Judge Randolph M. Hammock, Case 20STCV19928A 2023-03-27 Tentative Ruling

Judge: Randolph M. Hammock, Case: 20STCV19928A, Date: 2023-03-27 Tentative Ruling

RESPONDING PARTY(S): Non-party Rossmith Packaging, Inc.; Non-party Scott M. Keller, in his capacity as an Officer, Director, and 50% Shareholder of Rossmith Packaging, Inc.

This is a corporate dispute over the management of Freshtech, a food packaging distributor. Joseph Ross, a director and former officer of Freshtech, alleges that he was sidelined and forced out by Nazir Mir and Scott Keller, Freshtech’s other officers and directors, because they were engaging in improper conduct. Mir and Keller allege in their cross-claims that Ross was engaging in improper conduct himself by competing with Freshtech through rPlanet Earth (“RPE”), a separate company he was involved with.

Cross-Defendant rPlanet Earth Los Angeles, LLC, now moves to compel compliance with its deposition subpoena served on non-party Rossmith Packaging, Inc. Rossmith Packaging, Inc., and Scott M. Keller in his capacity as an Officer, Director, and 50% Shareholder of Rossmith Packaging, Inc., filed oppositions.

This court is unaware of any legal authority which requires a court to rule on evidentiary objections on a motion, except as to a motion for summary motion or adjudication (CCP § 437c (q)) or a special motion to strike (CCP § 425.16 (b)(2)); see also, Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 947-949.)

As such, the court respectfully declines to rule on these objections. The court is well aware of the rules of evidence, and to how much weight, if any, should be given to any of the proposed evidence.

Cross-Defendant rPlanet Earth Los Angeles, LLC (“rPlanet”) seeks an order from the Court compelling third-party Rossmith Packaging, Inc. (“Rossmith”) to produce responsive documents pursuant to rPlanet’s deposition subpoena for business records served on August 30, 2022.

“If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” (CCP § 2025.480.)

The Subpoena at issue seeks information from Rossmith relating to (i) Keller’s and Ross’s work for Rossmith, (ii) the company’s scope of business, and (iii) the company’s relationship with Freshtech and rPlanet. (Montoya Decl. ¶ 12.) Rossmith is an entity in the food packaging business separately owned by Ross and Keller. Keller has claimed that his Rossmith emails must be obtained from Rossmith. Cross-Defendant contends, however, that Rossmith, at the direction or mercy of Keller, has produced only a limited set of documents.

RPlanet contends Keller’s “personal search” for documents and emails was “conducted with no counsel oversight, with no insight to what search terms are being ran or ignored, and with no insight into which documents are selected for production.” (Mtn. 8: 19-23.) This runs the risk of that Keller will “cherry-pick” documents most favorable for his cause while ignoring those that would be harmful. (Id.) Cross-Defendant also contends that Rossmith refused to produce documents from the cell phones of its employees, Era Ulitskaya and Dana Styck. Rossmith contends that Ms. Ulitskaya and Ms. Styck purported to have minimal responsive text messages, if any. RPE apparently wants this court to order that Rossmith utilize a third-party discovery vendor to search the voluminous records.

On October 14, 2022, Rossmith served its objections and responses to the Subpoena, in which it objected on numerous grounds including burden and overbreadth. On October 27, 2022 and then on November 15, 2022, Rossmith indicated it would provide supplemental productions, but did not do so. (Montoya Decl. ¶¶ 14, 17.)

Third-party Rossmith filed an opposition. It contends to have already “made multiple productions, including producing highly confidential financial and customer information.” (Rossmith Opp. 6: 20-21.) It further states it “opposes rPlanet’s motion to compel compliance with its Subpoena to the extent that it seeks to impose on Rossmith an unreasonable burden.” (Id. 6: 9-10.) It contends “[t]he Subpoena is oppressive and burdensome to the extent that its requests are so impossibly vague” such that it seeks “all communications about the scope of a business” and “all communications about documents that never existed.” (Id. 6: 10-13.)

Keller also filed an opposition. Keller contends that RPE has failed to demonstrate that “good cause” for the production outweighs the burden and expense associated with responding. (Keller Opp. 6: 5-6.) It is unclear that Keller has standing to oppose a motion to compel when he is not a party to the subject subpoena. Be that as it may, because Keller is apparently a “custodian” of documents that may be responsive to the subpoena, the court will consider his opposition. Not to mention, RPE seeks sanctions against him personally.

Given the dispute, this court cannot find that the subpoena at issue is unduly broad or burdensome. To the extent it may be, rPlanet and Rossmith have already reached an agreement to produce documents subject to agreed-upon limitations.

Moreover, it appears that Rossmith has produced all the responsive documents it deems relevant to the subpoena—through coordination with the relevant custodians—based on its utilized search methods, at least where they exist.

RPE, however, is unsatisfied with the production and/or search measures undertaken thus far and seeks that the court order a third party discovery vendor to conduct the search. This court declines to do so. RPE cites no authority stating that Rossmith’s reliance on searches by Keller, Ulitskaya, and Styck’s into their own documents, even if done “without counsel oversight,” is improper.

The court declines to award sanctions, as it finds that the motion was made or opposed with substantial justification and that other circumstances make the imposition of sanction unjust. (CCP 2025.480(j).)

Finally, this court submits that the sanctionable conduct here, if any, was that by attorney Rick Augustini, counsel for Scott M. Keller. While this Court may understand the clear "frustration" of Mr. Keller and his need to vent same, his actions and statements do not help this situation. First, Keller’s opposition brief makes multiple unsubstantiated and ad hominem attacks against Rossmith’s Counsel, Jennifer Millier. Then, Keller filed an unauthorized surreply in which he makes disparaging personal remarks about the competence and experience of rPlanet’s counsel, Joseph Montoya.

“We close this discussion with a reminder to counsel – all counsel, regardless of practice, regardless of age – that zealous advocacy does not equate with ‘attack dog’ or ‘scorched earth’; nor does it mean lack of civility. Zeal and vigor in the representation of clients are commendable. So are civility, courtesy, and cooperation. They are not mutually exclusive.” (In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1537.)

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.