Case Number: BC509381    Hearing Date: September 09, 2014    Dept: 34

SUBJECT:
(1) Motion to compel further responses to requests for production (set one);
(2) Motion to compel further responses to form interrogatories (set one);
(3) Motion to compel further responses to special interrogatories (set one);
(4) Motion to compel further responses to requests for admissions (set one);
(5) Motion to compel responses to requests for production (set two)

Moving Party: Plaintiff Hollywood Entertainment Group LLC (“plaintiff”)

Resp. Party: Defendant Matthew Blakely (“defendant”)

Plaintiff’s four motions to compel further responses to the first set of written discovery and plaintiff’s motion to compel initial responses to the second set of requests for production are GRANTED in their entirety.

The Court imposes monetary sanctions against defendant Matthew Blakely and his attorney of record, James A. Bryant II, in the requested amount of $10,120.00.

BACKGROUND:

Plaintiff commenced this action on 5/17/13 against defendants for: (1) breach of oral contract; (2) breach of implied warranty; and (3) money had and received. Plaintiff alleges that in February 2013, prospective customers expressed an interest in obtaining tickets for an event. (Compl., ¶ 6.) As a result, plaintiff entered into an oral contract with defendants whereby defendants agreed to sell valid tickets to the event at the aggregate price of $89,500.00. (Ibid.) Plaintiff thereafter paid defendants $89,500.00 and Blakely delivered the tickets to plaintiff. (Id., ¶ 7.) Plaintiff then delivered the tickets to the customers; however, after the event, plaintiff learned that the customers were denied admission to the event because the tickets were deemed invalid. (Id., ¶ 8.) Plaintiff was therefore required to refund to the customers the amounts they paid for the tickets. (Ibid.) Defendants failed and refused to refund plaintiff’s money, despite plaintiff’s demands. (Id., ¶¶ 9-10.)

PRELIMINARY COMMENTS:

On March 4, 2014, the Court denied defendant’s motion to quash service of the summons and complaint. At that time, the Court stated, “The court simply does not believe the sparse and unsupported declaration of Blakely.” Today, the Court is granting plaintiff’s motions to compel in their entirety and finds defendant Blakely’s opposition to be almost frivolous. The Court sincerely hopes that this is not indicative of a pattern on defendant’s part.

ANALYSIS:

Motions to compel further responses

Requests for Production

Plaintiff argues that the subject requests are directly relevant because they seek documents pertaining to communications regarding tickets to an event at Staples Center on 2/10/13; the tickets transferred from Blakely to plaintiff; transactions with persons other than plaintiff involving tickets for the event; and the source from which Blakely obtained the tickets.

Defendant responded by objecting that the request was uncertain and ambiguous as to the undefined terms “entertainment event” and “tickets.” Defendant also raised other pro-forma objections. In the opposition to this motion, defendant focuses on the objection that the term “entertainment event” is unclear. This argument is not well taken. Though defendant is correct that the requests do not identify a particular event, the requests seek documents related to “an entertainment event at the Staples Center held on February 10, 2013.” This is sufficient to inform defendant as to the event because it provides the specific date and location of the event at issue. Defendant makes no showing that there were multiple events at the Staples Center on that date. The Court finds defendant’s objection to be borderline frivolous.

In the opposition, defendant asserts that on 7/18/14 he provided responses to discovery propounded on defendant Blakely Legal Group. (See Bryant Decl., ¶¶ 12-13, Exh. D.) These responses included responses to requests for production that are nearly identical to those at issue in this motion, except that the term “event” is defined. (See id., Exh. D [RFP numbers 5, 8, 10, 12, 13, 14, 15.) Blakely Legal Group’s responses include substantive responses in addition to objections. (See ibid.) Though these responses may address some of plaintiff’s concerns, the responses are from Blakely Legal Group, and not Blakely. Blakely is an attorney, and certainly both he and his counsel know the difference between and individual and corporate defendant. The Blakely Legal Group’s responses are not responsive to the requests propounded on Blakely. Moreover, defendant fails to provide a proof of service or verification for the responses. (See id., Exh. D.)

Plaintiff’s motion to compel further responses and responsive documents for plaintiff’s first set of requests for production is GRANTED.

Form Interrogatories

Plaintiff seeks to compel initial responses to form interrogatory numbers 2.1, 2.2, 2.3, 2.5, 2.6, 2.7, 2.8, 2.9, 2.10, and 12.4.

Plaintiff propounded the form interrogatories on defendant on 4/8/14. (See Schupe Decl., ¶ 4, Exh. A.) Though defendant served responses to the form interrogatories, the responses did not address numbers 2.1, 2.2, 2.3, 2.5, 2.6, 2.7, 2.8, 2.9, 2.10, or 12.4. (See id., Exh. D.) In the opposition, defendant asserts that he did not provide responses to numbers 2.1 through 2.10 because they would not reasonably lead to admissible evidence and because they would invade defendant’s privacy. (See Opp., p. 7.) To the extent that defendant believes that the interrogatories seek irrelevant or improper information, defendant should have responded with timely objections stating as much. Defendant’s failure to do so waived any such objections. Further, though defendant asserts in his opposition that a response to number 12.4 was subsequently served, he appears to provide no evidence to support this assertion. (See Opp., p. 1:16-17 [the cited evidence does not support this assertion].) Therefore, defendant must provide verified responses, without objections, to these interrogatories.

Plaintiff seeks to compel further responses to form interrogatory numbers 2.11, 4.1, 12.1, 12.2, and 17.1.

Interrogatory numbers 2.11, 4.1, 12.1, and 12.2 seek information pertaining to the alleged “incident,” which is defined as “the acquisition, purchase or sale of tickets by [defendant] to an entertainment event held on February 10, 2013 at the Staples Center.” (See Schupe Decl., Exh. A, p. 2.) Defendant responded with objections that the term “incident” because it did not specify the event at issue. To the extent that defendant argues that “incident” is not sufficiently described, or that the responses propounded by Blakely Legal Group are sufficient, these arguments are rejected for the reasons stated above. Therefore, defendant must provide further responses to these interrogatories.

Form interrogatory number 17.1 seeks information pertaining to defendant’s responses to requests for admissions that were not unqualified admissions. Defendant’s response only discussed RFA numbers 4 and 10, despite the fact that the responses to RFA numbers 2, 3, 5-9, 12, and 13 also did not contain unqualified admissions. In the opposition, defendant argues that his lack of a response as to these RFAs was because of the inadequate definition of “entertainment event.” (See Opp., p. 5.) At most, this explains defendant’s objections to the RFAs. It does not explain why defendant failed to respond to interrogatory number 17.1. Moreover, defendant’s argument that the RFAs were vague and ambiguous is rejected for reasons stated below.

Plaintiff’s motion to compel initial and further responses to form interrogatories is GRANTED.

Special Interrogatories

Plaintiff seeks to compel further responses to special interrogatory numbers 1 and 2, which ask defendant to identify all persons from whom defendant acquired tickets and to whom defendant sold tickets to “an event held at the Staples Center on February 10, 2013.” Defendant once again objected to the term “entertainment event” and responded that it did not have sufficient information to respond to the requests. In the opposition, defendant raises the same arguments raised in the motions re RFPs and form interrogatories – i.e., that the term “entertainment event” is not sufficiently defined and responses have been provided by Blakely Legal Group. The Court rejects these arguments for the reasons stated above.

Plaintiff’s motion to compel further responses to special interrogatories is GRANTED.

Requests for Admissions

Plaintiff seeks to compel further responses to RFA numbers 2, 3, 5-9, 12, and 13. Once again, the primary dispute concerns the definition of “entertainment event.” To the extent that defendant is arguing that the responses from Blakely Legal Group to its RFAs are sufficient, this argument is rejected for the reasons discussed above.

RFA number 2 asks defendant to admit that in February 2013 he agreed to sell to plaintiff multiple tickets for admission to an entertainment event for $89,500.00. Number 3 asks defendant to admit that, when he sold the tickets, he knew that plaintiff intended to re-sell them. Request number 5 asks defendant to admit that Blakely Legal Group received at least $89,500.00 from plaintiff in February 2013. Request number 6 asks defendant to admit that Blakely Legal Group received at least $64,500.00 from plaintiff via wire transfers in February 2013. Request number 7 asks defendant to admit that he instructed plaintiff to pay funds to Darrick Collins in February 2013. Request number 8 asks defendant to admit that he provided tickets to “an entertainment event at the Staples Center held on February 10, 2013,” and request number 13 asks defendant to admit that he knew these identified tickets were invalid. Request number 9 asks defendant to admit that plaintiff subsequently informed defendant that the tickets were invalid. Request number 12 asks defendant to admit that plaintiff was damaged in the sum of $89,500.00. Defendant raised several objections, including that the requests were vague and ambiguous, and provided the substantive response that he was unable to respond to the request.

Defendant’s objections are not well taken. For RFA numbers 2 and 3, all that it asked is for defendant to admit that he sold tickets to some event in exchange for $89,500.00 and that he knew the tickets sold would be re-sold. There is no showing that defendant made multiple sales to plaintiff for that amount on that date; if defendant sold tickets to plaintiff for $89,500.00, defendant presumably is aware of what the tickets were for, and if defendant did not sell any tickets to plaintiff on that date, the reason for the tickets does not matter. If defendant did sell the tickets in that specific amount, he also is presumably aware of whether he knew the tickets would be re-sold. Similarly, with regard to number 9, defendant should have knowledge as to whether plaintiff informed him that the tickets sold for $89,500.00 were invalid. RFA numbers 5-7 and 12 do not include the term “entertainment event,” and instead seek admissions or denials as to the funds paid by plaintiff. Defendant should be able to admit or deny these facts regardless of the definition of the entertainment event. As for RFA numbers 8 and 13, the requests sufficiently describes the event as an event held at the Staples Center on 2/10/13.

Accordingly, plaintiff’s motion to compel further responses to requests for admissions is GRANTED.

Sanctions

The Court “shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response . . . unless 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., §§ 2030.290(c), 2030.300(d), 2031.310(h), 2033.290(d).)

Plaintiff seeks monetary sanctions against defendant and his counsel, James A. Bryant II, in the following amounts:
· $2,830.00 [motion re RFPs];
· $2,148.00 [motion re form interrogatories];
· $1,838.00 [motion re special interrogatories; and
· $1,683.00 [motion re RFAs].)

In his opposition, Defendant requests sanctions of roughly the same magnitude:
· $2,400.00 [motion re RFPs];
· $2,400.00 [motion re form interrogatories];
· $2,400.00 [motion re special interrogatories]; and
· $3,200.00 [motion re RFAs].)

Actually, these are the amounts the defendant requests in his declaration. In each of his four Oppositions, defendant requests $2,700 in sanctions. (See Opposition re RFP, p. 8:20; Opposition re Special Interrogatories, p. 8:3; Opposition re Requests for Admissions, p. 8:7; Opposition re Form Interrogatories, p. 8:3.) This is interesting for two reasons: first, the Court finds it hard to believe that defendant spent exactly the same amount of time on each of his four oppositions. Second, none of the four declarations support $2,700 in sanctions for any of the oppositions. However, the Court need not reach the merits of defendant’s sanction request, because defendant is not the prevailing party.

Plaintiff is the prevailing party, and as such plaintiff is entitled to sanctions from defendant. In other circumstances, the Court might find that the lodestar requested by plaintiff was somewhat excessive. However, since defendant has stated under penalty of perjury that the amount of time he spent on the opposition was reasonable and necessary – and since this amount is actually greater than the amount requested by plaintiff – the Court will award the requested amount.

Accordingly, the Court imposes sanctions against defendant Matthew Blakely and his counsel of record, James A. Bryant II, jointly and severally, in the total amount of $8,499.00.

Motion to Compel Initial Responses to Requests for Production

Plaintiff seeks to compel initial responses to plaintiff’s second set for requests for production. California Code of Civil Procedure requires a response from the party to whom requests are propounded within 30 days after service of the requests. (Code Civ. Proc., § 2031.260(a).) If a party fails to serve timely responses, “[t]he party making the demand may move for an order compelling responses to the demand.” (Code Civ. Proc. § 2031.300(b).) By failing to respond, the offending party waives any objection to the requests. (Code Civ. Proc. § 2031.300(a).)

Plaintiff served its second set of requests for production by mail on 5/23/14. (See Schupe Decl., ¶ 3, Exh. A.) The responses were due on 6/27/14. (Id., ¶ 5.) Plaintiff’s counsel had not received objections or responses to the second set of RFPs as of 7/17/14. (Ibid.) This is sufficient to support the motion to compel initial responses to the second set of RFPs.

Defendant argues that he did not learn of the existence of the second set of RFPs until the filing of this motion because plaintiff did not engage in meet and confer efforts as to this discovery. (See id., pp. 3-4.) This ignores the fact that no meet and confer efforts are required for a motion to compel initial responses. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 404.) Defendant does not dispute that the requests were served on defense counsel on 5/23/14. (See Bryant Decl., ¶¶ 14-17 [stating only that defense counsel was not aware of the requests; no declaration that the requests were not properly served].) For the reasons discussed above, the Court rejects defendant’s assertion that responsive documents were produced in Blakely Legal Group’s responses to the first set of RFPs.

Accordingly, plaintiff’s motion to compel defendant’s initial responses to the second set of requests for production is GRANTED.

Plaintiff also seeks sanctions for the instant motion. “Except as provided in subdivision (d), the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to a demand for inspection, copying, testing, or sampling, unless 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., § 2031.300(c).)

In the notice of motion, plaintiff requests sanctions against defendant and his counsel of record in the total amount of $1,621.00. This amount is based on 2 hours to prepare this motion, plus 2.5 hours to prepare a reply and attend the hearing, all at an hourly rate of $310.00, plus 0.4 hours at a rate of $415.00. (See Schupe Decl., ¶ 6.)

Defendant stated that he incurred attorneys fees of $1,600 (according to his opposition; see Opposition, p. 5:8) or $2,000 (according to his declaration; see Bryant declaration, ¶ 18) in opposing this motion. For the reasons indicated above, the Court will award the sanctions requested by plaintiff.

Accordingly, the Court imposes sanctions against defendant Matthew Blakely and his attorney of record, James A. Bryant II, in the total amount of $1,621.00 for this motion.

Responses to be served, and sanctions to be paid, within 30 days.