2018-00246239-CU-BT

Robert Riesenman vs. RoachKing, LLC

Nature of Proceeding: Motion to Compel 1. Special 2. Form 3. Production 4. Admissions

Filed By: Nally, Timothy J.

Effective September 23, 2019, official court reporters will not be available in Departments 53 and 54, with exceptions listed in the Court’s Policy Regarding Availability and Unavailability of Official Court Reporters. Additional information regarding this policy can be found on the Court’s website at www.saccourt.ca.gov.

Plaintiff Robert Riesenman’s (“Plaintiff”) motion to compel self-represented defendant Jason Cavalinni (“Defendant”) to serve verified further responses to Plaintiff’s requests for admissions, set one, number 6, special interrogatories, set one, numbers 2 and 5, and requests for production of documents, set one, numbers 2-4, 10-12, 18, 22, 22, and 23, and to serve initial verified responses to form interrogatories, set one, is UNOPPOSED and is GRANTED.

Defendant shall serve verified further responses, without objections, to Plaintiff’s requests for admissions, set one, number 6, special interrogatories, set one, numbers 2 and 5, requests for production of documents, set one, numbers 2-4, 10-12, 18, 22, 22, and 23, and shall serve verified responses, without objections, to Plaintiff’s form interrogatories, set one, no later than October 14, 2019.

Plaintiff asks the Court to enter the protective order stipulated to between Plaintiff and co-defendant Duggan Law Corporation (“DLC”). On June 12, 2019, Plaintiff circulated a proposed stipulated protective order to all parties. DLC is the only defendant who has signed the stipulated protective order. Defendant Jason Cavalinni has not yet signed the stipulated protective order. The Court will not enter the protective order until a fully-executed protective order signed by all parties has been obtained.

Sanctions are denied because the motion was not opposed. Although CRC 3.1348(a) purports to authorize sanctions if a motion is unopposed, the Court declines to do so, as the specific statutes governing this discovery authorize sanctions only if the motion was unsuccessfully made or opposed. Any order imposing sanctions under the CRC must conform to the conditions of one or more of the statutes authorizing sanctions. ( Trans-Action Commercial Investors, Ltd. v Firmaterr Inc. (1997) 60 Cal.App.4th 352, 355.) However, repeated conduct of failing to comply with discovery obligations may lead the Court to find an abuse of the discovery process and award sanctions on that basis. (Laguna Auto Body v. Farmers Insurance Exchange (1991) 231 Cal. App. 3d 481.)

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.

2018-00246239-CU-BT

Robert Riesenman vs. RoachKing, LLC

Nature of Proceeding: Motion to Compel 1. Special 2. Form 3. Production 4. Admissions (John

Filed By: Nally, Timothy J.

Effective September 23, 2019, official court reporters will not be available in Departments 53 and 54, with exceptions listed in the Court’s Policy Regarding Availability and Unavailability of Official Court Reporters. Additional information regarding this policy can be found on the Court’s website at www.saccourt.ca.gov.

Plaintiff Robert Riesenman’s (“Plaintiff”) motion to compel self-represented defendant John Baser (“Defendant”) to serve verified further responses to Plaintiff’s requests for admissions, set one, number 6, special interrogatories, set one, numbers 2 and 5, and requests for production of documents, set one, numbers 2-4, 10-12, 18, 22, 22, and 23, and to serve initial verified responses to form interrogatories, set one, is UNOPPOSED and is GRANTED.

Defendant shall serve verified further responses, without objections, to Plaintiff’s requests for admissions, set one, number 6, special interrogatories, set one, numbers 2 and 5, requests for production of documents, set one, numbers 2-4, 10-12, 18, 22, 22, and 23, and shall serve verified responses, without objections, to Plaintiff’s form interrogatories, set one, no later than October 14, 2019.

Plaintiff asks the Court to enter the protective order stipulated to between Plaintiff and co-defendant Duggan Law Corporation (“DLC”). On June 12, 2019, Plaintiff circulated a proposed stipulated protective order to all parties. DLC is the only defendant who has signed the stipulated protective order. Defendant John Baser has not yet signed the stipulated protective order. The Court will not enter the protective order until a fully-executed protective order signed by all parties has been obtained.

Sanctions are denied because the motion was not opposed. Although CRC 3.1348(a) purports to authorize sanctions if a motion is unopposed, the Court declines to do so, as the specific statutes governing this discovery authorize sanctions only if the motion was unsuccessfully made or opposed. Any order imposing sanctions under the CRC must conform to the conditions of one or more of the statutes authorizing sanctions. ( Trans-Action Commercial Investors, Ltd. v Firmaterr Inc. (1997) 60 Cal.App.4th 352, 355.) However, repeated conduct of failing to comply with discovery obligations may lead the Court to find an abuse of the discovery process and award sanctions on that basis. (Laguna Auto Body v. Farmers Insurance Exchange (1991) 231 Cal. App. 3d 481.)

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.

Item 9 2018-00246239-CU-BT

Robert Riesenman vs. RoachKing, LLC

Nature of Proceeding: Motion to Compel 1. Special 2. Form 3. Production 4. Admissions

Filed By: Nally, Timothy J.

Effective September 23, 2019, official court reporters will not be available in Departments 53 and 54, with exceptions listed in the Court’s Policy Regarding Availability and Unavailability of Official Court Reporters. Additional information regarding this policy can be found on the Court’s website at www.saccourt.ca.gov.

Plaintiff Robert Riesenman’s (“Plaintiff”) motion to compel defendant Duggan Law Corporation (“DLC”) to provide further responses to Plaintiff’s Request for Admission, Set One (“RFA”), Form Interrogatories, Set One, and Requests for Production of Documents, Set One (“RFPD”), is ruled upon as follows.

This action arises out of Plaintiff’s efforts to collect a judgment against defendants RoachKing, LLC (“RoachKing”), John Baser, Laurie Baser, Jason Cavallini, and Lisa Cavallini (collectively, the “Debtors”) entered on December 22, 2017, in the matter of Riesenman v. Baser, et al., El Dorado County Superior Court Case No. PC20160491 (the “Underlying Litigation”). The Underlying Litigation was a trade secret misappropriation case filed by Plaintiff against the Debtors. DLC was the Debtors’ attorney of record during the pendency of the litigation until December 28, 2018, for the individual debtors and until February 1, 2019, for RoachKing.

On January 19, 2018, the court in the Underlying Litigation entered an order for examination of RoachKing. Plaintiff contends RoachKing was personally served with the order on January 24, 2018, which order created a lien on all of RoachKing’s assets, effective January 19, 2018. Plaintiff alleges DLC was provided a courtesy copy of the order and therefore had knowledge of the lien created by the order. Nonetheless, Plaintiff contends DLC continued to accept payments from RoachKing in derogation to Plaintiff’s lien rights. Plaintiff alleges the Debtors also engaged in efforts to hide their assets from Plaintiff’s collection efforts.

Based on the foregoing, Plaintiff filed this action on December 11, 2018, alleging causes of action for misappropriation of trade secrets, conversion, fraudulent transfer, possession of personal property or its value and for damages for its wrongful detention, and unfair business practices.

On or about March 20, 2019, Plaintiff served his first set of written discovery, including Requests for Admissions (RFA), Form Interrogatories, and Requests for Production of Documents (RFPD). On April 24, 2019, DLC served verified responses.

On June 10, 2019, Plaintiff’s counsel sent an email to DLC’s counsel indicating a desire to meet and confer regarding DLC’s discovery responses. The parties then exchanged meet and confer emails and agreed upon a protective order. DLC signed the protective order, but the other defendants have yet to sign.

Plaintiff and DLC continued meet and confer discussions, and ultimately agreed to extend the deadline for Plaintiff to file a motion to compel until August 16, 2019. On August 9, 2019, DLC’s counsel provided Plaintiff with a detailed meet and confer letter. Plaintiff did not respond prior to filing this motion to compel on August 16, 2019.

By this motion, Plaintiff seeks: (1) to compel DLC to provide further responses to RFA numbers 2 and 17 (incorrectly number as 16), form interrogatories numbers 17.1 (as to RFA numbers 2 and 17), and RFPD numbers 1, 7-10, 15, 22, 23, 25-27, and 31; (2) entry of a protective order; and (3) a monetary sanction in the amount of $3,660 against DLC.

At the outset, DLC contends the motion should be denied on the grounds Plaintiff failed to engage in sufficient meet and confer efforts. Specifically, DLC contends Plaintiff never responded to DLC’s August 9, 2019, meet and confer letter or requested a further extension of time to file this motion even though DLC willingly provided such extensions previously. The Court has reviewed the parties’ meet and confer efforts and declines to the deny the motion on this basis. While further meet and confer efforts perhaps could have been had, the Court finds the parties engaged in serious, good faith meet and confer discussions setting forth the substance of the disagreement and that further discussions would not be fruitful.

RFA Number 2

The motion to compel a further response to RFA number 2 is GRANTED.

RFA number 2 states: “Admit that YOU were ROACHKING’s agent from December 22, 2017, through January 24, 2019.”

In response, DLC objected on the grounds the term “agent” was vague and ambiguous and the request seeks information that is irrelevant. DLC did not provide a response.

Plaintiff contends DLC’s objections lack merit because the scope of discovery is broad and this request seeks information relevant to determine whether DLC (as RoachKing’s agent) is presumed to know what RoachKing knew (i.e., regarding service of the order for examination and corresponding creation of the lien). Further, Plaintiff contends the term “agent” is a well-known legal term and DLC has a duty to interpret the request to the best of its ability and provide a response.

In opposition, DLC argues it explained in its meet and confer correspondence that the term “agent” is susceptible to multiple different meanings, but in an effort to be forthcoming specifically admitted in its meet and confer letter that DLC was counsel of record for the Debtors. DLC argues if Plaintiff had continued to engage in meet and confer efforts and clarified the definition of “agent,” then DLC could have properly admitted or denied the request.

The Court has already deemed the meet and confer efforts sufficient. Whether Plaintiff could have further clarified the terms is inapposite to whether DLC’s objection and refusal to provide any response is warranted. The Court finds Plaintiff is entitled to a further response as further discussed below.

DLC’s objections are overruled. The term “agent” is not so vague or ambiguous that DLC’s refusal to respond is justified. Defendant is under a good faith duty to interpret the requests to the best of its ability and provide a response. Indeed, Defendant could have explained how it was interpreting the term “agent” (i.e., “to the extent the term ‘agent’ means … ) and then provided a response. Further, “[i]n the context of discovery, evidence is ‘relevant’ if it might reasonably assist a party in evaluating its case, preparing for trial, or facilitating a settlement. Inadmissibility is not the test, and it

is sufficient if the information sought might reasonably lead to other, admissible evidence.” (Glenfed Development Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117.) Any doubts as to relevance should generally be resolved in favor of permitting discovery. (Colonial Life & Acc. Ins. Co. v. Super. Ct.(1982) 31 Cal.3d 785, 790.) Objections based on irrelevancy and immateriality to the issues of the case “cannot be used to deny discovery.” (Coy v. Super. Ct.(1962) 58 Cal.2d 210, 217.) These standards are to be applied in accordance with the liberal policies underlying the discovery procedures. (See Colonial Life, supra, 31 Cal.3d at 790; Greyhound Corp. v. Super. Ct.(1961) 56 Cal.2d 355, 376.) Here, Plaintiff has sufficiently established the relevance of this request, which DLC appears to concede in its opposition papers (Opposition at 5:1-10). Accordingly, DLC’s objection based on relevance is also overruled.

RFA Number 17 (erroneously numbered as 16)

The motion to compel a further response to RFA number 17 is GRANTED.

RFA number 17 (incorrectly numbered as 16) states: “Admit that YOU used payments that YOU accepted from ROACHKING after January 24, 2018, for YOUR own purposes.”

In response, DLC objected on the grounds the request was vague and ambiguous and the request seeks information that is irrelevant. Subject to these objections, DLC responded “to the extent ‘for your own purposes’ means that Responding Party accepted payments from RoachKing for legal services previously rendered, admit.”

Plaintiff contends DLC’s objections lack merit and the response is evasive. Plaintiff argues the request targets what DLC did with the payments after receiving them, but DLC just admits to accepting payments.

DLC argues Plaintiff’s failure to meet and confer led to the response and that a better response could have been provided had the meet and confer process continued. This argument is rejected for the same reasons discussed above.

The Court agrees with Plaintiff that the objections lack merit and the response is evasive and is not responses to the call of the request. DLC’s objections are overruled. The request is not so vague and ambiguous that DLC cannot frame a response and the request seeks relevant information. As can be seen from the call of the request, Plaintiff seeks an admission that payments were used for DLC’s own purposes, not just that DLC accepted payments from RoachKing after January 24, 2018.

Form Interrogatory No. 17.1

The motion to compel a further response to form interrogatory number 17.1 is GRANTED.

In response to form interrogatory number 17.1, as it relates to RFA numbers 2 and 17, DLC relied on its objections to RFA number 2 and provided no substantive response and provided no response to RFA number 17 at all. As the Court has overruled DLC’s objections and ordered a further response to both RFA numbers 2 and 17, a further corresponding response as to form interrogatory number 17.1 is also warranted.

RFPD Numbers 1, 7-10, 15, 22, 23, 25-27, and 31

In response to RFPD numbers 1, 7-10, 15, 22, 23, 25-27, and 31, DLC objected on the ground that the requests seek documents protected by the attorney-client privilege. Plaintiff contends DLC has yet to produce a privilege log. DLC does not indicate in opposition whether or not any responsive documents are being withheld on the basis of the attorney-client privilege. To the extent DLC objected to these requests on the basis of attorney-client privilege and is refusing to produce documents based thereon, DLC must produce a privilege log that is sufficiently detailed to allow Plaintiff to challenge the assertion(s) of the privilege.

RFPD numbers 1, 7, 8, 9, 10, 15, and 31 seek documents that reflect compensation in the form of money or property that DLC received from the Debtors since October 1, 2016. In addition to objecting on the basis of the attorney-client privilege (discussed above), DLC also objected that these requests were overbroad in time and sought irrelevant information because the crux of the allegations against DLC concern property subject to a lien arising in 2018. DLC argues the issue in this action is whether DLC converted Plaintiff’s property by accepting payments from the Debtors after the lien was created in January of 2018. DLC argues demanding documents prior to that date is overbroad. DLC offered to provide responsive documents from and after January 24, 2018, upon the execution of a mutually agreeable protective order.

Plaintiff argues the time period is relevant because Plaintiff alleges in his complaint that DLC was not receiving payments from the Debtors during the Underlying Litigation and that after losing on the causes of action that might have provided a basis for the Debtors to recover attorneys’ fees, DLC’s only hope of receiving payment was to take RoachKing’s assets, which were subject to Plaintiff’s lien. The Court finds this argument persuasive and thus DLC’s objections based on overbreadth and relevance are overruled.

Further, while DLC indicated it would produce responsive documents upon the execution of a mutually agreeable protective order, DLC did not raise any objections in response to these requests that establish a protective order is necessary. Nonetheless, the parties are free to continue negotiations with all parties to this action to obtain a fully-executed protective order.

RFPD numbers 22 and 23 seek documents that reflect communications with Robert Coral or any person acting on Robert Coral’s behalf, and with the Serpentarium, Inc. or any person acting on its behalf. In addition to objecting on the basis of the attorney-client privilege (discussed above), DLC objected on the grounds of relevance and overbreadth in scope and time. DLC argues these requests seek documents relating to a separate lawsuit between Plaintiff and Robert Coral and the Serpentarium, which are irrelevant. Plaintiff argues the requested information is relevant to his conversion and fraudulent transfer claims because during the Underlying Litigation, Plaintiff discovered that Robert Coral, owner of one of Plaintiff’s direct competitors (the Serpentarium) was communicating with the Debtors to gain access to Plaintiff’s trade secrets. Plaintiff contends he believes the Debtors and Mr. Coral have continued working in concert to avoid the effect of the judgment he obtained.

“In the context of discovery, evidence is ‘relevant’ if it might reasonably assist a party in evaluating its case, preparing for trial, or facilitating a settlement. Inadmissibility is not the test, and it is sufficient if the information sought might reasonably lead to other,

admissible evidence.” (Glenfed Development Corp., supra, at 1117.) Moreover, under our discovery statutes the Legislature has authorized “fishing expeditions” and thus “the claim that a party is engaged upon a fishing expedition is not, and under no circumstances can be, a valid objection to an otherwise proper attempt to utilize the provisions of the discovery statutes.” (Greyhound Corp. v. Superior Court, (1961) 56 Cal.2d 355, 385-386.) Nonetheless, even if discovery is likened to a fishing expedition, “as with a fishing license, the rules of discovery do not allow unrestricted access to all species of information.” (Tylo v. Superior Court (1997) 55 Cal.App.4th 1379; see also, Calcor Space Facility v. Superior Court (1997) 53 Cal.App.4th 216.)

Even assuming the information requested in RFPD numbers 22 and 23 is relevant, the requests are not limited whatsoever in time and on that basis are overbroad. Accordingly, DLC’s objections based on overbreadth are well-taken and a further response is not warranted.

Requests 25-27 seek documents relating to any order for an examination, writ of execution, or levy on any deposit account owned by RoachKing sought or obtained by Plaintiff. In addition to objecting on the grounds of attorney-client privilege (as discussed above), DLC objected on the ground that the documents are equally available to Plaintiff. DLC did not provide a substantive response. DLC’s “equally available” objections are overruled. This objection is not a sufficient basis to withhold a substantive response.

Plaintiff’s motion to compel a further response is GRANTED as to RFPD numbers 1, 7-10, 15, 25-27, and 31.

Protective Order

Plaintiff asks the Court to enter the protective order stipulated to between Plaintiff and DLC. Plaintiff contends DLC has refused to produce certain unidentified documents until entry of a protective order.

On June 12, 2019, Plaintiff circulated a proposed stipulated protective order to all parties. (Nally Decl. ¶ 7.) DLC signed and returned the protective order on June 13, 2019. (Nally Decl., Exh. 5.) However, no response has been received by the remaining defendants.

If the Court were to enter the protective order as it is currently signed, it would have no force and effect on the non-signatory parties. Accordingly, the Court will not enter the protective order until a fully-executed protective order signed by all parties has been obtained.

Sanctions

Plaintiff’s request for monetary sanctions is DENIED. The Court finds the circumstances would render sanctions unjust.

Conclusion

The motion to compel a further response is GRANTED as to: RFA numbers 2 and 17 (erroneously numbered as 16); Form Interrogatory number 17.1 (as it relates to RFA numbers 2 and 17); and RFPD numbers 1, 7-10, 15, 25-27, and 31.

The motion is DENIED as to RFPD numbers 22 and 23.

No later than October 14, 2019, DLC shall provide verified further responses, removing objections that have been overruled, in accordance with this ruling. If DLC withholds any documents on the basis of the attorney-client privilege, DLC shall also provide a privilege log that is sufficiently detailed to allow Plaintiff to challenge the assertion(s) of the privilege.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.

Item 10 2018-00246239-CU-BT

Robert Riesenman vs. RoachKing, LLC

Nature of Proceeding: Motion to Compel 1. Special 2. Form 3. Production 4. Admissions

Filed By: Nally, Timothy J.

Effective September 23, 2019, official court reporters will not be available in Departments 53 and 54, with exceptions listed in the Court’s Policy Regarding Availability and Unavailability of Official Court Reporters. Additional information regarding this policy can be found on the Court’s website at www.saccourt.ca.gov.

Plaintiff Robert Riesenman’s (“Plaintiff”) motion to compel self-represented defendant Laurie Baser (“Defendant”) to serve verified further responses to Plaintiff’s requests for admissions, set one, number 6, special interrogatories, set one, numbers 2 and 5, and requests for production of documents, set one, numbers 2-4, 10-12, 18, 22, 22, and 23, and to serve initial verified responses to form interrogatories, set one, is UNOPPOSED and is GRANTED.

Defendant shall serve verified further responses, without objections, to Plaintiff’s requests for admissions, set one, number 6, special interrogatories, set one, numbers 2 and 5, requests for production of documents, set one, numbers 2-4, 10-12, 18, 22, 22, and 23, and shall serve verified responses, without objections, to Plaintiff’s form interrogatories, set one, no later than October 14, 2019.

Plaintiff asks the Court to enter the protective order stipulated to between Plaintiff and co-defendant Duggan Law Corporation (“DLC”). On June 12, 2019, Plaintiff circulated a proposed stipulated protective order to all parties. DLC is the only defendant who has signed the stipulated protective order. Defendant Laurie Baser has not yet signed the stipulated protective order. The Court will not enter the protective order until a fully-executed protective order signed by all parties has been obtained.

Sanctions are denied because the motion was not opposed. Although CRC 3.1348(a) purports to authorize sanctions if a motion is unopposed, the Court declines to do so, as the specific statutes governing this discovery authorize sanctions only if the motion was unsuccessfully made or opposed. Any order imposing sanctions under the CRC must conform to the conditions of one or more of the statutes authorizing sanctions. ( Trans-Action Commercial Investors, Ltd. v Firmaterr Inc. (1997) 60 Cal.App.4th 352, 355.) However, repeated conduct of failing to comply with discovery obligations may

lead the Court to find an abuse of the discovery process and award sanctions on that basis. (Laguna Auto Body v. Farmers Insurance Exchange (1991) 231 Cal. App. 3d 481.)

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.