Judge Walter P. Schwarm, Case 30-2021-01191524 2022-09-06 Tentative Ruling

Judge: Walter P. Schwarm, Case: 30-2021-01191524, Date: 2022-09-06 Tentative Ruling

Motion No. 1:

Based on Plaintiff’s (Aramark Management, LLC) Notice of Withdrawal of Motions to Compel Further Responses (filed on 8-29-22 under ROA No. 513), Plaintiff’s Motion to Compel Further Responses to Its First Set of Form Interrogatories to Defendant Ensign Services, Inc. (filed on 6-20-22 under ROA No. 343, and scheduled for hearing on 9-6-22) is OFF CALENDAR.

Motion No. 2:

Based on Plaintiff’s (Aramark Management, LLC) Notice of Withdrawal of Motions to Compel Further Responses (filed on 8-29-22 under ROA No. 513), Plaintiff’s Motion to Compel Further Responses to Its First Set of Form Interrogatories to Defendant The Ensign Group (filed on 6-20-22 under ROA No. 339, and scheduled for hearing on 9-6-22) is OFF CALENDAR.

Motion No. 3:

Defendant’s (The Ensign Group, Inc.) Motion to Compel Plaintiff Aramark Management, LLC’s Further Response to Special Interrogatories (Set Two) (Motion), filed on 4-11-22 under ROA No. 181, is OFF-CALENDAR.

The Joint Status Report Regarding Status of Pending Motions to Compel (JSR), filed on 8-30-22 under ROA No. 515, states, “Aramark served amended responses to all four of the sets of discovery at issue in the motions. As such, The Ensign Group withdrew its motions without prejudice, and intends to file new motions addressing the responses as amended.” (JSR, 2:7-9.) The court has not received a Notice of Withdrawal from The Ensign Group. However, based on the JSR, the court takes this Motion OFF CALENDAR.

Court Clerk is to give notice.

Motion No. 4:

Plaintiff’s (Aramark Management, LLC) Motion to Compel Further Responses to Its First Set of Special Interrogatories to Defendant The Ensign Group, Inc. (Motion), filed on 6-20-22 under ROA No. 261, is GRANTED. The Notice for this Motion was filed on 6-20-22 under ROA No. 335.

The court DENIES Plaintiff’s Request for Judicial Notice (filed on 6-20-22 under ROA No. 265) and Defendant’s The Ensign Group, Inc.) Request for Judicial Notice (filed on 8-23-22 under ROA No. 444), as immaterial to the court’s decision. (Silverado Modjeska Recreation & Parks District v. County of Orange (2011) 197 Cal.App.4th 282, 307, fn. 18.)

The Joint Status Report Regarding Status of Pending Motions to Compel (JSR), filed on 8-30-22 under ROA No. 515, indicates that only Special Interrogatory (SI) No. “. . . 14 remains at issue. The parties agree that the motion is moot as to Special Interrogatory Numbers 1, 2, 4, 5, and 11.” (JSR; 2:16-17.) Therefore, the court will address only address SI Nos. 2 and 14.

Code of Civil Procedure section 2030.300 provides in pertinent part: “(a) 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. (b)(1) A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040 . . . (c) Unless notice of this motion is given 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, the propounding party waives any right to compel a further response to the interrogatories.”

Fairmont Insurance Company v. Superior Court (2000) 22 Cal.4th 245, 255, explains, “Or a party may object to a particular discovery request, placing the burden on the party seeking discovery to enforce discovery through a motion to compel.” Williams v. Superior Court (2017) 3 Cal.5th 531, 541, states, “While the party propounding interrogatories may have the burden of filing a motion to compel if it finds the answer it receives unsatisfactory, the burden to justify any objection and failure to respond remains at all times with the party resisting an interrogatory. [Citation.]” (See also, Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221.)

SI No. 2:

SI No. 2 states, “For each individual who was involved in the formation and/or planning of BANNER HOLDINGS and/or BEACON (as stated in YOUR answer to Special Interrogatory No. 1), describe with particularity the circumstances of each event or action taken by that individual by providing, without limitation, the date of the event or action taken, the names of all individuals who participated in or contributed to the event or action taken, the outcome of the event or action taken, and the substance of any communications made in connection with the event or action taken.” (Plaintiff’s Separate Statement (PSS) filed on 6-20-22 under ROA No. 271; 2:19-25.) Defendant (The Ensign Group, Inc.) objected to SI No. 2 as vague, ambiguous, unintelligible, and undue burden.

The court OVERRULES the objections. SI No. 2 is not so vague, ambiguous, or unintelligible as to prevent Defendant from understanding what it requests. SI No. 2 is essentially asking how the individuals identified in SI No. 1 were involved in the formation or planning of Banner Holdings and/or Beacon. As to undue burden, Defendant’s response does not comply with Code of Civil Procedure section 2030.220, subdivision (c). Therefore, the court GRANTS the Motion as to SI No. 2.

SI No. 14:

SI No. 14, states, “Identify all DOCUMENTS you may introduce in evidence and/or use for any other purpose at the trial of this matter.” (PSS; 6:9-11.)

Defendant objected as vague, ambiguous, and overbroad as to the term “YOU,” and also based on work product. Defendant’s Opposition to Plaintiff Aramark Management, LLC’s Motion to Compel Further Responses to Special Interrogatories (Set One) (Opposition), filed on 8-23-22 under ROA No. 450, contends, “The obvious purpose of this interrogatory is to get TEG to disclose its attorneys’ views as to which documents produced in discovery are most likely to help their defense.” (Opposition; 4:12-13.) Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 293 (Hernandez), states, “In short, a responding party may object to an interrogatory that seeks privileged information by clearly stating the objection and the particular privilege invoked. But the existence of a document containing privileged information is not privileged. [Citation.] Interrogatories may be used to discover the existence of documents in the other party's possession. [Citation.] If an interrogatory asks the responding party to identify a document, an adequate response must include a description of the document. [Citation.] Thus, we agree with petitioners that a ‘privilege log’ is unnecessary with regard to answering interrogatories seeking the identification of documents. [Citation.]” (Italics in Hernandez.)

Under Hernandez, the identification of documents is not privileged. Therefore, the court GRANTS the Motion as to SI No. 14.

Based on the above, the court GRANTS Plaintiff’s (Aramark Management, LLC) Motion to Compel Further Responses to Its First Set of Special Interrogatories to Defendant Ensign Services, Inc., filed on 6-20-22 under ROA No. 269, as to SI Nos. 2 and 14. The court ORDERS Defendant to provide a verified, Code of Civil Procedure response to SI Nos. 2 and 14 no later than 30-days from the date of service of the notice of the court’s ruling.

Plaintiff is to give notice.

Motion No. 5:

Plaintiff’s (Aramark Management, LLC) Motion to Compel Further Responses to Its First Set of Special Interrogatories to Defendant Ensign Services, Inc. (Motion), filed on 6-20-22 under ROA No. 269, is GRANTED. The Notice for this Motion was filed on 6-20-22 under ROA No. 323.

The court DENIES Plaintiff’s Request for Judicial Notice, (filed on 6-20-22 under ROA No. 273) and Defendant’s Ensign Services, Inc.) Request for Judicial Notice (filed on 8-23-22 under ROA No. 440), as immaterial to the court’s decision. (Silverado Modjeska Recreation & Parks District v. County of Orange (2011) 197 Cal.App.4th 282, 307, fn. 18.)

The Joint Status Report Regarding Status of Pending Motions to Compel (JSR), filed on 8-30-22 under ROA No. 515, indicates that only Special Interrogatory (SI) Nos. “. . . 2 and 14 remain at issue. The parties agree that the motion is moot as to Special Interrogatory No. 11.” (JSR; 2:18-22.) Therefore, the court will address only address SI Nos. 2 and 14.

SI No. 14:

SI No. 14, states, “Identify all DOCUMENTS you may introduce in evidence and/or use for any other purpose at the trial of this matter.” (Plaintiff’s Separate Statement (PSS) filed on 6-20-22 under ROA No. 263; 11:5-7.)

Defendant objected as vague, ambiguous, and overbroad as to the term “YOU,” and also based on work product. Defendant’s Opposition to Plaintiff Aramark Management, LLC’s Motion to Compel Further Responses to Special Interrogatories (Set One) (Opposition), filed on 8-23-22 under ROA No. 450, contends, “The obvious purpose of this interrogatory is to get TEG to disclose its attorneys’ views as to which documents produced in discovery are most likely to help their defense.” (Opposition; 4:12-13.) Hernandez v. Superior Court (2003) 112 Cal.App.4^th 883, 293 (Hernandez), states, “In short, a responding party may object to an interrogatory that seeks privileged information by clearly stating the objection and the particular privilege invoked. But the existence of a document containing privileged information is not privileged. [Citation.] Interrogatories may be used to discover the existence of documents in the other party's possession. [Citation.] If an interrogatory asks the responding party to identify a document, an adequate response must include a description of the document. [Citation.] Thus, we agree with petitioners that a ‘privilege log’ is unnecessary with regard to answering interrogatories seeking the identification of documents. [Citation.]” (Italics in Hernandez.)

Under Hernandez, the identification of documents is not privileged. Therefore, the court GRANTS the Motion as to SI No. 14.

Based on the above, the court GRANTS Plaintiff’s (Aramark Management, LLC) Motion to Compel Further Responses to Its First Set of Special Interrogatories to Defendant Ensign Services, Inc. filed on 6-20-22 under ROA No. 269. The court ORDERS Defendant to provide a verified, Code of Civil Procedure response to SI No. 14 no later than 30-days from the date of service of the notice of the court’s ruling.

Plaintiff is to give notice.

Motion No. 6:

Plaintiff’s (Aramark Management, LLC) Motion to Compel Defendant The Ensign Group, Inc. to Provide Further Responses and Documents Responsive to Aramark’s First Set of Request for Production of Documents (Motion), filed on 6-20-22 under ROA No. 301, is GRANTED in part and DENIED in part. The Notice for this Motion was filed on 6-20-22 under ROA No. 327.

The court DENIES Plaintiff’s Request for Judicial Notice, (filed on 6-20-22 under ROA No. 307) and Defendant’s (The Ensign Group, Inc.) Request for Judicial Notice (filed on 8-23-22 under ROA No. 444) as immaterial to the court’s decision. (Silverado Modjeska Recreation & Parks District v. County of Orange (2011) 197 Cal.App.4th 282, 307, fn. 18.)

The Joint Status Report Regarding Status of Pending Motions to Compel (JSR), filed on 8-30-22 under ROA No. 515, indicates that only Request for Production (RFP) Nos. “. . . 3, 6, 16, 20, and 22 remain at issue. The parties agree that the motion is moot as to Request for Production Numbers 1, 2, and 24.” (JSR; 2:26-27.) Therefore, the court will address only address RFP Nos. 3, 6, 16, 20, and 22.

Code of Civil Procedure section 2031.310 provides: “(a) On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: [¶] (1) A statement of compliance with the demand is incomplete. [¶] (2) A representation of inability to comply is inadequate, incomplete, or evasive. [¶] (3) An objection in the response is without merit or too general. [¶] (b) A motion under subdivision (a) shall comply with each of the following: [¶] (1) the motion shall set forth specific facts showing good cause justifying the discovery sought by the demand. [¶] (2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040. . . [¶] (c) Unless notice of this motion is given 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 demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand.”

RFP No. 3:

RFP No. 3 states, “ For the period between January 1, 2017 and July 2, 2018, all Communications and/or Documents that hit on any one or more of the following search terms: . . .” (Plaintiff’s Separate Statement (PSS) filed on 6-20-22 under ROA No. 305; 7:14-8:8.) RFP No. 3 then lists twenty search terms.

The court DENIES the Motion as to RFP No. 3. Although Plaintiff provides an explanation as to why one of the twenty search terms is relevant, this explanation does not cover the remaining listed terms or explain what kind of a search Aramark seeks to have Defendant (The Ensign Group, Inc.) conduct.

RFP No. 6:

RFP No. 6 states, “For the period between January 1, 2017, and July 2, 2018, all Communications, including but not limited to all Documents attached to any such Communications, with any actual or potential investors, banks, customers, vendors and/or business partners relating to the formation of a group purchasing organization and/or Beacon.”

The Second Amended Complaint (SAC), filed on 3-14-22 under ROA No. 171, pleads, that Defendant aided and abetted the Borgquists in their breach of fiduciary duty “. . . to divert HPSI’s customers . . . .” (For example, see SAC, at ¶¶ 8 and 116-125.) Communications with potential investors are relevant (Code of Civ. Proc., § 2017.010) to Plaintiff’s aiding and abetting theory. Therefore, the court GRANTS the Motion as to RFP No. 6.

RFP No. 16:

RFP No. 16 states, “For the period since July 1, 2018, all budgets and/or financial projections relating to Beacon.” (PSS; 11:17.)

Budgets and financial projections are relevant (Code of Civ. Proc., § 2017.010) to Plaintiff’s aiding and abetting theory because they may tend to show the diversion of business, and Defendant’s role, in any, in the diversion of customers. Therefore, the court GRANTS the Motion as to RFP No. 16.

RFP No. 20:

RFP No. 20 states, “For the time period since January 1, 2018, all Communications, including any and all attachments to Communications, between You and any one or more partners, associates, of counsel, paralegals and/or employees of any of the following law firms that relate in any way to Steve Borgquist, Brent Borgquist and/or Beacon Purchasing: (a) Sheppard Mullin; (b) Ostergar Lattin Julander LLP (including the Ostergar Law Group and any other predecessor firms); (c) the Law Offices of Matthew Borgquist; and/or (d) Garcia Rainey Blank & Bowerbank LLP.”

Plaintiff’s Reply (Reply), filed on 8-29-22 under ROA No. 487, states, “Aramark is willing to compromise on the timeframe, to end on October 1, 2018 . . . .” (Reply; 5:1-2.)

The requested documents are relevant (Code of Civ. Proc., § 2017.010) to Plaintiff’s aiding and abetting theory because they may tend to show the aiding and abetting between Defendant and the Borgquists in terms of the formation of Beacon. Therefore, the court GRANTS the Motion as to RFP No. 20 but limits the scope in terms of time to October 1, 2018.

RFP No. 22:

RFP No. 22 states, “For the period since January 1, 2018, all Documents comprising or relating to any business plans, strategies, sources of capital, loan applications, forecasts, projections, investor materials, operating agreements, member agreements, buy/sell agreements, shared services agreements, lease terms for office space and office equipment, debt instruments and/or other documents relating in any way to partnering with the Borgquists on a Group Purchasing Organization, pursuing an investment in Beacon, creating Banner Holdings and/or loaning money to Banner Holdings, Beacon and/or the Borgquists.” (PSS; 14:8-14.)

The requested documents are relevant (Code Civ. Proc., § 2017.010) to Plaintiff’s aiding and abetting theory in terms of Defendant’s connection to Beacon or Banner Holding. Therefore, the court GRANTS the Motion to RFP No. 22, and also limits the scope to October 1, 2018.

Based on the above, the court DENIES Plaintiff’s (Aramark Management, LLC) Motion to Compel Defendant The Ensign Group, Inc. to Provide Further Responses and Documents Responsive to Aramark’s First Set of Request for Production of Documents, filed on 6-20-22 under ROA No. 301, as to RFP No. 3. The court is GRANTS the Motion as to the remaining RFPs at issue as set forth above. The court ORDERS Defendant to provide a verified, Code of Civil Procedure response to RFP Nos. 6, 16, 20, and 22 no later than 30-days from the date of service of the notice of the court’s ruling.

Plaintiff is to give notice.

Motion No. 7:

Plaintiff’s (Aramark Management, LLC) Motion to Compel Defendant Ensign Services, Inc. to Provide Further Responses and Documents Responsive to Aramark’s First Set of Request for Production of Documents (Motion), filed on 6-20-22 under ROA No. 313, is GRANTED in part and DENIED in part. The Notice for this Motion was filed on 6-20-22 under ROA No. 331.

The court DENIES Plaintiff’s Request for Judicial Notice, (filed on 6-20-22 under ROA No. 317) and Defendant’s (Ensign Services, Inc.) Request for Judicial Notice (filed on 8-23-22 under ROA No. 440) as immaterial to the court’s decision. (Silverado Modjeska Recreation & Parks District v. County of Orange (2011) 197 Cal.App.4th 282, 307, fn. 18.)

The Joint Status Report Regarding Status of Pending Motions to Compel (JSR), filed on 8-30-22 under ROA No. 515, indicates that only Request for Production (RFP) Nos. “. . . 3, 6, 16, and 20 remain at issue. The parties agree that the motion is moot as to Request for Production Numbers 1, 9, and 24.” (JSR; 3:4-5.) Therefore, the court will address only address RFP Nos. 3, 6, 16, and 20.

RFP No. 3:

The court DENIES the Motion as to RFP No. 3 for the same reasons as stated in denying RFP No. 3 in Motion No. 6.

RFP No. 6:

The court GRANTS the Motion as to RFP No. 6 for the same reasons as stated in granting RFP No. 6 in Motion

No. 6.

RFP No. 16:

RFP No. 16 states, “For the period since July 1, 2018, all budgets and/or financial projections relating to Beacon.”

The court GRANTS the Motion as to RFP No. 16 for the same reasons as stated in granting RFP No. 16 in Motion No. 6.

RFP No. 20:

The court GRANTS the Motion as to RFP No. 20 for the same reasons as stated in granting RFP No. 20 in Motion No. 6.

Based on the above, the court DENIES Plaintiff’s (Aramark Management, LLC) Motion to Compel Defendant Ensign Services, Inc. to Provide Further Responses and Documents Responsive to Aramark’s First Set of Request for Production of Documents (Motion), filed on 6-20-22 under ROA No. 313, as to RFP No. 3. The court is GRANTS the Motion as to the remaining RFPs at issue as set forth above. The court ORDERS Defendant to provide a verified, Code of Civil Procedure response to RFP Nos. 6, 16, and 20 no later than 30-days from the date of service of the notice of the court’s ruling.

Plaintiff is to give notice.