Case Name: Paul Weihs v. Silvaco, Inc.

Case No.: 1-15-CV275777

Motion by Plaintiff Paul Weihs to (1) Compel party-affiliated deponent Iliya Pesic to appear for a deposition, and (2) Compel further responses to requests for the production of documents from Defendant Silvaco, Inc.

Factual and Procedural Background

This is an appeal from a decision of the Labor Commissioner. Plaintiff was employed by Silvaco from April 2006 to April 2014, first as director of engineering Electronic Design Automation methodology, and then as an applications engineer. Plaintiff alleges that at the outset of his employment, he and Silvaco entered into an employment agreement, under the terms of which Plaintiff was entitled to a base salary of $140,000 per annum, benefits, and an annual bonus. The bonus term provided that, if Plaintiff’s performance was satisfactory, he would receive 0.4% of new sales revenue each year, but no less than $60,000 if new sales revenue did not exceed that amount. During his employment, Plaintiff received his base salary. However, despite reassurances that he would be paid, Plaintiff never received his bonuses.

In September of 2014, following his termination, Plaintiff filed a claim with the California Labor Commissioner, seeking the unpaid bonuses. An evidentiary hearing was held on November 13, 2014. During the hearing, Silvaco presented testimony that Plaintiff’s performance had been well below acceptable and accused Plaintiff of fabricating the bonus agreement. No discovery was obtained prior to the hearing and Plaintiff was not allowed to cross-examine Silvaco’s witness. Following the presentation of evidence, the Labor Commissioner ruled in favor of Silvaco and found that the company owed Plaintiff nothing. The ruling was based upon the finding that Plaintiff had failed to present evidence to support his case. Plaintiff was served with notice of the decision on January 6, 2015.

On January 15, 2015, Plaintiff appealed the order, requesting a trial de novo pursuant to Labor Code section 98.2, subdivision (a). The attorneys for Silvaco first appeared in this case on March 10, 2015, at the trial setting conference. The trial is currently set to commence on June 29, 2015.

Discovery Dispute

On March 17, 2015, Plaintiff served Silvaco with Request for Production of Documents (“RPD”), Set One. (Decl. of Scott Berman in Support of Mot. to Compel (“Berman Decl.”), Ex. E.) The requests seek, among other things, documents related to Silvaco’s bonus plans, Plaintiff’s performance, and information concerning Silvaco’s sales and revenue. (Id.)

On the same date, Plaintiff served Silvaco with notices of depositions for four individuals, including Silvaco executive Iliya Pesic. (Id., Ex. C.) The deposition of Mr. Pesic was noticed to occur on May 1, 2014. (Id.)

On April 7, 2015, counsel for Silvaco sent a letter to Plaintiff’s counsel, asserting that Plaintiff had worked directly with Ivan Pesic—who passed away in 2012 and was the father of Iliya Pesic—and that none of the persons sought to be deposed had any knowledge of the alleged bonus agreement. (Id., Ex. G.) Counsel further asserted that discovery is limited in cases brought pursuant to Labor Code section 98.2 and that Plaintiff’s discovery requests exceeded the permissible scope of discovery in an appeal from an order of the Labor Commissioner. (Id.) Plaintiff’s counsel responded on April 14, 2015, explaining that the case law dictates that, under the circumstances present in this case, discovery is permissible. (Id., Ex. H.) Plaintiff’s counsel also outlined the need for the requested discovery.

On April 17, 2015, counsel for Silvaco wrote to Plaintiff’s counsel, indicating that Silvaco remained convinced that discovery was not available in this context, but that it would respond to Plaintiff’s written discovery requests. (Id., Ex. I.) Counsel for Silvaco also informed Plaintiff’s counsel that all of the individuals sought to be deposed (other than Iliya Pesic) were no longer working for Silvaco and that Silvaco would not accept service on their behalf. (Id.) Counsel for Silvaco also requested an extension of time to serve its responses to the written discovery, which counsel for Plaintiff granted.

After learning that three of the persons sought to be deposed were no longer working for Silvaco, Plaintiff served them with deposition subpoenas. (Berman Decl., ¶ 18.) Counsel for Silvaco then informed Plaintiff’s counsel that they were representing the witnesses and that Plaintiff’s counsel was prohibited from speaking directly with any of them. (Id.)

On April 20, 2015, Plaintiff’s counsel asked Silvaco’s counsel to confirm that Iliya Pesic’s deposition would take place, as noticed, on May 1, 2015. (Id., ¶ 19.) Counsel for Silvaco did not respond. (Id.)

On April 23, 2015, Silvaco served Plaintiff with formal objections to the deposition notices. (Id., Ex. D.) As to the notice concerning Ilyia Pesic, Silvaco objected on three grounds:

Appelle SILVACO . . . hereby objects to Appellant’s Notice of Taking Deposition of Iliya Pesic on the grounds that Appellant failed to meet and confer and counsel and the witness is unavailable.

Further, SILVACO, INC. doesn’t believe that Appellant has met the standard for discovery in an appeal from a Labor Commissioner case and therefore finds this discovery in violation of law and unduly burdensome.

Appellee further objects on the grounds that the Notice seeks to take Iliya Pesic’s deposition “day to day until completed” in violation of Code of Civil Procedure section 2025.290 in so far as the notice is intended to seek a deposition lasting more than seven hours.

(Id.)

On April 27, 2015, Plaintiff received verified responses to the RPD. (Id., Ex. F.) The responses consist of objection-only responses and hybrid responses, i.e., objections followed by a statement that Silvaco will comply or is unable to comply because the documents could not be found. (Id.)

On the same day, Plaintiff’s counsel sent an email to counsel for Silvaco, again asking Silvaco to confirm Iliya Pesic’s deposition. (Id., Ex. I.) Plaintiff’s counsel also sent a formal meet and confer letter, addressing Silvaco’s responses to the RPD. Counsel for Silvaco responded via email the same day. In her email, counsel for Silvaco indicated that written objections to the depositions had previously been served and reiterated the position that discovery is not available in an appeal from an order of the Labor Commissioner. (Id., Ex. L.) She also noted that, in any event, she was not available on May 1, 2015. (Id.) Plaintiff’s counsel responded the next day via email. (Id.) In the email, Plaintiff’s counsel indicated that counsel for the parties had been corresponding for weeks regarding the discovery and that Silvaco had failed to provide an agreeable date for Iliya Pesic’s deposition. (Id.) As to the objection to the deposition notice stating that the deposition would occur “from day to day,” Plaintiff’s counsel indicated that “we’re happy to complete Mr. Pesic’s deposition within the allotted seven hours [and] [w]e presume it will take much less time than that.” (Id.)

On May 1, 2015, the date noticed for Iliya Pesic’s deposition, counsel for Silvaco confirmed via telephone that Mr. Pesic would not be produced. (Berman Decl., ¶ 25.)

On May 5, 2015, Plaintiff filed this motion seeking an order compelling Iliya Pesic to appear for his deposition, further responses to the RPD, and monetary sanctions.

Discussion

I. Availability of Discovery in Appeal from Order of the Labor Commissioner

For the reasons below, discovery is available on appeal, and, while it may be limited in the discretion of the trial court under certain circumstances, those circumstances do not exist in this case.

Labor Code section 98.2 provides, in pertinent part, that a decision of the Labor Commissioner may be appealed to the superior court, “where the appeal shall be heard de novo.” (Lab. Code, § 98.2, subd. (a).) The California Supreme Court, however, has made clear that a proceeding under Labor Code section 98.2 “is neither a conventional appeal nor review of the Labor Commissioner’s decision.” (Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1116.) Rather, the statute contemplates “a de novo trial of the wage dispute.” (Id.) “The trial court ‘hears the matter, not as an appellate court, but as a court of original jurisdiction, with full power to hear and determine it as if it had never been before the labor commissioner.’” (Id., at pp. 1116-1117, quoting Collier & Wallis, Ltd. v. Astor (1937) 9 Cal.2d 202, 205.)

In Sales Dimensions v. Superior Court (1979) 90 Cal.App.3d 757, the Court of Appeal considered the scope of discovery available in a proceeding brought under Labor Code section 98.2. The court noted that, while section 98.2 vests the superior court with jurisdiction to hear the appeal de novo, “no procedures for exercising that jurisdiction are specified.” (Id., at p. 764.) Looking to other statutory provisions that vest the Superior Court with jurisdiction to conduct a trial de novo and the cases interpreting those statutes, the court stated that “[i]t therefore appears that where a trial de novo is authorized in the superior court, proceedings are subject to the rules usually applicable to superior court actions.” (Id., at p. 761.) Because discovery is available to ordinary proceedings before the Superior Court, the Court of Appeal suggested that it was likewise available in an appeal from a decision of the labor commissioner. (Id., at p. 762-763 [stating that, “[i]t appears that the legislative purpose in using the language, ‘an appeal . . . de novo,’ [] was to provide for . . . a full new trial in the superior court according to the rules and procedures applicable” and “the proceedings are truly ‘a trial anew in the fullest sense.”].)

The Court of Appeal in Sales Dimensions, however, also noted that one of the purposes of Labor Code section 98.2 is to facilitate the prompt determination of wage disputes. (Id., at p. 763.) In light of that purpose, “[i]f discovery is not effectively controlled in appeals from decisions of the Labor Commissioner, trials will be prolonged rather than expedited.” (Id.) Thus, the court held that “the question whether discovery should be allowed in a proceeding under Labor Code section 98.2 is best left to the discretion of the superior court hearing the appeal.” (Id.) The Court of Appeal provided the trial courts with the following guidance In exercising this discretion: “in proceedings on appeal from a decision of the Labor Commissioner, where the matter is analogous to a small claims case, i.e., the amount in controversy is not great and the issues involved are not complex, the court should give effect to the policy of the discovery statutes and of the Labor Code by limiting or precluding discovery.” (Id.) However, “[t]he rules governing small claims appeals cannot be automatically applied;” “where the amount in dispute is large or the issues complex, discovery may be appropriate.” (Id.)

Applying these principles to this case, it is clear that Plaintiff’s appeal is not analogous to a small claims case. He is seeking payment of bonuses over multiple years, which, at a minimum equal $240,000. Given that Plaintiff is seeking damages in an amount more than 20 times greater than the limit in a small claims case, Silvaco’s contention that this case is analogous to a small claims matter lacks merit. Moreover, contrary to Silvaco’s argument, there is no presumption that discovery is not available in an appeal under Labor Code section 98.2. Indeed, the statement in Sales Dimensions that the rules governing small claims are not “automatically applied” suggests the opposite. (Sales Dimensions, supra, 90 Cal.App.3d at p. 763.) Given the amount in controversy, and in light of the holding in Sales Dimensions, it was reasonable for Plaintiff to assume that discovery would be available. Once Plaintiff served his discovery requests, it logically follows that the burden was then on Silvaco to seek a protective order to limit the scope of discovery. It did not do so, but instead engaged in tactics resulting in Plaintiff being denied discovery until less than a month prior to trial.

Discovery is available in this case to the full extent provided by the Civil Discovery Act.

II. Motion to Compel Iliya Pesic to Appear for Deposition

Plaintiff seeks an order compelling Iliya Pesic (Silvaco’s Executive Chairman of the Board) to appear for a deposition. Iliya Pesic is the son of the late Ivan Pesic whom Plaintiff claims negotiated the initial bonus deal. Plaintiff asserts that Iliya’s testimony is relevant and necessary because he had discussions with Plaintiff concerning the bonus plan; he is privy to information concerning Silvaco’s revenue and accounting methods; and he wrote an assessment of Plaintiff’s work performance. In its opposition, Silvaco disputes that Iliya has knowledge of the facts attributed to him by Plaintiff. Silvaco further argues that Plaintiff has not demonstrated good cause for the deposition of one of the company’s high ranking officers.

A. Legal Standard

Code of Civil Procedure section 2025.450 authorizes motions to compel compliance with a deposition notice, in pertinent part, as follows:

If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, . . . 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 . . . 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 . . . described in the deposition notice.

(Code Civ. Proc., § 2025.450, subd. (a).) Contrary to Silvaco’s assertion concerning the burden of persuasion, if the moving party is only seeking to compel the production of the witness to provide testimony, there is no requirement that the moving party demonstrate good cause for the deposition. (See Code Civ. Proc., § 2025.450, subd. (b)(1) [a showing of good cause is necessary only to compel the production of documents described in the deposition notice].) Thus, the moving party need only show that he or she served the responding party with the deposition notice and the party failed to appear. If the responding party served written objections to the deposition notice under Code of Civil Procedure section 2025.410, the burden of demonstrating the validity of those objections is on the party making the objections. (See Fairmont Ins. Co. v. Super. Ct. (2000) 22 Cal.4th 245, 255 [stating the default rule that the party objecting to discovery bears the burden of justifying the objections].)

B. Analysis

Silvaco served written objections to Plaintiff’s notice to depose Iliya Pesic. Code of Civil Procedure section 2025.450 authorizes motions to compel compliance with a deposition notice only where the deponent has not served a valid objection under Code of Civil Procedure section 2025.410. The question therefore is whether Silvaco’s objections are “valid” within the meaning of Code of Civil Procedure section 2025.450.

Code of Civil Procedure section 2025.410 provides that a deponent or party may assert objections based upon a defect or irregularity in the deposition notice, i.e., that the notice does not comply with Code of Civil Procedure sections 2025.210 through 2025.290. (Code Civ. Proc., § 2025.410, subd. (a) [objections as to “irregularity” in deposition notice are waived unless the “party promptly serves a written objection specifying that error or irregularity at least three calendar days prior to the date for which the deposition is scheduled.”].) If a party or deponent asserts objections based on grounds other than defects in the notice, the party or deponent must nevertheless appear for the deposition as noticed, unless the party or deponent files a motion to stay the taking of the deposition and quashing the deposition notice (Code Civ. Proc., § 2025.410, subd. (c)) or a motion for a protective order (Code Civ. Proc., § 2025.420).

Here, Silvaco objected to the deposition notice on three grounds: (1) Plaintiff did not meet and confer prior to serving the notice of deposition and neither counsel nor Iliya were available on the date noticed; (2) discovery is not available in an appeal from a decision of the Labor Commissioner; and (3) the provision in the notice stating that the deposition would take place from “day to day until completed” violates the seven-hour time limit prescribed by Code of Civil Procedure section 2025.290.

The first two objections do not concern defects or irregularities in the deposition notice. They are therefore not objections made pursuant to Code of Civil Procedure section 2025.410, which are the only objections contemplated by section 2025.450. Moreover, even if section 2025.450 contemplated objections other than those brought under section 2025.410, which it does not, the objections themselves lack merit.

As to the first objection, there is nothing in the Code of Civil Procedure requiring a party to clear a deposition date with the deponent prior to noticing the deposition. (See Code Civ. Proc., § 2025.280, subd. (a) [“The service of a deposition notice . . . is effective to require any deponent who is a party to the action . . . to attend and testify”].) Indeed, if a deponent is unavailable for a noticed deposition date, and the parties cannot agree to an alternative date, the Code specifically authorizes a deponent to file a motion for a protective order concerning the timing of the deposition. (Code Civ. Proc., § 2025.420, subd. (b)(2).) Additionally, the objection is factually inaccurate. Plaintiff’s counsel did meet and confer prior to the objections being served and counsel for Silvaco did not provide any dates for the deposition.

The second objection similarly lacks merit. As discussed above, contrary to Silvaco’s position in this case, discovery is available in appeals from a decision of the Labor Commissioner. (Sales Dimensions, supra, 90 Cal.App.3d at p. 763.)

Silvaco’s third objection is the only one directed to an irregularity in the deposition notice. More specifically, Silvaco objected to the boilerplate language that the deposition would occur from “day to day until completed,” which, according to Silvaco, violates the seven-hour time limit prescribed by Code of Civil Procedure section 2025.290. As an initial matter, Silvaco has not attempted to justify its objection on this ground, which is probably a result of Plaintiff’s counsel notifying counsel for Silvaco during the meet-and-confer process that the deposition would not take more than seven hours. Silvaco’s failure to justify the objection is grounds alone to find the objection invalid. (See Fairmont Ins. Co., supra, 22 Cal.4th at p. 255 [stating that the party objecting to discovery bears the burden of justifying the objections].) Moreover, the validity of the objection is not clear on its face. Code of Civil Procedure section 2025.290, subdivision (b)(4) provides that the presumptive seven hour time limit does not apply “[t]o any case brought by an employee . . . against an employer . . . .” Silvaco has not explained why this provision is inapplicable.

Silvaco spends much of its opposition arguing that Plaintiff should not be allowed to take the deposition of Iliya Pesic based on the holding in Liberty Mutual Insurance Company v. Superior Court (1992) 10 Cal.App.4th 1282. There, the court held that, when a party seeks to depose an official at the highest level or “apex” of a corporation, and the official moves for a protective order to prohibit the deposition, the burden shifts to the plaintiff to show good cause that the official has unique or superior personal knowledge of discoverable information. (Id., at p. 1289.) Silvaco has not moved for a protective order.

Silvaco did not serve any valid objections to the deposition notice within the meaning of Code of Civil Procedure section 2025.450. Plaintiff’s motion to compel compliance with the deposition notice is therefore GRANTED.

III. Motion to Compel Further Responses to RPD

Plaintiff moves to compel further responses to RPD Nos. 6, 8, 10, 11, and 24-29, asserting that Silvaco’s objections to the requests lack merit.

A. Legal Standard

On receipt of a response to requests for the production of documents, the demanding party may move for an order compelling further responses to the demand if the demanding party deems that any of the following applies:

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 an order compelling further responses “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1); Kirkland v. Super. Ct. (2002) 95 Cal.App.4th 92, 98.) 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. Super. 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.)

B. RPD No. 6

RPD No. 6 seeks “ALL DOCUMENTS RELATING TO ANY policy OR procedure RELATING TO the payment of incentive, commission OR bonuses to [SILVACO] employees.” (Pl.’s Reply Separate Statement (“Reply SS”), p. 8.) Silvaco objected to the request on the grounds of relevance, overbreadth, undue burden, and on the ground that the documents sought may contain the private financial information of non-party individuals. (Id., p. 9.)

As to good cause, Plaintiff focuses on the bonus plan clause in his employment agreement, which provides as follows:

The Bonus Plan will be measured as a percentage of the gross revenue of the entire sales team. The bonus for Paul Weihs will be calculated from each sales manager sales performance and will be calculated and paid quarterly at 0.4% of new sales revenue. In March of each calendar year, if Paul Wiehs’ performance is satisfactory and the total accumulative bonus payout is less than $60k, [Silvaco] will pay the difference between $60k and what was paid out for that 12 month period.

(Supp. Decl. of Berman, Ex. S.) Plaintiff asserts that “Silvaco’s policies and procedures for paying bonuses to employees are essential for determining how much [Plaintiff] is owed pursuant to his bonus plan.” (Id.)

Silvaco attacks the relevance of the information sought by the request as follows: “[Plaintiff] grasps at straws to explain why his requests are relevant, but his arguments are all premised on the false assertion that an employment agreement exists. This is not a case where the parties dispute the interpretation of an agreement or whether a bonus was earned. It is much more fundamental: the existence of the agreement is disputed.” (Opp., pp. 1-2.) This argument ignores the standard for relevance in the discovery context. The Code of Civil Procedure authorizes discovery “regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action.” (Code Civ. Proc., § 2017.010, emphasis added.) For purposes of discovery, relevance is construed liberally in favor of disclosure (Emerson Electric Co. v. Super. Ct. (1997) 16 Cal.4th 1101, 1107), and any doubt is generally resolved in favor of permitting discovery (Colonial Life & Acc. Ins. Co. v. Super. Ct. (1982) 31 Cal.3d 785, 790). Information is regarded as “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.)

Plaintiff claims that he had a written employment contract with Silvaco that included a bonus provision. Silvaco disputes the existence of the agreement. Far from diminishing the relevance of information sought by Plaintiff concerning his entitlement to a bonus, the dispute on this issue solidifies its relevance. (See Burke v. Super. Ct. (1969) 71 Cal.2d 276, 281-281 [a party may be compelled to disclose the evidence supporting its claims or contentions].) Plaintiff has demonstrated the relevance of the information sought and set forth facts justifying the discovery. Because Plaintiff has demonstrated good cause, the burden shifts to Silvaco to justify its objections. (Kirkland, supra, 95 Cal.App.4th at p. 98.)

Silvaco objected to RPD No. 6 on the grounds of relevance, overbreadth, undue burden, and on the ground that the documents sought may contain the private financial information of non-party individuals. As discussed above, Silvaco’s relevance objection is overruled. Silvaco does not attempt to justify its objections on the grounds ofoverbreadth and undue burden. Those objections are therefore overruled. Silvaco does attempt to justify its privacy objection, stating that the request “improperly seeks to invade the Constitutionally-protected rights of privacy of non-parties to this litigation, [namely] Silvaco’s other employees.” (Reply SS, p. 11.)

The right of privacy established by Article I of the California Constitution protects an individual’s “reasonable expectation of privacy against a serious invasion.” (Pioneer Electronic, Inc. v. Super. Ct. (2007) 40 Cal.4th 360, 370.) There is a legally recognized privacy interest in a person’s financial affairs. (Fortunato v. Super. Ct. (2003) 114 Cal.App.4th 475, 480; see also Valley Bank of Nevada v. Super. Ct. (1975) 15 Cal.3d 652, 656-657 (“Valley Bank”).) The right of privacy, however, is not absolute, and where privacy rights are implicated, the court must “carefully balance” the right of privacy and the right of civil litigants to discover relevant facts. (Valley Bank, supra, 15 Cal.3d at p. 657.)

To obtain private information, the party seeking discovery must show that the discovery sought is “directly relevant” to a particular cause of action or defense. (Britt v. Super. Ct. (1978) 20 Cal.3d 844, 859-862.) Direct relevance is a higher standard than the “relevancy to the subject matter” standard generally applicable to discovery requests. (Id., at p. 859.) According to the California Supreme Court, direct relevance means that the discovery sought is essential to the fair resolution of a matter in dispute. (Id.) If direct relevance is shown, the court must then balance the right of privacy, on the one hand, and the right of civil litigants to discover relevant facts, on the other. (Valley Bank, supra, 15 Cal.3d at p. 657.)

Concerning direct relevance, Plaintiff’s primary claim is that Silvaco breached the bonus provision in his employment agreement. Moreover, Silvaco itself has used the information which it now seeks to deny to Plaintiff: during the hearing before the Labor Commissioner, Silvaco’s representative testified that Silvaco has never agreed to pay a bonus to any executive or manager and therefore would never have agreed to pay a bonus to Plaintiff. (Reply SS, p. 9.) Given Plaintiff’s claims and Silvaco’s contentions at the wage hearing, Silvaco’s policies and procedures relating to the payment of bonuses are directly relevant in this case.

Turning to the balance between Plaintiff’s right to discover relevant facts and the third parties’ right to privacy, the following facts are significant. First, Silvaco’s privacy argument is lacking: Silvaco has not identified the nature of the allegedly private information other than to say that the documents sought may contain private financial information. Second, Plaintiff is not seeking any personal information and he has no objection to Silvaco redacting personal information from the documents produced. Finally, Plaintiff expressed to Silvaco during the meet-and-confer process, and in his moving papers, that he has no problem executing a protective order concerning the documents. Indeed, Plaintiff’s counsel states that he made this suggestion to Silvaco prior to bringing the motion and Silvaco did not respond. Given these facts, Plaintiff’s need for the information outweighs the asserted right to privacy. Plaintiff’s motion to compel a further response to RPD No. 6 is therefore GRANTED.

C. RPD Nos. 8, 10, and 11

RPD No. 8 seeks documents relating to the “goals” set for Plaintiff during his employment. and RPD No. 10 seeks documents related to whether and to what extent Plaintiff failed to meet his goals during his employment. Similarly, RPD No. 11 seeks documents relating to any “description of [Plaintiff’s] job responsibilities . . . including . . . DOCUMENTS RELATING TO job descriptions, project descriptions, objectives, goals and targets.” (Reply SS, p. 19.)

Concerning good cause, Plaintiff once again focuses on the bonus provision in his employment agreement, which conditioned entitlement to a bonus on satisfactory performance. Plaintiff also cites testimony offered by Silvaco’s representative to the Labor Commissioner that Plaintiff’s performance was not satisfactory. Given the issues in this case, information concerning job related goals set for Plaintiff, whether he met those goals, and descriptions of the projects Plaintiff worked on is relevant to the subject matter of this case. Plaintiff has therefore demonstrated good cause for the discovery, shifting the burden to Silvaco to justify its objections to the request.

Silvaco objected to RPD Nos. 8 and 10 and the ground that the word “goals” is vague and ambiguous. To justify a vagueness objection, the responding party must demonstrate that the request at issue is totally unintelligible. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783.) Silvaco has not made such a showing. The objection is therefore overruled and Plaintiff’s motion to compel further responses to RPD Nos. 8 and 10 are GRANTED.

Silvaco objected to RPD No. 11 on the grounds of overbreadth, ambiguity, undue burden, and because the request seeks proprietary trade secret information. (Reply SS, p. 19.) In its opposition to Plaintiff’s motion, Silvaco does not attempt to justify its objections as to overbreadth, ambiguity, and undue burden. Instead, Silvaco focuses on its unavailing argument that discovery is not available in an appeal under Labor Code 98.2. Because Silvaco has failed to justify its objections on the grounds of overbreadth, ambiguity, and undue influence, those objections are overruled.

Silvaco does discuss its trade secrets objection, stating that documents containing “detailed job responsibilities, project descriptions, objectives, goals, and targets are proprietary and constitute Silvaco’s trade secrets.” (Reply SS, p. 22.) Under Evidence Code section 1060, not cited by Silvaco, the owner of a trade secret has a privilege to prevent disclosure of the secret. However, the party claiming the privilege has the burden of establishing its existence, i.e., that the information involved is in fact a trade secret. (Bridgestone/Firestone, Inc. v. Super. Ct. (1992) 7 Cal.App.4th 1384, 1393.) To carry this burden, the party asserting the privilege must provide an affidavit or declaration listing the declarant’s qualifications to give an opinion, identifying the alleged trade secret, identifying the documents disclosing the trade secret, and presenting evidence that the secret qualifies as a “trade secret.” (Stadish v. Super. Ct. (1999) 71 Cal.App.4th 1130, 1144-1145.) Silvaco has not attempted to comply with these requirements and has not submitted such a declaration. The objection is therefore overruled and Plaintiff’s motion to compel a further response to RPD No. 11 is GRANTED.

D. RPD Nos. 24-29

RPD Nos. 24-29 collectively seek documents reflecting Silvaco’s sales, revenue, and profits during the time Plaintiff worked for the company. Silvaco responded to RPD Nos. 24-26 as follows:

Silvaco objects on the ground that this request is not reasonably calculated to lead to the discovery of admissible evidence and improperly seeks discovery of corporate wealth prematurely under Civil Code section 3295 and in violation of law since this case is not one involving punitive damages. The request also seeks proprietary information.

(Reply SS, pp. 24, 28, 31.) Silvaco gave the same response to RPD Nos. 27-29, but included the additional objections of vagueness, overbreadth, and third party financial privacy. (Id., at pp. 35, 39, 43.)

Plaintiff has demonstrated good cause for the discovery. Civil Code section 3295 prohibits pretrial discovery of a defendant’s financial condition in the absence of a court order when the discovery relates to the issue of punitive damages. (Civ. Code, § 3295, subd. (c).) Contrary to Silvaco’s assertion, Plaintiff is not seeking the documents for purposes of punitive damages. Rather, the bonus clause in the employment contract provided that Plaintiff was entitled to 0.4% of new sales revenue, “measured as a percentage of the gross revenue of the entire sales team,” and “calculated from each sales manager[’]s sales performance.” (Reply SS, p. 24.) In other words, the documents are relevant to the determination of the amount Silvaco owes Plaintiff. Because Plaintiff has demonstrated good cause, the burden shifts to Silvaco to justify its objections. (Kirkland, supra, 95 Cal.App.4th at p. 98.)

In light of the above discussion, the objections to each of the requests on the grounds of relevance and Civil Code section 3295 are overruled. As to the objection on the basis that the requests seek proprietary information, as discussed above, the party claiming the trade secret privilege bears the initial burden of demonstrating the existence of the secret. (Bridgestone/Firestone, Inc., supra, 7 Cal.App.4th at p. 1393.) Silvaco has not filed the requisite affidavit identifying the alleged trade secret and presenting evidence that the secret qualifies for protection. (Stadish, supra, 71 Cal.App.4th at p. 1144-1145.) The objections on the basis of “proprietary information” are therefore overruled.

In its opposition to Plaintiff’s motion, Silvaco argues that the information sought by RPD Nos. 24-29 seek information that is protected from disclosure by the corporation’s right to financial privacy. This objection was not expressly raised in Silvaco’s responses and is therefore waived. (See Scottsdale Ins. Co. v. Super. Ct. (1997) 59 Cal.App.4th 263, 273.) Moreover, even if Silvaco’s “proprietary information” objections were construed as privacy objections, the objections remain without merit. Contrary to Silvaco’s assertion in its opposition that corporations have a right to privacy, the extent to which a business entity may object to discovery requests on the basis of privacy is unsettled. (Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 314 fn.16.) The Fourth District Court of Appeal has suggested that the right to privacy extends to corporations. (H & M Associates v. City of El Centro (1980) 109 Cal.App.3d 399, 409.) In a later decision , however, the Fifth District Court of Appeal explicitly held that Article I of the California Constitution applies to “people” and that “[t]he constitutional provision simply does not apply to corporations.” (Roberts v. Gulf Oil Corp. (1983) 147 Cal.App.3d 770, 791.) Since the issuance of H & M Associates and Roberts, the courts of appeal have struggled with the degree to which business entities may object to discovery on the basis of privacy. (Nativi, supra, 223 Cal.App.4th at p. 314.) In dealing with this issue, the court of appeal has stated that “the strength of the privacy right being asserted by a nonhuman entity depends on the circumstances[,] [including] . . . the strength of the nexus between the artificial entity and human beings and the context in which the controversy arises.” (Ameri-Medical Corp. v. Worker’s Comp. Appeals Bd. (1996) 42 Cal.App.4th 1260, 1288.)

Silvaco makes no attempt to address this issue, and simply asserts that it has a right to privacy. Because Silvaco has failed to explain why the documents sought by the requests are protected by a purported corporate right of privacy, the objections on that basis are overruled.

Plaintiff’s motion to compel further responses to RPD Nos. 24-26 is GRANTED.

As to the additional objections made to RPD Nos. 27-29, Silvaco only attempts to justify its objection on the ground of third party financial privacy. The objections on the bases of overbreadth and vagueness are therefore overruled. Concerning the third party privacy objections, Plaintiff has shown that the information sought is directly relevant. One of the central issues in this case is amount of the bonus, if any, owed to Plaintiff. As discussed more fully above, under the parties’ agreement, the bonus is calculated by taking a percentage of Silvaco’s sales revenue. Plaintiff cannot make that calculation without seeing the documents reflecting Silvaco’s revenue for the years in question. Concerning the balance between Plaintiff’s right to discovery and the third parties’ right of privacy, the analysis applied to RPD No. 6 applies equally to RPD Nos. 27-28. Silvaco has not identified the nature of the allegedly private information other than to say that the document may contain private financial information of its employees. Moreover, Plaintiff is not seeking any personal information. Silvaco’s privacy objections are overruled.

Plaintiff’s motion to compel further responses to RPD Nos. 27-29 is GRANTED.

IV. Requests for Monetary Sanctions

A. Plaintiff’s Request

Plaintiff requests monetary sanctions in the amount of $7,500 against Silvaco and its attorneys under Code of Civil Procedure sections 2025.450 and 2031.310. Those statutes provide that the court shall impose monetary sanctions if a motion to compel compliance with a deposition notice is granted (Code Civ. Proc., § 2025.450, subd. (g)(1)), and against a party that unsuccessfully opposes a motion to compel further responses to requests for production of documents (Code Civ. Proc., § 2031.310, subd. (h)), unless the party subject to the sanction acted with substantial justification or other circumstances make the imposition of the sanction unjust. Silvaco did not successfully oppose Plaintiff’s motions and did not act with substantial justification by asserting and maintaining its objections to the discovery requests, and no other circumstances make the imposition of the sanction unjust. Accordingly, monetary sanctions are authorized.

Plaintiff’s counsel declares that he spent 22.3 hours “participating in the ‘meet and confer’ process, and researching and preparing this motion to compel” at an hourly rate of $415. (Berman Decl., ¶ 26.) The total amount of attorney’s fees incurred is $9,337. (Id.) Of that total amount, Plaintiff seeks $7,500, which Plaintiff’s counsel explains is to “offset” the time spent during the meet and confer process. The hourly rate and hours spent are reasonable. Accordingly, Plaintiff’s request for monetary sanctions is GRANTED.

B. Silvaco’s Request

Silvaco requests monetary sanctions in the amount of $5,205 against Plaintiff and his counsel. Silvaco asserts that Plaintiff’s counsel failed to meet and confer prior to bringing the motion. Monetary sanctions are available for a party’s failure to meet and confer. (Code Civ. Proc., § 2023.020.) However, the record shows that Plaintiff’s counsel sufficiently attempted informal resolution of the parties’ dispute through the meet and confer process prior to bringing the motion. Silvaco also seeks monetary sanctions under Code of Civil Procedure section 2031.300, subdivision (c). That statute is not applicable in this case as it applies to motions to compel initial responses to inspection demands—not motions to compel further responses, which is governed by section 2031.310, subdivision (h). In any event, Silvaco did not successfully oppose Plaintiff’s motion. Accordingly, Silvaco’s request for monetary sanctions is DENIED.

Conclusion

Plaintiff’s motion to (1) compel Iliya Pesic to appear for a deposition, and (2) provide further responses to RPD Nos. 6, 8, 10, 11, and 24-29 is GRANTED. Within 20 calendar days of the notice of this order, at a date and time mutually agreed upon by the parties, Iliya Pesic shall appear for his deposition. Additionally, Silvaco shall provide further responses, without objection, to RPD Nos. 6, 8, 10, 11, and 24-29 within 20 calendar days of notice of this order.

Plaintiff’s request for monetary sanctions is GRANTED. Accordingly, within 20 calendar days of notice of this order, Silvaco shall pay $7,500 to Plaintiff’s counsel.

Silvaco’s request for monetary sanctions is DENIED.