Judge Theresa M. Traber, Case Number: 22STCV39646, Date: 2023-12-06 Tentative Ruling

Judge: Theresa M. Traber, Case: 22STCV39646, Date: 2023-12-06 Tentative Ruling

Case Number: 22STCV39646 Hearing Date: April 3, 2024 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: April 3, 2024 TRIAL DATE: August 13, 2024

CASE: 3BTech Inc. v. Great Northern Ins. Co.

CASE NO.: 22STCV39646

(1) MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR ADMISSIONS;

(2) MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES;

MOVING PARTY: (1)(2) Defendant Great Northern Insurance Co.

RESPONDING PARTY(S): (1)(2) Plaintiff 3BTech, Inc.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a breach of contract action that was filed on December 6, 2021. Plaintiff seeks coverage for the loss of inventory destroyed by a fire while in the care of the insured non-party Pro-Com Products, Inc.

Defendant Great Northern Ins. Co moves to compel further responses to requests for admissions and form interrogatories, and for sanctions.

TENTATIVE RULING:

Defendant’s Motion to Compel Further Responses to Requests for Admissions (Set Two) is DENIED.

Defendant’s Motion to Compel Further Responses to Form Interrogatories is GRANTED IN PART with respect to Form Interrogatory No. 17.1 and Requests for Admissions Nos. Requests Nos. 56, 57, 61, 62, 63, and 67 only.

Plaintiff is ordered to provide verified, code-compliant supplemental responses within 20 days of this order.

DISCUSSION:

Motion to Compel Further Responses to Requests for Admissions (Set Two)

Defendant moves to compel further responses to requests for admissions Nos. 28 through 30.

Legal Standard

Code of Civil Procedure section 2033.290(a) provides that “[o]n receipt of a response to requests for admissions, the party requesting admissions may move for an order compelling a further response if that party deems that either or both of the following apply: (1) An answer to a particular request is evasive or incomplete; (2) An objection to a particular request is without merit or too general.” (Code Civ. Proc § 2033.290(a).)

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

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, 2033.290(b).)

The Declaration of Eliot Cartwright attached to this motion states that the parties met and conferred via email concerning the operative responses to Defendant’s discovery between January 16, 2024 and February 13, 2024, without success. (Declaration of Eliot L. Cartwright ISO Mot. ¶¶ 5-8, Exhs. D-E.) Defendant has therefore complied with its statutory meet-and-confer obligation.

Timing

A motion to compel further responses to requests for admission 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. § 2033.290(c).) The 45-day requirement is mandatory and jurisdictional. (Sexton v. Superior Court¿(1997) 58 Cal.App.4th 1403, 1410.)

Here, Defendant’s responses were served on December 4, 2023. (Cartwright Decl. ¶ 4, Exh. C.) The parties agreed in writing to extend the time to file this motion to February 21, 2024, the date this motion was filed. (Id. ¶ 6, Exh. E.) The motion is therefore timely.

Analysis

Defendant moves to compel further responses to Requests for Admissions Nos. 28 through 30 propounded to Plaintiff. Defendant propounded its second set of Requests for Admissions on October 27, 2023. (Cartwright Decl. ¶ 2, Exh. A.) Plaintiff served responses on December 4, 2023. (Id. ¶ 4, Exh. C.)

Each of the Requests for Admission at issue demands that Plaintiff admit that an agreement between Plaintiff and Pro-Com Products established certain rights and obligations for each party with respect to the disposition of Plaintiff’s products stored at the subject property. Plaintiff responded to each request with a partial admission that recited portions of the agreement, followed by a denial to the extent that the admission is sought as to all products at the property, because the agreement was not applicable to all products at the property.

Specifically, Request No. 28 states:

Admit that Section 1, “Sale By Consignment,” of the CONSIGNMENT AGREEMENT permitted PRO-COM, as the consignee, to place orders for the sale of YOUR products located at the LOSS LOCATION, subject to YOUR right to refuse to fill such orders.

(Defendant’s Exh. A. No. 28.)

Plaintiff responded:

Admit in part that the Consignment Agreement section 1 states, “The Consignee will, from time to time, place orders for the Products from the Consignor. The Consignor may, at its sole discretion, accept such orders and ship such Products on consignment to the Consignee, subject to and in accordance with the terms and conditions of this Agreement. The Consignee shall take delivery and make payment as required hereunder for all Products ordered by it, but nothing in this Agreement shall be deemed to obligate the Consignor to fill any or all of the Consignee's orders for Products.” Denied to the extent the Consignment Agreement defines “Products” as “certain products” which Consignor wishes to sell on consignment, not all of 3BTech’s products at a certain location and the agreement predated later memorandum of understanding between Pro-Com and 3BTech regarding 3BTech’s inventory at the 1250 Bixby warehouse as of 12/4/2020, and therefore the Consignment Agreement is not applicable to all of 3BTech’s products at the 1250 Bixby warehouse as of 12/4/2020.

(Defendant’s Exh. C. No. 28.) The responses to Requests Nos. 29 and 30 are similar. These requests state:

[No. 29]:

Admit that Section 2, "Ownership of Products," of the CONSIGNMENT AGREEMENT permitted PRO-COM, as the consignee, to transfer title, property, and ownership of YOUR products located at the LOSS LOCATION "by bona fide sale by or to the Consignee [PROCOM]."

[No. 30]:

Admit that Section 6, “Property Insurance,” of the CONSIGNMENT AGREEMENT obligated PRO-COM to “procure and maintain All Risk property insurance coverage [for] at least $3,000,000” with YOU “named a loss payee on such policy pertaining to the Consignor’s Products stored and maintained at Consignee’s location(s) in accordance with this Agreement, as applicable, to the extent of Consignor insurable interest.”

(Exh. A. Nos 29-30.) Plaintiff responded:

[No. 29]:

Admit in part that the Consignment Agreement section 2 states, “Title to, and property and ownership in, all Products shall remain with the Consignor until such time as their removal may be directed in writing by the Consignor or until such time as they may be disposed of by bona fide sale by or to the Consignee or as may otherwise be hereinafter provided.” Denied to the extent the Consignment Agreement defines “Products” as “certain products” which Consignor wishes to sell on consignment, not all of 3BTech’s products at a certain location and the agreement predated later memorandum of understanding between Pro-Com and 3BTech regarding 3BTech’s inventory at the 1250 Bixby warehouse as of 12/4/2020, and therefore the Consignment Agreement is not applicable to all of 3BTech’s products at the 1250 Bixby warehouse as of 12/4/2020.

[No. 30]:

Admit in part that the Consignment Agreement section 6 states, “The parties expressly agree that the Consignee shall procure and maintain All Risk property insurance coverage at least $3,000,000, including flood and earthquake coverage, for Consignor's property that is in their care, custody or control. Consignor shall be named a loss payee on such policy pertaining to the Consignor's Products stored and maintained at Consignee's location(s) in accordance with this Agreement, as applicable, to the extent of Consignor insurable interest.” Denied to the extent the Consignment Agreement defines “Products” as “certain products” which Consignor wishes to sell on consignment, not all of 3BTech’s products at a certain location and the agreement predated later Memorandum of Understanding between Pro-Com and 3BTech regarding 3BTech’s inventory at the 1250 Bixby warehouse as of 12/4/2020, and therefore the Consignment Agreement is not applicable to all of 3BTech’s products at the 1250 Bixby warehouse as of 12/4/2020.

(Defendant’s Exh. C. Nos. 29-30.)

Defendant contends that these responses are evasive and unintelligible, and that further responses should be compelled. The Court does not agree. Although the responses are verbose, they can be summarized as admissions of the truth of the statements of Plaintiff and Pro-Com’s rights and obligations with respect to Plaintiff’s products governed by the agreement, with the qualifier that not all products at the subject property were within the scope of the agreement. These are straightforward responses, and an order compelling further responses is not required.

Conclusion

Accordingly, Defendant’s Motion to Compel Further Responses to Requests for Admissions (Set Two) is DENIED.

Motion to Compel Further Responses to Form Interrogatories (Set Two)

Defendant moves to compel further responses to form interrogatories propounded to Plaintiff.

Legal Standards

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.

Meet and Confer

A party making a motion to compel further responses must 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, 2030.310(b).)

Timeliness

A motion to compel a further response must be noticed within 45 days of the service of the verified response, or any supplemental 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), 2031.310(c); see also Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1409; Vidal Sassoon, Inc. v. Superior Court (1983) 147 Cal.App.3d 681, 685.) Otherwise, the propounding party waives any right to compel further responses. (Id.) The 45-day time limit is mandatory and jurisdictional. (Sexton v. Superior Court (1997) 58 Cal. App. 4th 1403, 1410.)

Analysis

Defendant moves to compel further responses to Form Interrogatory No. 17.1 with respect to Requests for Admissions Nos. 28-30, 56, 57, 60-63, 66, and 67 propounded to Plaintiff. Defendant propounded its second set of Requests for Admissions and Form Interrogatories on October 27, 2023. (Cartwright Decl. ¶ 2, Exh. A.) Plaintiff served responses on December 4, 2023. (Id. ¶ 4, Exh. C.)

Form Interrogatory No. 17.1 asks, for each response to the accompanying requests for admission that is not an unqualified admission, for the respondent to state (a) the number of the request, (b) all facts upon which the response is based, (c) the contact information of all persons with knowledge of those facts, and (d) identify all documents and other tangible things supporting the response and the contact information of each person who has them. (See Defendant’s Exh. A. No. 17.1)

With respect to Requests for Admissions Nos. 28-30, Defendant’s motion is based on the alleged inadequacy of Plaintiff’s responses to the Requests for Admissions. As the Court has rejected Defendant’s challenge for the reasons stated above, a further response with respect to these requests is not required.

The balance of the requests at issue asked Plaintiff to admit that certain items listed on the inventory lists described as the “3BTech Inventory” and “Pro-Com Inventory” were not listed on the FDA’s White List as personal protective equipment authorized to be sold in the United States (Nos. 56, 62), were not certified by any regulatory body (Nos. 57, 63), did not satisfy N95 requirements, (Nos. 60, 66), and could not legally be sold in the United States at the time of the fire. (Nos. 61, 67.)

Plaintiff, in response to each request for admission at issue, objected to the key terms in the request as “ambiguous” and objected to the identification of the Pro-Com Inventory list as belonging solely to Pro-Com, (Defendant’s Exh. F. Nos. 56-57, 60-63, 66-67.) Plaintiff also responded to each request to a categorical denial subject to those objections. (Id.)

Turning now to Plaintiff’s response to Form Interrogatory No. 17.1, Plaintiff responded with respect to Requests 56, 57, 60, 62, 63, and 66 with responses that are substantively identical to responses to analogous requests in Defendant’s first set of requests for admissions and form interrogatories. (Compare Defendant’s Exh. G. with Exh. K ISO Mot. filed February 16, 2024.) These responses were addressed in Defendant’s Motion to Compel Further Responses to Form Interrogatories (Set One) heard on March 15, 2024.) The Court finds here that Plaintiff has failed to respond straight-forwardly as to the denial of Request No. 56 because the answer provides no specific information about whether “the eleventh item from the bottom of page two” of the referenced inventory was “listed” on the Whitelist. Plaintiff’s response with respect to Request No. 62 suffers from the same problem. Plaintiff’s responses regarding Requests Nos. 57 and 63 are confusing. If Plaintiff’s position is that the referenced masks met the specifications for certification but were not awarded that status, it should say so. Although not particularly clear, Plaintiff’s responses to Requests Nos. 60 and 66 appear to convey that the products on the list constituted eligible alternatives to the N95 masks because they satisfied the requirements at that time. If that is Plaintiff’s position, it could be stated more clearly, but does not require another supplemental response. Accordingly, Defendant is entitled to further responses as to Requests Nos. 56, 57, 62 and 63, but not to Requests 60 or 66.

As to requests Nos. 61 and 67, Plaintiff responded:

[No. 61]

(b) Exhibit “C” to the Request For Admissions Set Two is an inventory list which comprises 3BTech’s inventory at 1250 Bixby, a subset of Exhibit “A” provided by Greenspan Public Adjusters to both Great Northern and Liberty Mutual insurance adjusters on 12/10/2020, after the 12/4/2020 fire under the file name “Bixby Inventory as of 20201205.pdf,” that listed all stock at the facility at the time of the 12/4/2020 fire, including both 3BTech and Pro-Com inventories. This request is ambiguous as to the reference to “could not be legally sold in the United States of America.” Throughout the COVID-19 pandemic, government agencies issued emergency authorizations for use and other waivers and eligibility criteria modifying the qualified manufacturers and product equivalencies, among other requirements. The referenced masks owned by 3BTech on the subject inventory are believed to have been “KN95” compliant masks and, as of the date of the fire, are believed to have complied with all KN95 requirements.

(c) Johnny Zhu – current President of 3BTech, to be contacted through counsel; Brett Barbour – former President of 3BTech, to be contacted through counsel;

(d) Those documents relevant to the testing and certification that survived the fire and 3BTECH presently possesses were disclosed and produced as 3BTECH 1728-1795; also GREENSPAN316-0328.

Discovery Continues

[No. 67]:

(c) Johnny Zhu – current President of 3BTech, to be contacted through counsel; Brett Barbour – former President of 3BTech, to be contacted through counsel;

(d) Those documents relevant to the testing and certification that survived the fire and 3BTECH presently possesses were disclosed and produced as 3BTECH 1728-1795; also GREENSPAN316-0328.

Discovery Continues

(Defendant’s Exh. G. Nos. 61, 67.) Plaintiff contends that these responses are sufficient because the items at issue were subject to emergency authorizations by governmental agencies, and therefore could be sold in the United States, notwithstanding the ordinary certification process. (Opposition p. 7:1-5.) This statement would be sufficient if it were included in the response provided to Defendant. It was not. The responses actually served merely state that there were emergency use authorizations, without explaining the applicability of those authorizations to the items at issue. The responses served are inadequate and must be supplemented.

Conclusion:

Accordingly, Defendant’s Motion to Compel Further Responses to Form Interrogatories is GRANTED IN PART with respect to Form Interrogatory No. 17.1 and Requests for Admissions Nos. Requests Nos. 56, 57, 61, 62, 63, and 67 only.

CONCLUSION:

Accordingly, Defendant’s Motion to Compel Further Responses to Requests for Admissions (Set Two) is DENIED.

Plaintiff is ordered to provide verified, code-compliant supplemental responses within 20 days of this order.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: April 3, 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.