Case Number: BC500431 Hearing Date: April 21, 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)

Moving Party: Plaintiff Curtis Scharfenaker (“plaintiff”)

Resp. Party: Defendant Charles Pigg, individually and dba Charles Group International (“defendant”)

PRELIMINARY COMMENTS:

As an initial matter, the Court notes that both parties fail to separate their exhibits with hard tabs, in violation of California Rules of Court, rule 3.1110(f). This made consideration of the motions needlessly difficult.

The Court has previously indicated to counsel that it is available for informal resolution of discovery issues. (See, e.g., the Court’s Trial Orders, ¶3, available in Dept. 34 and online at https://www.lasuperiorcourt.org/courtroomInformation/UI/resultpopup.aspx?value=LAM/34. The court does not understand why the parties chose instead to file these four motions instead of resolving these issues informally. Plaintiff claims to have spent more than $9,000 in attorney time preparing these four motions. Had the parties availed themselves of the court’s offer to resolve these matters informally, they could have saved thousands of dollars of attorney time, and countless hours of unnecessary law and motion practice.

BACKGROUND:

Plaintiff commenced this action on 2/5/13, against defendant, for: (1) breach of fiduciary duty; (2) breach of oral contract; (3) breach of the covenant of good faith and fair dealing; (4) unjust enrichment; (5) dissolution; and (6) accounting. Plaintiff filed a first amended complaint on 12/4/13 alleging the same six causes of action.

As early as May 2010, plaintiff began to perform services in connection with projects undertaken by defendant Pigg. (FAC ¶ 7.) Plaintiff also brought business opportunities to Pigg to be undertaken by Pigg and plaintiff. (Ibid.) Plaintiff worked with defendant until the latter part of 2012. (Ibid.) While plaintiff was paid some money for his work from May 2010 through the early part of 2012, those payments eventually stopped. (Id., ¶ 9.) Pigg then insisted that plaintiff would not be paid, even for work already performed, unless plaintiff executed a “consulting agreement” that would entitle plaintiff to only a fraction of what he was already owed and a smaller portion of future revenues. (Ibid.) Plaintiff did not execute this agreement or ever agree to a different compensation structure. (Ibid.) Pigg has ignored plaintiff’s demands for appropriate payment. (Id., ¶ 10.)

ANALYSIS:
Plaintiff seeks to compel further responses to the first sets of requests for production (numbers 1, 7, 8, and 11), form interrogatories (numbers 50.1, 50.2, 50.3, 50.4, 50.5, and 50.6), special interrogatories (numbers 2, 3, and 9), and requests for admissions (numbers 3, 5, 7, 8, 10, 11, 12, and 16).

Defendant served his initial responses to the subject discovery on 1/24/14. (Shenkman Decl., ¶ 3.) It is not clear if the instant motions were timely served because plaintiff does not provide sufficient proof of service of the instant motions. The motions include proofs of service stating that defense counsel was served with a “MOTION TO COMPEL” on 3/10/14. This is not sufficient because there are four motions to compel further answers. It is unclear which of the instant motions was served on defendant, or if some other motion to compel was served. Moreover, defendant provides evidence that the motions were not served by mail, and that plaintiff instead improperly served them by e-mail. (See Sawyer Decl., ¶¶ 25-26, Exhs. 12-13.) Therefore, plaintiff fails to establish that he timely served any of the subject motions. The motions may be denied for this reason alone.

It is also unclear whether the substantive issues are still in dispute. Defense counsel declares that he served supplemental copies of the subject written discovery on 4/7/14. (See Sawyer Decl., ¶ 22, Exh. 17.) Defense counsel also expresses a willingness to serve responsive documents subject to a protective order. (See id., ¶¶ 19-21.) Neither party provides these supplemental responses, and it is therefore unclear if they are inadequate. There is no showing that the parties met and conferred as to these supplemental responses. To the extent that plaintiff believes further supplemental responses are necessary, plaintiff should, after attempting to resolve the issues informally, file a timely motion to compel further responses to the discovery.

The Court will order the parties to meet and confer – in person – concerning the adequacy of the supplemental responses, prior to the Court calling this for hearing on April 21, 2014. If there are still issues in dispute, the court will then hear from both counsel.