| Albin Engineering Services, Inc. et al. v. Mark Whalls |
CASE NO. 113CV242581 |
|
| DATE: 25 April 2014 |
TIME: 9:00 |
LINE NUMBER: 19 |
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 408.882.6856 and the opposing party no later than 4:00 PM Thursday 24 April 2014. Please specify the issue to be contested when calling the Court and counsel.
On 25 April 2014, the motion of defendant and cross-complainant Mark Whalls (“Mr. Whalls”) to compel further responses to special interrogatories (“SI”) was argued and submitted. Cross-defendant Mark Albin (“Mr. Albin”) filed a formal opposition to the motion in which he requests monetary sanctions.
At the outset, the Court would like to remind counsel that “[e]ach exhibit must be separated by a hard 8½ by 11 sheet with hard paper or plastic tabs extending below the bottom of the page, bearing the exhibit designation. An index to exhibits must be provided.” (Cal. Rules of Court, rule 3.1110(f).) Reading declarations with numerous exhibits that are not separated by tabs is time consuming and distracts the Court’s attention from the merits of the motion.
Statement of Facts
This action arises out of the establishment and eventual demise of a business relationship between Mr. Whalls and Mr. Albin. Mr. Whalls was introduced to Mr. Albin while working as a senior partner for an executive search firm, Kaye Bassman International Corporation (Kaye Bassman), located in Texas. Mr. Whalls’ job was to assist other military veterans in their job search efforts. Mr. Whalls alleges that Mr. Albin made representations to him which induced him to move to California and create a certified service disabled veteran owned business, Albin Engineering Group, Inc., (“AEG”) with Mr. Albin.
AEG and Albin Engineering Services, Inc. (“AESI”) (collectively “Plaintiffs”) purportedly entered into an agreement with Kaye Bassman to purchase the rights to use client lists and solicit various clients from Kaye Bassman. Plaintiffs allege that Mr. Whalls executed a promissory note and commercial guaranty making him responsible for the payment of monies resulting from the purchase of rights from Kaye Bassman. The promissory note was due on 31 December 2010. Plaintiffs allege that Mr. Whalls failed to make payment pursuant to the promissory note and commercial guaranty.
On or about 1 November 2009, AEG and Mr. Whalls entered into an executive employment agreement in which Mr. Whalls was employed as an executive of the company. The agreement contained various provisions regarding Mr. Whalls’ departure from AEG and allegedly provided that if Mr. Whalls left the company for any reason, he would pay any of the unpaid balance that was owed to Kaye Bassan, in addition to any outstanding draw. Plaintiffs allege that on or about 26 August 2011, Mr. Whalls voluntarily resigned from his employment and did not pay the unpaid balance owed to Kaye Bassman.
On 8 March 2013, Plaintiffs filed the operative complaint against Mr. Whalls alleging a cause of action for breach of contract. Mr. Whalls filed a cross-complaint against Plaintiffs and Mr. Albin on 6 May 2013, asserting causes of action for breach of contract, promissory estoppel, fraud, negligence, and accounting.
Discovery Dispute
On 14 August 2013, Mr. Whalls served a first set of SI on Mr. Albin. (See Price Dec., p. 2:4-5.) Mr. Albin served timely responses to the SI on 9 October 2013. (See Price Dec., p. 2:7-9.) Mr. Whalls’ deadline for filing a motion to compel further responses to the SI was 28 November 2013. (See Opp’n., p. 2:12-13.)
On 21 November 2013, Mr. Whalls’ counsel wrote to Mr. Albin’s counsel and requested an extension of time to move to compel further responses. (See Krog Dec., p. 2:4-6.) Mr. Whalls’ counsel advised that he had not had an opportunity to evaluate Mr. Albin’s responses to the SI and he did not “anticipate being in a position to evaluate those response [sic] or determine if a meet and confer letter is necessary for several weeks.” (See Krog Dec., Ex. 1, p. 1.) Mr. Albin’s counsel agreed to extend the time Mr. Whalls had to file his motion until 12 December 2013. (See Krog Dec., p. 2:6-7.)
On 6 December 2013, Mr. Albin’s counsel sent a letter to Mr. Whalls’ counsel as a follow-up to a case management conference in this case. (See Price Dec., Ex. C, p. 1-2.) Mr. Albin’s counsel stated that it was her understanding that Mr. Whalls’ counsel intended to “engage in further discovery, including potential meet and confers regarding the discovery produced to date, as well as several depositions and other extensive discovery.” (See Price Dec., Ex. C, p. 1.) Mr. Albin’s counsel recommended that the parties conduct mediation “prior to either side’s incurring further significant attorney’s fees and costs.” (See Price Dec., Ex. C, p. 1.)
Mr. Whalls’ counsel responded via email on 10 December 2013, and stated that he agreed with the conservation of resource approach and would agree to mediation, but would need a further extension of time so he could file a motion to compel further responses to the SI after the completion of the mediation. (See Price Dec., Ex. C, p. 4.)
On 11 December 2013, Mr. Albin’s counsel sent an email denying Mr. Whalls’ counsel’s request for an extension of time to file a motion to compel. (See Price Dec., Ex. C, p. 3-4.) Mr. Whalls’ counsel replied later the same day, at approximately 3:30 p.m., and requested a telephone conference for that afternoon or the following morning in order to meet and confer about Mr. Albin’s responses to the SI. (See Price Dec., Ex. C, p. 3.)
Mr. Whalls’ counsel did not receive a response and therefore sent a follow-up email the afternoon of 12 December 2013, requesting that Mr. Albin’s counsel contact him regarding possible hearing dates. (See Krog Dec., Ex. 2, p. 2.) Mr. Albin’s counsel replied via email advising that she had been handling other matters and was in meetings such that she had been unable to respond to the request to meet and confer. (See Krog Dec., Ex. 2, p. 1.) Thereafter, Mr. Whalls filed the instant motion to compel further responses to the SI, which was set for hearing on 4 February 2014.
On 4 February 2014, the Court continued the hearing to 21 March 2014, as the parties had scheduled a private mediation for 5 March 2014. On 21 March 2014, the Court continued the hearing once again to 25 April 2014, as the parties were engaged in ongoing settlement negotiations.
Mr. Albin filed opposition papers to the motion on 14 April 2014, in which he requests monetary sanctions. On 18 April 2014, Mr. Whalls filed reply papers.
I. Mr. Whalls’ Motion to Compel Further Responses to SI
Mr. Whalls moves to compel further responses to SI Nos. 1, 3, 5, 9-11, 19, 21, 23, 24, and 26. Mr. Albin opposes the motion and argues that his objections to the SI are warranted and his substantive responses are full and complete.
A. Meet and Confer
As a preliminary matter, Mr. Albin argues that the motion should be denied in its entirety because Mr. Whalls failed to adequately meet and confer.
A motion to compel a further responses to special interrogatories must be accompanied by a meet and confer declaration that sets forth facts showing a reasonable and good faith attempt at informal resolution of each issue presented. (Code of Civ. Proc. §§ 2016.040, 2030.300, subd. (b).) A serious effort at informal resolution requires that counsel “attempt to talk the matter over, compare their views, consult and deliberate.” (See Townsend v. Super. Ct. (1998) 61 Cal.App.4th 1431, 1433 [the informal resolution requirement is not fulfilled by bickering between counsel].) A determination as to whether attempts at informal resolution were adequate depends upon the particular circumstances. (See Obregon v. Super. Ct. (1998) 67 Cal. App. 4th 424, 431.) The court has discretion to deny discovery motions in the absence of adequate efforts to meet and confer, and even where a party has failed to meet and confer adequately, the court should “consider the proper remedy for [its] insufficient efforts.” (See Townsend v. Super. Ct., supra, 61 Cal.App.4th at p. 1439; Obregon v. Super. Ct, supra, 67 Cal.App.4th at p. 434-435.)
Mr. Albin persuasively argues that Mr. Whalls failed to adequately meet and confer. Mr. Whalls’ counsel did not attempt to engage in any meet and confer efforts until one day before the filing deadline for the motion to compel, 11 December 2013. Mr. Whalls’ counsel’s eleventh-hour request for a telephone conference to meet and confer does not constitute good faith efforts at informal resolution because he had approximately two months to attempt to meet and confer regarding the discovery at issue. Mr. Ablin’s counsel previously granted Mr. Whalls’ counsel a two-week extension of time to file his motion and, thus, it was not unreasonable for her to refuse the request for a second extension. Moreover, prior to filing the motion, Mr. Whalls’ counsel never advised Mr. Albin’s counsel that Mr. Albin’s responses to the SI were insufficient or apprised her of the reasons why a motion to compel was necessary.
Mr. Whalls’ counsel even declares that the “[m]oving party files this motion to compel without having engaged in any meet and confer.” (See Price Dec., p. 2:15-16.) Mr. Whalls argues unpersuasively that substantive efforts at informal resolution did not occur because Mr. Albin’s counsel indicated in the 6 December 2013 letter that Mr. Albin was interested in engaging in mediation to avoid the costs of further discovery. Even if this was the case, Mr. Whalls does not provide an explanation for why he did not engage in any attempts to meet and confer prior to 6 December 2013.
Accordingly, Mr. Whalls has failed to satisfy his obligation to meet and confer. Notwithstanding this failure, the Court exercises its discretion to address the merits of the motion because Mr. Whalls did engage in some last-minute attempts to meet and confer, and Mr. Albin requests monetary sanctions under Code of Civil Procedure section 2023.020, which provides an adequate remedy for Mr. Whalls’ insufficient efforts at informal resolution.
B. SI Nos. 1, 3, 5, 9-11, 19, 21, 23, 24, and 26
1. Legal Standard
After receiving responses to interrogatories, the propounding party may move for an order compelling further responses if the propounding party deems that any of the following apply: (1) the answer to a particular interrogatory is evasive or incomplete; (2) the exercise of the option to produce documents is unwarranted or the required specification of those documents is inadequate; or (3) the objection to an interrogatory is without merit or too general. (Code Civ. Proc., § 2030.300, subd. (a)(1)–(3).) The burden is on the responding party to justify any objections or failure to fully answer. (See Coy v. Super. Ct., supra, 58 Cal.2d at p. 220-221.)
2. Analysis
a. Undefended Objections
As an initial matter, Mr. Albin raised numerous objections in response to each and every one of the SI at issue. Except as expressly noted below, Mr. Albin does not attempt to defend his objections, and therefore, the Court finds that the undefended objections are without merit. (See Coy v. Super. Ct., supra, 58 Cal.2d at p. 220-221.)
b. SI Nos. 1 and 3
SI Nos. 1 and 3 ask Mr. Albin to describe all communications to which he and Mr. Whalls were participants that occurred on or before 1 November 2009 and during the time of Mr. Whalls’ employment with AEG. (See Whalls Sep. Stmt., p. 2:15-17, 5:10-12.) Mr. Albin objected to SI Nos. 1 and 3 as overbroad. (See Whalls Sep. Stmt., p. 2:19-24, 5:14-19.)
Without waiving that objection, Mr. Albin provided a substantive response to SI No. 1 stating generally that there were numerous discussions between him and Mr. Whalls, and describing several conversations between Mr. Whalls, Craig Silverman, Stephen Norred, and Jeff Kaye. Mr. Albin further responded that following the formation of AEG, “communications between Albin and Whalls continued on a weekly basis” and pertained to the operation of AEG, Mr. Whalls’ unsatisfactory performance, and Mr. Albin’s unwillingness to continue to subsidize AEG for the sole purpose of paying Mr. Whalls and his employees. (See Whalls Sep. Stmt., p. 2:26-27, 3:1-26, 4:1-15.)
Mr. Albin also provided a substantive response to SI No.3 in which he stated that responding to the SI would necessitate the preparation of a complication, abstract, or summary pursuant to Code of Civil Procedure section 2030.230 and the burden and/or expense of preparing the same would be substantially the same for both parties. Mr. Albin therefore indicated that responsive information was contained in the documents produced in response to Mr. Whalls’ request for production of documents to AEG. (See Whalls Sep. Stmt., p. 5:20-25.)
In his opposition, Mr. Albin argues that SI Nos. 1 and 3 are overbroad because they request all communications to which he and Mr. Whalls were participants without any limitation as to subject matter. The Court agrees that the SI as drafted are overbroad. The SI request all communications between Mr. Albin and Mr. Whalls and will elicit irrelevant information because they seek all communications regardless of the topic or subject matter discussed. Accordingly, further responses to SI Nos. 1 and 3 are not required.
c. SI No. 5
SI No. 5 asks Mr. Albin to describe all communications to which he and Mr. Whalls were participants that were related to the termination of the employment relationship between Mr. Whalls and AEG. (See Whalls Sep. Stmt., p. 7:1-4.) Mr. Albin objected to the SI as overbroad. Subject to that objection, Mr. Albin stated, in relevant part, that “the parties had weekly and bi-weekly status meetings the entire length of Whalls employment” during which Mr. Whalls would provide input, including projections of placements, the revenue from each placement, and status of key performance indicators. (See Whalls Sep. Stmt., p. 7:23-26.) Mr. Albin also stated that after Mr. Whalls’ first year of employment, Mr. Whalls stopped providing this input at meetings and was offered assistance. Mr. Whalls refused repeated requests to provide projections and refused to respond to emails. Mr. Albin then described specific conversations that took place in June 2011 between him and Mr. Whalls during the status meetings, as well as conversations that took place thereafter. (See Whalls Sep. Stmt., p. 8:1-16.)
In his opposition, Mr. Albin defends his objection to the SI as overbroad and argues that there were hundreds of communications to which Mr. Whalls and he were participants during the course of Mr. Whalls’ two-year employment. He further argues that SI No. 5 is overbroad because it “does not contain any ‘specific and explicit’ request for information as [to] communications related to Whalls’ termination.” (See Opp’n., p. 9:25-26.) Mr. Albin’s objection is not well-taken. The SI is not overbroad because it is limited in scope to all communications to which Mr. Albin and Mr. Whalls were participants that related to the termination of Mr. Whalls’ employment relationship with AEG. Thus, this objection is overruled.
Mr. Albin further asserts in his opposition that his answer is complete because he responded to the best of his recollection as to the circumstances and communications surrounding Mr. Whalls’ decision to leave with as much detail as he was able to recall. Conversely, Mr. Whalls asserts that Mr. Albin’s response is not complete or straightforward because it contains only a general description of some communications and does not supply specific information about each communication that took place between him and Mr. Albin about his termination.
Code of Civil Procedure section 2030.220, subdivision (a) states that each answer shall be as complete and straightforward as the information reasonably available to the responding party permits. The Court finds that Mr. Albin’s response is not evasive or incomplete because he states that he has described to the best of his recollection and with as much detail as he was able to recall, the communications surrounding Mr. Whalls’ termination. Accordingly, a further response to SI No. 5 is not required.
d. SI No. 9
SI No. 9 asks Mr. Albin to describe all communications made by him to any third party about his “appreciation of the hard work and sacrifices that veterans have made for our freedom.” (See Whalls Sep. Stmt., p. 9:14-18.) Mr. Albin objected to the SI as vague and irrelevant, and did not provide a substantive response.
In his opposition, Mr. Albin defends his objections to the SI as vague and irrelevant. He argues in a conclusory manner that “[t]his request was so vague that it is virtually impossible to tell what information Whalls is seeking.” (See Albin Sep. Stmt., p. 11:12-13.) On the contrary, the Court finds that the SI clearly requests specific information about communications made by Mr. Albin to third parties about his “appreciation of the hard work and sacrifices that veterans have made for our freedom.” (See Whalls Sep. Stmt., p. 9:14-18.) Thus, this objection is overruled.
With regard to Mr. Albin’s objection to the SI as irrelevant, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement thereof. (See Gonzalez v. Super. Ct. (1995) 33 Cal.App.4th 1539, 1546.)
In his motion, Mr. Whalls argues that the quoted language in the SI, regarding Mr. Albin’s “appreciation of the hard work and sacrifices that veterans have made for our freedom,” was on the face of AEG’s and AESI’s website at a time when they no longer had certified service disabled veteran status. (See Whalls Sep. Stmt., p. 9-10.) He asserts that the SI seeks information about statements made by Mr. Albin that are similar to the quoted language on AEG’s and AESI’s website. Mr. Whalls contends that these similar statements are relevant because they are communications made by Mr. Albin about AEG’s service disabled veteran status and he alleges that he was manipulated by Mr. Albin due to the fact that he is a service disabled veteran. (See Albin Sep. Stmt., p. 11:15.)
While misrepresentations or statements made by Mr. Albin about AEG’s or AESI’s certified status is certainly relevant to the allegations made in the cross-complaint, the Court remains unclear as to how information about Mr. Albin’s communications regarding his “appreciation of the hard work and sacrifices that veterans have made for our freedom” will lead to relevant admissible evidence. Thus, the relevancy objection is sustained. Accordingly, a further response to SI No. 9 is not required.
e. SI Nos. 10 and 11
SI Nos. 10 and 11 ask Mr. Albin to state all facts and circumstances related to his job title at AEG and associated job duties, and identify all documents related to the responsive facts and circumstances. Mr. Albin objected to the SI as vague and violating his right to privacy. (See Whalls Sep. Stmt., p. 10:17-23.)
In his opposition, Mr. Albin argues that information related to his separate employment with AEG is private and confidential, but does not cite any authority to support his position. Mr. Albin has therefore failed to justify his objection based on privacy. (See San Diego Professional Ass’n v. Super. Ct. (1962) 58 Cal.2d 194, 199; Coy v. Super. Ct. (1962) 58 Cal.2d 210, 220-221; Weil&Brown, California Practice Guide: Civil Procedure Before Trial (Rutter Group 2012) at 8:814.)
Mr. Albin further argues that the SI is vague because it is unclear what information is sought. (See Albin Sep. Stmt., p. 12:22-28.) Conversely, Mr. Whalls argues that the SI is not vague and seeks information about Mr. Albin’s job title and duties. Mr. Whalls points out that this information is central to his case because he alleges that Mr. Albin took control of AEG away from him in violation of the law regarding service disabled veteran operated businesses. The Court agrees that the SI as drafted is not so vague as to render the question unintelligible. (See Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783 [in order to justify a vagueness objection, the responding party must demonstrate that the request at issue is totally unintelligible].) While the SI could have indicated with more specificity the types of facts and circumstances sought, the question is reasonably clear and Mr. Whalls clarified in his reply papers that he seeks Mr. Albin’s job title and duties. (See Reply p. 13:12-16.) Thus, this objection is overruled. Accordingly, further responses to SI Nos. 10 and 11 are warranted.
f. SI No. 19
SI No. 19 asks Mr. Albin to describe all communications between him and any third party made after 1 November 2009 related to Minco Asia Pacific. (See Whalls Sep. Stmt., p. 12:1-2.) Mr. Albin objected to the SI as vague and overbroad. (See Whalls Sep. Stmt., p. 12:4-10.) Subject to this objection, Mr. Albin provided a substantive response to SI No. 5 which states that in October 2010, AESI entered into an agreement with Minco Asia Pacific pursuant to which AESI was hired to find an engineer to work for Minco Asia Pacific. AESI had some concern regarding payments being wired to a foreign country via AESI’s bank account because Minco Asia Pacific operates out of Singapore. Mr. Albin also stated that AESI carries a top secret status with the Department of Defense which grants it a cleared facility status. As a result of the top secret status, AESI made the decision to give AEG its business with Minco Asia Pacific to avoid any issues with the Department of Defense. (See Abiln Sep. Stmt., p. 14:15-19.) Mr. Albin stated that a copy of the services agreement between AEG and Minco Asia Pacific would be produced.
Mr. Albin’s objections based on vagueness and over breadth are overruled as the question clearly requests all communications with third parties related to Minco Asia Pacific and is limited to the period after 1 November 2009. (See Deyo v. Kilbourne (1978) 84 Cal.3d 771, 783.)
In his opposition, Mr. Albin argues that his response is complete as he responded to the SI to the best of his ability and with as much detail as he was able to provide. He asserts that he was unable to provide more detailed information because the SI is vague and overbroad as it requests all communications about Minco Asia Pacific rather than information related to a specific transaction. The Court disagrees and finds that Mr. Albin’s substantive response is evasive and incomplete because he did not describe a single communication made to a third party about Minco Asia Pacific, but instead generally described how AEG came to enter into a business agreement with Minco Asia Pacific. Accordingly, a further response to SI No. 19 is warranted.
g. SI No. 21
SI No. 21 asks Mr. Albin to describe all communications between him and “any governmental agency related to whether or not AEG was properly certified related to any particular transactions by or on behalf of AEG.” (See Whalls Sep. Stmt., p. 13:15-18.) Mr. Albin objected to the SI as vague. (See Whalls Sep. Stmt., p. 12:4-10.)
In his opposition, Mr. Albin argues in a conclusory manner that request is vague and unintelligible. Conversely, Mr. Whalls argues that the request is not vague as it requests a description of communications between Mr. Albin and any government agency that pertained to whether AEG was certified with respect to specific transactions that AEG performed. Mr. Whalls further notes that the term “certified” is defined in the SI as being verified or certified by a state or federal government or agency as a disabled veteran owned business. (See Price Dec., Ex. A, p. 2:19-21.) He points out that this information is central to this case because he alleges that Mr. Albin failed to operate AEG in a manner that was compliant with the laws regarding service disabled veteran businesses and made fraudulent representations to government agencies regarding AEG’s certified status.
The Court overrules Mr. Albin’s vagueness objection as the question requests information about communications made to governmental agencies about AEG’s certified status and is not so vague that the question is rendered unintelligible. (See Greyhound Corp. v. Super. Ct. (1961) 56 Cal.2d 355, 384-385; Calcor Space Facility, Inc. v. Super. Ct. (1997) 53 Cal.App.4th 216, 225.) Accordingly a further response to SI No. 21 is warranted.
h. SI Nos. 23 and 24
SI Nos. 23 and 24 ask Mr. Albin to describe any referrals made by him on behalf of AEG and any placements resulting from the referral by identifying the candidate, employer, and the date. (See Whalls Sep. Stmt., p. 14:16-18.) Mr. Albin objected to the SI as irrelevant and violating privacy rights. (See Whalls Sep. Stmt., p. 14:19-26.)
In his opposition, Mr. Albin argues that SI Nos. 23 and 24 ask for information relating to his employment and are therefore irrelevant because the complaint and cross-complaint address circumstances surrounding Mr. Whalls’ employment. Moreover, he asserts that “any such employment information relating to third parties [. . .] is protected as private and confidential.” (See Albin Sep. Stmt., p. 18:23-25.)
First, Mr. Albin’s single conclusory statement that the information sought violates third party privacy rights is insufficient to justify his objection based on privacy. (See San Diego Professional Ass’n v. Super. Ct. (1962) 58 Cal.2d 194, 199 [the burden is on the objecting party to justify its objection based on privacy rights]; Coy v. Super. Ct. (1962) 58 Cal.2d 210, 220-221; Weil&Brown, California Practice Guide: Civil Procedure Before Trial (Rutter Group 2012) at 8:814; Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35-37 [the objecting party must show that its clients possesses a legally protected privacy interest in the information sought and that their expectation of privacy is reasonable under the particular circumstances].) Thus, this objection is overruled.
Second, the information sought is relevant to Mr. Whalls’ claims that Mr. Albin engaged in fraud, abuse, and self-dealing. The information sought would tend to show whether Mr. Albin diverted the business of AEG to his solely owned company, AESI. Thus, this objection is overruled. Accordingly, further responses to SI Nos. 23 and 24 are warranted.
i. SI No. 26
SI No. 26 asks Mr. Albin to describe all information he has related to any change in the equity ownership of Mr. Whalls in AEG, including the date of any such change, the amount of the change, and the reason for the change. (See Whalls Sep. Stmt., p. 17:9-11.) Mr. Albin objected to the SI as vague. (See Whalls Sep. Stmt., p. 17:12-18.) Without waiving this objection, he provided a substantive response stating that an answer would require preparation of a summary or compilation under Code of Civil Procedure section 2030.230 and referred Mr. Whalls to see all documents produced in response to Mr. Whalls request for production of documents to AEG. (See Whalls Sep. Stmt., p. 17:19-27.)
In his opposition, Mr. Albin argues that the SI is vague and that it was impossible to determine “exactly what ‘change in equity ownership’ information” Mr. Whalls is seeking. (See Albin Sep. Stmt., p. 22:13-17.) He further asserts that he therefore responded in good faith by referring to the documents previously produced to Mr. Whalls, which included stock certificates, agreements relating to ownership, and communications about the ownership.
First, Mr. Albin’s objection to the SI as vague is overruled as it is clear that the SI requests information relating to any change made to Mr. Whalls equity ownership interest in AEG.
Second, Mr. Albin may not exercise the option provided by Code of Civil Procedure section 2030.230 because he has not submitted any evidence indicating that the SI necessitates making a compilation of documents and/or that the burden of preparing the compilation of documents would be substantially the same for Mr. Whalls as for himself. Mr. Albin’s references to AEG’s entire document production does not provide sufficient detail for Mr. Whalls to be able to identify responsive documents as readily as he can. (Deyo v. Kilbourne, supra, 84 Cal.App.3d at p. 784 [a broad statement that the information is available from a mass of documents is insufficient].) Accordingly, a further response to SI No. 26 is warranted.
3. Conclusion
Accordingly, Mr. Whalls’ motion is GRANTED IN PART and DENIED IN PART. The motion is GRANTED insofar as it seeks further responses to SI Nos. 10-11, 19, 21, 23-24, and 26. The motion is DENIED insofar as it seeks further responses to SI Nos. 1, 3, 5, and 9.
II. Mr. Albin’s Request for Monetary Sanctions
Mr. Albin requests monetary sanctions against Mr. Whalls and his counsel in the amount of $2,750.00 under Code of Civil Procedure sections 2023.020 and 2030.300, subdivision (d).
The court shall impose a monetary sanction against a party who unsuccessfully opposes a motion to compel further responses unless it finds the party “acted with substantial justification” or “other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2030.300, subd. (d).) Furthermore, Code of Civil Procedure section 2023.020 authorizes an award of sanctions against a party or attorney for failure to satisfy a meet and confer obligation, notwithstanding the outcome of the particular discovery motion.
Mr. Albin was only partially successful in his opposition to Mr. Whalls’ motion to compel. Thus, Mr. Whalls was substantially justified in bringing this motion and Mr. Albin is not entitled to sanctions under Code of Civil Procedure section 2030.300, subdivision (d). However, Mr. Whalls failed to adequately meet and confer prior to the filing of the motion and, therefore, Mr. Albin is entitled to monetary sanctions under Code of Civil Procedure section 2023.020.
Mr. Albin’s counsel declares that her hourly rate is $275.00 and she spent 7 hours preparing the motion. She also anticipates 3 hours preparing for and attending the hearing on this motion. The Court does not award sanctions for expenses not yet incurred. (See Code Civ. Proc. § 2023.030, subd. (a); Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551.) Consequently, the anticipated attorney fees are not compensable. The hourly rate and hours spent are otherwise reasonable. Accordingly, Mr. Albin’s request for monetary sanctions against Mr. Whalls and his counsel is GRANTED IN PART in the amount of $1,925.00.
Conclusion and Order
Mr. Whalls’ motion to compel further responses to SI Nos. 1, 3, 5, 9-11, 19, 21, 23, 24, and 26 is GRANTED IN PART and DENIED IN PART. The motion is GRANTED insofar as it seeks further responses to SI Nos. 10-11, 19, 21, 23-24, and 26. The motion is DENIED insofar as it seeks further responses to SI Nos. 1, 3, 5, and 9. Accordingly, within 20 days of the date of the filing of this Order, Mr. Albin shall serve verified code-compliant further responses to SI Nos. 19, 21, 23-24, and 26, without objections.
Mr. Albin’s request for sanctions is GRANTED IN PART in the amount of $1,925.00. Accordingly, Mr. Whalls and/or his counsel shall pay $1,925.00 to Mr. Albin’s counsel within 20 calendar days of the filing of this Order.
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