Judge Virginia Keeny, Case 22VECV00297 2023-05-17 Tentative Ruling

Judge: Virginia Keeny, Case: 22VECV00297, Date: 2023-05-17 Tentative Ruling

Case Number: 22VECV00297 Hearing Date: May 17, 2023 Dept: W

FEISTY GAL, INC., et al. v. MICHAEL KAISER, et al.

defendants michael kaiser and people’s care holdings, inc.’s MOTIONs to compel further responses to form interrogatories (Set one) and special interrogatories (Set one) to plaintiffs feisty gal, inc. and michelle lander

Date of Hearing: May 17, 2023 Trial Date: April 8, 2024

Department: W Case No.: 22VECV00297

Moving Party: Defendants Michael Kaiser and People’s Care Holdings, Inc.

Responding Party: No opposition

BACKGROUND

Plaintiffs Feisty Gal, Inc. and Michelle Lander allege Defendants Michael Kaiser and People’s Care Holdings, Inc. sold Plaintiffs an unregistered franchise. Plaintiffs allege Defendants made several pre-sale omissions and post-sale omissions, constituting false and deceptive representations regarding the franchise status of A Right Place for Seniors International, LLC.

On March 2, 2022, Plaintiffs filed a complaint against Defendants asserting causes of action for (1) Violation of the California Franchise Investment Law - Sale of an Unregistered Franchise; (2) Violation of the California Franchise Investment Law - Failure to Disclose Materially Different Terms of Franchise Agreement; (3) Fraudulent Concealment; (4) Fraud; (5) Negligent Misrepresentation; (6) Breach of Contract; and (7) Unjust Enrichment.

Default was entered against Defendants on June 17, 2022. The default was vacated on December 15, 2022.

On December 22, 2022, Defendants filed a Cross-Complaint against Gemma Dela Cruz, A Right Place for Seniors, Inc., and A Right Place For Seniors International LLC for contractual indemnity, equitable indemnity, implied indemnity, and contribution. Gemma Dela Cruz and A Right Place for Seniors, Inc. were dismissed on March 3, 2023.

[Tentative] Ruling

Defendants’ Motion to Compel Further Responses to Form Interrogatories (Set One) From Plaintiff Michelle Lander is GRANTED

Defendants’ Motion to Compel Further Responses to Form Interrogatories (Set One) From Plaintiff Feisty Gal, Inc. is GRANTED

Defendants’ Motion to Compel Further Responses to Special Interrogatories (Set One) From Plaintiff Michelle Lander is GRANTED

Defendants’ Motion to Compel Further Responses to Special Interrogatories (Set One) From Plaintiff Feisty Gal, Inc. is GRANTED

discussion

Form Interrogatories

Defendants Michael Kaiser and People’s Care Holdings, Inc. move for an order compelling Plaintiff Michelle Lander to 1) withdraw all waived objections asserted in Interrogatory Nos. 1.1; 2.1, 2.2, 2.3, 2.4, 2.5, 2.7, 2.9, 2.10, 2.11, 2.12, 2.13, 4.1, 4.2, 7.1, 7.2, 8.1, 8.2, 8.3, 8.4, 8.5, 8.6, 8.7, 8.8, 9.1, 9.2, 12.1, 12.2, 12.3, 12.4, 12.5, 12.5, 12.6, 12.7, 13.1, 14.1, 14.2; 16.1, 16.2; and 2) serve verified further responses to Form Interrogatory Nos. 2.1, 2.2, 2.4, 2.7, 2.12, 2.13, 7.1, 7.2, 7.3, 8.1, 8.2, 8.3, 8.4, 8.6, 8.7, 8.8, 9.1, 9.2, 12.1, 12.2, 12.3, 12.4, 12.5, 12.6, 50.1, 50.2, 50.3. Defendants also move for an order compelling Plaintiff Feisty Gal, Inc. to 1) withdraw all waived objections asserted in Interrogatory Nos. 1.1; 4.1, 4.2, 7.1, 7.2, 7.3 8.1, 8.2, 8.3, 8.4, 8.7, 8.8, 9.1, 9.2, 12.1, 12.2, 12.3, 12.4, 12.5, 12.5, 12.6, 12.7, 13.1, 13.2, 14.1, 14.2; and 2) serve verified further responses to Form Interrogatory Nos. 7.1-7.3; 8.1-8.4; 8.7; 8.8; 9.1; 9.2; 12.1-12.6 and 50.1-50.3. Defendants move to compel further responses on the grounds Plaintiff has waived her objections and the responses are evasive.

“On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (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. (3) An objection to an interrogatory is without merit or too general.”¿ (CCP § 2030.300(a).) “A motion under subdivision (a) [of CCP § 2030.300] shall be accompanied by a meet and confer declaration under Section 2016.040.”¿(CCP § 2030.300(b).) In addition, a separate statement is required.¿(CRC Rule 3.1345(a)(2).)

Defendants first argue Plaintiffs must withdraw all objections from the interrogatories listed above on the grounds Plaintiffs waived objections when she failed to timely respond to the interrogatories and the objections are improper. The court agrees. On December 20, 2022, Defendants served Form Interrogatories (Set One) on Plaintiffs Michelle Lander and FGI. (Tovar Decl. ¶6.) Plaintiff’s responses were due no later than January 23, 2023. After seeking an extension past the deadline, Plaintiff Lander finally served her responses on February 20, 2023. (Tovar Decl. ¶¶9-12.) As a result, Plaintiffs waived their right to object by failing to timely respond.

Defendants also argue Plaintiffs must serve supplemental verified responses to the interrogatories listed above on the grounds the responses are evasive and incomplete. Defendants contend these interrogatories seek information about Plaintiff Lander’s identifying information, damages, the identification of potential witnesses and information concerning Plaintiff’s breach of contract cause of action. The court finds Plaintiffs fail to respond to basic identifying information and mental state, damages, identification of potential witnesses and information concerning Plaintiffs’ breach of contract cause of action. For example, Plaintiffs provide a general response to interrogatories nos. 9.0-9.2, without identifying what responses are to what interrogatory. Plaintiffs also similarly lump their responses to interrogatories nos. 8.1-8.8.

Because Plaintiff has waived objections and not fully answered each interrogatory, the court grants Defendants’ motion to compel further responses to Defendants’ Form Interrogatories.

Defendants also request monetary sanctions in the amount of $5,260.00 (per motion) against Plaintiffs and it’s counsel, The Law Offices of Peter N. Greenfeld, P.C. for their refusal to meet and confer and force this motion to compel. Defendants seek a total of $10,400.00 for approximately 20 hours reviewing the interrogatory discovery responses and meeting and conferring with Plaintiff as well as an additional six hours of attorney fees for reviewing the oppositions, preparation of the reply briefs and appearing at the hearing in these matter. Defendants also seek $120.00 for filing fees. Defense counsel’s hourly rate is $400.00. (Tovar Decl. ¶26.)

The court grants Defendants’ request for monetary sanctions in the reduced amount of $3600 collectively for both motions, plus $120 in filing fees. Counsel seeks sanctions not only for their professional obligation to review discovery responses but also their statutory obligation to meet and confer. Moreover, the motions were seemingly identical. The court notes no opposition was filed to any of the motions. Sanctions of $3720 are payable within 30 days.

Special Interrogatories

Defendants Michael Kaiser and People’s Care Holdings, Inc. move for an order compelling Plaintiff Michelle Lander to 1) withdraw all waived objections asserted in Interrogatory Nos. 1, 6-9, 11, 14, 20-22, 25, 26, 28, 31, 37-40, 42, 43, 48, and 2) serve verified further responses to Special Interrogatory Nos. 1-4, 7, 8, 11-17, 21-25, 28-30, 32-34, 38, 39, 42, 48. Defendants also move for an order compelling Plaintiff Feisty Gal, Inc. to 1) withdraw all waived objections asserted in Interrogatory Nos. 2, 3, 7, 14, 19-26, 45, 47, 56, 58, 62, 67, 68, 72, and 2) serve verified further responses to Special Interrogatory Nos. 2, 3, 7, 11, 12, 13, 14, 19, 20-26, 29, 31-34, 45, 46, 47, 49, 52-58, 60, 62-64, 67, 68, 72, 73, 75, 79-84.

“On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (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. (3) An objection to an interrogatory is without merit or too general.”¿ (CCP § 2030.300(a).)¿ “A motion under subdivision (a) [of CCP § 2030.300] shall be accompanied by a meet and confer declaration under Section 2016.040.”¿ (CCP § 2030.300(b).)¿ In addition, a separate statement is required.¿ (CRC Rule 3.1345(a)(2).)

Defendants first argue Plaintiffs Michelle Lander and FGI must withdraw all objections from the interrogatories listed above on the grounds Plaintiffs waived objections when she failed to timely respond to the interrogatories and the objections are improper. The court agrees. On January 12, 2023, Defendants served Special Interrogatories (Set One) on Plaintiffs Michelle Lander and FGI. (Tovar Decl. ¶6.) Plaintiff’s responses were due no later than February 15, 2023. Two days before the responses were due, Plaintiffs’ counsel requested an further extension to February 20, 2023 and promised to produce documents. (Tovar Decl. ¶8.) Defendants’ counsel agreed to Plaintiffs’ request. (Tovar Decl. ¶8.) However, Plaintiffs did not serve responses by February 20th. (Tovar Decl. ¶9.) Plaintiff Lander did not serve responses until February 24, 2023 and Plaintiff FGI did not serve responses until February 26, 2023. (Tovar Decl. ¶¶12-15.) As a result, Plaintiffs waived their right to object by failing to timely respond.

Defendants also argue Plaintiffs must serve supplemental verified responses to the interrogatories listed above on the grounds the responses are evasive and incomplete. Defendants contend these interrogatories seek information pertaining to the allegations and contentions in Plaintiffs’ Complaint. The court disagrees. Although Defendants may be unhappy with responses, that does not make the responses insufficient. For example, Plaintiffs relying on financial records showing gaps to support their claim ARPFS and PCH commingled funds does not make the responses insufficient. (See SROG No. 64.)

Because Plaintiff has waived objections, the court grants Defendants’ motion to compel further responses to Defendants’ Special Interrogatories as to Nos. 1, 6-9, 11, 14, 20-22, 25, 26, 28, 31, 37-40, 42, 43, 48, and Nos. 2, 3, 7, 14, 19-26, 45, 47, 56, 58, 62, 67, 68, 72.

Defendants also request monetary sanctions in the amount of $5,860.00 (per motion) against Plaintiff Michelle Lander and her counsel, The Law Offices of Peter N. Greenfeld, P.C. for their refusal to meet and confer and force this motion to compel. Defendants seek a total of $11,600.00 for approximately 23 hours reviewing the interrogatory discovery responses and meeting and conferring with Plaintiff as well as an additional six hours of attorney fees for reviewing the oppositions, preparation of the reply briefs and appearing at the hearing in these matter. Defendants also seek $120.00 for filing fees. Defense counsel’s hourly rate is $400.00. (Tovar Decl. ¶28.)

The court grants Defendants’ request for monetary sanctions in the reduced amount of $3600, collectively for the two motions, plus $120 in filing fees. As noted above, Counsel seeks sanctions not only for their professional obligation to review discovery responses but also their statutory obligation to meet and confer. Moreover, the motions were seemingly identical. The court notes no opposition was filed to any of the motions. Sanctions of $3720 are payable within 30 days.