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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA BARBARA
Dated and Entered: 05/27/2022 Time: 10:00 AM
Judicial Officer: Donna D Geck
Deputy Clerk: Kristi Temple 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 Plaintiff’s Attorney
NATURE OF PROCEEDINGS: Motion: Compel
Counsel submitted on the Court’s tentative ruling, which was adopted as follows:
RULING:
For the reasons set forth herein the motion of plaintiff Mark Schaub to compel further responses to
written discovery is granted. Defendant FCP Corporate Ltd. shall serve written responses to plaintiff’s
first sets of form interrogatories, requests for production of documents, and requests for admissions,
without objection except as to privilege, on or before June 13, 2022. As to any information or document
withheld on the grounds of privilege, FCP Corporate Ltd. shall concurrently serve a privilege log
identifying the information or document withheld and providing sufficient additional information for the
court to rule on the claim of privilege. The court awards monetary sanctions in the amount of $6,500.00
in favor of plaintiff Mark Schaub and against defendant FCP Corporate Ltd., to be paid to counsel for
plaintiff on or before June 13, 2022.
Background:
On June 23, 2020, plaintiffs Mark 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.
On July 30, 2021, defendants filed a demurrer and motion to strike as to the SAC.
SC-2411 (Revised July 1, 2013) MINUTE ORDER
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: Schaub’s original exhibit B
consists of the response of FCP Private to the form interrogatories, and not the response of FCP
Corporate. In counsel’s supplemental declaration, counsel clarifies that the responses are mislabeled
and are intended to be responses of FCP Corporate. (Bang supp. decl., ¶¶ 5-6 & exhibit K.)) 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 May 6, 2022.
On May 6, 2022, the court continued the hearing for Schaub to pay all required fees. Schaub has now
paid the fees and provided notice as required by the court.
No opposition or other response has been filed to the motion.
Analysis:
Schaub moves to compel further responses to his first sets of form interrogatories, requests for
production of documents, and requests for admissions.
With respect to each of these sets of discovery, counsel for Schaub attempted to meet and confer. (Bang
decl., ¶¶ 8-9 & exhibit E.) However, in the absence of counsel for FCP Corporate and defendant Water’s
own inability to represent this entity (which was represented as being “de registered”), there was no
substantive response to the meet and confer effort. (Ibid.)
SC-2411 (Revised July 1, 2013) MINUTE ORDER
“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: [¶] … [¶] (3) An objection
to an interrogatory is without merit or too general.” (Code Civ. Proc., § 2030.300, subd. (a)(3); accord, §§
2033.290, subd. (a)(3) [requests for admission], 2031.310, subd. (a)(3) [requests for production of
documents].) With respect to the requests for production of documents, Schaub explains that the
documents sought inquire into the nature and ownership of FCP Corporate, its relationship with respect
to the parties, documents related to the stolen funds, documents related to agreements between the
parties, and documents relating to employees and agents who may have knowledge about the
allegations. (Motion, at p. 9.)
The objections to the discovery all assert that the breakdown of the relationship with counsel made
substantive responses impossible and so the objections are protective while counsel made their motion
to withdraw. “[I]f a timely motion to compel has been filed, the burden is on responding party to justify any
objection.” (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.) No opposition has been
filed. FCP Corporate therefore fails in its burden to justify its responses. The motion will be granted to
require FCP Corporate to respond without objection except as to privilege.
“The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010)
against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a
further response to interrogatories, 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.” (Code
Civ. Proc., § 2030.300, subd. (d) [interrogatories]; accord, §§ 2033.290, subd. (d) [requests for
admission], 2031.310, subd. (h) [requests for production of documents].)
Schaub seeks an award of monetary sanctions in the amount of $10,500, which includes anticipated
attorney time to prepare a reply and attend the hearing. Because the motion is unopposed and in view of
the nature and extent of the motion, the court finds that $6,500.00 is the reasonable amount of attorney
fees to be awarded for this combined motion.
DARREL E. PARKER, EXECUTIVE OFFICER Minutes Prepared by:
Kristi Temple , Deputy
SC-2411 (Revised July 1, 2013) MINUTE ORDER
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SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA BARBARA Dated and Entered: 05/27/2022 Time: 10:00 AM Judicial Officer: Donna D Geck Deputy Clerk: Kristi Temple 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 Plaintiff’s Attorney NATURE OF PROCEEDINGS: Motion: Compel Counsel submitted on the Court’s tentative ruling, which was adopted as follows: RULING: For the reasons set forth herein the motion of plaintiff Mark Schaub to compel further responses to written discovery is granted. Defendant FCP Corporate Ltd. shall serve written responses to plaintiff’s first sets of form interrogatories, requests for production of documents, and requests for admissions, without objection except as to privilege, on or before June 13, 2022. As to any information or document withheld on the grounds of privilege, FCP Corporate Ltd. shall concurrently serve a privilege log identifying the information or document withheld and providing sufficient additional information for the court to rule on the claim of privilege. The court awards monetary sanctions in the amount of $6,500.00 in favor of plaintiff Mark Schaub and against defendant FCP Corporate Ltd., to be paid to counsel for plaintiff on or before June 13, 2022. Background: On June 23, 2020, plaintiffs Mark 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. On July 30, 2021, defendants filed a demurrer and motion to strike as to the SAC. SC-2411 (Revised July 1, 2013) MINUTE ORDER 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: Schaub’s original exhibit B consists of the response of FCP Private to the form interrogatories, and not the response of FCP Corporate. In counsel’s supplemental declaration, counsel clarifies that the responses are mislabeled and are intended to be responses of FCP Corporate. (Bang supp. decl., ¶¶ 5-6 & exhibit K.)) 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 May 6, 2022. On May 6, 2022, the court continued the hearing for Schaub to pay all required fees. Schaub has now paid the fees and provided notice as required by the court. No opposition or other response has been filed to the motion. Analysis: Schaub moves to compel further responses to his first sets of form interrogatories, requests for production of documents, and requests for admissions. With respect to each of these sets of discovery, counsel for Schaub attempted to meet and confer. (Bang decl., ¶¶ 8-9 & exhibit E.) However, in the absence of counsel for FCP Corporate and defendant Water’s own inability to represent this entity (which was represented as being “de registered”), there was no substantive response to the meet and confer effort. (Ibid.) SC-2411 (Revised July 1, 2013) MINUTE ORDER “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: [¶] … [¶] (3) An objection to an interrogatory is without merit or too general.” (Code Civ. Proc., § 2030.300, subd. (a)(3); accord, §§ 2033.290, subd. (a)(3) [requests for admission], 2031.310, subd. (a)(3) [requests for production of documents].) With respect to the requests for production of documents, Schaub explains that the documents sought inquire into the nature and ownership of FCP Corporate, its relationship with respect to the parties, documents related to the stolen funds, documents related to agreements between the parties, and documents relating to employees and agents who may have knowledge about the allegations. (Motion, at p. 9.) The objections to the discovery all assert that the breakdown of the relationship with counsel made substantive responses impossible and so the objections are protective while counsel made their motion to withdraw. “[I]f a timely motion to compel has been filed, the burden is on responding party to justify any objection.” (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.) No opposition has been filed. FCP Corporate therefore fails in its burden to justify its responses. The motion will be granted to require FCP Corporate to respond without objection except as to privilege. “The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, 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.” (Code Civ. Proc., § 2030.300, subd. (d) [interrogatories]; accord, §§ 2033.290, subd. (d) [requests for admission], 2031.310, subd. (h) [requests for production of documents].) Schaub seeks an award of monetary sanctions in the amount of $10,500, which includes anticipated attorney time to prepare a reply and attend the hearing. Because the motion is unopposed and in view of the nature and extent of the motion, the court finds that $6,500.00 is the reasonable amount of attorney fees to be awarded for this combined motion. DARREL E. PARKER, EXECUTIVE OFFICER Minutes Prepared by: Kristi Temple , Deputy SC-2411 (Revised July 1, 2013) MINUTE ORDER