SUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF SANTA CLARA

Transcription

SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
Department 19, Honorable Socrates P. Manoukian, Presiding
Diane Macias, Courtroom Clerk
TBD, Court Reporter
161 North First Street, San Jose, CA 95113
Telephone: 408.882.2310
To contest the ruling, call (408) 808-6856 before 4:00 P.M.
DISCOVERY TENTATIVE RULINGS
DATE: , 2014
TIME: 9:00 A.M.
PREVAILING PARTY SHALL PREPARE THE ORDER
(SEE RULE OF COURT 3.1312)
LINE #
CASE #
CASE TITLE
RULING
LINE 1
111CV203554 Glenridge Phamaceuticals Click line 1 for tentative ruling
LLC vs Questcor
Pharmaceuticals
LINE 2
113CV242491 Invention Capital Partners OFF CALENDAR
vs Phoenix Technologies
LINE 3
113CV247234 K. Drotar, et al vs M.
Rohaninejad
LINE 4
113CV248564 Brinkman, et al vs Kaiser Click line 4 for tentative ruling
Gypsum Company, Inc.
LINE 5
113CV252171 L. Cheung vs K. Sun Tse
LINE 6
113CV253951 N. Ramirez vs J. Mendez OFF CALENDAR
LINE 7
113CV256794 Brightedge Technologies, Click line 7 for tentative ruling
Inc. vs Searchmetrics, Inc.
LINE 8
114CV259504 M. Ortiz vs Jake Farkwell OFF CALENDAR PER REQUEST OF THE
LLC
MOVING PARTY
LINE 9
114CV259507 M. Hagaman, et al vs M.
Afzal
LINE 10
114CV261160 B. Rivera vs A. Burt, et al Click line 10 for tentative ruling
LINE 11
114CV261727 J. Faridnia vs R. Prigge, et Click line 11 for tentative ruling
al
LINE 12
114CV263146 J. Phills vs The Board of
OFF CALENDAR
Click line 5 for tentative ruling
OFF CALENDAR
Continued to 10/17/14.
Trustee of The Leland
Stanford Junior University
LINE 13
112CV236762 S. Zarandian vs N. Molavi OFF CALENDAR
LINE 14
112CV237275 J. Carrillo vs OS Transport OFF CALENDAR
LINE 15
113CV250076 McManiz Faulkner vs C.
Berg
OFF CALENDAR
LINE 16
113CV250531 G. Lovett vs Dell, Inc.
OFF CALENDAR
LINE 17
113CV257317 F. Pichardo, et al vs T.
Luong
OFF CALENDAR
Department 19, Honorable Socrates P. Manoukian, Presiding
Diane Macias, Courtroom Clerk
TBD, Court Reporter
Telephone: 408.882.2310
To contest the ruling, call (408) 808-6856 before 4:00 P.M.
DISCOVERY TENTATIVE RULINGS
LINE 18
114CV260551 Global Equipment
Services and
Manufacturing vs H.
Nguyen
LINE 19
112CV226514 D. Zhang, et al vs Stanford OFF CALENDAR
Hospital
LINE 20
113CV254532 L. Truong vs K. Nguyen
OFF CALENDAR
LINE 21
113CV245770 R. Kumar vs Keepak Ji
Dismissal filed 10/8/14
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OFF CALENDAR
Calendar line 1
DEPARTMENT 19
408.882.2310 · 408.882.2299(fax)
[email protected]
http://www.scscourt.org
Glenridge Pharmaceuticals LLC v. Questcor Pharm.
DATE: 10 October 2014
TIME: 9:00
(For Clerk's Use Only)
CASE NO. 111CV203554
LINE NUMBER: 1
This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the
Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative
ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM
Thursday 9 October 2014. Please specify the issue to be contested when calling the Court and
counsel.
On 10 October 2014, the motions of plaintiff/cross-defendant Glenridge Pharmaceuticals LLC (“Glenridge”) and
defendants Kenneth Greathouse (“Greathouse”), Stuart Rose (“Rose”), and Lloyd Glenn (“Glenn”) (collectively,
“Defendants”) (1) to compel further responses to requests for production of documents set nine (“RPD Set Nine”) or
alternatively for evidence and issue sanctions, and (2) to compel deposition answers, the production of documents
responsive to requests for production of documents set one (“RPD Set One”) and requests for production of
documents set five (“RPD Set Five”) (collectively, “RPD”), and further responses to form interrogatories set six (“FI”),
special interrogatories set eight (“SI”), and requests for admission set five (“RFA”) and for issue and evidence
sanctions were argued and submitted. Defendant Questcor Pharmaceuticals, Inc. (“Questcor”) filed formal
oppositions to the motions. 1
The same day, the motion of Glenridge to compel answers at deposition and for monetary sanctions was argued and
submitted. Questcor filed a formal opposition to the motion.
All parties are reminded that all papers must comply with California Rules of Court (“CRC”), rule 3.1110(f). 2
Statement of Facts
This action arises from a contract dispute. Glenridge identified a product known as Acthar Gel (“Acthar”), the rights
to which were owned by Aventis Pharmaceutical Products, Inc. (“Aventis”), and Glenridge and Aventis tentatively
agreed that Glenridge would purchase the rights to Acthar. Glenridge and Questcor then agreed that Questcor would
substitute for Glenridge in the agreement with Aventis, and Questcor would pay royalties to Glenridge. In July 2001,
Questcor and Aventis entered into an agreement whereby Questcor acquired the rights to Acthar. In January 2002,
Questcor and Glenridge entered into an agreement (“the Royalty Agreement”) providing that Questcor would pay
royalties to Glenridge based on Acthar’s net sales. Until December 2010, Questcor paid royalties to Glenridge using
cash-basis accounting. In early 2011, Questcor told Glenridge that it intended to switch to accrual accounting.
Glenridge filed an action against Questcor (Santa Clara County Case No. 1-11-CV-203554), asserting that Questcor
breached the Royalty Agreement. Thereafter, Questcor filed an action against Defendants (Santa Clara County
1
Two of these motions were continued to this date from 25 September 2014. This Court will clarify the matter
further on the record should the matter proceed to a hearing.
“Each exhibit must be separated by a hard 8½ x 11 sheet with hard paper or plastic tabs extending below the bottom of the
page, bearing the exhibit designation. An index to exhibits must be provided. Pages from a single deposition and associated
exhibits must be designated as a single exhibit.”
2
Case No. 1-12-CV-237225), which has been consolidated with Glenridge’s action, asserting that the Royalty
Agreement is invalid because Greathouse, an owner of Glenridge and former Questcor officer, secretly assisted
Glenridge in negotiations after representing to Questcor that he would recuse himself. Questcor asserts causes of
action for declaratory relief (against Defendants), breach of fiduciary duty (against Greathouse), and aiding and
abetting breach of fiduciary duty (against Rose and Glenn).
Discovery Disputes
I.
Glenridge’s Motion to Compel Deposition Answers
Glenridge deposed Questcor’s general counsel, Michael H. Mulroy (“Mulroy”), in his individual capacity on
20 April 2012, and as Questcor’s person most qualified (“PMQ”) of matters described in two deposition notices
(collectively, “PMQ Notices”) on 20 November 2013, 20 January 2014, and 8 August 2014.
Before Glenridge deposed Mulroy on 8 August 2014, the parties’ counsel agreed to limit the scope of Mulroy’s
deposition to non-accounting related matters described in the PMQ Notices, and Questcor designated another
person as its PMQ of accounting matters to appear for a deposition on 18 September 2014.
On 8 August 2014, Mulroy appeared for a deposition and provided testimony, but Questcor’s counsel asserted
objections and instructed Mulroy not to answer questions pertaining to accounting issues, matters not described in
the PMQ Notices, and a document that Glenridge withheld from discovery which is attached to Mulroy’s deposition
transcript as Exhibit 39 (“Exhibit 39”). Mulroy followed counsel’s instructions and refused to answer those questions.
After Mulroy’s deposition, Glenridge’s counsel sent a meet and confer email to Questcor’s counsel on 9 August 2014,
outlining the purported deficiencies with Mulroy’s deposition testimony. The parties’ counsel could not informally
resolve the dispute as to whether Mulroy could refuse to answer six deposition questions.
On 3 September 2014, Glenridge filed this motion to compel Mulroy to answer those six deposition questions.
Questcor filed an opposition to the motion on 12 September 2014.
On 18 September 2014, Glenridge filed its reply.
II.
Defendants’ Motion to Compel Deposition Answers, the Production of Documents Responsive to the
RPD, and Further Responses to the FI, SI, & RFA
On 1 July 2011, Defendants served RPD Set One on Questcor, which contained RPD Nos. 1-42. Questor served
responses to RPD Set One on or about September 2011. 3
Sometime before 4 February 2014, Defendants served RPD Set Five, consisting of RPD Nos. 71-85, on Questcor. 4
Questcor served its responses to RPD Set Five on 4 February 2014, agreeing to produce non-privileged responsive
documents, and objecting to certain requests on the grounds that the discovery sought is protected from disclosure
by the attorney-client privilege and attorney work product doctrine. Questcor produced a verification for its response
to RPD Set Five on 14 March 2014.
On 13 February 2014, Questcor produced a privilege log identifying documents responsive to the RPD that it
withheld on the basis of privilege and/or the attorney work product doctrine and its factual basis for asserting the
objections. On 14 April 2014, it produced a verification for the privilege log.
Defendants believe some of the documents identified in the privilege log are not protected from disclosure by the
attorney-client privilege or attorney work product doctrine. On 27 February 2014, Defendants’ counsel sent a meet
and confer letter to Questcor’s counsel, outlining deficiencies in the privilege log and demanding that Questcor
produce some of the documents identified in the privilege log. Questcor’s counsel responded by stating that
documents identified in the privilege log were properly withheld on the basis of privilege and/or the attorney work
product doctrine.
3
Defendants filed a copy of Questcor’s responses to RPD Set One that does not include a verification or a proof of
service.
4
The parties do not state when Defendants served RPD Set Five.
Next, Don Bailey (“Bailey”), Questcor’s CEO, sat for deposition on 13 March 2014, but while the parties recessed for
lunch, he was called away on urgent business. After Questcor filed a motion for a protective order to limit Bailey’s
further deposition and Glenridge filed a motion to compel Bailey to appear for deposition and provide further
testimony, this Court entered an order denying Questcor’s motion for a protective order and granting Glenridge’s
motion to compel Bailey to appear for further deposition on 6 June 2014.
Bailey appeared for a deposition on 24 June 2014, but refused to answer certain questions on the ground that the
discovery sought was protected by the attorney-client privilege and/or attorney work product doctrine.
On 24 July 2014, Defendants served the FI, SI, and RFA on Questcor. Questcor served objection-only responses to
the FI, SI, and RFA on 25 August 2014.
Defendants found Questcor’s responses to the FI, SI, and RFA to be deficient. On 25 August 2014, at 7:09 p.m.,
Defendants’ counsel sent a meet and confer email to Questcor’s counsel, stating that Questcor’s assertion of the
attorney-client privilege and attorney work product doctrine in response to some of the discovery requests was
improper and Questcor’s other objections are “frivolous,” and demanding that Questcor serve supplemental
responses. Counsel also advised that Defendants would move to compel further responses the FI, SI, and RFA, and
that the parties’ counsel had previously met and conferred regarding Questcor’s assertion of the attorney-client
privilege and attorney work product objections in response to other discovery requests.
On the morning of 27 August 2014, Defendants’ counsel sent a follow-up email to Questcor’s counsel, asking
whether Questcor would serve supplemental responses to the FI, SI, and RFA, demanding that supplemental
responses be served the same day, and stating that Defendants were “finalizing various other motions to compel.”
Later that day, Questcor’s counsel advised Defendants’ counsel that Questcor would serve supplemental responses
to some of its responses to the FI, SI, and RFA, including FI No. 17.1, SI Nos. 193-196, 200-203, and 209, and RFA
Nos. 151-194, 200-205, 208-209, and 228-232.
On 3 September 2014, Defendants filed this motion to compel Bailey to answer deposition questions, the production
of documents responsive to the RPD, and further responses to FI No. 17.1, SI Nos. 193-218, and RFA Nos. 158,
161-190, 196-205, 208-209, and 228-236.
On 11 September 2014, Questcor served supplemental responses to FI No. 17.1, SI Nos. 193-196, 200-203, and
209, and RFA Nos. 151-194, 200-205, 208-209, and 228-232.
Questcor filed papers in opposition to the motion on 12 September 2014.
On 18 September 2014, Defendants filed their reply.
III.
Defendants’ Motion to Compel Further Responses to RPD Set Nine or for Evidence and Issue
Sanctions
On 20 March 2014, Defendants filed a motion for summary judgment on the ground that Questcor’s causes of action
are barred by the statutes of limitations.
Questcor filed an opposition to the motion for summary judgment on 20 May 2014, asserting that the delayed
discovery rule and/or fraudulent concealment doctrine tolled the applicable statutes of limitations because Questcor’s
agents reasonably relied on Greathouse’s representations while he owed it a fiduciary duty, and after the fiduciary
relationship ended, its agents could not with due diligence have discovered facts giving rise to its claims because that
information was in emails stored in a compressed format on backup tapes, and therefore, that information was
virtually impossible for its agents to access.
In support of its opposition, Questcor submitted Bhuvan Singh’s (“Singh”) declaration (“First Singh Declaration”).
Singh is the director of operations of e-Stet—the e-discovery vendor that Questcor retained in this litigation—and he
declared that Questcor’s backup tapes (“the Backup Tapes”) contain 2.183 terabytes—i.e. 3.5 million documents—of
compressed archived data from 2004 to 2010, and until the data was restored and converted to a readable and
searchable format, it was “virtually impossible” search the Backup Tapes for specific documents and data. (First Sing
Declaration, at ¶¶ 2-4 & 6.) Singh estimated that the process of restoring and converting an equivalent amount of
similarly formatted data would cost approximately $83,169 and require special software that only e-discovery vendors
have. (Id., ¶¶ 4 & 6-8.) He also stated that e-Stet began restoring and converting the data on the Backup Tapes into
a readable and searchable format in 2012, and the restored and converted documents are organized multiple folders,
including one titled “KGreathouse folder” which contains 142 subfolders and about 23,000 documents. (Id., ¶¶ 4-5 &
8-10.) Singh attached five emails from the KGreathouse folder to his declaration and stated that those emails were
created by a user named “Ken Greathouse” between 2000 and 2001. (Id., ¶¶ 13-17.)
On 4 June 2014, Judge Zepeda entered an order denying Defendants’ motion for summary judgment or adjudication
(“Order re: MSJ”). Judge Zepeda explained that a triable issue of material fact exists as to whether Questcor could
have, with due diligence, discovered underlying facts contained in the data archived on the Backup Tapes. (Order re:
MSJ, at p. 7:19-24.)
Thereafter, Defendants served RPD Set Nine, consisting of RPD Set Nine Nos. 96-98, on Questcor. 5 RPD Set Nine
seeks the production of all electronic information contained in the Backup Tapes and the KGreathouse folder.
Questcor served objection-only responses to RPD Set Nine on 8 September 2014.
Defendants found Questcor’s responses to be deficient. Their counsel sent a meet and confer email to Questcor’s
counsel, outlining the purported deficiencies with the objection-only responses. The parties’ counsel continued to
meet and confer, but ultimately were unable to informally resolve the dispute as to whether Questcor’s objections to
RPD Set Nine had merit or whether further responses to those requests were warranted.
On 18 September 2014, Defendants filed this motion to compel further responses to RPD Set Nine in its entirety, or
alternatively, for evidence and issue sanctions against Questcor.
Plaintiff filed its opposition on 29 September 2014.
Discussion
I.
Glenridge’s Motion to Compel Deposition Answers
Glenridge moves to compel Mulroy to answer deposition questions and requests an award of monetary sanctions
against Questcor’s counsel.
A.
Motion to Compel
During Mulroy’s deposition on 8 August 2014, Questcor’s counsel objected to and instructed Mulroy not to respond to
six questions.
Glenridge argues that answers to these questions are warranted because Questcor’s objections lack merit and do
not justify Mulroy’s refusal to respond.
1.
Legal Standard
“If a deponent fails to answer any question . . . the party seeking discovery may move the court for an order
compelling that answer.” (Code Civ. Proc. [“CCP”], § 2025.480, subd. (a).) “If the court determines that the
answer . . . sought is subject to discovery, it shall order that the answer be given . . . on the resumption of the
deposition.” (Id., at subd. (i).) The party opposing discovery bears the burden of justifying why the requested
discovery should not be allowed. (See Fairmont Ins. Co. v. Super. Ct. (2000) 22 Cal.4th 245, 255 [“Fairmont”].)
2.
Analysis
i.
Question No. 1
Question No. 1 is “[o]f Questcor’s revenue since 2007, what percentage of its revenue has come from sales of
Acthar?”
Questcor’s counsel objected to Question No. 1 on the ground that it is beyond the scope of the topics described in
the PMQ Notices, and instructed Mulroy not to answer that question.
Questcor asserts that a witness cannot be compelled to respond to deposition questions that are beyond the scope
of matters described in the deposition notice, and cites several federal cases in support of its position. (Questcor’s
Separate Statement, at p. 2:3-11, citing Bowoto v. ChevronTexaco Corp. (N.D. Cal., Feb. 7, 2006, Civ. A. No. C 995
The parties do not state when Defendants served RPD Set Nine.
02506 SI) 2006 U.S. Dist. LEXIS 36040, and State Farm Mut. Auto Ins. Co. v. New Horizon, Inc. (E.D. Pa. 2008) 250
F.R.D. 203, 216.) However, the federal cases cited by Questcor analyze Federal Rules of Civil Procedure (“FRCP”),
rule 30(b)(6), which authorizes the deponent to “set out the matters on which each person designated will testify.”
CCP section 2025.230, in contrast, does not permit the deponent to limit the scope of the deposition of its PMQ(s).
Questcor’s reliance on the federal cases is therefore misguided.
CCP section 2025.230 states that “[i]f the deponent named is not a natural person, the deposition notice shall
describe with reasonable particularity the matters on which examination is requested,” and “the deponent shall
designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who
are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably
available to the deponent.” (CCP, § 2025.230.) The purpose of CCP section 2025.230 “is to eliminate the problem
of trying to find out who in the corporate hierarchy has the information the examiner is seeking” and to avoid “I don’t
know” responses to deposition inquires. (Maldonado v. Super. Ct. (2002) 94 Cal.App.4th 1390, 1395-1396.) CCP
section 2025.230 does not indicate that the scope of a deposition is limited to the matters set forth in the notice. As a
general rule, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject
matter involved in the pending action or to the determination of any motion made in that action, if the matter either is
itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.”
(CCP, § 2017.010.) Objections on the grounds of the competency of the deponent, or the relevancy, materiality, or
admissibility at trial of the testimony are “unnecessary” and do not justify a deponent’s failure to answer a deposition
question. (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1014 [“Stewart”]; see also CCP,
§ 2025.460, subd. (c).) Thus, even though Mulroy may not be the person most qualified to testify about accounting
matters, he cannot refuse to answer deposition questions for that reason.
Accordingly, Questcor has not justified Mulroy’s refusal to respond to Question No. 1, and an answer to this question
is warranted.
ii.
Question Nos. 2 & 3
Question No. 2 is “[i]s it consistent with the industry standard for a company to provide a payment to another
company which persists for so long as the product is sold?”
Question No. 3 is “[i]s [the royalty payment] arrangement between Questcor and Aventis consistent with the industry
standard?”
Questcor’s counsel objected to Question Nos. 2 and 3 on the grounds that they call for legal conclusions and call for
expert opinions, and instructed Mulroy not to respond. Questcor’s counsel also objected to Question No. 3 on the
ground that it is beyond the scope of the matters described in the PMQ Notices.
As discussed above, objecting to a deposition question on the ground that is beyond the scope of matters described
in the deposition notice does not justify a deponent’s refusal to answer a deposition question. (See CCP,
§§ 2017.010 & 2025.230; see also Maldonado, supra, at pp. 1395-1396, see also Stewart, supra, at p. 1014.) Thus,
Questcor’s objection to Question No. 3 on the ground that it is beyond the scope of the matters described in the PMQ
Notices does not justify Mulroy’s failure to answer.
With respect to the objection on the ground that the questions call for legal conclusions, legal “[c]ontention questions,
while entirely appropriate for interrogatories, are not proper in the deposition of a party who is represented by
counsel,” even if the deponent is an attorney. (See Rifkin v. Super. Ct. (1994) 22 Cal.App.4th 1255, 1263.) That
being said, Question Nos. 2-3 do not call for legal interpretations or conclusions. Accordingly, Questcor’s legal
conclusion objection lacks merit and does not justify Mulroy’s refusal to answer.
Turning to the objection on the ground that the questions call for expert opinions, this objection is essentially an
objection based on Mulroy’s competency to testify about industry standards. Objections on the ground of a
deponent’s competence are improper and do not justify a refusal to answer a deposition question. (Stewart, supra, at
p. 1014.) Therefore, Questcor’s objection on the ground that the questions call for expert opinions does not justify
Mulroy’s refusal to answer.
In sum, Questcor has not justified Mulroy’s failure to answer Question Nos. 2 and 3, and answers to these questions
are warranted.
iii.
Question Nos. 4-6
Question Nos. 4, 5, and 6 each refer to Exhibit 39.
Question No. 4 is “[h]ow did Mr. Greathouse know on August 27, 2001, that Chuck was going to send a letter to Dr.
Rose that contained specific financial terms?”
Question No. 5 is “[h]e goes on [quoting part of Exhibit 39]: ‘After talking with him this afternoon and running some
numbers on this proposal, I believe that this is the best we are going to do.’ Does that lead you to believe that Mr.
Greathouse and Mr. Casamento sat down and talked and ran some numbers on August 27, 2001, months before the
[R]oyalty [A]greement was signed?”
Question No. 6 is “[d]o you know if later in the day on Monday, August 27, 2001, Dr. - - Mr. Casamento did, in fact,
send the letter to Dr. Rose that Dr. Greathouse discussed earlier that afternoon? Do you know if that happened?”
Questcor’s counsel objected to Question Nos. 4, 5, and 6 on the grounds that they call for speculation and pertain to
a document that has not been produced in discovery and is not bates-stamped.
Essentially, it is Questcor’s position that Mulroy cannot be compelled to testify about Exhibit 39, which consists of two
emails regarding royalty negotiations that refer to Questcor’s CEO Charles Casamento (“Casamento”) that were
exchanged between Greathouse, Rose, and Lloyd in 2001, 6 because Defendants intentionally withheld this
document from production in response to Questcor’s discovery requests until after Questcor had deposed
Defendants, and now Glenridge seeks to “ambush” Questcor by demanding that Questcor’s PMQs respond to
deposition questions about Exhibit 39 without knowing its source.
As discussed above, however, the permissible scope of deposition testimony is broad. (See CCP, § 2017.010.)
Questcor’s objections are in effect objections based on the relevance of Exhibit 39 and Mulroy’s competency to
testify about Exhibit 39. Such objections are “unnecessary” and do not justify a deponent’s refusal to answer
deposition questions. (Stewart, supra, at p. 1014.) Thus, Mulroy cannot refuse to respond to these questions simply
because he lacks personal knowledge about Exhibit 39. To the extent he lacks sufficient personal knowledge about
Exhibit 39 to substantively respond, he could simply answer by stating that he lacks such information.
Questcor has therefore not justified Mulroy’s refusal to answer Question Nos. 4, 5, and 6, and answers to these
questions are warranted.
3.
Conclusion
In light of the foregoing, Glenridge’s motion to compel Mulroy to answer deposition questions is GRANTED.
B.
Request for Monetary Sanctions
Glenridge makes a code-compliant request for an award of monetary sanctions against Questcor’s counsel in the
amount of $1,500.
The court shall impose a monetary sanction against any party or attorney who unsuccessfully makes or opposes a
motion to compel an answer at deposition, 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. (CCP, § 2025.480, subd. (j).)
Here, Questcor’s opposition was unsuccessful, and Questcor did not act with substantial justification. The Court
finds no other circumstances that would make the imposition of the sanction unjust, and therefore, an award of
monetary sanctions against Questcor’s counsel is warranted.
The court may award monetary sanctions for reasonable expenses, including attorney’s fees, incurred by anyone as
a result of the misuse of the discovery process. (CCP, § 2023.030, subd. (a).)
Glenridge’s counsel declares that he spent one hour meeting and conferring with Questcor about issues raised in the
motion. (Wallerstein decl., at ¶ 7.) However, the Court does not award monetary sanctions for meeting and
6
According to Defendants, Exhibit 39 disproves Questcor’s assertion that its causes of action are not barred by the
applicable statute(s) of limitation because of the delayed discovery rule (i.e. the claims did not accrue until Questcor
discovered the underlying facts). (Glenridge’s P&A, at p. 2:16-23.)
conferring as required because such expenses are not “incurred” within the meaning of CCP section 2023.030. (See
Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551.)
Glenridge’s counsel further declares that he “spent several hours preparing this motion,” his associates “have each
also spent several hours assisting,” and their “hourly rates are all in excess of $300,” and thus, “Glenridge has been
billed and has paid at least several thousand dollars in legal fees attempting to resolve the issues raised in this
motion.” (Wallerstein decl., at ¶ 7.) From these vague statements, the Court cannot ascertain whether the amount of
monetary sanctions requested is based on reasonable expenses incurred as a result of the misuse of the discovery
process. (See CCP, § 2023.040 [a request for a monetary sanction shall be “accompanied by a declaration setting
forth facts supporting the amount of any monetary sanction sought”].)
Accordingly, Glenridge’s request for an award of monetary sanctions is DENIED.
II.
Defendants’ Motion to Compel Deposition Answers, the Production of Documents Responsive to the
RPD, and Further Responses to the FI, SI, & RFA
Defendants move to compel Bailey to answer depositions questions, to compel Questcor to produce documents
responsive to the RPD, and to compel Questcor to provide further responses to FI No. 17.1, SI Nos. 193-218, and
RFA Nos. 158, 161-190, 196-205, 208-209, and 228-236. Defendants also request that the Court impose issue and
evidence sanctions against Questcor.
A.
Bailey’s Deposition
On 24 June 2014, Defendants deposed Bailey as Questcor’s PMQ. In response to questions about Greathouse’s
involvement in royalty negotiations and Questcor’s decision to sue Defendants, Questcor objected on the grounds of
attorney-client privilege and/or attorney work product, and instructed Bailey not to respond. Bailey then refused to
answer those questions.
Defendants assert that Bailey should be compelled to answer because Questcor’s objections lack merit.
In opposition, Questcor argues that the motion to compel as to Bailey’s deposition is untimely.
A motion to compel answers at deposition “shall be made no later than 60 days after the completion of the record of
the deposition.” (CCP, § 2025.480, subd. (b).) The statute does not define the word “completion,” and there is no
case law interpreting the meaning of the term “completion of the record of deposition” as used in CCP
section 2025.480. The common definition of the word “completion” is “the state of being complete or finished.”
(Merriam-Webster Online Dictionary, at http://www.merriam-webster.com/dictionary/completion.) “Complete” is
defined as “having all necessary parts: not lacking anything.” (Id., at http://www.merriamwebster.com/dictionary/complete.) CCP section 2025.540 requires the deposition officer to certify on the transcript
(or in a writing accompanying the transcript) that the deponent was duly sworn and that the transcript is a true record
of the testimony given. (CCP, § 2025.540, subd. (a).) The section further provides that, “[w]hen prepared as a rough
draft transcript, the transcript of the deposition may not be certified and may not be used, cited, or transcribed as the
certified transcript of the deposition proceedings.” (Id., at subd. (b).)
Given the definitions of “completion” and “complete” and the language of CCP section 2025.540, subdivisions (a) and
(b), the Court finds that the “completion” of the deposition record within the meaning of CCP section 2025.480 occurs
when the deposition officer certifies the transcript and makes it available for the deponent to review. 7
The reporter certified Bailey’s deposition transcript on 3 July 2014, and Defendants filed the instant motion 62 days
later on 3 September 2014. (Culp decl., at Ex. 5.) Therefore, the motion is untimely, and the Court lacks the
authority to rule on the motion other than to deny it. (See Sexton v. Super. Ct. (Mullikin Med. Ctr.) (1997)
58 Cal.App.4th 1403, 1410 [“Sexton”]; see also Vidal Sasoon, Inc. v. Super. Ct. (Halpern) (1983) 147 Cal.App.3d
681, 685 [“Vidal Sasoon, Inc.”].)
7
The California Practice Guide: Civil Procedure Before Trial indicates that “[i]t is unclear whether the deposition
record is ‘completed’ when the reporter sends notice that the transcript is available for review . . . or only after the
expiration of time to sign or correct the transcript.” (Weil & Brown, California Practice Guide: Civil Procedure
Before Trial (Rutter Group 2014) at ¶ 8:801.) There is no suggestion that day of the deposition—when the reporter
records the deposition testimony in short hand form—is the date of completion.
Thus, Defendants’ motion to compel Bailey to answer deposition questions is DENIED.
B.
Production of Documents Responsive to the RPD
Defendants move to compel the production of documents responsive to the RPD.
As an initial matter, Defendants do not identify which requests in the RPD are at issue in this motion. The Court
presumes that they seek an order compelling the production of documents responsive to RPD Nos. 22-23 and 82-83,
since those are the only requests identified in the moving and reply papers.
RPD Nos. 22-23 seek the production of all documents, including communications, relating to Glenridge. RPD
Nos. 82-83 seek all documents, including communications, relating to Questcor’s document collection in response to
the New York Attorney General’s subpoena to Questcor.
Questcor objected to these requests on the grounds of attorney-client privilege and the attorney work product
doctrine. Questcor substantively responded by stating that it would produce “all responsive, non-privileged
documents in its possession, custody, or control.” Subsequently, Questcor produced a privilege log identifying each
document withheld on the basis of its attorney-client privilege and attorney work product doctrine objections, and
stating its factual basis for asserting those objections.
Defendants contend an order compelling compliance with Questcor’s responses to the RPD is warranted because
Questcor’s objections lack merit, and Questcor has not produced documents which Questcor identified in the
privilege log as being protected from disclosure by the attorney-client privilege and/or attorney work product doctrine.
Questcor asserts that Defendants’ motion is actually a motion to compel further responses to the RPD—as opposed
to a motion to compel compliance with those responses—and it should be denied because it is untimely.
1.
Nature of the Motion
Defendants assert that this motion is a motion to compel compliance pursuant to CCP section 2031.320, and
Questcor contends that this motion is actually a motion to compel further responses under CCP section 2031.310.
CCP section 2031.320, subdivision (a) provides that where a party responding to requests for production “thereafter
fails to permit the inspection, copying, testing, or sampling in accordance with that party’s statement of compliance,
the demanding party may move for an order compelling compliance.”
In contrast, CCP section 2031.310, subdivision (a)(1) and (3) states that, after receiving a response to a request for
production, “the demanding party may move for an order compelling further response to the demand if the
demanding party deems that” the “statement of compliance with the demand is incomplete,” or “[a]n objection in the
response is without merit or too general.”
Here, Questcor substantively responded to RPD Nos. 22-23 and 82-83 by asserting objections on the grounds of the
attorney-client privilege and the attorney work product doctrine, and stating it would produce “all responsive, nonprivileged documents in its possession, custody, or control.”
Defendants do not assert that Questcor failed to comply with their statements of compliance. Rather, they insist that
Questcor’s objections to RPD Nos. 22-23 and 82-83 are without merit, and thus, the Court should order Questcor to
produce documents that it contends are protected from disclosure by the attorney-client privilege and attorney work
product doctrine. Questcor’s argument that Defendants’ motion is actually a motion to compel further responses is
therefore persuasive. (See Standon Co. v. Super. Ct. (1990) 225 Cal.App.3d 898, 903 [“Standon”] [“[a]lthough an
actual refusal to produce the items promised may lead to a motion to compel compliance . . . , this cannot be
substituted for the motion to compel a further response”].)
Thus, Defendants’ motion should be treated as a motion to compel a further response under CCP section 2031.310.
2.
Timing of the Motion
Questcor maintains that this motion is untimely because it was filed more than 45-days after service of its responses
to the RPD, and the parties did not otherwise agree to extend Defendants’ time to bring a motion to compel further
responses.
Unless the parties have agreed to a specific later date in writing, a motion to compel further responses to requests for
production of documents must be brought within 45 days of service of the responses to the requests for production or
else the demanding party’s ability to bring such a motion is waived. (CCP, § 2031.310, subd. (c).)
Defendants assert that Questcor has not verified its responses to the RPD, and therefore, they have not waived their
ability to bring a motion to compel further responses.
Contrary to Defendants’ assertion, Questcor served verified responses to RPD Set Five, which contains RPD
Nos. 82-83, on 14 March 2014, which is more than 45 days before Defendants filed this motion to compel.
As for RPD Nos. 22-23, which are in RPD Set One, the only copy of Questcor’s responses to RPD Set One that has
been filed with the Court is not verified. Generally, an unverified substantive response is akin to no response at all.
(Appleton v. Super. Ct. (1988) 206 Cal.App.3d 632, 635 -636.) However, a party is not required to verify its
objections, even if the objection is in a “hybrid” response that also contains a substantive answer. (Food 4 Less
Supermarkets, Inc. v. Super. Ct. (1995) 40 Cal.App.4th 651, 657-658; see also CCP, § 2031.250, subd. (c).) Most
importantly, when Defendants served RPD Set One on Questcor in 2011, and when Questcor served their responses
to RPD Set One on Defendants in 2011, the statute governing motions to compel further responses to requests for
production of documents provided that “[u]nless notice of this motion is given within 45 days of the service of the
response, or any supplemental response, or on or before any specific later date to which the demanding party and
the responding party have agreed in writing, the demanding party waives any right to compel a further response to
the demand.” (Former CCP, § 2031.310, subd. (c), as amended by Stats. 2009, ch. 5, § 21.) The Legislature
amended this provision, effective 1 January 2014, to state that the demanding party has 45 days from the service of
the verified response or verified supplemental response. (CCP, § 2031.310, subd. (c), as amended by Stats. 2013,
ch. 18, § 2, emphasis in original.) Thus, under the law in effect at the time Defendants propounded RPD Set One
and Questcor served its responses to those requests, Defendants had 45 days from the service of Questcor’s
responses to RPD Set One—even though the responses were not verified—to bring a motion to compel further
responses. By waiting approximately three years, Defendants waived their right to move to compel further responses
to RPD Nos. 22-23.
In sum, Glenrdige Parties’ motion as to the RPD is untimely, and the Court lacks the authority to rule on the motion
other than to deny it. (See Sexton, supra, at p. 1410; see also Vidal Sasoon, Inc., supra, at p. 685.)
3.
Conclusion
Accordingly, the motion to compel further responses to the RPD is DENIED.
C.
Further Responses to the FI, SI, & RFA
Defendants move to compel further responses to FI No. 17.1, SI Nos. 193-218, and RFA Nos. 158, 161-190, 196205, 208-209, and 228-236.
After Defendants filed this motion, Questcor served supplemental responses to FI No. 17.1, SI Nos. 193-196, 200203, and 209, and RFA Nos. 151-194, 200-205, 208-209, and 228-232. When discovery responses are served after
a motion to compel is filed, the court has substantial discretion in deciding how to rule in light of the particular
circumstances presented. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148
Cal.App.4th 390, 408-409 [“Sinaiko”].) Here, the Court exercises its discretion to deny the motion to compel further
responses as to FI No. 17.1, SI Nos. 193-196, 200-203, and 209, and RFA Nos. 151-194, 200-205, 208-209, and
228-232 as moot. (See id., at p. 409.)
The Court will next consider whether further responses to the remaining requests—SI Nos. 197-199, 204-208, and
210-218, and RFA Nos. 196-199 and 233-236—are warranted.
SI Nos. 197-199, 204-208, and 210-218 ask for all facts supporting Questcor’s contention that it could not have
discovered facts giving rise to its lawsuit against Defendants sooner. RFA Nos. 196-199 and 233-236 ask for
Questcor to admit that it retained counsel to determine whether Defendants violated any agreement before the date
when it alleges to have discovered facts underlying its causes of action against Defendants, and that it discovered
those underlying facts before the date it alleges to have obtained such information.
Questcor provided objection-only responses to these requests.
Defendants argue further responses are warranted because Questcor’s objections lack merit.
Questcor asserts that its attorney-client privilege and attorney work product objections have merit, and therefore, no
further responses are warranted.
1.
Legal Standard
If a party demanding a response to an interrogatory or request for admission deems an objection to be without merit
or too general, that party may move for an order compelling further response. (See CCP, §§ 2030.300, subd. (a)(3)
& 2033.290, subd. (a)(2).) The objecting party bears the burden of explaining and justifying any objection to the
request. (See Fairmont, supra, at p. 255.)
2.
Analysis
Questcor objected to each discovery request at issue on the grounds of the attorney-client privilege and the attorney
work product doctrine.
Questcor also asserted objections on the grounds of vagueness and ambiguity (to SI Nos. 197-199, 208, and 210218), undue burden (to SI Nos. 197-199, 204, 206-207, and 213-218), relevance (to SI Nos. 198 and 205),
compound (to SI Nos. 198-199 and 210-211), overbreadth (to SI Nos. 206-207), and duplicity (to RFA Nos. 196-197
and 199), but since Questcor does not attempt to justify those objections, they are overruled. (See Fairmont, supra,
at p. 255.)
With respect to the attorney-client privilege objection, the objecting party has the initial burden of showing that the
communication falls within the privilege, i.e. that it was made “in the course of the lawyer-client relationship.”
(Wellpoint Health Networks, Inc. v. Super. Ct. (1997) 59 Cal.App.4th 110, 130, citation omitted.) If it meets this
burden, the communication is presumed confidential, and the non-objecting party must show the privilege does not
apply or has been waived. (Evid. Code, § 917.) Questcor does not argue that the documents sought are
communications made within the course of the attorney-client relationship. Rather, it asserts that Defendants have
not adequately demonstrated that the privilege has been waived. However, it is Questcor’s burden as the objecting
party to first show that the communication falls within the privilege. While some of the discovery requests at issue
indicate that the discovery sought was possibly included in a communication between Questcor and its counsel, a
party “may not shield facts, as opposed to communications, from discovery” by asserting the privilege, and “[a]ny
relevant fact may not be withheld merely because it was incorporated into a communication involving an attorney.”
(See Zurich American Ins. Co. v. Super. Ct. (2007) 155 Cal.App.4th 1485, 1504.) Since Questcor does not argue
that the information sought consists of communications between it and its counsel, it has not met its initial burden.
Accordingly, the attorney-client privilege objection is overruled.
Turning to the attorney work product objection, an attorney has an absolute protection in his or her “impressions,
conclusions, opinions, or legal research or theories,” and a qualified protection for all other work product. (CCP,
§ 2018.030.) The party asserting the attorney work product doctrine has the initial burden of making a prima facie
showing that the discovery sought is subject to the protection. (BP Alaska Exploration, Inc. v. Super. Ct. (1988)
199 Cal.App.3d 1240, 1252 [“BP Alaska”].) Questcor does not argue that the discovery sought is subject to the
attorney work product doctrine protection, and therefore, it has not met its initial burden. Moreover, the attorney-work
product privilege only applies to a writing or work product of an attorney, not the underlying facts referenced by such
work product. (See Code Civ. Proc., § 2018.030; see also Mack v. Superior Court (1968) 259 Cal.App.2d. 7, 10.)
Accordingly, the fact that the discovery sought includes information that might have been referenced in Questcor’s
counsel’s work product does not protect the underlying facts from discovery. The attorney work product objection is
therefore overruled.
Since Questcor’s objections to SI Nos. 197-199, 204-208, and 210-218, and RFA Nos. 196-199 and 233-236, are
overruled, Questcor is required to provide substantive responses to these discovery requests. (See CCP,
§§ 2030.210, subd. (a) [each response to an interrogatory must contain an answer containing the information sought,
an exercise of the party’s option to produce writings, or an objection] & 2033.210, subd. (b) [each response to a
request for admission “shall answer the substance of the requested admission, or set forth an objection”].)
Thus, further responses to SI Nos. 197-199, 204-208, and 210-218, and RFA Nos. 196-199 and 233-236 are
warranted.
3.
Conclusion
In light of the foregoing, Defendants’ motion to compel further responses to the FI, SI, and RFA is GRANTED IN
PART and DENIED IN PART. The motion is GRANTED as to SI Nos. 197-199, 204-208, and 210-218, and RFA
Nos. 196-199 and 233-236. The motion is DENIED as to FI No. 17.1, SI Nos. 193-196, 200-203, and 209, and RFA
Nos. 151-194, 200-205, 208-209, and 228-232.
D.
Request for Evidence & Issue Sanctions
Defendants request that the Court impose evidence and issue sanctions against Questcor, but do not cite any legal
basis authorizing the imposition of evidence and issue sanctions in connection with a motion to compel deposition
answers and further responses to interrogatories, requests for production of documents, and requests for admission.
Moreover, two facts are generally prerequisite to the imposition of non-monetary sanctions: (1) there must be a
failure to comply with a court order, and (2) the failure must be willful. (Liberty Mutual Fire Ins. Co. v. LcL
Administrators, Inc. (2008) 163 Cal.App.4th 1093, 1102.) Here, Defendants do not assert that Questcor willfully
failed to comply with any court order. The spoliation of evidence is also a misuse of the discovery process that may
warrant the imposition of non-monetary sanctions. (Cedars-Sinai Med. Ctr. v. Super. Ct. (1998) 18 Cal.4th 1, 12.) To
prevail on a motion for non-monetary sanctions based on spoliation of evidence, the “moving party must make an
initial prima facie showing that the responding party in fact destroyed evidence.” (Williams v. Russ (2008) 167
Cal.App.4th 1215, 1227.) Defendants also do not proffer evidence indicating that Questcor has destroyed evidence.
Therefore, the imposition of non-monetary sanctions against Questcor is not warranted.
Defendants’ request for issue and evidence sanctions against Questcor is accordingly DENIED.
III.
Defendants’ Motion to Compel Further Responses to RPD Set Nine or for Evidence and Issue
Sanctions
Defendants move to compel further responses to RPD Set Nine, or alternatively, for an order imposing evidence and
issue sanctions against Questcor.
A.
Motion to Compel Further Responses to RPD Set Nine
RPD Set Nine seeks copies of the Backup Tapes (RPD Set Nine No. 96), a native copy of the KGreathouse folder as
defined in the First Singh Declaration (RPD Set Nine No. 97), and a native copy of the KGreathouse folder from
Questcor’s server (RPD Set Nine No. 98).
Questcor responded to these requests with objections only.
Defendants argue that further responses to RPD Set Nine are warranted because they have good cause for the
discovery sought and Questcor’s objections lack merit.
Questcor opposes the motion and asserts that Defendants have not shown good cause for the discovery sought and
its objections have merit.
A party propounding a request for production of documents may move for an order compelling a further response if it
deems that an objection in the response is without merit or too general. (CCP, § 2031.310, subd. (a)(3).) The motion
must set forth “specific facts showing good cause justifying the discovery sought by the demand.” (Id., at
subd. (b)(1); Kirkland v. Super. Ct. (2002) 95 Cal.App.4th 92, 98 [“Kirkland”].) If good cause is shown, the burden
shifts to the responding party to justify any objections. (Kirkland, supra, at p. 98.)
1.
Defendants’ Good Cause
Good cause is established simply by a fact-specific showing of relevance. (Kirkland, supra, at p. 98.) Discovery is
allowed for any matters that are not privileged and relevant to the subject matter, and a matter is relevant if it appears
reasonably calculated to lead to the discovery of admissible evidence. (CCP § 2017.010.) The “relevant to the
subject matter” and “reasonably calculated to lead to the discovery of admissible evidence” standards are applied
liberally in favor of discovery. (Colonial Life & Accident Ins. Co. v. Super. Ct. (1982) 31 Cal.3d 785, 790.) For
discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for
trial, or facilitating settlement. (Gonzalez v. Super. Ct. (1995) 33 Cal.App.4th 1539, 1546.)
The parties’ arguments pertaining to the Backup Tapes and native copies of the KGreathouse folder are discussed in
turn below.
i.
Copies of the Backup Tapes (RPD Set Nine No. 96)
Defendants assert that the discovery sought by RPD Set Nine No. 98 is relevant because Questcor has put at issue
the restoration process of the Backup Tapes.
Questcor has contended that two of its three causes of action are not barred by the statute of limitations under the
delayed discovery rule and/or fraudulent concealment doctrine. Under the delayed discovery rule, the limitations
period dos not begin to run until a plaintiff discovers or could have discovered, through the exercise of reasonable
diligence, all facts essential to the plaintiff’s cause of action. (Sylve v. Riley (1993) 15 Cal.App.4th 23, 26.) “Whether
a plaintiff has exercised reasonable diligence necessarily depends on the facts of the individual case.” (Artal v. Allen
(2003) 111 Cal.App.4th 273, 280.) Questcor maintains it could not have discovered facts underlying its claims
because it relied on Greathouse’s representations while he owed it a fiduciary duty, and after his fiduciary
relationship ended, the underlying facts were in emails in the KGreathouse folder that had been compressed and
stored on the Backup Tapes. Questcor insists that it would have been virtually impossible for its agents to locate
such facts within the Backup Tapes because they contain that data for approximately 3.5 million documents, i.e. all of
its electronically stored information (“ESI”) from 2004 to 2010, and the data was not in a readable or searchable
format.
Since Questcor argues that the quantity and format of the data on the Backup Tapes made it virtually impossible for it
to have discovered facts giving rise to its claims against Defendants, information about the data in the Backup Tapes
is relevant to determine whether Questcor exercised reasonable diligence to discover those facts.
Questcor complains that this request is overbroad because it encompasses irrelevant information, but it does not
contest that the discovery sought by this request also encompasses relevant information. Questcor’s overbreadth
argument therefore does not detract from Defendants’ showing of good cause for the discovery sought by RPD Set
Nine No. 96.
Thus, Defendants have shown good cause for the discovery sought by RPD Set Nine No. 96, and the burden shifts
to Questcor to justify its objections to that request. (See Kirkland, supra, at p. 98.)
ii.
Native Copies of the KGreathouse Folder (RPD Set Nine Nos. 97-98)
With respect to the discovery sought by RPD Set Nine Nos. 97-98, Defendants first argue that they have good cause
for the discovery of the native copies of the KGreathouse folder and its contents because this information is relevant
to the issue of whether Questcor exercised reasonable diligence to discover facts underlying its claims. However,
Defendants do not explain how the discovery of native copies of all of the files in the KGreathouse folder—as
opposed to copies of the compressed data on the Backup Tapes—is reasonably calculated to lead to the discovery
of admissible evidence as to the delayed discovery rule, given that Questcor only had access to the compressed and
non-searchable version of the KGreathouse folder that was stored on the Backup Tapes. Therefore, Defendants’ first
argument is unavailing.
Next, Defendants argue that the native copies of the entire KGreathouse folder should be produced so that their
expert witness may review the KGreathouse folder and its contents to determine whether Greathouse “was the
author of certain documents that Questcor has put at issue.” The KGreathouse folder contains about 23,000
documents, and Defendants do not assert that all 23,000 documents are the “documents that Questcor has put at
issue.” While some documents in the KGreathouse folder may be relevant to determine whether Greathouse was the
author of certain unspecified documents that Questcor has supposedly put at issue, discovery must nevertheless be
reasonably calculated to lead to the discovery of admissible evidence. (See Gonzalez, supra, at p. 1546; see also
Fireman's Fund Ins. Co. v. Super. Ct. (1991) 233 Cal.App.3d 1138, 1141 [trial court abused its discretion by ordering
the disclosure of documents that could have been relevant, or “irrelevant or entirely innocuous”].) Defendants do not
explain how the discovery of the native version of all 23,000 documents in the KGreathouse folder is relevant to
determine whether Greathouse was the author of certain unspecified documents, and therefore, their argument lacks
merit.
Lastly, Defendants assert that native copies of the KGreathouse folder must be disclosed because Questcor gave the
compressed KGreathouse folder to Singh, and it was then restored and converted into its native format, meaning that
Singh had possession of a native copy of the KGreathouse folder. However, the fact that Questcor, after filing this
lawsuit against Defendants, gave ESI to its retained e-discovery vendor to restore and convert the compressed data
into a readable and searchable format does not make native copies of that ESI relevant to the action. Furthermore,
in the declaration submitted by Singh in support of Questcor’s opposition to this motion to compel (“Second Singh
Declaration”), Singh declares that he did not review the contents of any document in the KGreathouse folder, and he
determined the amount of data, files, and documents in that folder by using software that processes and organizes
data. (Second Singh Declaration, ¶¶ 11-12.) He also explains that he obtained the metadata from the five
documents that were attached to the First Singh Declaration with software that displayed the Windows properties of
the documents without revealing their contents. (Id., ¶¶ 22-23.) Thus, to the extent Defendants assert that their
expert witness should be able to review all ESI provided by Questcor to its e-discovery vendor, their argument is not
well-taken.
Accordingly, Defendants have not shown good cause for the discovery sought by RPD Set Nine Nos. 97-98. Since
they have not met their initial burden with respect to RPD Set Nine Nos. 97-98, further responses to those requests
are not warranted. (See Kirkland, supra, at p. 98.)
2.
Questcor’s Justifications for its Objections
Questcor objected to RPD Set Nine No. 96 on the grounds of relevance, overbreadth, undue burden, and
oppression, unreasonably cumulative and duplicative, attorney-client privilege and/or attorney work product, and
privacy.
As set forth in detail above, the discovery sought by RPD Set Nine No. 96 is relevant to this litigation. Thus,
Questcor’s relevance objection is overruled.
In addition, Questcor does not proffer arguments in support of its unreasonably cumulative and duplicative objection.
That objection is therefore overruled. (See Kirkland, supra, at p. 98.)
The merits of the remaining objections are discussed below.
i.
Privacy Objection
Questcor asserted a privacy objection in response to RPD Set Nine No. 96. Specifically, it objected to this request
because the discovery sought contains “confidential and proprietary business information, non-executive employee
compensation information, and third party patient information.”
With respect to the privacy objection based on Questcor’s “confidential and proprietary business information,” the
right of privacy afforded by the California Constitution has generally been interpreted to protect only individuals, not
business entities, and “although corporations have a lesser right to privacy than human beings and are not entitled to
claim a right to privacy in terms of a fundamental right, some right to privacy exists.” (Roberts v. Gulf Oil Corp.
(1983) 147 Cal.App.3d 770, 793; Ameri-Medical Corp. v. Workers’ Comp. Appeals Bd. (1996) 42 Cal.App.4th 1260,
1288-1289.) That being said, objecting to discovery on the ground that it seeks “confidential information” is generally
improper. (Columbia Broadcasting System, Inc. v. Super. Ct. (1968) 263 Cal.App.2d 12, 23.) Thus, Questcor’s
assertion that the discovery sought is protected from disclosure because it contains confidential and proprietary
business information lacks merit, and to the extent its objection is based on its confidential and proprietary
information, the objection is overruled.
Turning to Questcor’s privacy objection based on employee financial information and third party medical information,
an individual has a reasonable expectation of privacy in his or her medical information, financial information, and
employment records. (Board of Med. Quality Assurance v. Gherardini (1979) 93 Cal.App.3d 669, 679 [medical
information]; San Diego Trolley, Inc. v. Super. Ct. (2001) 87 Cal.App.4th 1083, 1092 & 1097 [medical information and
personnel records]; Sacramento Cnty. Employees’ Ret. Sys. v. Super. Ct. (2011) 195 Cal.App.4th 440, 468 [financial
information].)
Questcor’s counsel declares that the Backup Tapes contain tens of thousands of documents that include confidential
information about its employees, such as their social security numbers and financial information, and thousands of
spreadsheets that contain confidential third party medical information and identify the names of patients who need or
have used Acthar. (Kohli decl., at ¶¶ 13-14.) Accordingly, the discovery sought by RPD Set Nine No. 96 implicates
the privacy rights of third parties.
The right to privacy is not absolute. (Vinson v. Super. Ct. (1987) 43 Cal.3d 833, 842.) Where a right to privacy is
implicated, discovery will only be allowed where the party seeking discovery shows that the discovery sought is
directly relevant to the litigation. (Britt v. Super. Ct. (1978) 20 Cal.3d 844, 859-862 and 859.) Discovery will not be
ordered if the information sought is available from less intrusive means. (Allen v. Super. Ct. (1984) 151 Cal.App.3d
447, 449.)
Here, Defendants do not assert that the discovery sought by RPD Set Nine No. 96 is directly relevant to the litigation.
Therefore, Defendants have not met their burden, and documents on the Backup Tapes that implicate Questcor’s
employees’ financial and personnel information and third parties’ medical information are protected from disclosure
by the employees’ and third parties’ privacy rights.
Questcor’s privacy objection, to the extent it pertains to third party employee financial information and third party
medical information, is accordingly sustained.
ii.
Attorney-Client Privilege and/or Attorney Work Product Doctrine Objection
Questcor objected to RPD Set Nine No. 96 on the ground of “attorney-client privilege and/or attorney work product.”
The attorney-client privilege and the attorney work product doctrine are discussed separately below.
First, with respect to the attorney-client privilege objection, communications between client and counsel are
presumed to have been made in confidence and are broadly privileged against discovery. (Evid. Code, § 954;
Mitchell v. Super. Ct. (1984) 37 Cal.3d 591, 599.) To establish a prima facie claim of privilege, the proponent need
only show that the communication was made in the course of an attorney-client relationship. (Costco Wholesale
Corp. v. Sup. Ct. (2009) 47 Cal.4th 725, 733.) If the objecting party establishes a prima facie claim of privilege, the
burden is on the opponent to show that the privilege does not apply, an exception exists, or waiver as been
effectuated. (Id.)
Questcor proffers its counsel’s declaration stating that the Backup Tapes contain “tens of thousands of email
communications between Questcor and its counsel.” (Kohli decl., at ¶¶ 10-11.) This information is sufficient for
Questcor to meets its initial burden to demonstrate that these communications were exchanged in the course of the
attorney-client relationship.
Turning to the attorney work product doctrine, the attorney work product doctrine protects the work product of
attorneys acting on a client’s behalf. (See CCP, § 2018.030.) The doctrine provides absolute protection for an
attorney’s “impressions, conclusions, opinions, or legal research or theories,” and qualified protection for all other
work product. (Id.; Fireman’s Fund Ins. Co. v. Super. Ct. (2011) 196 Cal.App.4th 1263, 1275.) The party asserting
the attorney work product doctrine has the initial burden of making a prima facie showing that the discovery sought is
subject to the protection. (BP Alaska, supra, at p. 1252.)
Questcor submits its counsel’s declaration stating that some of the Backup Tapes contain documents drafted by its
attorneys that set forth the attorneys’ impressions, opinions, and legal research and theories, including “legal
memoranda from counsel.” (Kohli decl., at ¶ 11.) Questcor has therefore made a prima facie showing that the
discovery sought is subject to absolute protection under the attorney work product doctrine.
Defendants first contend that Questcor waived any attorney-client privilege and attorney work product protections by
giving the Backup Tapes to e-Stet. Contrary to Defendants’ assertion, “legal opinions may be shared with a
nonattorney agent retained by the attorney to assist with the representation without losing their confidential status.”
(Fireman's Fund Ins. Co. v. Super. Ct. (2011)196 Cal.App.4th 1263, 1274.) Since Questcor’s counsel retained e-Stet
to assist with e-discovery, Questcor did not waive its attorney-client privilege in the Backup Tapes simply by giving
them to e-Stet. Also, an attorney does not waive the protection afforded by the attorney work product doctrine simply
by disclosing his or her work product. (BP Alaska, supra, at p. 1256.) If the disclosure was made with the
expectation that the information would remain confidential, then the protection has not been waived. (Raytheon Co.
v. Super. Ct. (1989) 208 Cal.App.3d 683, 689.) Questcor’s counsel declares that e-Stet has been “an agent of” his
firm in connection with various cases since 2009. (Kohli decl., at ¶ 3.) Given that e-Stet is an agent of Questcor’s
counsel and retained to assist in litigation, Questcor has shown that its counsel provided the Backup Tapes to e-Stet
with the expectation that any work product contained therein would remain confidential.
Defendants also insist that the attorney-client privilege and attorney work product protections have been waived
because Singh provided “testimony” about the Backup Tapes in a declaration, and Questcor has designated an
expert witness to testify about the accessibility of information stored on the Backup Tapes. Defendants cite BP
Alaska for the proposition that the privilege is waived “by the attorney when he produced the reports to the witness
upon which to premise his testimony.” However, the First Singh Declaration does not disclose or refer to any
attorney work product stored on the Backup Tapes, and in the Second Singh Declaration, Singh states that he did not
review the contents of any document on the Backup Tapes. (Second Singh Declaration, at ¶ 9.) Therefore, Singh
has not provided “testimony” about the contents of the documents stored on the Backup Tapes, and the statements
in the First Singh Declaration do not waive Questcor’s attorney-client privilege or its attorneys’ work product
protections. (Contra BP Alaska, supra, at pp. 1258-1259, citing Kerns Construction Co. v. Superior Court (1968) 266
Cal.App.2d 405, pp. 407-414 [holding that the work product protection was waived because the witness testified
about the contents of the reports, as opposed to general information about the reports, and thus the opposing party
was entitled to review the reports].) Moreover, Questcor has not designated Singh or any other agent of e-Stet as an
expert witness to testify at trial. (See Kohli decl., at Ex. 5.)
Thus, Defendants’ assertion that the protections of the attorney-client privilege and attorney work product doctrine
have somehow been waived is unavailing.
In light of the foregoing, Questcor’s attorney-client privilege and/or attorney work product objection is sustained.
iii.
Overbroad, Unduly Burdensome, & Oppressive Objection
Questcor asserted an objection to RPD Set Nine No. 96 on the ground that the discovery sought is overbroad, unduly
burdensome, and oppressive.
In connection with a motion to compel further responses to requests for production of documents “relating to the
production of” ESI to which the responding party objected “on the basis that the information is from a source that is
not reasonable accessible because of the undue burden or expense,” the objecting party bears “the burden of
demonstrating that the information is from a source that is not reasonably accessible because of undue burden or
expense.” (CCP, § 2031.310, subd. (d).) If the objecting party meets its burden, then “the court may nonetheless
order discovery if the demanding party shows good cause, subject to” limitations on the frequency or extent of
discovery of ESI. (Id., at subd. (e).) The court may limit the frequency or extent of discovery of ESI, “even from a
source that is reasonably accessible,” if the court determines that (1) “[i]t is possible to obtain the information from
some other source that is more convenient, less burdensome, or less expensive,” (2) “[t]he discovery sought is
unreasonably cumulative or duplicative,” (3) “[t]he party seeking discovery has had ample opportunity by discovery in
the action to obtain the information sought,” or (4) “[t]he likely burden or expense of the proposed discovery
outweighs the likely benefit, taking into account the amount in controversy, the resources of the parties, the
importance of the issues in the litigation, and the importance of the requested discovery in resolving those issues.”
(Id., at subd. (g).) A party claiming that requested discovery is unduly burdensome must make a particularized
showing of facts demonstrating hardship. (West Pico Furniture Co. v. Super. Ct. (1961) 56 Cal.2d 407, 417-418.)
Questcor argues that it “cannot simply hand over” the Backup Tapes because it would first need to review the
restored version of each document in the Backup Tapes to prevent the inadvertent disclosure of privileged or private
information. Questcor’s counsel declares that his firm’s staff has reviewed hundreds of thousands of pages of
restored documents that are stored on the Backup Tapes, and the Backup Tapes contain at least another 2.5 million
documents that have not been reviewed. (Kohli decl., at ¶¶ 3-5.) He further declares that the attorneys and
paralegals at his firm are able to review about seventy-five documents per hour, and it would take them
approximately 33,332 hours and cost Questcor about five million dollars to review the remaining 2.5 million
documents before producing the Backup Tapes. (Id., at ¶¶ 6-7.) Questcor’s counsel also declares that, of the
documents on the Backup Tapes that have been reviewed, about thirty thousand documents are privileged attorneyclient communications and/or attorney work product, “tens of thousands of documents” contain private information
about employees (e.g., their social security numbers and financial information), and “thousands of spreadsheets”
include private medical information about third parties who need or have used Acthar. (Id., ¶¶ 12-14.) Questcor’s
counsel declares that such documents would need to be redacted or placed on a privilege log before the Backup
Tapes could be produced, and his firm could review and either redact or place in a privilege log about thirty
documents per hour. (Id.)
As set forth in detail above, Questcor has persuasively argued that the discovery sought by RPD Set Nine No. 96
encompasses information protected from disclosure by the attorney-client privilege and/or attorney work product
doctrine and third parties’ privacy rights. Given that many of the documents on the Backup Tapes are possibly
privileged and/or protected from disclosure by privacy rights, and that it would take tens of thousands of hours and
cost millions of dollars to review the contents of the Backup Tapes to prevent the disclosure of privileged or private
information, Questcor has demonstrated that the discovery sought by RPD Set Nine No. 96 is not reasonably
accessible due to undue burden or expense.
Furthermore, although Defendants have shown good cause for the discovery of the Backup Tapes to determine
whether Questcor could have discovered information on the Backup Tapes earlier if it had exercised reasonable
diligence, the discovery sought by RPD Set Nine No. 96 could nevertheless be obtained by other means that would
be less expensive, less burdensome, and more convenient. Defendants could, for example, demand an inspection of
the Backup Tapes that is limited to determining the format and amount of data on the Backup Tapes. Such an
inspection would obviate Questcor’s concerns regarding private and/or privileged information on the Backup Tapes
while allowing Defendants to obtain the discovery sought regarding the format and quantity of data on the Backup
Tapes. Therefore, the discovery sought by RPD Set Nine No. 96 could be obtained from another source that is more
convenient, less burdensome, and less expensive. In addition, since Defendants only seek this discovery in order to
determine how difficult it would have been for Questcor’s agents to locate specific information stored on the Backup
Tapes, the likely benefit of obtaining copies of the Backup Tapes is outweighed by the burden and expense that
producing copies of the Backup Tapes would impose on Questcor.
Questcor’s objection to RPD Set Nine No. 96 on the ground of overbreadth, undue burden, and oppression is
therefore sustained.
3.
Conclusion
To summarize, Defendants have not shown good cause for the discovery sought by RPD Set Nine Nos. 97-98, and
although they have shown good cause for the discovery sought by RPD Set Nine No. 96, most of Questcor’s
objections to that request are sustained.
Further responses to RPD Set Nine are therefore not warranted.
B.
Motion for Evidence and Issue Sanctions
Defendants seek an order imposing evidence and issue sanctions against Questcor that would preclude Questcor
from introducing arguments or evidence at trial to support its contentions that (1) it could not have discovered facts
giving rise to its claims sooner “because it was technically difficult to find them,” or (2) metadata shows that
“Greathouse was the author of any document.” (Defendants’ P&A, at p. 10:18-21.) Defendants do not cite any legal
basis authorizing the imposition of evidence and issue sanctions, and instead argue that “[a]llowing Questcor to
introduce evidence or arguments at trial without permitting [Defendants] the same access to the evidence to test
those assertions would unfairly prejudice [Defendants].” (Id., at p. 11:11-13.)
As discussed above, two facts are generally prerequisite to the imposition of non-monetary sanctions: (1) there must
be a failure to comply with a court order, and (2) the failure must be willful. (Liberty Mutual Fire Ins. Co. v. LcL
Administrators, Inc., supra, 163 Cal.App.4th, at p. 1102.) Alternatively, spoliation of evidence is also a misuse of the
discovery process that may warrant the imposition of non-monetary sanctions where the moving party makes a prima
facie showing that the responding party in fact destroyed evidence. (Cedars-Sinai Med. Ctr. v. Super. Ct., supra, 18
Cal.4th, at p. 12; Williams v. Russ, supra, 167 Cal.App.4th, at p. 1227.)
Here, Defendants do not assert that Questcor willfully failed to comply with any court order or proffer evidence
indicating that Questcor destroyed evidence. Thus, the imposition of non-monetary sanctions against Questcor is not
warranted.
C.
Conclusion
In light of the foregoing, Defendants’ motion to compel further responses to RPD Set Nine, or alternatively, for issue
and evidence sanctions against Questcor is DENIED.
Conclusion and Order
Glenridge’s motion to compel Mulroy to answer deposition questions is GRANTED. Accordingly, within 20 days of
the date of the filing of this Order, at a time mutually agreed upon by the parties, Questcor shall cause Mulroy to
appear for a deposition and answer Questions 1-6.
Glenridge’s request for an award of monetary sanctions against Questcor’s counsel is DENIED.
Defendants’ motion to compel Bailey to answer deposition questions and to compel Questcor to provide further
responses to the RPD, FI, SI, and RFA is GRANTED IN PART and DENIED IN PART. The motion is GRANTED as
to SI Nos. 197-199, 204-208, and 210-218, and RFA Nos. 196-199 and 233-236. Accordingly, within 20 days of the
date of the filing of this Order, Questcor shall serve verified code-compliant further responses to SI Nos. 197-199,
204-208, and 210-218, and RFA Nos. 196-199 and 233-236, without objection. The motion is DENIED as to Bailey’s
deposition, the RPD, FI No. 17.1, SI Nos. 193-196, 200-203, and 209, and RFA Nos. 151-194, 200-205, 208-209,
and 228-232.
Defendants’ request for evidence and issue sanctions against Questcor in connection with the motion to compel
Bailey to answer deposition questions and to compel Questcor to provide further responses to the RPD, FI, SI, and
RFA is DENIED.
Defendants’ motion to compel further responses to RPD Set Nine, or alternatively, for evidence and issue sanctions
is DENIED.
____________________________
DATED:
_________________________________________________
HON. SOCRATES PETER MANOUKIAN
Judge of the Superior Court
County of Santa Clara
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DEPARTMENT 19
408.882.2310 · 408.882.2299(fax)
[email protected]
Steve Brinkman, et al. v. Kaiser Gypsum Company, et al.
TIME: 9:00
LINE NUMBER: 4
Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling
must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 9
October 2014. Please specify the issue to be contested when calling the Court and counsel.
On 10 October 2014, the separate motions of Defendant Kaiser Gypsum Company, Inc. to compel initial responses
to written discovery from Plaintiffs Troy Trammel and Steven Trammel (“Plaintiffs”) 8 was argued and submitted. 9
Defendants did not file formal opposition to the motion. 10
Plaintiffs Steve Brinkman and Michael Trammel, through their counsel Brayton & Purcell filed an "objection to service
of Defendant Union Carbide Corporation's motion to compel Plaintiff Stephen Trammel's verifications for written
discovery response and requests for sanctions." A similar document was filed on behalf of Michael Trammel.
All parties are reminded that all papers must comply with Rule of Court 3.1110(f).11
I.
Statement of Facts.
This matter arises out of a wrongful death asbestos related action. Plaintiffs allege that they were exposed to
asbestos-containing products for which Defendant is responsible. Decedent Shelly Brinkman died on 14 May 2010
from Colon Cancer and Asbestosis. The other plaintiffs are Ms. Brinkman’s spouse and surviving children. Plaintiffs
allege that Ms. Brinkman suffered from exposure when Ms. Brinkman’s husband came home from work, with
asbestos on his work clothes.
Defendant denies the allegations.
On 14 April 2014, Plaintiffs’ counsel Brayton Purcell, LLP was relieved as counsel to Plaintiffs Steven Trammel and
Troy Trammel. That firm continues to represent Steve Brinkman and Michael Trammel.
8
When the distinction between the Plaintiffs is necessary, Troy Trammel will be identified as “Troy”, while Steven
Trammel will be identified as “Steven”.
9
Rule of Court 3.1345(d) states: “A motion concerning interrogatories, inspection demands, or admission requests
must identify the interrogatories, demands, or requests by set and number.”
Plaintiffs’ former attorneys were served with a copy of the notice motion and filed papers asserting improper service as to
them. Plaintiffs Steven and Troy Trammel did not file opposition. “The failure to file a written opposition or to appear at a hearing
or the voluntary provision of discovery shall not be deemed an admission that the motion was proper or that sanctions should be
awarded.” Rule of Court 3.1348(b).
10
“Each exhibit must be separated by a hard 81/2 x 11 sheet with hard paper or plastic tabs extending below the bottom of the
11
II.
Discovery Dispute.
On 17 October 2012, Defendant served Special Interrogatories, Form Interrogatories, Requests for the Production of
Documents, and Requests for Admission Sets One on Plaintiffs Steven Trammel and Troy Trammel. On 27
November 2012, Plaintiffs served unverified responses with objections on Defendant.
On 23 July 2014, Defendant served sets of Supplemental Interrogatories and Supplemental Requests for the
Production of Documents on Plaintiffs. Plaintiffs never responded to these supplemental requests.
III.
Analysis.
A memorandum of points and authorities must contain a statement of facts, a concise statement of the law, evidence,
and arguments relied upon, and a discussion of the authorities cited. Cal. Rules of Court, rule 3.1113(b). Facts relied
upon must be authenticated before a court may consider them. Cal. Evid. Code §1401(a). Authentication means the
introduction of evidence sufficient to sustain a finding that it is the writing the proponent of the evidence claims it is.
Cal. Evid. Code. §1400(a). Declarations are the proper means to authenticate a document, as they are sworn under
penalty of perjury. See Weil, Civil Procedure Before Trial, ¶9:50a; See also Claudio v. Regents of the Univ of Cal.
(3d. Dist. 2005) 134 Cal.App.4th 224, 244.
To prevail on its motion, a party needs to show is that the discovery requests were properly served, that the time to
respond has expired, and that no response of any kind has been served. (Leach v. Super. Ct. (1980) 111 Cal.App.3d
902, 905-906.)
If a party to whom interrogatories or demand for inspection are directed fails to serve a timely response, the party
propounding the interrogatories or demand for inspection may move for an order compelling responses. Code Civ.
Proc. § 2030.290(b) (interrogatories) § 2031.300(b) (response to demand).The party who fails to serve a timely
response waives any right to object to the interrogatories or demands, including ones based on privilege or on the
protection of work product. Code Civ. Proc. § 2030.290 (a) (interrogatories) § 2031.300(a) (response to demand for
production).
To establish that a party did not serve a timely response to interrogatories or demands, the moving party must show
that the responding party was properly served with the discovery request or demand to produce, that the deadline to
respond has passed, and that the responding party did not timely respond to the discovery request or demand to
produce. Code Civ. Proc. §§ 2030.080(a); 2030.060(a); 2030.290; § 2031.040; § 2031.260(a); § 2031.300.
A. Motion as to Steven Trammel is defective
Defendant’s motion as to Steven Trammel includes a declaration referencing several exhibits, some of which are
necessary to properly evaluate this motion. These exhibits were not included in the paperwork filed with the Court. 12
Instead, after the declaration in the motion as to Steven Trammel are copies of multiple proofs of service. Defendant
has not provided enough to justify a motion to compel responses as to Steven Trammel.
Defendant’s motion to compel responses from Steven Trammel is DENIED WITHOUT PREJUDICE.
B. Motion to compel initial responses to interrogatories and requests for the production of documents
from Troy Trammel
A general boilerplate objection is disfavored because of the inference that it implies that there are documents in
existence that are responsive to the request, but that because of the objection, they are not going to be produced.
See Standon v. Superior Ct. (1990) 225 Cal.App.3d 898, 901. While a boilerplate objection constitutes a response, it
may still be evasive and sanctionable if they are not specific enough. See Korea Data Sys. Co. v. Superior Ct. (4th
Dist. 2997) 51 Cal.App.4th 1513, 1516.
Defendant cited Code of Civil Procedure sections 2030.250 and 2031.250 as authority to bring the instant motion to
compel initial responses. These sections do state that a party must verify their discovery, but do not, in themselves,
grant authority for the Court to compel these verifications. Such motions to compel code-compliant responses are
raised under sections 2030.290, 2030.300, 2031.300, and 2031.310.
12
Incidentally, this is yet another reason to follow Rule 3.1110(f) as it becomes easier to see what exhibits were and
were not filed.
Defendant served discovery, including Special Interrogatories, Form Interrogatories, and Requests for the Production
of Documents, Sets One on 17 October 2012. Plaintiff served unverified responses consisting of objections,
sometime in 2012. 13 Objections do not have to be verified. See Food 4 Less Supermkts., Inc. v. Superior Ct. (2d Dist.
1995) 40 Cal.App.4th 651, 658. Defendant received responses in a timely manner. A motion to compel further
responses to this discovery was appropriate. See Code Civ. Proc. §§2030.300, 2031.310. These motions have 45
day time limits from the date the responses were served. This period has long since passed.
Defendant’s motion to compel initial responses from Plaintiff Troy Trammel for Form Interrogatories, Set One, Special
Interrogatories, Set One, and Requests for the Production of Documents, Set One is DENIED.
C. Motion to compel Verified Responses to Requests for Admission
Defendant cites Code of Civil Procedure section 2033.240 for the proposition that parties must verify their responses
under oath. The Court agrees with this proposition. However, Defendant has not cited any authority that allows the
Court to compel these verifications.
There are two motions relating to discovery abuses as they apply to Requests for Admission. The first is a motion to
have the matters inquired about in the requests for admission deemed admitted, under Code of Civil Procedure
section 2033.280. This requires a showing that the responding party has failed to serve a timely response. Code Civ.
Proc. §2033.280. Plaintiff served responses with objections and Defendant has not alleged that these responses
were untimely. Obviously, a motion under this section does not apply.
The second is a motion to compel further responses to requests for admission under Code of Civil Procedure section
2033.290. This requires a showing that an answer is too evasive or general or that an objection is without merit or too
general. Code Civ. Proc. §2033.290(a). This motion must also be filed within 45 days of the service of the response.
A response was served in 2012. The time to file a motion under section 2033.290 has long since passed.
Defendant’s motion to compel verifications of Requests for Admission, Set One is DENIED.
D. Motion to compel initial responses to supplemental interrogatories and requests for the production
of documents
A party may serve supplemental interrogatories and requests for the production of documents inquiring about any
information later acquired that might have bearing on previously propounded interrogatories and requests for the
production of documents. Code Civ. Proc. §§2030.070(a), 2031.050(a). Motions to compel initial responses to these
supplemental requests are the same as motions to compel initial responses to special and form interrogatories and
requests for production of documents. See Code Civ. Proc. §§2030.290, 2031.300.
Defendant served supplemental requests for interrogatories and requests for the production of documents by mail on
23 July 2014. Responses were due 27 August 2014. Plaintiff never responded. An order to compel responses as it
applies to any later acquired information is appropriate. 14
Defendant’s motion to compel initial responses to Defendant’s First Supplemental Interrogatory to Plaintiff Troy
Trammel and Defendant’s First Request for Production to Plaintiff Troy Trammel is GRANTED. Plaintiff Troy
Trammel shall serve verified code-compliant responses to these supplemental discovery requests, outlining any facts
acquired after service of the original responses, without objection within 20 days of the date of this order.
E. Sanctions.
13
Defendant’s Memorandum of Points and Authorities refers to Plaintiff’s response date as 27 November 2012.
Defendant does not refer to this in its declaration in support of the motion and provides no proof of service of these
responses. Because Defendant has not raised the issue, the Court assumes that these responses were served timely.
See Shoemaker v. County of Los Angeles (1995) 37 Cal. App. 4th 618, 634, n.17, citing Cox Cable San Diego, Inc.
v. City of San Diego (1987) 188 Cal. App. 3d 952, 968
14
The Court notes that the proof of service reflects service of “Defendant Union Carbide Corporation’s First
Request for Production to Plaintiff Troy Trammel”. Given Defendant’s history in the motion, the Court assumes this
is just another typo and should have been “Defendant Union Carbide Corporation’s First Supplemental Request for
Production to Plaintiff Troy Trammel.”
Defendant makes a request for monetary sanctions against Plaintiffs. Defendant has not prevailed on any matter that
mandates this Court to award sanctions. The Court will decline to award sanctions because Defendant’s motions
were sloppy, with incorrect citation to authority 15 , multiple typographical errors, and one motion not even including
any exhibits.
Defendant also failed to cite the proper authority for monetary sanctions in this case, when a matter is unopposed,
which is Rule of Court 3.1348(a), where the court may award sanctions under the Discovery Act in favor of a party
who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the
motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.
The Court suggests the proper procedure would be to put the following language in the notice of the motion:
"If you wish to oppose the relief requested in this motion, you must timely file a written reply in compliance
with all Court rules. If you fail to do so, the court may treat your failure to respond as a waiver of your right to
oppose this motion and may grant the relief requested pursuant to Rule of Court 3.1348(a) which states: “The
court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery,
even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the
requested discovery was provided to the moving party after the motion was filed.”
Defendant’s request for monetary sanctions is DENIED.
///
///
///
///
IV. Order.
Defendant’s motion to compel responses from Steven Trammel is DENIED.
Defendant’s motion to compel initial responses from Plaintiff Troy Trammel for Form Interrogatories, Set One, Special
Interrogatories, Set One, and Requests for the Production of Documents, Set One is DENIED.
Defendant’s motion to compel verifications of Requests for Admission, Set One is DENIED.
Defendant’s motion to compel initial responses to Defendant’s First Supplemental Interrogatory to Plaintiff Troy
Trammel and Defendant’s First Request for Production to Plaintiff Troy Trammel is GRANTED. Plaintiff Troy
Trammel shall serve verified code-compliant responses to these supplemental discovery requests, outlining any facts
acquired after service of the original responses, without objection within 20 days of the date of this order.
Defendant’s request for monetary sanctions is DENIED.
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DATED:
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E.g., Defendant cites Appleton v. Superior Court as 206 Cal.App.3d 362, 363 where the proper citation was 206
Cal.App.3d 632, 636. The Court recommends that counsel proofread motions prior to filing them.
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DEPARTMENT 19
408.882.2310 · 408.882.2299(fax)
[email protected]
Cheung v. Tse
TIME: 9:00
LINE NUMBER: 5
On 10 October 2014, the motion of plaintiff Levania Yue Juan Cheung (“Plaintiff”) for reconsideration of motion for
protective order was argued and submitted. Defendant Kent Kin Sun Tse (“Defendant”) filed a formal opposition to
the motion.
I.
Statement of Facts
On 11 July 2014, Plaintiff moved for a protective order, arguing that certain requests for admissions (“RFAs”) on
Plaintiff seeking Plaintiff to admit that Defendant paid for certain expenses of Plaintiff while living together seek
information that are “outside the scope of permissible discovery,” excessive, “unduly burdensome and expensive.”
On 25 August 2014, the Court denied Plaintiff’s motion for protective order without prejudice to Plaintiff’s motion in
limine excluding the evidence subject to the proposed protective order at trial.
On 3 September 2014, Plaintiff filed the instant motion for reconsideration. According to Plaintiff’s memorandum of
points and authorities, “[t]he new or different circumstances here are the pendency of Plaintiff’s Motion for Judgment
on the Pleadings as to Defendant’s Cross-Complaint.” (Pl.’s memo of points and authorities in support of motion for
reconsideration (“Pl.’s memo”), p.2:23-25.)
II.
Discussion
Here, the sole basis for Plaintiff’s motion is “the pendency of Plaintiff’s Motion for Judgment on the Pleadings as to
Defendant’s Cross-Complaint.” However, the mere filing of a motion is not a new or different circumstance pursuant
to Code of Civil Procedure section 1008. Moreover, Plaintiff could have filed such a motion prior to the 22 August
hearing, and does not provide the Court with any explanation as to why she did not do so earlier. (See Glade v.
Glade (1995) 38 Cal.App.4th 1441, 1457 (stating that “[t]he party seeking reconsideration must provide not just new
evidence or different facts, but a satisfactory explanation for the failure to produce it at an earlier time”), quoting Mink
v. Super. Ct. (Arnel Development Co.) (1992) 2 Cal.App.4th 1338, 1342; see also Lucas v. Santa Maria Public Airport
Dist. (1995) 39 Cal.App.4th 1017, 1027 (stating that “[t]he moving party must provide the trial court with a satisfactory
explanation as to why he or she failed to produce the evidence at an earlier time”); see also Baldwin v. Home
Savings of America (1997) 59 Cal.App.4th 1192, 1198 (stating that “it is evident that the party seeking reconsideration
must provide not only new evidence but also a satisfactory explanation for the failure to produce that evidence at an
earlier time”) (emphasis original).)
Instead, Plaintiff’s counsel merely provides his own declaration which states that “Plaintiff has acted diligently and in
accordance with the Code… [and] as not ‘sat on her rights.’” (Steinfeld decl. in support of motion for reconsideration,
¶ 15.) This is plainly insufficient.
This Court notes that the matter does not even have a trial setting conference date as yet.
The motion for reconsideration is DENIED.
III.
Plaintiff’s motion for reconsideration of the motion for a protective order is DENIED.
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DATED:
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DEPARTMENT 19
408.882.2310 · 408.882.2299(fax)
[email protected]
Brightedge Technologies, Inc. v. Gabriel Martinez
TIME: 9:00
LINE NUMBER: 7
On 10 October 2014, the motions of Plaintiff Brightedge Technologies, Inc. (“Plaintiff”) to (1) compel production of
documents pursuant to a deposition subpoena, specifically Requests for Production 8, 9 and 24-27, 16 served on third
party Searchmetrics, Inc., (“Searchmetrics”) and (2) to seal the Notice of Motion, Memorandum of Points and
Authorities and declarations of Trent Livingstone (“Livingstone Decl.”) and Barrett Foster (“Foster Decl.”) in support of
the Motion to Compel were argued and submitted. Searchmetrics filed a formal opposition to both motions and
requested monetary sanctions regarding the motion to compel.
All parties are reminded that all papers must comply with Rule of Court 3.1110(f).17
This Court notes that there is any discovery motion calendar for Friday, 17 October 2014 at 9:00 a.m.. This Court
intends to continue the matter to the 24 October 2014 calendar since this Court will be away next week.
Statement of Facts
This action arises from allegations that Defendant Gabriel Martinez (“Defendant”) took Plaintiff’s confidential
information and trade secrets with him when he left Plaintiff’s employ and went to work for a business competitor,
Searchmetrics, Inc. Plaintiff filed this action against Defendant Martinez only on 26 November 2013. Plaintiff has
chosen not to sue Searchmetrics in this action although it sued Searchmetrics in federal district court in March 2014.
Discovery Dispute
On 14 May 2014 Plaintiff served Searchmetrics with a Deposition Subpoena for the Production of Business Records.
The subpoena called for the production of 57 categories of documents with the production scheduled to take place on
June 9, 2014. (See Declaration of Plaintiff Counsel Jasmine Singh in Support of Motion to Compel (“Singh Decl.”)
Ex. B.)
16
The Court notes that the motion originally sought to compel further responses to requests 1-2 and 4-7 as well.
Searchmetrics states that after the motion to compel was filed Plaintiff provided it with a copy of a new addendum
to the confidentiality order in place in this matter and, in reliance on that addendum, it provided Plaintiff documents
responsive to requests 1-2 and 4-7 and Plaintiff withdrew the motion as to those requests. (See Declaration of Rajiv
Dharnidharka in support of opposition to Motion to Compel (“Dharnidharka Decl.”) at ¶ 2 and Ex. 1.)
“Each exhibit must be separated by a hard 81/2 x 11 sheet with hard paper or plastic tabs extending below the bottom of the
17
Previous to the service of the subpoena on Searchmetrics, on 9 May 2014 Defendant was served with a Notice to
Consumer or Employee with a copy of the subpoena to be served on Searchmetrics attached. Plaintiff made no
objection to the subpoena.
On 3 June 2014 Searchmetrics responded to all 57 requests with various (and for the most part boilerplate)
objections, including that the various requests sought the disclosure of “sensitive, proprietary, or confidential
business information or trade secrets.” See Singh Decl., Ex. B. These objections were served on Plaintiff via
overnight mail on 3 June 2014 and were received by Plaintiff on 4 June 2014. (See Dharnidharka Decl., Ex. 2.) See
also Plaintiff’s Memo. of Points and Authorities at 6:12-13 (“On June 3, Searchmetrics provided Objections and
Responses to that Subpoena.”); Singh Decl. at ¶5 (“On June 3, 2014, Searchmetrics provided Responses and
Objections to BrightEdge’s subpoena.”).
Plaintiff and Searchmetrics met and conferred regarding the Responses and Objections to RFP nos.1, 2, 4, 5, 6, 7,
13, 21-27, 29-40 and 45 -48 from approximately 3 July 2014 through 10 July 2014. See Singh Decl. at ¶6 and Ex. D.
There is no evidence of any meet and confer discussion regarding Request Nos. 8 or 9. At that point meet and
confer efforts appear to have ceased until 1 August 2014 when Plaintiff requested an extension of time to file a
motion to compel from Searchmetrics which was denied. See Singh Dec., Ex. E, email dated 4 August 2014 from
Rajiv Dharnidharka to Plaintiff Counsel Singh: “[S]ince I had not heard from your side regarding the subpoena in over
three weeks (July 10 to be specific) . . . Searchmetrics assumed BrightEdge decided not to pursue this discovery . . .
If an ex parte application is properly noticed for a hearing later in the week, Searchmetrics will note in its opposition,
among other things, that there has been no meet and confer effort by BrightEdge related to its subpoena to
Searchmetrics since July 10 as confirmed in the attached email chain between us.”
On 5 August 2014 Plaintiff did file an ex parte application for an order extending the deadline to file a motion to
compel, in which it stated its belief that any motion to compel had to be filed by 6 August 2014 and argued to the
Court (among other things) that time should be extended because it and Searchmetrics were “continuing to meet and
confer” and that “[g]ood cause exists for extending time for [the] motion because a motion at this stage would be
premature and unhelpful.” The Court denied the ex parte application.
The next day, 6 August 2014, Plaintiff filed the self-described “premature and unhelpful” motion to compel along with
a motion to seal its motion to compel papers. Searchmetrics was initially served only with redacted copies of the
moving papers and was forced to make multiple requests for unredacted copies of the motion being brought against
it. See Dharnidharka Decl., Ex. 1 (various emails between counsel for Searchmetrics and counsel for Plaintiff from 7
August 2014 to 18 September 2014).
On 26 September 2014 counsel for Plaintiff confirmed in an email that Plaintiff “is not pursuing the motion to compel
on RFP Nos. 1-2 and 4-7. “ Dharnidharka Dec., Ex. 1.
Searchmetrics timely filed its papers opposing both of Plaintiff’s motions on 29 September 2014. 18 It later filed an
untimely request for judicial notice on 8 October 2014, less than two days before the hearing.
Discussion
I.
Request for Judicial Notice
As noted, on the afternoon of 8 October 2014 Searchmetrics filed a request for the Court to take judicial notice of a
copy of a 7 October 2014 order of the federal district court hearing the federal action between Plaintiff and
Searchmetrics, as well as a copy of letter submitted to federal court prior to its issuance of the order.
The request is DENIED. The request is untimely and a precondition to judicial notice in either its permissive or
mandatory form is that the matter to be noticed be relevant to the material issue before the Court. (See Silverado
Modjeska Recreation and Park Dist. v. County of Orange (2011) 197 Cal App 4th 282, 307, citing People v.
18
With its opposing papers, Searchmetrics submitted evidentiary objections to facts set forth in a “Declaration of
Louis Bunya.” No such declaration was filed. In any event, there is no authority holding that the Court must rule on
an evidentiary objection made in connection with a motion other than a motion for summary judgment or an antiSLAPP motion. Therefore, the Court need not rule on any such objections asserted in connection with discovery
motions.
Shamrock Foods Co. (2000) 24 Cal 4th 415, 422 fn. 2.) The federal court order is not relevant to the Court’s
consideration of either the motion to seal or motion to compel, which is based on the papers timely submitted by
either side.
II.
Motion to Seal
A.
Legal Standard
California Rules of Court, rules 2.550 and 2.551 set forth specific criteria for permanently sealing court records. (See
Cal. Rules of Court, rule 2.550(d) [stating that the court must make the following express factual findings before
granting leave to file records under seal: (1) an overriding interest overcomes the public’s presumptive right of
access to court records, (2) that interest supports sealing the records, (3) a substantial probability exists that the
overriding interest will be prejudiced if the records are not sealed, (4) the proposed sealing is narrowly tailored, and
(5) no less restrictive means exist to achieve the overriding interest].) These criteria do not apply, however, to
“discovery motions and records filed or lodged in connection with discovery motions or proceedings.” (See Cal.
Rules of Court, rule 2.550(a)(3).) Nonetheless, even in discovery proceedings, a party moving for leave to file
records under seal must identify the specific information claimed to be entitled to confidentially and the nature of the
harm threatened by disclosure. (See H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879, 894.)
B.
Plaintiff’s Motion to Seal
Plaintiff seeks to seal the unredacted versions of its Notice of Motion and Motion to Compel, its Memorandum of
Points and Authorities in support of the Motion to Compel; the Declaration of Trent Livingston offered in support of
the Motion to Compel and the Declaration of Barrett Foster offered in support of the Motion to Compel along with
Exhibit A to the Foster Declaration.
Searchmetrics opposes the motion, arguing that Plaintiff has failed to make the required showing as “the only
declaration offered in support of [Plaintiff’s] motion to seal [is] from Ms. Singh, counsel for [Plaintiff], who has no
personal knowledge of [Plaintiff’s] purported overriding interests. Ms. Singh’s less than one page declaration offers
no facts that show the requisite overriding interest . . .” Opp. at 2:4-7.
While Searchmetrics is correct that Plaintiff’s motion, especially the Singh Declaration, is at best perfunctory, having
reviewed the documents conditionally lodged under seal and particularly the two declarations, the Court finds that
Plaintiff has minimally complied with the requirements for sealing. The Court further finds that the documents at
issue contain confidential information as defined in the stipulated confidentiality order already in place. As the Court
of Appeal stated in Fuller:
The discovery process, which is intended to be largely self-enforcing, would be greatly impeded if every
document a party might produce was ipso facto open to public inspection. Records now freely disclosed
under protective orders, often entered by stipulation, would require laborious collateral litigation to establish
grounds for a sealing order. This would impose a substantial new burden on parties as well as on the courts,
all in derogation of a process that is largely a modern invention and has never been conceived as open to
the public.
(Fuller, supra, 151 Cal.App.4th at pp. 892-893.)
Plaintiff’s Motion to Seal is therefore GRANTED.
III.
Motion to Compel
A.
Legal Standard
Section 2025.480 provides that if a deponent fails to answer any question at a deposition or to produce any
document under the deponent’s control, the party seeking discovery may move the court for an order compelling that
answer or production. Section 2025.480 contemplates a deponent’s appearance at the deposition, followed by either
a refusal to answer a question or a failure to produce a requested document. (See Unzipped Apparel, LLC v. Bader
(2007) 156 Cal.App.4th 123, 133 [analogizing motion to compel pursuant to section 2025.480 to motion to compel
further responses to requests for production of documents].)
If a deponent fails to answer any question at a deposition, the party seeking discovery may move the
court for an order compelling an answer. (Code Civ. Proc. (“CCP”), § 2025.480, subd. (a).) If the
court determines that the answer sought is subject to discovery, it shall order that the answer be
given on the resumption of the deposition. (CCP, § 2025.480, subd. (i).)
If a motion is properly made, the burden is on the objecting party to justify any failure to answer.
(See San Diego Professional Ass’n v. Super. Ct. (Paderwiski, Mitchell, Dean & Associates) (1962)
58 Cal.2d 194, 199; Coy v. Super. Ct. (Wolcher) (1962) 58 Cal.2d 210, 220-221.)
In contrast, section 2025.450 applies only when a deponent completely fails to appear and, consequently,
does not produce the documents described in the deposition notice. (See Code Civ. Proc., § 2025.450,
subd. (a) [“the party giving notice may move for an order compelling the deponent’s attendance and
testimony, and the production for inspection of any document, electronically stored information, or tangible
thing described in the deposition notice.”].)
Section 2025.480 is silent as to which party carries the burden of persuasion. As a general rule, the party objecting to
discovery bears the burden of defending its objections. (See Fairmont Ins. Co. v. Sup. Ct. (2000) 22 Cal.4th 245,
255.) Generally, “[a] motion to compel production of documents described in a deposition notice must be
accompanied by a showing of ‘good cause’—i.e., declarations containing specific facts justifying inspection of the
documents described in the notice.” (Weil & Brown, California Practice Guide: Civil Procedure Before Trial (Rutter
Group 2012) at 8:801.2; see also CCP, § 2025.450(b)(1).) However, Weil & Brown note at 8:609.3 that “there is
apparently no such requirement on a motion to compel a nonparty to comply with a deposition subpoena for
document production.”
B.
Plaintiff’s Motion to Compel
As noted above, Plaintiff now only seeks to compel Searchmetrics to provide documents responsive to Request Nos.
8, 9 and 24-27 “of its Deposition Subpoena for Production of Business Records, pursuant to section 2025.480 of
California Code of Civil Procedure, on the ground that Searchmetrics, Inc. failed to produce any responsive
documents . . .” (Plaintiff’s Notice of Motion and Motion to Compel.)
C.
Analysis
1.
Timeliness of the Motion
The parties dispute whether the entire motion is time-barred and whether CCP §2031.310 or §2025.480 applies. The
applicable statute is §2025.480 and as a matter of law the 60-day limit for a motion to compel production from a
nonparty pursuant to a subpoena for business records begins to run when the objections are received, here 4 June
2014, which constitutes the completion of the record of the deposition under CCP §2025.480(b). See Unzipped
Apparel, LLC v. Bader (2007) 156 Cal App 4th 123 (“Unzipped”) (60-day limit for a motion to compel production
applies to a subpoena for business records from a nonparty and begins to run when the objections are received,
which constitutes the completion of the record of the deposition under CCP §2025.480(b)). “A business records
subpoena often results in one of two responses: a partial production based on a few objections or no production
based on more extensive objections. Under either scenario, upon receipt of the response, the subpoenaing party
has all of the information it needs to prepare a motion to compel.” Id. at 133.
60 days after 4 June 2014, the date Plaintiff received Searchmetrics’ objections, was 3 August 2014, a Sunday.
Accordingly by operation of CCP §2016.060, the time to file a motion to compel was extended to the next court day,
Monday 4 August 2014. Plaintiff’s Motion was not filed until Wednesday 6 August 2014. Based on these facts
Searchmetrics contends that the entire motion is time barred.
Plaintiff responds that because Searchmetrics’ objections were served on it via overnight mail, it was entitled to a two
court day extension to the 60-day time limit to file this motion pursuant to CCP §1013(c) making its filing on 6 August
2014 timely. CCP §1013(c) states that the extension for overnight delivery “applies in the absence of a specific
exception provided for by this section or other statute or rule of court.”
What Plaintiff has failed to take into account is that the application of CCP §1013 to the Discovery Act is governed by
one such “other statute.” CCP §2016.050, operative 1 July 2005, states: “Section 1013 applies to any method of
discovery or service of a motion provided for in this title.” A nonparty’s response to a business records subpoena
cannot itself be reasonably construed as either a “method of discovery” or “service of a motion,” and the inclusion of
these two specific terms in the statute is interpreted as an exclusion of all others; expressio unius est exclusion
alterius. A specific provision (such as CCP §2015.050) relating to a particular subject will govern a general provision
(such as CCP §1013), even though the general provision standing alone would be broad enough to include the
subject to which the specific provision relates. Civ. Code §3534; CCP §1859. The specific provision governs
whether it was passed before or after the general statute.
Accordingly there was no extension of the 60-day time period set forth in CCP §2025.480(b) based on the method of
service of Searchmetrics’ objections through CCP §1013; the 60-day period began running from the established date
of receipt of the responses by Plaintiff: 4 June 2014. This is consistent with the Court of Appeal’s 2007 holding in
Unzipped, although the motion in Unzipped was untimely regardless of any extension of time possible under CCP
§1013, even if it were applicable to responses to a business records subpoena served on a nonparty. The last day
on which Plaintiff could have timely filed a motion to compel Searchmetrics to provide further responses to the 14
May 2014 Deposition Subpoena for the Production of Business Records was 4 August 2014. The present motion to
compel filed on 6 August 2014 is therefore DENIED as untimely.
While it is unnecessary to address the other arguments made given the finding that the entire motion must be denied
as untimely, the Court notes that (1) Plaintiff’s argument that Searchmetrics waived its trade secrets objection is
incorrect as such an objection was stated in Searchmetrics’ responses and; (2) the meet and confer correspondence
establishes that Plaintiff failed to meet and confer at all regarding Requests 8 and 9.
D.
Searchmetrics’ Request for Monetary Sanctions
The Court will have a few questions.
Plaintiff’s motion to seal is GRANTED.
Plaintiff’s motion to compel is DENIED.
Searchmetrics’ request for monetary sanctions is to be discussed.
____________________________
DATED:
_________________________________________________
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DEPARTMENT 19
408.882.2310 · 408.882.2299(fax)
[email protected]
Rivera v. Burt, Enterprise Rent A Car
TIME: 9:00 AM
CASE NO.114CV261160
LINE NUMBER: 10
On 10 October 2014, the following two motions were argued and submitted: (1) Defendant Enterprise Rent A Car
Company of San Francisco, LLC (“ERAC SF”)’s motion to compel responses to first sets of form interrogatories (“FI”)
and request for production of documents (“RPD”) served on Plaintiff Benny Rivera (“Plaintiff”); and (2) Defendant
Enterprise Rent A Car Company of San Francisco, LLC (“ERAC SF”)’s motion for an order that ERAC SF’s request
for admissions (“RFA”), Set One, served on Plaintiff Benny Rivera (“Plaintiff”) be deemed admitted. 19
Plaintiff Benny Rivera did not file formal oppositions to the motions. 20
All parties are reminded that “[a] motion concerning interrogatories, inspection demands, or admission requests must
identify the interrogatories, demands, or requests by set and number.” Rule of Court 3.1345(d).
I.
Statement of Facts.
This case arises from a motor vehicle accident involving Plaintiff Benny Rivera and Defendant Anthony Roy Burt
(“Burt”). The second Defendant ERAC SF is the owner/renter of the vehicle allegedly operated by Burt at the time of
the accident. Both defendants have filed their own separate answers to the complaint through their respective
attorneys of record.
II.
Discovery Dispute.
On 2 June 2014, ERAC SF served the first sets of its FI, RPD, and RFA upon Plaintiff by US mail. On 29 July 2014,
counsel for ERAC SF wrote a letter to Plaintiff’s counsel regarding the overdue responses, and extending the time to
respond without objections until 5 August 2014. On 12 August 2014, upon receiving a phone call from Plaintiff’s
counsel regarding a case management conference, ERAC SF’s counsel raised the issue of discovery responses
again, and was told that opposing counsel had not been able to reach Plaintiff.
On 9 September 2014, ERAC SF filed two separate motions to compel responses to FI and RPD, and to obtain an
order deeming RFA admitted. Plaintiff did not file oppositions to the motions.
III.
Analysis.
19
Although ERAC SF filed two separate motions, the factual matters are essentially the same. Thus the Court will
treat both motions as if they were filed as a single motion.
“The failure to file a written opposition or to appear at a hearing or the voluntary provision of discovery
shall not be deemed an admission that the motion was proper or that sanctions should be awarded.” Rule
of Court 3.1348(b).
20
A. Motion to Compel Initial Responses to Interrogatories and Request for Production of Documents
To prevail on its motion, a party needs to show that the discovery requests were properly served, that the time to
respond has expired, and that no response of any kind has been served. (Leach v. Super. Ct. (1980) 111 Cal.App.3rd
902, 905-906.)
If a party to whom interrogatories or demand for inspection are directed fails to serve a timely response, the party
propounding the interrogatories or demand for inspection may move for an order compelling responses. Code Civ.
Proc. § 2030.290(b) (interrogatories), § 2031.300(b) (response to demand).The party who fails to serve a timely
response waives any right to object to the interrogatories or demands, including ones based on privilege or on the
protection of work product. Code Civ. Proc. § 2030.290 (a) (interrogatories) § 2031.300(a) (response to demand for
production).
To establish that a party did not serve a timely response to interrogatories or demands, the moving party must show
that the responding party was properly served with the discovery request or demand to produce, that the deadline to
respond has passed, and that the responding party did not timely respond to the discovery request or demand to
produce. Code Civ. Proc. §§ 2030.080(a); 2030.060(a); 2030.290; § 2031.040; § 2031.260(a); § 2031.300.
ERAC SF has provided proof of service for the first set of form interrogatories and demand for production of
documents. The deadline for the Plaintiff to respond has lapsed and the Plaintiff has not timely responded to any of
ERAC SF’s discovery requests.
Accordingly ERAC SF’s motion to compel responses to its discovery requests is GRANTED. Plaintiff is ordered to
serve verified answers without objection within 20 days after the date of the filing of this Order.
B. Sanctions.
ECAR SF makes a request for monetary sanctions.
Code of Civil Procedure, § 2023.040 states: “A request for a sanction shall, in the notice of motion, identify every
person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice
of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting
forth facts supporting the amount of any monetary sanction sought.” See Rule of Court 2.30.
The request is not code-compliant.
Concerning the motions to compel initial responses, the Plaintiff has not unsuccessfully opposed ECAR SF’s
motions. (Code Civ. Proc. § 2030.290). Therefore, reliance on section 2030.290 (c) for monetary sanctions is
inapplicable in the present case. The proper authority for monetary sanctions in this case would be Rule of Court
3.1348(a). Under Rule 3.1348(a), the court may award sanctions under the Discovery Act in favor of a party who files
a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was
withdrawn, or the requested discovery was provided to the moving party after the motion was filed.
The Court suggests the proper procedure would be to put the following language in the notice of the motion:
"If you wish to oppose the relief requested in this motion, you must timely file a written reply in compliance with
all Court rules. If you fail to do so, the court may treat your failure to respond as a waiver of your right to oppose
this motion and may grant the relief requested pursuant to Rule of Court 3.1348(a) which states: “The court may
award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even
though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested
discovery was provided to the moving party after the motion was filed.”
Defendant ECAR SF’s motion for monetary sanctions is DENIED.
C. Motion to have RFA Deemed Admitted
On 2 June 2014, ERAC SF’s request for admissions was served upon the Plaintiff by US mail. Responses were due
on or before 7 July 2014. ERAC SF unilaterally granted an extension of time within which to respond without
objections up through and including 5 August 2014. There have been granted no further stipulations of time within
which to respond.
Code of Civil Procedure, § 2033.280 states:
“If a party to whom requests for admissions are directed failed to serve a timely response, the following rules
may apply:
(a) The party to whom the requests for admissions are directed waives any objection to the requests,
including one based on privilege or on the protection for work product. . . .”
(b) The requesting party may move for an order that the genuineness of any documents and the truth of any
matters specified in the requests be deemed admitted as well as for monetary sanctions under Chapter 7
(commencing with Section 2023.010).
(c) The court shall make this order, unless it finds that the party to whom the requests for admissions have
been directed has served, before the hearing on the motion, a proposed response to the requests for
admissions that is in substantial compliance with Section 2033.220. It is mandatory that the court impose a
monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both,
whose failure to serve a timely response to requests for admissions necessitated this motion.”
As of this order, Plaintiff has not complied with ECAR SF’s discovery request.
The motion is GRANTED. ERAC SF’s requests for admissions are deemed ADMITTED.
D. Sanctions
Code of Civil Procedure, § 2023.040 states: “A request for a sanction shall, in the notice of motion, identify every
person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice
of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting
forth facts supporting the amount of any monetary sanction sought.” See Rule of Court 2.30.
Plaintiff makes a request for monetary sanctions, citing Code of Civil Procedure, § 2033.280 (b) & (c) and Demyer v.
Costa Mesa Mobile Home Park (1995) 36 CA 4th 393, 395 for the proposition that no meet and confer is required
since the motion deals with failure to respond, rather than an inadequate response. Demyer was partially overruled
on other grounds in Wilcox v. Birtwhistle (1999) 21 Cal. 4th 973. The request is code-compliant.
Code of Civil Procedure, § 2033.280(b) states “The requesting party may move for an order that the genuineness of
any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary
sanction under Chapter 7 (commencing with Section 2023.010).” Code of Civil Procedure, § 2023.010(d), in turn, lists
“failing to respond or to submit to an authorized method of discovery” as a misuse of the discovery process. Still
under Chapter 7, § 2023.030 authorizes the Court to impose monetary, evidentiary, issue, or terminating sanctions
where a party is engaged in conduct that is a misuse of the discovery process. Moreover, § 2033.280(c) makes it
mandatory that the court impose a monetary sanction under the above-referenced Chapter 7 sections (commencing
with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for
admission necessitated this motion.
In determining the amount for monetary sanctions the determination of a reasonable attorney’s fee involves
multiplying the time spent and reasonable hourly compensation of each attorney involved in the presentation of the
case. (Serrano v. Priest (1977) 20 Cal.3d 25, 48-49). Sanctions should be awarded only for expenses actually
incurred. (See Tucker v. Pacific Bell Mobile Services, Inc. (2010) 186 Cal.App.4th 1548, 1551).
Here, ECAR SF’s counsel declares that his normal hourly rate for civil litigation defense is $150.00. This is a
reasonable rate within Santa Clara County. Counsel further declares that he has spent a total of 2.5 hours preparing
this motion. This is a reasonable time to prepare the motion. Counsel also claims $60.00 in filing fees. The motion
document shows the actual amount paid for filing was $90.00, including the $30.00 court reporter fee. The Court will
only grant the requested amount.
ECAR SF’s request for monetary sanctions against Plaintiff is GRANTED. Plaintiff shall pay $435.00 to ECAR SF’s
counsel within 20 days of the date this order.
IV. Order.
Defendant ECAR SF’s motions to compel responses to Form Interrogatories and Request for Production of
Documents, and to have Requests for Admissions Deemed Admitted, are GRANTED.
Defendant ECAR SF’s request for monetary sanctions in relation to the motion to compel is DENIED.
Defendant ECAR SF’s request for monetary sanctions in relation to the motion to have Request for Admissions
Deemed Admitted is GRANTED. Plaintiff shall pay $435.00 to ECAR SF’s counsel within 20 days of the date of this
order.
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DEPARTMENT 19
408.882.2310 · 408.882.2299(fax)
[email protected]
Jahan Faridnia v. Robert Prigge, et al.
TIME: 9:00
LINE NUMBER: 11
On 10 October 2014, the following motions were argued and submitted: (1) plaintiff Jahan Faridnia’s (“Plaintiff”)
motion to compel defendant Masame Prigge (“Ms. Prigge”) to provide further responses to requests for production of
documents and for an award of monetary sanctions; (2) Plaintiff’s motion to compel defendant Robert Prigge (“Mr.
Prigge”) to provide further responses to requests for production of documents, initial responses to special
interrogatories, and for an award of monetary sanctions; and (3) Mr. Prigge and Ms. Prigge’s (collectively
“Defendants”) motion to compel and for an award of monetary sanctions.
Defendants filed a formal opposition to Plaintiff’s motion to compel Ms. Prigge to provide further responses to
requests for production of documents, in which they request an award of monetary sanctions. Plaintiff did not file a
formal opposition to Defendants’ motion and Mr. Prigge did not file a formal opposition to Plaintiff’s motion to compel
him to provide further responses to requests for production of documents and initial responses to special
interrogatories. 21
I.
Statement of Facts
On or about 13 May 2013, Plaintiff and Defendants entered into an oral contract. (See Complaint, p. 3, ¶ BC-1.)
Pursuant to the terms of the contract, Plaintiff agreed to act as Defendants’ general contractor, construction
supervisor, and sub-contractor for “work(s) of improvement to take place at [Defendants’] real property located at
10610 So. Tantau Avenue, Cupertino, CA 95014” (the “Property”). (Id.) Plaintiff rendered services as Defendants’
general contractor, construction supervisor, and sub-contractor from 13 May 2013 to 21 November 2013. (See id.)
Plaintiff alleges that on or about 18 December 2013, Defendants breached their contract by failing to compensate
him for the work that he performed. (See Complaint, p. 3, ¶ BC-2.)
On 6 March 2014, Plaintiff filed the operative complaint, alleging causes of action for breach of contract and common
counts.
II.
Discovery Dispute
On 14 May 2014, Plaintiff served Ms. Prigge with requests for production of documents (“RPD”), set one. (See
Plaintiff’s Motion as to Ms. Prigge, Faridnia Dec., ¶ 2, Ex. A.) On the same date, Plaintiff served Mr. Prigge with
RPD, set one, and special interrogatories (“SI”), set one. (See Plaintiff’s Motion as to Mr. Prigge, Faridnia Dec., ¶ 2,
Ex. A.)
21
“The failure to file a written opposition or to appear at a hearing or the voluntary provision of discovery shall not
be deemed an admission that the motion was proper or that sanctions should be awarded.” (Cal. Rules of Court, rule
3.1348(b).)
On 29 May 2014, Mr. Prigge served Plaintiff with RPD, set one, and SI, set one. (See Marks Dec., Exs. A, B, E.) On
the same date, Defendants jointly served Plaintiff with requests for admission, set one (“RFA”), and form
interrogatories, set one (“FI”). (See Marks Dec., Exs. C, D, E.)
Mr. Prigge and Ms. Prigge served Plaintiff with their responses to the RPD on 19 June 2014. (See Marks Opp’n.
Dec., Ex. C; see also Plaintiff’s Motion as to Mr. Prigge, Faridnia Dec., ¶.)
At the end of June 2014, Plaintiff requested an extension of time to respond to the discovery requests served on him
and Defendants granted Plaintiff an extension of time to 17 July 2014. (See Marks Dec., ¶ 3.) Plaintiff did not serve
Defendants with responses to any of the discovery requests by 17 July 2014. (See Marks Dec., ¶ 4.)
Plaintiff sent a meet and confer letter to Defendants’ counsel on 22 July 2014, regarding the SI and RPD that he
served on Mr. Prigge and the RPD that he served on Ms. Prigge. (See Plaintiff’s Motion as to Mr. Prigge, Faridnia
Dec., Ex. B.) Plaintiff advised Defendants’ counsel that he had not received Mr. Prigge’s responses to the SI and
requested that Mr. Prigge provide answers to the same within 5 days of the date of his letter. (See id.) Plaintiff
further asserted that Mr. Prigge and Ms. Prigge’s responses to the RPD were deficient because their objections to
the requests lacked merit. (See id.) Plaintiff also noted that Defendants stated in their responses to the RPD that
they would produce certain documents that could by accessed via a DropBox link. (See id.) Plaintiff asserted that
the DropBox link that was provided in Defendants responses was defective because it would not open. (See id.)
Plaintiff requested that Defendants provide further responses to the RPD within 5 days of his letter. (See id.)
Defendants’ counsel sent a reply letter to Plaintiff’s meet and confer letter on 4 August 2014. (See Marks Dec., Ex.
F.) Defendants’ counsel stated that Mr. Prigge’s responses, presumably to the SI, were served in a timely manner
and he enclosed another copy of the same for Plaintiff’s review. (See id.) Defendants’ counsel also stated that
Defendants’ objections to the RPD were legitimate and the only privileged documents that were withheld from
production were communications between him and Defendants. (See id.) Defendants’ counsel advised that he
checked the DropBox link and it was working fine, but he would put all of the documents on a memory stick and send
the same to Plaintiff. (See id.) Additionally, Defendants’ counsel indicated that Plaintiff failed to timely respond to
Defendants’ discovery requests and, therefore, all of Plaintiff’s objections to those requests were waived. (See id.)
Defendants’ counsel requested that Plaintiff provide responses to the RPD, SI, RFA, and FI by the following Monday.
(See id.)
On the same date, Plaintiff filed the instant motions to compel Ms. Prigge to provide further responses to RPD Nos.
1-6 and Mr. Prigge to provide further responses to RPD Nos. 1-6 and initial responses to the SI.
Defendants’ counsel sent Plaintiff a follow-up letter on 6 August 2014, indicating that enclosed with the letter was a
memory stick containing a copy of the documents that could be accessed through the DropBox link. (See Marks
Dec., Ex. E.)
On 21 August 2014, Plaintiff served Defendants with responses to the RPD, SI, and RFA, but did not serve
responses to the FI. (See Marks Dec., ¶ 6, Exs. G, H, and I.)
Defendants’ counsel sent a meet and confer letter to Plaintiff on 3 September 2014, regarding Plaintiff’s responses to
the SI and RPD. (See Marks Dec., Ex. J.) Defendants’ counsel indicated that Plaintiff’s responses to SI Nos. 1-8,
10-13, 15, 17, 19-20, 24, 28, and 30 and RPD Nos. 2, 4, and 7 were deficient and requested that Plaintiff respond to
his letter by that Monday to further discuss the matter. (See id.) Defendants’ counsel sent a further meet and confer
letter to Plaintiff on 4 September 2014, stating that Defendants did not receive Plaintiff’s responses to the FI. (See
Marks Dec., Ex. K.) Defendants’ counsel requested that Plaintiff provide responses to the FI by the following
Wednesday. (See id.) Plaintiff did not respond to Defendants’ counsel’s meet and confer letters. (See Marks Dec.,
¶ 8.)
On 12 September 2014, Defendants filed the instant motion to compel Plaintiff to provide initial responses to FI Nos.
310.1, 314.1, 314.2, 314.3, 314.4, 314.5, 314.6, 314.7, 321.1, 321.2, 321.3, 321.4, 321.5, 321.6, 321.7, 321.8, 321.9,
321.10, 321.11, 321.12, 321.13, and 326.1, and further responses to SI Nos. 1-8, 10, 13, 17, and 30 and RPD Nos.
2, 4, and 7. 22
22
The Court notes that Defendants’ memorandum of points and authorities also references SI Nos. 11, 12, 15, 19-20,
III.
Discussion
A. Plaintiff’s Motion to Compel Ms. Prigge to Provide Further Responses to the RPD
Plaintiff moves to compel further responses to RPD Nos. 1-6 on the grounds that Ms. Prigge’s objections are without
merit and her substantive responses are deficient.
1.
Separate Statement
As a preliminary matter, Ms. Prigge argues that the Court should deny the instant motion because Plaintiff’s separate
statement is deficient. Ms. Prigge asserts that Plaintiff’s separate statement is deficient because it does not include
the text of the actual responses to each of the requests at issue or a factual and legal explanation for compelling
further responses.
California Rules of Court, rule 3.1345(c) provides that “[t]he separate statement must include-for each discovery
request … to which a further response, answer, or production is requested-the following: (1) [t]he text of the request,
interrogatory, question, or inspection demand; (2) [t]he text of each response, answer, or objection, and any further
responses or answers; [and] (3) [a] statement of the factual and legal reasons for compelling further responses,
answers, or production as to each matter in dispute.” (See Cal. Rules of Court, rule 3.1345(c)(1)(2)(3).)
Here, Plaintiff’s separate statement does not comply with California Rules of Court, rule 3.1345(c) because it fails to
include the text of Ms. Prigge’s responses to RPD Nos. 1-6. However, Ms. Prigge attached a copy of her responses
to the requests as exhibit C to the declaration of David Marks filed in support of her opposition to the instant motion.
Thus, the omission of the text of Ms. Prigge’s responses to the RPD from the separate statement does not prevent
the Court from evaluating the sufficiency of Ms. Prigge’s responses. Moreover, Plaintiff’s separate statement does
set forth factual and legal reasons for compelling further responses to the RPD as it states that Plaintiff’s objections
to the requests are without merit and Plaintiff’s substantive responses are deficient. Additionally, the purported
deficiencies in the separate statement did not prevent Defendants from filing a substantive opposition to the motion.
Accordingly, the Court will overlook any defects in the separate statement and address the merits of the motion.
2.
Legal Standard
If a party demanding a response to a request for production of documents deems that a statement of compliance with
the demand is incomplete, a representation of inability to comply is inadequate, incomplete, or evasive, or an
objection in the response is without merit or too general, that party may move for an order compelling further
response. (See Code Civ. Proc., § 2031.310, subd. (a).) On a motion to compel further responses to requests for
production, it is the moving party’s burden to demonstrate good cause for the discovery sought. (See Kirkland v.
Super. Ct. (2002) 95 Cal.App.4th 92, 98.) This requires demonstrating both relevance to the subject matter and
specific facts justifying discovery. (See id.) Once good cause has been shown, the burden shifts to the responding
party to justify any objections or failure to provide a code-compliant response. (See id. at 98.)
3.
Good Cause
To establish “good cause,” the moving party must show both relevance to the subject matter (e.g., how the
information in the documents would tend to prove or disprove some issue in the case) and specific facts justifying
discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). (See Glenfed
Develop. Corp. v. Super. Ct. (1997) 53 Cal.4th 1113, 1117; see also Gonzalez v. Super. Ct. (1995) 33 Cal.App.4th
1539, 1546 [information is “relevant to the subject matter” if it might reasonably assist a party in evaluating the case,
preparing for trial, or facilitating settlement].) Any doubt is generally resolved in favor of discovery. (See Colonial Life
& Acc. Ins. Co. v. Super. Ct. (1982) 31 Cal.3d 785, 790.)
RPD Nos. 1-6 ask Ms. Prigge to produce: all communications between Defendants and Plaintiff relating to any
agreements between the parties; all communications between Defendants and Plaintiff relating to the services
24, and 28. (See Defendants’ Mem. Ps & As., p. 3:13-16.) However, in their notice of motion and “Introduction”
section to the memorandum of points and authorities, Defendants list the SI that they seek to compel further
responses to and SI Nos. 11, 12, 15, 19-20, 24, and 28 are not included. (See Notice of Motion, p. 2:7-8; see also
Defendants’ Mem. Ps & As., p. 1:24.) Furthermore, Defendants’ separate statement does not address SI Nos. 11, 12,
15, 19-20, 24, and 28. Thus, it appears that those requests are not at issue in Defendants’ motion.
performed by Plaintiff on Defendants’ behalf between 1 January 2013 and the present; all contracts, communications,
and/or documents between Defendants and any third parties, including subcontractors and/or general contractors,
relating to improvements or construction performed at the Property; all documents between Defendants and any third
parties relating to the causes of action set forth in the complaint.
While Plaintiff does not make an explicit effort to demonstrate good cause, the relevancy of the materials sought by
the RPD is readily apparent. In his complaint, Plaintiff alleges that the parties entered into an oral contract providing
that Defendants would pay Plaintiff for the work that he performed on the Property as their general contractor,
construction supervisor, and sub-contractor. Thus, the documents sought by the RPD are relevant to establish
whether there was any agreement and/or contract between the parties, as well as the nature and extent of the
services performed by Plaintiff.
Accordingly, there is good cause for the discovery sought by the RPD.
4.
Sufficiency of the Responses
a.
Objections
In response to RPD Nos. 1-6, Ms. Prigge objected to the requests on the grounds of attorney-client privilege and
work product doctrine. Ms. Prigge further objected to RPD Nos. 4-6 on the grounds that the requests are overbroad,
burdensome, and not likely to lead to the discovery of admissible evidence.
Ms. Prigge does not attempt to justify any of her objections in her opposition papers, but does indicate that some
documents were withheld from production based on the attorney-client privilege and work product doctrine.
Since Ms. Prigge does not attempt to defend her objections to the requests as overbroad, burdensome, and not likely
to lead to the discovery of admissible evidence, the Court finds that those objections are without merit. (See Coy v.
Super. Ct. (1962) 58 Cal. 2d. 210, 220-221.)
However, unlike objections to the form of a discovery request, objections based on the attorney-client privilege and
work product doctrine are not so easily disposed. (See Best Products, Inc. v. Super. Ct. (2004) 119 Cal.App.4th
1181, 1188-1189 [holding that where a defendant asserted the attorney-client and work product privileges in a timely
manner, albeit in a boilerplate fashion, the trial court erred in finding a waiver of the privileges].) Thus, while Ms.
Prigge’s unsupported objections based on the attorney-client privilege and work product doctrine do not warrant the
denial of Plaintiff’s motion to compel further responses, the objections are nonetheless preserved. (See id.)
b.
Substantive Responses
Ms. Prigge provided substantive responses to RPD Nos. 1-3, stating that she “produced non-privilege documents into
a dropbox which can be found at: https://www.dropbox.com/sh/qq3gb80ajbsbpt7/AADzcA0GhZ0_sEBov3Gfa10Ja.”
(Marks Opp’n. Dec., Ex. C, p. 3:18-20.)
Plaintiff argues that Ms. Prigge’s substantive responses are deficient because the DropBox link purportedly
containing various non-privileged documents will not open and is defective. Ms. Prigge does not directly address
Plaintiff’s assertion, but states that her counsel provided Plaintiff with a thumb drive containing all of the documents
that were in the DropBox on 6 August 2014.
Even assuming arguendo that Ms. Prigge has now produced on the thumb drive all non-privileged documents that
were contained in the DropBox, Ms. Prigge’s statement of compliance is incomplete. Ms. Prigge states only that she
has produced non-privileged documents and does not state that she agrees to comply with the requests or that the
documents that were produced, to which no objection was made, constitute all such documents in her possession,
custody, or control. (See Code Civ. Proc., §§ 2031.210, subd. (a)(1), 2031.220 [“A statement that the party to whom
a [request for production of documents] … has been directed will comply with the particular demand shall state that
the production … will be allowed either in whole or in part, and that all documents or things in the demanded category
that are in the possession, custody, or control of that party and to which no objection is being made will be included in
the production.”], 2031.310, subd. (a)(1).)
c.
Conclusion
As all of Ms. Prigge’s objections to RPD Nos. 1-6 are overruled (except for attorney-client privilege and attorney work
product doctrine, which have been preserved) and her substantive responses to RPD Nos. 1-3 are incomplete,
further responses are warranted to the requests. Accordingly, Plaintiff’s motion to compel Ms. Prigge to provide
further responses to RPD Nos. 1-6 is GRANTED.
5.
Requests for Monetary Sanctions
Both Plaintiff and Ms. Prigge request monetary sanctions in connection with the instant motion.
a.
Plaintiff’s Request
Plaintiff requests monetary sanctions in his memorandum of points and authorities in the amount of $350 against
Defendants pursuant to “California Rule of Court, rule 341” and Code of Civil Procedure sections “2023” and “2031.”
Plaintiff’s request for monetary sanctions is defective because his notice of motion does not state that he is
requesting any type of sanctions whatsoever. (See Code Civ. Proc. § 2023.040 [a request for sanctions must be
made in the notice of motion, identifying every person, party, and attorney against whom the sanction is sought, and
specify the type of sanction.].) Additionally, the authorities cited by Plaintiff as the basis for his request for sanctions
do not exist. 23 Accordingly, Plaintiff’s request for monetary sanctions is DENIED.
b.
Ms. Prigge’s Request
Ms. Prigge requests monetary sanctions in the amount of $2,125 pursuant to Code of Civil Procedure section
2031.310, subdivision (h). That statute provides that the “court shall impose a monetary sanction … against any
party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand,
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., § 2031.310, subd. (h).) Here, Plaintiff was successful
on his motion to compel further responses to the RPD and, thus, Ms. Prigge is not entitled to monetary sanctions.
Accordingly, Ms. Prigge’s request for monetary sanctions is DENIED.
B. Plaintiff’s Motion to Compel Mr. Prigge to Provide Further Responses to the RPD and Initial
Responses to the SI
As a threshold matter, while Plaintiff filed the instant motion on 4 August 2014, the same day that he filed his motion
with respect to Ms. Prigge’s responses to the RPD, it does not appear that Plaintiff served Mr. Prigge with a copy of
the same.
The proof of service that Plaintiff filed with the Court on 21 August 2014, states that on 20 August 2014, the following
documents were served on Defendants’ counsel: “Notice of Motion and Motion Compelling Further Responses to
Request for Production of Documents; Declaration of Plaintiff; Memorandum of Points and Authorities; [and] Plaintiff’s
Separate Statement of Items in Dispute.” Notably, Plaintiff’s motion pertaining to Ms. Prigge’s responses to the RPD
is titled “Notice of Motion and Motion Compelling Further Responses to Request for Production of Documents” (see
Plaintiff’s Motion as to Ms. Prigge, Notice of Motion, p. 1), while his motion pertaining to Mr. Prigge’s responses to the
RPD and SI is titled “Notice of Motion and Motion Compelling Further Responses to Request for Production of
Documents and Answers to Special Interrogatories.” (See Plaintiff’s Motion as to Mr. Prigge, Notice of Motion, p. 1.)
Thus, the proof of service that was filed with the Court does not demonstrate that the instant motion was served on
Mr. Prigge. Plaintiff has not filed any other proof of service with the Court, indicating that he has served his moving
papers on Mr. Prigge. Moreover, the Court’s belief that Plaintiff failed to serve Mr. Prigge with the instant motion is
supported by the fact that the opposition that was filed by Defendants on 29 September 2014, addresses only
Plaintiff’s motion to compel Ms. Prigge to provide further responses to the RPD.
Since Mr. Prigge has apparently not been served with the instant motion, the Court will continue the hearing on the
same to 14 November 2014, so Plaintiff may serve Mr. Prigge with his moving papers.
23
It appears that Plaintiff is providing incomplete citations to provisions of the Code of Civil Procedure and/or is
citing to old rules and statutes that have since been renumbered. (See e.g., Cal. Rules of Court, rule 3.1348(a); see
e.g., Code Civ. Proc., §§ 2023.030, 2031.310, subd. (h).)
Upon review of Plaintiff’s moving papers, the Court notes that Plaintiff states that Mr. Prigge failed to serve him with
any responses to the SI, but the proof of service filed in connection with Defendants’ opposition to Plaintiff’s motion to
compel Ms. Prigge to provide further responses to the RPD clearly indicates that Plaintiff was served with Mr.
Prigge’s responses to the SI on 19 June 2014. (See Marks Opp’n. Dec., Ex. C.) The Court encourages the parties
to meet and confer regarding the service of Mr. Prigge’s responses to the SI as it appears that they may have been
served on Plaintiff on 19 June 2014.
Additionally, the Court wants to call to Plaintiff’s attention the fact that his separate statement does not comply with
California Rules of Court, rule 3.1345(c)(2) because it does not contain the text of Mr. Prigge’s “response, answer, or
objection” to the RPD that are the subject of the instant motion. (See Cal. Rules of Court, rule 3.1345(c)(2) [“[t]he
separate statement must include-for each discovery request … to which a further response, answer, or production is
requested-… [t]he text of each response, answer, or objection, and any further responses or answers”].)
C. Defendants’ Motion to Compel responses to form interrogatories and to compel further responses
to special interrogatories
Defendants move to compel Plaintiff to provide initial responses to FI Nos. 310.1, 314.1, 314.2, 314.3, 314.4, 314.5,
314.6, 314.7, 321.1, 321.2, 321.3, 321.4, 321.5, 321.6, 321.7, 321.8, 321.9, 321.10, 321.11, 321.12, 321.13, and
326.1, and further responses to SI Nos. 1-8, 10, 13, 17, and 30 and RPD Nos. 2, 4, and 7. Plaintiff does not oppose
the instant motion.
1.
The FI
Defendants argue that the Court should compel Plaintiff to provide initial responses to FI Nos. 310.1, 314.1, 314.2,
314.3, 314.4, 314.5, 314.6, 314.7, 321.1, 321.2, 321.3, 321.4, 321.5, 321.6, 321.7, 321.8, 321.9, 321.10, 321.11,
321.12, 321.13, and 326.1 because, as of the date of the filing of the instant motion, he had not served them with the
same.
a.
Legal Standard
If a party fails to serve timely responses to interrogatories, the propounding party may move for an order compelling
initial responses. (See Code Civ. Proc., § 2030.290, subd. (b).) Additionally, there is no time period during which
motions to compel initial responses must be filed (see id.), and no requirement that the moving party meet and confer
prior to filing the motion. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148
Cal.App.4th 390, 403-404.) The moving party need only show that the discovery was properly served and a timely
response was not provided. (See id.)
b.
Analysis
Defendants assert that they served Plaintiff with the FI on 29 May 2014, and pursuant to the parties’ agreement his
responses to the requests were due on 17 July 2014. (See Marks Dec., ¶¶ 2-4.) Defendants provide the Court with
a signed proof of service showing that the FI were served on Plaintiff on 29 May 2014. (See Marks Dec., Ex. E.)
Defendants further assert that their counsel sent Plaintiff meet and confer letters on 4 August 2014 and 4 September
2014, indicating that they did not receive Plaintiff’s responses to the FI. However, Plaintiff failed to provide any
responses to the FI. (See Mem. Ps & As., p. 3:21-24.)
Defendants have established that the FI were properly served on Plaintiff and Plaintiff failed to provide a timely
response.
Accordingly, Defendants’ motion to compel initial responses to FI Nos. 310.1, 314.1, 314.2, 314.3, 314.4, 314.5,
314.6, 314.7, 321.1, 321.2, 321.3, 321.4, 321.5, 321.6, 321.7, 321.8, 321.9, 321.10, 321.11, 321.12, 321.13, and
326.1 is GRANTED.
2.
The SI
Defendants move to compel Plaintiff to provide further responses to SI Nos. 1-8, 10, 13, 17, and 30 on the grounds
that his objections to the requests are without merit and his substantive responses to the requests are deficient.
a.
Legal Standard
If a party demanding a response to an interrogatory deems an answer to a particular interrogatory to be incomplete
or evasive, or an objection to be without merit or too general, that party may move for an order compelling further
response. (See Code Civ. Proc., § 2030.300.) The objecting party bears the burden of explaining and justifying any
objection to the request. (See Fairmont Ins. Co. v. Super. Ct. (2000) 22 Cal 4th 245, 255, citing Coy v. Super. Ct.
(1962) 58 Cal. 2d. 210, 220-221.)
b.
Objections
Plaintiff’s responses to the SI were due on 17 July 2014, but Plaintiff did not serve Defendants with his responses
until 21 August 2014. (See Marks Dec., ¶ 6, Exs. G, H, and I.) Therefore, Plaintiff’s responses to the SI were
untimely and all of his objections to the SI are waived. (See Code Civ. Proc., § 2030.290, subd. (a).)
Additionally, even if Plaintiff’s objections were not waived, Plaintiff did not file an opposition to the instant motion or
otherwise attempt to defend his objections, and undefended objections are without merit. (See Coy v. Super. Ct.,
supra, 58 Cal. 2d. at pp. 220-221.)
c.
SI Nos. 1 and 6 asks Plaintiff to describe in detail all of the tasks that he performed for Defendants as a general
contractor and/or construction supervisor. In response to the requests, Plaintiff provided identical responses stating
that he: installed a temporary fence; “secured the residence;” resolved issues and answered questions from the
owners and subcontractors; checked the work and installations performed by all subcontractors; met with all new
subcontractors; generally advised the owners “as to related decisions;” and met with utility representatives, the city
inspector, and bank inspector as necessary. (Sep. Stmt., p. 3:8-15.)
Defendants argue that Plaintiff’s responses to the requests are incomplete because they are too general and “lack
dates, times, persons involved, work supervised, etc.” (Sep. Stmt., p. 3:17-19.) Defendants assert that the Court
should compel Plaintiff to provide a more detailed response.
Defendants persuasively argue that Plaintiff’s responses to the requests are incomplete as the SI ask Plaintiff to
describe in detail all of the tasks that he performed for Defendants as a general contractor and/or construction
supervisor, but Plaintiff’s responses provide only vague and general descriptions of the tasks that he performed.
Thus, further responses to SI Nos. 1 and 6 are warranted.
SI Nos. 2-3 and 7-8 ask Plaintiff to: identify the specific dates he worked for Defendants as a general contractor and
the number of hours he worked on each of those days; state how many unpaid hours he worked for Defendants as a
general contractor; identify the specific dates he worked for Defendants as a construction supervisor and the number
of hours that he worked on each of those days; and state how many unpaid hours he worked for Defendants as a
construction supervisor.
In response to the requests, Plaintiff provided virtually identical responses stating: “Specific dates and hours
unknown, however, Plaintiff generally worked for Defendants in this work of improvement, etc., between 05/13 and
11/13/ Plaintiff was at the job site on average for four (4) hours per day and was available all day by phone or email.
Plaintiff also communicated with the owners and subcontractors daily.” (Sep. Stmt., p. 6:9-13.)
Defendants argue that Plaintiff’s responses to SI Nos. 2-3 and 7-8 are incomplete. Defendants contend that it is
impossible that a general contractor and/or construction supervisor would not know when they are at the site.
Defendant asserts that since Plaintiff is asking for compensation for the work that he completed “[h]e must have
some support for this claim” and must state the number for unpaid hours that he worked for Defendants as a general
contractor and/or construction supervisor. (Sep. Stmt., p. 4:13-14.) Defendants further contend that the responses
are incomplete because Plaintiff did not state that he cannot answer the requests or that he looked for calendars,
journals, or any other documents that might contain the responsive information.
Code of Civil Procedure section 2030.220 provides that: each answer in a response to interrogatories shall be as
complete and straightforward as the information reasonably available to the responding party permits; if an
interrogatory cannot be answered completely, it shall be answered to the extent possible; if the responding party
does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall
make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations,
except where the information is equally available to the propounding party.
Plaintiff’s responses to SI Nos. 2-3 and 7-8 are code-compliant as Plaintiff clearly states that he does not know the
specific dates or number of hours that he worked for Defendants, and Plaintiff attempts to provide Defendants with
his best estimate of the same. While Defendants believe that it is impossible that Plaintiff cannot recall or does not
have the requisite information to provide the specific information requested by the SI, this is not a basis on which a
further response can be compelled. Furthermore, Plaintiff is not required to state that he looked in specific
documents to locate the responsive information as Code of Civil Procedure section 2030.220 only requires Plaintiff to
make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations.
Thus, further responses to SI Nos. 2-3 and 7-8 are not warranted.
SI No. 4 asks Plaintiff to identify all documents that support his contention that he was hired to and worked for
Defendants as a general contractor. In response to the request, Plaintiff stated that “[v]arious emails which are
attached to Plaintiff’s Response to Request for Production of Documents reflect that the owner referred to Plaintiff as
‘our the [sic] General Contractor’ to many third persons on multiple occasions.” (Sep. Stmt., p. 4:18-21.)
Defendants persuasively argue that Plaintiff’s response is incomplete and evasive because Plaintiff does not identity
specific documents that are responsive to the request, but instead refers Defendants to various emails that were
produced in response to the RPD. (See Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 784 [a broad statement that
information is available from a mass of documents is an insufficient response to an interrogatory].) Thus, a further
response to SI No. 4 is warranted.
SI Nos. 5 and 10 ask Plaintiff to identify the witnesses that support his contention that he was hired to and worked for
Defendants as a general contractor and/or construction supervisor. In response to the requests, Plaintiff provided
identical responses stating that “[m]any sub-contractors whom worked on the subject job, however Defendants have
refused to provide the names, addresses or telephone numbers of said parties.” (Sep. Stmt., p. 5:1-3.)
Defendants argue that Plaintiff’s responses to the requests are evasive and incomplete because Plaintiff only
generally identifies many subcontractors and does not provide the specific names or contact information for the
responsive persons. Defendants contend that a general contractor and/or construction supervisor would have the
names, addresses, or telephone numbers of his subcontractors.
Here, Plaintiff’s responses to SI Nos. 5 and 10 are incomplete because Plaintiff does not state that he does not have
personal knowledge sufficient to respond fully to an interrogatory, but states only that Defendants have refused to
provide information about the subcontractors. (See Code Civ. Proc., § 2030.220.) Thus, further responses are
warranted to SI Nos. 5 and 10.
SI No. 13 asks Plaintiff to state how many hours he worked for Defendants as a subcontractor. In response to the
request, Plaintiff stated that “[o]ver a period of two (2) weeks, approximately forty (40) hours per week,” which
“included [his] and/or his employee’s time, as well as the use of heavy equipment.” (Sep. Stmt., p. 6:3-5.)
Defendants argue only that they “must know the dates, times and amount of time claimed in order to defend”
themselves. (Sep. Stmt., p. 7:7.)
Plaintiff’s response to SI No. 13 is code-complaint because he states that he worked as a subcontractor for
Defendants for a period of two weeks and worked approximately 40 hours per week over that period of time. As the
request only asks Plaintiff for the number of hours that he worked for Defendants as a subcontractor, he was not
obligated to list the dates and times on which his work as a subcontractor was performed. Thus, a further response
to SI No. 13 is not warranted.
SI No. 17 asks Plaintiff if his California contractor’s license number has ever expired and, if so, to state when and
why it expired. In response to the request, Plaintiff stated that during the time that he acted as a general contractor
for Defendants his license was not expired and it is irrelevant whether his license ever expired prior to that time.
Defendants persuasively argue that Plaintiff’s response to the request is incomplete because Plaintiff does not state
whether his contractor’s license ever previously expired and withholds that information on the basis of his meritless
objection. Thus, a further response to SI No. 17 is warranted
SI No. 30 asks Plaintiff to list the dates and types of inspections of the Property that he was present for. In response
to the request, Plaintiff states that he was present for multiple inspections, but he is unaware of exact dates “as
Defendants are in possession of such inspection cards.” (Sep. Stmt., p. 7:20-22.)
Defendants argue that Plaintiff’s response to the request is incomplete because he does not provide the dates and
types of inspections that he was present for.
Plaintiff’s statement that he is unaware of the exact dates on which he was present for inspections of Defendants’
property is sufficient statement of inability to comply with the request based on a lack of personal knowledge to the
extent that it requests specific dates. However, Plaintiff’s response to the request is incomplete because he does not
state the type of inspections that he was present for. Thus, a further response is warranted to SI No. 30.
d.
Conclusion
Accordingly, Defendants’ motion to compel Plaintiff to provide further responses to SI Nos. 1-8, 10, 13, 17, and 30 is
GRANTED IN PART and DENIED IN PART. The motion is DENIED as to SI Nos. 2-3, 7-8, and 13. The motion is
GRANTED as to SI Nos. 1, 4-6, 10, 17, and 30.
D. Defendants’ Motion to Compel Plaintiff to Provide Further Responses to The RPD
Defendants move to compel Plaintiff to provide further responses to RPD Nos. 2, 4, and 7 on the ground that his
substantive responses are evasive.
1.
Legal Standard
If a party demanding a response to a request for production of documents deems that a statement of compliance with
the demand is incomplete, a representation of inability to comply is inadequate, incomplete, or evasive, or an
objection in the response is without merit or too general, that party may move for an order compelling further
response. (See Code Civ. Proc., § 2031.310, subd. (a).) On a motion to compel further responses to requests for
production, it is the moving party’s burden to demonstrate good cause for the discovery sought. (See Kirkland v.
Super. Ct. (2002) 95 Cal.App.4th 92, 98.) This requires demonstrating both relevance to the subject matter and
specific facts justifying discovery. (See id.) Once good cause has been shown, the burden shifts to the responding
party to justify any objections or failure to provide a code-compliant response. (See id. at 98.)
2.
Good Cause
To establish “good cause,” the moving party must show both relevance to the subject matter (e.g., how the
information in the documents would tend to prove or disprove some issue in the case) and specific facts justifying
discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). (See Glenfed
Develop. Corp. v. Super. Ct. (1997) 53 Cal.4th 1113, 1117; see also Gonzalez v. Super. Ct. (1995) 33 Cal.App.4th
1539, 1546 [information is “relevant to the subject matter” if it might reasonably assist a party in evaluating the case,
preparing for trial, or facilitating settlement].) Any doubt is generally resolved in favor of discovery. (See Colonial Life
& Acc. Ins. Co. v. Super. Ct. (1982) 31 Cal.3d 785, 790.)
RPD Nos. 2, 4, and 7 ask Plaintiff to produce all documents relating to any work that he performed for Mr. Prigge as
a general contractor and/or construction supervisor, as well as all communications between Plaintiff and Defendants.
While Defendants do not make an explicit effort to demonstrate good cause, the relevancy of the materials sought by
the RPD is readily apparent. Plaintiff is claiming that Defendants failed to pay him for various work performed on the
Property as a general contractor and/or construction supervisor and, thus, any communications between the parties
or documents relating to the work that Plaintiff performed are relevant to establish the nature and extent of the work
that Plaintiff performed and the amount of damages he allegedly suffered.
Accordingly, there is good cause for the discovery sought.
3.
As indicated above, RPD Nos. 2, 4, and 7 ask Plaintiff to produce all documents, including invoices, relating to any
work that he performed for Mr. Prigge as a general contractor and/or construction supervisor and all communications
between Plaintiff and Defendants.
In response to the requests, Plaintiff provided identical responses stating: “Attached are associated email
communications between the parties which were generated between June and November of 2013. Plaintiff has no
other responsive documentation at this time, however, reserves his right to supplement and/or amend this Response
in the future to add further applicable documentation which may be determined to exist.” (Sep. Stmt., p. 2:1-5.)
Defendants assert that Plaintiff’s substantive responses are evasive because the RPD ask for invoices, but Plaintiff
did not produce any invoices in response to the RPD and Plaintiff states that he only has the email communications
that were produced. Defendants argue that Plaintiff admitted in his responses to special interrogatories that invoices
exist and he should be required to produce the same. Specifically, in response to SI No. 31, which asked Plaintiff to
why he sent numerous invoices in 2013 without mentioning general contractor fees, Plaintiff stated that he sent a few
invoices to Defendants. (See Marks Dec., Ex. I, p. 6:19-22.)
Code of Civil Procedure section 2031.220 provides that “[a] statement that the party to whom a [request for
production of documents] … has been directed will comply with the particular demand shall state that the production
… will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the
possession, custody, or control of that party and to which no objection is being made will be included in the
production.” (Code Civ. Proc., § 2031.220.) Furthermore, Code of Civil Procedure section 2031.230 provides that “[a]
representation of inability to comply with the particular demand … shall affirm that a diligent search and a reasonable
inquiry has been made in an effort to comply with that demand.” (Code Civ. Proc., § 2031.230.) “This statement
shall also specify whether the inability to comply is because the particular item or category has never existed, has
been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody,
or control of the responding party.” (Id.) In addition, “[t]he statement shall set forth the name and address of any
natural person or organization known or believed by that party to have possession, custody, or control of that item or
category of item.” (Id.)
Here, Plaintiff’s responses to RPD Nos. 2, 4, and 7 are evasive and incomplete. First, Plaintiff does not clearly state
that he will comply with the request, but merely that he is producing emails from June 2013 to November 2013.
Moreover, while Plaintiff states that the emails are the only responsive documents that he currently has, it appears
from his responses to the SI that at one point in time he also had invoices which he sent to Defendants. If Plaintiff is
unable to fully comply with the RPD because he no longer has those emails in his possession, custody, or control,
Plaintiff must state the reason for his inability to comply. Furthermore, Plaintiff is required to set forth the identity of
any persons or entities that he believes may have the invoices. Thus, further responses to RPD are warranted.
Accordingly, Defendants’ motion to compel Plaintiff to provide further responses to RPD Nos. 2, 4, and 7 is
GRANTED.
4.
Defendants’ Request for Monetary Sanctions
In their memorandum of points and authorities, Defendants request monetary sanctions against Plaintiff in the
amount of $1,700 pursuant to Code of Civil Procedure sections 2030.290, subdivision (c), 2030.300, subdivision (c),
and 2031.310, subdivision (h). However, Defendants’ request for monetary sanctions is defective because their
notice of motion does not state the type of sanctions that they are requesting or the person against whom sanctions
are sought. (See Code Civ. Proc. § 2023.040 [a request for sanctions must be made in the notice of motion,
identifying every person, party, and attorney against whom the sanction is sought, and specify the type of sanction.].)
Accordingly, Defendants’ request for monetary sanctions is DENIED.
IV. Conclusion and Order
Plaintiff’s motion to compel Ms. Prigge to provide further responses to RPD Nos. 1-6 is GRANTED. Accordingly, Ms.
Prigge shall serve verified, code-compliant further responses, without objection (except for attorney-client privilege
and attorney work product doctrine, which have been preserved) to RPD Nos. 1-6, and documents in conformity with
those responses, within 20 calendar days of the date of the filing of this Order. To the extent any documents are
withheld based upon attorney-client privilege and/or attorney work product, Ms. Prigge shall also provide a privilege
log identifying all documents withheld and providing a factual basis for the privilege claimed.
Plaintiff’s request for monetary sanction in connection with his motion to compel Ms. Prigge to provide further
responses to the RPD is DENIED.
Ms. Prigge’s request for monetary sanctions in connection with Plaintiff’s motion to compel her to provide further
responses to the RPD is DENIED.
Plaintiff’s motion to compel Mr. Prigge to provide further responses to the RPD and initial responses to the SI is
continued to 14 November 2014, at 9:00 a.m.
Defendants’ motion to compel Plaintiff to provide initial responses to FI Nos. 310.1, 314.1, 314.2, 314.3, 314.4, 314.5,
314.6, 314.7, 321.1, 321.2, 321.3, 321.4, 321.5, 321.6, 321.7, 321.8, 321.9, 321.10, 321.11, 321.12, 321.13, and
326.1, and further responses to SI Nos. 1-8, 10, 13, 17, and 30 and RPD Nos. 2, 4, and 7 is DENIED IN PART and
GRANTED IN PART. The motion is DENIED as to the request to compel further responses to SI Nos. 2-3, 7-8, and
13. The motion is GRANTED as to the request to compel initial responses to FI Nos. 310.1, 314.1, 314.2, 314.3,
314.4, 314.5, 314.6, 314.7, 321.1, 321.2, 321.3, 321.4, 321.5, 321.6, 321.7, 321.8, 321.9, 321.10, 321.11, 321.12,
321.13, and 326.1, and further responses to SI Nos. 1, 4-6, 10, 17, and 30 and RPD Nos. 2, 4, and 7. Accordingly,
Plaintiff shall serve verified, code-compliant initial responses to FI Nos. 310.1, 314.1, 314.2, 314.3, 314.4, 314.5,
314.6, 314.7, 321.1, 321.2, 321.3, 321.4, 321.5, 321.6, 321.7, 321.8, 321.9, 321.10, 321.11, 321.12, 321.13, and
326.1, without objections, and verified, code-compliant further responses to SI Nos. 1, 4-6, 10, 17, and 30 and RPD
Nos. 2, 4, and 7, without objections, and documents in conformity with those responses, within 20 calendar days of
the date of the filing of this Order.
Defendants’ request for monetary sanctions in connection with their motion is DENIED.
____________________________
DATED:
_________________________________________________
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SUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF SANTA CLARA

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