Sandrine Cornet, et al. v. Surjit Brar, et al. CASE NO. 113CV241439
DATE: 13 June 2014 TIME: 9:00 LINE NUMBER: 6
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 12 June 2014. Please specify the issue to be contested when calling the Court and counsel.

On 13 June 2014, the motion of plaintiffs and cross-defendants Sandrine Cornet (“Ms. Cornet”) and Opa Verde, Inc. (“Opa Verde”) (collectively “Plaintiffs”) to compel defendant Dhiraj Singha’s attendance at deposition and production of documents described in the deposition notice, and for an award of monetary sanctions, was argued and submitted. Defendant Dhiraj Singha filed a formal opposition to the motion, in which he requests an award of monetary sanctions.

Statement of Facts

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

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

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

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

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

Discovery Dispute

On 29 January 2014, Plaintiffs’ counsel sent an email to Defendants’ counsel, stating that he wanted to schedule Dhiraj’s deposition and expected that it would last two full days. (Ruth Dec., p. 2:5-8, Ex. 1.) Plaintiffs’ counsel provided Defendants’ counsel with a list of dates on which he was available and requested that Defendants’ counsel inform him what dates, if any, worked for Dhiraj’s deposition. (Id.) On 31 January 2014, Defendants’ counsel replied that 24 March 2014 and 25 March 2014, were “fine.” (Ruth Dec.,p. 2:9-11, Ex. 2.)

On 28 February 2014, Plaintiffs served Dhiraj with a deposition notice, setting his deposition for 24 March 2014 and 25 March 2014. (Ruth Dec., p. 2:12-14, Ex. 3.) The deposition notice contained 30 requests for production of documents and electronically stored information (“RPD”), numbered 1-20 and 26-35, which asked for information relating to written and oral agreements between Plaintiffs and Defendants, communications exchanged between Defendants and Plaintiffs, negotiations for the sale of Zucca and/or Kaddu to any person, Zucca’s accounting records, Ms. Cornet’s personnel records, and all computer hard drives used to store Zucca’s business records. (Id.) The deposition notice further stated that Dhiraj did not need to “re-produce any material he [. . .] previously produced to Plaintiffs in the course of formal discovery in this action.” (Id.)

On 4 March 2014, Defendants’ counsel telephoned Plaintiffs’ counsel and informed him that Dhiraj had left the country to travel to India to attend his mother’s funeral. (Ruth Dec., p. 2:15-18; Noble Dec., p. 2:10-12.) Defendants’ counsel advised Plaintiffs’ counsel that Dhiraj did not intend to return by 24 March 2014, and requested that Dhiraj’s deposition be rescheduled. (Id.)

Later the same day, Plaintiffs’ counsel sent Defendants’ counsel an email, acknowledging the request to reschedule Dhiraj’s deposition. (Ruth Dec., p. 2:18-21, Ex. 4.) Plaintiffs’ counsel indicated that he was skeptical as to whether Dhiraj had actually gone to India and requested the dates of Dhiraj’s departure from the United States and his anticipated date of return. (Id.) Plaintiffs’ counsel stated that he would consider Defendants’ counsel’s request to reschedule Dhiraj’s deposition. (Id.)

On 6 March 2014, Plaintiffs’ counsel advised that he was not available for Ms. Cornet’s deposition which had been rescheduled by Defendants for 24 March 2014, because he intended to take a certificate of Dhiraj’s non-appearance on that date. (Noble Dec., p. 2:13-15, Ex. A.) Plaintiffs’ counsel purportedly indicated to Defendants’ counsel that he did not believe that Dhiraj was ever coming back from India. (Id.)

The following day, 7 March 2014, Plaintiffs’ counsel and Defendants’ counsel engaged in a telephone conference during which Defendants’ counsel indicated that Dhiraj had left for India on or about 7 February 2014, and she did not know when he would return. (Ruth Dec., p. 2:22-26.) Plaintiffs’ counsel advised Defendants’ counsel that unless she provided a definite date on which Dhiraj would be available for his deposition, he would proceed with Dhiraj’s deposition on 24 March 2014, and take a certificate of non-appearance. (Id.)

Defendants’ counsel did not provide Plaintiffs’ counsel with a definite date for Dhiraj’s deposition and, therefore, Plaintiffs’ counsel proceeded to take a certificate of Dhiraj’s non-appearance on 24 March 2014. (Ruth Dec., p. 2:27, 3:1-3, Ex. 5.)

Later the same day, Plaintiffs’ counsel emailed Defendants’ counsel, advising that he had not received any objections to Dhiraj’s deposition or alternative dates for Dhiraj’s deposition and, thus, took a statement of Dhiraj’s non-appearance. (Ruth Dec., p. 3:4-7, Ex. 6.) Plaintiffs’ counsel asked whether Defendants’ counsel would provide alternative dates for Dhiraj’s deposition in April 2014. (Id.) He indicated that if the matter could not be resolved by 27 March 2014, Plaintiffs would file a motion to compel Dhiraj’s attendance at deposition and the production of documents described in the deposition notice. (Id.)

On 25 March 2014, Defendants’ counsel replied via email and attached a copy of Dhiraj’s objections to the deposition notice, as well as a proof of service indicating that the objections were served on 14 March 2014. (Ruth Dec., p. 3:12-17, Exs. 8-10; Noble Dec., p. 3:2-5, Ex. F.) Defendants’ counsel noted that she had initially offered to reschedule Dhiraj’s deposition, but her offer was declined by Plaintiffs’ counsel because he believed that Dhiraj was never coming back from India. Defendants’ counsel advised that her availability was much more limited now than it had been when she first offered to reschedule the deposition. (Id.) She further advised her assistant would contact Plaintiffs’ counsel during the week with available dates for Dhiraj’s deposition. (Id.)

Plaintiffs’ counsel sent an email to Defendants’ counsel later the same day, advising that Dhiraj’s objections to the deposition had not been included in the packet of documents that he had received with the proof of service. (Noble Dec., p. 3:6-9, Ex. G.) Plaintiffs’ counsel also asserted that the proof of service did not comply with statutory requirements because it did not have a caption and was not attached to any other document. (Id.)

On 4 April 2014, Plaintiffs’ counsel emailed Defendants’ counsel indicating that he had not received any dates from Defendants’ counsel for Dhiraj’s deposition or the depositions of the other Defendants. (Noble Dec., p. 3:16-22, Ex. I). Plaintiffs’ counsel stated that if he did not receive any proposed deposition dates by 8 April 2014, Plaintiffs would serve deposition notices setting the depositions “on dates of [their] own convenience.” (Id.)

Defendants’ counsel replied on 7 April 2014, via email, advising that due to trials in May 2014, her office’s first available dates for depositions were 3 June 2014 through 6 June 2014. (Id.) Defendants’ counsel stated that while Mr. Brar and Praveen had confirmed that they were available for those dates, she had not received confirmation from Dhiraj as to his availability. (Id.) On the same date, Defendants’ counsel served a notice of unavailability stating that her law firm was unavailable from 14 April 2014 until 26 May 2014. (Noble Dec., p. 3:23-25, Ex. J.)

On 9 April 2014, Plaintiffs’ counsel sent two emails to Defendants’ counsel. The first email pertained to Dhiraj’s deposition and his objections to the deposition notice. (Ruth Dec., p. 3:26-27, 4:1-4, Ex. 12.) Plaintiffs’ counsel stated that since Defendants’ counsel had not provided him with a date for Dhiraj’s deposition, Plaintiffs would file a motion to compel Dhiraj’s attendance at deposition by 11 April 2014, unless Defendants’ counsel provided them with “definite proposed dates that would be within two weeks of today’s date and withdraw the objections.” (Id.) Plaintiffs’ counsel further stated that while Plaintiffs believed that Dhiraj had waived any objections to the deposition notice, he would address the merits of Dhiraj’s objections. (Id.) Plaintiffs’ counsel then briefly indicated why each and every objection to the deposition notice was without merit. (Id.)

The second email pertained to Defendants’ counsel’s notice of unavailability. (Noble Dec., p. 3:26-28, 4:1, Ex. K.) Plaintiffs’ counsel asserted that the notice of unavailability had no legal force and Plaintiffs were unwilling to wait until June 2014 to take Defendants’ depositions. (Id.) Plaintiffs’ counsel requested that Defendants’ counsel provide dates for the depositions of Praveen and Mr. Brar between 29 April and 16 May 2014. (Id.) He indicated that if he did not receive any proposed dates by 10 April 2014, Plaintiffs would notice Praveen’s and Mr. Brar’s depositions on dates of their own choosing. (Id.) Plaintiffs’ counsel also advised that Plaintiffs would proceed with a motion to compel Dhiraj’s deposition, and requested dates on which Defendants’ counsel was available for the hearing in May 2014. (Id.)

On 1 May 2014, Plaintiffs filed the instant motion to compel Dhiraj’s attendance at deposition and the production of documents described in the deposition notice, and for an award of monetary sanctions. On 2 June 2014, Dhiraj filed papers in opposition to the motion, in which he requests an award of monetary sanctions. Plaintiffs filed a reply on 5 June 2014.

Discussion

I. Requests for Judicial Notice

Both Plaintiffs and Dhiraj request that the Court take judicial notice of court records.

A court may take judicial notice of court records that are relevant to a pending issue. (Evid. Code, § 452, subd. (d); People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 [only relevant matters subject to judicial notice].)

A. Plaintiffs’ Request for Judicial Notice

Plaintiffs request that the Court take judicial notice of: (1) their second amended complaint (“SAC”) filed on 12 July 2014; (2) Defendants’ cross-complaint filed on 12 August 2012; (3) their case management statement filed on 22 January 2014; and (4) the Court’s order on discovery motion filed 16 April 2014.

Both Plaintiffs’ SAC and Defendants’ cross-complaint are court records that are relevant to the instant motion because they establish the parties’ allegations, which bear on the relevancy of the discovery sought.

Plaintiffs’ case management statement is also a court record, but Plaintiffs do not explain how it is relevant to the instant motion or reference it in their discussion, in their memorandum of points and authorities, of the reasons why the Court should compel Dhiraj’s attendance at deposition and the production of documents.

While the Court’s order on discovery motion filed on 16 April 2014, is a court record, it is not relevant to the instant motion as it addressed discovery requests that are not at issue here.

Accordingly, Plaintiffs’ request for judicial notice is GRANTED IN PART and DENIED IN PART. The request is GRANTED as to Plaintiffs’ SAC and Defendants’ cross-complaint. The request is DENIED as to the Court’s order on discovery motion filed on 16 April 2014, and Plaintiffs’ case management statement.

B. Dhiraj’s Request for Judicial Notice

Dhiraj requests that the Court take judicial notice of its order on discovery motion filed on 20 August 2013.

The order is a court record that is relevant to the instant motion because Dhiraj argues that the requests for production of documents contained within the deposition notice are duplicative of inspection demands that were previously propounded by Plaintiffs and the subject of the 20 August 2013 order.

Accordingly, Dhiraj’s request for judicial notice is GRANTED.

II. Plaintiffs’ Objection to Evidence

Plaintiffs object to and move to strike paragraph No. 6 and Exhibit C of the declaration of Defendants’ counsel, Caitilin Noble, on the following grounds: lack of personal knowledge; hearsay; lack of foundation; and lack of authentication. There is no authority, however, holding that the Court must rule on evidentiary objections made in connection with a discovery motion. Therefore, the Court declines to rule on Plaintiffs’ evidentiary objections.

III. Motion to Compel Dhiraj’s Attendance at Deposition and Production of Documents

Plaintiffs move to compel Dhiraj’s attendance at deposition and the production of documents and electronically stored information (“ESI”) described in the deposition notice, arguing that: Dhiraj failed to appear at his deposition on 24 March 2014, and produce the documents described in the deposition notice; good cause exists for the documents sought; Dhiraj did not timely serve his objections; and Dhiraj’s objections are without merit. Dhiraj opposes the motion and argues that his objections have merit and were timely.

A. Procedural Issues

1. Moving Parties

Dhiraj argues that the motion should be denied “to the extent [it] was filed on behalf of Cross-Defendants” because they were not the parties who noticed the deposition. (Opp’n., p. 4:18-22.) Dhiraj asserts that only Plaintiffs may move to compel his deposition because they are the parties who noticed his deposition. (Id.)

Dhiraj’s argument is not well-taken. The plaintiffs and cross-defendants in this action are the same parties, Ms. Cornet and Opa Verde. The deposition was noticed by “Plaintiffs Sandrine Cornet and Opa Verde, Inc.” and the instant motion was brought by “Plaintiffs and Cross-Defendants,” Ms. Cornet and Opa Verde. The fact that Plaintiffs indicated in their motion that they are also cross-defendants in this matter is superfluous. Accordingly, the motion will not be denied on this basis.

2. Separate Statement

Dhiraj argues that the motion should be denied because Plaintiffs’ separate statement is not full and complete as required by California Rules of Court, rule 3.1345.

California Rules of Court, rule 3.1345(c) states that a separate statement must be full and complete and should include, if necessary, the text of all definitions, instructions, and other matters required to understand each discovery request at issue and the responses to each request. (Cal. Rules of Court, rule 3.1345(c).)

Dhiraj asserts that Plaintiffs’ separate statement is not full and complete because it does not include a two-page appendix to the deposition notice, which contained various definitions for terms used in the deposition notice. Dhiraj argues that these definitions are necessary to understand the basis of his objections and, therefore, should have been included in the separate statement.

The separate statement is deficient because it does not include the text of the two-page appendix. However, in deference to the principle that matters should be decided upon their merits, the Court will overlook this deficiency. (See Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 894 [the court has the discretion to, but is not required to, deny a motion for a deficient separate statement].) The Court has not been prevented from addressing the merits of the motion as Plaintiffs attached the appendix as Exhibit 3 to the declaration of Steven Ruth, submitted in support of their motion. Furthermore, Dhiraj was not prevented from filing a substantive opposition to the motion or prejudiced in any way by the deficiency in Plaintiffs’ separate statement.

Accordingly, the motion will not be denied on this basis.

B. Meet and Confer

Dhiraj argues that Plaintiffs failed to adequately meet and confer prior to filing the instant motion.

A motion to compel a deponent to appear at deposition shall be accompanied by a meet and confer declaration or by a declaration stating that the moving party contacted the deponent to inquire about the nonappearance. (Code Civ. Proc., § 2025.450, subd. (b)(2); Leko v. Cornerstone Bldg. Inspection Service (2001) 86 Cal.App.4th 1109, 1124 [indicating that the moving party must make an effort to informally resolve the reason underlying the party’s nonappearance].)

Dhiraj asserts that Plaintiffs failed to adequately meet and confer because Plaintiffs’ counsel sent only one email addressing his objections to the RPD. Dhiraj points out that the email addressing his objections was entitled “Kaddu/Cornet depo of Praveen Singha” and argues that, based upon this title, he “may reasonably have considered the issue resolved because June dates for Praveen’s deposition had been agreed upon.” (Opp’n., 7:10-13.) Dhiraj further argues that he “may also have reasonably relied on a prior agreement [. . .] that Plaintiffs would simply ‘serve notices setting the deposition on dates of [Plaintiffs’] own convenience.’” (Opp’n., 7:13-16.)

Dhiraj also asserts that Plaintiffs’ efforts were insufficient because Plaintiffs’ counsel demanded that he agree to submit to deposition within two weeks of 11 April 2014. Dhiraj contends that he could not appear for deposition during that time period because he was in India until May 2014, and his counsel was unavailable as she was engaged in multiple trials during May 2014. Dhiraj contends that “any further response regarding deposition dates in June [2014] would not be fruitful” because Plaintiffs had indicated that they were “unwilling to wait until June” to depose him. (Opp’n., p. 7:23-28, 8:1.)

Finally, Dhiraj argues that Plaintiffs’ meet and confer efforts were inadequate because, after Plaintiffs’ counsel sent Defendants’ counsel the email regarding his objections to his deposition on 9 April 2014, Plaintiffs did not attempt to make any further meet and confer efforts to resolve the issue, despite “multiple opportunities for direct, personal communication.” (Opp’n., p. 8:2-8.)

The Court finds that Dhiraj’s arguments are largely without merit. First, it was not reasonable for Dhiraj to conclude that the issue of his deposition had been resolved based on the title of the 9 April 2014 email, “Kaddu/Cornet depo of Praveen Singha,” or that there was a prior agreement that Plaintiffs would set his deposition on a date of their own convenience. In the email entitled “Kaddu/Cornet depo of Praveen Singha,” Plaintiffs’ counsel clearly stated that Plaintiffs were “prepared to file a motion to compel” Dhiraj’s attendance at deposition and for the production of documents, and would do so unless Dhiraj provided dates for his deposition. (Ruth Dec., p. 3:26-27, 4:1-4, Ex. 12.)

Second, Plaintiffs’ counsel indicated that Plaintiffs would set only the depositions of Mr. Brar and Praveen on dates of their own choosing. (Noble Dec., p. 3:26-28, 4:1, Ex. K.) Plaintiffs’ counsel clearly advised that, absent a response with a firm date for Dhiraj’s deposition, Plaintiffs would proceed with a motion to compel. (Id.)

While Dhiraj persuasively argues that he would not have been able to attend a deposition within two weeks of 11 April 2014, he fails to establish why he was unable to provide Plaintiffs with any dates on which he would be available for his deposition. The Court notes that Mr. Brar and Praveen confirmed their availability for 3 June 2013 to 6 June 2014, but Defendants’ counsel advised on 7 April 2014, that she had been unable to confirm Dhiraj’s availability for those same dates. In light of Dhiraj’s inability to provide any dates certain for his deposition, despite multiple requests from Plaintiffs to do so, Plaintiffs were justified in bringing the instant motion.

Accordingly, the Court finds that under the present circumstances, Plaintiffs’ meet and confer efforts were adequate.

C. Legal Standard

Code of Civil Procedure section 2025.450 states that “[i]f, after service of a deposition notice, a party to the action [. . .], without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document or tangible thing described in the deposition notice.” (See Code Civ. Proc., § 2025.450, subd. (a).)

The moving party does not need to show good cause to compel the testimony of the deponent. (Code Civ. Proc., § 2025.450, subd. (b)(1).) Thus, as to a motion seeking an order compelling attendance, the moving party need only show that he or she served the responding party with the deposition notice, that the party failed to appear, and that, following the failure to appear, the moving party contacted the deponent to inquire about the nonappearance. (Code Civ. Proc., § 2025.450, subd. (b)(2); see also Leko v. Cornerstone Bldg. Inspection Service (2001) 86 Cal.App.4th 1109, 1124.)

For a motion seeking an order compelling the production of documents described in a deposition notice, the moving party must set forth specific facts showing good cause exists for the production of any document. (Code Civ. Proc., § 2025.450, subd. (a).) If a motion is properly made, the burden is generally on the objecting party to justify its objections to the requests for production. (See Fairmont Ins. Co. v. Super. Ct. (2000) 22 Cal.4th 245, 255.)

D. Attendance at Deposition

Plaintiffs contend that Dhiraj should be compelled to attend his deposition because they served him with the deposition notice, he failed to appear, they contacted him about his nonappearance, and attempted to resolve the matter informally.

Plaintiffs have met all of the requirements to compel Dhiraj’s deposition under Code of Civil Procedure section 2025.450 because, as indicated above, the moving party need only show that he or she served the responding party with the deposition notice, the responding party failed to appear, and he or she contacted the deponent to inquire about the nonappearance. (Code Civ. Proc., § 2025.450, subd. (b)(2).)

While the Court finds that Dhiraj’s objection to the deposition on the ground of undue burden due to his travel to India has merit, his recourse was to file a motion for a protective order under Code of Civil Procedure section 2025.420. Code of Civil Procedure section 2025.420 provides a non-exhaustive list of potential remedies that the court may grant, including, among others, that the deposition be cancelled altogether or be taken at a different time. (Code Civ. Proc., § 2025.420, subd. (b)(1), (2), (3), & (5).) Dhiraj did not exercise his right to file a motion for a protective order. He was therefore obligated to attend the deposition on 24 March 2014.

In addition, while Dhiraj convincingly argues that he could not have attended his deposition as originally scheduled, he does not establish why he should not be compelled to attend his deposition at the present time. Dhiraj states that his “counsel have [sic] at all times intended to produce him for deposition in June when both he and counsel are available” and argues only that he should not be compelled to attend his deposition in May 2014. (Opp’n., p. 1:25-28, 2:1-2, 9:27-28.) The Court is sensitive to Plaintiffs’ concerns that Dhiraj has not yet proposed any alternative dates for his deposition or indicated when he will return from India, despite the fact that four months have passed since he left the United States in February 2014.

Accordingly, Plaintiffs’ motion to compel Dhiraj’s attendance at deposition is GRANTED.

E. Production of Documents

1. Good Cause

Discovery is allowed for any matters that are not privileged, relevant to the subject matter involved in the action, and reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.010.) The “relevance to the subject matter” and “reasonably calculated to lead to discovery of admissible evidence” standards are applied liberally with any doubt generally resolved in favor of discovery. (Colonial Life & Acc. Ins. Co. v. Super. Ct. (1982) 31 Cal.3d 785, 790.) Moreover, for discovery purposes, information is “relevant to the subject matter” if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement thereof. (Gonzalez v. Super. Ct. (1995) 33 Cal.App.4th 1539, 1546.)

RPD Nos. 1-12 request documents and ESI relating to written agreements, modifications of agreements, and any expiration or termination of an agreement between Plaintiffs and Defendants. RPD Nos. 13, 18, 28, and 31-34 ask for documents and ESI relating to communications exchanged between: Plaintiffs and Dhiraj; Kaddu and Splendor regarding Zucca’s assets; Kaddu and Groupon, Inc. regarding Zucca; Dhiraj and Jean-Luc Cornet, Arlette Gauze, or Remy Sanouillet; and Dhiraj and any other defendant in this action regarding this lawsuit. RPD Nos. 14-16 and 19-20 request documents and ESI relating to negotiations for the sale of Zucca or Kaddu, the transfer of Zucca, or the sale of Kaddu to any person. RPD Nos. 17 and 30 ask for documents and ESI relating to the transfer of Zucca’s assets by Splendor to Kaddu and inventory belonging to Zucca that Kaddu transferred to Anesh, Inc. and Mr. Brar. RPD No. 27 requests documents and ESI relating to Zucca’s cash income.

Dhiraj was also asked to produce Ms. Cornet’s personnel records (RPD No. 26), all accounting records for Zucca (RPD No. 29), and all computer hard drives used to store business records of Zucca that were kept at the premises between 1 December 2011 and 5 October 2012 (RPD No. 35).

It is self-evident that documents and ESI pertaining to written and oral agreements amongst the parties (RPD Nos. 1-12) and documents exchanged among the parties (RPD Nos. 13, 18, 28, 31-34) are relevant to this action. Documents and ESI regarding negotiations for that sale of Zucca or Kaddu to any person or pertaining to the sale itself are relevant because they go to the central subject matter of this action, the negotiations for the sale of Zucca to Plaintiffs. Documents and ESI relating to Zucca’s business and accounting records are relevant to Plaintiffs’ allegations that Defendants fraudulently misrepresented the worth of Zucca’s assets and its bankruptcy status. Ms. Cornet’s personnel records are relevant to her claims regarding unpaid wages and overtime.

The Court notes that Dhiraj argues in his opposition papers that there is no good cause for the discovery sought because Plaintiffs have failed to establish that he is in possession of documents responsive to the RPD. However, Plaintiffs do not need to show that Dhiraj is in possession of documents responsive to the RPD. Plaintiffs only need to establish that the information and documents sought are relevant to the instant case, which they have done.

Accordingly, there is good cause for the discovery sought.

2. Objections

a. Service of Objections

Plaintiffs argue that Dhiraj’s objections to the RPD have been waived because he failed to timely serve the same.

The service of a deposition subpoena is effective to require any witness to appear and testify at a deposition at the location, date, and time specified in the subpoena “as well as to produce any document [. . .] or tangible thing for inspection.” (See Code Civ. Proc., § 2025.280, subd. (a).) The statute contemplates that a deponent asked to bring documents to the deposition for inspection may object to the production of such documents at the deposition itself. (See Carter v. Super. Ct. (1990) 218 Cal.App.3d 994, 997 [noting that procedure relating to inspection demands “is quite different from a deposition at which a party is required to bring documents”].) Once the party appears for the deposition and either objects to the document requests or simply fails to produce them, the requesting party then may file a motion to compel production. (See Carter v. Super, Ct., supra, 218 Cal.App.3d at p. 997.) As such, the Code of Civil Procedure does not require a party that is served with a deposition notice to serve objections to requests for production of documents contained therein prior to attending the deposition.

The Court notes that while Code of Civil Procedure section 2025.410, states that an objection based on a defect in the deposition must be served on the party seeking to take the deposition at least 3 calendar days prior to the date for which the deposition is scheduled, there is no similar requirement for objections based on grounds other than defects in the notice. (See Code Civ. Proc., §§ 2025.410, subd. (c), 2025.420.)

Here, Dhiraj objected to the deposition and RPD on grounds other than defects in the notice. Thus, Dhiraj was not required to serve his objections to the RPD prior to attending his deposition. Accordingly, Plaintiffs’ argument that Dhiraj’s objections to the RPD have been waived because he failed to timely serve the objections is without merit.

b. Undefended Objections

Dhiraj raised numerous objections in response to each and every one of the RPD. Except as expressly noted below, Dhiraj does not attempt to defend his objections. Therefore, the Court finds that the undefended objections are without merit and are overruled, except for the objections to RPD Nos. 1-20 and 30 based on the work product doctrine and the attorney-client privilege, which have been preserved. (See Coy v. Super. Ct. (1962) 58 Cal.2d 210, 220-221; Best Products, Inc. v. Super. Ct. (2004) 119 Cal.App.4th 1181, 1188-1189.)

c. Undue Burdensome

Dhiraj argues in a conclusory manner that the RPD are “unreasonably burdensome by virtue of extensive special definitions of electronic information.” (Opp’n., p. 8:9-10.) Dhiraj also argues that the RPD are unduly burdensome because of “Plaintiffs’ insistence that he comply with them while in India even though the documents and things [. . .] would be located in the United States.” (See Opp’n. Sep. Stmt. p. 65:17-19.)

“[S]ome burden is inherent in all demands for discovery.” (West Pico Furniture Co. v. Super. Ct. (1961) 56 Cal.2d 407, 418.) A party claiming that requested discovery is unduly burdensome must make a particularized showing of facts demonstrating hardship e.g., specific facts as to how much work, time, and expense would be required to respond and/or produce responsive documents. (Id. at p. 417-418; Contra, Mead Reinsurance Co. v. Super. Ct. (1986) 188 Cal.App.3d 313, 318 [review of documents would require 5 claims adjusters, working full time for six weeks each].)

Here, Dhiraj does not explain why the definitions of electronic information create an undue burden. He asserts only that the information sought does not justify the “burden of searching potentially hundreds of electronic devices, operating systems and networks for ‘data objects, streams, hidden data files, [and] metadata.’” (Opp’n. Sep. Stmt., p. 63:6-10.) This conclusory statement is insufficient to justify an objection based on undue burden.

Similarly, Dhriaj has not established that production of the documents and ESI sought by the RPD would by unduly burdensome based solely upon the fact that he was in India. Dhiraj does not state that he is currently in India or provide the Court with any information about the time and expense that it would take for him to locate the responsive documents and information if he was in India.

Accordingly, Dhiraj’s objection on the ground of undue burden is overruled.

d. Duplicative

Dhiraj argues that the RPD are duplicative to the extent that they seek documents and information that were sought by Plaintiffs in other discovery requests and have already been produced.

For example, Dhiraj points out that RPD Nos. 1-15, are identical to Plaintiffs’ inspection demands, set one, Nos. 2-13, 17, and 20 that were previously served on him. Dhiraj argues that he has already produced documents responsive RPD Nos. 1-15 in the course of discovery. Similarly, Dhiraj argues that he has produced documents that are responsive to the rest of the RPD in response to prior inspection demands propounded on him by Plaintiffs. He asserts that where responsive documents were store electronically, he produced them in hard copy because no other format was specifically requested. Dhiraj asserts that since he has produced hard-copies he does not need to produce the same information in more than one form.

Dhiraj also notes that Plaintiffs’ inspection demands, set one, Nos. 2-3, 17, and 20 were the subject of a motion to compel further responses brought by Plaintiffs in August 2013. Dhriaj asserts that Plaintiffs are not entitled to additional electronic or native-format copies of the documents for which hard copies were provided because they waived the issue by failing to raise it on their earlier August 2013 motion to compel to compel further responses.

The fact that Plaintiffs have previously propounded inspection demands that requested the same documents and information that are sought by RPD Nos. 1-15 does not in and of itself make the requests duplicative. Plaintiffs are permitted to use both inspection demands and requests for production of documents in a deposition subpoena as means to obtain the same kind of discovery. (Carter v. Super. Ct. (1990) 218 Cal. App. 3d 994, 996.) Moreover, the requests here are not unreasonably duplicative. Even though the requests ask for the same type of documents as previously requested in Plaintiffs’ inspection demands, the deposition notice clearly states that Dhiraj does not need to “re-produce any material he [. . .] previously produced to Plaintiffs in the course of formal discovery in this action.” (Ruth Dec., p. 2:12-14, Ex. 3.) As such, the RPD seek documents and information that have not been previously produced.

With respect to additional electronic or native-format copies of documents previously provided, Dhiraj cites no authority for his argument that Plaintiffs have waived the issue of additional electronic or native-format copies by not raising it in their prior motion to compel further response to the inspection demands, set one, Nos. 2-3, 17, and 20. Moreover, absent a finding of burden, a party’s failure to obtain the information sought through one discovery procedure does not bar it from using a different discovery procedure to obtain the information. (Carter v. Super. Ct. (1990) 218 Cal. App. 3d 994, 996.)

Dhiraj is correct that under Code of Civil Procedure section 2031.280, subdivision (d)(2) a party does not need to produce the same electronically stored information in more than one form. However, the RPD do not appear to request additional electronic copies of the same information where a hard-copy has previously been produced. Thus, if Dhiraj has previously produced a hard copy of ESI that is responsive to the RPD, he need not produce the same ESI in a different form.

Finally, Dhiraj argues that RPD No. 16, which requests documents and ESI relating to the transfer for Zucca, is duplicative of RPD No. 15, which seeks documents and ESI related to the sale of Zucca. However, while there may be some overlap between the two RPD, the transfer of Zucca from one party or entity to another may not necessarily constitute the sale of Zucca to another party. Thus, the information sought by RPD No. 15 is not duplicative of that sought by RPD No. 16.

Accordingly, Dhiraj’s duplicative objection is overruled.

e. Attorney-Client Privilege and Work Product Doctrine

As previously noted, Dhiraj objected to RPD Nos. 1-20 and 30 based on the work product doctrine and the attorney-client privilege.

Dhiraj does not attempt to justify his objections except to state in a conclusory manner and certain responsive documents likely involve the attorney-client privilege and work product doctrine as the responding party is defined in the RPD to include Dhiraj’s agents and his counsel.

Dhiraj has therefore preserved his objections to RPD Nos. 1-20 and 30 based on the work product doctrine and attorney-client privilege. (See Coy v. Super. Ct. (1962) 58 Cal.2d 210, 220-221; Best Products, Inc. v. Super. Ct. (2004) 119 Cal.App.4th 1181, 1188-1189.) To the extent, Dhiraj withholds any documents on the basis of the work product doctrine or attorney-client privilege, he shall produce a privilege log.

VI. Requests for Sanctions

Both Plaintiffs and Dhiraj request monetary sanctions in connection with Plaintiffs’ motion.

A. Plaintiffs’ Request for Monetary Sanctions

Plaintiffs’ request monetary sanctions against Dhiraj and his counsel in the amount of $2,301.00 under Code of Civil Procedure sections 2023.030 and 2025.440, subdivision (b).

Code of Civil Procedure section 2023.030 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.

Code of Civil Procedure section 2025.440, subdivision (b), states that the court may impose sanctions on a deponent as described in Code of Civil Procedure section 2020.240 if a deponent on whom a deposition subpoena has been served fails to attend a deposition or refuses to be sworn as a witness. Code of Civil Procedure section 2020.240 provides that a nonparty who disobeys a deposition subpoena may be punished for contempt. However, these statutes are inapplicable as Dhiraj is a party to the action and Plaintiffs have not asked the Court to hold Dhiraj in contempt.

Accordingly, Plaintiffs’ request for monetary sanctions is DENIED.

B. Dhiraj’s Request for Monetary Sanctions

Dhiraj requests monetary sanctions against Plaintiffs and their counsel. However, Dhiraj does not indicate in his opposition papers the amount of monetary sanctions sought or the statutory authority under which he requests an award of monetary sanctions.

Accordingly, Dhiraj’s request for monetary sanctions is DENIED.

Conclusion and Order

Plaintiffs’ motion to compel Dhiraj to comply with his notice of deposition is GRANTED. Accordingly, Dhiraj is required to submit to a deposition within 20 calendar days of the date of the filing of this order on a date and time mutually agreed upon by the parties. In addition, Dhiraj shall produce documents and ESI responsive to the RPD, which he has not previously produced during the course of discovery, at the time of his deposition. To the extent Dhiraj withholds any documents or ESI on the basis of the attorney-client privilege or work product doctrine, he shall produce a privilege log at the time of his deposition.

Plaintiffs’ request for monetary sanctions is DENIED

Dhiraj’s request for monetary sanctions is DENIED.