Case Number: EC058994    Hearing Date: April 25, 2014    Dept: NCD

TENTATIVE RULING/4-25-14
#3
EC 058994
MESERKHANI v. HACOPIAN

1.) Defendant Armen Hacopian’s Motion to Compel Further Responses to Form Interrogatory 17.1 (Set Five) Regarding Requests for Admissions (Set Five)

2.) Defendant Armen Hacopian’s Motion to Compel Further Responses to Requests for Admissions (Sets, Two, Three, Four and Five)

TENTATIVE:
1.) [NO OPPOSITION] [The Court notes that, at least with respect to Form Interrogatory 17.1 (Set Five), plaintiff’s opposition to the three motions that were heard and decided on April 18, 2014 (Form Interrogatory 17.1 Sets Two, Three and Four) would apparently apply to the current motion (Set Five) which was not set for hearing with the other three motions on April 18, 2014 only because defendant’s counsel was advised by the Clerk’s Office that the limit for motions to be heard on April 18, 2014 had been reached. That opposition apparently comprised essentially the service of further responses on April 7, 2014.]
Motion brought by defendant Armen Hacopian to Compel Further Responses to Form Interrogatory 17.1 (Set Five) is MOOT due to the service of Supplemental Responses on April 7, 2014.

Sanctions were awarded in the amount of $1,950 on April 18, 2014 in connection with the three above-referenced “companion” motions. The Court indicated then – – while of course the Court said it would take a look at the similar or identical request for sanctions in connection with the Form Interrogatory 17.1 (Set Five) companion motion then set to be heard on April 25, 2014 – – that an additional award of sanctions in connection with the fourth of four substantially identical motions would not necessarily be ordered. In the exercise of its discretion under the circumstances on this particular motion, the Court declines on defendant’s current Form Interrogatory 17.1 motion (Set Five) to make an additional award of sanctions.

2.) UNOPPOSED Motion to Compel FURTHER RESPONSES To Requests for Admissions (Sets Two, Three, Four and Five) is GRANTED. As to some of the responses that are evasive and seek to deny apparently established facts – – for example, the denial of or the quibbling about plaintiff’s receipt of K-1’s at various intervals during the relevant period – – such responses apparently will be permitted to be read to the jury at trial herein, and such allegedly evasive responses might even apparently be sufficient to weigh in favor of the reading to the jury of a special instruction regarding plaintiff’s failure to properly respond to discovery requests. Objections are OVERRULED.

Monetary sanctions in the sum of $1,150 are awarded in favor of defendant Armen Hacopian and against plaintiff Vahik Meserkhani, payable within 30 days.

ANALYSIS:
No oppositions were filed to these motions, but plaintiff’s counsel previously submitted a Supplemental Declaration indicating that supplemental responses to the subject discovery, including Form Interrogatory 17.1 in connection with Requests for Admissions (Set Five), were served on April 7, 2014. See Supplemental Meserkhani Decl.: “I prepared and served further responses to the Form Interrogatory 17.1 to *** Requests for Admissions sets 2 to 5. (Exhibit 4)” [Supplemental Meserkhani Decl., para. 6, filed April 7, 2014].

Requests Nos. 95, 103, 107, 108, 109, 120, 178, 179-181, 184, 190
The requests primarily seek admissions of such things that plaintiff alone capitalized Palad at its inception, that plaintiff received cash money from Palad and Palace which was not included in plaintiff’s K-1 for the following year, and that plaintiff has no evidence to support certain contentions.

The responses are some variation of an answer that certain terms are vague or for some other reason “plaintiff is unable to admit or deny.”

Under CCP section 2033.220(b)(1), “Each answer shall…admit so much of the matter involved in the request as is true, either as expressed in the request or as reasonably and clearly qualified by the responding party.” Under 2023.230 (a), “If only a part of a request for admission is objectionable, the remainder of the question shall be answered.” Accordingly, it is held that it not proper ground for objection that a request for admission is “ambiguous,” unless it is so ambiguous that the responding party cannot in good faith make an intelligent reply. See Cembrook v. Superior Court (1961) 56 Cal.2d 423, 428.

The responses here are evasive, and further responses are hereby ordered, admitting so much of the matter involved in the request that is true.

Requests No. 144
The request states, “Admit that YOU had a fiduciary duty to PALAD’s shareholders at all times between 2001 and 2013.”

The response is, “Objection. Calls for a legal conclusion.”

The motion argues that an admission can call for an opinion, in reliance on Hillman v. Stultz (1968, 2nd Dist.) 263 Cal.App.2d 848, 887 (“Of course, since admission requests are made for the purpose of expediting the trial, the “fact that the request is for the admission of a controversial matter, or one involving complex facts, or calls for an opinion, is of no moment,””quoting Cembrook, supra.).

Defendant also argues that plaintiff bases his claims on a fiduciary duty owed by defendant to shareholders, and defendant is entitled to know if plaintiff plans to dispute the issue that plaintiff is subject to similar duties. In Burke v. Superior Court (1969) 71 Cal.2d 276, the California Supreme Court, based in part on the observation that both parties in a lawsuit are fairly subject to contention interrogatories, noted with respect to requests for admissions:
“when a party is served with a request for admission concerning a legal question properly raised in the pleadings he cannot object simply by asserting that the request calls for a conclusion of law. He should make the admission if he is able to do so and does not in good faith intend to contest the issue at trial, thereby “setting at rest a triable issue.” ( Cembrook v. Superior Court, supra, 56 Cal.2d 423, 429.) Otherwise he should set forth in detail the reasons why he cannot truthfully admit or deny the request. ( Lieb v. Superior Court, 199 Cal.App.2d 364, 368 [18 Cal.Rptr. 705].)”
Burke, at 282.

A further response is hereby ordered.

Request No. 148
The request states, “Admit that between 2001 and 2010 YOU have not deposited the cash YOU received from PALAD into a bank account.”

The response is an objection that the request assumes facts not in evidence and is irrelevant, “What Vahik did with his share of profits from Palad after he received them is not relevant to the issues in this case.”

It is possible that what was done with the proceeds from Palad is not relevant to the legal issues in the case, but it is certainly relevant to establish why defendant may be unable to establish the amounts and paths taken by the funds. The objections are overruled.

Requests Nos. 169 and 170
These requests state, “Admit that YOUR 2006/2007 K-1 from PALAD did not include the cash YOU received from PALACE FURNITURE.”

The responses are, “Deny on the basis that this Request assumes facts not in evidence and is argumentative.”

These are not recognized objections, and the denial is not an unequivocal denial subject to such objections. A further, clearer response is hereby ordered.

Request No. 191
The request is to “Admit that YOU did not read PALAD’s By Laws before signing it.”

The response is “Plaintiff cannot admit or deny because after 13 years he does not recall signing Palad’s by laws.

The motion argues that this response is deficient because to the extent that this seems to be a response based on lack of information or belief, there is no indication that reasonable inquiry has been made.

Under CCP section 2033.220(c):
“If a responding party gives lack of information or knowledge as a reason for a failure to admit all or part of a request for admission, that party shall state in the answer that a reasonable inquiry concerning the matter in the particular request has been made, and that the information readily known or readily obtainable is insufficient to enable that party to admit the matter.”

Here, there may potentially be other witnesses or documents showing the circumstances of the By Laws being signed which would suggest that plaintiff did or did not review the By Laws before signing them. A further complete response is hereby ordered.

Sanctions
Interrogatories
Moving party seeks sanctions.

CCP § 2030.300 (d) provides that the court “shall impose a monetary sanction…against any party, person, or attorney who unsuccessfully…opposes a motion to compel a further response to interrogatories, 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.”

Under CCP § 2023.010, misuse of the discovery process includes “(d) failing to respond or to submit to an authorized method of discovery.”; “(e) making, without substantial justification, an unmeritorious objection to discovery”; and “(f) making an evasive response to discovery.” Where there has been a misuse of the discovery process, under Section 2023.030(a), the court “may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.”

Under CRC Rule 3.1348(a): “The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel, even though no opposition to the motion was filed, or the requested discovery was provided to the moving party after the motion was filed.”

In this case, defendant made untimely and incomplete responses, and made the motions necessary, and has failed in his supplemental declaration to establish substantial justification. Sanctions were previously awarded on April 18, 2014 in the amount of $1,950.

Requests for Admissions
CCP § 2030.290 (d) provides that the court “shall impose a monetary sanction…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.”

Here, the responses appear evasive, and there is no opposition so no showing that plaintiff was substantially justified or that other circumstances would make the imposition of sanctions unjust. Sanctions are awarded in the amount of $1,150