Judge: Peter A. Hernandez, Case: 22PSCV00967, Date: 2023-09-18 Tentative Ruling

Case Number: 22PSCV00967    Hearing Date: September 18, 2023    Dept: K

1.         Defendant MT Hermon, LLC’s Motion for an Order Compelling Plaintiff Glorious Sky, LLC to Provide Further Responses to Requests for Admissions, Set 1 is DENIED as MOOT, except as to the issue of sanctions. Sanctions are awarded in the reduced amount of $510.00 and are payable within 30 days from the date of the notice of ruling.

2.         Defendant MT Hermon, LLC’s Motion for an Order Compelling Plaintiff Glorious Sky, LLC to Provide Further Responses to Form Interrogatories, Set 1 is DENIED as MOOT, except as to the issue of sanctions. Sanctions are awarded in the reduced amount of $660.00 and are payable within 30 days from the date of the notice of ruling.

Background[1]  

Plaintiff Glorious Sky, LLC (“Glorious Sky”) alleges as follows:

On May 3, 2022, a written agreement was made between Glorious Sky and Defendant MT Hermon LLC (“MT”) for bitcoin mining hosting and related services. MT breached the agreement.

On September 12, 2022, Glorious Sky filed a First Amended Complaint, asserting causes of action against MT, Mike Tian (“Mike”), Chris Tian (“Chris”) and Does 1-50 for:

1.                  Breach of Contract

2.                  Common Counts

3.                  Fraud

4.                  Intentional Tort

5.                  Violation of California Penal Code section 496(c)

On October 18, 2022, MT filed a cross-complaint, asserting causes of action against Glorious Sky, Ke Gao (“Gao”) and Roes 1-10 for:

1.                  Breach of Contract

2.                  Breach of Fiduciary Duty

3.                  Fraud

On December 12, 2022, Plaintiff dismissed Chris, without prejudice.

The Final Status Conference is set for January 14, 2025. Trial is set for January 28, 2025.

1.         Motion to Compel Furthers Re: Requests for Admission

MT moves the court for an order compelling Plaintiff to provide further responses to MT’s Requests for Admissions, Set No. One (i.e., Nos. 1-60). MT further seeks sanctions against Plaintiff and its counsel of record in the amount of $5,450.00.

The instant motion originally came on calendar for hearing on July 17, 2023. The court posted the following tentative ruling for that proceeding:

MT’s counsel Robert Scott Shtofman (‘Shtofman’) declares as follows:

On November 13, 2022, Plaintiff propounded four separate sets of discovery on MT, including Requests for Admissions, Form and Special Interrogatories and Requests for Production of Documents, Sets No. One; that day, Plaintiff also propounded an additional four separate sets of discovery on Mike. (Shtofman Decl., ¶¶ 3 and 4). Plaintiff’s counsel subsequently denied MT’s counsel’s request for an extension of time to respond to the aforesaid discovery. (Id., ¶¶ 5 and 6.) On January 3, 2023, MT served the subject discovery on Plaintiff. (Id., ¶ 9, Exh. 3.) On February 6, 2023, Plaintiff served its objection-only responses thereto. (Id., ¶¶ 11 and 12, Exh. 4.) On March 20, 2023, Shtofman sent a meet and confer letter to Plaintiff’s counsel. (Id., ¶ 13, Exh. 5.) No further responses have been provided, as of the motion filing date. (Id., ¶ 15.)

Plaintiff, in opposition, represents that supplemental responses, sans objections, have since been provided. (Opperwall Decl., ¶ 5, Exh. 1.) Plaintiff appears to take the position that the subject discovery and instant motion were unnecessary because the parties entered into a Termination Agreement (Id., ¶ 9, Exh. 4), “that Defendants are still obligated to perform,” that if defendants fail to complete performance of said agreement, the remedy is mediation followed by arbitration as per an ADR clause contained therein and that the ADR clause makes no provision for discovery. The court will not entertain the validity of Plaintiff’s arguments (which appear irrelevant and unnecessary, given that the instant action is not in arbitration). At any rate, the court queries why Plaintiff would not have felt precluded by the ADR clause in the Termination Agreement from propounding its own discovery requests to MT and Mike in November 2022.

The motion is denied as moot, except as to the issue of sanctions.

Sanctions

MT seeks sanctions against Plaintiff and its counsel of record in the amount of $5,450.00 [calculated as follows: 5.2 hours preparing motion, plus 1.5 hours preparing separate statement, plus 1 hour preparing reply and attending hearing at $700.00/hour, plus $60.00 filing fee].

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 $660.00 (i.e., 2 hours at $300.00/hour, plus $60.00 filing fee). Sanctions are payable within 30 days from the date of the notice of ruling.”

The court’s July 17, 2023 minute order reflects that, after a discussion with counsel and on the court’s own motion, the hearing was continued to September 18, 2023. Said minute order further provides that “[t]he parties are to meet and confer regarding outstanding discovery. Briefs are due by each side no later than nine (9) days prior to the next hearing date.”

On September 8, 2023, Plaintiff filed its supplemental brief. Plaintiff asserts that the instant motion is moot, inasmuch as it served supplemental responses which were substantive and did not contain objections. Plaintiff asserts that after the July 17, 2023 hearing, Plaintiff’s counsel unsuccessfully attempted to meet and confer with opposing counsel. (Opperwall Decl., ¶¶ 14-17, Exhs. 2-5). Plaintiff asserts that, if MT is dissatisfied with Plaintiff’s supplemental responses, MT’s recourse is to file a new Motion to Compel Furthers directed to the supplemental responses.

On September 11, 2023, MT filed its supplemental brief. MT’s supplemental brief does not suggest that Plaintiff’s supplemental responses to the subject discovery were deficient in any way.

The court reaffirms, based on the above supplemental briefs and its original tentative ruling, that the instant motion is denied as moot, except as to the issue of sanctions, and that sanctions of $660.00 are payable within 30 days from the date of the notice of ruling.

2.         Motion to Compel Furthers Re: Form Interrogatories

Discussion

MT moves the court for an order compelling Plaintiff to provide further responses to MT’s Form Interrogatories, Set No. One (i.e., Nos. 1.1, 3.1-3.7, 4.1, 4.2, 7.1-7.3, 8.1-8.8, 9.1, 9.2, 12.1-12.7, 13.1, 13.2, 14.1, 14.2, 17.1 and 50.1-50.6). MT further seeks sanctions against Plaintiff and its counsel of record in the amount of $4.435.00.

Again, the instant motion originally came on calendar for hearing on July 17, 2023. The court posted the following tentative ruling for that proceeding:

See synopsis of Motion #1.

Plaintiff, in opposition, represents that supplemental responses, sans objections, have since been provided. (Opperwall Decl., ¶ 5, Exh. 1.) Again, Plaintiff raises certain arguments (set forth in the analysis on Motion #1), which the court declines to entertain.

The motion is denied as moot, except as to the issue of sanctions.

Sanctions

MT seeks sanctions against Plaintiff and its counsel of record in the amount of $4,435.00 [calculated as follows: 5.25 hours preparing motion and separate statement, plus 1 hour preparing reply and attending hearing at $700.00/hour, plus $60.00 filing fee].

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 $510.00 (i.e., 1.5 hours at $300.00/hour, plus $60.00 filing fee). Sanctions are payable within 30 days from the date of the notice of ruling.”

Again, the court’s July 17, 2023 minute order reflects that, after a discussion with counsel and on the court’s own motion, the hearing was continued to September 18, 2023. Said minute order further provides that “[t]he parties are to meet and confer regarding outstanding discovery. Briefs are due by each side no later than nine (9) days prior to the next hearing date.”

On September 8, 2023, Plaintiff filed its supplemental brief. Plaintiff asserts that the instant motion is moot, inasmuch as it served supplemental responses which were substantive and did not contain objections. Plaintiff asserts that after the July 17, 2023 hearing, Plaintiff’s counsel unsuccessfully attempted to meet and confer with opposing counsel. (Opperwall Decl., ¶¶ 14-17, Exhs. 2-5). Plaintiff asserts that, if MT is dissatisfied with Plaintiff’s supplemental responses, MT’s recourse is to file a new Motion to Compel Furthers directed to the supplemental responses.

Onn September 11, 2023, MT filed its supplemental brief. MT asserts that the parties have never met and conferred since the motions were filed and that Plaintiff has still failed to provide “complete and straight-forward answers to Form Interrogatory Nos. 1.1, 3.1, 3.2, 3.3, 3.4, 3.5, 3.6, 3.7, 4.1, 4.2, 7.1, 7.2, 7.3, 8.1, 8.2, 8.3, 8.4, 8.5, 8.6, 8.7, 8.8, 9.1, 8.2, 12.1, 12.2, 12.3, 12.4, 12.5, 12.6, 12.7, 13.1, 13.2, 14.1, 14.2, 17.1, 50.1, 50.2, 50.3, 50.4, 50.5 and 50.6.”

Plaintiff’s position is correct: since Plaintiff has provided substantive supplemental responses, MT’s recourse is to file a Motion to Compel Furthers directed to the supplemental responses, in the event MT determines they are deficient.[2] The court reaffirms, based on the above supplemental briefs and its original tentative ruling, that the instant motion is denied as moot, except as to the issue of sanctions, and that sanctions of $510.00 are payable within 30 days from the date of the notice of ruling.