Judge Walter P. Schwarm, Case 30-2021-01191524 2022-12-13 Tentative Ruling

Judge: Walter P. Schwarm, Case: 30-2021-01191524, Date: 2022-12-13 Tentative Ruling

Motion No. 1:

Defendant’s (The Ensign Group, Inc.) Motion to Compel Further Responses to Form Interrogatories (Sets One and Two) (Motion), filed on 8-31-22 under ROA No. 519, is DENIED. The Notice of this Motion (Notice) was filed on 8-31-22 under ROA No. 573.

Code of Civil Procedure section 2030.220 provides, “(a) Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits. [¶] (b) if an interrogatory cannot be answered completely, it shall be answered to the extent possible. [¶] (c) If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.”

Code of Civil Procedure section 2030.300 provides in 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.”

The Motion seeks a further response from Plaintiff to Form Interrogatories, Set One, numbers 17.1 and 50.2 and Form Interrogatories, Set Two number 17.1. (Notice; 2:1-6.)

Form Interrogatory No. 17.1

The Motion states, “This interrogatory requires Aramark to state the facts underlying its denials of requests for admission, identify the individuals with knowledge of such facts, and identify the documents that support them. But instead of stating facts that support its denials of requests for admissions, Aramark offered lengthy, repetitive regurgitations of the allegations in its pleading. And instead of identifying individuals who would actually have personal knowledge of the particular facts in question, Aramark provided long lists of everyone it could think of who might have anything to do with the case. Aramark’s answers describing documents are similarly both nonresponsive and over-inclusive. Aramark’s nonresponses and over-identifications of witnesses and documents conceal, rather than reveal, the information sought by Form Interrogatory 17.1.” (Motion, 4:5-13.)

Plaintiff’s (Aramark Management, LLC) Response to Defendant The Ensign Group’s Separate Statement in Support of Plaintiffs’ Opposition to Defendants’ Motion to Compel Further Responses to Form Interrogatories (Sets One and Two) (SS Opposition), filed on 11-30-22 under ROA No. 780, provides in part, “The sum and substance of Defendant’s complaint regarding the response appears to be that Defendant disagrees with Aramark’s contentions that the events detailed in the response were in fact solicitations. While Defendant has every right to dispute whether the events detailed in Aramark’s response were in fact solicitations, that is a fact issue to be determined in the litigation; it is not an appropriate basis for claiming a deficiency with a response to an interrogatory.” (SS Opposition; 73:12-17 (See also, for example, SS Opposition at 73:26-74:2, 74:11-17, 74:26-75:3, and 76:19-24.)

The court finds that a further response to Form Interrogatory No. 17.1 is not required. Defendant’s Motion takes issue with Plaintiff’s contentions and Plaintiff’s interpretations of the facts at issue in this action. Plaintiff’s responses otherwise responds to each portion of Form Interrogatory No. 17.1. Defendant’s disagreement with the manner in which Plaintiff characterizes facts does not constitute a basis to compel a further responses to Form Interrogatory No. 17.1. Therefore, the court DENIES the Motion as to Form Interrogatory No. 17.1.

Form Interrogatory No. 50.2

The Motion states: “Rather than simply answering “yes” to the first question, and then describing and giving the dates of any acts and omissions Aramark claims constituted breaches of the agreements, Aramark took the opportunity to report testimony in another case and/or describe evidence from that case that supposedly supports its claims. The answer does not respond to the call of the question. The interrogatory directs Aramark to describe and give the dates of particular acts and omissions. To provide a “complete and straightforward” answer Aramark must simply describe and give the dates of those acts and omissions, and nothing more.” (Motion, 4:18-24.)

The SS Opposition states, “The sum and substance of Defendant’s complaint appears to be that it disagrees with the format and length of Aramark’s answer and asserts that the events detailed in the response were not acts or omissions constituting a breach. Defendant also takes issue with Aramark’s citations to the court’s ruling on these very issues in the related federal case. While Defendant has every right to dispute whether the events detailed in Aramark’s response were, in fact, breaches and whether another court’s rulings will be admissible at trial, these are factual and legal issues to be determined in the litigation—they are not an appropriate basis for claiming a deficiency with a response to an interrogatory.” (SS Opposition, 82:10-17.)

The court finds that a further response to this interrogatory is not required. The court has reviewed Plaintiff’s response to Form Interrogatory No. 50.2, and finds that it is responsive and complies with Code of Civil Procedure section 2030.220. Plaintiff’s response stated that the Borgquists breached the PIPER Agreement and then stated facts in support of this contention with dates. This response is sufficient and a further response is not required. Therefore, the court DENIES the Motion as to FI No. 50.2.

Based on the above, the court DENIES Defendant’s (The Ensign Group, Inc.) Motion to Compel Further Responses to Form Interrogatories (Sets One and Two) filed on 8-31-22 under ROA No. 519.

Plaintiff is to give notice.

Motion No. 2:

Defendant’s (The Ensign Group, Inc.) Motion to Compel Further Response to Special Interrogatories (Set One) (Motion), filed on 8-31-22 under ROA No. 527, is GRANTED in part and DENIED in part. The Notice of this Motion (Notice) was filed on 8-31-22 under ROA No. 590.

Code of Civil Procedure section 2030.220 provides: “(a) Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits. [¶] (b) if an interrogatory cannot be answered completely, it shall be answered to the extent possible. [¶] (c) If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.”

The Motion seeks a further response from Plaintiff to Special Interrogatories (SI) Nos. 3, 6 and 7. (Notice; 2:1-6.) The Motion states, “The Motion states: “In response to Special Interrogatory 3, Aramark was supposed to describe each particular event that allegedly constituted solicitation, diversion, or appropriation of each of the sixteen customers listed in its answer to Special Interrogatory No. 1, but instead of doing so Aramark references events which it contends are ‘evidence of solicitation, diversion and appropriation,’ but which are not themselves events that allegedly ‘constituted solicitation, diversion, or appropriation’ of the identified customers.” (Motion; 4:6-11 (Italics in Motion.).) As to SI No. 6, the Motion asserts, “The answer to Interrogatory 6 is similarly evasive; it does not respond to the request that Aramark describe each particular event constituting inducement by The Ensign Group and Ensign Services.” Motion; 4:15-16.) As to SI No. 7, the Motion contends, “At this point in time, Aramark has conducted a full trial on its claim for more than $25 million in damages in its lawsuit against the Borgquists. There is no legitimate reason why Aramark should not be required to provide its computation of each category of claimed damages at this stage of the case.” (Motion, 4:28-5:3.)

Plaintiff’s Opposition to Defendant’s Second Motion to Compel Further Responses to Special Interrogatories (Set One) (Opposition), filed 11-30-22 under ROA No. 790 states, “Defendant complains about Aramark’s responses because Defendant simply does not like what Aramark has to say – not because the responses are actually deficient under the Code. However, disapproval of a party’s response to an interrogatory is not a basis to bring a motion to compel. Because this Motion has no merit and was filed in a transparent attempt to drive up Aramark’s litigation costs, it should be denied in its entirety.” (Opposition, 4:23-27.) The Opposition also states that the meet and confer efforts as to SI No. 7 were insufficient because “Defendant’s counsel’s meet and confer letter of November 17, 2021 did not indicate that there was a dispute regarding Special Interrogatory No. 7, so the parties did not have an opportunity to meet and confer on that topic.” (Opposition; 5:11-13 (Lucci Decl., ¶ 3 and Exhibit A.)

Defendant filed its Separate Statement (SS) on 9-13-22 under ROA No. 613.

SI No. 3:

SI No. 3 asks, “For each customer identified in Your answer to Special Interrogatory No. 1, describe with particularity the circumstances of each event that YOU allege constituted solicitation, diversion, or appropriation of the customer to a competing company by providing, without limitation, the date, the names of all individuals who participated in the solicitation/diversion/appropriation, the names of all individuals who witnessed the solicitation/diversion/appropriation, the place where the solicitation/diversion/appropriation occurred, the manner in which the solicitation/diversion/appropriation was made (e.g., by telephone, in person, etc.), and the substance of any communications made in connection with the solicitation/diversion/appropriation.” (SS; 4:9-16.)

Plaintiff’s response to SI No. 3 states, “. . . Plaintiffs have identified the following events as evidence of solicitation, diversion and appropriation of Plaintiffs’ customers.” (SS: 4:22-23.) The response then discusses events which Plaintiff characterized as evidence, such as the following: “October 25, 2017 email from Steve Borgquist to Jacob Christensen which contained HPSI’s actual prior-year revenues (among other information) with nine thencurrent HPSI so-called chain partners (customers), including Aspen Skilled Healthcare, Ensign Group, Inc., Generations Healthcare, Haven Health Management, Madison Creek Partners, North American Client Services, Plum Healthcare Group, Providence Group, Inc., and Rockport Healthcare Services. In his email, Steve Borgquist wrote that he already had a “commitment” from one such customer, and that all nine of the customers had expressed a “level of interest.” Thus, at some point prior to October 25, 2017, Steve Borgquist and/or his brother, Brent Borgquist, had communicated with representatives of these nine HPSI customers about diverting/appropriating their business to a competing GPO.” (SS; 4:24-5:2.)

The court finds that Plaintiff’s responses do not respond to the call of SI No. 3. SI No. 3 specifically asked Plaintiff, for each customer previously identified, to list events which constitute solicitation or diversion as to the identified customer. Plaintiff, however, listed events evidencing communications between Steve Borquist and others about certain customers, and which do not directly address any solicitation or diversion of the identified customer. Therefore, the court finds that Plaintiff’s response to SI No. 3 is incomplete, and GRANTS the Motion as to SI No. 3.

SI No. 6:

The court GRANTS the Motion as to SI No. 6 for the same reasons as set forth as to SI No. 3.

SI No. 7:

Initially, the court finds that the meet and confer efforts were sufficient because the parties met and conferred regarding this Motion. The declaration of Samuel Brooks states, “I initiated the meet and confer process for motions to compel in early February 2022. Aramark’s counsel indicated they would amend responses to Special Interrogatories (Set Two), but otherwise largely stood by their responses. After a reasonable and good faith attempt at an informal resolution of the issues, I filed timely motions to compel further responses to the Form Interrogatories (Sets One and Two), Requests for Production of Documents (Set One), and Special Interrogatories (Set One) on March 8, 2022. Because Aramark amended its responses to Special Interrogatories (Set Two), the motion to compel further responses to that set of discovery was filed later, on March 29, 2022.” (Brooks Decl., ¶ 8.) The court finds that this is sufficient to demonstrate meeting and conferring regarding Defendant’s Motion.

Plaintiff’s Response to Defendant’s Separate Statement in Support of Its Second Motion to Compel Further Response to Special Interrogatories (Set One) (Response), filed on 11-30-22 under ROA No. 788, states, “In any event, Aramark’s response to this interrogatory was not evasive. Aramark provided an answer to the interrogatory based on the information presently available to it, in which it assessed Aramark’s damages to exceed $25 million. Further, as this Court is aware, discovery in this case is ongoing and has been hampered by multiple discovery disputes. By way of example, Aramark propounded certain discovery requests on Defendants that pertain to its claim for damages. Specifically, Aramark requested budgets and financial projections for Beacon in its Requests for Production (‘RFP’) No. 16. Defendants objected to providing that information, and Aramark moved to compel further responses. (See ROA Nos. 301 and 313). The motions concerning RFP Nos. 16 will be heard on December 20, 2022 and may elicit additional information that would bear on damages.” (Response; 15:21-16:2.)

SI No. 7 states, “Provide a computation of each category of YOUR claimed damages.” (SS, 15:23.) In response, Plaintiff responded, “Plaintiffs’ preliminary calculation of their damages is in excess of $25 million.”

The court finds that Plaintiff’s response to SI No. 7 is deficient because Plaintiff did not provide any computation or further details regarding how it arrived at a total of $25 million. Although Plaintiff contends it is unable to provide a response because of ongoing discovery disputes between the parties, Plaintiff’s response lacks any computation and Plaintiff fails to provide a specific justification for why its response lacks any computation. Therefore, the court GRANTS the Motion as to SI No. 7.

The court DENIES Defendant’s request for a monetary sanction because Plaintiff had provided two sets of amended responses before the filing of this Motion. (Lucci Decl., ¶¶ 6-17.) Further, there are ongoing discovery disputes between the parties that could have allowed Plaintiff to provide a more complete response to SI No. 7. Thus, the court finds that a monetary sanction is unjust under these circumstances. (Code Civ. Proc., 2030.300, subd. (d).)

Based on the above, the court GRANTS Defendant’s (The Ensign Group, Inc.) Motion to Compel Further Response to Special Interrogatories (Set One) filed on 8-31-22 under ROA No. 527. The court ORDERS Plaintiff to provide further, verified Code of Civil Procedure compliant responses to SI Nos. 3, 6, and 7 within 60 days from the date of service of the notice of the court’s ruling.

Defendant is to give notice.

Motion No. 3:

Defendant’s (The Ensign Group, Inc.) Motion to Compel Further Response to Special Interrogatories (Set Two) (Motion), filed on 8-31-22 under ROA No. 533, is DENIED. The Notice of this Motion (Notice) was filed on 8-31-22 under ROA No. 594.

Code of Civil Procedure section 2030.300 provides in 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.”

The Motion seeks a further response from Plaintiff to Special Interrogatories (SI) Nos. 12, 13, 14, 15 and 16. (Notice; 2:1-6.)

The Motion states: “In response to these interrogatories Aramark was supposed to provide specific information for each act, including the date, the names of individuals involved, the place the act occurred, the names of witnesses, and so forth. But instead of providing the information TEG requested, Aramark simply repeated the vague, general allegations that could already be found in its pleading. The answers are lengthy, but they are not responsive. [¶] . . . If Aramark has the information requested in the interrogatory, then it must provide it. If it does not have the information, then its answer must so state. Providing a lengthy non-response is an abuse of discovery.” (Motion, 4:6-22.)

Plaintiff’s (Aramark Management LLC) Opposition to Defendant’s Second Motion to Compel Further Responses to Special Interrogatories (Set Two) (Opposition), filed 11-30-22 under ROA No. 794 states, “Defendant complains about Aramark’s responses because Defendant simply does not like what Aramark has to say – not because the responses are actually deficient under the Code. However, disapproval of a party’s response to an interrogatory is not a basis to bring a motion to compel. Because this Motion has no merit and was filed in a transparent attempt to drive up Aramark’s litigation costs, it should be denied in its entirety.” (Opposition, 4:21-25.)

The court has reviewed Defendant’s Separate Statement in Support of Motion (DSS), filed 9-13-22 under ROA No. 628. Based upon this review, the court finds that Plaintiff’s responses to each interrogatory are sufficiently complete and straightforward such that a further response to each interrogatory is not required. For example, interrogatory No. 14 states, “Describe with particularity every act by ENSIGN GROUP or ENSIGN SERVICES you allege aided or abetted BRENT in the breach of his fiduciary duties to ARAMARK or HPSI, by providing at a minimum the following information: “1. a detailed description of the aiding or abetting act; [¶] 2. the date of the aiding or abetting act; [¶] 3. the name of any individual who committed the aiding or abetting act; [¶] 4. the name of any individual who witnessed the aiding or abetting act, [¶] 5. the place where the aiding or abetting act occurred; [¶] 6. the entity you allege is responsible for the aiding or abetting act (i.e., ENSIGN GROUP or ENSIGN SERVICES);

7. the fiduciary duty BRENT was aided or abetted in breaching; [¶] 8. a detailed description of the acts committed by BRENT in breach of the fiduciary duty; [¶] 9. the name of any individual who witnessed BRENT’s act in breach of the fiduciary duty; [¶] 10. a detailed description of each DOCUMENT you allege evidences the aiding and abetting act; [¶] 11. A detailed description of each DOCUMENT you allege evidences BRENT’s act in breach of the fiduciary duty.” (DSS; 24:19-25:7.)

Plaintiff’s response to this interrogatory states in part, “Ensign Group and Ensign Services aided and abetted Steve in the breach of his fiduciary duties to Aramark and HPSI in at least the following ways: Ensign’s senior-most executives, beginning in early January 2018, took affirmative steps to induce the Borgquists to, in turn, induce HPSI’s customers to do business with their planned competing business (Beacon Purchasing), which violated the PIPER Agreements.” (DSS; 25:9-13.) Plaintiff’s response then describes certain specific events such as a 1-19-18 meeting between Steve Borgquist, Barry Port, Christopher Christensen and Chad Ketch at Bagel Shack in San Juan Capistrano to discuss “. . . the venture that ultimately became Beacon Purchasing.” (DSS; 26:10-27:2.) The response also offers details about this discussion, including, for example, that Steve Borgquist emailed Barry Port after the meeting to ask for “. . . ‘spend data’ . . . for certain suppliers.’ ” (DSS; 26:20-23.)

The court finds that this response is responsive to SI No. 14 as within the meaning of Code of Civil Procedure section 2030.220. Similarly, the court finds Plaintiff’s responses to SI Nos. 12, 13, 15, and 16 are responsive withing the meaning of Code of Civil Procedure section 2030.220.

Based on the above, the court DENIES Defendant’s (The Ensign Group, Inc.) Motion to Compel Further Response to Special Interrogatories (Set Two) filed on 8-31-22 under ROA No. 533.

Plaintiff is to give notice.