Erich Vaden v. Outfitter Ventures, LLC, et al.		CASE NO. 112CV237529
DATE: 11 September 2014	TIME: 9:00	LINE NUMBER: 7

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 Wednesday 10 September 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 11 September 2014, the motion of defendant Outfitter Venture, LLC to compel further responses to requests for production of documents and for an award of monetary sanctions was argued and submitted.  Plaintiff Erich Vaden filed a formal opposition to the motion, in which he requests an award of monetary sanctions.

I.       Statement of Facts

This action arises out of an employment dispute between plaintiff Erich Vaden (“Plaintiff”) and defendants Outfitter Venture, LLC (“Outfitter”) and Val Vaden (“Mr. Vaden”) (collectively “Defendants”).  Plaintiff began working for Outfitter as a consultant in March of 2002, and became an employee of Outfitter in February of 2004.  (See Complaint, ¶ 5.)  In March of 2004, Plaintiff entered into negotiations with Mr. Vaden, his brother and the managing member of Outfitter regarding his compensation.  (See Complaint, ¶ 6.)

On 18 June 2004, Mr. Vaden, on behalf of Outfitter, entered into a unilateral oral contract with Plaintiff to provide him with compensation in addition to his base salary “in the form of 25% of Outfitter’s carry if Plaintiff remained employed at Outfitter for a period of five years.”  (See Complaint, ¶¶ 5-6.)  In reliance on Mr. Vaden’s representation, Plaintiff continued to work for Outfitter for more than five years after 18 June 2004.  (See Complaint, ¶ 6.)

On 26 February 2010, Defendants terminated Plaintiff’s employment and refused to pay Plaintiff the 25 percent of Outfitter’s carry owed to him pursuant to the terms of the agreement.  (See Complaint, ¶ 37.)

Plaintiff filed the operative complaint on 10 December 2012, alleging causes of action for: (1) “misrepresentation – concealment;” (2) breach of contract; (3) “bad faith – breach of implied covenant;” (4) accounting; (5) promissory estoppel; (6) negligent misrepresentation; and (7) “violation of statutes.”  (See Complaint, p. 2:16-17, 4:2-3, 4:26-27, 5:19-20, 6:8-9, 7:3-4, 8:4-5.)

II.      Discovery Dispute

On 5 June 2014, Outfitter served Plaintiff with requests for production of documents, set three (“RPD”).  (See Holtzapple Dec., Ex. 4.)  On 9 July 2014, Plaintiff requested and Outfitter granted Plaintiff a 9-day extension of time to respond to the RPD to 18 July 2014.  (See Mem. Ps & As., 5:14-15; see also Jacobs Dec., ¶ 21.)

On 18 July 2014, Plaintiff’s counsel sent Outfitter’s counsel an email, requesting an additional one-week extension of time for Plaintiff to respond to the RPD as Plaintiff was out of town and in an area with “limited connection.”  (See Holtzapple Dec., Ex. 5.)  Plaintiff’s counsel indicated that the additional time was needed to obtain substantive information to avoid serving Outfitter with a set of objection-only responses.  (See id.)  Outfitter’s counsel replied via email, stating that Outfitter would “agree to extend the deadline to July 25 provided plaintiff agrees to provide full and complete responses to the interrogatories and to produce documents on July 25.”  (Id.)  Plaintiff’s counsel sent a reply email stating that Plaintiff would not agree to waive all objections, if that was what was meant by “full responses.”  (Holtzapple Dec., Ex. 5.)  Plaintiff’s counsel further stated that he could not promise that Plaintiff would be able to produce all of the responsive documents by 25 July 2014, because Plaintiff would be out of town until that date, but Plaintiff would produce responsive documents as soon as possible.  (See id.)  Outfitter’s counsel then replied via email stating that she “did not mean to imply that Plaintiff would waive all objections,” but that “Plaintiff’s responses would include substantive answers to the interrogatory questions that were as full and complete as possible.”  (Id.)  Outfitter’s counsel advised that Outfitter would need a date certain for production before it would agree to an extension and asked if Plaintiff’s counsel could “confirm a production on July 25 of the documents you have with a follow up production July 30.”  (Id.)

Plaintiff’s counsel responded via email stating “[g]reat thank you.” (Id.)  Outfitter’s counsel then sent Plaintiff’s counsel an email confirming the agreement that Plaintiff would provide substantive written responses to the RPD on 25 July 2014, produce all documents that he had collected on 25 July 2014, and produce any remaining documents on 30 July 2014.  (See id.)  Plaintiff’s counsel sent Outfitter’s counsel a reply email stating: “Agreed but I can say only I’ll do my best re documents. I’m not sure precise date he returns and I have no idea the quantity of documents for so many witnesses. But that said, we’ll move on this quickly.”  (Id.)

The following day, 19 July 2014, Outfitter’s counsel sent a reply email stating that while she understood the difficulties outlined by Plaintiff’s counsel, Outfitter would only agree to an extension if Plaintiff agreed to document production on a date certain and if Plaintiff could not commit to the same then “there [was] no extension and Plaintiff should serve his discovery responses.”  (Holtzapple Dec., Ex. 5.)   Plaintiff’s counsel did not respond to the 19 July 2014 email from Outfitter’s counsel.

On 25 July 2014, Plaintiff served Outfitter with his responses to the RPD, but did not serve Outfitter with any documents on that date.  (See Holtzapple Dec., Ex. 6. )

Outfitter’s counsel sent Plaintiff’s counsel a letter on 30 July 2014.  (See Holtzapple Dec., Ex. 7.)  Outfitter’s counsel asserted that Plaintiff’s responses to the discovery requests were untimely and his objections were waived because Plaintiff agreed to provide substantive responses to the RPD and produce responsive documents by 25 July 2014, but instead provided responses containing primarily objections and failed to produce any documents.  (Id.)  Outfitter’s counsel further asserted that Plaintiff’s objections to the requests were without merit.  (Id.)

On 1 August 2014, Plaintiff’s counsel and Outfitter’s counsel engaged in a telephone conference and discussed Plaintiff’s responses to the RPD.  (See Holtzapple Dec., ¶ 10.)  Plaintiff’s counsel agreed to determine whether there were any additional documents that were responsive to RPD Nos. 22-38 that had not been previously produced, and inform Outfitter of the same and whether they would be produced by 4 August 2014.  (See Holtzapple Dec., Ex. 8.)  Additionally, Plaintiff’s counsel advised that Plaintiff maintained his objections to RPD Nos. 40-41 and did not agree to produce any documents in response to the same.  (Id.)  Plaintiff’s counsel also agreed to produce documents responsive to RPD No. 42 and advise Outfitter by 4 August 2014, of the date on which the documents would be produced.  (Id.)

Outfitter’s counsel and Plaintiff’s counsel continued to meet and confer regarding the Plaintiff’s responses to the RPD and Plaintiff’s counsel indicated that further documents would be produced.  (See Holtzapple Dec., ¶¶ 11-13.) Plaintiff did not produce any additional documents and, on 11 August 2014, Plaintiff’s counsel sent Outfitter’s counsel an email indicating that the parties had reached an impassé.  (See Holtzapple Dec., Ex., 11.)   Plaintiff’s counsel and Outfitter’s counsel engaged further meet and confer emails regarding Plaintiff’s responses to the RPD from August 12, 2014 to August 14, 2014, but no resolution was reached.  (See Holtzapple Dec., Ex., 12.)

On 18 August 2014, Outfitter filed the instant motion to compel further responses to RPD Nos. 22-38 and 40-42.  Plaintiff filed papers in opposition to the motion on 28 August 2014.  Outfitter filed a reply on 4 September 2014.

III.     Discussion

RPD Nos. 22-38 and 40-41 and to compel Plaintiff to produce documents in compliance with his response to RPD No. 42.

Outfitter moves to compel further responses to RPD Nos. 22-38 and 40-41 and to compel Plaintiff to produce documents in compliance with his response to RPD No. 42.

         A.  Nature of Motion

As a preliminary matter, Outfitter’s motion is brought pursuant to Code of Civil Procedure section 2031.310 and styled as one to compel further responses to the RPD.  However, it appears that the motion with respect to RPD No. 42 is actually one to compel compliance, which is governed by Code of Civil Procedure section 2031.320.  Outfitter states in its papers that it seeks an order compelling Plaintiff to produce documents in compliance with his response to RPD No. 42 because Plaintiff stated in his response that he would produce responsive documents and, as of the date of the filing of the motion, has not produced any documents.  Therefore, the Court construes the instant motion as one to compel compliance as to RPD No. 42 and one to compel further responses as to RPD Nos. 22-38 and 40-41.

         B.  Motion to Compel Further Responses to RPD Nos. 22-38 and 40-41

               1.            Legal Standard

If a party demanding a response to an inspection demand deems that a statement of compliance with the demand is incomplete, a representation of inability to comply is inadequate, incomplete, or evasive, or an objection in the response is without merit or too general, that party may move for an order compelling further response.  (See Code Civ. Proc., § 2031.310, subd. (a).)  On a motion to compel further responses to requests for production, it is the moving party’s burden to demonstrate good cause for the discovery sought. (See Kirkland v. Super. Ct. (2002) 95 Cal.App.4th 92, 98.)   This requires demonstrating both relevance to the subject matter and specific facts justifying discovery.  (Id.)  Once good cause has been shown, the burden shifts to the responding party to justify any objections or failure to provide a code-compliant response.  (See id. at 98.)

2.            Good Cause

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).  (See Glenfed Develop. Corp. v. Super. Ct. (1997) 53 Cal.4th 1113, 1117; see also Gonzalez v. Super. Ct. (1995) 33 Cal.App.4th 1539, 1546 [information is “relevant to the subject matter” if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement].)  Any doubt is generally resolved in favor of discovery. (See Colonial Life & Acc. Ins. Co. v. Super. Ct. (1982) 31 Cal.3d 785, 790.)

3.            RPD Nos. 22-38

RPD Nos. 22-38 ask Plaintiff to produce all documents and communications between himself and the following individuals: Lilli Rey; Ted Myerson; Gary LaFever; Drew VanVooren; Malcom Lotzof; Jim Heagney; Ford Goodman; Swayne Hill; David Fritsche; Rich Moore; Dr. William Montgomery; JJ Burnett; Kevin Haggard; Ole Obermann; Dehan Glanz; Chris Warren; and Ray Smith.

Plaintiff argues that Outfitter has not shown good cause to compel the production of the documents sought by the requests.  Plaintiff points out that the RPD seek the production of all communications between him and the above-noted individuals without any temporal or subject matter limitations.  Plaintiff argues that as a result the requests seek all communications that he ever had with any of those individuals regardless of whether such communications were even remotely related to the instant case.  Plaintiff further indicates that some of the individuals are his close friends such that the RPD seek personal communications spanning more than a decade and addressing topics such as scheduling coffee or child care arrangements.  (See Vaden Opp’n. Dec., ¶¶ 8-9.; see also Opp’n., p. 7:10-28.)

Conversely, Outfitter argues that there is good cause for the discovery sought by RPD Nos. 22-38 because the requests seek communications between Plaintiff and the individuals whom he identified as witnesses to the alleged 18 June 2004 oral agreement that forms the basis of the lawsuit.  Outfitter denies that there was any such agreement and “believes that the apparent fact that there are no documents (and not a single email) between Plaintiff and any of the people he claims are witnesses to that agreement that in any way refer to the purported agreement strongly undermines Plaintiff’s claim that such an agreement exists.”  (Mem. Ps & As., p. 10:14-19.)  Outfitter states that Plaintiff should therefore produce all communications that he ever had with those individual because “[i]f none of those emails refer, even indirectly, to the purported oral agreement, that tends to show that there was no such agreement.”  (Mem. Ps & as., p. 11;1-3.)

Here, Outfitter has failed to demonstrate good cause for the discovery sought by RPD Nos. 22-38 to the extent that the requests seek any and all communications between Plaintiff and the individuals identified in the requests.  As Plaintiff persuasively argues, the requests seek irrelevant information because they do not contain any limitation whatsoever.  Plaintiff first began to discuss his compensation with Mr. Vaden in March of 2004 and did not enter into the purported oral agreement with Outfitter until 18 June 2004.  Thus, it necessarily follows that communications between Plaintiff and the individuals identified in the requests that occurred prior to 2004 would not contain any information about the alleged oral agreement and are irrelevant to the instant case.  Moreover, the requests are not limited by subject matter and, therefore, seek communications that are in no way related to the alleged unilateral oral contract between Plaintiff and Outfitter.

Outfitter’s argument that the production of each and every communication between Plaintiff and the seventeen identified witnesses is needed to demonstrate that Plaintiff never discussed the alleged agreement with any of them and, consequently, that the agreement did not exist is without merit.  If the requests asked Plaintiff to produce all documents and communications between Plaintiff and the witnesses that related to either of the Defendants or the alleged unilateral oral contract, and Plaintiff did not produce a single responsive document, Outfitter could still argue to the jury that Plaintiff never discussed the alleged contract with any of the purported witnesses and, accordingly, it is reasonable to infer that no such agreement existed.

While RPD Nos. 22-38 may also seek documents that are relevant to the instant case in addition to irrelevant material, it is not the Court’s role to rewrite and narrow Outfitter’s demands so that they only seek documents that might concern the subject matter at issue in the instant case.

Accordingly, Outfitter has not demonstrated good cause for the discovery sought by RPD Nos. 22-38.

               4.            RPD Nos. 40-41

RPD Nos. 40-41 ask Plaintiff to produce all documents and communications related to his 2002 and 2003 taxes, including tax returns, notices, fines, penalties, settlements, payment plans, proof of any payment, and communications with third parties, the Internal Revenue Service (“IRS”), the California Franchise Tax Board, or any other taxing authority.

Plaintiff indicates that he is seeking reimbursement for employer payroll taxes that he was forced to pay after Outfitter wrongly misclassified him as and independent consultant.  Plaintiff alleges that Defendant did not make the proper employer contributions to the IRS in 2002 and 2003.  Plaintiff argues only that it is not necessary for Outfitter to obtain his tax documents in order to determine “the legally required employer contribution for a person with Plaintiff’s salary” because Outfitter can utilize the IRS circulars from 2002 and 2003 to do so.  (Opp’n., p. 6:9-12.)

Conversely, Outfitter argues that there is good cause for the discovery sought by RPD Nos. 40-41 because Plaintiff claims that Defendants owe him $34,339.72, which is purportedly Defendants’ share of Plaintiff’s payroll taxes for work that Plaintiff performed in 2002 and 2003 plus penalties and interest that were associated with the nonpayment of taxes.

Here, Outfitter has shown good cause for the discovery sought because documents and communications relating to the amount of taxes and/or penalties Plaintiff incurred in 2002 and 2003 are relevant to Plaintiff’s claims that Defendants owe him money for their share of payroll taxes for the subject time period.  Moreover, the information sought might reasonably assist Outfitter in evaluating Plaintiff’s claim for reimbursement of payroll taxes, preparing for trial, or facilitating settlement.  Accordingly, Outfitter has demonstrated good cause for the discovery sought by RPD Nos. 40-41.

5.            Waiver of Objections

Responses to requests for production of documents are due within 30 days of service of the requests (see Code Civ. Proc., § 2031.260, subd. (a)), with an additional 5 calendar days added for service by mail within California.  (See Code Civ. Proc, § 1013, subd. (a)).  “The party demanding inspection, copying, testing, or sampling and the responding party may agree to extend the date for the inspection, copying, testing, or sampling or the time for service of a response to a set of demands, or to particular items or categories of items in a set, to a date or dates beyond those provided in Sections 2031.030, 2031.210, 2031.260, and 2031.280.”  (Code Civ. Proc., § 2031.270, subd. (a).)  “This agreement may be informal, but it shall be confirmed in a writing that specifies the extended date for inspection, copying, testing, or sampling, or for the service of a response.”  (Code Civ. Proc., § 2031.270, subd. (b).)  A party who fails to serve timely responses to document requests waives any objections to the requests, including those based on privilege or the work product doctrine.  (See Code Civ. Proc., § 2031.300, subd. (a).)

Outfitter argues that Plaintiff’s objections to the RPD are waived.  Outfitter contends that Plaintiff agreed to provide substantive responses to the RPD on 25 July 2014, and produce documents on 25 July 2014, with a follow-up production on 30 July 2014.  Outfitter asserts that Plaintiff failed to abide by the agreement because Plaintiff did not provide substantive responses or produce any documents on the agreed upon deadlines.  Outfitter argues that Plaintiff’s responses to the RPD were not substantive because Plaintiff interposed numerous meritless objections.  Outfitter also argues that Plaintiff failed to produce any responsive documents as of the date of the filing of the motion.  Plaintiff points out that the extension of time from 18 July 2014 to 25 July 2014, was expressly predicated on Plaintiff’s agreement to provide substantive responses as of 25 July 2014, and produce documents on 25 July 2014, with a second production on 30 July 201. Outfitter asserts that “Plaintiff’s failure to do so means no extension was granted” and Plaintiff’s responses are, therefore, untimely.  (Mem. Ps & As., p. 10:2.)

Conversely, Plaintiff argues that his objections are not waived because he provided substantive responses and never agreed to produce documents by 25 July 2014.  Plaintiff asserts that “[his] counsel sent an email making it clear he could not commit to a date certain to produce documents because Plaintiff did not know if any further documents existed or when they would be available.”  (Opp’n., p. 5:3-6; see also Jacobs Dec., ¶¶ 25-27.)  Despite the fact that Plaintiff refused to agree to a date certain on which production would take place, he contends that the parties in fact had an agreement to extend his time to respond to the RPD to 25 July 2014, and when Outfitter’s counsel sent a reply email on 19 July 2014, noting that Outfitter would only agree to an extension of time for Plaintiff to respond to the RPD if Plaintiff agreed to document production on a date certain, it “was too late to say there was no deal and prevent Plaintiff from serving objections.”  (Opp’n., p. 5:6-8.)

The Court finds that there was no agreement to extend Plaintiff’s time to respond to the RPD to 25 July 2014, because Outfitter’s counsel stated that Outfitter would only agreed to extend the deadline to 25 July 2014, provided that Plaintiff agreed to produce documents on 25 July 2014, and Plaintiff’s counsel did not agree to produce documents by 25 July 2014.

In her 18 July 2014 emails, Outfitter’s counsel stated: “In light of the January 12, 2015 trial date, Defendants cannot agree to a two week extension in addition to the one week extension already given. Unfortunately, the upcoming deadlines make the timing too tight. We will agree to extend the deadline to July 25 provided plaintiff agrees to provide full and complete responses to the interrogatories and to produce documents on July 25.”  (Holtzapple Dec., Ex. 5.)  When Plaintiff’s counsel replied, indicating that he was not sure that he could promise that the documents would by produced by 25 July 2014, Outfitter’s counsel stated: “With respect to the document requests, we’ll need a date certain for production before we can agree to an extension.  Can you confirm a production on July 25 of the documents you have with a follow up production on July 30?”  (Id.)

After receiving Plaintiff’s counsel’s response, stating “[great] thank you,” Outfitter’s counsel then attempted to confirm the agreement stating: “I’m just confirming the agreement since it’s spread out in a few emails.  25 July – Plaintiff will provide written responses to discovery including, substantive responses to interrogatories.  Plaintiff will likewise produce the documents he has collected at that point.  July 30 – Plaintiff will produce any remaining documents.  If this does not conform with your understanding of the agreement, please let me know as soon as possible, as I’m getting on a plane and will be unable to respond until late this evening.”  (Id.)

As Plaintiff points out in his opposition papers, his counsel then responded and advised Outfitter’s counsel that he could not commit to a date certain to produce documents.   (Id.)

Thus, based upon the emails exchanged between Plaintiff’s counsel and Outfitter’s counsel, it was clear that Outfitter would not agree to any extension of Plaintiff’s time to respond to the RPD unless Plaintiff agreed to produce what documents he had by 25 July 2014.  Since Plaintiff’s counsel refused to commit to produce documents by 25 July 2014, there was no agreement between the parties to extend Plaintiff’s deadline to respond to the RPD to 25 July 2014, and Plaintiff’s responses were due on 18 July 2014, pursuant to the parties’ prior agreement.

As Plaintiff did not serve his responses to the RPD until 25 July 2014, the responses are untimely and, consequently, all objections to the same are waived.  (See Code Civ. Proc., § 2031.300, subd. (a).)

D.  Conclusion

As Outfitter did not demonstrate good cause for the discovery sought by RPD Nos. 22-38, no further responses are warranted to those requests and the motion is DENIED as to that matter.  Furthermore, as Plaintiff provided objection-only responses to RPD Nos. 40-41 and all of his objections have been waived, the Court finds that further responses to RPD Nos. 40-41 are warranted and the motion is GRANTED as to that matter.   Accordingly, Outfitter’s motion to compel further responses to RPD Nos. 22-38 and 40-41 is GRANTED IN PART and DENIED IN PART.

Motion to Compel Compliance with Response to RPD No. 42

         A.  Legal Standard

If a responding party agrees to comply with request for production of documents but then fails to do so, compliance may be compelled under Code of Civil Procedure section 2031.320.  (See Code Civ. Proc., §2031.320 subd. (a); see also Weil & Brown et al., Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2014) ¶¶ 8:1503 and 8:1508, p. 8H-50.)  Unlike a motion to compel further responses to requests for production of documents made pursuant to Code of Civil Procedure section 2031.310, a motion to compel compliance does not require the moving party to set forth specific facts showing good cause justifying the discovery sought by the inspection demand or meet and confer in an attempt to resolve the matter informally.  (See Standon Co., Inc. v. Super. Ct. (1990) 225 Cal.App.3d 898, 903.)  “All that has to be shown is the responding party’s failure to comply as agreed.”  (See Weil & Brown et al., Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2014) ¶ 8:1508.1, p. 8H-50.)

B.  Mootness

RPD No. 42 asks Plaintiff to produce all documents related to the documents attached as exhibit B to Plaintiff’s responses to special interrogatories, set one, that identified accrued and unused vacation time.  Exhibit B is a chart that summarized vacation time that Plaintiff did and did not use during his employment from 2002 to 2010.  (See Holtzapple Dec., Ex. 3.)  The chart identifies the periods during which vacation time accrued, the amount of vacation time used, and the monetary value of the vacation pay.  (See id.)  In response to that request, Plaintiff stated only that he would produce responsive documents.

Outfitter argues in its moving papers that the Court should compel Plaintiff to produce all documents responsive to RPD No. 42 because, as of the date of the filing of the motion, Plaintiff had not produced any documents in response to the same.

In his opposition, Plaintiff asserts that he “has now produced documents related to his claim for payment for accrued, unused, vacation time, on August 26, 2014.”  (Opp’n., p. 12:19-22.)   Additionally, Plaintiff’s counsel declares that on August 26, 2014, Plaintiff produced 500 pages of documents.  (See Jacobs Dec., ¶ 33.)

In its reply, Outfitter states that “[a]lthough Plaintiff finally produced a single document in response [to RPD No. 42] on August 26 – long after this motion was filed – from its face it appears unlikely that this single document constitutes ‘all documents responsive to’ Request No. 42.”  (Reply, p. 1, fn. 1.)  Additionally, Outfitter’s counsel declares that the document attached to his declaration as exhibit 14 is the document that Plaintiff’s counsel indicated was response to the request.  (Holtzapple Reply Dec., Ex. 14.)

Exhibit 14 appears to be an excel spreadsheet that identifies numerous trips and vacations taken by Plaintiff from 2002 to 2010.  (See id.)  Each trip is identified by a descriptive title and the chart indicates the length of the trip and the dates during which the trip occurred.  This document is responsive to RPD No. 42 and aside from Outfitter’s conclusory assertion that it is “unlikely that this single documents constitutes ‘all documents responsive to’ Request No. 42,” there is no indication that Plaintiff is withholding additional responsive documents.

As Plaintiff has now produced documents responsive to RPD No. 42 and Outfitter has not demonstrated that Plaintiff is withholding additional responsive documents, the Court denies Outfitter’s motion to compel compliance as MOOT.

Requests for Monetary Sanctions

Both Outfitter and Plaintiff request monetary sanctions in connection with the instant motion.

         A.  Outfitter’s Request

Outfitter requests monetary sanctions against Plaintiff and his counsel in the amount of $10,927.50 pursuant to Code of Civil Procedure section 2031.310, subdivision (h).

Code of Civil Procedure section 2031.310, subdivision (h) provides that “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.”

Outfitter was only partially successful on it motion to compel further responses to RPD Nos. 22-38 and 40-41, and  the Court finds that Plaintiff was substantially justified in opposing motion as Outfitter did not demonstrate good cause for the discovery sought by RPD Nos. 22-38.

Accordingly, Outfitter’s request for monetary sanctions is DENIED.

         B.  Plaintiff’s Request

Plaintiff requests an award of monetary sanctions against Outfitter in the amount of $7,000 because Outfitter brought the instant motion “without first deposing Plaintiff to determine whether there was any good cause basis to bring this Motion.”  (Opp’n., p. 14:6-8.)

First, Plaintiff does not cite any statutory authority as the basis for his request for monetary sanctions.  Second, as Outfitter notes in its reply papers, there is no requirement that a party first attempt to obtain the requested information by way of deposition prior to bringing a motion to compel.

Accordingly, Plaintiff’s request for monetary sanctions is DENIED.

Conclusion and Order

Outfitter’s motion to compel further responses to RPD Nos. 22-38 and 40-41 and compliance Plaintiff’s response to RPD No. 42 is GRANTED IN PART and DENIED IN PART.  The motion is DENIED as to the request to compel further responses to RPD Nos. 22-38 and the request to compel compliance with Plaintiff’s response to RPD No. 42.  The motion is GRANTED as to the request to compel further responses to RPD Nos. 40-41.  Accordingly, within 20 days of the date of the filing of this Order, Plaintiff shall serve Outfitter with verified, code-compliant further responses to RPD Nos. 40-41, without objection, and produce documents in accordance with his responses.

The mutual requests for monetary sanctions are DENIED.

 

________________­­­____________ DATED:

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