Judge: Theodore R. Howard, Case: 21-11992734, Date: 2023-01-05 Tentative Ruling
A) Motion to Compel Further Responses to Form Interrogatories, Set One, from Marquez
Plaintiff Roy Lopez Castillo’s (“Plaintiff”) unopposed Motion to Compel Further Responses to Form Interrogatories, Set One, from defendant David Marquez (“Marquez”) is GRANTED.
This motion is granted pursuant to Civ. Proc. Code § 2030.300.
Plaintiff requests the court order Marquez serve further responses to FROG Nos. 12.1 through 12.5, 17.1, and 50.1 to 50.2.
FROG Nos. 12.1 through 12.5 are “Investigation – General” interrogatories which ask a responding party to identify witnesses to the incident, people who were interviewed regarding the incident, written statements concerning the incident, and photographs, films, videotapes, diagrams, and/or models of the incident. These FROG are generally for personal injury actions, however Plaintiff marked box (a)(1) for the definition of “Incident,” which states:
“INCIDENT includes the circumstances and events surrounding the alleged accident, injury, or other occurrence or breach of contract giving rise to this action or proceeding.” [Emphasis added.]
Plaintiff’s first cause of action is for breach of contract. The term INCIDENT as defined is applicable to this case. In responding to FROG, a party must:
“(a) Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits.
(b) If an interrogatory cannot be answered completely, it shall be answered to the extent possible.
(c) If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.” (Civ. Proc. Code § 2030.220.)
Marquez’s response to FROG Nos. 12.1 through 12.5 was:
“There was no "incident".”
While it is unclear if there is video/photo/diagrams regarding the breach of contract (FROG Nos. 12.4-12.5), there may be recorded statements, interviews by Defendants, and witnesses to the breach of contract (FROG Nos. 12.1-12.3). The complaint among other things alleges, “Marquez, and his wife, Laura Marquez formed a new HVAC business . . . and crated a 6-page asset purchase and sale agreement . . . this buy agreement was the end run around plaintiff’s ownership/partnership interest associated with Local.” (Complaint ¶ 15.) If true, this would suggest Laura Marquez was a witness to at least some of the actions leading to or causing the alleged breach. There may be other individuals who worked on the “buy agreement” who may have additional information, drafts of such an agreement, etc.
Marquez must provide responses in compliance with Civ. Proc. Code § 2030.220 for FROG Nos. 12.1 through 12.5.
FROG No. 17.1 requires Marquez to produce additional information as to Marquez’s responses to RFA that were not unqualified admissions. Plaintiff requests further responses related to RFA Nos. 1, 3-10, 12, 14, 16, 18, 20, 22, 25, 27, 28, 30, 31, 33-37, and 40.
Marquez’s responses to the above were all the same for FROG No. 17.1 §§ (b) through (d):
“As set forth in conjunction with the denial stated in the Request for Admission, as well as, in our responses to Special Interrogatories and, substantiated where available in our documentation agreed to be provided in or responses to Request For Production.”
The response above makes no sense and provides none of the required information. It only vaguely states responsive information might be found in certain other documents, but does not provide any specific response as required, nor does it specifically identify the location of any responsive information.
Marquez must provide further responses in compliance with Civ. Proc. Code § 2030.220 for FROG No. 17.1.
As to FROG Nos. 50.1 to 50.2, they require a party to identify information relating to each agreement alleged in the pleadings and any breach of said agreements.
Marquez’s response to both FROG was:
“There was no contract between the parties alleged in the pleadings.”
The Complaint alleges an oral contract between Plaintiff and Marquez and potentially an additional contract related to the shareholder apportionment of the company. (Complaint ¶¶ 4-5, 17-21.) There is also an asset purchase and sale agreement contract alleged between Marquez and Local Air Conditioning Company. (Complaint ¶ 15.) Multiple agreements have been alleged in the Complaint.
Marquez must provide responses in compliance with Civ. Proc. Code § 2030.220 for FROG Nos. 50.1 and 50.2.
Plaintiff seeks monetary sanctions in the amount of $1,750 on this motion pursuant to Civ. Proc. Code § 2030.300(d). This comes from a reasonable $350/hr. billing rate for 5 hours of work pertaining to obtaining further responses and the motion. The full amount is awarded.
This motion is GRANTED and monetary sanctions of $1,750 are awarded in favor of Plaintiff and against Marquez.
B) Motion to Compel Initial Responses to Special Interrogatories, Set One, from Marquez
Plaintiff’s unopposed Motion to Compel Marquez’s initial responses to Special Interrogatories, Set One, is GRANTED in part and DENIED in part.
Plaintiff essentially filed the same motion on 02/09/22 (ROA #37). Based on representations made by parties, the prior motion was deemed moot except as to monetary sanctions as Marquez allegedly served substantive responses to the this and other discovery sets. (ROA #86.) Despite allegedly having those responses in his possession for almost two months prior to that hearing (ROA #83 at p. 2:1-2), Plaintiff apparently did not review them as his reply brief only states the responses were “deficient” and not instead that no responses to the SPROG had been served at all. (ROA #85 at p. 2:16-21.) As this motion is to compel initial responses and not to compel further responses, it now appears initial responses were never served. This also appears to be confirmed by the motion and supporting documents. (ROA #98, 3:23-24; Foroozandeh Decl. ¶ 4.)
The motion is GRANTED pursuant to Civ. Proc. Code § 2030.290. Marquez is ordered to served initial responses to the SPROG.
Plaintiff’s request for monetary sanctions is DENIED on this motion. Monetary sanctions on this issue were previously awarded to Plaintiff in the prior motion to compel initial responses. (ROA #86.) The present motion could have been avoided entirely had Plaintiff reviewed the responses served by Marquez on 03/11/22 and notified the court in Plaintiff’s reply brief filed on 05/04/22 that initial responses to SPROG had not been served. Instead, Plaintiff spent much of that reply (ROA #85) simply arguing the monetary sanctions were not mooted and should be awarded. Had Plaintiff notified the court at the time that no responses had been served, then the issue would not have been moot as to the prior motion. The court will not permit recovery of essentially double sanctions on the same motion, which again, could have been avoided with diligent review of documents.
C) Motion to Compel Further Responses to Requests for Production, Set One, from Marquez
Plaintiff’s unopposed Motion to Compel Marquez’s further responses to Request for Production (“RFP”), Set One, is GRANTED.
Plaintiff seeks further responses to RFP Nos. 1-25, 31, 33-40. For responses to RFP Nos. 1-25, 31, 33, 34 & 37, while Marquez indicated all documents would be produced in response to those RFP, the response does not state all documents within Marquez’s “possession, custody, or control” would be produced as required by Civ. Proc. Code § 2031.220.
For responses to RFP Nos. 35, 36, 38-40, Marquez appears to have simply responded that no documents exists. There is no indication that Marquez made a diligent search and reasonable inquiry into the documents requested and why it is that Marquez is unable to comply, such as whether the documents never existed, have been destroyed, etc. (Civ. Proc. Code § 2031.230.)
The motion is GRANTED pursuant to Civ. Proc. Code § 2031.310. Marquez is directed to serve further responses to RFP Nos. 1-25, 31, 33-40.
Plaintiff also requests monetary sanctions. (Civ. Proc. Code § 2031.310(h).) Monetary sanctions are GRANTED in the reduced amount of $875 ($350/hr. x 2.5hrs.). The court notes there is overlapping and identical billing with this motion and the FROG motion above. The court has reduced the requested amount by the 2.5 hours already awarded in the FROG motion.
D) Motion to Compel Further Responses to RFP, Set Two, from Marquez
Plaintiff’s unopposed Motion to Compel Marquez’s further responses to RFP, Set Two, is GRANTED.
Plaintiff requests Marquez’s further responses to RFP Nos. 41-46. While Marquez indicated all documents would be produced in response to those RFP, the response does not state all documents within Marquez’s “possession, custody, or control” would be produced as required by Civ. Proc. Code § 2031.220.
The motion is GRANTED and Marquez is directed to serve further responses to RFP Nos. 41-46.
Plaintiff also requests monetary sanctions. (Civ. Proc. Code § 2031.310(h).) Again, there is overlapping and identical billing with this motion and the FROG and RFP, Set One, motions above. As this motion is almost identical to the RFP, Set One, motion. The monetary sanction award on this motion is reduced to a total of $350.
E) Motion to Compel Further Responses to SPROG from Local
Plaintiff’s unopposed Motion to Compel and Local Air Conditioning Company’s (“Local”) further responses to Special Interrogatories, Set One, is GRANTED in part and DENIED in part.
Granted as to SPROG Nos. 1-2, 6, 9, 10, 23-26, and 29-31.
Denied as to SPROG Nos. 3 and 27.
Plaintiff seeks further responses to SPROG Nos. 1-3, 6, 9, 10, 23-27, and 29-31.
Local failed to provide as complete and straightforward of answer to SPROG Nos. 1-2, 6, 9, 10, 23-26, and 29-31, and further responses are required. (Civ. Proc. Code §§ 2030.220 and 2030.300.) Responses to SPROG Nos. 1, 30, and 31 either do not provide responsive information, or only provide minimal responses, which is not proper under the code.
SPROG Nos. 1 and 30 ask for all facts regarding the sale of Local and its assets/liabilities. The responses are approximately one to two sentences and do not provide sufficient information responsive to the requests.
SPROG Nos. 2, and 10 require the contact information for bookkeepers/accountants, which was not provided.
SPROG Nos. 6, 9, and 29 request information regarding loans made to Local. From the responses, It is unclear if Rachel Vagara (“Vagara”) made loans to Local. Vagara providing a loan to Marquez for the benefit of Local would also be a loan for the benefit of Local and the terms of such should be provided.
SPROG Nos. 23-26 ask for witnesses and identification of documents regarding Local’s profits and losses. Local responded only with names of bookkeepers/accountants, but did not provide their contact information, nor did the responses identify any documents.
Local’s response to SPROG No. 31 does not provide any information regarding specific amounts of money paid to Plaintiff for Plaintiff’s share of profits as a 49% shareholder of Local.
SPROG No. 3 asks for a geographical location and Local provided a street address. This appears proper an no further response is necessary. SPROG No. 27 is identical to SPROG No. 24, and no further response is necessary.
Plaintiff seeks an additional $1,750 in monetary sanctions. (Civ. Proc. Code § 2030.300(d).) Again, half of the time was previously awarded in the FROG motion above. The court will award 2.5 hrs. x $350/hr. billable for a total of $875 on this motion.
F) Motion to Compel Further Responses to RFP, Set One, from Local
Plaintiff’s unopposed Motion to Compel Local’s further responses to RFP, Set One, is GRANTED.
Plaintiff seeks further responses to RFP Nos. 1-25 and 31-40. For responses to RFP Nos. 1-25, 31-34 & 37, while Local indicated all documents would be produced in response to those RFP, the response does not state all documents within Local’s “possession, custody, or control” would be produced as required by Civ. Proc. Code § 2031.220.
For responses to RFP Nos. 35, 36, 38-40, Local appears to have simply responded that no documents exists. There is no indication that Local made a diligent search and reasonable inquiry into the documents requested and why it is that Local is unable to comply, such as whether the documents never existed, have been destroyed, etc. (Civ. Proc. Code § 2031.230.)
The motion is GRANTED pursuant to Civ. Proc. Code § 2031.310. Local is directed to serve further responses to RFP Nos. 1-25 and 31-40.
Plaintiff also requests monetary sanctions. (Civ. Proc. Code § 2031.310(h).) Monetary sanctions are granted in the reduced amount of $350. Again, there is overlapping and identical billing with this motion and the FROG motion above. This motion is also largely identical to the motion to compel Marquez’s further responses to RFP, Set One.
Further responses and monetary sanctions are due within two-weeks of written notice of the court’s ruling.
G) Motion to Compel Further Responses to Request for Admission to David Marques and for Sanctions.
The Motion of Plaintiff for an order compelling defendant David Marquez to serve further response to the first set of requests for admission that contain supplemental answers to requests 33, 34 and 35 is GRANTED. Said responses are due within two-weeks written notice of the court’s ruling.
The request for monetary sanctions in the reduced sum of $600.00 is GRANTED, payable within two-weeks of written notice of the court’s ruling.
Moving party to give notice.