Case Name: Gary Harmon, et al. v. Sobrato Arts Foundation for Education, et al.
Case No.: 2013-1-CV-249694 (consolidated with case no. 2015-1-CV-281059)

Factual and Procedural Background

This is an action for fraud and interference with contract. Plaintiff ISE Entertainment Corporation (“ISE”) is a television, film, and production company doing business in Santa Clara County and Los Angeles County, California. (See Second Amended Complaint [“SAC”] at ¶ 4.) Plaintiffs Gary Harmon (“Harmon”), Mark Masoni (“Masoni”), Matt Altamirano (“Altamirano”) and ISE (collectively, “Plaintiffs”) are all experienced professionals in the fields of media arts and film, music, theater, and live concert production. (Id. at ¶¶ 1-3, 16.) Defendant Sobrato Arts Foundation for Education (“SAFE”) is a non-profit public benefit corporation with its principal place of business in Milpitas, California. (Id. at ¶ 17.) SAFE was founded by Plaintiffs and others to provide media and live concert production experience to underprivileged and at-risk youth throughout California. (Ibid.) For nearly three years Plaintiffs worked for SAFE, serving as the most senior staff and the face of the foundation in the community. (Ibid.)

In July 2010, Plaintiffs entered into written employment contracts with SAFE to serve as high-level employees in the organization. (See SAC at ¶ 18.) The employment contracts were for a term continuing until December 31, 2015, and required SAFE to follow strict procedures if it intended to terminate Plaintiffs’ employment before that date. (Ibid.) Under the contracts, SAFE agreed to compensate Plaintiffs at a rate competitive with similar professionals in Santa Clara County. (Ibid.)

Throughout Plaintiffs’ employment with SAFE, SAFE suffered significant funding and cash-flow problems that threatened its viability and continued operation. (See SAC at ¶ 20.) As senior employees and co-founders of SAFE, Plaintiffs were repeatedly asked by defendants to defer payment of their wages and advance personal funds on SAFE’s behalf. (Ibid.) Plaintiffs were also required to use their own personal property, such as tools and production of lighting equipment, to help SAFE run educational programs. (Ibid.) Defendants repeatedly and continuously assured Plaintiffs that SAFE was applying for large philanthropic grants, that those grants would inevitably be approved, and that Plaintiffs would receive all their deferred compensation and have all loans and advanced funds reimbursed to them once SAFE resolved its cash-flow issues. (Ibid.)

SAFE’s board of directors ultimately terminated the employment of plaintiffs Harmon, Masoni, and Altamirano. (See SAC at ¶ 22.) At no time did the board of directors ever notify plaintiffs that they had violated any terms or conditions of the employment contracts or initiate procedures to terminate plaintiffs’ employment as required by their employment contracts. (Ibid.) To date, Plaintiffs have not received their unpaid wages and have not been repaid for money they advanced or loaned to SAFE. (Id. at ¶ 23.) Plaintiffs also allege that much, if not all, of their personal property has since been lost, destroyed, sold or redistributed by defendants. (Ibid.)

On December 10, 2015, Plaintiffs filed the operative SAC setting forth the following causes of action: (1) intentional interference with contract (by Harmon against defendants); (2) intentional interference with contract (by Masoni against defendants); (3) intentional interference with contract (by Altamirano against defendants); (4) intentional misrepresentation (by Plaintiffs against defendants); (5) negligent misrepresentation (by Plaintiffs against defendants); (6) conversion (by Plaintiffs against defendants); and (7) trade libel (by Plaintiffs against defendants).

On September 15, 2015, defendant Ken Hardesty (“Hardesty”) served plaintiffs Harmon, Masoni, and Altamirano with Form Interrogatories, Set One (“FI”) and Special Interrogatories, Set One (“SI”). (See Declaration of Bradley Bayan at ¶¶ 3-5, 24-26; Exhibits A-C, N-P.) The plaintiffs served timely objections to FI without any factual responses. (Id. at ¶¶ 7-9; Exhibits D-F.) With respect to SI, the plaintiffs served timely objections and factual responses. (Id. at ¶¶ 27-29; Exhibits Q-S.)

Also, on September 15, 2015, defendant Jeff Sobrato (“Sobrato”) served SI on plaintiffs Harmon, Masoni, and Altamirano. (See Declaration of Bradley Bayan at ¶¶ 13, 15, and 17; Exhibits H-J.) The plaintiffs served timely objections with factual responses to SI. (Id. at ¶¶ 19-22; Exhibits K-M.)

On January 7, 2016, defense counsel sent a meet and confer letter to Plaintiffs’ attorney with respect to the following discovery: (1) FI No. 2.7 and SI Nos. 6, 8, 10, 12, 14, 16, 18, 20, 22, and 24 propounded by defendant Hardesty; and (2) SI Nos. 4 and 18 propounded by defendant Sobrato. (See Declaration of Bradley Bayan at ¶¶ 33-35; Exhibits U-W.) Defendants argued that the discovery answers were evasive and the objections raised were without merit. (Ibid.) Thus, defendants requested that amended responses be served on or before February 4, 2016. (Ibid.)

In response, Plaintiffs’ attorney indicated that they would be substituting out of the case and thus unable to meet the February 4th deadline for amended discovery responses. (See Declaration of Bradley Bayan at ¶ 36; Exhibit X.) Thereafter, defense counsel communicated with Plaintiffs’ new attorney regarding the subject discovery but the parties were unable to resolve the dispute. (Id. at ¶¶ 38-43; Declaration of Breck Milde at ¶¶ 5-6.)

Currently before the Court are the motions to compel further responses to FI and SI by defendants Hardesty and Sobrato. Plaintiffs filed written opposition. Defendants filed reply papers. Both sides seek an award of monetary sanctions in conjunction with the motions.

Hardesty’s Motion to Compel Further Responses to FI

Defendant Hardesty moves to compel a further response to FI No. 2.7 because the objections raised are without merit.

Meet and Confer

As a preliminary matter, Plaintiffs claim that defendants failed to properly meet and confer before filing the motion.

A motion to compel further responses to interrogatories must be accompanied by a meet and confer declaration under Code of Civil Procedure section 2016.040. (Code Civ. Proc., 2030.300, subd. (b).) Section 2016.040 requires that a moving party make a “reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” A determination of whether an attempt at informal resolution was adequate depends upon the particular circumstances and involves the exercise of discretion. (Obregon v. Sup. Ct. (1998) 67 Cal.App.4th 424, 431; see Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1016 [meet and confer rule is designed to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order].)

Here, defense counsel corresponded with Plaintiffs’ new attorney about the status of the pending discovery responses and requested amended responses as early as March 24, 2016. (See Declaration of Bradley Bayan at Exhibit Z.) At the request of Plaintiffs’ attorney, defense counsel faxed over the meet and confer correspondence from January 7, 2016 with Plaintiffs’ prior counsel. (Id. at ¶ 40; Exhibit AB.) Plaintiffs do not dispute receipt of the meet and confer correspondence. Thereafter, Plaintiffs’ attorney confirmed an extension of time for defendants to file a motion to compel to June 30, 2016. (Id. at Exhibit AC.) When Plaintiffs failed to provide any amended responses, defendants filed the subject motion on June 22, 2016. Contrary to Plaintiffs’ argument in opposition, the statute does not require defendants to meet and confer in person or by telephone. Therefore, based on this record, the Court finds that defendants adequately met and conferred before the filing the motions.

Legal Standard

A responding party must provide non-evasive answers to interrogatories that are “as complete and straightforward…to the extent possible,” and, if after a reasonable and good faith effort to obtain the information they still cannot respond fully to an interrogatory, the responding party must so state in its response. (Code Civ. Proc., § 2030.220.) If the responding party provides incomplete or evasive answers, or objections without merit, the propounding party’s remedy is to seek a court order compelling a further response to the interrogatories. (Code Civ. Proc., § 2030.300.) If a timely motion to compel answers is filed, the burden is on the responding party to justify any objection or failure to fully answer the interrogatories. (See Coy v. Sup. Ct. (1962) 58 Cal.2d 210, 220-221.)
FI No. 2.7

FI No. 2.7 asks plaintiffs to provide information related to each academic institution they attended beginning with high school.

With respect to plaintiffs Masoni and Altamirano, defendants withdraw the motion to compel as these plaintiffs have already provided an acceptable substantive response to FI No. 2.7. (See Reply Brief at p. 1:6-14.)

Plaintiff Harmon objects to FI No. 2.7 with general objections based on the attorney-client privilege, attorney-work product doctrine, third party privacy rights, and trade secret objection. None of these objections are justified in opposition to the motion and thus they are overruled. (See Coy v. Sup. Ct., supra, 58 Cal.2d at pp. 220-221 [if a timely motion to compel has been filed, the burden is on responding party to justify any objection].)

Harmon also objects on the ground that the interrogatory is not relevant to issues and claims in this litigation. “For discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement.” (Gonzalez v. Sup. Ct. (1995) 33 Cal.App.4th 1539, 1546.) This rule is applied liberally in favor of discovery. (Ibid.) As defendants point out, paragraphs 16 and 18 of the SAC allege that Plaintiffs were experienced professionals in their fields and that, under the employment contracts, SAFE agreed to compensate Plaintiffs at a rate competitive with similar professionals in Santa Clara County. Thus, Plaintiffs’ educational history would appear to be relevant in determining whether Harmon’s salary was commensurate with other professionals in the county. Therefore, the objection based on relevance is overruled.

Accordingly, with respect to plaintiff Harmon, the motion to compel a further response to FI No. 2.7 is GRANTED.

Disposition

Hardesty’s motion to compel a further response to FI No. 2.7 as to plaintiffs Masoni and Altamirano is WITHDRAWN.

Hardesty’s motion to compel a further response to FI No. 2.7 as to plaintiff Harmon is GRANTED. Plaintiff shall serve Hardesty with a verified code compliant further response, without objections, within 20 calendar days of this Order.

Hardesty’s Motion to Compel Further Responses to SI

Defendant Hardesty moves to compel a further response to SI Nos. 6, 8, 10, 12, 14, 16, 18, 20, 22, and 24 because the answers are incomplete and the objections raised are without merit.

SI Nos. 6, 10, 14, 18, and 22

SI Nos. 6, 10, 14, 18, and 22 seek all facts in support of plaintiffs’ contention that they are highly trained professionals in the fields of media arts, film, music, theater and live concert production. Plaintiffs Harmon, Masoni and Altamirano each responded separately with objections on grounds that the term “highly trained” renders the interrogatories vague and ambiguous. There are also objections that the subject interrogatories are irrelevant, unduly burdensome and oppressive.

As an initial matter, courts rarely sustain vague and ambiguous objections unless the question is completely unintelligible. (See Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783 [“[W]here the question is somewhat ambiguous, but the nature of the information sought is apparent, the proper solution is to provide an appropriate response.”].) Furthermore, with respect to SI No. 5, plaintiffs already acknowledged that they are highly trained professionals in these respective fields. (See Declaration of Bradley Bayan at Exhibits Q-S.) Given this response to SI No. 5, plaintiffs cannot now claim that the term “highly trained” is vague and ambiguous. Thus, the vague and ambiguous objection is overruled. The remaining objections are overruled as plaintiffs fail to justify them in opposition to the motion. (See Coy v. Sup. Ct., supra, 58 Cal.2d at pp. 220-221 [if a timely motion to compel has been filed, the burden is on responding party to justify any objection].)

Without waiving objections, plaintiffs respond as follows: “Plaintiff has received education in the field, has obtained additional post-graduation training in the field, and has spent his entire professional career in the field.” Defendant Hardesty argues that the response is incomplete because plaintiffs do not provide the names of institutions, degrees earned, and other details of their post graduate training. Although Hardesty may not like the response, plaintiffs have answered the interrogatories by providing facts to support their contention. Thus no further response is required.

Accordingly, the motion to compel a further response to SI Nos. 6, 10, 14, 18, and 22 is DENIED.

SI Nos. 8, 12, 16, 20, and 24

SI Nos. 8, 12, 16, 20, and 24 ask plaintiffs to identify all documents which support their contention that they are highly trained professionals in the fields of media arts, film, music, theater and live concert production. Plaintiffs Harmon, Masoni and Altamirano each respond separately with objections on grounds that the term “highly trained” renders the interrogatories vague and ambiguous. There are also objections that the subject interrogatories are irrelevant, unduly burdensome and oppressive. The vague and ambiguous objection fails for the reasons stated above. The remaining objections are overruled as plaintiffs fail to justify them in opposition to the motion. (See Coy v. Sup. Ct., supra, 58 Cal.2d at pp. 220-221 [if a timely motion to compel has been filed, the burden is on responding party to justify any objection].) As plaintiffs failed to identify any documents in support of these interrogatories, a further response is required.
Accordingly, the motion to compel a further response to SI Nos. 8, 12, 16, 20, and 24 is GRANTED.

Disposition

Hardesty’s motion to compel a further response to SI Nos. 6, 10, 14, 18, and 22 is DENIED.

Hardesty’s motion to compel a further response to SI Nos. 8, 12, 16, 20, and 24 is GRANTED. Plaintiffs Harmon, Masoni, and Altamirano shall serve verified code compliant further responses, without objections, within 20 calendar days of this Order.

Sobrato’s Motion to Compel Further Responses to SI

Defendant Sobrato moves to compel a further response to SI Nos. 3, 4, and 7 because the answers are incomplete and the objections raised are without merit.

SI Nos. 3, 4, and 7

SI Nos. 3, 4, and 7 seek all facts in support of plaintiffs’ contention that they entered into employment contracts with SAFE in July 2010. Plaintiffs served general objections based on the attorney-client privilege, attorney-work product doctrine, third party privacy rights, and trade secret objection. Plaintiffs also objected on the ground that the subject interrogatories are not relevant to this litigation. None of these objections are justified in opposition to the motion and thus they are overruled. (See Coy v. Sup. Ct., supra, 58 Cal.2d at pp. 220-221 [if a timely motion to compel has been filed, the burden is on responding party to justify any objection].)

Without waiving objections, plaintiffs respond as follows: “Plaintiff signed an employment agreement with the understanding and with the ratification of SAFE’s board of directors, including board chairman John Liegl.” Defendant Sobrato argues that the response is incomplete because plaintiffs do not provide factual details about who was present, what transpired immediately before ratification, how long the ratification process took, the location of the events which took place, dates and all other significant details. Although Sobrato may not like the response, plaintiffs have answered the interrogatories by providing facts to support their contention. Thus no further response is required.

Accordingly, the motion to compel a further response to SI Nos. 3, 4, and 7 is DENIED.

Disposition

Sobrato’s motion to compel a further response to SI Nos. 3, 4, and 7 is DENIED.

Requests for Monetary Sanctions

Both parties request an award of monetary sanctions. Based on the outcome of the motions, the Court finds that sanctions are not warranted. Thus, the requests for monetary sanctions are DENIED.