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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA BARBARA
Dated and Entered: 08/12/2022 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 Further Responses to Form Interrogatories by
Defendant Andrew Waters and Request for Sanctions; Motion: Compel Further Responses to
Requests for Production by Defendant Andrew Waters and Request for Sanctions; Motion:
Compel and Request for Sanctions; Motion: Compel; Motion: Compel; Motion: Compel
The Court adopted the tentative ruling as follows:
RULINGS: For the reasons set forth herein the motion of plaintiff Mark Schaub to compel further
responses to written discovery is granted. Defendant FCP Private, LLC, and defendant Andrew Wyles
Waters shall both 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 August 29, 2022. As to any information or document withheld on the grounds of privilege, FCP
Private, LLC, and Wiles shall each 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 total amount of $2,500in favor of plaintiff Mark
Schaub and against defendant FCP Private, LLC and Waters, to be paid to counsel for plaintiff on or
before August 29, 2022. Defendants FCP Private, LLC and Waters shall be jointly and severally liable for
payment of the sanction award.
Background: Plaintiffs’ operative complaint, the Second Amended Complaint (SAC) alleges causes of
action against defendants Andrew Wyles Waters, FCP Corporate, Ltd., and VCP Private, LLC, for (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 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.
SC-2411 (Revised July 1, 2013) MINUTE ORDER
On October 29, 2021, plaintiff Schaub separately served on each defendant 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 defendants requested an extension of time to respond to the
discovery. Plaintiff agreed to extend the time to December 15, 2021.
On December 10, 2021, then-counsel for defendants requested a second extension, and an extension
was agreed to December 28, 2021.
On December 28, 2021, FCP Corporate served by electronic service responses to the written discovery
consisting of objections only. 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 a motion to compel further responses to discovery from FCP
Corporate only, as to the written discovery and for an award of monetary sanctions. The notice of motion
stated that defendants Waters and FCP Private had stipulated to extend the time to bring a motion to
compel further responses as to them but FCP Corporate had not.
While the motion against FCP Corporate was pending, but before it was heard, Schaub filed virtually
identical motions to compel against defendants Waters and FCP Private. The motion against defendant
Waters differed only in its discussion of several form interrogatories which had been propounded solely
to Waters, and not to the entity defendants.
The motion against FCP Corporate was ultimately heard by the Court on May 27, 2022. No opposition or
other response had been filed to the motion. [The Court notes that an unrepresented entity defendant,
FCP Corporate was not legally permitted to respond to the motion.]
The Court granted the motion, stating:
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.)
“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
SC-2411 (Revised July 1, 2013) MINUTE ORDER
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.
The virtually identical circumstances exist here. The motions before the Court are virtually identical to
those which this Court addressed in May, save for the reference in the motion directed to defendant
Waters to a small number of form interrogatories propounded only upon him. The identical circumstances
exist with respect to defendant FCP Private LLC as existed in the previous motion against defendant
FCP Corporate, in terms of the absence of a representing attorney. Again, also, no oppositions or other
responses to the motions have been filed.
Consequently, for the reasons articulated in its prior ruling (see, supra), the Court will grant the current
motions, and will order defendants FCP Private, LLC and Andrew Wyle Waters to each provide further
verified responses to the form interrogatories, requests for production of documents, and requests for
admission propounded upon each of them by plaintiff Schaub, without objection except as to privilege,
on or before August 29, 2022. As to any information or document withheld on the grounds of privilege,
FCP Private, LLC and Waters 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.
While the Court is inclined to award sanctions, the fact that these motions are virtually identical to the
motions which were previously before the Court, and therefore necessarily required only minimal effort to
individualize and/or adapt to the party from whom further responses were sought, the Court finds that
$2,500 is the total reasonable amount of attorney fees to be awarded for these combined motions, to be
paid to counsel for plaintiff on or before August 29, 2022. The Court will find further that defendants FCP
Private, LLC and Waters are jointly and severally liable for payment of the $2,500 sanction award.
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: 08/12/2022 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 Further Responses to Form Interrogatories by Defendant Andrew Waters and Request for Sanctions; Motion: Compel Further Responses to Requests for Production by Defendant Andrew Waters and Request for Sanctions; Motion: Compel and Request for Sanctions; Motion: Compel; Motion: Compel; Motion: Compel The Court adopted the tentative ruling as follows: RULINGS: For the reasons set forth herein the motion of plaintiff Mark Schaub to compel further responses to written discovery is granted. Defendant FCP Private, LLC, and defendant Andrew Wyles Waters shall both 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 August 29, 2022. As to any information or document withheld on the grounds of privilege, FCP Private, LLC, and Wiles shall each 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 total amount of $2,500in favor of plaintiff Mark Schaub and against defendant FCP Private, LLC and Waters, to be paid to counsel for plaintiff on or before August 29, 2022. Defendants FCP Private, LLC and Waters shall be jointly and severally liable for payment of the sanction award. Background: Plaintiffs’ operative complaint, the Second Amended Complaint (SAC) alleges causes of action against defendants Andrew Wyles Waters, FCP Corporate, Ltd., and VCP Private, LLC, for (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 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. SC-2411 (Revised July 1, 2013) MINUTE ORDER On October 29, 2021, plaintiff Schaub separately served on each defendant 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 defendants requested an extension of time to respond to the discovery. Plaintiff agreed to extend the time to December 15, 2021. On December 10, 2021, then-counsel for defendants requested a second extension, and an extension was agreed to December 28, 2021. On December 28, 2021, FCP Corporate served by electronic service responses to the written discovery consisting of objections only. 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 a motion to compel further responses to discovery from FCP Corporate only, as to the written discovery and for an award of monetary sanctions. The notice of motion stated that defendants Waters and FCP Private had stipulated to extend the time to bring a motion to compel further responses as to them but FCP Corporate had not. While the motion against FCP Corporate was pending, but before it was heard, Schaub filed virtually identical motions to compel against defendants Waters and FCP Private. The motion against defendant Waters differed only in its discussion of several form interrogatories which had been propounded solely to Waters, and not to the entity defendants. The motion against FCP Corporate was ultimately heard by the Court on May 27, 2022. No opposition or other response had been filed to the motion. [The Court notes that an unrepresented entity defendant, FCP Corporate was not legally permitted to respond to the motion.] The Court granted the motion, stating: 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.) “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 SC-2411 (Revised July 1, 2013) MINUTE ORDER 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. The virtually identical circumstances exist here. The motions before the Court are virtually identical to those which this Court addressed in May, save for the reference in the motion directed to defendant Waters to a small number of form interrogatories propounded only upon him. The identical circumstances exist with respect to defendant FCP Private LLC as existed in the previous motion against defendant FCP Corporate, in terms of the absence of a representing attorney. Again, also, no oppositions or other responses to the motions have been filed. Consequently, for the reasons articulated in its prior ruling (see, supra), the Court will grant the current motions, and will order defendants FCP Private, LLC and Andrew Wyle Waters to each provide further verified responses to the form interrogatories, requests for production of documents, and requests for admission propounded upon each of them by plaintiff Schaub, without objection except as to privilege, on or before August 29, 2022. As to any information or document withheld on the grounds of privilege, FCP Private, LLC and Waters 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. While the Court is inclined to award sanctions, the fact that these motions are virtually identical to the motions which were previously before the Court, and therefore necessarily required only minimal effort to individualize and/or adapt to the party from whom further responses were sought, the Court finds that $2,500 is the total reasonable amount of attorney fees to be awarded for these combined motions, to be paid to counsel for plaintiff on or before August 29, 2022. The Court will find further that defendants FCP Private, LLC and Waters are jointly and severally liable for payment of the $2,500 sanction award. DARREL E. PARKER, EXECUTIVE OFFICER Minutes Prepared by: Kristi Temple , Deputy SC-2411 (Revised July 1, 2013) MINUTE ORDER