please note: effective 7-24-17, the court will no … · government code section 835. since there...

SUPERIOR COURT, STATE OF CALIFORNIA

COUNTY OF SANTA CLARA

Department 19, Honorable Peter H. Kirwan, Presiding Shantel Hernandez, Courtroom Clerk

Court Reporter: SEE NOTE BELOW

191 North First Street, San Jose, CA 95113

Telephone: 408.882.2310

To contest the ruling, call (408) 808-6856 before 4:00 P.M.

LAW AND MOTION TENTATIVE RULINGS

DATE: December 19, 2019 TIME: 9 A.M.

PLEASE NOTE: EFFECTIVE 7-24-17, THE COURT WILL NO

LONGER BE PROVIDING COURT REPORTERS. IF YOU WANT A

COURT REPORTER AT YOUR HEARING, ALL PARTIES MUST

JOINTLY AGREE AND A STIPULATION AND APPOINTMENT MUST

BE COMPLETED, SEE FORM CIV-5063

THE COURT WILL PREPARE THE ORDER UNLESS STATED

OTHERWISE BELOW

TROUBLESHOOTING TENTATIVE RULINGS

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LINE # CASE # CASE TITLE RULING

LINE 1 17CV318441 M. Squared Enterprises, Inc. vs City of San Jose

Off Calendar

LINE 2 2015-1-CV-279969

T. Schweikert vs Las Brisas Homewowners Association (HOA), et al

Off Calendar

LINE 3 17CV320146 Esther Vasquez vs Anna Banzer et al

Defendant’s Motion to Compel Discovery

Responses and for Sanctions is unopposed

and GRANTED. Moving party is

instructed to prepare the Order.

LINE 4 19CV340607 Adrian Stewart et al vs Richard Hanson et al

Defendant Leonard Ataide’s Motion for

Order deeming Requests for Admissions

Admitted is unopposed---Parties to

Appear

LINE 5 19CV340607 Adrian Stewart et al vs Richard Hanson et al

Defendant Park West San Jose

Homeowner’s Association’s Motion for

Order deeming Requests for Admissions

Admitted is unopposed----Parties to

Appear






Telephone: 408.882.2310



LINE 6 16CV289952 Anthony Held, Ph.D, P.E. vs Willi Hahn Corporation

Plaintiff Anthony Held, PH.D, P.E.’s

Motion for Assignment Order and

Restraining Order is unopposed----Parties

to Appear

LINE 7 16CV292024 Casas Riley Simonian LLP vs HORC, Inc. et al

Plaintiff Casas, Riley and Simonian LLP’s

Motion to Enforce Settlement Agreement

Pursuant to CCP 664.6 is unopposed and

GRANTED. Moving party is instructed to

prepare the Order.

LINE 8 17CV307738 Michael Evans vs Paul Goldman et al

Plaintiff Michael Evan’s Motion for Order

for Enforcement of Settlement Agreement

and for Entry of Judgment----Parties to

Appear

LINE 9 17CV311622 Steven Lopes vs Paragon Systems, Inc.

Reassigned to Dept. 3

LINE 10 19PR186286 In the Matter of Mariaisabel Mendoza

Petition for Approval of Minor’s

Compromise of Mariaisobe Mendoza---

Parties to Appear

LINE 11 19PR186286 In the Matter of Mariaisabel Mendoza

Petition for Approval of Minor’s

Compromise of Clarissa Mendoza----

Parties to Appear

LINE 12

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LINE 14

LINE 15

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LINE 17

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LINE 19

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LINE 24

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Telephone: 408.882.2310



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Calendar Line 1

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Calendar Line 2

Case Name: Thomas Schweikert v. Las Brisas Homeowners Association (HOA), et al.

Case No.: 2015-1-CV-279969

Defendant Benchmark Environmental Engineering’s Motion for Summary Judgment or,

in the Alternative, for Summary Adjudication

Factual and Procedural Background

This is a negligence action brought by plaintiff Thomas Schweikert (“Plaintiff”), owner

of a condominium unit located at 1750 Halford Avenue, Unit 109, in Santa Clara (“Subject

Property”) against defendant UPIN, Inc. dba Benchmark Environmental Engineering

(erroneously sued as Benchmark Environmental Engineering; hereafter, “Benchmark”) and

others arising from water which flowed from an upstairs unit into the common area ceilings

and walls and into Plaintiff’s unit on October 27, 2005; November 5, 2005; and November 10,

2005. (Fourth Amended Complaint (“4AC”), ¶17.)

The operative 4AC, filed July 10, 2018, asserts causes of action for: (1) breach of

fiduciary duty; (2) violation of governing documents; (3) negligence; and (4) intentional and

negligent infliction of emotional distress.

On October 18, 2019, defendant Benchmark filed the motion now before the court, a

motion for summary judgment/ adjudication of Plaintiff’s claims.

I. Defendant Benchmark’s motion for summary judgment/ adjudication is DENIED.

“75 days’ notice is required on a motion for summary judgment.” (Weil & Brown et al.,

CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2019) ¶10:77, p. 10-33

citing Code Civ. Proc., §437c, subd. (a), et al.) “The court may not shorten the 75-day notice

period without the parties’ consent. CCP §437c(a) gives the court power to shorten time on

other summary judgment time requirements, but not on the 75-day notice of hearing.” (Id. at

¶10:80.5, p. 10-34 citing McMahon v. Superior Court (2003) 106 Cal.App.4th 112, 116, et al.;

italics original.)

To provide sufficient notice, defendant Benchmark had to personally serve this motion

no later than October 5, 2019. The proof of service accompanying defendant Benchmark’s

motion for summary judgment/ adjudication indicates personal service of the motion on

Plaintiff’s counsel was made on October 18, 2019. Plaintiff is correct that defendant

Benchmark’s motion is untimely served and did not provide the requisite notice. Accordingly,

defendant Benchmark’s motion for summary judgment/ adjudication is DENIED.

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Calendar Line 3

Case Name: Alfred Shahgholian v. Yama Marifat., et al.

Case No.: 17CV320512

Motion for an Order Compelling Further Responses to Special Interrogatories and

Imposing Monetary Sanction

Factual and Procedural Background

In or about May 2017, defendants Yama Marifat and Marifat Family, LLC

(collectively, “Marifat”) entered into a written agreement (“Agreement”) with Wayan Asefi

(“Asefi”) for the purchase, remodel, and re-sale of real property located at 1940 Hicks Avenue

in San Jose (“Subject Property”). (Second Amended Complaint (“SAC”), ¶¶5 and 16.) The

Agreement was a partnership enterprise and contained two main components. (SAC, ¶17.) The

first component was a service agreement wherein Asefi was to perform, or cause to be

performed, certain work upon the Subject Property to improve its condition for re-sale. (SAC,

¶18.) The second component was a partnership and/or joint venture between Asefi and Marifat

wherein the two were to share in the profits, if any, of the re-sale of the Subject Property it if

were to sell above a certain price. (SAC, ¶19.) Specifically, Asefi was to have a 30% share in

all profits should the Subject Property be re-sold for an amount in excess of $2,250,000. (SAC,

¶19.)

Following completion of the work contemplated in the Agreement, the Subject Property

sold for a price of $2,600,000 on or about September 1, 2017. (SAC, ¶21.)

On September 12, 2017, by a second written agreement, Asefi made a complete

assignment of his rights under the Agreement to plaintiff Alfred Shahgholian (“Shahgholian”).

(SAC, ¶¶7 and 22.)

On October 31, 2017, Asefi received a check in the amount of $21,000 representing

only a portion of the 30% share of the sale price in excess of $2,250,000 to which Asefi was

entitled to receive at the time of the assignment. (SAC, ¶23.)

Marifat breached the Agreement by failing to make any of the payments required under

either the service or joint venture component of the Agreement. (SAC, ¶28.)

On December 14, 2017, plaintiff Shahgholian filed a complaint against Yama Marifat

for breach of contract.

On June 26, 2018, plaintiff Shahgholian filed a first amended complaint adding

defendant Marifat Family, LLC, but continuing to assert a single cause of action for breach of

contract.

On June 4, 2019, plaintiff Shahgholian filed the operative SAC against defendants

Marifat now asserting causes of action for:

(1) Breach of Contract

(2) Accounting

(3) Unjust Enrichment

On July 1, 2019, defendant Yama Marifat, individually, filed an answer to the SAC.

[The court record reflects the rejection of a filing by defendant Marifat Family, LLC on or

about July 12, 2019 on the basis that defendant Marifat Family, LLC has not paid first paper

filing fees of $435. The court presumes defendant Marifat Family, LLC attempted to file an

answer.]

Discovery Dispute

On May 24, 2019, plaintiff Shahgholian served special interrogatories (“SI”), set two,

on defendant Marifat Family, LLC.1

On June 28, 2019, defendant Marifat Family, LLC served Defendant’s Response to

Plaintiff’s Special Interrogatories, Set Two, on plaintiff Shahgholian.2

On July 24, 2019, plaintiff Shahgholian’s counsel sent a meet and confer letter to

defendant Marifat Family, LLC’s counsel seeking supplemental responses to SI, set two,

numbers 63 – 65.3

On July 29, 2019, defendants’ counsel responded stating defendant Marifat Family,

LLC is “unable to supplement the responses already provided.”4

As of August 30, 2019, no supplemental responses have been provided.5

On August 30, 2019, plaintiff Shahgholian filed the motion now before the court, a

motion to compel defendant Marifat Family, LLC’s further response to plaintiff Shahgholian’s

SI, set two, numbers 63 – 65.

I. Plaintiff Shahgholian’s motion to compel defendant Marifat Family, LLC’s

further response to SI, set two, numbers 63 – 65 is GRANTED.

A. Legal standard.

“On receipt of a response to interrogatories, the propounding party may move for an

order compelling a further response if the propounding party deems that any of the following

apply: (1) An answer to a particular interrogatory is evasive or incomplete. (2) An exercise of

the option to produce documents under Section 2030.230 is unwarranted or the required

1 See ¶2 and Exh. A to the Declaration of Lorena Roel, Esq. in Support of Plaintiff’s Motion Compelling Further

Responses, etc. (“Declaration Roel”). 2 See ¶3 and Exh. B to the Declaration Roel. 3 See ¶4 and Exh. C to the Declaration Roel. 4 See ¶5 and Exh. D to the Declaration Roel. 5 See ¶6 to the Declaration Roel.

specification of those documents is inadequate. (3) An objection to an interrogatory is without

merit or too general.” (Code Civ. Proc., §2030.300, subd. (a).)

The objecting party bears the burden of justifying any objections raised. (Kirkland v.

Superior Court (2002) 95 Cal.App.4th 92, 98.) A response to an interrogatory must be “as

complete and straightforward as the information reasonably available to the responding party

permits.” (Code Civ. Proc., § 2030.200, subd. (a).)

B. Merits.

SI, number 63, asks, “State the total amount of PROFITS YOU earned on YOUR

purchase and re-sale of the PROPERTY. (The term “PROFITS” or “PROFIT SHARE” is used

in this interrogatory and all those that follow shall mean the financial gain, more specifically,

the amount earned and the amount spent in buying the PROPERTY.)

SI, number 64, asks, “State the amount of PROFITS YOU earned on YOUR purchase

and re-sale of the PROPERTY prior to any payment of PROFIT SHARE to PRO Builders

Construction.”

Defendant Marifat Family, LLC responded to SI, numbers 63 and 64, with the same

response: “Objection. This request as phrased is vague and ambiguous as the defined term

“PROFIT” and “PROFIT SHARE” is contradictory as it regards both an amount earned and

amount spent. Subject to the foregoing: The Responding Party is unaware of the total amount

spent to renovate the Property. As such, the Responding Party has no knowledge of the total

profit earned on the purchase and re-sale of the Property.”

SI, number 65, asks, “State the amount of PROFIT SHARE YOU paid to PRO Builders

Construction.”

Defendant Marifat Family, LLC responded to SI, number 65, with the following

response: “Objection. The information sought in this discovery request is equally available to

the propounding party. Further, this request as phrased is vague and ambiguous as the defined

term “PROFIT” and “PROFIT SHARE” is contradictory as it regards both an amount earned

and amount spent. Subject to the foregoing: The Responding Party paid twenty percent (20%)

of the net profits over $2,250,000 to Pro Builders Construction.”

In moving to compel further responses, plaintiff Shahgholian contends defendant

Marifat Family, LLC’s responses to the above SI are evasive or incomplete. In opposition,

defendant Marifat Family, LLC contends it has provided all relevant and available information

and that plaintiff has all the information necessary to determine whether full payment in

accordance with the Agreement has been made. In making these arguments, defendant asserts a

number of factual statements including the following: “Although the contract set a final walk

through date of June 15, 2016, ongoing issues occurred at the Property which pushed back

completion time and increased costs. …Defendants issued to ProBuilders a check for $15,000

on October 6, 2017, with a memo stating ‘1940 Hicks Contract Payment.’ Not only was this

check cashed by ProBuilder but Asefi followed up receipt of the check by emailing Yama

Marifat on October 25, 2017 stating ‘Per my instruction, please credit the amount required to

close linden from my proceeds out of Hicks’ (emphasis added). … As the 20% profit was to be

applied to another account owed to the Defendants by Asefi, all that remained due under the

contract was for the remaining contract debt to be paid. As such, on November 1, 2017, the

Defendants issued a check to Pro Builders Construction in the amount of $21,000 with a memo

stating: ‘Final payment 1940 Hicks Ave. Contract.’”

These factual assertions reflect knowledge of costs, dollar amounts paid, and an

understanding of calculations in determining the dollar amounts paid. Based on these factual

assertions, the court finds defendant Marifat Family, LLC’s responses to SI, set two, numbers

63 – 65 to be evasive or incomplete. Defendant Marifat Family, LLC cannot assert that it has

“no knowledge” in light of these factual assertions. The court also finds it evasive for

defendant Marifat Family, LLC to state, in its formal response, that it “paid twenty percent

(20%) of the net profits over $2,250,000 to Pro Builders Construction,” when defendant

Marifat Family, LLC identifies actual dollar amounts and an undefined credit in opposing this

motion.

Defendant Marifat Family, LLC’s assertion that plaintiff Shahgholian already has the

necessary documents from which to derive a response to the SI at issue is not a proper basis for

refusing to provide a substantive response. “A party may use multiple methods to obtain

discovery and the fact that information was disclosed under one method is not, by itself, a

proper basis to refuse to provide discovery under another method.” (Irvington Moore, Inc. v.

Superior Court (1993) 14 Cal.App.4th 733, 738 – 739.)

Accordingly, plaintiff Shahgholian’s motion to compel defendant Marifat Family,

LLC’s further response to SI, set two, numbers 63 – 65 is GRANTED. Defendant Marifat

Family, LLC shall provide a further verified response, in compliance with the Code of Civil

Procedure, to plaintiff Shahgholian’s SI, set two, numbers 63 – 65, within 20 calendar days

from notice of entry of this order.

C. Sanctions.

“The court shall impose a monetary sanction … against any party, person, or attorney

who unsuccessfully makes or opposes a motion to compel a further response to interrogatories,

unless it finds that the one subject to the sanction acted with substantial justification or that

other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., §2030.300,

subd. (d).)

Defendant Marifat Family, LLC objects to the imposition of sanctions in this case by

asserting that it acted with substantial justification and by asserting that plaintiff Shahgholian

did not make reasonable efforts to meet and confer in good faith, sending only a single meet

and confer letter. A reasonable and good faith attempt at informal resolution requires that the

parties present the merits of their respective positions with candor, specificity, and support.

(Townsend v. Super. Ct. (1998) 61 Cal.App.4th 1431, 1435, 1439.) The level of effort at

informal resolution which satisfies the “reasonable and good faith attempt” standard depends

upon the circumstances of the case. (Obregon v. Super. Ct. (1998) 67 Cal.App.4th 424, 431.)

Although the court would prefer the parties to engage in more effort at informal

resolution, the court finds a minimal effort was made. Defendant Marifat Family, LLC did not

act with substantial justification in refusing to supplement its responses to the SI at issue and,

consequently, sanctions are warranted. However, the court finds the amount requested

unreasonable. Plaintiff Shahgholian’s request for sanction is GRANTED, in part. Defendant

Marifat Family, LLC shall pay $560 to plaintiff Shahgholian within 20 calendar days of notice

of entry of this order.

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Calendar line 4

Case Name: Semicore Equipment, Inc. v. Adesto Technologies Corp.

Case No: 18CV332487

I. Background

Plaintiff Semicore Equipment, Inc. (“Plaintiff”) brings this action against defendant

Adesto Technologies Corp. (“Defendant”) for breach of contract.

According to the allegations of the second amended complaint (“SAC”), Plaintiff and

Defendant entered into a written agreement whereby Plaintiff would supply and engineer

industry-specific semiconductor equipment. (SAC, ¶ 5.) The entire value of the contract was

$2.27 million. (Id. at ¶ 6.) Plaintiff performed all covenants, promises and conditions under

the contract, but Defendant has not paid Plaintiff as agreed. (Id. at ¶¶ 7, 8.) Plaintiff has

sustained damages after payments received of not less than $1.05 million. (Id. at ¶ 9.)

As a result, Plaintiff brings the SAC alleging (1) breach of written contract; (2) money

had and received; (3) money paid; (4) money lent; (5) account stated; and (6) open book

account.

A. Discovery Dispute

On March 11, 2019, Defendant served special interrogatories (“SI”), set one, and

requests for production of documents (“RPD”), set one, on Plaintiff. Plaintiff served its

responses on April 17, 2019, and verifications were provided on April 23, 2019. However,

certain of the responses remained in dispute. After much back and forth communication

between counsel, including written agreements to extend time for production and any motion

to compel, on August 14, 2019, Plaintiff served supplemental responses. However, these were

not satisfactory to Defendant and no further responses were served.

Presently before the Court is Defendant’s motion to compel and request for monetary

sanctions. Plaintiff also requests monetary sanctions.

II. Motion to Compel Further Responses to SI

Defendant moves to compel further response to SI Nos. 27, 28, 29, 30, 31, 32, 33, 34,

and 35 pursuant to Code of Civil Procedure section 2030.3006.

A. Meet and Confer

Plaintiff argues that Defendant failed to meet and confer in good faith prior to filing the

motion.

6 All further statutory references are to the Code of Civil Procedure unless otherwise indicated.

A motion to compel further responses to interrogatories or document production must

be accompanied by a meet and confer declaration under section 2016.04. (§§ 2030.300, subd.

(b), 2031.310, subd. (b)(2).) The declaration shall state facts showing a reasonable and good

faith attempt at an informal resolution for each issue presented by the motion. (§ 2016.040.)

The level of effort at informal resolution which satisfies the “reasonable and good faith

attempt” standard depends upon the circumstances. (Stewart v. Colonial Western Agency,

Inc. (2001) 87 Cal.App.4th 1006, 1016.) This requirement may be satisfied through written

communications, such as letters or emails. (Obregon v. Superior Court (1998) 67 Cal.App.4th

424, 431; CCP, § 2023.010.) Meet and confer “requires that counsel attempt to talk the matter

over, compare their views, consult, and deliberate.” (Clement v. Alegre (2009) 177 Cal.App.4th

1277, 1294.)

Here, there was extensive correspondence between counsel from April 25, 2019, until

the beginning of June 2019, in the form of six detailed letters concerning ongoing disputed

responses. Most relevant to the present dispute, Defendant’s counsel offered to stipulate to a

protective order in its first letter dated April, 25, 2019. However, Plaintiff did not respond to

this and in its responsive letter merely asked for more time to respond. In a subsequent letter

sent nearly two weeks later, Plaintiff discusses its trade secret concerns, but does not raise the

issue of a protective order. The communication culminated in supplemental responses to SI

being served on August 14, 2019. However, no supplemental responses to RPD were served as

Plaintiff still objected that disclosure would reveal trade secrets. The amended SI simply

added an identical statement to each response regarding Plaintiff’s ongoing objections to

responding, but also stated its ongoing willingness to meet and confer, again without reference

to a protective order.

Based on the number of letters sent by Defendant, the detail provided in each, including

citation to statutory and case law, as well as its original stated willingness to agree to a

protective order, the Court finds the efforts at meet and confer were sufficient. The Court also

observes that the parties were at an impasse with respect to production, and it appears based on

the responses that were ultimately served, further meet and confer would have likely been

fruitless.

B. SI Nos. 27, 28, 29, 30, 31, 32, and 33

Defendant moves to compel further responses to SI Nos. 27, 28, 29, 30, 31, 32, and 33.

Plaintiff served objection-only responses to these SI on the basis of the disclosure of trade

secrets, and relevance.

The party propounding interrogatories may move for an order compelling a further

response if that party deems: (1) an answer is evasive or incomplete; (2) an exercise of the

option to produce documents is unwarranted or inadequate; and/or (3) an objection is without

merit or too general. (Code of Civ. Proc., § 2030.300, subd. (a).)

1. Objections

The party objecting to a discovery request bears the burden of explaining and justifying

the objections. (See Coy v. Super. Ct. (1962) 58 Cal.2d 210, 220-221.)

a. Trade Secrets

Plaintiff objects to SI Nos. 27 through 33 on the basis that answers would necessarily

reveal confidential, proprietary and/or trade secret information. However, in each response it

merely recites that the information is “highly sensitive, confidential trade secret information as

to Plaintiff’s internal pricing…” Therefore, its factual and legal argument is insufficiently

developed and it does not meet its burden to explain or justify the objection.

Furthermore, Code of Civil Procedure section 2030.090, subdivision (b)(6) provides

that a party objecting to answering interrogatories based on claims that they would necessary

reveal trade secrets may file a motion for a protective order that precludes disclosure or orders

disclosure only to specified persons or only in specified ways.

Thus, it is not code-compliant to cite trade secrets as an objection, and then to simply

refuse to respond. (See Stadish v. Superior Court (1999) 71 Cal.App.4th 1130, 1144 [the court

may not delegate to parties the responsibility of determining which items of discovery

contain[] trade secrets].) The code-compliant vehicle in such a situation would have been to

move for a protective order at which point the Court could have ordered the proper remedy, be

it production with or without a protective order, or no production at all pursuant to proper

procedures. (See e.g. Bridgestone/Firestone, Inc. v. Superior Court (1992) 7 Cal.App.4th

1384.) No such motion is presently before the Court. Alternatively, Plaintiff could have

responded to Defendant’s offer to enter into a stipulated protective order, as was proposed in

its letter dated April 25, 2019. (Dec. of G. Finwall, Exhibit K.)

Therefore, Plaintiff’s objection on the basis of trade secrets is overruled.

b. Relevance

Plaintiff further objects to SI Nos. 27 through 33 on the basis of relevance.

Discovery is allowed for any matters that are not privileged, are relevant to the subject

matter involved in the action, and reasonably calculated to lead to the discovery of admissible

evidence. (See Code Civ. Proc., § 2017.10.) 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. (See Colonial Life & Acc.

Ins. Co. v. Sup. Ct. (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. (See Gonzalez v. Sup. Ct. (1995) 33

Cal.App.4th 1539, 1546.) A discovery request is relevant if it is possible that information in a

particular subject area could be relevant and admissible at the time of trial. (See Maldonado v.

Sup. Ct. (2002) 94 Cal.App.4th 1390, 1397.)

The parties’ papers present conflicting interpretations of the Commercial Code, and

available remedies in support of the relevance of these SI. Without addressing the merits of the

conflicting interpretations, the Court finds that Plaintiff does not sufficiently explain or justify

its relevance objection. In particular, its points and authorities largely focuses on deficiencies

in Defendant’s arguments in support of relevance and production with a focus on Defendant’s

Commercial Code arguments. Plaintiff also argues its own interpretation of the Commercial

Code and its application to the contract dispute, but its arguments are otherwise devoid of

reference to case law regarding relevance in discovery motions and its application to the facts

here. Consequently, it does not meet its burden to explain or justify the relevance objection.

Plaintiff’s objection on the basis of relevance is therefore overruled.

Consequently, having overruled Plaintiff’s objections, the motion to compel further

response to SI Nos. 27, 28, 29, 30, 31, 32 and 33 is granted.

C. SI Nos. 34, 35

Defendant moves to compel further responses to SI Nos. 34 and 35. Plaintiff served

answers to these SI, however, Defendant seeks further responses on the basis that the answers

served are incomplete and evasive.

A response to an interrogatory must be “complete and straightforward.” (Code Civ.

Proc. § 2030.220, subd. (a).)

SI No. 34 asks Plaintiff to “State the date you contend [Defendant] breached the subject

contract entered into in March 2016.” Plaintiff responded that Defendant “failed to make the

required payment on April 1, 2016, had failed to make the required payment due on July 1,

2016, and failed to make the required payment on September 12, 2016. The last partial

payment was made by [Defendant] on or before July 13, 2017.”

SI No. 35 asks Plaintiff to “State the date you contend [Defendant] breached the subject

contract entered into in June 2016.” Plaintiff responded “[Defendant] was given written notice

it failed to make the required payment on April 1, 2016, had failed to make the required

payment due on July 1, 2016, and failed to make the required payment on September 12, 2016.

The last partial payment was made by [Defendant] on or before July 13, 2017.”

The answers to both of these SI also reference and repeat the answer to SI 36 (not at

issue here) which provided more detail regarding the notices sent by Plaintiff advising

Defendant of its failure to make each payment and that each failure to pay breached the

contract. Notably, the notice provided on July 13, 2017, informed Defendant that it had

“materially breached the contract” and that “[Plaintiff] is not willing to ignore [Defendant’s]

breach.”

Defendant argues that the date of the contract breach is not provided, and therefore the

answer is incomplete or evasive. However, given the supplemental response provided, with

reference to the answer to SI 36, the Court does not find this to be the case and Plaintiff has

provided a complete and straightforward answer.

Consequently, the motion to compel further response to SI Nos. 34 and 35 is denied.

III. Motion to Compel Further Responses to RPD

Defendant moves to compel further responses to RPD Nos. 7, 8, 9, 10, 11, 12, 13, and

14 pursuant to section 2031.310.

These RPD seek communications regarding the calculation of prices in the contract at

issue, documents relating to expenses Plaintiff incurred, and communications between Plaintiff

and its vendors and supplies regarding the equipment being built under the contract with

Defendant.

A. Good Cause

A motion to compel further responses to RPDs must “set forth specific facts showing

good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310,

subd.

(b)(1).) The moving party establishes good cause by showing: (1) relevance to the subject

matter of the case; and (2) specific facts justifying discovery. (Kirkland v. Super. Ct. (2002) 95

Cal.App.4th 92, 98.) 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. Super. Ct., supra, 33 Cal.App.4th 1539, 1546.) As previously

stated “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. Super. Ct., supra, 31 Cal.3d 785, 790.)

Defendant’s argument and separate statement provide sufficient legal argument for why

the internal pricing discussions and communications with vendors regarding Plaintiff’s pricing

and costs would be relevant to the subject matter. Specifically it argues that the information is

needed to calculate damages, based on its theory that Plaintiff is not entitled to recover the

entire amount of the contract price, but instead an amount calculated by some measure of its

anticipated expenses and profits. Therefore, the communications regarding pricing and

communications with vendors regarding production of the equipment appears reasonably

calculated to lead to discovery of admissible evidence, specifically Plaintiff’s costs and thus its

damages.

B. Objections

Once good cause is shown justifying further response, the burden shifts to the party to

whom the requests are directed to justify each objection. (Kirkland v. Superior Court, supra,

95 Cal.App.4th 92, 98.) The objection must identify with particularity the specific document

or evidence demanded as to which the objection is made and set forth the specific ground for

objection, including claims of privilege or work product protection. (Code Civ. Proc., §

2031.240, subd. (b) (1-2).) A party’s failure to defend its objections waives them.

(See Kirkland v. Superior Ct., supra, 95 Cal.App.4th 92, 98.)

1. Trade Secrets

As with the SI, Plaintiff objects to RPD Nos. 7, 8, 9, 10, 11, 12, 13, and 14 on the basis

that production would reveal trade secrets. This is not a code-complaint response. To the

extent Plaintiff is asserting an objection based on trade secrets, its factual and legal argument is

insufficiently developed. Furthermore, Code of Civil Procedure section 2031.060, subdivision

(b)(5) provides that a party objecting to production of documents based on claims that they

would necessary reveal trade secrets may seek a protective order that precludes disclosure or

orders disclosure only to specified persons or only in specified ways. As with the trade secret

objection relative to the SI, no such motion is before the Court.

Consequently the objection is overruled.

2. Relevance

Plaintiff also objects to further response to these RPD on the basis of relevance.

However, its separate statement merely cites relevance without further support based in facts or

law. As with the SI, the general argument in its memorandum of points and authorities largely

focuses on the parties’ dispute as to the calculation of damages based on application of the

Commercial Code. However, there is no corresponding argument regarding how the requested

documents or communications are not “relevant to the subject matter” or “reasonably

calculated to lead to the discovery of admissible evidence” pursuant to discovery statutes and

case law. Furthermore, as described above, Defendant has made a sufficient showing of why

the documents are relevant for its interpretation of contract law. Plaintiff has failed to rebut

this.

Consequently, the objection on the basis of relevance is overruled.

Therefore, the motion to compel further response to RPD Nos. 7, 8, 9, 10, 11, 12, 13,

and 14 is granted.

IV. Sanctions

A. Defendant’s Motion

Defendant moves for discovery sanctions against Plaintiff and its counsel in the amount

of $5715, which represents 10 hours preparing the motion and 5 hours anticipated to prepare a

reply and attend the hearing, at a rate of $375 per hour.

Its motion is made pursuant to section 2030.300, subdivision (d) or alternatively section

2031.310, subdivision (h) which each allow the court to award sanctions against one who

unsuccessfully opposes a motion to compel further responses to demands or further responses

to interrogatories, unless the party acted with substantial justification or other circumstances

would make the imposition of sanctions unjust.

Here, Defendant has substantially prevailed in making its motion to compel further

responses. Aside from citing issues with the sufficiency of the meet and confer efforts,

Plaintiff does not argue facts to support it acted with substantial justification in its objections.

Notably, Plaintiff seems to impose upon Defendant some duty to have proposed or agreed to a

protective order. However, Defendant proposed such an order in its April 25, 2019, letter, but

Plaintiff never followed-up or subsequently proposed an order on its own, despite numerous

correspondences back and forth between counsel.

Consequently, Plaintiff has not shown it a acted with substantial justification in

opposing the motion, nor are there other circumstances that would make the imposition of

sanctions unjust.

In awarding sanctions, the court is limited to ordering “reasonable expenses.” (See

Ghanooni v. Super Shuttle (1993) 20 Cal.App.4th 256, 262.) Plaintiff does not dispute the

reasonableness of Defendant’s request. However, the Court notes that it does not award

anticipatory costs. (See Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548,

1551.)

Therefore, the award of sanctions will be in the sum of $1875 which represents five

hours, an amount the court finds to be reasonable.

B. Plaintiff’s Request for Sanctions

Plaintiff seeks an award of monetary sanctions, but did not proceed by way of noticed

motion. A request for a sanctions must be made by noticed motion. (§ 2023.030.) In the

notice of motion, the request must identify every person, party and attorney against whom the

sanction is sought and specify the type of sanction sought. (§ 2023.040.) Plaintiff’s request is

made at the end of its arguments in its memorandum of points and authorities, and supported in

part in the declaration of counsel. (Dec. of S. Sherman, ¶ 7.) The failure to proceed by noticed

motion renders the request procedurally defective.

In any event, Plaintiff has not substantially prevailed in opposing the motion.

Therefore, its request for monetary sanctions is denied.

V. Conclusion

The motion to compel further response to SI Nos. 27, 28, 29, 30, 31, 32 and 33 is

GRANTED. Accordingly, within 20 calendar days of the date of the filing of the order,

Plaintiff shall serve verified code-compliant further responses to these SI without further

objection.

The motion to compel further response to SI Nos. 34 and 35 is DENIED.

The motion to compel further response to RPD Nos. 7, 8, 9, 10, 11, 12, 13, and 14 is

GRANTED. Accordingly, within 20 calendar days of the date of the filing of the order,

Plaintiff shall serve verified code-compliant further responses to these RPD without further

objection.

Defendant’s request for monetary sanctions in connection with the motion is

GRANTED IN PART. Plaintiff shall tender the amount of $1875, payable to Defendant’s

counsel within 20 calendar days of the filing of this order.

Plaintiff’s request for monetary sanctions is DENIED.

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Plaintiff Groupware Technology, Inc.’s Application for Writ of Attachment is

GRANTED. The Court finds that Plaintiff has satisfied the requirements of CCP Section

484.090 after a full review of the papers submitted in support and opposition to the instant

application. The Writ of Attachment shall issue in the sum of $490,774.11 which represents

the principal amount of $466,562.03 and interest (through Oct. 22, 2019) in the sum of

$24,212.08. The Court is not inclined to include an estimate for attorney’s fees and costs as

that amount is not readily ascertainable at this point. The amount of the undertaking shall be

$10,000 per CCP 489.220(a). Moving party is instructed to prepare the Order.

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please note: effective 7-24-17, the court will no … · government code section 835. since there...

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