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) 882.2310 before 4:00 P.M.
DISCOVERY TENTATIVE RULINGS
DATE: January 16, 2015
TIME: 9:00 A.M.
PREVAILING PARTY SHALL PREPARE THE ORDER
(SEE RULE OF COURT 3.1312)
LINE #
CASE #
CASE TITLE
RULING
LINE 1
111CV204991 A. Himmler vs L. Giles
Click line 1 for tentative ruling
LINE 2
111CV206163 P. Behm vs Clear View
Technologies
112CV230794 Dolby Laboratories
Licensing vs Arcsoft
112CV230812 P. Fernandez vs P. Sahota
112CV234911 B. Thibadeau vs City of
Cupertino
112CV237529 E. Vaden vs Outfitter
Ventures
Click line 2 for tentative ruling
LINE 3
LINE 4
LINE 5
LINE 6
LINE 7
LINE 8
LINE 9
LINE 10
LINE 11
LINE 12
LINE 13
LINE 14
Click line 3 for tentative ruling
OFF CALENDAR
Click line 5 for tentative ruling
OFF CALENDAR on Courts own Motion
Motion pending before Judge Overton.
113CV242094 H. Domeniconi vs J.
OFF CALENDAR
Norton
113CV250091 M. Landino vs R. Spatola Click line 8 for tentative ruling
113CV251835 H. Gil vs X. Wu
Click line 9 for tentative ruling
113CV254835 ELSV, LLC vs B. Ko, et al Click line 10 for tentative ruling
113CV257093 Collectronics, Inc. v. Nick Click line 11 for tentative ruling
James Stanley, et al.
114CV263042 J. Garcia vs M. Brown
114CV264667 M. Voskerician vs M.
Zuckerberg
114CV266238 N. Tieu vs N. Tieu
Click line 12 for tentative ruling
Click line 13 for tentative ruling
Click line 14 for tentative ruling
LINE 15
114CV267301 Canada Mortgage and
OFF CALENDAR
Housing Corporation vs Al
Burgio
LINE 16
114CV268791 S. Deac vs S. Talla, et al
LINE 17
LINE 18
LINE 19
114CV269024 J. Corona vs J. Cai
Click line 17 for tentative ruling
112CV224340 D. Tinucci vs G. Pieracci OFF CALENDAR
112CV236494 M. Palacios Pacheco vs
OFF CALENDAR
U.S. Sino
LINE 20
113CV240935 H. Rivera vs City of
Sunnyvale
Click line 16 for tentative ruling
OFF CALENDAR
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) 882.2310 before 4:00 P.M.
DISCOVERY TENTATIVE RULINGS
LINE 21
LINE 22
113CV241980 H. Vidal vs T. Thaure
114CV264518 L. Cross vs KLA-Tencor
Corporation
OFF CALENDAR
OFF CALENDAR
LINE 23
114CV265454 Netapp Inc. vs Nimble
OFF CALENDAR
Storage
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114CV266573 L. Varteression vs J. Lund OFF CALENDAR
114CV266996 A. Orozco vs T. Buckner OFF CALENDAR
113CV256853 E. Hinojos vs Asset
Check back at 4:30 p.m.
Ventures, LLC
Calendar line 1
SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
DEPARTMENT 19
161 North First Street, San Jose, CA 95113
408.882.2310 · 408.882.2299(fax)
smanoukian@scscourt.org
http://www.scscourt.org
Aaron Himmler v. Lidia Giles, Senzala, Inc.
DATE: 16 January 2015
TIME: 9:00
(For Clerk's Use Only)
CASE NO. 111CV204991
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 408.882.2310 and the opposing party no later than 4:00 PM Thursday 15
January 2015. Please specify the issue to be contested when calling the Court and counsel.
On 16 January 2015, the motion of defendant and cross-complainant Lidia Giles (“Giles”) and defendant Senzala,
Inc. (collectively “Defendants”) to set aside order granting terminating sanctions was argued and submitted.
Plaintiff Aaron Himmler (“Plaintiff”) filed formal opposition to the motion.
Defendants are reminded that all papers must comply with Rule of Court 3.1110(f).1
I.
Statement of Facts.
According to the allegations of Plaintiff’s complaint, Defendant Giles operated a restaurant business (“Senzala
Brazilian Restaurant”) at 250 E. Java Drive, Sunnyvale, California. Around September 2010, Giles offered Plaintiff a
business opportunity to open and operate a bar on the premises of the restaurant. The initial arrangement was for
Plaintiff to own and operate the bar business. He was later presented with a draft agreement proposing a partnership
between Plaintiff, Giles, and another person in relation to the bar and restaurant businesses. The draft agreement
was never signed. Giles later promised to make Plaintiff a shareholder in Senzala, Inc. That never materialized
either.
Plaintiff started bartending at the restaurant beginning the end of October 2010, which lasted until the end of March
2011. In the course of this time, Plaintiff spent a total of $62,700 in the form of direct advances to Giles, purchase of
supplies and furniture, and other expenses related to the bar business. Part of the money was for the purpose of
securing a hard liquor license, since the restaurant only had license to sell beer and wine. Giles never obtained the
license.
Plaintiff also alleged that the restaurant’s daily revenue averaged between $500 and $1000 per day, with even higher
revenues whenever the restaurant hosted special events. Giles took and kept all the revenues and never shared any
part of it with Plaintiff. Nor did she account for Plaintiff, or allowed him access to the books and records of the
restaurant. Giles made all the decisions regarding the restaurant business including the bar.
On 7 October 2010, Plaintiff filed a complaint alleging seven causes of action against both Defendants. Plaintiff
sought to recover the $62,700, compensation for work, labor, and services rendered, damages for breach of duty of
loyalty, dissolution of the partnership, if any was formed, and other remedies.
“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 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.”
1
Despite a grant of extension by Plaintiff, Defendants failed to file an answer to the complaint and were defaulted on15
September 2011. Plaintiff later stipulated to set aside the default and both Defendants filed a joint answer on 7
October 2011. At the same time, Giles alone filed a cross-complaint against Plaintiff alleging breach of oral contract
and conversion causes of action. Plaintiff filed an answer to the cross-complaint on 26 October 2011.
On 15 May 2014, the Court imposed terminating sanctions against both Defendants for failure to comply with the
Court’s discovery order of 28 February 2014. Defendants’ answer and Giles’ cross-complaint were stricken, and
Defendants’ default was ordered to be entered. On 20 October 2014, Plaintiff obtained a default judgment against
Defendants for the total amount of $94,416.14.
II.
Background to the Terminating Sanctions Order.
On 9 January 2014, Plaintiff filed a motion to compel Defendants' responses to the first sets of form and special
interrogatories and request for production of documents, and for monetary sanction. The motion was scheduled to be
heard on 28 February 2014.
On 27 February 2014, the Court duly posted a tentative ruling granting the motion to compel responses, and denying
the request for monetary sanction. Defendants did not file formal opposition to the motion. Nor did they object to the
tentative ruling. On 28 February 2014, no appearances having been made at the hearing, the Court adopted the
tentative ruling by minute order. On the same day, the Hon. Judge Manoukian signed a formal order, which was filed
and served on all parties by the Court Clerk on 3 March 2014. The Order required Defendants to serve their
discovery responses within 20 days of the date of the Order.
On 21 April 2014, having received no responses from Defendants in compliance with the Court Order, Plaintiff filed a
motion for terminating and monetary sanctions. In particular, Plaintiff requested the Court for an order striking the
answer filed by both defendants, dismissing the cross-complaint filed by Giles, entering the defaults of both
defendants, and imposing monetary sanction against both defendants. The motion was scheduled to be heard on 15
May 2014.2 On 14 May 2014, the Court duly posted a tentative ruling granting the motion as requested. Defendants
did not file a formal opposition to the motion. Nor did they object to the tentative ruling.
On 15 May 2014, no appearances having been made at the hearing, the Court adopted the tentative ruling by minute
order. On 19 May 2014, the Hon. Judge Manoukian signed a formal order, which was filed and served on all parties
by the Court Clerk on 21 May 2014. Subsequently, Plaintiff prepared and submitted a similar order by incorporating
the Court's tentative ruling, which was signed on 28 May 2014 and filed on 2 June 2014. There is no record on the
Court file showing that Plaintiff served this order on Defendants.
On 11 June 2014, based upon the order filed on 21 May 2014, the Court Clerk entered the default of both
defendants. (See "Request for Default" filed by Plaintiff on 11 June 2014, to which was attached an endorsed filed
copy of the order filed on 21 May 2014.) After a default prove-up hearing was conducted on 20 October 2014, the
Court entered a default judgment in favor of Plaintiff and against Defendants.
On 26 November 2014, Defendants filed the current motion to set aside the order granting terminating sanctions
against them, on the grounds of mistake, inadvertence, excusable neglect and attorney error. In addition to the notice
of motion, Defendants submitted a memorandum of points and authorities and the declarations of Lidia Giles and
Robert J. Anderson, Esq. in support of the motion.
On 29 December 2014, Plaintiff filed a formal opposition supported by a memorandum of points and authorities and
the declaration of Marlis McAllister, Esq.
Defendants did not file a reply to Plaintiff’s opposition.
The original hearing date was 16 May 2014. Due to judicial unavailability, the date was advanced to 15 May 2014. All parties
were duly notified of the new date.
2
III.
Analysis.
The main arguments presented by Defendants in support of their motion to set aside the order for terminating
sanctions can be summarized as follows: 1) Defendants have complied with the Court’s initial discovery order by
serving responses to form and special interrogatories on 14 May 2014, two days prior to the date set for the hearing
of the motion for terminating sanctions. Counsel for Defendants intended to attend the hearing for terminating
sanctions and notify the Court of Defendants’ compliance, but failed to do so because he was accidentally locked out
of the courtroom. By the time Defendants’ counsel was able to re-enter the courtroom, the case was already called
and the tentative ruling was adopted. 2) Defendants were unable to timely respond to the discovery requests,
because Giles was away for a period of months due to death and illness in the family. She was not available to assist
counsel in preparing the discovery responses until her return to California around the middle of March 2014.
On the other hand, Plaintiff argues that Defendants should not be granted relief from the terminating sanctions for the
following reasons: 1) Defendants’ motion is not timely, because it was not filed within six months of entry of the order
for terminating sanctions. 2) Defendants continued to the present day to fail to comply with the Court’s initial
discovery order. They have never either served responses to the requests for production of documents or produced
the documents requested. 3) Defendants have engaged in a long-term pattern and practice of flaunting the Discovery
Act and refusing to comply with the Court’s discovery order. As a result, they cannot demonstrate the mistake,
inadvertence, surprise or neglect necessary to obtain the relief they seek.
The Court will first address the issue of whether Defendants’ motion is timely.
A. Legal Standard.
“A court may relieve a party from ‘a judgment, dismissal, order, or other proceeding taken against him or her through
his or her mistake, inadvertence, surprise, or excusable neglect.’ ([Code Civ., Proc.,] § 473, subd. (b).)3 Relief from a
default entered by the clerk or a resulting default judgment or dismissal is mandatory if a timely application for relief is
accompanied by an attorney's affidavit of fault, unless the court finds that the default or dismissal was not caused by
the attorney's mistake, inadvertence, surprise, or neglect. (Ibid.) Absent an appropriate attorney's affidavit of fault,
relief is discretionary. (Ibid.)” (Arambula v. Union Carbide Corp. (2005) 128 Cal. App. 4th 333, 340.)
“An ‘[a]pplication" for discretionary relief must be made within a reasonable time, not exceeding six months, after the
judgment, dismissal, order, or proceeding was taken. (§ 473, subd. (b).) [FN.] An “application” for mandatory relief
must be made within six months after entry of judgment. (Ibid.) [….] The six-month limit is mandatory; a court has
no authority to grant relief under section 473, subdivision (b), unless an application is made within the six-month
period. [Citations.]” (Ibid.)
In other words, “[t]he six-month time limit for granting relief under [(§ 473, subd. (b)] is jurisdictional and relief cannot
be granted under [(§ 473, subd. (b)] if the application for such relief is instituted more than six months after the entry
of the judgment, order or proceeding from which relief is sought. [Citations.]” (Aldrich v. San Fernando Valley Lumber
Co. (1985) 170 Cal.App.3d 725, 736, FN3.)
B. The Six-Month Limitation.
The issue of whether the application for relief under § 473, subd. (b) was made within the six-month period can be
broken down in two parts. The first part relates to the date on which the period begins to run, and the second relates
to the date on which the application for relief was made. If there is a time gap exceeding six months between the two
dates, the application will be untimely and the Court cannot grant the requested relief.
In the case at hand, determination of the date on which the application for relief was made presents the least
problem. “[A]n application for relief under section 473, subdivision (b), is a motion and […] an application for relief
under the statute is deemed to be made upon filing in court of a notice of motion and service of the notice of motion
on the adverse party. [Citations]” (Arambula v. Union Carbide Corp., supra, 128 Cal. App. 4th 333, 341; referencing
3
All further statutory references are to the Code of Civil Procedure, unless otherwise indicated.
Code Civ. Proc., §§ 1003, 1005.5.) Accordingly, Defendants’ notice of motion was filed with the Court and served on
Plaintiff on 26 November 2014.
On the other hand, determination of the date on which the six-month period began to run is apparently complicated
by two factors. First, the Court file contains three separate orders relating to the terminating sanctions under
consideration that were signed and filed on different dates. The minute order was entered on the date of hearing for
terminating sanctions (15 May 2014), by adopting the tentative ruling and physically attaching an unsigned copy of
the same. The Court also prepared a formal order that was signed on 19 May 2014, and filed on 21 May 2014.
Subsequently, Plaintiff submitted a similar order by incorporating the tentative ruling that was signed on 28 May
2014, and filed on 2 June 2014.
Secondly, the parties are in disagreement as to which one of the above three orders is the operative document for
purposes of this motion. The notice of motion is silent on this issue (as well as on the authorities for issuance of the
relief sought).4 The supporting memorandum, however, references the order signed on 28 May 2014 (filed 2 June
2014). The memorandum provided no explanation as to why Defendants picked this order instead of the previously
entered orders. The obvious reason appears to be the fact that only this order could allow a timely filing of the 26
November 2014 motion.
Plaintiff, on the other hand, references the order filed on 21 May 2014 as the order relevant to this motion. Again, the
memorandum in opposition did not provide any explanation as to why Plaintiff picked this order over the others,
except the obvious inference that this order would push Defendants’ motion over the six-month limitation.
“The statute states that an application for discretionary relief ‘shall be made within a reasonable time, in no case
exceeding six months, after the judgment, dismissal, order, or proceeding was taken,’ and that that an application for
mandatory relief must be made ‘no more than six months after entry of judgment.’ ” [Citations and emphasis omitted.]
(Arambula v. Union Carbide Corp., supra, 128 Cal. App. 4th 333, 345; referencing Code Civ. Proc., § 473 subd. (b).)
“Orders are entered by either of two methods. The court can order the clerk to enter a minute order which when
entered in the minutes is a written order of the court. The court may also make a formal order, and entry then
consists of filing the signed order with the clerk.”5 (Eldridge v. Super. Ct. (1989) 208 Cal.App.3d 1350, 1354; citing 7
Witkin, Cal. Procedure (3d ed. 1985) Judgment, § 56, p. 492.) Court Rule 8.104(c)(2) also provides, “[t]he entry date
of an appealable order that is entered in the minutes is the date it is entered in the permanent minutes. But if the
minute order directs that a written order be prepared, the entry date is the date the signed order is filed; [….]”
In the case at hand, the order for terminating sanctions was entered in the permanent minutes on 15 May 2014.
Although two formal orders were subsequently filed on the same matter, the minute order did not include an express
instruction that a formal order be prepared and filed. It follows that the entry of the minute order on 15 May 2014
constituted the operative date for commencement of the six-month period for purposes of making a section 473 subd.
(b) motion. Therefore, Defendants’ 26 November 2014 motion for relief from the terminating sanctions order was
untimely as it was filed on more than six months after the subject order was entered.6
Since the untimeliness finding is dispositive of the motion, the Court did not reach other issues raised in this case.
“A notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of
the order.” (Court Rule 3.1110(a).)
4
“An order is a document which is either entered in the court's permanent minutes or signed by the judge
and stamped ‘filed.’” (Michael v. Aetna Life & Cas. Ins. Co. (2001) 88 CA4th 925, 932; citing Shpiller v.
Harry C.'s Redlands (1993) 13 Cal.App.4th 1177, 1179.)
5
“The six-month period has been construed to mean a half year, or 182 days (as distinct from six calendar
months). The first day is excluded, and the last day included, in the computation.” (Mathew Bender (2014)
7-70 California Points & Authorities § 70.10; referencing Davis v. Thayer (1980) 113 Cal. App. 3d 892,
903.) Thus, even if it was assumed arguendo that entry of a formal order was required to trigger the running
of the six-month limitation, the order filed on 21 May 2014 would still have made Defendants’ motion
untimely.
6
IV. Conclusion and Order.
It is observed that the six-month time limit provided in section 473 [(b)] “is simply a limitation upon the power of the
court to grant any relief, regardless of any question either as to the merits of the application, or as to whether or not
the application was made within what might be held to be a reasonable time under the circumstances.” (Caldwell v.
Methodist Hospital (1994) 24 Cal. App. 4th 1521, 1524; citing Carrasco v. Craft (1985) 164 Cal.App.3d 796, 805.)
Therefore, “[t]he six-month limit is mandatory; a court has no authority to grant relief under section 473, subdivision
(b), unless an application is made within the six-month period. [Citations, FN omitted.]” (Arambula v. Union Carbide
Corp., supra, 128 Cal. App. 4th 333, 340.)
Defendants failed to act within the six-month period. Therefore, the motion to set aside the terminating sanctions
order is untimely, and the Court lacks jurisdiction to grant relief under section 473 subd. (b).
The motion is DENIED.
____________________________ _________________________________________________
DATED:
HON. SOCRATES PETER MANOUKIAN
Judge of the Superior Court
County of Santa Clara
- oo0oo -
Calendar line 2
SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
DEPARTMENT 19
161 North First Street, San Jose, CA 95113
408.882.2310 · 408.882.2299(fax)
smanoukian@scscourt.org
http://www.scscourt.org
Pamela Behm v. Clear View Technologies, et al.
DATE: 16 January 2015
TIME: 9:00
(For Clerk's Use Only)
CASE NO. 111CV206163
LINE NUMBER: 2
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 408.882.2310 and the opposing party no later than 4:00 PM Thursday 15
January 2015. Please specify the issue to be contested when calling the Court and counsel.
On 16 January 2015, the following motions were argued and submitted: (1) the motion of defendant Paul Mula
(“Mula”) to compel plaintiff Pamela Behm (“Behm”) to provide further responses to special interrogatories (“SI”), set
three, and (2) Mula’s motion to compel plaintiffs Linda Pokarney (“Pokarney”), Robert DeLuca (“DeLuca”), and
Robert Cisneros (“Cisneros”) to respond to SI, set one and Pokarney to respond to request for production of
documents (“RPD”), set one. Behm, Pokarney, Deluca, and Cisneros filed formal oppositions to the motions.
I.
Statement of Facts
This action arises from Behm’s investment in defendant Clear View Technologies (“CVT”). A stay-at-home mother
until her divorce in 2010, Behm attempted to reenter the workforce by beginning an unpaid internship at CVT that
same year. While interning at CVT, CVT’s officers, including Mula, allegedly tricked Plaintiff into investing $200,000
into the company based on fraudulent misrepresentations that CVT owned valuable patents and a functioning
prototype of its BarMaster system, designed to measure each pour from a bottle of alcohol to within 1/20th of an
ounce. When Behm discovered that these representations were false, she attempted to rescind her investment.
When CVT refused, she filed the present action.
In her complaint, Plaintiff asserts causes of action against CVT, Mula, and other CVT officers and shareholders for
(1) rescission, (2) fraud and deceit, (3) negligent misrepresentation, (4) violation of Corporations Code sections
25400 and 25500, (5) violation of Corporations Code sections 25401, 25501 and 25504.1, (6) violation of
Corporations Code section 25504, and (7) unfair competition under Business and Professions Code section 17200 et
seq.
On 9 April 2014, the matter was consolidated with Pokarney, et al. v. Northwestern Mutual Life Insurance Company,
et al., case number 1-13-CV-255461 (the “Pokarney case”). In the Pokarney case, Pokarney, DeLuca and Cisneros
sought the investment advice of defendant Daniel Carpenter (“Carpenter”), who held himself out as an agent for
defendant Northwestern Mutual Life Insurance Company (“Northwestern”). Carpenter advised Pokarney, DeLuca and
Cisneros to invest in CVT based on a number of fraudulent misrepresentations concerning CVT patents and the
BarMaster system. Mula, Dong and Zevgolis repeated these misrepresentations to induce Pokarney, DeLuca and
Cisneros to invest in CVT. In reliance on these misrepresentations, Pokarney, DeLuca and Cisneros invested over
$1.3 million.
In their operative first amended complaint (“FAC”), Pokarney, DeLuca and Cisneros assert seven causes of action
against Carpenter, Northwestern, Mula, and other CVT officers and shareholders for (1) fraud and deceit, (2) fraud
and deceit, (3) negligent misrepresentation, (4) violation of Corporations Code section 2501.5, (5) violation of
Corporations Code sections 25400 and 25500, (6) violation of Corporations Code sections 25401, 25501 and
25504.1, and (7) violation of Corporations Code section 25504.
II.
Discovery Disputes
A.
Motion to Compel Further Responses to SI, Set One, and RPD, Set One
On 12 June 2014, Mula served SI, set one, and RPD, set one, on the each plaintiff in the Pokarney case. On 7
August 2014, each plaintiff served his or her responses to the SI and RPD, consisting of both objections and
substantive responses.
On 18 September 2014, Mula’s counsel, J. Mark Thacker (“Thacker”), sent a meet and confer email to Pokarney,
DeLuca and Cisneros’s counsel, indicating that their objections lacked merit and requesting further responses.
On 7 November 2014, counsel for the parties participated in an extensive conference call to discuss the responses to
the SI and RPD, but were unable to informally resolve the dispute. On 17 November 2014, Mula filed his motion to
compel Pokarney, DeLuca and Cisneros to provide further responses to SI, set one, and RPD, set one. Pokarney,
DeLuca and Cisneros filed their opposition to the motion on 5 January 2015. On 9 January 2015, Mula filed his reply.
B.
Motion to Compel Further Responses to SI, Set Three
On 5 August 2014, Mula served SI, set three, on Behm. Approximately one month later, on 8 September 2014, Behm
served her responses to SI, set three, consisting of both objections and substantive responses.
On 13 October 2014, Thacker sent a meet and confer letter to Behm’s counsel, indicating that Behm’s objections
lacked merit and requesting further responses. Roughly one month later, on 7 November 2014, Behm’s counsel sent
a letter in response, indicating that the objections were justified and refusing to provide further responses.
As the parties were unable to informally resolve the dispute, Mula filed his motion to compel Behm to provide further
responses to SI, set three on 17 November 2014. On 5 January 2015, Behm filed her opposition. Mula filed his reply
on 9 January 2015.
C.
Discussion
1.
Motion to Compel Further Responses to SI, Set One and RPD, Set One
Mula moves to compel Pokarney, Cisneros and DeLuca to provide further responses to SI, set one, Nos.
28-30. In addition, Mula moves to compel Pokarney to provide further responses to SI, set one, Nos. 44-45
and RPD, set one, No. 13.
2.
Motion to Compel Further Responses to the SI
SI Nos. 28-30 request information concerning the first date each plaintiff in the Pokarney case had any
communications with the Grellas Shah LLP law firm (“Grellas Shah”) relating to CVT (SI No. 28), the date
each plaintiff retained Grellas Shah in relation to this lawsuit (SI No. 29), and the date each plaintiff had any
communications with Grellas Shah relating to Behm (SI No. 30). SI Nos. 44-45 ask Pokarney whether she
was issued a life insurance policy (SI No. 44), and if she was not, to state all facts upon which her response
to SI No. 44 is based (SI No. 45). Pokarney, Cisneros, and DeLuca’s responses to the SI consisted solely
of objections.
Mula argues that further responses are warranted to SI Nos. 28-30 (as to all plaintiffs in the Pokarney case)
and 44-45 (as to Pokarney) because Pokarney, Cisneros and DeLuca’s objections are without merit.
Pokarney, Cisneros and DeLuca oppose the motion on the ground that their objections are meritorious.
a.
Legal Standards
A party propounding interrogatories may move for an order compelling further responses if that party
deems an objection is without merit or too general. (Code Civ. Proc., § 2030.300, subd. (a).) The burden is
on the responding party to justify any objections. (Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221.)
b.
Good Cause
As a threshold matter, Pokarney, Cisneros and DeLuca argue that the motion to compel further responses
to the SI should be denied in its entirety because Mula does not establish that good cause exists for the
discovery sought by the SI. (See Opposition, pp. 7:16-28, 12:6-7.) A motion to compel further responses,
however, to interrogatories does not require any showing of good cause in support of a motion. (See Code
Civ. Proc., § 2030.300; see also Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221.) Accordingly, Mula
is not required to establish that good cause exists for the discovery sought by the SI.
c.
Objections
Pokarney, Cisneros and DeLuca raised a number of objections to the SI at issue. In their opposition,
however, they only attempt to justify their objections on the grounds of relevance (as to SI Nos. 28-30 and
44-45), privacy (as to SI Nos. 44-45), and attorney-client privilege (as to SI Nos. 28 and 30). The remaining
objections are therefore overruled. (See Coy, supra, 58 Cal.2d at pp. 220-221.)
d.
Relevance
Discovery is allowed for any matter that is not privileged, relevant to the subject matter involved in the action, and
reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.010.) The “relevance
to the subject matter” and “reasonably calculated to lead to the discovery of admissible evidence” standards are
applied liberally with any doubt generally resolved in favor of discovery. (Colonial Life & Acc. Ins. Co. v. Superior
Court (1982) 31 Cal.3d 785, 790.) Moreover, for discovery purposes, information is “relevant to the subject matter” if
it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. (Gonzalez v.
Superior Court (1995) 33 Cal.App.4th 1539, 1546.)
e.
SI Nos. 28-30
With regard to SI Nos. 28-30, which seek information concerning the dates each plaintiff contacted, retained, and
communicated with Grellas Shah relating to this lawsuit, Mula contends that this information is relevant to a potential
statute of limitations defense. (See Mula’s Sep. Statement, pp. 8:9-11, 10:25-27, 13:13-15.) Pokarney, Cisneros and
DeLuca argue that Mula’s argument is flawed for several reasons.
First, they assert that the statute of limitations for a fraud claim begins to run when the plaintiff discovers the fraud,
not when the plaintiff consults his or her attorney. (See Opposition, p. 8:2-6.) Thus, Pokarney, Cisneros and DeLuca
reason that the dates of initial contact and retention are irrelevant. This argument lacks merit. Under the discovery
rule, a fraud cause of action does not accrue until the plaintiff discovers, or has reason to discover, a cause of action.
(See Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807.) A plaintiff has reason to discover a cause of
action when he or she has reason at least to suspect a factual basis for its elements. (Id.) Information concerning
when Pokarney, Cisneros and DeLuca’s consulted an attorney in relation to this matter could assist Mula in
determining when they suspected a factual basis for the present claim.
Next, Pokarney, Cisneros and DeLuca argue that their action could not possibly be time-barred because the statute
of limitations for fraud is three years, each plaintiff made their initial investment in 2010, and they filed their lawsuit in
2013. (See Opposition, pp. 8:27-28, 9:1-3.) This argument is not persuasive. In the FAC, Pokarney, Cisneros and
DeLuca assert claims under the Corporations Code which are subject to a two-year statute of limitations from the
discovery of the facts constituting a violation. (See Corp. Code, § 25506, subd. (b).) Accordingly, these causes of
action could be time-barred.
In light of the foregoing, Pokarney, Cisneros and DeLuca’s objections to SI Nos. 28-30 on the ground of relevance
are unjustified. As such, these objections are overruled.
f.
SI Nos. 44-45
With regard to SI Nos. 44-45, which seek information concerning whether Pokarney was issued a life insurance
policy, Mula asserts that Pokarney specifically alleged that after several meetings with Carpenter, she applied for life
insurance. (Mem. Ps & As., p. 3:20-23.) Given that the life insurance application is part of Pokarney’s relationship
with Carpenter and Pokarney alleges that Mula is a co-conspirator with Carpenter, Mula argues that he is entitled to
obtain information regarding the application. (See Mem. Ps & As., p. 3:23-28.) In opposition, Pokarney contends that
the allegations regarding life insurance merely provide background information concerning the manner in which
Carpenter first approached her. (Opposition, p. 12: 22-24.) Pokarney’s argument is persuasive. Pokarney’s action
against Carpenter and Mula solely concerns their roles in fraudulently inducing her to invest over a million dollars in
CVT. In this regard, Pokarney does not assert a cause of action against Carpenter or any other defendant regarding
her application for life insurance. As such, it is unclear how information related to her application for life insurance is
relevant to the subject matter of this action or reasonably calculated to lead to the discovery of admissible evidence.
Accordingly, Pokarney’s objections to SI Nos. 44-45 on the ground of relevance are justified. As such, these
objections are sustained.
g.
Privacy
Pokarney objects to SI Nos. 44-45, which seek information concerning whether Pokarney was issued a life insurance
policy (SI No. 44) and if she was not, all facts upon which her response to SI No. 44 is based (SI No. 45), on the
ground that they intrude upon her right to privacy. Pokarney asserts that the life insurance application process
involved the disclosure of highly sensitive information, including her medical information, and her responses to the
interrogatories would reveal such information. (Opposition, pp. 13:27-28, 14:1-10.)
The right to privacy protects an individual’s “reasonable expectation of privacy against a serious invasion.” (Pioneer
Electronics, Inc. v. Superior Court (2007) 40 Cal.4th 360, 370.) It is well-established that the right to privacy extends
to an individual’s medical information. (See Brillantes v. Superior Court (1996) 51 Cal.App.4th 323, 339.) Where a
serious invasion of the right to privacy is shown, the proponent of the discovery must demonstrate that the
information sought is “directly relevant” to a claim or defense, and “essential to the fair resolution of the lawsuit.” (Britt
v. Superior Court (1978) 20 Cal.3d 844, 850; see also Binder v. Superior Court (1987) 196 Cal.App.3d 893, 901
[holding “direct relevance” requires something more than an assertion that the requested discovery might lead to
admissible evidence].) Once direct relevance has been demonstrated, the proponent of discovery must show that the
information sought is not available through less intrusive means. (Allen v. Superior Court (1984) 151 Cal.App.3d 447,
449.) The court must then carefully balance the right to privacy on the one hand, and the right of civil litigants to
discover facts, on the other. (Pioneer Electronics, Inc. v. Superior Court, supra, 40 Cal.4th at p. 371.)
Here, it does not appear from the face of the interrogatories that they necessarily call for the disclosure of any
sensitive information. SI Nos. 44-45 merely seek the disclosure of whether Pokarney received a life insurance policy
and the basis for the denial. While Pokarney asserts that the denial of life insurance could be based on her private
medical information, she provides no evidence indicating that the denial was in fact based on private information or
that responding to the interrogatories would reveal such information. Thus, Pokarney fails to justify her objections to
SI Nos. 44-45 on the ground of privacy. As such, the objections on this ground are overruled.
h.
Attorney-Client Privilege
Pokarney, Cisneros and DeLuca claim that SI Nos. 28 and 30, which request the dates each plaintiff communicated
with Grellas Shah regarding CVT (SI No. 28) and Behm (SI No. 30), seek information subject to the attorney-client
privilege. (Oppostion, p. 9:23-25.) Mula argues that no privileged information is sought by these interrogatories
because they seek only independent facts related to attorney-client communications, not the substance of the
communications themselves. (Mem. Ps & As., p. 3:12-17.)
Under Evidence Code section 954, a client has a privilege to refuse to disclose, and to prevent another from
disclosing, a confidential communication between client and lawyer. “However, the attorney-client privilege only
protects disclosure of communications between the attorney and the client; it does not protect disclosure of
underlying facts which may be referenced within a qualifying communication.” (State Farm Fire & Casualty Co. v.
Superior Court (1997) 54 Cal.App.4th 625, 639.)
Pokarney, Ciseneros and DeLuca acknowledge that underlying facts regarding attorney-client communications are
not subject to the privilege. (Opposition, pp. 9:28, 10:1-3.) They, however, assert that SI Nos. 28 and 30 ask them to
disclose the dates they spoke to their attorneys about CTV and Behm, which necessarily concerns the substance of
the communications. Thus, Pokarney, Ciseneros and DeLuca contend that the interrogatories seek the contents of
privileged communications. This argument is not persuasive.
In Coy, supra, 58 Cal.2d 210, 219-220, the Court of Appeal addressed this exact issue. The interrogatory at issue in
Coy, supra, read as follows: “When did you first discuss Mr. Coy’s obligation to you with [your attorney]?” (Id. at p.
219.) The Court of Appeal held that the interrogatory did not seek to elicit any communication or conversation
between attorney and client and thus, the information sought by the question “is not a matter within the purview of the
attorney-client privilege, even though it refers to [the attorney-client] relationship.” (Id. at p. 220.)
Just as the interrogatory in Coy, supra, SI Nos. 28 and 30 do not seek to elicit the substance of attorney-client
conversations. They only seek to establish the date each plaintiff communicated with counsel concerning this matter.
Accordingly, Pokarney, Cisneros and DeLuca’s objections to SI Nos. 28-30 on the ground of the attorney-client
privilege are unjustified. As such, these objections are overruled.
i.
Conclusion
Based on the foregoing, as Pokarney’s relevance objections to SI Nos. 44 and 45 are sustained, the motion to
compel further responses to SI Nos. 44-45 is DENIED. As all objections to SI Nos. 28-30 are overruled and
Pokarney, Ciseneros and DeLuca have provided no substantive responses to these interrogatories, the motion to
compel further responses to SI Nos. 28-30 is GRANTED.
D.
Motion to Compel Further Responses to RPD No. 13
RPD No. 13 seeks all documents relating to the life insurance application referred to in paragraph 59 of the
first amended complaint. Pokarney’s response to RPD No. 13 consisted solely of objections.
Mula argues that a further response to RPD No. 13 is warranted because Pokarney, Cisneros and
DeLuca’s objections are without merit. Pokarney opposes the motion on the ground that her objections are
meritorious.
1.
Legal Standards
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. (Code of Civ. Proc., § 2031.310, subds.
(a)(1)-(3).) The motion must set forth “specific facts showing good cause justifying the discovery sought by the
demand.” (Code of Civ. Proc., § 2031.310, subd. (b)(1); Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.)
Good cause is established simply by a fact-specific showing of relevance. (Kirkland, supra, 95 Cal.App.4th at p. 98.)
If good cause is shown, the burden shifts to the responding party to justify any objections. (Id.)
2.
Good Cause
Discovery is allowed for any matters that are not privileged, relevant to the subject matter involved in the action, and
reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.010.) The
“relevance to the subject matter” and “reasonably calculated to lead to discovery of admissible evidence” standards
are applied liberally with any doubt generally resolved in favor of discovery. (Colonial Life & Acc. Ins. Co. v. Superior
Court (1982) 31 Cal.3d 785, 790.) Moreover, for discovery purposes, information is “relevant to the subject matter” if
it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement thereof.
(Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.)
Mula argues that good cause exists for RPD No. 13 because Pokarney specifically alleges in the FAC that she
applied for life insurance. (Mem. Ps & As., p. 3:20-23.) As previously discussed in connection with Pokarney’s
relevance objections to SI Nos. 44-45, the allegations regarding life insurance merely provide background information
concerning the manner in which Carpenter first approached her, and Pokarney does not assert a cause of action
against Carpenter or any other defendant regarding her application for life insurance. As such, it is unclear how
information related to her application for life insurance is relevant to the subject matter of this action or reasonably
calculated to lead to the discovery of admissible evidence. Accordingly, good cause does not exist for RPD No. 13.
3.
Conclusion
Based on the foregoing, the motion to compel a further response to RPD No. 13 is DENIED.
E.
Motion to Compel Further Responses to SI, Set Three
Mula moves to compel Behm to provide further responses to SI, set three, Nos. 261-264. SI Nos. 261 and
262 request information concerning all persons with whom Behm, and all persons acting on her behalf, had
any communications relating to the “joint filing” referenced in a 7 July 2011 email identified as document
No. BEH000683. SI Nos. 263 and 264 ask Behm to identify all shareholders or investors of CVT with whom
she communicated regarding this lawsuit and all documents related to those communications. Behm’s
responses to SI Nos. 261, 262 and 264 consisted solely of objections. Behm responded to SI No. 263 with
both objections and a substantive response.
Mula argues that further responses are warranted to the SI because Behm’s objections are without merit
and her substantive response to SI No. 263 is incomplete. Behm opposes the motion on the ground that
her objections are meritorious and the substantive response to SI No. 263 is complete.
1.
Legal Standards
A party propounding interrogatories may move for an order compelling further responses if that party
deems an objection is without merit or too general and/or a response is evasive or incomplete. (Code Civ.
Proc., § 2030.300, subd. (a).) The burden is on the responding party to justify any objections. (Coy v.
Superior Court (1962) 58 Cal.2d 210, 220-221.)
2.
Good Cause
As a threshold matter, Behm argues that the motion to compel further responses to the SI should be denied
in its entirety because Mula does not establish that good cause exists for the discovery sought by the SI.
(See Opposition, pp. 3:11-13, 5:25-27.) As previously indicated, a motion to compel further responses to
interrogatories does not require any showing of good cause in support of a motion. (See Code Civ. Proc., §
2030.300; see also Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221.) Accordingly, Mula is not
required to establish that good cause exists for the discovery sought by the SI.
3.
Objections
Behm raised a number of objections to the SI at issue. In her opposition, however, she only attempts to
justify her objections based on the violation of the stipulated protective order (as to SI Nos. 261 and 262)
and the attorney work product protection (as to SI Nos. 263 and 264). The remaining objections are
therefore overruled. (See Coy, supra, 58 Cal.2d at pp. 220-221.)
1.
Violation of the Stipulated Protective Order
Behm claims that SI Nos. 261 and 262, which request information concerning persons with whom Behm has had
communications relating to the “joint filing” referenced in document No. BEHM000683, violate section 12 of the
stipulated protective order entered into by the parties because they expressly refer to a privileged document that was
clawed-back. (Opposition, p. 3:14-16.) In this regard, Behm’s counsel declares the following: On 18 June 2013, the
Court (Hon. Kevin McKenney) approved a stipulated protective order governing the use of confidential information.
(Shah Decl., ¶ 2.) Document No. BEHM000683 was inadvertently produced on 25 November 2013. (Shah Decl., ¶¶
3-4.) On 14 July 2014, Behm’s counsel emailed Mula’s counsel, Thacker, indicating that BEHM000683 contained a
communication subject to the attorney-client privilege and requesting that counsel destroy all copies in his
possession. (Shah Decl., ¶ 5.)
Mula does not contest, at least for the purposes of this motion, that BEM000683 is privileged. (Mem. Ps & As., p. 3:23.) He asserts, however, that referring to BEHM000683 in SI Nos. 261 and 262 does not constitute an improper “use”
of the document. (Reply, p. 3:2-3.) This argument is not persuasive. Section 12 of the protective order prohibits the
use of inadvertently produced information “for any purpose….”7 (Shah Decl., Ex. A.) Given the all-encompassing
The provision reads, in pertinent part: “If a claim of inadvertent production is made with respect to information then in the
custody of another party, such party shall promptly return, sequester, or destroy the specified information if the party disclosed it
7
language of the provision, the Court finds that the drafting of discovery requests referencing an inadvertently
produced document constitutes a “use” of the information. As such, the objections to SI Nos. 261 and 262 on this
ground are justified and are therefore sustained.
2.
Attorney Work Product Protection
Behm asserts that SI Nos. 263 and 264, which ask her to identify all shareholders or investors of CVT with
whom she, and all persons acting on her behalf, communicated regarding this lawsuit and all related
documents, intrudes upon the attorney work product protection to the extent that it requires her to disclose
the individuals with which her attorney communicated regarding the lawsuit. (Opposition, p. 6:1-4.) Mula
contends that the list of witnesses with whom her attorney communicated would not implicate the work
product doctrine because they would not reveal counsel’s mental processes. (Reply, p. 4:13-15.)
“California’s civil work product privilege is codified in section 2018.030. Subdivision (a) provides absolute protection
to any ‘writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories.’ Such a
writing ‘is not discoverable under any circumstances.’” (Coito v. Superior Court (2012) 54 Cal.4th 480, 488.)
“Section 2018.030 subdivision (b) provides qualified protection for all other work product. Such material ‘is not
discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in
preparing that party’s claim or defense or will result in an injustice.’” (Id.)
Information concerning the identity of interviewed witnesses is not automatically protected by the attorney work
product doctrine. (See McVeigh v. Recology San Francisco (2013) 213 Cal.App.4th 443, 474.) Instead, an objecting
party may only be entitled to the protection “if it can make a preliminary or foundational showing that answering the
interrogatory would reveal the attorney’s tactics, impressions, or evaluation of the case, or would result in opposing
counsel taking undue advantage of the attorney’s industry or efforts.” (Coito, supra, 54 Cal.4th at p. 502.) If such a
showing is made, the burden shifts to the propounding party to demonstrate that denial of the discovery will unfairly
prejudice the party seeking discovery in preparing that party’s claim or defense or will result in an injustice. (Id. at p.
488.)
While Behm asserts that requiring it to divulge the witnesses her counsel spoke to would permit Mula’s
counsel to “unfairly free ride off of [her attorney’s] efforts” (see Behm’s Sep. Statement, pp. 8:22-25, 12:28,
13:1-2), she provides no evidence indicating that her counsel expended significant time and effort in
identifying these witnesses and securing their willingness to speak. As such, she fails to make a
preliminary showing that answering SI Nos. 263 and 264 would result in the disclosure of information
entitled to attorney work product protection. Thus, the objections to SI Nos. 263 and 264 on this ground are
unjustified and are therefore overruled.
F.
Substantive Response to SI No. 263
In response to SI No. 263, which asks Behm to identify all shareholders or investors of CVT with whom
she, and all persons acting on her behalf, communicated regarding this lawsuit, Behm identified all persons
she personally communicated with regarding her claim and withheld the list of shareholders and investors
with whom her attorney communicated based on the attorney work product protection.
Mula contends that a further response should be compelled because Behm does not identify the investors
or shareholders with whom her counsel communicated regarding the lawsuit. This argument is persuasive.
An interrogatory response must be as complete and straightforward as the information available to the
responding party permits. (Code Civ. Proc., § 2030.220, subd. (a).) Here, Behm does not identify all
investors or shareholders with whom persons acting on her behalf communicated, which is the call of the
before being notified. Such information shall not be used by the Receiving Party for any purpose other than in connection with a
motion to compel (which shall be filed under seal). The party returning such material may then move the Court for an Order
compelling production of the material, which shall be filed under seal, and said motion shall not assert as a ground for entering
such an Order the fact or circumstances of the inadvertent production.” (See Shah Decl., Ex. A.)
question, and Behm’s objection on the ground of the attorney work product protections has been overruled.
As such, a further response to SI No. 263 is warranted.
G.
Conclusion
Based on the foregoing, as Behm’s objections to SI Nos. 261 and 262 based on the violation of the stipulated
protective order are sustained, the motion to compel further responses to SI Nos. 261 and 262 is DENIED. As all
objections to SI Nos. 263 are overruled and Behm’s substantive response is incomplete, the motion to compel a
further response to SI No. 263 is GRANTED. As all objections to SI No. 264 are overruled and Behm provided no
substantive response to this interrogatory, the motion to compel a further response to SI Nos. 264 is GRANTED.
IV.
Conclusion and Order
Mula’s motion to compel Pokarney, Cisneros and DeLuca to provide further responses to SI, set one, and RPD, set
one is GRANTED IN PART and DENIED IN PART. The motion to compel Pokarney to provide further responses to
SI Nos. 44-45 and RPD No. 13 is DENIED. The motion to compel Pokarney, Cisneros and DeLuca to provide further
responses to SI Nos. 28-30 is GRANTED. Accordingly, within 20 calendar days of the filing of this Order, Pokarney,
Cisneros and DeLuca shall each serve verified code-compliant further responses, without objections, to SI Nos. 2830.
Mula’s motion to compel Behm to provide further responses to the SI, set three, is GRANTED IN PART and DENIED
IN PART. The motion is DENIED as to SI Nos. 261 and 262. The motion is GRANTED as to SI Nos. 263 and 264.
Accordingly, within 20 calendar days of the filing of this Order, Behm shall serve verified code-compliant further
responses, without objections, to SI Nos. 263 and 264.
____________________________
DATED:
_________________________________________________
HON. SOCRATES PETER MANOUKIAN
Judge of the Superior Court
County of Santa Clara
- oo0oo -
Calendar line 3
SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
DEPARTMENT 19
161 North First Street, San Jose, CA 95113
408.882.2310 · 408.882.2299(fax)
smanoukian@scscourt.org
http://www.scscourt.org
Dolby Laboratories Licensing Corp. v. ArcSoft, Inc.
DATE: 16 January 2015
TIME: 9:00
(For Clerk's Use Only)
CASE NO. 112CV230794
LINE NUMBER: 3
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 408.882.2310 and the opposing party no later than 4:00 PM Thursday 15
January 2015. Please specify the issue to be contested when calling the Court and counsel.
On 16 January 2015, the motion of defendant/cross-complainant ArcSoft, Inc. (“ArcSoft”) to quash a business
records subpoena served by plaintiff/cross-defendant Dolby Laboratories Licensing Corporation (“Dolby”) on
nonparty BDO USA, LLP (“BDO”) was argued an submitted. Dolby filed a formal opposition to the motion.
I.
Statement of Facts
Dolby is in the business of licensing audio and video technology. ArcSoft is a software developer of multimedia
imaging technologies used in devices such as smartphones, tablets, personal computer, and cameras. Beginning in
2004, ArcSoft entered into licensing agreements with Dolby for a variety of technologies used in personal computers.
The license agreements required ArcSoft to report all distributions of Dolby’s intellectual property and to pay royalties
thereon. According to Dolby, ArcSoft failed to report sales and pay royalties in connection with a number of its
customers and refused to allow Dolby to conduct an inspection of ArcSoft’s records as provided for under the terms
of the license agreements.
On 14 February 2012, Dolby instituted this action against ArcSoft, alleging that ArcSoft breached the parties’
licensing agreements. Dolby seeks damages and specific performance of its inspection rights.
ArcSoft filed a cross-complaint against Dolby, alleging that, subsequent to the signing of the license agreements,
Dolby became a direct competitor of ArcSoft and launched an anticompetitive campaign against ArcSoft. In its crosscomplaint, ArcSoft contends that Dolby is attempting to misuse the audit provisions contained in the licensing
agreements in order to obtain confidential information for uses unrelated to the purpose of those agreements, i.e., to
gain an unfair economic advantage over ArcSoft. In March 2013, ArcSoft filed the operative Third Amended CrossComplaint against Dolby for breach of contract, violations of Business and Professions Code section 17200,
intentional interference with contractual relations, intentional interference with prospective economic relations,
negligent interference with prospective economic relations, and declaratory judgment.
The case is currently scheduled for trial to begin on 13 April 2015.
II.
Discovery Dispute
On 2 December 2014, Dolby served BDO with a business records subpoena. BDO is a public accounting, tax, and
advisory firm and was hired by ArcSoft to conduct annual audits on ArcSoft’s business from 2005 to 2010. (Dec. of
Sean Bi in Support of ArcSoft’s Mot. to Quash, ¶¶ 4, 5.)
The subpoena improperly listed “BDO U.S.” rather than “BDO USA, LLP”—which is BDO’s actual name—as the
entity to produce the records. This resulted in BDO’s attorneys not receiving the subpoena until 3 December 2014.
The subpoena requested two categories of documents: (1) any financial statement audits and quarterly reviews
conducted by BDO for ArcSoft; and (2) all accounting related documents provided to BDO by ArcSoft. (Decl. of
Carmen Aviles in Support of ArcSoft’s Mot. to Quash (“Aviles Decl.”), Ex. 1.) The subpoena specified that the records
were to be produced on 17 December 2014. (Id.)
Dolby mailed a copy of the subpoena to ArcSoft on 5 December 2014.
On 12 December 2014, counsel for Dolby and counsel for BDO met and conferred concerning the subpoena via
telephone. (Decl. of George Morris in Support of Dolby’s Opp. to ArcSoft’s Mot. to Quash (“Morris Decl.”), ¶ 6.)
During the call, counsel for BDO raised the issue that the subpoena was technically served on BDO US instead of
BDO USA, LLP, and that he would have to note this in his responses and objections, but BDO would not refuse to
produce documents on that basis. (Id.) Counsel for Dolby and BDO agreed to meet and confer again once Dolby
received BDO’s responses. (Id.)
On 16 December 2014, counsel for ArcSoft called counsel for Dolby to discuss various discovery issues, including
the subpoena served on BDO. (Morris Decl., ¶ 7.) Counsel for ArcSoft informed counsel for Dolby that, if Dolby did
not withdraw the subpoena, ArcSoft would move to quash. (Id.) Counsel for Dolby inquired whether counsel for
ArcSoft intended to meet and confer on the issue of the subpoena and ArcSoft’s counsel responded that, if Dolby did
not withdraw the subpoena, she had been directed to file a motion. (Id.) Counsel for Dolby and ArcSoft did not
engage in any further meet and confer efforts concerning the subpoena.
On 17 December 2014, counsel for BDO sent a letter to counsel for Dolby containing BDO’s responses and
objections to the subpoena. (Aviles Decl., Ex. 2.) The next day, counsel for BDO and counsel for Dolby met and
conferred on the objections. According to counsel for Dolby, an agreement was reached as to narrowing the scope of
the requests and BDO agreed to produce documents. (Decl. of Timothy Scott in Support of Dolby’s Opp. to ArcSoft’s
Mot. to Quash (“Scott Decl.”), ¶ 5.) More specifically, according to Dolby, BDO agreed to produce documents related
to ArcSoft’s revenues and those reflecting ArcSoft’s description of its business to BDO.8 (Id.)
On 19 December 2014, two days after the production date listed in the subpoena, ArcSoft filed the motion presently
before the Court, seeking an order quashing the subpoena served by Dolby on BDO.
Dolby filed an opposition to the motion on 5 January 2015, and ArcSoft filed a reply on 9 January 2015.
III.
Discussion
ArcSoft moves to quash the business records subpoena on both procedural and substantive grounds. Procedurally,
ArcSoft asserts that Dolby failed to comply with the timing requirements contained in the Code of Civil Procedure
concerning the service of the subpoena on BDO as well as the notice given to ArcSoft. Substantively, ArcSoft claims
that the requests in the subpoena are objectionable on various grounds.
Dolby opposes the motion to quash on several grounds, arguing that the motion is procedurally defective and that
ArcSoft’s substantive arguments lack merit.
A.
Statutory Basis for Motion and Legal Standard
ArcSoft cites Code of Civil Procedure (“CCP”) section 2025.410 as the statutory basis for its motion to quash. That
provision provides that, in addition to serving written objections to a deposition notice, a party may also file a motion
to quash. (CCP, § 2025.410, subd. (c).) By its language, CCP section 2025.410 applies to deposition notices, which
are served on parties—not deposition subpoenas, which are served on nonparties. Indeed, CCP section 2020.030
expressly identifies which Code sections apply to deposition subpoenas—Chapter 2 of Title 3 of the Code of Civil
Procedure (CCP, §§ 1985 – 1997), portions of the Evidence Code, and portions of Chapter 6 of Title 4 of the Code of
ArcSoft claims that these representations are false and has attached a letter from counsel for BDO to its reply papers indicating
that BDO has not agreed to produce documents. (Decl. of Anne-Marie Dao in Support of ArcSoft’s Reply, Ex. 4.) In the letter,
counsel for BDO states the following:
8
Following your receipt of our Objections Letter you called on December 18, 2014 and asked that I confirm an
agreement to produce documents along the lines of the general parameters I noted on our prior call. I declined the
invitation to reach any agreement on production while ArcSoft’s motion was pending. Therefore, BDO’s Objections as
articulated in our December 17, 2014 letter [] stand and no separate agreement on production has been reached. (Id.)
Civil Procedure (CCP, §§ 2020.010 – 2020.510). CCP section 2025.410 is not identified as being applicable to
deposition subpoenas. In other words, the Code section cited by ArcSoft is not the proper statutory basis for the relief
requested in its motion.
Of course, the Code of Civil Procedure authorizes motions to quash business records subpoenas, but the applicable
Code section for such a motion is CCP section 1987.1, which provides that, upon motion reasonably made, the court
may make an order quashing a subpoena entirely, modifying it, or directing compliance with it upon those terms or
conditions as it shall declare, including protective orders. (CCP, § 1987.1, subd. (a).) The distinction between CCP
section 2025.410 and CCP section 1987.1 is not without significance. Prior to filing a motion to quash a deposition
notice under CCP section 2025.410, counsel for the parties must meet and confer, which is one of the procedural
grounds on which Dolby attacks ArcSoft’s motion. In contrast, CCP section 1987.1 contains no meet and confer
requirement.
Concerning the legal standard applicable to motions to quash under CCP section 1987.1, the statute is silent as to
which party bears the burden of persuasion. However, case law indicates that the party objecting to the discovery,
i.e., the party moving to quash the deposition subpoena, bears the burden of explaining and justifying its objections.
(See Fairmont Ins. Co. v. Super. Ct. (2000) 22 Cal.4th 245, 255.)
Given that ArcSoft’s citation to the wrong Code provision does not affect the substantive analysis (i.e., the parties’
arguments would not have changed if ArcSoft had cited the applicable Code section in the first instance), the Court
will treat ArcSoft’s motion as being brought pursuant to CCP section 1987.1.
B.
Procedural Arguments
As indicated above, both parties make procedural arguments concerning the business records subpoena and the
motion to quash. Each of these arguments essentially boils down to the assertion that the other party failed to comply
with the applicable provisions of the Code of Civil Procedure. The arguments also stem largely from ArcSoft’s failure
to cite the applicable Code section in its notice of motion.
1.
ArcSoft’s Procedural Arguments
ArcSoft directs the Court to CCP section 2020.410, subdivision (c), which provides that a business records subpoena
may not command compliance by the custodian of records any earlier than 20 days after the subpoena is issued or
15 days after its service, whichever is later. ArcSoft points out that the subpoena at issue directed BDO to produce
documents on 17 December 2014 and that, although Dolby served the subpoena on 2 December 2014, because
Dolby did not use BDO’s correct name, the company’s attorneys did not receive the subpoena until the next day. Put
another way, ArcSoft contends that Dolby only gave BDO 14 days to respond to the subpoena rather than the
statutory minimum of 15 days.
The Court rejects this argument. Dolby has represented to the Court that BDO has agreed to a compliance date. A
custodian of records and the party serving a business records subpoena are statutorily authorized to agree to a time
for production different than that stated in CCP section 2020.410. (See Evid. Code, § 1560, subd. (b)(3).) In its reply
brief, ArcSoft acknowledges that Dolby and BDO agreed to a date of compliance of 23 December 2014. (Reply, at p.
2:1-3.) Accordingly, ArcSoft has not carried its burden of justifying its challenge to the subpoena on this ground.
ArcSoft also argues that Dolby was required to serve it with notice of the subpoena at the same time it served the
subpoena itself on BDO and that, because Dolby served ArcSoft with notice of the subpoena three days after it
served BDO, the subpoena is “untimely.” ArcSoft is correct that copies of business records subpoenas must be
served on all other parties who have appeared in an action. (CCP, § 2025.220, subd. (b).) That provision, however,
does not contain a timing requirement and ArcSoft has not directed the Court to any authority to support the
proposition that service of a business records subpoena and notice to the parties of the subpoena must be made
simultaneously. Further, the Court is not persuaded that ArcSoft has suffered any prejudice due to the delayed
notice. The Court therefore finds that ArcSoft has not carried its burden of justifying its challenge to the subpoena on
this ground.
2.
Dolby’s Procedural Arguments
Dolby attacks ArcSoft’s motion to quash on three procedural grounds. First, Dolby argues that ArcSoft’s motion is
untimely. Second, Dolby argues that ArcSoft was required to file a separate statement in support of its motion and
failed to do so in violation of California Rules of Court, rule 3.1345. Finally, Dobly argues that ArcSoft failed to meet
and confer prior to filing the motion.
As to the first argument, Dolby directs the Court to CCP section 1987.1, which provides that a motion to quash a
subpoena must be “reasonably made.” Dolby contends that “reasonably made” means that the motion must be filed
prior to the date of production specified in the subpoena. This is incorrect. As ArcSoft points out, the Court of Appeal
rejected this argument in Sagle v. Superior Court (1989) 211 Cal.App.3d 1309. There, the court held that the trial
court does not lose jurisdiction to consider a motion to quash a business records subpoena that is brought after the
date for production. (Sagle, supra, 211 Cal.App.3d at p. 1312.) Here, the motion to quash was made two days after
the original date of compliance listed in the subpoena and four days prior to the amended date for production agreed
upon by counsel for Dolby and counsel for BDO. Under these circumstances, the Court finds that the motion was
reasonably made as far as that phrase applies to the timeliness of the motion.
Next, Dolby argues that ArcSoft’s motion is defective because it is not accompanied by a separate statement. Dolby
is correct that rule 3.1345 of the California Rules of Court requires motions to quash to be accompanied by a
separate statement that provides “all the information necessary to understand each discovery request.” (See Cal.
Rules of Court, rule 3.1345(c).) The Court disagrees, however, that this is a ground upon which the motion should be
denied. There are only two requests at issue, and those requests are attached to ArcSoft’s motion. Thus, the Court is
not left guessing the exact language of the requests. Moreover, all of ArcSoft’s arguments apply to both requests. In
other words, while a separate statement was technically required, the inclusion of a separate statement would not
have significantly aided the Court in resolving the parties’ dispute in this instance.
Finally, Dolby argues that ArcSoft failed to meet and confer and that the motion should be denied on that ground.
While the Code section cited by ArcSoft as the basis of its motion (CCP section 2025.410) requires a motion to
quash a deposition notice to be accompanied by a meet and confer declaration, the Code section applicable to
motions to quash a business records subpoena (CCP section 1987.1) does not. Because the Court is treating this
motion as being brought pursuant to CCP section 1987.1, the fact that counsel for ArcSoft failed to meet and confer
prior to filing the motion is not problematic.
C.
Substantive Arguments
In the subpoena, Dolby asked BDO to produce the following two categories of documents: (1) any financial statement
audits and quarterly reviews conducted by BDO for ArcSoft; and (2) all accounting related documents provided to
BDO by ArcSoft. (Aviles Decl., Ex. 1.) Dolby also has informed the Court that, following meet and confer efforts
between counsel for Dolby and BDO, the scope of the requests has been narrowed to papers in BDO’s possession
related to ArcSoft’s revenues and documents reflecting ArcSoft’s description of its business to BDO. (Scott Decl., ¶
5.)
ArcSoft does not address the narrowed scope of the requests. As to the original requests, ArcSoft argues that the
requests are overly broad and not reasonably particularized (which appear to be the same argument in ArcSoft’s
moving papers) and that, given the overbreadth of the requests, the information sought by Dolby is irrelevant. ArcSoft
also contends that the information is protected by the right to privacy.
The Court recently addressed, and rejected, these same arguments. On 16 November 2014, the Court issued an
order granting Dolby’s motion to compel a further response to a document demand served on ArcSoft. (Order on
Discovery Motions, attached to the Declaration of George Morris in Support of Dolby’s Opposition to ArcSoft’s Motion
to Quash, Ex. 3.) The request at issue demanded that ArcSoft produce “[m]onthly, quarterly and annual income
statements and balance sheets . . . from 2004 to present.” (Id., at p. 6.) ArcSoft objected to the request on the
grounds of relevance, overbreadth, and privacy. The Court overruled each of these objections.
Concerning the relevance of the information, the Court noted that the documents were relevant to one of ArcSoft’s
primary defenses. (Id., at p. 7.) More specifically, ArcSoft has alleged as a defense against Dolby’s breach of contract
claim that, while ArcSoft did in fact distribute Dolby technologies to third parties without reporting or paying royalties
to Dolby for the distributions, ArcSoft was not responsible for those royalties because it required the third parties to
obtain a separate license from Dolby before the customer could distribute products containing Dolby technology. In
the previous motion, Dolby argued that the information will reveal if ArcSoft did in fact create conditions on their sales
and directed the Court to certain accounting standards that require financial statements in the software industry to
note whether revenue is recognized immediately or if it is conditional. The Court agreed and found the information
sought by the requests relevant.
The same analysis applies here. BDO is, among other things, a public accounting firm and was hired by ArcSoft to
conduct annual audits on ArcSoft’s business from 2005 to 2010. (Dec. of Sean Bi in Support of ArcSoft’s Mot. to
Quash, ¶¶ 4, 5.) If ArcSoft’s sales of software containing Dolby technology to third parties was conditioned upon the
third parties obtaining a license directly from Dolby, such information would have been supplied by ArcSoft to BDO
pursuant to the accounting standards cited by Dolby. Similarly, whether the sales were conditional would be reflected
in the audits performed by BDO. ArcSoft has not contended otherwise. Thus, for the reasons stated in the Court’s 16
November 2014 order, and for the reasons stated above, the Court finds that the business records subpoena served
on BDO seeks relevant information.
In the 16 November 2014 order, the Court also rejected ArcSoft’s privacy and overbreadth arguments. As to
ArcSoft’s privacy objection, the Court noted that ArcSoft had failed to explain why it was entitled to invoke the right to
privacy in the first instance. (See Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 314 n.16
[explaining that the question of whether a business entity—as opposed to a natural person—may object to discovery
requests on the basis of privacy remains unsettled].) In the present motion, ArcSoft focuses on the legal question of
whether a business entity may invoke the right to privacy. ArcSoft does not, however, explain why the information
sought by Dolby in the business records subpoena falls within that protection or why the parties’ protective order
would not be sufficient to protect ArcSoft’s alleged privacy interest. Thus, even if the Court were persuaded that a
business entity could assert a privacy objection under the current state of the law, ArcSoft has nonetheless failed to
justify why the subpoena should be quashed on the basis of privacy.
Finally, as to the overbreadth argument, ArcSoft contends that the requests attached to the subpoena are overly
broad because “there is no relevance to any of ArcSoft’s financial information.” (ArcSoft’s Mem. of Ps & As, at p. 5.)
As indicated above, the Court disagrees, and finds that the information is relevant for discovery purposes. Moreover,
ArcSoft has failed to address the fact that the scope of the requests has been narrowed during the meet and confer
efforts between counsel for BDO and Dolby. Accordingly, the Court finds that the subpoena should not be quashed
on the basis of overbreadth.
In sum, ArcSoft has failed to demonstrate that the subpoena is procedurally defective or that the requests attached to
the subpoena are objectionable on any substantive ground.
IV.
Conclusion and Order
ArcSoft’s motion to quash is DENIED.
____________________________
DATED:
_________________________________________________
HON. SOCRATES PETER MANOUKIAN
Judge of the Superior Court
County of Santa Clara
- oo0oo -
Calendar line 4
- oo0oo -
Calendar line 5
SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
DEPARTMENT 19
161 North First Street, San Jose, CA 95113
408.882.2310 · 408.882.2299(fax)
smanoukian@scscourt.org
http://www.scscourt.org
B. Thibadeau v. City of Cupertino, et al.
DATE: 16 January 2015
TIME: 9:00
(For Clerk's Use Only)
CASE NO. 112CV234911
LINE NUMBER: 5
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 408.882.2310 and the opposing party no later than 4:00 PM Thursday 15
January 2015. Please specify the issue to be contested when calling the Court and counsel.
On 16 January 2015, the following motions were argued and submitted:
1.
The motion of Defendant City of Cupertino (“the City”) to compel Defendant State of California (“the State”) to
designate and produce for deposition the State’s Person Most Knowledgeable (“PMK”) 9 and produce
documents requested in the 29 October 2014 notice of deposition,
2.
the City’s motion to compel the deposition of Nader Eshghipour (“Eshghipour”) and Bob Salazar (“Salazar”)
and produce documents requested in the notice of deposition; and,
3.
the City’s motion for monetary sanctions.
Defendant State of California (“State”) filed formal opposition to the motion.10
All parties are reminded that all papers must comply with Rule of Court 3.1110(f).11
I.
Statement of Facts.
The action arises out of a 22 November 2011 trip and accident that took place on North Wolfe Road at the southwest
juncture of sidewalk and the I-280 overcrossing in Cupertino. The accident location is owned by the State of
California (“the State”) and is located within California Department of Transportation’s (“CDOT”) District 4. Plaintiff
Bob Thibadeau (“Plaintiff”) alleges he was running when he tripped and fell on a pavement offset at a juncture of the
approach sidewalk and the bridge. Plaintiff claims the offset was obscured by fallen leaves and morning shadows.
Plaintiff sustained a shoulder injury, has had two surgeries, and is claiming ongoing shoulder and arm impairment.
Plaintiff named both the City of Cupertino and the State of California as Defendants in his suit for dangerous
condition of public property filed 25 October 2012.
Plaintiff’s case against Defendants hinges on the issue of Defendants’ actual or constructive notice of the subject
9
The PMK regarding Sidewalk Repair Forms.
“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 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.”
11
sidewalk offset. The City asserts that it had no actual or constructive notice. The State admitted that it owns the
property where the accident took place but alleges it has no liability because of the Freeway Maintenance
Agreements (“FMAs”) signed and approved by the City which purportedly requires the City maintain the subject
sidewalk area. The dispute rests on the State and City’s varying interpretation of the FMAs specifically as to the
parties’ respective duties to inspect. The State asserts that the City’s duty to maintain includes a duty to inspect while
the City contends that the State has a duty to inspect and notify the City of any defects it wants the City to repair.
II.
Discovery Dispute.
On 15 July 2014 Plaintiff’s attorney deposed State employee Paul Wilson (“Wilson”), the bridge maintenance
supervisor. (Declaration of Thomas Trachuk (“Decl. Trachuk”) p. 3:7-8.) Wilson produced a 20 page Caltrans intranet
document entitled “Maintenance Agreements – Curb and Sidewalk Inspections and Repairs.” (Decl. Trachuk p. 3:810.) The State’s Intranet Form states that the State inspects sidewalks annually, noting hazardous conditions on the
“Curb and Sidewalk Repair Report Form” and then sending a “Sidewalk Notification form” to the local agency
responsible for maintenance to request the local agency to make repairs. (Decl. p.3:13-15). The State Intranet Form
directs questions to Alierza Rezaee. (Decl. Trachuk p. 3:15-16.) Wilson admitted that he did not know the State’s
sidewalk inspection policies and that he had never completed either a Sidewalk Repair form nor a Sidewalk
Notification Form. (Decl. Trachuk p. 3:16-17, 19-20.)
The City then noticed the depositions of State employee Rezaee and the State’s Person Most Knowledgeable
(“PMK”) regarding the State’s notifications of local public entities regarding requests for sidewalk repairs. (Decl.
Trachuk p. 4: 4-5;10-11.) The State’s attorney produced Paul Wilson as the State’s PMK at the 29 October 2014
depositions despite Wilson’s previous testimony that he lacked knowledge regarding this specific issue. (Decl.
Trachuk p. 4:12-14.) Each deposition notice included a request for the production of five separate categories of
documents (“RPD”) relating to the State’s sidewalk inspections and State’s notice to public entities generally, and to
the City specifically requesting sidewalk repairs. (Decl. Trachuk p. 5:1-3.) The only documents produced in response
to the RPD at the 29 October 2014 depositions of Rezaee and Wilson were the two current exemplar Repair Report
and Notification Forms. (Decl. Trachuk p. 5:3-5.)
Rezaee, at the 29 October 2014 deposition, testified that CDOT’s Deputy Director of Maintenance in District 4 where
the accident took place is Nader Eshghipour (“Eshghipour”) and that Eshghipour has overall responsibility to ensure
the District’s policies and practices for inspecting sidewalks annually is done. (Decl. Trachuk p.6:1-3.) Eashghipour’s
name is printed on the top signature line of the Sidewalk Notification Form. (Decl. Trachuk p. 6:3-4.) Rezaee further
testified that Bob Salazar (“Salazar”) currently is, and was, at the time of the accident, the regional manager and is
the one whose signature appears on the Sidewalk Notification Form letters requesting sidewalk repairs that are sent
to local public entities. (Decl. Trachuk p.7:12-16.)
The City served the State with a notice of deposition with request for production of documents12 of both Eshghipour
and Salazar to take place 3 December 2014 with each notice. (Decl. Trachuk p7:8-9; 17-19.) On 19 November 2014
counsel for the State sent a letter stating he would be unable to appear at those depositions and had no one to cover
them. (Decl. Trachuk p.8:2-3.)
Counsel for the City requested the State re-designate a PMK in lieu of Paul Wilson, to produce the RPDs requested
in the PMK deposition notice/ Rezaee’s deposition notice, and to provide a date for the depositions of Eshghipour
and Salazar which had been noticed for 3 December 2014.
A meet and confer letter was sent by City’s Counsel to counsel for State on 21 November 2014. On 26 November
2014 the State’s Objections to Deposition Notices and Requests for Production of Documents was received by the
City. (Decl. Trachuk p.9:3-4.) On 1 December 2014 counsel for State, via telephone, conveyed that despite the
State’s written objections he would still be producing witnesses for deposition and requested an extension of time for
deposition dates. (Decl. Trachuk p.9:8-12.) On 2 December 2014 counsel for State sent an email advising that the
State would not produce either Eshghipour or Salazar for deposition. (Decl. Trachuk p. 9:15-16.)
On 4 December 2014 counsel for City and State discussed withdrawing the deposition notice of Eshghipour if
Salazar’s testimony established that Salazar had knowledge of the State’s policies and procedures relating to
12
RPD Nos. 1- 19.
sidewalk inspections and repairs and the State’s communications with local public entities regarding repairs. (Decl.
Trachuk p.10:11-14.) Counsel agreed the depositions would take place 11 December 2014 following further
confirmation. On 9 December 2014 Smith faxed a letter advising that all depositions were off calendar until 15
December 2014 due to storm conditions. (Decl. Trachuk p. 11:15-16.)
On 23 December 2014, the City filed the instant motion. On 5 January 2015 the State filed a declaration of Belvin
Smith in opposition to the motion. On 12 January 2015 the State filed a reply to the City’s motion to compel. On 13
January 2015 the City filed a memorandum of points and authorities in reply to the State’s opposition to the motion
and objections to the evidence submitted by the State in opposition.
III.
Discussion
At issue in this discovery is the parties’ duty to inspect. The State contends that the FMA establishes the City’s duty
to maintain the area at issue and that duty to maintain includes a duty to inspect. The City asserts that the State has
a duty to inspect and notify the city of any defects it wants the City to repair.
1. City’s Motion to Compel the State to Produce a PMK for Deposition and Produce Requested
Documents
The City seeks an order to compel the State to produce the State’s Person Most Knowledgeable (“PMK”) 13 for
deposition and provide documents responsive to RPD Nos.1-514 in the notice of deposition for the State’s PMK and
State employee Rezaee.
A.
Compel Deposition of PMK Regarding Sidewalk Repair Form and Production of Documents
a.
Legal Standard
If, after service of a deposition notice, a party to the action or…a person designated by an organization that is a party
under Section 2025.230 [governing notices for PMK depositions], without having served a valid objection under
Section 2024.410, fails to appear for examination, or to proceed with it, or to produce for inspection any
document…described in the deposition notice, the party giving the notice may move for an order compelling the
deponent’s attendance and testimony, and the production for inspection of any document…described in the
deposition notice. (Code Civ. Proc. §2025.450, subd. (a).)
A party moving under section 2025.450 must set forth facts showing good cause justifying the production for
inspection of any document described in the deposition notice. (Code Civ. Proc. §2025.450, subd. (b)(1).) “Good
cause” has been construed liberally in the past. Justification for discovery is found where specific facts show the
documents are necessary for effective trial preparation or to prevent surprise at trial. (Associated Brewers Dist. Co.,
Inc. v. Sup. Ct. (1967) 65 C2d 583, 587.) The motion shall also be accompanied by a meet and confer declaration
under Section 2016.040. (Code Civ. Proc. §2025.450, subd. (b)(2).)
As noted above, under Code of Civil Procedure section 2025.450, subdivision (a), a party may only move for an order
compelling compliance with a deposition notice if the party or deponent failing to appear for the deposition has not
served a valid objection under section 2025.410. Section 2025.410 provides that a deponent or party may assert a
valid written objection based upon defect in the deposition notice. If a party or deponent asserts objections based on
grounds other than defects in the notice, the party or deponent must nevertheless appear for the deposition as
13 Regarding the State’s notifications of local public entities regarding requests for sidewalk repairs regarding Sidewalk Repair Forms.
14 RPD No. 1 seeks exemplars of CDOT documents entitled “Curb and Sidewalk Repair Report form” and Sidewalk Notification form”, which
forms were in use from 21 November 2000 to present. RPD No. 2 seeks any and all Curb and Sidewalk Repair Report forms noting sidewalk
defects on North Wolfe Road from 21 November 2000 to present. RPD No. 3 seeks any and all Sidewalk Notification forms, including copies of
the Curb and Sidewalk Repair Report forms, requesting repair of any sidewalk defects on North Wolfe Road that the CDOT mailed to the
director of Public Works of the City of Cupertino form 21 November 2000 to present. RPD No. 4 seeks any seeks any and all Sidewalk
Notification forms, including copies of the Curb and Sidewalk Repair Report forms, requesting repair of any sidewalk defects on North Wolfe
Road that the CDOT mailed to the County of Santa Clara from 21 November 2000 to present. RPD No. 5 seeks any and all documents
prepared by the CDOT District 4 from 21 November 2000 to the present which notify any and all local agencies allegedly responsible for
maintenance of sidewalks on North Wolfe Road to repair sidewalk deficiencies on North Wolfe Road.
noticed, unless the party or deponent files a motion to stay the taking of the deposition and quashing the deposition
notice (Code Civ. Proc. §2025.410, subd. (c)) or a motion for a protective order (Code Civ. Proc. § 2025.420. (See
CCP §2025.280, subd.(a) [“The service of a deposition notice…is effective to require any deponent who is a party to
the action…to attend and testify”].)
b.
Analysis
The City argues that the State designated an employee who lacked the requisite knowledge to competently testify
about the specific area requested in the deposition notice15 when it designated Wilson as the PMK at the 29 October
2014 deposition. Further, the City seeks documents responsive to RPD Nos. 1-5 from the newly designated PMK.
The City supports its request for production of documents in the City’s Separate Statement of Requests and
Responses16.
The State asserts that the two depositions of Wilson were not fruitful because the City continues to search for a PMK
relating to “state maintenance-curb and sidewalk inspections and repairs” and the State does not inspect sidewalks
or make repairs when there is a binding maintenance agreement with the City legally binding the City to maintain he
area. (State Reply p. 2:12-15.) The State further alleges that, as it is in this case, the State has no duty to inspect,
notify, or repair because of the FMA and that the FMA is self-executing.
Here, the information and documents the City seeks via its notice of deposition are relevant to the dispute between
the State and City and within the scope of discovery. The court in Maldonado v. Superior Court17 found that a
deposed party’s duty is limited to “producing the most knowledgeable person currently in its employ and making sure
that that person has access to information and documents reasonably available.” (Maldonado v. Superior Court
(2002) 94 Cal.App.4th 1390, 1398). Here, the State sent Wilson as the PMK at the 29 October 2014 deposition
despite Wilson’s admission at the 15 July 2014 deposition that he did not have knowledge of requests for sidewalk
repairs and could not produce the requested documents.
The State has presented objections based on grounds other than defects in the notice and at no time prior to the 29
October 2014 depositions did the State serve objections to the City’s Notices of deposition with requests for
production of documents. Thus, the State must produce a PMK for deposition. Further, the City has provided good
cause and a meet and confer declaration justifying the production for inspection RPD Nos 1-5 as described in the
deposition notice. (See Code Civ. Proc. §2025.450, subd. (b)(1).).
The Court takes note of the State’s allegation that the letters written by Thomas Trachuk are “self-serving
declarations” “disguised as meet and confer letters.”
B.
Compel Production of Documents Responsive to RPD Nos. 1-518 for Rezaee.
a.
Legal Standard
In the City’s Notice of Motion it states that the motion is made pursuant to Code Civ. Proc. Sections 2025.450 and
Regarding the State’s notifications of local public entities regarding requests for sidewalk repairs regarding Sidewalk Repair
Forms.
15
Refer to City of Cupertino’s Separate Statement of Requests and Responses Re Motion to Compel Depositions with
Production of Documents p.7-15.
16
The court found that there was no basis for the trial court denying the motion to compel and that the company should have been ordered to
bring their witnesses back to the depositions with the documents requested and with proof that the witnesses had undertaken some effort to
familiarize themselves with the areas of their supposed “knowledge.” (Maldonado v. Superior Court (2002) 94 Cal.App.4th 1390, 1397.
17
18 RPD No. 1 seeks exemplars of CDOT documents entitled “Curb and Sidewalk Repair Report form” and Sidewalk Notification form”, which
forms were in use from 21 November 2000 to present. RPD No. 2 seeks any and all Curb and Sidewalk Repair Report forms noting sidewalk
defects on North Wolfe Road from 21 November 2000 to present. RPD No. 3 seeks any and all Sidewalk Notification forms, including copies of
the Curb and Sidewalk Repair Report forms, requesting repair of any sidewalk defects on North Wolfe Road that the CDOT mailed to the
director of Public Works of the City of Cupertino form 21 November 2000 to present. RPD No. 4 seeks any seeks any and all Sidewalk
Notification forms, including copies of the Curb and Sidewalk Repair Report forms, requesting repair of any sidewalk defects on North Wolfe
Road that the CDOT mailed to the County of Santa Clara from 21 November 2000 to present. RPD No. 5 seeks any and all documents
prepared by the CDOT District 4 from 21 November 2000 to the present which notify any and all local agencies allegedly responsible for
maintenance of sidewalks on North Wolfe Road to repair sidewalk deficiencies on North Wolfe Road.
2025.480 but then fails to cite Code Civ. Proc. §2025.480 in its Memorandum of Points and Authorities .The
applicable law to compelling the production of documents responsive to RPD 1-5 by Rezaee would be Code Civ.
Proc. section 2025.480 since Rezaee appeared for deposition but then failed to produce the requested documents.
Since the State did not object on these grounds the Court shall assume §2025.480 applies.
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].) 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 Code Civ. Proc. §2025.450(b)(1).)
b.
Analysis
The City asserts that it has good cause to obtain the documents requested at the deposition of Rezaee because it
has established that the requested documents are relevant to the subject matter and material to the issues in this
action. The City also alleges that the State has failed to make any valid objections to the document requests and has
refused to search for the documents. The State, in the Declaration of Belvin Smith in Opposition to the motion, notes
that the State’s counsel informed City’s counsel that certain documents could not be produced in such a short time
frame due to the holiday season and understaffed State claims department.
Here, again, the City has provided adequate good cause19 and a meet and confer declaration justifying the
production for inspection RPD Nos 1-5 as described in Rezaee’s deposition notice. (See Code Civ. Proc. §2025.450,
subd. (b)(1).)
In light of the foregoing, the City’s motion to compel the State to designate and produce for deposition the State’s
Person Most Knowledgeable (“PMK”) 20 and produce documents requested in the 29 October 2014 notice of
deposition for the State’s PMK and Rezaee is GRANTED.
2. The City’s motion to compel the Depositions of Eshghipour and Salazar and compel production of
documents responsive to RPD Nos. 1-19
The City seeks an order compelling the State to produce Eshghipour and Salazar for deposition and production of
documents requested in the 3 December 2014 Notice of Deposition21.
A.
Legal Standard
Code Civ. Proc. § 2025.450(a) provides that where a party fails to appear at a properly noticed deposition, without
having served a valid objection, the party giving the notice may move for an order compelling the deponent’s
attendance and testimony. To compel attendance at a deposition, after a party failed to appear, the moving party
must show that the deponent was properly served with a deposition notice. (Code Civ. Proc. §2025.280(a).) The
moving party must then show that the deponent did not appear for the deposition. (Code Civ. Proc. §2025.450(a).) A
motion under Code Civ. Proc. § 2025.450(a) shall be accompanied by a meet and confer declaration under section
19 Refer to City of Cupertino’s Separate Statement of Requests and Responses Re Motion to Compel Depositions with Production of
Documents p. 2-7.
20
The PMK regarding Sidewalk Repair Forms.
21
RPD Nos. 1-19.
2016.040. (Code Civ. Proc. § 2025.450(b)(2).)
A motion to compel production of documents described in a deposition notice must be accompanied by a showing of
“good cause,” that is, declarations containing specific facts justifying inspection of the documents described in the
notice. (Code Civ. Proc. § 2025.450(b)(1).) “Good cause” has been construed liberally in the past. Justification for
discovery is found where specific facts show the documents are necessary for effective trial preparation or to prevent
surprise at trial. (Associated Brewers Dist. Co., Inc. v. Sup. Ct. (1967) 65 C2d 583, 587.)
B.
Analysis
The City noticed the depositions of Eshghipour and Salazar for 3 December 2014. Scheduling problems necessitated
pushing the depositions to a date in mid-December. Counsel for the State subsequently filed general objections to
the depositions and then declined to produce Eshghipour and Salazar for deposition. Here, the State makes several
objections.
First, that the City was seeking to complete depositions of State employees when an unusually large weather system
struck the Bay Area during the week of 8 December 2014 and that the weather system was the reason to cancel
many depositions as most employees were to work and on standby.
Second, that Eshghipour has no knowledge regarding the major allegation made by the City. Third, with regards to
the documents, the State again claims that State’s counsel informed City’s counsel that the documents could not be
produced in such a short time due to the understaffed holiday season. Fourth, the State objects to the deposition of
heads of the State declaring that the deposition seeks information that is not calculated to lead to the discovery of
information relevant to the subject matter.
Here, the State has presented objections based on grounds other than defects in the deposition notice. Thus, based
upon Code Civ. Proc. Section 2025.410 the party or deponent must nevertheless appear for the deposition as
noticed, unless the party or deponent files a motion to stay the taking of the deposition and quashing the deposition
notice the State must produce for deposition.
Further, the City has provided good cause and a meet and confer declaration justifying the production for inspection
RPD Nos. 1-19 as described in the deposition notices of Eshghipour and Salazar. (See Code Civ. Proc. §2025.450,
subd. (b)(1).) At Rezaee’s deposition on 29 October 2014 Rezaee testified he had no knowledge concerning the
State’s sidewalk inspection practices nor the State’s requests for repairs to local agencies and identified CDOT’s
Deputy Director of Maintenance in District 4, Nader Eshghipour (“Eshghipour”) as the person with overall
responsibility concerning sidewalk inspections. Rezaee also testified that the Regional Manager working under
Eashghipour, Bob Salazar (“Salazar”) is the person who sends out Sidewalk Notification forms to local public entities
requesting sidewalk repairs.
Based on the foregoing, the City’s motion to compel the State to produce for deposition State employees Eshghipour
and Salazar and compel production of documents responsive to RPD Nos. 1-19 in the 3 December 2014 notice of
depositions is GRANTED.
3. Sanctions.
The City makes a request for monetary sanctions against the State in the amount of $3,420 for the State’s refusal to
produce its employees for deposition and refusal to produce documents citing Code Civ. Proc. §2023.010(d)(e)(h),
§2023.030(a), §2025.450(g)(1), and §2025.480(j). The request is code-compliant.
Code Civ. Proc. section 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 party’s motion
must also state the applicable rule that has been violated. (Id.)
Code of Civil Procedure sections 2025.450, subd.(g)(1) and 2025.480 subd.(j) provide that if a motion to compel
production of items described in a deposition notice is granted, the court shall impose a monetary sanction against
the deponent or party with whom the deponent is affiliated unless it finds that the one subject to the sanction acted
with substantial justification or other circumstances exist which would make the imposition of sanctions unjust. Code
of Civil Procedure section 2023.030, subd.(a) 22 permits the imposition of sanctions against any party that engages in
misuse of the discovery process. The City contends that the State has done so here by failing to produce its
employees for deposition and refusing to produce requested documents. The State does not make any objections
concerning the monetary sanctions requested.
Counsel for the City is reminded that requests for monetary sanctions may not ask for anticipatory costs. Sanctions
should be awarded only for expenses actually incurred. (See Tucker v. Pacific Bell Mobile Services (2010) 186
Cal.App.4th 1548, 1551.) Counsel in calculating time spent added in 2 hours of time for the round trip for the motion
hearing which is anticipatory. Further, spending 14 attorney hours preparing papers for a motion to compel is not
reasonable. The Court will allot 4 hrs at $185 and 4 hours at $165 = $1400.
Therefore, monetary sanctions for motion to compel discovery requests is GRANTED in the amount of $1400.
IV. Order.
The City’s motion to compel the State to designate and produce for deposition the State’s Person Most
Knowledgeable (“PMK”) 23 and produce documents requested in the 29 October 2014 notice of deposition is
GRANTED. The City’s motion to compel the deposition of Nader Eshghipour (“Eshghipour”) and Bob Salazar
(“Salazar”) and produce documents requested in the notice of deposition is GRANTED. The City’s motion for
monetary sanctions against the State is GRANTED. The State is to pay the sum of $1,400 to the City within 20 days
of the filing of this order.
____________________________
DATED:
_________________________________________________
HON. SOCRATES PETER MANOUKIAN
Judge of the Superior Court
County of Santa Clara
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“Section 2023.030 authorizes a court to impose the specified types of sanctions, “[t]o the extent
authorized by the chapter governing any particular discovery method or any other provision of this title.”
This means that the statutes governing the particular discovery methods limit the permissible sanctions to
those sanctions provided under the applicable governing statutes.” (New Albertsons, Inc. v. Sup. Ct. (2008)
168 Cal.App.4th 1403, 1422.) As such, section 2023.030 does not provide an independent basis for an
award of sanctions and thus is not self-executing. In other words, to invoke section 2023.030 as a basis for
sanctions, the moving party must first be authorized to seek sanctions under the provisions in the Civil
Discovery Act applicable to the discovery requests at issue.
22
23
The PMK regarding Sidewalk Repair Forms.
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Calendar line 7
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Calendar line 8
SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
DEPARTMENT 19
161 North First Street, San Jose, CA 95113
408.882.2310 · 408.882.2299(fax)
smanoukian@scscourt.org
http://www.scscourt.org
Mario Landino v. Rosario Spatola, et al.
DATE: 16 January 2015
TIME: 9:00
(For Clerk's Use Only)
CASE NO. 113CV250091
LINE NUMBER: 8
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 408.882.2310 and the opposing party no later than 4:00 PM
Thursday 15 January 2015. Please specify the issue to be contested when calling the Court and
counsel.
On 16 January 2015, the motion of defendant/cross-complainant Rosario Spatola (“Rosario”) and defendant
Georgina Bugeja a.k.a. Georgina Spatola (“Georgina”) (collectively, “the Spatolas”) to quash subpoenas to
nonparties JP Morgan Chase Bank N.A. (“Chase”), Bank of America N.A. (“Bank of America”), American Express
Travel Related Services Company, Inc. (“American Express”), Capital One Bank (USA) N.A. (“Capital One”), and BTI
Group, Inc. d.b.a. Business Team (“BTI”) and for monetary sanctions was argued and submitted. Plaintiff/crossdefendant Mario Landino (“Landino”) filed a formal opposition to the motion.24
All parties are reminded that all papers must comply with California Rules of Court (“CRC”), rule 3.1110(f).25
I.
Statement of Facts
This action arises out of a partnership dispute. In the complaint, Landino alleges the following: In 1994, Landino and
Rosario formed a partnership to operate a pizzeria, and executed a written contract providing that each partner was
entitled to equal shares of partnership profits/losses and could “withdraw from the Partnership funds per month for
personal use,” and withdrawals would “be charged against that Partner’s share of the partnership net profits.”
(Compl., Ex. A.)
In 2012, Rosario decided to expel Landino and dissolve the partnership based on an “audit” prepared by Rosario’s
wife, Georgina, who was not qualified to conduct an audit. The Spatolas then formed a new company to take over
the partnership and its assets, and refused to allow Landino to inspect the partnership’s books.
In the cross-complaint, Rosario alleges the following: Rosario and Landino agreed that Rosario would manage the
pizzeria and Landino would perform the partnership’s bookkeeping/accounting. In November 2011, the Spatolas
applied for a home loan modification that required them to produce the partnership’s financial records. Landino gave
the records to Rosario. The Spatolas reviewed the records and found that Landino misappropriated partnership
funds. The Spatolas also believe that Cross-Defendants conspired to help Landino breach his fiduciary duties.
As this Court understands the composition of the parties, Landino is the plaintiff. Landino, Mariella Landino, Guiseppe
Landino, Mary Landino, Brian Garret, and Gary Kelmenson (collectively, “Cross-Defendants”) are the cross-defendants. The
opposition is filed only on behalf of Landino. (See Landino’s Opp’n, at p. 1:23-24 [“plaintiff Mario Landino (‘Plaintiff’) should be
awarded his reasonable attorneys fees for having to oppose this motion”].)
24
“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.”
25
II.
Discovery Dispute
On 13 November 2014, Landino issued subpoenas for business records to Chase, Bank of America, American
Express, and Capital One (collectively, “the Banks”), seeking records from various financial accounts of the Spatolas.
The same day, Landino issued a subpoena for business records to BTI—Georgina’s employer—seeking the
production of documents concerning the pizzeria, DG, the audit, Rosario, and Landino, as well as Georgina’s
personnel records and employment history.
The Spatolas believe that the discovery sought by the subpoenas is irrelevant, overbroad, unduly burdensome and
oppressive, and protected from disclosure by their privacy rights.
On 26 November 2014, the Spatolas filed this motion to quash the subpoenas and for an award of monetary
sanctions against Cross-Defendants.
On 5 January 2015, Landino filed an opposition to the motion and requests an award of monetary sanctions against
the Spatolas and their counsel.
The Spatolas filed reply papers on 12 January 2015.
III.
Discussion
A. Motion to Quash
The Spatolas move to quash the subpoenas to the Banks and BTI pursuant to Code of Civil Procedure (“CCP”)
section 1987.1, which provides that, if a subpoena requires the production of documents, a party may move for “an
order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as
the court shall declare.26 (CCP, § 1987.1, subd. (a).)
Landino opposes the motion, and as a threshold matter, asserts that the motion should be summarily denied based
on procedural defects because the Spatolas did not name the parties to whom the motion is addressed, meet and
confer, or file a separate statement and copies of the subpoenas with the moving papers.27
B. Procedural Matters
First, Landino contends that the motion is fatally defective because it does not name the parties to whom it is
addressed. CRC, rule 3.1112(d) provides that a “motion must . . . [n]ame the parties to whom it is addressed.” The
motion states that it is directed “to all parties and their attorneys of record” (the Spatolas’ Notice, at p. 1:25), but the
subpoenas were issued only by Landino, and the Spatolas request sanctions against Cross-Defendants. Thus, the
moving papers do not properly name the parties to whom it is addressed. In any event, Landino was able to respond
to the substantive merits of the motion. Therefore, the Court will not summarily deny the motion simply because it
does not properly name the parties.28
In reply, the Spatolas request an order quashing the subpoenas, “or alternatively, the subpoenas should be limited in scope to
those matters at [sic] relevant to the litigation with a protective order in place.” The Spatolas did not request an order modifying
the subpoenas or a protective order in their moving papers. Code of Civil Procedure (“CCP”) section 1987.1, subdivision (a)
provides that courts may make an order modifying a subpoena “upon motion reasonably made by [a party], or upon the court’s
own motion after giving counsel notice and an opportunity to be heard.”
26
Since the Spatolas did not include a request for an order modifying the subpoenas in their moving papers and do not otherwise
specify how the subpoenas should be modified, they have not reasonably made a motion for an order modifying the subpoenas.
That being said, CCP section 1987.1, subdivision (a) also authorizes courts to “make any other order as may be appropriate to
protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the
person.” Accordingly, if the Court finds a protective order is appropriate, then it will issue such an order.
In addition, Landino objects to Georgina’s declaration filed in support of the motion. Since there is no authority requiring the
Court to rule on evidentiary objections made in connection with a discovery motion, the Court declines to rule on the evidentiary
objections.
27
However, the Court will consider the fact that motion is not properly addressed to the other cross-defendants in connection
with the Spatolas’ request for an award of monetary sanctions.
28
Next, Landino argues that the Spatolas failed to meet and confer before bringing this motion. Where a subpoena
issued to a party’s bank seeks the production of that party’s personal records, the party is not required to meet and
confer before filing a motion to quash the subpoena. (See CCP, §§ 1987.1 [not requiring the moving party to meet
and confer] & 1985.3, subds. (a) [“consumer” is a person who used the services of a “witness,” e.g., a bank] & (g)
[authorizing a consumer/party to bring a motion to quash a subpoena for personal records without imposing a meet
and confer requirement].) Thus, the Court will not summarily deny the motion for lack of meet and confer efforts.29
Landino also insists that the motion should be summarily denied for lack of a separate statement. A motion to quash
a subpoena for records must be supported by a separate statement “that provides all the information necessary to
understand each discovery request and all the responses to it that are at issue” and sets forth “the text” of each
discovery request. (CRC, rule 3.1345(a)(3) & (c).) Courts have the discretion, but are not required, to deny a
discovery motion for lack of a separate statement that complies with the CRC. (Mills v. U.S. Bank (2008) 166
Cal.App.4th 871, 894.)
The Spatolas did not submit a separate statement as required.30 The Court considered summarily denying the
motion for this reason alone.31 However, the Spatolas quote text from that subpoena to BTI and describe the
discovery sought by the subpoenas to the Banks in their moving papers. (The Spatolas’ P&A, at pp. 5:25-6:2, 6:14,
6:16, 6:28-7:5; Georgina’s decl., at ¶ 2.) The Spatolas also submit copies of the subpoenas with their reply papers.
(Dewhirst decl., Ex. 1.) This information is sufficient for the Court to determine what records are sought by the
subpoenas. Furthermore, Landino addresses the substantive merits of the motion to quash in his opposition, and
thus, it appears he was not prejudiced by the lack of a separate statement. Accordingly, the Court exercises its
discretion to consider the merits of the motion, despite the lack of a separate statement that complies with the CRC.
Lastly, Landino insists that the motion should be summarily denied because the Spatolas did not submit copies of the
subpoenas with the moving papers. While it is true that the Spatolas did not submit copies of the subject subpoenas
with the moving papers,32 Landino cites no legal basis in support of his position that a motion to quash should be
denied where the moving party does not attach the subpoenas to the moving papers.33 In any event, the Spatolas
submitted copies of the subpoenas with their reply papers. The Court will therefore not summarily deny the motion
simply because the Spatolas did not submit copies of the subpoenas with the moving papers.
In light of the foregoing, Landino’s assertion that the motion to quash should be summarily denied on procedural
grounds is unavailing, and the Court will consider the merits of the motion.
C. Merits of the Motion
While meeting and conferring is not required, the parties are always encouraged to work out their differences informally so as
to avoid the necessity for a formal order. The Court has concerns when there does not appear to be any effort to resolve
discovery issues without Court intervention. (See McElhaney v. Cessna Aircraft Co. (1982) 134 Cal.App.3d 285, 289.)
29
In reply, the Spatolas insist that CRC, rule 3.1345 does not require them to provide a separate statement because that rule
only applies where the subject subpoena seek the production of documents “at a deposition.” (The Spatolas’ Reply, at p. 3:3-12,
emphasis in original.) The Spatolas’ argument lacks merit because, “under the plain meaning rule, the [Civil Discovery] Act
contemplates that discovery conducted by way of a business records subpoena is a ‘deposition.’” (See Unzipped Apparel LLC v.
Bader (2007) 156 Cal.App.4th 123, 131.) Therefore, contrary to the Spatolas’ assertion, the subpoenas at issue are deposition
subpoenas, and CRC, rule 3.1345 applies.
30
Notably, the Spatolas previously filed a similar motion to quash a subpoena to Chase that was set to be heard on
12 December 2014, without filing the requisite supporting separate statement. The Spatolas withdrew their first motion after the
Court posted its tentative ruling on 11 December 2014 (“Prior Tentative Ruling”), wherein the Court advised that it “had given
thought to summarily denying the motion for this reason alone,” since the Court “feels that the more ‘bad behavior’ it tolerates,
the more ‘bad behavior’ it is going to get.” (Prior Tentative Ruling, at p. 2 & fn. 12.)
31
Georgina states that copies of the subpoenas are attached to her declaration as an exhibit (Georgina decl., at ¶ 2), but there
are no exhibits attached to her declaration and the Spatolas did not otherwise submit copies of the subpoenas.
32
As the Court previously informed the parties and their counsel, the Court “will suggest that all counsel become familiar with
CRC, rule 3.112(b): ‘Other papers may be filed in support of a motion, including declarations, exhibits, appendices, and other
documents or pleadings.’” (Prior Tentative Ruling, at p. 3.)
33
The subpoenas to the Banks seek account statements and documents reflecting any deposits and withdrawals made
by or on behalf of the Spatolas from August 1, 2007 to the present, from specific accounts. The subpoena to BTI
seeks the production of documents concerning the pizzeria, the partnership, DG, the Spatolas, Landino, and the
audit, as well as Georgina’s employment/payroll records and employment history, BTI’s decision and offer to employ
Georgina, the conditions and benefits of Georgina’s employment and her employment contract, Georgina’s job title(s)
and duties, Georgina’s job evaluations and complaints/grievances, documents showing Georgina’s salary and other
forms of income provided by BTI, communications between Georgina and BTI, and other documents referring or
relating to Georgina.
The Spatolas object to the subpoenas on the grounds that the subpoenas are “oppressive, overbroad or unduly
burdensome,” the discovery sought is not relevant, and the disclosure of such information “would be an unreasonable
violation of [the Spatolas’] right of privacy.”
It is the objecting party’s burden to justify the objections. (See Fairmont Ins. Co. v. Super. Ct. (Stendell) (2000) 22
Cal.4th 245, 255.) The merits of the Spatolas’ objections are discussed in turn below.
1.
Relevance and Overbreadth Objections
Discovery is allowed for any matter that is not privileged, relevant to the subject matter involved in the action, and
reasonably calculated to lead to the discovery of admissible evidence. (CCP, § 2017.010.) The “relevance to the
subject matter” and “reasonably calculated to lead to the discovery of admissible evidence” standards are applied
liberally with any doubt generally resolved in favor of discovery. (Colonial Life & Acc. Ins. Co. v. Super. Ct. (1982) 31
Cal.3d 785, 790.) Admissible evidence is evidence “having any tendency in reason to prove or disprove any disputed
fact that is of consequence to the determination of the action.” (Evid. Code, §§ 210 & 350-351.) Moreover, for
discovery purposes, information is “relevant to the subject matter” 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.)
i.
Subpoenas to the Banks
The Spatolas first insist that the discovery sought by the subpoenas to the Banks is not relevant to this case because
it encompasses a seven-year period. This argument lacks merit. Landino alleges that after forming the partnership
in 1994, Rosario wrongfully acquired and refused to account for partnership assets and failed to pay Landino his
equal share of partnership profits, including $50,000 of partnership funds that the Spatolas unilaterally decided they
were entitled to receive in 2012. (Compl., ¶¶ 17, 20, 26, 47, & 62-67.) In contrast, Rosario alleges that he and
Landino are entitled to equal shares of the partnership’s profits/assets, but the parties disagree as to the amount of
partnership funds that each is entitled to receive in light of the funds previously paid to (or taken by) each partner.
(Cross-Compl., ¶¶ 15, 18, & 37-38.) Thus, the income Rosario received from the partnership—including income
received in the past seven years—is a disputed fact that is of consequence to the determination of the parties’
claims. Therefore, the discovery of the Spatolas’ bank records for the past seven years is relevant to the subject
matter and reasonably calculated to lead to the discovery of admissible evidence.
Next, the Spatolas argue that the discovery sought by the subpoenas to the Banks is not relevant because Landino
was responsible for maintaining the partnership’s financial records. This contention is unavailing, as the discovery
sought pertaining to the income that Rosario and his wife received from the partnership is relevant to determine the
value of each partner’s share of partnership assets regardless of whether Landino maintained the partnership’s
accounting/bookkeeping records.
Lastly, the Spatolas assert that the discovery sought is not relevant because it encompasses Georgina’s financial
information, and Georgina was never a partner. However, records of Georgina’s income from the partnership are
relevant to determine each partner’s share of the partnership assets, since (1) Georgina allegedly married Rosario in
the late 1990s, (2) the Spatolas—including Georgina—allegedly acquired $50,000 in partnership funds in 2012, and
(3) the Spatolas allegedly formed DG and caused DG to wrongfully acquire partnership assets. In any event, the
discovery sought reflects Rosario’s income from the partnership, and thus—regardless of whether Georgina’s
financial information is relevant—the discovery sought is reasonably calculated to lead to the discovery of admissible
evidence.
Accordingly, the relevance and overbreadth objections to the subpoenas to the Banks are overruled.
ii.
Subpoena to BTI
The subpoena to BTI seeks documents reflecting Georgina’s income as well as her personnel records and
employment history from 2004 to the present.
As discussed above, documents showing Georgina’s income are reasonably calculated to lead to the discovery of
admissible evidence regarding each partner’s share of partnership assets.
In addition, Landino argues that the discovery sought by the subpoena to BTI encompasses records pertaining to the
audit and Georgina’s employment qualifications and experience, and such discovery is relevant to Rosario’s
allegation that Georgina was qualified to audit the partnership’s financial records. Both parties allege that Rosario
decided to dissolve the partnership, expel Landino, and unilaterally divide the remaining partnership assets based on
the results of Georgina’s audit of the partnership’s financial records. However, Landino alleges that the audit was
improper because Georgina was not qualified to conduct such an audit, and Rosario alleges that Georgina was
qualified based on her prior training and experience. (Compl., ¶ 18; Cross-Compl., ¶ 15.) The discovery sought by
the subpoena to BTI is reasonably calculated to lead to the discovery of admissible evidence pertaining to the audit
and Georgina’s qualifications to perform such an audit, e.g., her prior accounting and bookkeeping training and
experience. Thus, the discovery sought is relevant.
The relevance and overbreadth objections to the subpoena to BTI are accordingly overruled.
2.
Undue Burden and Oppression Objections
The Spatolas argue that the subpoenas to the Banks are unduly burdensome and oppressive because the Banks
“should not be required to search their records for business and financial information that has no relevance to any
legitimate issue in this litigation.” (The Spatolas’ P&A, at p. 7:8-11.) The Spatolas also insist that the subpoena to
BTI is unduly burdensome and oppressive because it is overbroad.
“[S]ome burden is inherent in all demands for discovery,” and a party claiming that requested discovery is unduly
burdensome must make a particularized showing of facts demonstrating the hardship. (West Pico Furniture Co. v.
Superior Court (1961) 56 Cal.2d 407, 417-418.) For example, a discovery request seeking the production of
documents has been found to be “oppressive” where declarations showed that responding would require the review
of over 13,000 insurance claim files, requiring five adjusters to each work full-time for six weeks. (Mead Reinsurance
Co. v. Super. Ct. (1986) 188 Cal.App.3d 313, 318.)
Here, the Spatolas present no facts indicating that the Banks and BTI would experience hardship if required to
produce the discovery sought by the subpoena. This could have been accomplished by stating the number of hours
it would take for the subpoenaed parties to locate/produce the responsive documents and at what cost. Thus, the
Spatolas have not justified their undue burden and oppression objections.
The objections on the grounds of undue burden and oppression are therefore overruled.
3.
Privacy Objection
The Spatolas insist that the discovery sought by the subpoenas is protected from disclosure by their right to privacy
in their financial information and Georgina’s right to privacy in her personnel records and employment history.
The right of privacy protects an individual’s “reasonable expectation of privacy against a serious invasion,” meaning
that there is a legally protected privacy interest, a reasonable expectation of privacy under the particular
circumstances, and a serious invasion of the interest. (Pioneer Electronics, Inc. v. Super. Ct. (2007) 40 Cal.4th 360,
370-371 [“Pioneer”]; Alch v. Super. Ct. (2008) 165 Cal.App.4th 1412, 1423-1424 [“Alch”].) Courts have found serious
invasions of privacy interests exist where parties to civil litigation have sought to discover the financial information,
employment histories, and confidential personnel records of other individuals. (Fortunato v. Super. Ct. (2003) 114
Cal.App.4th 475, 480 [financial information]; Valley Bank of Nevada v. Super. Ct. (1975) 15 Cal.3d 652, 656-657
[“Valley Bank”] [bank account records]; Alch, supra, at pp. 1432-1433 [employment history]; San Diego Trolley v.
Super. Ct. (2001) 87 Cal.App.4th 1083, 1097 [“San Diego Trolley”] [personnel records]; Board of Trustees of Leland
Stanford Jr. Univ. v. Super. Ct. (1981) 119 Cal.App.3d 516, 530, 533 [defining confidential personnel records to
include records used to determine the individual’s qualifications].)
To the extent the subpoena to BTI seeks documents pertaining to the pizzeria, DG, Rosario, Landino, and the audit,
the discovery sought does not implicate the Spatolas’ privacy rights. To the extent the subpoenas seek records
concerning the Spatolas’ financial information and Georgina’s personnel records and employment history, the
Spatolas’ privacy rights are implicated.
However, the right to privacy is not absolute, and where privacy rights are implicated, the court must “carefully
balance” the right of privacy and the right of civil litigants to discover relevant facts. (Valley Bank, supra, at 657.)
Generally, “the more sensitive the nature of the personal information that is sought to be discovered, the more
substantial the showing of the need for the discovery that will be required before disclosure will be permitted.”
(Hooser v. Super. Ct. (2000) 84 Cal.App.4th 997, 1004.) In balancing interests, courts consider “the purpose of the
information sought, the effect that disclosure will have on the parties and on the trial, the nature of the objections
urged by the party resisting disclosure, and ability of the court to make an alternative order which may grant partial
disclosure, disclosure in another form, or disclosure only in the event that the party seeking the information
undertakes certain specified burdens which appear just under the circumstances.” (Id., at p. 658, citing Greyhound
Corp. v. Super. Ct. (1961) 56 Cal.2d 355, 382; see also Pioneer, supra, at p. 371 [a protective order limiting the
dissemination and use of private information will assuage privacy concerns].) In the discovery context, if a serious
invasion of privacy is established, then discovery will be allowed where the party seeking discovery shows a
“compelling need” for the discovery sought, i.e. the discovery sought is “directly relevant” and “essential to the fair
resolution” of a matter in dispute. (Alch, supra, at p. 1425, citing Britt v. Super. Ct. (1978) 20 Cal.3d 844, 848, 859.)
During pre-trial discovery, since “uncertainty is inevitable” about the information actually contained in the discovery
sought, direct relevance may be established even though the discovery sought encompasses “irrelevant or unusable”
information. (Id., at p. 1429-1430.) Also, if a serious invasion or privacy is established, then discovery will only be
allowed by the least intrusive means. (Allen v. Super. Ct. (Sierra) (1984) 151 Cal.App.3d 447, 449.)
The merits of the privacy objections based employment/personnel records sought by the subpoena to BTI and
financial information sought by the subpoenas to the Banks and BTI are discussed separately below.
i.
Employment/Personnel Records
With respect to the direct relevance requirement, Landino maintains that he has a compelling need to discover
Georgina’s employment records in order to fairly litigate the issue of whether Georgina was qualified to conduct an
audit. Landino alleges that Georgina was not qualified to conduct such an audit because she “is not a CPA,
accountant or auditor, and has absolutely no clue how to audit a business such as the pizzeria,” and thus, Georgina
intentionally interfered with the partnership and Rosario’s decision to expel Landino and deprive him of partnership
assets based on the audit was improper, in breach of the partnership agreement, and part of the Spatolas’
conspiracy to deprive Landino of his share of partnership assets. (Compl., ¶¶ 18, 26, 39, & 57.) In contrast, Rosario
alleges that Georgina was qualified to conduct an audit because she “had prior accounting and bookkeeping training
and experience in creating and evaluating balance sheets, general ledgers, and other accounting records.” (CrossCompl., ¶ 15.) In support of this motion, Georgina declares that she is “employed as a business broker and
conducted an audit of the accounting records for [the partnership] and uncovered Mr. Landino’s embezzlement.”
(Georgina’s decl., ¶ 1.) Therefore, there is a dispute as to whether Georgina was qualified to audit the partnership’s
financial records, and evidence showing her qualifications based on her work-related training, employment
experience, and job duties is necessary to fairly litigate the matter. Since Georgina’s employment history and
personnel records will reflect her qualifications, Landino has established that Georgina’s employment records are
directly relevant.
Turning to the least intrusive means element, where a party seeks to discover another individual’s confidential
personnel/employment records, the party seeking discovery must show that the discovery request is sufficiently
narrow and “the information cannot reasonably be obtained through depositions or from nonconfidential sources.
[Citation.]” (Harding Lawson Associates v. Super. Ct. (1992) 10 Cal.App.4th 7, 10.) The subpoena to BTI seeks the
production of Georgina’s personnel records and employment history from 2004 to the present. Given that Rosario
alleges that Georgina’s qualifications to conduct an audit of the partnership generally stem from her prior
experience/training and Georgina suggests that her qualifications are based on her work as a business broker, the
subpoena to BTI is sufficiently narrow. In addition, Landino presents evidence that he propounded requests for
production of documents on Rosario seeking any documents concerning Georgina’s audit and Rosario’s allegations
and claims, but in response, Rosario did not produce documents evidencing Georgina’s qualifications or identify any
non-confidential source(s) from which such records could be obtained. (Elliott decl., ¶¶ 4-5 & Exs. B-C.) Since the
subpoena to BTI is sufficiently narrow and Landino has attempted to obtain discovery through non-confidential
sources, Landino has shown that the subpoena to BTI is the least intrusive means to obtain the subject information.
Thus, Landino has shown a compelling need for the discovery of Georgina’s personnel/employment records and that
the subpoena to BTI is the least intrusive means to obtain the information sought. Furthermore, the Court is inclined
to issue a protective order to assuage privacy concerns. (See Pioneer, supra, at p. 371 [“[p]rotective measures,
safeguards and other alternatives may minimize the privacy intrusion”; e.g., “if intrusion is limited and confidential
information is carefully shielded from disclosure except to those who have a legitimate need to know, privacy
concerns are assuaged”].)
Accordingly, to the extent the subpoena to BTI seeks Georgina’s personnel records and employment history, the
privacy objection is overruled.
ii.
Financial Information
With respect to the subpoenas to the Banks, Landino asserts that the discovery sought is “directly relevant to the
issues raised by [the Spatolas’] cross-complaint.” (Landino’s Opp’n, at p. 6:19-21.) His counsel declares that the
discovery sought is necessary to litigate the parties’ claims because bank records showing how much money the
Spatolas received from the partnership—especially cash deposits given that the pizzeria received a significant
amount of its income in cash—are essential to the fair resolution of disputed material facts. (Elliott decl., at ¶ 3.)
This argument is well-taken. When one partner asserts claims for accounting and conversion against the other
partner for allegedly misappropriating partnership funds, then the partners’ personal financial records are
“fundamental” to the litigation in order to prove the amount of money each partner received from the partnership.
(Rawnsley v. Super. Ct. (1986) 183 Cal.App.3d 86, 91 [“Rawnsley”].) Here, the discovery sought regarding the
Spatolas’ financial records is necessary to determine the amount of money the Spatolas received from the
partnership, and such information is essential to the fair resolution of the claims for conversion and accounting.
As for the subpoena to BTI, the Spatolas insist that the discovery sought is not directly relevant because it contains
information about Georgina’s salary, W-2 forms, compensation, “and/or any other form of income or remuneration.”
(The Spatolas’ P&A, at p. 6:18-22.) As discussed above, Landino has a compelling need to discover the Spatolas’
financial records, including records showing their income, in order to make an accurate accounting of the partners’
income from the pizzeria which typically engaged in cash transactions. Information about Georgina’s salary, other
forms of income from her employer, and tax forms will also reflect the Spatolas’ income. Such discovery is directly
relevant to the litigation in order to determine each partner’s respective share of partnership assets, especially since
the pizzeria typically conducted transactions in cash. Moreover, although not mentioned by Landino, Landino alleges
that the Spatolas were motivated to conspire to deprive him of his share of partnership assets because, shortly after
Rosario married Georgina in 1994, Rosario “began to live beyond his means” and had “a continuous need of cash” to
repay the Spatolas’ debts. (Compl., ¶ 14.) Records showing the Spatolas’ income from Georgina’s employer are
necessary to prove this allegation. Thus, Georgina’s records of income are directly relevant.
Next, Landino argues that the subpoenas are the least intrusive means to obtain the Spatolas’ financial records.
Where one partner asserts claims for conversion and accounting against the other based on an alleged
misappropriation of partnership funds, “[t]he only way [the partner] can prove his case is to obtain [the other partner’s]
financial records.” (Rawnsley, supra, at p. 91.) In this case, Landino previously propounded requests for the
production of documents on the Spatolas seeking to discover their financial records records, but the Spatolas did not
produce all of the responsive records necessary to create an accounting. (Elliott decl., at ¶ 4-5 & Ex. C.) Thus,
Landino has demonstrated that the subpoenas to the Banks and BTI are the least intrusive means to obtain the
information sought.
To summarize, Landino has shown that the financial information sought by the subpoenas is directly relevant to the
litigation and the subpoenas are the least intrusive means to obtain the discovery sought. Further, the Court finds
that a protective order is appropriate to assuage the Spatolas’ privacy concerns. (See Pioneer, supra, at p. 371.)
Thus, to the extent the subpoenas seek records showing the Spatolas’ financial information, the privacy objection is
overruled.
C. Conclusion
In sum, the Spatolas’ objections are overruled. The motion to quash the subpoenas is accordingly DENIED.
However, a protective order limiting the dissemination and use of responsive records that disclose the Spatolas’
financial information and Georgina’s personnel/employment records is warranted. The terms of the protective order
are set forth below.
D. Requests for Monetary Sanctions
1.
The Spatolas’ Request
The Spatolas request an award of monetary sanctions against “Plaintiff and Cross-Defendants” under CCP
section 1987.2.34
Since the notice refers to “Cross-Defendants” plural, it would appear that the Spatolas request an award of monetary
sanctions against Landino and the other named cross-defendants. However, the Spatolas do not proffer arguments
to support their request for monetary sanctions against Kelmenson, Mariella, Guiseppe, Mary, and Garrett, and the
Spatolas did not properly name the other cross-defendants as addressees of this motion.
Accordingly, the request for monetary sanctions against Kelmenson, Mariella, Guiseppe, Mary, and Garrett is not
adequately supported or addressed, and an award of monetary sanctions against those parties is not warranted.
Furthermore, a request for a monetary sanction shall “be accompanied by a declaration setting forth facts supporting
the amount of any monetary sanction sought.” (CCP, § 2023.040.) However, the Spatolas do not submit a
declaration supporting the amount of the monetary sanction sought. Thus, to the extent they request sanctions
against Landino—or, for that matter, against Cross-Defendants—their request is not code-compliant.
The Spatolas’ request for an award of monetary sanctions is therefore DENIED.
2.
Landino’s Request
Landino makes a code-compliant request for monetary sanctions against the Spatolas and their counsel in the
amount of $1,148.50.
CCP section 1987.2, subdivision (a) provides that a court has the discretion to award monetary sanctions “if the court
finds the motion was made or opposed in bad faith or without substantial justification.”
Here, the Spatolas’ motion has been denied. Given that the Spatolas did not justify any of their objections, the Court
finds the motion was made without substantial justification. An award of monetary sanctions is therefore warranted.
Landino’s counsel declares that he spent 3.3 hours preparing the opposition at a rate of $295 per hour (3.3 x $295 =
$973.50), and another attorney at his firm spent 0.5 hours preparing the opposition at a rate of $350 per hour (0.5 x
$350 = $175), for a total of $1,148.50 ($973.50 + $175 = $1,148.50) in attorney’s fees. (Elliott decl., at ¶¶ 10-13.)
A court may award monetary sanctions for the reasonable expenses, including attorney’s fees, incurred in opposing a
motion to quash brought under CCP section 1987.1. (CCP, § 1987.2, subd. (a).) The Court finds the time counsel
and the other attorney spent on this matter and their hourly rates to be reasonable.
Thus, Landino’s request for an award of monetary sanctions against the Spatolas and their counsel is GRANTED in
the full amount requested, i.e. $1,148.50.
IV. Conclusion and Order
The Spatolas’ motion to quash the subpoenas is DENIED. Accordingly, within 20 days of the date of the filing of this
Order, or at another date mutually agreed upon by Landino and the subpoenaed parties, the Banks and BTI shall
produce documents responsive to their respective subpoenas. To the extent the records produced in response to the
subpoenas reflect the Spatolas’ financial information and/or Georginia’s personnel records and employment history,
Landino and his counsel shall only use the records in connection with this litigation, and only disclose the records to
others as reasonably necessary in furtherance of this litigation.
The Spatolas request the payment of “expenses,” but that term is not used in the discovery statutes. Where specific terms of
art are defined, those terms should be used. The discovery statutes refer to monetary sanctions, evidence sanctions, issue
sanctions, and terminating sanctions.
34
The Spatolas’ request for an award of monetary sanctions is DENIED.
Landino’s request for an award of monetary sanctions against the Spatolas and their counsel is GRANTED in the
amount of $1,148.50. Accordingly, within 20 days of the date of the filing of this Order, the Spatolas and their
counsel shall pay $1,148.50 to Landino’s counsel.
____________________________
DATED:
_________________________________________________
HON. SOCRATES PETER MANOUKIAN
Judge of the Superior Court
County of Santa Clara
- oo0oo -
Calendar line 9
SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
DEPARTMENT 19
161 North First Street, San Jose, CA 95113
408.882.2310 · 408.882.2299(fax)
smanoukian@scscourt.org
http://www.scscourt.org
Gonzalez Gil v. Wu
DATE: 16 January 2015
TIME: 9:00
(For Clerk's Use Only)
CASE NO. 113CV251853
LINE NUMBER: 9
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 408.882.2310 and the opposing party no later than 4:00 PM Thursday 15
January 2 He015. Please specify the issue to be contested when calling the Court and counsel.
On 16 January 2015, the motion of Defendants Xindi Wu and Kelly Yifei Wu (“Defendants”) to compel plaintiff to
respond to supplemental interrogatories, set one, and supplemental request for production of documents, set one,
and for monetary sanctions was argued and submitted.
Plaintiff did not file formal opposition to the motion.35
I.
Statement of Facts.
The complaint in this matter was filed on 26 August 2013. The complaint seeks damages for personal injuries
sustained by Plaintiff for an automobile accident that occurred on 25 August 2011 in the City of Mountain View.
Plaintiff was driving on State Route 85. He was rear-ended by Defendants’ vehicle. His vehicle was pushed into the
car in front of him.
II.
Discovery Dispute.
Defendants serve the foregoing discovery on 8 September 2014. On 11 November 2014 and on 24 November 2014,
Defendants followed up with "meet and confer" correspondence.36 To date, Plaintiff has provided no response to the
discovery in question.
III.
Analysis.
A. Motion of Defendants To Compel Plaintiff to Respond to Supplemental Interrogatories, Set One,
and
Supplemental Request for Production of Documents, Set One
To prevail on its motion, Defendants must 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. (See Leach v. Superior Court (1980) 111
Cal.App.3d 902, 905-906.)
“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).
35
While meeting and conferring is not required for a motion to compel initial responses, the parties are always encouraged to
work out their differences informally so as to avoid the necessity for a formal order. The Court has concerns when there does
not appear to be any effort to resolve discovery issues without Court intervention. See McElhaney v. Cessna Aircraft Co. (1982)
134 Cal.App.3d 285, 289.
36
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 Defendants 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.
Defendants provided proof of service for the first set of form interrogatories, special interrogatories, and inspection
demands. The deadline for Plaintiff to respond has lapsed. Plaintiff did not timely respond to any of the discovery
requests.
Accordingly, the motion of Defendants to compel responses to the foregoing 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.
The motion of Defendants to compel Plaintiff to respond to supplemental interrogatories, set one, and
supplemental request for production of documents, set one is GRANTED. Plaintiff shall respond to the
discovery without objection and within 20 days of the date of the filing of this Order.
B. Sanctions.
Defendants make a request for monetary sanctions. The request is code-compliant. Code of Civil Procedure, §
2023.040.
Defendants assert they spent two hours (two hours at $150 per hour) preparing the moving papers with $90 in costs.
They anticipate spending two hours appearing at any hearing on this motion. The Court does not grant speculative
sanctions. Sanctions should be awarded only for expenses actually incurred. (See Tucker v. Pacific Bell Mobile
Services (2010) 186 Cal.App.4th 1548, 1551.) If Defendant does orally argue before the Court, the Defendant may
bring up the issue of further sanctions at that time.
Plaintiff and his counsel are ordered to pay the sum of $390.00 to defense counsel within 20 days of the date of the
filing of this Order.
IV. Order.
The motion of Defendants to compel Plaintiff to respond to supplemental interrogatories, set one, and
supplemental request for production of documents, set one is GRANTED. Plaintiff shall respond to the
discovery without objection and within 20 days of the date of the filing of this Order.
Plaintiff and his counsel are ordered to pay the sum of $390.00 to defense counsel within 20 days of the date of the
filing of this Order.
____________________________
DATED:
_________________________________________________
HON. SOCRATES PETER MANOUKIAN
Judge of the Superior Court
County of Santa Clara
- oo0oo -
Calendar line 10
SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
DEPARTMENT 19
161 North First Street, San Jose, CA 95113
408.882.2310 · 408.882.2299(fax)
smanoukian@scscourt.org
http://www.scscourt.org
ELSV, LLC v. Benny Ko, et al.
DATE: 16 January 2015
TIME: 9:00
(For Clerk's Use Only)
CASE NO. 113CV254835
LINE NUMBER: 10
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 408.882.2310 and the opposing party no later than 4:00 PM Thursday 15
January 2015. Please specify the issue to be contested when calling the Court and counsel.
On 16 January 2015, the motion by plaintiff ELSV, LLC (“Plaintiff”) to compel defendants North America Capital, LLC
(“NAC”), North America Asset Management Corporation (“NAAMC”), and North America Asset Management, LLC
(“NAAM”) (collectively the “North America Defendants”) to comply with their responses to requests for production of
documents and non-party Tsai-Luan Shelby Ho (“Ms. Ho”) to comply with a business records subpoena, and for an
award of monetary sanctions was argued and submitted. Both the North America Defendants and Ms. Ho filed
formal oppositions to the motion.
All parties are reminded that all papers must comply with California Rules of Court, rule 3.110(f).37
I.
Statement of Facts
Plaintiff filed this action to recover damages caused by the alleged operation of a “Ponzi scheme” by defendants
Benny Ko (“Mr. Ko”), Lucy Gao (“Ms. Gao”), Liberty Asset Management Corporation (“LAMC”), and Sunshine Valley,
LLC (“SV”). Plaintiff is an investment company headquartered in Santa Clara County that invests in real estate
properties. (See Complaint, ¶¶ 14, 29.) Plaintiff alleges that Mr. Ko, Ms. Gao, LAMC, and SV fraudulently induced it
to transfer money to them, using false promises that they would use the money to obtain real estate and other
investments for Plaintiff when in fact Mr. Ko and Ms. Gao, who own LAMC and SV, diverted the money for their own
use. (See Complaint, ¶ 28.)
Specifically, Plaintiff alleges five transactions that resulted in the damages at issue in the complaint: (1) Plaintiff and
LAMC entered into a “Distressed Real Estate Assets Management Agreement” (“DREAMA”) on 2 June 2010,
whereby Plaintiff paid LAMC $5 million to acquire the majority interest in a number of distressed real estate assets,
manage the assets, and sell the assets for a profit on Plaintiff’s behalf (see Complaint , ¶¶ 15-17); (2) two of Plaintiff’s
members loaned NAC approximately $5.5 million based on Mr. Ko’s representations that NAC would use the money
to purchase a bank and initiate a bank holding business for NAC (the “Bank Holding Loan”) (see Complaint, ¶ 21),
and NAC, LAMC, and SV later promised Plaintiff in a written Letter of Intent that they would repay that sum; (3)
LAMC and NAC agreed to transfer two retail spaces located in San Jose, California (the “Two 88 East San Fernando
Condos”) to Plaintiff in partial satisfaction of their outstanding obligations to Plaintiff under the DREAMA (see
“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
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.”
37
Complaint , ¶ 22); (4) Plaintiff’s members paid LAMC and SV to acquire a 40 percent interest in a property located in
Pasadena, California (the “Lake Avenue Condos”), and LAMC and SV promised Plaintiff to provide returns and an
accounting for the property (see Complaint, ¶ 23); and (5) Plaintiff paid LAMC to acquire a 90 percent ownership in a
property located in San Francisco, California (the “O’Farrell Property”) and, after LAMC acquired the O’Farrell
Property, LAMC encumbered it with a loan in the approximate amount of $4 million without Plaintiff’s knowledge (the
“O’Farrell Loan”). (See Complaint, ¶ 24.)
Plaintiff also alleges that Ms. Ho, a real estate broker, is a business partner of Mr. Ko, Ms. Gao, LAMC, and SV and
controls the North America Defendants. Ms. Ho and the North America Defendants allegedly helped Mr. Ko, Ms.
Gao, LAMC, and SV carry out their scheme by serving as the broker for each of the above-listed transactions.
On 18 October 2013, Plaintiff filed its complaint against Mr. Ko, Ms. Gao, LAMC, SV, and the North America
Defendants, alleging causes of action for: (1) breach of contract; (2) breach of fiduciary duty; (3) negligence; (4)
conversion; (5) fraud; (6) “Violation of Penal Code § 496 – Receiving Stolen Property;” (7) unjust enrichment; (8)
unfair business practices; (9) interference with prospective economic advantage; (10) fraudulent transfer; (11)
constructive trust; (12) injunctive relief; (13) violation of state securities law; (14) violation of federal securities law;
(15) slander of title; and (16) declaratory relief.
II.
Discovery Dispute
On 26 June 2014, Plaintiff served the North America Defendants via U.S. mail with first sets of requests for
production of documents (“RPD”). (See Wang Dec., ¶¶ 2-4, Exs. A-C.) The North America Defendants requested an
extension of time to respond to the RPD to 15 August 2014, which Plaintiff granted. (See Wang Dec., ¶ 6, Ex. E.)
Subsequently, on 6 August 2014, Plaintiff electronically served Ms. Ho with a business records subpoena, specifying
a document production date of 26 August 2014. (See Wang Dec., ¶ 5, Ex. D.) The business records subpoena set
forth 25 requests for documents, seeking the production of all documents and communications relating to: Mr. Ko;
any “Ko Entity;” Ms. Gao; any “Gao Entity;” Sonia Chiou; any “Chiou Entity;” any “Tsang Family Member;” the
DREAMA; the Bank Holding Loan; the Letter of Intent; the purchase agreement for the Lack Avenue Property;
governing documents for LAMC, SV, the North America Defendants, the San Francisco O’Farrell Project, LLC, and
Gold River Valley, LLC; any money disbursed from East West Bank pursuant to the O’Farrell Loan; the O’Farrell
Property; the Lake Avenue loan and condos; and the Two 88 East San Ferenando Condos. (See id.)
Counsel for the North America Defendants and Ms. Ho then requested that Plaintiff grant his clients an extension of
time to 29 August 2014, to respond to the outstanding discovery, which Plaintiff granted. (See Wang Dec., ¶ 8, Ex.
G.)
On 29 August 2014, the North America Defendants served Plaintiff with their responses to the RPD. (See Wang
Dec., ¶¶ 9-11, Exs. H-J.) In their responses to RPD Nos. 1, 2, 8, 14, and 20, the North America Defendants stated
that they would produce all responsive documents in their possession, custody and control. (See Wang Dec., Exs. H
at pp. 5:4-5, 6:3-4, 12:2-3, 14:18-19, and 16:12-14, I at pp. 5:5-6, 6:4-5, 12:3-4, 14:17-19, and 16:10-12, and J at pp.
5:5-6, 6:4-5, 12:3-4, 14:16-18, and 16:10-12.)
“With the same mailing in which he sent North America Defendants’ … responses to … [the RPD], George Eshoo
[(“Mr. Eshoo”)], counsel for the North America Defendants and Ms. Ho … sent a 46-page document production to
[Plaintiff].” (Mem. Ps & As., p. 5:12-15; see also Wang Dec., ¶ 12, Ex. K.) The document production consisted of
documents that North America Defendants filed with the California Secretary of State, Plaintiff’s complaint, and a
copy of the Bank Holding Loan. (See id.) Although not entirely clear, it appears that this production was responsive
to both the RPD and the business records subpoena to Ms. Ho.
On 3 September 2014, Plaintiff’s counsel sent Mr. Eshoo a meet and confer email, indicating that Plaintiff had
received the North America Defendants’ discovery responses and document production, but the document
production did not include any emails. (See Wang Dec., ¶ 17, Ex. 0.)
The following day, Plaintiff’s counsel and Mr. Eshoo engaged in a telephone conference regarding the absence of
emails from the document production. (See Wang Dec., ¶ 18.) Mr. Eshoo stated that he “would ask his clients to
search for and produce all such documents no later that September 8, 2014.” (Id.)
Plaintiff did not receive any additional document production and, consequently, Plaintiff’s counsel sent Mr. Eshoo
emails on 9 September 2014, 11 September 2014, and 17 September 2014, inquiring as to the status of the same.
(See Wang Dec., ¶¶ 18-20, Ex. O.) On 22 September 2014, Plaintiff’s counsel sent Mr. Eshoo another email, stating
that she believed that “Ms. Ho should also have text messages that are responsive to [Plaintiff’s] document requests”
and requesting that Mr. Eshoo “ensure that [Ms. Ho] also works on gathering and producing those.” (Wang Dec., ¶
21, Ex. O.)
Mr. Eshoo did not provide any response to Plaintiff’s counsel’s emails and no further documents were produced to
Plaintiff. (See Wang Dec., ¶ 23.)
On 19 December 2014, Plaintiff filed the instant motion to compel the North America Defendants to comply with their
responses to the RPD and Ms. Ho to comply with the business records subpoena. Both the North America
Defendants and Ms. Ho filed papers in opposition to the motion on 5 January 2015. Plaintiff filed a reply on 9
January 2015.
III.
Discussion
A. Plaintiff’s Request for Judicial Notice
Plaintiff requests that the Court take judicial notice of its complaint filed on 18 October 2014, and the 1 December
2014 court order on a prior discovery motion. A court may take judicial notice of court records that are relevant to a
pending issue. (See Evid. Code, § 452, subd. (d); see also People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24
Cal.4th 415, 422, fn. 2 [only relevant matters subject to judicial notice].) Plaintiff’s complaint is a court record and is
relevant to the issues involved in this motion. While the 1 December 2014 court order is a court record, it is unrelated
to the instant discovery motion because it does not involve the RPD or business records subpoena at issue here.
Accordingly, Plaintiff’s request for judicial notice is GRANTED IN PART and DENIED IN PART. Plaintiff’s request is
GRANTED as to the complaint and DENIED as to the 1 December 2014 court order.
B.
Compliance with the North America Defendants’ Responses to the RPD
Plaintiff moves to compel compliance with the North America Defendants’ responses to RPD Nos. 1, 2, 8, 14, and 20
pursuant to Code of Civil Procedure section 2031.320.38
1.
Legal Standard - Compliance
If a party demanding a response to a request for production of documents believes that the responding party’s
production of documents is incomplete, it may bring a motion to compel compliance with responses to requests for
production of documents under Code of Civil Procedure section 2031.320. (See Code Civ. Proc., § 2031.320.)
Unlike a motion to compel further responses made pursuant to Code of Civil Procedure section 2031.310, a motion to
compel compliance does not require the moving party to set forth specific facts showing good cause justifying the
discovery sought by the inspection demand. (See id.) “All that has to be shown is the responding party’s failure to
comply as agreed.” (See Weil & Brown et al., Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2014) ¶
8:1508.1, p. 8H-50.)
2.
Analysis
RPD No. 1 asks the North America Defendants to produce all documents and communications relating to: documents
signed by Plaintiff and/or any of Plaintiff’s members; the DREAMA; the Bank Holding Loan; the Letter of Intent; and
the “Liberty Asset Management Corporation, Disclosure Acknowledgement and Commitment to Purchase and Sell
Real Property Agreement” (the “Lake Avenue Purchase Agreement”) entered into between LAMC and Gold River
Valley, LLC. (See Wang Dec., Exs. H at p. 4:2-5:7, I at p. 4:2-5:8, and J at p. 4:1-5:8.)
In response to RPD No. 1, the North America Defendants asserted several objections and, without waiving their
objections, stated: “Responding Party will produce all documents in its possession, custody and control. Additional
The Court notes that Plaintiff’s notice of motion indicates that Plaintiff is moving to compel compliance with the North America
Defendants’ responses to RPD Nos. 1, 2, 8, 14, and 15. The reference to RPD No. 15 and omission of RPD No. 20 appears to
be a typographical error as Plaintiff’s memorandum of points and authorities and separate statement do not reference RPD No.
15 and both discuss RPD No. 20.
38
documents may be in the possession, custody and control of one or more of the defendants named in this action or in
the possession, custody and control of the Plaintiff.” (Id.)
RPD Nos. 2 and 8 ask the North America Defendants to produce all documents and communications relating to any
real property identified in Schedule 1 of the DREAMA or the Letter of Intent. (See Wang Dec., Exs. H at pp. 5:9-6:6,
10:24-12.6, I at pp. 5:9-6:7, 10:25-12:7, and J at pp. 5:9-6:7, 10:25-12:7.)
In response to RPD No. 2, the North America Defendants asserted several objections and, without waiving their
objections, stated: “Responding Party will produce all documents in its possession, custody and control. Additional
documents may be in the possession, custody and control of one or more of the defendants named in this action or in
the possession, custody and control of the Plaintiff.” (Id.) The North America Defendants’ response to RPD No. 8 is
virtually identical except they indicated that additional documents may also be in the possession, custody, and control
of the 88 San Fernando, LLC. (See id.)
RPD No. 14 asks the North America Defendants to produce all of their governing documents. (See Wang Dec., Exs.
H at p. 14:13-20, I at p. 14:11-19, and J at p. 14:10-18.) RPD No. 20 asks the North America Defendants to produce
all document and communications that they referred to in their responses to form interrogatory, set one, No. 17.1.
(See Wang Dec., Exs. H at p. 15:28-16:14, I at p. 15:26-16:12, and J at p 15:26-16:12.)
In response to RPD Nos. 14 and 20, the North America Defendants asserted several objections and, without waiving
their objections, stated that they would produce all responsive documents in their possession, custody and control.
(See id.)
Plaintiff argues that the North America Defendants have not produced all responsive documents in accordance with
their statements of compliance because their document production consisted of only 46 pages and did not include
any emails or texts messages. Plaintiff asserts that numerous responsive emails and text messages exist that
should be in the possession of the North America Defendants and Ms. Ho, the managing member of the North
America Defendants.
Specifically, Plaintiff asserts that text messages relating to it and the North America Defendants exist because its
manager, Steven Tsang (“Mr. Tsang”), sent and received such text messages from Ms. Ho, many of which it
previously produced to Mr. Ko, Ms. Gao, LAMC, and SV in response to their document requests in this case. (See
Wang Dec., ¶ 24, Ex. Q; see also Tsang Dec., ¶ 10.) Additionally, Plaintiff asserts that responsive emails exist
because “hundreds of emails sent to or received from Ms. Ho at her account shelby88@gmail.com” and “[d]ozens of
emails sent to Ms. Ho at her account shelby@northamericacmc.com have also been produced in this litigation,” and
Mr. Tsang has personally seen Ms. Ho using those email accounts for her business dealings. (See Wang Dec., Exs.
R and S; see also Tsang Dec., ¶¶ 4, 8-9, Ex. A.)
In opposition, the North America Defendants argue that Plaintiff’s motion should be denied because: the emails
sought are already in Plaintiff’s possession and were previously produced by Mr. Tsang, who is a 40 percent owner
of NAC, from his email address steven@northamericacmc.com during the course of discovery; Ms. Ho was not the
sender or direct recipient of many of the sought after emails and they were merely copied to her at her personal email
address; the North America Defendants “cannot be compelled to produce emails which were sent to [Ms. Ho] … at
her personal email address since those are not business records of any of the [North America Defendants]”; Ms. Ho
does not have control over the email accounts steven@northamericacmc.com or shelby@northamericacmc.com and
does not know who to operate the North America Defendants’ website; Ms. Ho “has had problems with her computer
for some months,” “[m]any of the emails went into her spam or junk folder and/or may have been deleted,” and “it is
not possible for her to go through her entire, personal email account to locate emails she did not generate or respond
to;” and Ms. Ho “does not retain any text messages, since they are automatically deleted after a short period of time,
from her cell phone” and Plaintiff has already obtained many these text messages from other sources over the
course of discovery. (Mem. Ps & As., pp. 5:19-24, 12:10-13.)
The North America Defendants also submit a declaration from Ms. Ho in which she states that: she is the current
managing member of the North America Defendants; she has “now produced whatever emails that [she] could find”
and the documents she produced are attached to her declaration; she has now produced the governing documents
of the North America Defendants that were in her possession; and she does “not have any text messages since [her]
cell phone does not store text messages for any length of time, and it has not stored text messages from 2011–
2013.” (Ho Dec., ¶¶ 19-21.)
In reply, Plaintiff asserts that the North America Defendants and Ms. Ho “have either spoliated documents in violation
of their duties to preserve evidence, or else they are flatly misrepresenting to this Court that they have produced all
responsive documents in their possession, custody or control.” (Reply, p. 1:2-6.) Plaintiff contends that “Ms. Ho and
the North America Defendants had a duty to preserve the messages that [it] seeks in its motion to compel” and Ms.
Ho’s “claims that she has lost many such messages are not plausible, and this Court should compel her to make her
cell phone(s) and email accounts available to [Plaintiff] for further examination.” (Reply, p. 1:13-15.) Plaintiff also
states that “[i]f such examination confirms that Ms. Ho and the North America Defendants truly have no further
responsive documents stored within them, this Court should permit [Plaintiff] to seek evidentiary sanctions against
them.” (Reply, p. 1:15-17.)
Upon review of Ms. Ho’s declaration and the documents attached thereto, it appears that despite their protestations
that the subject emails could not and should not be produced, the North America Defendants have now produced any
responsive emails that they were able to locate. (See Ho Opp’n Dec., ¶ 19 [“I have now produced whatever emails
that I could find. The emails that I have located are attached hereto as Exhibit A. They have been produced to the
plaintiff, but were already in plaintiff’s possession.”], 21 [“To summarize, I have produced business records of NA
Defendants that I was able to obtain.”], Ex. A, Bates No. 47-227.) Moreover, Ms. Ho declares that she does not have
any responsive text messages because her phone deletes text messages automatically after a short period of time.
(See Ho Opp’n Dec., ¶ 19 [“I do not have any text messages since my cell phone does not store text messages for
any length of time, and it has not stored text messages from 2011-2013.”].) Therefore, it does not appear that the
North America Defendants are withholding any responsive emails or text messages from their document production.
While Plaintiff contends that it does not believe Ms. Ho’s assertion that she has produced all responsive documents
in her possession, custody, and control, the Court is not in a position to question the veracity of Ms. Ho’s declaration
and the fact that Plaintiff does not believe Ms. Ho’s statements does not make the document production inadequate.
If at some later time it comes to light that certain statements in Ms. Ho’s declaration are false (e.g., the North America
Defendants attempt to introduce responsive emails or text messages at trial that they did not previously produce),
there are various remedies that Plaintiff can pursue. (See Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 15441545 [discovery sanctions at trial upheld where the sanctioned party falsely claimed that the requested documents
were nonexistent or missing or that all relevant documents had already been produced]; see also Pate v. Channel
Lumber Co. (1997) 51 Cal.App.4th 1447.) Similarly, if Plaintiff believes that spoliation of evidence occurred, it may
pursue the remedies available to it under the law. (See Cedars-Sinai Med. Center v. Super. Ct. (1998) 18 Cal. 4th 1,
12 ([in which the California Supreme Court has held that destroying responsive evidence after litigation has
commenced constitutes a misuse of discovery within the meaning of Code Civil Procedure section 2023, as would
such destruction in anticipation of a discovery request]; see also Evid. Code, § 413 [allowing a trier of fact to draw
inferences from a party’s willful suppression of evidence].)
Accordingly, Plaintiff’s motion to compel the North America Defendants to comply with their responses to the RPD is
DENIED.
C. Compliance with the Business Records Subpoena Issued to Ms. Ho
Plaintiff moves to compel Ms. Ho to comply with the business records subpoena issued to her pursuant to Code of
Civil Procedure section 1987.1 and 2025.480.
1.
Legal Standard
If a non-party disobeys a subpoena for business records by failing to produce responsive documents, the
subpoenaing party may move to compel compliance with the subpoena. (See Code Civ. Proc., §§ 1987.1, subds. (a)
and (b)(2), 2025.480, subd. (a); see also Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 132–133.) A
showing of good cause is not required on a motion to compel a nonparty to comply with a deposition subpoena for
document production. (See Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2014), p. 8E78.1 at ¶ 8:609.3.) The objecting party must justify their objections to the subpoena or they will be overruled. (See
Fairmont Ins. Co. v. Super. Ct. (2000) 22 Cal.4th 245, 254; see also Monarch Healthcare v. Superior Court (2000) 78
Cal.App.4th 1282, 1290.)
2.
Analysis
Plaintiff’s motion does not specifically address the 25 categories of documents sought by the business records
subpoena. Instead, Plaintiff contends that Ms. Ho has failed to comply with the business records subpoena for the
same reasons that the North America Defendants purportedly failed to comply with their responses to the RPD, i.e.,
Ms. Ho did not produce various emails from her email accounts shelby88@gmail.com and
shelby@northamericacmc.com or text messages from her cell phone regarding the transactions at issue in this
lawsuit.
As articulated above, Ms. Ho declares that she has now produced to Plaintiff copies of the subject emails that she
was able to locate. (See Ho Dec., ¶ 20.) She further declares that she does not have any responsive text messages
since her phone deletes text messages after a short period of time. (See id.)
Since the documents that Plaintiff seeks to compel have either been produced to Plaintiff by Ms. Ho or cannot be
produced because they are not in her possession, the motion to compel Ms. Ho’s compliance with the business
records subpoena is DENIED.
D. Plaintiff’s Request for Monetary Sanctions
Plaintiff requests an award of monetary sanctions against Ms. Ho and the North America Defendants in the amount
of $2,750 pursuant to Code of Civil Procedure sections 2031.320, subdivision (b) and 2025.480, subdivision (j).
Code of Civil Procedure section 2031.320, subdivision (b) provides that “the court shall impose a monetary sanction
… against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with
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.” Similarly, Code of Civil Procedure section 2025.480,
subdivision (j) provides that “[t]he court shall impose a monetary sanction … against any party, person, or attorney
who unsuccessfully makes or opposes a motion to compel an answer or production [to a subpoena], 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.”
The Court finds that Plaintiff is not entitled to an award of monetary sanctions because it was not wholly successful
on its motion. While the filing of the instant motion resulted in the production of the responsive emails sought by the
motion, Plaintiff also sought the production of various text messages that Ms. Ho and the North America Defendants
do not have in their possession even after Ms. Ho submitted her declaration advising Plaintiff of the same.
Accordingly, Plaintiff’s request for monetary sanctions is DENIED.
///
///
IV. Conclusion and Order
Plaintiff’s request for judicial notice is GRANTED IN PART and DENIED IN PART. Plaintiff’s request is GRANTED
as to the complaint and DENIED as to the 1 December 2014 court order.
Plaintiff’s motion is DENIED.
Plaintiff’s request for monetary sanctions is DENIED.
____________________________
DATED:
_________________________________________________
HON. SOCRATES PETER MANOUKIAN
Judge of the Superior Court
County of Santa Clara
- oo0oo -
Calendar line 11
SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
DEPARTMENT 19
161 North First Street, San Jose, CA 95113
408.882.2310 · 408.882.2299(fax)
smanoukian@scscourt.org
http://www.scscourt.org
Collectronics, Inc. v. Nick James Stanley, et al.
DATE: 16 January 2015
TIME: 9:00
(For Clerk's Use Only)
CASE NO. 113CV257093
LINE NUMBER: 11
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 408.882.2310 and the opposing party no later than 4:00 PM Thursday 15
January 2015. Please specify the issue to be contested when calling the Court and counsel.
On 16 January 2015, the motion of Plaintiff Collectronics to compel answers to post judgment discovery and for
award of monetary sanctions was argued and submitted.
Defendant Nick James Stanley filed no formal opposition to the motion.
I.
Statement of Facts
This case is a collection action to collect sums from Defendant. Defendant is proprietor of a business known as
Interstate Paving and Construction located in Morgan Hill, California. Plaintiff was assigned Defendant’s debt by
non-party Lynks Developers, LLC.
II. Discovery Dispute
Plaintiff failed in collecting said debt through conventional collection means and thus suit was filed. Judgment was
entered in favor of Plaintiff on 2 June 2014. Plaintiff has continued to be unsuccessful in their attempts to collect on
sums due post-judgment.
On 10 June 2014, Plaintiff served Defendant by mail with post-judgment discovery including plaintiff’s post-judgment
interrogatories and production of documents and tangible things. (Ex. A; Kappos Decl. ¶ 1). Plaintiff confirmed that
the address served was that of Defendant through use of a property detail report from RealQuest.com which states
that “Stanley Nicholas and Shelly” are owners of the property at the address served. (Ex. D; Kappos Decl. ¶ 4). The
responses to the above discussed discovery was due 17 July 2014. (Ex. A; Kappos Decl ¶ 2). Defendant has failed
to respond in any way to said discovery. (Id.)
On 28 July 2014, Plaintiff’s counsel wrote to Defendant informing him that he had failed to respond to discovery and
that Plaintiff intended to bring the present motion unless discovery was responded to post-haste. (Ex. B; Kappos
Decl. ¶ 2). On 22 August 2014, Plaintiff sent a meet and confer letter to Defendant. (Ex. C; Kappos Decl. ¶ 3).
The present motion was filed 7 October 2014.
III.
Discussion
A.
Plaintiff’s Motion to Compel Post-Judgment Discovery.
Under CCP § 708.020(a), a “judgment creditor may propound written interrogatories to the judgment debtor, in the
manner provided in Chapter 13 (commencing with Section 2030.010) of Title 4 of Part 4, requesting information to aid
in enforcement of the money judgment. The judgment debtor shall answer the interrogatories in the manner and
within the time provided by Chapter 13 (commencing with Section 2030.010) of Title 4 of Part 4.)” Here, Plaintiff has
served code-compliant discovery requests on Defendant in order to search for attachable assets in the name of
Defendant. What’s more, “interrogatories served pursuant to [CCP § 208.020] may be enforced, to the extent
practicable, in the same manner as interrogatories in a civil action.” Thus, Plaintiff’s Motion to Compel PostJudgment Discovery is appropriate where Defendant has failed to respond to their discovery requests.
Accordingly, Plaintiff’s Motion to Compel Post-Judgment Discovery is GRANTED. Defendant shall respond to the
discovery without objection within 20 days of the date of the filing of this Order.
B.
Request for Sanctions
Defendant makes a request for monetary sanctions in the amount of $390. The request is not code-compliant.
In support of the request for sanctions, Plaintiff cites Code of Civil Procedure § 2023.030. Section 2023.030 provides
that sanctions may be imposed for misuses of the discovery process “[t]o the extent authorized by the chapter
governing any particular discovery method or any other provision of this title.” As such, section 2023.030 does not
provide an independent basis for an award of sanctions. In other words, to invoke section 2023.030 as a basis for
sanctions, the moving party must first be authorized to seek sanctions under the provisions in the Civil Discovery Act
applicable to the discovery requests at issue.
What’s more, in this case the CCP in general is inappropriate authority. Defendant has not unsuccessfully opposed
the Plaintiff’s motion; it has not opposed it at all. Therefore, reliance on any section of the CCP for monetary
sanctions is inapplicable in this case. The proper authority for monetary sanctions in this case would be 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.”
Accordingly, Plaintiff’s request for monetary sanctions in the amount of $390 is DENIED.
IV.
Order
Plaintiff’s Motion to Compel Post-Judgment Discovery is GRANTED. Defendant shall respond to the discovery
without objection within 20 days of the date of the filing of this Order.
Plaintiff’s request for monetary sanctions in the amount of $390 is DENIED.
____________________________
DATED:
_________________________________________________
HON. SOCRATES PETER MANOUKIAN
Judge of the Superior Court
County of Santa Clara
- oo0oo -
Calendar line 12
SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
DEPARTMENT 19
161 North First Street, San Jose, CA 95113
408.882.2310 · 408.882.2299(fax)
smanoukian@scscourt.org
http://www.scscourt.org
Debbie Garcia, et al. v. Mark A. Brown, M.D., et al.
DATE: 16 January 2015
TIME: 9:00
(For Clerk's Use Only)
CASE NO. 114CV263042
LINE NUMBER: 12
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 408.882.2310 and the opposing party no later than 4:00 PM Thursday 15
January 2015. Please specify the issue to be contested when calling the Court and counsel.
On 16 January 2015, the motion by defendants Mark A. Brown, M.D. (“Dr. Brown”), Robert Weiss, M.D. (“Dr. Weiss”),
and Fidere Anesthesia Consultants (“Fidere”) to compel plaintiff Debbie Garcia (“Plaintiff”) to provide answers to
depositions questions and for an award of monetary sanctions was argued and submitted. Ms. Garcia filed a formal
opposition to the motion.
I.
Statement of Facts
This is an action for medical malpractice. Plaintiff alleges that “[p]rior to, on, and after May 24, 2013, [she], was a
patient of [Dr. Brown, Dr. Weiss, Fidere, defendant Shahin Fazilat, M.D., and defendant El Camino Hospital]” and
consulted with them regarding her “medical care, treatment, diagnosis, and other healthcare needs.” (First Amended
Complaint (“FAC”), ¶ 6.) “On and after May 24, 2013, including, but not limited to May 29, 2013, the defendants …
were negligent and careless in and about their examination, testing, assessment, diagnosis of, care for, and
treatment of [Plaintiff], and in particular, said defendants … negligently and carelessly cared for, treated, examined,
assessed, and diagnosed [Plaintiff] during and after a reconstructive procedure for a left calf leiomyosarcoma.”
(FAC, ¶ 7.)
As a result of the defendants’ negligence, Plaintiff experienced low blood pressure during the procedure and suffered
neurological damage to her spinal cord, requiring further medical treatment. (See FAC, ¶ 8.) Due to her injuries,
Plaintiff “has been unable to perform her usual household services and her customary services to the family unit” and
“it became necessary for [Plaintiff] to incur expenses for medical treatment, attendant care, home modifications, and
related costs and expenses.” (FAC, ¶¶ 9, 11.) Plaintiff also sustained “economic damage in the form of wage loss
and loss of earning capacity.” (FAC, ¶ 10.)
On 22 May 2014, Plaintiff and her husband, Joe Garcia, filed the operative first amended complaint (“FAC”) against
the defendants, alleging causes of action for: (1) medical negligence; and (2) loss of consortium.
II.
Discovery Dispute
Counsel for Dr. Brown, Dr. Weiss, and Fidere (collectively “Defendants”) deposed Plaintiff on 10 September 2014. At
the deposition, Plaintiff’s counsel objected to and instructed Plaintiff not to answer questions pertaining to: rent paid
by those living on her property; the salary and health insurance benefits received by her adult daughter, Crystal Avila
(“Ms. Avila”), through her company, Oliveira Fence; whether her mother, Phyllis Holmes (“Ms. Holmes”), referred her
to an attorney; and the amount of her out-of-pocket expenses and the credit card she used to pay those expenses.
(See Kanter Dec., Ex. A, pp. 22:5-10, 24:7-25:3, 39:19-41:8, 66:9-13, 104:20-22, 105:1-4, and 144:7-11.) Plaintiff’s
counsel objected to those questions on various grounds, including relevance, privacy, attorney-client privilege, and
work product doctrine. (See id.)
Following the deposition, on 20 October 2014, Defendants’ counsel sent Plaintiff’s counsel a detailed meet and
confer letter regarding the questions that Plaintiff refused to answer at her deposition. (See Kanter Dec., Ex. B.)
Plaintiff’s counsel sent Defendants’ counsel a reply letter on 11 November 2014, indicating that the objections to the
subject deposition questions were appropriate and Defendants were not entitled to the discovery sought. (See
Kanter Dec., Ex. C.) Specifically with respect to the issue of out-of-pocket expenses, Plaintiff’s counsel advised that
Plaintiff provided documentation regarding all of her “out of pocket expenses for medical bills” that were in her
possession, but there might “be additional copay amounts paid in cash reflected in the medical bills that [Defendants’
counsel] … subpoenaed.” (Id.) Plaintiff’s counsel also inquired whether there was “any outstanding issue” with
respect to Plaintiff’s out-of-pocket expenses. (Id.)
On 13 November 2014, Defendants filed the instant motion to compel Plaintiff to provide answers to the questions
that she refused to answer at her deposition. Plaintiff filed papers in opposition to the motion on 5 January 2015.
Defendants filed a reply on 9 January 2015.
III.
Discussion
Defendants move to compel Plaintiff to provide answers to the following eight deposition questions:
(1) “Do they [(i.e., persons including Ms. Avila)] pay rent for that guest house?” (Kanter Dec., Ex. A, p. 22:5-10);
(2) “What is [Ms. Avila’s] annual salary?” (Kanter Dec., Ex. A, p. 104:20-22);
(3) “Does [Ms. Avila] have health insurance benefits through [Oliveira Fence]?” (Kanter Dec., Ex. A, p. 105:1-4);
(4) “Did your mother refer you to this law firm?” (Kanter Dec., Ex. A, p. 24:7-9);
(5) “Did your mother refer you to an attorney?” (Kanter Dec., Ex. A, pp. 24:24-25:3);
(6) “Did your mother refer you to [your counsel,] Mr. Kelly?” (Kanter Dec., Ex. A, p. 144:7-11);
(7) “Do you have an estimate as to how much more than $2,000 those out-of-pocket expenses were?” (Kanter Dec.,
Ex. A, pp. 39:19-41:8); and
(8) “What credit card did you use to pay those bills?” (Kanter Dec., Ex. A, p. 66:9-13.)
A. Meet and Confer
As a preliminary matter, Plaintiff argues that Defendants failed to adequately meet and confer with respect to the
deposition questions regarding her out-of-pocket expenses because, “[p]rior to the filing of this motion, [her] counsel
asked what information remained outstanding, and defense counsel ignored the question.” (Opp’n., p. 2:21-25.)
A motion to compel deposition answers shall be accompanied by a meet and confer declaration “showing a
reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ.
Proc., §§ 2016.040, 2025.480, subd. (b).) A reasonable and good faith attempt at informal resolution entails
something more than argument with opposing counsel. It requires that the parties present the merits of their
respective positions with candor, specificity, and support. (See Townsend v. Super. Ct. (1998) 61 Cal.App.4th 1431,
1435, 1439.) The level of effort at informal resolution that satisfies the “reasonable and good faith attempt” standard
depends upon the circumstances of the case. (See Obregon v. Super. Ct. (1998) 67 Cal.App.4th 424, 431.)
Plaintiff’s argument that Defendants failed to adequately meet and confer regarding the questions pertaining to her
out-of-pocket expenses lacks merit. Defendants’ counsel’s 20 October 2014 meet and confer letter addressed those
questions and Plaintiff’s objections to the same in detail.
While Plaintiff may have provided Defendants with documents containing responsive information at some later date
and time, this would not relieve Plaintiff of her obligation to provide an answer to the question regarding her out-ofpocket expenses posed to her at her deposition and Plaintiff’s counsel never indicated that Plaintiff was willing to
provide an answer to the same. Therefore, it was appropriate for Defendants to file the instant motion without further
ado.
B. Legal Standard
If a deponent fails to answer a question at his or her deposition, the party seeking discovery may move for an order
compelling an answer. (See Code Civ. Proc., § 2025.480, subd. (a).) There is no requirement that the moving party
show good cause to compel answers at a deposition. (Compare Code Civ. Proc., §§ 2025.450, subd. (b)(1) [showing
of good cause required where motion pertains to production of documents described in deposition notice] with
2025.480 [no good cause requirement where motion pertains to oral testimony].) A deponent who has objected to a
question and refused to answer bears the burden of justifying such refusal. (See Coy v. Super. Ct. (1962) 58 Cal.2d
210, 220-221.) 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. (See Code Civ. Proc. § 2025.480, subd. (i).)
C. Questions 1-3
Questions 1-3 asked Plaintiff to state whether the persons living in her guest house, including Ms. Avila, pay rent
(see Kanter Dec., Ex. A, p. 22:5-10), Ms. Avila’s annual salary (see Kanter Dec., Ex. A, p. 104:20-22), and whether
Ms. Avila receives health insurance benefits through her employment with Oliveira Fence. (See Kanter Dec., Ex. A,
p. 105:1-4.) At the deposition, Plaintiff’s counsel objected to each of the questions on the ground of privacy and
instructed Plaintiff not to answer.
In her opposition to the instant motion, Plaintiff attempts to justify her privacy objections, arguing that the questions
invade Ms. Avila’s right to privacy in her financial information. Plaintiff contends that Ms. Avila’s private financial
information is not a proper subject of discovery because the amount of rent that Ms. Avila pays, Ms. Avila’s salary,
and Ms. Avila’s health insurance benefits are irrelevant to the calculation of her damages in this litigation, citing Hanif
v. Housing Authority of Yolo County (1988) 200 Cal.App.3d 635. Plaintiff further contends that disclosure of Ms.
Avila’s financial information is improper because Ms. Avila has not been provided with notice and an opportunity to
object to the disclosure of her private information, citing Valley Bank of Nevada v. Superior Court (Barkett) (1975) 15
Cal.3d 652 and Life Technologies Corp. v. Superior Court (2011) 197 Cal.App.4th 640.
Defendants argue that the subject deposition questions are proper because Plaintiff “will seek to recover the
reasonable value of [Ms. Avila’s] nursing services” and they “are entitled to explore what financial arrangements there
may be between plaintiffs and [Ms. Avila] (eg. free rent), despite her claimed privacy interest, and provide this
information to [their] economist expert who can then provide an opinion as to how such financial arrangements may
be an offset to the claimed value of her services[,]” citing Tylo v. Superior Court (1997) 55 Cal.App.4th 1379. (Mem.
Ps & As., p. 3:23-28.) Defendants further argue that “if [Ms. Avila] is ultimately designated as plaintiff’s attendant,
[they] anticipate plaintiff will claim [Ms. Avila] is entitled to salary and health benefits” and, “[t]o the extent [Ms. Avila]
is already receiving health benefits through her employment, plaintiff would not be entitled to claim a double recovery
for health benefits related to her role as an attendant.” (Mem. Ps & As., pp. 3:28, 4:1-3.) Defendants also contend
that Ms. Avila’s salary “may have some bearing on whether the amount plaintiff claims [Ms. Avila] should be paid as
an attendant is reasonable.” (Mem. Ps & As., p. 4:4-5.)
The right of privacy established by the California Constitution protects an individual’s “reasonable expectation of
privacy against a serious invasion.” (Pioneer Electronics (USA), Inc. v. Super. Ct. (2007) 40 Cal.4th 360, 370
(Pioneer), citing Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 40.) Where a serious invasion of a
reasonable expectation of privacy is shown, the proponent of discovery must demonstrate that information sought is
“directly relevant” to a claim or defense, and “essential to the fair resolution of the lawsuit.” (Britt v. Super. Ct. (1978)
20 Cal.3d 844, 859; see also Harris v. Super. Ct. (1992) 3 Cal.App.4th 661, 665 (Harris).) Discovery will not be
ordered if the information sought is available from other sources or less intrusive means. (See Allen v. Super. Ct.
(1984) 151 Cal.App.3d 447, 449.) If direct relevance is shown, the court must “carefully balance” the right of privacy,
on the one hand, and the right of civil litigants to discover relevant facts, on the other. (See Valley Bank of Nevada v.
Super. Ct., (1975) 15 Cal.3d 652, 657; see also Pioneer, supra, 40 Cal.4th at p. 371.)
It is well-established that the right to privacy extends to a person’s financial affairs. (See Cobb v. Super. Ct. (1979)
99 Cal.App.3d 543, 550; see also Fortunato v. Super. Ct. (2003) 114 Cal.App.4th 475, 480; see also Valley Bank of
Nevada v. Super. Ct. (1975) 15 Cal.3d 652, 656-657.)
Since disclosure of information regarding the rent paid by Ms. Avila, Ms. Avila’s salary, and Ms. Avila’s health
insurance benefits would constitute a serious invasion of Ms. Avila’s right to privacy in her financial information,
Defendants must demonstrate that the information sought is directly relevant and essential to the fair resolution of the
lawsuit. (See Britt v. Super. Ct., supra, 20 Cal.3d at p. 859.)
Defendants fail to make such a showing. First, the only legal authority cited by Defendants, Tylo v. Superior Court
(“Tylo”) (1997) 55 Cal.App.4th 1379, does not support their position that Ms. Avila’s financial information is directly
relevant to the litigation because Tylo has nothing to do with the calculation of the value of attendant care services
and whether certain financial arrangements may be used to offset that amount. Tylo is an employment discrimination
case brought by an actress who was terminated after her employer learned of her pregnancy. (See Tylo, supra, 55
Cal.App.4th at pp. 1382-1383.) The defendants in Tylo brought a motion to compel answers to deposition questions
because actress refused to answer, on the basis of relevance and the right to privacy, deposition questions about her
emotional distress arising out of her marriage and her attempts to become pregnant. (See id. at pp. 1383-1384.) On
appeal, the court issued a peremptory writ of mandate that directed the trial court to set aside parts of its order that
granted the motion to compel on questions that related to emotional distress caused by the plaintiff's marriage
because the actress did not waive her right to privacy. The court allowed other aspects of the order to stand because
certain related issues, although personal, were discoverable. (See id. at p. 1388-1392.) Tylo does not address the
factors that are relevant to the calculation of personal injury damages or whether a third party’s financial information
may be discovered to offset the value of attendant care provided by family members.
Second, there is no indication that Ms. Avila’s salary or health insurance benefits that she receives in connection with
her employment with Oliveira Fence or the amount of rent that she pays is relevant to the calculation of Plaintiff’s
damages. “The reasonable value of nursing services required by the defendant’s tortious conduct may be recovered
from the defendant even though the services were rendered by members of the injured person’s family and without
an agreement or expectation of payment. Where services in the way of attendance and nursing are rendered by a
member of the plaintiff’s family, the amount for which the defendant is liable is the amount for which reasonably
competent nursing and attendance by others could have been obtained.” (Hanif v. Housing Authority (1988) 200 Cal.
App. 3d 635, 644.) The jury is entitled to calculate the reasonable value of that care based on the wage ordinarily
paid to those who provide such services. (See Rodriguez v. McDonnell Douglas Corp. (1978) 87 Cal.App.3d 626,
661-662; see also Hanif v. Housing Authority, supra, 200 Cal. App. 3d at p. 645 [“the recognized measure for such
attendant care is the prevailing market rate for those who perform such services.”].) There is no indication that the
salary or health benefits received by the family member providing the attendant care services is relevant to
establishing the market rate of the attendant care services that they provided.
Moreover, Plaintiff submits a declaration in support of her opposition, in which she declares that the amount of rent
that Ms. Avila pays to her is not in any way dependent on or related to the assistance that Ms. Avila provides to her at
home. (See Garcia Opp’n. Dec., ¶ 2.) Plaintiff further declares that the salary that Ms. Avila is paid and the health
insurance benefits that she receives from Oliveira Fence “are not dependent on or in any way related to the
assistance [Ms. Avila] provides to [her] because of [her] injury” and “[t]he amount of [Ms. Avila’s] salary and benefits
from Oliveira Fence have not changed as a result of the assistance [Ms. Avila] provides to [her] due to [her] injuries.”
(Garcia Opp’n. Dec., ¶ 3.)
Furthermore, even if Ms. Avila’s rent, salary, and health insurance benefits were somehow connected to the
attendant care services that she provides to Plaintiff, Defendants do not cite any legal authority indicating that they
are entitled to an offset for those benefits.
Thus, Plaintiff’s privacy objection to Questions 1-3 is sustained and answers to those questions are not warranted.
D. Questions 4-6
Questions 4-6 asked Plaintiff to state whether Ms. Holmes referred her to her counsel’s law firm (see Kanter Dec.,
Ex. A, p. 24:7-9), an attorney (see Kanter Dec., Ex. A, pp. 24:24-25:3), or to her counsel, Michael Kelly (“Mr. Kelly”).
(See Kanter Dec., Ex. A, p. 144:7-11.) At the deposition, Plaintiff’s counsel objected to each of the questions on the
grounds of attorney-client privilege and work product doctrine and instructed Plaintiff not to answer.
In her opposition to the instant motion, Plaintiff attempts to justify only her objection based on the attorney-client
privilege. Plaintiff asserts that after her surgery Ms. Holmes searched for, researched, and conducted initial
interviews with potential attorneys on her behalf and essentially acted as her agent. Plaintiff states that Ms. Holmes
then conveyed information that she obtained from attorneys to her and her husband, Joe Garcia, and, based upon
that information, retained her current counsel to represent her in this case. Plaintiff argues that Questions 4-6 “seek
to obtain the content of the confidential information that was conveyed by Ms. Holmes to the plaintiffs, namely
whether she told them to contact an attorney, the Walkup firm, or Michael Kelly, Esq.” and “[t]he problem is that this
communication was made from an attorney to Ms. Holmes to provide to the plaintiffs ….” (Opp’n., p. 7:20-25.)
“The [attorney-client] privilege authorizes a client to refuse to disclose, and to prevent others from disclosing,
confidential communications between attorney and client.” (Mitchell v. Superior Court (1984) 37 Cal. 3d 591, 599;
see also Evid. Code, § 952 [defining the term “confidential communication between client and lawyer” as “information
transmitted between a client and his lawyer in the course of that relationship and in confidence by a means which, so
far as the client is aware, discloses the information to no third persons other than those who are present to further the
interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of
the information or the accomplishment of the purpose for which the lawyer is consulted, and includes an opinion
formed and the advice given by the lawyer in the course of that relationship”].) “In California the privilege has been
held to encompass not only oral or written statements, but additionally actions, signs, or other means of
communicating information.” (Id. at p. 600 citing Ex Parte McDonough (1915) 170 Cal. 230, 234 and Estate of Kime
(1983) 144 Cal.App.3d 246, 255.)
Here, Questions 4-6 do not call for the disclosure or otherwise appear to involve an attorney-client communication.
Questions as to whether Ms. Holmes referred Plaintiff to any attorney or her current counsel do not presuppose the
existence of an attorney-client communication or reveal the substance of any attorney-client communication that may
have occurred. (See Coy v. Superior Court of Contra Costa County (1962) 58 Cal. 2d 210, 219-220 [noting that
questions that merely refer to an attorney-client relationship are not within the purview of the attorney-client privilege];
see also Mitchell v. Superior Court, supra, 37 Cal. 3d at p. 601 [“Each of these questions presuppose a
communication between attorney and client, in which the attorney warned the client about the effects of DBCP, and
cannot be answered without impliedly affirming that such conversation occurred. Thus, these questions clearly
involved information transmitted between Ms. Mitchell and her attorney in the course of their relationship as client
and lawyer, as well as advice given by Mr. Kramer to his client in the course of such professional relationship.”].)
Therefore, Plaintiff’s objection based on the attorney-client privilege lacks merit and answers are warranted to the
subject questions.39
E. Questions 7-8
Question 7 asked Plaintiff whether she had “an estimate as to how much more than $2,000 [her] out-of-pocket
expenses were.” Before Plaintiff had an opportunity to respond to the question, her counsel asked her if she needed
to review any documents and instructed her to tell Defendants’ counsel if she needed to do so. In response,
Defendants’ counsel asserted that Plaintiff’s counsel was improperly coaching Plaintiff. Defendants’ counsel
subsequently asked his question again and Plaintiff responded: “I can only make a guess, because I don’t – I didn’t –
I reviewed this, but I didn’t review all that because I’ve given everything to her. So I had totals, but I didn’t review
them. So I don’t know actual totals unless I reviewed my documents.” (Kanter Dec., Ex. A, p. 41:1-8.)
Question 8 asked Plaintiff to state what credit card she used to pay her medical bills. (See Kanter Dec., Ex. A, p.
66:9-13.) Plaintiff objected to the question on the ground of privacy and instructed Plaintiff not to answer.
In her opposition papers, Plaintiff argues that Questions 7-8 are an improper fishing expedition and intrusion into her
private financial affairs because she has provided “a verified discovery response containing the documents
demonstrating the out of pocket expenses” and she “signed a declaration confirming that the only out of pocket
expenses for which she is seeking recovery are reflected in her discovery responses and cash payments which
would not be shown on her credit card statements.” (Opp’n., p. 9:16-22.) Plaintiff further argues that her counsel
was not coaching her, but was merely attempting to “move through the deposition process efficiently.” (Opp’n., p.
10:7-8.)
Defendants assert that they are entitled to a further answer to Question 7 because Plaintiff’s counsel coached her
response and Plaintiff refused to provide a straightforward response to the question. Defendants further assert that
they are entitled to a response to Questions 8 because Plaintiff testified that she used her medical billing records and
Should this matter proceed to a hearing, this Court might ask what relevance, if any, would be provided by the answers to
these questions.
39
her credit card information to compile a total or her out-of-pocket expenses and they are entitled to verify the
information that she relied upon by subpoenaing her credit card records.
With respect to Question 7, the Court finds that an order compelling an answer is not warranted because Plaintiff did
not refuse to answer the question and, in fact, provided a direct response to the inquiry. As articulated above,
Plaintiff told Defendants’ counsel that she could not provide him with an estimate as to how much more than $2,000
her medical expenses were because she would need to review documentation that she previously turned over to her
attorney.
Moreover, the statement made by Plaintiff’s counsel regarding the possible need to review records does not appear
to be improper coaching. At an earlier point in the deposition, Defendants’ counsel reviewed with Plaintiff her
response to interrogatory number 42, stating that her out-of-pocket medical expenses exceeded $2,000. When
asked if her response to the interrogatory was truthful, Plaintiff stated: “Well, I’m sure I paid way over $2,000. I just
don’t know the exact number. We did get all the medical records together, and I did give them to her. But I – I don’t
remember the calculation.” (Polcari Dec., Ex. 4, p. 34:1-8.) Thus, Plaintiff’s counsel’s statement that Plaintiff should
advise Defendants’ counsel if she needed to review records before providing an estimate does not appear to suggest
an answer and is in line with Plaintiff’s prior testimony.
With respect to Question 8, Plaintiff fails to justify her privacy objection. Plaintiff appears to concede that the
information sought is directly relevant to the issue of damages and argues only that Defendants do not need
information about the credit card that she used to pay her medical bills because she has provided them with
discovery responses and a declaration containing the same information. Moreover, Defendants may seek to
discover financial information pertaining to Plaintiff’s medical bills by way of a business records subpoena even if it
has also obtained that information by way of requests for production do documents. (See Code Civ. Proc., §§
2019.010 & 2025.280, subd. (b); see also Carter v. Super. Ct. (1990) 218 Cal.App.3d 994, 997 [“[n]othing in either
section 2025 or section 2031 suggests that seeking documents under one statutory procedure bars a litigant from
seeking the same documents under the other”].) Thus, an answer is warranted to Question 8.
F. Conclusion
Accordingly, Defendants’ motion is DENIED IN PART and GRANTED IN PART. The motion is DENIED as to
Questions 1-3 and 7. The motion is GRANTED as to Questions 4-6 and 8.
G.
Defendants’ Request for Monetary Sanctions
Defendants request an award of monetary sanctions against Plaintiff and her counsel in the amount of $1,385
pursuant to Code of Civil Procedure section 2025.480, subdivision (j).40
Code of Civil Procedure section 2025.480, subdivision (j) provides that “[t]he court shall impose a monetary sanction
… against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer or
production, 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.”
The Court finds that Defendants are not entitled to monetary sanctions because 1) they were only partially successful
on their motion and it would be unjust to award monetary sanctions under the circumstances and 2) Plaintiff acted
with substantial justification.
Accordingly, Defendants’ request for monetary sanctions is DENIED.
The Court notes that Defendants mistakenly cite to Code of Civil Procedure section 2025.480, subdivision (f) in their papers,
but this appears to be a typographical error as they correctly quote from subdivision (j).
40
IV. Conclusion and Order
Defendants’ motion is DENIED IN PART and GRANTED IN PART. The motion is DENIED as to Questions 1-3 and
7. The motion is GRANTED as to Questions 4-6 and 8. Accordingly, within 20 days of the date of the filing of this
Order, at a date and time mutually agreed upon by the parties, Plaintiff shall appear for further deposition and answer
Questions 4-6 and 8. Defendants may also pose reasonably related follow-up questions, subject to Plaintiff’s right to
assert any applicable, justifiable, and legally valid objections to any such follow-up questions.
Defendants’ request for monetary sanctions is DENIED.
____________________________
DATED:
_________________________________________________
HON. SOCRATES PETER MANOUKIAN
Judge of the Superior Court
County of Santa Clara
- oo0oo -
Calendar line 13
SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
DEPARTMENT 19
161 North First Street, San Jose, CA 95113
408.882.2310 · 408.882.2299(fax)
smanoukian@scscourt.org
http://www.scscourt.org
Mircea Voskerician v. Mark Zuckerberg, et al.
DATE: 16 January 2015
TIME: 9:00
(For Clerk's Use Only)
CASE NO.114CV264667
LINE NUMBER: 13
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 408.882.2310 and the opposing party no later than 4:00 PM Thursday 15
January 2015. Please specify the issue to be contested when calling the Court and counsel.
On 16 January 2015, the motion of Defendants Mark Zuckerberg and SFRP, LLC (“Defendants”) to compel non-party
James Sagorac (“Sagorac”) to answer deposition questions and produce documents was argued and submitted. Mr.
Sagorac filed formal opposition to the motion.
I.
Statement of Facts
This case arises out of a property dispute. In November 2012, Plaintiff made an offer to purchase the real property
located at 1457 Hamilton Avenue in Palo Alto, California (the “Property”), which was accepted. (See First Amended
Complaint (“FAC”), ¶¶ 7-8.) Plaintiff learned that Mr. Zuckerberg lived directly behind the Property and him, offering
to sell him approximately 2,600 square feet of the Property that abutted his backyard. (See FAC, ¶¶ 9-10.) Plaintiff
and his realtor met with Mr. Zuckerberg’s realtor, who advised that Mr. Zuckerberg wanted to purchase the Property
in its entirety and would pay Plaintiff $250,000, plus any down payment that was made. (See FAC, ¶ 11.) Plaintiff
declined the offer and, subsequently, received another offer from a real estate developer, non-party Sagorac, seeking
to purchase his interest in the Property for $4,300,000. (See FAC, ¶¶ 11-12.)
On 4 December 2012, Plaintiff and his realtor attended a meeting with Mr. Zuckerberg and his financial advisors.
(See FAC, ¶ 13.) During the meeting, Mr. Zuckerberg stated that he wanted a discount on the Property and, in
exchange for the same, he would introduce Plaintiff to his friends, clients, and associates and promote Plaintiff’s real
estate business by providing him with referrals and written references. (See FAC, ¶¶ 13-15.) On 5 December 2012,
Plaintiff informed Mr. Zuckerberg that he would sell his interest in the Property to him “for $1,700,000 plus [Mr.
Zuckerberg’s] promises of personal referrals and business promotion activities.” (FAC, ¶ 16.)
Pursuant to Mr. Zuckerberg’s direction, Plaintiff sold his interest in the Property to defendant SFRP, LLC (“SFRP”).
Plaintiff then attempted to set up meetings with Mr. Zuckerberg to discuss the development of his business. (See
FAC, ¶¶ 17-20, 22-23.) Plaintiff alleges that Mr. Zuckerberg breached their agreement by failing to provide him with
written referrals and introductions or otherwise assist him with the development of his business. (See FAC, ¶¶ 27,
30, 43.)
On 3 September 2014, Plaintiff filed the operative first amended complaint (“FAC”), alleging causes of action for: (1)
promissory fraud; (2) intentional misrepresentation; (3) rescission; (4) breach of contract; and (5) conspiracy.41
The Court notes that Plaintiff has filed a motion for leave to file a second amended complaint which is to be heard on 15
January 2015 in Department 2.
41
II.
Discovery Dispute
Non-party Sagorac’s deposition was originally noticed for 20 October 2014. After delays due to his change in
representation, he appeared for deposition on 2 December 2014. Prior to his deposition Defendants served Sagorac
with a document subpoena.42 In response to some of the document requests, those asking for documents relating to
or drafts (electronic or otherwise) of the offer letter he conveyed to Plaintiff on behalf of a client before Plaintiff sold
the property to Defendant Zuckerberg instead at an alleged discount, Sagorac stated that he had no responsive
documents.
At his deposition Sagorac was asked to disclose the identity of the client on whose behalf he conveyed the $4.3
million competing offer for the property to Plaintiff. He refused to do so on the instruction of his counsel (who also
represents Plaintiff), who also objected that such information was a trade secret and confidential business
information. Sagorac stated that it was his belief that if he did not maintain the confidentiality of client information,
clients would no longer do business with him.
In response to questions regarding his answer to some of the deposition subpoena document requests that he had
no documents, Sagorac testified that he did not perform any searches of his current computer for responsive
documents regarding the November/December 2012 offer. He stated that this was because his former hard drive
had failed and had to be replaced in September 2013. Defendants contend that this somehow shows a failure to
make reasonably diligent efforts to look for responsive documents.
After the deposition Counsel for Defendants and for Sagorac (who also represented Plaintiff) met and conferred on
these issues but were unable to reach an agreement. No one argues that the efforts to meet and confer before this
motion was filed were inadequate.
III.
Discussion
Defendants move to compel Mr. Sagorac to provide responses to the deposition questions which he was instructed
not to answer or refused to answer and to provide further responses to documents requests made in the deposition
subpoena despite his responses that he has no documents to the targeted requests.43
A. Motion to Compel further deposition testimony and documents described in deposition notice
1.
Legal Standard
If a deponent fails to answer a question at his or her deposition, the party seeking discovery may move for an order
compelling an answer. (See Code Civ. Proc., § 2025.480, subd. (a).) There is no requirement that the moving party
show good cause to compel answers at a deposition. (Compare Code Civ. Proc., §§ 2025.450, subd. (b)(1) [showing
of good cause required where motion pertains to production of documents described in deposition notice] with
2025.480 [no good cause requirement where motion pertains to oral testimony].) A deponent who has objected to a
question and refused to answer bears the burden of justifying such refusal. (See Coy v. Super. Ct. (1962) 58 Cal.2d
210, 220-221.) 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. (See Code Civ. Proc. § 2025.480, subd. (i).)
A request to provide further responses to document requests in a third party deposition subpoena does require a
showing of good cause by the moving party. (See Code Civ. Proc., §§ 2025.450, subd. (b)(1).)
2.
Parties’ Arguments
Defendants contend that, because of Mr. Sagorac’s prior business dealings with Plaintiff and his willingness to sign a
declaration on April 9, 2014 prepared by Plaintiff’s Counsel (now also his counsel) attesting to the $4.3 million offer
before this litigation even began, they must be allowed “to test the authenticity of the Offer, including by discovering
the ‘client’ behind it. Their ability to defend against plaintiff’s claims will be unduly prejudiced without this
42
The Court has not been provided with copies of the subpoena or of Mr. Sagorac’s responses.
Defendants’ attempt in their Reply to add a request to compel Mr. Sagorac to allow a “neutral forensic information technology
expert” to search his @hotmail.com email account and his computer for responsive documents has not been considered by the
Court as it is not a part of this motion.
43
information.” Defendants’ Memorandum of Points and Authorities (“Defs. Memo.”) at 7:22-23. They state that they
have “repeatedly offered to stipulate to keep the identity of Mr. Sagorac’s client confidential and use the information
only for purposes of litigation or discuss other confidentiality restrictions that plaintiff’s counsel may propose.
Plaintiff’s counsel has refused this offer but has not moved for a protective order on the issue.” Id. at 8:13-16. They
also contend that Sagorac has failed to meet his burden to establish that the identity of his client constitutes a trade
secret.
Defendants further contend, without any citation to supporting authority and despite the explanation provided at
deposition, that Mr. Sagorac failure to search his current computer for documents related to the 2012 offer somehow
raises an inference that he has committed fraud.
In Opposition, Mr. Sagorac states that he testified “as to the terms of the offer and the terms of his potential
agreement with his client to build a new custom home on the property. Only the person’s identity remains an issue.”
Opposition (“Opp.”) at 3:20-22. He also asserts (correctly) that no evidence has been presented showing or raising
an inference that he has committed fraud simply because he did not want to identify his client. Sagorac has filed a
declaration stating his belief that his client’s identifying information is a “trade secret” and that disclosure would hurt
his business because it might make such clients less likely to do business with him. He also restates that the former
hard drive on his computer crashed and was replaced in September 2013, that he has complied with Defendants’
request at his deposition to review his email accounts, and that he
“found several emails from 2014 from projects in Los Altos and I gave those emails to my attorney Mr.
Draper. I could not and did not find any other emails relating to the Palo Alto property or Mr. Voskerician.
As I testified at my deposition I do not keep emails and I delete them after receiving them. I do not have
emails from 2012.” Declaration of James Sagorac (“Sagorac Decl.”) at 4.
Despite maintaining that a trade secret exists the opposition states that in light of Defendants’ “melodramatic claims .
. . Sagorac has offered to provide the person’s name, contact information and particulars about the offer on the
condition that the information not be publicized or disclosed outside of this litigation. . . . The Court may be provided
with the actual identity in a chambers copy of any motion. . . . If Defendants are not agreeable to this disclosure they
can bear the burden of explaining why it is not reasonable and efficient. . . . Once Defendants are provided the
identity and contact information of Sagorac’s client there are no other questions to answer and further deposition
testimony is unnecessary.” Opp. at 4:11-23, internal citations omitted.
This “offer” is apparently a reference to counsel’s letter to Defense Counsel dated 31 December 2014. See Ex. A to
the Declaration of David Draper (“Draper Decl.”). The Court notes that counsel waited to make this concession to
common sense until after Defendants went to the time and effort to file a motion to compel on 22 Dec. 2014 and after
similar offers from Defense Counsel to keep the information confidential (see emails dated 12 Dec. 2014 in Ex. C to
the Cooper Decl.) went without any response.
In addition to offering to disclose the identity of Sagorac’s client this letter states in pertinent part that Sagorac will be
providing “clarifications and corrections” to his testimony, that Sagorac does not have the hard drive that failed in
September 2013, and that his IT professional (“Dan at ENcompass IT”) has stated that “he does not have Mr.
Sagorac’s crashed hard drive nor does he recall Mr. Sagorac taking it with him when he picked up his repaired
computer last year.”
3.
Analysis
The only objection that was raised in response to Defendants’ questions at deposition regarding the identity of the
client who authorized Mr. Sagorac to communicate the competing offer to Plaintiff was that the information was a
protected trade secret. As noted above Defendants are not obligated to show good cause to compel a further
response to the question and Sagorac has the burden of establishing the existence of a protected trade secret that
might be divulged. (See Bridgestone/Firestone, Inc. v. Superior Court (1992) 7 Cal.App.4th 1384, 1393.) He has not
met this burden as his declaration does not establish all of the elements of a trade secret. (See Civ. Code, § 3426.1,
subd. (d); Cadence Design Systems, Inc. v. Avant! Corp. (2002) 29 Cal.4th 215, 221-222.) Accordingly, the objection
the trade secret objection is overruled.
However as the only information still being sought as deposition testimony is the client’s identifying information
(name, address, phone number) there is no good reason to require Mr. Sagorac to return for a continued deposition.
Counsel for both sides now (belatedly) appear to be in agreement that the client’s identifying information is
discoverable and may be disclosed so long as it is kept confidential and used only for litigation purposes.
Accordingly the motion to compel further answers to deposition questions is GRANTED IN PART as follows: Within
20 days of this Order, Mr. Sagorac shall provide the name, address and telephone number of his client to Defendants
in writing. This information shall be used only for purposes of this litigation and maintained as confidential by
Defendants’ counsel and not disclosed to anyone not working on the case. No further deposition appearance by Mr.
Sagorac is required.
As for the motion to compel further responses to the deposition subpoena’s document requests, while Defendants
have not established that there was anything improper in Sagorac’s assertion that he had no documents responsive
to the requests the motion is also GRANTED IN PART as follows. To the extent Sagorac now states that he has
found documents responsive to the targeted requests he shall provide a further sworn response to the deposition
subpoena within 20 days of this order stating that all documents in his possession responsive to the targeted
requests have been provided to Defendants and enclosing copies of any such documents not already provided to
Defendants.
____________________________
DATED:
_________________________________________________
HON. SOCRATES PETER MANOUKIAN
Judge of the Superior Court
County of Santa Clara
- oo0oo -
Calendar line 14
SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
DEPARTMENT 19
161 North First Street, San Jose, CA 95113
408.882.2310 · 408.882.2299(fax)
smanoukian@scscourt.org
http://www.scscourt.org
Tieu v. Tieu
DATE: 16 January 2015
TIME: 9:00
(For Clerk's Use Only)
CASE NO. 114CV266238
LINE NUMBER: 14
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 408.882.2310 and the opposing party no later than 4:00 PM Thursday 15
January 2015. Please specify the issue to be contested when calling the Court and counsel.
On 16 January 2015, the motion of Plaintiff to compel Defendant Nghia Cao Tieu (“Defendant”) to provide further
responses to special interrogatories, set to one, numbers 1-13; form interrogatories, set one, numbers 15.1 and 17.1
(pertaining to requests for admissions 1-10; demand for production of documents, set one, numbers 1-38; and for
sanctions was argued and submitted.
Defendant did not file formal opposition to the motion.44 On 14 January 2015, the parties appeared on the ex parte
application of Defendant to continue the hearing on this motion due to illness of defense counsel. The Court denied
the request. This Court noted that the motion was filed two months ago, the illness of defense counsel is only of
recent vintage, and that Plaintiff is entitled to the discovery responses.
I.
Statement of Facts.
This case involves a lawsuit between a husband and wife and the sister of Plaintiff concerning the management of a
restaurant. Plaintiff believes that Defendants Nghia Cao Tieu and Linh Phuong Mai took ill legal advances from the
company. Plaintiff also believes that the defendants would report only a small portion of the funds being withdrawn to
the Internal Revenue Service. As a result, the restaurant failed to report approximately $200,000 in taxable income.
The IRS now seeks to recover $91,000 in back taxes for the time of an audit between 2010 to 2012. Plaintiff believes
that over the preceding 15 years, Defendants under reported $1,250,000.
II.
Discovery Dispute.
On 26 August 2014, counsel for defendant was served with a demand for production of documents, request for
admissions, form interrogatories and special interrogatories. The responses were due on 2 October 2014.
Defendant failed to serve timely responses. Therefore, on 9 October 2014, counsel for Plaintiff sent a follow-up letter
demanding responses without objections on or before 15 October 2014.45
On 16 October 2014, Defendant's counsel in the dissolution matter personally served responses to the foregoing
discovery. Counsel for Plaintiff believe the responses were not code compliant and that defendant made the same
“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).
44
While meeting and conferring is not required for a motion to compel initial responses, the parties are always encouraged to
work out their differences informally so as to avoid the necessity for a formal order. The Court has concerns when there does
not appear to be any effort to resolve discovery issues without Court intervention. See McElhaney v. Cessna Aircraft Co. (1982)
134 Cal.App.3d 285, 289.
45
boilerplate objections to all of the special interrogatories and document requests and had failed to give substantive
responses.
On 26 October 2014, Plaintiff sent a "meet and confer" letter to Defendant identifying the deficiencies in the
responses. On 5 November 2014, defense counsel indicated that responses would be provided by 19 November
2014. However, on 18 November 2014, Defendant’s family law attorney calls to ask for an extension until 10 January
2015. After Plaintiff’s counsel declined, she indicated that she wanted an extension until 10 December 2014.
The present motion was filed on 26 November 2014.
III.
Analysis.
If a propounding party is not satisfied with the response served by a responding party, the propounding party may
move the court to compel further responses. (Code Civ. Proc. §§ 2030.300 [interrogatories]; 2031.310 [inspection
demands].) The propounding party must demonstrate that the responses were incomplete, inadequate or evasive, or
that the responding party asserted objections that are either without merit or too general. (Code Civ. Proc. §§
2030.300 (a)(1)-(3); 2031.310(a)(1)-(3).) The propounding party must bring its motion to compel further responses
within 45 days of the service of the response (Code Civ. Proc. §§ 2030.300(c); § 2031.310 (c)), and must
demonstrate that it complied with its obligation to “meet and confer.” (§§ 2016.040; 2030.300 (b); 2031.310(b)(2).)
(Also required is a separate statement as specified in Cal. Rules of Court, rule 3.1020.) In addition, a party moving to
compel further responses to an inspection demand must establish “good cause justifying the discovery sought by the
inspection demand.” (Code Civ. Proc. § 2031.310,(b)(1).)
A. Timeliness of Motion to Compel Further Responses
Motions to compel further responses to interrogatories, to requests for production of documents and requests for
admission must be filed within 45 days after the responses in question were served. (Code Civ. Proc. §§
2030.300(c), 2031.310(c), and 2033.290(c).)
The Court determines the motion to be timely.
B. Meet and Confer
A motion to compel further responses to a request for production of documents or interrogatories shall be
accompanied by a meet and confer declaration “showing a reasonable and good faith attempt at an informal
resolution of each issue presented by the motion.” (Code Civ. Proc. §§ 2016.040, 2031.310(b)(2), 2030.300(b).) A
reasonable and good faith attempt at informal resolution entails something more than argument with opposing
counsel. It requires that the parties present the merits of their respective positions with candor, specificity, and
support. (Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1435, 1439.) The level of effort at informal
resolution that satisfies the “reasonable and good faith attempt” standard depends upon the circumstances of the
case. (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431.) The court has discretion to deny discovery
absent efforts to meet and confer, but must consider whether a less drastic remedy is appropriate given the
circumstances presented. (See Townsend v. Superior Court, supra, 61 Cal.App.4th at p. 1439, Obregon v. Superior
Court, supra, 67 Cal.App.4th at p. 434.)
Plaintiff satisfied the meet and confer requirement as the record indicates Plaintiff’s counsel made a “reasonable and
good faith attempt” to resolve the matter informally. After Defendant failed to serve timely responses, Plaintiff’s
counsel sent a letter to Defendant’s counsel on 9 October 2014 requesting the discovery within 7 days.46 After
Defendant provided incomplete responses on 16 October 2014, Plaintiff sent a second letter on 26 October 2014
explaining why the responses were incomplete and requesting supplemental responses be provided.47 Instead of
providing supplemental responses, Defendant requested an extension until 19 November 2014.48 Plaintiff agreed to
wait to file a motion to compel until 19 November 2014.49 However, on 18 November 2014, Defendant’s counsel
46
Declaration of Amiel L. Wade in Support of Plaintiff’s Motion (“Wade Decl.”), ¶ 4; Exhibit E.
47
Wade Decl., ¶ 6; Exhibit J.
48
Wade Decl., ¶ 7; Exhibit K.
49
Wade Decl., ¶ 8.
called Plaintiff’s counsel requesting a second extension until 10 January 2015.50 Plaintiff then filed the motion to
compel, refusing to grant another extension to provide code compliant responses.
C. Special Interrogatories (“SI”), Set One, No. 1-13 and Form Interrogatories (“FI”), Set One, No. 15.1
and 17.1
A party propounding interrogatories may move for an order compelling further responses if that party deems an
objection is without merit or too general or a response is incomplete. (Code Civ. Proc. § 2030.300(a).) The statute
does not require any showing of good cause in support of a motion. (See Code Civ. Proc. § 2030.300; see also Coy
v. Superior Court (1962) 58 Cal.2d 210, 220-221; Best Products, Inc. v. Sup.Ct. (Granatelli Motorsports, Inc.)
(2004)119 Cal.4th 1181, 1189-1190.) The burden is on the propounding party to obtain a judicial determination of
the validity of any objection by moving to compel a further response. However, the responding party has the burden.
1. SI No. 1-13
In responding to each of Plaintiff’s SI, Defendant provided the same boilerplate objection.
“Plaintiff and Defendant are currently going through their divorce proceedings, which Plaintiff herself is seeking an
order to coordinate this proceeding with the family court proceeding. The hearing for Plaintiff’s motion [t]o coordinate
is set for October 30, 2014. As there is uncertainty as to whether this civil litigation may be joined with the family
court proceedings, Defendant is unable to provide responses to this interrogatories. Defendant will amend his
response after the motion to coordinate is decided by the family court.
Responding Party identifies the following individuals as person who may have witnessed the Incident, and/or made
statements at the Incident, and/or heard statements made about the incident, and/or have knowledge of the incident:
Plaintiff through her counsel of record, Defendant through his counsel of record.
All corporate tax returns of Pho Noodle House II, Inc., corporate books of Pho 99 Noodle II.”
Code Civil Procedure § 2030.220 states that each answer in a response to interrogatories shall be as complete and
straightforward as the information reasonably available to the responding party permits. (Code Civ. Proc. §
2030.220.) If an interrogatory cannot be answered completely, it shall be answered to the extent possible or 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. (Id.)
In Sinaiko Healthcare Consulting Inc. v. Pacific Healthcare Consultant, (2007) 148 Cal.App.4th 390, 402, the court
noted that litigants have the right to broad discovery. In other words, “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.” (Code Civ. Proc. § 2017.010.) “In establishing the statutory
methods of obtaining discovery, it was the intent of the Legislature that discovery be allowed whenever consistent
with justice and public policy. [Citation.] The statutory provisions must be liberally construed in favor of discovery
and the courts must not extend the statutory limitations upon discovery beyond the limits expressed by the
Legislature.” (Irvington–Moore, Inc. v. Superior Court (1993) 14 Cal.App.4th 733, 738–739, 18 Cal.Rptr.2d 49.) Civil
discovery is intended to operate with a minimum of judicial intervention. “[I]t is a ‘central precept’ of the Civil
Discovery Act ... that discovery ‘be essentially self-executing[.]’ ” (Obregon v. Superior Court (1998) 67 Cal.App.4th
424, 434, 79 Cal.Rptr.2d 62, quoting Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1434, 72 Cal.Rptr.2d
333.)
Here, not only did Defendant provide incomplete answers to the interrogatories, Defendant avoided answering the
questions altogether by providing an explanation that is not relevant to this matter. Waiting to hear on the motion to
coordinate the two different matters to coincide with one another for efficiency purposes is an insufficient, incomplete
response. Furthermore, the answers to the interrogatories were not substantive. Therefore, Defendant did not make
a reasonable and good faith effort to obtain the information or response to the questions in a complete and
straightforward manner.
50
Id.
Therefore, the motion of Plaintiff to Compel Further Responses for SI, Set One, No. 1-13 is GRANTED. Defendant
shall respond to the discovery without objection and within 20 days of the date of the filing of this Order.
2. FI Set One, No. 15.1 and 17.1
FI No. 15.1: Identify each denial of material allegation or each special or affirmative defense in your pleading and
each: a) state all facts upon which you base your denial or special or affirmative defense; b) state the names,
Addresses, and telephone numbers of all persons who have knowledge of those facts; and 3) Identify all documents
and other tangible things, that support your denial or special or affirmative defense and state the names, addresses,
and telephone numbers of the person who has each document.
FI No. 17.1: Is your response to each request for admission served with these interrogatories an unqualified
admission? If not for each response that is not unqualified admission: a) state the number of the request; b) State all
facts upon which you base your response; c) State the names, addresses, and telephone numbers of all persons
who have knowledge of those facts; and d) Identify all documents and other tangible things that support your
response and state the name, address, and telephone number of the person who has each document or thing.
As noted above, Defendant provided the same boilerplate answers in the form Interrogatories for set one number
15.1 and 17.1 as it did for the special interrogatories set one number 1-13.
Once again, Defendant did not properly answer the questions nor did he provide any substantive objections. Instead,
Defendant provided incomplete answers that are unrelated to this matter. Furthermore, Defendant did not provide a
list of names and addresses of all the custodians who are currently in possession of the documents requested or
witnesses who have knowledge of the incidents in this matter. Defendant reasoned that the documents or information
of the witnesses would be facilitated between the counsels. However, question numbers 15.1 and 17.1 asks for more
detailed list regarding the names, addresses of all persons who may have knowledge or are the custodians of the
documents. Defendant did not provide any such information to Plaintiff.
Therefore, the motion of Plaintiff to Compel Further Responses for FI, Set One, No. 15.1 and 17.1 is GRANTED.
Defendant shall respond to the discovery without objection and within 20 days of the date of the filing of this Order.
D. Demand for Production of Documents, Set One, No. 1-38
Plaintiff’s motion also requests further responses to Plaintiff’s demand for production of documents, set one, no. 1-38.
A party propounding a request for production of documents may move for an order compelling further responses if it
deems that an objection in the response is without merit. (Code Civ. Proc. § 2031.310(a).) A motion for an order
compelling further responses to the request for production of documents “shall set forth specific facts showing good
cause justifying the discovery sought by the inspection demand.” (Code Civ. Proc. § 2031.310(b)(1).)
In order to establish good cause, the burden is on the moving party to show relevance to the subject matter and
specific facts justifying the discovery. (See Glenfed Develop. Corp. v. Superior Court (1997) 53 Cal.App.4th 1113,
1117.) Once a showing of good cause is made, the burden shifts to the opposing party to justify his or her
objections. (See Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.)
1. Good Cause Justifying Discovery
Discovery is allowed for any matters that are not privileged, relevant to the subject matter involved in the action, and
reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc. § 2017.010.) The
“relevance to the subject matter” and “reasonably calculated to lead to discovery of admissible evidence” standards
are applied liberally with any doubt generally resolved in favor of discovery. (Colonial Life & Acc. Ins. Co. v. Superior
Court (1982) 31 Cal.3d 785, 790.) Moreover, for discovery purposes, information is “relevant to the subject matter” if
it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. (Gonzalez v.
Superior Court (1995) 33 Cal.App.4th 1539, 1546.)
In the present case, Plaintiff makes 38 document requests seeking detailed information regarding the tax and
financial records of Defendants Noodle House II, Inc., Nghia Cao Tieu, and Linh Phuong Mai. In response to
Plaintiff’s inspection demands, Defendant Tieu provided identical boilerplate responses to each document request.
Defendant asserts an inability to comply with each request, claiming all documents “have been lost or misplaced, or
are no longer in the possession, custody or control of the Responding Party.” In listing individuals who may have
knowledge of the whereabouts of the requested information, Defendant merely states the parties to the action.
Furthermore, in identifying documents that might contain the information, Defendant generally refers to all corporate
tax returns and financial records. Defendant also states a refusal to comply with any request until after a motion to
coordinate the present claim with the family court divorce proceedings is heard and decided.
There is no doubt the documents requested “might reasonably assist” the Plaintiff in evaluating the case. Plaintiff’s
complaint alleges Defendants Tieu and Mai embezzled money from the restaurant and committed tax fraud by
systematically underreporting their income. As a result of this conduct, Plaintiff was audited by the IRS in 2013 and
owes $91,000 in back taxes from 2010 to 2012. Plaintiff claims Defendants underreported over $1,500,000 since
1997. Liberally applying the discovery rules, each document request is “reasonably calculated to lead to the
discovery of admissible evidence” in this case.
Plaintiff correctly points out that Code Civil Procedure section 2031.230 requires a party claiming an inability to
comply with a discovery request to “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.” (Code Civ. Proc. §
2031.230.) Defendant’s boilerplate responses fail to comply with section 2031.230. No effort was made to provide
the names and addresses of any financial institution or accounting individual who may possess or control the
documents at issue. Furthermore, refusing to provide responses until after a motion to coordinate the matter with the
parties’ divorce proceeding is not a proper response or objection to the discovery requested.
Plaintiff has demonstrated the relevance of the documents requested and has set for specific facts justifying why
further responses are required. Therefore, Plaintiff made a showing of good cause for the discovery requested, and
the burden shifts to Defendant to justify the objections. No justification has been made as Defendant failed to file
opposing papers to this motion.
The motion to compel further responses to Plaintiff’s requests for production of documents, set one, no. 1-38 is
GRANTED. Defendant shall provide code compliant responses to the discovery without objection and within 20 days
of the date of the filing of this Order.
E. Sanctions.
Plaintiff also requests monetary sanctions.
Courts must look to the statute’s language and design as a whole, not merely particular statutory language at issue.
(K Mart Corp. v. Cartier, Inc. (1988) 486 U.S. 281, 291.) This allows courts to harmonize all sections and retain the
statute’s effectiveness in reviewing particular statutory language in the context of its entire statutory scheme. (Bravo
v. Ismaj (2002) 99 Ca.App.4th 211, 220.) “The surest way to misinterpret a statute or a rule is to follow its literal
language without reference to its purpose.” (Viacom Int'l Inc. v. Federal Communications Comm'n, 672 F.2d 1034,
1040 (2d Cir. 1982).)
A court’s authority to award monetary sanctions arises from statutory authority, and not from the court’s own inherent
authority. (Trans-Action Commercial Investors, Ltd. v. Firmaterr (Jelinek) (1st Dist. 1997) 60 Cal.App.4th 352, 366.)
This authority is restricted because the Legislature has seen fit to establish such limitations. (Jelinek, 60 Cal.App.4th
at 371. See also Bauguess v. Paine (1978) 22 Cal.3d 626, 638-39.51)
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’s request is not code-compliant.
The California Code of Civil Procedure states the Court shall impose monetary sanctions in many different situations.
(See Code Civ. Pro. § 2030.300(d) (Imposing monetary sanctions for a motion to compel further responses to
interrogatories); Code Civ. Pro. § 2033.290(d) (Imposing monetary sanctions for motion to compel further responses
This case is still good law despite being superseded by Olmstead v. Arthur J. Gallagher & Co. (2002) 104 Cal. App. 4th 858,
because Olmstead was ultimately reversed two years later. The court responsible for the reversal had held that authorizing
monetary sanctions for bad-faith acts was not applicable to claims initiated on or before December 31, 1994.
51
to a request for admission); Code Civ. Pro. § 2033.420(b) (Imposing monetary sanctions where party unreasonably
denied a request for admission); Code Civ. Pro. § 2031.310(d) (Imposing monetary sanction against losing party for
motion to compel further responses to inspection demand).)
However, with regards to motions to compel further responses, where there are no opposition papers filed, the proper
source of authority for monetary sanctions is Rule of Court 3.1348(a) as there has been no failed opposition.
Concerning Plaintiff’s motion to compel further answers, the Defendant has not unsuccessfully opposed this motion.
Therefore, reliance on Code Civ. Proc. §§ 2023.030 and 2030.300(d) for monetary sanctions is inapplicable in
present case. The proper authority for monetary sanctions pertaining to this motion 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 and in
the memorandum of points and authorities:
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.”
Accordingly, Plaintiff’s request for monetary sanctions is DENIED.
///
///
///
IV. Order.
Plaintiff’s motion to compel Defendant to provide further responses to: special interrogatories, set to one, numbers 113; form interrogatories, set one, numbers 15.1 and 17.1 (pertaining to requests for admissions 1-10); and demand
for production of documents, set one, numbers 1-38 is GRANTED. Defendant shall respond to the discovery without
objection and within 20 days of the date of the filing of this Order.
Plaintiff’s request for monetary sanctions is DENIED.
____________________________
DATED:
_________________________________________________
HON. SOCRATES PETER MANOUKIAN
Judge of the Superior Court
County of Santa Clara
- oo0oo -
Calendar line 15
- oo0oo -
Calendar line 16
SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
DEPARTMENT 19
161 North First Street, San Jose, CA 95113
408.882.2310 · 408.882.2299(fax)
smanoukian@scscourt.org
http://www.scscourt.org
Sergio Deac v. Sahajananda Talla
DATE: 16 January 2015
TIME: 9:00
(For Clerk's Use Only)
CASE NO. 114CV268791
LINE NUMBER: 16
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 15
January 2015. Please specify the issue to be contested when calling the Court and counsel.
On 16 January 2015, the motion of Defendant Sahajananda Talla to Compel Supplemental Discovery Responses
and to Product Documents and for award of monetary sanctions was argued and submitted.
Plaintiff and Cross-Defendant Sergio Deac filed formal opposition to the motion.
All parties are reminded that all papers must comply with California Rules of Court, rule 3.1110(f).52
V. Statement of Facts
In this case Plaintiff is contending that Defendants have failed to pay him money that he is entitled to receive as a
result of being Defendant’s general contractor. Defendants allege that any contract was illegal, Plaintiff committed
fraud, that Plaintiff breached any agreement that did exist, and that Plaintiff has been paid more than in full.
VI. Discovery Dispute
Defendant is advised that, when filing a discovery motion, including in their memorandums facts as to the dates and
history of the discovery in question is useful to the Court. It is noted that these facts are included in the Declaration
of Amiel L. Wade. However—in deciding a discovery motion—while facts regarding Defendant’s theory that Plaintiff
has breached or committed fraud are useful for relevancy determination; discovery related facts would be extremely
useful to the Court in making a discovery determination. See rule of Court 3.1113(b).53
On 19 August 2014, Defendant served on Plaintiff’s counsel: 1) a demand for production of documents; 2) a request
for admissions; 3) form interrogatories; and 4) special interrogatories. (Ex. B-E; Wade Decl. ¶ 3).
On 24 October 2014, Plaintiff’s counsel mailed their responses to Defendant’s discovery requests. (Ex. F-I; Wade
Decl. ¶ 4). Defendant states that these responses are not code-compliant.
On 3 November 2014, Defendant sent a meet and confer letter to Plaintiff’s counsel. (Ex. J; Wade Decl. ¶ 5). In this
letter he informed Plaintiff of the issues he saw with Plaintiff’s discovery responses. (Id.) This letter also requested
supplementary discovery responses by 13 November 2014. (Id.) Plaintiff’s counsel provided some supplementary
responses by this date but Defendant states that most of the responses were still inadequate. (Wade Decl. ¶ 6).
“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
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.”
52
“The memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and
a discussion of the statutes, cases, and textbooks cited in support of the position advanced.” (Emphasis added.)
53
On 25 November 2014, Defendant sent another meet and confer letter discussing the remaining issues they believed
existed in Plaintiff’s discovery responses. (Ex. O; Wade Decl. ¶ 7). Defendant received no response to this letter or
to a subsequent email requesting response to this letter. (Wade Decl. ¶ 8).
On 22 December 2014, Defendant filed the present motion.
NO TENTATIVE RULING. The parties are to appear and argue the matter on the merits.
____________________________
DATED:
_________________________________________________
HON. SOCRATES PETER MANOUKIAN
Judge of the Superior Court
County of Santa Clara
- oo0oo --
Calendar line 17
SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
DEPARTMENT 19
161 North First Street, San Jose, CA 95113
408.882.2310 · 408.882.2299(fax)
smanoukian@scscourt.org
http://www.scscourt.org
Juan Corona v. James Cai, et al.
DATE: 16 January 2015
TIME: 9:00
(For Clerk's Use Only)
CASE NO. 114CV269024
LINE NUMBER: 17
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 408.882.2310 and the opposing party no later than 4:00 PM
Thursday 15 January 2015. Please specify the issue to be contested when calling the Court and
counsel.
On 16 January 2015, the motion of defendant James Cai (“Cai”) to compel further responses to form interrogatories
and requests for admission, and for monetary sanctions, was argued and submitted. Plaintiff Juan Corona
(“Corona”) filed a formal opposition to Cai’s motion.
I.
Statement of Facts
Corona brings this action against his former attorney, Cai, and Cai’s law firm, defendant Schein & Cai LLP
(collectively, “Defendants”). He alleges that he hired Defendants to save his home from foreclosure, but
they failed to obtain a loan modification on his behalf or have him declared bankrupt as they had promised.
Instead, Defendants filed multiple unsucccessful bankruptcy petitions, and submitted an unsuccessful
application for a loan modification to Corona’s lender 8 months after Corona hired them. Corona’s home
was sold in foreclosure proceedings on 10 July 2013, and Corona was evicted on 10 January 2014.
On 19 March 2014, Corona, who is self-represented, filed this action for: (1) negligence, (2) legal
malpractice, (3) breach of fiduciary duty, and (4) negligent infliction of emotional distress.
II.
Discovery Dispute
On 12 September 2014, Cai served first sets of requests for admissions (the “RFA”s) and form interrogatories (the
“FI”s) on Corona. Cai’s counsel received Corona’s unverified responses, which had been improperly served, on 22
October 2014. On 31 October 2014, Cai’s counsel sent a meet and confer letter to Corona, in which he requested
that Corona provide verifications to the RFAs and FIs and raised a number of substantive issues with Corona’s
responses. Counsel stated that Cai would treat the responses as having been timely served despite the problems
with service, but requested that Corona provide further responses by 15 November 2014, addressing the substantive
issues raised. Corona did not respond to this correspondence, although he acknowledges in his opposition papers
that he received it.
On 2 December 2014, Cai filed the instant motion to compel further responses to the RFAs and FIs. On 5 January
2015, Corona filed papers in opposition to Cai’s motion. As of 13 January 2015, no reply papers had been filed.
III.
Discussion
A. Legal Standard
A party propounding interrogatories and requests for admission may move for an order compelling further responses
if that party deems an answer is evasive or incomplete and/or an objection is without merit or too general. (Code Civ.
Proc. (“CCP”), §§ 2030.300, subd. (a) and 2033.290, subd. (a).) The statutes do not require any showing of good
cause in support of a motion compelling further responses to interrogatories or requests for admission. (See CCP,
§§ 2030.300 and 2033.290; see also Coy v. Super. Ct. (Wolcher) (1962) 58 Cal.2d 210, 220-221.) The burden is on
the responding party to justify any objections or failure to fully answer. (Coy v. Super. Ct., supra, 58 Cal.2d at
pp. 220-221.)
B. Meet and Confer
A motion to compel further responses to interrogatories or requests for admission shall be accompanied by a meet
and confer declaration “showing a reasonable and good faith attempt at an informal resolution of each issue
presented by the motion.” (CCP, §§ 2016.040, 2030.300, subd. (b), 2033.290, subd. (b).) A reasonable and good
faith attempt at informal resolution entails something more than argument with opposing counsel. (Townsend v.
Super. Ct. (EMC Mortgage Co., et al.) (1998) 61 Cal.App.4th 1431, 1435, 1439.) It requires that the parties present
the merits of their respective positions with candor, specificity, and support. (Id.) The level of effort at informal
resolution that satisfies the “reasonable and good faith attempt” standard depends upon the circumstances of the
case. (Obregon v. Super. Ct. (Cimm’s, Inc., et al.) (1998) 67 Cal.App.4th 424, 431.) Where there has been a failure
to meet and confer, “[j]udges have broad powers and responsibilities to determine what measures and procedures
are appropriate in varying circumstances.” (Id.) The court’s discretion includes the possibility of denying discovery
altogether absent efforts to meet and confer. (See Townsend v. Super. Ct., supra, 61 Cal.App.4th at p. 1439;
Obregon v. Super. Ct., supra, 67 Cal.App.4th at p. 434 [court has discretion to deny discovery absent meet and
confer].)
Corona contends that Cai failed to adequately meet and confer because he made only one attempt to contact Corona
before filing the present motion. However, Cai’s counsel sent Corona a letter on 31 October 2014, in which he
detailed the asserted problems with Corona’s responses with specificity and support and requested further responses
within a reasonable 15 days. Corona admits that he received this correspondence, but he apparently did not respond
to it. He offers no explanation for his failure to respond in his opposition papers. Cai delayed filing the instant motion
until 2 December 2014, more than a month after sending the meet and confer letter. In light of these circumstances,
it appears that Corona had ample time to reach out to Cai regarding the issues he raised, and additional efforts by
Cai to meet and confer with the unresponsive Corona likely would not have been fruitful.
Accordingly, the Court finds that Cai’s meet and confer efforts were sufficient.
C. The Requests for Admissions
Cai seeks to compel further responses to RFAs 2-3 and 6-12.
1.
RFAs 2-3 and 6
RFAs 2-3 and 6 ask Corona to admit that, contrary to his allegations, Defendants told him that he would need to
make all payments pursuant to his October 2012 and April 2013 bankruptcy plans, and the filing of his Chapter 7
bankruptcy case had no impact on his bank’s ability to foreclose on his home. In his responses to RFAs 2-3, Corona
rested upon objections to the undefined term “payment” and to the relevance of the RFAs. In his response to RFA 6,
he rested upon objections to the terms “Chapter 7 case” and “no impact.”
In his opposition papers, Corona defends his objections that the disputed terms are vague and ambiguous, arguing
that Cai appears to use “payment” differently that Corona does in his complaint, and should be required to specify
whether the other terms have the same meaning as they do in the complaint . However, the meanings of these
terms are clear within the context of this action without the need for additional definition. Further, asserted nuances
regarding the definitions of terms do not excuse Corona’s failure to respond to the RFAs. (See Deyo v. Kilbourne
(1978) 84 Cal.App.3d 771, 783.) Corona must admit so much of each RFA as is true, although he may employ a
reasonable and clear qualification regarding the definition of a term if necessary. (CCP, § 2033.220, subd. (b)(1).)
Corona’s objections to these terms are consequently overruled, and his undefended relevance objections are also
overruled. Further substantive responses to these RFAs are thus warranted.
///
///
2.
RFAs 7-9
RFAs 7 and 8 seek admissions that Corona did not have the ability to pay the arrearage on his mortgage that existed
at the time he filed for bankruptcy in 2012 and 2013, respectively. Corona responded by resting upon objections that
various terms are vague, ambiguous, and overly burdensome and the RFAs “seek[] information which relies on an
evaluation and legal assessment by Defendant.” RFA 9 asks Corona to admit that the value of his home at the time
of foreclosure was less than he owed on his mortgage. In response, Corona rested upon an objection to the term
“the foreclosure.”
Corona defends his objections to the terms at issue with the same argument discussed above with respect to RFAs
2-3 and 6. Corona’s argument fails for the same reasons, and his objections to the terms used in RFAs 7-9 are
overruled. Corona’s undefended objections to RFAs 7-8 are also overruled. Accordingly further substantive
responses to RFAs 7-9 are warranted.
3.
RFAs 10-12
RFAs 10-12 ask Corona to admit that none of Defendants’ actions were fraudulent, constituted despicable conduct,
or were intended to cause Corona injury. In his responses, Corona again interposed objections to various terms, but
responded “[n]otwithstanding these objections” by unequivocally denying each of these RFAs. Cai argues that
Corona’s objections to RFAs 10-12 lack merit. However, given that Corona has fully and substantively responded to
these RFAs, further responses thereto are unwarranted.
D. The Form Interrogatories
Cai moves to compel further responses to FIs 2.5., 2.7, 9.1-9.2, 12.1, 12.3, and 17.1.
1.
FI 2.5
FI 2.5 asks Corona to state (a) his present residence address, (b) his addresses for the last five years, and (c) the
dates he lived at each address. In response, Corona rested upon a relevance objection to subpart (a), and
responded to subparts (b) and (c) by, respectively, providing a single residence address and stating that “Plaintiff has
lived in the current residence since he was evicted from his residence in Manteca as a result of Defendants actions
which is the focus of this litigation.” (Sic.)
In his opposition papers, Corona defends his relevance objection to subpart (a). He does not address his failure to
fully respond to subparts (b) and (c) by providing a complete history of his residence addresses over the past five
years. With respect to the relevance objection, Cai is entitled to discover Corona’s present address in order to
facilitate serving him with documents and communicating with him during this lawsuit. Corona’s relevance objection
is accordingly overruled. Further, Corona’s response as a whole must be full and complete. (See CCP, § 2030.220.)
In light of the above, a further response that fully addresses each subpart of FI 2.5 in substance is warranted.
2.
FI 2.7
FI 2.7 seeks information regarding Corona’s educational history. In response, Corona rested upon an objection to
the relevance of this FI, and he defends his objection in his opposition papers. Cai argues that Corona’s educational
history is “reasonable background information,” but does not explain its relevance to this legal malpractice case,
which does not appear to the Court.
Accordingly, Corona’s relevance objection to FI 2.7 is sustained, and a further response is unwarranted.
3.
FIs 9.1-9.2
FIs 9.1-9.2 request information concerning the damages that Corona seeks in connection with the “INCIDENT” at
issue in this action. Corona responded by resting upon objections that the term “INCIDENT” is not defined and is
vague, ambiguous, and overly burdensome, and he repeats but does not defend these objections in opposition to
Cai’s motion. “INCIDENT” is defined by the FIs, using the standard definition approved by the Judicial Council of
California, to mean the circumstances and events surrounding the occurrence giving rise to this action. This
definition is clear and appropriate in its scope. Again, Corona is obligated to respond to these FIs as fully as
possible. (See CCP, § 2030.220.)
Consequently, Corona’s objections to FIs 9.1-9.2 are overruled, and further substantive responses are warranted.
4.
FI 12.1
FI 12.1 instructs Corona to provide information concerning any witnesses to the “INCIDENT.” Corona responded by
resting upon objections to the terms and phrases “INCIDENT,” “any statement(s),” and “who heard any statements
made about the INCIDENT by any individual at the scene.” Corona defends these objections in his opposition
papers with the same argument discussed elsewhere.
Corona’s objections to the term “INCIDENT” are without merit for the reasons already discussed, and the Court
similarly finds that the other Judicial Council-approved language to which Corona objects is clear and appropriate.
Consequently, Corona’s objections to FI 12.1 are overruled, and a further substantive response is warranted.
5.
FI 12.3
FI 12.3 queries whether Corona has obtained a written statement from any individual concerning the “INCIDENT,”
and includes a number of follow-up questions regarding any statement that Corona has obtained. Corona responded
to FI 12.3 by interposing objections and providing a substantive response of “no” notwithstanding these objections.
Cai challenges Corona’s objections, but given that the objections do not impact Corona’s complete, substantive
response, a further response to FI 12.3 is unwarranted.
6.
FI 17.1
FI 17.1 asks Corona to provide certain information in support of any of his responses to the RFAs that are not
unqualified admissions. In response, Corona objected that the term “unqualified” is vague, ambiguous, and overly
burdensome, and that the interrogatory attempts to acquire information protected by the work product doctrine. In his
opposition papers, Corona defends his objections to the term “unqualified” only.
Again, the Court finds that this Judicial Council-approved term is clear and straightforward, and Corona’s objections
to FI 17.1 are overruled. A further substantive response to FI 17.1 is warranted.
E. Verifications
Finally, Cai moves to compel Corona to verify his responses to the RFAs and FIs as required by the CCP. (See
CCP, §§ 2030.250, 2033.240.) Corona does not indicate that he has provided verifications to his responses.
Consequently, he will be ordered to do so now.
F. Request for Monetary Sanctions
Cai makes a code-compliant request for $1,250 in monetary sanctions against Corona pursuant to CCP sections
2030.300 and 2033.290.
CCP sections 2030.300, subdivision (d) and 2033.290, subdivision (d) provide that the court shall impose a monetary
sanction against any party or attorney who unsuccessfully opposes a motion to compel further responses to
interrogatories and requests for admission, unless the party or attorney acted with substantial justification or other
circumstances make the imposition of a sanction unjust.
Here, Corona’s opposition to Cai’s motion to compel was almost entirely unsuccessful, Corona was not substantially
justified in his failure to respond fully to the discovery at issue, and no other circumstances make the imposition of
sanctions unjust. Therefore, the Court will award monetary sanctions against Corona.
Cai’s counsel declares that he spent at least 5 hours preparing the instant motion, at a rate of $250 per hour.
Counsel’s time spent and hourly rate are reasonable, and the Court will accordingly award the full $1,250 in
sanctions requested (5 hours x $250/hr. = $1,250).
IV. Conclusion and Order
Cai’s motion to compel further responses is GRANTED IN PART AND DENIED IN PART. The motion is GRANTED
insofar as it seeks to compel Corona to provide further responses to RFAs 2-3 and 6-9 and FIs 2.5., 9.1-9.2, 12.1,
and 17.1 and verifications to Corona’s responses to the RFAs and FIs. Corona shall serve verified, code-compliant
further responses to RFAs 2-3 and 6-9 and FIs 2.5., 9.1-9.2, 12.1, and 17.1, without objections, within 20 calendar
days of the filing of the Court’s order. Corona shall also provide verifications to his initial responses to the FIs and
RFAs within the same time period. Cai’s motion is DENIED insofar as it seeks to compel Corona to provide further
responses to RFAs 10-12 and FIs 2.7 and 12.3.
Cai’s request for monetary sanctions is GRANTED. Corona shall pay $1,250 to Cai’s counsel within 20 calendar
days of the filing of the Court’s order.
____________________________
DATED:
_________________________________________________
HON. SOCRATES PETER MANOUKIAN
Judge of the Superior Court
County of Santa Clara
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