United States District Court

For the Northern District of California

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 GEM’s motion also addressed discovery requests propounded to corporate defendant Sorenson

Group Holdings, LLC and nonparty SGH FNB Ventures, LLC, but defendants have already produced

or are in the process of producing discovery related to these entities. As such, the present dispute relates

only to the individual defendants.

United States District Court

For the Northern District of California

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

GEM ACQUISITIONCO, LLC, et al.,

Plaintiffs,

 v.

SORENSON GROUP HOLDINGS, LLC, et al.,

Defendants. /

No. C 09-01484 SI

ORDER DENYING PLAINTIFF’S

MOTION TO COMPEL

(Docket No. 109)

GEM has filed a motion to compel Sorenson to produce information and documents reflecting

the net worth and financial condition of each of the individual defendants, James Sorenson, Joseph

Sorenson, and Timothy Fenton.1 Specifically, GEM seeks documents showing “each Defendant’s

financial condition and holdings (including assets, liabilities, net worth, income and profits) for the years

2008 and 2009 and to the present, including, e.g., financial statements and tax returns,” as well as a

statement of “each Defendant’s net worth as of February 9, 2009 and at present.” 

The Court agrees with Sorenson that GEM is not entitled to the discovery it seeks. GEM seeks

the discovery at issue in this motion for purposes of calculating a punitive damages claim. Contrary to

GEM’s representation, however, it has no claim for punitive damages in this case. GEM’s complaint

does not contain a prayer for punitive damages. Additionally, although any punitive damages claim

must be based on GEM’s sole tort cause of action – for breach of fiduciary duty – the complaint does

not allege that Sorenson engaged in malice, fraud, or oppression. Under California law, “a breach of

Case 3:09-cv-01484-SI Document 130 Filed 06/22/10 Page 1 of 2
United States District Court

For the Northern District of California

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a fiduciary duty alone without malice, fraud or oppression does not permit an award of punitive

damages.” Flyer’s Body Shop Profit Sharing Plan v. Ticor Title Ins. Co., 230 Cal. Rptr. 276, 278 (Cal.

Ct. App. 1986). Furthermore, GEM has been conducting discovery in this case without any indication

to Sorenson, either in its initial disclosures or in response to an interrogatory specifically asking it to

state the basis and amount of its claimed damages, that it intends to seek punitive damages.

GEM states that Sorenson has puts its own financial condition at issue by stating that the

Portfolio has turned out to be less valuable than Sorenson initially anticipated due to negative tax

consequences. However, the only source GEM cites is a statement from the deposition of one of the

individual defendants. To the Court’s knowledge, Sorenson has never taken this position in any of its

pleadings or moving papers.

Accordingly, GEM’s motion to compel is DENIED.

IT IS SO ORDERED.

Dated: June 22, 2010 

SUSAN ILLSTON

United States District Judge

Case 3:09-cv-01484-SI Document 130 Filed 06/22/10 Page 2 of 2