Case Name: Nationwide Mutual Insurance Company v. Gullicksen, et al.

Case No.: 16CV297475

I. Background and Discovery Dispute

This is an insurance coverage dispute brought by plaintiff Nationwide Mutual Insurance Company (“Plaintiff”), an insurance provider, against defendants George and Carmen Gullicksen (the “Gullicksens”) – the owners of land in an unincorporated area of Saratoga; Glen Gilbert (“Gilbert”), Able Septic, SBV Concrete, Inc. dba Valley Concrete (“SBV Concrete”) and various other contractors; and the County of Santa Clara (the “County”).

According to the allegations of the First Amended Complaint (“FAC”), Plaintiff issued SBV Concrete a business auto insurance policy providing coverage for property damage caused by any accident occurring during the policy period. (FAC, ¶¶ 13, 23.) The policy also stated Plaintiff had no duty to defend SBV Concrete in a lawsuit where the property damage alleged was not covered by the terms of the policy. (Id. at ¶ 24.)

Several years ago, the County filed a complaint for nuisance abatement and injunctive relief against most of the defendants here. (“Underlying Action”). (Id. at ¶ 31.) The Underlying Action alleged that Gilbert, doing business as SBV Concrete and Able Septic, had been using the Gullicksens’ property as a dumping ground for various materials over the course of several years. (Id. at ¶¶ 33-34.) It further averred that an oral agreement existed between Gilbert and George Gullicksen, whereby, Gilbert paid $45,100 in exchange for the exclusive right to dump materials on the Gullicksens’ property. (Id. at ¶ 34.) Gilbert also allowed many of the contractors to use the property as a dumping site. (Id. at ¶ 35.) The materials dumped consisted of soil, asphalt, concrete and miscellaneous materials. (Id. at ¶ 36.) Plaintiff defended SBV Concrete and Gilbert (collectively “Defendants”) in the Underlying Action.

After several years of litigation, the defendants were found liable in the Underlying Action for violations of the County’s grading ordinance code and ordered to abate the public nuisance they created on the Gullicksens’ property. (Id. at ¶ 38.)

In this action, Plaintiff seeks declaratory relief regarding whether it had a duty to defend Defendants against the claims alleged in the Underlying Action and indemnify them for the remedies or judgment sought by the County.

The instant matter involves a discovery dispute. Plaintiff propounded Form Interrogatories, Set One (“FI”), Requests for Admission, Set One (“RFA”), and Special Interrogatories, Set One (“SI”) on SBV Concrete and Gilbert dba Able Septic. (Waters Decl., ¶ 4.) Defendants initially served unverified responses. (Waters Decl., ¶ 5.) Plaintiff’s counsel subsequently initiated meet and confer discussions regarding the sufficiency of these responses and lack of verifications, which resulted in SBV Concrete serving Plaintiff with verifications to its discovery responses and Gilbert serving verified amended responses. (Id. at ¶ 6, 8.) Plaintiff considered the objections meritless and the substantive responses deficient. (Id. at ¶ 9.) It attempted further meet and confer efforts with Defendants and also obtained an extension of time to file a motion to compel to November 8, 2017. (Vu Decl., ¶ 8.) The parties were unable to resolve their dispute.

Plaintiff then timely filed separate motions to compel SBV Concrete and Gilbert to provide further responses to the RFA, FI and SI. In support, Plaintiff filed two identical requests for judicial notice. Plaintiff also requests an award of monetary sanctions against Gilbert in connection with both motions.

II. Requests for Judicial Notice

Plaintiff seeks judicial notice of the complaint, judgment, order on summary judgment, and final abatement order in the Underlying Action; an appellate opinion affirming the judgment in the Underlying Action; and the FAC, Plaintiff’s opposition to Defendants’ motion to stay, and this Court’s order denying the motion to stay in the present action. While court records generally are proper subjects of judicial notice (Evid. Code. § 452, subd. (e)), judicial notice of these documents is unnecessary because they are not helpful or necessary to the determination of any of the issues on demurrer. (See Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6 [a court need not take judicial notice of a matter unless it “is necessary, helpful, or relevant”].) Here, none of these documents are helpful or necessary to the issues currently before the Court.

Accordingly, Plaintiff’s requests for judicial notice are DENIED.

III. Motion to Compel as to SBV Concrete

A. Requests for Admission

On receipt of a response to requests for admission, the propounding party may move for an order compelling a further response if that party deems an answer to a particular request is evasive or incomplete or an objection to a particular request is without merit or too general. (Code Civ. Proc., § 2033.290, subd. (a).) Plaintiff moves to compel further responses to RFA Nos. 1-4 and 6-21 on the ground SBV Concrete’s objections are meritless and/or their substantive responses are incomplete and evasive.

1. Objections

RFA Nos. 1-4 and 6-21 asked SBV Concrete to admit it disposed of and had permission to dispose of fill materials on the Gullicksens’ property in 2006; its disposal of such materials was not accidental; it had arranged to make payments to George Gullicksen in connection with its disposal of fill materials on his property; and certain checks represented payments Defendants made to dispose of fill material on the Gullicksens’ property. RFA Nos. 9-21 asked SBV Concrete to admit it issued various specified checks as payments for disposing of fill material on the Gullicksens’ property.

SBV Concrete objected to each of these requests on the grounds of attorney-client privilege, attorney work product doctrine, vagueness and ambiguity, seeking a legal conclusion, argumentativeness, assumption of facts, incomplete hypothetical and prematurely seeking expert witness opinion. It is SBV Concrete’s burden to justify these objections. (See Kirkland v. Sup. Ct. (2002) 95 Cal.App.4th 92, 98 [responding party must justify its objections].)

SBV Concrete only attempts to justify its objections on the ground of vagueness and ambiguity. As to the undefended objections, they are overruled. (See Kirkland, supra, 95 Cal.App.4th at 98.)

Turning to the vague and ambiguous objection, SBV Concrete broadly argues that though terms used by Plaintiff throughout the RFA, such as “fill material,” “payment for disposing of fill material,” “made payment,” “disposal,” “payment by VALLEY,” “dispose,” “accident,” “deliberate,” “intentional,” and “deliberate act,” seem plain and straightforward, they have hidden meaning in the insurance coverage context. This argument is not well-taken.

A vagueness and ambiguity objection should only be sustained when the nature of the information sought is not apparent. (See Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783; see also Standon v. Sup. Ct. (1990) 225 Cal.App.3d 898, 903 [stating that an objection on this ground is frequently considered a nuisance objection].) Here, the plain meaning of terms such as “payment,” “disposal,” “accident,” “deliberate,” and “intentional” is straightforward. Moreover, given the coverage dispute relates directly to the Underlying Action where SBV Concrete was held liable for dumping specific materials on the Gullicksens’ property, the meaning of the term “fill materials” should also be apparent. It is unclear to the Court how any of these terms have somehow been transformed into insurance terms of art simply because Plaintiff is now attempting to disclaim coverage. Moreover, Plaintiff fails to explain what alternative meanings could exist for these terms. Accordingly, the objection on the ground these requests are vague and ambiguous is without merit.

In its opposition, SBV raises for the first time an objection to these requests on the ground they are not full and complete in themselves because the meaning of the terms require resort to their usage in the Underlying Action. Because this objection was not timely raised, it has been waived. (Stadish v. Superior Court (1999) 71 Cal.App.4th 1130, 1141 (1999) [party whose response fails to set forth a particular ground for objection waives its right to raise that objection later].) Furthermore, even if this objection had not been waived, the argument these requests are not full and complete because they lacked reference to a definition for “fill materials” is not persuasive.

2. Substantive Responses

SBV Concrete provided substantive responses to RFA Nos. 1-2, 4, and 6-21, without waiving its objections.

a. RFA Nos. 1-2, 4, and 6-8

Once again, RFA Nos. 1-2, 4, and 6-8 asked SBV Concrete to admit it intentionally disposed of fill materials on the Gullicksens’ property and paid George Gullicksen for its right to do so. With respect to RFA Nos. 2, 4 and 6-8, SBV Concrete initially responded it lacked sufficient information to admit or deny the request. It then goes on to state the following: “Responding Party was present on the property, if at all, only with the express request and permission of the property owner and was directed by the owner and/or the owner’s representatives as to the placement of any materials while on the property.” (See Index of Exhibits, Exh. Q.) With respect to RFA No. 1, SBV Concrete responds with only the latter statement.

Plaintiff argues the inclusion of the phrase “if at all” in the responses renders them not complete or straightforward. In effect, it appears to contend the response is unclear because, on the one hand, SBV Concrete asserts it lacks the information needed to admit or deny the request and, on the other hand, it purports to provide a factual response. In opposition, SBV Concrete attempts to justify its response by contending it had limited information it could resort to in answering the requests and the responses given were the best it could muster. It argues that because Plaintiff waited nearly a decade to bring this insurance coverage dispute, all personnel possessing direct knowledge of the facts in the Underlying Action are no longer employed with it and the corporate representative answering the requests did her best to assemble “this expert level puzzle.” (See SBV Concrete’s Separate Statement (“Sep. Smt.”), pg. 10.) This argument is not well-taken.

A party giving lack of information as a reason for its failure to admit all of a request must state in the answer that a reasonable inquiry into the matter has been made and the information known or readily obtainable is insufficient to enable it to admit the matter. (See Code Civ. Proc., § 2033.220, subd. (c).) SBV Concrete’s responses do not include such a statement. Moreover, its response to RFA No. 1 is even more vague because it does not indicate it lacks sufficient information to admit or deny the request yet seems to suggest it is not sure if SBV Concrete was present on the property at all. As framed, SBV Concrete’s responses to these requests are incomplete and evasive.

b. RFA Nos. 9-21

RFA Nos. 9-21 asked SBV Concrete to admit that specific checks were issued as payments for disposing of fill material on the Gullicksens’ property. In response, SBV Concrete stated it lacked sufficient information to admit or deny the requests along with the following statement: “Responding Party admits the referenced check was issued.” (See Index of Exhibits, Exh. Q.)

Plaintiff argues the responses are not complete and straightforward because they ignore the thrust of the questions which are directed not to the issue of whether the checks were issued but whether they represented payment for the disposal of fill materials on the Gullicksens’ property. In opposition, SBV Concrete again argues its response was based on the limited information it has. This argument is not well-taken.

As stated above, a party must respond to a request for admission by answering the substance of the request. (Code Civ. Proc., § 2033.210, subd. (b).) The response must admit so much of the matter involved in the request as true, deny so much of the matter as is untrue, and specify so much of the matter involved as to the truth of which the party lacks sufficient information or knowledge. (Code Civ. Proc., § 2033.220, subd. (b).) SBV Concrete’s response only admits the referenced checks were issued. The responses do not otherwise admit or deny whether these checks were issued for the purpose of paying George Gullicksen for the right to dispose of fill material on his property as called for in the requests. While they admit the checks were issued, they also do not specify that with regards to portion of the request related to the purpose for which the checks were issued, SBV Concrete lacks sufficient information or knowledge.

3. Conclusion

In sum, the objections to these requests are overruled and all the substantive responses are deficient. Further responses are therefore warranted. Accordingly, the motion to compel further responses to RFA Nos. 1-4 and 6-21 is GRANTED. SBV Concrete shall serve a verified code-compliant further responses, without objections, within 20 calendar days of this Order.

B. Form Interrogatories

A party propounding interrogatories may move for an order compelling further responses if that party deems an answer is evasive or incomplete, the exercise of the option to produce documents is unwarranted, or an objection is without merit or too general. (Code Civ. Proc., § 2030.300, subd. (a).) Plaintiff moves to compel further responses to FI No. 17.1 in relation to RFA Nos. 1-4 and 6-21 on the ground SBV Concrete’s responses are incomplete and evasive and their objections are without merit.

FI No. 17.1 asked SBV Concrete whether its response to each RFA is an unqualified admission. If not, it was obligated to furnish certain information in support of its response. There are four subparts FI No. 17.1, including subdivision (b), which requires a statement of all facts on which the response is based.

SBV Concrete’s responses to the subject RFAs were not unqualified admissions. As such, it was obligated to respond to FI No. 17.1 relative to these requests.

With respect to subpart (b) of FI No. 17.1 relative to RFA Nos. 1-2, which requested identification of facts supporting her response, SBV Concrete provided the following substantive response: “Responding Party was present on the property, if at all, only with the express request and permission of the property owner and was directed by the owner and/or the owner’s representatives as to the placement of any materials while on the property.” (See Index of Exhibits, Exh. R, pg. 10.) With respect to RFA No. 3, SBV Concrete only stated it lacked the ability to admit or deny the request due to ambiguities in the request. With respect to RFA Nos. 4 and 6-8, SBV Concrete’s response incorporated both of the foregoing responses. (See, e.g., Id. at p. 11:2-3.) Finally, relative to RFA Nos. 9-21, SBV Concrete provided the following substantive response along with the claimed lack of ability to admit or deny the request because it was ambiguous: “Responding Party admits the referenced check was issued.” (See, e.g., Id. at p. 13:8-10.)

Plaintiff takes issue with the response to subpart (b), arguing the inclusion of the phrase “if at all” renders them not complete or straightforward. It also contends SBV Concrete’s claim of ambiguity in the request fails because the terms used have plain meaning in the English language. In opposition, SBV Concrete argues its response was based on the information reasonably available to it given that all employees with direct knowledge of facts responsive to the request are no longer with the company. This argument is not well-taken.

Each answer to an interrogatory must be as complete and straightforward as the information reasonably available to a party permits. (Code Civ. Proc., § 2030.220, subd. (a).) If an interrogatory cannot be answered completely, it must be answered to the extent possible. (Code Civ. Proc., § 2030.220, subd. (b).) If a party lacks sufficient personal knowledge to fully respond to an interrogatory, it must state so and also make reasonable and good faith efforts to obtain the information requested, except where this information is equally available to the propounding party. (Code Civ. Proc., § 2030.220, subd. (c).)

With respect to the statement it was unable to admit or deny the request due to ambiguities present in the request, this is responsive in that it lists a fact supportive of SBV Concrete’s failure to provide unqualified admissions to the requests for admission. That being said, as previously discussed, the objection to the requests for admission on the ground of vagueness and ambiguity is without merit.

Furthermore, to the extent SBV Concrete now claims in its opposition that its responses to these requests for admission were based on lack of information, this fact was not stated in its responses to subpart (b) of FI No. 17.1 relative to the subject RFA. Instead, SBV Concrete merely restated its responses to the original requests for admission in its responses to subpart (b). It does not directly respond to the question posed because statements it might have been on the property or issued checks are not facts supporting SBV Concrete’s inability to provide an unqualified admission to the requests at issue. For these reasons, the responses to FI No. 17.1 are deficient.

Accordingly, the motion to compel further responses to FI No. 17.1 is GRANTED relative to RFA Nos. 1-4 and 6-21, to the extent SBV Concrete’s further responses to these RFA as ordered above continue to be qualified admissions. SBV Concrete shall serve a verified code-compliant further response, without objections, within 20 calendar days of this Order.

C. Special Interrogatories

A party propounding interrogatories may move for an order compelling further responses if that party deems an answer is evasive or incomplete, the exercise of the option to produce documents is unwarranted, or an objection is without merit or too general. (Code Civ. Proc., § 2030.300, subd. (a).) Plaintiff moves to compel further responses to SI Nos. 1-18 on the ground SBV Concrete’s objections are meritless and their substantive responses are evasive. (See Code Civ. Proc., § 2030.300.)
1. Objections

SBV Concrete objected to these interrogatories on the grounds they violate the attorney-client privilege and attorney work product doctrine, and are otherwise vague and ambiguous. It is SBV Concrete’s burden to justify these objections. (See Kirkland v. Sup. Ct. (2002) 95 Cal.App.4th 92, 98 [responding party must justify its objections].)

SBV Concrete only attempts to justify its objection as to vagueness and ambiguity, arguing that though terms such as “fill material,” “made payment,” “disposal,” “accident,” “deliberate,” “intentional” seem plain and straightforward, they have hidden meaning in the insurance coverage context. For the reasons previously stated, the vague and ambiguous objection lacks merit. (See Deyo, supra, 84 Cal.App.3d at 783 [vague and ambiguous objection should only be sustained when the nature of the information sought is not apparent]. As such, it is overruled. As for the remaining undefended attorney-client privilege and work product doctrine objections, they are also overruled. The SI do not clearly seek privileged information and SBV Concrete does not suggest otherwise in its opposition to the motion to compel.

In its opposition, SBV Concrete also objects for the first time that these interrogatories are not full and complete in and of themselves because they require reference to the Underlying Action. Because this objection was not timely raised, it has been waived. (Stadish, supra, 71 Cal.App.4th at 1141.) Furthermore, even if this objection had not been waived, the argument these interrogatories are not full and complete because they lacked reference to a definition for “fill materials” is not persuasive.

2. Substantive Responses

a. SI Nos. 1-2, 6-8, 10-11, and 15-17

SI Nos. 1-2, 6-8, 10-11, and 15-17 seek to ascertain if SBV Concrete disposed of fill materials on the Gullicksens’ property in 2006 and 2007, if it had permission to do so, if it did so intentionally or as a result of an accident, and any facts supporting a contention the disposal was accidental. In response, SBV Concrete stated the following: “Responding Party was present on the property, if at all, only with the express request and permission of the property owner and was directed by the owner and/or the owner’s representatives as to the placement of any materials while on the property.” (See Index of Exhibits, Exh. S.)

Plaintiff argues the answers are insufficient because the statement SBV Concrete was “present on the property, if at all,” renders them incomplete and not straightforward. In effect, it appears to contend the response is unclear because, on the one hand, SBV Concrete asserts it lacks the information needed to admit or deny the request and, on the other hand, it purports to provide a factual response. In opposition, SBV Concrete argues this response is based on the information reasonably available to it because all employees with direct knowledge of the facts sought are no longer employed with it. This argument is not well-taken.

As previously stated, each answer to an interrogatory must be as complete and straightforward as the information reasonably available to a party permits. (Code Civ. Proc., § 2030.220, subd. (a).) If an interrogatory cannot be cannot be answered completely, it must be answered to the extent possible. (Code Civ. Proc., § 2030.220, subd. (b).) Finally, if the responding party lacks sufficient personal knowledge to fully respond to the interrogatory, it state so. (Code Civ. Proc., § 2030.220, subd. (c).)

SI Nos. 1-2, 6-8, 10-11, and 15-17 are clear in their requests for information relating to whether SBV Concrete disposed of fill materials on the Gullicksen property, if it had permission to do so, and whether its actions were intentional or the result of an accident. SBV Concrete’s response that it was “present on the property, if at all” do not address the call of the question. This response is therefore not complete or straightforward. Moreover, to the extent SBV Concrete attempts to justify its response based on its argument it did not have sufficient information, it was required to state this in its response. (See Code Civ. Proc., § 2030.220, subd. (c).)

As such, further responses to SI Nos. 1-2, 6-8, 10-11, and 15-17 are warranted.

b. SI Nos. 3-5 and 12-14

SI Nos. 3-5 and 12-14 seek to ascertain if SBV Concrete made payments for the disposal of fill materials on the Gullicksen property in 2006 and 2007, if these payments were made by check to a certain individual, and if they were made with the expectation the money would be disbursed to George Gullicksen. In response, SBV Concrete stated the following: “Responding Party refers Propounding Party, pursuant to C.C.P. § 2030.230, to Exhibit A attached hereto regarding any record of payments.” (See Index of Exhibits, Exh. S.)

Plaintiff argues this response is evasive because it references documents constituting the checks paid but ignores the thrust of the interrogatories which seek information regarding the purpose for which those checks were issued. The Court agrees.

As stated, an interrogatory must be as complete and straightforward as the information reasonably available to a party permits. (Code Civ. Proc., § 2030.220, subd. (a).) SBV Concrete’s mere reference to checks that were issued without responding to the call of the question which seeks information related to the purpose for which they were issued, is insufficient. Though SBV Concrete argues in its opposition this response is as complete as it can be given the information reasonably available to it, it did not state it lacked personal knowledge of facts enabling it to fully respond to this interrogatory. (See Code Civ. Proc., § 2030.220, subd. (c).)

As such, the responses are not code-compliant and further responses to SI Nos. 3-5 and 12-14 are warranted.

c. SI Nos. 9 and 18

SI Nos. 9 and 18 request that if SBV Concrete contends the disposal of fill materials on the Gullicksen property in 2006 and 2007 was the result of an accident, it identify each person that has knowledge of facts supporting this contention. In response, SBV Concrete stated the following: “Responding Party was present on the property, if at all, only with the express request and permission of the property owner and was directed by the owner and/or the owner’s representatives as to the placement of any materials while on the property.” (See Index of Exhibits, Exh. S.) It also identifies itself and “potentially others to be identified through discovery” as individuals with knowledge of these facts. (Ibid.)

Plaintiff argues these responses are deficient because they do not identify any person and the inclusion of the phrase “present on the property, if at all” renders them incomplete and not straightforward. This argument is well-taken.

The responses to SI Nos. 9 and 18 are not complete and straightforward because they identify SBV Concrete but not any persons who have knowledge of facts relating to any contention the disposal of fill materials was the result of an accident. Moreover, its response it has information relating to these facts coupled with a simultaneous assertion that it is not even sure if it was on the Gullicksens’ property renders this response incomplete and evasive.

Accordingly further responses to SI Nos. 9 and 18 are warranted.

3. Conclusion

For the reasons stated, the motion to compel further responses to SI Nos. 1-18 is GRANTED. SBV Concrete shall serve verified code-compliant further responses, without objections, within 20 calendar days of this Order.

D. Request for Sanctions

Plaintiff anomalously seeks sanctions from Gilbert in connection with its motion to compel discovery responses from SBV Concrete. Though its notice states its request is based on Code of Civil Procedure sections 2023.010, subdivision (d), 2023.030, 2030.090, subdivision (c), and 2031.300, subdivision (c), it states in its memorandum it is relying on Code of Civil Procedure sections 2030.300, subdivision (d) and 2033.290 subdivision (d).

To the extent Plaintiff bases its sanctions request on Code of Civil Procedure sections 2023.010, subdivision (d) or 2023.030, this reliance is misplaced. The prefatory paragraph of Section 2023.030 only authorizes sanctions “[t]o the extent authorized by the chapter governing any particular discovery method.” As such, these statutes by themselves do not independently authorize an award of sanctions. Code of Civil Procedure sections 2030.090, subdivision (c), and 2031.300, subdivision (c) are also inapposite because these statutes relate to motions for protective orders and the effect of a failure to serve a timely response to an inspection demand.

However, Code of Civil Procedure sections 2030.300, subdivision (d) and 2033.290 subdivision (d) – cited by Plaintiff in its memorandum – do authorize an award of sanctions where a party successfully makes a motion to compel further responses to interrogatories or requests for admission, unless the party subject to sanctions acted with substantial justification or other circumstances exist that would make imposing sanctions unjust

Plaintiff requests monetary sanctions from Gilbert in the amount of $8,260, representing $5,600 in fees incurred in preparing the motion to compel, $2,600 in anticipatory expenses for preparing the reply and attending the hearing, and a $60 filing fee.

As a preliminary matter, with respect to the anticipatory expenses, the Court does not award sanctions for estimated expenses or expenses not yet incurred. (See Code Civ. Proc., § 2023.030, subd. (a); Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551, 1564 [court may not award monetary sanctions for costs not yet incurred].)

With respect to the fees actually incurred, Plaintiff substantially prevailed in its motion to compel further responses from SBV Concrete and the Court finds SBV Concrete did not act with substantial justification in opposing the motion. That being said, the fact Plaintiff seeks an award of monetary sanctions from Gilbert is anomalous. Given that Gilbert was not a party involved in the motion to compel the SBV Concrete discovery responses, the Court finds the imposition of sanctions against him in connection with that motion would be unjust.

Accordingly, Plaintiff’s request for monetary sanctions against Gilbert is DENIED.

IV. Motion to Compel as to Gilbert

A. Merits of the Motion

Plaintiff seeks to compel further responses to RFA Nos. 1-4 and 6-8; FI No. 17.1 relative to RFA Nos. 1-4 and 6-8; and SI Nos. 1-14. The requests for admission and form interrogatories at issue are identical to those discussed in the motion to compel further responses from SBV Concrete. With respect to the special interrogatories, the information sought from Gilbert is substantially similar to that sought from the special interrogatories propounded on SBV Concrete with the addition of two requests for facts supporting any contention the disposal of fill materials in 2006 and 2007 was the result of an accident.

In his amended responses to all the discovery requests, Gilbert invoked his Fifth Amendment privilege against self-incrimination and the Fourteenth Amendment’s due process protections. He also objected to the requests for admission, form interrogatories and special interrogatories on the same grounds asserted by SBV Concrete in its responses to each respective set of discovery requests. Gilbert provided no substantive response to any of the requests.

Plaintiff seeks further responses to these requests on the grounds the objections are meritless and the invocation of Gilbert’s Fifth Amendment privilege is frivolous.

It is Gilbert’s burden to justify his objections to the discovery requests. (See Kirkland, supra, 95 Cal.App.4th at 98.) Gilbert does not attempt to substantiate any of his objections aside from his objection on the grounds of vagueness and ambiguity and the Fifth Amendment Privilege. The arguments he advanced to support his vague and ambiguous objection are identical to those presented by SBV Concrete. For the reasons already stated, that objection lacks merit. As to the remaining undefended objections, they are overruled.

Gilbert also raises for the first time in his opposition an objection on the ground the discovery requests are not full and complete in and of themselves because they require resort to the Underlying Action. This objection is waived because it was not timely raised. (Stadish, supra, 71 Cal.App.4th at 1141.)

With respect to the objection on the ground of Fifth Amendment privilege, Evidence Code section 940 provides that a person has “a privilege to refuse to disclose any matter that may tend to incriminate him.” Any party in a discovery proceeding may claim the Fifth Amendment privilege against disclosure of information that might tend to incriminate him under either federal or state law. (Zonver v. Superior Court (1969) 270 Cal.App.2d 613, 620-621.) If a party elects to assert the privilege, no “punishment” can be imposed against him for doing so; however, he is also not permitted to take advantage of his adversary by invoking his Fifth Amendment rights and “may be required to either waive the privilege or accept the civil consequences of silence if he…exercises it.” (Blackburn v. Superior Court (1993) 21 Cal.App.4th 414, 425-426; see also Steiny & Co. , Inc. v. California Elec. Supply Co. (2000) 79 Cal.App.4th 285, 292 [a party claiming a privilege to avoid disclosing facts essential to a claim or defense may be barred from asserting that claim or defense at trial].) This includes the risk that the defendant who is claiming the privilege to avoid discovery may have his testimony as to those matters excluded from trial. (See Marriage of Hoffmeister (1984) 161 Cal.App.3d 1163, 1169.)

Plaintiff argues Gilbert waived his right to invoke the Fifth Amendment privilege because he did not raise it as an objection in his original unverified responses to the discovery requests. In opposition, Gilbert acknowledges this objection was not originally raised but seeks relief based on his assertion the service of his original unverified, un-redacted draft responses was a mistake of counsel. In support, he cites Code of Civil Procedure section 2030.290 (“Section 2030.290”), which provides for relief from waiver of objections under certain circumstances. (See Opp. at p. 8:16-18.) His reliance on this statute is misplaced.

In order to avoid a waiver of privilege, an objection must be raised in the initial response to discovery requests. (Coy v. Superior Court (1962) 58 Cal.2d 210, 216–217; Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905.) Under Section 2030.290, subdivision (a), a court may relieve a party from waiving an objection, on motion, if certain conditions are satisfied. Thus, a request for relief from waiver must be made by noticed motion and cannot be made where the only motion pending is a motion to compel. (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (Rutter Group 2017) ¶ 8:1465.) Because Gilbert did not timely raise his objection on Fifth Amendment grounds and has not otherwise indicated he filed a noticed motion seeking relief from waiver under Section 2030.290, it has been waived. (See Brown v. Sup. Ct. (1986) 180 Cal.App.3d 701, 712.)

Accordingly, the motion to compel further responses to RFA Nos. 1-4 and 6-8; FI No. 17.1 relative to RFA Nos. 1-4 and 6-8; and SI Nos. 1-14 is GRANTED.

B. Request for Sanctions

Plaintiff seeks sanctions from Gilbert in the amount of $2,760, representing $2,100 in fees incurred in preparing the motion to compel, $600 in anticipatory expenses for preparing the reply and attending the hearing, and a $60 filing fee. As with its request for sanctions in the motion to compel SBV Concrete’s further responses, though the notice enumerates a number of inapplicable statutes in support of its request, the memorandum otherwise indicates Plaintiff seeks sanctions pursuant to Code of Civil Procedure sections 2030.300, subdivision (d) and 2033.290 subdivision (d).

These statutes authorize an award of sanctions where a party successfully makes a motion to compel further responses to interrogatories or requests for admission, unless the party subject to sanctions acted with substantial justification or other circumstances exist that would make imposing sanctions unjust

Plaintiff substantially prevailed in its motion to compel further responses from Gilbert. Moreover, the Court finds Gilbert did not act with substantial justification in opposing the motion and there are no other circumstances that would make an imposition of sanctions unjust. As such, Plaintiff is entitled to recovery of the expenses actually incurred in connection with the motion. As to the estimated expenses or expenses not yet incurred, the Court will not award sanctions. (See Code Civ. Proc., § 2023.030, subd. (a); Tucker, supra, 186 Cal.App.4th 1548 at 1564 [court may not award monetary sanctions for costs not yet incurred].)

Accordingly, Plaintiff’s request for sanctions is GRANTED in the amount of $2,160 ($2,100 in legal expenses + $60). Gilbert shall pay this sanction to Plaintiff’s counsel within 20 calendar days of this Order.