Case Name: Vinh Duc Nguyen, et al. v. Peter Pau, et al.

Case No.: 16CV302578

Motion to Compel Further Discovery Responses Re: [1] Form Interrogatories, Set One; [2] Special Interrogatories, Set One; [3] Request for Production of Documents, Set One and Document Production; and for Monetary, Issue, and Evidence Sanctions

Factual and Procedural Background

In this action, plaintiff Vinh Duc Nguyen aka Vince D. Nguyen, individually and doing business as Newton Law Group (“Nguyen”) alleges, among other things, that defendants Peter Pau (“Pau”), individually and doing business as Sand Hill Property Company (“SHPC”), interfered with his right to receive a commission for the sale of real property known as the Vallco Fashion Mall located at 10123 North Wolfe Road in Cupertino (“Mall”).

On November 10, 2016, plaintiff Nguyen filed a complaint against Pau, individually and doing business as Sand Hill Property Company, Sand Hill Property Management, LLC, and Vallco Property Owner, LLC (“VPO”) asserting causes of action for:

(1) Breach of Contract
(2) Breach of Implied Covenant of Good Faith and Fair Dealing
(3) Intentional Interference with Contractual Relations
(4) Intentional Interference with Prospective Economic Advantage
(5) Fraud-Deceit
(6) Violation of Business & Professions Code §17200, et seq.

On January 6, 2017, plaintiff Nguyen filed a first amended complaint (“FAC”) asserting the same six causes of action.

On March 30, 2017, defendants Pau, individually and doing business as Sand Hill Property Company, Sand Hill Property Management, LLC, and VPO filed a demurrer to plaintiff Nguyen’s FAC.

On May 9, 2017, the court sustained, in part, and overruled, in part, the defendants’ demurrer to plaintiff Nguyen’s FAC.

On May 24, 2017, plaintiff Nguyen filed the operative SAC against Pau, individually and doing business as SHPC, and VPO. The SAC now asserts the following causes of action:

(1) Breach of Contract
(2) Breach of Implied Covenant of Good Faith and Fair Dealing
(3) Intentional Interference with Contractual Relations
(4) Intentional Interference with Prospective Economic Advantage
(5) Fraud-Deceit
(6) Quasi-Contract/ Unjust Enrichment
(7) Violation of Business & Professions Code §17200, et seq.
(8) Conspiracy to Commit Fraud, to Interfere with Contractual Relations and Interfere with Prospective Economic Advantage

On July 14, 2017, defendants Pau, individually and doing business as SHPC, and VPO filed a demurrer to the fifth and seventh causes of action in plaintiff Nguyen’s SAC.

On September 26, 2017, the court sustained, without leave to amend, the defendants’ demurrer to the seventh cause of action and overruled the defendants’ demurrer to the fifth cause of action.

Discussion

I. Defendants’ motion to compel further discovery responses.

A. Discovery Dispute.

On March 8, 2017, defendant Pau served plaintiff Nguyen with requests for admission (“RFA”), set one; form interrogatories (“FI”), set one; special interrogatories (“SI”), set one; and request for production of documents (“RPD”), set one.

On April 13, 2017, plaintiff Nguyen served defendant Pau with responses to the above discovery.

Defendant Pau’s counsel found plaintiff Nguyen’s responses defective and, on April 26, 2017, wrote to plaintiff Nguyen’s then counsel to meet and confer.

On May 5, 2017, plaintiff Nguyen’s then counsel responded indicating a further response would be provided to some, but not all, discovery requests.

On May 26, 2017, plaintiff Nguyen served defendant Pau with first amended responses to the above discovery. Plaintiff Nguyen did not produce any additional documents in connection with the first amended responses.

On June 7, 2017, defendant Pau’s counsel wrote a further meet and confer letter to plaintiff Nguyen’s then counsel. On June 15, 2017, plaintiff Nguyen’s then counsel responded stating plaintiff Nguyen would stand on his responses/ objections. Plaintiff Nguyen’s then counsel extended defendant Pau’s deadline to bring a motion to compel to July 15, 2017.

On June 22, 2017, plaintiff Nguyen’s then counsel confirmed his disassociation from the case.

On July 14, 2017, defendant Pau filed a motion to compel further responses, compel compliance, and request for sanctions.

On September 26, 2017, the court issued an order granting defendant Pau’s motion to compel further responses, compel compliance, and request for sanctions.

Plaintiff Nguyen did not provide any further responses, produce any responsive documents, or pay the $3,000 monetary sanction award by the court-ordered deadline of October 6, 2017. On October 16, 2017, plaintiff Nguyen served additional responses to the FI, SI, and RPD. According to defendant Pau, the additional responses remain deficient.

On November 2, 2017, plaintiff Nguyen sent defendant Pau’s counsel payment for the $3,000 award of monetary sanctions.

On November 3, 2017, defendant Pau’s counsel sent plaintiff Nguyen’s counsel a meet and confer letter outlining the continued deficiencies with plaintiff Nguyen’s additional responses and setting a deadline of November 9, 2017 for compliance. On November 8, 2017, plaintiff Nguyen contacted defendant Pau’s counsel directly by email stating he would “get it done by this weekend.” Defendant Pau’s counsel responded to plaintiff Nguyen’s counsel revising the deadline for compliance to November 14, 2017.

Defendant Pau’s counsel did not receive any further discovery responses or a privilege log by November 14, 2017 or thereafter. Defendant Pau’s counsel did receive an additional document production responsive to RPD, Nos. 13, 15, 24, and 30 from plaintiff Nguyen on November 14, 2017.

On December 4, 2017, defendant Pau filed the instant motion to compel further responses to FI, SI, RPD and for monetary, issue, and evidence sanctions.

B. Defendant Pau’s request for judicial notice is GRANTED.

In support of the motion to compel, defendant Pau requests judicial notice of various court records from this action and Santa Clara County Superior Court case number 1-13-CV-245854, Nguyen v. Vallco Shopping Mall, LLC, et al. (“Vallco Litigation”). Evidence Code section 452, subdivision (d) states that the court may take judicial notice of “[r]ecords of any court of this state.” This section of the statute has been interpreted to mean that the trial court may take judicial notice of the existence of the court’s own records. Evidence Code section 452 and 453 permit the trial court to “take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached—in the documents such as orders, statements of decision, and judgments—but [the court] cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.” (People v. Woodell (1998) 17 Cal.4th 448, 455.) Accordingly, defendant Pau’s request for judicial notice in support of motion to compel further discovery responses, etc., exhibits A – E, is GRANTED, but only insofar as the court takes judicial notice of the existence of the documents, not necessarily the truth of any matters asserted therein.

C. Defendant Pau’s motion to compel further response to interrogatories is GRANTED, in part, and DENIED, in part.

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).) 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.)

Plaintiff Nguyen states in his opposition that he, “in his good faith, tried his best to provide more facts, more data, and produce more documents. Plaintiff chose to stand on a few issues. Please see Plaintiff’s Separate Statements filed concurrently with this Opposition, for his detailed responses.”

FI, No. 17.1 [RFA, No. 3]: Subpart (b) of this interrogatory, in relevant part, asks plaintiff to “state all facts upon which you base your response” [to RFA No. 3]. In the September 26, 2017 order, this court directed plaintiff to “provide a further amended response, without objection, within 10 calendar days from entry of this order.” Rather than providing a further amended response, plaintiff apparently chose to provide an additional response, presumably to subpart (b). It is unclear whether plaintiff Nguyen’s additional response is intended to supersede the first amended response plaintiff Nguyen provided on or about May 26, 2017. To the extent it adds to the first amended response, it improperly maintains an objection which the court instructed plaintiff to remove. Defendant Pau contends the additional response is also evasive because it does not provide any facts and instead cites to court rulings made in the instant action and in the Vallco Litigation. To the extent the factual basis for plaintiff Nguyen’s response is a court ruling, the response is not evasive. Nevertheless, plaintiff Nguyen failed to comply with this court’s prior order directing him to provide a further amended response, without objection. Accordingly, defendant Pau’s motion to compel a further response to FI, set one, number 17.1 [RFA, No. 3] is GRANTED. Plaintiff Nguyen shall provide a further amended response, without objection, within 10 calendar days from entry of this order.

FI, No. 17.1 [RFA, No. 11]: Plaintiff Nguyen did not provide an original response or a first amended response to FI, No. 17.1 [RFA, No. 11]. In his additional response, plaintiff Nguyen identifies two electronic mail messages, the author and recipient(s), the date, and time and attaches copies of the two messages. FI, No. 17.1 contains subparts (a) – (d). Plaintiff’s response does not separately address each subpart, but plaintiff contends the answer to each subpart is self-evident. Even so, plaintiff is more than capable of providing Code-compliant responses having demonstrated the ability and understanding to do so in his original response and first amended response to FI, No. 17.1. As it stands, the additional response to FI, No. 17.1 [RFA, No. 11] is not Code-compliant. Accordingly, defendant Pau’s motion to compel a further response to FI, set one, number 17.1 [RFA, No. 11] is GRANTED. Plaintiff Nguyen shall provide a further amended response, without objection, within 10 calendar days from entry of this order.

SI, No. 33: As with FI, No. 17.1 [RFA, No. 3], plaintiff Nguyen’s first amended response to SI, No. 33 included various objections. The additional response purports to identify various documents plaintiff deems relevant. In providing an additional response, plaintiff Nguyen failed to comply with this court’s prior order directing him to provide a further amended response, without objection. Defendant Pau contends the additional response remains evasive because it does not provide any factual explanation. While defendant Pau may not be satisfied with the factual explanation provided, that is the subject of additional discovery. Nevertheless, plaintiff Nguyen failed to comply with this court’s prior order directing him to provide a further amended response, without objection. Accordingly, defendant Pau’s motion to compel a further response to SI, set one, number 33 is GRANTED. Plaintiff Nguyen shall provide a further amended response, without objection, within 10 calendar days from entry of this order.

SI, No. 38: The additional response provided by plaintiff purports to identify statements by their author, date, mode, and/or location. Defendant Pau contends the additional response remains evasive and incomplete because it does not provide enough information. The court does not agree. Defendant Pau’s dissatisfaction with the response is not a basis for compelling any further response. Defendant Pau may resort to additional discovery. Accordingly, defendant Pau’s motion to compel a further response to SI, set one, number 38 is DENIED.

D. Defendant Pau’s motion to compel further response to RPD is GRANTED.

Upon receipt of a response to a demand for inspection, including requests for the production of documents, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply:

1. A statement of compliance with the demand is incomplete.
2. A representation of inability to comply is inadequate, incomplete, or evasive.
3. An objection in the response is without merit or too general.

(Code Civ. Proc., §2031.310, subd. (a)(1) – (3).)

The motion for order compelling further responses “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.” (Code Civ. Proc., §2031.310, subd. (b)(1); Kirkland v. Sup. Ct. (2002) 95 Cal.App.4th 92, 98 (Kirkland).) To establish “good cause,” the burden is on the moving party to show both relevance to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case) and specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). (Glenfed Develop. Corp. v. Sup. Ct. (1997) 53 Cal.4th 1113, 1117.) Where the moving party establishes “good cause,” the burden shifts to the responding party to justify its objections. (Kirkland, supra, 95 Cal.App.4th at p. 98.)

RPD, No. 8: In this court’s September 26, 2007 order, the court directed plaintiff Nguyen to “provide a further amended response, without objection, within 10 calendar days from entry of this order.” In providing an additional response, plaintiff Nguyen has not provided an objection-free amended response. The additional response merely supplements the first amended response in which plaintiff asserted various objections. The fact that no further objections were made in the additional response is not determinative. Moreover, plaintiff Nguyen very clearly states in opposition that “he must comply with a confidentiality order entered by this court” in the Vallco Litigation. Plaintiff Nguyen did not substantiate this objection in the earlier motion to compel and does not substantiate the objection in opposition to the instant motion. Defendant Pau argues additionally that the original response, first amended response, and additional response fail to comply with Code of Civil Procedure section 2031.210, et seq. The court is inclined to agree. Plaintiff Nguyen contends he provided all responsive documents, but his supporting declaration does not indicate documents responsive to RPD, No. 8 were provided. Accordingly, defendant Pau’s motion to compel a further response to RPD, set one, number 8 is GRANTED. Plaintiff Nguyen shall provide a further amended Code-compliant response, without objection, and produce all documents responsive to this request within 10 calendar days from entry of this order.

RPD, No. 23: For all the same reasons discussed above with regard to RPD, No. 8, defendant Pau’s motion to compel a further response to RPD, set one, number 23 is GRANTED. Plaintiff Nguyen shall provide a further amended Code-compliant response, without objection, and produce all documents responsive to this request within 10 calendar days from entry of this order.

E. Defendant Pau’s request for sanctions is GRANTED, in part.

In this court’s opinion, defendant Pau’s request for issue and/or evidentiary sanctions is not warranted under the circumstances. The court is guided by the principle that the, “punishment must fit the crime.” (See Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1293.) Awarding issue and/or evidentiary sanctions under these circumstances would produce an unjustified windfall to the defendant. Accordingly, defendant Pau’s request for issue and/or evidentiary sanctions is DENIED.

Nevertheless, Code of Civil Procedure sections 2030.300, subdivision (d) and 2031.310, subdivision (h) mandates an award of monetary sanctions “against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel [further response to interrogatories or a demand for production of documents], 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.”

In her declaration, defendant Pau’s counsel indicates she spent 11.1 hours preparing the papers in support of this discovery motion. Defendant Pau’s counsel further declares she charges $260 per hour. Defendant Pau’s counsel declares her client incurred a $90 filing fee for this motion.

As defendant Pau substantially prevailed on this motion, defendant Pau’s request for monetary sanctions is GRANTED. However, the court finds the amount sought to be unreasonable in light of the fact that the instant motion to compel is as to only a smaller subset of the discovery at issue on the previous motion to compel. Although defendant Pau now seeks evidentiary and issue sanctions not previously sought, the present motion is just an update of the prior motion. Plaintiff Nguyen shall pay $2,170 to defendant Pau within 20 calendar days from entry of this order.

Plaintiff Nguyen’s request for monetary sanctions is DENIED.