Amerturk, Inc. vs. L. Ramondetta, et al		CASE NO. 112CV220168
DATE: 24 October 2014	TIME: 9:00	LINE NUMBER: 20

This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 23 October 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 24 October 2014, the following two motions were argued and submitted:

(1) Defendant Greg Carpenter (“Carpenter”)’s motion to compel Plaintiff Amerturk, Inc. (“Amerturk”)’s responses to request for production of documents (“RPD”), set two, numbers 3, 4 and 9, and for monetary sanctions; and

(2) Defendant and Cross-Complainant Lou Ramondetta (“Ramondetta”)’s motion to compel Plaintiff and Cross-Defendant  Amerturk, Inc. (“Amerturk”) and Cross-Defendant Harun Sevimli (“Sevimli”)’s further responses to form interrogatories (“FI”), set one, numbers 15.1 and 17.1, and for monetary sanctions.

Amerturk and Sevimli did not file formal opposition to the motions.[1]

1. Statement of Facts.

This case arises from a business asset purchase agreement between Plaintiff and Cross-Defendant Amerturk, Inc. and Defendant and Cross-Complainant Lou Ramondetta relating to the assets of Amerturk’s electronic recycling business. Haroun Sevimli is the President and owner of Amerturk. Ramondetta is the President and owner of Aleia Corp., which executed a promissory note benefiting Amerturk in connection with the purchase agreement. BTI Group, Inc. and Greg Carpenter brokered the purchase agreement between the parties.

The original Complaint filed by Amerturk on 6 March 2012 only mentions Ramondetta as a named defendant, alleging breach of contract and account stated causes of action. On 12 July 2012, Ramondetta, “for himself alone and for no other defendant,” filed a general denial to the Compliant.

At the same time, Ramondetta also filed a Cross-Complaint against Amerturk and Sevimli (collectively “cross-defendants”), alleging fraud, rescission, and other causes of action. On 24 August 2012, Amerturk filed a general denial to Ramondetta’s Cross-Compliant, while at the same time filing its own Cross-Complaint against Ramondetta, alleging breach of contract, fraud, and other causes of action. On 28 August 2012, Sevimli filed a general denial to Ramondetta’s Cross-Complaint.

On 5 March 2013, Amerturk obtained leave of court (stipulated) to file a first amended complaint (“FAC”). The proposed FAC combines the causes of action in the original Complaint and Amerturk’s Cross-Complaint, thus withdrawing the Cross-Complaint. It also for the first time brought in additional defendants, namely, Alia Corp., BTI Group, Inc., and Greg Carpenter. Without formally filing the FAC, however, Amerturk filed an ex parte request seeking another leave of court to file a second amended complaint (“SAC”), which was granted on 20 March 2013. The SAC names Ramondetta, Aleia Corp., BTI Group, Inc. and Carpenter as defendants; and it includes additional causes of action against the last two defendants. At this time, Ramondetta and Aleia Corp. jointly filed a general denial to the SAC on 26 April 2013, as did BTI Group, Inc. and Carpenter on 8 May 2013.

Based on the currently operative documents (Amerturk’s SAC and Ramondetta’s Cross-Complaint), Ramondetta is Defendant and Cross-Complainant, while Aleia Corp. is Defendant only. Both are represented by the same counsel (Craig A. Hansen). BTI Group, Inc. and Carpenter are both Defendants, and are represented by the same counsel (Gordon J. Finwall). Amerturk is Plaintiff and Cross-Defendant, while Sevimli is only Cross-Defendant. Both Amerturk and Sevimli were represented by the same counsel, John K. Crowley, who withdrew from the case by court order of 2 September 2014. There is no substitution of attorney filed so far on behalf of either Amerturk or Sevimli.

1. Discovery Dispute.

On 28 May 2014, Carpenter served his RPD, set two, on Amerturk by US mail. In its verified responses served on 3 July 2014, Amerturk objected to RPD no. 3 as vague and ambiguous, and without waiving said objections, responded by promising to comply with the request by producing all responsive documents in its possession, custody, or control. It responded to RPD nos. 4 and 9, without objection, by promising to comply with the requests by producing all responsive documents in its possession, custody, or control.

Counsel for Carpenter followed-up with Amerturk on more than five separate occasions requesting the documents to be produced by 16 July 2014, in advance of Sevimli’s deposition that was set for 21 July 2014. On 16 August 2014, Amerturk promised to produce the documents by 18 July 2014, while indicating that the deposition needed to be scheduled for another day. Having received no production of documents as promised, Carpenter filed a motion to compel RPD[2] and for monetary sanctions against Amerturk on 21 August 2014. Carpenter cites CCP §2031.320(a) and Standon Co., Inc. v. Superior Court (Kim) (1990) 225 Cal. App. 3d 898 in support of its motion to compel compliance, and CCP 2031.320 (b) in support of its request for monetary sanctions.

With reference to Ramondetta’s motion to compel further responses to FI and for monetary sanction, exhibits attached to Declaration of Craig A. Hansen (“Hansen Decl.”) show that Amerturk and Sevimli separately responded to requests for admission (“RFA”) and form interrogatories (“FI”) individually propounded to them by Aleia Corp.[3] Counsel for Ramondetta and Aleia Corp. followed up by writing a letter to Amerturk and Sevimli’s counsel on 4 August 2014, seeking supplemental responses to some parts of the interrogatories. At the time, responding parties’ counsel was in the process of withdrawing (motion to withdraw was filed on 28 July 2014, and the hearing was scheduled on 2 September 2014), and granted an extension of time for discovery motion until 23 September 2014. On 23 September 2014, having received no further responses from either Amerturk or Sevimli, Ramondetta filed a motion to compel further responses to FI, set one, nos. 15.1 and 17.1, and for monetary sanctions against both parties.

III.     Analysis.

1. Carpenter’s Motion for Order Compelling Compliance with Demand and for Monetary Sanctions.
2. Motion for Order Compelling Compliance with Demand.

If a responding party agrees to comply with a request for production of documents but then fails to do so, compliance may be compelled under Code of Civil Procedure section 2031.320.  (See Code Civ. Proc., § 2031.320 subd. (a); see also Weil & Brown et al., Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2014) §§ 8:1503 and 8:1508, p. 8H-50.)  Unlike a motion to compel further responses to requests for production of documents made pursuant to Code of Civil Procedure section 2031.310, a motion to compel compliance does not require the moving party to set forth specific facts showing good cause justifying the discovery sought by the inspection demand.  (See Standon Co., Inc. v. Super. Ct. (1990) 225 Cal.App.3d 898, 903.)  “All that has to be shown is the responding party’s failure to comply as agreed.”  (See Weil & Brown et al., Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2014) § 8:1508.1, p. 8H-50.)

Here, with reference to Carpenter’s RPD nos. 3, 4, and 9, Amerturk clearly made statements of compliance to produce all responsive documents in its possession, custody, or control. Initially, the responses were due by 5 July 2014 (CCP §§2031.260 (a) and 1013 (a)). Carpenter granted an extension until 16 July 2014, and then until 18 July 2014. Despite Carpenter’s repeated attempts seeking compliance, Amerturk failed to produce the documents as promised. Thus, an order compelling compliance is proper in this case.

The motion of Carpenter for order compelling compliance with RPD nos. 3,4, and 9 is GRANTED.  Amerturk shall respond to the discovery without objection[4] and within 20 days of the date of the filing of this Order.

1. Sanctions.

Carpenter makes a request for monetary sanctions against Amerturk by citing CCP §2031.320 (b), which requires the Court to impose such sanctions “against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with a demand, ….” [emphasis added]

Here, Amerturk did not “unsuccessfully make or oppose” the motion to compel compliance with the demand. Thus, Carpenter’s reliance on CCP §2031.320 (b) is unavailing. The proper authority for monetary sanctions in this case would be Rule of Court 3.1348 (a), which allows the court to award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion has been filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.

The Court suggests the proper procedure would be to put the following language in the notice of the motion:

“If you wish to oppose the relief requested in this motion, you must timely file a written reply in compliance with all Court rules. If you fail to do so, the court may treat your failure to respond as a waiver of your right to oppose this motion and may grant the relief requested pursuant to Rule of Court 3.1348(a) which states: “The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.”

Carpernter’s request for monetary sanction is DENIED.

2. Ramondetta’s Motion to Compel Further Responses and for Monetary Sanctions
3. Motion to Compel Further Responses.

As a preliminary matter of motion practice, a moving party must give written notice of the motion, stating when the motion will be heard, what grounds upon which it will be made, and the papers if any, upon which it is based. (Code Civ. Proc. §§ 1010, 1005.) Furthermore, “[a] motion must: (1)  Identify the party or parties bringing the motion; (2)  Name the parties to whom it is addressed; (3)  Briefly state the basis for the motion and the relief sought; and (4)  If a pleading is challenged, state the specific portion challenged.” (Rule of Court 3.1112 (d).) [emphasis added]

Here, the notice of motion to compel further responses and for monetary sanction identifies, among other things, “Defendant and Cross-Complainant LOU RAMONDETTA (“RAMONDETTA”)”[5] as the party bringing the motion. The titles of the memorandum of points and authorities, separate statement, and declaration filed in support of the motion identify Ramondetta as the moving party. This fact is repeated throughout the moving papers including, but not limited to, the conclusion of the memorandum of points and authorities where Ramondetta seeks relief for him only.[6] The only place where Aleia Corp. is mentioned as a moving party is in the introduction part of the memorandum of points and authorities, where it states “Cross-Complainant Lou Ramondetta (“Ramondeta”) and Defendant Aleia Corp. (“Aleia”) bring this motion against cross-defendants Harun Sevimli (“Sevimli”) and Amerturk, Inc. (“Amerturk”) to compel their further responses to Form Interrogatory Nos. 15.1 and 17.1.”[7]

On the other hand, Code Civ. Proc. §2030.300 (a) provides, “[o]n receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (1) An answer to a particular interrogatory is evasive or incomplete. (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate. (3) An objection to an interrogatory is without merit or too general.” [emphasis added]

As discussed above, the notice of motion and all the other motion documents, except on one occasion, identify Ramondetta as the party bringing the motion. The exhibits attached to the declaration filed in support of the motion do not include a copy of the discovery requests served on Amerturk and Sevimli. Thus the Court is unable to verify the identity of the propounding party by referring to the descriptions that might have been provided in those documents. Amerturk and Sevimli’s responses to the discovery requests are, however, included with the declaration as Exhibits A, B, C, and D. All four responsive documents identify Aleia Corp. as the only propounding party.

There is no argument or explanation provided in the moving papers regarding the authority under which the Court may compel further responses at the request of a party who did not propound the discovery requests in the first place. Instead, Ramondetta relies on Code Civ. Proc. §2030.300, which clearly allows “the propounding party” to move for an order compelling further responses. “When statutory language is thus clear and unambiguous there is no need for construction, and courts should not indulge in it.”[8]

Therefore, as the notice of motion (and to the most part, all other moving papers) identifies Ramondetta, a non-propounding party, but not Aleia Corp, the propounding party, as the moving party, the entire motion becomes noncompliant with California rules and statutes. Furthermore, under established case law, a court may reject a motion because the notice is defective.[9] In the instant case, the Court finds the notice to be defective and declines to issue an order compelling further responses.

1. Sanctions.

Ramondetta makes a request for monetary sanction. Since Ramondetta was not successful in the instant motion, the Court declines to award monetary sanction on this matter.

1. Order.

The motion of Defendant Greg Carpenter for order compelling compliance with RPD nos. 3,4, and 9 is GRANTED.  Plaintiff Amerturk, Inc. shall respond to the discovery without objection and within 20 days of the date of the filing of this Order.

Carpenter’s request for monetary sanction is DENIED.

Defendant and Cross-Complainant Lou Ramondetta’s motion to compel further responses is DENIED.

Ramondetta’s request for monetary sanction is DENIED.

 

 

________________­­­____________ DATED:

_________________________­­­________________________ HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara

 

[1] “The failure to file a written opposition or to appear at a hearing or the voluntary provision of discovery shall not be deemed an admission that the motion was proper or that sanctions should be awarded.”  Rule of Court 3.1348(b).

[2] Although Carpenter refers to his motion as “motion for an order compelling production of documents,” the discussions and authorities cited in the moving papers clearly show it is a “motion for order compelling compliance” under CCP §2031.320 (a). The Court will treat it as such.

[3] Hansen Decl., Exhs. A, B, C, and D.

[4] In its statement of compliance, Amerturk objected to RPD no.3 as vague and ambiguous. But it has not filed an opposition to this motion explaining or justifying the objections, nor has it requested for a protective order. “Once good cause was shown, the burden shifted to [the responding party] to justify his objection.” Kirkland v. Superior Court, 95 Cal. App. 4th 92, 98 (Cal. App. 2d Dist. 2002) ( citing Coy v. Superior Court (1962) 58 Cal. 2d 210, 220-221 [23 Cal. Rptr. 393, 373 P.2d 457, 9 A.L.R.3d 678].)

[5] Notice of Motion to Compel Further Responses to Form Interrogatories and Request for Production of Documents; and for Award of Monetary Sanction, p. 1.

[6] “For all of the above reasons, defendant and Cross Complainant Lou Ramondetta respectfully requests that the court enter an Order compelling Plaintiff and Cross Defendant AMERTURK, INC. and Cross-Defendant HARUN SEVIMLI to provide further responses […]; and that Cross Defendants pay a monetary sanction to RAMONDETTA in the amount of $3,560.” (Memo of Points & Auth., pp. 4-5.)

[7] Memo of Points & Auth., p. 1.

[8] Standon Co. v. Superior Court, 225 Cal. App. 3d 898, 904 (Cal. App. 4th Dist. 1990) (citing Solberg v. Superior Court (1977) 19 Cal.3d 182, 198.)

[9] Luri v. Greenwald (2003) 107 Cal. App.4^th 1119, 1126-1127. See also People v. American Surety Ins. Co. (1999) 75 Cal.App.4^th 719, 726.