Case Name: Dean Filipowicz v. United Veterinary Specialty & Emergency, Inc., et al.

Case No: 17CV316079

I. Background
II.

Plaintiff Dean Filipowicz (“Plaintiff”) brings this action against defendants United Veterinary Specialty & Emergency, Inc., Andrea Moore, and Denise Shirey (collectively, “Defendants”) for damages associated with breach of contract and wrongful termination.

According to the allegations of the second amended complaint (“SAC”) Plaintiff is a veterinary surgeon. (SAC, ¶ 1.) He entered into contracts with United for employment as a Veterinarian, Associate Veterinarian, Hospital Medical Director, and Development Director. (Id. at ¶ 14.) He was subsequently voted onto the Board of Directors of United. (Ibid.)

During Plaintiff’s employment, Shirey and Moore engaged in conduct contrary to United’s interests which led to tension between them and Plaintiff. (SAC, ¶ 20.) Likewise, Shirey and Moore attempted to undermine Plaintiff’s employment contracts. (Id. at ¶ 21.) Finally at one point, Shirey informed Plaintiff that he was being placed on administrative leave pending an investigation of Plaintiff based on “serious breaches of… professional and fiduciary duties.” (Id. at ¶ 22.) However, the investigation was a pretext and Shirey and Moore then wrongfully accused Plaintiff of planning to leave United and to solicit its employees to join him. (Ibid.) Defendants hired an outside investigator, but the investigator found no wrongdoing by Plaintiff. (Id. at ¶ 23.) Nonetheless, Plaintiff was terminated. (Id. at ¶ 24.)

During the termination process, Moore made defamatory statements about Plaintiff that, among other things, implied that he posed a safety and violence risk. (SAC, ¶ 25.) Further, upon his termination, United failed to pay Plaintiff what it owed him pursuant to the contracts. (Id. at ¶ 26.)

As a result of the foregoing Plaintiff, filed the SAC alleging causes of action for: (1) breach of contract; (2) breach of the covenant of good faith and fair dealing; (3) defamation; (4) defamation per se; (5) breach of fiduciary duty; (6) failure to pay wages; (7) failure to reimburse business expenses; (8) wrongful termination; (9) intentional infliction of emotional distress; and (10) violation of Labor Code section 558.1.

Discovery Dispute

On June 7, 2019, Defendants propounded form interrogatories (“FI”), special interrogatories (“SI”), requests for production (“RPD”), and requests for admission (“RFA”) on Plaintiff. Though Defendants are collectively represented by the same legal team, the requests were made by/for Defendants separately. Moore propounded RFA and RPD, “set one.” Shirey propounded FI, SI and RFA, “set one,” and United propounded “supplemental SI.”

On July 8, 2019, Defendants agreed to give Plaintiff a three-week extension of time to respond. On August 2, 2019, Plaintiff served responses to FI, SI, and RFA. For certain of the RPD, Plaintiff lodged general objections and a promise to produce responsive documents. Despite Defendants’ meet and confer efforts, no additional responses have been provided to the RPD, nor has Plaintiff complied with its promise to produce documents responsive to certain RPD.

Presently before the Court is Defendants’ motion to compel.

III. Motion to Compel
IV.

Defendants’ motion to compel fails to state the statutory ground upon which it is made. It also fails to specify whether the motion is made to compel further responses or responses where none have been provided.

Further response is sought for Shirey’s FI 2.3, and SI No. 14, and is considered pursuant to Code of Civil Procedure section 2030.300. Further responses to Moore and Shirey’s separate sets of RFA are sought pursuant to section 2033.290. Moore’s RPD Nos. 19-22 received objection-only responses, so the appropriate motion would be to compel further response pursuant to section 2031.310.

Moore’s RPD Nos. 1-18 and 23-30 received objection-based responses in addition to promises to produce responsive documents. The promised production has yet to occur, so the motion is to compel compliance pursuant to Code of Civil Procedure section 2031.320, subdivision (a). Finally, no response was provided for United’s “supplemental SI” so the motion to compel response is made pursuant to section 2030.290.

A. Timeliness
B.

Though not specifically raised in Defendants’ arguments, where further responses are sought through a motion to compel, the issue of the timeliness of the motion must be considered by the Court. (See Sexton v. Superior Court (2016) 58 Cal.App.4th 1403, 1411 [“the burden [does] not shift to the responding party to show that the motion is untimely, but, logically, falls on the moving party who has the obligation to file within the time prescribed by law”].) However, where responses were not provided in the first instance, the timeliness of the motion is not an issue (See Code Civ. Proc., §§ 2030.290, 2031.320.)

Pursuant to the Code of Civil procedure, “unless notice of the motion is given within 45 days of the service of the verified response, or any supplemental verified response, or any specific later date to which the requesting party and the responding party have agreed in writing, the requesting party waives any right to compel further response…” . (See Code Civ. Proc., §§ 2030.300, subd. (c), 2031.300, subd. (c), and 2033.290, subd. (c).) With respect to verifications, the attorney for the responding party shall sign any response that contains an objection. (Code Civ. Proc., §§ 2030.250, subd. (c), 2031.250, subd. (c), 2033.240, subd. (c).)

Plaintiff’s responses to Moore’s RPD Nos. 19-22 , Shirey’s FI No. 2.3 and Shirey’s SI No. 14 as well as responses to all of Moore and Shirey’s RFA were served on Friday, August 2, 2019, and were exclusively objection-only responses, signed by his counsel. Defendants filed the present motion on Friday, September 20, 2019, which is 48 days after receipt of the initial responses.

Consequently, Defendants have waived the right to compel further responses to the discovery as they did not serve the motion within 45 days of service of the responses.

Therefore, the motion to compel further responses to Moore’s RPD Nos. 19-22, Moore’s RFA Nos. 1-30, Shirey’s FI No. 2.3, Shirey’s SI No. 14, and Shirey’s RFA Nos. 1-19 is DENIED.

C. RPD Nos. 1-18, 23-30
D.

To Moore’s RPD Nos. 1-18 and 23-30, Plaintiff stated identical objections, but also included a statement of his intent to produce “responsive, non-privileged documents…”

If a responding party fails to produce documents in accordance with a statement of compliance, the propounding party may move for an order compelling compliance. (Code Civ. Proc., § 2031.320, subd. (a).) A motion to compel compliance need only demonstrate the responding party’s failure to comply as agreed. (Standon Co., Inc. v. Sup. Ct. (1990) 225 Cal.App.3d 898, 903.) In contrast to a motion to compel further responses, there is no meet and confer obligation associated with a motion to compel compliance, and there is no requirement that the moving party demonstrate good cause for the discovery sought. (See Code Civ. Proc., § 2031.320.)

Defendants submit a declaration of counsel which represents that there has been no production of responsive documents despite the statement promising compliance. As a result, Plaintiff must comply as promised.

Therefore, the motion to compel compliance with Moore’s RPD Nos. 1-18 and 23-30 is GRANTED. Plaintiff shall produce all responsive documents within 20 days of notice of entry of this signed order.

E. Supplemental Interrogatory
F.

United propounded a supplemental interrogatory pursuant to Code of Civil Procedure section 2030.070 requesting updates to prior responses to interrogatories. Plaintiff has not provided a response.

A failure to respond to interrogatories waives objections. (Code Civ. Proc., 2030.290, subd. (a). The party propounding the interrogatories may move for an order compelling response to the interrogatories. (Code Civ. Proc., 2030.290, subd. (b).)

Given Plaintiff’s failure to respond to the supplemental interrogatory, he has waived any objection(s) to it.

Therefore, the motion to compel response to the supplemental interrogatory is GRANTED. Plaintiff shall provide a code-compliant response to this interrogatory within 20 days of notice of entry of this signed order.

V. Sanctions
VI.

Defendants state in their notice of motion and at the end of their memorandum of points and authorities that they request an award of monetary sanctions. The request is made based on “11.6 hours meeting and conferring with Plaintiff’s counsel; 17.2 hours drafting this motion; and an estimated 5 hours anticipated to draft a reply brief and travel to and appear at a hearing” at a rate of $250 per hour for a total of $8450.

While not stated in the motion, the memorandum makes the sanctions request pursuant to Code of Civil Procedure section 2030.290, subdivision (c) with authorizes sanctions against one who unsuccessfully opposes a motion to compel responses to interrogatories; and section 2031.310, subdivision (h) which authorizes sanctions against one who unsuccessfully opposes a motion to compel further responses to a demand for production.

Preliminarily, the Court notes that it does not award sanctions for the meet and confer process or for anticipatory costs. Sanctions are only available for expenses to make the motion. Likewise, the 17.2 hours for drafting the motion is excessive and not reasonable.

Furthermore, based on the code sections pursuant to which Defendants’ request is made, the Court declines to award sanctions. Defendants prevailed only as to the supplemental interrogatory, but because they did not file a timely motion, they did not prevail in seeking an order to compel further response to demand. Therefore on balance and pursuant to the statute for which sanctions are sought, Plaintiff was not unsuccessful in opposing the motion.

Consequently, Defendants’ request for monetary sanctions is DENIED.

The Court will prepare the order.