Morazan v. Morazan-Aviles CASE NO. 112CV220779
DATE: 18 April 2014 TIME: 9:00 LINE NUMBER: 5
This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 17 April 2014. Please specify the issue to be contested when calling the Court and counsel.

On 18 April 2014, the motion of plaintiff/cross-defendant Marvin Morazan (“Plaintiff”) to compel further responses to his fifth set of special interrogatories and fifth set of requests for production of documents and for monetary sanctions was argued and submitted. Defendant/cross-complainant Janet Morazan-Aviles (“Defendant”) filed a formal opposition to the motion in which she also requests monetary sanctions.

On the same date, the motion of Defendant for a protective order limiting the scope and frequency of discovery and for an award of monetary sanctions was argued and submitted. Plaintiff filed a formal opposition to the motion in which he also requests monetary sanctions.

Statement of Facts

Plaintiff and Defendant are siblings and the son and daughter, respectively, of Edgar Morazan (“Edgar”) and Teresa Morazan (“Teresa”). In 2008, Edgar and Teresa began receiving settlement proceeds from an asbestos case in which Edgar was a plaintiff. In total, Edgar and Teresa received approximately $700,000 from the settlement. Edgar passed away in October 2008. Teresa passed away in June 2011. According to Plaintiff, both before and after his parents’ deaths, Defendant took control of, managed, and ultimately misappropriated their parents’ money. Based on these allegations, in March 2012, Plaintiff filed a complaint against his sister for breach of fiduciary duties, elder abuse, fraud, breach of contract, negligence, conversion, accounting and declaratory relief. The gist of the complaint is that, by misappropriating their parents’ money, Plaintiff’s sister divested him of his inheritance. In October 2012, Defendant filed a cross-complaint against her brother alleging similar causes of action (elder abuse, fraud, breach of fiduciary duties, etc.) based upon allegations that Plaintiff misappropriated monies and property belonging to their parents when they lived in Plaintiff’s home prior to their deaths.

Discovery Dispute

On 26 December 2013, Plaintiff served Defendant with Special Interrogatories – Set Five (“SI 5”) and Requests for Production of Documents – Set Five (“RPD 5”). The discovery requests collectively seek information and documents related to bank accounts held by Defendant, Defendant’s husband, and Defendant’s children, into which any of the parties’ parents’ money has been deposited.

On 24 January 2014, Defendant served Plaintiff with responses to SI 5 and RPD 5. The responses are hybrid in nature—setting forth numerous objections to the requests as well as providing substantive answers. The substantive responses to SI 5 state that, if Plaintiff rephrases the interrogatories, Defendant will attempt to answer them. The substantive responses to RPD 5 indicate that, after a diligent search, Defendant was unable to locate any responsive documents.

On 13 February 2014, Plaintiff’s counsel sent a meet and confer letter to defense counsel via email and U.S. mail, asserting that Defendant’s objections lack merit and that the substantive responses are inadequate. Among other things, Plaintiff’s counsel asserted in the letter that Defendant “clearly has many records and has information that she refuses to provide.” (Pl.’s Mot. to Compel, Ex. 2A.)

Defense counsel responded to Plaintiff’s counsel’s letter on 18 February 2014. (Pl.’s Mot. to Compel, Ex. 2B.) In the letter, defense counsel first indicated that the assertion that Defendant is withholding documents is incorrect. (Id.) Defense counsel went on to state that “[t]he discovery is almost entirely duplicative of previous discovery propounded on my client.” (Id.) Defense counsel then addressed the specific discovery requests to which Plaintiff’s counsel raised issues.

On 21 February 2014, Plaintiff’s counsel responded to defense counsel’s letter, indicating that defense counsel “failed to address directly most of the concerns I raised in my ‘meet and confer’ letter . . . [and] [y]our letter appears to repeat the excuses without providing any further information and documents requested.” (Id., Ex. 2C.) Defense counsel responded on 4 March 2014, reasserting Defendant’s position on the issues and asking Plaintiff’s counsel to confirm that he has informed Plaintiff to remove defamatory comments (and a scanned copy of a check written by Defendant, which was produced earlier in discovery) from Plaintiff’s Facebook account. (Id., Ex. 3.)

Counsel for the parties were unable to informally resolve the discovery dispute and, on 12 March 2014, Plaintiff filed a motion to compel further responses to certain interrogatories propounded as part of SI 5 and certain document requests contained in RPD 5. Defendant filed her opposition to the motion on 4 April 2014. Plaintiff filed his reply on 11 April 2014.

On 26 March 2014, Defendant filed a motion for a protective order, seeking, among other things, a declaration that Plaintiff is not entitled to further discovery of Defendant’s financial records and an order prohibiting Plaintiff from using documents produced in discovery for any purpose other than the ensuing litigation. Plaintiff filed an opposition to the motion for a protective order on 7 April 2014. Defendant filed her reply on 11 April 2014.

Discussion

I. Requests for Judicial Notice

A. Defendant’s Requests

Pursuant to Evidence Code section 452, subdivision (d), Defendant requests that the Court take judicial notice of the following two documents: (1) the Court’s tentative ruling dated 14 September 2012, later adopted, compelling Defendant to produce certain financial records related to the disbursement of settlement money; and (2) Defendant’s Motion for Summary Judgment filed in this case on 28 February 2014, and currently scheduled to be heard on 20 May 2014. Evidence Code section 452, subdivision (d), authorizes the court to take judicial notice of records of “any court of this state” or “any court of record of the United States or of any state of the United States,” and it is well settled that the court may take judicial notice of its own file so long as the documents are relevant to the matter before the court. (Stepan v. Garcia (1974) 43 Cal.App.3d 497, 500 [the court may take judicial notice of its own file]; Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 [information subject to judicial notice must be relevant to the issue at hand].)

The Court’s tentative ruling dated 14 September 2012, does not bear the judge’s signature and is not the official order of the Court. Moreover, the tentative ruling is not part of the Court’s record in this case. Because it is not a record of the court or otherwise part of the file in this case, Defendant’s request for judicial notice of the tentative ruling is DENIED.

Defendant’s Motion for Summary Judgment filed on 28 February 2014, on the other hand, is part of the Court’s file in this case and relevant to the matter presently before the Court. Defendant’s request for judicial notice of that document is therefore GRANTED.

Defendant also requests that the Court take judicial notice of several other documents pursuant to Evidence Code section 452, subdivision (h). Specifically, Defendant asks the Court to notice the following documents: (1) a copy of information available to the general public from Plaintiff’s Facebook webpage; (2) a copy of information relating to sharing private information with the general public from the online “Help Center” of Facebook.com; (3) a copy of Bank of America’s Personal Schedule of Fees; and (4) a copy of Bank of America’s Deposit Agreement and Disclosures. Plaintiff filed an objection to the Court taking judicial notice of these documents on 11 April 2014. For the reasons set forth below, these documents are not proper subjects of judicial notice.

Evidence Code section 452, subdivision (h), authorizes judicial notice of “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” According to the California Supreme Court, the facts covered by section 452, subdivision (h), include those “which are widely accepted as established by experts and specialists in the natural, physical, and social sciences which can be verified by reference to treatises, encyclopedias, almanacs and the like or by persons learned in the subject matter.” (StorMedia, Inc. v. Sup. Ct. (1999) 20 Cal.4th 449, 456-457.) Copies of pages from websites and unauthenticated documents from a bank do not fall within this rubric.

In this day and age in which documents (and website documents in particular) are easily electronically modified, authentication of such documents is a prerequisite to judicial notice. (See Duronslet v. Kamps (2012) 203 Cal.App.4th 717, 737 [declining to judicially notice information on an unauthenticated website].) Because Defendant has not provided the Court with information sufficient to show the website and bank documents are “not reasonably subject to dispute” and “capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy,” Defendant’s request for judicial notice of the website and bank documents is DENIED. (Evid. Code, § 452, subd. (h); Duronslet, supra, 203 Cal.App.4th at p. 737.)

B. Plaintiff’s Request

On 11 April 2014, at the same time Plaintiff filed his reply brief in support of his motion to compel, Plaintiff also filed a request for judicial notice. Plaintiff requests that the Court take judicial notice “of all the pleadings, including the motions and oppositions, in the above-entitled actions under Evidence Code §452(d).”

California Rules of Court, rule 3.1306(c) provides that “[a] party requesting judicial notice of material under Evidence Code sections 452 or 453 must provide the court and each party with a copy of the material.” (Cal. Rules of Court, rule 3.1306(c).) The rule continues: “If the material is part of a file in the court in which the matter is being heard, the party must: (1) Specify in writing the part of the court file sought to be judicially noticed; and (2) Make arrangements with the clerk to have the file in the courtroom at the time of the hearing.” (Cal. Rules of Court, rule 3.1306(c)(1) & (2).) Additionally, California Rules of Court, rule 3.1113(l) provides that “[a]ny request for judicial notice must be made in a separate document listing the specific items for which notice is requested.” (Cal. Rules of Court, rule 3.1113(l).)

Evidence Code section 453 requires parties seeking judicial notice to “(a) [g]ive[] each adverse party sufficient notice of the request . . . and (b) [f]urnish the court with sufficient information to enable it to take judicial notice of the matter.” (Evid. Code, § 453, subds. (a) & (b).) If the party does not satisfy the notice requirement of Evidence Code section 453, the court may decline to take judicial notice. (Evid. Code, § 453, Law Revision Com. com.)

Plaintiff’s one sentence request for the Court to take judicial notice of any and all pleadings and motions filed in this case does not comply with the California Rules of Court, rules 3.1306 and 3.1113(l) or Evidence Code section 453. Plaintiff’s request for judicial notice is therefore DENIED.

II. Defendant’s Motion for Protective Order

Pursuant to Code of Civil Procedure sections 2017.020 and 2019.030, Defendant seeks an order limiting the scope of discovery and restricting the frequency and extent of Plaintiff’s discovery methods. More specifically, Defendant asks the Court to declare (1) that Plaintiff is not entitled to further discovery of Defendant’s financial records, (2) “that Plaintiff is to refrain from further propounding voluminous, burdensome, and irrelevant discovery[,]” and (3) that Defendant be relieved of any further requirement to appear at oral deposition. (Def.’s Notice of Mot. for Protective Order, p. 2.) Additionally, Defendant asks the Court to “seal” previously produced financial records, limit access to financial records (whether previously produced or produced in the future) to Plaintiff’s attorney, and “issue a blanket, ongoing protective order prohibiting Plaintiff from using the discovered information for any purpose other than the ensuing litigation.” (Id.)

Defendant asserts that she is entitled to the above relief primarily for two reasons: (1) Plaintiff’s five rounds of discovery requests are overwhelmingly voluminous, duplicative, and designed to annoy and harass her; and (2) Plaintiff has taken her private financial information and communications between the parties’ counsel and posted the information on his Facebook account.

In opposition to Defendant’s motion, Plaintiff asserts that the information and documents he seeks are relevant, that the only reason the discovery has been so voluminous is because Defendant has not been forthcoming in her responses to his requests, and the present motion for a protective order is just another example of Defendant’s refusal to provide relevant discovery. The opposition does not address Plaintiff’s dissemination of Defendant’s financial records on his Facebook account.

A. Limiting the Frequency and Extent of Discovery

Code of Civil Procedure section 2019.030 provides that “[t]he court shall restrict the frequency or extent of use of a discovery method . . . if it determines either of the following: (1) The discovery sought is unreasonably cumulative or duplicative . . . [or] (2) The selected method of discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, and the importance of the issues at stake in the litigation.” (Code Civ. Proc. [“CCP”], § 2019.030, subd. (a)(1) & (2).) “The court may make these determinations pursuant to a motion for a protective order . . . .” (CCP, § 2019.030, subd. (b).) To prevail on a motion for a protective order under section 2019.030, the moving party bears the burden of establishing that the discovery at issue is either cumulative or duplicative, or unduly burdensome. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 402.)

Providing the Court with some context as to how discovery has proceeded in this case, Defendant first points out that Plaintiff has served 35 form interrogatories, 322 special interrogatories, 62 requests for admission, 108 requests for production of documents, and 428 document requests pursuant to a deposition notice, and two deposition subpoenas for the production of business records served on two financial institutions.

Defendant contends that many of the requests contained in Plaintiff’s SI 5 and RPD 5 (and in particular, those at issue in Plaintiff’s motion to compel further responses) are duplicative of previous discovery requests. In support of her motion, Defendant has filed all five sets of Plaintiff’s previous discovery requests and her responses to those requests. The documents, including the parties’ moving papers, take up eleven volumes of the court’s file in this case and, although the documents are not sequentially numbered, the pages number well into the thousands. For the reasons set forth below, the Court finds that SI 5 Nos. 34 through 40 and RPD 5 Nos. 8, 9, and 11 (the requests at issue in Plaintiff’s motion to compel with the exception of RPD 5 No. 17) are duplicative of previous discovery requests.

1. Plaintiff’s Special Interrogatories

Plaintiff served Defendant with his first set of special interrogatories (“SI 1”) on 3 May 2012. SI 1 No. 1 asked whether Defendant ever received, took possession of, or had control over “any checking accounts, savings accounts, investment accounts, other depositary accounts, checks, or funds that belonged to or were payable to or for EDGAR MORAZAN and/or TERESA MORAZAN.” (Decl. of Boyes in Supp. of Mot. for Protective Order, Ex. B-1, p. 3.) SI 1 No. 2 then asked Defendant to provide an answer to the following:

Identify each such checking accounts, savings accounts, investment accounts, other depositary accounts, checks, and funds that belonged to or were payable to or for EDGAR MORAZAN and/or TERESA MORAZAN that you . . . received, took possession of, and/or controlled of at any time from January 1, 2007 to the Date of your Answers, setting forth the dates, amounts, institutions, any account numbers and other identifying criteria for each such item.

(Id.) SI 1 No. 4 asked Defendant to identify the same information as to any accounts that anyone other than Defendant had control over. SI 1 No. 5 then asked, as to the accounts identified in response to SI 1 Nos. 2 and 4, that Defendant “describe with specificity and in detail how each such checking account, savings account, investment account, other depositary account, check, and funds, were expended or otherwise used, tracing each such account and funds from the date of receipt . . . to the ultimate use or disposition of such accounts and funds.” (Id., p. 4.) SI 1 No. 11 then asked Defendant to identify all of her own bank accounts, “identifying the same by name and address of the institution, account numbers, and all names on each such account.” (Id., p. 5.)

Plaintiff served Defendant with his second set of SI (“SI 2”) on 6 December 2012. SI 2 No. 1 asked Defendant to:

Identify each account (by stating the institution, account numbers, and other identifying information) into which any money and/or property of or that at any time belonged to EDGAR MORAZAN and/or TERESA MORAZAN, was deposited at any time from January 1, 2007 to the DATE OF YOUR ANSWERS.

(Decl. of Boyes in Supp. of Mot. for Protective Order, Ex. B-2, p. 3.) SI 2 No. 3 sought the same information for any money that was deposited prior to 1 January 2007. For each account identified in SI 2 Nos. 1 and 2, SI 2 No. 3 asked Defendant to identify all persons who were listed as an owner on such account, and SI 2 Nos. 5 and 9 asked Defendant to identify all money and property that belonged, and did not belong, to Edgar and Teresa. For each item of money and property identified, SI 2 No. 10 asked Defendant to state all facts that support her claim that the property did not belong to Edgar and Teresa. SI 2 No. 11 asked Defendant to identify all persons with knowledge of those facts and, for each person identified, SI 2 No. 12 asked for the identification of the facts known or believed to be within that person’s knowledge. Finally, for each account and each item of money and property identified, SI 2 Nos. 13 and 15 asked Defendant to identify all documents and records that relate thereto.

Following a motion to compel further responses to Plaintiff’s SI 1, and an order granting that motion, Defendant served Plaintiff with amended responses to SI 1. (Decl. of Boyes in Supp. of Mot. for Protective Order, Ex H-3.) Defendant’s amended responses indicated that she was a signer on a joint bank account with her father and that, after her father’s death, the settlement proceeds were deposited directly into two accounts in Defendant’s name. Defendant also provided Plaintiff with the three bank account numbers at issue.

Plaintiff served Defendant with his third set of special interrogatories (“SI 3”) on 7 February 2013. SI 3 No. 1 listed one of the three bank accounts identified by Defendant in her amended responses and then asked Defendant to:

[D]escribe and identify with specificity and in detail all DOCUMENTS and records of an/or related to such account that YOU, YOUR attorney, YOUR accountant, and ANYONE ACTING ON YOUR BEHALF have ever possessed, including but not limited to any and all account statements, canceled checks, and other records of deposits, bill payments, transfer records, debit card payments and other withdrawals.

(Decl. of Boyes in Supp. of Mot. for Protective Order, Ex B-3.) SI 3 Nos. 2 and 3 then asked the same question as to the other two accounts.

On 1 March 2013, Plaintiff filed a motion to compel further response to SI 2. On 30 April 2013, Plaintiff filed a motion to compel further responses to SI 3. The Court heard arguments on both motions on 24 May 2013, and entered an order on the motions on 10 July 2013 (the “July 10 Order”). In the July 10 Order, the Court noted that Defendant had objected to many of the requests in SI 2 on the ground that they were duplicative of the requests in SI 1. However, because Defendant did not set forth the wording of SI 1 so that the Court could evaluate whether the interrogatories were in fact duplicative, the Court overruled the objection and ordered Defendant to serve Plaintiff with verified, code-compliant further responses, without objections to SI 2 Nos. 5, 9-10, 13 and 15-17. As to Plaintiff’s motion to compel further responses to SI 3, the Court denied the motion, finding that the requests in SI 3 were duplicative of those included in SI 2. The Court stated the following:

The instant discovery is cumulative and duplicative of the discovery that was the subject of Motion 1, which sought to identify accounts, monies and properties at issue, and called for the identification and production of documents and records related to the same. The instant discovery requests information largely encompassed by those prior requests. For example, SI2 Nos. 13 and 15 asked Janet to identify all documents and records that relate to the accounts, monies and properties identified. Now, SI3 Nos. 1-3 ask Janet to identify all documents and records that relate to 1 of the 3 identified accounts. Furthermore, the stated reason for propounding the instant discovery and for seeking further responses thereto is that Janet has not provided meaningful responses to the discovery. However, as set forth in Section C, supra, Janet shall be required to provide full and complete responses to the discovery that is the subject of Motion 1. The more appropriate course of action is to enforce that order, rather than propound hundreds of additional and repetitive discovery requests. Finally, the Court notes that, notwithstanding various objections, Janet has largely indicated that all documents and records in her possession, custody, or control have been identified and produced. The Court does not weigh on the truthfulness of those responses. However, to the extent that Marvin believes the responses are inaccurate, the more prudent course is to issue subpoenas to the third party account servicers. If it is ultimately shown that Janet failed to identify and/or produce all responsive documents, sanctions may be sought and imposed. (See Pate v. Channel Lumber Co. (1997) 51 Cal.App.4th 1447, 1455.) Accordingly, further responses to SI3 and RPD3 are not required.

(July 10 Order, p. 7.)

Following the July 10 Order, Defendant served Plaintiff with supplemental responses and Plaintiff took the Court’s advice and served business records subpoenas on Citibank and Wells Fargo in August and September 2013 and received documents from Citibank.

On 23 September 2013, Plaintiff served Defendant with his fourth set of special interrogatories (“SI 4”). SI 4 sets forth 103 interrogatories, which seek information about specific documents—such as checks—that were identified in response to the three previous sets of SI or produced through three previous sets of RPD.

On 23 December 2013, Plaintiff served Defendant with his fifth set of special interrogatories (“SI 5”). As discussed more fully below, SI 5 Nos. 34 through 40 once again ask Defendant to identify any and all accounts (and related information) into which the parties’ parents’ money was deposited.

2. Plaintiff’s Requests for Production of Documents

The facts relating to Plaintiff’s RPD are much the same as the facts related to Plaintiff’s SI.

Plaintiff served Defendant with his second set of RPD (“RPD 2”) on 6 December 2012. RPD 2 No. 1 sought all checks, account statements, deposit records, memoranda, accountings, notes, records and other documents that relate to the accounts into which any money or property belonging to Edgar and/or Teresa was deposited. RPD 2 No. 2 sought all checks, account statements, deposit records, memoranda, accountings, notes, records and other documents that relate to accounts into which any money or property from any accounts covered by RPD 2 No. 1 was transferred. RPD 2 No. 3 sought all records that reflect the owners and/or signers on each account for which records are provided in response to RPD 2 Nos. 1-2.

On 7 February 2013, Plaintiff served Defendant with his third set of RPD (“RPD 3”). RPD 3 includes 28 requests and sought, among other things, “[a]ny and all statements, charge slips, payment records, memoranda, accountings, notes, and other DOCUMENTS and records” relating to credit card accounts, debit card accounts, and transfers of money from the three bank accounts identified in Defendant’s amended responses to Plaintiff’s SI 1—the joint bank account to which Defendant was a co-signer with her father and the two accounts into which the settlement proceeds were deposited following the parties’ father’s death.

As with the SI, on 1 March 2013, Plaintiff filed a motion to compel further response to RPD 2 and, on 30 April 2013, Plaintiff filed a motion to compel further responses to RPD 3. The Court heard arguments on both motions on 24 May 2013 and entered an order on the motions on 10 July 2013 (the “July 10 Order”). The Court granted Plaintiff’s motion as to RPD 2 Nos. 1-4, stating that “[t]o the extent that responsive documents held by financial institutions are under Janet’s control, she must produce them.” (July 10 Order, p. 5.) However, as with its analysis of the SI, the Court denied Plaintiff’s motion to compel further responses to RPD 3, stating that the document requests were “unreasonably cumulative and duplicative in light of the prior discovery.” (Id., p. 7.)

On 23 December 2013, Plaintiff served Defendant with his fifth set of RPD (“RPD 5”). As discussed below, notwithstanding the Court’s July 10 Order, RPD 5 Nos. 8, 9, and 11 seek documents relating to bank accounts in the names of Defendant, her husband, and her children, into which any of the parties’ parents’ money was transferred.

3. Analysis

Defendant asserts that SI 5 Nos. 34 through 40 and RPD 5 Nos. 8, 9, and 11 are duplicative of prior discovery requests. For the reasons outlined below, the Court agrees.

SI 5 No. 34 asks Defendant to:

IDENTIFY by providing the name of the institution, the address, and account number of each bank, savings and loan, investments and other depositary account into which any money and/or property of the PARENTS, or either of them, including that came DIRECTLY, INDIRECTLY OR SUCCESSIVELY from any such accounts in which there was at any time any money or property of the PARENTS, or either of them, at any time from January 1, 2007, to the DATE OF YOUR ANSWERS.

(Decl. of Boyes in Supp. of Mot. for Protective Order, Ex B-5.) In SI 5 Nos. 35-40, Plaintiff goes on to ask additional questions about the accounts identified in response to SI 5 No. 34.

Concerning the document requests, RPD 5 No. 8 seeks the following documents:

Any and all checks, cancelled checks, account statements, deposit records, memoranda, accountings, notes, records, and other DOCUMENTS of, or that relate to, any and all accounts of Bank of America in name of YOU and/or YOUR husband, and/or as to which YOU and or YOUR husband have had or have any signing rights . . . into which was deposited any money or property of, or that at any time belonged to, EDGAR MORAZAN and/or TERESA MORAZAN, and/or which in any way came from [the three accounts identified by Defendant in response to Plaintiff’s first set of SI] . . . .

(Decl. of Boyes in Supp. of Mot. for Protective Order, Ex D-5, emphasis added.) RPD 5 No. 9 seeks the same information with regard to Defendant’s children and RPD 5 No. 11 seeks the same information but expands the scope from “Bank of America” to “any and all accounts at any and all other banks . . . other than Bank of America.” (Id.)

As an initial matter, SI 5 No. 34 is a fragment sentence and, technically speaking, does not identify what it is asking Defendant to identify. Stripped of all the qualifying language, SI 5 No. 34 reads as follows: “IDENTIFY . . . each bank . . . account into which any money . . . of the PARENTS . . . in which there was at any time any money[,] . . . at any time from January 1, 2007, to the DATE OF YOUR ANSWERS.” Defendant asserts that the interrogatory is unintelligible. The Court would tend to agree but for the fact that Plaintiff has sought the same information in four previous sets of interrogatories.

As an additional initial matter, the parties spend an inordinate amount of time arguing whether Defendant’s bank account information is relevant and whether the information is protected by the right of privacy. As to the latter, the answer is clearly yes—there is a fundamental right to privacy under the California Constitution to personal financial information. (See Fortunato v. Sup. Ct. (2003) 114 Cal.App.4th 475, 480 [recognizing privacy interest in a person’s financial affairs]; see also Valley Bank of Nevada v. Sup. Ct. (1975) 15 Cal.3d 652, 656-657.) Both of these matters, however, are non-issues. The Court has already ordered Defendant to produce information and documents responsive to Plaintiff’s SI 2 and RPD 2, which requested information and documents concerning “any and all” accounts into which the parties’ parents’ money was deposited or transferred. If money was transferred from the parties’ parents’ account into one of Defendant’s personal accounts, then such information would have had to be provided in accordance with the Court’s July 10 Order. To the extent that Defendant wishes to rehash relevance and privacy objections that were either not raised in her initial responses to SI 2 and RPD 2 or not justified in opposition to Plaintiff’s motion to compel further responses to those requests, the time to have raised those issues has long since expired.

Notwithstanding the above comments, the Court does agree that Defendant should not be required to respond to Plaintiff’s fifth sets of SI and RPD on the ground that the requests are duplicative. Turning now to that issue, in the context of the previous discovery requests, it is clear that Plaintiff is once again seeking information concerning the accounts into which his parents’ money was deposited or transferred. Having reviewed the voluminous record in this case, it is clear that Plaintiff has sought the same information in his first, second, third and fourth sets of interrogatories and document requests. Regardless of the wording of the interrogatories, they require Defendant to supply the same information, which generally falls into the following categories: (1) the identity of any accounts that the parties’ parents’ money was deposited or transferred; (2) the identity of the persons associated with the accounts; and (3) an explanation (including identification of various documents) of how the money was spent. The fact that some of the questions are more specific than others does not make them any less duplicative.

As the Court stated in its July 10 Order, Defendant has already been ordered to produce this information and, if Plaintiff believes that Defendant has not complied with the order, “[t]he more appropriate course of action is to enforce that order, rather than propound hundreds of additional and repetitive discovery requests.” (July 10 Order, p. 7, emphasis added.) The Court will not allow the same information to be sought through additional discovery requests. In sum, the Court finds that Plaintiff’s SI 5 and RPD 5 are unreasonably cumulative and duplicative in light of prior discovery. Accordingly, Defendant’s request that she not be required to respond to SI 5 Nos. 34-40 and RPD 5 Nos. 8, 9, and 11 is GRANTED.

The above discussion, however, does not end the Court’s analysis. Defendant not only asks the Court to relieve her of the responsibility of responding to SI 5 and RPD 5, but also asks the Court to declare that Plaintiff “is not entitled to further discovery of [any of] Defendant’s financial records” through any discovery method. (Def.’s Notice of Motion for Protective Order, p. 2.) Moreover, Defendant’s motion is not limited to financial records. Indeed, Defendant asks the Court to prohibit Plaintiff “from further propounding voluminous, burdensome, and irrelevant discovery” related to any topic. (Def.’s Notice of Mot. for Protective Order, p. 2.) In effect, Defendant is asking the Court to declare that Plaintiff is not entitled to any further discovery. Defendant, however, has not justified such far reaching relief.

As discussed above, in her papers, Defendant spends much of her time arguing that the financial records are private and irrelevant. That argument is rejected because the documents have already been found relevant and Defendant has been ordered to produce such documents. Defendant also argues that the volume of the discovery served by Plaintiff warrants an order declaring that Plaintiff is no longer entitled to further discovery. Defendant cites no authority, however, indicating that sheer volume of discovery requests operates as a basis to object to the requests. Standing alone, the fact that responses to discovery requests require a lot of work to answer is not a basis to object to discovery. (West Pico Furniture Co. v. Sup. Ct. (1961) 56 Cal.2d 407, 417-418 [holding that a party claiming that requested discovery is unduly burdensome must make a particularized showing of facts demonstrating hardship].) Further, Defendant has not persuaded the Court that, since SI 5 and RPD 5 are duplicative, Plaintiff should be prohibited from using other discovery methods to obtain the financial records. Many of Defendant’s responses to Plaintiff’s requests indicate that she does not have the records at issue. The fact that the discovery propounded on Plaintiff is duplicative is not a valid reason to prohibit Plaintiff from seeking the financial records that Defendant claims to no longer possess directly from the financial institutions.

Based on the above discussion, because Defendant has not justified her motion seeking an order prohibiting Plaintiff from seeking any further discovery in this case, the motion, as it pertains to all forms of discovery other than Plaintiff’s SI 5 and RPD 5, is DENIED.

B. Other Forms of Relief

In addition to limiting the frequency and scope of discovery in this case, Defendant also asks the Court to (1) “seal” previously produced financial records, and (2) limit access to financial records (whether previously produced or produced in the future) to Plaintiff’s attorney, and “issue a blanket, ongoing protective order prohibiting Plaintiff from using the discovered information for any purpose other than the ensuing litigation.” (Def.’s Notice of Mot. for Protective Order, p. 2.)

1. Request to Seal Documents

Defendant argues that, to avoid annoyance, embarrassment, oppression, or an abuse of the Civil Discovery Act, the Court is permitted to—and should—issue a protective order requiring that Defendant’s financial information be sealed. In support of this argument, Defendant cites Cobb v. Superior Court (1979) 99 Cal.App.3d 543, 551. For the reasons set forth below, that case does not support Defendant’s argument.

In Cobb, the trial court ordered the defendant to answer certain questions asked during his deposition relating to his financial affairs and ordered the defendant to respond to certain interrogatories seeking the defendant’s net worth for specific years. (Id., at p. 546.) The financial information was being sought in connection with the plaintiff’s claim for punitive damages. (Id.) The Defendant petitioned the court of appeal for a writ of mandate seeking to set aside the trial court’s order. The court of appeal granted the petition, holding that the trial court failed to exercise its discretion by failing to consider factors relevant to the framing of an appropriate protective order, including consideration of whether the plaintiff should be required to establish a prima facie case for punitive damages before proceeding with discovery and whether the information should be sealed. (Id., at pp. 550-551.)

Defendant’s reliance on Cobb is misplaced. Cobb dealt with discovery of financial information relevant to a claim for punitive damages. Evidence related to punitive damages is subject to different rules than ordinary discovery. Civil Code section 3295 expressly provides that “[n]o pretrial discovery by the plaintiff shall be permitted with respect to [evidence of punitive damages] unless the court enters an order permitting such discovery.” (Civ. Code, § 3295, subd. (c).) With respect to claims for punitive damages, the court may order that such information be produced on the condition that it is sealed until after liability is established. (See Cobb, supra, 99 Cal.App.3d at p. 551.)

Because the financial information sought in this case is not related to a claim for punitive damages, the case law governing the sealing of such information does not apply. Defendant cites no other authority authorizing the Court to seal her financial information in this case. Because Defendant has failed to establish the propriety of the relief requested, her motion to seal the financial records produced in this case is DENIED.

2. Attorneys’ Eyes Only

Defendant seeks an order limiting access to her financial records (whether previously produced or produced in the future) to Plaintiff’s attorney and limiting Plaintiff from using the discovered information for any purpose other than the ensuing litigation.

The court may enter a protective order limiting disclosure of financial information to the discovering party’s attorneys and barring disclosure to the client, if the party seeking the order demonstrates good cause. (GT, Inc. v. Sup. Ct. (1984) 151 Cal.App.3d 748, 754-756.)

Defendant asserts that good cause exists for such relief because Plaintiff has already disseminated Defendant’s private financial information by posting scanned copies of Defendant’s checks (obtained by Plaintiff through discovery) on Plaintiff’s Facebook webpage. Plaintiff asserts that Defendant is posting the financial information on his Facebook account for no other reason than to harass Defendant.

In his opposition to Defendant’s motion for a protective order, Plaintiff does not address the request that the Court limit the disclosure of Defendant’s financial records to Plaintiff’s counsel. The opposition is accompanied by a declaration submitted by Plaintiff. In the declaration, Plaintiff does not contest the fact that he has posted images of Defendant’s financial records on his Facebook account. Plaintiff states that, “[a]s to any posting I made on Facebook, I want to be clear that my attorney had no input or prior knowledge of any postings I posted.” (Decl. of Marvin Morazan, ¶ 12.) He further suggests that the reason he posted the image of the check on Facebook was because he is “upset” with his sister, stating:

Defendant’s actions, and her refusal to provide material and relevant information and records as to the accounts into which my parents’ money and property was transferred, and the many transactions my sister, the Defendant, carried out, and her claim to not have any records as to all of those unexplained transactions she conducted and for which she used that money, is extremely upsetting to me.

(Id.)

The Court agrees with Defendant that good cause exists for a protective order limiting access to the financial records disclosed through discovery to Plaintiff’s attorney. It has been held that a protective order is appropriate where a plausible danger that confidential information obtained through discovery will be publicly disseminated for spite or due to an hostile animus between the parties. (See GT, Inc., supra, 151 Cal.App.3d at pp. 755-756.) Here, the threat is not only plausible, it is uncontested—Plaintiff has admitted that he posted the image of Defendant’s check on his Facebook account and suggested that he did so because he is angry with his sister.

Based upon the above discussion, the Court finding good cause, Defendant’s motion for a protective order limiting access to her financial information to Plaintiff’s counsel and prohibiting Plaintiff from using the discovered information for any purpose other than the ensuing litigation is GRANTED. Any further financial records produced by Defendant in this case shall be for Plaintiff’s attorney’s eyes only and Plaintiff shall be limited to using any of Defendant’s financial records (whether previously produced or produced in the future) only for the purpose of the ensuing litigation.

C. Conclusion

In accordance with the above discussion, Defendant’s motion for a protective order is GRANTED IN PART and DENIED IN PART. Because he Court finds that Plaintiff’s SI 5 and RPD 5 are duplicative and cumulative of prior discovery requests, Defendant’s motion to limit discovery is GRANTED as it pertains to SI 5 Nos. 34 through 40 and RPD 5 Nos. 8, 9, and 11. Defendant’s request that the Court prohibit Plaintiff from seeking any further discovery is DENIED.

The Court further finds that Defendant has failed to cite any authority justifying the sealing of her financial records. The motion as it pertains to sealing of records is therefore DENIED.

Finally, because the Court finds that Defendant has established good cause for a protective order limiting access to her financial records to Plaintiff’s counsel and prohibiting Plaintiff from using information disclosed through discovery for any purpose other than the ensuing litigation, the motion is GRANTED as to that relief.

D. Requests for Monetary Sanctions

Both parties seek monetary sanctions in connection with Defendant’s motion for a protective order. Defendant requests monetary sanctions against Plaintiff and his counsel in the amount of $3,765 (or $4,395 if Plaintiff contests a tentative ruling in Defendant’s favor), and Plaintiff requests monetary sanctions against Defendant and her counsel in an amount between $11,375 and $12,000.

Code of Civil Procedure section 2019.030 provides that the court shall impose monetary sanctions 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.

Because Defendant’s motion for a protective order is granted in part and denied in part, the Court finds that Defendant acted with substantial justification in bringing the motion and Plaintiff acted with substantial justification in opposing the motion. The parties’ requests for sanctions are therefore DENIED.

III. Plaintiff’s Motion to Compel Further Responses

Plaintiff seeks an order compelling further responses to SI 5 Nos. 34 through 40 and RPD 5 Nos. 8, 9, 11, and 17.

As indicated in the Court’s evaluation of Defendant’s motion for a protective order, SI Nos. 34 through 40 and RPD 5 Nos. 8, 9, and 11 relate to three categories of information:(1) the identity of any accounts that the parties’ parents’ money was deposited or transferred; (2) the identity of the persons associated with the accounts; and (3) an explanation (including identification of various documents) of how the money was spent. As discussed more fully above, these requests are duplicative of prior discovery requests and the Court has granted Defendant’s motion for a protective order insofar as she seeks an order relieving her of the obligation to respond to the duplicative requests. Accordingly, Plaintiff’s motion to compel further responses to SI 5 Nos. 34 through 40 and RPD 5 Nos. 8, 9, and 11 is DENIED.

The only remaining request at issue is RPD 5 No. 17.

A. Legal Standard

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)
(3) A representation of inability to comply is inadequate, incomplete, or evasive.
(4)
(5) An objection in the response is without merit or too general.
(6)
(CCP, § 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.” (CCP, § 2031.310, subd. (b)(1); Kirkland v. Sup. Ct. (2002) 95 Cal.App.4th 92, 98.) 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.)

B. Analysis

RPD 5 No. 17 seeks “Any and all correspondence of and/or between any and all legal counsel who represented YOUR parents, EDGAR MORAZAN and/or TERESA MORAZAN, including correspondence to YOU, at any time.” (Pl.’s Separate Statement, p. 16.) Defendant objected on the grounds of undue burden, over breadth, relevance, vagueness, privacy, the attorney-client privilege, Business and Professions Code section 6068 (duty to maintain client information in confidence) and 6149 (confidentiality of fee contract), and Evidence Code section 952 (lawyer-client privilege). Defendant did not provide a substantive response.

As to good cause, Plaintiff asserts that “[t]he request is to make sure that there were no unknown communications between attorneys for the parents relating numerous [sic] matters, including but not limited to estate planning, will, succession matters, etc.” (Pl.’s Separate Statement, p. 17.) Defendant argues that the request “bears no relevance upon the subject matter of the action, or Plaintiff’s causes of action.” (Def.’s Separate Statement, p. 30.) The Court disagrees.

As an initial matter, it is well settled that, in the discovery context, relevance is to be construed liberally in favor or disclosure (see Emerson Electric Co. v. Sup. Ct. (1997) 16 Cal.4th 1101, 1107), and “the standard is relevancy to the subject matter, which is determined by potential, not actual, issues in the case.” (National Steel Products Co. v. Sup. Ct. (1985) 164 Cal.App.3d 476, 492 [emphasis added].) Case law makes clear that the “relevancy of the subject matter” criterion is “a broader concept than ‘relevancy to the issues.’” (Pac. Tel. and Tel. Co. v. Sup. Ct. (1970) 2 Cal.3d 161, 172, quoting Chronicle Publishing Co. v. Sup. Ct. (1960) 54 Cal.2d 548, 560.)

One of the issues in this case is whether Defendant had the authority to dispose of her parents’ money. Contrary to Defendant’s position, documents such as a will or communications between the parties’ parents and their attorneys concerning the disposition of their property after their deaths is relevant to whether Defendant had the authority to dispose of the parties’ parents’ property. The Court therefore finds good cause justifying the discovery.

Because Plaintiff has established good cause, the burden shifts to Defendant to justify her objections. (Kirkland, supra, 95 Cal.App.4th at p. 98.)

Defendant only attempts to justify her relevance, overbreadth, and attorney-client privilege objections. The remaining objections are therefore overruled.

Defendant’s overbreadth and relevance objections are intertwined. In other words, Defendant argues that the request is overly broad because it seeks irrelevant information. Because the Court finds that the request seeks relevant information, Defendant’s overbreadth and relevance objections are overruled.

Concerning the attorney-client privilege, Defendant asserts that the request calls for the production of documents covered by the privilege, but does not explain why. In his motion, Plaintiff asserts that the privilege does not apply, and directs the Court to Evidence Code section 957, which provides that “[t]here is no privilege under this article as to a communication relevant to an issue between parties all of whom claim through a deceased client, regardless of whether the claims are by testate or intestate succession, nonprobate transfer, or inter vivos transaction.”

In her opposition, Defendant does not address the applicability of Evidence Code section 957. Because the burden is on Defendant to justify her objections, and she has failed to contest Plaintiff’s assertion that the attorney-client privilege is inapplicable in this case under Evidence Code section 957, Defendant’s objection on the basis of the attorney-client privilege is overruled.

The only other argument Defendant makes on this issue is that Plaintiff has no factual basis for assuming that Defendant has any of her parents’ legal records or would have been privy to the parties’ parents’ privileged conversations. (Def.’s Separate Statement, p. 30.) If Defendant does not have such documents, then she is required to say so in a verified response. (CCP, § 2031.230 [governing representations of inability to comply with document demands and providing that].)

Based upon the above discussion, the Court finds that Plaintiff has set forth good cause justifying the discovery and that Defendant has failed to justify her objections to RPD 5 No. 17. Plaintiff’s motion to compel further responses to RPD 5 No. 17 is therefore GRANTED.

C. Requests for Monetary Sanctions

Both parties seek monetary sanctions in connection with Plaintiff’s motion to compel further responses. Neither party, however, cites the proper statutory basis for their request.

Code of Civil Procedure, section 2023.040 states:

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.

1. Defendant’s Request

In the “Conclusion” section of her opposition, Defendant asks that the Court grant her request for monetary sanctions. The request is somewhat anomalous because Defendant never makes a request for sanctions in her opposition to Plaintiff’s motion. Because Defendant has not set forth any basis for an award of sanctions, her request is therefore DENIED.

2. Plaintiff’s Request

Plaintiff cites Code of Civil Procedure sections 2023.030 and 2025.450 as the statutory grounds for his request for sanctions. Neither section authorizes an award of sanctions in this case. Section 2023.030 only authorizes an award of sanctions for the misuse of the discovery process “[t]o the extent authorized by the chapter governing any particular discovery method.” (CCP, § 2023.030, subd. (a), emphasis added.) The other section cited by Plaintiff, section 2025.450, relates to a party’s failure to comply with a deposition notice and is facially inapplicable to Plaintiff’s motion to compel further responses, which relates to interrogatories and document requests.

Because Plaintiff has failed to cite any authority authorizing an award of sanctions, his request is DENIED.

Conclusion and Order

Defendant’s request for judicial notice is GRANTED as to Defendant’s Motion for Summary Judgment filed on 28 February 2014, and otherwise DENIED.

Plaintiff’s request for judicial notice is DENIED.

Defendant’s motion for a protective order is GRANTED IN PART and DENIED IN PART. The motion is GRANTED as to Defendant’s request that she be relieved of her obligation to respond to SI 5 Nos. 34 through 40 and RPD 5 Nos. 8, 9, and 11. The motion is further GRANTED as to Defendant’s request that her financial records be designated as “Attorneys’ Eyes Only” and prohibiting Plaintiff from using the discovered information for any purpose other than the ensuing litigation. The motion is otherwise DENIED.

Both parties’ requests for monetary sanctions in connection with Defendant’s motion for a protective order are DENIED.

Plaintiff’s motion to compel further responses is GRANTED IN PART and DENIED IN PART. The motion is GRANTED as to RPD 5 No. 17. The motion is otherwise DENIED. Accordingly, Defendant shall serve a verified, code-compliant further response to RPD 5 No. 17, without objection, and produce documents in conformity with such response, within 20 calendar days of the filing of this Order.

Both parties’ requests for monetary sanctions in connection with Plaintiff’s motion to compel further responses are DENIED.