Judge Robert S. Draper, Case BC582922 2023-05-17 Tentative Ruling

Judge: Robert S. Draper, Case: BC582922, Date: 2023-05-17 Tentative Ruling

Case Number: BC582922 Hearing Date: May 17, 2023 Dept: 78

Superior Court of California

County of Los Angeles

Department 78

DONNA SUSAN TONEY, et al.

Plaintiffs,

vs.

JOHN BOKOWSKI JR, et al.;

Defendants. Case No.: BC582922

Hearing Date: May 17, 2023

[TENTATIVE] RULING RE: DEFENDANT BOKOWSKI’S THREE MOTIONS TO COMPEL FURTHER DISCOVERY

The motions to compel further responses to Defendant’s RFAs is granted. Further responses without objections must be served within 10 days after the date of this order.

The motion to compel further responses to Defendant’s Request for Production is granted. Further responses without objections (except for those based on privileged) must be served within 10 days after the date of this order. Any responsive documents and any privilege log shall be served within 10 days after the date of this order.

The motion to compel further responses to Defendants form and special interrogatories are denied.

The request for sanctions is granted in the amount of $3,300. These sanctions are imposed jointly and severally on Plaintiff and Plaintiff’s counsel of record and are payable within 10 days after the date of this order.

Moving party to provide notice and to file proof of service of such notice within five court days after the date of this order.

FACTUAL BACKGROUND

On May 29, 2015, Plaintiffs Donna Susan Toney, Strange Child Records, and Screaming Child Records (“Plaintiffs”) filed this action against Defendants John Bokowski, Jr., Kings Road Group, Inc., Kings Road International, and Does 1 through 20, inclusive. The complaint alleged the following causes of action:

(1) breach of contract;

(2) breach of fiduciary duty;

(3) conversion;

(4) constructive fraud; and

(5) money had and received (common count).

PROCEDURAL HISTORY

On October 12, 2016, Plaintiffs dismissed the action without prejudice as to Defendant Kings Road International.

On October 6, 2022, Defendant John Bokowski, Jr. (“Defendant”) filed motions to compel further responses to Defendant’s (1) Requests for Admission (x0725); (2) Requests for Production (x3530); and (3) Form Interrogatories and Special Interrogatories.

On December 6, 2022, the Court noted that parties failed to conduct an Informal Discovery Conference prior to filing the instant motions. The Court held that motion deadlines would be stayed pending the IDC, then advanced and vacated the hearings set on these motions.

On December 13, 2022, Defendant filed a Request for IDC. On December 15, 2022, Plaintiff filed an answer to Request for IDC.

On April 28, 2023, the Court held the hearing for IDC and scheduled the hearing dates for these instant motions filed on October 6, 2022 for May 17, 2023.

DISCUSSION

I. EVIDENTIARY OBJECTIONS

The Court OVERRULES Defendant’s objection. The Court will consider Plaintiff’s opposition papers as to Defendant’s motion to compel further responses to RPD, Set One for reasons discussed below.

II. Motion to Compel Further Responses

Requests for Admission

If a party to whom requests for admission are directed fails to serve a timely response, the propounding party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted. (Code Civ. Pro. § 2033.280.) The court is required to make this order unless the responding party serves a response in substantial compliance with section 2033.220 before the hearing on the motion. (Code Civ. Pro. § 2033.280(c).) By failing to timely respond, the party to whom the requests are directed waives any objection to the requests, including one based on privilege or work product. (Code Civ. Pro. § 2033.280(a).)

Requests for Production

“On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: (1) A state of compliance with the demand is incomplete. (2) A representation of inability to comply is inadequate, incomplete, or evasive. (3) An objection in the response is without merit or too general.” (CCP §2031.310(a).) A motion to compel further responses to a request for production “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.” (CCP §2031.310(b).)

Form Interrogatories and Special Interrogatories

Code of Civil Procedure section 2030.300 provides that “[o]n receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that . . .”[a]n answer to a particular interrogatory is evasive or incomplete.” (Code Civ. Proc., § 2030.300, subd. (a).)

Notice of the motions must be given within 45 days of service of the verified response, otherwise, the propounding party waives any right to compel a further response. (Code Civ. Proc., § 2030.300, subd. (c).) The motions must also be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2030.300, subd. (b).)

Finally, Cal. Rules of Court, Rule 3.1345 requires that all motions or responses involving further discovery contain a separate statement with the text of each request, the response, and a statement of factual and legal reasons for compelling further responses. (Cal. Rules of Court, Rule 3.1345, subd. (a)(3)).

Sanctions

Code of Civil Procedure § 2023.030(a) provides, in pertinent part, that the court may impose a monetary sanction on a party engaging in the misuse of the discovery process to pay the reasonable expenses, including attorney’s fees, incurred by anyone because of that conduct. Misuse of discovery includes “failing to respond or submit to an authorized method of discovery.” (Code Civ. Proc. §¿2023.010(d)). Furthermore, courts are obligated to impose monetary sanctions in cases where a “failure to serve a timely response to requests for admission necessitated this motion.” (Ibid.) Sanctions are calculated based on “reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” (Ibid. § 2023.030(a)).

A. Requests for Admission (x0725)

Defendant seeks an order compelling Plaintiff to provide further responses to Defendant’s Requests for Admissions (RFAs), Set One Nos. 1-10.

Defendant contends that on July 18, 2022, he served Plaintiff by mail with Form Interrogatories, Special Interrogatories, Request for Production of Documents and Request for Admission. He claims that on August 22, 2022, Plaintiff responded with objections and no substantive responses. On September 1, 2022, Defendant contends he sent Plaintiff a meet and confer letter.

In opposition, Plaintiff argues that this motion was brought in bad faith and that Defendant belatedly served voluminous discovery requests after conducting no discovery for seven years in the case. In support, Plaintiff contends that Defendant’s discovery was served late because based on the date of the e-mail service, Plaintiff’s responses were due August 23, 2022, which was after the discovery cut-off date. Plaintiff argues that the parties did not consent to electronic service. Plaintiff points to Defendant Counsel’s email correspondence which shows that their firm does not accept e-service absent an agreement between the parties. (Fletcher Decl. ¶ 2.) Plaintiff also states that she agreed to provide full and complete responses, yet Defendant still filed the instant motion. Finally, Plaintiff contends that this motion is moot as she served verified responses on November 15, 2022.

In reply, Defendant argues that Plaintiff was properly and timely served pursuant to Code of Civil Procedure section 2033.020 and that pursuant to Code of Civil Procedure section 1010.6(4)(B), the date to respond was extended by two court days, making the responses due by August 22, 2022. Defendant contends that Plaintiff falsely contends that the parties did not consent to electronic service as they have been serving each other via electronic transmission since May 2022. Defendant states that Plaintiff accepted the electronic service of Defendant’s responses, served on July 19, 2022, to Plaintiff’s discovery requests without requiring that the documents be mailed. Additionally, Defendant points out that on June 27, 2022, Plaintiff again served her CCP 998 Offer To Compromise on Defendant, via electronic service, without any mention that the document was only being served as a courtesy copy. Defendant also states that Plaintiff utilized OneLegal, a registered and approved eFiling provider and that Plaintiff’s own proof of service states: ELECTRONIC SERVICE: ONLY BY ELECTRONIC TRANSMISSION. Only by e-mailing the document(s) to the person(s) at the e-mail address(es) listed. Due to the Coronavirus (COVID-19) pandemic serving counsel will be working remotely, not able to send physical mail as usual, and is therefore only using electronic mail. No electronic message or other indication that the transmission was unsuccessful was received.

Parties Consented to Electronic Service

California Rules of Court, rule 2.251 authorizes electronic service when parties agree to accept service in this way. Rule 2.251(b) states that a party provides consent by serving notice to accept electronic service or manifesting affirmative consent by agreeing to the terms of service with an electronic service provider or filing consent to Electronic Service and Notice of Electronic Service Address. Here, the Court finds Plaintiff’s proof of service served on Defendant to sufficiently satisfy the express consent requirement under rule 2.251 for electronic service.

Defendant’s Discovery Requests

REQUEST FOR ADMISSION NO. 1: Admit that Defendant did not breach the Contract (“Contract” refers to the Letter of Engagement for Exclusive Business & Label management Services/Marketing, Branding & Digital Media Services executed in 2012).

REQUEST FOR ADMISSION NO. 2: Admit that Defendant did not engage in the breach of his fiduciary duty.

REQUEST FOR ADMISSION NO. 3: Admit that Defendant did not convert any of Plaintiff’s property.

REQUEST FOR ADMISSION NO. 4: Admit that Defendant did not cause damage to Plaintiff in the sum of $300,000 - $500,000.

REQUEST FOR ADMISSION NO. 5: Admit that Defendant did not convert any sum of money that was owed to Plaintiff in the sum of $300,000 - $500,000.

REQUEST FOR ADMISSION NO. 6: Admit that Plaintiff has not conducted any audit for forensic accounting of Defendant’s books and records.

REQUEST FOR ADMISSION NO. 7: Defendant did not deceive Plaintiff in any manner.

REQUEST FOR ADMISSION NO. 8: Plaintiff is not entitled to any compensation from Defendant.

REQUEST FOR ADMISSION NO. 9: Admit that Defendant did not defraud Plaintiff.

REQUEST FOR ADMISSION NO. 10: Admit that there is no evidence to support any of the allegations alleged in the Complaint filed in the herein action.

Plaintiff’s Responses and Supplemental Responses

Plaintiff’s responses remain largely the same for each request.

RESPONSE TO REQUEST FOR ADMISSIONS:

OBJECTION: Discovery is procedurally barred; discovery is due after the discovery cutoff deadline. Propounding Party refused to extend discovery deadline when requested by Responding party.

OBJECTION: Vague, ambiguous, and overbroad as to the timeframe in question and improperly requires the adoption of an assumption; calls for speculation, a legal conclusion, and a premature expert opinion; requests information which may be protected by the attorney-client privilege, the attorney work product privilege, and/or the work product doctrine; and requests information equally available to propounding party.

Subject to and without waiving the foregoing objection, Defendant responds as follows: after a reasonable inquiry was made into this request, and due to its ambiguity, the information known or readily obtainable is insufficient to enable Defendant to admit or deny the allegation, and on that basis, denies.

Discovery and investigation are ongoing, and Responding Party reserves the right to supplement or amend its responses up to and including through trial.

FURTHER RESPONSE TO REQUEST FOR ADMISSIONS:

Subject to and without waiving the foregoing objection, Defendant responds as follows: after a reasonable inquiry was made into this request, and due to its ambiguity, the information known or readily obtainable is insufficient to enable Plaintiff to admit or deny the allegation, and on that basis, denies.

Discovery and investigation are ongoing, and Responding Party reserves the right to supplement or amend its responses up to and including through trial.

Defendant is Entitled to Further Responses

Defendant remarks that Plaintiff’s supplemental responses are essentially the exact same, less one objection and that Plaintiff’s counsel did not offer to pay any attorney fees or costs associated with filing the motion to compel further. The Court agrees that Plaintiff’s supplemental responses are not substantively different from Plaintiff’s original responses as they essentially consist of objections. Plaintiff’s supplemental responses do not change the arguments advanced in Defendant’s motion. Indeed, Defendant’s Separate Statement still complies with California Rules of Court, rule 3.1345, subdivision (c), which requires a party’s separate statement to include “the text of each response, answer, or objection, and any further responses or answers” to each of the discovery requests in dispute. Thus, Plaintiff’s Supplemental Responses do not render the instant motion to be moot.

The parties do not dispute the relevance of the discovery requests. The Court does not find that discovery is procedurally barred given that parties agreed to electronic service. The Court finds that Plaintiff’s objections are without merit. There are no terms which can reasonably be interpreted as vague or ambiguous. Thus, the Court GRANTS Defendant’s Motion to Compel Further Responses to RFAs, Set One, Nos. 1-10.

B. Requests for Production (x3530)

Defendant seeks an order compelling Plaintiff to provide further responses to Defendant’s Requests for Production (RFPs), Set One Nos. 1-24.

Defendant points out that Plaintiff untimely filed her opposition and states that he did not have sufficient opportunity to review the Separate Statement. However, given the continuance of the hearing for this motion, the Court will consider Plaintiff’s opposition papers, including the separate statement.

Defendant’s Discovery Requests

When reference herein is made to “YOU” or “YOUR,” it includes every person in connection with DONNA SUSAN TONEY, including all agents, investigators, and other persons acting on DONNA SUSAN TONEY’S behalf. The term “WRITING” or “DOCUMENT,” as used herein, refers to anything in written form that is a tangible recording of speech, sounds, pictures, words, or symbols, including photographs and sound recordings, electronic mail or facsimile, and as more fully defined by Section 250 of the Evidence Code.

REQUEST FOR PRODUCTION NO. 1: Produce the Contract alleged in the YOUR COMPLAINT.

REQUESTS FOR PRODUCTION OF DOCUMENTS 2: All correspondence, notes, memoranda, or other DOCUMENTS, constituting, recording, memorializing, or RELATED TO any oral or written communication between YOU and DEFENDANT regarding this INCIDENT (“INCIDENT” refers to the circumstances surrounding the “Contract” alleged and/or referred to the contract alleged in YOUR COMPLAINT).

REQUEST FOR PRODUCTION NO. 3: All correspondence, notes, memorandum, or other DOCUMENTS, constituting, recording, memorializing, or RELATED TO any oral or written communication between YOU and DEFENDANT.

REQUEST FOR PRODUCTION NO. 4: All correspondence, notes, memoranda, or other DOCUMENTS, constituting, recording, memorializing, or RELATED TO any oral or written communication between YOU and any third-party companies, organization, or lenders regarding the INCIDENT.

REQUEST FOR PRODUCTION NO. 5: Any and all DOCUMENTS which YOU content prove, establish or are relevant to any liability or damages issues in this INCIDENT.

REQUEST FOR PRODUCTION NO. 6: Any and all DOCUMENTS WHICH RELATED TO or support YOUR allegation in paragraph 9 of the COMPLAINT that DEFENDANT frequently billed YOU for services that were not rendered on YOUR behalf.

REQUEST FOR PRODUCTION NO. 7: Any and all DOCUMENTS WHICH RELATED TO or support YOUR allegation in paragraph 9 of the COMPLAINT that DEFENDANT fraudulently BILLED you for products that were not acquired on YOUR behalf.

REQUEST FOR PRODUCTION NO. 8: Any and all DOCUMENTS WHICH RELATED TO or support YOUR allegation in paragraph 9 of the COMPLAINT that DEFENDANT converted and misappropriated YOUR monies.

REQUEST FOR PRODUCTION NO. 9: Any and all DOCUMENTS WHICH RELATED TO or support YOUR allegation in paragraph 9 of the COMPLAINT that DEFENDANT failed to represent YOUR best interests.

REQUEST FOR PRODUCTION NO. 10: Any and all DOCUMENTS WHICH RELATED TO or support YOUR allegation in paragraph 14 of the COMPLAINT of DEFENDANT’S fraudulent conduct.

REQUEST FOR PRODUCTION NO. 11: Any and all DOCUMENTS that support YOUR contention that DEFENDANT “...by means of false and fraudulent alternation and deceptive entries in the business records, misappropriated and converted to their own personal use and possession, without Plaintiffs’ knowledge or consent, the sum of approximately between $300,000 - $500,000...” as alleged in paragraph 19 of the COMPLAINT.

REQUEST FOR PRODUCTION NO. 12: Any and all DOCUMENTS EVIDENCING ANY allegation that DEFENDANT altered YOUR books and records as alleged in paragraph 26 of the COMPLAINT.

REQUEST FOR PRODUCTION NO. 13: Any and all DOCUMENTS EVIDENCING ANY allegation of DEFENDANTS’ breach of contract as alleged in the COMPLAINT.

REQUEST FOR PRODUCTION NO. 14: Any and all DOCUMENTS EVIDENCING ANY allegation of DEFENDANTS’ breach of Fiduciary Duty as alleged in the COMPLAINT.

REQUEST FOR PRODUCTION NO. 15: Any and all DOCUMENTS EVIDENCING ANY allegation of DEFENDANTS’ conversion as alleged in the COMPLAINT.

REQUEST FOR PRODUCTION NO. 16: Any and all DOCUMENTS EVIDENCING ANY allegation of DEFENDANTS’ constructive fraud as alleged in the COMPLAINT.

REQUEST FOR PRODUCTION NO. 17: Any and all invoices provided by DEFENDANTS as alleged in paragraph 20 of YOUR COMPLAINT.

REQUEST FOR PRODUCTION NO. 18: All contractual agreements YOU entered into and/or executed in 2013, 2014 and 2015 with Tom Mazetta.

REQUEST FOR PRODUCTION NO. 19: All contractual agreements YOU entered into and/or executed in 2013, 2014 and 2015 with Dominic Friesen.

REQUEST FOR PRODUCTION NO. 20: All contractual agreements YOU entered into and/or executed in 2013, 2014, and 2015 with Jim Halse.

REQUEST FOR PRODUCTION NO. 21: All contractual agreements YOU entered into and/or executed in 2013, 2014, and 2014 with Jackie Monaghan.

REQUEST FOR PRODUCTION NO. 22: All contractual agreements YOU entered into and/or executed in 2013, 2014, and 2015 with JoAnn Berry.

REQUEST FOR PRODUCTION NO. 23: Identify all DOCUMENTS and other tangible things which support YOUR allegations in paragraph 31 of YOUR COMPLAINT that DEFENDANT has “became indebted to Plaintiffs in the sum of approximately between $300,000 - $500,000 for money had and received by Defendants.

REQUEST FOR PRODUCTION NO. 24: Any and all DOCUMENTS EVIDENCING ANY allegation of DEFENDANTS’ breach of Fiduciary Duty as alleged in the COMPLAINT.

Plaintiff’s Responses and Supplemental Responses

Plaintiff’s responses remain largely the same for each request.

RESPONSE TO REQUESTS FOR PRODUCTION OF DOCUMENTS: OBJECTION: Discovery is procedurally barred; discovery is due after the discovery cutoff deadline. Propounding Party refused to extend discovery deadline when requested by Responding party.

OBJECTION: This discovery request is vague, ambiguous, and unintelligible as phrased as to the definition of “in the YOUR”.

OBJECTION: Propounding Party’s definition of “YOU” is impermissibly overbroad and violates the Code of Civil Procedure §2020.010 and §2030.010 (§2033.010 for requests for admissions and §2031.010 for inspection demands).

OBJECTION: The information sought in this discovery request is equally available to the propounding party. Alpine Mutual Water Co. v. Superior Court, 259 Cal.App.2d 45 (1968).

OBJECTION: The request seeks information subject to the attorney-client privilege. The attorney- client privilege is broadly construed and extends to “factual information” and “legal advice.” Mitchell v. Superior Court, 37 Cal.3d 591, 601 (1984).

OBJECTION: This discovery request seeks attorney work product in violation of California Code of Civil Procedure §§ 2018.020 and 2018.030.

The California Code of Civil Procedure § 2018.030(a) states, “[a] writing that reflects an attorney’s impression, conclusions, opinion, or legal research or theories is not discoverable under any circumstances.” Subdivision (b) expands the protection to include any other attorney work-product, “unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or defense or will result in injustice. The purpose of this protection is to “[p]reserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those cases, and to “[p]revent attorneys from taking undue advantage of their adversary’s industry and efforts.” California Code of Civil Procedure §2018.020.

Without waiving the above objections, and in the spirit of discovery, Plaintiff states: In as much as plaintiff can understand the question, and in recognition and understanding that an extension of time to procure and produce more documents was requested by responding party and denied by propounding party, all documents Responding Party is legally required to produce are attached hereto.

Discovery and investigation are ongoing, and Responding Party reserves the right to supplement or amend its responses up to and including through trial.

FURTHER RESPONSE TO REQUESTS FOR PRODUCTION OF DOCUMENTS:

OBJECTION: This discovery request is vague, ambiguous, and unintelligible as phrased as to the definition of “in the YOUR”.

OBJECTION: The information sought in this discovery request is equally available to the propounding party. Alpine Mutual Water Co. v. Superior Court, 259 Cal.App.2d 45 (1968).

OBJECTION: This discovery request seeks attorney work product in violation of California Code of Civil Procedure §§ 2018.020 and 2018.030.

Without waiving the above objections, and in the spirit of discovery, Plaintiff states: In as much as plaintiff can understand the question, and in recognition and understanding that an extension of time to procure and produce more documents was requested by responding party and denied by propounding party, all documents currently in the possession of responding party are attached hereto as Exhibit 1.

Discovery and investigation are ongoing, and Responding Party reserves the right to supplement or amend its responses up to and including through trial.

Defendant is Entitled to Further Responses

As discussed above with Plaintiff’s supplemental responses to Defendant’s RFAs, the Court finds Plaintiff’s supplemental responses here to also not be substantively different from Plaintiff’s original responses as they consist of nearly the same objections. The supplemental responses do not change Defendant’s arguments in the moving papers. Indeed, Defendant’s Separate Statement still complies with California Rules of Court, rule 3.1345, subdivision (c), which requires a party’s separate statement to include “the text of each response, answer, or objection, and any further responses or answers” to each of the discovery requests in dispute. Thus, Plaintiff’s Supplemental Responses do not render the instant motion to be moot.

The parties do not dispute the relevance of the discovery requests. The Court finds that Plaintiff’s objections are without merit. There are no terms which can reasonably be interpreted as vague or ambiguous. As for any claims of privilege, Plaintiff must provide a privilege log identifying any such documents.

FROGS and SPROGS (x8716)

Defendant seeks an order compelling Plaintiff to provide further responses to Defendant’s Form Interrogatories, Set One (FROGS) and Special Interrogatories, Set One (SPROGS).

Further Responses Renders Defendant’s Motion Moot

Unlike Plaintiff’s further responses to the RFAs and RPDs, Plaintiff’s supplemental responses here are substantively different. Defendant’s present Motion merely advances argument regarding the insufficiency of Plaintiff’s original discovery responses, which have been superseded by Plaintiff’s substantively different supplemental responses. Defendant does not address the deficiencies of Plaintiff’s supplemental responses in its reply. Thus, the Court DENIES Defendant’s motion to compel further responses to FROGS and SPROGS, set one.

C. Sanctions

a. RFA

Defendant requests sanctions in the amount of $4000.00. Defendant’s counsel claims a rate of $550.00 and anticipates 8 hours in connection with this motion. This is excessive. The Court awards sanctions for three hours of time, totaling $1,650.

b. RPD

Defendant requests sanctions in the amount of $4,400.00. Defendant’s counsel claims a rate of $550.00 and anticipates 8 hours in connection with this motion. This is excessive. The Court awards sanctions for three hours of time, totaling $1,650.

c. FROGS/SROGS

Defendant requests sanctions in the amount of $7,150.00.

Given the Court’s denial of this motion, the Court denies Defendant’s requests for sanctions.

DATED: May 17, 2023

________________________________

Hon. Jill T. Feeney

Judge of the Superior Court