Case Name: Meera Kaul v. Vasper Vitality Investors, LLC, et al.
Case No.: 2017-CV-321005

Motion to Compel Compliance with Court Order and Production of Documents and Request for Monetary Sanctions by Defendants Vasper Vitality Investors, LLC, Vasper Systems, LLC, Vasper Systems California, LLC and Peter Wasowski and Request for Monetary Sanctions by Plaintiff Meera Kaul

Factual and Procedural Background

This is an employment case. On June 26, 2017, plaintiff Meera Kaul (“Plaintiff”) accepted employment with defendant Vasper Systems, LLC (“Vasper”) as its Chief Executive Officer and entered into a written employment contract with the company. (Complaint at ¶¶ 10, 13.) The agreement provided, among other things, that Plaintiff would receive an annual salary of $300,000 and that if she was terminated without cause, she would be paid 30 days severance pay. (Id. at ¶ 11.)

Plaintiff alleges defendant Peter Wasowski (“Wasowski”) was one of Vasper’s board of directors and owned a majority interest in the company. (Complaint at ¶ 6.) Plaintiff claims Wasowski made sexual advances toward her and other women by hugging and kissing them. (Id. at ¶ 14(a).) Plaintiff objected to and protested the sexual advances of defendant Wasowski. (Id. at ¶ 14(f).) Vasper later terminated Plaintiff’s employment without cause on October 10, 2017 and failed to pay her with 30 days severance pay or $25,000. (Id. at ¶ 16.) Plaintiff alleges the termination was retaliatory in part because she protested the sexual harassment of defendant Wasowski. (Id. at ¶ 21.)

On December 26, 2017, Plaintiff filed the operative Complaint against Vasper and other defendants alleging causes of action for: (1) breach of contract; (2) wrongful termination of employment; (3) failure to pay wages in violation of California Labor Code, §§ 201-203; (4) negligent misrepresentation; (5) violation of Labor Code, § 970; (6) breach of fiduciary duty; (7) for money had and received; (8) sexual harassment; and (9) invasion of privacy.

On March 12, 2018, defendants Vasper and Wasowski filed a Cross-Complaint against Plaintiff alleging causes of action for: (1) fraudulent misrepresentation; (2) breach of fiduciary duty; and (3) conversion.

On May 29, 2018, defendants Vasper, Vasper Vitality Investors, LLC, Vasper Systems California, LLC, and Wasowski (collectively, “Defendants”) filed the following motions with the Court: (1) motion to have requests for admissions (“RFA”) deemed admitted; (2) motion to compel answers to form interrogatories; (3) motion to compel production of documents (“RPD”) (set one); and (4) request for monetary sanctions. (Kim Decl. at ¶ 4.) The motions were set for hearing on August 16, 2018. The motions were unopposed and granted in their entirety. (Id. at ¶ 6.) As to the motion to compel responses to RPD (set one), the Court directed Plaintiff to provide all documents without objection within 20 days of the Order.

On July 9, 2018, defendant Vasper served Plaintiff with RPD (set two). (Kim Decl. at ¶ 8, Ex. D.) Plaintiff served untimely factual responses to RPD (set two) on August 31, 2018. (Id. at ¶ 9, Ex. E.)

On September 1, 2018, Plaintiff served amended responses to RPD (set one) interposing objections with factual answers. (Kim Decl. at ¶ 7, Ex. C.)

The parties met and conferred regarding the responses and amended responses to RPD sets one and two. (Kim Decl. at ¶ 10, Ex. F.) Plaintiff thereafter served supplemental responses to RPD (set one) at Nos. 8, 54, 57, 65, 66, and 67 on December 31, 2018. (Id. at ¶ 10, Ex. G.)

The parties continued meet and confer efforts regarding the supplemental responses to RPD (set one) and responses to RPD (set two) as Defendants once again requested supplemental discovery answers. (Kim Decl. at ¶¶ 11-16, Exs. H, I, J, K, L.) Defense counsel addressed the discovery dispute with Plaintiff’s new attorney to determine if any supplemental responses would be served. (Id. at ¶¶ 14-16.) When Plaintiff did not serve any additional supplemental responses, Defendants sought intervention from the Court.

Motion to Compel Compliance

Currently before the Court is Defendants’ motion to compel compliance with the Court’s Order on August 16, 2018 and production of documents with respect to RPD (set two). (Code Civ. Proc., § 2031.320.) Defendants have submitted a request for judicial notice in conjunction with the motion. Plaintiff filed written opposition. Defendants filed reply papers. Both sides submitted requests for monetary sanctions. No trial date has been set.

Request for Judicial Notice

In support of the motion, Defendants request judicial notice of the following: (1) Complaint (Exhibit A); (2) Cross-Complaint (Exhibit B); (3) Order Granting Defendants’ Motion for Deemed Admissions, Motion to Compel Discovery Responses, and Request for Sanctions (Exhibit C); and (4) Plaintiff’s Substitution of Attorney (Exhibit D). In reply, Defendants also request judicial notice of Plaintiff’s Motion for Protective Order filed on November 9, 2018. The Court may take judicial notice of Exhibits A through D and the Motion for Protective Order as they constitute records of the superior court under Evidence Code section 452, subdivision (d). (See Stepan v. Garcia (1974) 43 Cal.App.3d 497, 500 [the court may take judicial notice of its own file].)

Accordingly, the request for judicial notice is GRANTED.

Legal Standard

In response to an inspection demand, compliance requires that documents be produced either (1) as they are kept in the usual course of business; (2) or sorted and labeled to correspond with the categories in the document demand. (Code Civ. Proc., § 2031.280, subd. (a).) If the responding party fails to permit inspection in accordance with its agreement to comply with an inspection of demand, the demanding party’s remedy is to file a motion compelling compliance. (Code Civ. Proc., § 2031.320.) There is no fixed time limit on this motion. And no “attempt to resolve informally” need be shown. All that has to be shown is the responding party’s failure to comply as agreed. (Code Civ. Proc., § 2031.320, subd. (a); see Standon v. Super. Ct. (1990) 225 Cal.App.3d 898, 903).

Separate Statement Requirement

As a preliminary matter, Plaintiff argues the motion to compel compliance should be denied as Defendants do not provide a separate statement in accordance with the rules of court.

“Any motion involving the content of a discovery request or responses to such a request must be accompanied by a separate statement.” (Cal. Rules of Court, rule 3.1345(a).) “A separate statement is a separate document filed and served with the discovery motion that provides all the information necessary to understand each discovery request and all the responses to it that are at issue.” (Cal. Rules of Court, rule 3.1345(c).) “A separate statement is not required when no response has been provided to the request for discovery.” (Cal. Rules of Court, rule 3.1345(b).)

California Rules of Court, rule 3.1345, subdivision (a) does not specifically require a separate statement for a motion to compel compliance with inspection demands. Plaintiff does not address this omission but instead argues a separate statement is required as Defendants seek to compel a further response. (See OPP at p. 5.) It is true that the notice of motion cites both Code of Civil Procedure section 2031.310 applicable to motions to compel further responses and section 2031.320 which governs motions to compel compliance. (See Notice of Motion at p. 2.) The latter section however applies here as Defendants seek to compel compliance with the Court’s discovery Order and RPD (set two). Moreover, the lack of a separate statement has not prevented the Court from assessing the merits of the motion to compel compliance, and has not prevented Plaintiff from filing an opposition. The Court therefore will address the motion on its merits. (See Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 894 [the court has the discretion to, but is not required to, deny a motion for a deficient separate statement].)

Compliance with Court’s August 16, 2018 Order

Defendants move to compel compliance with the Court’s Order regarding discovery from the hearing on August 16, 2018. As relevant here, the Court granted the motion to compel responses to RPD (set one) and thus Plaintiff was required to produce all documents without objection within 20 days of the Order. RPD (set one) includes a total of 67 document requests. The subject motion to compel compliance addresses only RPD (set one) at Nos. 8, 23, 38, 39, 40, 56, 65, 66, 67. (See Memo of P’s & A’s at pp. 5-6.)

RPD (set one) at Nos. 8, 54, 56, 65, 66, and 67

Defendants move to compel compliance with RPD (set one) at Nos. 8, 54, 56, 65, 66, and 67 as Plaintiff has agreed to produce documents within her custody and control but has failed to do so. (See Memo of P’s & A’s at p. 5.) In opposition, Plaintiff agrees to produce responsive documents but only subject to a protective order to address any privacy concerns. (See OPP at p. 6.) The Court however ordered production of documents without objection or subject to a protective order. (See Request for Judicial Notice [“RJN”] at Exhibit C.) Also, all objections, including privacy, would be waived anyway since Plaintiff did not serve timely responses to RPD (set one). (See Code Civ. Proc., § 2031.300, subd. (a).) Nor has Plaintiff filed a motion for relief from waiver of objections in accordance with Code of Civil Procedure section 2031.300, subdivision (a). Finally, Plaintiff has not articulated any specific privacy concerns in opposition that need to be addressed by way of a protective order regarding these document requests.

Consequently, the motion to compel compliance with respect to RPD (set one) at Nos. 8, 54, 56, 65, 66, and 67 is granted.

RPD (set one) at Nos. 23, 38, 39, and 40

Defendants move to compel compliance with RPD (set one) at Nos. 23, 38, 39, and 40 as Plaintiff has not produced responsive documents. (See Memo of P’s & A’s at pp. 5-6.) In opposition, Plaintiff’s counsel submits his declaration, signed under penalty of perjury, stating that he served documents in compliance with the Court’s Order with respect RPD (set one) at Nos. 23, 38, 39, and 40. (See Weiner Decl. at ¶ 3.) The Court will accept counsel at his word that documents have now been served regarding these inspection demands. If Defendants deem the responses to be inadequate, they can file a motion to compel further responses under Code of Civil Procedure section 2031.310.

Accordingly, the motion to compel compliance with respect to RPD (set one) at Nos. 23, 38, 39, and 40 is moot.

Compliance with RPD (set two)

Defendants also move to compel compliance with RPD (set two) where a statement of compliance has been provided. (See Memo of P’s & A’s at pp. 6-7.) RPD (set two) includes Nos. 68, 69, 70, 71, and 72. RPD No. 68 is the only request where a statement of compliance has been provided. In response, Plaintiff agreed to produce all responsive documents in her possession, custody or control. (See Kim Decl. at Ex. E.) In opposition, Plaintiff argues she has already provided code-compliant responses to RPD (set two) and produced all responsive documents. (See OPP at p. 6.) Plaintiff however fails to support this contention with any evidence of compliance attached to the opposition. In addition, Plaintiff argues the motion should fail as it is not supported by good cause. (Ibid.) This argument lacks merit as a motion to compel compliance does not require a showing of good cause. Conversely, a motion to compel further responses under Code of Civil Procedure section 2031.310 requires a showing of good cause before the Court orders production.

Therefore, the motion to compel compliance with RPD (set two) at No. 68 is granted.

Requests for Monetary Sanctions

Both sides request an award of monetary sanctions. In opposition, Plaintiff seeks monetary sanctions in the amount of $2,337.50 because the motion is frivolous and Defendants did not adequately meet and confer before filing the motion. (See OPP at pp. 7-8; Weiner Decl. at ¶¶ 4-5.) The Court finds the motion to be well-taken and, as stated above, parties are not required to meet and confer before seeking a motion to compel compliance. Moreover, Defendants’ moving papers sufficiently establish efforts to meet and confer with Plaintiff’s current and former counsel before filing the motion. (See Kim Decl. at ¶¶ 10-16, Exs. F, H, I, J, K, L.) Therefore, Plaintiff’s request for monetary sanctions is denied.

Defendants also request monetary sanctions in the amount of $2,360. The request for sanctions appears to be based in large part on the conduct of Plaintiff’s prior counsel who is no longer part of this case. (See Memo of P’s & A’s at pp. 7-8.) As Plaintiff’s new counsel has only been in the case since February 19, 2019 (see RJN at Ex. D), the Court finds it would be unjust to impose monetary sanctions against him especially since he attempted to comply with the Court’s Order by serving discovery responses. (See Weiner Decl. at ¶ 3.) Accordingly, Defendants’ request for monetary sanctions is also denied.

Disposition

The motion to compel compliance with respect to RPD (set one) at Nos. 8, 54, 56, 65, 66, and 67 is GRANTED. Plaintiff shall serve verified code compliant responses without objections and produce all responsive documents in her possession, custody, and control to Defendants within 20 calendar days of this Order.

The motion to compel compliance with respect to RPD (set one) at Nos. 23, 38, 39, and 40 is MOOT.

The motion to compel compliance with respect to RPD (set two) at No. 68 is GRANTED. Plaintiff shall serve a verified code compliant response without objections and produce all responsive documents in her possession, custody, and control to Defendants within 20 calendar days of service of this signed Order.

The requests for monetary sanctions are DENIED.

The Court will prepare the Order.