Borgman, et al. v. Insphere Insurance Solutions, Inc., et al. CASE NO. 112CV232891
DATE: 18 April 2014 TIME: 9:00 LINE NUMBER: 9
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 17 April 2014. Please specify the issue to be contested when calling the Court and counsel.

On 18 April 2014, the motion of Defendant Insphere Insurance Solutions, Inc. (“Defendant”) to compel further responses to Production of Documents, Set One and for monetary sanctions was argued and submitted. Plaintiff Kent Borgman (“Plaintiff”) filed formal opposition to the motion and for a protective order from this Court to order that the location of production will be at Plaintiff’s place of business in Boise, Idaho.

All parties are reminded that all papers must comply with Rule of Court 3.1110(f).

I. Background

This action is regarding the alleged wrongful termination of Plaintiffs Kent Borgman and Deborah O’Connell. Plaintiffs allege that they were misclassified as independent contractors and should have been classified as non-exempt employees. Plaintiffs also allege that they were subject to termination, defamation, discrimination, fraud, false promises, and Labor Code violations.

The Complaint was filed on 25 September 2012.

II. Discovery Dispute

On 11 December 2013, Defendant served Requests for Production of Documents, Set One on Plaintiff. Plaintiff’s responses were due on 15 January 2014. Plaintiff did not respond nor seek an extension of time.

On 22 January 2014, Defendant sent a letter to Plaintiff asking that Plaintiff provide his responses to the requests by 30 January 2014. Plaintiff never responded to the letter. On 4 February 2014, Defendant met and conferred with Plaintiff by telephone. Plaintiff asked for an additional two weeks to provide responses to the requests and a copy of the discovery served by Defendant. Defendant agreed and reminded Plaintiff that objections were waived. Plaintiff’s responses were now due on 14 February 2014.

On 13 February 2014, Plaintiff served his verified written responses to the requests, with objections stating that responsive documents were available at his residence in Boise, Idaho for inspection and copying by Defendant. Plaintiff did not produce any documents. Plaintiff found approximately 14,000 documents and over 77 videotapes.

Both parties differ on a letter sent by Defendant on 25 February 2014. Defendant claims that they sent a letter to Plaintiff requesting that documents be produced by 7 March 2014. Plaintiff claims that he does not remember receiving the 25 February 2014 letter.

Defendant filed the present motion on 21 March 2014. Plaintiff filed formal opposition and for a protective order from this Court to order that the location of production will be at Plaintiff’s place of business in Boise, Idaho on 4 April 2014. Plaintiff claims that he cannot afford to pay the costs of copying in this case.

III. Discussion

1. Defendant’s Motion to Compel Further Responses

A party may seek a motion to compel further responses to discovery if it deems that the responses received meet any of the following standards: 1) A statement of compliance is incomplete; 2) A representation of inability to comply is inadequate, incomplete, or evasive; or 3) An objection in the response is too general or without merit. (Code of Civil Procedure § 2031.310(a); See Korea Data Systems Co. Ltd. v. Superior Court. (1997) 51 Cal.App.4th 1513, 1516.) A motion to compel further production is code – compliant only if: 1) The motion sets forth specific facts showing good cause justifying the discovery sought by the demand; and 2) The motion is accompanied by a meet and confer declaration. (Code of Civil Procedure § 2031.310(b).)

Once good cause is demonstrated, the burden falls on the party resisting production to justify the objection. (See Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.) A meet and confer declaration must show a reasonable and good faith attempt at an informal resolution as to each issue addressed in the motion. (Code of Civil Procedure § 2016.040.) “The level of effort at informal resolution that satisfies the ‘reasonable and good faith attempt’ standard depends upon the circumstances.” (See Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1016.) In a simple case, a modest effort may suffice. (See Obregon v. Superior Court (2d Dist. 1998) 67 Cal.App.4th 424, 431.) This requirement may be satisfied through written communications, such as a single letter followed by a response which refuses concessions, might be an adequate attempt at informal resolution. (Id. at 432.)

Here, Plaintiff was to provide responses to Defendant’s Request for Production of Documents, Set One by 30 January 2014. Plaintiff did not initially respond or seek an extension of time. Plaintiff did not respond until 4 February 2014, in which both parties met and conferred. Plaintiff asked for an additional two weeks to provide responses to the requests. While Defendant agreed to Plaintiff’s request, they also reminded Plaintiff that responses must be objection free.

Under Code of Civil Procedure § 2031.300(a), “[t]he party to whom the demand for inspection, copying, testing, or sampling is directed waives any objection to the demand, including one based on privilege or on the protection for work product…” Plaintiff served verified written responses to the requests on 13 February 2014. However, Plaintiff’s responses contained objections. Because Plaintiff did not respond to Defendant’s request in a timely manner, Plaintiff has waived the right to assert any objections. Plaintiff’s responses are not code-compliant.

As such, Defendant’s Motion to Compel Further Responses to Production of Documents, Set One is GRANTED. Plaintiff is to serve verified, code-compliant responses, without objection, on Defendant within 20 days of the date of this Order.

2. Plaintiff’s “Motion” for a Protective Order

Upon a party’s motion for protective order, the court shall limit discovery if it determines that the discovery sought or a party’s use of a discovery method is unduly burdensome, expensive, or intrusive. (Code of Civil Procedure §§ 2017.020, 2019.030, subd. (a)(2).) The court may also make any order that justice requires to protect a party from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense, including a protective order providing that certain documents designated in a deposition notice not be produced. (Code of Civil Procedure, § 2025.420, subds. (b) and (b)(11).)

The party moving for a protective order bears the burden of demonstrating good cause for the order by explaining and justifying its objections to the discovery at issue. (See Fairmont Ins. Co. v. Super. Ct. (2000) 22 Cal.4th 245, 255, citing Goodman v. Citizens Life & Cas. Ins. Co. (1967) 253 Cal.App.2d 807, 819.) However, the party seeking discovery bears the burden of providing evidence from which the court may determine that the information sought is admissible in evidence or reasonably calculated to lead to the discovery of admissible evidence. (Calcor Space Facility, Inc. v. Super. Ct. (1997) 53 Cal.App.4th 216, 223.)

Here, Plaintiff is seeking a protective order from this Court to order that the location of production will be at Plaintiff’s place of business in Boise, Idaho. Plaintiff claims that he cannot afford to pay the costs of copying in this case and that such an action would be unduly burdensome. This Court is not swayed for three reasons:

First, a protective order requires a motion and should not be brought up in opposition to a pending motion. Code of Civil Procedure, § 2019.030(b) states: “The court may make these determinations pursuant to a motion for a protective order by a party or other affected person. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.”

Second, parties and civil litigation are “required to finance their own participation in the litigation.” See reply papers, page 3, lines 2-13. All discovery can be found to be burdensome in some way. A protective order should be granted only if the discovery sought is unduly burdensome. While this Court is sympathetic to the financial situation of Plaintiff, this Court does not believe that Plaintiff’s financial situation constitutes enough to meet the standard of unduly burdensome. A discovery request is not objectionable merely because it would be burdensome to answer; the burden must rise to the level of injustice. (See West Pico Furniture Co. v. Superior Ct. (1961) 56 Cal.2d 407, 418.) In reviewing this Court’s records, there was no attempt by Plaintiff to seek a waiver of court fees. In his response to Defendant’s requests, there was no mention of Plaintiff’s financial inability to pay the costs related to the discovery sought.

Third, in his declaration in opposition to the motion, Plaintiff states that he found 14,000 documents and over 77 videotapes. He believes the cost of copying these documents would be $1700 which includes a $1000 discount. He claims hardship and that he was forced to sell his house to avoid foreclosure as he could [it’s not] to make this mortgage payments. He has not recovered financially since losing his business in 2010. His monthly income is $4000 against the expenses of $5,670. In the reply papers, Defendant points out that Plaintiff sold the home in question at a profit of $163,000. While he did use some of the funds from this profit in order to purchase another home, this Court is not inclined to find that he is unable to pay for the copy services here on the state of this record.

Therefore, Plaintiff’s motion for a protective order/cost shifting order of is DENIED.

3. Defendant’s Motion for Monetary Sanctions

Under Code of Civil Procedure § 2031.310(h), “the court shall impose a monetary sanction…against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

Defendant makes a request for monetary sanctions. The request is not code-compliant.

Code of Civil Procedure, § 2023.040 states: “A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.”

While the request is supported by appropriate authorities (Code of Civil Procedure § 2031.310), it does not break down the claim by time and rate. Defendant’s counsel does not provide this Court with a breakdown of the time spent preparing the present motion. In Serrano v. Priest, the Court noted that the beginning of the determination of a reasonable attorney’s fee involves multiplying the time spent and reasonable hourly compensation of each attorney involved in the presentation of the case. (See Serrano v. Priest (1977) 20 Cal.3d 25, 48-49.)

This Court also finds that Defendant’s request for a monetary sanction in the amount of $20,000.00 against Plaintiff is outrageous for a motion of this type. As this Court can recall, this sum is among the largest amount of sanction sought in this Court’s almost 7-year experience on the discovery calendar.

Accordingly, Defendant’s motion for monetary sanctions is DENIED.

IV. Conclusion

Defendant’s Motion to Compel Further Responses to Production of Documents, Set One is GRANTED. Plaintiff is to serve verified, code-compliant responses, without objection, on Defendant within 20 days of the date of this Order.

Plaintiff’s motion for a protective order is DENIED.

Defendant’s motion for monetary sanctions is DENIED.