JAJ3, LLC v. Bren CA2/3 ( 2023 )

Filed 12/12/23 JAJ3, LLC v. Bren CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule 8.1115(a). This
opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
JAJ3, LLC, B321699
Plaintiff and Appellant, Los Angeles County
Super. Ct. No.
v. 21SMCV00722
CARY BREN,
Defendant and Respondent.
APPEAL from an order of the Superior Court of Los
Angeles County, Craig D. Karlan, Judge. Affirmed.
Robert H. Bisno for Plaintiff and Appellant.
Allen Matkins Leck Gamble Mallory & Natsis, Charles D.
Jarrell, and Kent W. Toland for Defendant and Respondent.
_______________________________________
INTRODUCTION
Plaintiff and appellant JAJ3, LLC (plaintiff) challenges a
$6,600 sanctions order imposed after it brought three
unsuccessful motions to compel further discovery responses from
defendant and respondent Cary Bren. By statute, monetary
sanctions against an unsuccessful movant are required in the
absence of “substantial justification” or other circumstances
rendering the imposition of sanctions “unjust.” (Code Civ. Proc.,
§§ 2023.010, subd. (h), 2023.030, subd. (a).)1 We conclude the
court did not abuse its discretion in imposing monetary sanctions
against plaintiff and, accordingly, we affirm the order.
FACTS AND PROCEDURAL BACKGROUND
1. Operative Complaint
This is a derivative action involving three limited liability
companies: plaintiff, Portland Lloyd Center Community, LLC
(Portland Lloyd), and PLCC1, LLC (PLCC1). According to the
operative first amended complaint, PLCC1 is wholly owned by
Portland Lloyd, which is in turn owned by plaintiff, non-party
BP3, LLC, and non-party JSC Hualing Special Economic Zone, a
Republic of Georgia Company.
Plaintiff, on behalf of nominal defendants Portland Lloyd
and PLCC1, sued Bren, who plaintiff alleges is or was an owner
or manager of BP3, LLC. Plaintiff claims Bren embezzled or
otherwise wrongfully received at least $1.5 million belonging to
the nominal defendants. The operative complaint states four
1 All undesignated statutory references are to the Code of Civil
Procedure.
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causes of action: tort of another, breach of fiduciary duty,
intentional interference with contractual relations, and unfair
competition under Business and Professions Code section 17200.
The complaint seeks monetary damages, punitive damages, costs,
attorney’s fees, injunctive relief, and other just or equitable relief.
2. Plaintiff’s Discovery Requests
Plaintiff sought discovery from Bren by serving requests for
documents, form interrogatories, and requests for admissions.
The discovery requests were extremely broad. For example,
plaintiff’s request for documents sought documents not only from
Bren and his agents, but also from Bren’s “family members,
including but not limited to by marriage, including in laws, such
as but not limited to DAN PALMER, including any and all
departments or sub-departments and all other persons or entities
acting or purporting to act on DAN PALMER’S behalf and any
affiliates and/or subsidiaries in which DAN PALMER, to the best
of your knowledge, has any interest, directly or indirectly,
[i]ncluding but not limited to BP3, LLC, of which you were a
Manager during the relevant times of this litigation.” The
document requests themselves were also wide-ranging and
included requests such as “All DOCUMENTS and/or
COMMUNICATIONS and/or NOTES CONCERNING or
including any of the following: BP1, LLC; BP2, LLC; BP3, LLC;
BP Cabrillo, LLC and/or BP5, LLC.” Other requests were
nonsensical, such as form interrogatories 3.1 to 3.5, which
queried whether Bren is a corporation, partnership, limited
liability company, joint venture, or unincorporated association.
Bren objected to each request for discovery on numerous
grounds, including that the requests were overbroad,
burdensome, designed to harass, vague, ambiguous,
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unintelligible, compound, not reasonably limited in scope or time,
and not reasonably calculated to lead to the discovery of
admissible information. Bren produced no documents and
provided no substantive answers to plaintiff’s discovery requests.
The parties engaged in a written meet-and-confer process
as to each of the three sets of discovery requests, to no avail.
Plaintiff’s letters to opposing counsel were lengthy and repetitive,
consisting largely of strings of quotations of hornbook law
unaccompanied by any analysis or justification for the discovery
requests.
3. Plaintiff’s Motions to Compel Further Responses
As to each of the three sets of discovery requests, plaintiff
filed a separate notice of motion and motion to compel further
responses accompanied by points and authorities, a supporting
declaration with exhibits, and a separate statement. Plaintiff
argued that its discovery requests should be liberally construed
but did not discuss the connection between its discovery requests
and the subject matter of the lawsuit. The separate statements
proceeded in similar fashion, offering lengthy and repetitive
quotations from plaintiff’s meet-and-confer correspondence. The
motions, with their supporting documents, comprise nearly 800
pages of the appellate record.
Bren filed a single “omnibus opposition” to the three
motions to compel. Bren argued that plaintiff’s discovery requests
in the present case were designed to aid plaintiff in a separate
lawsuit pending in Sonoma County involving Palmer and the
non-party LLC’s named in plaintiff’s discovery requests. Further,
Bren asserted, the discovery requests were extremely overbroad
and burdensome, and some requests were unintelligible as
written. Accordingly, plaintiff failed to meet its burden to justify
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its discovery requests. Bren also requested monetary sanctions
against plaintiff because “[t]he Motions fail to set forth any
substantive explanation for the discovery, and [counsel’s] tactic of
dumping hundreds of pages of paper on the Court rather than
efficiently and coherently describing the basis for the discovery …
is a further abuse of the discovery process, designed to cause
Bren and his counsel to needlessly spend time and money
responding.”
In reply, plaintiff provided an assortment of case
quotations purporting to respond to Bren’s arguments. Plaintiff
also submitted a 200-page declaration from counsel attaching
materials previously submitted to the court, including a copy of
the 169-page separate statement submitted in support of
plaintiff’s motion to compel further responses to its document
production request.
4. Ruling and Appeal
At the hearing on the motions, the court asked plaintiff’s
counsel to explain how the discovery requested relates to the
lawsuit, as “there seems to be no limit as to the discovery you
want” and the motions were “hard to follow.” Counsel for plaintiff
responded, “Well, your honor, you’re exactly right. We have asked
for everything that Mr. Bren has on PLCC1 and Portland Lloyd.
[¶] These are relatively short-term partnerships. Each of them
lasted fewer than five years before Mr. Bren exited. We don’t
know what’s going on, and we’re entitled to [it] in this lawsuit. [¶]
So I think your honor has put his finger accurately on what we
are requesting. And the reason we are requesting it is, as your
honor well knows, we’re given liberality. We get to get to the
bottom of this. And their team is trying to hide it. [¶] If that
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makes it overbroad, your honor, we’re entitled to be overbroad in
discovery.”
In a written ruling issued a few days after the hearing, the
court denied plaintiff’s motions to compel and granted Bren’s
request for monetary sanctions. The court found plaintiff’s 19
document requests to be overbroad, vague, and unrelated to the
allegations of embezzlement by Bren. Similarly, and with respect
to the 17 requests for admission, the court found plaintiff’s
requests were vague, ambiguous, and not targeted to the
allegations of embezzlement. And as to the form interrogatories,
the court noted that “incident” was not defined and therefore
several interrogatories were hopelessly vague. Several others
were nonsensical as to Bren, in that they asked questions about
corporate status. Other interrogatories were simply irrelevant or
without basis.
Under sections 2030.300, subdivision (d), 2031.310,
subdivision (h), and 2033.290, subdivision (d), the court granted
Bren’s request for sanctions because “the [discovery] requests are
vague and ambiguous and seek privileged and confidential
information without limitation, and the motions themselves are
excessively lengthy and difficult to follow.” In addition, the court
cited California Rules of Court, rule 3.1345(c), and noted that
“Plaintiff’s separate statements with the present motions are
excessively lengthy, as Plaintiff included meet-and-confer
correspondence and a plethora of cut-and-pasted paragraphs
therein, making it unnecessarily difficult for the Court to review
the separate statements.”
The court entered a written ruling on the discovery motions
on April 19, 2022. Plaintiff timely appeals. (§ 904.1, subd. (a)(12).)
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DISCUSSION
1. Scope of Review
Plaintiff does not challenge the amount of the sanctions
award. Instead, it contends the court erred in denying its three
motions to compel and therefore both that ruling and the
sanctions order should be reversed. But the validity of the ruling
on the discovery motions is not directly before us in this
interlocutory appeal from the order imposing sanctions. (§ 904.1,
subd. (a)(12); Doe v. United States Swimming, Inc. (2011) 200
Cal.App.4th 1424, 1433 (Doe).) Rather, the issue before us is
whether the court abused its discretion in determining that
plaintiff acted without substantial justification in bringing its
motions to compel. Accordingly, we address the propriety of the
court’s discovery order only insofar as is necessary to determine
whether the court erred in imposing monetary sanctions.
2. Appellant’s Burden on Appeal
The most fundamental rule of appellate review is that the
judgment or order challenged on appeal is presumed to be correct,
and “it is the appellant’s burden to affirmatively demonstrate
error.” (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)
“ ‘All intendments and presumptions are indulged to support it on
matters as to which the record is silent, and error must be
affirmatively shown.’ ” (Denham v. Superior Court (1970) 2
Cal.3d 557, 564.)
When an opening brief fails to make appropriate references
to the record in connection with points urged on appeal, the
appellate court may treat those points as waived or forfeited.
(See, e.g., Lonely Maiden Productions, LLC v. GoldenTree Asset
Management, LP (2011) 201 Cal.App.4th 368, 384; Dietz v.
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Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 779–801
[several contentions on appeal “forfeited” because appellant failed
to provide a single record citation demonstrating it raised those
contentions at trial].) Further, “an appellant must present
argument and authorities on each point to which error is asserted
or else the issue is waived.” (Kurinij v. Hanna & Morton (1997)
55 Cal.App.4th 853, 867.) Matters not properly raised or that lack
adequate legal discussion will be deemed forfeited. (Keyes v.
Bowen (2010) 189 Cal.App.4th 647, 655–656.)
An appellant has the burden not only to show error but
prejudice from that error. (Cal. Const., art. VI, § 13.) If an
appellant fails to satisfy that burden, the argument will be
rejected on appeal. (Century Surety Co. v. Polisso (2006) 139
Cal.App.4th 922, 963.) “[W]e cannot presume prejudice and will
not reverse the judgment in the absence of an affirmative
showing there was a miscarriage of justice. [Citations.] Nor will
this court act as counsel for appellant by furnishing a legal
argument as to how the trial court’s ruling was prejudicial.
[Citations.]” (Ibid.) In short, an appellant must demonstrate
prejudicial error based on sufficient legal argument supported by
citation to an adequate record. (Yield Dynamics, Inc. v. TEA
Systems Corp. (2007) 154 Cal.App.4th 547, 556–557.)
Plaintiff’s appellate briefing largely fails to meet these
standards. For example, the discussion portion of the opening
brief includes 29 argument headings. Some of those sections
direct us to find plaintiff’s legal arguments in the appellate
record. Other sections provide strings of case quotations
unaccompanied by any relevant analysis. Still others simply
contain excerpts from materials in the appellate record without
factual or legal discussion.
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Giving the opening brief a generous reading, we discern
two viable arguments as to why the court’s sanctions order was
improper: broad discovery is permissible, and “blanket rulings”
are not. We address these issues in turn.
3. Standard of Review
Plaintiff suggests that we must review the court’s sanctions
order de novo because the facts are not in dispute. Plaintiff is
wrong. We review an order imposing monetary sanctions for an
abuse of discretion. “ ‘A court’s decision to impose a particular
sanction is “subject to reversal only for manifest abuse exceeding
the bounds of reason.” [Citation.]’ [Citation.]” (Doe, supra, 200
Cal.App.4th at p. 1435; see Manlin v. Milner (2022) 82
Cal.App.5th 1004, 1023.) “We resolve all evidentiary conflicts in
favor of the trial court’s ruling. [Citation.]” (Manlin, at p. 1023.)
4. The court did not abuse its discretion in imposing
monetary sanctions against plaintiff.
California law authorizes a range of penalties for “misuse of
the discovery process.” (§ 2023.030; Cedars-Sinai Medical
Center v. Superior Court (1998) 18 Cal.4th 1, 12; Cornerstone
Realty Advisors, LLC v. Summit Healthcare Reit, Inc. (2020) 56
Cal.App.5th 771, 790.) Misuse of the discovery process includes,
as pertinent here, “[m]aking or opposing, unsuccessfully and
without substantial justification, a motion to compel or to limit
discovery.” (§ 2023.010, subd. (h).) If a monetary sanction is
authorized, “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.” (§ 2023.030, subd. (a), italics added.)
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The court found, in part, that plaintiff’s motions for
discovery were unjustified because the underlying discovery
requests were defective. We agree with the court’s assessment.
Many of plaintiff’s discovery requests are vague, overbroad,
unreasonably burdensome, and not limited to the issue presented
in the complaint, namely, Bren’s alleged embezzlement from the
nominal defendants. Although Bren’s counsel enumerated these
and other issues during the meet-and-confer process, plaintiff did
not relent or modify any of its requests—even those with obvious
defects. Instead, it pressed forward and brought three motions to
compel further responses. On that basis alone, the court’s
imposition of monetary sanctions was warranted.
The court also found that all three of plaintiff’s separate
statements failed to comply with California Rules of Court,
rule 3.1345(c). That subsection provides: “A separate statement is
a separate document filed and served with the discovery motion
that provides all the information necessary to understand each
discovery request and all the responses to it that are at issue. The
separate statement must be full and complete so that no person is
required to review any other document in order to determine the
full request and the full response. Material must not be
incorporated into the separate statement by reference. The
separate statement must include—for each discovery request
(e.g., each interrogatory, request for admission, deposition
question, or inspection demand) to which a further response,
answer, or production is requested—the following: [¶] (1) The text
of the request, interrogatory, question, or inspection demand; [¶]
(2) The text of each response, answer, or objection, and any
further responses or answers; [¶] (3) A statement of the factual
and legal reasons for compelling further responses, answers, or
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production as to each matter in dispute; [¶] (4) If necessary, the
text of all definitions, instructions, and other matters required to
understand each discovery request and the responses to it; [¶]
(5) If the response to a particular discovery request is dependent
on the response given to another discovery request, or if the
reasons a further response to a particular discovery request is
deemed necessary are based on the response to some other
discovery request, the other request and the response to it must
be set forth; and [¶] (6) If the pleadings, other documents in the
file, or other items of discovery are relevant to the motion, the
party relying on them must summarize each relevant document.”
Citing this rule, the court described plaintiff’s separate
statements as “excessively lengthy” to the point that they made
“it unnecessarily difficult for the Court to review the separate
statements.” We agree. (See Mills v. U.S. Bank (2008) 166
Cal.App.4th 871, 893 [denial of motion to compel discovery was
justified based on extremely confusing separate statement].) The
separate statements are filled with generic legal citations and
lengthy excerpts from plaintiff’s meet-and-confer letters. They
are prolix. They are repetitive. They obfuscate the issues. And
they lack substance.
Plaintiff asserts here, as it did below, that it is entitled to
virtually limitless discovery. Plaintiff is incorrect. Although the
right to discovery is broad, it is not absolute. By statute, the
information sought must be (1) “not privileged,” (2) “relevant to
the subject matter” of the action, and (3) “either itself admissible
or reasonably calculated to lead to the discovery of admissible
evidence.” (§ 2017.010.) As the court observed, however, many of
plaintiff’s discovery requests did not seek information relevant to
the alleged embezzlement. Instead, plaintiff sought, for example,
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“All DOCUMENTS and/or COMMUNICATIONS and/or NOTES
CONCERNING or including any of the following: BP1, LLC; BP2,
LLC; BP3, LLC; BP Cabrillo, LLC and/or BP5, LLC.” None of
those entities is a party to the present case and plaintiff has
offered no coherent explanation for such a broad request, other
than to say, essentially, “We are entitled to everything.” Indeed,
plaintiff’s counsel said as much during the hearing on the
motions to compel. Plaintiff is not entitled to “everything” and its
argument to the contrary is specious.
Plaintiff also suggests the court’s order must be reversed
because it is a “blanket ruling.” Apparently, plaintiff believes that
the court was required to “evaluate and rule upon each Discovery
Request, individually … .” First, the court’s ruling indicates that
it did review and analyze each of the discovery requests. With
respect to the form interrogatories, for instance, the court
detailed four different bases for concluding that specific
interrogatories were improper. Second, and in any event, plaintiff
cites no authority that a statement of decision detailing the
court’s ruling as to each discovery request was required.
The cases cited by plaintiff, including Cembrook v. Superior
Court (1961) 56 Cal.2d 423, stand generally for the proposition
that a court should not bar all of a party’s discovery requests
when only a few of those requests are objectionable. (E.g., id. at
p. 427 [“When the objections are predicated upon annoyance,
expense, embarrassment, oppression, or any other ground based
on justice and equity, the trial court is vested with wide
discretion, the exercise of which will not be disturbed by the
appellate courts in the absence of an abuse. Such discretion,
however, does not authorize the trial court to act on grounds not
contemplated by the statute, nor to make blanket orders barring
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disclosure in toto when the factual situation indicates that a just
and equitable order could be made that would authorize
disclosure with limitations.”].) We agree. But the point is only
applicable where at least some of a party’s discovery requests are
either proper or could easily be made so. (Ibid.) That issue relates
solely to the merits of the discovery ruling, however, not to the
imposition of sanctions. It is therefore beyond the scope of our
review.
DISPOSITION
The sanctions order is affirmed. Respondent Cary Bren
shall recover his costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, Acting P. J.
WE CONCUR:
EGERTON, J.
ADAMS, J.
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