Case Name: Jatoft-Foti Insurance Agency, Inc., et al. v. Behnam Halali, et al.
Case No.: 1-12-CV-233118

Currently before the Court is the motion of plaintiff Jatoft-Foti Insurance Agency, Inc.’s (“JFIA”) to compel defendant Ernesto Magat (“Magat”) to provide initial responses to requests for production of documents, set one (“RPD”).

This is a trade secret misappropriation case. JFIA and its principals John Jatoft (“Jatoft”) and Don Foti (collectively, “Plaintiffs”) allege that they terminated the contracts of a number of their former insurance agents after learning in January 2012 of a plan by the agents to collect commissions on “phantom” policy sales. Plaintiffs further allege that certain terminated agents were hired by competing insurance agencies and used Plaintiffs’ trade secret information to target their customers. Defendants and cross-complainants Magat, Craig Jilge, David Fung, Karen Gagarin, David Chung, and Phuong Chung (collectively, “Defendants”) are former JFIA insurance agents who either were terminated or resigned following the investigation into the activities allegedly discovered in January 2012.

On April 19, 2013, JFIA served the RPD on Magat. (See Kramer Decl., Ex. A.) After receiving no response to the RPD, JFIA’s counsel, John Heller, emailed counsel for Magat on December 22, 2014, and requested service of responses to the RPD without objections. (See Kramer Decl., Ex. B.) The same day, Magat’s counsel sent an email in reply, indicating that responses would be provided after he checked “to see if we previously submitted these responses.” (See Kramer Decl., Ex. B.) On December 23, 2014, Lauren Kramer, another attorney for JFIA, sent a follow-up email requesting that responses be provided no later than January 6, 2015. (See Kramer Decl., Ex. B.) Magat’s counsel never responded to this email.

JFIA moves to compel initial responses to the RPD on the ground that Magat did not provide any responses to the demand. (See Code Civ. Proc., §§ 2031.300, subd. (b) [party may move for order compelling an initial response to request for production], 2031.260 [within 30 days of service of request, party must serve responses]; Leach v. Super. Ct. (1980) 111 Cal.App.3d 902, 905-906 [moving party need only show discovery properly propounded and timely response not served].) In opposition, Magat indicates that he served initial responses to the RPD on January 16, 2015, after JFIA filed its motion to compel on January 7, 2015. (See Lindstrom Decl., ¶ 12, Ex. G.)

Given that Magat served responses to the RPD after JFIA filed its motion, the motion to compel initial responses to the RPD is DENIED as MOOT. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408-409 [when discovery responses served after motion to compel filed, court has discretion to deny motion as moot].) Since the responses to the RPD are not timely, all objections are waived. (See Code Civ. Proc., § 2031.300, subd. (a).) If JFIA deems the supplemental responses to be deficient, JFIA should meet and confer with Magat in an effort to avoid the need for any further court intervention.

JFIA’s request for monetary sanctions pursuant to Code of Civil Procedure section 2031.300, subdivision (c) is DENIED. The request is not code-compliant because JFIA’s notice of motion does not identify the persons, party and/or attorney against whom the sanction is sought. (See Code Civ. Proc., § 2023.040 [“A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought.” Emphasis added].)

Magat’s request for monetary sanctions against JFIA for failing to adequately meet and confer is DENIED. (See Sinaiko Healthcare Consulting, Inc., supra, 148 Cal.App.4th at p. 411 [no meet and confer requirement for bringing motion to compel initial responses]; Leach, supra, 111 Cal.App.3d at p. 906 [same].)

The Court will prepare the order.