Judge Salvatore Sirna, Case 20PSCV00326 2022-10-27 Tentative Ruling

Plaintiff Jose R. Pilpa’s MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR ADMISSIONS

Plaintiff Jose R. Pilpa’s MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES

Plaintiff Jose R. Pilpa’s Motion to Compel Further Responses to Requests for Admissions is GRANTED IN PART, DENIED IN PART. As to Plaintiff’s First Set of Requests for Admissions Nos. 9, 10, 17, 19, 20, 25, 27, 28, 30, and 31, a further response is required. Defendant American Power Enterprises, LLC is hereby ordered to serve further verified responses to these numbered requests for admissions without objection within 14 days of issuance of this order.

Plaintiff Jose R. Pilpa’s Motion to Compel Further Responses to Plaintiff’s First Set of Form Interrogatories is GRANTED. Defendant American Power Enterprises, LLC is hereby ordered to provide further verified responses to Form Interrogatories Nos. 12.1, 15.1, and 17.1, including all subparts, without objection on the Plaintiff within 14 days of issuance of this order.

Plaintiff Jose R. Pilpa’s request for sanctions in Plaintiff’s Motion to Compel Further Responses to Requests for Admissions is DENIED. Plaintiff Jose R. Pilpa’s request for sanctions in Plaintiff’s Motion to Compel Further Responses to Form Interrogatories is GRANTED and sanctions are AWARDED in the reduced amount of $860, payable within 30 days of issuance of this order.

In this contractual fraud action, Plaintiff Jose R. Pilpa invested $20,000 in a “non-profit venture” run by Plaintiff’s neighbor, Ibrahim Ghanem. Plaintiff also signed a durable power of attorney that designed Ghanem attorney-in-fact for the management of Plaintiff’s property and personal affairs. Soon after, Plaintiff revoked the power of attorney and requested the $20,000 investment back, to which Ghanem refused. On May 18, 2020, Plaintiff filed a complaint against Ghanem, American Power Enterprises, LLC (Defendant), and Does 1-10, alleging the following causes of action:

On July 15, 2020, Ghanem and Defendant filed a cross-complaint against the Plaintiff and Roes 1 through 10, alleging the following causes of action:

Plaintiff moves to compel Defendant to provide further responses to Plaintiff’s first set of requests for admissions and form interrogatories.

A party may file a motion compelling further answers to interrogatories or requests for admissions if it deems the responses are inadequate, incomplete, or evasive, or an objection in the responses is without merit or too general. (Code of Civ. Proc., § 2030.300; 2033.290.) The motion shall be accompanied with a meet and confer declaration. (Code of Civ. Proc., § 2030.300, subd. (b); 2033.290, subd. (b).) Each answer in the response must be “as complete and straightforward as the information reasonably available to the responding party permits,” (Code of Civ. Proc., § 2030.220, subd. (a).) and “[i]f an interrogatory cannot be answered completely, it shall be answered to the extent possible.” (Code of Civ. Proc., § 2030.220, subd. (b).) The court must impose sanctions on a party who unsuccessfully makes or opposes a motion to compel further unless the party acted with substantial justification or other circumstances make imposing a sanction unjust. (Code of Civ. Proc., § 2030.300, subd. (d); 2033.290, subd. (d).)

On June 24, 2021, Plaintiff served the first set of Plaintiff’s form interrogatories and requests for admissions on the Defendant. (Alvarez Decl., ¶ 2.) Defendant provided timely responses on August 12, 2021. (Alvarez Decl., ¶ 3.) Deeming Defendant’s responses inadequate, Plaintiff sent Defendant a meet and confer letter on August 19, 2021, that addressed Plaintiff’s issues with the responses and provided 15 additional days for further responses. (Alvarez Decl., ¶ 4.) On September 3, 2021, Plaintiff and Defendant met telephonically to discuss discovery issues and Defendant agreed to provide supplemental responses within 21 days. (Alvarez Decl., ¶ 5.) On September 24, 2021, Defendant requested an extension to provide supplemental responses by October 8. (Alvarez Decl., ¶ 6, Ex. D.[1]) Defendant never provided supplemental responses to the Plaintiff. (Alvarez Decl., ¶ 7.)

While the court is not in receipt of an opposition filed by the Defendant, Ghanem filed a declaration on March 11, 2022, on the behalf of Ghanem and the Defendant, stating further supplemental responses were served on the Plaintiff, although Ghanem did not provide any exhibits or copies of Defendant’s supplemental responses for the court to review. Furthermore, Ghanem was self-represented when Ghanem filed the declaration on Defendant’s behalf and “it is well-established in California that a corporation cannot represent itself in a court of record either in propria persona or through an officer or agent who is not an attorney.” (Caressa Camille, Inc. v. Alcoholic Beverage Control Appeals Bd. (2002) 99 Cal.App.4th 1094, 1101.) Thus, the court will consider Plaintiff’s motions to compel further in absence of any alleged responses from Defendant.

Plaintiff seeks further verified responses to Plaintiff’s first set of requests for admissions, numbered 7, 9, 10, 17, 19, 20, 24, 25, 26, 27, 28, 30, and 31. For the reasons below, Defendant is ordered to provide further verified responses without objection to the following numbered requests for admissions: 7, 9, 10, 17, 19, 20, 25, 27, 28, 30, and 31.

No. 7: Defendant objects to this request as vague, unintelligible, and seeking a legal conclusion regarding liability. The court agrees that the interrogatory is vague insofar as it seeks an admission the Defendants are “jointly and solidarily” liable. If Plaintiff seeks an admission that Defendants are “jointly and severally” liable, that admission was not properly asked. The confusion raised by the wording of the admission makes Defendant’s objection well founded. No further response is required.

No. 9: Defendant objects to the request as vague and unintelligible as it assumes an obligation to make investments and seeks admission regarding conduct of another party. The court disagrees and finds Defendant’s objection to be without merit as the status of Plaintiff’s money and acts of the Defendant are relevant to this case.

No. 10.: Defendant objects to this request as contracting express terms of instruments and seeks admission regarding conduct of another party. The court disagrees and finds Defendant’s objection to be without merit.

No. 17: Defendant objects to this request as vague, ambiguous, seeking an admission regarding conduct of another party, and seeking a legal conclusion regarding liability. The court disagrees and finds Defendant’s objection to be without merit as requests for admissions may ask for opinions or legal conclusions to settle triable issues.

No. 19: Defendant objects to this request as not relevant and seeking an admission regarding conduct of another party. The court disagrees and finds Defendant’s objection to be without merit as Defendant’s knowledge of Ghanem’s experience where Ghanem signed and acted on Defendant’s behalf is relevant.

No. 20: Defendant objects to this request as not relevant and seeking an admission regarding conduct of another party. The court disagrees and finds Defendant’s objection to be without merit as Defendant’s knowledge of Ghanem’s experience where Ghanem signed and acted on Defendant’s behalf is relevant.

No. 24: Defendant objects to this request as seeking an admission on a pure issue of law. The court agrees as this request does not seek an application of the law to facts.

No. 25: Defendant objects to this request as not relevant and seeking an admission regarding qualifications of another party. The court disagrees and finds Defendant’s objection to be without merit as Defendant’s knowledge of Ghanem’s experience, training, and ability where Ghanem signed and acted on Defendant’s behalf is relevant.

No. 26: Defendant objects to this request as seeking admission regarding the conduct of another party. The court disagrees and finds Defendant’s objection to be without merit as it is alleged Ghanem acted on behalf of Defendant. However, because Defendant also answered with a denial, Plaintiff’s motion to compel further as to this request is denied as moot.

No. 27: Defendant objects to this request as seeking admission regarding the conduct of another party and seeking unqualified expert opinion. The court disagrees and finds Defendant’s objection to be without merit as the circumstances of Ghanem’s negotiation with Plaintiff over a durable power of attorney on Defendant’s behalf are relevant and not unqualified expert opinion.

No. 28: Defendant objects to this request as regarding the conduct of another party and seeking a legal conclusion regarding validity of durable power of attorney. The court disagrees and finds Defendant’s objection to be without merit as requests for admissions may ask for opinions or legal conclusions to settle triable issues.

No. 30: Defendant objects to this request as unintelligible, regarding the conduct of another party, and seeking a legal conclusion regarding validity of an agreement. The court disagrees and finds Defendant’s objection to be without merit as requests for admissions may ask for opinions or legal conclusions to settle triable issues.

No. 31: Defendant objects to this request as unintelligible, regarding the conduct of another party, and seeking a legal conclusion regarding unauthorized practice of law. The court disagrees and finds Defendant’s objection to be without merit as requests for admissions may ask for opinions or legal conclusions to settle triable issues.

Plaintiff seeks further verified responses to Plaintiff’s first set of form interrogatories, numbered 12.1, 15.1, and 17.1. For the reasons below, Defendant is ordered to provide further verified responses without objection to these form interrogatories.

No. 12.1: Plaintiff argues Defendant’s answer to No. 12.1 was nonresponsive because while Defendant provided six names, Defendant did not specify which categories the individuals fell under in the interrogatory, which included those who (a) witnessed the incident, (b) made statements at scene of incident, (c) heard statements at scene of incident by any individual at the scene, and (d) has knowledge of the incident while acting on behalf of Defendant. The court agrees and orders Defendant to provide a further verified and complete response to interrogatory 12.1, including its subparts (a) through (d).

No. 15.1: Defendant refuses to answer No. 15.1, arguing it already provided the information in its cross-complaint. However, No. 15.1 not only requires denials and special or affirmative defenses along with supporting facts but also names, address, contact information and documents to support those facts. Thus, the court disagrees with Defendant’s objection and orders Defendant to provide a further verified and complete response to interrogatory 15.1, including its subparts.

No. 17.1: Defendant responded that Defendant lacks personal knowledge to admit or deny genuineness of documents in exhibit C, D, and E as it was not a party to those instruments. However, even if genuineness of the documents was not within Defendant’s personal knowledge, Defendant failed to state Defendant made a reasonable investigation of the facts in Defendant’s response to this interrogatory. (Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 618, 634 [“[S]ince requests for admissions are not limited to matters within personal knowledge of the responding party, that party has a duty to make a reasonable investigation of the facts before answering items which do not fall within his personal knowledge.”].) With regards to Defendant’s responses to requests for admissions that were not unqualified admissions, Defendant did not provide the facts and supporting documentation requested by No, 17.1, with Defendant instead referring to the responses to the requests for admissions. Thus, Defendant should provide complete verified responses to No. 17.1 and all of its subparts for each of the requests for admissions that Defendant did not give an unqualified admission to.

Plaintiff requests sanctions in the amount of $1,935 for Plaintiff’s motion to compel further responses to requests for admissions and $1,560 for Plaintiff’s motion to compel further responses to form interrogatories. As for Plaintiff request for sanctions on the motion to compel further responses to requests for admission, the request is DENIED.

The court is not inclined to award since the court found merit with arguments by both sides. These circumstances make the imposition of sanctions unjust as to the motion to compel further responses to requests for admissions.

As for Plaintiff request for sanctions on the motion to compel further responses to form interrogatories, the request is GRANTED. Plaintiff’s counsel spent 4 hours on the motion to compel further responses to form interrogatories at an hourly rate of $375. (Alvarez Decl., ¶ 9.) Plaintiff’s counsel also claims a filing fee of $60.00 for the motion, not including the $1.65 credit card percentage fee charged for each motion. (Alvarez Dec., ¶ 9.)

The court finds sanctions are appropriate as Defendant failed to successfully oppose Plaintiff’s motions to compel further responses to form interrogatories. 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 $860 ($800 for 4 hours at an hourly rate of $200, plus $60 for the filing fee).

[1] While Plaintiff included Exhibit D (email from Defendant requesting extension) with motion for requests for admission, the exhibit is missing from Plaintiff’s motion for further responses to form interrogatories. Also, Plaintiff does not provide in declaration or exhibits if Plaintiff responded to Defendant’s request for extension.

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Order to Show
Cause Re: Why this case should not be deemed a Limited Jurisdiction case

The
Court’s Order to Show
Cause Re: Transfer to Limited Jurisdiction is DISCHARGED. The case will remain classified as an
unlimited jurisdiction matter.

“[A] transfer from superior court
to municipal court is proper when it is reasonable to conclude that the verdict
in the case will necessarily fall short of the superior court's jurisdictional
requirement of a claim exceeding $25,000.” (Rosenberg v. Superior Court
(1998) 67 Cal.App.4th 860, 867 (Rosenberg), citing Walker v. Superior
Court (1991) 53 Cal.3d 257, 270 (Walker).) However, the “power to
transfer is not absolute” and “must further the ends of justice.” (Id.,
at p. 868.) Courts generally proceed with caution in determining whether a
verdict will necessarily involve less than $25,000 because improper
classification could impair plaintiff’s right of recovery. (See Walker,
supra, 53 Cal.3d, at p. 270-71.) “The decisive factor in
determining the amount of money at issue for jurisdictional purposes is the
demand in the pleadings, not the amount of a subsequent judgment.” (Allstate
Leasing Corp. v. Smith (1965) 238 Cal.App.2d 128, 130.) And “[i]f several
causes of action are properly joined in a complaint, the court has jurisdiction
if any one of them demands the minimum amount, even though the others involve
lesser amounts.” (Ibid.)

In Plaintiff’s complaint,
Plaintiff requests the sum of $20,000 in damages for promissory fraud, negligent
representation, conversion, and breach of implied warranty of good faith and
fair dealing. However, Plaintiff also requests triple the amount of $20,000
plus attorney fees for elder abuse. In a response filed with the court,
Plaintiff cites Welfare & Institutions Code section 15657.5, subdivision
(a), which allows reasonable attorney fees and costs to be awarded in an action
alleging financial abuse of an elder. Furthermore, the standard for heightened
remedies in elder abuse cases is equivalent to the standard for claiming
punitive damages, requiring proof of recklessness, oppression, fraud, or malice.
(Estate of Lowrie (2004) 118, Cal.App.4th 220, 226-227, n. 4.)

In this case, Plaintiff has not
only pled allegations of elder abuse and requested both attorney fees and
punitive damages as Plaintiff has also pled allegations of promissory fraud.
Thus, it is reasonable to conclude that Plaintiff’s damages in this case will
exceed the limited jurisdictional minimum of $25,000.

Accordingly, the court’s Order to
Show Cause is DISCHARGED. The case will
remain classified as an unlimited jurisdiction matter.