PEOPLE OF THE STATE OF CALIFORNIA EX REL. CALIFORNIA AIR RESOURCES BOARD VS SPEEDY FUEL, INC.

Tentative Rulings

Case Number: *******0292 Hearing Date: August 11, 2022 Dept: 34

The unopposed ex parte to continue trial is GRANTED.

Trial is continued to Feb. 21, 2023 at 8:30 am. The Final Status Conference is continued to Feb. 8, 2023 at 9:00.

There shall be no further continuances.

Case Number: *******0292 Hearing Date: May 25, 2022 Dept: 34

SUBJECT: Motion to Compel Responses to Requests for Production of Documents, Set One, and Imposing a Monetary Sanction

Moving Party: Plaintiffs, the People of the State of California ex rel. California Air Resources Board ("the People")

Resp. Party: Defendant Speedy Fuel, Inc. (“Speedy”)

Plaintiffs, the People of the State of California ex rel. California Air Resources Board Motion’s to Compel Responses to Requests for Production of Documents, Set One is GRANTED.

Plaintiffs, the People of the State of California ex rel. California Air Resources Board Motion’s Request for Monetary Sanctions is GRANTED against Defendant Speedy Fuel, Inc. in the amount of $2,750.00.

I. BACKGROUND

On August 10, 2020, Plaintiffs, the People of the State of California ex rel. California Air Resources Board ("the People") filed a complaint against Defendant Speedy Fuel, Inc. alleging the following causes of action:

1. Health and Safety Code 43027(c) – Strict Liability

2. Health and Safety Code 43027(b) – Negligence

3. Health and Safety Code 43027(a) – Intentional Conduct

4. Health and Safety Code 43027(d) – Failure to Keep Required Documents

On July 9, 2021, Plaintiffs, the People of the State of California ex rel. California Air Resources Board ("the People") filed a First Amended Complaint against Defendant Speedy Fuel, Inc. alleging the same causes of action.

On August 11, 2021, Defendant and Cross-Complainant Speedy Fuel, Inc. filed a Cross-Complaint against Cross-Defendants People of the State of California Ex Rel. California Air Resources Board (CARB), California Air Resources Board; California Department of Food and Agriculture (CDFA); Los Angeles Police Department (LAPD) and Los Angeles Police Officer Walter McMahon alleging the following causes of action:

1. Intentional Interference with Contractual Relations

2. Abuse of Process

3. Malicious Prosecution

4. Conversion

5. Intentional Interference with Prospective Economic Relations

On April 29, 2022, the People moved the Court “for an order compelling Defendant Speedy Fuel, Inc. (Speedy) to serve a response to the CARB’s Requests for Production of Documents and Things, Set One, served on March 8, 2021. Plaintiffs make this motion on the grounds that Speedy has failed to serve a written response to the discovery requests. Pursuant to Code of Civil Procedure section 2031.300, subdivision (c), Plaintiffs will also seek a monetary sanction of $2,750 against Speedy for reasonable attorney’s fees and costs in bringing this motion because there is no substantial justification for Speedy’s failure to participate in the discovery process. (Code. Civ. Proc. 2023.010, subd. (d) [party’s failure to respond to an authorized method of discovery is a misuse of the discovery process].)” (Motion, p. 2:6-14.)

On May 12, 2022, Defendant Speedy Fuel, Inc. opposed the People’s motion to compel responses.

On May 17, 2022, the People replied to Speedy’s opposition.

II. ANALYSIS

A. Legal Standard

1. Motion to Compel Responses

California Code of Civil Procedure requires a response from the party to whom form interrogatories, special interrogatories, and demand requests are propounded within 30 days after service of the requests, unless the time is extended by agreement of the parties. (CCP 2030.260(a), 2030.270(a), 2031.260(a), 2031.270(a).) If a party fails to serve timely responses, "the party making the demand may move for an order compelling response to the demand.” (CCP 2030.300(b).) By failing to respond, the offending party waives any objection to the demand. (CCP. 2030.290(a).)

For a motion to compel, all a propounding party must show is that it properly served its discovery requests, that the time to respond has expired, and that the party to whom the requests were directed failed to provide a timely response. (See Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905, 906.) Indeed, "[o]nce [a party] 'fail[ed] to serve a timely response,' the trial court had authority to grant [opposing party's] motion to compel responses." (Sinaiko Healthcare Counseling, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 405.)

2. Monetary Sanctions

“The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction 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.” (CCP 2023.030(a).)

B. Discussion

1. Motion to Compel Responses

The People propounded their Requests of Production of Documents and Things, Set One on March 8, 2021 through electronic service via email. (Tavetian Decl., 2, Ex. 1.) Pursuant to CCP 2031.260(a), the deadline for Speedy’s responses was April 7, 2021. The People granted Speedy time extensions on this deadline to April 19, 2021, then to June 2, 2021, then to July 16, 2021. (Tavetian Decl., 3-5, Exs. 2-4.)

On September 15, 2021, the Court ordered parties to participate in an informal discovery conference. (Tavetian Decl., 7, Ex. 6.) Speedy produced documents on December 29, 2021, February 2, 2022, and February 20, 2022, but Speedy has not provided verified written responses to the People’s Request for Production of Documents, Set One. (Tavetian Decl., 8, 10.) Following later communication between the parties, Speedy agreed to provide verified written responses to the Request for Production of Documents, Set One by April 22, 2022. (Tavetian Decl., 11, Exs. 8, 9.) As of May 17, 2022, Speedy has not provided responses to the Request for Production of Documents. (Tavetian Decl., 11, 12, Ex. 10; Tavetian Decl. (Supplemental), 2.)

Speedy has not produced any evidence to show that it produced the requested discovery. Speedy’s opposition is long on argument and invective but is short on evidence. “[A]n assertion is not evidence.” (Paleski v. State Dept. of Health Services (2006) 144 Cal.App.4th 713, 732.)

The Court finds that Speedy has not provided verified written responses to the People’s request, despite multiple missed deadlines. Speedy argues that they have produced thousands of documents in response to the People’s discovery requests and that CCP 2031.280(a), that requires written responses in connection with document production, “only became effective on January 1, 2020.” (Opposition, p. 2:11.) Nonetheless, that the statute was in effect throughout Speedy’s apparent indifference to discovery deadlines in the present matter.

Plaintiffs, the People of the State of California ex rel. California Air Resources Board Motion’s to Compel Responses to Requests for Production of Documents, Set One is GRANTED.

2. Monetary Sanctions

The People seek a monetary sanction of $2,750.00 against Speedy for reasonable attorney’s fees and costs. The People’s counsel notes that his office bills at $220.00 per hour and suggest that he has underestimated the time spent on the present motion, Speedy’s opposition, and the People’s reply. (Tavetian Decl., 13.)

Speedy’s opposition does not address the amount of attorney's fees requested. The Court finds the requested monetary sanctions amount reasonable.

Plaintiffs, the People of the State of California ex rel. California Air Resources Board Motion’s Request for Monetary Sanctions is GRANTED against Defendant Speedy Fuel, Inc. in the amount of $2,750.00.

III. CONCLUSION

Plaintiffs, the People of the State of California ex rel. California Air Resources Board Motion’s to Compel Responses to Requests for Production of Documents, Set One is GRANTED.

Plaintiffs, the People of the State of California ex rel. California Air Resources Board Motion’s Request for Monetary Sanctions is GRANTED against Defendant Speedy Fuel, Inc. in the amount of $2,750.00.

b'

Case Number: *******0292 Hearing Date: September 15, 2021 Dept: 34

SUBJECT: (1) Motion to Compel Responses to Request for Production of Documents

(2) Motion to Compel Further Responses to Form Interrogatories

(3) Motion to Compel Further Responses to Special Interrogatories

(4) Motion to Compel Further Responses to Request for Admissions

Moving Party: Plaintiff People of the State of California, ex rel. California Air Resources Board

Resp. Party: Defendant Speedy Fuel, Inc.

The Court orders the parties to attend an Informal Discovery Conference prior to ruling on these motions. (See Department 34 Trial Orders, part VI(B).) The Court orders the parties contact Department 34’s judicial assistant, Reyna Navarro, at (213) 633-0154 to schedule this informal discovery conference.

BACKGROUND:

Plaintiffs People of the State of California ex rel. California Air Resources Board commenced this action on August 10, 2020, and filed the operative First Amended Complaint on July 9, 2021 against Defendant Speedy Fuel, Inc. Plaintiffs seek civil penalties and injunctive relief based on Defendant’s alleged violations of California’s Regulation on Commercialization of Alternative Diesel Fuels promulgated by the Air Board.

On July 29, 2021, Plaintiffs filed the instant motion to compel initial discovery responses to production of documents, and motions to compel further responses to special interrogatories, form interrogatories, and requests for admission.

ANALYSIS:

Plaintiffs move for an order compelling Defendant Speedy Fuel, Inc. to provide (1) initial responses to Requests for Production of Documents; (2) further responses to Form Interrogatories, Nos. 15.1 and 17.1; (3) further responses to Special Interrogatories, Nos. 2, 3, 5—8, 12, 13, and 17; and (4) further responses to Requests for Admission, Nos. 4, 10, 16, 32, 38, 44, 87, 93, 99, 115, 121 and 127.

Department 34 Trial Orders, part VI, subpart (B) states:

“If there are numerous or particularly complicated motions to compel further discovery, the Court will order counsel to attend an Informal Discovery Conference prior to ruling on the motion(s). The moving party is strongly encouraged to arrange for an Informal Discovery Conference prior to the date for the scheduled hearing on the motions.”

The Court orders the parties to attend an Informal Discovery Conference prior to ruling on these motions. (See Department 34 Trial Orders, part VI(B).) The Court orders the parties contact Department 34’s judicial assistant, Reyna Navarro, at (213) 633-0154 to schedule this informal discovery conference.

'

b'

Case Number: *******0292 Hearing Date: July 6, 2021 Dept: 34

SUBJECT: Motion for Leave to File Amended Complaint

Moving Party: Plaintiff People of the State of California ex. rel. California Air Resources Board

Resp. Party: None

The Court GRANTS the motion for leave to file an amended complaint.

BACKGROUND:

“Pursuant to Health and Safety Code section 43031, this action is brought by the Attorney General at the request of the California Air Resources Board (the Air Board) on behalf of the People of the State of California. The People seek civil penalties to punish multiple violations of California’s Regulation on Commercialization of Alternative Diesel Fuels (ADF regulation) promulgated by the Air Board (Cal. Code Regs., tit. 13, ; 2293 et seq.), along with injunctive relief to prevent defendants from violating those laws in the future.” (Complaint, ¶ 1.)

On August 10, 2020, Plaintiff People of the State of California ex. rel. California Air Resources Board (“the People”) filed a complaint for civil penalties and injunctive relief against Defendant Speedy Fuel, Inc. Plaintiff asserts causes of action against Defendant for (1) Health and Safety Code section 43027(c) – Strict Liability; (2) Health and Safety Code section 43027(b) – Negligence; (3) Health and Safety Code section 43027(a) – Intentional Conduct; and (4) Health and Safety Code section 43027(d) – Failure to Keep Required Documents.

On February 5, 2021, the Court overruled Defendant Speedy Fuel, Inc.’s demurrer to the complaint.

On May 6, 2021, Plaintiff filed an amendment to the complaint, replacing DOE 1 with Noil Energy Group, Inc.

On June 22, 2021, the Court found that the following cases, 20STCV30142, *******0292, 21STCV18251, and 21STCV18270, are related, and designated 20STCV30142 as the lead case.

Before the Court is Plaintiff’s motion for leave to file a first amended complaint (“FAC”), filed on June 9, 2021.

ANALYSIS:

I. Motion for Leave to File an Amended Answer

A. Legal Standard

The court may, in furtherance of justice and on any proper terms, allow a party to amend any pleading. (Code Civ. Proc., ; 473, subd. (a)(1); Branick v. Downey Savings & Loan Association (2006) 39 Cal.4th 235, 242.) The court may also, in its discretion and after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code. (Code Civ. Proc., ; 473, subd. (a); Branick, supra, 39 Cal.4th at 242.) “This discretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047.) Leave to amend is thus liberally granted, provided there is no statute of limitations concern. (Kolani v. Gluska (1998) 64 Cal.App.4th 402, 411.) The court may deny the plaintiff’s leave to amend if there is prejudice to the opposing party, such as delay in trial, loss of critical evidence, or added costs of preparation. (Ibid.)

Under California Rules of Court, rule 3.1324, a motion to amend a pleading before trial must (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph and line number, the deleted allegations are located; and (3) state what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located. (Cal. Rules of Court, rule 3.1324(a).) A separate supporting declaration specifying (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reason why the request for amendment was not made earlier must accompany the motion. (Id., rule 3.1324(b).)

B. Discussion

Plaintiff moves for leave to file a FAC which “adds allegations relating to facts revealed during discovery and further investigation of this matter.” (Motion, p. 2:15-16.) Plaintiff asserts that “the FAC adds reference to dates of additional violations of California’s Regulation on Commercialization of Alternative Diesel Fuels (ADF regulation) (Cal. Code Regs., tit. 13, ; 2293 et seq.) by Speedy.” (Id. at p. 2:16-18.) Plaintiff maintains that “the additional allegations in the FAC clarify that the added dates of violations also serve as examples of further violations that support Plaintiffs’ general allegations that Speedy violated the ADF regulation throughout 2017, 2019, 2020, and 2021.” (Id. at p. 2:18-21.)

Specifically, Plaintiff explains that “the FAC makes the following changes to the original complaint:

· The FAC substitutes newly confirmed Attorney General Rob Bonta for the state’s departing Attorney General Xavier Becerra. (See redline of FAC, attached as Exhibit C to the Declaration of Gary E. Tavetian, at pp. 1, 22.);

· The FAC adds factual allegations asserting additional dates of violations by Speedy relating to the sale and/or offer for sale of non-compliant fuel from the gasoline stations identified in the original complaint, and clarifying that those examples of added violations support Plaintiffs’ general allegations that Speedy violated the ADF regulation throughout 2017, 2019, 2020 and 2021. (See Tavetian Decl. Exhibit C, at pp. 3, 7-11, 13-18, 20; ¶¶ 3, 26, 27, 29, 34, 35-38, 43-46, 48, 58-61, 63-69, 82-84, 86-88, 92, 104, 106.)

· The FAC adds factual allegations to clarify that each retail sale of non-compliant fuel and each supply of ADF into a motor vehicle fuel tank in violation of the ADF regulation constitutes a separate offense. (See Tavetian Decl. Exhibit C, at pp. 6, 12, 16, 19; ¶¶ 17, 54, 77, 100.)

· The FAC otherwise makes clarifying edits. (See Tavetian Decl. Exhibit C, at pp. 3, 5, 7, 14, 18; ¶¶ 5, 15, 25, 66, 89.).” (Id. at pp. 2:22-3:10.) Plaintiff attaches a copy of the proposed FAC as Exhibit B to the declaration of Gary E. Tavetian.

Plaintiff argues that “the Court should grant the amendment because Speedy refuses to provide discovery relating to periods of time outside the dates of the specific violations referenced in the original complaint.” (Motion, p. 8:23-25, citing Tavetian Decl., ¶¶ 10-12.) Plaintiff asserts that it “seek[s] leave to file the FAC to make clear that Plaintiff[’s] investigation to date has uncovered more evidence of ongoing violations of the ADF Regulation by Speedy.” (Id. at p. 8:25-27.) Plaintiff argues that “as a matter of judicial economy, amendment is appropriate here to allow the Court to adjudicate all of Plaintiff[’s] allegations – that relate to the same general set of facts – in a single action, rather than multiple actions.” (Id. at p. 9:3-5.) Plaintiff asserts that Defendants will not be prejudiced by the amendment because Speedy does not oppose the amendment. (Id. at p. 9:16-20, citing Tavetian Decl., ¶¶ 6-7.)

The Court finds that Plaintiff’s motion complies with the requirements of California Rules of Court, rule 3.1324 and there exists good cause for allowing the amendment. The declaration submitted in support of the motion satisfies the requirements of California Rules of Court, rule 3.1324 because there is a clear explanation for why this amendment is sought now. The declaration identifies (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) why the request for amendment was not made earlier. (See Cal. Rules of Court, Rule 3.1324(b); see also Tavetian Decl., ¶¶ 3, 5, 9-12.)

No party has filed an opposition or indicated that any party will be prejudiced by this amendment.

Because the Court is to exercise discretion liberally the permit amendment of the pleadings (see Kittredge Sports Co., 213 Cal.App.3d at 1047), the Court GRANTS Plaintiff’s motion for leave to file an amended complaint.

The First Amended Complaint is to be filed within 7 days.

'