Judge Theresa M. Traber, Case 22STCV03447 2022-11-07 Tentative Ruling

Judge: Theresa M. Traber, Case: 22STCV03447, Date: 2022-11-07 Tentative Ruling

Case Number: 22STCV03447 Hearing Date: November 7, 2022 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: November 7, 2022 TRIAL DATE: July 25, 2023

CASE: Stephen J. Walsh, IV v. Babak Davidson et al.

CASE NO.: 22STCV03447

(1) MOTION TO COMPEL FURTHER RESPONSES BY BIJAN DAVIDSON TO FORM INTERROGATORIES (SET ONE); REQUEST FOR SANCTIONS

(2) MOTION TO COMPEL FURTHER RESPONSES BY BABAK DAVIDSON TO FORM INTERROGATORIES (SET ONE); REQUEST FOR SANCTIONS

MOVING PARTY: (1)(2) Plaintiff Stephen J. Walsh IV

RESPONDING PARTY(S): (1) Defendant Bijan Davidson; (2) Defendant Babak Davidson

CASE HISTORY:

· 01/27/22: Complaint filed.

· 05/05/22: Cross Complaint filed by Last Minute Ventures as to Stephen J. Walsh IV

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is an action for contractual fraud. The parties entered into a joint venture whereby Defendants would provide the licenses and facilities necessary to operate a commercial manufacturing facility of edible cannabis products. Plaintiff alleges that Defendants misrepresented the state of the facilities provided and, when Plaintiff refused to provide funds until the facilities were repaired, Defendants locked Plaintiff’s commercial equipment in the facility.

Plaintiff moves to compel further responses to form interrogatories propounded to Defendants Bijan and Babak Davidson.

TENTATIVE RULING:

Plaintiff’s Motion to Compel Further Responses by Bijan Davidson to Form Interrogatories (Set One) is GRANTED IN PART with respect to Form Interrogatories Nos. 2.6, 2.11, 12.1 15.1, 17.1, and 50.1 through 50.5. Defendant Bijan Davidson is to provide verified, code-compliant responses without objections within 30 days of the date of this order.

Plaintiff’s Motion to Compel Further Responses by Babak Davidson to Form Interrogatories (Set One) is GRANTED IN PART with respect to Form Interrogatories Nos. 2.6, 2.11, 12.1 15.1, 17.1, and 50.1 through 50.5. Defendant Babak Davidson is to provide verified, code-compliant responses without objections within 30 days of the date of this order.

Plaintiff’s request for Sanctions is GRANTED in the amount of $1,485 against Defendants and Defendants’ counsel, jointly and severally. Payment is to be made to Plaintiff’s counsel within 30 days of the date of this order.

DISCUSSION:

Motion to Compel Further Responses By Bijan Davidson To Form Interrogatories (Set One)

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. § 2031.310(c).) The 45-day requirement is mandatory and jurisdictional. (Sexton v. Superior Court¿(1997) 58 Cal.App.4th 1403, 1410.)

Defendant served supplemental responses on September 1, 2022. (Declaration of Amy C. Johnsgard ISO Mot. ¶ 14.) This motion was filed and served on September 21, 2022, well within the 45-day requirement. The motion is therefore timely.

Meet and Confer

A party making a motion to compel further responses must also include a declaration stating facts showing a “reasonable and good faith attempt” to resolve informally the issues presented by the motion before filing the motion. (Code Civ. Proc., §§ 2016.040, 2030.300(b)(1).)

The Declaration of Amy Johnsgard in support of the motion extensively describes the meet and confer efforts between the parties since Defendant’s initial discovery responses were served. However, the Declaration does not identify any efforts to meet and confer following receipt of the supplemental responses. Plaintiff has therefore not satisfied the meet and confer requirements of the Code of Civil Procedure. Nevertheless, the Court will exercise its discretion to examine the motion on its merits.

General Objections

Defendant asserts a series of “general objections” in addition to each objection raised specifically in the responses. Objections must be stated separately in response to each interrogatory. (Code Civ. Proc. § 2030.200(a)(3).) Because Defendant’s general objections are improper, the Court will not consider them.

Analysis of Responses

Plaintiff moves to compel further responses to Form Interrogatories Nos 1.1, 2.6, 2.11, 12.1-7, 15.1, 17.1, and 50.1-5.

1. Form Interrogatory No. 1.1

Form Interrogatory No. 1.1 seeks the contact information of each person who prepared or assisted in the preparation of the responses to the interrogatories. (Plaintiff’s Exh. A. No. 1.1.) In response, Defendant, in both the initial and supplemental responses, provided the contact information of Defendant’s law firm and of Bobby Davidson, but no other person. (Plaintiff’s Separate Statement p.1) The definition of “person” in form interrogatories includes not only natural persons, but organizations. This response is therefore complete, and further responses are not warranted.

2. Form Interrogatory No. 2.6

Form Interrogatory No. 2.6 seeks the contact information of Defendant’s present employer or place of self-employment, and the name, address, dates of employment, job title, and nature of work for each employer or self-employment from five years before the date of the incident. (Plaintiff’s Exh. A. No. 2.6) In response, Defendant objected to the interrogatory as irrelevant and an invasion of privacy under the California Constitution, and answered, subject to the objection, that Defendant is self-employed at present. (SS p. 1-2.)

Defendant argues that this interrogatory is irrelevant because it has no connection to the relevant time period. This argument is not well-taken; as Defendant concedes in the Separate Statement, the purpose of this interrogatory is to obtain general background information, which, considering the broad presumption in favor of discovery, is sufficient to establish relevance. This objection is without merit.

Defendant also argues that this interrogatory is an invasion of Defendant’s privacy under Article 1 section 1 of the California Constitution.

In ruling on a privacy objection in the context of discovery, the party asserting a privacy right must establish a legally protected privacy interest. (Williams v. Superior Court (2017) 3 Cal.5th 531, 552.) The party asserting a privacy right must also establish an objectively reasonable expectation of privacy in the given circumstances. (Id.) Further, the party asserting a privacy right must establish a threatened intrusion that is serious. (Id.) The Court need not proceed to the fourth step of balancing competing interests if all three of the above are not satisfied. (Id. at 555.)

If the Court reaches the fourth step, the Court must balance these competing considerations: The party seeking information may raise whatever legitimate and important countervailing interests disclosure may serve. (Id. at 552.) The party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. (Id.) Courts may not require the party seeking discovery to demonstrate a “compelling need” simply because discovery of any facially private information is sought. (Id. at 556-557.) When a privacy interest is asserted, the party seeking production must show that the information sought is directly relevant to a cause of action or a defense. (Harris v. Superior Court (Smets) (1992) 3 Cal.App.4th 661, 665, citing Britt v. Superior Court (1978) 20 Cal.3d 844, 859-62.)

Defendant relies upon Hernandez v. Hillsides for the proposition that Defendant has an expectation of privacy in “certain aspects of employment.” (See Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272.) Defendant’s reliance is misplaced, as Hernandez was concerned with whether an employee had a reasonable expectation of privacy that was violated by video surveillance measures taken by an employer. (Id. at 288.) Hernandez says nothing about a reasonable expectation of privacy in basic information regarding a person’s job, dates of employment, and duties. Defendant has not identified a reasonable expectation of privacy nor a legally protected privacy interest and makes no effort whatsoever to show that the threatened intrusion is serious. The Court therefore finds that this objection is without merit.

3. Form Interrogatory No. 2.11

Form Interrogatory No. 2.11 asks whether the respondent was, at the time of the incident at issue, an agent or employee of any person, and if so, asks the respondent to provide the person’s contact information, and a description of the respondent’s duties. (Plaintiff’s Exh. A. No. 2.11.) Defendant’s supplemental response provides the contact information of Last Minute Ventures, LLC, states that Defendant was a manager of Last Minute Ventures, but states only that Defendant is “responsible for the day-to-day operations of Last Minute Ventures, LLC.” (SS p. 5)

Defendant argues that this response is complete. The Court disagrees. The response is vague and evasive on its face. At minimum, a non-exhaustive list of Defendant’s responsibilities as part of the “day-to-day operations” would be warranted. The Court therefore finds that Plaintiff is entitled to compel further responses to this request.

4. Form Interrogatory No. 12.1

Form Interrogatory No. 12.1 seeks the contact information of each individual who witnessed the incident, made any statements at the scene, heard any statements made about the incident at the scene, or who respondent or anyone acting on respondent’s behalf claims has knowledge of the incident except for expert witnesses. (Plaintiff’s Exh. A. No. 12.1.) Defendant objected to the interrogatory as calling for expert testimony, and provided the contact information of Plaintiff, the other individual Defendant, and generally the Department of Cannabis Regulation for the City of Los Angeles, and the Department of Cannabis control for the State of California, and a “Lisa Selan.” (SS pp. 5-7.) Defendant did not provide contact information for the government agencies.

Plaintiff contends that further responses should be compelled because Defendant’s reference to two entire government agencies is not responsive. In reply, Defendant contends the response is complete, and Defendant is not required to provide information that is a matter of public record. The Court agrees with Plaintiff that the response, as provided, is evasive in that it refers to an entire government agency without specifying the relevant individuals, who are potential witnesses with relevant knowledge. Furthermore, Defendant’s expert witness objection is without merit as the interrogatory expressly excludes expert witnesses. The Court therefore finds that Plaintiff is entitled to compel further responses to this request.

5. Form Interrogatories Nos. 12.2 – 12.7

Form Interrogatory Nos. 12.2 through 12.7 asks whether the Respondent has interviewed any individual concerning the incident, has obtained any written statements, video recordings, models, diagrams, or reports regarding the incident, or has conducted an inspection of the scene, and to provide contact information of all individuals involved with any of this evidence. (See, e.g, Plaintiff’s Exh. A. No. 12.2.) In response, Defendant asserted the same invalid expert objection, but otherwise stated “No. Responding Party has not hired an expert witness yet. Responding Party is not withholding any information.” (See, e.g., SS pp. 7-8.)

Plaintiff contends that this response is evasive. The Court disagrees. Defendant has responded under penalty of perjury in the negative and stated further that no information is being withheld. Further responses are not necessary.

6. Form Interrogatory No. 15.1

Form Interrogatory No. 15.1 asks the respondent to identify each denial of a material allegation and each special or affirmative defense and for each state all facts on which the denial is based, provide the contact information of all persons with knowledge of those facts, and identify all documents and other tangible things which support that position and the contact information of the person who has each document. (Plaintiff’s Exh. A No. 15.1.) Defendant’s only response was to exercise its right to produce documents in lieu of summarizing pursuant to Code of Civil Procedure section 2030.210. (SS p.12-13.)

Plaintiff contends that this response is inadequate because the interrogatory does not call for documents, and, in any event, Defendant failed to produce responsive documents. Plaintiff contends that, under Cornerstone Realty Advisors, LLC v. Summit Healthcare REIT, Inc., Defendant waived the right to produce responsive documents in lieu of written answers. However, nowhere in Cornerstone is there any statement to the effect that this right can be waived by failure to timely produce documents. (See Cornerstone Realty Advisors, LLC v. Summit Healthcare REIT, Inc. (2020) 56 Cal.App.5th 771.) In opposition, Defendant states that documents responsive to Plaintiff’s Form Interrogatories generally were produced after this motion was filed but makes no effort to identify which documents are responsive any specific interrogatory. Further, Defendant also makes no attempt to justify the lack of response to the rest of the interrogatory. Plaintiff is therefore entitled to an order compelling further responses.

7. Form Interrogatory No. 17.1

Form Interrogatory No. 17.1 seeks all facts in support of any response other than an unqualified admission to the contemporaneous requests for admission, the contact information of anyone with knowledge of those facts, any documents or tangible things in support of that response, and the contact information of anyone with those documents. (Plaintiff’s Exh. A. No. 17.1.) Defendant’s only response was to exercise its right to produce documents in lieu of summarizing pursuant to Code of Civil Procedure section 2030.210. (SS p.16-17.)

For the reasons stated above in connection with Interrogatory No. 15.1, the Court finds that Plaintiff is entitled to an order compelling further responses.

8. Form Interrogatory No. 50.1

Form Interrogatory No. 50.1 seeks documents related to any agreement alleged in the pleadings and the contact information of each person in possession of those documents, as well as any persons with knowledge of unwritten modifications to the agreement and any documents which evidence those modifications. (Plaintiff’s Exh. A. No. 50.1.) Defendant’s only response was to exercise its right to produce documents in lieu of summarizing pursuant to Code of Civil Procedure section 2030.210. (SS p.17-18.)

For the reasons stated above regarding the deficiencies in Defendant’s purported production of documents, the Court finds that Plaintiff is entitled to an order compelling further responses.

9. Form Interrogatories Nos. 50.2 – 50.5

Form Interrogatories 50.2 through 50.5 seek information regarding breach, excuse of performance, voluntary termination, and enforceability regarding each agreement alleged in the pleadings. (See, e.g., Plaintiff’s Exh. A. No. 50.2.) For each, Defendant’s only response was to exercise its right to produce documents in lieu of summarizing pursuant to Code of Civil Procedure section 2030.210. (See, e.g., SS p.18-19.)

For the reasons stated above regarding the deficiencies in Defendant’s purported production of documents, the Court finds that Plaintiff is entitled to an order compelling further responses.

Sanctions

Plaintiff also requests sanctions in connection with this motion.

Plaintiff requests $3,871.50 in sanctions against Defendant and Defendant’s counsel, jointly and severally. Plaintiff bases this request on 4.7 hours of attorney time billed at $475 per hour, plus an estimated additional two hours to prepare a reply brief, plus an estimated additional hour to attend the hearing on this motion, plus a $60 filing fee. (Johnsgard Decl. ¶ 17.)

Code of Civil Procedure section 2030.300(d) requires the Court to impose sanctions against any party who unsuccessfully makes or opposes a motion to compel further response, 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. The Court may impose a monetary sanction on a party or an attorney who engages in misuse of the discovery process. (Code Civ. Proc. § 2023.030(a).) Misuse of the discovery process includes making, without substantial justification, an unmeritorious objection to discovery, or making an evasive response to discovery. (Code Civ. Proc. § 2023.010(e), (f).)

Here, neither party has fully prevailed on the motion. However, Defendant also made numerous unmeritorious objections that do not have substantial justification, and also provided several evasive discovery responses. The Court therefore grants reduced sanctions in the amount of $1,485, representing three hours of attorney time at $475 per hour, plus the $60 filing fee.

Conclusion

Accordingly, Plaintiff’s Motion to Compel Further Responses is GRANTED IN PART with respect to Form Interrogatories Nos. 2.6, 2.11, 12.1 15.1, 17.1, and 50.1 through 50.5.

Plaintiff’s request for Sanctions is GRANTED in the amount of $1,485 against Defendant and Defendant’s counsel, jointly and severally. Payment is to be made to Plaintiff’s counsel within 30 days of the date of this order.

Motion to Compel Further Responses By Babak Davidson To Form Interrogatories (Set One)

Plaintiff also moves to compel further responses from Defendant Babak Davidson to form interrogatories. The moving papers, opposition papers, reply papers, and interrogatories themselves are identical to those in the above motion. Accordingly, for the foregoing reasons, Plaintiff’s Motion to Compel Further Responses is GRANTED IN PART with respect to Form Interrogatories Nos. 2.6, 2.11, 12.1 15.1, 17.1, and 50.1 through 50.5.

Plaintiff also requests $3,871.50 in sanctions against Defendant and Defendant’s counsel, jointly and severally. However, as the interrogatories, responses, moving papers, and opposition papers are identical to those in the above motion, the Court declines to award additional sanctions on this motion.

CONCLUSION:

Accordingly, Plaintiff’s Motion to Compel Further Responses by Bijan Davidson to Form Interrogatories (Set One) is GRANTED IN PART with respect to Form Interrogatories Nos. 2.6, 2.11, 12.1 15.1, 17.1, and 50.1 through 50.5. Defendant Bijan Davidson is to provide verified, code-compliant responses without objections within 30 days of the date of this order.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: November 7, 2022 ___________________________________

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.