Case Name: D & C Development, Inc., et al. v. McDonald, et al.
Case No.: 2017-1-CV-318572

This is an action for breach of contract. According to the allegations of the complaint, in June 2012, plaintiffs D & C Development, Inc. (“D&C”), Carney Construction Consulting, Inc. (“CCC”), Kevin Denardi (“Denardi”), Ian Carney (“Carney”) (collectively, “Plaintiffs”) and defendants Octane Fayette LLC (“Octane”), Emeric J. McDonald (“McDonald”) and John Barton (“Barton) (collectively, “Defendants”) were engaged in several real estate development projects as joint venturers where the parties jointly contributed resources towards the projects’ development and ultimately received a share of the profits from their sale. (See complaint, ¶¶ 11-12.) In June 2014, the parties began development of property located at 2645-2655 Fayette Dr. in Mountain View, a proposed 20-unit condominium development. (See complaint, ¶ 13.) Between June 2014 and March 2017, Plaintiffs worked towards the development of the subject property, including the investment of $200,000 in initial capital for the design, property management, billing, and preparation of the subject property. (See complaint, ¶ 14.) In November 2016, Plaintiffs received a purchase offer of the subject property for $20 million, which they then presented to Defendants. (See complaint, ¶ 16.) Defendants entered into a Purchase and Sale Agreement (“PSA”); however, a few days before the deal was set to close, buyer Legend, USA withdrew its offer. (See complaint, ¶ 16.) Since then, Plaintiffs have reached out to Defendants; however, Defendants now state that they will not share any profits from the sale of the subject property with Plaintiffs. (See complaint, ¶ 17.)

On November 2, 2017, Plaintiffs filed a complaint against Defendants, asserting causes of action for:

1) Breach of oral contract;
2) Breach of fiduciary duties;
3) Breach of the implied covenant of good faith and fair dealing; and,
4) Promissory fraud.

On December 29, 2017, Plaintiffs provided discovery responses without verifications, including 30 documents in response to at least 57 requests for production of documents. Plaintiffs’ counsel, Charles R. Hellstrom, also indicated that verifications were forthcoming and would be provided when available. That day, counsel for Defendants, Vision Winter, sent a meet and confer letter to Plaintiffs with regards to their discovery responses, seeking a meet and confer conference on January 2 or 3, 2018. On January 2, 2018, not having heard from Mr. Hellstrom, Mr. Winter emailed Mr. Hellstrom with regards to his availability. The parties agreed to meet and confer on January 3, 2018; however, less than an hour prior to the January 3 meeting, Mr. Hellstrom emailed Mr. Winter to indicate that he had to cancel, but would respond to the letter in writing. On January 3, 2018, Mr. Winter emailed Mr. Hellstrom indicating that he still wanted to meet and confer on the issues and again requested such a meeting on January 4, January 5, and January 7, 2018. On January 8, 2018, Mr. Hellstrom emailed Mr. Winter to inform Mr. Winter that his meet and confer letter would be sent later that day, and that he wanted to wait to meet until Mr. Winter reviewed Mr. Hellstrom’s letter. Mr. Winter reviewed Mr. Hellstrom’s letter and, on January 10, 2018, Mr. Winter sent a response, and again requested a meeting to meet and confer.

On January 11, 2018, Mr. Hellstrom stated that he agreed to provide further responses and production, and that it was thus unnecessary to further meet and confer, particularly since the parties have laid out their positions in the meet and confer correspondence. That day, Mr. Winter responded, again requesting a meeting to further meet and confer as there were still multiple issues that were at issue by Defendants’ discovery responses. On January 12 and 16, 2018, not having heard from Mr. Hellstrom, Mr. Winter again emailed seeking a meeting to confer on the issues. On January 17, 2018, Mr. Hellstrom responded, stating that he had fully answered and responded to the meet and confer letters thus obviating a need for further conversation until Plaintiffs provided further responses, and suggested that if Mr. Winter wished to file a motion or initiate an informal discovery conference, that he do so, but that he would seek sanctions in such an event. On January 22, 2018, Defendants filed a motion to compel further responses to form interrogatories number (“FI”) 50.1, special interrogatories numbers (“SIs”) 2, 4, 5 7-11, and 13, requests for production of documents numbers (“RPDs”) 6, 16-18, 20-22, 24, 26-28, 31, 45, 48-49 and 55-57. On January 26, 2018, Plaintiffs provided further responses and produced an additional 28,675 documents.
Defendants’ request for judicial notice

In connection with its motion, Defendants request judicial notice of the complaint, and Octane’s complaint in the related action. Defendants’ request for judicial notice is GRANTED. (See Evid. Code § 452, subd. (d).)

Defendants’ motion to compel further discovery responses

As Plaintiffs have provided further responses, the motion to compel further responses to discovery is MOOT. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408-409.) The Court will not analyze amended responses that were not the subject of the original motion, as Defendants now request.

The Court shall prepare the Order.