Judge: Michael P. Linfield, Case: 21STCV10856, Date: 2023-02-21 Tentative Ruling
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Case Number: 21STCV10856 Hearing Date: February 21, 2023 Dept: 34
SUBJECT: Motion to
Compel Further Responses from Defendant Salvatore Anthony DiMaria and for
Issuance of Monetary, Issue, and/or Evidentiary Sanctions
Moving Party: Plaintiff
Linkun Investment, Inc.
Resp. Party: Defendant Salvatore Anthony DiMaria
SUBJECT: Motion to
Compel Further Responses from Defendant Charlie DiMaria & Son Inc. and for
Issuance of Monetary, Issue, and/or Evidentiary Sanctions
Moving Party: Plaintiff
Linkun Investment, Inc.
Resp. Party: Defendant Charlie DiMaria & Son Inc.
SUBJECT: Motion to Compel
Further Responses from Defendant Manning’s Beef LLC and for Issuance of
Monetary, Issue, and/or Evidentiary Sanctions
Moving Party: Plaintiff
Linkun Investment, Inc.
Resp. Party: Defendant Manning’s Beef LLC
SUBJECT: Motion to
Compel Further Responses from Defendant Manning Land Company, LLC and for
Issuance of Monetary, Issue, and/or Evidentiary Sanctions
Moving Party: Plaintiff
Linkun Investment, Inc.
Resp. Party: Defendant Manning Land Company, LLC
SUBJECT: Motion to
Compel Further Responses from Defendant ADD Enterprises, Inc., DBA Anthony’s
Meats and for Issuance of Monetary, Issue, and/or Evidentiary Sanctions
Moving Party: Plaintiff
Linkun Investment, Inc.
Resp. Party: Defendant ADD Enterprises, Inc.
Plaintiff’s Motions are GRANTED. Defendants
have 30 days from the issuance of this Order to provide further responses to
SROGS 10 through 20 and RPDs 51 and 52.
Monetary sanctions are AWARDED in favor of
Plaintiff and against Defendants and their Counsel, jointly and severally, in
the amount of $5,840.00.
Defendants’ Request for Sanctions is DENIED.
BACKGROUND:
On March 19, 2021, Plaintiff Linkun
Investment, Inc. 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 January 26, 2023, Plaintiff filed the
following motions:
(1) Motion to Compel
Further Responses from Defendant Salvatore Anthony DiMaria and for Issuance of
Monetary, Issue, and/or Evidentiary Sanctions;
(2) Motion to Compel Further
Responses from Defendant Charlie DiMaria & Son Inc. and for Issuance of
Monetary, Issue, and/or Evidentiary Sanctions;
(3) Motion to Compel
Further Responses from Defendant Manning’s Beef LLC and for Issuance of
Monetary, Issue, and/or Evidentiary Sanctions;
(4) Motion to Compel
Further Responses from Defendant Manning Land Company, LLC and for Issuance of
Monetary, Issue, and/or Evidentiary Sanctions; and
(5) Motion to Compel
Further Responses from Defendant ADD Enterprises, Inc., DBA Anthony’s Meats and
for Issuance of Monetary, Issue, and/or Evidentiary Sanctions.
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.
On February 6, 2023, all Defendants (except
Shing Lo) filed a single Opposition to all five of the motions. The Opposition
includes a Request for Sanctions against Plaintiff and its Counsel. Defendants
concurrently filed their respective Separate Statements and a single Declaration
in support of their Opposition and Request for Sanctions.
On February 14, 2023, Plaintiff filed
its Reply. Plaintiff concurrently filed Declaration of Gary K. Brucker, Jr.
Although the Reply is late, the Court still considers it.
ANALYSIS:
I.
Legal
Standard
On receipt of a response to form
interrogatories, special interrogatories, and/or demand requests, the
propounding and/or demanding party “may move for an order compelling further
response” if: (1) the response is evasive or incomplete; (2) the representation
of inability to comply is inadequate incomplete, or evasive; or (3) the
objection is without merit or too general. (Code Civ. Proc., §§ 2030.300, subd.
(a), 2031.310, subd. (a).)
The Court shall impose monetary sanctions
against any party, person, or attorney who unsuccessfully makes or opposes a
motion to compel further interrogatories and/or a motion to compel further
production of documents, unless the Court finds that the one subject to
sanction acted with substantial justification or that other circumstances make
the imposition of the sanction unjust. (Code Civ. Proc., §§ 2030.300, subd.
(d), 2031.310, subd. (h).)
II.
Discussion
In consideration of the issues at hand, and
for ease of discussion, the Court discusses the Motions together.
A. Requests Propounded
1. Special Interrogatories Propounded
Plaintiff propounded the following special
interrogatories (“SROGs”) on the corporate Defendants (ADD Enterprises, Inc.,
Manning’s Beef LLC, Charlie DiMaria & Son Inc., and Manning Land Company,
LLC):
SPECIAL INTERROGATORY 10:
For purposes of this interrogatory and all
subsequent interrogatories in this set:
“YOU” and “YOUR” shall mean and refer to
defendant Manning Land Company, LLC, and except for its attorneys, any other
person or entity acting on its behalf or otherwise subject to its control.
“MANNING BEEF PROJECT” shall mean and refer
to the Manning Beef Project, which is the name of the joint venture investment
project that Plaintiff invested in.
“DEBTS” shall mean any dollar amounts
borrowed or owed, whether past due or not.
State any nature and amount of any DEBTS that
YOU owe or owed to anyone, directly or indirectly, with regards to the services
that YOU provided to, on behalf of, or in connection with the MANNING BEEF
PROJECT. For purposes of clarification and not by means of limitation, this
interrogatory seeks the name of any person or entity to whom any such DEBTS are
or were owed, the reason for the DEBTS, and the amount of the DEBTS.
SPECIAL INTERROGATORY 11:
For purposes of this interrogatory and all
subsequent interrogatories in this set:
. . .
“IDENTIFY” shall mean to state:
a. In the case of a person other than a
natural person, its name, the address of its principal place of business, its
telephone number, and the name of its chief executive officer;
b. In the case of a natural person, his or her
name, business address and telephone number, employer, and title or position;
and
c. In the case of a document, the title of
the document, the author, the title or position of the author, the addressee,
each recipient, the type of document, the subject matter, the date of
preparation, and its number of pages.
IDENTIFY all DOCUMENTS reflecting the nature
and amount of any DEBTS that YOU owe or owed to anyone, directly or indirectly,
with regards to the services that YOU provided to, on behalf of, or in
connection with the MANNING BEEF PROJECT.
SPECIAL INTERROGATORY 12:
State any nature and amount of any DEBTS that
anyone owed or owes to YOU, directly or indirectly, with regards to the
services that YOU provided to, on behalf of, or in connection with the MANNING
BEEF PROJECT. For purposes of clarification and not by means of limitation,
this interrogatory seeks the name of any person or entity who owed or owes
DEBTS to YOU, the reason for the DEBTS, and the amount of the DEBTS.
SPECIAL INTERROGATORY 13:
For purposes of this interrogatory and all
subsequent interrogatories in this set:
. . .
“DOCUMENTS” include, but are not limited to, any
writing as defined in Evidence Code § 250, including the originals, or copies
when originals are not available, of any writing filed for reporting or other
purposes with any federal, state, or local agency; notes; memoranda; letters;
financial ledgers; intra-office or interoffice communications; circulars;
bulletins; manuals; results of investigations; progress reports; performance
evaluations; employment, transfer, or promotion applications; studies made by
or for any business or personal use; working papers; contracts; agreements;
affidavits; declarations; statements; bills; books of accounts; vouchers;
evaluations; drawings; photographs; desk calendars; bank checks; pay stubs;
invoices; charge slips; receipts; expense accounts; statistical records; cost
sheets; journals; diaries; personal notes; time sheets or logs; computer data
(whether in written, magnetic, electronic, physical, or other form); computer
disks; audio or video recordings; job or transaction files; medical records;
permits, licenses, or applications therefor; unemployment applications;
personnel evaluations; resumes; appointment books; books; records, copies,
extracts, and summaries of other documents; and preliminary, intermediate, and
final drafts of any of the above, whether used or not.
IDENTIFY all DOCUMENTS reflecting the nature
and amount of DEBTS that anyone owes to YOU, directly or indirectly, with
regards to the services that YOU provided to, on behalf of, or in connection
with the MANNING BEEF PROJECT.
SPECIAL INTERROGATORY 14:
State the description and value of the assets
belonging to the MANNING BEEF PROJECT that were in YOUR possession, custody, or
control as of July 31, 2020.
SPECIAL INTERROGATORY 15:
State how YOU value YOUR assets.
SPECIAL INTERROGATORY 16:
IDENTIFY all DOCUMENTS reflecting the
description and value of the assets belonging to the MANNING BEEF PROJECT that
were in YOUR possession, custody, or control as of July 31, 2020.
SPECIAL INTERROGATORY 17:
State the description and value of the assets
belonging to the MANNING BEEF PROJECT that were in YOUR possession, custody, or
control as of March 19, 2021.
SPECIAL INTERROGATORY 18:
IDENTIFY all DOCUMENTS reflecting the
description and value of the assets belonging to the MANNING BEEF PROJECT that
were in YOUR possession, custody, or control as of March 19, 2021.
SPECIAL INTERROGATORY 19:
State the description and value of the assets
belonging to the MANNING BEEF PROJECT that were in YOUR possession, custody, or
control on the date this interrogatory was signed.
SPECIAL INTERROGATORY 20:
IDENTIFY all DOCUMENTS reflecting the
description and value of the assets belonging to the MANNING BEEF PROJECT that
were in YOUR possession, custody, or control on the date this interrogatory was
signed.
2. Requests for Production of Documents
Propounded
Plaintiff propounded the following requests
for production of documents (“RPDs”) on Defendant Salvatore Anthony DiMaria:
REQUEST FOR PRODUCTION NO. 51:
All COMMUNICATIONS between YOU and JTX
between January 1, 2019 and January 31, 2019.
REQUEST FOR PRODUCTION NO. 52:
All COMMUNICATIONS between YOU and McSEN
between January 1, 2019 and January 31, 2019.
B. The Motions
Plaintiff moves Defendants to provide further
responses to the SROGs and RPDs listed above. Plaintiff argues: (1) that
Defendant Salvatore Anthony DiMaria has not produced all communications between
him and JTX Group or between him and McSen Fund LLC; (2) that the corporate
Defendants’ objections to SROGs 10 through 13 are evasive; and (3) that the
corporate Defendants’ objections to SROGs 14 through 20 are evasive.
(Memorandum of Points and Authorities, pp. 1:18–26, 4:9–17, 5:13–19, 6:19–26,
7:6–23.)
Defendants oppose the Motions, arguing: (1)
that Defendants’ objections are warranted as to SROGs 14 through 20 because the
SROGs are vague and ambiguous, require information not reasonably available to
all corporate Defendants, and include multiple subparts; (2) that Defendants
will provide supplemental responses with further verifications as to SROGs 10
through 13 and RPDs 51 and 52; and (3) that sanctions are not warranted because
the Court never issued a prior order compelling these discovery responses. (Opposition,
pp. 5:4–8, 8:4–5, 8:12–14.)
Plaintiff reiterates its arguments in its
Reply.
Defendants appear to have conceded that
supplemental responses with further verifications are appropriate to SROGs 10
through 13 and RPDs 51 and 52. The Court adds that it appears that the
communications requested in the Request for Production of Documents are both relevant
and discoverable.
The Court does not find Defendants’ objections
to SROGs 14 through 20 to be persuasive. For each of these SROGs, Defendants
object that they are “not in the business of valuating assets”, that they “did
not hire an appraisal or an expert to conduct a valuation of Responding Party’s
alleged assets”, and that they do “not have personal knowledge sufficient to respond
fully”. Yet, Defendants are individuals or corporations that are engaged in the
commercial enterprise of slaughtering animals for profit. The Court does not
find Defendants’ objections to be meritorious. It would not surprise the Court if Defendants have
hired professionals for their own accounting purposes. However, they do not need to hire anyone to
provide sufficient responses to SROGs that request Defendants’ values of their
assets, how Defendants value their assets, and the documents reflecting the
description and value of the assets.
The Court GRANTS all five of the Motions.
Defendants shall have 15 days to provide further responses to SROGS 10 through
20 and RPDs 51 and 52.
C. Sanctions
Defendants have unsuccessfully opposed motions
to compel further responses to SROGs and RPDs. The Court does not have any
evidence before it that would indicate Defendants acted with substantial
justification or that other circumstances make the imposition of sanctions
unjust. The Court finds that monetary sanctions for Plaintiff and against
Defendants and their Counsel, but not the additional sanctions requested by
Plaintiff, would be appropriate here. (Code Civ. Proc., §§ 2030.300, subd. (d), 2031.310, subd.
(h).) Monetary sanctions are not appropriate against
Plaintiff and its Counsel.
Plaintiff seeks a sanction of $2,000.00 per
motion, for a total of $10,000.00. (Decl. Brucker, Jr., ¶ 22.) Plaintiff’s
Counsel declares that $12,600.00 in attorneys’ fees have been incurred. This
includes nine partner hours at $560.00 per hour and 24 associate hours at
$300.00 per hour.
The Court finds that the hourly rates are
reasonable for these motions but that the number of hours expended are not. The
Court will award monetary sanctions at those rates for 4 hours of partner time
and 12 hours of associate time.
The Court AWARDS monetary sanctions in favor
of Plaintiff and against Defendants and their Counsel, jointly and severally,
in the amount of $5,840.00.
The Court DENIES Defendants’ Request for
Sanctions.
III.
Conclusion
Plaintiff’s Motions are GRANTED. Defendants
have 30 days from the issuance of this Order to provide further responses to
SROGS 10 through 20 and RPDs 51 and 52.
Monetary sanctions are AWARDED in favor of
Plaintiff and against Defendants and their Counsel, jointly and severally, in
the amount of $4,680.00.
Defendants’ Request for Sanctions is DENIED.