On 11 April 2014, the motion of defendants Surjit Brar, Dhiraj Singha, Praveen Singha, and Kaddu, Inc. for protective order and monetary sanctions was argued and submitted. Plaintiffs Sandrine Cornet and Opa Verde, Inc. filed a formal opposition to the motion in which they request monetary sanctions.

Statement of Facts

Plaintiff Sandrine Cornet (“Ms. Cornet”) was hired by defendant Splendor Restaurants, Inc. (“Splendor”) as a waitress, host, and bartender at its restaurant, Da Zucca Ristorante (“Zucca”), and was later promoted to a position as a manager. Ms. Cornet alleges that Splendor began having trouble paying its bills and failed to fully pay her wages. The California Secretary of State and California Franchise Tax Board suspended Splendor and, as a result, defendants Dhiraj Singha, Praveen Singha, and Surjit Brar (“Mr. Brar”) incorporated a new entity, defendant Kaddu, Inc. (“Kaddu”) (collectively “Defendants”), to operate Zucca. Defendants purportedly transferred Zucca’s assets to Kaddu, although, due to Splendor’s suspended status, it could not actually have performed such a transfer of assets.

In November 2011, Ms. Cornet and Dhiraj Singha, who purported to act on behalf of Kaddu and Mr. Brar, entered into a written and verbal agreement in which Ms. Cornet was to pay $390,000.00 to Kaddu in exchange for the transfer of all of Zucca’s assets. As a condition of the sale, Kaddu was to pay off all of Zucca’s debts before the close of escrow. However, Kaddu never had the ability to transfer Zucca’s assets, and Kaddu did not pay off its debts prior to the close of escrow.

Ms. Cornet alleges that on 30 January 2012, she entered into a separate written business purchase agreement in her capacity as an officer of plaintiff Opa Verde, Inc. (“Opa Verde”) (collectively “Plaintiffs”), essentially memorializing the terms of the prior agreement. However, Defendants insisted that Plaintiffs pay them more than the $390,000.00 agreed price to complete the transaction and refused to return any of the $265,000.00 already received from Plaintiffs.

Plaintiffs filed suit against Defendants for: (1) fraud; (2) breach of contract; (3) specific performance; (4) rescission; (5) conversion; (6) restitution/unjust enrichment; (7) unfair business practices; (8) declaratory relief; and (9) nonpayment of wages.
Plaintiffs allege that Splendor and Kaddu are alter egos of Dhiraj Singha, Praveen Singha, and Mr. Brar, and that they are liable as coconspirators.

Kaddu filed a cross-complaint against Plaintiffs asserting causes of action for: (1) breach of contract; (2) embezzlement; (3) accounting; and (4) declaratory relief.

Discovery Dispute

On 6 February 2014, Plaintiffs personally served the following discovery requests: (1) Opa Verde’s special interrogatories (“SI”), set 2 to Kaddu; (2) Plaintiffs’ inspection demands, set 4 to Kaddu; (3) Ms. Cornet’s requests for admission (“RFA”), set 1 to Kaddu; (4) Ms. Cornet’s form interrogatories (“FI”), set 1 to Kaddu; (5) Opa Verde’s SI, set 1 to Mr. Brar; (6) Ms. Cornet’s RFA, set 1 to Mr. Brar; (7) Ms. Cornet’s FI, set 4 to Mr. Brar; (8) Plaintiffs’ inspection demands, set 4 to Mr. Brar; (9) Ms. Cornet’s RFA, set 1 to Dhiraj Singha; (10) Ms. Cornet’s FI, set 3 to DhirajSingha; (11) Plaintiffs’ inspection demands, set 3 to Dhiraj Singha; (12) Ms. Cornet’s RFA, set 1 to Praveen Singha; (13) Ms. Cornet’s FI, set 1 to Praveen Singha; (14) Opa Verde’s SI, set 1 to Praveen Singha; and (15) Plaintiffs’ inspection demands, set 3 to Praveen Singha (collectively “6 February 2014 requests”). (See Noble Dec., p. 2:1-11.)

On 7 February 2014, Plaintiffs served by mail the following discovery requests pertaining to Kaddu’s cross-complaint: (16) Ms. Cornet’s RFA, set 2 to Kaddu; (17) Ms. Cornet’s FI, set 5 to Kaddu; (18) Ms. Cornet’s SI, set 1 to Kaddu; (19) Opa Verde’s SI, set 3 to Kaddu; and (20) Plaintiffs’ inspection demands, set 5 to Kaddu (collectively “7 February 2014 requests”). (See Noble Dec., p. 2:12-17.)

On 11 February 2014, Defendants’ counsel requested a 30-day extension to respond to the 7 February 2014 requests. (See Noble Dec., p. 2:20-21, 3:5-7; Ruth Dec., p. 2:14-20.) Defendants’ counsel notified Plaintiffs’ counsel that Dhiraj Singha and Praveen Singha were in India for their mother’s last rites and would not return until after the responses to the 7 February 2014 requests were due. (See Noble Dec., p. 2:20-21, 3:5-7; Ruth Dec., p. 2:14-20.) The same day, Plaintiffs’ counsel wrote to Defendants’ counsel and requested an explanation as to why Kaddu needed an extension to respond to the discovery because Dhiraj Singh and Praveen Singh were overseas. (See Ruth Dec., Ex. 2, p. 1.) He noted that the discovery requests referenced by Defendants’ counsel were propounded to Kaddu, not to Dhiraj Singh or Praveen Singh, and Mr. Brar was Kaddu’s president and had previously verified its discovery responses. (See Ruth Dec., Ex. 2, p.1.)

Defendants’ counsel declares that on 27 February 2014, she advised Plaintiffs’ counsel in writing that she was unable to communicate effectively with all of the defendants while Dhiraj Singh and Praveen Singh were in India. (See Noble Dec., p. 3:8-10.)
Plaintiffs’ counsel declares that on 4 March 2014, he received a telephone call from Defendants’ counsel who informed him that she had been using Dhiraj Singh as an interpreter in her conversations with Mr. Brar and she was not able to effectively communicate with Mr. Brar otherwise. (See Ruth Dec., p. 3:3-14.) Plaintiffs’ counsel then offered a two-week extension to Kaddu to respond to the 7 February 2014 requests. (See Noble Dec., p. 3:12-15; Ruth Dec., p. 3:11-14.) During the same conversation, Defendants’ counsel requested a 30-day extension for all defendants to respond to the 6 February 2014 requests. (See Ruth Dec., p. 3:15-20.) Defendants’ counsel declares that Plaintiffs’ counsel denied this request on 5 March 2014. This assertion is disputed by Plaintiff’s counsel who declares that he requested additional time to consider the matter. (See Noble Dec., p. 3:16-21; Ruth Dec., p. 3:15-27.) The afternoon of 5 March 2014, after considering the request for an extension, Plaintiffs’ counsel faxed a letter to Defendants’ counsel stating that he was “willing to give your all of clients [sic] an extension until March 19, 2014” to respond to the 6 February 2014 requests, “provided that they agree (1) not to bring any motion for a protective order and (2) to provide substantive responses without any objections.” (See Ruth Dec., Ex. 6. p. 2.)

It appears Defendants’ counsel did not receive the 5 March 2014 fax as, on 6 March 2014, she sent a follow-up e-mail stating that it was her understanding that the request for an extension with regard to Dhiraj Singh and Praveen Singh had been denied and requesting Plaintiffs’ counsel’s response with regard to Kaddu and Mr. Brar. (See Ruth Dec., Ex. 7, p.1.) Also, on 6 March 2014, Defendants filed the instant motion for a protective order and monetary sanctions.

Plaintiffs then filed opposition papers on 27 March 2014, in which they request monetary sanctions. Defendants filed reply papers on 4 April 2014 in which they assert that subsequent to filing the motion they served timely objections to the 6 February 2014 requests on 10 March 2014, and to the 7 February 2014 requests on 14 March 2014. (See Noble Reply Dec., Ex. A and B.)

Discussion

I. Judicial Notice
In their opposition papers, Plaintiffs request that this Court take judicial notice of the case management statement filed by Plaintiffs on 22 January 2014.

The Court notes that Plaintiffs’ request for judicial notice is made in a footnote in their opposition papers. Under California Rules of Court, rule 3.1113(l), any request for judicial notice must be made in a separate document listing the specific items for which notice is requested.

A court may take judicial notice of court records that are relevant to a pending issue. (See Evid. Code, § 452, subd. (d); Stepan v. Garcia (1974) 43 Cal.App.3d 497, 500; People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2.) Plaintiffs’ case management statement is a court record that is relevant to the instant motion because Plaintiffs offer it to show that Defendants had notice of their intention to conduct further discovery before Dhiraj Singha and Praveen Singha went overseas. In addition, there is no opposition to Plaintiffs’ request for judicial notice.

Therefore, Plaintiff’s request for judicial notice is GRANTED.

II. Motion for Protective Order

Defendants seek a protective order granting them a 30-day extension to respond to the 6 February 2014 requests and the 7 February 2014 requests and stating that no objection has been waived to those requests.

A. Legal Standard

When interrogatories, demands for inspection, or requests for admission have been propounded, the responding party may promptly move for a protective order. (Code Civ. Proc., §§ 2030.090, subd. (a); 2031.060, subd. (a); and 2033.080, subd. (a).) “The court, for good cause shown, may make any order that justice requires to protect any party from unwarranted annoyance, embarrassment, oppression, or undue burden and expense.” (Code Civ. Proc., §§ 2030.090, subd. (b); 2030.060, subd. (b); and 2033.080, subd. (b).) For example, the court may order that time specified in Code of Civil Procedure sections 2030.260 and 2033.250 to respond to a set of interrogatories, demands for inspection, or requests for admission be extended. (Code Civ. Proc., §§ 2030.090, subd. (b)(3); 2031.060, subd. (b)(2); and 2033.080, subd. (b)(3).) If the motion for a protective order is denied in whole or in part, the court may order that the party provide or permit the discovery against which protection was sought on terms and conditions that are just. (Code Civ. Proc., §§ 2030.090, subd. (c); 2031.060, subd. (g); and 2033.080, subd. (c).)

B. Analysis

1. Effect of Service of Objections to Discovery Requests

As a preliminary matter, this Court will address whether the motion is moot as a result of Defendants’ service of objections to the discovery requests.

In their reply papers, Defendants assert that they timely served objections to all of the discovery requests that are the subject of the instant motion. Defendants submit proofs of service dated 10 March 2014 and 14 March 2014 in support of their contention. However, while the proofs of service list the majority of the discovery requests at issue, they to not indicate that objections were served for the following three discovery requests: Plaintiffs’ inspection demands, set 3 to Dhirja Singha; Ms. Cornet’s RFA, set 1 to Praveen Singha; and Plaintiffs’ inspection demands, set 3 to Praveen Singha. In their opposition papers, Plaintiffs assert that they while they received “materials” from Defendants’ counsel, they did not receive objections to Ms. Cornet’s RFA, set 1 to Dhiraj Singha. (See Opp’n., p. 7:10-15.)

A valid proof of service creates a rebuttable presumption that papers were properly served by mail and therefore received. (See Dill v. Berquist Construction Co., Inc. (1994) 24 Cal.App.4thh 1426, 1441-1442.) The rebuttable presumption can only be dispelled by contradictory evidence. (See Craig v. Brown & Root (2000) 84 Cal.App.4th 416, 421.) The proofs of service filed with the reply papers state that on 10 March 2014 and 14 March 2014, in San Jose, nonparty Caitlin Noble, whose business address is in San Jose and who is over the age of 18 and a resident of Santa Clara County, placed the discovery objections into a sealed envelope addressed to Defendants’ counsel and deposited said envelope into the mail with the postage thereon fully prepaid. This proof of service is valid because it contains all of the elements required by Code of Civil Procedure section 1013, subdivision (a) and creates a rebuttable presumption that the objections were properly served. In addition, Defendants indicate in their opposition papers that they did receive “materials” from Plaintiffs and state only that the objections to Ms. Cornet’s RFA, set 1 to Dhiraj Singha were missing. Thus, no evidence has been offered to rebut the presumption, except as to the objections to Ms. Cornet’s RFA, set 1 to Dhiraj Singha. With regard to the objections to Ms. Cornet’s RFA, set 1 to Dhiraj Singha, after weighing the facts, the Court concludes that the evidence favors Defendants’ position that the objections were properly served. Thus, the Court finds that objections to the discovery requests at issue were served timely, with the exception of the three discovery requests that were not identified on the proofs of service.
Since Defendants responded to the discovery requests by serving timely objections, Defendants’ motion for protective order requesting an extension of 30 days to respond and an order that no objection be waived is MOOT with regard to the 6 February 2014 requests and the 7 February 2014 requests, with the exception of the following: Plaintiffs’ inspection demands, set 3 to Dhirja Singha; Ms. Cornet’s RFA, set 1 to Praveen Singha; and Plaintiffs’ inspection demands, set 3 to Praveen Singha. If Defendants determine that further responses are required, they may supplement or amend their responses accordingly.

2. Good Cause

The motion for protective order will be addressed with regard to the following discovery requests, as the Court has not been presented with evidence that Defendants served any responses to the same: Plaintiffs’ inspection demands, set 3 to Dhirja Singha; Ms. Cornet’s RFA, set 1 to Praveen Singha; and Plaintiffs’ inspection demands, set 3 to Praveen Singha. Defendants have the burden of showing good cause for a protective order stating that no objection has been waived and granting a 30-day extension for Dhiraj Singha and Praveen Singha to respond to the discovery requests at issue. (Code Civ. Proc., §§ 2030.090, subd. (b); 2030.060, subd. (b); and 2033.080, subd. (b).)

Defendants argue that a protective order is needed because Dhiraj Singh and Praveen Singh are overseas attending their mother’s funeral and have limited Internet access such that it is oppressive and unwarranted to require them to respond within the time specified in Code of Civil Procedure sections 2030.260 and 2033.250. In addition, Defendants assert that the discovery requests are voluminous and include approximately 67 SI, 22 FI, 71 RFA, and 29 demands for inspection. A 30-day extension would give Dhiraj Singh and Praveen Singh additional time during which they could return home, effectively communicate with their counsel, and provide substantive responses to the discovery requests. Defendants add that Plaintiffs have unreasonably withheld a 30-day extension and cite the Santa Clara County Bar Association Code of Professionalism section 4 which states that a lawyer should agree to reasonable requests for first extensions without requiring motions and should not condition agreement to extensions on waiver of the requesting party’s substantive rights. (See Santa Clara County Bar Assn. Code of Professionalism, § 4 (“Continuances and Extension of Time”).) Defendants note that neither a trial setting conference nor a trial has been set in this case. (See Mem. Ps & As., p. 4:14.)
Plaintiffs counter that Defendants’ counsel has no personal knowledge that Dhiraj Singh and Praveen Singh went to India. That argument is contradicted by the declaration submitted by Plaintiff’s counsel in connection with the instant motion which states that she has personal knowledge of Dhiraj Singh’s and Praveen Singh’s travel to India. (See Noble Dec., p. 2:18-19.)
Plaintiffs also assert that Defendants unreasonably waited several weeks before requesting an extension for Dhiraj Singh and Praveen Singh to respond to the requests. The Court agrees that Defendants’ counsel should not have delayed in requesting an extension for Dhiraj Singh and Praveen Singh to respond to the discovery requests. However, in light of the passing of Dhiraj Singh’s and Praveen Singh’s mother, the difficulties inherent in overseas communication, and the number of requests that were served, a 30-day extension of the time to respond to the discovery at issue is warranted.

Thus, Defendants’ motion is GRANTED insofar as it requests an order that no objection has been waived and a 30-day extension to respond to Plaintiffs’ inspection demands, set 3 to Dhirja Singha, Ms. Cornet’s RFA, set 1 to Praveen Singha, and Plaintiffs’ inspection demands, set 3 to Praveen Singha.

III. Requests for Monetary Sanctions

Defendants request monetary sanctions under Code of Civil Procedure sections 2030.090, subdivision (d), 2031.060, subdivision (h), and 2033.080, subdivision (d), which state that the court shall impose a monetary against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order, 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. Defendants’ motion was only partially successful because it was moot as to the majority of the discovery requests by virtue of Defendants’ own actions. Further, Plaintiffs were substantially justified in opposing the motion in light of Defendants’ counsel’s delay in requesting extensions for Dhiraj Singha and Praveen Singha to respond to the 6 February 2014 requests, as well as their offer of a one-week extension for Dhiraj Singha and Praveen Singha to respond. Thus, Defendants’ request for sanctions is DENIED.

Plaintiffs also request monetary sanctions. However, “[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 shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.” Code of Civil Procedure, § 2023.040

Plaintiffs fail to cite any statutory basis under which they are requesting sanctions. Plaintiffs mention Code of Civil Procedure section 2023.030, but that statute provides that sanctions may be imposed for misuses of the discovery process “[t]o the extent authorized by the chapter governing any particular discovery method or any other provision of this title,” and does not provide an independent basis for an award of sanctions. Thus, Plaintiffs’ request for sanctions is DENIED.

Conclusion and Order

Plaintiffs’ request for judicial notice is GRANTED.

Defendants’ motion is MOOT IN PART and GRANTED IN PART. The motion is MOOT with regard to the 6 February 2014 requests and the 7 February 2014 requests, with the exception of the following: Plaintiffs’ inspection demands, set 3 to Dhirja Singha; Ms. Cornet’s RFA, set 1 to Praveen Singha; and Plaintiffs’ inspection demands, set 3 to Praveen Singha. The motion is GRANTED insofar as it requests a 30-day extension of time to respond and order that no objection has been waived for the following discovery requests: Plaintiffs’ inspection demands, set 3 to Dhirja Singha; Ms. Cornet’s RFA, set 1 to Praveen Singha; and Plaintiffs’ inspection demands, set 3 to Praveen Singha. Accordingly, Defendants shall have until 30 days from the date of the filing of this Order to respond to those
discovery requests.

Defendants’ request for monetary sanctions is DENIED.

Plaintiffs’ request for monetary sanctions is DENIED.