Case Name: Ma Laboratories, Inc., et al. v. eWiz Express Corporation, et al.

Case No.: 16CV293438

Defendant eWiz Express Corporation’s Motion to Compel Plaintiff Ma Laboratories, Inc.’s Responses to Form Interrogatories, Set One

Discovery Dispute

On September 29, 2017, defendant eWiz Express Corporation (“eWiz”) served plaintiff Ma Laboratories, Inc. (“MLI”) with form interrogatories (“FI”), set one. MLI’s counsel requested and eWiz’s counsel granted an extension of time for MLI to provide responses.

On November 10, 2017, MLI served its response to eWiz’s FI, set one.

Between December 20, 2017 and January 30, 2018, eWiz’s counsel and MLI’s counsel met and conferred by letter, telephone, and electronic mail with regard to FI, set one, number 50.2.

On January 26, 2018, MLI served a supplemental response to eWiz’s FI, set one, number 50.2.

Between January 30, 2018 and March 9, 2018, eWiz’s counsel and MLI’s counsel continued to meet and confer by letter, telephone, and electronic mail with regard to FI, set one, number 50.2. MLI’s counsel indicated he would provide a further supplemental response by March 16, 2018 and granted eWiz an extension the deadline for a motion to compel until March 26, 2018.

eWiz did not receive any further supplemental response. On March 23, 2018, eWiz filed the motion now before the court, a motion to compel [further] response to FI, set one, number 50.2.

V. Notice.

As a preliminary matter, plaintiff MLI contends defendant eWiz’s motion to compel further response should be denied because plaintiff MLI was never served with the requisite separate statement. “Any motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement.” (Cal. Rules of Court, rule 3.1345, subd. (a).) A separate statement is required for a motion to compel further responses to interrogatories. (Id.)

MLI acknowledges the filing of a separate statement by eWiz on March 26, 2018, but claims it never received one. The proof of service attached to the separate statement indicates service by electronic mail to “eugene.ashley@hogefenton.com, cchien@hopkinscarley.com, and jdooley@hopkinscarley.com” on March 26, 2018. Proof of service of the moving papers indicates service by electronic mail to the same addresses on March 23, 2018. Although not sent together, the proofs of service appear to be adequate.

The court has no basis to question the veracity of either party. Since there is adequate proof of service and since the failure to receive the separate statement could have easily been cured by requesting that it be re-sent, the court will consider the separate statement and MLI’s failure to receive the separate statement will not serve as a basis for denial of this motion.

VI. Meet and confer.

As a further preliminary matter, MLI contends defendant eWiz did not adequately meet and confer prior to the filing of this motion. A motion to compel further response to interrogatories “shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., §2030.300, subd. (b).) “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc., §2016.040.) A reasonable and good faith attempt at informal resolution requires that the parties present the merits of their respective positions with candor, specificity, and support. (Townsend v. Super. Ct. (1998) 61 Cal.App.4th 1431, 1435, 1439.) The level of effort at informal resolution which satisfies the “reasonable and good faith attempt” standard depends upon the circumstances of the case. (Obregon v. Super. Ct. (1998) 67 Cal.App.4th 424, 431.)

MLI contends eWiz’s meet and confer efforts were inadequate because there is no discussion concerning the adequacy of MLI’s objections. In reviewing eWiz’s supporting declaration, the court finds eWiz made a reasonable and good faith attempt at informal resolution. Specifically, eWiz’s counsel discussed why she believed MLI’s supplemental response to FI, set one, number 50.2 was evasive.

VII. Merits.

“On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (1) An answer to a particular interrogatory is evasive or incomplete. (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate. (3) An objection to an interrogatory is without merit or too general.” (Code Civ. Proc., §2030.300, subd. (a).)

In moving to compel a further response, defendant eWiz contends MLI’s supplemental response to FI, set one, number 50.2 is evasive or incomplete. The form interrogatory asks, “Was there a breach of any agreement alleged in the pleadings? If so, for each breach describe and give the date of every act or omission that you claim is the breach of the agreement.”

The court agrees with defendant eWiz that MLI’s supplemental response is evasive and/or incomplete. In the supplemental response, MLI identified five different contracts/agreements which were breached: (i) Contract For Sale of Goods; (ii) Contract for Assembly Fees; (iii) Lease Agreement; (iv) Contract for Back-end Services; and (v) Contract for Wuhan Services. With regard to each of these agreements except the Contract for Assembly Fees, MLI states, in relevant part, “The date each payment was due is set forth in the documents listed in response to Form Interrogatory 50.1.”

“It is not proper to answer by stating, ‘See my deposition’ or ‘See the complaint herein.’ If the question requires reference to some other document, it should be identified and its contents summarized so that the answer by itself is fully responsive to the interrogatory.” (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2017) ¶8:1049, p. 8F-38 citing Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783 – 784.)

With regard to the Contract for Assembly Fees, MLI’s supplemental response states, in relevant part, “As stated in Responding Party’s First Amended Complaint, the breaches occurred between June 6, 2014 to July 30, 2015.” The interrogatory asks MLI to “give the date of every act or omission that you claim is the breach of the agreement.” A date range does not identify each and every breach.

Defendant eWiz argues further that plaintiff MLI’s objections lack merit. 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.)

In opposition, MLI contends it asserted the various objections in order to preserve them and nevertheless provided a substantive response. MLI withdraws its objection that the interrogatories call for a legal conclusion. However, MLI has not substantiated any of the other objections asserted in response to FI, set one, number 50.2.

Accordingly, defendant eWiz’s motion to compel plaintiff MLI’s [further] response to FI, set one, number 50.2 is GRANTED. Plaintiff MLI shall provide a further verified response, without objection and in compliance with the Code of Civil Procedure, to defendant eWiz’s FI, set one, number 50.2 within 20 calendar days from entry of this order.

The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.

(Code Civ. Proc., § 2030.300, subd. (d).)

Defendant eWiz asks this court to impose sanctions against plaintiff MLI. However, as plaintiff MLI points out, defendant eWiz’s request for sanctions is procedurally defective. Defendant eWiz’s notice of motion fails to comply with Code of Civil Procedure section 2023.040 which states, in relevant part, “A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought.” The notice of motion filed by defendant eWiz does not identify every person, party, and attorney against whom the sanction is sought nor does it specify the type of sanction sought. Accordingly, defendant eWiz’s request for sanctions is DENIED.

In opposition, plaintiff MLI requests sanctions against defendant eWiz pursuant to Code of Civil Procedure section 2023.020 which states, “Notwithstanding the outcome of the particular discovery motion, the court shall impose a monetary sanction ordering that any party or attorney who fails to confer as required pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” However, as discussed above, the court found eWiz made a reasonable and good faith attempt at informal resolution. Accordingly, plaintiff MLI’s request for sanctions is DENIED.