Judge: Richard Y. Lee, Case: 30-2020-01172876, Date: 2022-11-03 Tentative Ruling

Plaintiff Florentine Holding Company V, LLC (“Plaintiff”) moves to compel Defendant Tonmoy Sharma (“Defendant”) to serve further responses to Requests for Production Nos. 10, 12, 14, 15, 17, 24-27, 30, and 32-56 and Form Interrogatory Nos. 15.1 and 17.1 on the grounds that Defendant’s responses are evasive, incomplete, and/or contain improper objections based on the attorney client privilege and work product doctrine.

A demanding party may move for an order compelling further response to a demand for inspection if a statement of compliance with the demand is incomplete, a representation of inability to comply is inadequate, or an objection is without merit or too general.  (Code Civ. Proc., § 2031.310(a).)  A party may move for an order compelling further responses to interrogatories if the party deems an answer to be evasive or incomplete, an exercise of the option to produce documents under section 2030.230 is unwarranted or the required specification of the documents is inadequate, or an objection is without merit or too general.  (Code Civ. Proc., § 2030.300(a).)

Requests for Production

As an initial matter, the Court notes that Defendant served supplemental responses to Nos. 10, 12, 24-27, 30, 34, 35, 46, 47, and 52 on October 21, 2022.  The Motion as to these Requests is DENIED as MOOT. 

Plaintiff’s Notice of Motion indicates that Request No. 15 is in dispute.  However, neither the Motion nor the Separate Statement address this Request.  The Motion as to Request No. 15 is therefore DENIED.

The remaining Requests in dispute are Nos. 14, 17, 32, 33, 36-45, 48-51, and 53-56.

As to Request Nos. 32, 33, 36-45, 48-51, and 53-56, Defendant argues his last responses were served on February 2, 2022 and Plaintiff’s deadline to move to compel expired on March 22, 2022.  Defendant contends that the deadline to compel further response to No. 14 expired on April 25, 2022 because his last response to that Request was served on March 7, 2022.

An email sent from Plaintiff’s counsel to Defense counsel on April 22, 2022 states that the parties were continuing to meet and confer regarding Request Nos. 14 and 32-56 and had agreed to extend the motion to compel deadline to May 9, 2022.  (Declaration of Charles R. Patterson, Ex. G.)  Defendant offers no evidence showing that the representation in that email is false.  Thus, Defendant’s argument that Plaintiff’s deadlines to move to compel were March 22 and April 25 is rejected.

Request No. 14

This request seeks all documents that constitute, comprise, or depict all compensation received by Defendant from any source for his labor or employment services.  The parties agreed in their meet and confer to limit this Request to a time period of January 1, 2019 to the present.  Defendant’s supplemental response states that Defendant is not in possession of any responsive documents.

Plaintiff contends Defendant must be in possession of responsive documents because in August 2020, Defendant filed a Fact and Information Sheet in the underlying Florida case indicating he was employed as a scientific officer and enclosed with the Fact and Information Sheet a copy of his last pay stub and statements from his banking, savings, credit union, or other financial accounts.  (Patterson Decl., Ex. M.)

Defendant offers no substantive argument as to why further response should not be compelled.

The Court agrees that, in light of Defendant’s August 2020 Florida case filing, his response that he has no responsive documents in his possession is evasive.  Thus, the Court GRANTS the Motion as to Request No. 14.

Request No. 17

This request seeks all documents that constitute, comprise, or depict all transfers of money or things of value received by Defendant since January 1, 2019.  Defendant’s supplemental response states that he is producing bank statements in his possession and has requested additional statements from his bank to comply with the request, and he will produce documents as they are received.

Plaintiff contends a further response should be compelled because trial is approaching and Defendant has failed to produce all responsive documents.

Defendant argues no further response is required because he has produced all documents currently in his possession, custody, and control at this time.

Plaintiff has provided no evidence as to what documents have been produced in response, nor any argument as to what further documents Plaintiff believes should be produced.  Without more information, the Court is unable to conclude that Defendant should be compelled to provide further responses or produce further documents.  Thus, Plaintiff has failed to carry its burden as the moving party and the Court DENIES the Motion as to Request No. 17.

Request No. 32

This request seeks all documents that constitute, comprise, or depict all trust documents that constitute the Galahad Irrevocable Trust.  Defendant’s supplemental response refers Plaintiff to Defendant’s privilege log.

Plaintiff contends Defendant’s objections lack merit because the attorney-client privilege and work product doctrine do not apply and Defendant has not submitted any evidence to the contrary.

Defendant offers no substantive argument as to why further response should not be compelled.

The privilege log provided by Defendant is sparse and contains only three columns: date, document type, and the privilege claimed.  (Patterson Decl., Ex. D at p. 34.)  The privilege log indicates that a category of documents labeled as “Trust Documents” have been withheld under the attorney-client privilege but does not provide sufficient factual information to enable Plaintiff to evaluate the merits of the privilege claim, such as the author of each document, recipients, or date of preparation.  (See Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 291-292.)

In addition to the shortcomings of Defendant’s privilege log, Defendant has failed to state in his Opposition how documents in response to Request No. 32 fall within the attorney-client privilege.  Though it is conceivable that Defendant might have some communications with his counsel that are privileged and relate to the trust, the actual trust itself is not privileged.  Defendant’s blanket refusal to produce any “Trust Documents” is therefore improper.  Thus, the Court finds that a further response is required and GRANTS the Motion as to Request No. 32.

The Court further ORDERS Defendant to serve a supplemental privilege log that identifies each document being withheld under a claim of privilege and its author, sender, recipients, date of preparation, and other information regarding the document sufficient for Plaintiff to evaluate the merits of the privilege claim.  (See Catalina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, 1124-1127 [stating “[i]f the response and any privilege log fail to provide sufficient information to allow the trial court to rule on the merits, the court may order the responding party to provide a further response by serving a privilege log or, if one already has been served, a supplemental privilege log that adequately identifies each document the responding party claims is privileged and the factual basis for the privilege claim”].)

Request No. 33

This request seeks all documents that constitute, comprise, or depict all communications between Defendant and any person relating to Plaintiff since January 1, 2019.  Defendant’s supplemental response refers Plaintiff to Defendant’s privilege log.

The parties’ arguments as to Request No. 33 are identical to those set forth with regard to Request No. 32.  Again, Defendant offers no substantive argument as to why further response should not be compelled.

Again, the Court finds that Defendant’s privilege log is insufficient and a supplemental privilege log must be provided.  Thus, the Court GRANTS the Motion as to Request No. 33 and ORDERS Defendant to serve a supplemental privilege log.

Request Nos. 36-45, 48-51, 53-56

These Requests seek all documents that Defendant contends supports his affirmative defenses.  Defendant’s supplemental response refers Plaintiff to Defendant’s privilege log.

The parties’ arguments as to these Requests are identical to those set forth with regard to Request No. 32.  Again, Defendant offers no substantive argument as to why further response should not be compelled.

As stated above, the Court finds that Defendant’s privilege log is insufficient and a supplemental privilege log must be provided.  Thus, the Court GRANTS the Motion as to Request Nos. 36-45, 48-51, 53-56 and ORDERS Defendant to serve a supplemental privilege log.

Additionally, Code of Civil Procedure section 2031.280(a) requires that any documents produced in response to a demand be identified with the specific request number to which the documents respond.  Here, Defendant has failed to comply by refusing to identify exactly which documents were being produced in response to each of Plaintiff’s Requests.  (Patterson Decl., ¶ 24.)  Thus, in addition to the further responses and supplemental privilege log ordered above, Defendant is ORDERED to identify the specific request number to which the documents produced thus far by Defendant respond.

Monetary Sanctions

Plaintiff contends monetary sanctions in the amount of $5,000.00 should be imposed because there is no justification for Defendant’s failure to produce a proper privilege log, identify the request number to which the produced documents respond, certify that all documents are being produced as required by Code of Civil Procedure section 2031.220, and produce responsive documents under unsupported objections.

The Court agrees that Defendant’s failure to serve an adequate privilege log and further responses to Request Nos. 14 and 32 lacks any substantial justification.  Thus, the Court awards Plaintiff monetary sanctions against Defendant in the amount of $1,500.00.

Form Interrogatories

Interrogatory No. 15.1

This interrogatory asks Defendant to identify each denial of a material allegation and each special or affirmative defense in his pleading and for each, state all facts upon which he bases his denial or special or affirmative defense, state the names and contact information of all persons who have knowledge of those facts, and identify all documents that support his denial or special or affirmative defenses.  In response, Defendant asserts facts in support of each of his 21 affirmative defenses, lists persons with knowledge of those facts, and identifies documents in support.  Defendant also asserts that he has generally denied all allegations of the Complaint on the grounds that the claims are unsubstantiated, Defendant was the guarantor on the lease in Florida and the lease was terminated early due to circumstances beyond Defendant’s control, and Plaintiff re-let the premises such that Plaintiff’s damages have been offset and mitigated.

Plaintiff contends that further response should be compelled because the facts asserted are irrelevant to the current action and this is not the forum to make factual challenges to the Florida judgment.

Defendant contends that he has properly stated his basis for each affirmative defense and Plaintiff’s Motion seeks to prove Plaintiff’s case by way of a discovery motion, which is not the appropriate vehicle for such relief.

The facts asserted in Defendant’s response contest the allegation that Defendant conducted a fraudulent transfer of the subject property and represent that there are more senior liens on the property than Plaintiff’s lien.  Defendant has fully responded to Interrogatory No. 15.1 by providing all facts he has relied on in pleading his affirmative defenses, identifying all persons with knowledge of those facts, and identifying the supporting documents.  He has also stated the facts upon which he bases his general denial of the allegations in Plaintiff’s Complaint.  By arguing that the asserted facts are irrelevant to this current action, Plaintiff appears to be arguing that Defendant has no grounds to dispute the underlying Florida judgment.  But Plaintiff misses the fact that the facts asserted in Defendant’s response go to the validity of Plaintiff’s fraudulent conveyance claims and are relevant to the Complaint here, which seeks to void the alleged fraudulent transfer. 

The Court therefore finds that Defendant has provided a full and substantive response to Interrogatory No. 15.1.  Accordingly, the Court DENIES the Motion as to this Interrogatory.

Interrogatory No. 17.1

This interrogatory asks Defendant to state, for each response to Plaintiff’s Requests for Admission that is not an unqualified admission, the number of the request, all facts upon which Defendant bases his response, the name and contact information of all persons who have knowledge of those facts, and all documents that support his response.  In his response, Defendant provides facts and identifies persons with knowledge for Request Nos. 3, 4, 10, and 11.

Plaintiff contends further responses are required because Defendant has not identified any supporting documents for Request Nos. 3, 4, 10, and 11 and Defendant’s response to Request No. 15 was not an unqualified admission, yet Defendant failed to include that Request in his response.  Plaintiff also contends that Defendant’s asserted facts are insufficient and Defendant is in possession of more facts than he sets forth in response.

Plaintiff is correct that Defendant’s response to Interrogatory No. 17.1 fails to identify all documents that support Defendant’s responses and Defendant has failed to address Request for Admission No. 15 at all in his response.  Further response is required by Defendant identifying any documents that support his responses and including a paragraph in relation to Request No. 15.

Request Nos. 3 and 4 ask Defendant to admit that the judgment entered against him requires him to pay Plaintiff the amount of $205,933.14 plus interest at the prevailing rate of 6.77% through December 31, 2019 and that the judgment requires Defendant to pay Plaintiff in the amount of $205,933.14 plus interest calculated at the prevailing rate as set forth by section 55.03, Florida statutes, until the judgment is satisfied.

Request Nos. 10 and 11 ask Defendant to admit that he transferred the property to himself as trustee in an attempt to shield the property from his personal creditors and that he knew he was obligated to pay Plaintiff the amounts set forth in the judgment when he transferred the property. 

In response to Interrogatory No. 17.1, Defendant states, with respect to Request No. 10, that he transferred the property as part of his estate planning strategy and, with respect to Request Nos. 3, 4, and 11, that he did not believe he was personally liable for the Florentine Judgment because he was improperly informed that a creditor must first exhaust its remedies against a corporation before pursuing a guarantor.  He lists persons with knowledge of these facts as including himself, his estate planning counsel, Haber Law, Audrey Smith, and Valerie Lepine.

The Court rejects Plaintiff’s contention that Defendant’s response lacks sufficient facts.  Plaintiff contends that Defendant must provide further response stating where, when, and from whom he received his advice that he was not personally liable for the Florentine Judgment.  Such in-depth exploration may be conducted via deposition or further interrogatories.  As it currently stands, Defendant’s response provides sufficient facts upon which Defendant based his responses to the Requests for Admission.  The Court therefore finds the facts asserted in Defendant’s response to be sufficient. 

In light of the above, the Motion is GRANTED as to Interrogatory No. 17.1 to the extent Defendant failed to provide a response in relation to Request for Admission No. 15 and failed to identify any documents in support of his responses.  The Motion is DENIED to the extent Plaintiff argues Defendant must provide further facts.

Monetary sanctions in connection with the Motion to Compel Further Responses to Form Interrogatories are DENIED.

Plaintiff to give notice.