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SUPERIOR COURT OF CALIFORNIA
COUNTY 0F SANTA BARBARA
Dated and Entered: 05/06/2022 Time: 10:00 AM
Judicial Officer: Donna D Geck
Deputy Clerk: Danae Chauvin-Couture Dept: SB Dept 4
Deputy Sheriff: Marco Diaz
Court Reporter: Michelle Sabado Case No: 20CV02113
Mark Schaub et al vs Andrew Wyles Waters et al
Parties Present:
Diane Bang Attorney for Plaintiff (via Zoom)
NATURE OF PROCEEDINGS: Case Management Conference; Motion to Compel
The matter proceeded via Zoom.
The Court continued the matter as indicated below in accordance with the tentative ruling.
May 27, 2022 10:00 AM
Motion: Compel
Geck, Donna D
SB Dept 4
The Court adopted the tentative ruling as follows:
RULING:
For the reasons set forth herein, the motion of plaintiff Mark Schaub to compel further responses to
written discovery is continued to May 27, 2022. On or before May 13, 2022, plaintiff shallpay all required
filing fees (fees for two motions are now due and unpaid) and shall file and serve notice of payment of
such fees or a notice of withdrawal of the motions for which fees are not paid. On or before May 13,
2022, plaintiff shall also file and serve notice of the continued hearing.
Background:
On June 23, 2020, plaintiffsMark Schaub and TLG Ltd. filed their original complaint in this action against
defendants Andrew Wyle Waters, FCP Corporate Ltd. (FCP Corporate), and FCP Private, LLC (FCP
Private).
On February 2, 2021, without any response having been filed by defendants, plaintiffs filed their first
amended complaint.
On April 1, 2021, defendants filed a demurrer and motion to strike as to the first amended complaint.
On June 14, 2021, plaintiffs filed their second amended complaint (SAC), which is the operative
pleading. The SAC alleges six causes of action: (1) conversion, (2) intentional misrepresentation—fraud;
(3) concealment; (4) breach of contract ($1,940,000); (5) breach of contract ($400,000); and (6) unjust
enrichment.
sc-2411 (Revised July
1,2013) MINUTE ORDER
On July 30, 2021, defendants filed a demurrer and motion to strike as to the SAC.
On October 12, 2021, then-counsel for defendants filed their motion to be relieved as counsel. The
declaration filed in support of the motion identified a confidential but material breakdown in the attorney-
client relationship as the reason for the motion.
On October 25, 2021, defendants filed their answer to the SAC, generally denying the allegations thereof
and asserting nine affirmative defenses.
On October 29, 2021, plaintiff Schaub served his first sets of form interrogatories, requests for production
of documents, and requests for admissions on then-counsel for defendants. (Bang decl., ¶ 2.)
On November 15, 2021, then-counsel for FCP Corporate requested an extension of time to respond to
the discovery. (Bang decl., ¶ 3.) Plaintiff agreed to extend the time to December 15, 2021.
On December 10, 2021, then-counsel for FCP Corporate requested a second extension, and an
extension was agreed to December 28, 2021. (Bang decl., ¶¶ 4-5.)
On December 28, 2021, FCP Corporate served by electronic service responses to the written discovery
consisting of objections only. (Bang decl., ¶ 6 & exhibits B, C, D.) (Note: Exhibit B consists of the
response of FCP Private to the form interrogatories, and not the response of FCP Corporate.) The
objections all note that a motion to be relieved as counsel was pending and that as a result of the
breakdown of the attorney-client relationship, counsel is not able to provide full and complete responses
at that time.
On January 7, 2022, the court heard and granted the motion of counsel to be relieved as counsel. The
court also entered its written order which states that it is effective upon the filing of proof of service of the
signed order. Proof of service of the order was filed later that day.
On February 15, 2022, Schaub filed this motion to compel further responses from FCP Corporate as to
the written discovery and for an award of monetary sanctions. The notice of motion states that
defendants Waters and FCP Private have stipulated to extend the time to bring a motion to compel
further responses as to them but FCP Corporate has not. (See also Bang decl., ¶ 9.)
This hearing was originally set for April 29, 2022, but was continued by the court to this hearing date of
May 6, 2022.
No opposition or other response has been filed to the motion.
Analysis:
There is a procedural issue in that the motion is a combined motion to compel further responses to three
different sets of discovery: form interrogatories, set one; request for production of documents, set one;
and request for admission, set one. There is in general no prohibition of combining documents
supporting certain motions. The procedural problem comes about not from the combination of documents
but from the payment of filing fees. Only one filing fee has been paid.
The motion filing fee applies to “Discovery motions under Title 4 (commencing with Section 2016.010) of
Part 4 of the Code of Civil Procedure.” (Gov. Code, § 70617, subd. (a)(4).) “Regardless of whether each
motion or matter is heard at a single hearing or at separate hearings, the filing fees required by
SC-2411 (Revised July 1, 2013) MINUTE ORDER
subdivisions (a), (c), (d), and (e) apply separately to each motion or other paper filed.” (Gov. Code, §
70617, subd. (f).)
“Every direction of a court or judge, made or entered in writing, and not included in a judgment, is
denominated an order. An application for an order is a motion.” (Code Civ. Proc., § 1003.)
The Civil Discovery Act authorizes the motions sought here, namely, motions to compel further
responses. In each case, the “motion” authorized by statute is keyed to the response to a particular set of
discovery. (Code Civ. Proc., § 2030.210, subd. (b) [response must identify the set number of the
interrogatories to which the response is made]; Code Civ. Proc., § 2030.300, subd. (a) [“On receipt of a
response to interrogatories, the propounding party may move for an order compelling a further response
if the propounding party deems that any of the following apply ….”]; Code Civ. Proc., § 2031.210, subd.
(b) [response must identify the set number of the requests for production to which the response is made];
Code Civ. Proc., § 2031.310, subd. (a) [“On receipt of a response to a demand for inspection, copying,
testing, or sampling, the demanding party may move for an order compelling further response to the
demand if the demanding party deems that any of the following apply ….”].) Because each motion to
compel further responses to a particular set of discovery is a separately authorized motion, a separate
filing fee is required for each motion, whether or not such motions are presented in a single notice with
combined supporting papers or such motions are presented with separate notices and separate
supporting papers.
“Officers of the state, or of a county or judicial district, shall not perform any official services unless upon
the payment of the fees prescribed by law for the performance of the services, except as provided in this
chapter.” (Gov. Code, § 6100.) “An unbroken line of decisions by our Supreme Court holds that it is
mandatory for court clerks to demand and receive the fee required by statute before documents or
pleadings are filed.” (Duran v. St. Luke’s Hospital (2003) 114 Cal.App.4th 457, 459.)
Here, only one filing fee was paid. The court requires either that filing fees be paid for two additional
motions so that a fee is paid for each of the three motions or that plaintiffs identify which one of the
motions the court is to address and which two of the motions are to be withdrawn for failure to pay the
fee. The court will continue the hearing on the motions for the plaintiffs to pay the required fee or
otherwise to make an election.
For future reference, where discovery motions are combined, it is preferred, for calendaring and filing fee
purposes, that each notice be a separate document and, for practical purposes, that each notice specify,
by number, the interrogatories or requests for which further responses are requested. Other documents,
including particularly declarations and memoranda in support, are often preferred to be combined.
Combining declarations, for example, avoids having to refer to several nearly identical declarations
separately with respect to each motion.
DARREL E. PARKER, EXECUTIVE OFFICER Minutes Prepared by:
Danae Chauvin-Couture , Deputy
SC-2411 (Revised July 1, 2013) MINUTE ORDER
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SUPERIOR COURT OF CALIFORNIA COUNTY 0F SANTA BARBARA Dated and Entered: 05/06/2022 Time: 10:00 AM Judicial Officer: Donna D Geck Deputy Clerk: Danae Chauvin-Couture Dept: SB Dept 4 Deputy Sheriff: Marco Diaz Court Reporter: Michelle Sabado Case No: 20CV02113 Mark Schaub et al vs Andrew Wyles Waters et al Parties Present: Diane Bang Attorney for Plaintiff (via Zoom) NATURE OF PROCEEDINGS: Case Management Conference; Motion to Compel The matter proceeded via Zoom. The Court continued the matter as indicated below in accordance with the tentative ruling. May 27, 2022 10:00 AM Motion: Compel Geck, Donna D SB Dept 4 The Court adopted the tentative ruling as follows: RULING: For the reasons set forth herein, the motion of plaintiff Mark Schaub to compel further responses to written discovery is continued to May 27, 2022. On or before May 13, 2022, plaintiff shallpay all required filing fees (fees for two motions are now due and unpaid) and shall file and serve notice of payment of such fees or a notice of withdrawal of the motions for which fees are not paid. On or before May 13, 2022, plaintiff shall also file and serve notice of the continued hearing. Background: On June 23, 2020, plaintiffsMark Schaub and TLG Ltd. filed their original complaint in this action against defendants Andrew Wyle Waters, FCP Corporate Ltd. (FCP Corporate), and FCP Private, LLC (FCP Private). On February 2, 2021, without any response having been filed by defendants, plaintiffs filed their first amended complaint. On April 1, 2021, defendants filed a demurrer and motion to strike as to the first amended complaint. On June 14, 2021, plaintiffs filed their second amended complaint (SAC), which is the operative pleading. The SAC alleges six causes of action: (1) conversion, (2) intentional misrepresentation—fraud; (3) concealment; (4) breach of contract ($1,940,000); (5) breach of contract ($400,000); and (6) unjust enrichment. sc-2411 (Revised July 1,2013) MINUTE ORDER On July 30, 2021, defendants filed a demurrer and motion to strike as to the SAC. On October 12, 2021, then-counsel for defendants filed their motion to be relieved as counsel. The declaration filed in support of the motion identified a confidential but material breakdown in the attorney- client relationship as the reason for the motion. On October 25, 2021, defendants filed their answer to the SAC, generally denying the allegations thereof and asserting nine affirmative defenses. On October 29, 2021, plaintiff Schaub served his first sets of form interrogatories, requests for production of documents, and requests for admissions on then-counsel for defendants. (Bang decl., ¶ 2.) On November 15, 2021, then-counsel for FCP Corporate requested an extension of time to respond to the discovery. (Bang decl., ¶ 3.) Plaintiff agreed to extend the time to December 15, 2021. On December 10, 2021, then-counsel for FCP Corporate requested a second extension, and an extension was agreed to December 28, 2021. (Bang decl., ¶¶ 4-5.) On December 28, 2021, FCP Corporate served by electronic service responses to the written discovery consisting of objections only. (Bang decl., ¶ 6 & exhibits B, C, D.) (Note: Exhibit B consists of the response of FCP Private to the form interrogatories, and not the response of FCP Corporate.) The objections all note that a motion to be relieved as counsel was pending and that as a result of the breakdown of the attorney-client relationship, counsel is not able to provide full and complete responses at that time. On January 7, 2022, the court heard and granted the motion of counsel to be relieved as counsel. The court also entered its written order which states that it is effective upon the filing of proof of service of the signed order. Proof of service of the order was filed later that day. On February 15, 2022, Schaub filed this motion to compel further responses from FCP Corporate as to the written discovery and for an award of monetary sanctions. The notice of motion states that defendants Waters and FCP Private have stipulated to extend the time to bring a motion to compel further responses as to them but FCP Corporate has not. (See also Bang decl., ¶ 9.) This hearing was originally set for April 29, 2022, but was continued by the court to this hearing date of May 6, 2022. No opposition or other response has been filed to the motion. Analysis: There is a procedural issue in that the motion is a combined motion to compel further responses to three different sets of discovery: form interrogatories, set one; request for production of documents, set one; and request for admission, set one. There is in general no prohibition of combining documents supporting certain motions. The procedural problem comes about not from the combination of documents but from the payment of filing fees. Only one filing fee has been paid. The motion filing fee applies to “Discovery motions under Title 4 (commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure.” (Gov. Code, § 70617, subd. (a)(4).) “Regardless of whether each motion or matter is heard at a single hearing or at separate hearings, the filing fees required by SC-2411 (Revised July 1, 2013) MINUTE ORDER subdivisions (a), (c), (d), and (e) apply separately to each motion or other paper filed.” (Gov. Code, § 70617, subd. (f).) “Every direction of a court or judge, made or entered in writing, and not included in a judgment, is denominated an order. An application for an order is a motion.” (Code Civ. Proc., § 1003.) The Civil Discovery Act authorizes the motions sought here, namely, motions to compel further responses. In each case, the “motion” authorized by statute is keyed to the response to a particular set of discovery. (Code Civ. Proc., § 2030.210, subd. (b) [response must identify the set number of the interrogatories to which the response is made]; Code Civ. Proc., § 2030.300, subd. (a) [“On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply ….”]; Code Civ. Proc., § 2031.210, subd. (b) [response must identify the set number of the requests for production to which the response is made]; Code Civ. Proc., § 2031.310, subd. (a) [“On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply ….”].) Because each motion to compel further responses to a particular set of discovery is a separately authorized motion, a separate filing fee is required for each motion, whether or not such motions are presented in a single notice with combined supporting papers or such motions are presented with separate notices and separate supporting papers. “Officers of the state, or of a county or judicial district, shall not perform any official services unless upon the payment of the fees prescribed by law for the performance of the services, except as provided in this chapter.” (Gov. Code, § 6100.) “An unbroken line of decisions by our Supreme Court holds that it is mandatory for court clerks to demand and receive the fee required by statute before documents or pleadings are filed.” (Duran v. St. Luke’s Hospital (2003) 114 Cal.App.4th 457, 459.) Here, only one filing fee was paid. The court requires either that filing fees be paid for two additional motions so that a fee is paid for each of the three motions or that plaintiffs identify which one of the motions the court is to address and which two of the motions are to be withdrawn for failure to pay the fee. The court will continue the hearing on the motions for the plaintiffs to pay the required fee or otherwise to make an election. For future reference, where discovery motions are combined, it is preferred, for calendaring and filing fee purposes, that each notice be a separate document and, for practical purposes, that each notice specify, by number, the interrogatories or requests for which further responses are requested. Other documents, including particularly declarations and memoranda in support, are often preferred to be combined. Combining declarations, for example, avoids having to refer to several nearly identical declarations separately with respect to each motion. DARREL E. PARKER, EXECUTIVE OFFICER Minutes Prepared by: Danae Chauvin-Couture , Deputy SC-2411 (Revised July 1, 2013) MINUTE ORDER