Case Number: BC720375 Hearing Date: February 14, 2020 Dept: 58

Judge John P. Doyle

Department 58

Hearing Date: February 14, 2020

Case Name: Straiton v. Binder, et al.

Case No.: BC720375

Motion: Motion to Compel

Moving Party: Plaintiff David Straiton

Responding Party: Defendant Mitchell Binder

Tentative Ruling: The Motion to Compel Further Responses is granted in part.

This is an action in which Plaintiff alleges that he entered into an oral contract with Defendant wherein Plaintiff agreed to make an investment and provide certain services for the startup King Baby in exchange for 12% of annual revenue based on accounting reports. Plaintiff alleges that he has not received the required accounting reports. On February 21, 2019, Plaintiff filed the operative First Amended Complaint (“FAC”) alleging causes of action for (1) breach of contract, (2) fraud, (3) common count, and (4) accounting.

Plaintiff seeks to compel further responses as to his requests for production, set one, propounded upon Defendant. Plaintiff contends that Defendant asserted meritless objections as to requests nos. 1, 3, 4-6, and 8. The subject discovery relates to Defendant’s finances. Plaintiff has temporally narrowed his requests to seek documents from January 24, 2016, through the present.

Defendant opposes the Motion because “(1) the requests seek disclosure of documents pertaining to non-party and/or unrelated entities that are not named in this action, (2) the documents sought are extremely overbroad in that they seek disclosures dating back to 2003 (despite this Court’s prior ruling that only those damages within the limitations period could potentially be actionable), and (3) the documents requested from Defendant, an individual, are protected by well-established authority against disclosure of tax returns and/or contents contained therein.”

“You” and “your” for Plaintiff’s requests are defined as follows:

“You” and “your” shall mean and refer to MITCHELL BINDER d/b/a KING BABY, and/or KING BABY, and any other company or business enterprise owned and/or operated by MITCHELL BINDER d/b/a KING BABY, and/or KING BABY, whether in a personal capacity, corporate capacity, LLC, including but not limited to retail outlets in Santa Monica, West Hollywood, Nashville, Las Vegas, Beijing or in third party retail outlets (e.g., Nordstrom and Macy’s) as well as on the internet. “You” and “your” shall also mean and refer to KING BABY, Inc. “You” and “your” shall also mean and refer to and to include all sales generated by sales agents, sales representatives, whether they are employees or independent contractors, and any entity generating sales.

Where no objection is asserted, a party is to produce documents in the “possession, custody, or control of that party . . . .” (Code Civ. Proc. § 2031.220.) Under federal law, “possession, custody, or control” simply means that Defendant must have actual access to the materials or else have legal authority to access the materials. (Blast Motion, Inc. v. Zepp Labs, Inc. (S.D. Cal. 2015) 2015 WL 12564315 at *2.) Thus, a party “ ‘is under an affirmative duty to seek that information reasonably available to [it] from [its] employees, agents, or others subject to [its] control.’ ” (Ibid.)

Here, the definition of “You” and “your” is proper to the extent it encompasses Binder, his dbas, and agents/employees under his control. However, the definition is overbroad to the extent it potentially reaches third-party corporate entities. The Court believes the proper method to obtain documents from such entities is to issue a business records subpoena. The Court substantively narrows all requests at issue by limiting the definition of “You” and “your” to Binder, Binder’s dbas, and agents/employees under Binder’s control.

The Court also substantively limits the scope of the requests to require documents relating only to the sale, purchase, or manufacturing of jewelry as the subject contract relates to only to a jewelry business. (Compl. ¶ 1.)

As to temporal scope, the subject requests are proper to the extent now narrowed to seek documents from January 24, 2016, through the present.

Next, Defendant need not provide a response as to request no. 3 which seeks schedule K-1 forms which contain information subject to the taxpayer privilege. (Brown v. Superior Court (1977) 71 Cal.App.3d 141, 143 [taxpayer privilege applies to documents which are an “integral part” of the tax return process].)

To the extent Defendant contends there are documents responsive to the remaining requests which need not be produced based on the taxpayer privilege, Defendant is to provide a privilege log.

In sum, the Motion to Compel Further Responses is granted in part. Specifically, the Motion is denied as to request no. 3, but is granted as to requests nos. 1, 4-6, and 8, subject to the substantive and temporal limitations provided herein. Further responses and documents are to be provided within thirty days. The Court respectfully declines to award sanctions.