2013-00151849-CU-BC
2Smart Entertainment, Inc. vs. Deon Taylor Enterprises, LLC
Nature of Proceeding: Hearing on Demurrer
Filed By: Brettler, Andrew B.
Defendant No Brainer, Inc.’s Demurrer to the Fifth Cause of action of the First
Amended Complaint is SUSTAINED, with leave to amend.
The notice of motion does not provide notice of the Court’s tentative ruling system as
required by with C.R.C., Rule 3.1308 and Local Rule 1.06(D). Local Rules for the
Sacramento Superior Court are available on the Court’s website at
ordered to notify opposing party immediately of the tentative ruling system and to be
available at the hearing, in person or by telephone, in the event opposing party
appears without following the procedures set forth in Local Rule 1.06(B).
Plaintiff 2Smart Entertainment, Inc.’s First Amended Complaint alleges five causes of
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action against four named defendants. Only the 5 cause of action for negligent
misrepresentation is alleged against moving party defendant.
Allegations of negligent misrepresentation or fraud must be alleged with particularity;
necessitating pleading facts which “show how, when, where, to whom, and by what
means the representations were tendered”. Small v. Fritz Companies, Inc. (2003) 30
Cal. 4th 167, 184; Lazar v. Superior Court (1996) 12 Cal. 4th 631, 645.
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Defendant demurs on the grounds that the 5 cause of action fails to set forth facts
sufficient to constitute a cause of action, and the facts alleged are not with the required
specificity.
The Court concurs that the allegations that No Brainer would involve plaintiff in
business transactions is insufficient to state a cause of action.
Plaintiff shall file and serve its Second Amended Complaint not later than Friday, May
16, 2014. The responsive pleading shall be due filed and served 10 days later (15
days if service is by mail).
The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.
Item 27 2013-00151849-CU-BC
2Smart Entertainment, Inc. vs. Deon Taylor Enterprises, LLC
Nature of Proceeding: Motion to Compel 1. Form Interrogatories 2. Compliance
Filed By: Brettler, Andrew B.
Defendant No Brainer, Inc.’s Motion to Compel Verified Responses to Form
Interrogatories and Production of Documents is GRANTED, as set forth below.
Defendant’s request for imposition of sanctions is GRANTED, in part. The plaintiff’s
request for imposition of sanctions is DENIED.
The notice of motion does not provide notice of the Court’s tentative ruling system as
required by with C.R.C., Rule 3.1308 and Local Rule 1.06(D). Local Rules for the
Sacramento Superior Court are available on the Court’s website at
ordered to notify opposing party immediately of the tentative ruling system and to be
available at the hearing, in person or by telephone, in the event opposing party
appears without following the procedures set forth in Local Rule 1.06(B).
Defendant served plaintiff with written discovery on Feb. 10, 2014. Responses were
due 30 days from the date of service. On March 17, 2014, 2Smart served unverified
written responses to the form interrogatories and a written response to the Request for
Production of Documents, but failed to provide the documents it had agreed to
produce.
Unverified responses “are tantamount to no responses at all.” Appleton v. Superior
Court (1988) 206 Cal. App. 3d 632, 636. “A separate statement is not required when
no response has been provided to the request for discovery.” C.R.C., Rule 3.1345(b).
Although in opposition, plaintiff asserts that the motion is improper as defendant did
not meet and confer or file a separate statement, as the answers to the interrogatories
were unverified, neither meet and confer nor a separate statement was required.
Plaintiff now provides the belated verification form for the form interrogatories.
Although the motion to compel verifications is now MOOT, sanctions are imposed on
plaintiff for requiring the defendant to make a motion to compel prior to providing the
required verification form.
Defendant’s motion to compel plaintiff’s compliance with its agreement to produce
documents, after plaintiff failed to permit the inspection, copying, testing, or sampling
in accordance with that party’s statement of compliance, is GRANTED. C.C.P., sec.
2031.320(a). A separate statement pursuant to C.R.C., Rule 3.1345 is not required,
as plaintiff has already agreed to produce the documents, and no further response is
requested.
However, moving party was informed in a telephonic meet and confer on Wed., April 2,
2014, that responding party was having “computer problems” and intended to produce
the documents in hard copy, after he spoke to his client about a realistic deadline. On
Friday, April 4, plaintiff’s counsel emailed moving party that he had been unable to
contact his client who travelled frequently. This motion was filed the following working
day, Monday, April 7, 2014.
The Discovery Act is intended to be self-executing. The Court therefore orders
counsel to meet and confer further to determine a reasonable date by which the
documents will be produced, production to be not later than Friday, June 6, 2014.
The Court declines to impose sanctions for this motion, as it finds that the one subject
to the sanction acted with substantial justification or that other circumstances make the
imposition of the sanction unjust. Code Civ Proc § 2031.320(b).
Sanctions in the amount of $1,722.50, representing 3.5 hours of attorney’s fees at
$475/hour, together with the filing fee of $60 shall be paid to counsel for moving party
by plaintiff 2Smart not later than Friday, June 6, 2014. Counsel are advised that the
Court encourages telephone appearances, and that additional sanctions will not be
awarded for travel time. Local Rule 2.04(A) (as amended 1/1/2013) If sanctions are
not paid by the due date, prevailing party may submit a formal order for enforcement
purposes. Newland v Superior Court (1995) 40 Cal.App.4th 608, 610.
The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.
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