Case Name: Joyce Chin v. Katherine Ngai-Pesic
Case No.: 2013-6-CP-001295 (consolidated with 2013-1-CV-252557)

I. Introduction

This action arises from a dispute over the posthumous conception of children through in vitro fertilization. In brief, plaintiff Joyce Chin (“Plaintiff”) conceived children using genetic material preserved during the life of decedent Ivan Pesic (“Pesic”). When Pesic passed away, he left his property to his wife Katherine Ngai-Pesic (“Defendant”) and did not specifically provide for posthumously-conceived children in his will. And so, a dispute arose between Plaintiff, individually and on behalf of her children, and Defendant, individually and as administratrix of Pesic’s estate.

Currently before the Court are two motions: (1) Defendant’s motion to compel Plaintiff to provide a further response to an interrogatory; and (2) Defendant’s request for all manner of sanctions.

II. Motion to Compel

Defendant moves to compel Plaintiff to provide a further response to form interrogatories, set three (“FI”), No. 17.1. Defendant served Plaintiff with requests for admissions, set three (“RFA”) and the related FI No. 17.1 on April 5, 2019. (Ehrlich Decl., ¶ 3.) As of May 8, 2019, Plaintiff had not responded to the discovery requests or informed Defendant why she had yet to do so. (Ehrlich Decl., ¶ 6.) On May 10, 2019, Defendant wrote to Plaintiff informing her that she waived objections by failing to respond and threatening to file a motion to compel if responses were not received by May 17, 2019. (Ehrlich Decl., ¶ 7.) On May 17, Plaintiff emailed Defendant verified responses to the RFA and FI No. 17.1. (Ehrlich Decl., ¶ 9.)

FI No. 17.1 seeks the supporting facts as well as the identity of witnesses and documents for each RFA that Plaintiff did not unqualifiedly admit. Defendant asserts Plaintiff’s response to FI No. 17.1 was incomplete and insufficient because she did not identify supporting facts and documents thoroughly and specifically. In opposition, Plaintiff states a number of the RFA ask her to admit pure questions of law. On this basis, she asserts there necessarily are no facts, witnesses, or documents to identify for the purpose of FI No. 17.1 as it relates to those RFA. The parties discussed the adequacy and completeness of Plaintiff’s responses over the phone, but could not informally resolve their dispute. And so, Defendant filed this motion to compel Plaintiff to provide a further response to FI No. 17.1.

“The party to whom interrogatories have been propounded shall respond in writing under oath separately to each interrogatory by any of the following: [¶] (1) An answer containing the information sought to be discovered. [¶] (2) An exercise of the party’s option to produce writings. [¶] (3) An objection to the particular interrogatory.” (Code Civ. Proc., § 2030.210, subd. (a); see generally Coy v. Super. Ct. (1962) 58 Cal.2d 210, 216.) “Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits.” (Code Civ. Proc., § 2030.220, subd. (a); see also Code Civ. Proc., § 2030.240.)

“On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that…[a]n answer to a particular interrogatory is evasive or incomplete[,] [a]n exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate[, or] [a]n objection to an interrogatory is without merit or too general.” (Code Civ. Proc., § 2030.300, subd. (a).) “While the party propounding interrogatories may have the burden of filing a motion to compel if it finds the answers it receives unsatisfactory, the burden of justifying any objection and failure to respond remains at all times with the party resisting an interrogatory.” (Williams v. Super. Ct. (2017) 3 Cal.5th 531, 541.)

Plaintiff’s responses are insufficient, and her opposition and separate statement are devoid of legal analysis to support a contrary conclusion.

In Plaintiff’s response as related to RFA Nos. 71, 95, 118–119 she failed to provide a complete response, stating “n/a” or simply leaving blanks. Such responses do not comply with Code of Civil Procedure section 2030.220, particularly subdivision (c). To the extent Plaintiff lacks sufficient information to respond, she must state as much in conformity with the code.

Also, Plaintiff’s characterization of the interrogatory as related to RFA Nos. 100–109 and 112–113 is inaccurate because these requests do not ask her to admit pure questions of law; they concern her contentions. As Defendant articulates, a party may ask the responding party to admit the “application of law to fact.” (Code Civ. Proc., § 2033.010.) Also, “[a]n interrogatory may relate to whether another party is making a certain contention, or to the facts, witnesses, and writings on which a contention is based.” (Code Civ. Proc., § 2030.010, subd. (b).) “An 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….” (Ibid.) Here, Plaintiff’s restatement of legal assertions (rather than supporting facts), inclusion of “n/a–question of law” (in lieu of identifying witnesses), and reference to authorities cited in her opposition to Defendant’s motion for summary judgment (instead of identifying documents) are improper. Such responses are not code-compliant as a general matter and are not warranted based on the actual contents of the RFA here.

Finally, Plaintiff fails to adequately identify supporting documents in her response as it relates to RFA Nos. 72–77, 82–83, 85–86, 88–90, and 92–93. She generically refers to a mass of documents, which is neither a straightforward answer under Section 2030.220 nor a proper invocation of the option to produce writings under Section 2030.230. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 784 [“A broad statement that the information is available from a mass of documents is insufficient.”].) Plaintiff does not establish the criteria for electing to produce writings are satisfied under the circumstances, and so she must identify the documents in her response in a manner that conforms to Section 2030.220.

In conclusion, Plaintiff’s response to FI No. 17.1 is not complete and code-compliant. She did not object to this request, substantiate any objection in her opposition, or justify her response. Thus, Defendant’s motion to compel Plaintiff to provide a further response to FI No. 17.1 is GRANTED. Plaintiff shall provide a further, verified, code-compliant response—without objections—within 20 calendar days of the Court’s order.

III. Request for Sanctions

Defendant requests an order imposing terminating sanctions, issue sanctions, evidentiary sanctions, monetary sanctions, the production of documents, and the rescission of clauses in a mediated settlement agreement on the basis Plaintiff concealed the existence of survivor benefits applied for and obtained for her son Marco from the Social Security Administration (“SSA”) that will impact any support obligation owed by Pesic’s estate.

Code of Civil Procedure section 2023.010 defines misuse of the discovery process as, among other things: (1) “Failing to respond or to submit to an authorized method of discovery”; (2) “Making an evasive response to discovery”; and (3) “Disobeying a court order to provide discovery.” “To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose [ ] sanctions against anyone engaging in conduct that is a misuse of the discovery process.” (Code Civ. Proc., § 2023.030.) These sanctions include terminating sanctions, issue sanctions, evidentiary sanctions, and monetary sanctions. (Ibid.)

Defendant’s request fails at its inception because she relies solely on Code of Civil Procedure sections 2023.010 and 2023.030—describing misuse of the discovery process and allowable sanctions—on their own and does not establish sanctions are authorized “by the chapter governing any particular discovery method….” (Code Civ. Proc., § 2023.030.) It is true that a court may impose a sanction in connection with a discovery motion. (See, e.g., Code Civ. Proc., §§ 2031.310–2031.320.) But Defendant has not filed such a motion and does not seek sanctions in connection with the discovery motion directed to FI No. 17.1 (discussed above).

Next, for the reasons set forth below, Defendant does not establish Plaintiff improperly withheld information.

The evidence reflects that at Plaintiff’s deposition on April 26, 2019, she disclosed for the very first time that she applied for and obtained survivor benefits for one of her children. (Ehrlich Decl., Ex. A, Pl. Dep. at p. 177:6–21.) She applied for the benefits roughly one year after Pesic died. (Pl. Dep. at p. 178:1–3.) The survivor benefits of $1,600 per month go into an account in Marco’s name, to which Plaintiff has access. (Pl. Dep. at pp. 178:16–179:13.) Although she applied for benefits for her other children, the twins, SSA denied her application because she could not establish paternity. (Pl. Dep. at p. 180:12–20.)

Defendant asserts Plaintiff necessarily should have disclosed this information when responding to requests for production (“RPD”). (See Ehrlich Decl., Ex. B.) The RPD identified by Defendant seek documentary evidence of Plaintiff’s assets or assets held on her behalf, particularly bank statements, writings showing money received by her, and records of income and cash flow as well as activity for specified bank accounts. Defendant also asserts her interrogatories about support Marco received “from Ivan Pesic” encompassed this information. (Ehrlich Decl., Ex. B.) These discovery requests do not clearly and directly request information or documents pertaining to the survivor benefits. None of the requests explicitly refer to such benefits. Also, it is not apparent the bank account to which the survivor benefits were transferred was included in RPD, set five, No. 83. Thus, although the broadest conceivable interpretation of these discovery requests might have elicited the targeted information, the requests as worded (including the prefatory definitions) do not clearly and unequivocally support the conclusion that Plaintiff improperly withheld information in response to the discovery requests Defendant identifies. Defendant does not otherwise present evidence reflecting Plaintiff defied a court order to produce this information. Accordingly, Defendant does not establish the underlying premise of her request.

Ultimately, this record is wholly insufficient to justify the severe sanctions requested by Defendant. “Discovery sanctions must be tailored in order to remedy the offending party’s discovery abuse, should not give the aggrieved party more than what it is entitled to, and should not be used to punish the offending party.” (Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1217.) Courts take “‘an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.’ [Citation.]” (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604.) “Although in extreme cases a court has the authority to order a terminating sanction as a first measure [citations], a terminating sanction should generally not be imposed until the court has attempted less severe alternatives and found them to be unsuccessful and/or the record clearly shows lesser sanctions would be ineffective [citations].” (Id. at pp. 604–05.) The record before the Court is entirely insufficient to warrant the imposition of a terminating sanction.

Next, Defendant fails to substantiate her request for issue and evidentiary sanctions. She provides no legal analysis to support her request. Also, she proposes precluding Plaintiff from presenting any evidence about the amount of child support or value of the estate, which proposal is not tailored to the conduct at issue.

Defendant also asks the Court to compel Plaintiff to produce bank records and sign releases to allow the SSA to respond to the subpoena for records related to the survivor benefits. Defendant is, in essence, using this request for sanctions as a substitute for a proper discovery motion (see, e.g., Code Civ. Proc., § 2025.480). She does not identify and the Court is not aware of a legal or factual justification for doing so. For example, Defendant could have simultaneously filed a proper motion when she filed her request for sanctions. And, she does not explain why she waited until Plaintiff’s deposition to ask her if she applied for public benefits for the purpose of establishing she could not have filed a motion sooner. This request is not well-taken.

Defendant’s final request is for cancellation of support and release provisions in a mediated settlement agreement as well as $50,000 in attorney’s fees incurred during that mediation. Contrary to what Defendant asserts, her request is not authorized by Code of Civil Procedure section 2030.030, subdivision (a) (or 2023.030, subdivision (a)). Defendant also cites Family Code section 271, which states a “court may base an award of attorney’s fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.” But this statute “contemplates that sanctions be assessed at the end of the lawsuit, when the extent and severity of the party’s bad conduct can be judged.” (Robert J. v. Catherine D. (2009) 171 Cal.App.4th 1500, 1521.) Accordingly, Defendant does not substantiate her request, particularly at this juncture.

In conclusion, Defendant requests grossly disproportionate sanctions without adequate legal or factual justification. Her request is therefore DENIED.