burden of establishing good cause for the production of the requested documents. CCP 2031.310(b)(1). Vilches’ Requests for Production of Documents (Requests) numbers 1, 5, 6, 7, 8, 13, 14, and 26 seek any documents (all related documents, communications and approvals) related to Braa’s alleged refinance at 2.65% which Braa claims its bank refused to consider because of Vilches’ failure to timely construct a pool. The majority of Braa’s alleged damages are a result of its failure to obtain financing and, therefore, Vilches has a right to obtain discovery about the refinance.

Request 9 seeks all documents that establish Vilches was aware of the refinance or that it was communicated to him. Again, most of Braa’s alleged damages are a result of its failure to obtain financing. As such, as noted above, Vilches has a right to obtain discovery regarding the refinance.

Requests 10, 11, and 12 seek all documents that show Vilches agreed to complete the pool by 12/31/21. Such documents are relevant because Braa claims that it was unable to obtain a refinance because Vilches failed to complete the project in time. As such, these documents also relate to the failure of Braa to obtain financing which is the majority of Braa’s claimed damages.

Request 15 seeks any documents referenced in Braa’s responses to special interrogatories. Braa’s objections to this request are without merit as it is not overbroad, unwarranted nor oppressive.

Braa also claims without any support that its production with regard to requests 1-49 is compliant with CCP 2031.280. (See Braa’s Separate Statement, unnumbered p.2:9-11). However, the production does not comply with the current version of CCP 2031.280(a) which requires documents produced to be “identified with the specific request number to which the documents respond.” See CCP 2031.280(a); (Lavaee Decl. ¶3, Ex.B).

Based on the foregoing, Braa is ordered to serve further responses to Requests for Production of Documents, Set 1, numbers 1, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 25, 28 and 39 and to produce documents in compliance with CCP 2031.280(a) as to requests numbers 1-47.

Additionally, sanctions are imposed against Braa and its attorney, Areg Sarkissian, jointly and severally, in the amount of $2,985.00 (4.5 hours of attorney time for preparation of the motion, review the opposition, prepare the reply and appear at the hearing at $500/hour + $60 filing fee). Further responses and production are due and sanctions are payable within 30 days.

Additionally, Braa’s separate statement fails to comply with the requirements of CRC 3.1345. Braa’s responsive separate statement does not satisfy any of the requirements set forth in CRC 3.1345(c). As noted above, it is not clear if Braa’s separate statement is intended to be supplemental responses or arguments as to why the responses are sufficient.

Continued failure to comply with court orders and/or rules may result in matters being continued, placed off calendar, or denied; papers not being considered; and/or the imposition of sanctions.