Judge: Shirley K. Watkins, Case: 20VECV01399, Date: 2022-08-31 Tentative Ruling

If ALL parties submit on the tentative, then no appearance is necessary unless some other matter (i.e., Case Management Conference) is on calendar. It is not necessary to call the court to request oral argument. Oral argument is permitted on all tentative rulings.

Case Number: 20VECV01399    Hearing Date: August 31, 2022    Dept: T

            [TENTATIVE] ORDER:  Plaintiff Upside Health, Inc.’s Motion to Compel Further Responses to Form Interrogatories is GRANTED in Part and DENIED in Part.  The Motion is GRANTED as to Form Interrogatory 17.1 & Request for Admissions 4-6, 11-14, 18-21 and 23-25 and otherwise DENIED.

Plaintiff Upside Health, Inc.’s Motion to Compel Further Responses to Special Interrogatories is GRANTED in Part and DENIED in Part.  The Motion is GRANTED as to Special Interrogatory 16, 17, 24, 25, 34-36, 43-46 and otherwise DENIED.

Plaintiff Upside Health, Inc.’s Motion to Compel Further Responses to Requests for Production of Documents is GRANTED in Part and DENIED in Part.  The Motion is GRANTED as to Request for Production of Documents 7-9, 18-22, 24, 27-29, 31, 37-40 and otherwise DENIED.

Plaintiff Upside Health, Inc.’s Motion to Compel Further Responses to Requests for Admissions is GRANTED in Part and DENIED in Part.  The Motion is GRANTED as to Request for Admissions 11-13, 18, 20, 21, 23 and 24 and otherwise DENIED.

Plaintiff Upside Health, Inc.’s request for monetary sanctions in each motion is DENIED. 

Introduction

Plaintiff Upside Health, Inc. (Plaintiff) moves to compel further responses to form interrogatories (FI), special interrogatories (SI), requests for production of documents (RFP), requests for admissions (RFA) from Defendant Cabeau, Inc. (Defendant). 

            Discussion 

            Plaintiff’s motions argue against Defendant’s responses that included objections.  Plaintiff provides that the discovery demands were served on March 4, 2021, via email, making the deadline to serve responses: April 5, 2021.  Defendant served initial responses, which included objections, on May 7, 2021.  Because the deadline to serve responses had passed, Defendant’s objections were untimely and waived.  The Court did not consider the objections in the discussion below.  Even if the objections were considered, the Court notes that the privacy objection is moot due to the stipulated protective order.

            The Court notes that the Motions were timely filed/served per the 45 day rule because the parties stipulated to extending the 45 day deadline to May 16, 2022. 

            FI 12.1(a)-(d): Defendant’s response of “None” is a straightforward response and not evasive.  Defendant’s Motion to Compel (MTC) Further Responses to FI 12.1 is DENIED.

FI 17.1/RFA 4-6: Defendant’s response is unresponsive because the answer to (b) is a contention and not a fact; the answer to (c) lacks addresses and telephone numbers; and (d) is not in compliance with Code of Civil Procedure section 2030.220(c).  Defendant’s MTC Further Responses to FI 17.1/RFA 4-6 is GRANTED. 

FI 17.1/RFA 7-10, 15, 16, 22, 26-29:  Facts regarding how Defendant used the funds received from the State of Colorado will not lead to admissible evidence regarding the alleged breach of contract claims or fraud claim.  Defendant’s alleged breach is the failure to pay (Fourth Amended Complaint (4AC) par. 17) and Defendant’s alleged fraud is the misrepresentation made in July 2020 that Defendant had the ability to pay Plaintiff’s invoices within 30 days of shipping and billing.  (4AC pars. 8-9.)  Although the masks were to be delivered to the State of Colorado, the alleged contract terms and the alleged misrepresentation do not allegedly promise that the funds received from the State of Colorado would be used to pay Plaintiff.  The alleged misrepresentation of an ability to pay makes no reference to any promise to use the funds from the State of Colorado to pay Plaintiff.  Because the breach and the misrepresentation are not linked to the funds received from Colorado, Plaintiff’s RFA will not lead to admissible evidence.  Defendant’s MTC Further Responses to FI 17.1/RFA 7-10, 15, 16, 22, 26-29 is DENIED. 

FI 17.1/RFA 11-14, 18-21 & 23-25:  Defendant’s responses to these discovery demands were reliant upon objections asserted in response to the RFAs.  Because objections were waived, Defendant is required to provide a code compliant response.  The MTC Further Responses to FI 17.1/RFA 11-14, 18-21 and 23-25 is GRANTED.

            SI 2 & 3:  Plaintiff seeks information related to the conversion cause of action.  However, the Court sustained the demurrer to conversion without leave to amend.  Discovery related to the conversion claim will not lead to admissible evidence because the conversion claim is no longer a viable claim.  The MTC Further Responses to SI 2 and 3 is DENIED.

            SI 8 & 9 :  Defendant’s answer is responsive to the interrogatory and Plaintiff’s argument for further response is not argument but a request for evidentiary sanctions.  Requesting evidentiary sanctions within a discovery motion to compel is improper.  The MTC Further Responses to SI 8 & 9 is DENIED.

            SI 16, 17, 24, 25, 34-36, 43-46: Defendant’s responses consisted of objections.  However, objections were deemed waived, as reviewed above.  Stripping the response of objections, Defendant did not respond to the interrogatories.  The MTC Further Responses to SI 16, 17, 24, 25, 34-36, 43-46 is GRANTED.

            SI 18, 19, 20, 22, 23, 26 and 27: As analyzed above, facts related to Defendant’s receipt and use of the State of Colorado payment will not lead to admissible evidence on Plaintiff’s breach of contract and fraud claims.  There is no allegation that Defendant made any promise or entered any contract requiring Defendant to specifically use the money received from the State of Colorado to pay Plaintiff.  Specifically as to fraud, the allegation is limited to the misrepresentation of an ability to pay within 30 days of the invoice/delivery of the masks.  Because the alleged fraud is not a promise to pay Plaintiff from the Colorado payment, SI 18, 19, 20, 22, 23, 26 and 27 will not lead to admissible evidence.  The MTC Further Responses to SI 18, 19, 20, 22, 23, 26 and 27 is DENIED.

            SI 21: Plaintiff’s interrogatory, as phrased, is not full and complete in and of itself because it requires a review of Defendant’s account to determine which $161,000.00 belongs to Plaintiff.  As a practical matter, identifying $161,000.00 that is earmarked for payment to Plaintiff is near impossible because it defies how accounts are managed.  Once money is commingled with other money, it loses the ability to be traced. The MTC Further Responses to SI 21 is DENIED. 

            RFP 1-3:  Plaintiff is requesting all documents that support Defendant’s responses to the FI, SI and RFA.  The RFP 1-3 is overly broad because it relates to multiple FI, SI and RFA.  Without drafting the demands with more particularity, RFP 1-3 provide inadequate descriptions of the documents demanded.  The MTC Further Responses to RFP 1-3 is DENIED.

            RFP 5:  Plaintiff’s RFP 5 seeks info related to their conversion cause of action.  Because the conversion claim is dismissed, discovery as to conversion will not lead to admissible evidence.  The MTC Further Responses to RFP 5 is DENIED.

            RFP 7-9: Defendant’s response and supplemental response are uncertain.  Defendant states that they agreed to produce responsive documents, but, Defendant states that Plaintiff is in possession of responsive documents. 

Defendant also adds a contention that Plaintiff’s tort claims are baseless, however, argument is not a recognized response to an RFP.  Defendant’s response is mixture of claims that do not amount to a Code compliant response. 

Despite Defendant’s non-Code compliant response, Plaintiff asserts that a full production of responsive documents has not been produced because Defendant is disputing the viability of the fraud claim.  Because the ruling on the Demurrer to the 4AC resolves the issue as to the fraud claim, Defendant’s arguments are not persuasive.

The MTC Further Responses to RFP 7-9 is GRANTED.

            RFP 18-22, 24, 27-29, 31, 37-40:  Defendant’s response and supplemental response only consisted of objections.  As reviewed above, objections were waived.  Further, Defendant’s objections based upon Civil Code section 3295 is overruled due to the Court’s overruling of the demurrer to fraud cause of action in the 4AC.  Without the objections, Defendant did not provide a proper response.  The MTC Further Responses to RFP 18-22, 24, 27-29, 31, 37-40 is GRANTED. 

            RFP 12-17:  As analyzed above, facts related to Defendant’s receipt and use of the State of Colorado payment will not lead to admissible evidence on Plaintiff’s breach of contract and fraud claims.  Because the alleged fraud is not a promise to pay Plaintiff from the Colorado payment, RFP 12-17 will not lead to admissible evidence.  The MTC Further Responses to RFP 12-17 is DENIED.

RFA 7-10, 15: As analyzed above, facts related to Defendant’s receipt and use of the State of Colorado payment will not lead to admissible evidence on Plaintiff’s breach of contract and fraud claims.  Because the alleged fraud is not a promise to pay Plaintiff from the Colorado payment, RFA 7-10 and 15 will not lead to admissible evidence.  The MTC Further Responses to RFA 7-10 and 15 is DENIED.

RFA 11-13, 18, 20, 21, 23, 24:  Defendant’s response only consisted of objections.  As reviewed above, objections were waived.  Without the objections, Defendant did not provide a Code compliant response.  The MTC Further Responses to RFA 11-13, 18, 20, 21, 23 and 24 is GRANTED.

            Monetary Sanctions:  Plaintiff requests monetary sanctions: (1) FI MTC: $1,826.65; (2) SI MTC: $3,326.65; (3) RFP MTC: $3,076.65; and (4) RFA MTC: $3,076.65.  Plaintiff requests the sanctions be levied against Defendant and Counsel.  Sanctions are mandatory unless there is a showing of substantial justification or circumstances making the sanction unjust.  (Code Civ. Proc. secs. 2030.300(d), 2031.310(h), and 2033.290(d).)  Because the ruling on the MTC is split in favor of Plaintiff and Defendant, there is no definitive prevailing party.  Without a prevailing party, monetary sanctions are not merited.  Even if one party could be determined to be the prevailing party, the Court finds that the issues in the demurrer as to the fraud cause of action is substantial justification for the discovery disputes in these motions. 

            Plaintiff’s requests for monetary sanctions made in all four motions are DENIED.

            IT IS SO ORDERED, CLERK TO GIVE NOTICE.