Thomas Russell v. Certichron, Inc., et al.		CASE NO. 114CV258767
DATE: 19 December 2014	TIME: 9:00	LINE NUMBER: 20

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 18 December 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 19 December 2014, the motion of plaintiff Thomas Russell (1) to compel discovery responses by defendant Certichron, Inc. and for related sanctions against Certichron, Inc. and its counsel; (2) to compel deposition of defendant Certichron, Inc. and for related sanctions against Certichron, Inc. and its counsel; and (3) to compel discovery responses by defendant Todd Glassey and for related sanctions was argued and submitted. Defendant Certichron, Inc. filed a formal opposition to the motions.

All parties are reminded that all papers must comply with California Rules of Court, rule 3.1110(f).[1]

Statement of Facts

Plaintiff Thomas Russell (“Russell”) and defendant Certichron, Inc. (“Certichron”) entered into an employment agreement dated 1 May 2012 whereby Certichron agreed to pay Russell a $15,000 bi-monthly salary as President of the company. (Complaint, ¶9 and Exh. 1.) Russell was employed with Certichron from 1 March 2012 through 1 August 2012 at which time Russell terminated his employment in accordance with the employment agreement. (Complaint, ¶10 and Exh. 2.) Certichron owes Russell $150,000 for the five month period of 1 March 2012 through 1 August 2012. (Complaint, ¶11.) In addition, Certichron owes Russell approximately $10,419 for reimbursement of expenses advanced by Russell on behalf of Certichron. (Complaint, ¶12 and Exh. 3.) Certichron and its principal, defendant Todd S. Glassey (“Glassey”), failed to pay Russell despite repeated demands by Russell. (Complaint, ¶13.)

On 8 January 2014, plaintiff Russell filed a complaint against defendants Certichron and Glassey asserting claims for (1) breach of contract; and (2) declaratory relief.

On 1 April 2014, defendants Certichron and Glassey separately filed answers to plaintiff Russell’s complaint.

Discovery Dispute

Motion #1

On 7 August 2014, plaintiff Russell served defendant Certichron, by mail, with (1) Requests for Admissions, Set One (“RFA”); (2) Form Interrogatories, Set One (“FI”); and (3) Requests for Production of Documents, Set One (“RPD”). (See ¶4 and Exh. 1 – 3, Declaration of Gary M. Kaplan in Support of Plaintiff’s Motion to Compel Discovery Responses, etc. (“Declaration Kaplan”).)

On 11 September 2014, defendant Certichron served plaintiff Russell, by mail, with responses to the RFA, FI, and RPD consisting entirely of objections. (See ¶5 and Exh. 4 – 6, Declaration Kaplan.)

On 23 and 24 September 2014, plaintiff Russell’s counsel met and conferred, by telephone, with defendant Certichron’s counsel. (See ¶7 and Exh. 7 – 8, Declaration Kaplan.) Plaintiff Russell’s counsel memorialized the conversations in a letter dated 26 September 2014. (Id.) Defendant Certichron asserted that defendant Glassey maintains possession of all the information necessary for Certichron to respond to plaintiff Russell’s discovery requests, but that defendant Glassey refused to provide that information to Certichron. Defendant Certichron agreed, in part, to provide plaintiff Russell its correspondence with Glassey to validate its assertion. Furthermore, defendant Certichron agreed to identify, by 29 September 2014, which objections it would withdraw with regard to the FI and RPD. (Id.)

On 13 October 2014, plaintiff’s counsel sent defendant Certichron’s counsel an email indicating he had not received Certichron’s correspondence with Glassey or identification of the objections Certichron would withdraw as to the FI and RPD. (Id.) Defendant Certichron’s counsel responded that same day stating, in part, “I will be responding to your letter later this week and producing supplemental responses shortly.” (Id.)

As of 30 October 2014, plaintiff’s counsel did not receive anything further from defendant Certichron. (See ¶9, Declaration Kaplan.)

On 31 October 2014, plaintiff Russell filed the first motion now presently before the Court, seeking further responses to RFA, FI, and RPD, Set One, and requesting monetary sanctions.

On 8 December 2014, defendant Certichron filed an opposition to the motion.

Motion #2

On 3 September 2014, plaintiff Russell’s counsel emailed defendant Certichron’s counsel requesting available dates for the deposition of the person most knowledgeable (“PMK”) at defendant Certichron. (See ¶4 and Exh. 1, Declaration of Gary M. Kaplan in Support of Plaintiff’s Motion to Compel Deposition, etc. (“Declaration Kaplan”).)

On 11 September 2014, defendant Certichron’s counsel responded by email stating she would first need to know the topic of inquiry before scheduling a deposition. (See ¶5 and Exh. 1, Declaration Kaplan.)

On 12 September 2014, plaintiff Russell’s counsel responded by email identifying the topics of inquiry were the same as those set forth in the RFA, FI, and RPD and again requesting available dates for deposition. (See ¶6 and Exh. 1, Declaration Kaplan.)

With no further response from defendant, on 19 September 2014, plaintiff Russell served a notice of deposition for the PMK at defendant Certichron and requests for production of documents scheduled to take place on 7 October 2014 in San Francisco. (See ¶7 and Exh. 2, Declaration Kaplan.)

Defendant Certichron’s counsel expressed objection to the location. (See ¶8, Declaration Kaplan.) On 24 September 2014 and 30 September 2014, plaintiff Russell’s counsel met and conferred with defendant Certichron’s counsel. Specifically, plaintiff provided legal authority regarding the appropriate location for deposition and again requested available dates in October 2014 for the deposition. (See ¶8 and Exh. 1, Declaration Kaplan.)

On 2 October 2014, defendant Certichron served, by overnight mail, its objections to plaintiff’s notice of deposition. (See ¶9 and Exh. 3, Declaration Kaplan.)

On 13 October 2014, plaintiff Russell’s counsel met and conferred, by email, with defendant Certichron’s counsel regarding the objections to the notice of deposition. (See ¶10 and Exh. 1, Declaration Kaplan.) As of 20 November 2014, defendant Certichron did not respond. (See ¶11, Declaration Kaplan.)

On 21 November 2014, plaintiff Russell filed the second motion now presently before the Court, seeking to compel the attendance of Certichron’s PMK for deposition, seeking production of documents specified in the notice of deposition, and requesting monetary sanctions.

On 8 December 2014, defendant Certichron filed an opposition to the motion.

Motion #3

On 23 September 2014, plaintiff Russell served defendant Glassey, by mail, with (1) RFA, Set One; (2) FI, Set One; and (3) RPD, Set One. (See ¶4 and Exh. 1 – 3, Declaration of Gary M. Kaplan in Support of Plaintiff’s Motion to Compel Discovery Responses, etc. (“Declaration Kaplan”).)

On 4 November 2014, plaintiff Russell received, by email, defendant Glassey’s responses to the RFA and FI consisting entirely of objections. (See ¶5 and Exh. 4 – 6, Declaration Kaplan.) Plaintiff did not receive any response from defendant Glassey to RPD, Set One.

On 18 November 2014, plaintiff Russell’s counsel met and conferred, by email, with defendant Glassey. (See ¶6 and Exh. 7, Declaration Kaplan.) Despite multiple email exchanges, defendant Glassy refused to provide any further responses or produce any responsive documents, insisting plaintiff look to defendant Certichron for the requested information and documents. (See ¶6, Declaration Kaplan.)

As of 24 November 2014, defendant Glassey has not provided plaintiff Russell any substantive response or produced any responsive documents. (Id.)

On 25 November 2014, plaintiff Russell filed the third  motion now presently before the Court, seeking further responses from defendant Glassey to RFA, FI, and RPD, Set One, and requesting monetary sanctions.

Discussion

1. Plaintiff Russell’s Motion to Compel Further Responses from Defendant Certichron to RFA, FI, and RPD, Set One
2. Legal Standard

If a party demanding a response to an interrogatory or request for admission deems an answer to a particular interrogatory or request for admission as incomplete or evasive, or an objection to be without merit or too general, that party may move for an order compelling further response.  (See Code Civ. Proc., §§ 2030.300, 2033.290.)  The objecting party bears the burden of explaining and justifying any objection.  (See Fairmont Ins. Co. v. Super. Ct. (2000) 22 Cal 4th 245, 255, citing Coy v. Super. Ct. (1962) 58 Cal. 2d. 210, 220-221.)

Upon receipt of a response to a demand for inspection, including requests for the production of documents, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply:

1. A statement of compliance with the demand is incomplete.
2. A representation of inability to comply is inadequate, incomplete, or evasive.
3. An objection in the response is without merit or too general.

(Code Civ. Proc., §2031.310, subd. (a)(1) – (3).) The motion for order compelling further responses “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.” (CCP, § 2031.310, subd. (b)(1); Kirkland v. Sup. Ct. (2002) 95 Cal.App.4th 92, 98 (Kirkland).) To establish “good cause,” the burden is on the moving party to show both relevance to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case) and specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). (Glenfed Develop. Corp. v. Sup. Ct. (1997) 53 Cal.4th 1113, 1117.)  Where the moving party establishes “good cause,” the burden shifts to the responding party to justify its objections. (Kirkland, supra, 95 Cal.App.4th at p. 98.)

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1. Meet and Confer

A motion to compel a further response to interrogatories, inspection demand, or request for admission 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 Civ. Proc., §§ 2016.040, 2030.300, subd. (b), 2031.300, subd. (b)(2), 2033.290, 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 presented. (See Obregon v. Super. Ct. (1998) 67 Cal. App. 4th 424, 431.)

In opposition to the motion, Certichron explains that at the time plaintiff Russell filed suit, Certichron had become defunct and one of its shareholders, Perseus Telecom Limited (“Perseus”) undertook management of Certichron’s accounts payables and receivables as well as the instant litigation. (See ¶3, Declaration of Cheryl S. Chang in Support of Defendant Certichron, Inc.’s Opposition to Plaintiff’s Motion to Compel Discovery Responses (“Declaration Chang”).) Without those records, Certichron is unable to respond to any of the discovery requests propounded by plaintiff Russell. Certichron informed plaintiff Russell that it did not possess the information necessary to respond to the discovery requests; Perseus had not been provided any of Certichron’s records; defendant Glassey, Certichron’s founder and former officer, possesses, controls, and/or is the sole custodian of Certichron’s records; Glassey refused to provide the information sought; Certichron propounded/ would propound discovery upon Glassey; upon receipt of information from Glassey, Certichron would substantively respond to plaintiff’s discovery requests; and Certichron would extend the time for plaintiff to bring a motion to compel. (See ¶¶8 – 9 and 11, Declaration Chang.)

On 3 December 2014, Certichron’s counsel retrieved six boxes of documents from Glassey. (See ¶12, Declaration Chang.) On 8 December 2014, Certichron served supplemental responses indicating its intent to produce documents following a review of the documents for privilege and responsiveness.[2] (See ¶14, Declaration Chang.) In a supplemental declaration filed 10 December 2014, Certichron’s counsel states she completed review of the documents retrieved from Glassey on 3 December 2014, but the documents are non-responsive and predate plaintiff’s alleged employment with Certichron. (See ¶¶5 – 8, Supplemental Declaration of Jessica A. McElroy in Support of Defendant Certichron, Inc.’s Opposition to Plaintiff’s Motion to Compel Discovery Responses (“Declaration McElroy”).) Consequently, Certichron remains unable to respond to the plaintiff’s discovery requests. (See ¶9, Declaration McElroy.)

Based on the evidence presented, the court finds plaintiff Russell and defendant Certichron have not engaged in an adequate attempt at informal resolution of the issues presented. The court agrees with defendant Certichron that plaintiff Russell acted prematurely in pursuing the present motion. At the same time, the court finds defendant Certichron did not act timely or reasonably to allay plaintiff Russell’s concerns. For instance, defendant Certichron’s counsel indicated, in an email dated 13 October 2014, “I will be responding to your letter later this week and producing supplemental responses shortly.” The evidence before this court reflects no further response from defendant Certichron until more than two weeks later when plaintiff Russell’s counsel emailed on 29 October 2014 indicating his intent to file the present motion.

Based upon defendant Certichron’s lack of response, plaintiff Russell may believe he was justified in filing the instant motion. However, for the court to compel any meaningful exchange of discovery under the circumstances, defendant Certichron must be given an opportunity to obtain and review documents currently maintained by defendant Glassey. Under these circumstances, the court finds the parties did not engage in a reasonable and good faith attempt at informal resolution. Consequently, plaintiff Russell’s motion to compel further response to RFA, FI, and RPD, Set One from defendant Certichron is DENIED WITHOUT PREJUDICE.

1. Request for Sanctions

Plaintiff Russell requests monetary sanctions and defendant Certichron also makes a counter request for monetary sanctions. In light of the court’s ruling above, the court will reserve any ruling on the requests for monetary sanctions. Both parties are ordered to further meet and confer. If, thereafter, a motion to compel is filed, the court will consider the imposition of sanctions. For now, all requests for monetary sanctions are DENIED WITHOUT PREJUDICE.

1. Plaintiff Russell’s Motion to Compel Deposition of Defendant Certichron
2. Legal Standard

“If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, 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, electronically stored information, 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, electronically stored information, or tangible thing described in the deposition notice.” (Code Civ. Proc., §2025.450, subd. (a).)

1. Meet and Confer

“The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc., §2025.420, subd. (b)(2).) “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc., §2016.040.)

For the same reasons discussed above, the court finds the parties did not engage in a reasonable and good faith attempt at informal resolution. Consequently, plaintiff Russell’s motion to compel deposition of defendant Certichron is DENIED WITHOUT PREJUDICE.

1. Request for Sanctions

Both parties request monetary sanctions in connection with the motion to compel deposition. In light of the court’s ruling, the court will reserve any ruling on the requests for monetary sanctions. Both parties are ordered to further meet and confer. If, thereafter, a motion to compel is filed, the court will consider the imposition of sanctions. For now, all requests for monetary sanctions are DENIED WITHOUT PREJUDICE.

III.           Plaintiff Russell’s Motion to Compel Further Responses from Defendant Glassey to RFA, FI, and                RPD, Set One

1. Legal Standard

If a party demanding a response to an interrogatory or request for admission deems an answer to a particular interrogatory or request for admission as incomplete or evasive, or an objection to be without merit or too general, that party may move for an order compelling further response.  (See Code Civ. Proc., §§ 2030.300, 2033.290.)  The objecting party bears the burden of explaining and justifying any objection.  (See Fairmont Ins. Co. v. Super. Ct. (2000) 22 Cal 4th 245, 255, citing Coy v. Super. Ct. (1962) 58 Cal. 2d. 210, 220-221.)

If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it … [t]he party making the demand may move for an order compelling response to the demand.” (Code Civ. Proc., § 2031.300, subds. (a) – (b).)

1. Merits

Defendant Glassey did not file any formal opposition to plaintiff Russell’s motion to compel a response to the RPD and further responses to the RFA and FI. Consequently, plaintiff Russell’s motion to compel further response from defendant Glassey to RFA, Set One and FI, Set One is GRANTED. Plaintiff Russell’s motion to compel a response from defendant Glassey to RPD, Set One is GRANTED. Defendant Glassey shall provide, without objection, a response to RPD, Set One and further responses to RFA, Set One and FI, Set One within 20 calendar days of notice of entry of this order.

1. Request for Sanctions

“The court shall impose a monetary sanction … against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to interrogatories [or to RFA], unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., §§2030,300, subd. (d) and 2033.290, subd. (d).)

“[T]he court shall impose a monetary sanction … against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to a demand for inspection, copying, testing, or sampling, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., §2031.300, subd. (c).)

Plaintiff’s counsel declares he spent 9.3 hours in connection with the motion to compel discovery responses from defendant Glassey at the billing rate of $325.00 per hour. (See ¶¶8 – 9, Declaration Kaplan.) Plaintiff’s counsel anticipates spending an additional 8 hours in connection with the motion. The Court awards sanctions only for expenses actually incurred, not for anticipated expenses. (See Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551.)

Plaintiff Russell is entitled to an award of monetary sanctions against defendant Glassey. Plaintiff’s request for monetary sanctions is GRANTED in the amount of $3,022.50.

Conclusion and Order

Plaintiff Russell’s motion to compel further response to RFA, FI, and RPD, Set One from defendant Certichron is DENIED WITHOUT PREJUDICE. Plaintiff Russell and defendant Certichron’s requests for monetary sanctions are DENIED WITHOUT PREJUDICE.

Plaintiff Russell’s motion to compel deposition of defendant Certichron is DENIED WITHOUT PREJUDICE. Plaintiff Russell and defendant Certichron’s requests for monetary sanctions are DENIED WITHOUT PREJUDICE.

Plaintiff Russell’s motion to compel further response from defendant Glassey to RFA, Set One and FI, Set One is GRANTED. Plaintiff Russell’s motion to compel a response from defendant Glassey to RPD, Set One is GRANTED. Defendant Glassey shall provide, without objection, a response to RPD, Set One and further responses to RFA, Set One and FI, Set One within 20 calendar days of notice of entry of this order. Plaintiff Russell’s request for monetary sanctions is GRANTED in the amount of $3,022.50. Defendant Glassey shall pay $3,022.50 to plaintiff Russell within 20 calendar days of the date of the filing of this Order.

 

 

 

________________­­­____________ DATED:

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

[1] “Each exhibit must be separated by a hard 81/2 x 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. Pages from a single deposition and associated exhibits must be designated as a single exhibit.”

[2] When discovery responses are served after a motion to compel is filed, the court has substantial discretion in deciding how to rule in light of the particular circumstances presented.  (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408-409 (Sinaiko).)  Through this discretion, the court might deny the motion to compel as moot and just impose sanctions, or examine the responses to determine if they are code-compliant. (Sinaiko, supra, 148 Cal.App.4th at p. 409.)