Judge: Virginia Keeny, Case: 20VECV01321, Date: 2022-10-19 Tentative Ruling
Case Number: 20VECV01321 Hearing Date: October 19, 2022 Dept: W
SHOWROOM INTERIORS, LLC V. 4519
HASKEL, LLC, et al.
motion to compel defendants to provide further responses
Date of Hearing: October 19, 2022 Trial Date: December
27, 2022
Department: W Case
No.: 20VECV01321
Moving Party: Plaintiff
Showroom Interiors, LLC
Responding Party: Defendants 4519 Haskel, LLC and Moses
Shemtov
BACKGROUND
On November 13, 2020, Plaintiff filed a
Complaint against 4519 Haskel, LLC and Moses Shemtov for (1) breach of written
contract; (2) breach of written guaranty; and (3) conversion. Plaintiff alleges
the parties entered into an Agreement in which Plaintiff leased certain
personal property (Inventory) to Defendant 4519 Haskel, LLC to be used to stage
the property for sale. After termination of the staging term, Defendants
requested to keep the Inventory at the Property. Plaintiff demanded access to
remove the Inventory when it learned that Defendants had leased the Property to
third parties and were collecting extra rent for the Inventory, in violation of
the Agreement.
On February 9, 2021, Plaintiff served
its discovery requests including Form Interrogatories, Special Interrogatories,
Demand for Production of Documents (RFPs), and Requests for Admissions (RFAs),
Sets One on Defendants. (Pugh Decl. ¶ 7.) Plaintiff granted approximately five
months of extensions for response. (Pugh Decl. ¶ 8.) Defendants served
objections and responses on June 28 and July 2, 2021. (Pugh Decl. ¶ 8.)
Plaintiff attempted to meet and confer to discuss the defective responses and
objections. (Pugh Decl. ¶¶ 11-17.) The parties repeated a pattern of Defendants
submitting further responses to Plaintiff’s discovery requests and Plaintiff
meeting and conferring to discuss the defective nature of the responses. (Id.)
Plaintiff’s counsel inquired whether Defendants’ counsel would participate in
an Informal Discovery Conference (IDC), and Defendants’ counsel did not
respond. (Pugh Decl. ¶ 20.)
On August 15, 2022, Plaintiff filed
this instant Motion to Compel Further Discovery Responses.
[Tentative] Ruling
The Court OVERRULES Plaintiff’s objections.
The Court ORDERS Defendants to (1)
provide verified responses as to all of Plaintiff’s discovery requests under
CCP section 2033.240; (2) provide a further response to RFA 13; (3) provide
responses to Form Interrogatory 17.1 as to RFA Numbers 4, 9, 17, 20, 23, 33-36
and 39-42; (4) provide a further response to RFPs 4-10, 12-18, 20, 22, 26-28,
and 42 in Sets One; (5) provide a further response to RFPs 1-14 in Sets Two;
(6) provide a privilege log for
documents they believe to be privileged; and (7) produce all responsive
documents.
The Court awards monetary
sanctions in the amount of $5746.60 against defendants and their counsel.
LEGAL
STANDARD
Under Code of Civil Procedure sections 2030.300, subdivision
(a), and Section 2033.290, parties may move for a further response to
interrogatories or requests for admission where an answer to the requests are
evasive or incomplete or where an objection is without merit or too
general.
Notice of the motions must be given within 45 days of
service of the verified response, otherwise, the propounding party waives any
right to compel a further response. (Code Civ. Proc., § 2030.300, subd. (c);
Code Civ. Proc., § 2033.290, subd. (c).) The motions must also be accompanied
by a meet and confer declaration. (Code Civ. Proc., § 2030.300, subd. (b); Code
Civ. Proc., § 2033.290, subd. (b).)
Finally, Cal. Rules of Court, Rule 3.1345 requires that all
motions or responses involving further discovery contain a separate statement
with the text of each request, the response, and a statement of factual and
legal reasons for compelling further responses. (Cal. Rules of Court, Rule
3.1345, subd. (a)(3)).
ANALYSIS
Evidentiary
Objections
Plaintiff objects to a portion of Marc Smith’s Declaration
in support of Opposition to Plaintiff’s Motion to Compel Discovery.
(Evidentiary Objs. pp. 2-3.)
The Court OVERRULES Plaintiff’s objections.
Timeliness of
Motion
The Court finds that Plaintiff’s
motions to compel further discovery are timely because extensions were granted
for Defendants to provide responses and for Plaintiffs to file motions to
compel to August 15, 2022. (Pugh Decl. ¶ 17.)
Procedural
Violations: Unverified
Responses
“The party to whom the requests
for admission are directed shall sign the response under oath, unless the
response contains only objections.” (Code of Civ. Proc. § 2033.240(a).)
Defendants failed to comply with
the procedural requirements for discovery by serving unverified Further
Responses to the RFAs (Pugh Decl., Exhs. 16-17.) and serving unverified
responses to the Form Interrogatories. (Pugh Decl., Exhs. 8-9.)
The Court ORDERS Defendants to
provide verified responses as to all of Plaintiff’s discovery requests under
CCP section 2033.240.
Requests For
Admission, Set One (ID x3106)
Plaintiff moves the Court to
compel Defendants to provide further responses to request number 13 of the
First Sets of Requests for Admission and provide verification for Defendants’
Further Responses.
RFA 13 requests that Defendants
“[a]dmit that in 2020, Defendant 4519 Haskel, LLC collected rent from a third
party to whom it had leased the PROPERTY,” where “PROPERTY” is defined in
Request Number 4 as “the real property located at 4519 Haskell Avenue, Encino,
California 91436.”
Defendants responded: “Objection.
Vague, ambiguous uncertain, overly broad, unduly burdensome, oppressive, and
irrelevant. Not reasonably calculated to lead to the discovery of admissible
evidence. This request seeks information protected by the attorney-client
privilege, attorney work product doctrine and right to privacy. Calls for a
legal conclusion. Calls for a premature disclosure of expert testimony. By
responding to this request, responding party does not acknowledge or admit any
fact assumed or implied by the language of the request. Vague and ambiguous as
to time.”
Defendants also provided a further
response and supplemental response which largely repeat their original
response.
Plaintiff contends whether
Defendants collected rent from a third party to whom they had leased the
property is not protected by the attorney-client privilege or attorney work
product. (Separate Statement Requests for Admissions “SS RFA” p. 5.)
Additionally, Plaintiffs claim that Defendants do not lack knowledge of whether
they collected rent or not and that Defendants failed to comply with the
Discovery Act which requires the responding party to respond in good faith and
investigate sources reasonably available to them in responding to RFAs. (SS RFA
p. 6.) Plaintiff argues RFA 13 is clear, concise, and limited in time and
Defendants’ “vague, ambiguous, uncertain, unduly burdensome, oppressive”
objections lack merit. (SS RFA p. 6.) Finally, Plaintiffs argue RFA 13 is
relevant to whether Defendants breached the Agreement between parties and
relates to the amount of rent Defendants were obligated to pay. (SS RFA pp.
6-7.)
The Court agrees with Plaintiff’s
arguments and finds that the RFA is not vague, ambiguous, uncertain, overly
broad, unduly burdensome, oppressive, and irrelevant. The Court finds that
Plaintiff’s RFA is reasonably calculated to lead to the discovery of admissible
evidence as it is relevant. The Court does not believe the RFA calls for a
legal conclusion.
The Court notes that Defendants
did not file an opposition to Plaintiff’s motion and only filed the Declaration
of Marc Smith in support of its Opposition. (Reply p. 2.)
Defendants shall provide a further
response to RFA 13.
Form
Interrogatories, Sets One (ID x0005)
Plaintiff moves the Court to
compel Defendants to provide responses to Form Interrogatory 17.1 of the First
Sets of Form Interrogatories and provide verification for Defendants’ responses
to Form Interrogatories served on June 18, 2022.
Form Interrogatory 17.1 provides, “Is
your response to each request for admission served with these interrogatories
an unqualified admission? If not, for each response that is not an unqualified
admission:
PERSONS who have knowledge of
those facts; and
(d) identify all DOCUMENTS and
other tangible things that support your response and state the name, ADDRESS,
and telephone number of the PERSON who has each DOCUMENT or thing.”
Defendants failed to respond.
Plaintiff contends there is no
justification for Defendants’ refusal and failure to respond as Form
Interrogatory 17.1 relates to the RFAs denied by Defendants and the leasing of
the property by Defendants is at the core of this case. (Mot. FROGS pp. 7-9.)
Plaintiffs claim they demonstrated a reasonable and good faith attempt to
resolve the matter informally prior to filing the motion although this is not
required under CCP section 2030.290 by engaging in a meet and confer and
requesting that Defendants engage in an IDC. (Mot. FROGS p. 8.)
The Court agrees with Plaintiff’s
arguments and finds that Form Interrogatory 17.1 is not unreasonable and that
it is relevant to the case at hand.
Defendants shall provide responses
to Form Interrogatory 17.1 as to RFA Numbers 4, 9, 17, 20, 23, 33-36 and 39-42.
Production of
Documents, Sets One (ID x3553)
Plaintiff moves the Court to
compel Defendants to provide further responses to the First Sets of Demand for
Production of Documents, Request Numbers 4-18, 20, 22, 26-28, and 42. Plaintiff
also requests an Order Compelling Defendants to Produce Documents and provide a
privilege log.
RFPs 4-18, 20, 22, 26-28, and 42 seek
documents of or relating to lease agreements entered into between Defendants
and any person in connection with the property from December 2018 to the
present, documents evidencing that an alter ego relationship does not exist
between Defendants, and documents that support Defendants’ contentions disagreeing
with Plaintiff’s specific allegations in its Complaint.
In response, Defendants responded
with objections and stated in relevant part, “Defendants will conduct a
reasonable and diligent search of their records and produce any such non
privileged documents in its custody possession or control.” (Mot. RFP, Set 1 p.
9.)
Plaintiff contends Defendants’
objections are without merit since its requests are specific, clear, narrow in
scope, do not call for legal conclusions, and do not seek confidential or
privileged information. Plaintiff also argues the documents are relevant to its
alter ego allegations where it claimed, “Defendant 4519 Haskel is a one-man
show solely owned, controlled and operated by Defendant Moses Semtov.” (Mot.
RFP, Set 1 p. 9.) Plaintiff claims the other RFPs are relevant to whether
Defendants leased the property with Plaintiff’s Inventory and collected rent
for the same. Plaintiff contends Defendant’s response that they will conduct “a
reasonable and diligent search” and produce documents are defective because it
is unclear whether they are claiming inability to produce some or all of the
responsive documents. (Mot. RFP, Set 1 p. 10.) Plaintiffs claim this is not a
compliant response under CCP section 2031.010 which requires a diligent search
and reasonable inquiry into locating the item prior to determining the party is
unable to comply with the request and providing the reason for the party’s noncompliance.
(Id.)
The Court agrees with Plaintiff’s
arguments and finds that RFPs 4-8, 26 are relevant to whether Defendants leased
the Property with Plaintiff’s Inventory and the requests are specific, narrow
in scope, and do not seek confidential or privileged information. (SS RFP, Set
1 pp. 6-29, 92-97.) RFP 9 is a sufficient request since the Court found that
Plaintiff’s RFA requests are sufficient. (SS RFP, Set 1 pp. 29-34.) RFP 10 is a
sufficient request since the Court found that Plaintiff’s form interrogatories
requests are sufficient. (SS RFP, Set 1 pp. 34-39.) The Court cannot make a
finding on RFP 11 at this time since Plaintiff has not provided a sample of its
Special Interrogatories. (SS RFP, Set 1 pp. 39-44.) RFPs 12-18 are relevant to
the alter ego allegations and the requests are not vague, ambiguous, uncertain,
overly broad, unduly burdensome, or oppressive. (SS RFP, Set 1 pp. 44-81.) RFPs
20, 22, 27-28, 42 relate to Plaintiff’s claims and whether Defendants breached
the Agreement, and the Court finds that they are proper and Defendants’
objections are without merit. (SS RFP, Set 1 pp. 81-92, 97-114.)
Plaintiff requests that the Court
order Defendants to provide a privilege log in response to their statement that
they will produce “any such non privileged documents.” (Mot. RFP, Set 1 p. 11.)
The Court agrees.
Plaintiff argues that Defendants
should be ordered to produce responsive documents since it has not produced a
single responsive document despite their response that they would “conduct a
reasonable and diligent search of their records and produce any such non
privileged documents in its custody possession or control.” (Mot. RFP, Set 1 p.
12.) The Court agrees since Plaintiff’s requests were reasonable.
The Court notes that Defendants
did not file an Opposition to Plaintiff’s Motion to Compel Further Responses to
Demand for Production of Documents, Sets One.
Defendants shall provide a further
response to RFPs 4-10, 12-18, 20, 22, 26-28, and 42 in Sets One. The Court
orders Defendants to provide a privilege log for documents they believe to be
privileged, and the Court orders Defendants to produce responsive documents.
Production of
Documents, Sets Two (ID x3329)
Plaintiff moves the Court to
compel Defendants to provide further responses to the
Second Sets of Demand for
Production of Documents, Request Numbers 1-14, an order compelling Defendants
to produce documents, and to provide verification.
RFPs 1-14 seek documents of the
following categories: utility bills for the property from January 1, 2019 to
August 31, 2021 (“time period”); source of funds used to pay property’s
expenses during the time period; bank statements, deposits and withdrawals from
all accounts in the name of 4519 Haskel, LLC during the time period; and bank
statements, deposits and withdrawals from all accounts used to pay the
property’s expenses during the time period.
In response, Defendants responded to
every request with the following:
“Defendant objects to this request
on the grounds and to the extent that it: (i) seeks disclosure of information
protected by virtue of the attorney-client privilege; (ii) seeks disclosure of
information protected by virtue of the attorney work-product doctrine; (iii) is
vague, ambiguous and unintelligible as phrased, and therefore, not susceptible
to a reasonable response or production; (iv) seeks information that is equally
available to or already in the possession, custody, or control of Defendant or
its counsel; (v) is overly broad, unduly burdensome, and oppressive; (vi)
improperly seeks disclosure of confidential or proprietary information; (vii)
improperly seeks to invade the rights of Defendant and third parties to privacy
as protected by state and federal law; (viii) is irrelevant to the subject
matter of this litigation, and the information sought is not reasonably
calculated to lead to the discovery of admissible evidence; (ix) seeks
documents and information beyond the permissible scope of discovery; and (x)
has already been propounded to and answered by Defendant.
Subject to and without waiving the
foregoing objections and the Specific Objections Applicable To All Requests,
Responding Party states as follows:
After a diligent search and
reasonable inquiry, Defendant will produce any non- privileged, non-attorney
work product documents that are responsive to this Request, if any exist, that
are in his custody, control, or possession.” (Pugh Decl., Exh. 29.)
Plaintiff contends the objections
lack merit because the documents are not confidential attorney-client
communication, protected under the attorney work product doctrine, the requests
are clear and concise, the documents are easily producible, the documents are not
available to Plaintiff, the requests are limited in time, and are relevant to
the action. (Mot. RFP Set 2 p. 8.) Plaintiff claims the responses are defective
because it is unclear whether Defendants are claiming inability to produce some
or all of the responsive documents and they have failed to provide code
compliant responses which require a diligent search and reasonable inquiry made
to locate the item before providing the reason for the party’s inability to
comply. (CCP §§ 2031.010, 2031.230.)
The Court agrees with Plaintiff’s
arguments and finds that the RFPs are relevant to whether the property expenses
increased because tenants were occupying the property, which supports that
Plaintiff’s Inventory was being used for purposes other than staging and also
whether Defendants received extra income and rent for Plaintiff’s Inventory.
(Mot. RFP Set 2 pp. 7-8.)
Plaintiff requests that the Court
order Defendants to provide a privilege log in response to their statement that
they will produce “any such non privileged documents.” (Mot. RFP Set 2 pp.
8-9.) The Court agrees.
Plaintiff argues that Defendants
should be ordered to produce responsive documents since it has not produced a
single responsive document despite their response that they would “conduct a
reasonable and diligent search of their records and produce any such non
privileged documents in its custody possession or control.” (Mot. RFP Set 2 p.
10.) The Court agrees since Plaintiff’s requests were reasonable.
The Court notes that Defendants
did not file an Opposition to Plaintiff’s Motion to Compel Further Responses to
Demand for Production of Documents, Sets Two.
Defendants shall provide a further
response to RFPs 1-14 in Sets Two. The Court orders Defendants to provide a
privilege log for documents they believe to be privileged, and the Court orders
Defendants to produce responsive documents.
Monetary
Sanctions
Plaintiff requests sanctions
against Defendants in the amount of $8,246.60 for failure to provide the
required verifications, refusal to meet and confer prior to filing these
motions, failure to agree to engage in an IDC prior to filing these motions,
Plaintiff’s counsel, Fay Pugh,
requests $8,246.60 for $61.65 in costs as to each motion totaling $8,000 and
attorney’s fees in the amount of $246.60 divided as to each motion: ((Motion to
Compel RFPs, Set 1 - $2,000; Motion to Compel RFPs, Set 2 - $2,000; Motion to Compel FI, Sets 1 - $2,000; Motion to Compel
RFAs, Sets 1 - $2,000). (Pugh Decl. ¶ 31.)
Counsel has provided a
declaration, stating that her office has spent ten hours preparing the four
motions to compel, and anticipates spending an additional six hours preparing a
reply and appearing at the hearing.
Counsel’s hourly rate is $500 per hour, which is reasonable for an
attorney who has practiced law for twenty years. Because there was no opposition, the court
finds ten hours reasonable for the preparation of the motions, with an
additional hour to appear at the hearing, where the court anticipates there will
be oral argument. Thus, the court
imposes a sanction of $5500, plus $246.60 (the filing fees for four motions),
against defendant and its counsel, jointly and severally, for its unreasonable
position with respect to these discovery requests.
CONCLUSION
The Court OVERRULES Plaintiff’s objections.
The Court ORDERS Defendants to (1)
provide verified responses as to all of Plaintiff’s discovery requests under
CCP section 2033.240; (2) provide a further response to RFA 13; (3) provide
responses to Form Interrogatory 17.1 as to RFA Numbers 4, 9, 17, 20, 23, 33-36
and 39-42; (4) provide a further response to RFPs 4-10, 12-18, 20, 22, 26-28,
and 42 in Sets One; (5) provide a further response to RFPs 1-14 in Sets Two;
(6) provide a privilege log for
documents they believe to be privileged; (7) produce responsive documents.
The Court awards monetary
sanctions in the amount of $5746.60, jointly and severally against defendants
and counsel, payable within 30 days.