Motion_to_compel_answers_to_interrogatoriesMotionCal. Super. - 4th Dist.March 5, 2020Electronically Filed by Superior Court of California, County of Orange, 06/19/2020 01:11:00 PM. 30-2020-01137228-CU-BT-CJ C - ROA #20 - DAVID H. YAMASAKI, Clerk of the Court By Giovanni Galon, Deputy Clerk. ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Douglas B. Vanderpool (SBN 162857) Michael J. Fairchild (SBN 225946) Heather A. Tovar (SBN 237004) THE VANDERPOOL LAW FIRM 330 Main Street, Suite 203-B Seal Beach, CA 90740 Tel: 562.431.6900; Fax: 714.276.0558 doug @vanderpool-law.com heather @vanderpool-law.com Attorneys for Plaintiffs Marie Christine Jaspard and Boulangerie Pierre & Patisserie, LLC THE SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE - CENTRAL JUSTICE CENTER MARIE CHRISTINE JASPARD, an individual;| Case No.: 30-2020-01137228 in her individual capacity and derivatively on Assigned for All Purposes to: behalf of BOULANGERIE PIERRE & Hon. Richard Lee PATISSERIE, LLC, a California limited Dept. C31 liability company, Plaintiffs, NOTICE OF MOTION AND MOTION TO VS. COMPEL RESPONSES TO FORM INTERROGATORIES (SET ONE) TO PIERRE JASPARD, an individual; TRANG TRANG THI NGUYEN; REQUEST FOR THI NGUYEN; an individual; MONETARY SANCTIONS BOULANGERIE PIERRE & PATISSERIE II, INC., a California corporation; [Filed Concurrently with Motions to Compel Responses BOULANGERIE PIERRE & PATISSERIE, to Request for Production of Documents (Set One) and LLC, a California limited liability company, as [Motion to Deem Request for Admissions (Set One) a Nominal Defendant; and DOES 1 through 50, |Admitted, Consolidated Declaration of Heather A. Tovar and (Proposed) Orders] Defendants. Date: September 24, 2020 Time: 1:30 p.m. Dept: C31 Reservation #73324693 0- MOTION TO COMPEL RESPONSES TO FORM INTERROGATORIES (SET ONE) ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO THE COURT, ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on September 2020 at 1:30 p.m. Plaintiff Marie Christine Jaspard, individually and derivatively on behalf of Boulangerie Pierre & Patisserie, LLC (collectively, “Plaintiffs”) will move for an order compelling Defendant Trang Thi Nguyen to serve objection-free, verified responses to Form Interrogatories (Set One) within ten days of this hearing pursuant to California Code of Civil Procedure §2030.290(b). Plaintiffs served discovery to Defendants Pierre Jaspard and Trang Thi Nguyen then-attorney of record, Alex Benedict who represented Defendants in the prior action, Jaspard v. Jaspard, OCSC Case No. 30-2018- 01008029. Only after Plaintiffs served the discovery on Mr. Benedict did he choose not to represent them in this instant action. Plaintiffs are informed and believe that Mr. Benedict either did not advise new counsel of the pending discovery, or simply chose to ignore it altogether. In either event, Mr. Benedict now refuses to respond to any of Plaintiffs’ communications. Plaintiffs also will move for an order imposing monetary sanctions against Defendant Trang Thi Nguyen and her former counsel, Alex Benedict and/or her current counsel, John Hamilton, in the amount of $1,110.00 for the reasonable costs and attorney fees incurred by Plaintiff for this particular motion. This Motion is made pursuant to this Notice, the attached Memorandum of Points and Authorities, the Declaration of Heather A. Tovar, the records and files of this Court and upon all other such evidence as the Court deems just and proper. Dated: June 19, 2020 THE VANDERPOOL LAW FIRM Heather A. Tovar Douglas B. Vanderpool, Heather A. Tovar, Attorneys for Plaintiffs Marie Christine Jaspard and Boulangerie Pierre & Patisserie, LLC -1- MOTION TO COMPEL RESPONSES TO FORM INTERROGATORIES (SET ONE) ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff, Marie Christine Jaspard individually (“Christine”) and derivatively on behalf of Boulangerie Pierre & Patisserie, LLP (the “Company, and collectively with Christine, “Plaintiffs”) served Defendant Trang Thi Nguyen (“Nguyen”) with Form Interrogatories (Set One) on April 2, 2020 to her self-proclaimed attorney of record, Alex Benedict. Only after the discovery was served did John Hamilton appear as the Defendant’s counsel of record. Neither Mr. Benedict nor Mr. Hamilton will respond to communications regarding the discovery and no responses have been received. For these reasons, the Court should 1) enter an order compelling Defendant Nguyen to serve verified, objection-free responses to Form Interrogatories (Set One); and 2) order Defendant Nguyen and her former counsel Alex Benedict and/or her current counsel, John Hamilton, to pay monetary sanctions in the amount of $1,110.00 within ten days of the hearing on the motion to compel. II. RELEVANT FACTUAL SUMMARY This action arises from the breach of an Amended and Restated Operating Agreement for the operation of Boulangerie Pierre & Patisserie, LLC — the Company. Plaintiffs filed the instant action on March 5, 2020 alleging causes of action for Breach of Contract; Conversion; Accounting; Breach of Fiduciary Duty (individually and derivatively on behalf of the Company); Embezzlement and Restitution/Unjust Enrichment (derivative claims); Judicial Enforcement of Right to Inspect; Involuntary Dissolution of Limited Liability Company; and Injunction. (Declaration of Heather A. Tovar [“Tovar Decl.”] 4.) This lawsuit is one of several filed by and between the parties over the past three years. In 2018, Plaintiff filed a similar action against Pierre and his girlfriend, Trang Thi Nguyen (“Nguyen”), entitled Jaspard v. Jaspard, OCSC Case No. 30-2018-01008029. (The “Ownership Dispute Action.”) Pierre and Ms. Nguyen were represented by Alex Benedict of the Law Offices of Alex Benedict & Associates APC. (Tovar Decl. {5 and Ex. 1.) Mr. Benedict also represented Pierre in an Unlawful Detainer action he filed against the Company on May 2, 2019 entitled Jaspard v. Boulangerie Pierre & Patisserie, LLP, 2 MOTION TO COMPEL RESPONSES TO FORM INTERROGATORIES (SET ONE) ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 OCSC Case No. 30-2019-01067430. (Tovar Decl. 7 and Ex. 2.) In the Ownership Dispute Action, the parties stipulated to binding judicial arbitration, and Plaintiffs’ complaint was dismissed without prejudice. Ultimately, the Court confirmed the Arbitration Award in Plaintiffs’ favor (finding that Pierre had submitted forged documents), and entered Judgment on Pierre’s cross-complaint in the Ownership Dispute Action. (Tovar Decl. 99.) Unfortunately, after Judgment was entered in the Ownership Dispute Action, Pierre continued his efforts to evict the Company from its leased premises and further breached his fiduciary duties to both Christine and the Company, which caused Plaintiffs to file this action. In addition to his prior acts of falsifying records and converting Company monies for both his and Ms. Nguyen’s benefit, Pierre has also recently been requiring customers and vendors to pay in cash and has pocketed the money for his own personal use. Pierre also began asking for employees’ resignations, promising to re-hire them at his competing bakery but all the while paying them from the Company bank accounts. (Tovar Decl. 10; see, Complaint {{50-53.) III. RELEVANT PROCEDURAL SUMMARY On March 11, 2020, about a week after the instant action was filed, Mr. Benedict contacted Plaintiffs’ counsel — purporting to represent Pierre. He complained that his client had been locked out of the Company bakery and demanded that access for Pierre be immediately restored. Mr. Benedict also threatened to file a demurrer to Plaintiffs’ Complaint in this instant action, and seek sanctions against both Plaintiffs and their counsel. (Tovar Decl. {11 and Exh. 3. [March 11, 2020 e-mail from Mr. Benedict].) Plaintiffs served Defendants with the Summons and Complaint in this action on March 15, 2020. (Tovar Decl. {13.) On March 19, 2020, Plaintiffs’ counsel asked Mr. Benedict if he would agree to e-service for all documents in each of the pending cases between the parties, including the Ownership Dispute Action, the unlawful detainer actions, and instant action. Mr. Benedict specifically agreed. (Tovar Decl. {14 and Exh. 4.) Thereafter, Plaintiffs served three sets of written discovery consisting of: (1) Form Interrogatories; (2) Requests for Admission; and (3) Requests for Production of Documents to 3 MOTION TO COMPEL RESPONSES TO FORM INTERROGATORIES (SET ONE) ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pierre via electronic service to Mr. Benedict on March 31, 2020. (Tovar Decl. {16 and Exhs. 5- 8.) Pierre’s responses were due no later than May 4, 2020. (Tovar Decl. 21.) On April 2, 2020, Plaintiff served Defendant Nguyen with Form Interrogatories, request for Admissions and Request for Production of Documents (Set One) via electronic service to Mr. Benedict. (Tovar Decl. 22 and Exhs. 9-12.) Nguyen’s responses were due no later than May 5, 2020. (Tovar Decl. 27.) On April 3, 2020, Plaintiffs’ counsel received a letter from attorney John Hamilton, stating that he had been retained to represent Pierre and also indicating that Pierre intended on filing a Demurrer to Plaintiffs’ Complaint. Mr. Hamilton’s letter did not state that he was representing Ms. Nguyen. (Tovar Decl. {28 & Exh. 13.) On April 6, 2020, Plaintiffs’ counsel wrote a responsive letter to Mr. Hamilton, advising him that his prior representation of the Company in the Ownership Dispute Action barred him from representing Pierre in this case due to an obvious conflict of interest — which the Company was unwilling to waive. (Tovar Decl. 130 & Exh. 14.) Plaintiffs’ counsel also informed Mr. Hamilton that if he did not voluntarily withdraw as Pierre’s counsel, Plaintiffs would seek to disqualify him. (Id.) Mr. Hamilton ignored Plaintiffs’ communications, and has yet to respond to date. (Tovar Decl. 32.) Convinced that Mr. Hamilton was ethically obligated to withdraw as Pierre’s counsel, Plaintiffs’ counsel against reached out to Mr. Benedict inquiring as to the status of Defendants’ overdue discovery responses (and corresponding document production). Mr. Benedict, however, did not respond. (Tovar Decl. {33 and Exh. 15.) Shortly thereafter, Plaintiffs’ counsel was mail served with both a Demurrer and a Motion for Bond from Mr. Hamilton, who then purported to represent both Pierre and Ms. Nguyen. The Demurrer filed by Mr. Hamilton consisted of the same arguments that Mr. Benedict had asserted in his March 11, 2020 e-mail — wherein he initially stated that he represented Pierre. (Tovar Decl. 35.) While Plaintiffs remained convinced that Mr. Hamilton could not ethically represent Pierre without the Company’s informed written consent to waive the actual conflict of interest, it was presumed that Mr. Benedict had complied with his ethical and professional responsibility to forward the duly served discovery requests to 4- MOTION TO COMPEL RESPONSES TO FORM INTERROGATORIES (SET ONE) ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Mr. Hamilton. It now appears that Mr. Benedict undertook no such efforts. (Tovar Decl. 36.) Thereafter, Plaintiffs’ counsel continued to call and e-mail Mr. Benedict, attempting to ascertain the status of the overdue discovery responses and documents. Despite those efforts, Mr. Benedict continued to ignore Plaintiffs’ communications and has refused to communicate with Plaintiffs’ counsel in any respect. (Tovar Decl. {37 and Exh. 16.) Thus, this motion to compel is necessary. IV. LAW AND ARGUMENT A. Plaintiffs Are Entitled to an Order Compelling Responses to Form Interrogatories. “[ T]he failure to respond to discovery, or the making of evasive responses to discovery, is not condoned.” (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 333.) Failure to timely respond to written interrogatories results in the waiver of all objections, including privilege and work product. (California Code of Civil. Procedure § 2030.290 (a).) “[W]oe betide the party who fails to serve responses before the hearing. In that instance the court has no discretion but to grant the motion, usually with fatal consequences for the defaulting party.” (Demyer v. Costa Mesa Mobile Home Estates (1995) 36 Cal. App.4th 393, 395-396.) The propounding party need not conduct a meet and confer prior to filing a motion for an order to compel responses where no response is provided. (California Code of Civil Procedure §2030.290; see also Weil & Brown, et. al. Cal. Prac. Guide: Civ. Pro. Before Trial. (The Rutter Group 2017) (8:1142. ("The failure to timely respond waives all objections to the interrogatories so there are no issues left to “resolve” with opposing counsel.”) Moreover, there is no time limit for a motion to compel where no responses have been served. (California Code of Civil Procedure §2030.290; see also, Sinaiko Healthcare Consulting, Inc., v. Pacific Healthcare Consultants (2007) 148 Cal. App.4® 390, 410-411.) All that needs to be proven is that a set of interrogatories was served, the time to respond has expired and no response of any kind was given. (Leach v. Sup. Ct. (1980) 111 Cal.App.3d 902, 905-906.) “A separate statement is not required when no response has been provided to the request for discovery.” (Cal. Rules of Court, Rule 3.1345(b).) -5- MOTION TO COMPEL RESPONSES TO FORM INTERROGATORIES (SET ONE) ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Here, it is undisputed that: (1) Plaintiffs electronically served Defendant Nguyen with Form Interrogatories (Set One) on April 2, 2020 to her self-proclaimed attorney of record, Mr. Benedict; (2) Mr. Benedict agreed to accept electronic service of all documents in this action on Pierre’s behalf; (3) Nguyen was required to respond to the Form Interrogatories (Set One) on or before May 5, 2020; (4) Nguyen never requested an extension of time to serve responses and/or objections; and (5) Nguyen refused to provide any responses whatsoever to the Form Interrogatories — which are now long overdue. B. The Rules of Professional Responsibility Require Attorney Benedict to Turn Over Client Files, Including the Relevant Discovery to Nguyen and/or Her New Counsel Upon Termination of His Employment as Counsel of Record. Plaintiffs anticipate that Nguyen will argue that the discovery was not served on her counsel of record, Mr. Hamilton. This argument fails because Plaintiffs served the discovery on Nguyen’s self-proclaimed attorney, Mr. Benedict. Mr. Benedict had an obligation to turn the entire client files, including the subject discovery over to Pierre and/or Mr. Hamilton once he (Mr. Hamilton) took over and began defending/representing Pierre and Ms. Nguyen. California Rule of Professional Conduct 1.16 (formerly Rule 3-700) provides in pertinent part: (e) Upon the termination of a representation for any reason: (1) subject to any applicable protective order, non- disclosure agreement, statute or regulation, the lawyer promptly shall release to the client, at the request of the client, all client materials and property. “Client materials and property” includes correspondence, pleadings, deposition transcripts, experts’ reports and other writings,* exhibits, and physical evidence, whether in tangible, electronic or other form, and other items reasonably* necessary to the client's representation, whether the client has paid for them or not;! It is undisputed that Mr. Benedict served as Defendants Pierre and Nguyen’s attorneys in the Ownership Dispute Action and the Unlawful Detainer action. After Plaintiffs filed this instant action, Mr. Benedict contacted Plaintiffs’ counsel and expressly stated that he represented Pierre, : Writings is defined in CA ST RPC 1.0.1 as “the meaning stated in Evidence Code section 250. A “signed” writing includes an electronic sound, symbol, or process attached to or logically associated with a writing and executed, inserted, or adopted by or at the direction of a person* with the intent to sign the writing.” -6- MOTION TO COMPEL RESPONSES TO FORM INTERROGATORIES (SET ONE) ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 believed that the instant action was improper and that he intended to file a Demurrer to the Complaint. Mr. Benedict even agreed to accept service of all documents in all pending actions, including this instant action via electronic service. In response to Mr. Benedict's express representations, Plaintiffs served him with Form Interrogatories, Request for Admissions and Request for Production of Documents on April 2, 2020. These discovery documents thus became part of the “client file.” Only after these documents were duly served on Mr. Benedict did Mr. Hamilton claim he had been retained to represent Pierre and Nguyen. Pursuant to CA ST. RPC 1.16, Mr. Benedict was required to give Defendants the complete file, including the subject discovery to Nguyen and/or her new counsel, Mr. Hamilton. As colleagues and defense counsel in the Ownership Dispute Action, Mr. Benedict and Mr. Hamilton were undoubtedly familiar with each other and it stands to reason that they communicated about this case as the demurrer filed by Mr. Hamilton coincides with the grounds Mr. Benedict gave to Plaintiff on April 3, 2020. It also stands to reason that Mr. Benedict made Mr. Hamilton of the discovery but the duo chose to engage in gamesmanship and deny proper service. This must not be allowed. C. The Court Must Award Monetary Sanctions. If a party to whom written interrogatories are directed fails to serve a timely response, the requesting party may seek a monetary sanction. (See, California Code of Civil Procedure §2030.290(b).) "The Court shall impose a monetary sanction against the losing party to the motion to compel unless it finds that the party acted with substantial justification or other circumstance that renders the sanction unjust.” (California Code of Civil Procedure §2030.290(c).) Here, Nguyen failed to respond to Plaintiff’s Form Interrogatories which were duly served on Mr. Benedict after he expressly told Plaintiff’s counsel that he represented Defendants in this action. Any attempt by Defendant to claim that Plaintiff served the wrong counsel is a blatant act of gamesmanship. Mr. Benedict also refused to communicate with Plaintiffs’ counsel on this issue and Mr. Hamilton appears to be feigning ignorance of the outstanding discovery, while refusing to serve responses either. Accordingly, the Court must impose monetary sanctions 53 MOTION TO COMPEL RESPONSES TO FORM INTERROGATORIES (SET ONE) ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 against Nguyen and her former counsel, Alex Benedict and/or her current counsel, John Hamilton, for their refusal to participate in any of Plaintiffs’ meet and confer efforts, and failing to make any attempt to serve discovery responses. As set forth more fully in the Declaration of Heather A. Tovar filed concurrently herewith, Plaintiff has incurred a grand total of $6,660.00 preparing and filing the six Motions to Compel Responses to Form Interrogatories, Request for Production of Documents and Motion to Deem the Request for Admissions, Admitted. Broken down, this amounts to $1,110.00 per motion. Plaintiffs therefore respectfully requests that the Court order Defendant Trang Thi Nguyen and her counsel Mr. Benedict and/or Mr. Hamilton to jointly and severally pay monetary sanctions in the amount of $1,110.00 for this particular motion within ten days of the date of this hearing. V. CONCLUSION For all these reasons, Plaintiffs respectfully request that this Court grant this motion and Order that: (1) Nguyen be compelled to provide written, verified, objection-free responses to Form Interrogatories (Set One) within ten (10) days of the hearing; and (2) Defendant Trang Thi Nguyen and her counsel Mr. Benedict and/or Mr. Hamilton to jointly and severally pay monetary sanctions in the amount of $1,110.00 within ten (10) days of this hearing. Dated: June 19, 2020 THE VANDERPOOL LAW FIRM Heather A. Tovar Douglas B. Vanderpool, Heather A. Tovar, Attorneys for Plaintiffs Marie Christine Jaspard and Boulangerie Pierre & Patisserie, LLC -8- MOTION TO COMPEL RESPONSES TO FORM INTERROGATORIES (SET ONE) ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE BY MAIL (C.C.P. §§ 1013a and 2015.5) STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed by the Vanderpool Law Firm in the County of Orange, State of California. I am over the age of 18 and not a party to the above-captioned action. My business address is 330 Main Street, Suite 203-B, Seal Beach, CA 90740. On June 19, 2020 I served a copy of the attached documents entitled: NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES TO FORM INTERROGATORIES (SET ONE) TO TRANG THI NGUYEN; REQUEST FOR MONETARY SANCTIONS on the interested parties in this action as follows: John Hamilton Alex Benedict Hamilton Law Offices Law Offices of Alex L. Benedict & Associates, APLC 5757 W. Century Blvd, Suite 700 17151 Newhope St. Suite 210 Los Angeles, CA 90045 Fountain Valley, CA 92708 Email: j.m.hamilton @earthlink.net; Email: alex @lawalb.com im_hamilton15 @yahoo.com [] BY MAIL: By placing a true and correct copy thereof enclosed in a sealed envelope addressed as above, with postage thereon fully prepared, in the U.S. Mail at Seal Beach, California. I 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 the same day with postage thereon fully prepaid at Seal Beach, California, in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing as stated in the affidavit. [XX] ONLY BY ELECTRONIC TRANSMISSION. Only by emailing the document(s) to the persons at the e-mail address(es). This is necessitated during the declared National Emergency due to the Coronavirus (COVID-19) pandemic because this office will be working remotely, not able to send physical mail as usual, and is therefore using only electronic mail. No electronic message or other indication that the transmission was unsuccessful was received within a reasonable time after the transmission. We will provide a physical copy, upon request only, when we return to the office at the conclusion of the national emergency. [] BY ELECTRONIC MAIL: I personally sent the attached document from my e-mail account, heather @vanderpool-law.com to the recipient’s e-mail account set forth in the service list. I did not receive any electronic transmission or other message within a reasonable time that the delivery was unsuccessful. [1] BY PERSONAL SERVICE: I caused such envelope to be delivered by hand to the offices of the addressee(s). [XX] (State) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on June 19, 2020 at Seal Beach, California. Heatler Tovar Heather Tovar 9. MOTION TO COMPEL RESPONSES TO FORM INTERROGATORIES (SET ONE)
