Case Name: Pesic v. Zouves Fertility Center, et al.
Case No.: 2014-1-CV-271935 (and related actions)

This action arises out of the use of genetic material obtained from decedent Ivan Pesic (“Mr. Pesic”) by defendant Joyce Chin (“Chin”) to conceive two children through in vitro fertilization (“IVF”) performed by defendant Zouves Fertility Clinic (“ZFC”). Mr. Pesic’s surviving spouse, plaintiff Katherine Pesic (“Plaintiff”), as an individual and Administrator of the Estate of Ivan Pesic, alleges the following: Chin received fertility treatments from ZFC, ZFC collected and preserved Mr. Pesic’s sperm, and the purported father of any child was to be Mr. Pesic, although he was married to someone else. (Compl., ¶ 8.) Defendant Shelley Tarnoff (“Tarnoff”) conducted counseling with Mr. Pesic and Chin to determine their fitness to be parents, but failed to ascertain that they were not married, that Mr. Pesic was married to someone else, and that Mr. Pesic was terminally ill. (Id., ¶ 9.) Chin underwent six unsuccessful IVF cycles using Mr. Pesic’s sperm and her eggs before Mr. Pesic passed away. (Id., ¶ 8.) After his death, Chin forged Mr. Pesic’s name on a consent form for a different IVF procedure using donated eggs. (Id., ¶ 10.) On November 8, 2012, a donated egg was fertilized with Mr. Pesic’s sperm and transferred to Chin’s body. (Id., ¶ 11.) In July 2013, Chin gave birth to twins and filed claims for child support against Mr. Pesic’s estate on behalf of the twins and her older son. (Id., ¶ 12.)

Plaintiff asserts claims against Chin, ZFC, Tarnoff, and defendant Christo Zouves, M.D. for: (1) conversion; (2) fraud and deceit of fiduciary; (3) negligence, negligent supervision, lack of informed consent; (4) unjust enrichment; (5) intentional interference with expected inheritance (against only Chin); (6) equitable indemnity; and (7) violation of Probate Code section 249.5.

A discovery dispute has arisen with respect to Tarnoff’s responses to Plaintiff’s form interrogatories (“FI”), special interrogatories (“SI”), and requests for production of documents (“RPD”). On June 12, 2015, Plaintiff propounded the FI, the first set of SI containing SI Nos. 1-21 (“Set One”), and the first set of RPD containing RPD Nos. 1-21 (“RPD Set One”). On July 30, 2015, Plaintiff propounded the second set of SI beginning with SI No. 22 (“SI Set Two”) and RPD beginning with RPD No. 22 (“RPD Set Two”). Tarnoff provided timely initial responses, although she waited several months before providing verifications for the responses to SI Set Two and RPD Set Two. On November 10, 2015, Tarnoff provided supplemental responses to the FI, SI Set One, and RPD Set Two. Plaintiff believes that certain responses are deficient. Her counsel sent meet and confer letters to Tarnoff’s counsel, outlining the purported deficiencies in the responses. The parties’ counsel extended the time to file a motion to compel, but ultimately were unable to resolve the dispute as to whether further responses were warranted.

On December 14, 2015, Plaintiff filed this motion to compel Tarnoff to provide further responses to FI Nos. 4.1, 16.2, 16.7, 16.9, and 16.10, SI Nos. 1-2, 21, and 23, and RPD Nos. 3, 10-11, 24-27, and 29-31, and for monetary sanctions against Tarnoff and her counsel. Plaintiff makes a request for judicial notice in support thereof.
On December 30, 2015, Tarnoff served verified supplemental responses to FI Nos. 4.1 and 16.2 and verified further supplemental responses to RPD Nos. 24 and 29-31.

On January 12, 2016, Tarnoff served unverified supplemental responses to RPD Nos. 3, 10-11, and 25-27 and an unverified amended supplemental response to RPD No. 24, and filed the opposition to the motion.

On January 19, 2016, Plaintiff filed her reply.

I. Plaintiff’s Request for Judicial Notice in Support of the motion

Plaintiff’s request for judicial notice of the complaint is GRANTED. (See Evid. Code, § 452, subd. (d); see also People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2.)

II. Plaintiff’s Motion to Compel Further Responses

To begin, the Court will address the supplemental, further, and/or amended responses that were served after Plaintiff filed this motion. On the one hand, Tarnoff contends that the motion as to FI Nos. 4.1 and 16.2 and RPD Nos. 3, 10-11, 24-29, and 29-31 should be denied based on those untimely responses. On the other hand, Plaintiff argues that the untimely responses are deficient and the Court should grant her motion to compel.

When a responding party serves supplemental responses after the filing of a motion to compel and the party seeking discovery proceeds with the motion, “the trial court has the discretion to rule on the motion.” (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 409.) In this instance, the Court exercises its discretion to consider the verified supplemental responses to FI Nos. 4.1 and 16.2 and RPD Nos. 29-31 served on December 30, 2015, in ruling on the motion.
As for the unverified supplemental responses to RPD Nos. 3 and 10-11, those responses contain only substantive answers. An unverified substantive response is akin to no response at all. (Appleton v. Super. Ct. (1988) 206 Cal.App.3d 632, 636.) Thus, the Court will consider the merits of the motion as to those requests, and the untimely unverified supplemental responses to RPD Nos. 3 and 10-11 do not affect the motion.
Turning to the unverified supplemental and amended supplemental responses to RPD Nos. 24-27 served on January 12, 2016, those responses contain objections and substantive answers. Although an unverified substantive response is akin to no response at all, objections do not require a verification. (Appleton v. Super. Ct., supra, 206 Cal.App.3d, at p. 636; Food 4 Less Supermarkets, Inc. v. Super. Ct. (1995) 40 Cal.App.4th 651, 657.) Tarnoff initially objected to these requests on the ground of third party privacy. The untimely unverified supplemental/further responses elaborate on that objection by identifying responsive documents that are supposedly protected from disclosure by third parties’ right to privacy in medical information and the psychotherapist-patient privilege. The parties have not met and conferred as to these objections based on the rights of third parties with respect to the documents identified in the untimely supplemental/further responses. The Court notes that a responding party’s failure to timely assert the privacy rights of third parties does not constitute a waiver of the third parties’ rights. (See, e.g., Boler v. Superior Court (1987) 201 Cal.App.3d 467, 473.) The Court therefore exercises its discretion to take the motion to compel further responses to RPD Nos. 24-27 off-calendar without prejudice. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants, supra, 148 Cal.App.4th, at p. 409.) If Plaintiff believes the supplemental/further responses to RPD Nos. 24-27 are deficient, then her counsel shall meet and confer with Tarnoff’s counsel and, if necessary, file a code-compliant motion to compel further responses in light of the untimely supplemental responses. (See ibid.; see also CCP, § 2031.310, subd. (c).)

With that in mind, the Court will consider the merits of Plaintiff’s motion to compel further responses to RPD Nos. 3, 10-11, and 29-31, FI Nos. 4.1, 16.2, 16.7, 16.9, and 16.10, and SI Nos. 1-4, 21, and 23.

A. The RPD

RPD No. 3 asks for documents related to complaints lodged against Tarnoff for failing to proper conduct interviews with intended egg donor IVF patients. RPD Nos. 10-11 seek documents relating to payments received by Tarnoff from Chin and Mr. Pesic from January 1, 2012 to the present. RPD Nos. 29-31 ask for communications between Tarnoff and ZFT, Ogle Productions, Inc., and Shelley Smith relating to Tarnoff’s capacity to perform psychological evaluations for egg donor IVF from January 1, 1998 to the present. In her initial and supplemental responses, Tarnoff asserted only objections in response to RPD No. 3, objections and substantive answers in response to RPD Nos. 10-11, and only substantive answers in the supplemental verified responses to RPD Nos. 29-31.

Plaintiff moves to compel further responses to RPD Nos. 3, 10-11, and 29-31 on the grounds that Tarnoff’s objections lack merit and substantive answers are incomplete and not code-compliant. (See Code Civ. Proc. [“CCP”], § 2031.310, subd. (a).) The motion must set forth specific facts showing good cause justifying the discovery sought. (Id., subd. (b)(1).) Once good cause has been shown, the burden shifts to the responding party to justify any objections or failure to provide a code-compliant response. (Kirkland v. Super. Ct. (2002) 95 Cal.App.4th 92, 98.)

1. Good Cause

To establish good cause, the moving party must make a fact-specific showing of relevance. (Kirkland v. Super. Ct., supra, 95 Cal.App.4th, at p. 98.) Discovery is allowed for “any matter, not privileged, that is relevant to the subject matter” and “admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (CCP, § 2017.010.) 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.) 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 & Accident Ins. Co. v. Super. Ct. (1982) 31 Cal.3d 785, 790.)
The discovery sought includes documents pertaining to complaints against Tarnoff for failing to properly conduct IVF interviews, payments she received from Chin and Mr. Pesic, and Tarnoff’s communications regarding her qualifications to perform IVF psychological evaluations. Given that Plaintiff claims that Tarnoff’s failed to properly conduct a psychological evaluation of Chin and Mr. Pesic related to egg donor IVF, the relevance of the discovery sought is self-evident. Therefore, Plaintiff has met her burden to show good cause, and the burden therefore shifts to Tarnoff to justify her objections and substantive answers. (See Kirkland v. Super. Ct., supra, 95 Cal.App.4th, at p. 98.)
2. Objections & Substantive Answers
Tarnoff asserted various objections in response to the RPD at issue. In opposition, Tarnoff only attempts to justify her objections on the grounds of relevance and privacy to RPD Nos. 3, 10, and 11. All of Tarnoff’s undefended objections are overruled, with the exception of the attorney-client privilege and/or attorney work product doctrine objection to RPD Nos. 10-11, which is preserved, although it does not justify the denial of the motion. (See Kirkland v. Super. Ct., supra, 95 Cal.App.4th, at p. 98; see also Best Products, Inc. v. Super. Ct. (2004) 119 Cal.App.4th 1181, 1188-1189.)

Tarnoff’s relevance objection lacks merit because, as discussed above, the discovery sought is relevant to the litigation. (See CCP, § 2017.010.) The relevance objection is therefore overruled.

As for the privacy objection, Tarnoff argues that Plaintiff must show a compelling need for the discovery sought. Plaintiff is only required to show that the information is directly relevant and essential to the litigation if Tarnoff demonstrates that the discovery sought implicates the right to privacy. (See Vinson v. Super. Ct. (1987) 43 Cal.3d 833, 842; see also Britt v. Super. Ct. (1978) 20 Cal.3d 844, 859-862, 859.) Otherwise, discovery will be allowed unless it is shown that the privacy interest outweighs the need for the discovery sought. (See, e.g., Pioneer Electronics, Inc. v. Super. Ct. (2007) 40 Cal.4th 360, 370.) The discovery sought encompasses complaints lodged against Tarnoff for failing to conduct proper interviews with IVF patients (RPD No. 3) and documents related to payments made to Tarnoff by Chin or Mr. Pesic from January 1, 2012 to the present (RPD Nos. 10-11). Tarnoff does not indicate how the discovery sought implicates her protected privacy interest. Although RPD Nos. 10-11 seek private financial information about Chin and Mr. Pesic, the discovery of such information is directly relevant and essential to the litigation. (See Britt v. Super. Ct., supra, 20 Cal.3d, at p. 859.) Furthermore, Tarnoff’s assertion that the discovery sought encompasses identifying information about her patients does not suggest that it warrants protection from discovery, since Plaintiff is entitled to discover witnesses’ identifying information. (See Pioneer Electronics, Inc. v. Super. Ct., supra, 40 Cal.4th, at pp. 373-374; see also Puerto v. Super. Ct. (2008) 158 Cal.App.4th 1242, 1253-1254; see also CCP, § 2017.010.) Thus, the need for the discovery sought outweighs the asserted privacy interests. Therefore, the privacy objection is overruled.
In sum, Tarnoff’s objections are not justified and do not warrant the denial of discovery. The remaining issue is whether the substantive answers are complete and code-compliant.
A party must substantively answer a request for production of documents by making either a statement of compliance and/or a representation of inability to comply with each item or category of items sought by the request. (CCP, § 2031.210, subd. (a)(1)-(2).) Since Tarnoff did not substantively answer RPD No. 3 and the unverified supplemental response is akin to no response at all (see Appleton v. Super. Ct., supra, 206 Cal.App.3d, at p. 636), a further response to RPD No. 3 is warranted.
Tarnoff initially responded to RPD Nos. 10-11 by stating that she was producing a non-privileged document. These responses are incomplete and not code-compliant because she did not identify documents withheld and the factual basis for asserting the privilege. (See CCP, § 2031.240, subd. (c).) Tarnoff argues that no further response is necessary based on the untimely unverified supplemental responses to RPD Nos. 10-11. The unverified responses are akin to no response at all. (See Appleton v. Super. Ct., supra, 206 Cal.App.3d, at p. 636.) Accordingly, further responses to RPD Nos. 10-11 are warranted.

Tarnoff initially responded to RPD Nos. 29-31 with objections only. In the untimely verified supplemental responses, Tarnoff answered each request by stating that “she has undertaken a diligent search and a reasonable inquiry in an attempt to comply with this Request, and is not able to comply with any response in that any documents responsive to this request have either never been or are no longer in the possession, custody or control of the Responding Party.” This is an incomplete representation of inability to comply because it does not set forth the name and address of any person or organization known or believed to have possession, custody, or control of responsive documents. (See CCP, § 2031.230.) Therefore, the verified further supplemental responses are not code-compliant. Thus, further responses to RPD Nos. 29-31 are warranted.

Accordingly, further responses to RPD Nos. 3, 10-11, and 29-31 are warranted.

B. The FI & SI

FI Nos. 4.1, 16.2, 16.7, 16.9, and 16.10 ask for information about Tarnoff’s contentions and Plaintiff’s alleged injuries in this action. SI Nos. 1-4 ask about other complaints asserted against Tarnoff and professional discipline taken against her. SI No. 21 asks for the facts that Tarnoff considers in determining whether, in her opinion, intended parents should proceed with egg donor IVF. SI No. 23 seeks a description of Tarnoff’s professional training on psychological evaluations. In the initial and supplemental responses, Tarnoff responded to FI No. 4.1 and FI No. 16.2 without objection, to FI Nos. 16.7, 16.9, and 16.10 and SI Nos. 1-4 and 21 with objections only, and to SI No. 23 with objections and a substantive answer.

Plaintiff moves to compel further responses to FI Nos. 4.1, 16.2, 16.7, 16.9, and 16.10 and SI Nos. 1-2, 21, and 23 on the grounds that Tarnoff’s objections lack merit and substantive answers are incomplete and not code-compliant. (See CCP, § 2030.300, subd. (a).) A motion to compel further responses to interrogatories does not require a showing of a good cause; upon the filing of the motion, the responding party bears the burden to justify any objections or failure to provide a code-compliant response. (Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221.)

1. Objections

In opposition, Tarnoff argues that SI No. 21 is overbroad and SI No. 23 is unduly burdensome and harassing, but she did not assert such objections in her initial responses. Any objections not asserted in the initial responses have been waived. (See Scottsdale Ins. Co. v. Super. Ct. (1997) 59 Cal.App.4th 263, 273; see also CCP, § 2030.290, subd. (a).) Therefore, Tarnoff has waived the overbroad objection to SI No. 21 and undue burden and harassment objection to SI No. 23.

Tarnoff attempts to justify her objections on the grounds that FI Nos. 16.2, 16.7, 16.9, and 16.10 and SI No. 21 are vague and unintelligible, SI Nos. 1-4 and 23 are overbroad and seek information that is not relevant, and SI Nos. 1-4 seek information that is private. All of Tarnoff’s undefended objections are overruled. (See Coy v. Super. Ct., supra, 58 Cal.2d, at pp. 220-221.)
To justify an objection on the grounds of vagueness, the responding party must demonstrate that the request at issue is totally unintelligible meaning that the nature of the information sought is not apparent. (See Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783; see also Standon v. Super. Ct. (1990) 225 Cal.App.3d 898. 903.) Tarnoff asserts the term “incident” as used in FI Nos. 16.2, 16.7, 16.9, and 16.10 makes those interrogatories unintelligible. She further argues that the term “material factors” used in SI No. 21 makes that interrogatory unintelligible. The nature of the information sought by these interrogatories is apparent. Thus, the vagueness and unintelligible objection to FI Nos. 16.2, 16.7, 16.9, and 16.10 and SI No. 21 lacks merit and is overruled.

Tarnoff argues that SI Nos. 1-4 and 23 seek information that is not relevant, and therefore, the requests are overbroad. Discovery is allowed for “any matter, not privileged, that is relevant to the subject matter” and “admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (CCP, § 2017.010.) 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., supra, 33 Cal.App.4th, at p. 1546.) Admissibility is not the test, and fishing expeditions are permissible in some cases. (Ibid.) SI No. 1 asks whether Tarnoff has been a party to any lawsuit relating to her therapy services in the ten years before the filing of the complaint in this action, and if so, it seeks the identification of any such lawsuit. SI No. 2 seeks the same information relating to any lawsuit concerning Tarnoff’s practice of law. SI Nos. 3-4 ask whether Tarnoff has been subject to any professional complaint or discipline in the ten-year period before the filing of this action, and if so, they also seek the identification of any such complaint or discipline. SI No. 23 seeks a description of Tarnoff’s professional training on psychological evaluations. Plaintiff’s claims against Tarnoff are based on Tarnoff’s allegedly improper performance of counseling with Chin and Mr. Pesic. (Compl., ¶ 9.) Plaintiff seeks to show that Tarnoff has a pattern or practice of failing to follow proper professional standards in conducting psychological evaluations and in the practice of law. The discovery sought will likely show whether and to what extent Tarnoff has had complaints and disciplinary actions lodged against her in connection with her professional services, and whether she has received adequate professional training. Such information is relevant because it might reasonably assist Plaintiff in evaluating her claims, preparing for trial, and facilitating settlement, and it is reasonably calculated to lead to the discovery of admissible evidence. Thus, the discovery sought by SI Nos. 1-4 and 23 is relevant and the requests are not overbroad. The relevance and overbroad objections therefore lack merit and are overruled.

Tarnoff objects to SI Nos. 1-4 on the ground that the discovery sought is protected from disclosure by her right to privacy. If Tarnoff meets her initial burden to show that the disclosure of the information sought would constitute a serious invasion of a protectable privacy interest, then discovery will only be allowed if the information is directly relevant. (See, e.g., Pioneer Electronics, Inc. v. Super. Ct., supra, 40 Cal.4th, at pp. 370-371.) Otherwise, the court must balance the need for discovery against the asserted privacy interest to determine whether to limit or deny discovery. (Ibid.) SI Nos. 1-4 seek information about complaints and disciplinary actions against Tarnoff relating to her professional services. Tarnoff does not explain how the disclosure of such information would constitute a serious invasion of her protected privacy interest, and it does not appear that the discovery of such information would constitute a serious invasion of her right to privacy. Tarnoff also asserts that the information sought includes identifying information about her clients. Even so, such basic information, while personal, is not particularly sensitive and does not warrant an order limiting discovery. (See id., at pp. 373-374; see also Puerto v. Super. Ct., supra, 158 Cal.App.4th, at pp. 1253-1254.) Since Tarnoff has not shown that the asserted privacy interests outweigh the need for discovery, the privacy objection to SI Nos. 1-4 lacks merit and is overruled.

In sum, all of the objections to the FI and SI at issue have been overruled. The remaining issue is whether the responses are complete and code-compliant.

2. Substantive Answers

A party responding to an interrogatory must provide a code-compliant substantive answer. (See CCP, §§ 2030.210 & 2030.220.) Tarnoff did not provide substantive answers to the initial questions or subparts in FI Nos. 16.7, 16.9, and 16.10, or substantively respond to SI Nos. 1-4 and 21. Therefore, further responses to FI Nos. 16.7, 16.9, and 16.10 and SI Nos. 1-4 and 21 are warranted.

Tarnoff initially responded to FI No. 4.1 by stating that she would later provide a response. This answer is not a complete and code-compliant response because it does not provide the information sought. (See CCP, §§ 2030.210, subd. (a)(1) & 2031.220, subd. (a).) In the untimely verified supplemental response to FI No. 4.1, Tarnoff did not answer the initial question, that is, whether, at the time of the incident, there was any insurance policy in effect through which she might have been insured. Therefore, her answer to the initial question is incomplete and not code-complaint. (See ibid.) As for FI No. 4.1(g), which asks for the name, address, and telephone number of the custodian of the policy, Tarnoff responded by stating “Unknown. Plaintiff has been provided a copy of the relevant insurance policy.” This is not a code-compliant statement of an inability to comply because it does not indicate that Tarnoff lacks sufficient information to fully respond after making a reasonable and good faith effort to obtain necessary information by inquiry. (See CCP, § 2030.220, subd. (c).) A further response to FI No. 4.1 is therefore warranted.

Tarnoff did not initially provide a substantive answer to FI No. 16.2. In the untimely verified supplemental response, Tarnoff stated that she “does not have any information with which to respond to this interrogatory.” This is not a complete and code-compliant statement of an inability to respond because it does not indicate that Tarnoff made a reasonable and good faith effort to obtain necessary information by inquiry to other persons or organizations. (See CCP, § 2030.220, subd. (c).) Accordingly, a further response to FI No. 16.2 is warranted.

SI No. 23 asks for a description of any training received by Tarnoff on psychological evaluations, including the name of the instructor, entity offering the training, the course/class; a summary of the training; the date(s) of the training; and any credit hours and grade received for the training. Tarnoff substantively answered, subject to her objections, by stating that she participated in two programs through the American Society of Reproductive Medicine concerning issues including psychological evaluations. She also responded that she “has read publications from this same society” and has “attended seminars sponsored by ACAL/ACFFL that have included issues related to psychological evaluations.” This response does not provide requested information concerning the name of the instructor and course, dates, and credit hours or grades earned regarding the two programs. It also does not provide any of the requested information concerning the seminars and reading materials. Since the response does not provide all of the information sought, it is incomplete and not code-compliant. (See CCP, §§ 2030.210, subd. (a)(1) & 2030.220, subd. (a).) Thus, a further response to SI No. 23 is warranted.
In sum, further responses to FI Nos 4.1, 16.2, 16.7, 16.9, and 16.10 and SI Nos. 1-4, 21, and 23 are warranted.
C. Conclusion
In light of the foregoing, Plaintiff’s motion to compel further responses to the FI, SI, and RPD is GRANTED. Accordingly, within 20 calendar days of the date of the filing of the order, Tarnoff shall serve verified code-compliant further responses to FI Nos. 4.1, 16.2, 16.7, 16.9, and 16.10, SI Nos. 1-4, 21, and 23, and RPD Nos. 3, 10-11, and 29-31, without objection, except for an attorney-client privilege and/or attorney work product doctrine objection to RPD Nos. 10-11, which is preserved. If any document responsive to RPD Nos. 10-11 is withheld on the basis of privilege, then Tarnoff shall provide a privilege log that identifies each document withheld and the factual basis for asserting the privilege. (See Best Products, Inc. v. Super. Ct., supra, 119 Cal.App.4th, at pp. 1188-1189; see also CCP, § 2031.240, subd. (c).) Plaintiff and her counsel shall only use and disseminate sensitive personal information about nonparties disclosed in response to SI Nos. 1-4 and RPD Nos. 3 and 10-11 as necessary in furtherance of this litigation. (See Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th , at pp. 37-38; see also Pioneer Electronics, Inc. v. Super. Ct., supra, 40 Cal.4th, at p. 371; see also Alch v. Super. Ct., supra, 165 Cal.App.4th, at p. 1424.)

III. Plaintiff’s Request for Monetary Sanctions

Plaintiff requests an award of monetary sanctions in the amount of $10,187 against Tarnoff and her counsel for two reasons. First, Plaintiff argues that sanctions are warranted because Tarnoff and her counsel failed to meet and confer in good faith. Next, Plaintiff argues that monetary sanctions against Tarnoff and her counsel are warranted for her unsuccessful opposition to this motion. Either finding authorizes the imposition of monetary sanctions, the latter unless the court finds the unsuccessful party has acted with substantial justification or the circumstances would otherwise make the sanction unjust.

The meet and confer efforts ultimately were fairly extensive, although plaintiff’s counsel apparently needed to take the initiative to finally obtain a detailed response from defendant’s counsel. As the record demonstrates and as discussed above, defendant did provide supplemental responses, some verified and some not, although not all were provided before the motion to compel was filed. This back and forth, and the supplemental responses, lead the Court to somewhat reluctantly conclude a sufficient showing of substantial justification has been made. Overruling defendant’s objections and ordering further responses does not, in and of itself, require a finding that defendant and her counsel acted wholly without substantial justification.

However, the Court is troubled by the tone and tenor of many aspects of the communications between counsel, as evidenced by the correspondence attached as exhibits to the motion to compel. Both law firms involved are signatories to the Santa Clara County Bar Association Code of Professionalism, and both counsel are experienced and well aware of these standards. The Court expects at all times full compliance with both the letter and the spirit of the Code. Portions of counsel’s communication – more so from defense counsel than from plaintiff’s counsel, but still from both – fall short of the Court’s expectations. It appears that defendant Tarnoff may be frustrated by her involvement in this case, but that should not color the behavior of her counsel. All counsel are admonished to refresh their recollection of the Code of Professionalism, the current edition of which was revised in October, 2015. Particularly pertinent to this motion are Sections 8, 9 and 10.

With this admonition, and the court’s findings above, monetary sanctions are DENIED at this time. The Court expects further discovery in this case and in the related cases shall proceed in a cooperative, civil and professional manner between and among all counsel and parties, at all times.