Judge Peter A. Hernandez, Case Number: 22PSCV01609, Date: 2023-08-22 Tentative Ruling

2. Plaintiff, B.R. Building Resources Company’s Motion to Compel Further Responses to Request for Production, Set 1, Propounded on Defendant Lawrence Feigen is GRANTED. Feigen is to provide further, Code-compliant responses to Requests Nos. 1-11, 13, 16-31 and 33-41, as well as a supplemental privilege log, within 20 days from the date of the notice of ruling. Sanctions are awarded in the reduced amount of $1,190.00 and are payable within 30 days of the date of the hearing.

3. Plaintiff, B.R. Building Resources Company’s Motion to Compel Further Responses to Request for Production, Set 1, Propounded on Defendant SA Hospital Real Estate Holdings, LLC is GRANTED. SAH Real Estate is to provide further, Code-compliant responses to Requests Nos. 1-7, 9-16 and 19-21, as well as a supplemental privilege log, within 20 days from the date of the notice of ruling. Sanctions are awarded in the reduced amount of $1,190.00.

4. Plaintiff, B.R. Building Resources Company’s Motion to Compel Further Responses to Request for Production, Set 1, Propounded on Defendant SA Hospital Real Estate Holdings—Jefferson LLC is GRANTED. SAH Jefferson is to provide further, Code-compliant responses to Requests Nos. 1-7, 9-16 and 19-21, as well as a supplemental privilege log, within 20 days from the date of the notice of ruling. Sanctions are awarded in the reduced amount of $1,190.00.

5. Plaintiff, B.R. Building Resources Company’s Motion to Compel Further Responses to Request for Production, Set 1, Propounded on Defendant SA Hospital Acquisition Group, LLC is GRANTED. SAH Acquisition is to provide further, Code-compliant responses to Requests Nos. 1-7, 9-17 and 20-22, as well as a supplemental privilege log, within 20 days from the date of the notice of ruling. Sanctions are awarded in the reduced amount of $1,190.00.

6. Plaintiff, B.R. Building Resources Company’s Motion to Compel Responses to Request for Production, Set 2, Propounded on Defendant Jeffrey Ahlholm is GRANTED. Ahlholm is ordered to provide amended responses, without objections, within 20 days from the date of the notice of ruling. Sanctions are imposed against Ahlholm and his attorney of record in the reduced amount of $497.50 and are payable within 30 days of the notice of ruling.

7. Plaintiff, B.R. Building Resources Company’s Motion to Compel Responses to Request for Production, Set 2, Propounded on Defendant Lawrence Feigen is GRANTED. Feigen is ordered to provide amended responses, without objections, within 20 days from the date of the notice of ruling. Sanctions are imposed against Feigen and his attorney of record in the reduced amount of $497.50 and are payable within 30 days of the notice of ruling.

8. Plaintiff, B.R. Building Resources Company’s Motion to Compel Responses to Request for Production, Set 2, Propounded on Defendant SA Hospital Real Estate Holdings, LLC is GRANTED. SAH Real Estate is ordered to provide amended responses, without objections, within 20 days from the date of the notice of ruling. Sanctions are imposed against SAH Real Estate and its attorney of record in the reduced amount of $497.50 and are payable within 30 days of the notice of ruling.

9. Plaintiff, B.R. Building Resources Company’s Motion to Compel Responses to Request for Production, Set 2, Propounded on Defendant SA Hospital Real Estate Holdings-Jefferson, LLC is GRANTED. SAH Jefferson is ordered to provide amended responses, without objections, within 20 days from the date of the notice of ruling. Sanctions are imposed against SAH Jefferson and its attorney of record in the reduced amount of $497.50 and are payable within 30 days of the notice of ruling.

10. Plaintiff, B.R. Building Resources Company’s Motion to Compel Responses to Request for Production, Set 2, Propounded on Defendant SA Hospital Acquisition Group, LLC is GRANTED. SAH Acquisition is ordered to provide amended responses, without objections, within 20 days from the date of the notice of ruling. Sanctions are imposed against SAH Acquisition and its attorney of record in the reduced amount of $497.50 and are payable within 30 days of the notice of ruling.

11. Defendants SA Hospital Acquisition Group, LLC’s, SA Hospital Real Estate Holdings, LLC’s, SA Hospital Real Estate Holdings—Jefferson LLC’s, Lawrence Feigen’s and Jeffrey Ahlholm’s Motion for Relief from Purported Waiver of Objections and Reference to Produced Documents Under Code of Civil Procedure §§ 2030.290, 2031.300, 2033.280 is DENIED.

12. Defendants Lawrence Feigen’s, Jeffrey Ahlholm’s, SA Hospital Acquisition Group, LLC’s and SA Hospital Real Estate Holdings—Jefferson’s Motion for Judgment on the Pleadings is DENIED.

13. Defendants SA Hospital Acquisition Group, LLC’s, Jeffrey Ahlholm’s and Lawrence Feigen’s Motion to Compel Further Responses to Requests for Production, Set One is DENIED.

B.R. is a boutique builder. Defendants SA Hospital Acquisition Group, LLC (“SAH Acquisition”), SA Hospital Real Estate Holdings, LLC (“SAH Real Estate”) and SA Hospital Real Estate Holdings-Jefferson, LLC (“SAH Jefferson”) (hereinafter collectively, the “SAH Defendants”) own and/or operate the South City Hospital (“Hospital”) in St. Louis, Missouri. Defendants Lawrence Feigen (“Feigen”) and Jeffrey Ahlholm (“Ahlholm”) are the owners/agents of the SAH Defendants. B.R. and the SAH Defendants entered into a “Master Service Agreement” (“MSA”), wherein B.R. agreed to perform different categories of construction projects to improve the Hospital. The funding for the projects to be completed by B.R. was provided by Twain Financial Partners (“Twain”). The SAH Defendants had an agreement with Twain to provide the funding directly to B.R. upon completion of certain work related to the projects. These funds were deposited into an escrow account (“Construction Fund”). Twain was to make deposits to the Construction Fund on a per project basis. B.R. entered into twelve subcontracts (“AIA Contracts”) with the SAH Defendants, each of which pertained to specific construction work to improve different portions of the Hospital. B.R. was to be paid $15,537,397.16 to perform the work contemplated in the AIA Contracts. To date, Twain has provided $6,460,063.24 in funds to the Construction Fund.

On January 3, 2022, Feigen and asked B.R. to give them $826,937.00 from the Construction Fund to cover operating costs for the Hospital. On this same date an additional $200,000.00 from the Construction Fund was given to Feigen and Ahlholm upon requesting funds from B.R. and assuring B.R. they had approval from Twain to make this request. On March 3, 2022, Feigen and Ahlholm made another request for B.R. to give $400,000.00 directly to Modern HR Payroll Company from the Construction Fund to cover the Hospital’s payroll expenses, again assuring B.R. they had Twain’s approval. On April 26, 2022, B.R. met with Dave Merrifield, an employee of Twain, to discuss funding for ongoing projects, at which time B.R. learned that Twain did not know that Feigen and Ahlholm had requested Construction Funds from B.R., nor that B.R. had transferred Construction Funds to Feigen and Ahlholm. Twain subsequently stopped funding the projects, which has rendered B.R. unable to complete the AIA Contracts.

Also, since January 2022, B.R. entered into a contract to rent a boiler and a chiller to service the Hospital. B.R. was instructed by the SAH Defendants, by and through Feigen and Ahlholm, to use the Construction Fund to pay for the aforesaid service as. Due to no longer receiving fund deposits to the Construction Fund, B.R. is unable to continue paying the rental fees for the boiler or chiller or any other temporary services.

On June 21, 2023, B.R. filed an “Amendment to Complaint,” wherein Modern HR, Inc. (“Modern HR”) was named in lieu of Doe 1.

On August 21, 2023, Modern HR filed a cross-complaint, asserting causes of action against SAH Acquisition, Feigen, Ahlholm and Roes 1-10 for:

On November 14, 2023, B.R. filed a First Amended Complaint (“FAC”), asserting causes of action against the SAH Defendants, Feigen, Ahlholm, Modern HR and Does 2-25 for:

On December 15, 2023, the SAH Defendants, Ahlholm and Feigen filed a cross-complaint, asserting causes of action against B.R., Juan Banos (“Banos”) and Roes 1-50 for:

1. Motion to Compel Furthers Re: Requests for Production (i.e., as to Ahlholm)

“[T]he demanding party may move for an order compelling further response to the demand if the demanding party deems that. . . (1) [a] statement of compliance with the demand is incomplete[,] (2) [a] representation of inability to comply is inadequate, incomplete, or evasive [and/or] (3) [a]n objection in the response is without merit or too general.” (Code Civ. Proc., § 2031.310, subd. (a).)

The moving party must demonstrate a “reasonable and good faith attempt” at an informal resolution of each issue presented. (Code Civ. Proc., §§ 2016.040, 2031.310, subd. (b)(2).) “In lieu of a separate statement required under the California Rules of Court, the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute.” (Code Civ. Proc., § 2031.310, subd. (b)(3).)

A motion to compel further responses to a demand for inspection or production of documents must “set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).) If the moving party has shown good cause for the production of documents, the burden is on the objecting party to justify the objections. (Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.)

Notice of the motion must be provided “within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing . . .” (Code Civ. Proc., § 2030.310, subd. (c).)

“[T]he court shall impose a monetary sanction. . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, 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., § 2031.310, subd. (h).)

Plaintiff moves the court for an order compelling Ahlholm to provide further responses to Plaintiff’s Request for Production, Set No. One (i.e., Nos. 1-11, 13, 16-31 and 33-41). Plaintiff also seeks sanctions against Ahlholm in the amount of $2,640.00.

Plaintiff’s counsel Michael Jones’s (“Jones”) declaration and/or accompanying exhibits reflect as follows:

On March 14, 2023, Plaintiff served the subject discovery. (Jones Decl., ¶ 3, Exh. A.) On April 13, 2023, Ahlholm’s counsel requested an extension of the deadline until May 8, 2023 to provide responses. (Id., ¶ 4, Exh. B). On April 14, 2023, Plaintiff’s counsel agreed to an extension until May 1, 2023. (Id.) On May 3, 2023, Ahlholm’s counsel William Pallares (“Pallares”) advised that he had misread Plaintiff’s counsel’s prior email regarding the May 1, 2023 deadline and that responses would be provided on May 8, 2023. (Id.) Pallares added, “[p]lease let me know if this will be an issue. Otherwise, I will seek leave from the court on excusable neglect.” (Id.) On May 8, 2023, Ahlholm provided unverified responses, with objections and without any documents. (Id., ¶ 5, Exh. C.)

On May 9, 2023, Plaintiff’s counsel Scott Kalter (“Kalter”) emailed Pallares, requesting verifications. (Id., ¶ 4, Exh. B.) Pallares advised that same day that verifications would be provided. (Id.) Pallares also stated, “[f]urther, I brought the issue up of me misreading your correspondence thinking that you had granted the extension requested. I inquired on whether this would be an issue and asked for a response. You failed to provide a response.” (Id.) Pallares subsequently advised that verifications would be provided by May 12, 2023; they were, in fact, provided on that date. (Id., ¶¶ 4 and 6, Exhs. B & D).

On June 7, 2023, Jones sent a meet and confer letter, requesting therein that verified supplemental responses be received by June 16, 2023 due to a June 26, 2023 deadline to file any necessary motion to compel. (Id., ¶ 7, Exh. E). Counsel subsequently agreed that Ahlholm would provide supplemental responses by June 23, 2023 and that Plaintiff would have until July 17, 2023 to file any motion to compel. (Id., ¶ 8, Exh F.) On June 23, 2023, Plaintiff received supplemental responses and a privilege log from Ahlholm. (Id., ¶¶ 9 and 10, Exh G and H.) On July 12, 2023, Jones sent a meet and confer email to Pallares regarding the supplemental responses and privilege log. (Id., ¶ 8, Exh F.) On July 27, 2023, Gardner agreed to review the requests and indicated responses might be supplemented. (Id.) Jones proposed that Ahlholm provide additional supplemental responses on or before August 18, 2023 and that Plaintiff’s deadline for filing any needed motion be extended to August 28, 2023. (Id.) On July 31, 2023, Ahlholm provided a supplemental privilege log only. (Id., ¶ 11, Exh. I). On August 2, 2023, counsel agreed that Pallares would provide a response to Plaintiff’s meet and confer by August 4, 2023 and that Plaintiff’s motion deadline would be extended to August 11, 2023. (Id., ¶ 8, Exh F.) On August 7, 2023, Gardner provided a substantive response to Plaintiff’s meet and confer communications and agreed to provide supplemental responses to certain requests, but did not state when those supplemental responses would be received. (Id., ¶ 12, Exh. J). When Jones inquired of Gardner as to when these responses would be served and requested that Gardner agreed to extend the motion deadline to September 8, 2023, Gardner advised that supplemental responses would be provided by August 9, 2023 and that Plaintiff could have a one-week extension as to “the remaining requests.” (Id.) Counsel thereafter exchanged communications regarding the propriety of “splitting” sets of discovery for purposes of motion filing before Jones agreeing that Plaintiff would have until August 18, 2023 to file a motion as to the requests that Ahlholm chose not to supplement and would file an additional motion as to any remaining deficiencies in Ahlholm’s second supplemental responses anticipated on August 9, 2023. (Id.) Ahlholm’s second supplemental responses were received on August 11, 2023. (Id., ¶ 14, Exh. L.)

At the outset, the court disagrees with Plaintiff’s contention that Ahlholm has waived his right to assert objections, based on the above communications between counsel. Pallares specifically advised Plaintiff’s counsel on May 3, 2023 that he had misread Plaintiff’s counsel’s prior communication as providing him with an extension until May 8, 2023, not May 1, 2023 and explicitly asked whether “this [would] be an issue. Otherwise, I will seek leave from the court on excusable neglect.” (Jones Decl., ¶ 4, Exh. B.) Plaintiff’s counsel never responded to this statement and, in fact, proceeded to engage in numerous meet and confer efforts which addressed the objections raised in Ahlholm’s discovery responses.

No. 1 seeks correspondence between Ahlholm and Twain Financial Partners (“Twain”) from 2015-present. No. 2 seeks documents relating to any agreements between Ahlholm and Twain from 2015-present.

No. 3 seeks documents relating to the asset purchase agreement between Ahlholm and American Healthcare Systems that took place in or around June 2022. No. 4 seeks correspondence relating to the agreement in No. 3. Nos. 5-8 seek correspondence between Ahlholm and SAH Acquisition/SAH Real Estate/SAH Jefferson/Feigen, respectively, relating to the agreement in No. 3.

Nos. 9-11 seek documents relating to operating agreements for SAH Acquisition/SAH Real Estate/SAH Jefferson, respectively.

Nos. 13 and 16-18 seek documents relating to correspondence concerning the Master Services Agreement (“MSA”) executed between Ahlholm/SAH Acquisition/SAH Real Estate/SAH Jefferson/Feigen and Plaintiff, respectively.

Nos. 19-21 seek documents relating to correspondence between Ahlholm and Feigen concerning the MSA between Plaintiff and SAH Acquisition/SAH Real Estate/SAH Jefferson, respectively.

Nos. 22-24 seek correspondence concerning any AIA contracts executed between SAH Acquisition/SAH Jefferson/SAH Real Estate and Plaintiff, respectively.

Nos. 25 and 26 seek correspondence concerning any AIA contracts executed between Feigen/Ahlholm and Plaintiff, respectively.

No. 27 seeks documents relating to correspondence between Ahlholm and Modern HR Payroll Company from 2020-present.

Nos. 28 and 29 seek documents relating to correspondence concerning the asset purchase agreement between Ahlholm and Feigen/American Healthcare Systems, respectively.

No. 30 seeks documents relating to correspondence about using money from the construction funds provided by Twain to cover operating expenses for South City Hospital (“Hospital” from 2020-present.

No. 31 seeks documents relating to agreements between Plaintiff and Twain concerning construction improvements to be performed for the benefit of Hospital from 2015-present.

Nos. 33-35 seek documents relating to SAH Acquisition’s/SAH Real Estate’s/SAH Jefferson’s balance sheets from 2015-present, respectively.

Nos. 36-38 seek documents relating to SAH Acquisition’s/SAH Real Estate’s/SAH Jefferson’s income statement from 2015-present, respectively.

Nos. 39-41 seek documents relating to SAH Acquisition’s/SAH Real Estate’s/SAH Jefferson’s cash flow statement from 2015-present, respectively.

Ahlholm provided objection-only responses to Nos. 1-11, 27-31 and 33-41; his responses to Nos. 13 and 16-26, moreover, contain substantive responses “without waiving these objections.” Ahlholm objected to each of the above requests on the basis that they were vague and ambiguous as to certain terms, were overly broad, sought irrelevant information, potentially violated the attorney client and/or attorney work product privileges and violated his privacy rights. Ahlholm also predicated his responses with a subsection entitled “General Objections.”

First, the court agrees that Ahlholm’s “General Objections” do not comply with Code of Civil Procedure §§ 2031.210 and 2031.240. Next, the court agrees that none of Ahlholm’s objections are well-taken. Ahlholm has offered no justification for his position that any of the requests are so vague and ambiguous and therefore overbroad that he cannot understand what he is being asked.

Additionally, although Ahlholm interposed an objection on the basis of attorney client and/or attorney work product privilege, Ahlholm has not met his burden of justifying this objection. “The party claiming the privilege has the burden of establishing the preliminary facts necessary to support its exercise, i.e., a communication made in the course of an attorney-client relationship.” (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733.) Further, “[i]f an objection is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.” (Code Civ. Proc., § 2031.240, subd. (c)(1).) “In general, . . . a privilege log typically should provide the identity and capacity of all individuals who authored, sent, or received each allegedly privileged document, the document's date, a brief description of the document and its contents or subject matter sufficient to determine whether the privilege applies, and the precise privilege or protection asserted.” (Catalina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4^th 1116, 1130.)

As Plaintiff points out, neither Ahlholm’s responses nor the privilege log specify which of the records being withheld are responsive to the specific requests to which the objection is asserted, Further, the privilege log only includes an “email subject” column, which does not sufficiently describe the documents and its contents or subject matter. (Jones Decl., ¶ 11, Exh. I). Further, while the log identifies Frank Saidara as an “attorney” involved in a majority of the communications listed therein, Plaintiff notes that Defendants have previously produced records that suggest that the relationship between Saidara and Defendants was not one of attorney and client(s) and that Saidara instead acted as a business partner, advisor and negotiator. (Id., ¶ 18, Exhs. P-S). Further, on August 15, 2022, Ahlholm emailed Plaintiff and copied Saidara, informing Plaintiff that Defendants had retained Mayer Klein of Frankel Rubin to represent them with regard to potential legal disputes. (Id., ¶ 18, Exh. T.) “[T]he attorney-client privilege does not attach to an attorney's communications when the client's dominant purpose in retaining the attorney was something other than to provide the client with a legal opinion or legal advice. For example, the privilege is not applicable when the attorney acts merely as a negotiator for the client or is providing business advice.” (Costco Wholesale Corp., supra, 47 Cal.4th at 735).

Ahlholm’s opposition simply states, without any further detail, that “Saidara served as the transactional counsel for the Defendants in their operation of the South City Hospital.” (Opp., 17:15-16). This statement is not supported by any declaration, nor was it included in Ahlholm’s responses. At the very least, it is evident that Ahlholm must provide a supplemental privilege log complying with Catalina Island Yacht Club, supra, 242 Cal.App.4th 1116 and 2031.240, subd. (c)(1)) and must provide further responses specifying which of the records being withheld are responsive to the specific requests to which the objection is asserted.

Additionally, it appears certain records being withheld by Ahlholm on the basis of attorney-client privilege are not so protected, including an email subsequently forwarded to third party Twain (Jones Decl., ¶ 18, Exh. U) and an attachment to an email (Id., Exh. V).

Next, Ahlholm’s relevancy objection lacks merit. “In the context of discovery, evidence is ‘relevant’ if it might reasonably assist a party in evaluating its case, preparing for trial, or facilitating a settlement.” (Glenfed Development Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117.) Plaintiff has alleged that Defendants misappropriated funds from the construction fund under the false premise that they had authority from Twain to use those funds for purposes not related to Plaintiff’s work on the project. An attorney representing AHS, which subsequently was under contract to acquire Hospital from the SAH Defendants, subsequently contacted Plaintiff and advised that Defendants had told AHS that Plaintiff had stolen approximately $5 million from the construction fund and that, as a result, AHS would not honor the MSA and AIA Contracts that Plaintiff has with the SAH Defendants. Plaintiff’s requests focus on Defendants’ relationships with one another, with Plaintiff and with third parties Modern HR, Twain and AHS.

Finally, Ahlholm’s privacy objection is not well-taken. “The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 551.)

The motion is granted in full. Ahlholm is to provide further, Code-compliant responses to Requests Nos. 1-11, 13, 16-31 and 33-41, as well as a supplemental privilege log, within 20 days from the date of the notice of ruling.

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 $1,190.00 [i.e., 3 hours for time expended with meet and confer, plus 10 hours researching and drafting 5 motions, plus 3 hours reviewing oppositions, drafting replies and preparing oral argument, plus 1 hour hearing at $350.00/hour, divided by 5]. Sanctions are payable within 30 days of the date of the hearing.

2. Motion to Compel Furthers Re: Requests for Production (i.e., as to Feigen)

Plaintiff moves the court for an order compelling Feigen to provide further responses to Plaintiff’s Request for Production, Set No. One (i.e., Nos. 1-11, 13, 16-31 and 33-41). Plaintiff also seeks sanctions against Feigen in the amount of $2,640.00.

See analysis re: Motion #2. The requests propounded to Feigen are identical to those set forth in Motion #2 (save that they are addressed to Feigen and thus swap any references to “Feigen” with “Ahlholm”).

The motion is granted in full. Feigen is to provide further, Code-compliant responses to Requests Nos. 1-11, 13, 16-31 and 33-41, as well as a supplemental privilege log, within 20 days from the date of the notice of ruling. Sanctions are awarded in the reduced amount of $1,190.00.

3. Motion to Compel Furthers Re: Requests for Production (i.e., as to SAH Real Estate)

Plaintiff moves the court for an order compelling SAH Real Estate to provide further responses to Plaintiff’s Request for Production, Set No. One (i.e., Nos. 1-7, 9-16 and 19-21). Plaintiff also seeks sanctions against SAH Real Estate in the amount of $2,640.00.

See analysis re: Motion #2. No. 1 seeks correspondence between SAH Real Estate and Twain Financial Partners (“Twain”) from 2015-present. No. 2 seeks documents relating to any agreements between SAH Real Estate and Twain from 2015-present.

No. 3 seeks documents relating to the asset purchase agreement between SAH Real Estate and American Healthcare Systems that took place in or around June 2022. No. 4 seeks correspondence relating to the agreement in No. 3. Nos. 5 and 6 seek correspondence between SAH Real Estate and Feigen/Ahlholm, respectively, relating to the agreement in No. 3.

No. 9 seeks documents relating to correspondence concerning the MSA executed between SAH Real Estate and Plaintiff.

Nos. 10 and 11 seek documents relating to correspondence between SAH Real Estate and Feigen/Ahlholm concerning the MSA, respectively.

No. 12 seeks documents relating to correspondence between SAH Real Estate and Modern HR Payroll Company from 2020-present.

No. 13 seeks documents relating to correspondence concerning the asset purchase agreement between SAH Real Estate and Feigen.

No. 14 seeks documents relating to correspondence concerning the asset purchase agreement executed between SAH Real Estate and American Healthcare Systems.

No. 15 seeks documents relating to correspondence about using money from the construction fund provided by Twain to cover operating expenses for Hospital from 2020-present.

No. 16 seeks documents relating to agreements between SAH Real Estate and Twain concerning construction improvements to be performed for the benefit of Hospital from 2015-present.

Nos. 19-21 seek documents relating to SAH Real Estate’s balance sheets/income statement/cash flow statement from 2015-present, respectively.

SAH Real Estate’s responses to Requests Nos. 1-7, 12-16 and 19-21 contain only objections, and its responses to Requests Nos. 9-11 contain substantive responses “without waiving these objections.”

The motion is granted in full. SAH Real Estate is to provide further, Code-compliant responses to Requests Nos. 1-7, 9-16 and 19-21, as well as a supplemental privilege log, within 20 days from the date of the notice of ruling. Sanctions are awarded in the reduced amount of $1,190.00.

4. Motion to Compel Furthers Re: Requests for Production (i.e., as to SAH Jefferson)

Plaintiff moves the court for an order compelling SAH Jefferson to provide further responses to Plaintiff’s Request for Production, Set No. One (i.e., Nos. 1-7, 9-16 and 19-21). Plaintiff also seeks sanctions against SAH Jefferson in the amount of $2,640.00.

See analysis re: Motion #3. The requests propounded to SAH Jefferson appear identical to those set forth in Motion #3 (save that they are addressed to SAH Jefferson and thus swap any references to “SAH Real Estate” with “SAH Jefferson”).

The motion is granted in full. SAH Jefferson is to provide further, Code-compliant responses to Requests Nos. 1-7, 9-16 and 19-21, as well as a supplemental privilege log, within 20 days from the date of the notice of ruling. Sanctions are awarded in the reduced amount of $1,190.00.

5. Motion to Compel Furthers Re: Requests for Production (i.e., as to SAH Acquisition)

Plaintiff moves the court for an order compelling SAH Acquisition to provide further responses to Plaintiff’s Request for Production, Set No. One (i.e., Nos. 1-7, 9-17 and 20-22). Plaintiff also seeks sanctions against SAH Acquisition in the amount of $2,640.00.

See analysis re: Motion #3. Plaintiff represents that Requests Nos. 11-17 and 20-22 as to SAH Acquisition are different from those addressed to SAH Real Estate and SAH Jefferson; accordingly, the remaining requests (i.e., 1-7, 9 and propounded to SAH Acquisition are identical to those set forth in Motion #3 (save that they are addressed to SAH Acquisition and thus swap any references to “SAH Real Estate” with “SAH Acquisition”).

Requests Nos. 11 and 12 seek documents relating to correspondence between SAH Acquisition and Feigen/Ahlholm concerning the MSA executed between SAH Acquisition and Plaintiff, respectively.

No. 13 seeks documents relating to correspondence between SAH Acquisition and Modern HR Payroll Company from 2020-present.

No. 14 seeks documents relating to correspondence concerning the asset purchase agreement executed between SAH Acquisition and Feigen.

No. 15 seeks documents relating to correspondence concerning the asset purchase agreement executed between SAH Acquisition and American Healthcare Systems.

No. 16 seeks documents relating to correspondence about using money from the construction fund provided by Twain to cover operating expenses for Hospital from 2020-present.

No. 17 seeks documents relating to agreements between SAH Acquisition and Twain concerning construction improvements to be performed for the benefit of Hospital from 2015-present.

Nos. 20-22 seek documents relating to SAH Acquisition’s balance sheets/income statement/cash flow statement from 2015-present, respectively.

The motion is granted in full. SAH Acquisition is to provide further, Code-compliant responses to Requests Nos. 1-7, 9-17 and 20-22, as well as a supplemental privilege log, within 20 days from the date of the notice of ruling. Sanctions are awarded in the reduced amount of $1,190.00.

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 demand for inspection, copying, testing, or

sampling is directed fails to serve a timely response to it, . . . [t]he party making the demand may

move for an order compelling response to the demand.” (Code Civ. Proc., § 2031.300, subd. (b).)

“[T]he court shall impose a monetary sanction . . . against any party, person, or attorney who

unsuccessfully makes or opposes a motion to compel a response to a demand for inspection,

copying, testing, or sampling, 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.”

Plaintiff moves the court for an order compelling Ahlholm to provide responses, without objections, to Plaintiff’s Requests for Production of Documents, Set Two. Plaintiff also seeks sanctions against Ahlholm and his attorney of record in the amount of $687.50.

Ahlholm, in turn, asserts that the motion should be denied as moot, because he served responses on October 27, 2023. (Gardner Decl., ¶ 44, Exh. 9.) Ahlholm’s responses, however, contain objections which have been waived. (See analysis on Motion #11).

Plaintiff’s motion is granted. Ahlholm is ordered to provide amended responses, without objections, within 20 days from the date of the notice of ruling.

Plaintiff seeks sanctions against Ahlholm and his attorney of record in the amount of $687.50

[calculated as follows: 3 hours preparing motions, plus 1 hour reviewing oppositions, preparing replies and preparing for hearing, plus 1 hour attending hearing at $550.00/hour, divided by 4].

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 $497.50 [i.e., 3 hours preparing motions, plus 1 hour reviewing oppositions, preparing replies and preparing for hearing, plus 1 hour attending hearing at $350.00/hour, divided by 4]. Sanctions are imposed against Ahlholm and his attorney of record and are payable within 30 days of the notice of ruling.

Plaintiff moves the court for an order compelling Feigen to provide responses, without objections, to Plaintiff’s Requests for Production of Documents, Set Two. Plaintiff also seeks sanctions against Feigen and his attorney of record in the amount of $687.50.

Feigen asserts that the motion should be denied as moot, because he served responses on October 27, 2023. (Gardner Decl., ¶ 44, Exh. 9.) Feigen’s responses contain objections which have been waived. (See analysis on Motion #11).

Plaintiff’s motion is granted. Feigen is ordered to provide amended responses, without objections, within 20 days from the date of the notice of ruling.

Plaintiff seeks sanctions against Feigen and his attorney of record in the amount of $687.50

Utilizing a Lodestar approach, and in view of the totality of the circumstances, the court will impose sanctions of $497.50, as per the calculation on Motion #6 against Fegen and his attorney of record, which are payable within 30 days of the notice of ruling.

8. Motion to Compel Re: Requests for Production (i.e., as to SAH Real Estate)

Plaintiff moves the court for an order compelling SAH Real Estate to provide responses, without objections, to Plaintiff’s Requests for Production of Documents, Set Two. Plaintiff also seeks sanctions against SAH Real Estate and his attorney of record in the amount of $687.50.

SAH Real Estate asserts that the motion should be denied as moot, because it served responses on October 27, 2023. (Gardner Decl., ¶ 44, Exh. 9.) SAH Real Estate’s responses contain objections which have been waived. (See analysis on Motion #11).

Plaintiff’s motion is granted. SAH Real Estate is ordered to provide amended responses, without objections, within 20 days from the date of the notice of ruling.

Plaintiff seeks sanctions against SAH Real Estate and its attorney of record in the amount of $687.50 [See calculation on Motion #6].

Utilizing a Lodestar approach, and in view of the totality of the circumstances, the court will impose sanctions of $497.50, as per the calculation on Motion #6 against SAH Real Estate and its attorney of record, which are payable within 30 days of the notice of ruling.

Plaintiff moves the court for an order compelling SAH Jefferson to provide responses, without objections, to Plaintiff’s Requests for Production of Documents, Set Two. Plaintiff also seeks sanctions against SAH Jefferson and its attorney of record in the amount of $687.50.

SAH Jefferson asserts that the motion should be denied as moot, because it served responses on October 27, 2023. (Gardner Decl., ¶ 44, Exh. 9.) SAH Jefferson’s responses contain objections which have been waived. (See analysis on Motion #11).

Plaintiff’s motion is granted. SAH Jefferson is ordered to provide amended responses, without objections, within 20 days from the date of the notice of ruling.

Plaintiff seeks sanctions against SAH Jefferson and its attorney of record in the amount of $687.50 [See calculation on Motion #6].

Utilizing a Lodestar approach, and in view of the totality of the circumstances, the court will impose sanctions of $497.50, as per the calculation on Motion #6 against SAH Jefferson and its attorney of record, which are payable within 30 days of the notice of ruling.

10. Motion to Compel Re: Requests for Production (i.e., as to SAH Acquisition)

Plaintiff moves the court for an order compelling SAH Acquisition to provide responses, without objections, to Plaintiff’s Requests for Production of Documents, Set Two. Plaintiff also seeks sanctions against SAH Acquisition SAH Jefferson and its attorney of record in the amount of $1,237.50.

SAH Acquisition asserts that the motion should be denied as moot, because it served responses on October 27, 2023. (Gardner Decl., ¶ 44, Exh. 9.) SAH Acquisition’s responses contain objections which have been waived. (See analysis on Motion #11).

Plaintiff’s motion is granted. SAH Acquisition is ordered to provide amended responses, without objections, within 20 days from the date of the notice of ruling.

Plaintiff seeks sanctions against SAH Acquisition and its attorney of record in the amount of $1,237.50 [calculated as follows: 1 hour preparing motion, plus 0.25 hours reviewing opposition, preparing reply and preparing for hearing, plus 1 hour attending hearing at $550.00/hour].

Utilizing a Lodestar approach, and in view of the totality of the circumstances, the court will impose sanctions of $497.50, as per the calculation on Motion #6 against SAH Acquisition and its attorney of record, which are payable within 30 days of the notice of ruling.

“If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to

serve a timely response to it, the following rules shall apply: (a) The party to whom the demand for inspection, copying, testing, or sampling is directed waives any objection to the demand, including one based on privilege or on the protection for work product. . . The court, on motion, may relieve that party from this waiver on its determination that both of the following conditions are satisfied: (1) The party has subsequently served a response that is in substantial compliance with Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280. (2) The party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.”

Defendants move the court, pursuant to Code of Civil Procedure § 2031.300, for an order granting them relief from any purported waiver of their objections and references to document production to the following five sets of discovery:

Defendants’ motion “is made on the grounds that Plaintiff reneged on an agreement regarding the timing and chronology of discovery in this matter such that Plaintiff is estopped from seeking the waiver of Defendants’ objections and references to documents in Defendants’ discovery responses.” (Motion, 2:20-23).

Defendants’ counsel Quinn Gardner (“Gardner”) represents, and/or the attached exhibits reflect, as follows:

On June 16, 2023, Plaintiff served its Requests for Production, Sets No. Two (“subject discovery”) on Defendants. (Gardner Decl., ¶ 20). Defendants failed to calendar the due date for their responses thereto. (Id., ¶ 21). Due to Defendants’ extensive meet and confer process with Plaintiff in relation to Plaintiff’s first set of document production requests, Defendants did not respond in a timely manner to the subject discovery. (Id., ¶ 22). When, on or about August 24, 2023, SAH Acquisition served its initial discovery requests to Plaintiff, Plaintiff requested responses to the subject discovery. (Id., ¶ 23). On August 31, 2023, Defendants agreed to provide responses to the subject discovery by September 8, 2023. (Id., ¶ 24). On September 5, 2023, Gardner sent a letter to Plaintiff’s counsel James Daily (“Daily”), advising therein that SAH Acquisition had filed for involuntary bankruptcy and that the bankruptcy filing stayed the action. (Id., ¶ 25, Exh. 3). Gardner’s letter requested that Daily “advise if [he] disagree[d] as soon as possible.” (Id.) On September 6, 2023, Daily emailed Gardner and other counsel, citing legal authority and advising therein that “[w]e firmly believe the stay is confined solely to SA[H] [Acquisition].” (Id., ¶ 27, Exh. 4.) On September 6, 2023, Plaintiff’s counsel Michael Jones (“Jones”) proposed that the parties agree to mutual deadline extensions in relation to Plaintiff’s first set of document production requests; in return, Gardner reiterated her position that the automatic stay applied to the entire litigation, but that she would review Daily’s response, and that she was agreeable to a mutual four-week extension. (Id., ¶ 29, Exh. 5).

On September 7, 2023, Jones agreed to the extension, stating that “Plaintiff’s deadline to bring any necessary motions on the discovery responses highlighted in the meet and confer letter dated yesterday is therefore extended until October 25, 2023.” (Id., ¶ 30, Exh. 6 [Emphasis added].) Jones also requested that Gardner review Daily’s legal authority regarding the bankruptcy stay and provide any analysis in support of her contrary position. (Id.) On September 11, 2023, Plaintiff filed four motions to compel with respect to the subject discovery. (Id., ¶ 31). On September 19, 2023, Gardner emailed Daily and Jones, acknowledging receipt of the motions to compel and advising that “[o]n September 7, 2023 we emailed your office and stated that due to SA Hospital Acquisition Group’s bankruptcy we believe that the automatic stay applies to the entire litigation. Your office responded and stated a position that the stay did not apply to all defendants. We then requested an extension to provide responses so that we could respond to your client’s position. Upon your agreement, we did not proceed to serve responses as we understand that the automatic stay applies.” (Id., ¶ 32, Exh. 7). Gardner requested that the motions to compel be withdrawn until the court resolved the issue of the stay. (Id.)

That same day, Jones advised Gardner that the mutual extension on September 7, 2023 only covered Plaintiff’s first set of document production requests and reiterating his firm’s position that the stay pertained only to SAH Acquisition. (Id., ¶ 33, Exh. 8). On October 4, 2023, Plaintiff filed its fifth motion to compel with respect to the subject discovery. (Id., ¶ 34). On October 19, 2023, Plaintiff requested an extension to October 30, 2023 to provide responses, which was granted. (Id., ¶ 36). On October 27, 2023, Defendants served responses. (Motion, 6:18-19).

The court cannot determine whether or not Defendants subsequently served responses that are in substantial compliance with Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280, inasmuch as Gardner has failed to attach Defendants’ respective responses purportedly served on October 27, 2023 to her moving declaration. Plaintiff cannot remedy this deficiency on reply.

Further, the court determines that Defendants have not demonstrated that their respective failures to serve timely responses resulted from mistake, inadvertence, or excusable neglect. The subject discovery was served on June 16, 2023. (Gardner Decl., ¶ 20). Gardner first attests that Defendants failed to calendar the due date for their responses thereto, but then attests that Defendants failed to respond in a timely manner “[d]ue to the Defendants[‘] extensive meet and confer process with the Plaintiff in relation to Plaintiff’s first set of document production requests. (Id., ¶¶ 21 and 22). No further explanation is provided, nor is the identity of the individual who failed to calendar the response deadline disclosed. It is unclear how “extensive” meet and confer efforts conducted on a separate set of discovery would affect the timeliness of responses to the instant discovery.

Jones has provided the court with a copy of his August 24, 2023 email, in which he advised Defendants that no responses had been received and that such responses were untimely and all objections were waived. (Jones Decl., ¶ 5, Exh. A). On August 31, 2023, Gardner responded that responses would be provided by “end of next week.” (Id., ¶ 6, Exh. B.) At no point did Plaintiff agree that Defendants were relieved from their waiver of objections. (Id., ¶ 7). On September 5, 2023, Gardner took the position that SAH Acquisition’s bankruptcy filing stayed the entire action. (Gardner Decl., ¶ 25, Exh. 3). It does not appear that Gardner considered the authorities to the contrary provided by counsel. At any rate, SAH Acquisition’s involuntary bankruptcy filing occurred after the subject discovery responses were already overdue.[1]

Again, Defendants’ motion “is made on the grounds that Plaintiff reneged on an agreement regarding the timing and chronology of discovery in this matter such that Plaintiff is estopped from seeking the waiver of Defendants’ objections and references to documents in Defendants’ discovery responses.” (Motion, 2:20-23). This is erroneous. It is clear from the communications attached to Gardner’s declaration that the mutual deadline extensions agreed to between counsel pertained to Plaintiff’s first set of document production requests only. Defendants simply failed to timely respond to the subject discovery.

The rules governing demurrers are generally applicable to a motion for judgment on the pleadings. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999; Code Civ. Proc., § 438, subd. (d) [“The grounds for motion. . . shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. Where the motion is based on a matter of which the court may take judicial notice. . ., the matter shall be specified in the notice of motion, or in the supporting points and authorities, except as the court may otherwise permit”].)

A motion by a defendant may only be made on the grounds that “[t]he court has no jurisdiction of the subject of the cause of action alleged in the complaint” or that “[t]he complaint does not state facts sufficient to constitute a cause of action against that defendant.” (Code Civ. Proc., § 438, subd. (c)(1)(B).)

Although a nonstatutory motion “may be made at any time either prior to the trial or at the trial itself” (Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650 [quotation marks and citation omitted]), a statutory motion cannot be made after entry of a pretrial conference order or 30 days before the initial trial date, whichever is later, unless the court otherwise permits. (Code Civ. Proc., § 438, subd. (e).)

Feigen, Ahlholm, SAH Acquisition, SAH Real Estate and SAH Jefferson move for judgment on the pleadings as to the second, third and fifth causes of action[2] in Plaintiff’s FAC.

“[T]he elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821).

Plaintiff has alleged that on or about January 20, 2021, Plaintiff and SAH Acquisition, SAH Real Estate and SAH Jefferson (together, the “SAH Defendants”), by and through their owners/agents, Feigen and Ahlholm, entered into a Master Service Agreement (“MSA”), which governed the terms twelve subcontracts (“AIA Contracts”) entered into between Plaintiff and the SAH Defendants, by and through their owners/agents, Feigen and Ahlholm (FAC, ¶¶ 19, 21 and 54-56); that the SAH Defendants, by and through Feigen and Ahlholm, breached the MSA and the AIA Contacts by misappropriating construction funds rather than use those funds to pay Plaintiff to perform under the MSA and the AIA Contacts (Id., ¶ 57); that, prior to the breach, Plaintiff performed all requirements under the MSA and AIA Contracts (Id., ¶ 59); and that Plaintiff was damaged (Id., ¶¶ 58, 60 and 61). Defendants fail to provide any legal authority for their position that Plaintiff needed to allege facts “that detail whether or not Plaintiff performed their duties under the MSA and/or AIA contracts or were excused.” (Motion, 6:7-9 [Emphasis added].)

Penal Code § 496, subdivision (a) “defines the criminal offense of what is commonly referred to as receiving stolen property.” (Siry Investment, L.P. v. Farkhondehpour (2022) 13 Cal.5^th 333, 346.) Subdivision (a) provides, in relevant part, that “[e]very person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment. . .” Subdivision (c) permits “[a]ny person . . .injured by a violation of subdivision (a) or (b) [to] bring an action for three times the amount of actual damages, if any, sustained by the plaintiff, costs of suit, and reasonable attorney's fees.

“The essential elements of receiving stolen property are: (1) The property must be stolen property, (2) the defendant must receive, conceal, or withhold it or aid in receiving, concealing or withholding it from its owner, (3) and defendant must have knowledge that the property is stolen property.” (People v. Schoeder (1968) 264 Cal.App.2d 217, 225.)

Theft is defined in Penal Code § 484 as occurring when, inter alia, a person “feloniously steal[s], take[s], lead[s], or drive[s] away the personal property of another, or knowingly and designedly, by any false or fraudulent representation or pretense, defraud[s] any other person of money, labor or real or personal property, or . . . causes or procures others to report falsely of his or her wealth or mercantile character and by thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains possession of money, or property or obtains the labor or service of another. . .”

Defendants have conceded that Plaintiff “for purposes of the pleadings, satisfied the elements for fraud and deceit.” (Motion, 3:10). Here, Plaintiff has alleged that Defendants “misappropriated funds from the Construction Fund, in a manner constituting theft, under the false pretense that they had authority from Twain to use these funds for other purposes not related to Plaintiff’s construction work.” (Id., ¶ 68). Plaintiff has alleged that even though, pursuant to the agreement between Defendants and Twain, the construction funds were provided to Plaintiff by Twain, Defendants made it clear to Plaintiff that the funds could only be used or distributed as they directed, and forbade Plaintiff from contacting Twain regarding use of the funds. (FAC, ¶¶ 20, 24-30 and 49). Plaintiff has alleged that “Defendants knowingly obtained, received, withheld and/or concealed the Construction Funds with the intent to deprive Plaintiff and/or Twain of its use permanently and have knowingly, willfully, and deliberately, aided the other Defendants in obtaining, receiving, withholding, and/or concealing said monies, knowing that such property has been stolen from Plaintiff’s possession or from Twain or obtained in a manner constituting theft.” (Id., ¶ 74). Plaintiff has also alleged that, once Twain learned that Feigen and Ahlholm had requested construction funds from Plaintiff and that Plaintiff had transferred construction funds to Feigen and Ahlholm, Twain stopped funding the projects as this was a violation of the agreement that Twain had with Defendants, which caused damage to Plaintiff. (Id., ¶¶ 34 and 73).

Defendants argue that Plaintiff has somehow “elected to pursue recovery via tort” and cannot inconsistently plead “both in tort and in equity.” (Motion, 8:21-26). Defendants have failed to provide the court with any legal authority in support of their argument.

13. Motion to Compel Furthers Re: Requests for Production (i.e., as to Plaintiff)

SAH Acquisition, Ahlholm and Feigen move the court for an order compelling Plaintiff to provide further responses to their respective Requests for Production, Sets No. One (i.e., Nos. 8-11, 17-18, 30-32, 43, 57, 61-64 and 66).

At the outset, the court notes that while the instant motion purports to put at issue three separate sets of discovery served by three separate defendants in this action—namely, SAH Acquisition, Ahlholm and Feigen—the motion fails to provide the court with the discovery requests, or the responses thereto, served by Ahlholm and Feigen.[3] The court, then, declines to consider the instant motion as it pertains to Ahlholm and Feigen and will provide an analysis as it pertains to SAH Acquisition only.

Additionally, SAH Acquisition’s separate statement reflects non-compliance with California Rules of Court (“CRC”) Rule 3.1345, subdivision (c), in that SAH Acquisition has failed to provide the court with “the text of all definitions, instructions, and other matters required to understand each discovery request and the responses to it.” Regardless, the court has the discretion to consider the motion notwithstanding a violation of Rule 3.1345 and will do so in this instance. (Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 893).

On August 24, 2023, SAH Acquisition served its Requests for Production, Set No. One (“subject discovery”) on Plaintiff. (Gardner Decl., ¶ 8, Exh. 1). On September 5, 2023, Plaintiff was informed that SAH Acquisition was involved in an involuntary bankruptcy proceeding. (Id., ¶ 9). On October 19, 2023 and after the bankruptcy was dismissed as to SAH Acquisition, Plaintiff’s counsel Jones acknowledged that Plaintiff’s responses were due October 23, 2023 and requested an extension to October 30, 2023; said request was granted. (Id., ¶¶ 12 and 13, Exhs. 2 and 3). On October 30, 2023, Plaintiff served objection-only responses. (Id., ¶ 15, Exh. 4.) On November 7, 2023, Gardner sent a meet and confer letter to Jones, requesting therein that supplemental responses be provided by November 9, 2023 (erroneously stated as October 9, 2023 in the letter). (Id., ¶ 18, Exh. 6.) Jones, in return, advised that Plaintiff would provide substantive amended responses no later than November 27, 2023 and offered to extend SAH Acquisition’s motion deadline to January 18, 2023. (Id., ¶ 20, Exh. 8). On November 8, 2023, SAH Acquisition requested an Informal Discovery Conference (“IDC”) with the court. (Id., ¶ 19, Exh. 7). The court set an IDC for November 28, 2023. (Id., ¶ 22). On November 27, 2023, Plaintiff served amended responses. (Id., ¶ 25, Exh. 11). On November 28, 2023, the court ruled that SAH Acquisition was allowed to file discovery motions. (Id., ¶ 26). On December 4, 2023 and December 5, 2023, Gardner sent meet and confer communications to Jones, requesting therein that amended responses be provided by December 15, 2023. (Id., ¶¶ 27 and 28, Exhs. 13 and 14). On December 15, 2023, Plaintiff served supplemental responses. (Id., ¶ 30, Exh. 15).

Again, the requests in issue are Nos. 8-11, 17-18, 30-32, 43, 57, 61-64 and 66. SAH Acquisition claims that Plaintiff’s responses “are evasive and violate Code of Civil Procedure Section 2031.220.” This ground, however, does not appear to have been raised by SAH Acquisition in its meet and confer communications, such that the instant motion may be denied on this basis alone. Regardless, Plaintiff provided responses as follows: “Based on Responding Party’s understanding of the information sought, and following a diligent and reasonable inquiry to locate the information requested, all responsive documents that are in Responding Party’s possession, custody, and control will be produced, and identified bates labels . . .” SAH Acquisition does not explain how the phrase “[b]ased on Responding Party’s understanding of the information sought” violates Section 2031.220.[4] Plaintiff’s December 15, 2023 supplemental responses as to Requests Nos. 8-11, 17, 18, 30, 62, 63 and 66 do not contain any objections. The motion, then, is denied as to Nos. 8-11, 17, 18, 30, 62, 63 and 66.

Further, regardless of the objections asserted in Nos. 31, 32, 43, 57, and 61, Plaintiff provided Code-compliant substantive responses and identified specific records that were produced. Plaintiff, in response to No. 64, advised that it was “unable to produce any response records [sic], as none have ever existed.”

[1] The involuntary bankruptcy against SAH Acquisition was dismissed September 28, 2023, yet Defendants failed to serve responses until October 27, 2023. (Jones Decl., ¶ 10).

[2] Defendants’ notice of motion indicates that the motion is directed to Plaintiff’s causes of action for fraud and deceit, breach of contract and violation of Penal Code section 496(c) causes of action, which are the first through third causes of action in the FAC; however, Defendants subsequently states that “Plaintiff, for purposes of the pleadings, satisfied the elements for fraud and deceit, [but] the FAC remains deficient as to Plaintiff’s breach of contract and violation of penal code section 496(c).” (Motion, 3:10-12). The body of the motion subsequently addresses the causes of action for breach of contract, Penal Code § 496(c) and Money Had and Received, which are the second, third and fifth causes of action. Plaintiff’s opposition addresses Defendants’ arguments on the second, third and fifth causes of action, notwithstanding the deficient notice. The court’s analysis will focus on the second, third and fifth causes of action.

[3] Moving parties have also only paid one filing fee and reserved a hearing for one motion, which is improper.

[4] Section 2031.200 provides that “[a] statement that the party to whom a demand for inspection, copying, testing, or sampling has been directed will comply with the particular demand shall state that the production, inspection, copying, testing, or sampling has been directed will comply with the particular demand shall state that the production, inspection, copying, testing, or sampling, and related activity demanded, will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.”