Cheung v. Tse		CASE NO. 113CV252171
DATE: 22 August 2014	TIME: 9:00	LINE NUMBER: 16

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 21 August 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 22 August 2014, the motion of plaintiff Levania Yue Juan Cheung (“Plaintiff”) for protective order was argued and submitted. Defendant Kent Kin Sun Tse (“Defendant”) filed a formal opposition to the motion.

Statement of Facts

This is an action for breach of contract.  In early September 2011, Plaintiff offered to lend $40,000 to Defendant.  (See first amended complaint (“FAC”), ¶ 10.)  Defendant accepted Plaintiff’s offer, and on September 14, 2011, Plaintiff tendered the check to Defendant and it was deposited on September 23 2011.  (See FAC, ¶¶ 10-11.)  Defendant refuses to pay back any amount of the loan.  (See FAC, ¶ 16.)  On April 2, 2014, Plaintiff filed a first amended complaint, asserting causes of action for: breach of oral contract; money lent; restitution; and, money had and received.

On 12 May 2014, Defendant filed a cross-complaint for fraud and intentional misrepresentation.  It is unclear as to what the alleged misrepresentation is, however, the cross-complaint alleges that “Defendant is entitled to offset all funds that he has expended on the support of Plaintiff over the last ten years against any contribution that Plaintiff made toward family expenses.”  (Cross-complaint, ¶ 20.)

On 9 June 2014, Defendant served 77 requests for admissions (“RFAs”) on Plaintiff seeking Plaintiff to admit that Defendant paid for certain expenses of Plaintiff while living together.

Subsequently, parties met and conferred, and could not come to an agreement with regards to the number and scope of the 77 RFAs.  On 11 July 2014, Plaintiff moved for a protective order with regards to the RFAs.

On 22 July 2014, the Court [Hon. Arand] overruled a demurrer to the cross-complaint; however, Plaintiff did not argue that the complaint did not allege a misrepresentation.  Moreover, Plaintiff belatedly argued for the first time in reply that the litigation privilege applied to the claims.

On 19 August 2014, the Court [Hon. Folan] heard Plaintiff’s motion for summary adjudication of the third cause of action for restitution and the fourth cause of action for money had and received.  Although the Court ultimately denied the motion, finding that there were triable issues of material fact as to whether Defendant unjust retained the $40,000 at the expense of Plaintiff and whether Defendant is indebted to Plaintiff, the Court sustained objections to the majority of Defendant’s evidence offered in opposition to the motion regarding Defendant’s prior payments of expenses, stating that it was irrelevant to the issue of the $40,000 transfer and that “[t]here is no suggestion that the $40,000 was intended to be repayment of years of prior expenses, child support or rent for future months.”  (19 August 2014 order re: Pl.’s motion for summary adjudication, p.6:11-14.)

 

Discussion

I.             Motion for Protective Order

Plaintiff moves for a protective order, arguing that the RFAs seek information that are “outside the scope of permissible discovery,” excessive, “unduly burdensome and expensive.”

In opposition, Defendant argues that the RFAs are specifically tailored towards opposing Plaintiff’s motion for summary adjudication and relate to contentions made in Defendant’s cross-complaint and his affirmative defense for offset.

1. Legal Standard

In general, “[a]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter [. . .] if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc. § 2017.010.)  For good cause shown, a court may make any order that justice requires to protect any party or other natural person from unwanted annoyance, embarrassment, or oppression, or undue burden and expense. (Code Civ. Proc. § 2033.080, subd. (b).) A party must promptly move for a protective order. (Code Civ. Proc. § 2033.080, subd. (a).)

A protective order may provide that the set of admission requests need not be answered (Code Civ. Proc. § 2033.080, subd. (b)(1)) or that, contrary to the representations made in a declaration of necessity, the number of admission requests propounded is unwarranted. (Code Civ. Proc. § 2033.080, subd. (b)(2).)

Generally, the party moving for a protective order bears the burden of demonstrating good cause for the order by explaining and justifying its objections to the discovery requests at issue. (See Fairmont Ins. Co. v. Super. Ct. (2000) 22 Cal.4^th 245, 255 citing Goodman v. Citizens Life & Cas. Ins. Co. (1967) 253 Cal.App.2d 807, 819.)

However, if the responding party seeks a protective order on the ground that the number of special interrogatories is unwarranted, the propounding party bears the burden of justifying the number of admissions requests propounded. (Code Civ. Proc. § 2033.040, subd. (b).)

1. Analysis
   1. Unduly Burdensome, Harassing, and Abusive

“[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].) 

In ruling on the objection, the court should balance the purpose and need for the information against the burden that production entails, including costs.  (West Pico Furniture Co. v. Super. Ct., supra, 56 Cal.2d at p. 418.) Generally, the party or deponent seeking a protective order must show that the burden, expense, or intrusiveness due to the discovery request clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.020; see also Emerson Electric Co. v. Superior Court (1997) 16 Cal.4th 1101, 1110-1111.)

Here, Plaintiff has made no showing regarding the burden or expense due to the 77 RFAs.  Accordingly, a protective order that Plaintiff need not answer the RFAs on the grounds that they are “unduly burdensome and expensive” is unwarranted.

2. Relevance and the scope of discovery

In general, “”[u]nless otherwise limited by order of the court… any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.”  (Code Civ. Proc. § 2017.010.)

Here, Defendant’s 77 RFAs seek Plaintiff’s admission that Defendant paid for certain expenses of Plaintiff over the past ten years.

Defendant asserts that “Defendant’s RFA[s] are aimed at discovering matters relevant to Plaintiff’s Motion for Summary Adjudication, clearly within the subject matter of this action.”  (Def.’s memorandum of points and authorities in opposition to Pl.’s motion for protective order (“Def.’s memo”), p.5:8-9; id. at p.6:3-6 (stating that “Defendant’s RFA[s] No.’s 84 through 94 are specifically tailored towards opposing Plaintiff’s Motion for Summary Adjudication”).)  However, the Court’s 19 August 2014 order regarding the motion for summary adjudication clearly stated that the subject of the RFAs was not relevant to the motion, sustaining objections to Defendant’s offered evidence on relevance grounds.  (See 19 August 2014 order re: motion for summary adjudication, p.6:11-14 (sustaining each of Pl.’s objections to the evidence, stating that “the majority of Defendant’s evidence is irrelevant to the issue as to the $40,000 transfer… [as t]here is no suggestion that the $40,000 was intended to be repayment of years of prior expenses, child support or rent for future months”).)  This argument is without merit.

Defendant also argues that certain RFAs “relate to Defendant’s cross-complaint for fraud and deceit, and specifically relates to Defendant’s claims and prayer regarding punitive damages pursuant to California Civil Code § 3294.”  (Def.’s memo, p.6:7-10; id. at p.5:18-19.)  As stated above, it is entirely unclear what the alleged misrepresentation is; therefore, it is unclear as to whether the allegations state facts sufficient to constitute a fraud cause of action or support a claim for punitive damages.

However, Plaintiff has neither demurred to the cross-complaint, nor moved for judgment on the pleadings on this basis, and has not moved to strike the claim for punitive damages.  Thus, although the cross-complaint may not state facts sufficient to constitute a cause of action or state facts sufficient to support a claim for punitive damages, the RFAs seek information in support of Defendant’s cross-complaint, thereby making the information relevant.  Accordingly, the motion for protective order is DENIED.  However, the denial is WITHOUT PREJUDICE to Plaintiff’s motion in limine excluding such evidence at trial.

II.            Defendant’s Request for Sanctions

Defendant makes a code compliant response for monetary sanctions against Plaintiff and her counsel in the amount of $2,966.00 pursuant to Code of Civil Procedure sections 2033.080.

If the court denies a motion for protective order, the Court shall impose a monetary sanction against the party, person or attorney who unsuccessfully made the motion, unless it finds the one subject to the sanction acted with substantial justification[1] or that other circumstances make the imposition of the sanction unjust.  (See Code Civ. Proc. § 2033.080, subd. (d).)

Defendant prevailed on the motion.  However, Plaintiff acted with substantial justification in making the motion, since the information sought is irrelevant to the motion for summary adjudication and may otherwise be irrelevant if the cross-complaint fails to state facts sufficient to constitute a cause of action.  Imposition of monetary sanctions in this situation would be unjust.  Accordingly, Defendant’s request for monetary sanctions is DENIED.

 

Conclusion and Order

Plaintiff’s motion for a protective order is DENIED without prejudice to Plaintiff’s motion in limine at trial excluding such evidence.

Defendant’s request for sanctions is DENIED.  Plaintiff acted with substantial justification in making the motion, since the information sought is irrelevant to the motion for summary adjudication and may otherwise be irrelevant if the cross-complaint fails to state facts sufficient to constitute a cause of action.  Imposition of monetary sanctions in this situation would be unjust.

 

 

________________­­­____________ DATED:

_________________________­­­________________________ HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara

 

[1] If the motion to compel is granted, to avoid sanctions the responding party must show “substantial justification” for his or her objection; e.g., reasonable grounds to believe the objection was valid when made and that opposition to the motion to compel therefore was justified.  (See Foothill Properties v. Lyon/Copley Corona Assocs., L.P. (1996) 46 Cal.App.4th 1542, 1557-1558–refusing Ca Civ Pro § 2031.010 document requests and opposing motion to compel was “substantially justified” where refusing party’s motion for protective order was pending.)

 

Conversely, if the motion to compel is denied, to avoid sanctions the moving party must show “substantial justification” for making the motion; e.g., reasonable grounds to believe the deposition question was proper and that the objections thereto were invalid.  “Substantial justification” is generally defined as being justified to a degree that could satisfy a reasonable person, or stated another way, that it has a reasonable basis both in law and fact.  The burden for proving “substantial justification” for failing to comply with a discovery order is on the losing party claiming that it acted with “substantial justification.”  (Doe v. U.S. Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1434-1435.)  The justification must be “well-grounded in both law and fact”.  (Diepenbrock v. Brown (2012) 208 Cal.App.4th 743, 747 [citations omitted].)