Kaeng Raeng Inc. v. Multivitamin Direct, Inc., et al.		CASE NO. 114CV265928
DATE: 19 December 2014	TIME: 9:00	LINE NUMBER: 25

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 following motions were argued and submitted: (1) the motion of plaintiff Kaeng Raeng, Inc. (“Plaintiff”) to compel further responses to form interrogatories, set one (“FI”) and for monetary sanctions, and (2) Plaintiff’s motion to compel further responses to requests for production of documents, set one (“RPD”) and for monetary sanctions. Defendant Multivitamin Direct, Inc. (“MDI”) filed a formal opposition to the motions.

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

Statement of Facts

This is a breach of contract and business tort action. In its operative second amended complaint (“SAC”), Plaintiff alleges the following: Plaintiff is a company engaged in the discovery, development, manufacture, distribution and sale of various dietary supplements. (SAC, ¶ 13.) In August 2009, Plaintiff entered into a written non-disclosure agreement with MDI, a manufacturer of dietary supplements, in which MDI agreed that it would refrain from disclosing Plaintiff’s confidential information. (SAC, ¶¶ 15, 20.) After several months of negotiation, Plaintiff and MDI entered into a written manufacturing agreement, in which MDI agreed to manufacture Plaintiff’s dietary supplements. (SAC, ¶ 21.) In May 2011, Plaintiff informed MDI of a new product it intended to sell, a daily greens blend. (SAC, ¶ 23.) Shortly after informing MDI of the new product, MDI began to run behind schedule on the production of Plaintiff’s existing products, forcing Plaintiff to postpone the manufacture of the new product. (SAC, ¶ 24.)

Meanwhile, employees of MDI secretly formed a new company, defendant Raw Green Organics (“RGO”), to manufacture and sell a daily greens blend, RawJuvenate, with the same ingredients and marketed in the same manner as Plaintiff’s product. (SAC, ¶¶ 26-28.) After Plaintiff discovered in March 2012 that RGO was marketing RawJuvenate, it contacted MDI, who stated that RGO was a client of MDI and MDI had not disclosed any confidential information to RGO. (SAC, ¶ 29.) Shortly thereafter, Plaintiff learned that RGO had made disparaging comments about Plaintiff’s website. (SAC, ¶ 30.) On May 14, 2012, Plaintiff contacted MDI to discuss RGO’s comments. (SAC, ¶ 30.) MDI represented that RGO was merely a client whose owners lived in New Jersey. (SAC, ¶ 30.) Two days later, RGO copied promotional, marketing, and advertising materials from Plaintiff’s website. (SAC, ¶ 31.) Dissatisfied with RGO’s conduct, Plaintiff again spoke with MDI. (SAC, ¶ 31.) During this conversation, the parties agreed that Plaintiff would transition to a new manufacturer. (SAC, ¶ 31.) While Plaintiff began its search for a new manufacturer, MDI’s production runs of Plaintiff’s existing products consistently ran behind schedule, leaving Plaintiff unable to fulfill orders. (SAC, ¶ 34.) On February 1, 2013, the parties ended their manufacturing relationship. (SAC, ¶ 35.) One month later, Plaintiff discovered that MDI owned and managed RGO. (SAC, ¶ 36.)

In the SAC, Plaintiff asserts seven causes of action against RGO, MDI and MDI’s employees for (1) breach of written contract (non-disclosure agreement), (2) breach of written contract (manufacturing agreement), (3) breach of fiduciary duty, (4) intentional interference with prospective economic relations, (5) negligent interference with prospective economic relations, (6) fraud and deceit, and (7) unfair competition pursuant to Business and Professions Code section 17200.

Discovery Dispute

On 13 June 2014, Plaintiff served the FI and RPD on MDI. After the parties agreed to extend the time to provide responses, MDI served objection-only responses to the FI and RPD on 28 August 2014.

Dissatisfied with the responses, on 3 September 2013, Plaintiff’s counsel, Steven M. Kroll (“Kroll”), sent a meet and confer letter to MDI’s counsel, J. Cross Creason (“Creason”), requesting amended responses within two days. On 5 September 2014, MDI served amended responses to the FI and RPD, consisting of both objections and substantive responses.

Still dissatisfied with the responses, on 14 October 2014, Kroll sent Creason another meet and confer letter, requesting amended responses by 24 October 2014. On 28 October 2014, Creason sent a meet and confer letter in response, in which he argued at length that discovery was premature, but stated that MDI would provide amended responses to some of the RPD.

On 4 November and 6 November 2014, Kroll emailed Creason, requesting an update on the promised supplemental responses. On 7 November 2014, Creason sent an email in response, to which he attached unsigned and unverified discovery responses.

Despite additional meet and confer efforts over the following month, the parties were unable to informally resolve the dispute. On 24 November 2014, Plaintiff filed the instant motions to compel. MDI filed a joint opposition to both motions on 8 December 2014. On 15 December 2014, Plaintiff filed its reply.

Discussion

1. Motion to Compel Further Responses to the FI

Plaintiff moves to compel MDI to provide further responses to FI Nos. 1.1, 3.6, 4.1, 12.1, 17.1 and 50.1-50.3. MDI responded to the FI with both objections and substantive responses.

Plaintiff argues that further responses are warranted because MDI’s objections are without merit and its substantive responses are incomplete and/or evasive. MDI opposes the motion on the grounds that its objections are meritorious and its substantive responses are complete. MDI also contends that discovery is premature because Plaintiff has not served a trade secret designation as required by Code of Civil Procedure section 2019.210.

1. A. Legal Standard

A party propounding interrogatories may move for an order compelling further responses if that party deems an objection is without merit or too general and/or a response is evasive or incomplete.  (Code Civ. Proc., § 2030.300, subd. (a).) The statute does not require any showing of good cause in support of a motion.  (See Cal. Code Civ. Proc., § 2030.300; see also Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221.)  The burden is on the responding party to justify any objections.  (See Coy v. Superior Court, supra, 58 Cal.2d at pp. 220-221.)

1. Meet and Confer

As a threshold matter, MDI asserts that Plaintiff did not meet and confer in good faith prior to filing this motion.

A motion to compel further responses to interrogatories and/or requests for production of documents shall be accompanied by a meet and confer declaration “showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc., §§ 2016.040, 2030.300, subd. (b).) A reasonable and good faith attempt at informal resolution entails something more than argument with opposing counsel. It requires that the parties present the merits of their respective positions with candor, specificity, and support. (See Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1435, 1439.) The level of effort at informal resolution that satisfies the “reasonable and good faith attempt” standard depends upon the circumstances of the case. (See Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431.) The court has discretion to deny discovery absent efforts to meet and confer, but must consider whether a less drastic remedy is appropriate given the circumstances presented. (See Townsend v. Superior Court, supra, 61 Cal.App.4th at p. 1439; Obregon v. Superior Court, supra, 67 Cal.App.4th at p. 434.)

MDI argues that Plaintiff did not adequately meet and confer because it never responded to the substance of its 28 October 2014 meet and confer letter. (MDI’s Opposition, p. 4:4-6.) This argument is not persuasive. After the 28 October 2014 letter, MDI’s counsel continued  meet and confer efforts via telephone with opposing counsel and presented Plaintiff’s position concerning the purported defects of MDI’s discovery responses. Accordingly, the Court finds that Plaintiff met and conferred in good faith prior to filing this motion.

1. Trade Secret Designation

MDI asserts that Plaintiff’s action is, in essence, an action for the misappropriation of trade secrets under the California Uniform Trade Secrets Act (“UTSA”). As such, it argues that Plaintiff must serve a trade secret designation before initiating discovery as required by Code of Civil Procedure section 2019.210. Given that Plaintiff has not served such a designation, MDI claims that it is under no obligation to respond to discovery.

Code of Civil Procedure section 2019.210 states, in pertinent part, that: “In any action alleging the misappropriation of a trade secret under the Uniform Trade Secrets Act, before commencing discovery relating to the trade secret, the party alleging the misappropriation shall identify the trade secret with reasonable particularity….”

In support of its contention that section 2019.210 applies to this action, MDI relies on the Hon. William Elfving’s ruling on its demurrer to Plaintiff’s first amended complaint (“FAC”). In its demurrer, MDI argued that Plaintiff’s causes of action for breach of fiduciary duty, intentional interference with prospective economic relations, negligent interference with prospective economic relations, fraud and deceit, and unfair competition are preempted by the UTSA. The Court agreed, sustaining the demurrer with leave to amend as to these causes of action. (See MDI’s Opposition, Ex. A.)

MDI interprets this ruling as a finding that Plaintiff’s action is one for the misappropriation of trade secrets. This interpretation is mistaken. The Court made no finding that the confidential information alleged in the first amended complaint constituted a trade secret. Instead, the Court found that the claims were preempted even though Plaintiff alleged that the confidential information alleged in the FAC did not constitute trade secrets. (See MDI’s Opposition, Ex. A, p. 3:4-12; see also Mattel Inc. v. MGA Entm’t, Inc. (2010) 782 F.Supp.2d 911, 986-987 [finding that UTSA preempts claims based on misappropriation of confidential information, whether or not that information meets statutory definition of trade secret].).) Thus, the fact that several of these causes of action may be preempted by the UTSA does not transmute this action into one based on the UTSA.

In any event, the plain language of Code of Civil Procedure section 2019.210 indicates that the section only applies in an action “alleging the misappropriation of a trade secret under the Uniform Trade Secrets Act….” Here, Plaintiff does not allege that MDI misappropriated its trade secrets under the UTSA. As such, section 2019.210 does not apply to this action. Accordingly, MDI is obligated to respond to discovery.

1. Objections

In response to the FI, MDI asserted a number of objections to each interrogatory. In its opposition, MDI does not attempt to justify any of these objections. As such, these objections are overruled. (See Coy v. Superior Court, supra, 58 Cal.2d 210 at pp. 220-221.)

In its opposition, MDI, for the first time, raises an objection to FI No. 50.3 on the ground of relevance. As MDI did not raise this objection in its initial response to FI No. 50.3, the objection has been waived. (See Scottsdale Ins. Co. v. Superior Court (1997) 59 Cal.App.4th 263, 273 [objections must be asserted in the initial response to written interrogatories to avoid waiver].)

In light of the foregoing, all of MDI’s objections to the FI are overruled or waived.

1. Substantive Responses

Plaintiff contends that MDI’s substantive responses to FI Nos. 1.1, 3.6, 4.1, 12.1, 17.1 and 50.1-50.3 are incomplete and evasive.

1. FI 1.1

FI No. 1.1 asked MDI to provide the name and contact information of each person who assisted in the preparation of the responses to the interrogatories. MDI responded by stating the names of its attorneys. Plaintiff argues that MDI’s response is not full and complete because it does not provide the contact information of each of these individuals. Plaintiff’s argument is persuasive. Pursuant to Code of Civil Procedure section 2030.220, subdivision (a), “[e]ach answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits.” MDI’s response is not complete because it did not provide the contact information of the individuals in question. Accordingly, a further response is warranted.

2. FI No. 3.6

FI No. 3.6 asked MDI to state whether it has done business under a fictitious business name, and provide the name, the dates each was used, the state and country of the filing, and the address of the principal place of business of each fictitious business name. In response, MDI stated that it registered the fictitious business names “Raw Green Organics” and “Rawjuvenate” in April 2013, in Santa Clara County CA and provided the address of the principal place of business for each fictitious name.

Plaintiff contends that the response is incomplete because MDI states the date that these two fictitious business names were registered, but does not indicate the dates these names were used (i.e., April 2013 to the present). This argument is meritorious. Here, MDI does not provide the dates it has used the fictitious business names, which is the call of the question. As such, the response is incomplete and a further response to FI No. 3.6 is warranted.

3. FI Nos. 4.1 and 12.1

FI No. 4.1 asked MDI to provide information concerning any insurance policies through which it might be insured for claims arising out of this incident. In response, MDI stated that it would “produce copies of relevant declaration pages.” FI No. 12.1 asked MDI to provide the names and contact information of witnesses. In response, MDI referred Plaintiff “to the responses herein.”

Plaintiff persuasively argues that the responses to FI Nos. 4.1 and 12.1 are incomplete because they improperly refer to other documents or responses. Answers to interrogatories must be complete and responsive. (See Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783.) “[I]t is not proper to answer by stating, ‘See my deposition,’ ‘See my pleading,’ or ‘See the financial statement.’” (Id. at pp. 783-784.) Given that MDI improperly refers to other documents in its responses to FI Nos. 4.1 and 12.1, further responses to these interrogatories are warranted.

4. FI No. 17.1

FI No. 17.1 asked for: (a) the identification of all responses to requests for admissions, set one (“RFA”) that are not unqualified admissions; (b) all facts on which an identified response is based; (c) all persons with knowledge of those facts and their contact information; and (d) all documents that support an identified response and the contact information of the person who has each document. MDI responded to FI No. 17.1 by stating that it provided responses which were not unqualified admissions relative to RFA Nos. 1, 3-7, 9, 12-13, 16, 18, 21, and 24-30 and provided information concerning those RFA. Plaintiff contends that the response as to FI No. 17.1 as to each RFA is incomplete and evasive.

1. RFA Nos. 1, 4-7 and 13

RFA Nos. 1, 4-7, and 13 asked MDI to admit that Plaintiff can establish claims for breach of written contract, intentional interference with prospective advantage, negligent interference with prospective economic advantage, fraud, and unfair competition against it (RFA Nos. 1 and 4-7), and that MDI breached the manufacturing contract between the parties (RFA 13). MDI substantively responded to FI No. 17.1 as to these RFA by stating that any breach of the manufacturing contract occurred because Plaintiff delivered the ingredients necessary to make the product in an untimely fashion. MDI further stated that Paul Huang has knowledge of these facts and referred Plaintiff to correspondence between the parties and an email from December 11, 2013 from Plaintiff to Paul Huang. MDI’s responses fail to provide Mr. Huang’s contact information and the contact information of the individuals who have custody of the emails between the parties. As such, MDI’s response to FI No. 17.1 as related to RFA Nos. 1, 4-7 and 13 is incomplete.

1. RFA Nos. 3, 18 and 24

RFA No. 3 asked MDI to admit that Plaintiff can establish a claim for breach of fiduciary duty against it. RFA Nos. 18 and 24 asked MDI to admit that it owed Plaintiff a fiduciary duty as a manufacturer of dietary supplements (RFA No. 18) and that it breached that duty (RFA No. 24). MDI substantively responded to FI No. 17.1 as to these RFA by stating that Plaintiff has not alleged a basis for the imposition of a fiduciary duty and Paul Huang has knowledge of this information. MDI’s response does not provide Mr. Huang’s contact information and does not state whether any documents support this response. Accordingly, MDI’s response to FI No. 17.1 as related to RFA Nos. 3, 18 and 24 is incomplete.

1. RFA No. 9

RFA No. 9 asked MDI to admit that the parties entered into a written manufacturing agreement on or about October 22, 2009. MDI substantively responded to FI No. 17.1 as to these RFA by stating that it denied RFA No. 9 because the agreement governing the parties’ relationship was set forth in a contract dated October 28, 2009. It further stated that Plaintiff requested that the October 28, 2009 contract govern the parties’ relationship because it allowed Plaintiff to have control and ownership over the components of Plaintiff’s product. MDI’s response does not indicate which persons have knowledge of these facts, their contact information, or whether any documents support this response. As such, the response to FI No. 17.1 as related to RFA No. 9 is incomplete.

1. RFA Nos. 12, 21, 25, 26 and 30

RFA Nos. 12 and 21 asked MDI to admit that it breached a written non-disclosure agreement between the parties (RFA No. 12) and used Plaintiff’s confidential information for its own benefit (RFA No. 21). RFA Nos. 25, 26 and 30 asked MDI to admit that Plaintiff shared confidential information concerning its new daily greens product (RFA No. 25), MDI used this information for its own benefit (RFA No. 26), and used the information to establish RGO (RFA No. 30). MDI did not substantively respond to FI No. 17.1 as related to these RFA. Accordingly, MDI’s response to FI No. 17.1 as related to RFA Nos. 12, 21, 25, 26 and 30 is incomplete.

1. RFA No. 16

RFA No. 16 asked MDI to admit that it was a private-label contract manufacturer of dietary supplements for Plaintiff. MDI substantively responded to FI No. 17.1 by stating that its response to RFA No. 16 is based on the uncertainty of the meaning of the phrase “private-label contract manufacturer.” It further referred Plaintiff to a press release issued by Plaintiff and its other responses to the FI. MDI’s response does not indicate which persons have knowledge of these facts, their contact information, and the contact information of the individuals who have custody of the press release. In addition, MDI improperly refers Plaintiff to other interrogatory responses. (See Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783-784 [answers to discovery requests must be complete and may not reference other documents].) Accordingly, the response to FI No. 17.1 as related to RFA No. 16 is incomplete and evasive.

1. RFA No. 27

RFA No. 27 asked MDI to admit that RGO is a fictitious business name of MDI. MDI responded to FI No. 17.1 as to these RFA by stating that it refers Plaintiff to FI No. 3.6. As previously discussed, answers to interrogatories may not reference other responses. (See Deyo, supra, 84 Cal.App.3d at pp. 783-784.) Given that MDI improperly refers to other documents in this response and provides no other information, the response to FI No. 17.1 as related to RFA No. 27 is incomplete and evasive.

 

1. RFA No. 28

RFA No. 28 asked MDI to admit that RGO is not its client. MDI responded to FI No. 17.1 as to these RFA by stating that RGO is its client. MDI’s response does not indicate which persons have knowledge of this fact, their contact information, or whether any documents support this response. As such, the response to FI No. 17.1 as related to RFA No. 28 is incomplete.

1. RFA No. 29

RFA No. 29 asked MDI to admit that it represented to Plaintiff that RGO was its client. MDI responded to FI No. 17.1 as to these RFA by stating that it was aware of a telephone conversation in May 2012 in which Viola Lee referred to RGO as her client and that it is not a matter for Plaintiff’s concern. MDI’s response does not indicate which persons have knowledge of these facts, their contact information, or whether any documents support this response. Accordingly, the response to FI No. 17.1 as related to RFA No. 29 is incomplete and evasive.

1. Conclusion

In sum, MDI’s response to FI No. 17.1 as related to RFA Nos. 1, 3-7, 9, 12-13, 16, 18, 21, and 24-30 is incomplete and/or evasive. Accordingly, a further response is warranted.

5. FI No. 50.1

For each agreement alleged in the pleadings, FI No. 50.1 asked for: (a) the identity of each document that is part of the agreement and the contact information of the person who has each document; (b) each part of the agreement not in writing, the contact information of each person agreeing to that provision, and the date that part of the agreement was made; (c) the identity of all documents that evidence each part of the agreement not in writing and the contact information of each person who has those documents; (d) the identity of all documents that are part of any modification of the agreement and the contact information of each person who has those documents; (e) each modification not in writing, the date of the modification, and the contact information of each person agreeing to the modification; and (f) the identity of all documents that evidence each modification of the agreement not in writing and the contact information of each person who has those documents.

MDI substantively responded as follows: “With respect to Exh. A to the complaint, Responding Party is aware of no other document other than the parties’ October 28, 2009 agreement which superseded Exh. A. As further set forth herein, Exhs. B and C to the complaint were not contracts.”

Plaintiff persuasively argues that the response is not complete and straightforward. The response is not organized by subpart and does not provide the contact information of the individuals who have Exhibit A to the complaint or the October 28, 2009 agreement which purportedly superseded Exhibit A.  In addition, the response does not address whether any part of the agreements or modifications between the parties were oral. As such, the response to FI No. 50.1 is incomplete and a further response is warranted.

6. FI No. 50.2

FI No. 50.2 states: “Was there a breach of any agreement alleged in the pleadings?  If so, for each breach describe and give the date of every act or omission that you claim is the breach of the agreement.” MDI substantively responded as follows: “To the extent his interrogatory refers to the Complaint filed by Plaintiff, the interrogatory should be directed towards Plaintiff. Furthermore, Responding Party has filed a demurrer in this action, but has not yet filed an answer or counter-complaint.”

Plaintiff argues that MDI’s response is incomplete because it failed to answer the question. In opposition, MDI does not address this argument. Plaintiff’s argument is persuasive. A responding party must answer each interrogatory in a complete and straightforward manner. (Code Civ. Proc., § 2030.220, subd. (a).) Here MDI does not even attempt to answer the interrogatory. As such, its response is incomplete and a further response is warranted.

 

 

7. FI No. 50.3

FI No. 50.3 states: “Was performance of any agreement alleged in the pleadings excused? If so, identify each agreement excused and state why performance was excused.” MDI’s substantively responded as follows: “Responding Party responds that the agreement attached to the Complaint as Ex. A was superseded by the parties October 28, 2009 agreement and that the document[s] attached to the Complaint as Ex. B and C were not contracts or agreements between the parties.”

Plaintiff contends that MDI’s response is incomplete and evasive because it does not address whether the performance of any agreement alleged in the pleadings was excused. In opposition, MDI argues that its response is proper because Exhibits B and C to the complaint are not contracts. As such, any performance related to Exhibits B and C would necessarily be excused. In addition, it claims that performance of Exhibit A is excused because it was superseded by a subsequent non-disclosure agreement between the parties. MDI’s argument is persuasive. Its response indicates that performance of the contracts alleged in the pleadings (Exhibits A-C) was excused and provides the reasons why performance is excused. Thus, the response is complete and a further response is not warranted.

1. Conclusion

Based on the foregoing, the motion to compel further responses to the FI is GRANTED IN PART and DENIED IN PART. The motion is GRANTED as to FI Nos. 1.1, 3.6, 4.1, 12.1, 17.1 (as it pertains to RFA Nos. 1, 3-7, 9, 12-13, 16, 18, 21, and 24-30), 50.1 and 50.2. The motion is DENIED as to FI No. 50.3.

1. Motion to Compel Further Responses to the RPD

Plaintiff moves to compel further responses to RPD Nos. 1 and 3-49. MDI responded to the RPD with objections and substantive responses.

Plaintiff argues that further responses to the RPD are warranted because good cause exists for the discovery sought, MDI’s objections lack merit, and its substantive responses are incomplete. MDI opposes the motion on the ground that its objections are meritorious and its substantive responses are complete.

1. Legal Standard

A party propounding a request for production of documents may move for an order compelling a further response if it deems that a statement of compliance is incomplete or an objection in the response is without merit or too general.  (Code of Civ. Proc., § 2031.310, subds. (a)(1)-(3).)  The motion must set forth “specific facts showing good cause justifying the discovery sought by the demand.”  (Code of Civ. Proc., § 2031.310, subd. (b)(1); Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.)  Good cause is established simply by a fact-specific showing of relevance.  (Kirkland, supra, 95 Cal.App.4th at p. 98.)  If good cause is shown, the burden shifts to the responding party to justify any objections.  (Id.)

1. Meet and Confer and Trade Secret Designation

With respect to the RPD, MDI makes the same arguments regarding Plaintiff’s purported failure to meet and confer and serve a trade secret designation as it did concerning the FI. For the same reasons as previously discussed, the Court finds that Plaintiff met and conferred in good faith and is not required to serve a trade secret designation before commencing discovery.

1. Good Cause and Relevance Objections

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. Superior Court (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. Superior Court (1995) 33 Cal.App.4th 1539, 1546.)

RPD Nos. 1-7 seek documents that allegedly disprove Plaintiff’s claims against Defendants. It is readily apparent that documents disproving Plaintiff’s claims would be relevant to the subject matter of this action.

RPD Nos. 8-10 request MDI’s corporate records, including MDI’s articles of incorporation, bylaws, and records of board meetings. Plaintiff persuasively argues that these documents will indicate whether MDI has standing to defend the present action in California and provide information concerning any discussion board members might have had regarding Plaintiff and RGO. As such, these documents will assist Plaintiff in evaluating the case and preparing for trial. (See Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.)

RPD Nos. 11-12 and 15-18 asked for documents regarding fictitious name statements, trademarks, MDI’s manufacturing clients, names of dietary supplements manufactured, and filings with regulatory agencies. Plaintiff argues that these documents are essential to determine whether RGO was a mere client of MDI or in fact a brand name of MDI itself. This argument is persuasive. Plaintiff alleges that MDI represented to it on numerous occasions that RGO was just another client despite the fact that Plaintiff later discovered that MDI owned RGO. (SAC, ¶¶ 29-30, 36.) The documents might show that MDI did not treat RGO as any other client, which would assist Plaintiff in proving that MDI lied about its relationship with RGO.

RPD Nos. 20-24 seek invoices, MDI’s production logs, and documents reflecting the dates and times MDI produced and delivered Plaintiff’s dietary supplements. It is readily apparent that these documents may assist Plaintiff in demonstrating that MDI breached the parties’ manufacturing contract by falling to timely produce Plaintiff’s supplements.

RPD No. 25 seeks all documents regarding workers’ compensation claims filed by MDI’s employees. Plaintiff argues that MDI justified its delays in producing Plaintiff’s dietary supplements by stating that one of its employees was injured on the job. As such, Plaintiff seeks this information to prove or disprove MDI’s excuse for its delay. This argument is persuasive. If MDI intends to defend the breach of contract cause of action on this basis, these documents may assist Plaintiff in rebutting the defense.

RPD Nos. 26-27 and 29-38 asked for documents regarding Plaintiff and its chief executive officer. It is readily apparent that documents regarding Plaintiff and its chief executive officer in MDI’s possession may assist Plaintiff in evaluating the case, preparing for trial, or facilitating settlement. (See Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.)

RPD Nos. 28, and 39-48 request documents concerning RGO and its business practices. Plaintiff persuasively argues that documents regarding RGO will assist it in proving that RGO copied its marketing materials and unfairly competed with it by selling a substantially similar product.

RPD No. 49 seeks all insurance policies under which MDI might be insured for the claims arising out of this action. Under Code of Civil Procedure section 2017.210, a party may obtain discovery of the existence and contents of insurance policies. As such, these documents are discoverable.

In sum, documents responsive to RPD Nos. 1 and 3-49 are relevant to the present action. Accordingly, good cause exists and MDI’s relevance objections to these requests are overruled.

1. Overbreadth Objections

MDI objects to RPD Nos. 11-12, 28 and 39 on the ground that the requests are overbroad. RPD Nos. 11-12 seek documents regarding MDI’s fictitious business statements and trademarks. RPD Nos. 28 and 39 seek documents and emails regarding RGO.

In its opposition, MDI asserts that these requests are “vastly overbroad,” but does not provide any argument explaining the manner in which these requests are overbroad or facts showing that the requests were interposed for an improper purpose. (See MDI’s Separate Statement, pp. 15:24-25, 17:9-10, 38:2-3, & 50:9-10.) Thus, MDI fails to meet its burden to justify these objections. (See Kirkland, supra, 95 Cal.App.4th at p. 98; Coy, supra, 58 Cal.App.2d at p. 220 [objecting party has burden of showing facts from which trial court might find that discovery requests interposed for improper purpose].) Accordingly, MDI’s overbreadth objections to RPD Nos. 11-12, 28 and 39 are overruled.

1. Privacy Objection

MDI objects to RPD No. 25, which seeks documents regarding workers’ compensation claims filed by MDI’s employees between 1 May 2011 and 1 February 2013, on the ground that it intrudes upon the right to privacy of its employees.

The right to privacy protects an individual’s “reasonable expectation of privacy against a serious invasion.” (Pioneer Electronics, Inc. v. Superior Court (2007) 40 Cal.4th 360, 370.) It is well-established that the right to privacy extends to documents contained in an employees’ personnel file. (See Life Technologies Corp. v. Superior Court (2011) 197 Cal.App.4th 640, 652-653.) Where a serious invasion of the right to privacy is shown, the proponent of the discovery must demonstrate that the information sought is “directly relevant” to a claim or defense, and “essential to the fair resolution of the lawsuit.” (Britt v. Superior Court (1978) 20 Cal.3d 844, 850; see also Binder v. Superior Court (1987) 196 Cal.App.3d 893, 901 [holding “direct relevance” requires something more than an assertion that the requested discovery might lead to admissible evidence].) Once direct relevance has been demonstrated, the proponent of discovery must show that the information sought is not available through less intrusive means. (Allen v. Superior Court (1984) 151 Cal.App.3d 447, 449.) The court must then carefully balance the right to privacy on the one hand, and the right of civil litigants to discover facts, on the other. (Pioneer Electronics, Inc. v. Superior Court, supra, 40 Cal.4th at p. 371.)

Here, Plaintiff argues that the documents are directly relevant to MDI’s defense that the delay in manufacturing Plaintiff’s supplements was attributable to an injured worker. This argument is persuasive. The information has a tendency in reason to prove or disprove a fact of consequence to the determination of the action. (See Binder v. Superior Court, supra, 196 Cal.App.3d at p. 901; Evid. Code, § 210.) However, Plaintiff does not demonstrate that the information sought is not available through less intrusive means. (See Allen v. Superior Court (1984) 151 Cal.App.3d 447, 449.) In support of its motion, Plaintiff argues that MDI’s president represented that the production delay was due to an injury to a single worker. (See Plaintiff’s Separate Statement, p. 24:8-10.) As currently drafted, RPD No. 25 seeks all documents concerning workers’ compensation claims filed over a two-year period. Plaintiff makes no showing that it needs documents concerning all workers’ compensation claims over a two year period to evaluate this defense. Given the broad scope of this request, the Court finds that RPD No. 25 is not the least intrusive means to discover this information. As such, MDI’s objection on this ground is sustained.

1. Remaining Objections

While MDI asserted additional objections in its responses to the RPD, it does not defend these objections in its opposition. Therefore, MDI has failed to meet its burden of justifying the remaining objections and the objections are therefore overruled, with the exception of the attorney-client privilege and work product doctrine, which are preserved as to RPD Nos. 1, 3-19, 22-28, 31-34, and 40-48. (See Kirkland, supra, 95 Cal.App.4th at p. 98; Best Products, Inc. v. Superior Court (2004) 119 Cal.App.4th 1181, 1188-1189.)

1. Substantive Responses

In addition to its objections, MDI provided substantive responses to RPD Nos. 1-7, 11-12, 20-21, 23-24, 26-27, 29-35, 40, and 49. Plaintiff asserts that these responses are incomplete and/or evasive.

1. RPD 1-7, 23-24, and 26-27

In response to RPD Nos. 1-7, 23-24, and 26-27, which seek documents disproving Plaintiff’s claims (RPD Nos. 1-7), reflecting the dates and times MDI produced and delivered Plaintiff’s dietary supplements (RPD Nos. 23-24), and referencing Plaintiff and/or Plaintiff’s chief executive officer (RPD Nos. 26-27), MDI agreed to produce the parties’ correspondence and invoices. Plaintiff argues that these responses are incomplete because the RPD at issue did not solely request correspondence and invoices. This argument is persuasive. MDI’s responses suggest that it is in possession of additional documents sought by RPD Nos. 1-7 and 23-24. As such, MDI’s responses are incomplete and further responses are warranted.

 

 

2. RPD 11 and 12

In response to RPD Nos. 11 and 12, which seek all documents related to MDI’s fictitious business statements and trademarks, MDI only agreed to produce documents relating to RGO and RawJuvenate. Plaintiff persuasively argues that MDI’s responses are incomplete because the requests seek documents regarding all of MDI’s fictitious business statements and trademarks, not just those related to RGO and RawJuvenate. As such, the responses are incomplete and further responses are warranted.

3. RPD 20-21

In response to RPD Nos. 20-21, which seek invoices, bills, and payment statements, MDI stated that it would it produce responsive documents in its “care,” possession, or control after a reasonable, and diligent search subject to an appropriate protective order.

Plaintiff argues that MDI’s responses are evasive because it uses the term “care” rather than the term “custody.”  It asserts that “custody” rather than “care” is the appropriate term under Code of Civil Procedure section 2031.220. Plaintiff is correct. A statement that a party will comply with a request for production shall state that all documents in the demanded category that are in “the possession, custody, or control of that party” will be included in the production. (See Code Civ. Proc., § 2031.220.) Accordingly, the responses to RPD Nos. 20-21 are not code-compliant and further responses are warranted.

4. RPD 29-35 and 40

In response to RPD Nos. 29-35 and 40, which seek emails concerning Plaintiff and RGO, MDI stated that it will produce the responsive documents that it is able to locate after a reasonable and diligent search subject to an appropriate protective order. Plaintiff claims that the responses are incomplete because they do not state that MDI will produce all documents in its possession, custody, and control, but merely those it can locate. This argument is persuasive. Under Code of Civil Procedure section 2031.220, a party agreeing to comply with a request for production must state that all documents in the demanded category that are in “the possession, custody, or control of that party” will be included in the production. As MDI omits this statement in RPD Nos. 29-30 and 35, further responses are warranted.

5. RPD 49

In response to RPD No. 49, which seeks all insurance policies under which MDI might be insured for the claims arising out of this action, MDI stated that it would produce copies of the declaration pages of the relevant policies. Plaintiff persuasively contends that the response is incomplete because MDI only agreed to provide the declaration pages. As the request seeks the entire insurance policies, not just the declaration pages, MDI’s response is incomplete and a further response is warranted.

1. Conclusion

Based on the foregoing, the motion to compel further responses to the RPD is GRANTED IN PART and DENIED IN PART. The motion is DENIED as to RPD No. 25. The motion is GRANTED as to RPD Nos. 1, 3-24, and 26-49.

III. Plaintiff’s Requests for Monetary Sanctions

Plaintiff requests monetary sanctions against MDI and its attorneys in connection with its motions to compel further responses to the FI and RPD pursuant to Code of Civil Procedure sections 2030.300, subdivision (d), and 2031.310, subdivision (h), which provide that the court shall impose a monetary sanction against any party or attorney who unsuccessfully makes or opposes a motion to compel further responses to interrogatories or requests for production of documents unless the party or attorney acted with substantial justification or other circumstances make the imposition of a sanction unjust.

1. Motion to Compel Further Responses to the FI

With regard to the motion to compel further responses to the FI, the Court grants the motion to compel as to all but one of the FI at issue. Thus, MDI’s opposition to the motion was unsuccessful, MDI did not act with substantial justification, and no other circumstances make the imposition of a monetary sanction unjust. Accordingly, Plaintiff is entitled to an award of monetary sanctions.

Plaintiff seeks $4,085 in monetary sanctions. Kroll, Plaintiff’s counsel, declares that his hourly rate is $350 and he spent 5.5 hours drafting the instant motion and supporting documents. In addition, he declares that he anticipates spending 4 hours preparing a reply brief and 2 hours preparing for the hearing on the 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, these anticipated attorney fees are not compensable. The hourly rate and hours spent are otherwise reasonable. In addition, Plaintiff requests reimbursement for the $60 filing fee for this motion. This constitutes a reasonable expense. Accordingly, Plaintiff’s request for monetary sanctions in connection with the motion to compel further responses to the FI is GRANTED IN PART in the amount of $1,985.

1. Motion to Compel Further Responses to the RPD

With regard to the motion to compel further responses to the RPD, the Court grants the motion to compel as to all but one of the RPD at issue. Thus, MDI’s opposition to the motion was unsuccessful, MDI did not act with substantial justification, and no other circumstances make the imposition of a monetary sanction unjust. Accordingly, Plaintiff is entitled to an award of monetary sanctions.

Plaintiff seeks $4,085 in monetary sanctions. Kroll declares that his hourly rate is $350 and he spent 5.5 hours drafting the instant motion and supporting documents. In addition, he declares that he anticipates spending 4 hours preparing a reply brief and 2 hours preparing for the hearing on the motion. As previously discussed, the Court does not award sanctions for expenses not yet incurred and consequently these anticipated attorney fees are not compensable. (See Code Civ. Proc., § 2023.030., subd. (a); Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551.) The hourly rate and hours spent are otherwise reasonable. In addition, Plaintiff requests reimbursement for the $60 filing fee for this motion. This constitutes a reasonable expense. Accordingly, Plaintiff’s request for monetary sanctions in connection with its motion to compel further responses to the RPD is GRANTED IN PART in the amount of $1,985.

 

 

Conclusion and Order

Plaintiff’s motion to compel further responses to the FI is GRANTED IN PART and DENIED IN PART. The motion is GRANTED as to FI Nos. 1.1, 3.6, 4.1, 12.1, 17.1 (as it pertains to RFA Nos. 1, 3-7, 9, 12-13, 16, 18, 21, and 24-30), 50.1 and 50.2. The motion is DENIED as to FI No. 50.3. Accordingly, within 20 calendar days of the filing of this order, MDI shall serve verified, code-compliant further responses, without objection, to FI Nos. 1.1, 3.6, 12.1, 17.1 (as it pertains to RFA Nos. 1, 3-7, 9, 12-13, 16, 18, 21, and 24-30), 50.1 and 50.2.

Plaintiff’s request for monetary sanctions in connection with the motion to compel further responses to the FI is GRANTED IN PART in the amount of $1,985.

Plaintiff’s motion to compel further responses to the RPD is GRANTED IN PART and DENIED IN PART. The motion is DENIED as to RPD No. 25. The motion is GRANTED as to RPD Nos. 1, 3-24, and 26-49. Accordingly, within 20 calendar days of the filing of this order, MDI shall serve verified, code-compliant further responses, without objection, to RPD Nos. 1, 3-24, and 26-49, and produce responsive document in conformity with those responses. To the extent that any documents are withheld based upon the attorney-client privilege and/or attorney work product protection, MDI shall provide Plaintiff with a privilege log identifying the documents withheld and providing a factual basis for the privileged claimed.

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Plaintiff’s request for monetary sanctions in connection with its motion to compel further responses to the RPD is GRANTED IN PART in the amount of $1,985.

 

________________­­­____________ 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.”