Case Name: Amy Cheng v. Mark McConville, et al.
Case No.: 16CV299696

Plaintiff brings a motion to compel further responses from Defendant McConnville, individually and dba Red Road Construction Company, to a demand for identification and production of documents, and for monetary sanctions. Plaintiff’s amended complaint seeks damages and other relief for breach of a construction contract and related causes of action; Defendant McConnville has filed a cross-complaint alleging breach of contract claims along with defamation and interference with prospective economic relations.

The motion is GRANTED in part, and DENIED in part, as discussed below.

The motion is GRANTED as to document demands 1, 2, 3, 4 and 6. It is DENIED as to demand number 5.

1. As to demand number one, the court finds defendant’s responses are not fully responsive as required by the Code of Civil Procedure – particularly with regard to the general demand in the first sentence, to which defendant has not responded. Defendant has made no showing of burden to justify failing to respond in full in accordance with the Code. Defendant’s written responses do not comply with the specific requirements of §2031.210 – .240. Defendant must serve further verified responses which fully comply with the Code, without further objections other than privilege – and must produce all responsive documents identified, within 30 days. If Defendant asserts attorney-client or other protected privilege objections, Defendant must comply with §2031.240(c), and must provide a privilege log.

2. As to demand number two, the court’s findings and ruling are the same as for demand number one. Any privacy objections are overruled, as the court finds the requested documents are directly relevant to the issues alleged in the pleadings, and that any privacy interests are outweighed by the compelling need for discovery in facilitating the ascertainment of truth in the litigation.

3. As to demand number three, defendant’s response is non-responsive, and defendant has made no showing of burden. Defendant’s written responses do not comply with the specific requirements of §2031.210 – .240. Defendant must serve further verified responses which fully comply with the Code, without further objections – and must produce all responsive documents identified, within 30 days.

4. As to demand number four, defendant’s refusal and objections are not justified and are overruled. The motion is GRANTED as to this request for defendant’s business general ledger for 2016. The court finds this requested document is directly relevant to the issues alleged in the pleadings, and that any privacy interests are outweighed by the compelling need for discovery in facilitating the ascertainment of truth in the litigation. Further response in compliance with the Code, without further objections, and the responsive document(s), shall be served within 30 days.

5. As to demand number five, the motion is DENIED. Although the court finds defendant has not made any showing to justify a trade secret objection, the court finds at this time that the privacy rights of third parties outweigh the somewhat more attenuated direct relevance, and that there is not a compelling need for this discovery.

6. As to demand number six, the motion is GRANTED. As with the general ledger request in number four, defendant’s financial condition and financial transactions are directly relevant to the issues raised in the pleadings, in both the amended complaint and in defendant’s cross-complaint. Any privacy interests are outweighed by the compelling need for discovery in facilitating the ascertainment of truth in the litigation. Again, defendant has made no showing to justify a trade secret objection – which in and of itself, would not warrant a failure to produce documents, as it may only warrant an appropriate protective order. Further response in compliance with the Code, without further objections, and the responsive document(s), shall be served within 30 days.

Monetary Sanctions

Monetary sanctions are properly noticed and requested by plaintiff, and are mandatory against any party, person or attorney who unsuccessfully opposes a motion to compel further responses, absent a finding that the opposing party acted with substantial justification or that other circumstances would make sanctions unjust. (§2031.310(h).) The court cannot make such findings here.

However, the court also cannot find the entire amount of sanctions sought by plaintiff is reasonable under the circumstances. The court finds that neither counsel appears to have made a sufficiently serious effort at a reasonable and good faith attempt at informal resolution of each issue presented by the motion. Both counsel rely only on their initial “position papers” – as the court views them – in which both indicate a willingness to discuss the issues by phone. But there is no evidence that either counsel made any effort to follow up on their respective correspondence. This court expects – and the Code demands – an actual meaningful, good faith effort to meet and confer and attempt to resolve the issues. Further, the court finds the unwillingness of defendant’s counsel to grant a reasonable extension of time for the filing of the motion compounded the failure to adequately meet and confer as it did not allow the parties any additional time to do so (See, e.g., Sections 4 and 9 of the Santa Clara County Bar Association Code of Professionalism). This factor, along with the fact the court cannot make the required findings to forego the imposition of mandatory monetary sanctions, are the reasons the court is compelled to impose sanctions despite the mutual failure of both counsel to adequately meet and confer. The objections and inadequate responses, on which defendant’s counsel stands in her responsive email correspondence, ultimately warranted the filing of the motion and the court’s ruling on these issues.

In addition, the court does not find attorney’s fees reasonably expended with respect to this motion should necessarily amount to two days of counsel’s time. Having reviewed all of the papers submitted, and in light of the court’s findings above, the court finds it reasonable and appropriate to order monetary sanctions in the amount of $3,060 against defendant and his counsel, jointly and severally. The court bases this award on eight hours of attorney’s time at $375 per hour, plus the motion filing fee of $60. Sanctions shall be paid to plaintiff’s counsel within 30 days.