Pagnian Americas, Inc vs. Trusound, Usa, Inc.

Motion to Compel Answers to Interrogatories

Cal. Super. - 4th Dist.September 28, 2016

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Curtis M. Permito, Esq. ssn 186843 Carl J. Skaja, Esq. sBN 185852 SKAJA | DANIELS | LISTER | PERMITO, LLP 960 Canterbury Place, Suite 110 Escondido, CA 92025 T 760 781 3464 | F 760 755 1322 curt@sdlplaw.com | www.sdlplaw.com Counsel for Defendant BRETT REZNICHEK SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF ORANGE PAGNIAN AMERICAS, INC., Case No: 30-2016-00877689-CU-BC-CJC DEFENDANT BRETT REZNICHEK’S NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES TO SPECIAL INTERROGATORIES (SET ONE) [IMAGED FILE] Plaintiff, VS. TRUSOUND, USA LLC; BRETT REZNICHEK; SEAN NICHOLS; and DOES 1 through 10. Hearing date: December 7, 2017 Time: 1:30 p.m. Dept: C-33 Defendants. AND ALL RELATED CROSS-ACTIONS Ne er ” N i r ” N a e N e ? “ m e t m e t ? “m it ” “ m t “m et ? “ s e t “s rt ? “s em e “ s a t “ s t “ a e “ s e TO ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT on December 7, 2017 at 1:30 p.m. in Department 33 of the above-captioned court located at 700 Civic Center Drive West, Santa Ana, CA 92701, Defendant BRETT REZNICHEK (“DEFENDANT”) will move the Court for an order compelling Plaintiff PAGNIAN AMERICAS, INC. (“PLAINTIFF”) to serve on DEFENDANT full and complete verified answers, without objections, to DEFENDANT’S Special Interrogatories (Set One). 1 DEFENDANT BRETT REZNICHEK’S NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES TO SPECAL INTERROGATORIES (SET ONE) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 This motion is made pursuant to Section 2030.290 ofthe Code of Civil Procedure on the grounds that PLAINTIFF has failed, without justification, to respond to this proper discovery by serving any responses. Notice is additionally given that DEFENDANT will request that the Court award monetary sanctions against PLAINTIFF, and in favor ofDEFENDANT in the sum of $3,040.00 pursuant to C.C.P. §§ 2023.010 et seq., and C.C.P. § 2030.290, representing the reasonable attorney’s fees and costs incurred in connection with the need to bring this motion. This motion is further based upon this notice; the memorandum of points and authorities, the Declaration of Curtis Permito, and Notice ofLodgment filed herewith; upon the records and files in this action; and upon such further evidence and argument as may be presented prior to or at the time of hearing on the instant motion. Respectfully Submitted, Dated: {D1 -\7) SKAJA | DANIELS | LISTER | PERMITO, LLP CN Curtis Permito, Esq. Counsel for Defendant Brett Reznichek 2 DEFENDANT BRETT REZNICHEK'S NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES TO SPECAL INTERROGATORIES (SET ONE) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 MEMORANDUM OF POINTS AND AUTHORITIES L FACTUAL SUMMARY On January 4, 2017 Plaintiff filed their Complaint for Conversion, Constructive Trust, Misrepresentation, Breach ofImplied Covenant of Good Faith and Breach of Contract. On July 27,2017 Defendant Reznichekfiled his cross-complaint against Defendant and Cross-Defendant Sean Nicholas for indemnity/contribution. Plaintiff alleges that Defendants breached an agreement by failing to perform and misrepresenting certain material facts coincident with the breach. Plaintiff seeks compensatory, punitive damages and interest. Defendant denies all allegations and seeks indemnity/contribution from defendant and cross-defendant Sean Nicholas. On August 3, 2017 Defendant (through counsel) served upon Plaintiff Form Interrogatories, Set One; Special Interrogatories, Set One; Request for Production ofDocuments, Set No. One; and Requests for Admission, Set One. (Declaration ofCurtis M. Permito § 3 and Notice ofLodgment (“NOL”) Exhibits “A” through “D” filed concurrently herewith). Pursuant to California Code ofCivil Procedure, Plaintiff’s responses were due on or before September 7, 2017. (Permito Decl. 9 4). No responses were ever received by that date from Plaintiff. (Permito Decl. § 5). Instead, on September 4, 2017 Plaintiff requested a three-week extension. (/d.). Defendant granted an extension until September 18, 2017. (Permito Decl. § 5 and NOL Exhibit “E”). On September 27, 2017, Defendant again inquired about Plaintiff's now-late discovery responses. Defendant received no response. (Permito Decl. § 6 and NOL Exhibit “F”). On October 2, 2017, Defendant again inquired about Plaintiff’s tardy discovery responses and attempted to meet and confer despite having no obligation to do so. (Permito Decl. § 7 and NOL Exhibit “F”). On October 3, 2017 Plaintiff's counsel responded that the late discovery responses would be provided no-later-than October 4, 2017. (Id). Finally, on October 6, 2017, Plaintiff’s counsel, having missed her own self-imposed October 4, 2017 deadline notified Defendant by promising delivery of the late discovery responses “sometime this weekend” which would have been October 7 or 8, 2017. (Permito Decl. § 8 and NOL Exhibit “G”). 3 DEFENDANT BRETT REZNICHEK'S NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES TO SPECAL INTERROGATORIES (SET ONE) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Having received no response to the written discovery demands and no objections to those demands, Defendant has been forced to seek judicial intervention as the information sought is necessary in order to proceed with depositions, and to effectively defend this action and prepare for trial in that discovery seeks information material to plaintiff’s causes of action. (Permito Decl. § 9). IL ARGUMENT A. THE COURT IS AUTHORIZED TO COMPEL FULL, COMPLETE AND VERIFIED ANSWERS TO DEFENDANT’S REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE. Unless excused by a protective order, the party to whom the interrogatories are directed is under a duty to respond to each question separately, under oath, and within 30 days from the date the interrogatories were served. (C.C.P. § 2030.210(a).) Ifa party to whom interrogatories are directed either fails to respond at all, or responds with objections or incomplete or unverified answers,the propounding party's remedy is to seek a court order compelling verified answers (or further answers) to the interrogatories. (C.C.P. §§ 2030.290, 2030.300.) Here, DEEFNDANT’S Special Interrogatories were duly served upon PLAINTIFF on August 3, 2017. To date, no responses have been received despite DEFENDANT’S extensive efforts to meet and confer with PLAINTIFE’S counsels of record. Accordingly, PLAINTIFF has failed to timely serve responses to each interrogatory under oath in accordance with Section 2030.210 of the Code of Civil Procedure. The party served with the interrogatories has the burden ofpersuasion in establishing good cause why they should not be answered. (Coriell v. Superior Court (2d. dist. 1974) 39 Cal. App. 3d 487, 489.) PLAINTIFF cannot meet this burden because it has simply neglected its obligation to answer these interrogatories. Forthese reasons, DEFENDANT respectfully requests this Court to compel PLAINTIFF to serve full, complete and verified responses to each request within DEFENDANT'S Special Interrogatories, Set One. B. DEFENDANT HAS MADE SEVERAL ATTEMPTS TO AVOID THIS MOTION 4 DEFENDANT BRETT REZNICHEK'S NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES TO SPECAL INTERROGATORIES (SET ONE) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Although no informal attempts are technically required to obtain answers were no verified responses are received (Leach v. Superior Court (3d Dist. 1980), 11 Cal. App. 3d 902, 906), DEFENDANT has nevertheless made numerous good faith attempts to resolve this matter informally with counsel for PLAINTIFF, all of which were futile, necessitating the instant motion. (See Permito Dec., § 5 through 8). C. MONETARY SANCTIONS AGAINST PLAINTIFF ARE WARRANTED “Misuses of the discovery process include, but are not limited to...(d) Failing to respond or to submit to an authorized method of discovery...(h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery.” (C.C.P. § 2023.010.) “To the extent authorized by the chapter governing any particular discovery method or any other provision ofthistitle, the court, after notice to any affected party, person or attorney, and after opportunity for hearing may impose...sanctions against anyone engaging in conduct that is a misuse of the discovery process...” (C.C.P. § 2023.030.) As to a motion to compel responses to interrogatories: “The court shallimpose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person or attorney who unsuccessfully makes or opposes a motion to compel a 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.” (C.C.P. § 2023.290(c) (emphasis added).) In this case, there is no excuse or justification for PLAINTIFE’S failure to provide responses. The Declaration of Curtis Permito submitted herewith evidences the efforts expended on the part of this moving party to avoid this motion. The purpose of discovery sanctions is to prevent abuse of the discovery process and correct the problem presented. (Do. v. Superior Court (2003) 109 Cal. App. 4th 1210, 1213.) It is evident from the facts presented that PLAINTIFF will not comply with this authorized method of discovery absent a court order and the imposition of sanctions. Accordingly, pursuant Sections 2023.010, 2023.030, and 2030.290(c) of the Code of Civil Procedure and the power ofthis Court to impose monetary sanctions against the losing party on a motion 5 DEFENDANT BRETT REZNICHEK'S NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES TO SPECAL INTERROGATORIES (SET ONE) 10 1" 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 to compel answers to interrogatories, DEFENDANT submits that given the multiple attempts by its counsel to avoid this motion, the lack of responses, and PLAINTIFF'S refusal to comply as agreed or otherwise supplement its responses accordingly, sanctions must properly be awarded to DEFENDANT and against PLAINTIFF in the amount of § 3,040.00, as reflected in the Declaration Curtis Permito. II. CONCLUSION In conclusion, DEFENDANT respectfully requests that this Court grant this motion to compel PLAINTIFF to provide full and complete verified responses, without objections, to DEFENDANT’S Special Interrogatories, Set One propounded on August 3, 2017, and issue an order directing PLAINTIFF, to serve said responses, without objections, within thirty (30) days of this Court’s ruling. Lastly, DEFENDANT respectfully requests monetary sanctions be awarded in the amount of $3,040.00 against PLAINTIFF and in favor ofDEFENDANT for misuse of discovery and for opposing this motion without substantial justification. Respectfully Submitted, Dated: [071] - SKAJA | DANIELS | LISTER | PERMITO, LLP CS— Curtis Permito, Tsq. Counsel for Defendant Brett Reznichek 6 DEFENDANT BRETT REZNICHEK’S NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES TO SPECAL INTERROGATORIES (SET ONE) WO W 0 ~ N O O o r B A W w O N = N O N N D N N N N 2 = a a a a A d d w d a d w d a a a A B A W N L a O O © N h W N O O PROOF OF SERVICE | am employed in the County of San Diego, State of California, over the age of eighteen (18) and not a party to this action. My business address is 960 Canterbury Place, Ste. 110, Escondido, California 92025, which is where the mailing occurs. | am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. postal service on that same day with the postage thereon fully prepaid at Escondido, California, in the ordinary course of business. On this date, | caused to be served the following documents to the following persons and/or entities: ltems: 1. NOTICE OF MOTION AND MOTION TO DEEM THE TRUTH OF MATTERS SPECIFIED IN REQUESTS FOR ADMISSION, SET ONE ADMITTED AND CONCLUSIVELY ESTABLISHED; REQUEST FOR SANCTIONS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 2. DEFENDANT BRETT REZNICHEK’S NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES TO SPECIAL INTERROGATORIES (SET ONE) 3. DEFENDANT BRETT REZNICHEK’S NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS (SET ONE 4. DEFENDANT BRETT REZNICHEK’S NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES TO FORM INTERROGATORIES (SET ONE) 5. NOTICE OF LODGMENT IN SUPPORT OF DEFENDANT'S MOTIONS TO COMPEL DISCOVERY AND MOTION TO DEEM THE TRUTH OF MATTERS SPECIFIED IN REQUESTS FOR ADMISSION, SET ONE; ADMITTED AND CONCLUSIVELY ESTABLISHED 6. DECLARATION OF CURTIS M. PERMITO, ESQ. IN SUPPORT OF DEFENDANT BRETT REZNICHEK’S MOTIONS TO COMPEL DISCOVERY AND MOTION TO DEEM THE TRUTH OF MATTERS SPECIFIED IN REQUESTS FOR ADMISSION, SET ONE, ADMITTED AND CONCLUSIVELY ESTABLISHED Service List: Tania Rose ROSECOUNSEL 1389 Jefferson St. D301 Oakland, CA 94612 | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 7| id Dated: 10/11/2017 We re Elise Crammer — Page 1 of 1 PROOF OF SERVICE