John Cassinelli v. Applied Physics Systems, Inc., et al.		CASE NO. 112CV236526
DATE: 1 August 2014	TIME: 9:00	LINE NUMBER: 6

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 408.882.6856 and the opposing party no later than 4:00 PM Thursday 31 July 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 1 August 2014, the following motions of defendant and cross-complainant Applied Physics Systems, Inc. were argued and submitted: (1) motion for evidence and monetary sanctions against plaintiff and cross-defendant John Cassinelli and his counsel; and (2) motion to compel further responses from cross-defendant Anna Szabelski to form interrogatories, special interrogatories, requests for admission, and requests for production of documents, compliance with cross-defendant Anna Szabelski’s responses to requests for production of documents, and for an award of monetary sanctions.

Plaintiff and cross-defendant John Cassinelli filed a formal opposition to the APS’ motion for evidence and monetary sanctions, in which he requests issue and monetary sanctions.  Cross-defendant Anna Szabelski filed a formal opposition to APS’ motion to compel further responses to discovery requests and compliance with her responses to requests for production of documents, in which she requests an award of monetary sanctions.

Statement of Facts  

This wrongful termination and discrimination action arises out of a dispute between plaintiff and cross-defendant John Cassinelli (“Mr. Cassinelli”) and his former employer, defendant and cross-complainant Applied Physics Systems, Inc. (“APS”).  In June 2008, APS hired Mr. Cassinelli as a lab technician.  (Second Amended Complaint (“SAC”), ¶¶ 30-32.)  In February 2009, Mr. Cassinelli and Anna Szabelski (“Ms. Szabelski”) signed an Affidavit of Domestic Partnership (the “Affidavit”), swearing under oath that they were domestic partners.  Based upon the Affidavit, APS provided health insurance benefits for Ms. Szabelski from March 2009 to May 2012.  (SAC, ¶¶ 117-123.)

On 11 May 2012, after receiving information leading it to believe that the nature of Mr. Cassinelli and Ms. Szabelski’s relationship had changed—Mr. Cassinelli asked a co-worker on a date—APS confronted Mr. Cassinelli about the status of his domestic partnership.  (SAC, ¶¶ 67-78.)  APS informed Mr. Cassinelli that it believed he was not in a domestic partnership with Ms. Szabelski and lied when he signed the Affidavit.  (Id.)  APS then terminated Mr. Cassinelli’s employment on the stated basis that he had fraudulently signed the Affidavit in order to obtain health insurance benefits for Ms. Szabelski.  (SAC, ¶¶ 149, 186.)

Mr. Cassinelli filed suit against APS and the company’s vice president, defendant Bob Goodman (“Mr. Goodman”), on 21 November 2012.  In the operative second amended complaint (“SAC”), Mr. Cassinelli alleges causes of action for discrimination on the basis of marital status, age discrimination, retaliation, failure to prevent discrimination, defamation, wrongful termination, intentional infliction of emotional distress, negligent hiring, breach of an implied contract, negligent infliction of emotional distress, breach of the covenant of good faith and fair dealing, violation of the Business & Professions Code, and violation of the Labor Code.

On 26 August 2013, APS appeared for a deposition pursuant to Mr. Cassinelli’s notice of deposition.  As a result of information gained during the deposition, APS believes that Mr. Cassinelli hacked into its computer system after being terminated and stole documents for use in this litigation.

On 18 November 2013, APS filed a cross-complaint against Mr. Cassinelli and Ms. Szabelski.  APS filed the operative first amended cross-complaint (“FACC”) on 5 March 2014, asserting causes of action for violation of Penal Code section 502, breach of contract, breach of the covenant of good faith and fair dealing, conversion, fraud and deceit, negligent misrepresentation, and promissory estoppel.  The FACC is based upon allegations that Mr. Cassinelli hacked into APS’ computer system, Mr. Cassinelli and Ms. Szabelski committed fraud by executing the Affidavit, and Mr. Cassinelli and Ms. Szabelski breached an oral and written contract “by not actually having been in a domestic partnership and/or by not promptly notifying APS that their domestic partnership had terminated.”  (FACC, ¶ 23.)

Discovery Dispute

APS’ Motion for Evidence and Monetary Sanctions against Mr. Cassinelli and his Counsel

APS took Mr. Cassinelli’s deposition on 23 October 2013 and 24 October 2013.  (See McFarland Dec., Ex. D.)  At his deposition, Mr. Cassinelli reviewed approximately 30 photographs that he produced during discovery, which purportedly showed witnesses with knowledge of his relationship with Ms. Szabelski.  Mr. Cassinelli provided first names for some of the individuals in the photographs and testified that he could find further information about some of the individuals by asking Ms. Szabelski and looking in his email.  (See McFarland Dec., Ex. D, p.  89:1-17, 91:1-5, 113:825, 114:1-3.)

On 26 November 2013, APS served Mr. Cassinelli with special interrogatories (“SI”), set one, seeking further information about topics that were addressed, but not fully fleshed out, in Mr. Cassinelli’s deposition.  (See McFarland Dec., Ex. E.)  Mr. Cassinelli served APS with his responses to the SI, objecting to each of the requests and providing substantive responses to some of the interrogatories.  (See McFarland Dec., Ex. F.)  Counsel for APS sent a meet and confer letter to Mr. Cassinelli’s counsel, asserting that the responses to the SI were evasive and incomplete, and requesting that Mr. Cassinelli provide supplemental responses.  The parties met and conferred, but Mr. Cassinelli refused to provide further responses.  On 18 February 2014, APS filed a motion to compel Mr. Cassinelli to provide further responses to SI Nos. 3-10, 13-14, 16, 20-25, 28-29, and 31.

On 4 April 2014, the court (Hon. William J. Elfving) granted APS’ motion in its entirety.  In its 4 April 2014 order, the court ordered Mr. Cassinelli to serve “verified, code-compliant further responses, without objections (except for the work product privilege which has been preserved) to Special Interrogatories Nos. 3-10, 13, 14, 16, 20-25, 28-29, and 31, within 20 calendar days of the filing of the written order.”  (Order Re: Motion to Compel Further Responses, p. 2:2-4.)  The court also ordered Mr. Cassinelli and his counsel to pay monetary sanctions in the amount of $1,290.00. (Order Re: Motion to Compel Further Responses, p. 2:5-8.)

Subsequently, Mr. Cassinelli requested an extension of time to 2 May 2014, to provide further responses to the SI pursuant to the 4 April 2014 order.  (See McFarland Dec., p. 5:14-17.)  APS’ counsel agreed to provide Mr. Cassinelli with an extension of time to 28 April 2014.  (Id.)  On 28 April 2014, Mr. Cassinelli served APS with his further responses to SI Nos. 3-10, 13-14, 16, 20-25, 28-29, and 31 and paid the monetary sanctions.  (See McFarland Dec., Ex. H.)

On 23 May 2014, counsel for APS sent a meet and confer letter to Mr. Cassinelli’s counsel, asserting that Mr. Cassinelli’s further responses to SI Nos. 9, 14, 16, 20-25, and 28-29 were deficient.  (See McFarland Dec., Ex. I.)  APS’ counsel requested that Mr. Cassinelli provide further responses by 28 May 2014.  (Id.)  Mr. Cassinelli’s counsel sent APS’ counsel a letter on 29 May 2014, providing additional information that was responsive to SI Nos. 9, 14, and 16.  (See McFarland Dec., Ex. J.)  With respect to SI Nos. 20-25 and 28-29,  Mr. Cassinelli’s counsel advised that Mr. Cassineli did not know the contact information for the individuals identified in those requests despite having made reasonable attempts to locate the same.  (Id.)  Mr. Cassinelli’s counsel indicated that Mr. Cassinelli would continue to make reasonable efforts to supplement his responses.  (Id.)

On 11 June 2014, Mr. Cassinelli’s counsel emailed counsel for APS, advising that Mr. Cassinelli would be providing additional supplemental responses to the SI as he located additional information.  (See McFarland Dec., Ex. K, p. 1.)  Mr. Cassinelli’s counsel indicated that he would be out of the office as of 11 June 2014, and would return on 20 June 2014.  (Id.)  APS’ counsel replied via email a few hours later and asked whether Mr. Cassinelli would agree to “a continuance on a potential motion to compel until June 27, 2014,” as APS’ deadline to file the same was 17 June 2014.  (See McFarland Dec., Ex. K, p. 2.)  Shortly thereafter, Mr. Cassinelli’s counsel replied via email, stating “[w]e agree and serve the supplement by June 27th.”  (McFarland Dec., Ex. K, p. 3.)  APS’ counsel immediately replied to the email, indicating that she understood Mr. Cassinelli’s counsel to be agreeing to provide supplemental responses by 27 June 2014, not agreeing to extend the deadline for APS to file a motion to compel further responses.  (See McFarland Dec., Ex. K, p. 4.)  Counsel for APS stated that APS would need Mr. Cassinelli’s further responses before 27 June 2014, or an agreement that the deadline for APS to file a motion to compel further responses would be extended to 18 July 2014.  (Id.)  APS’ counsel sent a follow-up email on the same day requesting a response before Mr. Cassinelli’s counsel left for the day, but did not receive a response.  (See McFarland Dec., Ex. K, p. 5.)

On 17 June 2014, APS filed the instant motion for evidence and monetary sanctions.  On 14 July 2014, Mr. Cassinelli filed papers in opposition to APS’ motion.  APS filed a reply on 18 July 2014.

APS’ Motion to Compel Further Responses from Ms. Szabelski and Compliance with her Responses to Requests for Production of Documents

On 5 March 2014, APS served Ms. Szabelski with form interrogatories(“FI”), set one, SI, set one, requests for admission (“RFA”), set one, and requests for production of documents (“RPD”), set one.  (See McFarland Dec., p. 2:14-17, Exs. B, C, D, E.)  Ms. Szabelski requested an extension of time to respond to the discovery requests and APS agreed to grant Ms. Szabelski an extension of time to 2 May 2014.  (See McFarland Dec., p. 2:18-24.)  On 2 May 2014, Ms. Szabelski served APS with her responses to the discovery requests, but did not produce any documents in response to the RPD.  (See McFarland Dec., p. 2:25-27, Exs. H, I, K, L, Q, p. 2-10.)

On 19 May 2014, APS’ counsel sent Ms. Szabelski’s counsel a meet and confer letter regarding Ms. Szabelski’s responses to the SI, RFA, and RPD.  (See McFarland Dec., p. 3:5-9, Ex. N, p. 1-6.)  APS’ counsel asserted that Ms. Szabelski’s objections to several of the SI, RFA, and RPD were without merit and her substantive responses were incomplete.  (Id.)  APS’ counsel also indicated that APS had not received any responsive documents from Ms. Szabelski, despite the fact that she stated in her responses to RPD Nos. 1, 7, 15-16, 20, 24-25, and 27-28 that she would produce the same.  (Id.)  APS’ counsel requested that Ms. Szabelski produce any and all responsive documents and a privilege log by 22 May 2014, and provide further responses to the SI, RFA, and RPD by 30 May 2014.  (Id.)

APS’ counsel sent Ms. Szabelski’s counsel a meet and confer letter on 20 May 2014, regarding Ms. Szabelski’s responses to the FI.  (See McFarland Dec., p. 3:9-11, Ex. N, p. 7:1-2, 5.)  APS’ counsel asserted that Ms. Szabelski’s objections to several of the FI were without merit and her substantive responses were incomplete.  (Id.)  APS’ counsel requested that Ms. Szabelski provide further responses to the FI by 30 May 2014.  (Id.)

APS’ counsel sent another meet and confer letter to Ms. Szabelski’s counsel on 23 May 2014, indicating that she had not received any response to her earlier letters or any documents responsive to the RPD.  (See McFarland Dec., p. 3:12-15, Ex. O.)

On 2 June 2014, Ms. Szabelski’s counsel sent APS’ counsel a reply letter.  (See McFarland Dec., p. 3:16-24, Ex. P.)  Ms. Szabelski’s counsel indicated that Ms. Szabelski would provide a further response to FI Nos. 15.1 (only for specific subparts) and 17.1 (only for specific subparts), SI Nos. 2, 4, and 6, and RPD Nos. 1, 7, 15, 16-18, 20, 24-25, and 27-28 within the next two weeks, but would not provide further responses to the remaining FI, SI, RFA, and RPD that APS’ counsel had identified as deficient.  (Id.)  Ms. Szabelski’s counsel asserted that further responses were not warranted to those requests because Ms. Szabelski’s objections, specifically those based on privacy and vagueness, were legitimate and her substantive responses were sufficient.  (Id.)

APS’ counsel sent a reply letter to Ms. Szabelski’s counsel on 4 June 2014, arguing that Ms. Szabelski’s privacy objection lacked merit.  (See McFarland Dec., p. 3:25-27, 4:1-8, Ex. Q, p. 1.)  APS’ counsel advised that APS could only accept supplemental responses within the two-week period proposed by Ms. Szabelski’s counsel if Ms.Szabelski agreed to grant APS an extension of time to file its motion to compel further responses.  (Id.)  APS’ counsel indicated that if Ms. Szabelski was unwilling to grant such an extension, APS would need Ms. Szabelski to serve her further responses by 10 June 2014.  (Id.)

APS’ counsel did not receive a response from Ms. Szabelski’s counsel until 16 June 2014, at which time the office of Ms. Szabelski’s counsel advised APS’ counsel that Ms. Szabelski’s further responses would be electronically served on APS on the afternoon of 17 June 2014.  (See McFarland Dec., p. 4:11-14, Ex. R.)

On 17 June 2014, Ms. Szabelski served APS with further responses to FI Nos. 15.1 and 17.1, SI Nos. 2-7, 9, 11, 12, 20-22, and 25, RFA Nos. 2, 5, 6, and 12, and RPD Nos. 1-4, 7-12, and 15-28. (See McFarland Dec., p. 4:22-26; see also Pagano Dec., p. 3:27-28, 4:1-7, Exs. 1, 2, 3, 4, 5.)

The following day, 18 June 2014, APS’ counsel sent a meet and confer letter to Ms. Szabelski’s counsel, acknowledging receipt of Ms. Szabelski’s further responses.  (See McFarland Dec., p. 5:1-14, Ex. U.)  In addition, APS’ counsel advised that since Ms. Szabelski provided further responses to only some of the FI, SI, RFA, and RPD that were purportedly deficient, APS intended to file a motion to compel further responses as to the remaining discovery requests for which it had not received a further response.  (Id.)  APS’ counsel further advised that APS would file a motion to compel compliance with Ms. Szabelski’s responses to the RPD because it still had not received any documents.  (Id.)

On 20 June 2014, Ms. Szabelski’s counsel and APS’ counsel exchanged several emails regarding the remaining discovery responses at issue and APS’ intention to file a motion to compel further responses.  (See McFarland Dec., p. 5:15-27, Exs. V and W.)  Ms. Szabelski’s counsel advised that Ms. Szabelski would provide further responses to FI Nos. 2.1, 2.5, and 2.7 by 25 June 2014, but would not provide further responses to any of the other discovery requests.  (Id.)  Based on that representation, APS’ counsel requested that Ms. Szabelski grant APS an extension of time to file its motion to compel further responses.  (Id.)  Ms. Szabelski’s counsel indicated that Ms. Szabelski was willing to grant APS an extension of time to file a motion to compel further responses to all of the discovery responses to 3 July 2014, including the supplemental responses provided on 17 June 2014.  (Id.)  APS’ counsel advised that APS would not agree to the conditions proposed by Ms. Szabelski’s counsel and would therefore proceed with filing its motion to compel further responses. (Id.)

On 23 June 2014, APS filed the instant motion to compel further responses to FI Nos. 2.1, 2.3, 2.4, 2.5, 2.6, 2.7, 2.11, 2.12, 2.13, 4.1, 12.1, 12.2, 12.3, 12.4, 12.5, 12.6, 12.7, 14.1, 14.2, 15.1, and 17.1, SI Nos. 13-18 and 23-24, RFA Nos. 1 and 7-11, and RPD Nos. 13-14, compliance with Ms. Szabelski’s responses to RPD Nos. 1, 7, 15-16, 20, 24-25, and 27-28, and for an award of monetary sanctions.[1]  Ms. Szabelski filed papers in opposition to the motion on 21 July 2014.  APS filed a reply on 25 July 2014.

Discussion

I.             APS’ Motion for Evidence and Monetary Sanctions against Mr. Cassinelli and his Counsel

APS moves for an order for evidence and monetary sanctions under Code of Civil Procedure section 2030.030, subdivision (e), on the grounds that Mr. Cassinelli violated the court’s 4 April 2014 order.

A.           Request for Judicial Notice

Mr. Cassinelli requests that the Court take judicial notice of APS and Mr. Goodman’s motion for summary judgment filed with the Court on 7 July 2014, and any documents filed in support of the same.

Evidence Code section 452, subdivision (d) authorizes the court to take judicial notice of records of “any court of this state,” so long as the documents are relevant to the matter before the court. (See Stepan v. Garcia (1974) 43 Cal.App.3d 497, 500 [the court may take judicial notice of its own file]; see also Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 [information subject to judicial notice must be relevant to the issue at hand].)

APS and Mr. Goodman’s motion for summary judgment and supporting papers are not relevant to the matter before the Court because the instant motion for evidence and monetary sanctions is based solely upon Mr. Cassinelli’s purported failure to comply with the court’s 4 April 2014 order.  Accordingly, Mr. Cassinelli’s request for judicial notice is DENIED.

B.           Mr. Cassinelli’s Request to Strike Portions of Ms. McFarland’s Declaration

Mr. Cassinelli requests that the Court strike portions of the declaration of APS’ counsel, Ms. McFarland, on the grounds that factual statements therein are false.  Mr. Cassinelli cites Garcia v. Sterling (1985) 176 Cal.App.3d 17 (“Garcia”) as the legal basis for his request.  Garcia is inapplicable to the instant case because it addresses a motion to strike a portion of a pleading made pursuant a duly noticed motion under Code of Civil Procedure section 435.  Here, Mr. Cassinelli has made no such motion and Ms. McFarland’s declaration is not a pleading under Code of Civil Procedure section 435.  Since Mr. Cassinelli has not identified any legal authority that supports his request, the request to strike portions of Ms. McFarland’s declaration is DENIED.

C.           Legal Standard

Code of Civil Procedure section 2030.030, subdivision (e) states that if a party “fails to obey an order compelling further response to interrogatories, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction.”  (Civ. Code § 2030.300, subd. (e).)  In lieu of, or in addition to, that sanction, the court may impose a monetary sanction.  (Id.)

Two facts are prerequisite to the imposition of non-monetary sanctions: (1) there must be a failure to comply with a court order; and (2) the failure must be willful. (See Liberty Mutual Fire Ins. Co. v. LcL Administrators, Inc. (2008) 163 Cal.App.4th 1093, 1102.)  Even where these facts are present, however, the court has broad discretion in imposing discovery sanctions and should consider both the conduct being sanctioned and its effect on the party seeking discovery. (See Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1293; see also Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.)  Additionally, the court should attempt to tailor the sanction to the harm caused by the withheld discovery as discovery sanctions are meant to be remedial rather than punitive.  (See Kahn v. Kahn (1977) 68 Cal.App.3d 372, 381.)  “If a lesser sanction fails to curb misuse, a greater sanction is warranted: continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse.” (See Doppes, supra, 174 Cal.App.4th at 992 [internal quotation marks and citations omitted].)

D.           Analysis

APS argues that Mr. Cassinelli willfully failed to comply with the court’s 4 April 2014 order because his further responses to SI Nos. 9, 14, 16, 20-25, and 28-29, served on 28 April 2014, are evasive and incomplete.

SI No. 9 asks for the names and contact information of persons who have knowledge of the facts that Mr. Cassinelli and Ms. Szabelski started their relationship in 2004 and Mr. Cassinelli moved into Ms. Szabelski’s home 6 months later.  (See McFarland Dec., Ex. H, p. 3:18-23, 4:3-6.)  In his further response, Mr. Cassinelli stated that “[s]ince no state registered Domestic partnership was required by Defendants and filed by Plaintiff and his domestic partner Anna Szabelski, they held no special events or ceremony to announce their relationship as domestic partners [. . .] [and] absence of such formality mainly contributed to Plaintiff’s inability to provide any more specificity to his responses.”  (See McFarland Dec., Ex. H, p. 4:6-11.)  APS asserts that Mr. Cassinelli’s further response to SI No. 9 is evasive and incomplete because he fails to identify a single person who purportedly had knowledge of when his domestic partnership with Ms. Szabelski began.

SI No. 14 asks for the names and contact information of persons who have knowledge of the fact that Mr. Cassinelli resided in Ms. Szabelski’s house from mid-2004 until the summer of 2012.  (See McFarland Dec., Ex. H, p. 4:18-25.) In his further response, Mr. Cassinelli provided the full names of 19 individuals, but did not provide their contact information.   (See McFarland Dec., Ex. H, p. 4:26-30.)  SI No. 16 asks Mr. Cassinelli to state the names and contact information of persons that he has brought to Santa Rosa to spend time with is family in the past ten years, including Lavella Cassinelli, Charles Cassinelli, Karen Cassinelli, or Jim Cassinelli.  (See McFarland Dec., Ex. H, p. 5:1-4.)  In his further response, Mr. Cassinelli provided the full names of 3 individuals, but did not provide their contact information.  (See McFarland Dec., Ex. H, p. 5:4-6.)  APS argues that Mr. Cassinelli’s further responses to SI Nos. 14 and 16 are incomplete because he failed to provide contact information for any of the individuals that he identified.

SI Nos. 20 and 21 ask for the contact information of Ms. Szabelski’s daughter, Emily Szalbelski, and son, Arthur Szabelski.  (See McFarland Dec., Ex. H, p. 5:6-8, 5:12-14.)  In his further responses, Mr. Cassinelli stated that the “address and phone number of Anna Szabelski’s children are unknown to him.”  With respect to Arthur Szabelsk, Mr. Cassinelli further responded that “[a]fter making reasonable attempt to identify his address, Plaintiff was only able to learn that he resides in Poland.”  (See McFarland Dec., Ex. H, p. 5:9-11, 5:15-18.)  SI Nos. 22-25, 28, and 29, seek the contact information of the following persons identified by Mr. Cassinelli at deposition in various photographs: Terry, Marianne, Carmela, Cathy, Lori, and Antonio.  (See McFarland Dec., Ex. H, p. 5:18-21, 5:27-29, 6:5-7, 6:14-16, 6:27-29, 7:5-8.)  In his further responses, Mr. Cassinelli stated that he did not know the contact information of Terry, Marianne, Carmela, Cathy, Lori, or Antonio.  (See McFarland Dec., Ex. H, p. 5:19-30, 6:1-20, 71-13.)  He further stated that he had made reasonable attempts to locate the contact information for those individuals, but was unsuccessful.  (Id.)  Mr. Cassinelli also indicated that Carmela and Antonio might be living in Italy.  (Id.)

APS contends that Mr. Cassinelli’s further responses to SI Nos. 20-25 and 28-29 are evasive and incomplete because he does not provide any of the requested contact information for the individuals identified in the requests, despite the fact that they are Ms. Szabelski’s children and friends.  APS points out that Mr. Cassinelli testified at his deposition that he is still in contact with Ms. Szabelski and that she would have information about the individuals’ contact information.  APS asserts that Mr. Cassinelli could easily obtain the requested contact information from Ms. Szabelski and the fact that he has refused to produce the same indicates that he is trying to hide this information.

In his opposition, Mr. Cassinelli does not discuss the sufficiency of his further responses.  Instead, Mr. Cassinelli argues in a conclusory manner that he did not disobey the court’s order because he served further responses on 28 April 2014, “voluntarily informed APS that he will be providing additional information,” and, as of 23 June 2014, served APS with additional further responses to SI Nos. 9, 14, 16, 20-25, and 28-29.

Mr. Cassinelli’s further responses to SI Nos. 9, 14, 16, 20-25, and 28-29, served on 23 June 2014, are provided to the Court for its review.  (See Mostafavi Dec., Ex. 7.)  In response to SI No. 9, Mr. Cassinelli provided the full names of 12 individuals and their contact information.  (See Mostafavi Dec., Ex. 7, p. 2:11-22.)  Mr. Cassinelli provided the full names of 17 individuals and their contact information in response to SI No. 14.  (See Mostafavi Dec., Ex. 7, p. 2:27-30, 3:1-12.)   In response to SI No. 16, Mr. Cassinelli provided the full names of 3 individuals and their contact information.  (See Mostafavi Dec., Ex. 7, p. 3:17-20.)  Mr. Cassinelli provided contact information for Ms. Szabelski’s children, Emily and Arthur Szabelski, in response to SI Nos. 20-21.  (See Mostafavi Dec., Ex. 7, p. 3:20-29.)  Mr. Cassinelli provided contact information for Marianne Boule in response to SI No. 23.  (See Mostafavi Dec., Ex. 7, p. 4:11-12.)  In response to SI No. 22, 24-25, and 28-29, Mr. Cassinelli stated that he did not know the contact information for Terry, Carmela, Cathy, Lori, or Antonio.  (See Mostafavi Dec., Ex. 7, p. 4:1-7, 4:13-29, 5:1-19.)  He further stated that he had made reasonable efforts to locate their contact information, but was unsuccessful.  (Id.)

In light of the foregoing, the Court finds that Mr. Cassinelli disobeyed the court’s 4 April 2014 order.  Mr. Cassinelli was ordered to provide code-complaint further responses to the SI within 20 calendar days of the date of the filing of the court’s order. The order was filed on 4 April 2014, such that Mr. Cassinelli’s responses were due on 24 April 2014.  The parties agreed to extend Mr. Cassinelli’s time to provide further responses to the SI to 28 April 2014.  Mr. Cassinelli served APS with his responses on 28 April 2014, but his responses to several of the SI were evasive and incomplete.

For example, Mr. Cassinelli’s response to SI No. 9 was non-responsive and incomplete as he failed to identify a single person who had knowledge of when his domestic partnership with Ms. Szabelski began.  Similarly, Mr. Cassinelli did not provide any contact information for the individuals he identified in his responses to SI Nos. 14 and 16.  At no time did Mr. Cassinelli assert that the identities or contact information of individuals who were responsive to SI Nos. 9, 14, and 16 were unknown to him.  Moreover, Mr. Cassinelli appears to have had the requisite knowledge to provide the information requested because, in his further responses served on 23 June 2014, he identified 12 individuals in response to SI No. 9 and provided their contact information.  In his response served on 23 June 2014, Mr. Cassinelli also provided the contact information for the 3 individuals that he listed in response to SI No. 16.  Furthermore, Mr. Cassinelli provided contact information for 17 of the 19 individuals listed in response to SI No. 14.  Finally, in his 23 June 2014 response to SI Nos. 20-21, Mr. Cassinelli provided the contact information for Ms. Szabelski’s children.

The fact that Mr. Cassinelli eventually served additional further responses on 23 June 2014, containing responsive information that was omitted from the 28 April 2014 further responses, does not demonstrate compliance with the court’s 4 April 2014 order.  Mr. Cassinelli was obligated to provide code-compliant responses to APS by 28 April 2014, and failed to do so.  It was only after APS’ counsel’s 23 May 2014 meet and confer letter and the filing of the instant motion on 17 June 2014, that Mr. Cassinelli provided complete responses to SI Nos. 9 and 16.

Additionally, the Court notes that Mr. Cassinelli’s 23 June 2014 response to SI No. 14 remains incomplete because he has not provided contact information for Lisa Estes and David Estes, who were listed in his 28 April 2014 response to the request.  Moreover, Mr. Cassinelli has not provided contact information for the individuals listed in SI Nos. 22, 24-25, and 28-29: Terry, Carmela, Cathy, Lori, or Antonio.  While Mr. Cassinelli stated in his 23 June 2014 responses that the contact information of the individuals is unknown to him and he made reasonable attempts to obtain the same, Mr. Cassinelli has demonstrated a proclivity for providing evasive answers.  For example, in his 28 April 2014 response to SI No. 21, Mr. Cassinelli stated that he did not know the contact information for Ms. Szabelski’s son, and after making reasonable attempts to locate the same, was only able to learn that he resides in Poland.  However, in his 23 June 2014 response, Mr. Cassinelli provided complete contact information for Ms. Szabelski’s son.  Furthermore, Mr. Cassinelli testified at deposition that he could obtain the contact information for the individuals listed in SI Nos. 22, 24-25 and 28-29 by asking Ms. Szabelski and looking in his email.  (See McFarland Dec., Ex. D, pp. 89:13-17, 90:22-25, 91:1-5, 113:8-25, 114:1-3.)  Mr. Cassinelli testified that he remains in contact with Ms. Szabelski and works with Ms. Szabelski to produce information in response to discovery requests.  (See McFarland Dec., Ex. D, pp. 89:1-19, 146:2-7, 207:22-25, 233:1-9, 234:2-18, 317:15-25, 335:1-22, 338:4-22.)  Based upon Mr. Cassinelli’s deposition testimony and prior conduct, it appears that Mr. Cassinelli has not provided complete responses to SI Nos. 22, 24-25, and 28-29.

APS requests that the Court impose an evidence sanction prohibiting Mr. Cassinelli from introducing any evidence relating to or testimony from the following witnesses: Karen Cassinelli, Kim Cassinelli, Steven Love,Celeste Love, Amber Gibson, Patty Hemstreet, Lanette Topper, Stella Szostek, David Estes, Lisa Estes, Mirna Estes, Michael Dione, Marianne Boule, Terry, Marianne, Carmela, Cathy, Lori, and Antonio.[2]  APS further requests that the Court impose a monetary sanction in the amount of $2,490.00 against Mr. Cassinelli and his counsel.

The Court finds that evidence sanctions would be inappropriate at this juncture to the extent they would prohibit testimony or evidence relating to Karen Cassinelli, Kim Cassinelli, Steven Love, Celeste Love, Amber Gibson, Patty Hemstreet, Lanette Topper, Stella Szostek, Mirna Estes, Michael Dione, or Marianne Boule. (See Doppes, supra, 174 Cal.App.4th at 992.)  As indicated above, Mr. Cassinelli has now provided the complete contact information for these individuals.  In addition, Mr. Cassinelli has provided contact information for Ms. Szabelski’s children.  As discovery sanctions are meant to be remedial rather than punitive, it would be improper to exclude evidence relating to or testimony from these individuals now that APS has their contact information.  (See Kahn v. Kahn (1977) 68 Cal.App.3d 372, 381.)

However, Mr. Cassinelii has not provided any contact information for the following individuals: David Estes, Lisa Estes, Terry, Cathy, Lori, Carmela, and Antonio.  Since the Court previously imposed monetary sanctions against Mr. Cassinelli and his counsel in connection with Mr. Cassinelli’s responses to the SI requesting the contact information for those individuals, the Court finds that evidence sanctions are warranted at this time regarding David Estes, Lisa Estes, Terry, Cathy, Lori, Carmela, and Antonio.  (See Doppes, supra, 174 Cal.App.4th at 992.)  Accordingly, Mr. Cassinelli shall not introduce any evidence relating to or testimony from David Estes, Lisa Estes, Terry, Cathy, Lori, Carmela, or Antonio.[3]

In the instant case, monetary sanctions are also warranted given Mr. Cassinelli’s failure to comply with the 4 April 2014 order because APS incurred expenses in connection with the instant motion.  (See Doppes, supra, 174 Cal.App.4th at 992.)

Mr. Cassinelli argues that the Court should not impose monetary sanctions against his counsel because he did not advise Mr. Cassinelli to misuse the discovery process.  In support of his argument, Mr. Cassinelli cites Ghanooni v. Super Shuttle (1993) 20 Cal. App.4th 256 (“Ghanooni”).  In Ghanooni, the plaintiff’s counsel submitted their declarations, accompanying documents, and the declaration of defense counsel which established that the plaintiff’s refusal to submit to x-rays was not based on their advice.  (See Ghanooni v. Super Shuttle, supra, at p. 261.)  The declarations and letters showed that counsel for plaintiff attempted to convince the plaintiff to submit to the x-rays and made substantial efforts to try to reach some compromise between their client and defendants which would allow the x-rays to go forward.  (Id.)  The instant case is distinguishable from Ghanooni.  Here, Mr. Cassinelli’s counsel does not provide the Court with any documents that demonstrate that he advised Mr. Cassinelli to provide or include additional information in his 28 April 2014 responses to the SI and then Mr. Cassinelli refused to do so.  In fact, Mr. Cassinelli’s counsel’s 29 May 2014 letter, written in response to APS’ counsel’s 23 May 2014 meet and confer letter, included substantial additional information that was responsive to the SI, but Mr. Cassinelli did not serve further responses containing that information until 23 June 2014.  Thus, Mr. Cassinelli’s argument lacks merit.

APS’ counsel declares that she spent 8 hours drafting the instant motion at her hourly rate of $240.00.  APS also seeks to recover the $60.00 filing fee and the $30.00 court reporter fee.  APS’ counsel further declares that she expects to spend an additional 2 hours reviewing the opposition and preparing a reply.

Mr. Cassinelli argues that the time spent by APS’ counsel preparing the instant motion is unreasonable “[i]n comparison to the time Cassinelli spent preparing the opposition.”  (Opp’n., p. 15:16-18.)  However, the Court notes that Mr. Cassinelli’s counsel declares that he spent 7.3 hours preparing the opposition.  Thus, spending 8 hours to prepare the instant motion does not appear to be unreasonable.

The Court awards sanctions only for expenses actually incurred, not for anticipated expenses.  (See Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551.) Thus, the 2 hours of anticipated expenses are not compensable. The Court finds that the time spent by APS’ counsel and her billing rate are otherwise reasonable.

Accordingly, the Court finds that APS is entitled to a monetary sanction against Mr. Cassinelli and his counsel in the amount of $2,010.00.

E.            Opposing Request for Sanctions

Mr. Cassinelli requests issue and monetary sanctions in the amount of $2,560.00 against APS’ counsel, Helen McFarland (“Ms. McFarland”), under Code of Civil Procedure section 2023.030 on the ground that Ms. McFarland should not have filed the instant motion, but should have waited to receive Mr. Cassinelli’s further responses.  In addition, Mr. Cassinelli indicates that he is requesting monetary sanctions against Ms. McFarland because she refused to withdraw the instant motion after she received his 23 June 2014 further responses.  Finally, Mr. Cassinelli argues that “APS must be ordered with an issue sanction preventing it from asserting a defense of Good-faith mistaken belief” on the basis that Ms. McFarland declaration includes improper and false statements.  (Opp’n., p. 9:19-20.)   Mr. Cassinelli indicates that Ms. McFarland’s declaration incorrectly states that he has alleged that APS terminated him because it believed that he was not actually in a domestic partnership with Ms. Szabelski.   Mr. Cassinelli contends that by making such a statement Ms. McFarland “intentionally tries to assert APS’ affirmative defense of ‘Good-Faith Mistaken Belief’ as an allegation” made by him in his pleadings.  (Opp’n., p. 10:4-10.)

As a threshold matter, Code of Civil Procedure section 2023.030 indicates that a court may award sanctions against a party that commits a misuse of the discovery process, but only “[t]o the extent authorized by the chapter governing any particular discovery method or any other provision of this title.”  Thus, this provision does not provide an independent basis for an award of sanctions.

Moreover, Mr. Cassinelli’s arguments otherwise lack merit.  Ms. McFarland was under no obligation to withdraw the instant motion upon receiving Mr. Cassinelli’s 23 June 2014 further responses.  As indicated above, Mr. Cassinelli disobeyed the court’s 4 April 2014 order by failing to provide code-compliant responses on 28 April 2014.  Since Mr. Cassinelli disobeyed the court’s order, sanctions were warranted and the motion was appropriate.

Finally, it does not appear that Ms. McFarland’s declaration contains patently false statements.  The SAC contains numerous references to statements made by Mr. Goodman and APS that Mr. Cassinelli was being terminated because they believe he committed fraud by signing the domestic partnership affidavit.  (See SAC ¶¶ 67-78, 117-123, 149, 186.)  In fact, Mr. Cassinelli alleges that he was terminated based upon his domestic partnership and marital status, and that “Cassinelli’s Domestic partnership Affidavit was a motivating reason for Defendants’ decision to discharge” him.  (See SAC ¶¶ 126, 159.)  Moreover, there is no indication that Ms. McFarland intended to mislead the Court because the declaration was made to demonstrate that the instant action arises from Mr. Cassinelli’s termination, which APS told Mr. Cassinelli was due to its belief that he was not actually in a domestic partnership with Ms. Szabelski and had committed fraud.

Accordingly, Mr. Cassinelli’s request for issue and monetary sanctions are DENIED.

II.            APS’ Motion to Compel Further Responses from Ms. Szabelski and Compliance with her Responses to Requests for Production of Documents

A.           Request for Judicial Notice

Ms. Szabelski requests that the Court take judicial notice of APS’ cross-complaint filed on 18 November 2013, her answer to the cross-complaint filed on 15 January 2014, and APS’ FACC filed on 5 March 2014.

A court may take judicial notice of the records of any court record that is relevant to a pending issue. (See Evid. Code, § 452, subd. (d); People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 [only relevant matters subject to judicial notice].)  The cross-complaint, answer to the cross-complaint, and FACC are proper subjects for judicial notice because they are court records that are relevant to the pending matter.

Accordingly, Ms. Szabelski’s request for judicial notice is GRANTED.

B.           Further Responses to FI, SI, RFA, and RPD

APS moves to compel further responses to FI Nos. 2.1, 2.3, 2.4, 2.5, 2.6, 2.7, 2.11, 2.12, 2.13, 4.1, 12.1, 12.2, 12.3, 12.4, 12.5, 12.6, 12.7, 14.1, 14.2, 15.1, and 17.1,  SI Nos. 13-18 and 23-24, RFA Nos. 1 and 7-11, and RPD Nos. 13-14.

1.            Legal Standard

A party propounding interrogatories or requests for admission may move for an order compelling further responses if that party deems an answer is evasive or incomplete and/or an objection is without merit or too general. (See Code Civ. Proc., §§ 2030.300 [interrogatories] and 2033.290 [requests for admission]; Coy v. Super. Ct. (1962) 58 Cal.2d  210, 220-221.) The burden is on the responding party to justify any objections or failure to fully answer. (See Coy v. Super. Ct., supra, 58 Cal.2d at p. 220-221.)

Similarly, a party propounding a request for production of documents may move for an order compelling a further response if it deems that: (1) a statement of compliance with the demand is incomplete; (2) a representation of inability to comply is inadequate, incomplete, or evasive; or (3) an objection in the response is without merit or too general.  (See Code Civ. Proc., § 2031.310, subd. (a).)  The motion must set forth “specific facts showing good cause justifying the discovery sought by the demand.”  (Code Civ. Proc., § 2031.310, subd. (b)(1); Kirkland v. Super. Ct. (2002) 95 Cal.App.4th 92, 98.)  Good cause is established simply by a fact-specific showing of relevance.  (See Kirkland v. Super. Ct., supra, 95 Cal.App.4th at p. 98.)  If good cause is shown, the burden shifts to the responding party to justify any objections. (Id.)

2.            The FI, SI, and RFA

a.            Undefended Objections

Ms. Szabelski raised numerous boilerplate objections in her responses to the majority of the FI, SI, and RFA at issue. Except as expressly indicated below, Ms. Szabelski does not attempt to defend her objections, and therefore, the Court finds that the undefended objections are without merit. (See Coy v. Super. Ct., supra, 58 Cal.2d at p. 220-221.)              

b.            FI Nos. 2.1, 2.5, and 2.7

FI No. 2.1 asks Ms. Szabelski to state her name, every name she used in the past, and the dates that she used each name.  FI No. 2.5 asks Ms. Szabelski to state her present address, her addresses for the past 5 years, and the dates that she lived at each address. FI No. 2.7 asks Ms. Szabelski to state each school she attended since high school, the dates she attended those schools, the highest grade level completed, and the degrees received. In her initial responses to each of the requests, Ms. Szabelski asserted several objections.  Ms. Szabelski also provided limited substantive responses to FI Nos. 2.1 and 2.5.  In response to FI No. 2.1, she stated that her name is Anna Szabelski.  In response to FI No. 2.5, she indicated that she could be contacted through her counsel.

APS asserts that Ms. Szabelski’s objections to FI Nos. 2.1, 2.5, and 2.7 are without merit and her substantive responses are incomplete.  In her opposition, Ms. Szabelski argues that the motion is moot with respect to these requests because she provided complete further responses to FI Nos. 2.1, 2.5 and 2.7 on 24 June 2014, after the filing of this motion, despite her objections.

Ms. Szabelski’s further response to FI No. 2.1 states that, prior to 1983, Ms. Szabelski used the name Anna Czepla and, since that time, she has used the name Anna Szabelski.  Her further response to FI No. 2.5 provides her current home address and indicates that she has lived there since April 2009.  Ms. Szabelski’s further response to FI No. 2.7 states that she attended high school in Poland, the University of Gdansk, and the University of San Francisco.  She provides the dates of her attendance as well as her highest grade levels and degrees received.

Thus, it appears that Ms. Szabelski’s substantive further responses to FI Nos. 2.1, 2.5, and 2.7 are complete and no further responses are warranted.

c.            FI Nos. 2.3, 2.4, 2.6, 2.11, 2.12, 2.13, 4.1, 12.1, 12.2, 12.3, 12.4, 12.5, 12.6, 12.7, 14.1, and 14.2

FI Nos. 2.3, 2.4, 2.6, 2.11, 2.12, 2.13, 4.1, 12.1, 12.2, 12.3, 12.4, 12.5, 12.6, 12.7, 14.1, and 14.2 all utilize the term “Incident,” which is defined in the FI as “the circumstances and events surrounding the alleged accident, injury, or other occurrence or breach of contract giving rise to this action or proceeding.”  (McFarland Dec., Ex. B, p. 1.)  Ms. Szabelski objected to the requests on numerous grounds, including vagueness and ambiguity, and did not otherwise provide substantive responses.

Ms. Szabelski argues that the term “Incident” as defined is vague and ambiguous because “APS alleges multiple occurrences and events for which and when [she] is accused of possibly having breached the claimed ‘Affidavit of Domestic Partnership.’”  (Opp’n., p. 8:15-16.)  Ms. Szabelski asserts that the FACC identifies multiple possible dates on which the alleged contract may have been breached, including the date the Affidavit was signed in February 2009, unspecified dates on which Mr. Cassinelli bragged that he had another girlfriend, and 11 May 2012 (i.e., the date of Mr. Cassinelli’s termination).  (See Opp’n., p. 8:15-28.)

Conversely, APS argues that the FACC clearly indicates that “the ‘incident’ at issue in this dispute between [it] and [Ms. Szabelski] is the alleged misrepresentation she made in the Affidavit (in which she claimed to be Cassinelli’s domestic partner) and/or [Ms. Szabelski’s] inexcusable refusal to notify APS about the change in the relationship.”  (Mem. Ps & As., p. 7:22-26.)

The FACC alleges that Ms. Szabelski committed fraud and breached the contract with APS because she was not in a domestic partnership with Mr. Cassinelli when she signed the Affidavit and/or did not promptly notify APS that her domestic partnership with Mr. Cassinelli had terminated.  (See FACC, ¶¶ 23, 37, 38, 43, 44.)  The alleged misrepresentation made by Ms. Szabelski when she signed the Affidavit and her alleged refusal to notify APS that the nature of her relationship with Mr. Cassinelli had changed are two distinct occurrences or incidents.  The discovery requests are vague and ambiguous because it is unclear whether the term “Incident” refers to Ms. Szabelski’s signing of the Affidavit or Ms. Szabelski’s failure to inform APS that the nature of her relationship had changed.  (See Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783 [a vagueness and ambiguity objection will only be sustained if the request is unintelligible]; see also see also Weil & Brown et al., Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2014) ¶¶ 8:933.8 and 8:933.9, p. 8F-9 [[t]he tern “INCIDENT” may be ambiguous and confusing where the claim involved is based on multiple phone calls, letters, conversations, etc.].)  Accordingly, Ms. Szabelski’s objection to  FI Nos. 2.3, 2.4, 2.6, 2.11, 2.12, 2.13, 4.1, 12.1, 12.2, 12.3, 12.4, 12.5, 12.6, 12.7, 14.1, and 14.2 as vague and ambiguous is sustained and, therefore, further substantive responses are not warranted.

d.            RFA No. 1

RFA No. 1 asks Ms. Szabelski to admit that she was not qualified to register as a domestic partner with Mr. Cassinelli under the California Domestic Partnership Act, Family Code section 297 (the “Act”).  Ms. Szabelski objected to RFA No. 1 on several grounds, including relevancy, and did not otherwise provide a substantive response.

Ms. Szabelski argues that the information sought by the RFA is irrelevant because the Act’s definition of a domestic partnership is different from a domestic partnership as defined in the Affidavit.  Ms. Szabelski asserts that the Act requires domestic partners to be at least 62 years old, but the Affidavit contains no such requirement.  She further asserts that the Affidavit requires the domestic partners to share a common residence, but the Act does not.  APS does not explain the relevance of RFA No. 1 in its moving papers.

Here, Ms. Szabelski is correct the Act has different requirements for a domestic partnership than the Affidavit (e.g., the provision that the individuals be at least 62 years old).  (See Family Code, § 297, subd. (b)(4)(B).)  Since the Affidavit does not reference the Act and has different requirements for individuals to qualify as domestics partners, whether Ms. Szabelski was qualified to register as a domestic partner with Mr. Cassinelli under the Act is irrelevant.  Thus, the relevancy objection to RFA No. 1 is sustained and a further substantive response is not warranted.

e.            RFA No. 7

RFA No. 7 asks Ms. Szabelski to admit that she “signed the Affidavit, attached as Exhibit A, in exchange for APS providing health insurance benefits and paying part of the premium on [her] behalf.”  (Opp’n. Sep. Stmt., p. 154:17-19.)  Ms. Szabelsk objected to RFA No. 7 as compound and did not otherwise provide a substantive response to the request.

Ms. Szabelski argues that the request is impermissibly compound because it asks her to “admit to two distinct and different reasons for signing ‘the Affidavit,’ to wit, (1) for APS allowing her to qualify to join in its employer-sponsored program for health insurance benefits and (2) for APS paying part of the premium for health insurance benefits.” (Opp’n. Sep. Stmt., p. 155:7-10.)  Conversely, APS argues that the request is not compound because it embraces only a single subject.

While a written discovery request must not be a “compound, conjunctive, or disjunctive question,” the use of subparts is not “per se abusive” and will be tolerated to the extent a written discovery request embraces a single subject.  (See Clement v. Alegra (2009) 177 Cal.App.4th 1277, 1287-1289, and 1291; see also Code Civ. Proc., § 2033.060, subd. (f).)

The request at issue concerns a single subject matter: whether Ms. Szabelski signed the Affidavit to receive health insurance benefits from APS.  Both the provision of health insurance benefits and the payment of part of the premium are health insurance benefits.  Therefore, as the request embraces only one subject, the request is not compound and the objection is overruled.  Accordingly, a further response to RFA No. 7 is warranted.

 

f.             SI Nos. 23-24 and RFA Nos. 8-11

SI Nos. 23-24 ask Ms. Szabelski to identify each person that she and Mr. Cassinelli dated from 2008 to the present. Similarly, RFA Nos. 8-11 ask Ms. Szabelski to admit that Mr. Cassinelli was dating women other than her during 2009, 2010, 2011, and 2012.  Ms. Szabelski objected to SI Nos. 23-24 and RFA Nos. 8-11 on the grounds of relevancy and privacy and did not otherwise provide substantive responses to the requests.

Ms. Szabelski argues that the information sought by the SI Nos. 23-24 and RFA Nos. 8-11 is irrelevant because monogamy is not a condition of a domestic partnership as defined by the Affidavit.  Conversely, APS argues that the nature of Ms. Szabelski’s relationship with Mr. Cassinelli is relevant because Ms. Szabelski signed an Affidavit representing that she was in an intimate, committed domestic partnership with Mr. Cassinelli.

By signing the Affidavit, Ms. Szabelski certified that she was Mr. Cassinelli’s domestic partner and they shared “one another’s lives in an intimate and committed relationship of mutual sharing.”  Ms. Szabelski further represented that neither she nor Mr. Cassinelli were a member of another domestic partnership.  Whether Mr. Cassinelli or Ms. Szabelski were dating other individuals during the time that they were allegedly in a relationship with one another is relevant to the instant cause because it may lead to evidence demonstrating that Mr. Cassinelli and Ms. Szabelski were not “committed” to each other or were involved in another relationship that might qualify as a domestic partnership.  Furthermore, if Mr. Cassinelli or Ms. Szabelski were in fact dating other individuals during the subject time period, Mr. Cassinelli and Ms. Szabelski may have made representations to those individuals about their relationship with one another.  Thus, Ms. Szabelski’s relevancy objection to SI Nos. 23-24 and RFA Nos. 8-11 is overruled.

Ms. Szabelski further argues that the information sought by SI Nos. 23-24 and RFA Nos. 8-11 invade her and Mr. Cassinelli’s right to privacy in their relationships with others, citing Vinson v. Super. Ct. (1987) 43 Cal.3d 833 and Tylo v. Super. Ct. (1997) 55 Cal.App.4th 1379.  She asserts that whether she or Mr. Cassinelli were dating other individuals is irrelevant because monogamy is not a condition of a domestic partnership as defined by the Affidavit.  Ms. Szabelski also argues that she did not waive her right to privacy by signing the Affidavit and APS did not provide a privacy notice to third parties.  (See e.g., Opp’n. Sep. Stmt., p. 153:2-7 citing Life Technologies Corp. v. Super. Ct. (2011) 197 Cal.App.4th 640.)

The right to privacy protects an individual’s “reasonable expectation of privacy against a serious invasion.” (Pioneer Electronics, Inc. v. Super. Ct. (2007) 40 Cal.4th 360, 370.) Where a serious invasion of the right to privacy is shown, the proponent of the discovery must demonstrate that the information sought is “directly relevant” to a claim or defense, and “essential to the fair resolution of the lawsuit.” (Britt v. Super. Ct. (1978) 20 Cal.3d 844, 859; see also Binder v. Super. Ct. (1987) 196 Cal.App.3d 893, 901 [holding “direct relevance” requires something more than an assertion that the requested discovery might lead to admissible evidence].) Once direct relevance has been demonstrated, the proponent of discovery must show that the information sought is not available through less intrusive means. (See Allen v. Super. Ct. (1984) 151 Cal.App.3d 447, 449.) The court must then carefully balance the right to privacy on the one hand, and the right of civil litigants to discover facts, on the other. (See Pioneer Electronics, Inc. v. Super. Ct., supra, 40 Cal.4th at p. 371.)

Here, the cases cited by Plaintiff do not stand for the proposition that she or Mr. Cassinelli have a reasonable expectation of privacy in the identities of individuals whom they may have dated.  In Vinson v. Super. Ct. (1987) 43 Cal.3d 833, the California Supreme stated that “[a] right to privacy was recognized in the seminal case of Griswold v. Connecticut (1965) 381 U.S. 479” that “protects both the marital relationship [. . .] and the sexual lives of the unmarried.”  (Vinson v. Super. Ct. (1987) 43 Cal.3d 833, 841.)  Similarly, in Tylo v. Super. Ct. (1997) 55 Cal.App.4th 1379, the Court of Appeal stated that “[t]here can be no doubt that the marital relationship serves as a foundation for an assertion of the right to privacy.”  (See id. at p. 1388.)  In the instant case, Plaintiff alleges that she was not married to any person during the subject time period.  Therefore, the requests do not intrude upon any marital relationship.  Furthermore, the requests do not ask for information about Ms. Szabelski’s sexual life.  The requests merely ask her to identify the person(s) whom she has dated during relevant time periods.

Even assuming arguendo that Ms. Szabelski and Mr. Cassinelli have a reasonable expectation of privacy in the identities of the individuals whom they have dated, the information sought is directly relevant to the action.  Mr. Cassinelli and Ms. Szabelski allege that they were in an intimate and committed domestic partnership.  Whether Mr. Cassinelli or Ms. Szabelski were dating other individuals during the time period that they were allegedly in a relationship with one another arguably bears on whether they were in fact committed to one another.  This information is essential to the fair resolution of the lawsuit because it directly bears on the allegations in APS’ FACC and the SAC.  Accordingly, any privacy interests that Ms. Szabelski or Mr. Cassinelli may have are outweighed by APS’ interest in obtaining in obtaining directly relevant information.

To the extent that Ms. Szabelski also intended to argue that the requests invade the privacy rights of third parties, her argument is without merit.  Although disclosure of the identities of the individuals whom Ms. Szabelski and Mr. Cassinelli have dated may invade their privacy, there is generally no protection for the identity, addresses, or phone numbers of percipient witnesses. (See Puerto v. Super. Ct. (2008) 158 Cal. App. 4th 1242, 1251-1252 [“[a] percipient witness’s willingness to participate in civil discovery has never been considered relevant [to the privacy analysis]—witnesses may be compelled to appear and testify whether they want to or not”].)  As indicated above, if Ms. Szabelski or Mr. Cassinelli were in fact dating other individuals during the subject time period, those individuals may be able to provide relevant information about whether Ms. Szabelski or Mr. Cassinelli were in a relationship with one another.  Ms. Szabelski cites the case of Life Technologies Corp. v. Super. Ct. (“Life”) (2011) 197 Cal.App.4th 640, apparently for the proposition that APS needs to provide some type of notice to the potential third parties.  However, Life is distinguishable from the instant case because the Court of Appeal in that case noted that the former employees whose information was sought were not percipient witnesses.  (See id. at p. 653-654.) As articulated above, the third parties at issue here are potential percipient witnesses.  Thus, any objection based on the privacy rights of third parties is overruled.

Accordingly, as all of Ms. Szabelski’s objections to SI Nos. 23-24 and RFA Nos. 8-11 are overruled and further responses are warranted.

g.            SI Nos. 13-18

SI Nos. 13-14 ask Ms. Szabelski to identify persons for whom she has worked from 2008 to the present and the dates worked for each employer.  SI Nos. 15-16 ask Ms. Szabelski to state whether she was offered health insurance benefits by each employer and if she was qualified to receive health insurance benefits through her work with each employer.  SI Nos. 17-18 ask Ms. Szabelski if she purchased health or dental insurance from 2008 to the present and, if so, the persons from whom the insurance was purchased and the dates on which benefits were received.  Ms. Szabelski objected to FI Nos. SI Nos. 13-18 on several grounds, including privacy, and did not otherwise provide substantive responses.

Ms. Szabelski argues that SI Nos. 13-16 invade her right to privacy in her work history (i.e., names of employers, dates of employment, job titles, etc.), and such information is not directly relevant to the instant case.  Ms. Szabelski argues that SI Nos. 17-18 invade her right to privacy in her financial affairs and medical information, and such information regarding is not directly relevant to the FACC.

SI Nos. 13-18 clearly request information about Ms. Szabelski’s work history and financial information, but they do not appear to request her medical information.   It is well-established that the right to privacy extends to a person’s work history and financial affairs. (See Alch v. Super. Ct. (2008) 165 Cal.App.4th 1412, 1426-1427; Board of Trustees of Leland Stanford Jr. Univ. v. Super. Ct. (1981) 119 Cal.App.3d 516, 528-530; Cobb v. Super. Ct. (1979) 99 Cal.App.3d 543, 550.)  APS must therefore establish that the information sought is directly relevant. 

APS argues that Ms. Szabelski’s employment history is relevant because Mr. Cassinelli “testified regarding many of [Ms. Szabelski’s] ‘employers’ and indicated that many of their ‘friends’ with knowledge of their relationship were [Ms. Szabelski’s] co-workers.”  (Sep. Stmt., p. 58:26-28.)  APS further argues that it has the right to discover alternate potential sources from which Ms. Szabelski could have obtained health insurance because “[she] made the representation to APS in order to obtain health insurance benefits.”  (Sep. Stmt., p. 59:1-4.)  APS asserts that if Ms. Szabelski’s employers were unwilling to provide her with insurance benefits it could demonstrate “a motivation for why [Ms. Szabelski] engaged in this fraudulent statement.”  (Id.)

APS’ argument that Ms. Szabelski’s employment history is relevant to locate potential witnesses such as her co-workers is not well-taken.  The SI do not ask Ms. Szabelski to provide the names of her co-workers that met Mr. Cassinelli or knew that she was in a relationship with Mr. Cassinelli.  The SI only ask Ms. Szabelski for the names of her employers, the dates of her employment, whether she was offered health insurance benefits, and the dates on which she received benefits.  While this is a close call, it appears that information about Ms. Szabelski’s work history and whether she received health insurance benefits from her employers is not directly relevant to the instant case.  Even though APS alleges that Ms. Szabelski signed the Affidavit to obtain health insurance benefits, APS does not need to prove Ms. Szabelski’s “motivation” for signing the Affidavit as that is not a necessary element of any of its claims.  Thus, the information sought is not essential to the fair resolution of this case and Ms. Szabelski’s privacy objection to SI Nos. 13-18 is, consequently, sustained.

Accordingly, further responses to SI Nos. 13-18 are not warranted.

h.            FI No. 17.1

FI No. 17.1 asks Ms. Szabelski to identify every response to an RFA that was anything other than an unqualified admission and to state all facts, witnesses, and documents upon which the response was based.  Ms. Szabelski objected to FI No.  17.1 on several grounds and also provided a substantive response.

APS moves to compel a further response to FI No. 17.1 to the extent it pertains to RFA Nos. 1, 7, and 8.  APS argues that Ms. Szabelski’s response is incomplete because she has not provided a response to FI No. 17.1 with respect to RFA Nos. 1, 7, and 8 based upon her objections to those RFA.  Conversely, Ms. Szabelski argues that her objections to RFA Nos. 1, 7, and 8 were appropriate and, thus, her refusal to provide a response to FI No. 17.1 as to those RFA was appropriate.

As indicated above, Ms Szabelski’s objection to RFA No. 1 is sustained and, therefore, no further response to FI No. 17.1 with respect to that RFA is warranted.  With regard to RFA Nos. 7 and 8, as articulated above, Ms. Szabelski’s objections to those RFA were overruled and, therefore, a further response to FI No. 17.1 as to RFA Nos. 7 and 8 is warranted.

i.             FI No. 15.1

FI No. 15.1 asks Ms. Szabelski to identify each denial and affirmative defense in her pleadings and state all facts, persons with knowledge of those facts, and documents that support the same.  In her response to the request, Ms. Szabelski asserted numerous objections and provided a substantive response.

APS argues Ms. Szabelski’s response to FI No. 15.1 is incomplete because she did not provide information about the facts and persons with knowledge of the facts that support her denials.  In addition, APS asserts that Ms. Szabelski’s response is incomplete because she did not provide any of the requested information for her first through tenth, twentieth, twenty-fifth, twenty-sixth, and twenty-ninth affirmative defenses.

In her opposition, Ms. Szabelski concedes that she neglected to provide information about the facts and persons with knowledge of the facts that support her denials.  Thus, a further response to FI No. 15.1 with respect to Ms. Szabelski’s denials is warranted.

Turning to the remaining affirmative defenses at issue, Ms. Szabelski’s first through tenth affirmative defenses allege that APS failed to state legally viable claims under the applicable law for each cause of action asserted in the FACC (i.e., violation of Penal Code section 502, breach of contract, conversion, fraud, etc.)  Ms. Szabelski’s twentieth and twenty-fifth affirmative defenses allege that APS cannot recover punitive damages based upon the allegations in the FACC and that attorney’s fees do not constitute damages under the applicable law.  Ms. Szabelski’s twenty-sixth and twenty-ninth affirmative defenses allege that APS lacks legal standing to prosecute or defend the action and that the contract alleged in the FACC is illegal.  Ms. Szabelski argues that “there are no discoverable facts supportive of [these] defense[s]” because “there are no facts that are not privileged under her attorney’s unqualified work product rights.”  (Opp’n. Sep. Stmt., p. 125:12-13.)  Ms. Szabelski contends that disclosure of the facts upon which these affirmative defenses are based “will reveal [her attorney’s] thought processes and strategies, which is clearly unqualified work product.”  (Opp’n. Sep. Stmt., p. 125:14-16.)

Ms. Szabelski’s objection based on the work product doctrine is not well-taken. The FI asks only for the facts upon which the affirmative defenses are based and persons with knowledge of those facts, and does not seek to disclose the thought process of Ms. Szabelski’s counsel.   Moreover, “[a]n interrogatory is not objectionable because an answer to it involves an opinion or contention that relates to fact or the application of law to fact, or would be based on information obtained or legal theories developed in anticipation of litigation or in preparation for trial.” (Code Civ. Proc., § 2030.010, sub. (b).)  Furthermore, the fact that the FI asks for the identification of documents does not violate the work product doctrine because the mere existence of a document containing privileged information is not privileged.  (See Best Products, Inc. v. Super. Ct. (Granatelli Motorsports, Inc.) (2004) 119 Cal.App.4th 1181, 1190.)  Thus, Ms. Szabelski’s objection based on the work product doctrine is overruled and a further response to FI No. 15.1 is warranted.

3.            The RPD

a.            Good Cause

Discovery is allowed for any matters that are not privileged, relevant to the action, and reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.010.)  Information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement thereof.  (See Gonzalez v. Super. Ct. (1995) 33 Cal.App.4th 1539, 1546.)

RPD No. 13 asks Ms. Szabelski to produce all documents that relate to vacations that she took without Mr. Cassinelli from 2003 to the present, including her annual trips to Poland.  RPD No. 14 asks Ms. Szabelski to produce all documents that refer to health insurance benefits that she received from APS.

APS argues that there is good cause for the discovery sought because Mr. Cassinelli testified that Ms. Szabelski went on annual trips to Poland without him and kept records of all vacations that they took during their partnership. APS asserts that it strains credulity that Ms. Szabelski would not take Mr. Cassinelli with her on her trips to Poland if they were in a domestic partnership.  APS further argues that there is good cause for the documents sought that pertain to health insurance benefits that it provided to Ms. Szabelski because it alleges that she received these benefits by fraud.

Ms. Szabelski argues that RPD No. 13 seeks irrelevant information because it asks for documents pertaining to trips taken after Mr. Cassinelli was terminated from his employment with APS and approximately 6 years before she applied for benefits in 2009.  Additionally, Ms. Szabelski argues in a conclusory manner that whether she received health insurance benefits is irrelevant to the instant case.

It appears that the information sought by RPD Nos. 13-14 is relevant to the instant case. Arguably, if Ms. Szabelski regularly took vacations or trips and did not bring Mr. Cassinelli, such information may further support APS’ argument that they were not in a committed relationship as they allege.  In addition, information about the health insurance benefits Ms. Szabelski received for APS is relevant to the issue of damages because APS has alleged conversion and seeks to recover the amount of health insurance benefits that it paid for Ms. Szabelski.

Accordingly, there is good cause for the discovery sought.

b.            RPD No. 13

As indicated above, RPD No. 13 asks Ms. Szabelski to produce all documents that relate to vacations that she took without Mr. Cassinelli from 2003 to the present, including her annual trips to Poland.  Ms. Szabelski objected to the RPD on numerous grounds and did not otherwise provide a substantive response.

Except as expressly indicated below, Ms. Szabelski does not attempt to defend her objections, and therefore, the Court finds that the undefended objections are without merit with the exception of those based on the attorney-client privilege and work product doctrine, which are preserved. (See Coy v. Super. Ct., supra, 58 Cal.2d at p. 220-221; see also Best Products, Inc. v. Super. Ct. (2004) 119 Cal.App.4th 1181, 1188-1189.)              

Ms. Szabelski objects to RPD on the ground that it “pries into [her] and Mr. Cassinelli’s clear zone of privacy [. . .] a party’s intimate practices and relations.”  (Oppn. Sep. Stmt., p. 161:23-28 citing Vinson v. Super. Ct., supra, at p. 841, and Tylo v. Super. Ct., supra, at p. 1388.)

The cases cited by Plaintiff do not stand for the proposition that she or Mr. Cassinelli have a reasonable expectation of privacy in the trips that she took without Mr. Cassinelli.  In Vinson v. Super. Ct. (1987) 43 Cal.3d 833, the California Supreme stated that “[a] right to privacy was recognized in the seminal case of Griswold v. Connecticut (1965) 381 U.S. 479” that “protects both the marital relationship [. . .] and the sexual lives of the unmarried.”  (Vinson v. Super. Ct. (1987) 43 Cal.3d 833, 841.)  Similarly, in Tylo v. Super. Ct. (1997) 55 Cal.App.4th 1379, the Court of Appeal stated that “[t]here can be no doubt that the marital relationship serves as a foundation for an assertion of the right to privacy.”  (See id. at p. 1388.)  In the instant case, Plaintiff alleges that she was not married to any person during the subject time period.  Therefore, the request does not intrude upon any marital relationship.  Furthermore, the request does not ask for information about Ms. Szabelski’s sexual life.  The requests merely ask her to provide documents regarding the trips or vacations she took without Mr. Cassinelii.  As Ms. Szabelski has failed to establish that this information is private, her privacy objection is overruled.

Ms. Szabelski also objects to RPD. No. 13 as overbroad because it asks for documents pertaining to trips taken after Mr. Cassinelli was terminated from his employment with APS and approximately 6 years before she applied for benefits in 2009.  APS does not explain how trips taken prior to the time Ms. Szabelski signed the Affidavit and after Mr. Cassinelli was terminated are relevant to the instant case.  The FACC alleges only that Ms. Szabelski and Mr. Cassinelli were not in a domestic relationship at the time that they signed the Affidavit and/or during the time that Mr. Cassinelli was employed by APS. Thus, it appears that only trips taken about the time or immediately before the time the Affidavit was signed, and during Mr. Cassinelli’s employment, are relevant to show whether Mr. Cassinelli and Ms. Szabelski were in a domestic partnership.  Thus, RPD No. 13 is overbroad as drafted.  Accordingly, the Court modifies RPD No. 13 to request documents about trips taken from 2008 to 2012.  A further response to RPD No. 13 as modified is warranted.

               c.            RPD No. 14

As indicated above, RPD No. 14 asks Ms. Szabelski to produce all documents that refer to health insurance benefits that she received from APS. Ms. Szabelski objected to the RPD on numerous grounds and did not otherwise provide a substantive response.

Except as expressly indicated below, Ms. Szabelski does not attempt to defend her objections, and therefore, the Court finds that the undefended objections are without merit with the exception of those based on the attorney-client privilege and work product doctrine, which are preserved. (See Coy v. Super. Ct., supra, 58 Cal.2d at p. 220-221; see also Best Products, Inc. v. Super. Ct., supra, at p. 1188-1189.)

Ms. Szabelski argues that RPD No. 14 invades her right to privacy in her medical information.  It is well established that a person’s medical profile is private. (See Board of Medical Quality Assurance v. Gherardini (1979) 93 Cal. App. 3d 669, 678; Britt v. Super. Ct. (1978) 20 Cal.3d 844.)  It appears that documents that refer to health insurance benefits that Ms. Szabelski received from APS may contain information about her medical condition (e.g., diagnosis codes) such that her right to privacy in her medical information is involved.  Therefore, APS must demonstrate that the information sought is directly relevant.  As articulated above, information about the health insurance benefits that Ms. Szabelski received from APS is relevant to the issue of damages because APS alleges that Ms. Szabelski wrongful obtained the said benefits and seeks to recover in damages the amounts paid in benefits for Ms. Szabelski.  Thus, documents that pertain to the health insurance benefits received by Ms. Szabelski from APS are essential to the fair resolution of the instant case and directly relevant because APS will require such information to establish its damages.  On balance, APS’ interest in obtaining this information outweighs Ms. Szabelski’s privacy concerns.  Accordingly, Ms. Szabelski’s privacy objection is overruled and a further response to RPD No. 14 is warranted.[4]

4.            Conclusion

APS’ motion to compel further responses to the FI, SI, RFA, and RPD is GRANTED IN PART and DENIED IN PART. The motion is DENIED as to FI Nos. 2.1, 2.3, 2.4, 2.5,  2.6, 2.7, 2.11, 2.12, 2.13, 4.1, 12.1, 12.2, 12.3, 12.4, 12.5, 12.6, 12.7, 14.1, 14.2, and 17.1 (with respect to RFA No. 1), SI Nos. 13-18, and RFA No. 1. The motion is GRANTED as to FI No. 15.1 and 17.1 (with respect to RFA Nos. 7-8), SI Nos. 23-24, RFA Nos. 7-11, and RPD Nos. 13 (as modified) and 14.

C.           Compliance with Ms. Szabelski’s Responses to the RPD

APS moves to compel compliance with Ms. Szabelski’s responses to RPD Nos. 1, 7, 15-16, 20, 24-25, and 27-28.

                              1.            Legal Standard

If a responding party agrees to comply with a Code of Civil Procedure section 2031.010 demand 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 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. “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.)

2.            Analysis              

In her initial responses to RPD Nos. 1, 7, 15-16, 20, 24-25, and 27-28, Ms. Szabelski stated that she “will produce those non-privileged documents and other items which are responsive to [these requests] [. . .] that she is able to locate after a reasonably diligent search of her files and records, which investigation she will complete shortly.”  (McFarland Dec., Ex. K.)

APS argues that Ms. Szabelski has not produced any documents in accordance with her statement of compliance and argues that she should therefore be compelled to produce the same.  Conversely, Ms. Szabelski argues that after she completed her investigation and review of her files on 17 June 2014, she served further verified responses to the RPD, stating that “after a reasonably diligent search of her files and records, [she] has been unable to locate any non-privileged document that she believes is responsive to the Request.”  (Pagano Dec., Ex. 4.)  Ms. Szabelski points out that APS does not ask the Court to address whether her further responses are code-compliant, but merely seeks to compel production of documents based upon those responses.

The Court agrees that based upon Ms. Szabelski’s further responses to RPD Nos. 1, 7, 15-16, 20, 24-25, and 27-28, served on 17 June 2014, there is no basis to compel production.  Accordingly, the motion to compel compliance with Ms. Szabelski’s responses to RPD Nos. 1, 7, 15-16, 20, 24-25, and 27-28 is DENIED.

IV.           Requests for Sanctions

A.           APS’ Request

APS requests monetary sanctions in the amount of $2,730.00 against Ms. Szabelski under Code of Civil Procedure sections 2030.300, 2031.310, 2031.320, and 2033.290.

First, Code of Civil Procedure section 2031.320, subdivision (b) provides that “the court shall impose a monetary sanction [. . .] against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with 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.” Here, APS was not successful in its motion to compel compliance and therefore is not entitled to monetary sanctions under this section.

Second, Code of Civil Procedure sections 2030.300, subdivision (d), 2031.310, subdivision (d), and 2033.290, subdivision (d) provide that the court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, requests for admission, or requests for production of documents 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, APS was only partially successful on its motion to compel further responses to the FI, SI, RFA, and RPD.  As several of Ms. Szabelski’s objections were sustained, the Court finds that Ms. Szabelski acted with substantial justification in opposing the motion.  Accordingly, APS is not entitled to an award of monetary sanctions and its request for the same is DENIED.

B.           Ms. Szabelski’s Request

Ms. Szabelski requests monetary sanctions in the amount of $2, 935.50 against APS and its counsel under Code of Civil Procedure sections 2030.300, 2031.300, and 2033.290.

As indicated above, Code of Civil Procedure sections 2030.300, subdivision (d), 2031.310, subdivision (d), and 2033.290, subdivision (d) provide that the court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, requests for admission, or requests for production of documents 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, Ms. Szabelski was only partially successful in her opposition to the motion.  Therefore, the Court finds that APS acted with substantial justification in bringing the motion.  Accordingly, Ms. Szabelski is not entitled to an award of monetary sanctions and her request for the same is DENIED.

Conclusion and Order

APS’ motion for evidence and monetary sanctions is GRANTED IN PART and DENIED IN PART. The motion is DENIED as to the request for evidence sanctions to the extent it seeks to preclude the introduction of testimony from or evidence relating to Karen Cassinelli, Kim Cassinelli, Steven Love, Celeste Love, Amber Gibson, Patty Hemstreet, Lanette Topper, Stella Szostek, Mirna Estes, Michael Dione, Marianne Boule. The motion is GRANTED as to the request for evidence sanctions to the extent it seeks to preclude the introduction of testimony from or evidence relating to David Estes, Lisa Estes, Terry, Cathy, Lori, Carmela, and Antonio, and the request for monetary sanctions in the amount of $2,010.00.  Accordingly, Mr. Cassinelli shall not introduce any evidence relating to or testimony from David Estes, Lisa Estes, Terry, Cathy, Lori, Carmela, and Antonio.  Additionally, within 20 days of the date of the filing of this order, Mr. Cassinelli and his counsel shall pay $2,010.00 to APS’ counsel.

Mr. Cassinelli’s request for issue and monetary sanctions in connection with APS’ motion for evidence and monetary sanctions is DENIED.

APS’ motion to compel further responses to the FI, SI, RFA, and RPD is GRANTED IN PART and DENIED IN PART. The motion is DENIED as to FI Nos. 2.1, 2.3, 2.4, 2.5,  2.6, 2.7, 2.11, 2.12, 2.13, 4.1, 12.1, 12.2, 12.3, 12.4, 12.5, 12.6, 12.7, 14.1, 14.2, and 17.1 (with respect to RFA No. 1), SI Nos. 13-18, and RFA No. 1. The motion is GRANTED as to FI No. 15.1 and 17.1 (with respect to RFA Nos. 7-8), SI Nos. 23-24, RFA Nos. 7-11, and RPD Nos. 13 (as modified) and 14.   Accordingly, within 20 days of the date of the filing of this Order, Ms. Szabelski shall provide further verified code-compliant responses to FI No. 15.1 and 17.1 (with respect to RFA Nos. 7-8), SI Nos. 23-24, RFA Nos. 7-11, and RPD Nos. 13 (as modified) and 14, without objection (except for attorney-client privilege and work product doctrine as to the RPD), and produce documents in accordance with her responses.

APS’ motion to compel compliance with Ms. Szabelski’s responses to RPD Nos. 1, 7, 15-16, 20, 24-25, and 27-28 is DENIED.

APS’ request for monetary sanctions in connection with its motion to compel further responses and compliance is DENIED.

 

 

 

 

 

Ms. Szabelski’s request for monetary sanctions in connection with APS’ motion to compel further responses and compliance is DENIED.

 

 

 

________________­­­____________ DATED:

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