Case Number: 18STCV07203 Hearing Date: November 06, 2019 Dept: 32

RAYMOND MUNRO,

Plaintiff,

v.

HENRY SUAREZ, et. al.

Defendants.

Case No.: 18STCV07203

Hearing Date: November 6, 2019

[TENTATIVE] order RE:

(1) Motion to compel munro’s responses to RPD, set one

(2) motion to compel vista’s responses to rpd, set one

(3) motion to compel munro’s responses to si, set one

BACKGROUND

A. Complaint

Plaintiff Raymond Munro (“Munro”) commenced this action against Defendant Henry Suarez (“Suarez”) on December 5, 2018. The Complaint asserts causes of action for (1) breach of joint venture contract – oral; (2) breach of fiduciary duty; (3) conversion; (4) deceit; (5) resulting trust; and (6) accounting. The Complaint alleges in pertinent part as follows.

In 2013, the parties entered into an oral joint venture agreement through which they agreed to jointly purchase, develop, and sell for profit certain real property located in Southern California (“Joint Venture”). Under the agreement, Munro’s responsibilities included locating and negotiating the purchase of land and coordinating the entitlement and planning process with consultants and city agencies. Suarez’s responsibilities included handling the Joint Venture’s initial financing obligations.

In 2017, Suarez informed Munro that he possessed full ownership of the Joint Venture’s properties and assets. Suarez’s attorney sent Munro a letter unequivocally asserting that no Joint Venture existed between the parties. Suarez then commandeered the Joint Venture, excluded Munro, and sold one of the Joint Venture’s properties for a combined $3,209,000 without distributing any profits to Munro. Since taking complete control of the Joint Venture, Suarez has continued to profit from and sell other Joint Venture Properties without distributing any proceeds to Munro.

B. Cross-Complaint

On May 13, 2019, Suarez individually and as trustee of the Suarez Family Trust filed a Cross-Complaint against Munro and Vista Enterprise, Inc. (“Vista”). The Cross-Complaint asserts causes of action for (1) breach of contract, (2) fraud and concealment, and (3) violation of Business and Professions Code section 7031. The Cross-Complaint alleges in pertinent part as follows.

Vista is a general contractor. Munro is a Vista officer and shareholder. From 2014 to 2017, Suarez entered into a series of contracts with Vista through Munro to furnish labor, equipment, and materials to construct single family dwellings on parcels of real properties owned by the Suarez Family Trust. Pursuant to the contracts, Vista performed construction services. Vista billed Suarez in excess of $3,375,603.82, and Suarez paid Vista this full amount.

In April 2017, Suarez learned that Vista was not a licensed contractor in California. Because Vista lacked a license and had performed substandard work causing delays and corrections, Suarez terminated his remaining contract with Vista.

LEGAL STANDARD

A. Requests for Production of Documents

Within 30 days after service of a request for production of documents (“RPD”), the party to whom the demand is directed shall serve a response to it on the party making the demand. (CCP § 2031.260(a).) If a party to whom a RPD is directed fails to serve a timely response to it, the party making the demand may move for an order compelling response to the demand. (CCP § 2031.300(b).) The party to whom the RPD is directed waives any objections to the RPDs, including ones based on privilege. (CCP § 2031.300(a).) The court, on motion, may relieve that party from this waiver on the determination that (1) the party has subsequently served a substantially compliant response and (2) the party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect. (Ibid.)

The court shall impose monetary sanctions against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to an RPD, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances makes the imposition of the sanction unjust. (CCP § 2031.300(c).)

B. Special Interrogatories

With exceptions not relevant here, the party to whom interrogatories are propounded shall serve responses to the same on the propounding party within 30 days after service of the interrogatories. (CCP § 2030.260(a).) If a party to whom interrogatories are directed fails to serve a timely response, the party to whom the interrogatories are directed waives any right to exercise the option to produce writings under CCP section 2030.230 as well as any objections to the interrogatories, including ones based on privilege. (CCP § 2030.290(a).)

The court shall impose monetary sanctions against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances makes the imposition of the sanction unjust. (CCP § 2030.290(c).)

ANALYSIS

A. RPD Motion re: Munro

Suarez moves to compel Munro to provide responses to his RPD, Set One, and to produce responsive documents in accordance therewith. Suarez requests monetary sanctions of $4,940 in connection with this motion.

On May 24, 2019, Suarez mail-served RPD, Set One, on Munro. (Higgins Decl. ¶ 2, Ex. A.) Munro’s responses were due by June 28, 2019. (Higgins Decl. ¶ 3; CCP § 2031.260(a).) Suarez received no responses and no documents by June 28, 2019. (Higgins Decl. ¶ 4.) After a few weeks of meet-and-confer, Munro’s counsel email-served Suarez with discovery responses, but no documents. (Higgins Decl. ¶ 8, Ex. E.) Suarez never authorized service of discovery responses by email. (Higgins Decl. ¶¶ 8-9; CCP § 1010.6(a)(2)(A)(i).) Suarez’s counsel advised Munro’s counsel of the same. (Higgins Decl. ¶¶ 9-10.) To date, Suarez’s counsel has not been correctly served with formal written discovery responses or any documents in accordance with those responses. (Higgins Decl. ¶ 11.)

Suarez has shown that Munro failed to serve responses to Suarez’s RPDs. (CCP §§ 1010.6(a)(2)(A)(i), 2031.300(b).) Suarez has also shown that Munro failed to produce documents in accordance therewith. (CCP §§ 2031.030(c)(2), 2031.320(a).) Accordingly, Suarez’s motion to compel Munro to serve objection-free responses to Suarez’s RPD, Set One, and produce documents in accordance therewith is GRANTED.

Suarez requests monetary sanctions of $4,940 in connection with this motion. This is too much given the straight-forward nature of this motion. The Court awards Suarez total monetary sanctions against Munro and Munro’s counsel in the amount of $1,600.

B. RPD Motion re: Vista

Suarez moves to compel Vista to provide responses to his RPD, Set One, and to produce responsive documents in accordance therewith. Suarez requests monetary sanctions of $3,740 in connection with this motion. Suarez also requests terminating sanctions.

On August 1, 2019, Suarez mail-served Vista with RPD, Set One. (Higgins Decl. ¶ 12, Ex. H.) Vista’s responses were due by September 5, 2019. (Higgins Decl. ¶ 12.) Suarez received no responses and no documents by that date. (Higgins Decl. ¶ 13.) Although the parties have met and conferred on this issue, Vista has yet to provide any responses or produce any documents in connection with these discovery requests. (Higgins Decl. ¶ 18.)

Suarez has shown that Vista failed to serve responses to his RPDs. (CCP § 2031.300(b).) Accordingly, Suarez’s motion to compel Vista to serve objection-free responses to his RPD, Set One, and produce documents in accordance therewith is GRANTED.

Suarez requests monetary sanctions of $3,740 in connection with this motion. Suarez’s request is GRANTED in the lesser amount of $1,200.

C. SI Motion Re: Munro

Suarez moves to compel Munro to provide responses to his Special Interrogatories (“SI”), Set One. Suarez requests monetary sanctions of $4,020 in connection with this motion. Suarez also requests terminating sanctions.

On August 1, 2019, Suarez mail-served Munro with SI, Set One. (Higgins Decl. ¶ 12, Ex. H.) Munro’s responses were due by September 5, 2019. (Higgins Decl. ¶ 12.) Suarez received no responses and no documents by that date. (Higgins Decl. ¶ 13.) Although the parties have met and conferred on this issue, Munro has yet to provide any responses or produce any documents in connection with these discovery requests. (Higgins Decl. ¶ 18.)

Suarez has shown that Munro failed to serve responses to his SIs. (CCP § 2030.290(a).) Accordingly, Suarez’s motion to compel Munro to serve objection-free responses to Suarez’s SI, Set One, is GRANTED.

Suarez requests monetary sanctions of $4,020 in connection with this motion. Suarez’s request is GRANTED in the lesser amount of $1,200.

D. Terminating Sanctions

In connection with two of the three discovery motions, Suarez requests terminating sanctions against Munro and Vista. Suarez claims that such severe nonmonetary sanctions are warranted because of Munro’s and Vista’s continuing failure to respond to discovery which has impeded his defense of this lawsuit and his prosecution of the claims in his Cross-Complaint. Suarez’s argument is unpersuasive. While Munro’s and Vista’s discovery misuses are troubling, the imposition of terminating sanctions is premature at this juncture. “A trial court has broad discretion to impose discovery sanctions, but two facts are generally prerequisite to the imposition of nonmonetary sanctions …: (1) absent unusual circumstances, there must be a failure to comply with a court order, and (2) the failure must be willful.” (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327.) Munro and Vista have engaged in serious discovery misuse, but they have not yet violated a court order.

CONCLUSION

Suarez’s motion to compel Munro to serve responses to Suarez’s RPD, Set One, and produce documents in accordance therewith is GRANTED. Munro must serve objection-free responses and produce documents within 15 days of notice of this court order.

Suarez’s motion to compel Vista to serve responses to Suarez’s RPD, Set One, and produce documents in accordance therewith is GRANTED. Vista must serve objection-free responses and produce documents within 15 days of notice of this court order.

Suarez’s motion to compel Munro to serve objection-free responses to Suarez’s SI, Set One, is GRANTED. Munro must serve objection-free responses within 15 days of notice of this court order.

Suarez’s request for monetary sanctions is GRANTED IN PART. Munro and his counsel must pay Suarez total monetary sanctions in the amount of $2,800 within 15 days of notice of this court order. Vista and its counsel must pay Suarez total monetary sanctions in the amount of $1,200 within 15 days of notice of this court order.

Suarez’s request for terminating sanctions is DENIED.