Case Number: EC060828    Hearing Date: July 18, 2014    Dept: A

Gas Land Inc. v Delafield Corp.

MOTIONS FOR DISCOVERY ORDERS (2)

Calendar: 4
Case No: EC060828
Date: 7/18/14

MP: Defendants, Delafield Corp. and Delafield Fluid Technologies, Inc.
RP: Plaintiff, Gas Land, Inc.

RELIEF REQUESTED:
1. Order compelling Plaintiff, Gas Land, Inc., to serve further responses to the Defendants’ special interrogatories.
2. Order compelling Plaintiff, Gas Land, Inc., to serve further responses to Defendants’ requests for production.

CHRONOLOGY:
Discovery Served: January 30, 2014
Responses Served: March 27, 2014 (Timely by agreement)

Motions Filed: June 16, 2014 (Timely by agreement)

DISCUSSION:
This case arises from the Plaintiff’s claim that it suffered damages when the Defendants breached an agreement to install nitrogen generators.
Trial is set for January 26, 2015.

This hearing concerns the two motions of the Defendants, Delafield Corp. and Delafield Fulid Technologies, Inc., for discovery orders to compel the Plaintiff to serve further responses to the Defendants’ special interrogatories and requests for production.

1. Motion to Compel Further Responses to Special Interrogatories
The Defendants request an order compelling the Plaintiff to serve further responses to special interrogatories 1, 4, 7, 10, 16, 19, 22, 25, 28, 31, 34, and 36 to 245. CCP section 2030.300 authorizes the Court to order a party to serve further responses when the party serves unmerited objections to interrogatories. The Defendants provide facts in the declaration of their attorney, Richard Vergel De Dios, that demonstrate that an attempt to meet and confer to resolve these disputes informally occurred and that the Plaintiff declined to serve further responses and would “stand” on its objections.

a. Special Interrogatories 1, 4, 7, 10, 16, 19, 22, 25, 28, 31, and 34
These special interrogatories are contention interrogatories that seek the facts, witnesses, and documents supporting the allegations in the Complaint against the Defendants. CCP section 2030.010(b) expressly permits contention interrogatories that request a party to state the facts, witnesses, or writing on which the party’s contentions are based. Further, contention interrogatories are encouraged under California law. Burke v. Superior Court of Sacramento County (1969) 71 Cal. 2d 276, 282 (the courts should encourage the liberal use of interrogatories for the purpose of clarifying and narrowing the issues made by the pleadings).

In response to the contention interrogatories, the Plaintiff served the following objections: vague and ambiguous as to phrase “State all facts”, seeks legal conclusions, seeks information protected by attorney-client and work product privileges, and discovery not complete.
Under California law, the objecting party has the burden of justifying its objections when the propounding party requests that the Court order further responses. Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221. This requires the Plaintiff to proceed through each objection to each response and demonstrate that the objection has merit. Under CCP section 2023.010, it is a misuse of discovery to make unmerited objections.
The Plaintiff failed to meet its burden of justifying each objection.

The objection “vague and ambiguous”, is justified only if the responding party cannot form an intelligent reply. Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771, 783. A party may not deliberately misconstrue a question for the purpose of supplying an evasive answer. Id. In addition, when a question is somewhat ambiguous, but the nature of the information sought is apparent, the responding party must provide an appropriate response. Id. Here, the Plaintiff could form an intelligent reply because the nature of the information sought is apparent, i.e., the facts underlying the Plaintiff’s allegations in its Complaint. This objection is overruled.
The objection “calls for legal conclusion” has no merit because CCP section 2030.010(b) expressly states that an interrogatory is not objectionable when it involves an opinion, contention that relates to the application of law to fact, or would be based on legal theories.
The objections that the interrogatories seek information that it protected by the attorney-client or work product privileges are overruled because the Defendants are merely seeking the facts which the Plaintiff will use to meet its burden of proof at trial, i.e., the facts that the Plaintiff will use to demonstrate that they can establish the claims in its Complaint to the preponderance of the evidence standard. The Plaintiffs fail to offer any legal authority holding that it is a valid objection to discovery to state that “discovery is continuing”.

Further, in its opposition, the Plaintiff attempts to raise new objections, e.g., the interrogatories are not full and compliant because they require the Plaintiff to look at its own pleadings to determine what facts support its own allegations. Under CCP section 2030.290, these new objections were waived because they were not raised in a timely response. In addition, the objections lack any merit because Defendants’ interrogatories are contention interrogatories that are expressly authorized under CCP section 2030.010 and encouraged under California law.

In addition to making the above objections, the Plaintiff stated in the response that on information and belief, the facts in the Complaint are true. Under CCP section 2030.300, there are grounds to compel a further response when the answer is evasive or incomplete. The Plaintiff’s response that on information and belief, the facts in the Complaint are true is an evasive response because it is merely a conclusion unsupported by any facts.

Accordingly, the Court will order the Plaintiff to serve a further response without objections to special interrogatories 1, 4, 7, 10, 16, 19, 22, 25, 28, 31, and 34.

b. Special Interrogatories 36 to 245
In response to these interrogatories, the Plaintiff objected to each that they exceeded the number authorized by the discovery code. CCP section 2030.050 permits a party to propound more than 35 special interrogatories by accompanying the interrogatories with a “declaration of necessity” to demonstrate that the additional interrogatories are warranted by the issues in the case. The special interrogatories propounded by the Defendants include this declaration. Further, these special interrogatories are contention interrogatories in that they seek information about the Plaintiff’s pleadings.
CCP section 2030.050 states that when more than 35 specially prepared interrogatories are not accompanied by a declaration of necessity, then a party may answer the first 35 and serve objections to the rest. However, when a declaration of necessity accompanies the specially prepared interrogatories, then any challenge to the number of questions must be by a motion for protective order under CCP section 2030.090. The party propounding the special interrogatories then has the burden under CCP section 2030.040 of justifying the additional interrogatories.
The Plaintiff did not a protective order. Since the Plaintiff did not seek such order, Plaintiff was required to answer each interrogatory.

Further, in the response, the Plaintiff stated that “in the event that the court permits Delafield to exceed the numerical limit on interrogatories, it was reserving its right to object to the interrogatories. This attempt to “reserve” objections has no legal basis. Instead, under CCP section 2030.290, the Plaintiff waived any objections it had by failing to serve a proper, timely response.

Accordingly, the Court will order the Plaintiff to serve a further response without objections to special interrogatories 36 to 245.

In addition, the Defendants requested an award of monetary sanctions for the fees and costs they incurred in preparing and appearing on this motion. Under CCP section 2030.300(d) the Court may impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, 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.
Here, it is appropriate to impose monetary sanctions on the Plaintiff and its counsel because the objections lacked merit. Further, the purpose of discovery is to take the “game” element out of trial preparation by enabling parties to obtain the evidence necessary to evaluate and resolve their dispute prior to trial. Emerson Elec. Co. v. Superior Court (1997) 16 Cal. 4th 1101, 1107. In light of the customary practice of using contention interrogatories to obtain facts regarding the allegations in a complaint, the Plaintiff’s objections appear to be designed to thwart the purpose of discovery by hindering the Defendants from obtaining information necessary to evaluate the Plaintiff’s allegations in its complaint. Accordingly, the Court will impose monetary sanctions on the Plaintiff and its counsel.
The Defendants’ attorney, Richard Vergel De Dios, provides facts in paragraphs 16 and 17 to support the amount requested of $3,635. These facts indicate that he expects to bill 13 hours at $275 per hour and that the filing fee is $60 per motion. The amount of time is reasonable in light of the additional requirements necessary to draft and file a motion to compel further responses. The Court will adjust the hourly rate down to $250 per hour because this is a reasonable rate to bill for standard discovery. This will result in monetary sanctions of $3,310.
Accordingly, the Court will impose monetary sanctions of $3,310 on the Plaintiff and its counsel.

2. Motion to Compel Further Responses to Requests for Production
The Defendants request an order compelling the Plaintiff to serve further responses to their request for production, number 1. Under CCP section 2031.310, the Court may order a responding party to serve a further response when its response contains unmerited objections.

Request for Production 1 requested that the Plaintiff produce all documents identified in its responses to the special interrogatories. The Plaintiff served a response that contained the following objections: the objections in its special interrogatories are incorporated and discovery is not complete.
Under California law, the objecting party has the burden of justifying its objections when the propounding party requests that the Court order further responses. Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221. This requires the Plaintiff to proceed through each objection and demonstrate that the objection has merit. Under CCP section 2023.010, it is a misuse of discovery to make unmerited objections.
The Plaintiff failed to meet its burden of justifying its objections. As discussed above, none of the Plaintiff’s objections to the special interrogatories have merit. Further, there is no valid objection that discovery is not complete. None of the Plaintiff’s objections were sustained.

Accordingly, the Court will order the Plaintiff to serve a further response without objections to request for production 1.

In addition, the Defendants requested an award of monetary sanctions for the fees and costs they incurred in preparing and appearing on this motion. Under CCP section 2031.310 the Court may impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to requests for production, 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.
Here, it is appropriate to impose monetary sanctions on the Plaintiff and its counsel because the objections lacked merit. Further, the purpose of discovery is to take the “game” element out of trial preparation by enabling parties to obtain the evidence necessary to evaluate and resolve their dispute prior to trial. Emerson Elec. Co. v. Superior Court (1997) 16 Cal. 4th 1101, 1107. The Defendants’ requests for production sought to obtain the documents that contain facts supporting the Plaintiff’s claims. The Plaintiff’s objections appear to be designed to thwart the purpose of discovery by hindering the Defendants from obtaining information necessary to evaluate the Plaintiff’s allegations in its complaint. Accordingly, the Court will impose monetary sanctions on the Plaintiff and its counsel.
The Defendants’ attorney, Richard Vergel De Dios, provides facts in paragraphs 18 to support the amount requested of $1,160. These facts indicate that he expects to bill 4 hours at $275 per hour. The amount of time is reasonable in light of the additional requirements necessary to draft and file a motion to compel further responses. The Court will adjust the hourly rate down to $250 per hour because this is a reasonable rate to bill for standard discovery. When the filing fee of $60 is added, this will result in monetary sanctions of $1,060.
Accordingly, the Court will impose monetary sanctions of $1,060 on the Plaintiff and its counsel.

RULING:
1. ORDER Plaintiff to serve further responses without objections to special interrogatories,
numbers 1, 4, 7, 10, 16, 19, 22, 25, 28, 31, 34, and 36 to 245 within twenty days; IMPOSE monetary sanctions on the Plaintiff and its counsel to be paid to the office of counsel for defendant within thirty days in the sum of $3,310.00.
2. ORDER Plaintiff to serve further responses without objections to request for production,
number 1 within twenty days; IMPOSE monetary sanctions on the Plaintiff and its counsel to be paid to the office of counsel for defendant within thirty days in the sum of $1,060.00.