Case Number: SC128130 Hearing Date: February 14, 2019 Dept: K

Case Name: VD&C Variety Development and Construction v. Imperial Windows and Doors, et al.

Case No.: SC128130 Complaint Filed: 09/14/17

Hearing: 2/14/19 Motion C/O: 07/05/19

Calendar #: Discovery C/O: 06/21/19

Notice: OK Trial Date: 07/22/19

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SUBJECT: MOTION TO COMPEL FURTHER RESPONSES FROM PLAINTIFF/CROSS-DEFENDANT VD&C VARIETY DEVELOPMENT AND CONSTRUCTION TO SPECIAL INTERROGATORY NO. 51 BY DEFENDANT/CROSS-COMPLAINANT JACK ABAIAN DBA IMPERIAL WINDOWS AND DOORS

DEFENDANT/CROSS-COMPLAINANT JACK ABAIAN DBA IMPERIAL WINDOWS AND DOORS’ REQUEST FOR MONETARY SANCTIONS

MP: Defendant/Cross-Complainant Jack Abaian dba Imperial Windows and Doors

RP: Plaintiff/Cross-Defendant VD&C Variety Development and Construction

BACKGROUND

Plaintiff VD&C Variety Development and Construction sued Defendants Imperial Windows and Doors and Jack Abaian for damages arising out of a construction project. On March 14, 2018, Plaintiff filed the operative second amended complaint.

On October 18, 2017, Defendant/Cross-complaint Jack Abaian dba Imperial Windows and Doors filed a cross-complaint against Plaintiff, David Su, and Qian Wang for damages based on Cross-defendants failure to pay for materials related to Plaintiff’s construction project. On July 12, 2018, Defendant/Cross-complaint filed the operative second amended cross-complaint, which alleges causes of action for: (1) breach of contract, (2) open book account, (3) account statement, (4) unjust enrichment, and (5) fraud.

On July 9, 2018, Defendant/Cross-complainant served Special Interrogatories, Set Two, on Plaintiff/Cross-defendant VD&C Variety Development and Construction, Inc. On August 23, 2018, Plaintiff/Cross-defendant served verified responses. On February 1, 2019, Plaintiff/Cross-defendant served supplemental responses.

MOTION— filed 10/02/18

Defendant/Cross-complaint requests an order compelling Plaintiff/Cross-complaint to serve further responses to Special Interrogatories, Set Two, No. 51, which requests contact information for all subcontractors that Plaintiff has hired in relation to the project at issue and all contractors that Plaintiff has worked with since January 2015. In Plaintiff’s first response on 10/23/18, Plaintiff only identified six subcontractors or contractors. However, on that same day on 10/23/18, Cross-defendant David Su, who is Plaintiff’s principal, Su indicated in deposition that no less than 15 subcontractors had worked on the project. Plaintiff is “hiding the ball” with respect to witnesses.

Sanctions should be entered.

OPPOSITION— filed 02/01/19

Plaintiff gave a substantial response to Defendant’s Special Interrogatories, Set Two, No. 51 request. Plaintiff answered the interrogatory as best that it could at the time.

Before Plaintiff served its responses to Special Interrogatory No. 51, Plaintiff produced about 1,000 documents to Defendant, and those documents contain the information sought in request No. 51.

Plaintiff served supplemental responses to Special Interrogatory No. 51 on February 1, 2019.

Sanctions should not be imposed because (1) Plaintiff’s response was in substantial compliance with the CCP and (2) any delay in making a supplemental response was due to the mistake, inadvertence, surprise, or excusable neglect of Plaintiff’s former attorney. Plaintiff’s new counsel has been diligent in responding to discovery.

REPLY— filed 02/05/19

Plaintiff offers no legitimate basis for withholding key witness contact information (requested by SROG No. 51) for more than six months. This motion is the seventh discovery motion to compel Plaintiff to comply with its discovery obligations.

Plaintiff’s assertion that the contact information of contractors is in the 1,000 pages of documents produced is not true. Plaintiff does not point to any specific page where the contact information is located.

Sanctions should be imposed.

TENTATIVE RULING

Defendant/Cross-Complainant Jack Abaian dba Imperial Windows and Doors’ motion for an order compelling Plaintiff/Cross-Defendant VD&C Variety Development and Construction to provide further responses to Defendant/Cross-Complainant’s Special Interrogatories (Set Two) No. 51 is GRANTED. (Code Civ. Proc. § 2030.300, subd. (a)(1).) Plaintiff is ordered to give further responses within 20 days of this order. Defendant’s request for sanctions is GRANTED in the reduced amount of $1,060. (Code Civ. Proc., §§ 2023.010, subd. (h), 2023.030, subd. (a).)

ANALYSIS

Defendant/Cross-Complainant Jack Abaian dba Imperial Windows and Doors (“Defendant”) moves for an order compelling Plaintiff/Cross-Defendant VD&C Variety Development and Construction (“Plaintiff”) to provide further responses to Defendant Special Interrogatories, Set Two, (“SROG”) No. 51. Plaintiff opposes.

I. Notice of motion cites authority for compelling initial responses, not compelling further responses

Defendant’s notice of motion cites Code of Civil Procedure section 2030.290, subdivision (a), which is the authority to compel initial responses. Plaintiff has responded to Defendant’s Special Interrogatory No. 51. (Shabel Decl. ¶ 3, Exh. B.) Therefore, section 2030.290 is not the proper authority for the relief requested by Defendant. Defendant should have moved under 2030.300, which is the authority to compel further responses. However, because Plaintiff treated this motion as a motion to compel further responses (for example, Plaintiff filed a separate statement) and did not object to the motion based on Defendant citing the incorrect authority, the court proceeds to analyze the motion as a motion to compel further responses.

II. Procedural requirements for motion to compel further responses are met

Timeliness of Motion – OK

A motion to compel further responses must be filed within 45 days after verified responses, or any verified supplemental responses, unless the parties agree in writing to extend the time. (Code Civ. Proc., § 2030.300, subd. (c).) Any obligation to respond within a period prescribed by statute after service of a document shall be extended by five calendar days upon service by mail. (Code Civ. Proc., § 1013, subd. (a).)

Here, Defendant shows that Plaintiff served “Supplemental Responses to Abaian’s Special Interrogatories Set No. Two” on August 23, 2018 by mail. (Decl. Shabel, Exh. B.) However, the court notes that the August 23, 2018 responses to SROG were initial responses, not supplemental ones. Defendant filed this motion on October 2, 2018, which is less than 50 days from when Plaintiff’s responses were served. Accordingly, Defendant’s motion is timely.

Separate Statement – OK

California Rules of Court, rule 3.1345 requires that any motion or response involving the content of discovery, including motions to compel further responses to a demand for inspection of documents (Cal. Rules of Court, rule 3.1345(a)(3)), contain a separate statement with the text of each request, the response, and a statement of factual and legal reasons for compelling further. (Cal. Rules of Court, rule 3.1345(a).)

Here, Defendant filed a separate statement that contains the demand, Plaintiff’s responses verbatim, and reasons for compelling a further response. The Court finds that Defendant sufficiently satisfies California Rules of Court, rule 3.1345.

Meet and Confer – OK

A motion to compel further responses must be accompanied by a meet and confer declaration under the Code of Civil Procedure section 2016.040. (Code Civ. Proc., § 2031.310, subd. (b)(2).) A meet and confer declaration must state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion. (Code Civ. Proc., § 2016.040.) A meet and confer can be accomplished through an in-person meeting, a telephone conversation, or a letter, but the moving party does not have to perform more than one of these.

Here, counsel for Defendant, Scott Lee Shabel, sent a meet and confer letter to counsel for Plaintiff on August 28, 2018 in response to Plaintiff’s responses to SROG No. 51. (Shabel Decl. ¶ 5, Exh. C.) Shabel asserts that Plaintiff did not respond to the meet and confer letter. (Shabel Decl. ¶ 5.)

Based on the foregoing, Defendant has sufficiently complied with the meet and confer requirement.

III. Motion to compel further responses is granted

The party to whom interrogatories have been propounded shall respond in writing under oath separately to each interrogatory by any of the following:

(1) An answer containing the information sought to be discovered.

(2) An exercise of the party’s option to produce writings.

(3) An objection to the particular interrogatory.

(Code Civ. Proc. § 2030.210, subd. (a).)

If a timely motion to compel has been filed, the burden is on the responding party to justify any objection or failure to fully answer the interrogatories. (Coy v. Superior Court (1962) 58 Cal.2d 210, 220–221; Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255. A court may compel further responses to a discovery request when “[a]n answer to a particular interrogatory is evasive or incomplete.” (Code Civ. Proc. § 2030.300, subd. (a)(1).)

SROG No. 51 states, “State the name, last known address, phone number and email address for each subcontractor who performed any construction services at the Property for your or any contract hired by your since January 1, 2015.”

Defendant served SROG on Plaintiff on July 9, 2018. (Shabel Decl. Exh. A.) Plaintiff served initial responses to SROG on August 23, 2018. (Shabel Decl. Exh. B.) In response to No. 51, Plaintiff identified 6 subcontractors. However, David Su, who is Plaintiff’s principal, identified 15 subcontractors (not by name) at his deposition on August 23, 2018. (Shabel Decl. ¶ 7, Exh. D.) The court notes that Su identified these additional subcontractors at the same time Defendant served discovery responses with a few number of identified subcontractors.

On February 1, 2019, Plaintiff served “Supplemental Responses to Jack Abaian’s Request for Special Interrogatories, Set Two”. (Braunstein Decl., ¶ 7, Exh. A.) The February 1, 2019 supplemental response identifies 35 additional subcontractors in response to SROG No. 51.

In reply, Defendant notes that the supplemental responses still have gaps in the requested information. For example, some of the contractors’ physical address and phone numbers are not provided. Upon review of the supplemental responses, the court notes that some information appears to be lacking. Defendant does not state that the responses are complete based on the information reasonably available to Defendant and does not state that the interrogatory cannot be answered fully.

To the extent that Plaintiff argues that it need not fully comply with SROG No. 51 because it has provided discovery to Defendant through document production, this argument lacks merit. “A party is permitted to use multiple methods of obtaining discovery and the fact that information was disclosed under one method is not, standing alone, a proper basis for refusing to provide discovery under another method.” (Irvington-Moore, Inc. v. Superior Court (1993) 14 Cal.App.4th 733, 739 [citing Coy v. Superior Court (1962) 58 Cal.2d 210, 218-219].)

Based on the foregoing, the court finds that Plaintiffs’ responses are evasive or incomplete. Initially, Plaintiffs appear to have withheld responses from Defendant because Su knew of the additional contractors at around the same time that Plaintiff initially responded to SROG No. 51. In the supplemental responses, some information for the additional contractors is still missing. Plaintiff has not indicated that they have provided all the information that is reasonably available to it. (Code Civ. Proc., § 2030.220, subd. (a).) And Plaintiff has not indicated what limits there are to Plaintiff’s ability to respond. (Id. at subd. (b).)

Accordingly, Defendant’s motion is GRANTED. (Code Civ. Proc., § 2030.300, subd. (a)(1).)

IV. Sanctions

Defendant request sanctions against Plaintiff and its counsel, Steven R. Napoles, in the amount of $1,860.00.

The court “shall” impose a monetary sanction against the losing party on the motion to compel unless it finds that party acted “with substantial justification” or other circumstances render the sanction “unjust.” (Code Civ. Proc., §§ 2030.290, subd. (c), 2030.300, subd. (d), 2031.300, subd. (c), 2031.310, subd. (h).) The court may impose a monetary sanction against a party who unsuccessfully opposes a motion to compel. (Code Civ. Proc., §§ 2023.010, subd. (h), 2023.030, subd. (a).)

Here, Defendant has successfully brought a motion to compel further responses against Plaintiff. The court does not find that Plaintiff acted with substantial justification as Plaintiff appears to have withheld request discovery information from its initial response to SROG No. 51. These circumstances would not render a monetary sanction unjust.

Counsel for Defendant, Scott Lee Shabel, states his hourly rate is $450. (Shabel Decl. ¶ 9.) He states he spent 3 hours meeting and conferring with Plaintiff and anticipates spending 1 hour at the hearing. (Ibid.)

The court finds that an hourly rate of $250 is reasonable for a discovery motion. The court finds that 4 hours in preparing this motion, filing a reply, and attending the hearing is a reasonable amount of attorney time under these circumstances.

Therefore, the Court GRANTS Defendant’s request for monetary sanctions against Plaintiff and its counsel in the reduced amount of $1,060 (4 hours times $250/hour plus $60 filing fee), due in full in 14 days. (Code Civ. Proc., §§ 2023.010, subd. (h), 2023.030, subd. (a).)