Case Name: Meera Kaul v. Vasper Vitality Investors, LLC, et al.

Case No.: 2017-CV-321005

Motion to Compel Compliance with Court Orders and to Compel Further Responses to Form Interrogatories, Special Interrogatories, Requests for Production of Documents and Deposition Question and Request for Terminating, Evidence or Monetary Sanctions by Defendants Vasper Vitality Investors, LLC, Vasper Systems, LLC, Vasper Systems California, LLC and Peter Wasowski

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. (First Amended Complaint [“FAC”] at ¶¶ 22-23.) The agreement provides, among other things, that Plaintiff would receive an annual salary of $300,000 and she would be reimbursed for “out-of-pocket” expenses she incurred from time to time. (Id. at ¶¶ 24-25.)

Plaintiff alleges defendant Peter Wasowski (“Wasowski”) was the Chief Executive Officer of defendant Vasper Systems California, LLC. (FAC at ¶ 6.) During her tenure with the company, Plaintiff claims Wasowski hugged and kissed her with the intent to harm or offend her. (Id. at ¶ 27.) Defendant Wasowski also engaged in other inappropriate behavior creating a hostile work environment. (Id. at ¶¶ 27-31.) As a consequence, on October 10, 2017, Plaintiff resigned from Vasper due to the hostile working conditions and unwanted touching by defendant Wasowski. (Id. at ¶ 35.) Plaintiff alleges Vasper failed to pay her wages and termination pay as required under her employment agreement. (Id. at ¶ 36.)

On April 24, 2019, Plaintiff filed the operative FAC against defendants Vasper, Vasper Vitality Investors, LLC, Vasper Systems California, LLC, and Wasowski (collectively, “Defendants”) alleging causes of action for: (1) breach of written contract; (2) constructive discharge in violation of public policy; (3) recovery of wages and waiting time penalties; (4) intentional misrepresentation; (5) negligent misrepresentation; (6) failure to reimburse expenses; (7) paystub violations; (8) declaratory relief; and (9) battery.

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.

Discovery Dispute

On May 29, 2018, 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 ¶ 3.) The motions were set for hearing on August 16, 2018. The motions were unopposed and granted in their entirety. (Ibid.) 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. The order was filed on August 20, 2018.

On July 9, 2018, Defendants served Plaintiff with RPD (set two). (Kim Decl. at ¶ 4.) Plaintiff served untimely factual responses to RPD. (Ibid.) In addition, Plaintiff failed to fully comply with the August 20, 2018 Court Order. (Ibid.) Defendants thus filed a motion to compel discovery and compliance with Court Order which came on for hearing on April 9, 2019. (Id. at ¶ 5.) The Court granted the motion to compel compliance with the August 20, 2018 Court Order and ordered Plaintiff to produce responses and documents within 20 days of the Order. (Ibid.; Ex. B.)

With respect to the April 9, 2019 Order, Plaintiff served supplemental responses to RPD (set one) Nos. 8, 54, 56, 65, 66, and 67 and RPD (set two) No. 68. (Kim Decl. at ¶ 6, Ex. C.) Defendants however contend Plaintiff did not produce all responsive documents and thus continued to meet and confer on the matter. (Id. at ¶¶ 6-7, Ex. D.)

On June 11, 2019, Defendants served Plaintiff with a third set of discovery, including form interrogatories (“FI”), special interrogatories (“SI”), and RPD. (Kim Decl. at ¶ 8.) Plaintiff responded to this third set of discovery mostly with objections. (Id. at ¶ 9.)

On June 25, 2019, Plaintiff’s new counsel substituted into the case. (Kim Decl. at ¶ 9.) Since that time, the parties have met and conferred multiple times regarding compliance with the Court’s prior discovery orders and the objections to the third set of discovery. (Id. at ¶¶ 9-18, Exs. F-M.) There were also meet and confer attempts at Plaintiff’s deposition which occurred on August 20 and 22, 2019. (Id. at ¶ 12.) While some amended responses were served, the parties were unable to resolve the discovery dispute. Defendants therefore seek intervention from the Court.

The following motions by Defendants are presently before the Court: (1) motion to compel compliance with Court Orders; (2) motion to compel further responses to FI, SI, and RPD (set three); (3) motion to compel answer to deposition question; and (4) request for terminating, evidentiary or monetary sanctions. Plaintiff filed written opposition. Defendants filed reply papers. No trial date has been set.

Motion to Compel Compliance with Court Orders

Defendants seek an order from the Court compelling Plaintiff to comply with the Court’s prior discovery orders filed on August 20, 2018 and April 9, 2019 as she has not produced all responsive documents in her possession, custody, and control. (See Code Civ. Proc., § 2031.300, subd. (c) [when a party fails to obey an order compelling a response to inspection demands, the court may make those orders that are just].) Specifically, Defendants argue that Plaintiff has not produced documents in response to RPD Nos. 8, 46, 54, 56, and 59 (set one) as previously ordered by the Court. These requests pertain to Plaintiff’s earnings, damages, mitigation of damages, and any compensation she received from entities following her termination.

Plaintiff fails to address the merits of Defendants’ motion to compel compliance in her opposition. In reply, Defendants state they have received amended responses to RPD (set one) Nos. 8, 46, 54, and 56. (Kim Decl. in Reply at ¶ 3, Ex. A.)

When discovery responses are served after a motion to compel is filed, the court has substantial discretion in deciding how to rule in light of the particular circumstances presented. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408-409.) The court might deny the motion to compel as moot, take the matter off-calendar, order the parties to meet and confer, impose sanctions, or examine the responses to determine if they are code-compliant. (Id. at p. 409.)

With respect to these amended responses, Plaintiff agrees to produce all non-privileged documents in her possession, custody, and control but subject to a stipulated protective order. (Kim Decl. in Reply at Ex. A.) Such a response however is inadequate as the Court’s Order, dated April 9, 2019, ordered production without objection or subject to a protective order. (Kim Decl. at Ex. B.) The Court, in that same order, determined that Plaintiff had not articulated any specific privacy concerns that needed to be addressed by way of a protective order with respect to these document requests. (Ibid.) As a consequence, the amended responses are not code compliant and thus Plaintiff must comply with the Court’s previous orders with respect to RPD Nos. 8, 46, 54, 56, and 59 (set one).

Consequently, the motion to compliance with the Court’s prior discovery orders is GRANTED.

Motion to Compel Further Responses to FI and SI

Defendants move to compel a further response to FI No. 12.1, FI No. 210.2 (employment law), and SI Nos. 4 and 7 (set three) because the objections are meritless.

Legal Standard

A responding party must provide non-evasive answers to interrogatories that are “as complete and straightforward…to the extent possible,” and, if after a reasonable and good faith effort to obtain the information they still cannot respond fully to an interrogatory, the responding party must so state in its response. (Code Civ. Proc., § 2030.220.) If the responding party provides incomplete or evasive answers, or objections without merit, the propounding party’s remedy is to seek a court order compelling a further response to the interrogatories. (Code Civ. Proc., § 2030.300.) If a timely motion to compel answers is filed, the burden is on the responding party to justify any objection or failure to fully answer the interrogatories. (See Coy v. Super. Ct. (1962) 58 Cal.2d 210, 220-221 (Coy).)

FI No. 12.1

FI No. 12.1 asks for the name, address, and telephone number of each individual who (a) witnessed the incident; (b) made any statement at the scene of the incident; (c) heard any statements about the incident; and/or (d) has knowledge of the incident. Plaintiff objected to this interrogatory on various grounds and, without waiving objections, provided a factual response. In opposition, Plaintiff has included a verified amended response to FI No. 12.1 and thus the motion to compel is MOOT. (Martin Decl. at ¶ 3, Ex. A.) To the extent that Defendants find the response deficient, the parties can meet and confer regarding this amended response. If those meet and confer attempts fail, Defendants may file a motion to compel further responses in compliance with the Code of Civil Procedure.

FI No. 210.2 (employment law)

FI No. 210.2 (employment law) asks Plaintiff to state her total income, benefits, or earning capacity she has lost to date and how the amount was calculated. In response, Plaintiff provided a lengthy factual summary claiming her income has been impacted by various factors and that her losses are “ongoing.” Such a response is inadequate as Plaintiff fails to directly address the call of the question. Specifically, she fails to state her income, benefits, or earning capacity she has lost to date and how that amount was calculated. “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).) Defendants therefore are entitled to a code compliant further response.

Accordingly, the motion to compel a further response to FI No. 210.2 (employment law) is GRANTED.

SI Nos. 4 and 7

SI No. 4 asks Plaintiff to identify every lawsuit where she has been named as a party by providing the name of the court, case number, and date of initiation. SI No. 7 asks Plaintiff to identify her compensation with Optimus Ventures from 2015 to the present. In opposition, Plaintiff has included verified amended responses to these interrogatories. (Martin Decl. at ¶ 4, Ex. B.)

Accordingly, the motion to compel a further response to SI Nos. 4 and 7 is MOOT.

Motion to Compel Further Responses to RPD

Defendants move to compel further responses to RPD Nos. 82, 83, 85, 86, 87, 89, and 90 (set three) because the objections are meritless.

Legal Standard

A responding party to an inspection demand must respond separately to each item in the demand by stating one of the following: (1) an agreement to comply; (2) a representation of inability to comply, or (3) objections. (Code Civ. Proc., § 2031.210.) If a party demanding a response to an inspection demand deems: (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, that party may move for an order compelling further response to the demand. (Code Civ. Proc., § 2031.310-320; Weil & Brown, California Practice Guide: Civil Procedure Before Trial (Rutter Group 2019) at § 8:1490.)

RPD Nos. 82-83

RPD No. 82 seeks all documents which refer or relate to Plaintiff’s relationship with cross-defendant Optimus Ventures. RPD No. 83 seeks all documents evidencing any compensation or benefits Plaintiff received from Optimus from 2017 to the present.

A motion to compel further responses to RPD must “set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).) The moving party establishes good cause by showing: (1) relevance to the subject matter of the case; and (2) specific facts justifying discovery. (Kirkland v. Super. Ct. (2002) 95 Cal.App.4th 92, 98 [the party who seeks to compel production has met his burden of showing good cause simply by a fact-specific showing of relevance].) Discovery is allowed for any matters that are not privileged and relevant to the subject matter, and a matter is relevant if it appears reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.010.) Moreover, for discovery purposes, information is “relevant to the subject matter” if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement thereof. (Gonzalez v. Super. Ct. (1995) 33 Cal.App.4th 1539, 1546.)

With respect to these RPD, Defendants have not set forth facts establishing good cause for production. Having failed to carry this burden, Defendants are not entitled to further responses.

Accordingly, the motion to compel a further response to RPD Nos. 82 and 83 is DENIED.

RPD Nos. 85, 86, 87, 89, 90

RPD Nos. 85, 86, 87, 89, and 90 seek documents related to allegations of fraud, theft, breach of fiduciary duty, misrepresentation, and conversion that someone has made against Plaintiff from 2010 to the present. Defendants argue there is good cause for production as such documents directly relate to their defenses and affirmative claims. Plaintiff raises a number of objections to these requests including privilege, privacy, unduly burdensome, oppressive, irrelevant, and equally available to the other party. Plaintiff however fails to justify or substantiate any of these objections in her opposition. (See Coy, supra, 58 Cal.2d at pp. 220-221 [if a timely motion to compel has been filed, the burden is on responding party to justify any objection]; see also Williams v. Super. Ct. (2017) 3 Cal.5th 531, 541 [the burden of justifying any objection and failure to respond remains at all times with the party resisting discovery].) Defendants are therefore entitled to code compliant further responses.

Accordingly, the motion to compel further responses to RPD Nos. 85, 86, 87, 89, and 90 is GRANTED.

Motion to Compel Further Response to Deposition Question

Defendants move to compel Plaintiff to respond to a deposition question regarding her understanding as to whether she had been appointed as the CEO.

Legal Standard

If a deponent fails to answer any question or produce any document, the party seeking discovery may move the court for an order compelling that answer or production. (Code Civ. Proc., § 2025.480, subd. (a).)

Analysis

During Plaintiff’s deposition, defense counsel asked the following question: “At the time these board meeting minutes occurred and finished, you understood that they still had not appointed you as CEO; correct?” (See Defendants’ Sep. Stmt. at p. 20.) Plaintiff’s attorney thereafter instructed his client not to answer on grounds that the question is argumentative, asked and answered, and constitutes a contention interrogatory-style question which is not appropriate. (Ibid.)

With respect to this motion, both sides cite Rifkind v. Superior Court (1994) 22 Cal.App.4th 1255 (Rifkind) where the appellate court determined that legal contention questions were not proper during deposition but are otherwise discoverable in the context of written interrogatories. (Rifkind, supra, at pp. 1259-1261.) The Second Appellate District pointed out that such questions were unfair and beyond the competence of most lay persons during a deposition. (Id. at p. 1262.) The appellate court did not find it appropriate to put a deponent on the spot in order to sort out factual material in response to specific legal contentions. (Ibid.) Rather, any such contentions could be better addressed through written interrogatories where a party has the aid of counsel in connecting facts to support each contention. (Ibid.)

The Rifkind court however was careful to make the following distinction:

“We emphasize at the outset what we are not discussing: questions at a deposition asking the person deposed about the basis for, or information about, a factual conclusion or assertion, as distinguished from the basis for a legal conclusion. Thus, if a deponent says that a certain event happened at a particular time or place, it is quite proper to ask the person, at deposition, how he or she became aware of it, his or her knowledge about it, and for similar information of a factual nature.”

(Rifkind, supra, 22 Cal.App.4th at p. 1259.)

It is this distinction which is relevant to the question posed by defense counsel at Plaintiff’s deposition. The question asking simply whether Plaintiff understood that they had still not appointed her as CEO. Under Rifkind, such a question seems proper as it essentially goes to Plaintiff’s knowledge or awareness as opposed to a contention-based interrogatory. As a consequence, the objections are overruled and Plaintiff will be required to answer the question.

Accordingly, the motion to compel a further response to the deposition question is GRANTED.

Request for Terminating, Evidence, or Monetary Sanctions

Defendants seek an order for terminating, evidence or monetary sanctions against Plaintiff for discovery abuse in this action.

“The trial court has broad discretion in selecting discovery sanctions, subject to reversal only for abuse.” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992 (Doppes).) The court should attempt to tailor the sanction to the harm caused by the withheld discovery and cannot impose a sanction as a punishment. (Ibid.)

“The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.” (Doppes, supra, 174 Cal.App.4th at p. 992.) The discovery sanctions should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery. (Ibid.) “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.” (Ibid.)

The court may impose a terminating sanction by one of the following orders: (1) an order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process; (2) an order staying further proceedings by that party until an order of discovery is obeyed; (3) an order dismissing the action, or any part of the action, of that party; and (4) an order rendering judgment by default against that party. (Code Civ. Proc., § 2023.030, subd. (d).)

“The court may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence.” (Code Civ. Proc., § 2023.030, subd. (c).)

“The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” (Code Civ. Proc., § 2023.030, subd. (c).)

With respect to terminating sanctions, Defendants seek dismissal of the case as Plaintiff has twice failed to comply with orders regarding discovery. As explained in the motion, Plaintiff’s failure to comply with discovery has made it difficult for Defendants to obtain evidence to defend against Plaintiff’s claims. In addition, the Court has already twice issued lesser sanctions in the form of monetary sanctions which have not curbed discovery abuse up to this point. Should the Court decline to terminate the case, Defendants, in the alternative, request evidence sanctions barring Plaintiff from testifying or introducing evidence of her finances or a monetary sanction against Plaintiff and her counsel.

As a procedural matter, the Court will not impose evidence sanctions as Defendants did not request such sanctions in their notice of motion. (See Code Civ. Proc., § 2023.040 [a request for sanctions in the notice of motion shall specify the type of sanction sought].) Instead, the notice refers to issue and terminating sanctions. Defendants however do not provide any legal support or argument for issue sanctions in their moving papers.

Nevertheless, the points raised by Defendants regarding terminating sanctions appear to have some merit as Plaintiff has twice failed to comply with Court orders regarding discovery. Nor does Plaintiff attempt to justify or excuse her failure to comply with these orders in her opposition. In fact, Plaintiff fails to even address the request for sanctions in her opposition. Such failure gives the appearance that Plaintiff is unwilling to comply with discovery orders and produce responsive documents. That said, the Court is not inclined at this juncture to impose terminating sanctions and dismiss the case. With that, Plaintiff and her counsel are strongly admonished to fully comply with court orders. Should Plaintiff fail to comply with any future orders or otherwise engage in discovery misconduct, this Court will seriously entertain a request for terminating sanctions, including outright dismissal of this action.

The Court does find monetary sanctions to be appropriate and will grant sanctions in the amount of $1,810 ($250 per hour X 7 hours + $60 filing fee).

Disposition

The motion to compel compliance with the Court Orders is GRANTED with respect to RPD Nos. 8, 46, 54, 56, and 59 (set one). 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 a further response to FI No. 12.1 (set three) is MOOT.

The motion to compel a further response to FI No. 210.2 (employment law) (set three) is GRANTED. Plaintiff shall serve a verified code compliant response, without objections, to Defendants within 20 calendar days of this Order.

The motion to compel a further response to SI Nos. 4 and 7 (set three) is MOOT.

The motion to compel a further response to RPD Nos. 82-83 (set three) is DENIED.

The motion to compel a further response to RPD Nos. 85, 86, 87, 89, and 90 (set three) 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 a further response to deposition question is GRANTED. The parties shall meet and confer on a date, time, and location to continue with Plaintiff’s deposition within 20 calendar days of this Order. Plaintiff shall appear for a continued deposition and answer the question. In addition, Defendants may pose reasonably related follow-up questions subject to Plaintiff’s right to assert any applicable, justifiable, and legally valid objections.

The request for terminating sanctions is DENIED.

The request for evidence sanctions is DENIED.

The request for monetary sanctions is GRANTED IN PART. Counsel for Plaintiff shall pay $1,810 to defense counsel within 20 calendar days of this Order.