This case was last updated from Los Angeles County Superior Courts on 01/09/2021 at 15:43:54 (UTC).

WNG CONSTRUCTION JV, INC. VS. AAA SOLAR ELECTRIC, INC.

Case Summary

On 04/13/2016 WNG CONSTRUCTION JV, INC filed a Contract - Other Contract lawsuit against AAA SOLAR ELECTRIC, INC. This case was filed in Los Angeles County Superior Courts, Norwalk Courthouse located in Los Angeles, California. The Judges overseeing this case are MARGARET M. BERNAL, TORRIBIO, JOHN A., BRIAN F. GASDIA, KRISTIN S. ESCALANTE, MARGARET MILLER BERNAL, LORI ANN FOURNIER, RAUL A. SAHAGUN and PAUL BRUGUERA. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****5473

  • Filing Date:

    04/13/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Norwalk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

MARGARET M. BERNAL

TORRIBIO, JOHN A.

BRIAN F. GASDIA

KRISTIN S. ESCALANTE

MARGARET MILLER BERNAL

LORI ANN FOURNIER

RAUL A. SAHAGUN

PAUL BRUGUERA

 

Party Details

Plaintiff and Cross Defendant

WNG CONSTRUCTION JV INC.

Defendants and Cross Plaintiffs

AAA NETWORK SOLUTIONS

LOS ANGELES UNIFIED SCHOOL DISTRICT

SAFETY NATIONAL CASUALTY CORPORATION;

AAA SOLAR ELECTRIC INC.

PHILADELPHIA INDEMNITY INSURANCE COMPANY

AAA NETWORK SOLUTIONS INC.

Attorney/Law Firm Details

Plaintiff and Cross Defendant Attorneys

MILLER JAMES L. ESQ.

FARRELL EDWARD J

CUMMINS & WHITE LLP

WAKEFIELD JAMES

JANZEN SEAN BRUCE

NOWLAND THOMAS

Defendant and Cross Plaintiff Attorneys

HERAVI KAVEH KEVIN

ORBACH HUFF SUAREZ & HENDERSON LLP

FELDMAN & ASSOCIATES INC.

ORBACH DAVID MILLER

MICHAEL A. CABLE

Other Attorneys

CABLE LAW FIRM

 

Court Documents

Legacy Document - LEGACY DOCUMENT TYPE: COMPLAINT FILED-SUMMONS ISSUED

4/13/2016: Legacy Document - LEGACY DOCUMENT TYPE: COMPLAINT FILED-SUMMONS ISSUED

Minute Order - MINUTE ORDER ENTERED: 2016-12-27 00:00:00

12/27/2016: Minute Order - MINUTE ORDER ENTERED: 2016-12-27 00:00:00

Legacy Document - LEGACY DOCUMENT TYPE: OPPOSITION

8/29/2017: Legacy Document - LEGACY DOCUMENT TYPE: OPPOSITION

Minute Order - MINUTE ORDER ENTERED: 2017-10-03 00:00:00

10/3/2017: Minute Order - MINUTE ORDER ENTERED: 2017-10-03 00:00:00

Declaration - DECLARATION DECLARATION ISO RESPONSE TO MOTION TO COMPEL

6/12/2019: Declaration - DECLARATION DECLARATION ISO RESPONSE TO MOTION TO COMPEL

Reply - REPLY TO OPPOSITION TO MOTION TO COMPEL COMPLIANCE WITH BUSINESS RECORD SUBPOENA

6/18/2019: Reply - REPLY TO OPPOSITION TO MOTION TO COMPEL COMPLIANCE WITH BUSINESS RECORD SUBPOENA

Opposition - OPPOSITION TO AAA'S MOTION TO COMPEL FURTHER RESPONSES AND COMPLIANCE TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET FIVE

6/27/2019: Opposition - OPPOSITION TO AAA'S MOTION TO COMPEL FURTHER RESPONSES AND COMPLIANCE TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET FIVE

Order - ORDER RULING ON MATTER SUBMITTED

7/23/2019: Order - ORDER RULING ON MATTER SUBMITTED

Ex Parte Application - EX PARTE APPLICATION TO BE RELIEVED AS COUNSEL

8/5/2019: Ex Parte Application - EX PARTE APPLICATION TO BE RELIEVED AS COUNSEL

Statement of the Case - STATEMENT OF THE CASE RE: MOTIONS TO COMPEL

12/30/2019: Statement of the Case - STATEMENT OF THE CASE RE: MOTIONS TO COMPEL

Statement of the Case - STATEMENT OF THE CASE RE: MOTIONS TO COMPEL

6/24/2020: Statement of the Case - STATEMENT OF THE CASE RE: MOTIONS TO COMPEL

Notice - NOTICE OF TAKING MOTION OFF CALENDAR

12/14/2020: Notice - NOTICE OF TAKING MOTION OFF CALENDAR

Legacy Document - LEGACY DOCUMENT TYPE: Declaration

2/13/2018: Legacy Document - LEGACY DOCUMENT TYPE: Declaration

Legacy Document - LEGACY DOCUMENT TYPE: Request

5/4/2018: Legacy Document - LEGACY DOCUMENT TYPE: Request

Answer -

9/11/2018: Answer -

Order - Order re: ruling on submitted matter

12/14/2018: Order - Order re: ruling on submitted matter

Objection - Objection to Defendants' Notice of Ruling Re: Defendants' Ex Parte Application to Continue Trial and Reopen Discovery

12/28/2018: Objection - Objection to Defendants' Notice of Ruling Re: Defendants' Ex Parte Application to Continue Trial and Reopen Discovery

Ex Parte Application - EX PARTE APPLICATION EX PARTE APPLICATION TO VACATE OR CONTINUE TRIAL; DECLARATIONS OF KEVIN HERAVI, MICHAEL KUNKEL, NOAH BLUM FILED IN SUPPORT THEREOF

4/8/2019: Ex Parte Application - EX PARTE APPLICATION EX PARTE APPLICATION TO VACATE OR CONTINUE TRIAL; DECLARATIONS OF KEVIN HERAVI, MICHAEL KUNKEL, NOAH BLUM FILED IN SUPPORT THEREOF

442 More Documents Available

 

Docket Entries

  • 09/09/2021
  • Hearing09/09/2021 at 09:30 AM in Department F at 12720 Norwalk Blvd., Norwalk, CA 90650; Jury Trial

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  • 08/30/2021
  • Hearing08/30/2021 at 09:30 AM in Department F at 12720 Norwalk Blvd., Norwalk, CA 90650; Final Status Conference

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  • 06/04/2021
  • Hearing06/04/2021 at 08:30 AM in Department F at 12720 Norwalk Blvd., Norwalk, CA 90650; Mandatory Settlement Conference (MSC)

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  • 12/16/2020
  • DocketNotice of Posting of Jury Fees; Filed by WnG CONSTRUCTION JV, INC. (Cross-Defendant)

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  • 12/16/2020
  • DocketProof of Service (not Summons and Complaint); Filed by WnG CONSTRUCTION JV, INC. (Cross-Defendant)

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  • 12/15/2020
  • Docketat 09:30 AM in Department C; Hearing on Motion to Compel (Further Responses to Form Interrogatories, Set Three (Reservation ID 422451988086)) - Not Held - Vacated by Court

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  • 12/15/2020
  • Docketat 1:30 PM in Department F; Trial Setting Conference - Held

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  • 12/15/2020
  • DocketMinute Order ( (Trial Setting Conference)); Filed by Clerk

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  • 12/15/2020
  • DocketTrial Setting Order; Filed by Clerk

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  • 12/14/2020
  • DocketNotice (of Taking Motion off Calendar); Filed by AAA SOLAR ELECTRIC, INC. (Defendant); PHILADELPHIA INDEMNITY INSURANCE COMPANY (Defendant); SAFETY NATIONAL CASUALTY CORPORATION; (Defendant)

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900 More Docket Entries
  • 05/18/2016
  • DocketMemorandum of Points & Authorities; Filed by AAA SOLAR ELECTRIC, INC. (Defendant)

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  • 04/13/2016
  • DocketComplaint filed-Summons Issued; Filed by Attorney for Plaintiff

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  • 04/13/2016
  • DocketSummons Filed; Filed by Attorney for Plaintiff

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  • 04/13/2016
  • DocketCivil Case Cover Sheet; Filed by WnG CONSTRUCTION JV, INC. (Plaintiff)

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  • 04/13/2016
  • DocketNotice-Case Management Conference; Filed by Clerk

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  • 04/13/2016
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 04/13/2016
  • DocketSummons; Filed by WnG CONSTRUCTION JV, INC. (Plaintiff)

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  • 04/13/2016
  • DocketComplaint filed-Summons Issued; Filed by WnG CONSTRUCTION JV, INC. (Plaintiff)

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  • 11/06/2001
  • DocketObjection Document Filed; Filed by WnG CONSTRUCTION JV, INC. (Plaintiff)

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  • 11/06/2001
  • DocketObjection Document Filed (TO NOTICE OF RULING ON EX PARTE APPLICATION TO CONTINUE TRIAL - HEARD 10/25/17 IN SE "F"; ); Filed by Attorney for Plaintiff

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Tentative Rulings

Case Number: VC065473    Hearing Date: September 17, 2020    Dept: C

WNG CONTRUCTION JV. INC. v. AAA SOLAR ELECTRIC, INC.

CASE NO.: VC065473

HEARING: 09/17/2020

JUDGE: OLIVIA ROSALES

#7

TENATIVE ORDER

AAA’s motions to compel further responses are decided as follows and as further explained in the Court’s ruling:

(1) motion to compel further responses to Form Interrogatories, Set Three and Special Interrogatories, Set Three – Reservation ID 422451988086 CONTINUED to December 15, 2020 at 9:30 a.m. regarding Form Interrogatories and GRANTED IN PART regarding Special interrogatories.

(2) motion to compel further responses to Requests for Admissions, Set Three – Reservation ID 888759303677 – GRANTED.

(3) motion to compel further responses to Request for Production of Documents, Set Six (“RPD”) – Reservation ID 878393860372 – GRANTED IN PART.

(4) motion to compel compliance with Court’s January 8, 2019 order (production of computer devices, electronic storage devices, and electronically stored information) – Reservation ID 339838644567 – GRANTED IN PART.

(5) monetary sanctions in connection with the above motions – GRANTED AS MODIFIED.

All further responses are to be served and monetary sanctions to be paid within 20 days.

Additionally, the Court does not appoint a discovery referee.

AAA to give notice.

Background

This is a breach of contract action involving Plaintiff/Cross-Defendant WnG Construction JV, Inc. (“WnG”) and Defendant/Cross-Complainant AAA Solar Electric, Inc. (“AAA”). The parties entered into a series of written construction subcontracts related to work awarded by the Los Angeles Unified School District (“LAUSD”). The general nature and effect of both the subcontracts and prime contracts were for the primarily low voltage wiring of various LAUSD schools with internet and associated capabilities, which work is generally referred to as school WLAN Modernization. WnG alleges that it performed its obligations under the contracts and WnG owes it compensation for the work performed.

On August 6, 2018, WnG filed the operative third amended complaint (“TAC”).

On December 21, 2018, AAA filed the operative fourth amended cross-complaint (“4ACC”).

Currently before the Court are four discovery motions and related discovery issues, which the parties have substantially narrowed:

(1) motion[1] to compel further responses to Form Interrogatories, Set Three (“SROG”) and Special Interrogatories, Set Three (“SROG”) – Reservation ID 422451988086;

(2) motion to compel further responses to Requests for Admissions, Set Three (“RFA”) – Reservation ID 888759303677;

(3) motion to compel further responses to Request for Production of Documents, Set Six (“RPD”) – Reservation ID 878393860372; and

(4) motion to compel compliance with Court’s January 8, 2019 order (production of computer devices, electronic storage devices, and electronically stored information) – Reservation ID 339838644567

(5) monetary sanctions in connection with the above motions; and

(6) whether the Court should appoint a discovery referee considering the discovery disputes.

As narrowed by the parties, only the following are at issue before the Court according to the joint statement:

(1) FROG – No. 17.1(d) – the date when the supplemental response is to be provided as agreed by WnG;

(2) SROG – Nos. 384 and 392 – the date when the supplemental responses are to be provided as agreed by WnG;

(3) SROG – Nos. 386, 389, 406, 414, and 415 – whether the Court should order further responses;

(4) RFA – Nos. 156 and 157 – whether the Court should order further responses;

(5) RPD – Nos. 1, 6-19, 21-23, 26-38, 44, 46-49, 51-52, 55-57, 59-69 – whether the Court should order further responses;

(6) RPD – whether WnG should produce ESI and metadata for yearly board meeting minutes and documents regarding WnG’s following of corporate formalities

(7) RPD – how WnG should verify that all responsive documents have been produced;

(8) compel compliance with prior order – whether the Court should order WnG to reorganize its previous production to comply with Code of Civil Procedure section 2031.280, subdivision (a) or to continue the hearing so that AAA has more time to review the production and whether the Court should impose monetary sanctions on WnG;

(9) monetary sanctions – whether the Court should award monetary sanctions in light of WnG providing further responses only because AAA made the instant motions; and

(10) discovery referee – whether the Court should appoint a discovery referee considering the action’s age and number of discovery disputes.

(See also Joint Statement Ex. 9 and 10 [final meet and confer correspondence].)

Interrogatories

Legal authority

Under Code of Civil Procedure section 2030.300, subdivision (a), a court may order a party to serve a further response to an interrogatory when the court finds that: “(1) An answer to a particular interrogatory is evasive or incomplete[;] (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate[; or] (3) An objection to an interrogatory is without merit or too general.”

If a timely motion to compel a further response to an interrogatory has been filed, the burden is on the responding party to justify any objection or failure fully to answer the interrogatories. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.)

FROG

Remaining at issue is FROG No. 17.1(d), specifically the date when the supplemental response is to be provided as agreed by WnG.

FROG No. 17.1(d) requests an identification of all documents that support any response that is not an unqualified admission, i.e., that is a qualified admission, to the requests for admission.

Based on the parties’ most recent meet and confer correspondence, this issue is a minor dispute. AAA wants WnG to better identify the documents instead of a generic reference, e.g., “E-mail from Keith Hibbard.” WnG does not appear to have any issue with that request, but merely requests that AAA “identify which responses specifically, by reference to the RFA number, under 17.1(d) that [AAA] feel[s] are insufficient so [WnG] can address them in particular.” (Joint Statement Ex. 10.)

It seems like that once AAA identifies the subject RFAs, the parties can resolve this dispute relatively quickly because WnG will then know what request it must supplement.

Therefore, the Court continues the hearing on this issue to December 15, 2020 at 9:30 a.m. and orders counsel to further meet and confer on this issue. If, after exhausting those efforts, court intervention is needed, counsel may appear and argue the merits on the continued hearing date, i.e., when the further response should be ordered and whether the identification of the documents are sufficient. If counsel cannot informally resolve their discovery disputes, then shall submit a JOINT STATEMENT outlining the remaining disputed issues for which a ruling is required. The Joint Statement must be E-FILED on or before nine court days before the scheduled hearing date.

SROG

Remaining at issue are SROG:

(1) Nos. 384 and 392 – the date when the supplemental responses are to be provided as agreed by WnG; and

(2) Nos. 386, 389, 406, 414, and 415 – whether the Court should order further responses.

Regarding the first category, WnG concedes that it will produce a further response. There is no indication in the meet and confer correspondence or the joint statement how much time WnG needs to provide this supplemental response. Therefore, the Court orders a further response to SROG Nos. 384 and 392 within 20 days if not otherwise produced.

Regarding the second category, the Court addresses each interrogatory in kind.

(1) No. 386 requests an identification of all documents that refer to Daniel Rodriguez’ job duties while he worked for WnG – DENIED. This interrogatory is too generic as it essentially requests any document that refers to Rodriguez because any mention of his work is part of his job duties. Therefore, the interrogatory is so broad that it is oppressive. A more tailored interrogatory could have merited a further response, but the Court denies the request for a further response as drafted.

(2) No. 389 requests an identification of all communications described in response to No. 387 – GRANTED. This response is evasive because it does not provide sufficient details about the communications, e.g., date.

(3) No. 406 requests identification of documents that evidence the transfer of an asset described in response to No. 405 – GRANTED. This response is evasive because it does not provide sufficient details about the financial records. WnG does not otherwise satisfactorily explain in the opposition or the meet and confer correspondence how the interrogatory seeks irrelevant information or violates the right of privacy.

(4) No. 414 requests a description of the asset that was transferred by Wafik Bishaii to WnG as identified in response to No. 413 – GRANTED. This response is evasive because it does not provide sufficient details about the nature of the assets. WnG does not otherwise satisfactorily explain in the opposition or the meet and confer correspondence how the interrogatory seeks irrelevant information.

(5) No. 415 requests a description of documents that evidence the transfer of an asset as described in response to No. 413 – GRANTED. The Court adopts its analysis from No. 406.

Accordingly, the Court orders a further response to SROG Nos. 384, 389, 392, 406, 414, and 415 within 20 days if not otherwise produced.

The Court denies AAA’s request for a further response to SROG No. 386.

Requests for admission

Legal authority

Failure to timely respond to requests for admissions does not result in automatic admissions. Rather, the propounder of the requests for admissions must “move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction” under § 2023.010 et seq. (Code Civ. Proc., § 2033.280, subd. (b).)

Where responses to requests for admissions have been timely served but are deemed deficient by the requesting party (e.g., because of objections or evasive responses), that party may move for an order compelling a further response. (Id., § 2033.290, subd. (a).)

Discussion

Remaining at issue are RFA Nos. 156 and 157, specifically whether the Court should order further responses.

RFA No. 156 requests WnG admit that it knew Daniel Rodriguez had worked for AAA when it “hired” him. RFA No. 157 requests WnG admit that it did not notify AAA before April 2016 when it “hired” Daniel Rodriguez.

WnG provided the following response: “Deny that responding party hired Mr. Rodriguez as an employee.”

This response is evasive because it does not address the core nature of the individual requests: (No. 156) whether WnG knew Rodriguez previously worked for AAA; and (No. 157) whether WnG notified AAA when it started to have business dealings with Rodriguez.

Essentially, WnG argues that it did not “hire” Rodriguez because he worked under contract through his own company. Therefore, WnG argues that the subject requests are “loaded” because WnG cannot admit that it hired Rodriguez or lest it would provide evidence that it hired Rodriguez to steal trade secrets.

However, even if that were to be the case, WnG’s responses are still evasive because they do not directly address the core of the requests. WnG can still provide this qualification and explanation in order to maintain its rights, but still must directly address the subject RFAs.

In any event, the Court disagrees that “hire” has the limited definition WnG has identified and is worried about. One can “hire” a person for a job and that person does not need to be an employee but an independent contractor.

Accordingly, the Court orders a further response to RFA Nos. 156 and 157 within 20 days if not otherwise produced.

Requests for production of documents

Legal authority

Under Code of Civil Procedure section 2031.310, subdivision (a), a court may order a party to serve a further response to a demand for inspection when the court finds that: “(1) A statement of compliance with the demand is incomplete[;] (2) A representation of inability to comply is inadequate, incomplete, or evasive[; or] (3) An objection in the response is without merit or too general.”

The burden is on the moving party to “set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).)

This burden “is met simply by a fact-specific showing of relevance.” (TBG Ins. Servs. Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 448.)

Discussion

At issue are RPD Nos. 1, 6-19, 21-23, 26-38, 44, 46-49, 51-52, 55-57, 59-69 and other issues.

As identified by the parties in their meet and confer correspondence, the RPD is broken down into specific categories that the Court rules on as identified for the purposes of consistency:

(1) No. 1 seeks documents concerning WnG’s communications with Daniel Rodriguez before he was “hired” – DENIED. Through its supplemental response, WnG does not seek to maintain its improper objection based on an incorrect and unnecessarily narrow definition of “hired.” The supplemental response indicates that WnG believes it has already produced the responsive documents and if more documents are obtained it will produce them. This answer seems to combine two possible permissible responses. (See Code Civ. Proc., § 2031.210, subds. (a)(1)-(2).) Nevertheless, AAA does not explain how this supplemental response is not code-compliant or insufficient, considering WnG commits to producing responsive documents under a different definition of “hired” that it believes applies.

(2) No. 6 seeks documents concerning Rodriguez’ job duties while he worked for WnG – DENIED. The Court adopts its analysis from No. 1.

(3) No. 7 seeks documents concerning projects in which Rodriguez worked as a bid estimator – DENIED. The Court adopts its analysis from No. 1.

(4) No. 9 seeks documents concerning any attempt by WnG to notify AAA that Rodriguez was performing work for WnG – GRANTED. Through its supplemental response, WnG seems to maintain its objection that Rodriguez was not hired as an employee. It is not clear why this distinction, even if true, matters for the purposes of this request. Therefore, a further response is necessary. Additionally, it is unclear whether WnG is claiming that it is unable to comply with the request or that no documents exist at all. This statement violates Code of Civil Procedure section 2031.230 and merits a further response for clarification.

(5) No. 8, 10-19, 21-23, 26-38, 46, 48-49, 51-52, 55-57, 60-61, 66-68 seeks documents – GRANTED. In response to these requests, WnG states it has been unable to locate any documents. However, this statement fails to provide any clarification explaining why documents do not exist, e.g., none existed, they were lost, they were destroyed, etc. (See Code Civ. Proc., § 2031.230.) The response that the “documents are not in the possession, custody or control” fails to explain whether WnG ever possessed the documents. Additionally, the response does not provide a name and address of anyone believed to have the document (Ibid.) Therefore, further responses are warranted.

(6) No. 44 seeks documents concerning WnG’s contention that its assets were not diverted into any individual’s personal bank accounts – GRANTED. The Court adopts its analysis from Category No. 5. Additionally, the response seems to limit the responsive documents to “non-private” documents and WnG fails to justify any privacy protection.

(7) No. 47, 59, 62-65, 69 seek[2] documents concerning WnG’s financial records (bank statements, accounts receivable, general ledgers, credit applications, tax returns, contracts, money earned not deposited into accounts) – GRANTED. As a preliminary matter, it is immaterial whether AAA actually alleges adequate alter ego allegations to justify these demands. (Union Mut. Life Ins. Co. v. Superior Court (1978) 80 Cal.App.3d 1, 10 [“Relevancy of the subject matter is determined by the potential as well as actual issues in the case; discovery is proper if it would be material to any possible issue raised by new allegations in an amended complaint.”], citations omitted.) Here, AAA’s citation to Paragraph 5 of the 4AC shows thin alter ego allegations, but are otherwise sufficient to show the issue is applicable. AAA’s need for discovery outweighs WnG’s privacy interests and any privacy concerns regarding production of WnG’s financial records. However, the Court is inclined to agree that such information should be subject to a protective order based on WnG’s privacy concerns. The Court is prepared to enter a protective order regarding the confidentiality of these documents. The parties are to meet and confer and submit a formal order for the Court's signature.

(8) RPD – whether WnG should produce ESI and metadata for yearly board meeting minutes and documents regarding WnG’s following of corporate formalities – GRANTED. The discovery sought is relevant to AAA’s position that these documents were not drafted in a genuine fashion, but in a way to prevent AAA from piercing the corporate veil. This specific information would have a tendency to prove this claim.

(9) RPD – how WnG should verify that all responsive documents have been produced – ORDERED that WnG to comply with Code of Civil Procedure section 2031.280, subdivision (a) whereby any response must identify the specific request number to which the documents respond. AAA is not responsible for bearing the burden of confirming all the documents have been produced. While the Court sympathizes with WnG’s current counsel’s position having joined this action at a later stage, such circumstance does not provide his client a way out of complying with its discovery obligations.

Accordingly, the Court orders a further response to RPD Nos. 8-19, 21-23, 26-38, 44, 46-49, 51-52, 55-57, 59-65, 66-69 within 20 days if not otherwise produced. WnG is also to produce ESI and metadata for yearly board meeting minutes and documents regarding WnG’s following of corporate formalities within 20 days. WnG is also to verify that all responsive documents have been produced pursuant to Code of Civil Procedure section 2031.280, subdivision (a) within 20 days. The parties are to meet and confer regarding a proper protective order concerning RPD Nos. 47, 59, 62-65, 69 and file one for the Court’s review within 20 days.

Compel compliance with Court’s January 8, 2019 order

WnG has not fully complied with the Court’s January 8, 2019 order. WnG does not address this issue directly in the joint statement. The Court sees no reason why WnG should be exempt from complying with the Court’s previous order. The uncooperative nature of WnG’s former counsel is not a sufficient excuse to circumvent the Court’s order.

Nevertheless, there is insufficient information in the record that suggests that WnG and not its former counsel was the cause of the failure to comply with the Court’s previous order. Therefore, the Court does not find grounds to impose monetary sanctions on WnG, or its current counsel, who became involved after that discovery dispute occurred and when AAA filed the motion to compel.

The Court grants AAA’s motion and orders WnG to comply with the Court’s January 8, 2019 order within 20 days by producing documents improperly withheld. The Court denies the imposition of further monetary sanctions.

Monetary sanctions

Legal authority

Code of Civil Procedure section 2023.030, subdivision (a) provides that a court may impose a monetary sanction for misuse of the discovery process unless a court finds that the one subject to sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. Code of Civil Procedure section 2023.010, subdivisions (e) and (f) provide that misuse of the discovery process includes making an unmeritorious objection to discovery and making an evasive response to discovery.

Discussion

AAA seeks monetary sanctions in connection with all four motions: $2,985 for the compel compliance motion and $1,971.66 for each compel further motion.

The Court does not grant the full amount of sanctions sought because AAA does not prevail on every issue and the motions have significant overlap. Additionally, AAA does not cite any supporting authority for the Court to award monetary sanctions for non-preparation of motion tasks, e.g., informal attempts to resolve the disputes via meet and confer emails. Finally, in light of the hearing done remotely, the Court does not find three hours of appearance time reasonable.

In total, the Court grants monetary sanctions against WnG and its current counsel jointly and severally in the total amount of $3,750 payable within 20 days.

Discovery referee

Legal authority

Code of Civil Procedure section 639 and California Rules of Court rule 3.921 provide for the appointment of a referee on motion of a party or by the court. A referee can be appointed for discovery disputes. (Code Civ. Proc., § 639, subd. (a)(5) “[A referee may be appointed:] (5) When the court in any pending action determines that it is necessary for the court to appoint a referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon.”].)

Appointment requires a court finding of “exceptional circumstances.” (Id., § 639, subd. (d)(2).)

Absent agreement of all parties, courts may not make blanket referrals, except “in the unusual case where a majority of factors” favor reference, including: “(1) there are multiple issues to be resolved; (2) there are multiple motions to be heard simultaneously; (3) the present motion is only one in a continuum of many; (4) the number of documents to be reviewed (especially in issues based on assertions of privilege) make the inquiry inordinately time-consuming.” (Taggeres v. Superior Court (1998) 62 Cal.App.4th 94, 105. “Where one or more of the above factors unduly impact the court’s time and/or limited resources, the court is clearly within its discretion to make an appropriate reference.” (Id. at p. 106.)

The trial courts must consider that the statutory scheme is designed only to permit reference over the parties’ objections where that procedure is necessary, not merely convenient. (Id. at pp. 105-106.) “Implicit in the statutory requirement that the reference be ‘necessary’ is the Legislature’s acknowledgement of a litigant’s right of access to the courts without they payment of a user’s fee, and the concomitant notion that there ought to be a finding of something out of the ordinary before the services of a referee are forced upon a nonconsenting party.” (Hood v. Superior Court (1999) 72 Cal.App.4th 446, 449.)

Discussion

The Court finds it inappropriate to appoint a discovery referee at this time. WnG’s former counsel was largely responsible for the discovery abuses and there is no reason to anticipate similar discover abuses in this action. Further, it is unclear what discovery disputes remain in such a manner that the parties cannot resolve on their own. Nevertheless, the Court permits either party to make an appropriate application at a later time if circumstances change and demand the appointment of a referee.

The Court reminds the parties that the Court entertained this option only because the Court is concerned with the pattern and practice of this litigation so far. The parties should comply with their professional obligations and realize that discovery disputes do not need to be a zero-sum game, but can help facilitate a quicker resolution in this case that everyone wants.

To the extent that the parties feel the need to file any additional discovery motions not already on the Court’s calendar, the Court recommends the parties to properly meet and confer,

Conclusion

AAA’s motions to compel further responses are decided as follows and as further explained in the Court’s ruling:

(1) motion to compel further responses to Form Interrogatories, Set Three and Special Interrogatories, Set Three – Reservation ID 422451988086 CONTINUED regarding Form Interrogatories and GRANTED IN PART regarding Special interrogatories.

(2) motion to compel further responses to Requests for Admissions, Set Three – Reservation ID 888759303677 – GRANTED.

(3) motion to compel further responses to Request for Production of Documents, Set Six (“RPD”) – Reservation ID 878393860372 – GRANTED IN PART.

(4) motion to compel compliance with Court’s January 8, 2019 order (production of computer devices, electronic storage devices, and electronically stored information) – Reservation ID 339838644567 – GRANTED IN PART.

(5) monetary sanctions in connection with the above motions – GRANTED AS MODIFIED.

All further responses are to be served and monetary sanctions to be paid within 20 days.

Additionally, the Court does not appoint a discovery referee.

AAA to give notice.


[1] This was filed as a combined single motion.

[2] These requests are not in the joint statement. (See Joint Statement Ex. 8.) However, they are in the separate statement filed with the original motion.

Case Number: VC065473    Hearing Date: July 09, 2020    Dept: SEC

WNG CONSTRUCTION JV, INC. v. AAA SOLAR ELECTRIC, INC.

CASE NO.:  VC065473

HEARING:  07/09/2020

[Remote appearances are encouraged and will be given priority.]

#8

TENTATIVE ORDER

I. Defendants’ Motion to Compel Further Responses to Special Interrogatories (set three) is CONTINUED to Thursday, September 17, 2020 at 1:30 p.m. in Dept. SE-C.

II. Defendants’ Motion to Compel Further Responses to Requests for Admissions (set three) is CONTINUED to Thursday, September 17, 2020 at 1:30 p.m. in Dept. SE-C.

III. Defendants’ Motion to Compel Further Responses and Compliance with Request for Production of Documents (set six) is CONTINUED to Thursday, September 17, 2020 at 1:30 p.m. in Dept. SE-C.

IV. Defendants’ Motion to Compel Compliance with Prior Court Order is CONTINUED to Thursday, September 17, 2020 at 1:30 p.m. in Dept. SE-C.

Moving Party to give Notice.

Per the Joint Statement Re: Motions to Compel executed by counsel for all parties and FILED on June 24, 2020, “[t]he parties have made progress in resolving the pending issues. WnG recently supplemented its responses to four sets of previously propounded discovery. AAA is in the process of reviewing these supplemental responses. WnG also plans to make another document production, and AAA needs time to review the production after it is made. [¶] However, the parties efforts have been hindered by COVID-19 and its consequences. Thus, the parties need more time to see if they can informally resolve the remaining issues presented and request that the hearing dates for the four pending motions be continued to allow time for further meet and confer efforts.” (Joint Statement 2:8-15.) Consequently, the aforementioned matters are CONTINUED as indicated above, at the request of parties.

Counsel are also ORDERED to make further efforts to resolve the issues presented. If, after exhausting those efforts, court intervention is needed, counsel may appear and argue the merits on the continued hearing date. If counsel are unable to informally resolve their discovery disputes, then counsel are instructed to submit a JOINT STATEMENT outlining the remaining disputed issues for which a ruling is required. The Joint Statement must be E-FILED on or before 10:00 a.m. on Friday, September 4, 2020.

This action was filed on April 13, 2016-- given the age of this case and the number of discovery disputes still outstanding between the parties, reference to a discovery referee may be necessary, with costs to be borne 50/50 between the parties (unless the referee orders otherwise).

Case Number: VC065473    Hearing Date: January 16, 2020    Dept: SEC

WNG CONSTRUCTION JV, INC. v. AAA SOLAR ELECTRIC, INC.

CASE NO.:  VC065473

HEARING:  01/16/2020

JUDGE: OLIVIA ROSALES

#8

TENTATIVE ORDER

I. Defendants’ Motion to Compel Further Responses to Special Interrogatories (set three) is CONTINUED to Thursday, June 18, 2020 at 1:30 p.m. in Dept. SE-C.

II. Defendants’ Motion to Compel Further Responses to Requests for Admissions (set three) is CONTINUED to Thursday, June 18, 2020 at 1:30 p.m. in Dept. SE-C.

III. Defendants’ Motion to Compel Further Responses and Compliance with Request for Production of Documents (set six) is CONTINUED to Thursday, June 18, 2020 at 1:30 p.m. in Dept. SE-C.

IV. Defendants’ Motion to Compel Compliance with Prior Court Order is CONTINUED to Thursday, June 18, 2020 at 1:30 p.m. in Dept. SE-C.

Moving Party to give Notice.

In accordance to the Joint Statement Re: Motions to Compel executed by counsel for all parties, “[t]he parties need more time to see if they can informally resolve the issues regarding these demands presented and request that the hearing dates for the four pending motions be continued to allow time for further meet and confer efforts.” (Joint Statement 2:11-13.) Consequently, the aforementioned matters are CONTINUED as indicated above, at the request of parties.

Counsel are also ORDERED to make further efforts to resolve the issues presented. If, after exhausting those efforts, court intervention is needed, counsel may appear and argue the merits on the continued hearing date. If counsel are unable to informally resolve their discovery disputes, then counsel are instructed to submit a JOINT STATEMENT outlining the remaining disputed issues for which a ruling is required. The Joint Statement must be FILED on or before 10:00 a.m. on June 4, 2020. A Courtesy Copy of the Joint Statement must be delivered directly to Department SE-C no later than 10:00 a.m. on June 4, 2020.

This action was filed on April 13, 2016-- given the age of this case and the number of discovery disputes still outstanding between the parties, reference to a discovery referee may be necessary, with costs to be borne 50/50 between the parties (unless the referee orders otherwise). The Court notes that there is a Mandatory Settlement Conference scheduled for June 15, 2020, and Trial is set for August 10, 2020.

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