Case Name: Bang Vo v. Restoration Robotics, Inc., et al.

Case No.: 17CV312695

Plaintiff Bang Vo’s Motion to Compel Discovery Responses and for Sanctions

Factual and Procedural Background

Plaintiff Bang Vo (“Vo”) alleges defendants Restoration Robotics, Inc. (“RR”), Ryan Rhodes (“Rhodes”), and Lisa Markle (“Markle”) discriminated, harassed, and wrongfully terminated him because of his age and national origin.

On July 6, 2017, plaintiff Vo filed a complaint against defendants RR, Rhodes, Markle, and Charlotte Holland (“Holland”).

On August 21, 2017, plaintiff Vo filed a first amended complaint (“FAC”) which removed Holland as a defendant. The FAC asserted causes of action for:

(1) Discrimination in Violation of FEHA: Disparate Treatment
(2) Discrimination in Violation of FEHA: Disparate Impact
(3) Harassment in Violation of FEHA
(4) Aiding and Abetting Conduct Forbidden by the FEHA
(5) Failure to Prevent Discriminatory and Harassing Practices in Violation of FEHA
(6) Wrongful Termination in Violation of Public Policy

On September 25, 2017, defendant RR filed its answer to plaintiff Vo’s FAC.

On September 28, 2017, plaintiff Vo dismissed, without prejudice, the fourth cause of action of his FAC.

On October 2, 2017, defendants Rhodes and Markle each filed separate answers to plaintiff Vo’s FAC.

IV. Plaintiff Vo’s motion to compel defendant RR’s further responses is GRANTED, in part, and DENIED, in part.

A. Discovery dispute.

On July 27, 2017, plaintiff Vo served defendant RR with, among other discovery, special interrogatories (“SI”), set one; form interrogatories—general (“GFI”), set one; form interrogatories—employment (“EFI”), set one; and a request for production of documents (“RPD”), set one.

On September 20, 2017, plaintiff Vo received defendant RR’s responses to RPD, set one, along with a letter stating documents would be produced on a rolling basis and more will be forthcoming. Defendant RR served initial written responses to the first set of SI, GFI, and EFI by September 22, 2017.

On October 4, 2017, plaintiff Vo served defendant RR with RPD, set two, and GFI, set two.

On November 9, 2017, defendant RR served responses to RPD, set two, and GFI, set two.

On January 24, 2018, plaintiff Vo’s counsel sent a meet and confer letter to defendants’ counsel addressing purportedly deficient responses to set one of the SI, GFI, EFI, and RPD, and to set two of the GFI and RPD. Counsel met and conferred telephonically on February 13, 2018. On March 21, 2018, plaintiff Vo’s counsel memorialized the telephone conversation in a further meet and confer letter.

On June 11, 2018, defendant RR served further responses to SI, set one, numbers 55 – 70, 77 – 94, and 101 – 109 and produced thirty additional pages of documents. On June 28, 2018, defendant RR produced two additional pages of documents.

Defendant RR did not produce any further responses or any other additional documents.

On July 13, 2018, plaintiff Vo filed the motion now before the court which seeks, in part, to compel defendant RR’s further response to SI, set one, numbers 22, 71 – 76, 95 – 100; GFI, set one, numbers 4.1, 12.1 – 12.7, and 50.1 – 50.6; GFI, set two, number 15.1; EFI, set one, numbers 201.3, 201.6, 209.2, 211.2, and 211.3; and RPD, set one, numbers 2, 3, 5 – 44, and 46 – 49.

B. Interrogatories.

“On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (1) An answer to a particular interrogatory is evasive or incomplete. (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate. (3) An objection to an interrogatory is without merit or too general.” (Code Civ. Proc., §2030.300.) The party objecting to a discovery request bears the burden of explaining and justifying the objections. (See Coy v. Super. Ct. (1962) 58 Cal.2d 210, 220-221.)

In opposition, defendant RR’s counsel declares further responses to a number of the interrogatories at issue were served on August 1, 2018. In particular, defendant RR served further responses to SI, set one, numbers 71 – 76 and 95 – 97; GFI, set one, numbers 4.1, 12.1 – 12.7, and 50.1 – 50.6, on August 1, 2018. Although not included in defendant RR’s counsel’s declaration, defendant RR contends it also served further responses to EFI, set one, numbers 201.3, 201.6, 209.2, 211.2, and 211.3, on August 1, 2018.

When discovery responses are served after a motion to compel is filed, the court has substantial discretion in deciding how to rule in light of the particular circumstances presented. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408-409 (Sinaiko).) Through this discretion, the court might deny the motion to compel as moot and just impose sanctions, or examine the responses to determine if they are code-compliant. (Sinaiko, supra, 148 Cal.App.4th at p. 409.) In view of the declaration by defendant RR’s counsel that further responses were served on August 1, 2018, the court finds the motion to compel RR’s further responses to SI, set one, numbers 71 – 76 and 95 – 97; GFI, set one, numbers 4.1, 12.1 – 12.7, and 50.1 – 50.6, and EFI, set one, numbers 201.3, 201.6, 209.2, 211.2, and 211.3 to be moot and, for that reason, DENIED.

Several interrogatories remain at issue. With regard to SI, set one, number 22, defendant RR states that it has agreed to provide a further response and expects this will be accomplished prior to the hearing on August 14, 2018. Absent admissible evidence that defendant RR has actually served a further response, plaintiff Vo’s motion to compel defendant RR’s further response to SI, set one, number 22, is GRANTED. Defendant RR shall provide a verified further response in compliance with the Code of Civil Procedure to SI, set one, number 22 within 15 days from notice of entry of this order.

SI, set one, number 98 asks defendant RR to “State all facts refuting the contention in paragraph 36 of the COMPLAINT, stating that ‘RR’s General Counsel resigned due to YOUR refusal to heed his legal advice.” Defendant RR responded, “Responding Party objects to this interrogatory as unintelligible, lacking foundation, vague and ambiguous insofar as this paragraph of the Complaint contains no such allegations. Responding Party further objects to his [sic] interrogatory on the grounds, and to the extent, it seeks discovery of privileged attorney-client communications and/or attorney work product.”

In plaintiff Vo’s meet and confer letter of January 24, 2018, plaintiff Vo acknowledged certain SI “inadvertently reference the wrong paragraph numbers in the Complaint.” With regard to SI, set one, number 98, however, plaintiff Vo explicitly stated, “The allegations stated in [SI] No. 98 were not included in the Complaint, therefore that request may be disregarded.” SI, set one, numbers 99 – 100, are follow up questions to SI, set one, number 98.

In light of plaintiff Vo’s concession that defendant RR could disregard SI, number 98, there is no basis for compelling a further response to this SI or the follow up interrogatories. Plaintiff Vo’s motion to compel defendant RR’s further response to SI, set one, numbers 98 – 100, is DENIED.

GFI, set two, number 15.1 asks defendant RR to “Identify each denial of a material allegation and each special or affirmative defense in your pleadings and for each: (a) state all facts upon which you base the denial or special or affirmative defense; (b) state the names, ADDRESSES, and telephone numbers of ALL PERSONS who have knowledge of the facts; and (c) identify all DOCUMENTS and other tangible things that support your denial or special or affirmative defense, and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT.”

Defendant RR provided a lengthy substantive response. With regard to subpart (c) and the denial of a material allegation, defendant RR responded by stating, in relevant part, “Given the breadth of the interrogatory, Responding Party is not presently aware of any documents directly on point. … Responding Party notes that certain of the general business records of the Company may support, directly or indirectly, certain of the background facts which provide the context for the response, but is not considering those to be documents responsive to this request.”

In moving to compel a further response, plaintiff Vo contends defendant RR’s response is evasive or incomplete and that defendant RR’s objection that the interrogatory is overbroad is without merit. In opposition, defendant RR contends its response is sufficient as it is not presently aware of any documents that would support an affirmative defense or denial of a material allegation. The court would tend to agree with defendant RR that the response is adequate and not evasive or incomplete. The court cannot compel defendant RR to identify documents/things that defendant RR does not believe to support a denial or special or affirmative defense.

Accordingly, plaintiff Vo’s motion to compel defendant RR’s further response to GFI, set two, number 15.1, is DENIED.

C. Requests for production of documents.

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

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

(Code Civ. Proc., §2031.310, subd. (a)(1) – (3).)

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

In reviewing plaintiff Vo’s separate statement, plaintiff Vo has not adequately demonstrated good cause. For example, RPD, set one, number two seeks, “All DOCUMENTS reflecting records used to determine VO’s qualifications for employment, promotions, bonus payments, reassignments, demotions, compensation, commissions, disciplinary action or termination.” In moving to compel a further response, plaintiff Vo explains, in relevant part, “This request sees [sic] documents used to determine Plaintiff’s various qualifications. … Surely Responding Party has a system in place that it uses to make certain determinations such as whether an employee is hired, gets promoted/demoted, receives a bonus, gets reassigned, or is terminated. This request is seeking documents reflecting these determinations with respect to Plaintiff.” As indicated above, the burden is on the moving party to show relevance, i.e., how the information in the documents would tend to prove or disprove some issue in the case. Plaintiff Vo has not met that burden.

As a further example, RPD, set one, number three seeks, “Each and every file maintained by YOU with any reference to VO, including informal or ‘working’ files and handwritten notes.” Plaintiff Vo’s separate statement states, in relevant part, “Here, Plaintiff believes that his file contains the pertinent information to his unlawful termination, and therefore this information is highly relevant and likely to lead to admissible evidence.” This conclusory statement offers no specific factual explanation about what information is contained in the documents or how that information would tend to prove or disprove some issue in the case.

Plaintiff Vo has not met his burden of demonstrating good cause. Accordingly, plaintiff Vo’s motion to compel defendant RR’s further response to RPD, set one, numbers 2, 3, 5 – 44, and 46 – 49 is DENIED.

V. Plaintiff Vo’s motion to compel defendants Rhodes and Markle’s further responses is GRANTED, in part, and DENIED, in part.

A. Discovery dispute.

On August 11, 2017, plaintiff Vo served defendants Rhodes and Markle with, among other discovery, special interrogatories (“SI”), set one; form interrogatories—general (“GFI”), set one; form interrogatories—employment (“EFI”), set one; and a request for production of documents (“RPD”), set one.

On September 22, 2017, plaintiff Vo received defendants Rhodes and Markle’s responses to the first set of SI, GFI, EFI, and RPD.

On October 23, 2017, plaintiff Vo served defendants Rhodes and Markle with RPD, set two, and GFI, set two.

On November 27, 2017, defendant Rhodes served responses to RPD, set two, and GFI, set two. On December 4, 2017, defendant Markle served responses to RPD, set two, and GFI, set two.

On January 24, 2018, plaintiff Vo’s counsel sent a meet and confer letter to defendants’ counsel addressing purportedly deficient responses to set one of the SI, GFI, EFI, and RPD, and to set two of the GFI and RPD. Counsel met and conferred telephonically on February 13, 2018. On March 21, 2018, plaintiff Vo’s counsel memorialized the telephone conversation in a further meet and confer letter.

Pursuant to the February 13, 2018 telephonic meet and confer, the parties agreed to treat all of defendants Rhodes and Markle’s responses in the same manner as defendant RR’s, except that requests for production of documents will not be supplemented where there is complete overlap with documents already produced by defendant RR. Any responsive documents that were not requested of defendant RR are to be produced per the agreement.

Defendants Rhodes and Markle did not produce any further responses or any other additional documents.

On July 13, 2018, plaintiff Vo filed the motion now before the court which seeks, in part, to compel defendants Rhodes and Markle’s further response to SI, set one, numbers 1 – 13, 22, and 35 – 52; GFI, set one, numbers 12.1, 12.2, 12.6, 17.1, and 50.1 –50.6; GFI, set two, number 15.1; EFI, set one, numbers 200.1 – 200.2, 201.3, 201.6, 209.2, 211.2, and 211.3; RPD, set one, numbers 1 – 42; and RPD, set two, numbers 43 – 51.

B. Interrogatories.

“On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (1) An answer to a particular interrogatory is evasive or incomplete. (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate. (3) An objection to an interrogatory is without merit or too general.” (Code Civ. Proc., §2030.300.) The party objecting to a discovery request bears the burden of explaining and justifying the objections. (See Coy v. Super. Ct. (1962) 58 Cal.2d 210, 220-221.)

In opposition, defendants Rhodes and Markle’s counsel states Rhodes and Markle intend to provide further responses to a number of the interrogatories at issue. In particular, defendants Rhodes and Markle agree to provide further responses to SI, set one, numbers 35 – 38 and 40 – 52 ; GFI, set one, numbers 12.1, 12.2, 12.6, and 50.1 – 50.6; EFI, set one, numbers 200.1 – 200.2, 201.3, 201.6, 209.2, 211.2, and 211.3.

There is no admissible evidence before this court that defendants Rhodes and Markle have served further responses yet. As such, the motion to compel further responses is not moot. Defendant Rhodes and Markle have not met their burden of explaining and justifying any objections. (See Coy v. Super. Ct. (1962) 58 Cal.2d 210, 220-221.) Accordingly, plaintiff Vo’s motion to compel defendants Rhodes and Markle’s further response to SI, set one, numbers 35 – 52; GFI, set one, numbers 12.1, 12.2, 12.6, and 50.1 – 50.6; EFI, set one, numbers 200.1 – 200.2, 201.3, 201.6, 209.2, 211.2, and 211.3 is GRANTED. Defendants Rhodes and Markle shall provide a verified further response in compliance with the Code of Civil Procedure to SI, set one, numbers 35 – 52; GFI, set one, numbers 12.1, 12.2, 12.6, and 50.1 – 50.6; EFI, set one, numbers 200.1 – 200.2, 201.3, 201.6, 209.2, 211.2, and 211.3 within 15 days from notice of entry of this order.

Rhodes and Markle stand by their responses to SI, set one, numbers 1 – 3, 13, and 22. SI, set one, number 1 asks defendants Rhodes and Markle to “State all the reasons YOU terminated VO from his employment with YOU.” Defendants Rhodes and Markle responded by stating, in relevant part, “Responding Party was not the employer of Mr. Vo; Restoration Robotics was the employer of Mr. Vo. Therefore, it is nonsensical to request information regarding the termination of Mr. Vo’s employment with Responding Party. Strictly speaking, there were no reasons that Responding Party terminated Mr. Vo’s employment ‘with’ Responding Party because Mr. Vo was never employed by Responding Party and therefore Mr. Vo never had his employment ‘with’ Responding Party terminated.” SI, set one, numbers 2 – 3 ask follow up questions to SI, set one, number one.

Plaintiff Vo contends defendants Rhodes and Markle’s response to SI, set one, numbers 1 – 3, is evasive because Rhodes was the CEO of RR and is considered an employer. [Markle is alleged to be a Product Marketing Manager at RR. See FAC, ¶6.] The court does not find defendants Rhodes and Markle’s response to SI, set one, numbers 1 – 3 to be evasive. They affirmatively state that they are/were not plaintiff Vo’s employer so the interrogatory, as phrased, does not apply.

However, SI, set one, number 13, asks, “State all the reasons YOU chose to hire SUSAN MOREIRA to replace VO.” This is distinguishable from SI, set one, number one because it does not explicitly refer to employment by the responding parties. Defendants Rhodes and Markle would be able to answer this question by clarifying that their response is limited to their respective capacities with RR.

SI, set one, number 22, asks, “Provide a list of all employees laid off from RR from July 2016 to present with information designating age, nationality, gender, and reason for termination for each of them. (Any personal information may be redacted from the list and/or replaced with employee identification numbers).” Rhodes and Markle objected to this interrogatory on various grounds. In opposition, Rhodes and Markle state only that they are “standing” on their objections. Defendant Rhodes and Markle have not met their burden of justifying their objections.

Plaintiff Vo’s motion to compel defendants Rhodes and Markle’s further response to SI, set one, numbers 1 – 3, is DENIED. Plaintiff Vo’s motion to compel defendants Rhodes and Markle’s further response to SI, set one, numbers 13 and 22, is GRANTED. Defendants Rhodes and Markle shall provide a verified further response in compliance with the Code of Civil Procedure to SI, set one, numbers 13 and 22 within 15 days from notice of entry of this order.

Plaintiff Vo also moves to compel defendants Rhodes and Markle’s further response to GFI, set one, number 17.1. GFI, set one, number 17.1 asks, “Is your response to each request for admission (“RFA”) served with these interrogatories an unqualified admission? If not, for each response that is not an unqualified admission: (a) state…” Plaintiff Vo contends defendants Rhodes and Markle’s response is insufficient because defendant Rhodes does not address RFA, number 10, and defendant Markle does not address RFA, numbers 1, 14, or 15. In opposition, defendants Rhodes and Markle argue no further response is required as their responses to those RFAs were all unqualified admissions. Plaintiff Vo’s separate statement does not identify the text of defendants Rhodes and Markle’s response to the RFAs at issue. (See Cal. Rules of Court, rule 3.1345, subd. (c)(5)—“If the response to a particular discovery request is dependent on the response given to another discovery request, … the other request and the response to it must be set forth.”)

Accordingly, plaintiff Vo’s motion to compel defendants Rhodes and Markle’s further response to SI, set one, number 17.1, is DENIED.

GFI, set two, number 15.1 asks defendant RR to “Identify each denial of a material allegation and each special or affirmative defense in your pleadings and for each: (a) state all facts upon which you base the denial or special or affirmative defense; (b) state the names, ADDRESSES, and telephone numbers of ALL PERSONS who have knowledge of the facts; and (c) identify all DOCUMENTS and other tangible things that support your denial or special or affirmative defense, and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT.

For the same reason discussed above with regard to plaintiff Vo’s motion to compel defendant RR’s further response to GFI, set two, number 15.1, plaintiff Vo’s motion to compel defendants Rhodes and Markle’s further response to GFI, set two, number 15.1, is DENIED.

C. Requests for production of documents.

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

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

(Code Civ. Proc., §2031.310, subd. (a)(1) – (3).)

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

Just as with plaintiff Vo’s motion to compel defendant RR’s further responses to RPD, plaintiff Vo’s motion to compel defendant RR’s further responses to RPD fails because plaintiff Vo has not adequately demonstrated good cause. Accordingly, plaintiff Vo’s motion to compel defendant RR’s further response to RPD, set one, numbers 1 – 42; and RPD, set two, numbers 43 – 51 is DENIED.

VI. Plaintiff Vo’s request for monetary sanctions is DENIED.

In conjunction with his motion to compel further responses, plaintiff Vo requests monetary sanctions pursuant to Code of Civil Procedure sections 2023.030; 2030.290, subdivision (c); and 2031.300, subdivision (c).)

Plaintiff Vo’s motion sought to compel further responses, not initial responses. Thus, plaintiff Vo’s reliance on Code of Civil Procedure sections 2030.290, subdivision (c) and 2031.300, subdivision (c) do not provide the relevant statutory authority for imposition of monetary sanctions. Consequently, plaintiff Vo’s reliance on Code of Civil Procedure section 2023.030 is incorrect since that section only authorizes sanctions “[t]o the extent authorized by the chapter governing any particular discovery method or any other provision of this title.”

Even if plaintiff Vo cited the appropriate authority, plaintiff Vo did not prevail entirely. Moreover, the court finds the imposition of sanctions would be unjust under the circumstances as defendants’ counsel has been cooperating in good faith to respond to plaintiff Vo’s discovery requests. Accordingly, plaintiff Vo’s request for monetary sanctions is DENIED.