Case Number: 18STCV01554 Hearing Date: August 28, 2019 Dept: 34

SUBJECT: (1) Motion to Compel Further Responses to Form Interrogatories

(2) Motion to Compel Further Responses to Request for Production of Documents

Moving Party: Plaintiff Sutra Beauty

Resp. Party: None

Plaintiff’s motion to compel further responses to form interrogatories is GRANTED.

Plaintiff’s motion to compel further responses to request for production of documents is GRANTED.

Plaintiff’s request for sanctions against Defendant is GRANTED in part in the amount of $120.00.

PRELIMINARY COMMENTS

The Court is always amazed when a motion to compel is unopposed. If Defendant agreed with Plaintiff’s position, it should have responded. If Defendant disagreed, and believed that its refusal to provide further discovery was warranted, it should have filed an opposition.

BACKGROUND:

On October 19, 2018, Plaintiff Sutra Beauty (“Plaintiff” or “Sutra”) commenced this action against Defendant Audio Video Color (“Defendant” or “AVC”) for: (1) breach of written contract; (2) breach of oral contract; (3) intentional trespass to chattels; (4) negligence (trespass to chattels); (5) civil extortion; and (6) violation of business and professions code section 17200.

On February 20, 2019, the Court sustained with leave to amend AVC’s demurrer to the causes of action for intentional trespass to chattels, negligence (trespass to chattels), civil extortion, and violation of business and professions code section 17200. The Court overruled AVC’s demurrer to the first cause of action for breach of written contract.

On March 5, 2019, Sutra filed its first amended complaint (“FAC”) against AVC for: (1) breach of written contract; (2) breach of oral contract; (3) intentional conversion to chattels; (4) negligence (conversion to chattels); and (5) civil extortion.

On May 6, 2019, the Court sustained without leave to amend Defendant’s demurrer to Plaintiff’s fifth cause of action.

On August 6, 2019, Plaintiff filed the instant motions to compel further responses to (1) form interrogatories and (2) requests for production of documents. Defendant has not opposed these motions.

ANALYSIS:

Plaintiff moves for an order compelling Defendant to provide further responses to (1) Form Interrogatories, Set One, and (2) Requests for Production of Documents, Set One. (FROG Motion, p. 2:4-6; RFPD Motion, p. 2:4-7.)

Plaintiff also seeks sanctions against Defendant in the amount of $7,120.00 for each motion for its failure to respond to all of the discovery that is the subject of the motions to compel further discovery responses. (FROG Motion, p. 2:10; RFPD Motion, p. 2:13.)

A. Relevant Law

Motions to compel further responses to discovery requests must always be accompanied by a meet-and confer-declaration (Code Civ. Proc., § 2016.040) demonstrating a “reasonable and good faith attempt an informal resolution of each issue presented by the motion.” (Id., §§ 2030.300(b), 2031.310(b)(2), 2033.290(b).) They must also be accompanied by a separate statement containing the requests and the responses, verbatim, as well as reasons why a further response is warranted. (Cal. Rules of Court, rule 3.1345(a).) The separate statement must also be complete in itself; no extrinsic materials may be incorporated by reference. (Id., rule 3.1345(c).)

A motion to compel further responses to form or specially prepared interrogatories may be brought if the responses contain: (1) answers that are evasive or incomplete; (2) an unwarranted or insufficiently specific exercise of an option to produce documents in lieu of a substantive response; or (3) unmerited or overly generalized objections. (Code Civ. Proc., § 2030.300(a).)

A motion to compel further responses may be brought based on responses to requests for admission (“RFA”) that: (1) provide evasive or incomplete answers; or (2) make unmeritorious or overly-generalized objections. (Code Civ. Proc., § 2033.290(a).) However, a motion to compel further responses cannot compel the admission of matters already denied. (Holguin v. Superior Court (1972) 22 Cal.App.3d 812, 821.)

A motion to compel further responses to requests for production “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.” (Code Civ. Proc. § 2031.310(b)(1).) “To establish ‘good cause,’ the burden is on the moving party to show both: [¶] Relevance to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case); and [¶] Specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial.) [Citations.] [¶] The fact that there is no alternative source for the information sought is an important factor in establishing ‘good cause’ for inspection. But it is not essential in every case.” (Edmon & Karnow, California Practice Guide: Civ. Proc. Before Trial (The Rutter Group 2017) ¶ 8:1495.6.) “For discovery purposes, information is relevant if it ‘might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement.’ [Citation] Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence. [Citation] These rules are applied liberally in favor of discovery.” (Gonzales v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.)

“If ‘good cause’ is shown by the moving party, the burden is then on the responding party to justify any objections made to document disclosure (the same as on motions to compel answers to interrogatories or deposition questions).” (Edmon & Karnow, supra, at ¶ 8:1496.)

B. Discussion

1. Form Interrogatories

Plaintiff served Defendant with Form Interrogatories, Set One on April 10, 2019. (FORM Motion, p. 3:25-26; Langstein Decl., Exh. 1). Plaintiff argues that on June 12, 2019, Defendant served its response on June 12, 2019. (Id. at p. 4:4; Langstein Decl., Exh. 2.)

Plaintiff asserts that after various meet-and-confer letters and emails between the parties, Defendant’s “attorney promised further responses and produce documents, agreed to extend Sutra’s motion to compel to August 30, 2019, but as of this date has not provided anything.” (Id. at p. 4:14-17.) Plaintiff argues that “the Court’s recent refusal to continue the trial date in this case has necessitated the immediate filing of this motion.” (Id. at p. 4:17-18.)

Form Interrogatory 50.2 states:

“Was there a breach of any agreement alleged in the pleadings? If so, for each breach describe and give the date of every act or omission that you claim is the breach of the agreement.” (Plaintiff’s FROG Separate Statement, p. 2:2-4.)

Response to Form Interrogatory 50.2:

“Yes. Plaintiff failed to abide by the terms of the agreement, resulting in the late payment of invoices for services performed by AVC.” (Id. at p. 2:6-7.)

Plaintiff argues that a further response to Form Interrogatory 50.2 should be compelled because Defendant “did not fully answer the Form Interrogatory by providing the dates on which each alleged late payment breach occurred.” (Id. at p. 2:11-12.) Plaintiff asserts that Defendant’s “letter in response to the meet and confer communication states that AVC was willing to provide this information, but as of this filing, AVC has completely failed to respond.” (Id. at p. 2:12-14.)

Plaintiff has demonstrated good cause as to why the information sought in Form Interrogatory 50.2 is relevant and necessary to its case and why a further response is needed. Defendant has not opposed this motion; thus, it has not met its burden to justify any of its objections. The Court GRANTS Plaintiff’s motion to compel further response to Form Interrogatory 50.2.

2. Request for Production of Documents

Plaintiff served Defendant with Request for Production of Documents, Set One on April 10, 2019. (RFPD Motion, p. 4:8-9; Langstein Decl., Exh. 1). Plaintiff argues that on June 12, 2019, Defendant served its response on June 12, 2019. (Id. at p. 4:18; Langstein Decl., Exh. 2.) For Request for Production of Documents, Numbers 5 and 6, Defendant “refused to produce any documents on the grounds of relevance, overbreadth, vagueness, and ambiguity as to time, attorney-client privilege or attorney work product doctrine, and based upon confidentiality and trade-secret privileges.” (Id. at p. 4:23-27.) Plaintiff argues that in Defendant’s “responses to Requests for Production numbers 1, 2, 3, 4, 7, 8, 9, 10, 11, 12, and 13, AVC promised to produce documents responsive to the Sutra’s requests[; h]owever, as of this date, no such documents have been produced.” (Id. at p. 4:18-22; Langstein Decl., ¶ 3.)

Plaintiff asserts that after various meet-and-confer letters and emails between the parties, Defendant’s “attorney promised further responses and produce documents, agreed to extend Sutra’s motion to compel to August 30, 2019, but as of this date has not provided anything.” (Id. at p. 5:11-13.) Plaintiff argues that “the Court’s recent refusal to continue the trial date in this case has necessitated the immediate filing of this motion.” (Id. at p. 5:13-15.)

a. Request for Production Nos. 1, 2, 3, 4, 7, 8, 9, 10, 11, 12, 13

Plaintiff argues that Defendant should be compelled to produce the documents it has already agreed to produce for Request for Production Nos. 1, 2, 3, 4, 7, 8, 9, 10, 11, 12, and 13, which requested copies of all internal communications amount Defendant personnel relating to Plaintiff. (Id. at p. 6:5-9.)

Defendant has not opposed this motion; thus, it has not demonstrated to the Court as to why its failure to produce the documents it already agreed to produce is excusable.

The Court GRANTS Plaintiff’s motion to compel the production of documents as to Numbers 1, 2, 3, 4, 7, 8, 9, 10, 11, 12, and 13.

b. Request for Production Nos. 5, 6

Request for Production Number 5 states:

“Any and all communications. including but not limited to e-mails, concerning, discussing, referring to, regarding. and/or relating to PLAINTIFF.” (Plaintiff’s RFPD Separate Statement, p. 2:2-3.)

Request for Production Number 6 states:

“Any and all communications, including but not limited to e- mails, concerning, discussing, referring to. regarding, and/or relating to PLAINTIFF’s goods.” (Id. at p. 4:1-2.)

Responses to Request for Production Numbers 5 and 6:

“AVC objects to the extent that this request seeks documents which are not relevant to the dispute between the parties nor reasonably calculated to lead to the discovery of admissible evidence. AVC further objects to this request on the grounds that it is overbroad. AVC further objects to this request on the grounds that it is vague and ambiguous as to time. AVC further objects to this request to the extent that it calls for the production of documents protected by the attorney-client privilege or attorney work product doctrine. AVC further objects to this request to the extent it calls for the disclosure of documents which consists of or reflects confidential business, trade secret and/or proprietary information.” (Id. at pp. 2:4-13, 4:3-12.)

Plaintiff argues that “these are standard and customary requests for production, seeking communications relating to the plaintiff.” (Id. at p. 4:19-20.) Plaintiff argues that “such documents are vital to Sutra’s case, since they may shed light on, among other issues, AVC’s understanding of the terms of the contract between the parties, AVC’s decision-making process regarding withholding of Sutra’s goods, the propriety of AVC’s invoices to Sutra, and a wealth of other information that is directly relevant and germane to the instant lawsuit.” (Id. at p. 4:20-25.)

Plaintiff has demonstrated good cause as to why these documents requested in numbers 5 and 6 are relevant and necessary to its case. Defendant has not opposed this motion; thus, it has not met its burden to justify any of its objections.

The Court GRANTS Plaintiff’s motion to compel further response to Request for Production of Documents, numbers 5 and 6.

3. Sanctions

Under California Code of Civil Procedure section 2031.310(h), “the court shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, unless that the one subject to the sanction acted with substantial justification or that other circumstance make the imposition of the sanction unjust.”

Plaintiff seeks sanctions against Defendant in the amount of $7,120.00 for each motion for its failure to respond to all of the discovery that is the subject of the motions to compel further discovery responses. (FROG Motion, p. 2:10; RFPD Motion, p. 2:13.)

Plaintiff’s counsel, Eran Lagstein asserts that he spent 2 hours on each motion, expects to spend another 2 hours drafting a reply brief, and expects to spend another 2 hours attending the hearing. (Lagstein FROG Decl., ¶ 4; Lagstein RFPD Decl., ¶ 4.) Plaintiff’s other counsel, Matthew Mickelson, asserts that he spent 4 hours drafting each motion, expects to spend another 3 hours drafting a reply, expects to spend another 2 hours attending the hearing, and charges an hourly rate of $500.00 per hour. (Mickelson FROG Decl., ¶ 5; Mickelson RFPD Decl., ¶ 5.)

These are form motions to compel; no original research was
needed for either of these motions. The
request for attorney’s fees in the amount of $14,240.00 is outrageous.

“‘If . . . the Court were required to award a reasonable fee when an outrageously unreasonable one has been asked for, claimants would be encouraged to make unreasonable demands, knowing that the only unfavorable consequence of such misconduct would be reduction of their fee to what they should have asked in the first place. To discourage such greed, a severer reaction is needful . . . .’ (Serrano v. Unruh (1982) 32 Cal.3d 621, 635, quoting Brown v. Stackler (7th Cir. 1980) 612 F.2d 1057, 1059.) “A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.” (Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 990; Ketchum v. Moses (2001) 24 Cal.4th 1122, 1137; Serrano v. Unruh (1982) 32 Cal.3d 621, 635.)

The Court grants sanctions in the amount of $120.00 – the filing fees incurred in bringing these two motions.