Judge: Yolanda Orozco, Case: 20STCV47912, Date: 2023-04-27 Tentative Ruling

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Case Number: 20STCV47912    Hearing Date: April 27, 2023    Dept: 31

MOVING PARTY:  Plaintiff Global Interactive Enterprises Inc., et al.

RESP.  PARTY:       Defendants Hercules Development LLC (“Hercules”); Maybrook Homes, LLC (“Maybrook”), and Ezequiel Serebrisky is GRANTED.

MOTION TO COMPEL INITIAL DISCOVERY – FROGS and RPD

tentative ruling

Plaintiffs’ Motions to Compel RPD and FROGS as to Defendant Hercules Development LLC (“Hercules”); Maybrook Homes, LLC (“Maybrook”), and Ezequiel Serebrisky is GRANTED.

The Court also GRANTS the Plaintiffs’ request for monetary sanctions in the amount of $1,760.00, to be equally divided between each defendant.

Background

On December 15, 2020, Global Interactive Enterprises, Inc. and CHWD Ventures, LLC (“Plaintiffs”) initiated the present action by filing a Complaint against Maybrook Homes, LLC, Hercules Development, LLC, and Ezequiel Serebrisky.

The operative First Amended Complaint added Vlad Gold fka Val J. Fayngold as a Defendant and asserted causes of action for:

1)      Breach of Contract;

2)      Breach of Fiduciary Duty;

3)      Fraud;

4)      Shareholder Derivative-Breach of Fiduciary Duty

5)      Shareholder Derivative-Gross Mismanagement; and

6)      Shareholder Derivative – Abuse of Control

On July 22, 2021, Defendant Hercules Development LLC filed a Cross-Complaint against Global Interactive Enterprises, Inc., Dan Heston, CHWD Ventures LLC, Hossain E. Khaziri, and Roes 1 to 10 for:

1)      Intentional Interference with Contractual Relationship and

2)      Breach of Contract.

On November 23, 2022, and February 27, 2023, Plaintiffs filed six motions to compel.

On April 25, 2023, Defendants Maybrook Homes LLC; Hercules Development LLC; and Ezequiel Serebrisky filed an omnibus opposition to Plaintiffs’ six motions to compel.

No reply has been filed.

Legal Standard

Where a party fails to serve timely responses to discovery requests, the court may make an order compelling responses.¿ (Code Civ. Proc., §§ 2030.010, 2030.290, 2031.300, 2033.280; Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403.)¿ A party that fails to serve timely responses waives any objections to the request, including ones based on privilege or the protection of attorney work product.¿ (Code Civ. Proc., §§ 2030.290, subd. (a), 2031.300, subd. (a).)¿ Unlike a motion to compel further responses, a motion to compel responses is not subject to a 45-day time limit and the propounding party has no meet and confer obligations.¿ (Sinaiko Healthcare Consulting, Inc. v. Pac. Healthcare Consultants (2007) 148 Cal.App.4th 390, 404.)¿¿ 

¿ 

¿If a propounding party moves for and obtains a court order compelling a response, the court shall impose monetary sanctions against the party failing to timely respond to interrogatories and demands for inspection unless that party acted with substantial justification or the sanction would otherwise be unjust. (CCP §§ 2030.010, 2030.290, 2031.300, 2033.28;¿Sinaiko¿Healthcare Consulting, Inc., supra, 148 Cal.App.4th at 404.)¿¿ 

Discussion

Plaintiffs’ Six Motions to Compel FROGS and RPD

On November 23, 2022, Plaintiffs filed a Motion to Compel Responses to Form Interrogatories (FROGS) and a Motion for Request for Production of Documents (“RPD”) as to Defendant Hercules Development LLC (“Hercules”) and for monetary sanctions in the amount of $660.00 against Defendant Hercules for each motion.

On February 27, 2023, the Plaintiffs also filed a Motion to Compel Responses to FROGS and RPD as to Defendant Maybrook Homes, LLC (“Maybrook”) and monetary sanctions in the amount of $600.00 and $1,200.00 against Maybrook.

Plaintiffs also filed Motions to Compel Responses to FROGS and RPD as to Defendant Ezequiel Serebrisky and monetary sanctions in the amount of $1,000.00 and $600.00 against Serebrisky.

Defendants’ omnibus opposition to the six motions above states: “Defendants Maybrook, Hercules, and Ezequiel Serebrisky do not oppose Plaintiffs’ Motion to the extent it seeks to establish Defendants failure to perform its discovery obligations to serve responses to the outstanding discovery.”

Accordingly, the Court GRANTS Plaintiffs’ Motions to Compel.

Plaintiffs’ Request for Sanctions

Sanctions are mandatory in connection with motions to compel responses to interrogatories and requests for production of documents against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel.¿¿(Code Civ. Proc. §§ 2030.290, subd. (c),¿2030.300, subd. (d),¿2031.300, subd. (c),¿and 2031.310, subd. (h).) However, sanctions are not mandatory if the court “finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”¿(Id.) 

Defendants oppose the amount of monetary sanctions and oppose the six motions to compel on the basis that only three should have been filed.

Defendants are mistaken in believing that discovery motions can be combined. (See Weil & Brown, Civil Procedure Before Trial, [8:1140.1] at 8F-60 (The Rutter Group 2011) [“Motions to compel compliance with separate discovery requests ordinarily should be filed separately.”]) Filing multiple motions as a single motion negatively impacts the Court’s calendar by placing more motions on the calendar than slots have been provided by the online reservation system and unfairly jumps ahead of other litigants.

In addition, combining discovery motions allows the moving party to avoid paying the requisite filing fees. Statutorily required filing fees are jurisdictional and “it is mandatory for the court clerks to demand and receive statutorily required filing fees.” (See Duran v. St. Luke’s Hospital (2003) 114 Cal.App.4th 457, 460.) Here, the Plaintiffs six motions to compel were properly filed as six separate motions and properly provided notice of the request for sanctions against each defendant. (See Code Civ. Proc., § 2023.040.) 

Plaintiffs’ counsel, Tracey P. Hom, states her hourly rate for this matter is $400.00 per hour. (Hom Decl. ¶ 7.) No replies have been filed so Plaintiffs’ fees will be reduced.

As to the motions to compel regarding Defendant Hercules, Plaintiffs’ counsel spent 1.0 hour drafting the first motion to compel and 1.5 hours drafting the second motion to compel, and paid a $60.00 filing fee for each motion, totaling $120.00 in fees. As to Defendant Maybrook, the Plaintiffs’ counsel spent 1.0 drafting the first motion to compel and 1.5 drafting the second motion to compel and incurred $120.00 in fees. As to Defendant Serebrisky, the Plaintiffs’ counsel spent 1.0 hours drafting the first motion to compel and 1.5 hours drafting the second motion to compel and incurred $120.00 in fees.

The Court finds the amount of monetary sanctions sought to be excessive given that the motions were not complex and the Plaintiffs relied on the same arguments and exhibits in their six motions. The Court finds that each motion to compel, for each defendant combined, should not have taken more than 1.0 hour to draft, with an additional 0.5 hour to attend the hearing on all six motions. Accordingly, the Court awards Plaintiffs $1,400.00 in sanctions for 3.50 hours of work plus $360 in filing fees totaling $1,760.00 in sanctions.

Conclusion

Plaintiffs’ Motions to Compel FROGS and RPD as to Defendant Hercules Development LLC; Maybrook Homes, LLC; and Ezequiel Serebrisky is GRANTED.  Compliance within 10 days.

The Court also GRANTS the Plaintiffs’ request for monetary sanctions in the amount of $1,760.00, to be equally divided between each defendant, to be paid with 30 days..

Moving party to give notice.