Judge Salvatore Sirna, Case 19PSCV00318 2023-04-04 Tentative Ruling

Judge: Salvatore Sirna, Case: 19PSCV00318, Date: 2023-04-04 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, counsel are advised to check this website periodically to determine whether any changes or updates have been made to the tentative ruling. Counsel may submit on the tentative rulings by calling the clerk in Department G at (909) 802-1104 prior to 8:30 a.m. the morning of the hearing.

Case Number: 19PSCV00318 Hearing Date: April 4, 2023 Dept: G

Plaintiff Accu-Blend Corporation’s Motion for an Order Deeming Admitted Truth of Facts and Genuineness of Documents against Defendants Henry James Shishido, Alona Lynn Shishido, Robert Fuentes, Desirae Fuentes, Athena Marie Soto, and Nicolas Shishido

Respondent: NO OPPOSITION

TENTATIVE RULING

Sanctions are awarded in the amount of $461.65 and payable within thirty (30) days of the issuance of this order.

BACKGROUND

This is an action arising from alleged fraud. Plaintiff Accu-Blend Corporation is in the business of manufacturing wax. Defendant Henry James Shishiso (Henry Shishido) has served as Plaintiff’s daily operations manager since 2005. In January 2008, Plaintiff alleges Henry Shishido began replacing key personnel in Plaintiff’s accounting department, packaging and shipping department, and receiving department with individuals close to Henry Shishido. In particular, Plaintiff alleges Henry Shishido hired Defendant Alona Lynn Shishido (Alona Shishido), who was Henry Shishido’s wife, as bookkeeper and controller. Plaintiff alleges Henry Shishido then began stealing purchasing orders placed with Plaintiff by fulfilling orders under Henry Shishido’s name or under the name of Defendant H&S Mfg. (H&S), a sole proprietorship owned and operated by Henry Shishido.

In order to fulfill these orders, Henry Shishido allegedly utilized Plaintiff’s raw material, equipment, and labor. Henry Shishido would then package and ship the final products with the H&S logo and would collect payment on those orders. After Plaintiff conducted an audit, Plaintiff discovered a shortage of approximately $1,200,000 worth of raw materials.

On April 8, 2019, Plaintiff filed a complaint against Henry Shishido, Alona Shishido, H&S, and Does 1-50, alleging the following causes of action: (1) fraud, (2) conversion, (3) intentional interference with contract, (4) violation of Business and Professions Code section 17200, (5) conspiracy, (6) breach of fiduciary duty, and (7) constructive trust.

On August 12, 2019, Plaintiff filed a First Amended Complaint (FAC) against Henry Shishido, Alona Shishido, H&S, Robert Fuentes, Desirae Fuentes, Athena Marie Soto (Soto), and Does 1-20, alleging the same causes of action and additional causes of action for (7) violation of Business and Professions Code section 17044, (8) constructive trust, and (9) injunctive relief.

On September 27, 2019, Plaintiff amended the FAC to name Doe 2 as Defendant Nicolas James Shishido (Nicolas Shishido). On January 31, 2022, Plaintiff filed a motion to compel Henry Shishido, Alona Shishido, H&S, Robert Fuentes, Desirae Fuentes, and Soto to respond to requests for production of documents, form interrogatories, and special interrogatories. On February 22, the court denied Plaintiff’s motion on the ground that Plaintiff failed to provide proper notice.

On August 18, 2022, Plaintiff filed the following motions to compel: motion to compel responses to request for production of documents (against Henry and Alona Shishido), motion to compel responses to special interrogatories (against Henry Shishido, Alona Shishido, Robert Fuentes, Desirae Fuentes, Soto, and H&S), and a motion to compel responses to form interrogatories (against Henry Shishido, Alona Shishido, Robert Fuentes, Desirae Fuentes, Soto, and H&S). On September 27, the court granted Plaintiff’s motions to compel.

On September 15, 2022, Plaintiff filed a motion to deem admitted requests for admission against Henry Shishido, Alona Shishido, Robert Fuentes, Desirae Fuentes, and Soto. On October 10, the court granted Plaintiff’s motion.

On February 10, 2023, Plaintiff filed a motion for terminating or evidentiary/issue sanctions. On March 10, Plaintiff filed the present motion. A hearing on the motion is set for April 4. A hearing on the motion for terminating sanctions is also set for April 17 with a final status conference on July 5, and non-jury trial set for July 18.

ANALYSIS

Plaintiff moves to deem Plaintiff’s second set of requests for admissions admitted as to Henry Shishido, Alona Shishido, Robert Fuentes, Desirae Fuentes, Soto, and Nicolas Shishido (collectively, Defendants). Plaintiff also seeks an award of sanctions.

Legal Standard

Code of Civil Procedure section 2033.280, subdivisions (b) and (c) allow the requesting party to file a motion requesting that the truth of any matters specified in the request for admissions be deemed admitted unless the party to whom the requests have been directed has served a response that is in substantial compliance before the hearing. A response to requests for admissions is timely if provided within 30 days of service. (Code Civ. Proc., § 2033.250.) Monetary sanctions must be imposed pursuant to Code of Civil Procedure section 2033.280, subdivision (c) for failure to timely respond to requests for admissions. However, the court “has discretion to reduce the amount of fees and costs requested as a discovery sanction in order to reach a reasonable award.” (Cornerstone Realty Advisors, LLC v. Summit Healthcare Reit, Inc. (2020) 56 Cal.App.5th 771, 791 (Cornerstone).)

Discussion

On November 11, 2022, Plaintiff’s counsel propounded Requests for Admissions, Set Two on Defendants. (O’Connell Decl., ¶ 3.) On January 21, 2023, Plaintiff’s counsel Defendants a letter via first-class mail granting an extension of time to provide responses by February 9, 2023. (O’Connell Decl., ¶ 7, Ex. D.) Plaintiff’s counsel did not receive any response from Defendants. (O’Connell Decl., ¶ 7-8.) Furthermore, the court is not in receipt of any opposition or response from Defendants. Accordingly, the court GRANTS Plaintiff’s motion.

Plaintiff also requests sanctions in the amount of $471.15 against each Defendant jointly and severally. The court GRANTS Plaintiff’s request.

Utilizing a lodestar approach and in view of the totality of the circumstances, the court awards sanctions to Plaintiff and finds reasonable attorney fees and costs in the total amount of $461.65 ($400 for two hours of drafting the motion and service of the motion at $200/hour plus $61.65 for filing fees).

CONCLUSION

The court awards reasonable attorney's fees in the amount of $461.64, payable in thirty (30) days.