Judge Theresa M. Traber, Case Number: 21STCV11739, Date: 2023-09-08 Tentative Ruling

Judge: Theresa M. Traber, Case: 21STCV11739, Date: 2023-09-08 Tentative Ruling

Case Number: 21STCV11739 Hearing Date: October 13, 2023 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: October 13, 2023 TRIAL DATE: January 30, 2024

CASE: Avraham Bibi v. Roey Burg, et al.

CASE NO.: 21STCV11739

MOTION TO COMPEL PRODUCTION OF DOCUMENTS IN ACCORDANCE WITH STATEMENT OF COMPLIANCE; REQUEST FOR SANCTIONS

MOVING PARTY: (1) (2) Plaintiff Avraham Bibi

RESPONDING PARTY(S): (1) Defendant Eydan Berger; (2) Defendant Revital Agi,

CASE HISTORY:

· 03/26/21: Complaint filed

· 08/01/22: Cross-Complaint filed by Roey Burg and ADB Group Inc. as to Avraham Bibi

· 01/06/23: Cross-Complaint filed by Eydan Berger as to Avraham Bibi.

· 03/13/23: First Amended Complaint filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is an action for breach of contract, breach of fiduciary duty, and fraud arising from the breakdown of a joint venture between the parties in the beauty supply and spa business. Plaintiff alleges that Defendants entered into unauthorized partnership agreements and misappropriated company assets.

Plaintiff moves to compel production of documents from Defendants Eydan Berger and Revital Agi in accordance with their statements of compliance in their responses to Plaintiff’s Requests for Production (Set One), and for sanctions.

TENTATIVE RULING:

Plaintiff’s Motion to Compel Production of Documents from Eydan Berger in Accordance with Statement of Compliance is GRANTED.

Plaintiff’s Motion to Compel Production of Documents from Revital Agi in Accordance with Statement of Compliance is GRANTED.

Defendants are ordered to produce all non-privileged, responsive documents that have not already been produced within 20 days of this order. Defendants are also ordered to serve an amended, verified, code-compliant statement of compliance which states that Defendants have produced all responsive, non-privileged documents in their possession, custody, or control, and to provide a privilege log if any documents are withheld based on privilege.

Plaintiff’s request for sanctions is DENIED.

DISCUSSION:

Motion to Compel Production of Documents From Eydan Berger in Accordance with Statement of Compliance

Plaintiff moves to compel production of documents from Defendant Eydan Berger in accordance with a statement of compliance with Requests for Productions Nos. 1-3, 5-6, 8-27, 29-31, 34-39, 45-60, 62, 65-66, 68-85, and 89-92.

Analysis

A motion to compel compliance pursuant to Code of Civil Procedure Section 2031.320 does not have a 45-day time limit; nor does it contain a meet and confer requirement or a good cause requirement. This type of motion is only proper where the responding party represented in its response that it would comply with the request for production and failed to do so. (Code Civ. Proc. § 2031.320(a).) A proper response to a request for production is “[a] statement that the party will comply with the particular demand for inspection, copying, testing, or sampling” by the date set forth in Code of Civil Procedure Section 2031.030(c)(2) (within a reasonable time, at least 30 days after service of the demand).

Plaintiff served the Requests for Production on Defendant on January 13, 2023, seeking various records pertaining to the parties’ business dealings. (Declaration of Joel G. Weinberg ISO Mot. ¶ 2 Exh. 1.) Defendant served initial responses on March 16, 2023, asserting numerous objections to the Requests, with particular emphasis on the purported ambiguity of the terms used. (Id. ¶ 3, Exhs. 2-3.) Amended Responses were served on June 22, 2023, which state in connection with the Requests at issue that Defendant “will produce responsive, relevant, non-privileged documents in Defendant’s possession, custody, or control.” (Id. ¶ 9, Exhs. 9-10.)

In opposition, Defendant states that responsive documents were produced between August 8 and 9, 2023, after this motion was filed. (Declaration of Ryan Davis ISO Opp. ¶ 12.)

In reply, Plaintiff expresses concern that Defendant did not produce all responsive documents. For example, Plaintiff states that Defendant Berger did not produce any emails or messages between the various Defendants regarding any of the various business dealings, even though it is likely that such materials should exist and would be responsive to, for example Requests 36-39 and 55-60. (See Weinberg Decl. Exh. 1 Nos. 36-39, 55-60.) Moreover, Plaintiff observes, correctly, that Defendant’s statements of compliance do not strictly conform with the Code of Civil Procedure because they do not state that Defendant has produced all responsive documents in Defendant’s possession, custody, or control, nor do they clearly state if only partial production is being made, and the reasons for doing so. (See generally Weinberg Decl. Exh. 9.) Plaintiff requests that the Court require Defendant to either produce all responsive documents or provide an amended verified statement of compliance stating that all responsive documents have been produced. The Court finds this to be an appropriate resolution to the dispute.

Accordingly, the Court will order Defendant to produce all responsive, non-privileged documents responsive to these requests that have not already been produced, if any, and to provide an amended verified statement of compliance stating that all responsive documents have been produced.

Sanctions

Plaintiff requests sanctions against Defendant and Defendant’s counsel in the amount of $6,077.50 jointly and severally.

Under Code of Civil Procedure section 2031.320(b), subject to exceptions not relevant here, “the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc. § 2031.320(b).)

The Court is not inclined to award sanctions where, as here, the party against whom the sanctions are sought has not meaningfully opposed the motion but rather has provided responsive documents pursuant to the statement of compliance. Accordingly, the Court finds that the imposition of sanctions would be unjust in this instance.

Conclusion

Accordingly, Plaintiff’s Motion to Compel Production of Documents from Eydan Berger in Accordance with Statement of Compliance is GRANTED.

Defendant is ordered to produce all non-privileged, responsive documents that have not already been produced within 20 days of this order. Defendant is also ordered to serve an amended, verified, code-compliant statement of compliance which states that Defendant has produced all responsive, non-privileged documents in Defendant’s possession, custody, or control, and to provide a privilege log if any documents are withheld on the basis of privilege.

Plaintiff’s request for sanctions is DENIED.

Motion to Compel Production of Documents From Revital Agi in Accordance with Statement of Compliance

Plaintiff moves to compel production of documents from Defendant Revital Agi in accordance with a statement of compliance with Requests for Productions Nos. 1-3, 5-6, 8-27, 29-31, 34-39, 45-60, 62, 65-66, 68-85, and 89-92.

Analysis

In opposition, Defendant states that responsive documents were produced between August 8 and 9, 2023, after this motion was filed. (Declaration of Ryan Davis ISO Opp. ¶ 12.)

In reply, Plaintiff expresses concern that Defendant did not produce all responsive documents. For example, Plaintiff states that Defendant Agi did not produce any emails or messages between the various Defendants regarding any of the various business dealings, even though it is likely that such materials should exist and would be responsive to, for example Requests 36-39 and 55-60. (See Weinberg Decl. Exh. 1 Nos. 36-39, 55-60.) Plaintiff also states that Defendant Agi did not produce balance sheets or income and expense statements after July 31, 2022, even though, by October of 2023, some records for the second half of 2022 and beyond should exist. (See Declaration of Joel G. Weinberg ISO Reply ¶ Exhs. 4-5.) Moreover, Plaintiff observes, correctly, that Defendant’s statements of compliance do not strictly conform with the Code of Civil Procedure because they do not state that Defendant has produced all responsive documents in Defendant’s possession, custody, or control, nor do they clearly state if only partial production is being made, and the reasons for doing so. (See generally Weinberg Decl. Exh. 9.) Plaintiff requests that the Court require Defendant to either produce all responsive documents or provide an amended verified statement of compliance stating that all responsive documents have been produced. The Court finds this to be an appropriate resolution to the dispute.

Sanctions

Plaintiff requests sanctions against Defendant and Defendant’s counsel in the amount of $6,077.50 jointly and severally.

Conclusion

Accordingly, Plaintiff’s Motion to Compel Production of Documents from Revital Agi in Accordance with Statement of Compliance is GRANTED.

Plaintiff’s request for sanctions is DENIED.

CONCLUSION:

Accordingly, Plaintiff’s Motion to Compel Production of Documents from Eydan Berger in Accordance with Statement of Compliance is GRANTED.

Plaintiff’s Motion to Compel Production of Documents from Revital Agi in Accordance with Statement of Compliance is GRANTED.

Plaintiff’s request for sanctions is DENIED.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: October 13, 2023 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.