Judge Theresa M. Traber, Case Number: 21STCV11739, Date: 2024-11-25 Tentative Ruling

Judge: Theresa M. Traber, Case: 21STCV11739, Date: 2024-11-25 Tentative Ruling

Case Number: 21STCV11739 Hearing Date: November 25, 2024 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: November 25, 2024 TRIAL DATE: March 25, 2025

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

CASE NO.: 21STCV11739

MOTION TO COMPEL FURTHER RESPONSES TO INTERROGATORIES (x2)

MOVING PARTY: Defendants Revital Agi and Eydan Berger

RESPONDING PARTY(S): Plaintiff Avraham Bibi in pro per

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.

Defendants Revital Agi and Eydan Berger move to compel further responses to special interrogatories propounded to Plaintiff.

TENTATIVE RULING:

Defendant Revital Agi’s Motion to Compel Further Responses to Special Interrogatories is DENIED for lack of jurisdiction.

Defendant Eydan Berger’s Motion to Compel Further Responses to Special Interrogatories is DENIED for lack of jurisdiction.

DISCUSSION:

Defendants Revital Agi and Eydan Berger move to compel further responses to special interrogatories propounded to Plaintiff. As the motions pertain to virtually identical discovery requests and concern identical issues, the Court will address the motions jointly in the interest of brevity.

Legal Standard

Under Code of Civil Procedure section 2030.300, subdivision (a), a court may order a party to serve a further response to an interrogatory when the court finds that: “(1) An answer to a particular interrogatory is evasive or incomplete[;] (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate[; or] (3) An objection to an interrogatory is without merit or too general.”

The burden is on the responding party to justify any objection or failure to fully answer the interrogatories. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.)

Timing:

A motion to compel further responses to interrogatories must be served “within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing.” (Code Civ. Proc. § 2030.300(c).) The 45-day requirement is mandatory and jurisdictional. (Sexton v. Superior Court¿(1997) 58 Cal.App.4th 1403, 1410.)

Defendants served their Special Interrogatories on Plaintiff on October 27, 2023. (Declaration of Ryan Davis ISO Mot. ¶ 2.) Plaintiff served responses on November 28, 2023, and supplemented responses on January 31, 2024. (Id. ¶¶ 3, 5; Exhs. 2-3.) The parties repeatedly agreed, in writing, to extend the time to move to compel further responses, with the final deadline set for October 18, 2024. (Id. Exhs. 4-5.) These motions were served and filed on that date. (See Proof of Service.) However, Defendants’ papers were served on Plaintiff, who has been self-represented since September 30, by electronic service. Code of Civil Procedure section 1010.6 authorizes electronic service on unrepresented persons in civil actions only when the person to be served has consented to electronic service. (Code Civ. Proc. § 1010.6(c)(1)-(2).) Consent to electronic service is made by either (1) serving notice on all parties and filing notice with the Court; or (2) manifesting affirmative consent through electronic means with the Court or the Court’s e-filing service provider and concurrently providing the party’s email for receiving service. (Code Civ. Proc. § 1010.6(c)(3).) The act of electronic filing is not express consent. (Id.) Here, no manifestation of affirmative consent was ever filed, thus rendering Defendants’ service of these motions improper.

Because Defendants served Plaintiff only by electronic service, and because they did so on the last agreed-upon date where proper notice of these motions could be given, Defendants have failed to serve notice of these motions in the statutorily prescribed time and manner. Defendants’ motions therefore failed to comply with Code of Civil Procedure section 2030.300 subdivision (c), and the Court lacks jurisdiction to hear these motions.

CONCLUSION:

Accordingly, Defendant Revital Agi’s Motion to Compel Further Responses to Special Interrogatories is DENIED for lack of jurisdiction.

Defendant Eydan Berger’s Motion to Compel Further Responses to Special Interrogatories is DENIED for lack of jurisdiction.

Moving Parties to give notice.

IT IS SO ORDERED.

Dated: November 25, 2024 ___________________________________

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.