Judge: Michelle Williams Court, Case: 20STCV49545, Date: 2022-09-07 Tentative Ruling

Case Number: 20STCV49545    Hearing Date: September 7, 2022    Dept: 74

20STCV49545           BROWN STRAUSS, INC vs ACME METALS & STEEL SUPPLY, INC.

(1)  Defendant/Cross-Complainant Howard Brand’s Motion to Compel Further Responses to Plaintiff/Cross-Defendant Brown Strauss, Inc. to Special Interrogatories, Set Two and Request for Monetary Sanctions of $5,060.00

TENTATIVE RULING:  The motion is GRANTED as to Special Interrogatories, Set Two, Nos. 30-37 and 40. As to these interrogatories, Plaintiff must remove all objections, except those based upon attorney client privilege and work product privilege, provide further responses to the extent information was withheld based upon the improper objections. To the extent Plaintiff claims the attorney-client or work product privileges apply over any of the information, it shall simultaneously serve a privilege log that, at a minimum, identifies each item for which a privilege is claimed, its author, recipients, the date of preparation, the privilege claimed, and any other information necessary to evaluate the privilege and provide a privilege log.

The motion is GRANTED as to Special Interrogatories, Set Two,  Nos. 38 and 39 and Plaintiff must provide complete, verified, code-compliant responses without objection.

The Court orders Plaintiff to serve its verified further responses within 20 days.

(2)  Defendant/Cross-Complainant Howard Brand's Motion to Continue Trial and All Discovery and Trial-Related Dates

TENTATIVE RULING:  Defendant/Cross-Complainant Howard Brand's Motion to Continue Trial and All Discovery and Trial-Related Dates is GRANTED.  Trial shall be continued a minimum of 120 days and the Court shall discuss a suitable date with the parties at the hearing.

Background

On December 29, 2020, Plaintiff Brown Strauss, Inc. filed this action against Defendants ACME Metals & Steel Supply Inc., ACME Metals & Steel Supply, ACME Metals LLC, Jack Goldberg, and Equitable Transitions, Inc. The complaint asserts causes of action for: (1) breach of contract; (2) quantum meruit; (3) account stated; (4) open book account; and (5) personal guarantee. Plaintiff alleges Defendants purchased building materials on credit from Plaintiff and failed to make the required payments. Plaintiff substituted Jayem Enterprises and Howard Brand for Doe Defendants.

On March 1, 2022, Howard Brand filed a cross-complaint against Plaintiff Brown Strauss, Inc. for declaratory relief.

MOTION TO COMPEL

On August 3, 2022, Defendant/Cross-Complainant Howard Brand filed the instant motion to compel Plaintiff/Cross-Defendant Brown Strauss, Inc. to provide further responses to Special Interrogatories, Set Two Nos. 30-40.

The motion is unopposed. (Code Civ. Proc. § 1005(c).)

Motion to Compel Further Responses to Interrogatories

Standard

The propounding party may bring a motion to compel further responses to interrogatories if it believes the responses received are evasive or incomplete, the attempt to produce writings pursuant to Code of Civil Procedure section 2030.230 is unwarranted or inadequate, or if the objections raised are meritless or too general. (Code Civ. Proc. § 2030.300(a).) The motion must be accompanied by a good-faith meet and confer declaration, (Code Civ. Proc. § 2016.040), and be accompanied by a separate statement. (Cal. R. Ct., rule 3.1345.) The opposing party bears the burden of justifying any objections. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255; Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 97-98.)

Unless extended, the motion must be filed within 45 days of service of the responses. (Code Civ. Proc. §§ 2016.050; 2030.300(c); Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410 (“the time within which to make a motion to compel . . . is mandatory and jurisdictional.”).)

Background of Discovery and Meet and Confer

On April 26, 2022, Brand propounded Special Interrogatories, Set Two upon Plaintiff. (Carnie Decl. ¶ 3, Ex. 1.) Plaintiff served initial responses on June 7, 2022. (Id. ¶ 4, Ex. 2.) Plaintiff sent a meet and confer letter on June 16, 2022, identifying each of the special interrogatories at issue. (Id. ¶ 5, Ex. 3.) On June 30, 2022, Plaintiff agreed to extend the motion to compel deadline to August 5, 2022. (Id. ¶ 8, Ex. 6.) On July 19, 2022, Plaintiff served supplemental responses to Special Interrogatories, Set Two Nos. 30-35 and 40. (Carnie Decl. ¶ 11, Ex. 7.)

Defendant does not provide any evidence that he attempted to meet and confer regarding Plaintiff’s supplemental responses. Defendant’s counsel merely states the supplemental responses “were also deficient.” (Carnie Decl. ¶ 11.) Notably, Plaintiff’s initial responses to Special Interrogatories, Set Two Nos. 30-35 and 40 contained only objections. (Id. Ex. 2.) The supplemental responses restated those objections and provided a substantive response. (Id. Ex. 7.)

As Defendant’s motion is partially based upon the argument that the substantive responses are evasive, this failure to further meet and confer is significant. A motion to compel further responses “shall be accompanied by a meet and confer declaration.” (Code Civ. Proc. § 2030.300(b)(1).) The declaration must state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented in the motion. (Code Civ. Proc. § 2016.040.) “The Discovery Act requires that, prior to the initiation of a motion to compel, the moving party declare that he or she has made a serious attempt to obtain an informal resolution of each issue.” (Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1435.) “A determination of whether an attempt at informal resolution is adequate involves the exercise of discretion.”  (Stewart v. Colonial W. Agency (2001) 87 Cal.App.4th 1006, 1016.) Where a party fails to make any real effort at informal resolution, a failure which is particularly egregious would justify an immediate and outright denial of further discovery. (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 433-34; Townsend, supra, 61 Cal.App.4th at 1437.) 

Defendant’s failure to demonstrate any effort to meet and confer as to Plaintiff’s substantive responses renders his motion procedurally defective as to that issue. Accordingly, the motion shall not be granted based upon the asserted evasiveness of the responses and the Court shall deny Defendant’s request for sanctions as unjust under the circumstances.

Special Interrogatories, Set Two, Nos. 30-37 and 40

Special Interrogatories Nos. 30-37 and 40 request that Plaintiff “state all facts” and “identify all documents” that show that Defendant is the alter ego of Acme Metals, LLC, Acme Metals, Inc., Jack Goldberg, or any Defendant, as well as its claim that the Defendants merged or entered into an asset purchase agreement to assume and accept liabilities of each other. (Carnie Decl. Ex. 1.)

Plaintiff’s supplemental responses objected to these requests based upon relevance and attorney work product and then provided a substantive response. (Carnie Decl. Ex. 7.) Additionally, as to the interrogatories seeking the identification of documents, Plaintiff further objected based upon attorney client privilege and expert opinion. (Ibid.) Plaintiff failed to oppose the instant motion and therefore did not meet its burden to justify its relevance or expert opinion objections. (Fairmont, supra, 22 Cal.4th at 255; Kirkland, supra, 95 Cal.App.4th at 97-98.)

Additionally, it does not appear Plaintiff provided a privilege log to support its work product and attorney-client privilege objections. It does not appear either would apply to these interrogatories. (See generally Edwards Wildman Palmer LLP v. Superior Court, 231 Cal. App. 4th 1214, 1226 (2014) (“Where the privilege applies, it may not be used to shield facts, as opposed to communications, from discovery.”); Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 301 (“A party responding to discovery requests may be required to state whether or not he or she makes a particular contention, and to disclose the evidentiary facts underlying each such contention, as well as each allegation of his complaint or affirmative defense.”); Code Civ. Proc., § 2030.010 (“An interrogatory is not objectionable because an answer to it involves an opinion or contention that relates to fact or the application of law to fact, or would be based on information obtained or legal theories developed in anticipation of litigation or in preparation for trial.”).)

Accordingly, the motion is GRANTED as to Special Interrogatories Nos. 30-37 and 40. Plaintiff must remove all objections, except those based upon attorney client privilege and work product privilege, provide further responses to the extent information was withheld based upon the improper objections, and provide a privilege log.

Special Interrogatories, Set Two,  Nos. 38 and 39

Special Interrogatories, Set Two, No. 38 requests that Plaintiff “[i]dentify all Brown-Strauss employees who spoke with Howard Brand regarding any purchase order guarantee.” Special Interrogatory No. 39 requests that Plaintiff “[s]tate the time(s)/date(s) for every instance during which a Brown-Strauss employee spoke with Howard Brand regarding any purchase order guarantee.”

Plaintiff responded to both interrogatories solely with objections based upon vagueness and overbreadth: “Vague and overbroad. Responding Party is unable to respond to this interrogatory because it does not understand the question as drafted, and the interrogatory is overbroad and unlimited in scope and time.” (Carnie Decl. Ex. 2.) By failing to oppose the motion, Plaintiff failed to justify its objections. (Fairmont, supra, 22 Cal.4th at 255; Kirkland, supra, 95 Cal.App.4th at 97-98.)

Plaintiff’s objections are also improper. The interrogatories are not fatally vague. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783 (“A party may not deliberately misconstrue a question for the purpose of supplying an evasive answer. [Citation]. Indeed, where the question is somewhat ambiguous, but the nature of the information sought is apparent, the proper solution is to provide an appropriate response.”).) Additionally, the request is not overbroad as Plaintiff has information readily available regarding the duration and scope of their relationship with Defendants and any interactions Plaintiff’s employees had with Brand.

The motion is GRANTED as to Special Interrogatories, Set Two,  Nos. 38 and 39. Plaintiff must provide complete, verified, code-compliant responses without objection.

Sanctions

Pursuant to Code of Civil Procedure section 2030.300(d), “[t]he court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

Defendant requested $5,060.00 in sanctions against Plaintiff and its counsel consisting of 9.5 hours preparing the motion and an anticipated 4.5 hours for the reply and hearing by attorney Carnie at a rate of $250.00 per hour, an unidentified 3.0 hours by attorney Levinson at a rate of $500.00 per hour, and the $60.00 filing fee. (Carnie Decl. ¶ 12.) The request is excessive considering the motion filed and the lack of opposition. Additionally, as noted above, Defendant failed to evidence compliance with his meet and confer obligations as to the supplemental responses. Accordingly, the Court finds the imposition of sanctions unjust and declines to impose sanctions.

MOTION TO CONTINUE TRIAL

On August 3, 2022, Defendant/Cross-Complainant Howard Brand filed the instant motion to continue trial based upon an inability to obtain discovery.

The motion is unopposed. (Code Civ. Proc. § 1005(c).)

Discussion

Standard

“The decision to grant or deny a continuance is committed to the sound discretion of the trial court.”¿(Forthmann¿v. Boyer¿(2002) 97 Cal. App. 4th 977, 984.)¿Pursuant to California Rules of Court, rule 3.1332(b), “[a] party seeking a continuance of the date set for trial, whether contested or uncontested or stipulated to by the parties, must make the request for a continuance by a noticed motion or an ex parte application under the rules in chapter 4 of this division, with supporting declarations. The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered.” “Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance.” (Cal. R. Ct., rule 3.1332(c).) “Circumstances that may indicate good cause include:

(1)  The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances;

(2)  The unavailability of a party because of death, illness, or other excusable circumstances;

(3)  The unavailability of trial counsel because of death, illness, or other excusable circumstances;

(4)  The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice;

(5)  The addition of a new party if:

(A)  The new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or

(B)  The other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party's involvement in the case;

(6)  A party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or

(7)  A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial.

(Cal. R. Ct., rule 3.1332(c).) Other factors to consider under Rule 3.1332(d) include:

(1)  The proximity of the trial date;

(2)  Whether there was any previous continuance, extension of time, or delay of trial due to any party;

(3)  The length of the continuance requested;

(4)  The availability of alternative means to address the problem that gave rise to the motion or application for a continuance;

(5)  The prejudice that parties or witnesses will suffer as a result of the continuance;

(6)  If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay;

(7)  The court's calendar and the impact of granting a continuance on other pending trials;

(8)  Whether trial counsel is engaged in another trial;

(9)  Whether all parties have stipulated to a continuance;

(10)  Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and

(11)  Any other fact or circumstance relevant to the fair determination of the motion or application.

On Balance, Plaintiff Demonstrated Good Cause for the Brief Continuance Sought

Defendant Brand was added to this action via fictitious name amendment on January 14, 2022. Trial in this matter is set for October 17, 2022, a little over a month after the hearing on this motion. Defendant propounded a first set of discovery on March 15, 2022 and additional discovery on April 14, 2022, April 26, 2022, and May 3, 2022. (Carnie Decl. ¶ 5.) Plaintiff responded to Defendant’s second and third sets of discovery and later provided supplemental responses, some of which are the subject of Defendant’s concurrently heard motion to compel further responses. (Carnie Decl. ¶¶ 6-15.) “Circumstances that may indicate good cause include . . .[a] party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts.” (Cal. R. Ct., rule 3.1332(c)(6).) September 7, 2022 was the earliest hearing date  available for Defendant’s discovery motion. (Carnie Decl. ¶ 15.)

Defendant seeks a minimum 120-day trial continuance, which is reasonable under the circumstances. Neither Plaintiff nor the other Defendants have opposed the instant motion. Defendant is likely to suffer prejudice absent a continuance and the interests of justice are best served by permitting a party time to conduct discovery and have timely discovery motions heard well in advance of trial.

The Court finds good cause for a trial continuance and the motion is GRANTED. All trial related dates and deadlines shall be continued consistent with the new trial date.