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Per the Los Angeles court records defendants are represented by attorney John Fuchs of the Fuchs Law Group who is involved in the sanctions being ordered by the court.

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Case Number: BC661332 Hearing Date: April 02, 2018 Dept: 32

EFD usa, inc., et al.,

Plaintiffs,

v.

brand pro film and digital, inc., et al.,

Defendant.

Case No.: BC661332

Hearing Date: April 2, 2018

[TENTATIVE] order RE:

plaintiff’s motion to compel further responses and production of documents from defendants greg bisel, technijian, inc., maxpro leasing llc, and akt enterprises, llc s

BACKGROUND

Plaintiffs EFD USA, Inc. and its principal, Georgina Teran, (collectively, “Plaintiffs”) brought suit on May 15, 2017, against Defendants Band Pro Film and Digital, Inc. (“Band Pro”); Direct Video Warehouse, Inc. (“DVWI”); MaxPro Leasing, LLC (“MaxPro”); AKT Enterprises, LLC (“AKT”); Technijian, Inc. (“Technijian”); Brandon Brooks (“Brooks”); Greg Bisel (“Bisel”); and Amnon Band (“Band”). Plaintiffs are in the business of leasing and, at the end of the lease, purchasing film equipment, and providing such equipment to film and television production companies in Latin America. Defendants were brokers who helped Plaintiffs obtain financing for these leases, or were the equipment suppliers. Plaintiffs allege they uncovered a systemic effort and conspiracy on the part of the Defendants to overcharge Plaintiffs for their services (through false invoices, and fake deposit and down payment requirements). Pursuant to the operative first amended complaint, Plaintiffs allege causes of action for:

Fraud (All Defendants)

Negligent Misrepresentation (All Defendants)

Aiding and Abetting Fraud (All Defendants)

Violations of Bus. & Prof. Code §§ 17200 et seq. (All Defendants)

Breach of Fiduciary Duty (All Defendants)

Breach of Implied Contract (All Defendants)

Breach of Implied Contract (Band Pro and DVWI)

Money Had and Received (All Defendants)

Conversion (Bisel, Technijian, AKT, and MaxPro)

Civil Extortion (Band and Band Pro)

Defamation Per Se (Band and Band Pro)

Plaintiffs requests an order compelling further responses to Requests for Production which were served on Bisel, Technijian, and MaxPro, (collectively, the “Bisel Defendants”) on November 9, 2017.

EVIDENTIARY OBJECTIONS

The Court rules on Plaintiffs’ evidentiary objections to the Declaration of Greg Bisel and Attached Exhibits as follows:

Sustained.

Overruled.

Overruled.

Overruled.

Overruled.

Sustained.

Overruled.

Sustained.

Sustained.

Sustained.

Overruled.

Overruled.

Sustained.

Sustained.

Sustained.

Sustained.

Overruled.

Sustained.

Overruled.

Overruled.

Sustained.

Sustained.

Sustained.

Sustained.

Sustained.

Further, these objections are unnecessary because the Court, when reviewing the evidence is presumed to ignore material it knows is irrelevant, or inadmissible. (In re Marriage of Davenport (2011) 194 Cal. App. 4th 1507, 1526.)

DISCUSSION

A. Meet and Confer

A motion to compel further responses “shall be accompanied by a meet and confer declaration under Section 2016.040.” (CCP § 2030.300(b).) Plaintiffs’ counsel sent a meet and confer letter to the Bisel Defendants regarding deficiencies to the Bisel Defendant’s Responses and objections to Plaintiffs’ First Set of Requests for Production of Documents on January 10, 2018. (Decl. Exh. 9.) Plaintiffs’ counsel noted that the responses consisted of legally insufficient boilerplate objections in violation of CCP §2031.240(b)(2) and that Bisel Defendants agreed to produce only lease agreements between EFD and third parties, along with the Bisel Defendant’s communications with EFD from 2014 to the present. (Ibid.) The parties met and conferred on January 31, 2018. (Decl. ¶5.) Further correspondence regarding the substantive content of the meet and confer was sent on February 1, 2018 and February 5, 2018 but the parties were unable to resolve this dispute informally. (Decl. Exh. 10 & 11.) The Court finds Plaintiff’s meet and confer efforts were sufficient to comply with CCP §2016.040.

B. Motion to Compel Further Responses to Request for Production

The moving party on a motion to compel further responses to requests for production of documents (RFPs) must submit “specific facts showing good cause justifying the discovery sought by the inspection demand.” (CCP §2031.310(b)(1).) If the moving party has shown good cause for the RFPs, the burden is on the objecting party to justify the objections. (Kirkland v. Sup.Ct (2002) 95 Cal. App.4th 92, 98.)

1. RFPs 1,2, 12, 36-39, 45, and 50-52 for Technijian, MaxPro and AKT; RFPs 1, 2, 10, 34-37, 41 and 46-48 for Bisel

These requests ask for documents relating to the Bisel Defendant’s communications with lenders and vendors about the transactions with EFD; communications with Plaintiffs after the execution of each lease agreement; non-lease communications revealing the nature of the advisory relationship between the Bisel Defendants and Plaintiffs; the duties, responsibilities and roles of the Bisel Defendants; and purchase orders, invoices, shipping records, receipts and records of payment in connection with the allegedly misrepresented transactions with third parties and with other Defendants that involved Plaintiffs.

The essential elements of a fraud claim is a (1) misrepresentation; (2) knowledge of falsity; (3) intent to defraud; (4) justifiable reliance; and (5) resulting damage. (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184.) Plaintiffs allege this as their first cause of action (FAC ¶69-80.) Plaintiffs allege that Bank’s companies had been receiving “overages” from deals for which the Bisel Defendants were brokers. (FAC ¶53-55.) Plaintiffs allege that the Bisel Defendants provided false information to lessors on EFD’s behalf to produce overages. (FAC ¶75.) Plaintiffs allege that the Bisel Defendants held themselves out to be advisors of Plaintiffs. (FAC ¶ 25.) Plaintiff alleges the agreements at issue were brokered by the Bisel Defendants from 2012 to 2015. (FAC ¶ 37.) As such, Plaintiffs are allowed to conduct discovery into these matters and have sufficiently shown good cause for the RFPs requested.

First, the Bisel Defendants contend their objections are justified because the requests are overbroad, burdensome and oppressive. Specifically the Bisel Defendants base this objection on the requests that reference “lenders” which they contend would include 31 specifically named parties, lenders or financial institutions. (Bisel Decl. ¶17.) However, the fact that the Bisel Defendants know which lenders are being referenced hinders their assertion that the requests are so overbroad as to be oppressive as phrased. Further, the Bisel Defendants assert that the compilation of numerous documents would be oppressive in this circumstance given the number of financing agreements at issue. However, the Bisel Defendants are required only to produce the documents as they are kept in the usual course of business, or sorted and labeled to correspond to the categories in the document demand. CCP §2031.220. As the Bisel Defendants are regular participants in this industry (Decl. Bisel ¶ 1) they likely maintain business records in the ordinary course of their business (and have not asserted otherwise). For the foregoing reasons, Defendants have not demonstrated facts necessary to justify these objections.

Second, the Bisel Defendants contend their objections are justified because the Plaintiffs requested confidential, trade secret, and proprietary information. The specific information the Bisel Defendants object to is the financial arrangements with the lenders and lessors including fees and commissions. The parties have stipulated to a Protective Order that restricts access to materials designated as confidential. The Bisel Defendants do not demonstrate facts showing that the requested information would not be sufficiently covered by the Protective Order or with redactions and corresponding log to justify these objections.

Third, the Bisel Defendants contend their objections are justified because the Plaintiffs requested irrelevant information. However, a party seeking discovery need only show that the information is unprivileged and reasonably calculated to lead to the discovery of admissible evidence. CCP §2017.010. As discussed above, the requested documents are relevant to allegations in Plaintiffs’ FAC.

Fourth, the Bisel Defendants contend their objections are justified because Bisel has a right to privacy to his commissions and profits. However, Bisel does not demonstrate facts or cite to case law showing that the requested information is protected by his right to privacy. As such, the Court is unpersuaded.

Lastly, the Bisel Defendants contend their objections are justified because they Plaintiffs seek documents outside of the three year statute of limitations for fraud. The Court is unpersuaded that the requested information is not discoverable because it is not within the statute of limitations as Defendants provide no case authority for such a proposition. This is especially so when the Complaint specifically alleges communications going back to 2012. (FAC ¶37.)

Bisel has stated under oath in his Declaration that the MaxPro Defendants do not have documents responsive to Requests No. 37 and 45. (Decl. Bisel, ¶17.) However, Bisel does not provide clarity to the Court for which set of discovery responses these numbers correlate to.

For the foregoing reasons, Plaintiff’s motion to compel further responses is GRANTED as to RFPs 1, 2, 12, 36-39, 45, and 50-52 for Technijian, MaxPro and AKT. The motion is GRANTED as to RFPs 1, 2, 10, 34-37, 41 and 46-48 for Bisel.

C. Sanctions

The court shall impose a monetary sanction under against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel 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. (CCP § 2033.290(d).) Plaintiffs move for monetary sanctions in the amount of $17,409.61 for attorney’s fees and costs incurred in the motion including 3.5 hrs billed at $1021.50 per hour and 18.4 hours billed at $751.50 per hour.

Plaintiffs’ request for monetary sanctions for reasonable attorney’s fees and costs incurred by filing this motion is GRANTED in the reduced amount of $8,536.50 (1 hour at $1021.50 and 10 hours at $751.50.)

D. Conclusion

Plaintiff’s motion to compel further responses is GRANTED as to RFPs 1,2, 12, 36-39, 45, and 50-52 for Technijian, MaxPro and AKT. The motion is GRANTED as to RFPs 1, 2, 10, 34-37, 41 and 46-48 for Bisel.

Plaintiffs’ request for monetary sanctions for reasonable attorney’s fees and costs incurred by filing this motion is GRANTED in the reduced amount of $8,536.50.

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