Alliance Manufactured Homes, Inc. v. S. Su, et al.		CASE NO. 113CV250526
DATE: 22 August 2014	TIME: 9:00	LINE NUMBER: 15

This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose.  Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 21 August 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 22 August 2014, the following motions were argued and submitted: (1) the motion of plaintiff Alliance Manufactured Homes, Inc. (“Alliance”) for terminating, evidentiary, and monetary sanctions against defendant Inception Homes (“Inception”) for a pattern and practice of discovery abuse, or in the alternative, to compel the depositions of Inception’s persons most knowledgeable and for a protective order; and (2) Alliance’s motion for terminating, evidentiary, and monetary sanctions against defendants Samuel B. Su (“Su”), Lan Nguyen (“Nguyen”) and Inception. Su, Nguyen, and Inception (collectively, “Defendants”) filed formal oppositions to both motions, in which they request monetary sanctions.

Statement of Facts

This interference with contract action arises from the attempted purchase of a manufactured home located in Sunnyvale, California. In April 2013, Alliance entered into a contract with Linda Zuber pursuant to which it purchased Ms. Zuber’s mobile home trailer. Following the execution of the contract, Ms. Zuber passed away and her heir, defendant Jeff Zuber, sold the trailer to Inception.

Alliance alleges that Defendants are in the business of buying and selling manufactured homes in a number of manufactured home parks in Santa Clara County. Alliance and Defendants are longtime competitors in the mobile home market. Alliance alleges that Defendants interfered with its agreement with Ms. Zuber by approaching Jeff Zuber in an attempt to acquire title to Ms. Zuber’s trailer home.

In its operative first amended complaint, Alliance asserts twelve causes of action for (1) negligent interference with economic relations, (2) intentional interference with economic relations, (3) negligent interference with prospective economic advantage, (4) intentional interference with prospective economic advantage, (5) breach of contract, (6) breach of implied covenant of good faith and fair dealing, (7) unfair competition, (8) breach of written contract, (9) breach of implied-in-fact contract, (10) breach of covenant of good faith and fair dealing, (11) breach of fiduciary duties, and (12) negligence.

Discovery Dispute

On 17 September 2013, Alliance served an identical set of requests for production of documents (“RPD”) on each of Defendants. Defendants served initial responses to the RPD on 22 October 2013, and supplemental responses on 7 November 2013. Dissatisfied with the responses, Alliance filed a motion to compel further responses to the RPD.

On 21 February 2014, the Court granted the motion to compel further responses as to RPD Nos. 7-9 and 11, and ordered Defendants to serve verified, code-compliant further responses, without objection, and to produce documents in conformity with those responses, within 20 calendar days of the filing of the order.

Defendants served further responses to the RPD on 13 March 2014, consisting solely of substantive responses. Dissatisfied with the responses to RPD No. 9, Alliance filed a second motion to compel further responses to RPD No. 9 as to Su and Inception and to compel compliance with Nguyen’s statement of compliance in regard to RPD No. 9 on 6 May 2014.

On 6 June 2014, the Court granted the motion. The Court ordered Su and Inception to serve verified, code-compliant further responses to RPD No. 9, without objection, and to produce documents in conformity with those responses, within 20 calendar days of the filing of the order. The Court ordered Nguyen, within 20 calendar days of the filing of the order, to either: (1) serve a verified statement that all documents responsive to RPD No. 9 in her possession, custody or control, including any information encoded on the hard drive of her computer, have been produced, or (2) produce all responsive documents in her possession, custody or control that had not yet been produced.

On 13 June 2014, counsel for Alliance and Defendants engaged in an hour-long conference concerning the information sought by RPD No. 9.

On 26 June 2014, Su and Inception served amended responses to RPD No. 9 and responsive documents. Su and Inception responded by stating they would comply with RPD No. 9 and produce all responsive documents in their possession. (See Moore, Decl. Exs. L, and M.) That same day, Nguyen served a verified statement indicating that she had additional documents responsive to the request and the additional responsive documents. (See Moore Decl., Ex. K.)

On 30 June 2014, Alliance’s counsel sent Defendants’ counsel a meet and confer letter, identifying a number of perceived deficiencies in the responses and Nguyen’s statement of compliance. On that same day, Alliance served on Inception four notices of deposition for Inception’s person most knowledgeable (“PMK”), setting the depositions for 22-24 July 2014.

On 10 July 2014, Defendants’ counsel sent a meet and confer letter in reply. In regards to the RPD, counsel acknowledged that, as a result of an oversight, the responses to RPD No. 9 and the statement of compliance were deficient and promised to provide further amended responses promptly. With regard to the PMK depositions, counsel indicated that his firm would be unavailable for the proposed 22-24 July depositions and stated that once his co-counsel returned from arbitration he would provide proposed dates for the depositions.

The following day, on 11 July 2014, Alliance’s counsel sent a meet and confer letter in response. With regard to the depositions, he demanded that Defendants’ counsel immediately provide available dates for the depositions.  In regards to RPD No. 9, he indicated that it is imperative that Defendants “do their job competently” or “bear the full adverse consequences of not fully complying with their discovery duties.” (Moore Decl., Ex. J.)

On 18 July 2014, Defendants’ counsel sent Alliance’s counsel an e-mail, indicating that due to several cancellations Defendants might be available to begin the PMK depositions as early as 24 July 2014 or 25 July 2014. Counsel further stated that should these days prove unworkable, Defendants would propose alternative dates. On that same day, Inception served its objections to the notices of deposition of its PMK and attendant requests for production of documents.

Three days later, on 21 July 2014, Defendants’ counsel placed an unanswered telephone call to Alliance’s counsel to discuss the scheduling of the PMK depositions. On that same day, Su and Inception served further amended responses to RPD No. 9 and Nguyen served an amended statement of compliance.

The following day, on 22 July 2014, Defendants’ counsel sent an e-mail regarding the PMK depositions, indicating that he had not heard from Alliance’s counsel. He further proposed that the PMK depositions take place on 4-5 September 2014, as Defendants did not have time to prepare the witnesses and make travel arrangements for a deposition scheduled to take place in two-days time.

On 24 July 2014, Alliance’s counsel called to inquire about Defendants’ counsel’s availability for a motion to compel on 22 August 2014. According to Defendants’ counsel, Alliance’s counsel hung up on him while he was explaining that no motion was necessary because Defendants were willing to proceed with the depositions and Defendants had complied with the Court’s 6 June 2014 order.

On 28 July 2014, Alliance filed the instant motions for terminating, evidentiary, and monetary sanctions against Inception for a pattern and practice of discovery abuse, or in the alternative, to compel the depositions of Inception’s PMK and for a protective order, and terminating, evidentiary, and monetary sanctions against Defendants for violations of court orders. Defendants filed their oppositions to both motions on 8 August 2014. On 15 August 2014, Alliance filed its reply briefs in support of both motions.

Discussion

I. Compliance with Code of Civil Procedure Section 1005

As an initial matter, Defendants claim that Alliance’s motions were not served in compliance with Code of Civil Procedure section 1005, subdivision (b).

Under Code of Civil Procedure section 1005, subdivision (b), all moving and supporting papers must be served and filed at least 16 court days before the hearing. If the motion is served via mail, the 16-day period is increased by five calendar days. (Code Civ. Proc., § 1005, subd. (b).) If the motion is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the 16-day period is increased by two calendar days. (Code Civ. Proc., § 1005, subd. (b).)

Here, Alliance served its motions on 28 July 2014, 16 court days and two calendar days prior to the hearing. The motion was served via UPS ground, which cannot be categorized as overnight mail as it takes two days to ship from Dublin, CA, where Alliance’s counsel is located, to Laguna Hills, CA, where Defendants’ counsel is located. (See Moore Decl., Exs. P and Q). As such, to comply with Code of Civil Procedure section 1005, subdivision (b), the motion needed to be filed and served 16 court days and five calendar days before the 22 August 2014 hearing, or 25 July 2014. As Alliance did not serve its motions on or before that date, the notice of the motions were defective.

Nevertheless, Defendants filed detailed oppositions, fully addressing the merits of Alliance’s motions. An opposition to a motion on the merits generally constitutes a waiver of the defective service of a motion. (See Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 7.) Accordingly, as Defendants waived this defect, the Court shall consider Alliance’s motions.

II. Motion for Terminating, Evidentiary, and Monetary Sanctions for Violation of Court Orders

            A. Legal Standards

If a party fails to obey an order compelling further responses to requests for production of documents, the court may make those orders that are just, including the imposition of monetary, evidentiary, and/or terminating sanctions. (Code Civ. Proc., § 2031.310, subd. (i).) “A trial court has broad discretion to impose discovery sanctions, but two facts are generally prerequisite to the imposition of nonmonetary sanctions… (1) absent unusual circumstances, there must be a failure to comply with a court order, and (2) the failure must be willful.” (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327; see also Liberty Mutual Fire Ins. Co. v. LcL Administrators, Inc. (2008) 163 Cal.App.4th 1093, 1102.) It is the moving party’s burden to establish the responding party’s failure to obey the earlier discovery order. (See Corns v. Miller (1986) 181 Cal.App.3d 195, 201.)

            B. Compliance with Rules of Court

Defendants assert that Alliance’s memorandum of points and authorities is written in a font size smaller than 12-point. As such, it argues that the memorandum of points and authorities, if formatted using 12-point font, would be longer than 15 pages and thus must be treated as a late-filed paper.

Under California Rules of Court, rule 2.104, all filed papers must be printed in type not smaller than 12 points. In turn, rule 3.1113(d) provides that no opening memorandum may exceed 15 pages. If the memorandum exceeds the 15-page limit, the memorandum must be considered as a late-filed paper. (See Cal. Rules of Court, rule 3.1113(g).) The court may, in its discretion, refuse to consider a late-filed paper. (See Cal. Rules of Court, rule 3.1300(d).)

Here, it does appear that Alliance’s memorandum is printed in less than 12-point font. Given that Alliance’s memorandum is 15 pages already, had the memorandum been properly formatted, it would likely exceed the page limit prescribed by the California Rules of Court. As such, the memorandum must be considered a late-filed paper. While a court may exercise its discretion to refuse to consider a late-filed paper (Cal. Rules of Court, rule 3.1300(d)), the Court sees no reason to do so. (See Kapitanski v. Von’s Grocery Co. (1983) 146 Cal.App.3d 29, 32 [“[c]ognizant of the strong policy favoring the disposition of cases on their merits [citations], judges usually consider whether to exercise their discretion in applying local court rules and frequently consider documents which have been untimely filed.”].) Accordingly, the Court will exercise its discretion to consider Alliance’s motion.

            C. Violation of Court Order

Alliance contends that terminating, evidentiary, and/or monetary sanctions are warranted because Su and Inception have willfully refused to provide verified, code-compliant responses and all responsive documents to RPD No. 9 and Nguyen served a defective verified statement of compliance and did not provide all responsive documents to RPD No. 9 in conformity with the Court’s order.

To comply with the Court’s 6 June 2014 order, Su and Inception were obligated to serve verified, code-compliant further responses to RPD No. 9 and produce documents in conformity with their responses. Nguyen was obligated to serve a verified statement that all documents responsive to RPD No. 9 in her possession, custody or control, including any information encoded on the hard drive have been produced, or produce all responsive documents in her possession, custody or control that had not yet been produced. All responses and documents were to be served within 20 calendar days of the filing of the order (i.e., 26 June 2014).

With regard to Su and Inception’s responses to RPD No. 9, Alliance argues that the responses are not code-compliant because Su and Inception do not affirm that they were producing all documents in their “custody and control” and the responses are unverified.  In addition, Alliance contends that Defendants have not provided documents for computers of which Su has control at locations other than their office on Monterey Road in San Jose, CA and online accounts through which phone records can be located.

With regard to Nguyen’s statement of compliance, Alliance argues that her statement of compliance does not affirm that she would be producing all responsive documents in her “custody and control” and her statement of compliance was unverified.

a. “Custody and Control” Language

Su and Inception acknowledge that they unintentionally failed to insert the words “custody and control” into the amended responses served on 26 June 2014. Thus, Su and Inception’s responses to RPD No. 9 are not code-compliant and do not conform to the Court’s 6 June 2014 order.

With regard to Nguyen’s statement of compliance, she acknowledges that she mistakenly failed to insert the words “custody and control” into her statement of compliance. As such, she concedes that her statement of compliance is not in conformity with the Court’s 6 June 2014 order.

b. Verifications

With regard to the verifications, Defendants’ counsel indicates that the original verifications signed by his clients and mailed to him were lost in the mail. As such, Defendants served scanned copies of the verifications on Alliance on 26 June 2014.

The Court’s 6 June 2014 order required Su and Inception to verify their responses to RPD No. 9 and Nguyen to verify her statement of compliance. The Court’s order contemplated that Defendants’ verifications would be provided in the same manner as a response to a request for production of documents. Under Code of Civil Procedure section 2031.250, subdivision (a), a party to whom a request for production of documents has been directed shall sign the response under oath unless the response contains only objections. The original sworn response must be served on the propounding party. (Code Civ. Proc., §§ 2031.290, subd. (b), 2031.260, subd. (a).)

Here, Defendants acknowledge that the verifications provided on 26 June 2014 were not the originals. Accordingly, Defendants’ service of a copy of the verification is not code-compliant, and does not conform to the Court’s 6 June 2014 order.

 

c. Documents Concerning Other Computers and E-mail Accounts

Alliance next contends that Defendants failed to produce all documents responsive to RPD No. 9. In particular, it argues that Defendants did not produce documents relating to Defendants’ Yahoo e-mail account and computers not located at 2890 Monterey Rd., San Jose, CA.

With regard to the computers other than those located at 2890 Monterey Rd., San Jose, CA, Alliance acknowledges receiving documents concerning Defendants’ computer equipment after the 6 June 2014 order. According to Defendants, these documents constitute all responsive documents in support of its allegations concerning each of the categories identified by Alliance. Alliance, on the other hand, asserts that additional responsive documents must exist.

After reviewing the evidence provided, the Court cannot reach a definitive conclusion as to whether all responsive documents have been produced concerning computers other than those located at 2890 Monterey Rd., San Jose, CA. As discussed above, the moving party has the burden of establishing that the responding party failed to obey the earlier discovery order. (See Corns v. Miller, supra, 181 Cal.App.3d 195 at p. 201.) Since the Court cannot determine whether Defendants produced all responsive documents in compliance with the 6 June 2014 order, Alliance has not met its burden to establish that Defendants failed to comply with this portion of the Court’s 6 June 2014 order.

In regards to Defendants’ Yahoo e-mail account, RPD No. 9 seeks, “ALL DOCUMENTS that RELATE TO all computer equipment used by YOU in the course of performing the acts alleged in the COMPLAINT.” Alliance makes no showing that the term “computer equipment” includes a web-based e-mail account such as a Yahoo online account. Accordingly, Alliance has not met its burden to establish that Defendants failed to comply with this portion of the Court’s 6 June 2014 order.

                                    d. Conclusion

Based on the foregoing, Plaintiff has established that Defendants failed to fully comply with the 6 June 2014 order.

            D. Remedies for Noncompliance

Alliance contends that Defendants’ disobedience was willful because they have repeatedly failed to comply with their discovery obligations. In opposition, Defendants that they attempted in good faith to provide all the information and documents related to the case.

The Court finds that Defendants made a good faith attempt to comply with the subject order. Once informed of the deficiencies with the responses to RPD No. 9 served on 26 June 2014, Su and Inception provided code-compliant amended responses with original verifications on 21 July 2014. In addition, after Alliance informed Nguyen of the deficiencies with her statement of compliance served on 26 June 2014, Nguyen served a statement of compliance with an original verification on 21 July 2014, indicating that she had produced all documents responsive to RPD No. 9 in her possession, custody, and control.  Accordingly, it appears that any disobedience with the 6 June 2014 order was due to inadvertence. As such, nonmonetary sanctions are not warranted. In any case, under the circumstances, the Court finds that the imposition of a terminating or evidentiary sanction would be too extreme. (See Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1293 [sanctions must not go beyond those necessary to compel disclosure and compensate for costs incurred in enforcement of discovery].)

Alliance also requests monetary sanctions against Defendants and their counsel. The court may impose a monetary sanction against a party that fails to obey an order compelling a further response to a request for production of documents if the imposition of a sanction would be just. (Code Civ. Proc., § 2031.310, subd. (i).)

Here, the imposition of a monetary sanction would not be just. Once apprised of the defects in the responses, Su and Inception promptly served further code-compliant responses. Nguyen likewise served an amended statement of compliance in conformity with the Court’s 6 June 2014 order. As such, an award of monetary sanctions is unwarranted.

 

 

            E. Defendants’ Request for Monetary Sanctions

Defendants seek monetary sanctions against Alliance and its counsel pursuant to Code of Civil Procedure sections 2031.310, subdivision (h), and 2030.290, subdivision (c) for making a motion to compel without substantial justification.

Code of Civil Procedure sections 2031.310, subdivision (h) and 2030.290, subdivision (c), provide that a court shall impose a monetary against any party or attorney who makes or opposes a motion to compel a response to interrogatories or further responses to a request for production of documents. Here, Alliance makes a motion to compel compliance with a court order, rather than a motion to compel responses to interrogatories or further responses to requests for production of documents. As such, these sections do not provide a statutory basis for the imposition of monetary sanctions against Alliance. Accordingly, Defendants’ request for monetary sanctions is DENIED.

II. Motion for Terminating, Evidentiary, and Monetary Sanctions, to Compel Deposition of Inception’s PMK, for Protective Order, and Requests for Sanctions

Alliance moves for terminating, evidentiary, and monetary sanctions against Inception for a pattern of discovery abuse, or alternatively, for a protective order and an order compelling Inception to designate corporate representatives to appear on its behalf in response to Alliance’s notices of deposition.

            A. Motion for Terminating, Evidentiary, and Monetary Sanctions

Alliance contends that Inception has engaged in a pattern of willful discovery abuse warranting terminating, evidentiary, and monetary sanctions because Inception refuses to appoint a PMK corporate representative.

With regard to the request for terminating and evidentiary sanctions, generally a court may not impose nonmonetary sanctions absent a failure to comply with a court order concerning the discovery requests at issue. (See Maldonado v. Superior Court (2002) 94 Cal.App.4th 1390, 1399.) Nonmonetary sanctions are only available when a formal order to compel a party to comply with a discovery request would be futile. (See Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1546.)

Here, Inception has not failed to comply with a court order concerning the depositions of its PMK and, as indicated below is willing to make all persons under its control with knowledge of the allegations in Alliance’s first amended complaint available for deposition at a mutually convenient time. As such, nonmonetary sanctions are not warranted.

With regard to the request for monetary sanctions for engaging in a pattern of willful discovery abuse, as more fully discussed below, Inception has expressed at all times a willingness to make its PMK available for deposition at a mutually convenient time. As such, monetary sanctions are not warranted.

B. Motion to Compel Deposition of PMK

Alliance contends that an order compelling Inception to produce its corporate representatives is warranted because its counsel has persistently refused to produce the PMK deponents. In opposition, Inception argues that it is willing to produce the requested deponents as early as 4-5 September 2014, and therefore no order is necessary.

                        1. Legal Standards   

If, after service of a deposition notice, a party to the action, without having served a valid objection under Code of Civil Procedure section 2025.410, fails to appear for the examination or to produce documents for inspection, 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).)

                        2. Meet and Confer Requirement

As an initial matter, Inception contends that Alliance did not adequately meet and confer in good faith prior to bringing this motion to compel.

A motion to compel appearance at a deposition 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” or when the deponent fails to attend the deposition, by a declaration stating that the moving party contacted the deponent to inquire about the nonappearance. (Code Civ. Proc., §§ 2016.040, 2025.450, subd. (b)(2).) 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. (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. (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431.) Moreover, implicit in the requirement that counsel contact the deponent to inquire about the nonappearance is a requirement that counsel listen to the reasons offered and make a good faith attempt to resolve the issue. (Leko v. Cornerstone Bldg. Inspection Service (2001) 86 Cal.App.4th 1109, 1124.) 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.)

Inception argues that Alliance blindly noticed the depositions of Inception’s PMK without checking with its counsel concerning the availability of its witnesses and counsel. As a result, Inception’s counsel was initially unavailable for the scheduled 22-24 July 2014 depositions. After several previously scheduled depositions in another matter went off calendar, Inception’s counsel sent an e-mail and called opposing counsel to indicate that the depositions could go forward on 24-25 July 2014. Two days prior to the scheduled deposition, still not having heard back from opposing counsel, Inception’s counsel sent an e-mail, indicating that there was not sufficient time to prepare witnesses and make travel arrangements for the 24-25 July 2014 deposition and proposed taking the depositions on 4-5 September 2014.

When Alliance’s counsel and Inception’s counsel finally met and conferred via telephone concerning the scheduling of the depositions on 24 July 2014, Inception’s counsel reiterated that he would make all persons at Inception concerning the allegations of the first amended complaint available at a mutually agreed upon time. According to Inception’s counsel, Alliance’s counsel refused to discuss dates for the deposition to take place and hung up the telephone while Alliance’s counsel was still speaking. Alliance’s counsel states that he told Inception’s attorneys that their refusal to provide corporate representatives was unjustified and the boilerplate objections to the notices of deposition were frivolous.

The facts of this action are similar to those of Leko, supra, 86 Cal.App.4th at p. 1124. In Leko, a party unilaterally noticed the deposition of two defendants. (Id. at p. 1122.) Opposing counsel did not calendar the dates. (Id. at p. 1123.) The Friday before the depositions were to take place, the deposing party called to confirm that the depositions would take place and was informed that defendants and their counsel would not be available. (Id.) Opposing counsel, however, indicated that she would produce the deponents at the next mutually convenient date. Rather than taking the scheduled depositions off calendar and rescheduling, the deposing counsel sent a fax chastising opposing counsel for her unprofessional behavior and suggesting that she bring her checkbook to the hearing. (Id.) In response, opposing counsel sent a letter, reiterating her offer to set the depositions on a mutually convenient date. (Id.) The trial court denied the subsequently filed motion to compel and imposed sanctions on the ground that the deposing party did not adequately meet and confer. (Id.) The Court of Appeal affirmed the trial court’s imposition of sanctions on the ground that the deposing party filed an unnecessary motion to compel. (Id. at p. 1124.)

Just as the opposing party in Leko, Inception has consistently affirmed that it will make available for deposition all persons under its control with knowledge of the allegations of Alliance’s first amended complaint at a mutually convenient time. Under these circumstances, the unwillingness of Alliance’s counsel to even propose an alternate date for the depositions and his decision to file a motion to compel instead indicates that Alliance did not engage in a good faith effort to informally resolve the dispute. Accordingly, Alliance’s motion to compel is DENIED without prejudice.

 

 

            C. Motion for Protective Order

Alliance also requests that the Court enter an order to protect Alliance from unwarranted annoyance, oppression or undue burden or expense.

In general, “[a]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter … if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc., § 2017.010.) For good cause shown, a court may make any order that justice requires to protect any party, deponent, or other natural person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense relative to discovery matters. (Code Civ. Proc., § 2025.420, subd. (b).) The party moving for a protective order bears the burden of demonstrating good cause for the order. (See Emerson Elec. Co. v. Superior Court (1997) 16 Cal.4th 1101, 1110.)

The entirety of Alliance’s argument in support of its motion for protective order is as follows: “In addition, the Court should enter a protective order under California Code of Civil Procedure § 2025.420(a) that protects Plaintiff from ‘unwarranted annoyance … oppression, or undue burden or expense.’” Alliance has not identified the specific nature of the order requested or demonstrated that good cause exists for its issuance. In any case, there is no evidence of any unwarranted annoyance, oppression, or undue burden or expense. Accordingly, Alliance’s motion for protective order is DENIED.

            D. Requests for Monetary Sanctions

1. Alliance’s Request

Alliance requests monetary sanctions against Inception and its attorneys in connection with its motion for a protective order and to compel the deposition of Inception’s PMK.

                                    a. Motion for Protective Order

Alliance seeks monetary sanctions under Code of Civil Procedure section 2025.420, subdivision (h), which provides that the court shall impose a monetary sanction against any person who unsuccessfully makes or opposes a motion for a protective order, unless it finds that the one subject to the sanction acted with substantial justification or other circumstances make the imposition of the sanction unjust.

Here, Inception did not unsuccessfully oppose the motion for a protective order. As such, Alliance’s request for monetary sanctions is DENIED.

b. Motion to Compel Deposition

Alliance also requests monetary sanctions pursuant to Code of Civil Procedure section 2025.450, subdivision (g)(1). Subdivision (g)(1) provides that if a motion to compel a deponent’s attendance and testimony is granted, the court shall impose a monetary sanction in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless it finds that the one subject to the sanction acted with substantial justification or other circumstances make the imposition of the sanction unjust.

As indicated above, Alliance’s motion to compel the deposition of Inception’s PMK is denied. Thus, Alliance’s request for monetary sanctions is DENIED.

                        2. Inception’s Request for Monetary Sanctions

Inception seeks monetary sanctions against Alliance and its counsel pursuant to Code of Civil Procedure sections 2031.310, subdivision (h), and 2030.290, subdivision (c).

Code of Civil Procedure sections 2031.310, subdivision (h) and 2030.290, subdivision (c), provide that a court shall impose a monetary against any party or attorney who makes or opposes a motion to compel a response to interrogatories or further responses to a request for production of documents. Here, Alliance makes motions for a protective order and to compel the attendance and testimony of a deponent, rather than a motion to compel responses to interrogatories or further responses to requests for production of documents. As such, these sections do not provide a statutory basis for the imposition of monetary sanctions against Alliance. Accordingly, Inception’s request for monetary sanctions is DENIED.

Conclusion and Order

Alliance’s motion for terminating, evidentiary, and monetary sanctions against Defendants for violations of the Court’s orders is DENIED.

Defendants’ request for monetary sanctions in connection with their opposition to the motion for terminating, evidentiary, and monetary sanctions for violations of the Court’s orders is DENIED.

Alliance’s motion for terminating, evidentiary, and monetary sanctions against Inception for a pattern of discovery abuse, or in the alternative, to compel the depositions of Inception’s PMK, and for a protective order is DENIED.

 

 

 

Alliance’s request for monetary sanctions in connection with the motion to compel the depositions of Inception’s PMK and for a protective order is DENIED.

Inception’s request for monetary sanctions in connection with its opposition to the motion for terminating, evidentiary, and monetary sanctions for a pattern of discovery abuse, or in the alternative, to compel the depositions of Inception’s PMK and for a protective order is DENIED.

 

 

________________­­­____________ DATED:

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