Judge: Ralph C. Hofer, Case: 22GDCV00336, Date: 2023-10-27 Tentative Ruling
Case Number: 22GDCV00336 Hearing Date: December 15, 2023 Dept: D
TENTATIVE RULING
Calendar: 3
Date: 11/3/2023
Case No: 22 GDCV00336 Trial Date: Jan. 13, 2025
Case Name: Korea Trade Insurance Corporatation v. Mix & Match Apparel, Inc.
MOTION TO COMPEL RESPONSES TO REQUEST FOR DOCUMENTS MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS
FOR ADMISSIONS
Moving Party: Defendant and Cross-complainant Mix & Match Apparel, Inc.
Responding Party: Cross-defendant Mido Trade Co., Ltd.
RELIEF REQUESTED:
Responses to Request for Documents
Further Responses to Requests for Admissions, Nos. 6-8, 12-17, 19-24 and 35-37.
FACTUAL BACKGROUND
Plaintiff Korea Trade Insurance Corporation alleges that it is assignee to Mido Trade Co., Ltd, and brings this action for common counts, alleging that defendant Mix & Match Apparel, Inc. has become indebted to plaintiff in the sum of $152,244.49. The complaint alleges causes of action for open book account, account stated, and reasonable value.
Defendant Mix & Match Apparel, Inc. has filed a cross-complaint against Mido Trade Co., Ltd., alleging that in July and August of 2020, cross-complainant and cross-defendant entered into a written agreement by way of a series of purchase orders and invoices whereby cross-defendant agreed to sell and cross-complainant agreed to purchase certain women’s leggings. The cross-complaint alleges that cross-defendant breached the contract by failing to deliver conforming goods, failing to have the goods manufactured at the main factory of cross-defendant, placing false UPC codes on the goods, failing to inspect the goods in a proper manner, and delivering goods that were “bleeding” and had sewing defects so that the goods failed to pass inspection with an acceptable defect rate. The cross-complaint alleges that as a direct result of cross-defendant’s breach, cross-complainant has been damaged.
It is also alleged that during the negotiations for the sale of the goods, cross-defendant falsely represented the goods would be manufactured at the main factory of cross-defendant, that correct UPC codes would be placed on the goods, and that the goods would be inspected in a proper manner and pass inspection at an acceptable defect rate and that the goods would otherwise conform to the specifications required by cross-complainant. The cross-complaint alleges causes of action for breach of contract, breach of implied warranty of merchantability, breach of implied warranty of fitness for a particular purpose, fraud, negligent misrepresentation, and fraudulent billing.
ANALYSIS:
Requests for Production of Documents
Defendant and cross-complainant Mix & Match Apparel, Inc. brings these two motions to compel discovery responses and further discovery responses from cross-defendant Mido Trade Co., Ltd.
The first motion seeks responses to requests for production of documents.
Under CCP § 2031.300, “if a party to whom a demand for inspection, copying, testing or sampling is directed fails to serve a timely response to it,” that party “waives any objection to the demand, including one based on privilege or on the protection for work product...” Under subdivision (b), “the party making the demand may move for an order compelling response to the demand.”
In this case, the moving papers sufficiently establish that document production demands were served on June 12, 2023, designating a production date of July 31, 2023, providing more time than was statutorily required. [Park Decl., paras. 3-4, Ex. 1]. It is also established that cross-defendant requested and was permitted multiple extensions of time to respond, up until August 27, 2023 and then September 7, 2023 by 5 pm. [Park Decl., paras. 3-4, 6; Ex. 2]. When there were no responses served and no response made to the email extending the final extension to respond, this motion was filed. [Park Decl., paras. 6-7, Ex. 2].
Cross-defendant accordingly has failed to provide timely responses and cross-complainant has appropriately moved for an order to compel. Accordingly, cross-defendant has waived all objections, and is ordered to respond and permit inspection and copying of all responsive documents.
Cross-defendant in opposition does not dispute that timely responses were not, and evidently have not yet been, served, but argues that the motion should be denied as the parties were still meeting and conferring concerning production of the documents. As noted in the moving papers, there is no meet and confer requirement included in CCP § 2031.300, and cross-complainant had no obligation to meet and confer at all, nor to extend further extensions to respond before filing a motion to compel upon cross-defendant failing to meet the last agreed to deadline. Cross-defendant argues that cross-complainant emailed indicating that if he did not hear from counsel by 5 pm on the same date, the motion would be filed. The motion was then served at 5:20 pm on that date. The court file shows the motion was filed on the following date, September 8, 2023, at 4:49 pm. In any case, the motion was not served or filed until after the last extension to respond had expired. The attached email, which was also attached to the moving papers, shows that not only was counsel for cross-complainant awaiting the responses, but had requested a stipulation for an extension of time to file motions to compel, which had also not been responded to, with counsel noting that it was cross-complainant’s understanding that the last day to file motions would be September 8, 2023, the date that the motions were filed. [Kim Decl., Ex. 2]. Counsel reasonably filed the motions when they were filed in order to comply with cross-complainant’s own deadlines and obligations in this matter.
Clearly, the opposition does not excuse cross-defendant’s failure to timely serve responses to the discovery, particularly as cross-complainant had no meet and confer obligations under the circumstances. To the extent the opposition appears to reserve the right to file a motion to seek relief from waiver of objections, the opposition correctly notes that an appropriate noticed motion must be brought to obtain such affirmative relief. Meanwhile, the current motion is granted, and responses, without objections, which have been waived under statute, is ordered to be served.
Requests for Admissions
Cross-complainant Mix & Match has also filed a motion seeking further responses by cross-defendant Mido Trade to Requests for Admissions.
Under CCP § 2017.010, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action...if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.”
Under CCP Section 2033.290:
“(a) On receipt of a response to requests for admissions, the party requesting admissions may move for an order compelling a further response if that party deems that either or both of the following apply:
(1) An answer to a particular request is evasive or incomplete.
(2) An objection to a particular request is without merit or too general.”
The moving papers argue that the items at issue, Nos. 6-8, 12-17, 19-24, and 35-37 are each objected to on the same ground, in effect, that the request is “Vague and ambiguous,” or “Vague and and ambiguous as to” particular stated terms.
RFAs Nos. 20-24, 35-37
These RFAs are the RFAs objected to generally, and request:
“20. During the negotiations for the sale of the GOODS, MIDO represented to MIX & MATCH APPAREL, INC. that MIDO would have the GOODS manufactured at the main factory of MIDO.
21. During the negotiations for the sale of the GOODS, MIDO represented to MIX & MATCH APPAREL, INC. that MIDO would have the GOODS manufactured at the main factory of MIDO.
22. During the negotiations for the sale of the GOODS, MIDO represented to MIX & MATCH APPAREL, INC. that it would inspect the GOODS in a proper manner.
23. During the negotiations for the sale of the GOODS, MIDO represented to MIX & MATCH APPAREL, INC. that the GOODS would pass the inspection with an acceptable defect rate.
24. During the negotiations for the sale of the GOODS, MIDO represented to MIX & MATCH APPAREL, INC. that the GOODS would conform to the specifications required by MIX & MATCH APPAREL, INC….
35. During the negotiations for the sale of the GOODS, MIDO represented to MIX & MATCH APPAREL, INC. that the GOODS would conform to the specifications required by MIX & MATCH APPAREL, INC.
36. MIDO knew at all relevant times to this action that the GOODS would fail to pass the inspection with an acceptable defect rate.
37. MIDO issued invoices to MIX & MATCH APPAREL, INC., describing the GOODS as conforming the specifications required by MIX & MATCH APPAREL, INC.”
The responses to each of these RFAS are the same:
“Objection. Vague and ambiguous.”
It is not specified in connection with any of these RFAs what part of the RFA renders it vague and ambiguous.
As argued in the opposition, it is not clear what is vague or ambiguous about any of these RFAs, and the language appears plain and simple.
Under CCP § 2033.220, with respect to answers to Requests for Admissions:
“(a) Each answer in a response to requests for admission shall be as complete and straightforward as the information reasonably available to the responding party permits.
(b) Each answer shall:
(1) Admit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by the responding party.
(2) Deny so much of the matter involved in the request as is untrue.
(3) Specify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge.”
Because this language is so broad and permits the qualification of response by a responding party, it is held that it not proper ground for objection that a request for admission is vague or “ambiguous,” unless it is so ambiguous that the responding party cannot in good faith make an intelligent reply. See Cembrook v. Superior Court (1961) 56 Cal.2d 423, 428-430.
The objections are not appropriate to the subject RFAs.
Cross-defendant in opposition does not explain or justify this broad objection as to any of the RFAs at issue. The opposition makes an overreaching argument that although moving party may think terminology such as “bleeding” has a plain meaning as used in the textile/fashion industry, it does not have a plain meaning, and not as against responding party Mido Trade, which is a foreign South Korean company. Cross-defendant also argues that terms such as “defect,” “defect rate,” “implied warranty of merchantability” or “inspect the goods in proper manner” are validly objected to, and that responding party lacks knowledge as to what the requesting party considers to be “bleeding,” or “beyond defect rate,” and so forth.
As pointed out in the reply, it is still not specified which terms in the above RFAs are objectionable. Of the eight RFAs above, in fact, none of them include the terms “bleeding” or “implied warranty of merchantability,” and only three of the eight include the other terms mentioned. There is absolutely no explanation of what terminology in the remaining five RFAs is vague or ambiguous. In any case, if the responding party indeed did not know what any of these terms meant, the proper response would be to respond by qualifying the responses, providing responding party’s own understanding of the definition, or to state responding party is “unable to admit or deny,” with an explanation of why that is the case according to Code.
Specifically, section 2033.220, subdivision (c) provides:
“If a responding party gives lack of information or knowledge as a reason for a failure to admit all or part of a request for admission, that party shall state in the answer that a reasonable inquiry concerning the matter in the particular request has been made, and that the information readily known or readily obtainable is insufficient to enable that party to admit the matter.”
The responses are improper objections and are not code compliant, and further responses, without objections, which fully comply with the Code are ordered to be served.
RFAs Nos. 6-8, 12-17 and 19
The responses to these requests include specification of the purportedly vague and ambiguous term in the RFA. The requests and their responses are:
6. You did not verify whether the GOODS were ‘bleeding.’
Response:
Objection. Vague and ambiguous as to the term ‘bleeding.’
7. You did not verify whether the GOODS had sewing defects.
Response:
Objection. Vague and ambiguous as to the term ‘defect’.
8. You did not verify whether the GOODS passed inspection with an acceptable defect rate.
Response:
Objection. Vague and ambiguous as to the term ‘defect rate.’
12. At the time of MIDO’s sale and delivery of the GOODS, the GOODS were accompanied by the implied warranty of merchantability that the GOODS would pass without objection in the trade under the description of the invoices.
Response:
Objection. Vague and ambiguous as to the term ‘implied warranty of merchantability.’
13. At the time of MIDO’s sale and delivery of the GOODS, the GOODS were accompanied by the implied warranty of merchantability that the GOODS would be fit for the ordinary purposes for which the GOODS are used.
Response:
Objection. Vague and ambiguous as to the term ‘implied warranty of merchantability.’
14. At the time of MIDO’s sale and delivery of the GOODS, the GOODS were accompanied by the implied warranty of merchantability that; and the GOODS would conform to the promises or affirmation of fact made by MIDO.
Response:
Objection. Vague and ambiguous as to the term ‘implied warranty of merchantability.’
15. The implied warranty of merchantability of the GOODS has been breached.
Response:
Objection. Vague and ambiguous as to the term ‘implied warranty of merchantability.’
16. At the time of MIDO’s sale and delivery of the GOODS, the GOODS were accompanied by the implied warranty of fitness for the particular purpose of women’s wearing of the GOODS.
Response:
Objection. Vague and ambiguous as to the term ‘implied warranty of merchantability.’
17. At the time MIX & MATCH APPAREL, INC. purchased the GOODS, MIDO knew of the particular purpose for which MIX & MATCH APPAREL, INC. intended to use GOODS.
Response:
Objection. Vague and ambiguous as to the term ‘implied warranty of merchantability.’ …
19. The implied warranty of fitness has been breached.
Response:
Objection. Vague and ambiguous as to the term ‘implied warranty of merchantability.’
As an initial matter, as to RFAs 16, 17 and 19, the objectionable term, “implied warranty of merchantability,” does not actually appear in any of those RFAs, which reference the implied warranty of fitness, or the intended use of the goods. The objections are accordingly completely non-responsive and are overruled.
As to the other terms, there appears to be nothing vague or ambiguous about terms such as “bleeding,” “defect” or “defect rate,” as applied to this dispute, and as reasonably understood by cross-defendant, which engages in international business with respect to the production and distribution of textile products. As noted above, these terms do not create the level of ambiguity where the response cannot be responded to at all. This is particularly true as the response can be qualified, definitions assumed can be set forth, and responding party can provide a response that it is unable to admit or deny such requests and explain why. Again, the broad argument in the opposition fails to sufficiently justify the objections, and the objections are properly overruled.
To the extent the objections seem to suggest that RFAs concerning matters such as breaches of implied warranties are improper, this is not clearly stated, and, as pointed out in the reply, breach of implied warranty is a matter in controversy between the parties, a request for admission may ask for a matter that is in controversy between the parties, and responding party cannot avoid responding to such RFAs by arguing that they are ambiguous.
Under CCP § 2033.010:
“Any party may obtain discovery within the scope delimited by Chapters 2 (commencing with Section 2017.010) and 3 (commencing with Section 2017.710), and subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), by a written request that any other party to the action admit the genuineness of specified documents, or the truth of specified matters of fact, opinion relating to fact, or application of law to fact. A request for admission may relate to a matter that is in controversy between the parties.”
(Emphasis added).
In Burke v. Superior Court (1969) 71 Cal.2d 276, the California Supreme Court granted a writ of mandamus compelling a trial court to set aside an order sustaining objections to requests for admissions on the ground they called for legal conclusions, and not admissions of fact. The requests in that case requested admissions that
“the levy of the attachment was regular and valid on its face, that there had been no motion or proceeding to dissolve or discharge the attachment, that such a motion or proceeding would have been unsuccessful, idle, and futile, and that a successful defense of the underlying action was the only way the attachment could be dissolved.”
Burke, at 280
The Court, partly in reliance on its previous decision in Cembrook, found these requests appropriate:
“[W]hen a party is served with a request for admission concerning a legal question properly raised in the pleadings he cannot object simply by asserting that the request calls for a conclusion of law. He should make the admission if he is able to do so and does not in good faith intend to contest the issue at trial, thereby "setting at rest a triable issue." (Cembrook v. Superior Court, supra, 56 Cal.2d 423, 429.) Otherwise he should set forth in detail the reasons why he cannot truthfully admit or deny the request. ( Lieb v. Superior Court, 199 Cal.App.2d 364, 368 [18 Cal.Rptr. 705].)
In the present case, petitioners seek to determine whether the bonding company really contends that the attachment was vulnerable to pretrial attack.”
Burke, at 282.
Here, issues in controversy raised by the parties include whether implied warranties have been breached and whether this is disputed, and the existence of defects which would excuse non-performance on the part of defendant and cross-complainant. The propounding party is entitled to explore whether these issues are a matter of dispute between the parties, and to set a record so that if the issues remain subject to further litigation, the costs of proof may ultimately be shifted to the party who failed to admit the RFA.
The objections asserted accordingly are overruled. The responses consist entirely of these improper objections, and are not code compliant, and further responses, without objections, which fully comply with the Code are ordered to be served.
Sanctions
This posture leaves the issue of monetary sanctions, which are sought by both sides in connection with both motions.
With respect to the motion to compel responses to requests for production of documents, under CCP section 2031.300(c), “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 a demand for inspection, copying, testing, or sampling…”
CCP § 2023.010 provides that misuses of the discovery process include, “(d) Failing to respond or to submit to an authorized method of discovery.” Where there has been such conduct, under CCP section 2023.030(a), “The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct....If a monetary sanction is authorized” by the statute, “ the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that the other circumstances make the imposition of the sanction unjust.” CCP §2023.030(a).
The burden is on the party subject to sanctions to show substantial justification or injustice. Mattco Forge, Inc. v. Arthur Young & Co. (1990) 223 Cal.App.3d 1429, 1436.
In this case, cross-complainant has not unsuccessfully made this motion, but will prevail on it, so no sanctions are awarded to cross-defendant.
It has been established that cross-defendant has failed to respond to an authorized method of discovery, and unsuccessfully opposed the motion to compel, and cross-complainant has provided evidence that it has incurred expenses as a result of the conduct. The opposition argues that the motion should not have been brought while the parties were still meeting and conferring. However, as noted above, cross-complainant had no obligation to meet and confer at all, let alone to continue meeting and conferring after cross-defendant had not timely responded to meet and confer correspondence, when cross-defendant had been advised that failure to respond would result in a motion being file. There is no substantial justification for responses having not been served, and evidently still not served by the hearing date, an additional period of over three months. It does not appear that the imposition of sanctions would be unjust.
Cross-complainant requests $1,868.91 for the motion to compel responses to requests for production of documents. This amount is not unreasonable, and the sanctions are awarded in full as requested.
With respect to the motion to compel further responses to Requests for Admissions, CCP § 2033.290 (d) provides that the court
“shall impose a monetary sanction...against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response, 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.”
Under CCP § 2023.010, misuse of the discovery process includes “(e) making, without substantial justification, an unmeritorious objection to discovery.” Where there has been a misuse of the discovery process, under Section 2023.030(a), the court “may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.”
The burden is on the party subject to sanctions to show substantial justification or injustice. Mattco Forge, Inc. v. Arthur Young & Co. (1990, 2nd Dist.) 223 Cal.App.3d 1429, 1436.
Here, the motion is granted, so that it was not unsuccessfully made, and responding party should not be awarded sanctions.
The motion was unsuccessfully opposed, and cross-defendant is not substantially justified in pursuing objections which lacked merit, particularly where the responses could have been qualified to avoid any objectionable outcome. Sanctions are awarded to cross-complainant for the expense of having had to bring this motion. The sanctions sought are $2,268.91. The opposition argues that cross-complainant has filed three motions against cross-defendant and claims that four hours were spent on each of the motions, when the motions were substantively identical.
The two motions now before the court do not claim the same sum in sanctions, as a lesser sum is sought in connection with the motion to compel responses to requests for production. In addition, the two motions are not in fact substantively identical, involving two different kinds of discovery, and one situation where no responses were served at all, with a need to detail the chronology, and this situation where responses were served, objections had to be challenged, and a separate statement prepared. A detailed reply was also required to be filed to respond to the opposition. The sanctions sought are reasonable under the circumstances and are awarded as requested.
RULING:
Motion to Compel Responses to Request for Documents and Actual Production of Documents is GRANTED.
Cross-defendant Mido Trade Co., Ltd, is ordered to serve responses to Request for Documents, Set No. One (1) without objection, and to permit inspection and copying, within 10 days.
Monetary sanctions requested by moving party: 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, 868.91 (4.5 hours @ $400/hour) [4.5 hours requested] plus $61.65 filing fee and $7.26 efiling fee [Amount Requested $1,869. 91], which sum is to be awarded in favor of cross-complainant Mix & Match Apparel, Inc., and against cross-defendant Mido Trade Co., Ltd, and its counsel of record, jointly and severally, payable within 30 days. CCP sections 2031.300(c), 2023.010(d), 2023.030(a).
Sanctions sought in the opposition are DENIED.
Motion to Compel Further Responses to Request for Admissions is GRANTED.
Cross-defendant Mido Trade Co., Ltd, is ordered to serve further complete verified responses to Request for Admission, Set No. One, Requests Nos. 6-8, 12-17, 19-24, and 35-37, without objection, and which fully comply with CCP section 2033.220, subdivisions (a) through (c).
Objections are OVERRULED.
Further responses to be served within ten days.
Monetary sanctions requested by moving party: 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 $2,268.91 (5.5 hours @ $400/hour) [5.5 hours requested] plus $61.65 filing fee and $7.26 efiling fee [Amount Requested $2,268.91], which sum is to be awarded in favor of cross-complainant Mix & Match Apparel, Inc., and against cross-defendant Mido Trade Co., Ltd, and its counsel of record, jointly and severally, payable within 30 days. CCP §§ 2033.290(d), 2023.010 (e), and 2023.030(a).
Monetary sanctions requested in the opposition are DENIED.
DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE
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