Judge: Michael P. Linfield, Case: 22STCV16604, Date: 2023-02-07 Tentative Ruling
Case Number: 22STCV16604 Hearing Date: February 7, 2023 Dept: 34
SUBJECT: Motion
to Compel Further Responses and to Strike Defendant’s Objections to Plaintiff’s
Requests for Admissions, Set One [and] Request for Production of Documents of
Things, Set One [and] Form Interrogatories, Set One [and] Request for Sanctions
in the Amount of $3,070.80 from Defendant Sean Dunn and [Defense Counsel]
Moving Party: Plaintiff/Cross-Defendant
Eric Milestone
Resp. Party: Defendant/Cross-Complainant Sean P. Dunn
Plaintiff/Cross-Defendant’s
Motion is DENIED. Plaintiff/Cross-Defendant’s Request for Sanctions is DENIED.
BACKGROUND:
On
May 19, 2022, Plaintiffs Gas Pedal Delivery & Distribution LLC and Eric
Milestone filed their Complaint against Defendant Sean P. Dunn on causes of
action relating to Messrs. Milestone’s and Dunn’s control of Plaintiff Gas
Pedal Delivery & Distribution LLC.
On
October 3, 2022, Defendant/Cross-Complainant filed: (1) Answer to the
Complaint; and (2) Cross-Complaint against Plaintiffs/Cross-Defendants Gas
Pedal Delivery & Distribution LLC and Eric Milestone.
On
October 7, 2022, Defendant/Cross-Complainant filed his Verified First Amended
Cross-Complaint.
On
December 12, 2022, the Court granted Plaintiffs/Cross-Defendants’ Counsel’s
Motion to be Relieved as Counsel. Plaintiffs/Cross-Defendants have since been
without representation.
On
December 27, 2022, by request of Defendant/Cross-Complainant, the Clerk’s
Office entered default on Plaintiff/Cross-Defendant Gas Pedal Delivery &
Distribution LLC.
On
January 12, 2023, Plaintiff/Cross-Defendant Eric Milestone filed his Motion to
Compel Further Responses and to Strike Defendant’s Objections to Plaintiff’s
Requests for Admissions, Set One [and] Request for Production of Documents of
Things, Set One [and] Form Interrogatories, Set One [and] Request for Sanctions
in the Amount of $3,070.80 from Defendant Sean Dunn and [Defense Counsel].
On
January 13, 2023, Defendant/Cross-Complainant filed his Verified Second Amended
Cross-Complaint.
On
January 27, 2023, Defendant/Cross-Defendant filed his Opposition.
No
reply has been filed.
ANALYSIS:
Plaintiff/Cross-Defendant moves the Court to compel further responses
and to strike Defendant/Cross-Complainant’s objections to requests for
admission (RFAs), request for production of documents (RPDs) and form
interrogatories (FROGs).
For ease of analysis, the Court considers the RFAs separately from the
RPDs and FROGs.
I.
Requests
for Admission
A.
Legal
Standard
California
Code of Civil Procedure requires a response from the party to whom the request
for admissions is directed within 30 days after service of the request for
admissions. (Code Civ. Proc., § 2033.250, subd. (a).) If the party fails to
serve a timely response, “the party to whom the requests for admission are
directed waives any objection to the requests.” (Code Civ. Proc., § 2033.280,
subd. (a).) The requesting party may then “move for an order that the
genuineness of any documents and the truth of any matters specified in the
requests be deemed admitted, as well as for monetary sanction under Chapter 7.”
(Code Civ. Proc., § 2033.280, subd. (b).)
A
motion to deem admitted requests for admissions lies based upon a showing of
failure to respond timely. (Code Civ. Proc., § 2033.280, subd. (b); Demyer
v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393, 395
[disapproved on other grounds by Wilcox v. Birtwhistle (1999) 21 Cal.4th
973, 983]; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2013) ¶
8:1370.) Requests for admissions must be deemed admitted where no responses in
substantial compliance were served before the hearing. (Code Civ. Proc., §
2033.280, subd. (c); Edmon & Karnow, supra, at ¶ 8:1375.)
A
court will deem requests admitted, “unless it finds that the party to whom the
requests for admission have been directed has served, before the hearing on the
motion, a proposed response to the requests for admission that is in
substantial compliance with Section 2033.220.” (Code Civ. Proc., § 2033.280,
subd. (c).)
B.
Discussion
1.
Requests
for Admission Propounded
Plaintiff/Cross-Defendant Eric Milestone propounded the following RFAs
upon Defendant/Cross-Complainant:
a.
Fact
RFAs
REQUEST NO. 1: Admit
that Eric Milestone is the 51% equity STAKEHOLDER of GAS PEDAL.
REQUEST NO. 2: Admit
that YOU intended to purchase 49% equity STAKEHOLDER of GAS PEDAL.
REQUEST NO. 3: Admit
that the consideration for purchasing 49% equity in GAS PEDAL was $100,000.00.
REQUEST NO. 4: Admit
that YOU paid $27,000.00 as a partial payment for 49% equity interest in GAS
PEDAL.
REQUEST NO. 5: Admit
that Seanp.Dunn@aol.com is the email address YOU used to register YOUR account
with the City of Los Angeles, Department of Cannabis Regulations.
REQUEST NO. 6: Admit
that Seanp.Dunn@aol.com is the email address YOU used to register YOUR account
with the State of California Bureau of Cannabis Control now known as The
Department of Cannabis Control.
REQUEST NO. 7: Admit
that on August 11, 2021 YOU signed “SEP-6001-FORM,” attached to this Request as
“Exhibit 1.”
REQUEST NO. 8: Admit
that YOU approved Form BCC-LIC-013 titled “FINANCIAL INFORMATION FORM” attached
to this Request as “Exhibit 2,” prior to Eric Milestone filing it with the
Bureau of Cannabis Control.
REQUEST NO. 9: Admit
that except for YOUR partial CAPITAL CONTRIBUTIONS of $27,000, YOU did not make
any other payment to GAS PEDAL.
REQUEST NO. 10:
Admit that YOU never contested the genuineness of the OPERATING AGREEMENT,
attached hereto as “Exhibit 4” prior to March 1, 2022.
REQUEST NO. 11:
Admit that the $30,000.00 payment received from Daniel Dunn was a loan to GAS
PEDAL.
REQUEST NO. 12:
Admit that prior to the opening of GAS PEDAL in November 2021, YOU did not
complete the required training provided by Treez, Inc.
REQUEST NO. 13:
Admit that The City of Los Angeles Department of Cannabis Regulations (DCR)
required “The OPERATING AGREEMENT” attached hereto as “Exhibit 4”, be submitted
prior to GAS PEDAL’S licensure.
REQUEST NO. 14:
Admit that as of November 1st, 2022, YOU have not acquired a COMPLIANT distribution
vehicle for GAS PEDAL.
REQUEST NO. 15:
Admit that YOU signed the OPERATING AGREEMENT, attached hereto as “Exhibit 4.”
REQUEST NO. 16:
Admit that YOU signed the “AGREEMENT” attached hereto as “Exhibit 3”.
REQUEST NO. 17:
Admit that Eric Milestone is the TIER 1 SOCIAL EQUITY INDIVIDUAL APPLICANT of
GAS PEDAL.
(Motion, Ex. B.)
b.
Document
RFAs
REQUEST NO. 1: Admit
that attached hereto as “Exhibit 1” is a true and correct copy of the signed
and notarized SEP-6001-FORM that YOU provided to Eric Milestone.
REQUEST NO. 2: Admit
that attached hereto as “Exhibit 2” is a true and correct copy of the form
BCCLIC-013 that YOU provided to Eric Milestone via text message.
REQUEST NO. 3: Admit
that the document titled the “AGREEMENT ” attached as “Exhibit 3” is a true
copy of the document signed by YOU.
REQUEST NO. 4: Admit
that the document titled the “OPERATING AGREEMENT” attached as “Exhibit 4” is a
true copy of signed document that YOU provided to PLAINTIFF.
REQUEST NO. 5: Admit
that the 2021-2022 Gas Pedal Delivery & Distribution CANNABIS C9-
NONSTOREFRONT RETAIL license attached as “Exhibit 5” is a true and correct copy
of the document provided to YOU by the State of California.
REQUEST NO. 6: Admit
that the 2021-2022 Gas Pedal Delivery & Distribution CANNABIS C11-
DISTRIBUTION license attached as “Exhibit 6” is a true and correct copy of the
document provided to YOU by the state of California.
REQUEST NO. 7: Admit
that the 2022-2023 Gas Pedal Delivery & Distribution CANNABIS C9-
NON-STOREFRONT RETAIL license attached as “Exhibit 7” is a true and correct
copy of the document provided to YOU by the State of California.
REQUEST NO. 8: Admit
that the 2022-2023 Gas Pedal Delivery & Distribution CANNABIS C11-
DISTRIBUTION license attached as “Exhibit 8” is a true and correct copy of the
document provided to YOU by the state of California.
(Motion, Ex. B.)
2.
Analysis
Plaintiff/Cross-Defendant Eric Milestone moves the Court to compel
Defendant/Cross-Complainant to provide further responses to the RFAs
propounded. (Motion, p. 21:12–14.)
Defendant/Cross-Complaint opposes the Motion, arguing that the
responses to the RFAs are complete and that the one objection was proper.
(Opposition, p. 3:24–26.)
The Court agrees with Defendant/Cross-Complainant. Every single RFA was
properly responded to with an answer of admit, deny, or lacks sufficient
information or knowledge to admit or deny. (Motion, Ex. E.) Simply put, as to
the RFAs, there are no further responses to compel.
The Court DENIES the Motion as to the RFAs.
II.
Requests
for Production of Documents and Form Interrogatories
A.
Legal
Standard
California
Code of Civil Procedure requires a response from the party to whom form
interrogatories, special interrogatories, and demand requests are propounded
within 30 days after service of the requests, unless the time is extended by
agreement of the parties. (Code Civ. Proc., §§ 2030.260, subd. (a), 2030.270,
subd. (a), 2031.260, subd. (a), 2031.270, subd. (a).) If a party fails to serve
timely responses, "the party making the demand may move for an order
compelling response to the demand.” (Code Civ. Proc., § 2030.300, subd. (b).)
By failing to respond, the offending party waives any objection to the demand.
(Code Civ. Proc., § 2030.290, subd. (a).)
For
a motion to compel, all a propounding party must show is that it properly
served its discovery requests, that the time to respond has expired, and that
the party to whom the requests were directed failed to provide a timely
response. (See Leach v. Super. Ct. (1980) 111 Cal.App.3d 902, 905, 906.)
Indeed, "[o]nce [a party] 'fail[ed] to serve a timely response,' the trial
court had authority to grant [opposing party's] motion to compel
responses." (Sinaiko Healthcare Counseling, Inc. v. Pacific Healthcare
Consultants (2007) 148 Cal.App.4th 390, 405.)
B.
Discussion
1.
Form
Interrogatories
a.
FROGs
Propounded
Plaintiff/Cross-Defendant propounded the following FROGs on
Defendant/Cross-Complainant: 1.1, 2.1 through 2.11, 3.1 through 3.4, 3.6
through 3.7, 9.1 through 9.2, 11.1, 12.1 through 12.6, 13.1 through 13.2, 15.1,
16.2 through 16.3, 17.1, and 50.1 through 50.6. (Motion, Ex. D.)
b.
Analysis
Plaintiff/Cross-Defendant Eric Milestone moves the Court to compel
Defendant/Cross-Complainant to provide further responses to the FROGs
propounded, and specifically as to FROG 17.1. (Motion, pp. 5:6–7, 21:12–14.)
Defendant/Cross-Complaint opposes the Motion, arguing that the
responses to the FROGs are complete, including to FROG 17.1. (Opposition, p.
4:10–24.)
The Court agrees with Defendant/Cross-Complainant. The FROGs were
properly responded to, and Defendant/Cross-Complainant provided a thorough
response to FROG 17.1. It is not clear what further response
Plaintiff/Cross-Defendant is requesting as to FROG 17.1.
The Court DENIES the Motion as to the FROGs.
2.
Requests
for Production of Documents
a.
RPDs
Propounded
Plaintiff/Cross-Defendant propounded the following RPDs on
Defendant/Cross-Complainant:
REQUEST FOR PRODUCTION NO. 1: Any and all non-privileged DOCUMENTS identified in YOUR responses to
the Form Interrogatories, Set One, served with this request.
REQUEST FOR PRODUCTION NO. 2: All written reports of all expert witnesses with whom YOU or YOUR
attorneys have consulted, including, of course, those persons YOU expect to
call as an expert witness at trial.
REQUEST FOR PRODUCTION NO. 3: All DOCUMENTS upon which any expert witness YOU intend to call at
trial relied to form an opinion.
REQUEST FOR PRODUCTION NO. 4: Any and all non-privileged statements, COMMUNICATIONS and other
DOCUMENTS, sent to the PLAINTIFF by the Defendant or Defendant’s Assignor(s)
regarding the CAPITAL CONTRIBUTIONS alleged in the COMPLAINT within the three
years preceding November 1, 2022.
REQUEST FOR PRODUCTION NO. 5: Any and all non-privileged statements, COMMUNICATIONS and other
DOCUMENTS, sent to the PLAINTIFF by the Defendant or Defendant’s Assignor(s)
regarding the “EQUITY SHARE AGREEMENT” alleged in the COMPLAINT within the
three years preceding November 1, 2022.
REQUEST FOR PRODUCTION NO. 6: Any and all non-privileged statements, COMMUNICATIONS and other
DOCUMENTS, that support DEFENDANT’S answers to PLAINTIFFS COMPLAINT.
REQUEST FOR PRODUCTION NO. 7: All written, recorded, or signed statements of any party, including
the PLAINTIFF, DEFENDANT, witnesses, investigators, or agent, representative or
employee of the parties concerning the subject matter of this action.
REQUEST FOR PRODUCTION NO. 8: Any and all non-privileged statements, COMMUNICATIONS and other
DOCUMENTS, that factually support DEFENDANT’S causes of actions in
Cross-COMPLAINT filed against PLAINTIFFS.
REQUEST FOR PRODUCTION NO. 9: Any and all non-privileged statements, COMMUNICATIONS and other
DOCUMENTS, in possession of the Defendant or Defendant’s Assignor(s) regarding
any City of Los Angeles or State of California cannabis licensing application
DOCUMENTS alleged in the COMPLAINT within the three years preceding November 1,
2022.
REQUEST FOR PRODUCTION NO. 10: Any and all non-privileged statements, COMMUNICATIONS and other
DOCUMENTS, sent to the PLAINTIFF by the Defendant or Defendant’s Assignor(s)
regarding the “Breach of contract” alleged in the COMPLAINT within the three
years preceding November 1, 2022.
REQUEST FOR PRODUCTION NO. 11: Any DOCUMENTS received pursuant to a subpoena request in this case.
REQUEST FOR PRODUCTION NO. 12: Any DOCUMENT and COMMUNICATION relating to the PLAINTIFF’S COMPLAINT
and the DEFENDANT CROSS-COMPLAINT.
REQUEST FOR PRODUCTION NO. 13: Copies of any treaties, standards in the industry, legal authority,
rule, case, statute, or code that will be relied upon in the defense of this
case.
REQUEST FOR PRODUCTION NO. 14: Any and all non-privileged statements, COMMUNICATIONS and other
DOCUMENTS, sent to the PLAINTIFF by the Defendant or Defendant’s Assignor(s)
regarding any item, or category of the “Operating Agreement” alleged in the
COMPLAINT and CROSS-COMPLAINT within the three years preceding November 1,
2022.
REQUEST FOR PRODUCTION NO. 15: Any and all non-privileged statements, COMMUNICATIONS and other
DOCUMENTS sent to the PLAINTIFF by the Defendant or Defendant’s Assignor(s)
regarding fraudulent actions or DOCUMENTS alleged in the COMPLAINT and
CROSS-COMPLAINT within the three years preceding November 1, 2022.
REQUEST FOR PRODUCTION NO. 16: Any and all non-privileged statements, COMMUNICATIONS and other
DOCUMENTS between the Defendant or Defendant’s Assignor(s) and any city or
state cannabis licensing agency’s or their agents regarding any item, or
category of the alleged in the COMPLAINT and CROSS-COMPLAINT within the three
years preceding November 1, 2022.
REQUEST FOR PRODUCTION NO. 17: Any and all non-privileged COMMUNICATIONS and other DOCUMENT(S) in
YOUR possession or control sent by the DEFENDANT to the PLAINTIFF or the
PLAINTIFF’s assignors in the three years preceding November 1, 2022.
REQUEST FOR PRODUCTION NO. 18: Any and all non-privileged DOCUMENTS and COMMUNICATIONS evidencing any
payment or non-payment of the CAPITAL CONTRIBUTIONS by the DEFENDANT in the
three years preceding November 1, 2022.
REQUEST FOR PRODUCTION NO. 19: Any and all non-privileged DOCUMENTS identified in YOUR responses to
the Request for Admissions, Set One, served with this request.
REQUEST FOR PRODUCTION NO. 20: Any and all non-privileged statements, COMMUNICATIONS and other
DOCUMENTS supporting any claim alleged in the COMPLAINT and CROSSCOMPLAINT
within the three years preceding November 1, 2022.
REQUEST FOR PRODUCTION NO. 21: Any and all non-privileged statements, COMMUNICATIONS, and other
DOCUMENTS that support any and all of DEFENDANT’S denials to the COMPLAINT
within the three years preceding November 1, 2022.
REQUEST FOR PRODUCTION NO. 22: Any and all non-privileged DOCUMENTS identified in the GENUINENESS OF
DOCUMENTS, Set One, served with this request.
(Motion, Ex. C.)
b.
Analysis
Plaintiff/Cross-Defendant Eric Milestone moves the Court to compel
Defendant/Cross-Complainant to provide further responses to the RPDs
propounded. (Motion, p. 12:5–6.) Plaintiff/Cross-Defendant gives many reasons
(both procedural and substantive) for this requested relief, although
Plaintiff/Cross-Defendant never actually provides specific reasons why any
specific responses to the RPDs are substantively deficient. (Id. at pp.
12–18 and Ex. H.)
Defendant/Cross-Complaint opposes the Motion, arguing that the
responses to the RPDs are complete and that all objections were proper.
(Opposition, p. 4:25–27.)
The Court agrees with Defendant/Cross-Complainant. While the responses
to the RPDs have “objections” in the form of qualifiers, each of the responses
clearly notes that all unprivileged documents have been provided. (Motion, Ex.
F.) Thus, as documents have actually been submitted in response to each of the
RPDs, it is not clear what further response Plaintiff/Cross-Defendant is
requesting. Given the apparent completeness of the responses, the Court does
not find the procedural arguments to be relevant or persuasive.
However, if Defendant/Cross-Complainant is withholding any documents on
the grounds of privilege, Defendant/Cross-Complainant must produce a privilege
log forthwith describing each withheld document.
The Court DENIES the Motion as to the RPDs.
III.
Sanctions
Plaintiff/Cross-Defendant’s Request for Sanctions is DENIED.
IV.
Conclusion
Plaintiff/Cross-Defendant’s
Motion is DENIED. Plaintiff/Cross-Defendant’s Request for Sanctions is DENIED.