Case Name: Hussen Desta v. Ermiyas Tiku, et al.

Case No.: 16CV291053

Motion to Compel Further Responses to Specially Prepared Interrogatories and Inspection Demand and Request for Sanctions

Factual and Procedural Background

In the operative second amended complaint (“SAC”) filed May 9, 2017, plaintiff Hussen Desta (“Desta”) alleges he was the owner of EZ Park and Fly which provides parking and taxi services to the San Jose Airport. (SAC, ¶1.) On October 21, 2008 and April 20, 2015, plaintiff Desta filed a fictitious business name statement for EZ Park and Fly. (SAC, ¶5.) Plaintiff Desta operated his parking and taxi service at 1610 North 4th Street in San Jose from 2008 until 2011 when his lease expired. (SAC, ¶6.) Plaintiff Desta then moved his business to 80 North 5th Street in San Jose. (Id.)

Defendant Ermiyas Tiku (“Tiku”) leased the property at 1610 North 4th Street in San Jose after plaintiff’s company moved from that address in 2011. (SAC, ¶7.) Defendant Tiku was the owner of Fast Airport Parking which provided parking and taxi services to the San Jose Airport. (SAC, ¶2.) From 2011 to present, defendant Tiku used plaintiff’s company name, EZ Park and Fly, without plaintiff Desta’s prior consent or authorization. (SAC, ¶¶7, 9, and 10.) Plaintiff Desta has lost customers and income as a result of defendant Tiku’s use of plaintiff’s company name. (SAC, ¶11.)

Defendant Elias Tesfa (“Tesfa”), plaintiff Desta, and Dawit Tesfa formed EZ Park Fly LLC on or about July 30, 2010 to operate the company EZ Park and Fly, but EZ Park Fly LLC did not own the name EZ Park and Fly. (SAC, ¶3.) Sometime after February 2, 2016, plaintiff Desta discovered defendant Tesfa sold the name EZ Park and Fly to defendant Tiku without plaintiff’s authorization. (SAC, ¶12.) Plaintiff did not receive any money from the unauthorized sale of his business name. (Id.)

Plaintiff Desta’s SAC alleges causes of action for:

(1) Violation of California Civil Code Section 3344(a)
(2) Violation of California Business and Professions Code Section 17203
(3) Intentional Misrepresentation
(4) Negligent Misrepresentation
(5) Conversion

On June 13, 2017, defendant Tiku filed an answer to plaintiff Desta’s SAC. On June 30, 2017, defendant Tesfa filed an answer to plaintiff Desta’s SAC.

Discovery Dispute

On August 14, 2018, plaintiff Hussen Desta (“Desta”) served defendant Ermiyas Tiku (“Tiku”) with a first set of specially prepared interrogatories (“SI”) and inspection demand (“RPD”). On September 28, 2018, defendant Tiku served plaintiff Desta with his responses to SI and RPD consisting entirely of objections.

On October 4, 2018, plaintiff Desta’s counsel e-mailed a meet and confer letter to defendant Tiku’s counsel. On October 11, 2018, plaintiff Desta’s counsel made an ex-parte application for an order shortening time for hearing and service of a motion to compel further responses. The court (Hon. Pierce) granted an order shortening time allowing plaintiff Desta to file the instant motion to compel further responses and setting the hearing for October 23, 2018.

I. Plaintiff Desta’s motion to compel further responses to specially prepared interrogatories and inspection demand and request for sanctions is DENIED.

As a preliminary matter, defendant Tiku opposes plaintiff Desta’s motion on the basis that plaintiff Desta failed to comply with California Rules of Court, rule 3.1345, subdivision (a) which states, in relevant part, “Any motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement. The motions that require a separate statement include a motion: … (2) To compel further responses to interrogatories; (3) To compel further responses to a demand for inspection of documents or tangible things.” Plaintiff did not provide a separate statement in compliance with California Rules of Court, rule 3.1345.

Where the party moving to compel a further response to discovery fails to comply with California Rules of Court, rule 3.1345, “the trial court [is] well within its discretion to deny the motion to compel discovery on that basis.” (Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 893.)

In addition, with regard to plaintiff Desta’s motion to compel further response to RPD, the motion “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.” (Code Civ. Proc., §2031.310, subd. (b)(1); Kirkland v. Sup. Ct. (2002) 95 Cal.App.4th 92, 98.) 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). (Glenfed Develop. Corp. v. Sup. Ct. (1997) 53 Cal.4th 1113, 1117.) Plaintiff Desta has not made the requisite showing of good cause. Plaintiff Desta states only that he “needs this information to help establish the amount of damages plaintiff will claim during the trial in this matter.” This is not an adequate showing of good cause.

For the reasons stated above, plaintiff Desta’s motion to compel further responses to specially prepared interrogatories and inspection demand and request for sanctions is DENIED.