Judge: Michael P. Linfield, Case: 21STCV10856, Date: 2022-10-21 Tentative Ruling
Case Number: 21STCV10856 Hearing Date: October 21, 2022 Dept: 34
SUBJECT: Motions to Compel Further Response to
Interrogatories
Moving Party: Plaintiff Linkun Investment Incorporated
Resp. Party: Defendants
Salvatore Anthony DiMaria; ADD Enterprises, Inc.; Manning’s Beef LLC; Charles
DiMaria & Son Inc.; Manning Land Company, LLC
The Court GRANTS Plaintiff’s
Motions to Compel. The Court awards
sanctions against Defendant and Defendant’s counsel in the amount of $5,000.00.
BACKGROUND:
On
March 19, 2021, Plaintiff Linkun Investment Incorporated filed its Complaint
against Defendants Salvatore Anthony DiMaria, Shing “Jacky” Lo, ADD
Enterprises, Inc., Manning’s Beef LLC, Charles DiMaria & Son Inc., and
Manning Land Company, LLC on various causes of action.
On
August 6, 2021, all Defendants (except Shing Lo) filed their Answer.
On
March 23, 2022, the Court took off calendar multiple discovery motions filed by
Plaintiff and ordered the parties to attend an IDC prior to ruling on these
motions. The parties attended the IDC on July 14, 2022.
On
September 27, 2022, Plaintiff filed the following motions:
(1) Motion to Compel
Further Responses from Defendant Add Enterprises, Inc. to Form Interrogatories
– General, Set One, [and] Request for Monetary Sanctions Against Defendant and
His Attorneys in the Amount of $2,000.00 (hereinafter “Motion to Compel Further
Responses from ADD Enterprises);
(2) Motion to Compel
Further Responses from Defendant Charlie DiMaria & Son, Inc. to Form
Interrogatories – General, Set One [and] Request for Monetary Sanctions Against
Defendant and His Attorneys in the Amount of $2,000.00 (hereinafter “Motion to
Compel Further Responses from DiMaria & Son);
(3) Motion to Compel
Further Responses from Defendant Manning’s Beef LLC to Form Interrogatories –
General, Set One [and] Request for Monetary Sanctions Against Defendant and His
Attorneys in the Amount of $2,000.00 (hereinafter “Motion to Compel Further
Responses from Manning’s Beef”);
(4) Motion to Compel
Further Responses from Defendant Manning Land Company, LLC to Form
Interrogatories – General, Set One [and] Request for Monetary Sanctions Against
Defendant and His Attorneys in the Amount of $2,000.00 (hereinafter “Motion to
Compel Further Responses from Manning Land”); and
(5) Motion to Compel
Further Responses from Defendant Salvatore Anthony DiMaria to Special
Interrogatories, Set One [and] Request for Monetary Sanctions Against Defendant
and His Attorneys in the Amount of $2,000.00 (hereinafter “Motion to Compel
Further Responses from DiMaria”).
Plaintiff
concurrently filed Separate Statements for each motion, along with a single
Memorandum of Points and Authorities and a single Declaration, in support of
the motions.
Notably, the Motion to Compel Further
Responses from DiMaria includes part of the same request from one of
Plaintiff’s prior motions to compel that was already discussed at the earlier
IDC.
On
October 10, 2022, all Defendants (except Shing Lo) filed their Opposition to
Plaintiff’s Consolidated Motions to Compel Further Responses from Defendants
[and] Defendants’ Requests for Sanctions in the Amount of $4,377.50 Against
Plaintiff and its Counsel (hereinafter “Opposition and Request for Sanctions”).
Defendants concurrently filed their respective Separate Statements and a single
Declaration in support of their Opposition and Request for Sanctions.
On October 14, 2022, Plaintiff filed its
Consolidated Reply and a single Declaration in support of its motions.
ANALYSIS:
I.
Legal
Standard for Motions to Compel Interrogatories
Code of Civil Procedure section 2030.210(a) provides that
“[t]he party to whom interrogatories have been propounded shall respond in
writing under oath separately to each interrogatory by any of the following:
(1)
“An answer containing the information sought to
be discovered.
(2)
“An exercise of the party’s option to produce
writings.
(3)
“An objection to the particular interrogatory.”
A motion to compel further responses to form or specially
prepared interrogatories 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. (Code Civ. Proc., §
2030.300, subd. (a).)
Motions to compel further responses must always be
accompanied by a meet-and confer-declaration (Code of Civ. Proc., § 2016.040)
demonstrating a “reasonable and good faith attempt an informal resolution of
each issue presented by the motion.” (Id., §§ 2030.300, subd. (b), 2031.310,
subd. (b)(2), 2033.290, subd. (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. (Cal. Rules of Court, rule 3.1345,
subd. (a).) The separate statement must also be complete in itself; no
extrinsic materials may be incorporated by reference. (Id., rule 3.1345, subd. (c).)
II.
Discussion
A. Form Interrogatories
1. Form Interrogatories to all Corporate
Defendants
The following form interrogatory has been
propounded upon all corporate Defendants (i.e., ADD Enterprises,
Inc., Manning’s Beef LLC, Charles DiMaria & Son Inc., and Manning Land
Company, LLC.)
FORM INTERROGATORY
NO. 3.7: Within the past five years has any public entity registered or
licensed your business? If so, for each license or registration: (a) identify
the license or registration; (b) state the name of the public entity; and (c)
state the dates of issuance and expiration.
2. Form Interrogatories on Three Corporate
Defendants
The following form interrogatories have been
propounded upon the following three corporate Defendants: Manning’s Beef LLC,
Charles DiMaria & Son Inc., and Manning Land Company, LLC.
FORM INTERROGATORY
12.1: State the name, ADDRESS, and telephone number of each individual: (a) who
witnessed the INCIDENT or the events occurring immediately before or after the
INCIDENT; (b) who made any statement at the scene of the INCIDENT; (c) who
heard any statements made about the INCIDENT by any individual at the scene;
and (d) who YOU OR ANYONE ACTING ON YOUR BEHALF claim has knowledge of the
INCIDENT (except for expert witnesses covered by Code of Civil Procedure
§2034).
FORM INTERROGATORY
12.2: Have YOU OR ANYONE ACTING ON YOUR BEHALF interviewed any individual
concerning the INCIDENT? If so, for each individual state: (a) the name,
ADDRESS, and telephone number of the individual interviewed; (b) the date of
the interview; and (c) the name, ADDRESS, and telephone number of the PERSON
who conducted the interview.
FORM INTERROGATORY
12.3: Have YOU OR ANYONE ACTING ON YOUR BEHALF obtained a written or recorded
statement from any individual concerning the INCIDENT? If so, for each
statement state: (a) the name, ADDRESS, and telephone number of the individual
from whom the statement was obtained; (b) the name, ADDRESS, and telephone
number of the individual who obtained the statement; (c) the date the statement
was obtained; and (d) the name, ADDRESS, and telephone number of each PERSON
who has the original statement or a copy.
FORM INTERROGATORY
12.4: Do YOU OR ANYONE ACTING ON YOUR BEHALF know of any photographs, films, or
videotapes depicting any place, object, or individual concerning the INCIDENT
or plaintiffs injuries? If so, state: (a) The number of photographs or feet of
film or videotape; (b) The places, objects or person photographed, filmed or
videotaped; (c) The date the photographs, films or videotapes were taken; (d)
The name, ADDRESS and telephone number of the individual taking the photographs,
films, or videotapes; and (e) The ADDRESS, and telephone number of each PERSON
who has the original or a copy of the photographs, films or videotapes.
FORM INTERROGATORY
12.5: Do YOU OR ANYONE ACTING ON YOUR BEHALF know of any diagram, reproduction,
or model of any place or thing (except for items developed by expert witnesses
covered by Code of Civil Procedure §§ 2034.210-2034.310) concerning the
INCIDENT? If so, for each item state: (a) the type (i.e., diagram,
reproduction, or model); (b) the subject matter; and (c) the name, ADDRESS, and
telephone number of each PERSON who has it.
FORM INTERROGATORY
12.6: Was a report made by any PERSON concerning the INCIDENT? If so, state:
(a) the name, title, identification number, and employer of the PERSON who made
the report; (b) the date and type of report made; (c) the name, ADDRESS, and
telephone number of the PERSON for whom the report was made; and (d) the name,
ADDRESS, and telephone number of each PERSON who has the original or a copy of
the report.
FORM INTERROGATORY
12.7: Have YOU OR ANYONE ACTING ON YOUR BEHALF inspected the scene of the
INCIDENT? If so, for each inspection state: (a) the name, ADDRESS, and
telephone number of the individual making the inspection (except for expert
witnesses covered by Code of Civil Procedure §§ 2034.210- 2034.310); and (b)
the date of the inspection.
FORM INTERROGATORY
13.1: Have YOU OR ANYONE ACTING ON YOUR BEHALF conducted surveillance of any
individual involved in the INCIDENT or any party to this action? If so, for
each surveillance state: (a) the name, ADDRESS, and telephone number of the
individual or party; (b) the time, date, and place of the surveillance; (c) the
name, ADDRESS, and telephone number of the individual who conducted the
surveillance; and (d) the name, ADDRESS, and telephone number of each PERSON
who has the original or a copy of any surveillance photograph, film, or
videotape.
FORM INTERROGATORY
13.2: Has a written report been prepared on the surveillance? If so, for each
written report state: (a) the title; (b) the date; (c) the name, ADDRESS, and
telephone number of the individual who prepared the report; and (d) the name,
ADDRESS, and telephone number of each PERSON who has the original or a copy.
FORM INTERROGATORY
14.1: Do YOU OR ANYONE ACTING ON YOUR BEHALF contend that any PERSON involved
in the INCIDENT violated any statute, ordinance, or regulation and that the
violation was a legal (proximate) cause of the INCIDENT? If so, identify the
name, ADDRESS, and telephone number of each PERSON and the statute, ordinance,
or regulation that was violated.
FORM INTERROGATORY
14.2: Was any PERSON cited or charged with a violation of any statute,
ordinance, or regulation as a result of this INCIDENT? If so, for each PERSON
state: (a) the name, ADDRESS, and telephone number of the PERSON; (b) the
statute, ordinance, or regulation allegedly violated; (c) whether the PERSON
entered a plea in response to the citation or charge and, if so, the plea
entered; and (d) the name and ADDRESS of the court or administrative agency,
names of the parties, and case number.
FORM INTERROGATORY
NO. 50.1: For each agreement alleged in the pleadings: (a) identify each
DOCUMENT that is part of the agreement and for each state the name, ADDRESS,
and telephone number of each PERSON who has the DOCUMENT; (b) state each part
of the agreement not in writing, the name, ADDRESS, and telephone number of
each PERSON agreeing to that provision, and the date that part of the agreement
was made. (c) identify all DOCUMENTS that evidence any part of the agreement
not in writing and for each state the name, ADDRESS, and telephone number of
each PERSON who has the DOCUMENT; (d) identify all DOCUMENTS that are part of
any modification to the agreement, and for each state the name, ADDRESS, and
telephone number of each PERSON who has the DOCUMENT. (e) state each
modification not in writing, the date, and the name, ADDRESS, and telephone
number of each PERSON agreeing to the modification, and the date the
modification was made; (f) identify all DOCUMENTS that evidence any
modification of the agreement not in writing and for each state the name,
ADDRESS, and telephone number of each PERSON who has the DOCUMENT.
FORM INTERROGATORY
NO. 50.2: Was there a breach of any agreement alleged in the pleadings: If so,
for each breach describe and give the date of every act or omission that you
claim is the breach of the agreement.
FORM INTERROGATORY
NO. 50.3: Was performance of any agreement alleged in the pleadings excused? If
so, identify each agreement excused and state why performance was excused.
FORM INTERROGATORY
NO. 50.4: Was any agreement alleged in the pleadings terminated by mutual
agreement, release, accord and satisfaction, or novation? If so, identify each
agreement terminated, the date of termination, and the basis of the
termination?
FORM INTERROGATORY
NO. 50.5: Is any agreement alleged in the pleadings unenforceable? If so,
identify each unenforceable agreement and state why it is unenforceable.
FORM INTERROGATORY
NO. 50.6: Is any agreement alleged in the pleadings ambiguous? If so, identify
each ambiguous agreement and state why it is ambiguous.
3. Analysis
Plaintiff argues that further responses should
be compelled for the above-cited form interrogatories because the responses
have been evasive. (Plaintiff’s Memorandum, pp. 5:16–17, 6:10–11, 6:26–27,
7:3–4.)
Among other arguments, Defendant argues: (1)
that Plaintiff’s motion is procedurally defective; and (2) Plaintiff filed this
these motions without submitting to an IDC, which Defendants requested pursuant
to this Department’s Trial Orders. (Opposition, p. 6:2–21.)
Among other arguments, Plaintiff argues that
the motion is not procedurally defective as it is actually five filed motions,
albeit with a consolidated memorandum of points and authorities. (Reply, p.
4:2–9.) In addition, Plaintiff admits in its Reply that it did not request an
IDC but argues that the IDC rule does not apply to these motions. (Reply, p.
4:10–11.)
The Court finds that Plaintiff’s motions are
procedurally sufficient. They were filed separately, with separate filing fees
paid for each. Second, although the Court has suggested that and Informal
Discovery Conference might be helpful, an IDC is not required prior to the
filing of, or ruling upon, discovery motion.
(See Trial Court Orders, §VI
The Court GRANTS Plaintiff’s Motions to Compel
further Responses to the Form Interrogatories.
B. Special Interrogatories
1. Special Interrogatories to Defendant DiMaria
The following special interrogatories have
been propounded upon only on Defendant Salvatore Anthony DiMaria.
SPECIAL INTERROGATORY
NO. 25: IDENTIFY all DOCUMENTS that YOU relied on to support YOUR allocation of
sales prices for ground beef, steaks, middle meat, boxed beef byproducts,
and/or offal in connection with the joint venture
SPECIAL INTERROGATORY
NO. 27: IDENTIFY all DOCUMENTS that YOU provided to PLAINTIFF to support YOUR
allocation of expenses to the joint venture.
2. Motion Regarding the Special Interrogatories
Plaintiff argues that Defendant Salvatore
Anthony DiMaria must further respond as to these special interrogatories
because the current responses fail to identify any documents. (Plaintiff’s
Memorandum, pp. 4:28, 5:1.)
Defendant argues that the response to the
special interrogatories are code compliant and that Plaintiff failed to clarify
vague terms in the special interrogatories prior to filing this motion. (Opposition, pp. 6:22–25, 7:10–16.)
Plaintiff argues in its Reply that the
responses to the special interrogatories were evasive because they required
specific answers in the form of specific documents but that Defendant DiMaria
only gave a general type of answer (i.e., “USDA ungraded sheet” and “price
range reported by the USDA Agricultural Marketing Service”). (Reply, pp. 6–7.)
The Court agrees with Plaintiff’s argument
that these responses are evasive and do not answer the special interrogatories
propounded. Moreover, the parties have already attended an IDC on July 14, 2022
which related to these questions.
The Court GRANTS the motion to compel further
responses to the special interrogatories.
C. Sanctions
Plaintiff requests $10,000 in sanctions – $2,000
for each of the five motions. Defendant requests $4,377.50 in sanctions.
Plaintiff’s counsel
states: “In total,
Plaintiff has expended over 80 hours attempting to secure answers to basic discovery
as explained in the concurrently filed motions at a cost of over $25,000. I
expect for us to incur another $5,000 in legal fees in connection with
reviewing Defendants’ oppositions, preparing a reply brief, and attending a
hearing on the motions.” (Brucker Declaration,
¶ 24.) However, there is no
specific accounting in the Declaration or any of the exhibits to what the
actual number of hours that were spent on these motions. Similarly, counsel gives the case-specific
rates for him ($560/hour), his associate ($300/hour), his paralegal ($185/hour),
and his law clerk ($125/hour), but does not provide a breakdown of who did what work on these motions. (Brucker Declaration,
¶ 26.)
The Court recognizes
that “[a]n attorney’s testimony as to the number of hours worked is sufficient
evidence to support an award of attorney fees, even in the absence of detailed
time records.” (Steiny & Co. v. California Electric Supply Co. (2000)
79 Cal.App.4th 285, 293.) Contemporaneous
records are not required to support a motion for attorney fees. (Raining Data Corp. v. Barrenechea (2009)
175 Cal.App.4th 1363, 1375; Martino v.
Denevi (1986) 182 Cal.App.3d 553, 559.) However, without such time records
or billing statements, a motion for attorney fees must be supported by
declarations explaining “in more than general terms, the extent of services
rendered to the client.” (Martino v.
Denevi, supra, at pp. 559-560.)
Plaintiff’s declaration is insufficient.
However, Defendant
has submitted a request for attorney's fees in the amount of $4,337.50. (See Opposition, p. 10:2-4; Jeong
Declaration, ¶ 23.)
It is not uncommon for courts to compare opposing counsel’s
fees to help determine whether the moving party’s fees are reasonable. That is
because a “comparative analysis of each side’s respective litigation costs may
be a useful check on the reasonableness of any fee request.” (Mountjoy v. Bank of America, N.A. (2016)
245 Cal.App.4th 266, 273, 281, quoting Donahue v. Donahue (2010)
182 Cal.App.4th 259, 272. See, also, Deane Gardenhome Ass’n v. Denktas (1993)
13 Cal.App.4th 1394, 1399 (comparing losing party’s total incurred fees with
prevailing party’s claim for fees); West
Coast Dev. v. Reed (1992) 2 Cal.App.4th 693, 707; In re Tobacco Cases I (2013) 216 Cal.App.4th 570, 584 (court
expressly recognized that an opponent’s time and amounts charged were probative
to the determination of whether the fee claimant’s time is reasonable); Democratic Party of Washington v. Reed
(9th Cir. 2004) 388 F.3d 1281, 1287 (prevailing parties’ hours were not
excessive because number of hours claimed of the same “magnitude” as their
opponent’s hours); Cairns v Franklin Mint
Co. (9th Cir. 2002) 292 F.3d 1139 (declining to reduce defendant’s lodestar
fee calculations, in part, because opponent had incurred even greater fees).
The Court awards sanctions against Defendant
and Defendant’s counsel in the amount of $5,000.00.
III. Conclusion
The Court GRANTS Plaintiff’s
Motions to Compel. The Court awards
sanctions against Defendant and Defendant’s counsel in the amount of $5,000.00.