Shaheen v. Alizadeh, et al. CASE NO. 113CV249725
DATE: 18 April 2014 TIME: 9:00 LINE NUMBER: 15
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 motions of Raymond Shaheen (“Plaintiff”) to compel further responses to Set One of Plaintiff’s Form and Special Interrogatories and Set One of Plaintiff’s Demand for Inspection and Production and for monetary sanctions was argued and submitted. On 15 April 2014 Azita Alizadeh (“Defendant”) responded to the motion “without opposition.” Defense counsel states that he is a single attorney office without assistance and the press of business has exhausted his resources. He states that the documents, to the extent they can be identified from archived sources, will be reviewed and produced as soon as possible. He is asking this Court to impose, if at all, reasonable sanctions.

I. Background

On 15 July 2011, Defendant issued a promissory note in Defendant’s favor for the amount of $524,291.71. The note stated that the principal balance and accrued interest (at a 15% rate on a yearly basis) would be due on 15 June 2012. Defendant allegedly defaulted on the note.

II. Discovery Dispute

On 19 July 2013, Plaintiff filed the complaint initiating this action.

On 09 August 2013, the Defendant was personally served with the complaint.

On 09 September 2013, Defendant’s counsel requested the deadline to file an answer to the complaint be extended to 07 October 2013.

On 08 October 2013, Defendant’s counsel requested the deadline to file an answer be extended to 16 October 2013. Plaintiff’s counsel granted the extension.

On 29 October 2013, Plaintiff served Defendant with Set One of Plaintiff’s Form and Special Interrogatories and Demand for Inspection and Production.

On 01 November 2013, 12 November 2013 and 18 November 2013, Plaintiff’s counsel emailed and left voice messages for Defendant’s counsel requesting to select a mediator.

On 27 November 2013, Defendant’s counsel contacted Plaintiff’s counsel to confirm a mediator. Mediation was scheduled for 20 January 2014, but Defendant’s counsel canceled the mediation on 16 January 2014 and failed to pay the mediator’s retainer fee, which had been due on 15 January 2014, until 24 January 2014.

On 27 November 2013, Plaintiff’s counsel granted Defendant’s counsel’s request to extend the deadline to respond to Plaintiff’s discovery requests from 03 December 2013 to 16 December 2013.

On 02 December 2013, Defendant’s counsel requested the deadline to respond to Plaintiff’s discovery requests be extended to a date following mediation, but Plaintiff’s counsel denied the request.

On 13 December 2013, Defendant served her responses to Plaintiff’s pending discovery.

On 16 January 2014, Plaintiff’s counsel requested an extension to serve responses to Defendant’s discovery requests, which were due on 21 January 2014. Defendant’s counsel did not reply, and Plaintiff filed timely responses.

On 22 January 2014, Defendant’s counsel responded to Plaintiff’s request for an extension, stating “you denied me an extension when I asked for it in relation to the mediation. Sauce for the gander?” The same day, Plaintiff sent a meet and confer letter requesting further responses to Plaintiff’s form interrogatories by 28 January 2014.

On 16, 21, 22, 28, and 31 January 2014, Plaintiff’s counsel attempted to set dates for mediation but Defendant’s counsel did not provide specific dates.

On 27 January 2014, Plaintiff requested further responses by 04 February 2014 and the deadline to file a motion to compel further responses to interrogatories was extended to 01 March 2014.

On 06 February 2014 and 11 February 2014, Plaintiff’s counsel emails requesting Defendant’s supplemental responses.

On 12 February 2014, Plaintiff’s deadline to file a motion to compel further responses was extended to 28 March 2014.

On 28 February 2014, Plaintiff’s counsel sent an email requesting Defendant’s supplemental responses to Set One of Plaintiff’s Form and Special Interrogatories and Set One of Plaintiff’s Demand for Inspection and Production by 07 March 2014.

On 14 March 2014, Plaintiff’s counsel sent an email informing Defendant’s counsel that a motion to compel would be filed.

On 25 March 2014, Plaintiff filed the motions at hand.

On 15 April 2014, Defendant filed “responses” to Plaintiff’s motions without opposition. Defendant’s counsel attributes the failure to provide further responses to “the press of business” and requests this be taken into consideration.

III. Discussion

A. Motion to Compel Further Responses to Set One of Plaintiff’s Form and Special Interrogatories

A party propounding interrogatories may move to compel further response if: “(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,” or “(3) An objection to an interrogatory is without merit or too general.” (Code of Civil Procedure Section 2030.300(a).) Such a motion must include a meet and confer declaration under Section 2016.040. (Code of Civil Procedure Section 2030.300(b).)

A meet and confer declaration must show a reasonable and good faith attempt at an informal resolution as to each issue addressed in the motion. (Code of Civ. Proc. § 2016.040.) “The level of effort at informal resolution that satisfies the ‘reasonable and good faith attempt’ standard depends upon the circumstances.” (See Stewart v. Colonial Western Agency, Inc. (2d Dist. 2001) 87 Cal.App.4th 1006, 1016.) In a simple case, a modest effort may suffice. (See Obregon v. Superior Court (2d Dist. 1998) 67 Cal.App.4th 424, 431 (noting that relevant factors include: 1) whether a “legitimate discovery objective is demonstrated[,]” 2) “[t]he time available before the motion filing deadline,” 3) “the extent to which the responding party was complicit in the lapse of available time,” and 4) “whether . . . additional effort appeared likely to bear fruit”).) An adequate attempt at informal resolution may be completed through written communications, such as a single letter followed by a response which refuses concessions. (Id. at 432.)

The party propounding interrogatories waives the right to move to compel further responses unless notice of the motion was given “within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing[.]” (Code of Civil Procedure Section 2030.300(c).)

Plaintiff alleges that Defendant’s responses to Set One of Plaintiff’s Form and Special Interrogatories are generally insufficient, improper, evasive or non-responsive. Specifically, Plaintiff argues the Defendant’s responses to the following interrogatories are “grossly insufficient and improper.”

1. Special Interrogatories (“SI”) Nos. 2-26

Defendant generally objected to the Plaintiff’s SIs on various grounds. Objections to interrogatories must be stated separately according to the interrogatory to which they pertain, not stated generally. (See Code of Civil Procedure Section 2030.210(a)(3); Scottsdale Ins. Co. v. Superior Court (1997) 59 Cal.App.4th 263, 275). Therefore, Defendant’s general objections will not be considered in discussing Plaintiff’s motion.

Defendant’s responses to Plaintiff’s Special Interrogatories were as follows:

SI No. 2: “Objection, vague and ambiguous as to negotiate with plaintiff.” Plaintiff argues that these objections are improper, evasive, lacking in legal merit and without justification. As the question relates to the promissory note at the heart of this action, the Court believes Defendant’s objections to be meritless.

SI No. 3: “N/A.” Plaintiff argues that this response is evasive, non-responsive and factually devoid. The question asked for Defendant’s understanding of the terms of the note at the heart of this action. This is an incomplete response.

SI No. 4: “N/A.” Plaintiff argues that this response is evasive, non-responsive and factually devoid. The question asked for identification of documents and tangible things supporting Defendant’s understanding of the terms of the note at the heart of this action. This is an incomplete response.

SI No. 5: “N/A.” Plaintiff alleges that this response is evasive, non-responsive and factually devoid. The question asked for identification of documents and tangible things supporting Defendant’s understanding of the terms of the note at the heart of this action. This is an incomplete response.

SI No. 6: “Objection, irrelevant and not reasonably calculated to lead to discoverable information; vague and ambiguous as to borrowed any money.” Plaintiff argues that these objections are improper, evasive, lacking in legal merit and without justification. As this matter concerns unpaid debts, the Court does not believe that an interrogatory addressing whether Defendant borrowed money from Plaintiff in the last 5 years is irrelevant. Therefore, Defendant’s objections are meritless. While the dispute centers on a promissory note issued on 15 July 2011, the five-year period is justified as it addresses the note’s general time period and the Plaintiff may wish to use evidence of other loans to support his case. Therefore, the Court believes Defendant’s objections to be meritless.

SI No. 7: “N/A.” Plaintiff argues that this response is evasive, non-responsive and factually devoid. The interrogatory requests the amount Defendant borrowed if the response to SI No. 6 was anything other than “no.” Again, establishing whether Plaintiff owes payment to Defendant for the promissory note is an essential issue in this action, therefore a response is warranted. Defendant’s response is incomplete.

SI No. 8: “N/A.” Plaintiff argues that this response is evasive, non-responsive and factually devoid. The interrogatory requests the date Defendant borrowed money from Plaintiff if the response to SI No. 6 was anything other than “no.” Limiting the date in SI No. 6 to 15 July 2011 makes this interrogatory unnecessary. Therefore, Defendant need not produce further response here.

SI No. 9: “N/A.” Plaintiff argues that this response is evasive, non-responsive and factually devoid. The interrogatory requests the amount of money Defendant has repaid Plaintiff. Determining whether Defendant actually owes money to Plaintiff is essential for Plaintiff to prove damages. Therefore, this is an incomplete response.

SI No. 10: Defendant did not respond. Plaintiff argues this is an evasive response. The interrogatory requests facts relating to how the borrowed money was used if the response to SI No. 6 was anything other than “no.” Defendant’s reply does not specify why this question was not answered. This is an incomplete response.

SI No. 11: “Objection, prematurely calls for expert opinion, and invades attorney client privilege; vague and ambiguous as to contention regarding agreement with the terms of the note, particularly since the note calls for usurious interest.” Plaintiff argues that these objections are “improper, evasive, lacking in legal merit and without justification” since “[i]t is unnecessary to consult an expert or attorney to determine whether one agrees with the terms of a promissory note.” The interrogatory requests whether Defendant contests that she did not agree to the terms of the note. The interrogatory is relevant to determining whether or not Defendant consented to the terms in the note, not the fairness of those terms. Defendant’s agreement with the terms of the note does not implicate expert opinion or attorney client privilege. This is an evasive response.

SI No. 12: “N/A.” Plaintiff argues that this response is evasive, non-responsive and factually devoid. This interrogatory requests facts supporting the answer to SI No. 10 if the answer was anything other than “no.” This is an incomplete response.

SI No. 13: “N/A.” Plaintiff argues that this response is evasive, non-responsive and factually devoid. This interrogatory requests all documents and tangible things supporting the answer to SI No. 10 if the answer was anything other than “no.” This is an incomplete response.

SI No. 14: “N/A.” Plaintiff argues that this response is evasive, non-responsive and factually devoid. This interrogatory requests all identification of all persons Defendant believes to have knowledge or information supporting the answer to SI No. 10 if the answer was anything other than “no.” This is an incomplete response.

SI No. 15: “Objection, irrelevant and not reasonably calculated to lead to discoverable information; vague and ambiguous as to contention regarding different versions.” The interrogatory requests whether Defendant contends that different versions of the note exist. Plaintiff argues that the existence of different versions of the promissory note is a material issue in this action. Defendant’s Sixth Affirmative Defense in the answer to this complaint states that each of the complaint’s claims are “barred because of a modification by executed oral and written agreements.” The scope of discovery includes information relating to a claim or defense of any party to the action. Therefore, this interrogatory is properly within the scope of discovery as it would aid in determining what modified versions the Defendant contends exist. The objections are without merit.

SI No. 16: “N/A.” Plaintiff argues that this response is evasive, non-responsive and factually devoid. This interrogatory requests all facts supporting the Defendant’s answer to SI No. 14 if the answer was anything other than “no.” This is an incomplete response.

SI No. 17: “N/A.” Plaintiff argues that this response is evasive, non-responsive and factually devoid. This interrogatory requests the identification of all documents and tangible things supporting the Defendant’s answer to SI No. 14 if the answer was anything other than “no.” This is an incomplete response.

SI No. 18: “N/A.” Plaintiff argues that this response is evasive, non-responsive and factually devoid. This interrogatory requests the identification of all persons Defendant believes to have knowledge or information supporting the Defendant’s answer to SI No. 14 if the answer was anything other than “no.” This is an incomplete response.

SI No. 19: “N/A.” Plaintiff argues that this response is evasive, non-responsive and factually devoid. The interrogatory asks if Defendant contends that Plaintiff is responsible for any damage or harm alleged in the complaint. The scope of discovery includes information relating to a claim or defense of any party to the action. Therefore, this interrogatory is properly within the scope of discovery as it would provide information relevant to either party’s claims or defenses. This is an evasive response.

SI No. 20: “See response to Form Interrogatory 17.1, Request 11.” Plaintiff argues that an interrogatory answer containing a reference to another document must summarize the contents of that document so the answer is fully responsive. This interrogatory requests all facts supporting the Defendant’s answer to SI No. 18 if the answer was anything other than “no.” This is an insufficient response, for “if a question does require the responding party to make reference to a pleading or document, the pleading or document should be identified and summarized so the answer is fully responsive to the question.” (See Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 784, superseded on other grounds as stated in Guzman v. General Motors Corp. (1984) 154 Cal.App.3d 438.)

SI No. 21: “See Responses to Request for Production of Documents.” Plaintiff argues that an interrogatory answer containing a reference to another document must summarize the contents of that document so the answer is fully responsive. This interrogatory requests the identification of all documents and tangible things supporting the Defendant’s answer to SI No. 18 if the answer was anything other than “no.” This is an insufficient response. (See Deyo, 84 Cal.App.3d at 784.)

SI No. 22: “Azita Alizadeh, Abe Alizadeh, Mitra Alizadeh and possibly others familiar with the business transaction underlying the relationship between Plaintiff and Defendant.” Plaintiff argues that the phrase “’possibly others familiar with the business transaction’ is a deftly worded conclusory answer designed to evade a series of explicit answers” and that Defendant is required to also provide addresses, telephone numbers, and email addresses for all identified persons. This interrogatory requests the identification of all persons Defendant believes to have knowledge or information supporting the Defendant’s answer to SI No. 18 if the answer was anything other than “no.” Plaintiff’s SIs defined “identify,” with respect to persons, to include name, last known address, phone number, and email address. Defendant’s answer is evasive and incomplete for the reasons identified by the Plaintiff. (See Deyo, 84 Cal.App.3d at 784.)

SI No. 23: Defendant did not respond. Plaintiff argues this is an evasive response. The interrogatory requests whether Defendant contends that any part of the note is unenforceable. This interrogatory is within the scope of discovery as it seeks information relating to the parties’ claims or defenses. Therefore, Defendant’s response is incomplete.

SI No. 24: Defendant did not respond. Plaintiff argues this is an evasive response. The interrogatory requests facts supporting the Defendant’s answer to SI No. 22 if anything other a “no.” Defendant’s response is incomplete.

SI No. 25: Defendant did not respond. Plaintiff argues this is an evasive response. The interrogatory requests identification of documents and tangible things supporting the Defendant’s answer to SI No. 22 if anything other a “no.” Defendant’s response is incomplete.

SI No. 26: Defendant did not respond. Plaintiff argues this is an evasive response. The interrogatory requests identification of persons Defendant believes to have knowledge or information supporting the Defendant’s answer to SI No. 22 if anything other a “no.” Defendant’s response is incomplete.

2. Form Interrogatories (“FI”)

Defendant generally objected to the Plaintiff’s FIs on various grounds. Objections to interrogatories must be stated separately according to the interrogatory to which they pertain, not stated generally. (See Code of Civil Procedure Section 2030.210(a)(3); Scottsdale Ins. Co. v. Superior Court (1997) 59 Cal.App.4th 263, 275). Therefore, Defendant’s general objections will not be considered in discussing Plaintiff’s motion.

FI No. 2.5: Defendant responded to Plaintiff’s request for Defendant’s present residence address and residence addresses for the last five years by providing only a city and zip code. Plaintiff argues that this response is incomplete and evasive. As Plaintiff’s FIs specified that address “means the street address,” the Defendant’s response is incomplete.

FI No. 14.1: Plaintiff’s interrogatory requested whether Defendant or anyone on Defendant’s behalf contends that any person in the event giving rise to this claim violated a statute, ordinance, or regulation which was a legal cause of the underlying event and, if so, the identification of such person’s name, address, and phone number and the statute, ordinance, or regulation allegedly violated. Defendant’s response consisted of the statement, “Yes, interest rate is unlawful.” Plaintiff argues that the response is “evasive, incomplete and asserts an unsupported legal conclusion.” Defendant’s response is incomplete as it addresses only part of Plaintiff’s interrogatory.

FI No. 15.1: Plaintiff’s interrogatory requests the Defendant identify each denial of a material allegation and special or affirmative defense in Defendant’s pleadings and state all facts upon which they are based, the names, addresses and phone number of persons having knowledge of those facts, and the identification of documents supporting the denial or defenses and the name, address and phone number of persons possessing those documents. Defendant responded with a disclaimer that any response unsupported by facts could not be construed as a waiver and a brief statement claiming the promissory note “was intended as an accommodation to Dr Shaheen for a loan modification; $524,291.17 was not received by Defendant, Plaintiff represented he would not collect; money received was repaid; Interest rate usurious.” Plaintiff argues this response is evasive as Defendant’s Answer contained thirteen affirmative defenses and that Defendant must separately identify each denial of a material allegation, identify each corresponding affirmative defense, and identify the names, addresses and phone numbers of all persons with knowledge of facts supporting the affirmative defenses. Defendant’s response is incomplete for the reasons identified by the Plaintiff.

FI No. 16.3: The interrogatory asks whether Defendant contends that the injuries or “extent” of the injuries claimed by Plaintiff during the discovery proceedings were not caused by the underlying event and, if so, to identify the injury, state all supporting facts, and identify persons or documents supporting those facts or contentions. Defendant response consisted only of statements that Plaintiff “had other problems with money and not receiving money from the government as a result of medical changes” and that “[t]he PN was intended as an accommodation to loan modification.” Defendant’s response is incomplete as it does not identify the Plaintiff’s injuries Defendant contends to not have been caused by the underlying event or identify any persons or documents supporting those contentions.

FI No. 17.1: The interrogatory requests that Defendant state the request number, all facts upon which Defendant’s response was based, and identify any persons or documents supporting the responses to Plaintiff’s requests for admission served with the interrogatories other than unqualified admissions. Defendant responded by identifying requests Nos. 8 – 11 and briefly stating that Defendant “did not receive $524.291.17,” that “over $300,000 was repaid,” that “[t]he interest rate is usurious,” and that “[h]ad Plaintiff not withdrawn from the commitment to the operations, he would have recouped more money.” Plaintiff argues that these responses are “incomplete, conclusory, evasive, and factually devoid” because Defendant’s responses to Requests for Admission (RFA) 1 – 7 were not unqualified and Defendant failed to state all facts upon which the qualified or partial admissions were based and identify persons with knowledge or documents supporting those admissions. Plaintiff also argues that Defendant’s responses as to RFA 8 – 11 were evasive and conclusory and failed to provide specific facts supporting the response and identifying persons with knowledge or documents supporting those admissions. Therefore, the Defendant’s response is incomplete.

Plaintiff has established that the Defendant’s responses to Plaintiff’s SI Nos. 2-26 are evasive or incomplete and objections were without merit. The interrogatories seek information that is material to the parties’ claims or defenses, such as whether the note was negotiated between Plaintiff and Defendant, what Plaintiff understood the notes terms to mean. Plaintiff has shown multiple attempts to meet and confer. Plaintiff has not waived the right to make this motion because the parties agreed to extend Plaintiff’s deadline to file a motion to compel further responses to 28 March 2014 and Plaintiff filed this motion on 25 March 2014.

The motion is GRANTED. Defendant shall provide further responses to SI Nos. 2 – 26 and FI Nos. 2.5, 14.1, 15.1, 16.3, and 17.1 within 20 days of the date of the filing of this Order.

B. Motion to Compel Further Responses to Set One of Plaintiff’s Demand for Inspection and Production

A party may seek a motion to compel further responses to requests for production or inspection of documents (“RPD”) if it deems that the responses received meet any of the following standards: 1) A statement of compliance is incomplete; 2) A representation of inability to comply is inadequate, incomplete, or evasive; or 3) An objection in the response is too general or without merit. (Code of Civil Procedure § 2031.310(a); see Korea Data Systems Co. Ltd. v. Superior Court (4th Dist. 1997) 51 Cal.App.4th 1513, 1516.)

A motion to compel further production is code-compliant only if: 1) The motion sets forth specific facts showing good cause justifying the discovery sought by the demand; and 2) The motion is accompanied by a meet and confer declaration. (Code of Civil Procedure § 2031.310(b).) A meet and confer declaration must show a reasonable and good faith attempt at an informal resolution as to each issue addressed in the motion. (Code of Civ. Proc. § 2016.040.) Once good cause is demonstrated, the burden falls on the party resisting production to justify the objection. (See Kirkland v. Superior Court (2d Dist. 2002) 95 Cal.App.4th 92, 98.)

A response raising an objection must identify the document or other tangible thing being objected to and identify the specific ground for objection. (Code of Civil Procedure §§ 2031.240(b)(1)-(2).) A party can object to all or part of an item of category of items in the demand to produce. (Code of Civil Procedure §§ 2031.240(a).)

Defendant generally objects to the Plaintiff’s Request for Production on various grounds. None of these general objections specifies a particular item or class of items in the demand to produce, and will therefore not be considered by this Court.

Defendant’s objections as to specific documents and tangible things are discussed below:

RPD 1: Plaintiff demands all tangible things identified or relating to Defendant’s responses to Form Interrogatories, Set One. Defendant responded with the statement, “To the extent they can be identified and located they will be produced.” Plaintiff argues that this is not a code-compliant response as it is not an agreement to comply, a representation to comply or an objection within the requirements of Code of Civil Procedure Section 2031.210(a). Defendant’s response is not code-compliant as it fails to state that documents or things in that category in Defendant’s possession, custody or control will be produced or that a diligent search and reasonable inquiry has been made to locate the demanded item and provide the reason the Defendant is unable to comply.

RPD 2: Plaintiff demands all documents and tangible things identified or relating to Defendant’s response to Special Interrogatories, Set One. Defendant responded with the statement, “To the extent they can be identified and located they will be produced.” Plaintiff argues that this is not a code-compliant response as it is not an agreement to comply, a representation to comply or an objection within the requirements of Code of Civil Procedure Section 2031.210(a). Defendant’s response is not code-compliant as it fails to state that documents or things in that category in Defendant’s possession, custody or control will be produced or that a diligent search and reasonable inquiry has been made to locate the demanded item and provide the reason the Defendant is unable to comply.

RPD 3: Plaintiff requests any documents and things relating to monetary transactions between Defendant and plaintiff within the last three years. Defendant responded with the statement, “To the extent they can be identified and located they will be produced.” Plaintiff argues that this is not a code-compliant response as it is not an agreement to comply, a representation to comply or an objection within the requirements of Code of Civil Procedure Section 2031.210(a). Defendant’s response is not code-compliant as it fails to state that documents or things in that category in Defendant’s possession, custody or control will be produced or that a diligent search and reasonable inquiry has been made to locate the demanded item and provide the reason the Defendant is unable to comply.

RPD 4: Plaintiff requests any documents and tangible things relating to the note. Defendant responded with the statement, “To the extent they can be identified and located they will be produced.” Plaintiff argues that this is not a code-compliant response as it is not an agreement to comply, a representation to comply or an objection within the requirements of Code of Civil Procedure Section 2031.210(a). Defendant’s response is not code-compliant as it fails to state that documents or things in that category in Defendant’s possession, custody or control will be produced or that a diligent search and reasonable inquiry has been made to locate the demanded item and provide the reason the Defendant is unable to comply.

RPD 5: Plaintiff requests any documents and tangible things relating to any negotiations concerning the note. Defendant responded with the statement, “To the extent they can be identified and located they will be produced.” Plaintiff argues that this is not a code-compliant response as it is not an agreement to comply, a representation to comply or an objection within the requirements of Code of Civil Procedure Section 2031.210(a). Defendant’s response is not code-compliant as it fails to state that documents or things in that category in Defendant’s possession, custody or control will be produced or that a diligent search and reasonable inquiry has been made to locate the demanded item and provide the reason the Defendant is unable to comply.

RPD 6: Plaintiff requests any documents and tangible things relating to any transactions you made with money Defendant borrowed from Plaintiff. Defendant responded with the statement, “To the extent they can be identified and located they will be produced.” Plaintiff argues that this is not a code-compliant response as it is not an agreement to comply, a representation to comply or an objection within the requirements of Code of Civil Procedure Section 2031.210(a). Defendant’s response is not code-compliant as it fails to state that documents or things in that category in Defendant’s possession, custody or control will be produced or that a diligent search and reasonable inquiry has been made to locate the demanded item and provide the reason the Defendant is unable to comply.

RPD 7: Plaintiff requests any communications between Defendant and Plaintiff relating to any monetary transactions between Defendant and Plaintiff within the last years. Defendant responded with the statement, “To the extent they can be identified and located they will be produced.” Plaintiff argues that this is not a code-compliant response as it is not an agreement to comply, a representation to comply or an objection within the requirements of Code of Civil Procedure Section 2031.210(a). Defendant’s response is not code-compliant as it fails to state that documents or things in that category in Defendant’s possession, custody or control will be produced or that a diligent search and reasonable inquiry has been made to locate the demanded item and provide the reason the Defendant is unable to comply.

RPD 8: Plaintiff requests any communications between Defendant and Plaintiff relating to the note. Defendant responded with the statement, “To the extent they can be identified and located they will be produced.” Plaintiff argues that this is not a code-compliant response as it is not an agreement to comply, a representation to comply or an objection within the requirements of Code of Civil Procedure Section 2031.210(a). Defendant’s response is not code-compliant as it fails to state that documents or things in that category in Defendant’s possession, custody or control will be produced or that a diligent search and reasonable inquiry has been made to locate the demanded item and provide the reason the Defendant is unable to comply.

RPD 9: Plaintiff requests any communications between Defendant and Plaintiff relating to negotiations concerning the note. Defendant responded with the statement, “To the extent they can be identified and located they will be produced.” Plaintiff argues that this is not a code-compliant response as it is not an agreement to comply, a representation to comply or an objection within the requirements of Code of Civil Procedure Section 2031.210(a). Defendant’s response is not code-compliant as it fails to state that documents or things in that category in Defendant’s possession, custody or control will be produced or that a diligent search and reasonable inquiry has been made to locate the demanded item and provide the reason the Defendant is unable to comply.

Plaintiff has shown good cause justifying the discovery sought. Plaintiff has also shown multiple attempts to meet and confer. Defendant has made no attempt to justify the general objections.

The motion is GRANTED. Defendant shall provide further responses to RPD 1 -9 within 20 days of the date of the filing of this Order.

C. Request for Monetary Sanctions

Code of Civil Procedure, § 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.”

CEB, California Civil Discovery Practice, §15.46a: “Notice of Motion and Motion” states”

“As a practical matter, the motion and notice of motion are usually combined into one document entitled ‘Notice of Motion and Motion to Compel.’ The motion, an application to a court to make an order (CCP §1003), must contain all of the following (Cal Rules of Ct 3.1112(d)):

• Identity of the party or parties bringing the motion;

• Name of the parties to whom the motion is addressed; and

• Brief statement of the basis for the motion and the relief sought, including whether the moving party requests sanctions, against whom the sanction is sought and the type of sanctions (CCP §2023.040).

The notice of motion must contain all of the following information (CCP §1010):

• Date, time, and place of the hearing;

• Grounds on which the motion is being made, including whether the moving party requests sanctions, against whom the sanction is sought, and the type of sanctions (CCP §2023.040); and

• Papers and other items supporting the motion.

In addition, the notice of motion must state ‘in the opening paragraph the nature of the order being sought and the grounds for issuance of the order. Cal Rules of Ct 3.1110(a).

JUDGE’S PERSPECTIVE: All relief sought by the motion, including whether the moving party requests sanctions, should be stated in the notice of motion and, if possible, identified in the title of the motion, not just argued in the supporting memorandum.”

Plaintiff makes a request for monetary sanctions. The request is not code-compliant. (Code of Civil Procedure, § 2023.040.) Code of Civil Procedure section 2023.030(a) 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.” As such, section 2023.030 does not provide an independent basis for an award of sanctions. Section 2023.010 defines acts that constitute misuses of the discovery process, and does not itself set forth any provisions regarding the issuance of a monetary sanction. Code of Civil Procedure Section 2031.310(h) provides for mandatory sanctions against a party who unsuccessfully opposes a motion to compel further response to a demand, however, Defendant filed a reply without opposition and, therefore, has not actually opposed the motion.

Plaintiff requests a total of $7,570.00, consisting of $7,200.00 for 30 hours of attorney fees at a rate of $240.00 per hour consisting of meet and confer efforts, preparation of the motions to compel and supporting papers, the estimated time to prepare for, travel to, and attend the hearings on the motions, and $370.00 for $120.00 for the motion filing fees, $125.00 for copy costs and counter-filing service of the motions, and $125.00 for delivery of and copy costs for chamber copies of the motions.

The request for monetary sanctions is DENIED.

IV. Conclusion

Plaintiff’s motion to compel further responses to Plaintiff’s interrogatories is GRANTED. Defendant shall provide further responses to SI Nos. 2 – 26 and FI Nos. 2.5, 14.1, 15.1, 16.3, and 17.1 within 20 days of the date of the filing of this Order.

Plaintiff’s motion to compel further responses to Plaintiff’s request for production or inspection of documents is GRANTED. Defendant shall provide further responses to RPD 1 -9 within 20 days of the date of the filing of this Order.

Plaintiff’s request for monetary sanctions is DENIED.