Case Number: BC493321 Hearing Date: May 01, 2014 Dept: 58

JUDGE ROLF M. TREU
DEPARTMENT 58
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Hearing Date: Thursday, May 1, 2014
Calendar No: 9
Case Name: Kelly Nishimoto, Inc. v. Beach Bunny Swimwear, Inc.
Case No.: BC493321
Motion: Motion to Compel Further Discovery Responses
Moving Party: Plaintiff Kelly Nishimoto, Inc.
Responding Party: Defendant Beach Bunny Swimwear, Inc.
Notice: OK

Tentative Ruling: Motion to compel further discovery responses is denied. Sanctions are awarded in favor of Defendant Beach Bunny Swimwear, Inc. against Plaintiff and Plaintiff’s counsel, jointly and severally, in the total reduced amount of $1,250 to be paid within 30 days.
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Background Facts –
On 10/5/12, Plaintiff Kelly Nishimoto, Inc. filed this action against Defendant Beach Bunny Swimwear, Inc. arising out of the alleged use of clothing designs without compensation. On 5/22/13, default was entered against Beach Bunny. On 8/22/13, Plaintiff filed a First Amended Complaint which added Angela Chittenden as a defendant. On 8/23/13, the default against Beach Bunny was set aside pursuant to the parties’ stipulation. On 11/27/13, Plaintiff filed the operative Second Amended Complaint which asserts cause of action for (1) breach of implied contract, (2) amount due on book account, (3) goods had and received, (4) fraud – intentional misrepresentation, (5) unfair business practices, and (6) negligent misrepresentation.

On 2/24/14, Beach Bunny filed a cross-complaint against Plaintiff and Kelly Nishimoto asserting causes of action for (1) breach of contract, (2) fraud, and (3) negligent misrepresentation arising out of the alleged failure to timely provide suitable products for Beach Bunny.

Trial is set for 5/19/14; FSC for 5/1/14.

Motion to Compel Further Discovery Responses –
Plaintiff moves to compel Beach Bunny to provide further responses to document requests in Plaintiff’s Inspection Demands Set 2 (Salazar Decl. ¶ 3, Ex. A) and deposition notice for Beach Bunny’s person most qualified (id. ¶ 4, Ex. B). Beach Bunny objected to the discovery requests. Id. ¶ 5, Ex. C.

1. Procedural Deficiency
Preliminarily, Plaintiff’s motion is really a hybrid motion to compel further documents pursuant to a deposition notice (CCP § 2025.480) and requests for production of documents (CCP § 2031.310). Beach Bunny correctly notes that Plaintiff failed to file a separate statement, which is required pursuant to CRC 3.1345(a)(3).

Plaintiff argues that Defendant did not provide responses (see CRC 3.1345(b)) because Plaintiff served amended notices of deposition to which no responses were made (Salazar Decl. ¶ 6; Salazar Reply Decl. ¶¶ 6-8). However, these amended notices of deposition concern identical document requests and the amended notices only included changes as to the time, date, and location of the deposition. Plaintiff offers no authority that deems Beach Bunny’s responses to the documents requests in the initial deposition notice waived by failing to reassert them in response to the amended notices of deposition

Therefore, the motion to compel further discovery responses is denied on this procedural ground.

2. Merits
Notwithstanding the procedural deficiency, the Court notes that the document requests sought all communications that refer or relate to Plaintiff and Kelly Nishimoto; all documents related to the manufacture, sales, and annual sales (limited to 2009 to the present) of five product lines “Bling it On,” “Keepin it Real,” “Limited Addiction,” “Classic Beauty,” and “Take a Little Ride”; and all documents related to Beach Bunny’s profit and loss statements from 2005 to the present.

The Court notes that Plaintiff submits that it did offer to limit the document requests to 2011 to the present and to specific product styles (Salazar Decl. ¶ 7); however, Plaintiff fails to establish good cause for these comprehensive document requests (see CCP §§ 2025.480(e); 2031.310(b)(1)). Notably, Beach Bunny submits that the five product lines are new styles created and designed separately (see Chittenden Decl. ¶¶ 2-6; Harris Decl. ¶ 2; Washburn Decl. ¶ 2). Additionally, Beach Bunny submits that Plaintiff’s document requests seek Beach Bunny’s trade secrets, proprietary information, and financial data. Chittenden Decl. ¶ 7. Lastly, Beach Bunny submits that it has produced documents in response to Plaintiff’s first set of requests for production of documents. See Banuelos Decl. ¶ 2, Ex. 3.

Plaintiff fails to respond to Beach Bunny’s showing. Therefore, the motion is denied on substantive grounds.

3. Sanctions
Beach Bunny requests sanctions of $2,000 (Banuelos Decl. ¶ 6 (reflecting 8 hours at the hourly rate of $250)) which are authorized pursuant to CCP §§ 2025.480(f) and 2031.310(h). However, the Court notes that Beach Bunny’s request for sanctions includes time to review Plaintiff’s reply (which only addressed the failure to include a separate statement) and to appear at the hearing on this motion (which is also set for a FSC). Therefore, the Court declines to award sanctions for this time and only awards sanctions in favor of Beach Bunny against Plaintiff, and Plaintiff’s counsel jointly and severally, in the total reduced amount of $1,250.