Judge Peter A. Hernandez, Case 19PSCV00318 2022-09-27 Tentative Ruling

1. Plaintiff Accu-Blend Corporation’s Motion to Compel Responses to Form Interrogatories is GRANTED. Defendants are ordered to serve verified responses, without objections, to Plaintiff’s Form Interrogatories, Sets No. One, within 20 days from the date of the notice of ruling. Sanctions are awarded as against each of the individual defendants in the reduced amount of $51.52 and as against H&S in the reduced amount of $51.55 and are payable within 30 days from the date of the notice of ruling.

2. Plaintiff Accu-Blend Corporation’s Motion to Compel Responses to Special Interrogatories is GRANTED as to Henry, Alona, R. Fuentes, D. Fuentes and Soto only. Henry, Alona, R. Fuentes, D. Fuentes and Soto are ordered to serve verified responses, without objections, to Plaintiff’s Special Interrogatories, Sets No. One, within 20 days from the date of the notice of ruling. Sanctions are awarded as against Henry, Alona, R. Fuentes, D. Fuentes and Soto, each in the reduced amount of $61.83, and are payable within 30 days from the date of the notice of ruling.

3. Plaintiff Accu-Blend Corporation’s Motion to Compel Responses to Requests for Production of Documents, Set One is GRANTED. Henry and Alona are ordered to serve verified responses, without objections, to Plaintiff’s Request for Production of Documents, Sets No. One, within 20 days from the date of the notice of ruling. Sanctions are awarded in the reduced amount of $154.58 against Henry and $154.57 against Alona and are payable within 30 days from the date of the notice of ruling.

Henry Shishido (“Henry”) has been Plaintiff’s Daily Operations Manager since 2005. Beginning on or around January 2008, Henry began replacing key personnel in the accounting, packing & shipping and the receiving departments with his own people, including his wife, Alona Lynn Shishido (“Alona”), who was hired as Plaintiff’s “Book Keeper” and “Controller.” Henry began stealing purchase orders placed with Plaintiff by third party entities and fulfilling same under his own name or under his sole proprietorship, H&S Mfg. aka H&S Manufacturing (“H&S”), using Plaintiff’s raw materials, manufacturing plant, labor, packaging and shipping supplies. Henry instructed Along to not deduct the raw product he was stealing from inventory. Henry also participated in kickback schemed with raw materials vendors.

On August 12, 2019, Plaintiff filed a First Amended Complaint (“FAC”), asserting causes of action against Henry, Alona, H&S, Robert Fuentes (“R. Fuentes”), Desirae Fuentes (“D. Fuentes”), Athena Maria Soto (“Soto”) and Does 1-20 for:

On September 27, 2019, Plaintiff filed an “Amendment to Complaint,” wherein Nicolas James Shishido was named in lieu of Doe 2.

A Final Status Conference is set for January 6, 2023. Trial is set for January 13, 2023.

A response to interrogatories is due 30 days after service. (Code Civ. Proc., § 2030.260, subd.(a).)

“If a party to whom interrogatories are directed fails to serve a timely response, . . . [t]he party propounding the interrogatories may move for an order compelling response to the interrogatories.” (Code Civ. Proc., § 2030.290, subd. (b).)

The court shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a 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 . . .” (Code Civ. Proc., § 2030.290, subd. (c).)

Plaintiff moves the court for an order compelling Henry, Alona, H&S, R. Fuentes, D. Fuentes and Soto (collectively, “Defendants”) to provide responses, without objections, to Plaintiff’s Form Interrogatories—General, Sets No. One. Plaintiff also seeks monetary sanctions in the amount of $1,245.00[1] against Defendants, jointly and severally.

On April 10, 2020, Plaintiff served the subject discovery. (O’Connell Decl., ¶ 3, Exh. A.)

On September 2, 2020, Plaintiff’s counsel Edward W. O’Connell (“O’Connell”) sent letters to Defendants, requesting verified responses, without objections, by September 15, 2020. (Id., ¶ 7, Exh. B.) O’Connell has been communicating with Henry on behalf of all Defendants, as Henry has taken up the role of representative. (Id., ¶¶ 5 and 6.) On or around February 24, 2021, O’Connell conferred with Henry about providing responses to the subject discovery; in turn, Henry advised that he was looking for an attorney to assist in the preparation of same. (Id., ¶¶ 8 and 9.) On April 26, 2021, Henry represented to O’Connell that he was working with a paralegal to help prepare responses. (Id., ¶ 10.) No responses, however, have been provided as of the filing date of the motion. (Id., ¶ 11.)

The motion is granted. Defendants are ordered to serve verified responses, without objections, to Plaintiff’s Form Interrogatories, Sets No. One, within 20 days from the date of the notice of ruling.

Plaintiff seeks sanctions against Defendants; although the notice of motion lists the amount of sanctions as $1,245.00, O’Connell’s declaration and the motion itself both list the amount sought as $634.50 [calculated as follows: 3.3 hours preparing motion at $165.00/hour plus $90.00 in costs].

Plaintiff moves the court for an order compelling Henry, Alona, H&S, R. Fuentes, D. Fuentes and Soto (collectively, “Defendants”) to provide responses, without objections, to Plaintiff’s Special Interrogatories, Sets No. One. Plaintiff also seeks monetary sanctions in the amount of $634.50 against Defendants, jointly and severally.

The motion is granted as to Henry, Alona, R. Fuentes, D. Fuentes and Soto only. Plaintiff has not attached Special Interrogatories, Set No. One propounded to H&S, nor does the proof of service accompanying the discovery reflect that this was served on H&S. Henry, Alona, R. Fuentes, D. Fuentes and Soto are ordered to serve verified responses, without objections, to Plaintiff’s Special Interrogatories, Sets No. One, within 20 days from the date of the notice of ruling.

Plaintiff seeks sanctions against Defendants in the amount of $634.50 [calculated as follows: 3.3 hours preparing motion at $165.00/hour plus $90.00 in costs].

Utilizing a Lodestar approach, and in view of the totality of the circumstances, the court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motion is $309.15 (i.e., 1.5 hours at $165.00/hour, plus $61.65 in costs [filing fee]). This amount is divided amongst Henry, Alona, R. Fuentes, D. Fuentes and Soto, such that each of them are responsible for paying $61.83. Sanctions are payable within 30 days from the date of the notice of ruling.

A response to a request for production of documents is due 30 days after service. (Code Civ. Proc., § 2031.260, subd. (a).)

If a party to whom a request for production of documents is directed fails to serve a timely response to it, the party making the demand may move for an order compelling response to the demand. (Code Civ. Proc., § 2031.300, subd. (b).)

The court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes such a motion to compel, 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.” (Code Civ. Proc., § 2031.300, subd. (c).)

Plaintiff moves the court for an order compelling Henry and Alona to provide responses, without objections, to Plaintiff’s Request for Production of Documents, Sets No. One. Plaintiff also seeks monetary sanctions in the amount of $1,245.00[2] against Henry and Alona.

The motion is granted. Henry and Alona are ordered to serve verified responses, without objections, to Plaintiff’s Request for Production of Documents, Sets No. One, within 20 days from the date of the notice of ruling.

Plaintiff seeks sanctions against Defendants; although the notice of motion lists the amount of sanctions as $1,245.00, O’Connell’s declaration and the motion itself both list the amount sought as $72.50 [calculated as follows: 3.3 hours preparing motion at $165.00/hour plus $90.00 in costs].

Plaintiff seeks sanctions against Defendants in the amount of $724.50 [calculated as follows: 3.3 hours preparing motion at $165.00/hour plus $180.00 in costs].

Utilizing a Lodestar approach, and in view of the totality of the circumstances, the court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motion is $309.15 (i.e., 1.5 hours at $165.00/hour, plus $61.65 in costs [filing fee]). This amount is divided amongst Henry and Alona. Henry shall be responsible for $154.58 and Alona shall be responsible for $154.57. Sanctions are payable within 30 days from the date of the notice of ruling.

[1] O’Connell’s declaration and Paragraph 7 on page 5 of the motion, however, both indicate that $634.50 is being sought.

[2] O’Connell’s declaration and Paragraph 3 on page 4 of the motion, however, both indicate that $724.50 is being sought.