| Mircea Voskerician v. Mark Zuckerberg, et. Al. | CASE NO. 114CV264667 | |
| DATE: 14 November 2014 | TIME: 9:00 | LINE NUMBER: 21 |
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 13 November 2014. Please specify the issue to be contested when calling the Court and counsel.
On 14 November 2014, the motion of Defendant Mark Zuckerberg to Compel Further Responses to Special Interrogatories (SI) was argued and submitted.
Plaintiff Mircea Voskerician filed formal opposition to the motion.
- Statement of Facts.
This case arises out of a property dispute. In November 2012, Plaintiff made an offer to purchase the real property located at 11457 Hamilton Avenue in Palo Alto, California (“the Palo Alto Property”), which was accepted. Plaintiff learned that Mr. Zuckerberg lived directly behind the Palo Alto Property. Plaintiff offered to sell Defendant a portion of the Palo Alto property which abutted Defendant Mr. Zuckerberg’s (Mr. Zuckerberg) back yard. This portion was approximately 2,600 square feet in size.
Plaintiff and his realtor met with Mr. Zuckerberg’s realtor, who informed them that Mr. Zuckerberg wished to purchase the Palo Alto property in its entirety and was willing to pay $250,000 plus any down payment that was made. Plaintiff declined this offer. Subsequently, Plaintiff received an offer on the property from a real estate developer for the Palo Alto Property in the amount of $4,300,000.
On 4 December 2012, Plaintiff and his realtor attended a meeting with Mr. Zuckerberg and his financial advisors. During the meeting, Mr. Zuckerberg stated that he wanted a discount on the Palo Alto Property. In exchange for this discount Mr. Zuckerberg offered to introduce Plaintiff to his friends, clients, and associates. Mr. Zuckerberg also stated that he would promote Plaintiff’s real estate business by providing him with referrals and written references. On 5 December 2012, Plaintiff informed Mr. Zuckerberg that we would sell the Palo Alto Property to him “for $1,700,000 plus [Mr. Zuckerberg’s] promises of personal referrals and business promotion activities.” Plaintiff then sold his interest in the property, on instructions of Mr. Zuckerberg, to Defendant SFRP, LLC.
Plaintiff alleges that Mr. Zuckerberg breached their contract by failing to provide him with written referrals or otherwise assist him with the development of his business.
On 3 September 2014, Plaintiff filed his first amended complaint alleging causes of action for: (1) promissory fraud; (2) intentional misrepresentation; (3) rescission; (4) breach of contract; (5) conspiracy.
- Discovery Dispute.
On 15 May 2014, Defendant SFRP (SFRP) served its First Set of Special Interrogatories on Plaintiff, which included Special Interrogatory (SI) 17 and 18 that is at issue. SI 17 asks Plaintiff to identify all purchases and sales of real property, or interests therein, that Plaintiff or somebody acting on Plaintiff’s behalf have made in the last six (6) years. SI 18 asks for the same thing but in the context of offers to purchase or sell real property or interest therein.
On 17 June 2014, Plaintiff served his verified responses to SFRP’s requests. In response to SI 17 and 18, Plaintiff stated that the information sought could be found amongst the documents produced by Plaintiff. The response provided no other substantive information.
On 1 August 2014, after parties met and conferred, Plaintiff agreed to provide supplemental discovery responses to SI 17 and 18 among others.
On 14 August 2014, Plaintiff served his Supplemental Responses. These responses state that the information requested is within approximately 2,000 pages of the documents produced by Plaintiff. The response still provides no other substantive information. SFRP objected stating that the cited documents are largely not relevant to topic of the SI request and even where they are they provide insufficient context to be useful. A number of produced emails also describe a number of real estate transactions which SFRP states are not reflected in the produced documents.
On 29 September 2014, the present motion was filed.
III. Analysis.
- Meet and Confer
A code-compliant attempt to meet and confer is an explicit prerequisite in many situations including: compelling further responses to interrogatories (Code Civ. Proc. § 2030.300(b)); compelling further responses to inspection of documents (Code Civ. Proc. § 2031.310(b)); compelling further responses to requests for admissions (Code Civ. Proc. § 2033.290(b)). Under California Code of Civil Procedure § 2016.040, “a meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” The failure to attempt to meet and confer where required is an explicitly named misuse of the discovery process. (See Code Civ. Pro. § 2023.010(i)).
After receiving Plaintiff’s responses to SFRP’s initial discovery requests, SFRP and Plaintiff’s counsel met and conferred on Plaintiff’s responses where Plaintiff’s counsel agreed to supplement plaintiff’s discovery responses to include among other things additional information in responses to SI 17 and 18.
SFPR received Plaintiff’s supplemental responses, which composed of over 2,000 pages of produced documents. SFPR reviewed the documents. SFPR concluded that the supplemental responses did not provide substantive answers. SFPR emailed Plaintiff’s counsel requesting that Plaintiff supplement his responses to SI 17 and 18 to identify all of plaintiff’s purchases and sales of and offers to purchase or sell, real property within the last 6 years. Plaintiff’s counsel refused.
Therefore, Defendant has shown a sufficient attempt to meet and confer.
- Motion to Compel Further Responses to SI 17-18.
Defendant’s Motion to Compel Further Responses is code-compliant.
After receiving responses to interrogatories, the propounding party may move for an order compelling further responses pursuant to Code of Civil Procedure, § 2030.300, subd. (a)(1) – (3) 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 is unwarranted or the required specification of those documents is inadequate.
(3) An objection to an interrogatory is without merit or too general.
Here, Defendant has made their motion on the grounds of that the first and second issues apply.
- Defendant’s Response to SI Nos. 17-18
Code of Civil Procedure, § 2030.230 states: “If the answer to an interrogatory would necessitate the preparation or the making of a compilation, abstract, audit, or summary of or from the documents of the party to whom the interrogatory is directed, and if the burden or expense of preparing or making it would be substantially the same for the party propounding the interrogatory as for the responding party, it is a sufficient answer to that interrogatory to refer to this section and to specify the writings from which the answer may be derived or ascertained. This specification shall be in sufficient detail to permit the propounding party to locate and to identify, as readily as the responding party can, the documents from which the answer may be ascertained. The responding party shall then afford to the propounding party a reasonable opportunity to examine, audit, or inspect these documents and to make copies, compilations, abstracts, or summaries of them.”
This exception has been held to apply “only if the summary is not available and the party specifies the records from which the information can be ascertained. A broad statement that the information is available from a mass of documents is insufficient. (Deyo v. Kilbourne (Ct. App. 1978) 84 Cal. App. 3d 771, 784.) “Indeed, if a question does require the responding party to make reference to a pleading or document, the pleading or document should be identified and summarized so the answer is fully responsive to the question.” (Id.)
The fact that produced emails indicate real estate transactions which are not reflected in the produced documents is not by itself sufficient evidence for this At to find that the responses to SI 17-18 are incomplete in content. By providing these documents as a verified response to SI 17-18, Plaintiff has asserted that these documents represent the entirety of the information available to them pertinent to SI 17-18.
However, this Court is unclear as to why Plaintiff cannot answer these interrogatories in a substantive manner without pointing to a pile of 2,000 documents. Defendant’s point is well-taken. If Plaintiff has reviewed the documents they should know what their contents are. If Plaintiff has not reviewed the documents then stating under penalty of perjury that the documents are fully responsive would be ill-advised to say the least.
This Court has not been provided the documents in question and is unclear as to their full breadth. Thus, this Court cannot properly address the issue of whether Plaintiff has properly relied upon CCP 2030.230.
However, assuming arguendo that Plaintiff’s reliance on Code of Civil Procedure, § 2030.230 is justified, Plaintiff’s response still does not satisfy the requirements of Code of Civil Procedure, § 2030.230 as clarified by Deyo. In order to be a complete response in this situation, the responding party must specify the documents that are responsive. Here, Plaintiff has specified approximately 2,000 documents, which SFPR claimed to be largely irrelevant after reviewing the documents. SFPR noted was still left to question or without context necessary to determine, for example, which of the offer forms were actually submitted? Which were accepted? Which feel through in escrow? Since Plaintiff can readily identify and has this context, there is very little burden on Plaintiff to provide substantive responses to SI 17 and 18.
Therefore, Plaintiff has failed to specify the documents in order for the responses to be complete. In order to satisfy CCP 2030.230 the Plaintiff must identify exactly which documents among these 2,000 are responsive to SI Nos. 17-18. Plaintiff must also provide a summary of these documents that is fully responsive to the questions posed in SI Nos. 17-18.
While Plaintiff raises the issue of the relevance of the information sought, this Court is satisfied that determining the nature of Plaintiff’s real estate business consists is a relevant issue in this case.
- Order.
Accordingly, the Motion of Defendant SFRP to Compel Further Responses to Special Interrogatories Nos. 17-18 is GRANTED. Plaintiff shall respond to the discovery without objection and within 20 days of the date of the filing of this Order. Plaintiff may answer the interrogatories by reference to documents by Bates stamped number.
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DATED: |
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HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara |
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