Case Name: Michael Clark v. Telewave, Inc.
Case No.: 17CV313056

This matter arises from an employment dispute. In his July 14, 2017 Complaint Plaintiff Michael Clark (“Plaintiff”) brings claims for: 1) Retaliation (whistleblower); 2) Defamation; 3) Race/National Origin Discrimination; 4) Retaliation (FEHA), and; 5) Wrongful Termination against his former employer, Defendant Telewave, Inc. (“Defendant”). Defendant filed a Cross-Complaint on August 21, 2017, stating a single claim against Plaintiff for Misappropriation of Trade Secrets (with the alleged trade secrets identified as being client information and sales strategies).

Currently before the Court are Plaintiff’s motions to compel further responses to requests for admissions (“RFAs”) set two, requests for production of documents (“RFPDs”) set two, and form interrogatories (“FIs”), general, set one (unnecessarily filed as three separate motions), all of which are opposed by Defendant in a single opposition.

Background of the Discovery Dispute
Plaintiff propounded all three sets of discovery on Defendant on December 6, 2018. Defendant served initial responses to all three sets of discovery on January 8, 2019. (See Declaration of Defense Counsel Austin Jackson (“Jackson Decl.”) at ¶2.)

On January 23, 2019 Plaintiff sent Defendant two separate meet and confer letters, the first addressing Plaintiff’s dissatisfaction with Defendant’s response to the RFPDs, the second the RFAs responses with a (belated) declaration from Plaintiff’s counsel in support of additional discovery, unattached to any actual RFAs. (See Jackson Decl. at ¶3 & exhibits A & B.) Defense Counsel’s initial response to this was a short email on January 30, 2019 stating that a “substantive response” would be provided by ‘the end of the week,” which would have been February 1, 2019. (See ex. C to the Jackson Decl.) On February 1, 2019 Plaintiff’s counsel sent a further meet and confer letter, the first addressing Defendant’s responses to form interrogatories, and asking Defendant to respond by February 4, 2019. (See ex. D to the Jackson Decl.) Defendant did not respond until February 7, 2019, went it sent Plaintiff its first substantive meet and confer letter responding to Plaintiff’s letters of January 23 and February 1, 2019. Among other things Defendant objected to the declaration in support of additional discovery as both untimely and inadequate, but professed a desire to continue to meet and confer. (See ex. E to the Jackson Decl.) Plaintiff responded on February 15, 2019, asking Defendant to “please verify” whether Defendant would produce documents and to “please advise” whether an impasse had been reached as to other matters, etc. The letter closed by stating ‘[p]lease respond to the above, so that we can move this process along hopefully without Court intervention.” Despite both sides’ claimed desire for further dialogue there was no further communication and Plaintiff filed these three motions to compel on February 27, 2019.

1. Motion to Compel further responses to RFAs
As noted above Plaintiff propounded the set of RFAs at issue (set two, RFAs 56-77) on Defendant on December 6, 2018. Defendant provided timely responses on January 8, 2019. These responses consisted solely of objections, including the objection that “Propounding Party has served more than 35 [RFAs] that do not pertain to the genuineness of documents, and no Declaration of Necessity has been provided by Propounding Party.” (See Plaintiff’s Separate Statement of Items in Dispute in support of the motion to compel further responses to RFAs.) Where responses to RFAs have been timely served but are deemed deficient by the requesting party (e.g., because of objections or evasive responses), that party may move for an order compelling a further response. (Cal. Code of Civil Procedure (“CCP”) §2033.090.

The number of RFAs a party may initially propound that are not related to the genuineness of documents is limited to 35. (CCP §2033.030.) CCP §2033.030 states in pertinent part that “[n]o party shall request as a matter of right, that any other party admit more than 35 matters that do not relate to the genuineness of documents. . . . Unless a declaration as described in Section 2033.050 has been made, a party need only response to the first 35 admission requests served that do not relate to the genuineness of documents . . .” CCP §2033.040(a) states in pertinent part that “any party who attaches a supporting declaration as described in Section 2033.050 may request a greater number of admissions by another party if the greater number is warranted by the complexity or the quantity of the existing and potential issues in the particular case.” (Court’s emphasis.)

CCP §2033.050 in turn states that “[a]ny party who is requesting or who has already requested more than 35 admissions not relating to the genuineness of documents by any other party shall attach to each set of requests for admissions a declaration containing substantially the following words.” (Court’s emphasis.) It then lists nine model paragraphs. The eighth paragraph states: “This number of requests for admission is warranted under Section 2033.040 of the Code of Civil Procedure because _______. (Here state the reasons why the complexity or the quantity of issues in the instant lawsuit warrant this number of requests for admission.)”

Plaintiff’s motion to compel further responses to set two of his RFAs (nos. 56-77) is DENIED. Plaintiff’s failure to “attach” a supporting declaration to the additional RFAs as required by the plain language of CCP §2033.040, is itself a sufficient reason to deny the motion.

The inadequacy of Plaintiff Counsel’s January 23, 2019 declaration, served nearly seven weeks after the additional RFAs, is another basis on which the motion can be and is DENIED. Counsel declared that the additional requests were “warranted” because “Defendants have filed and served a counterclaim in this matter and so far have not produced any substantive or documents during the discovery process.” This statement does not adequately justify the additional requests, and would not have even if the declaration had been attached to the additional requests as required. First, the propounding party’s subjective opinion regarding the quality of responses already received is irrelevant to satisfying the requirement that additional RFAs be justified “by the complexity or the quantity of the existing and potential issues in the particular case” as stated in CCP §2033.050. Second, the addition of a single cross-claim for misappropriation of trade secrets (particularly where the trade secrets are alleged to consist of client information and sales strategies) does not, by itself, render the issues in the case complex. Plaintiff’s Counsel could not have reasonably believed otherwise. The Court also notes that only four of the additional RFAs (nos. 56-58 & 77) even address Defendant’s cross-claim, undercutting the entire claimed justification for the additional RFAs.

Even if the declaration provided by Plaintiff’s counsel were assumed to satisfy CCP §2033.030 & 2033.040 despite not being attached to the RFAs as required, Defendant had no obligation to respond to the additional RFAs until a declaration justifying them was provided, which did not happen until nearly seven weeks after the RFAs had been served. Therefore, even if the declaration were assumed to be adequate, Defendant’s time to respond to the additional RFAs did not begin running until the declaration was served on Defendant via regular mail on January 23, 2019. At that point the responses to the additional responses were due 35 days later (30 days plus an additional five days for service by regular mail), on or by February 27, 2019, the very day Plaintiff filed these three separate motions. Therefore even under this best case scenario for Plaintiff, with the failure to comply with CCP §2033.050 by attaching the declaration to the additional RFAs overlooked, and the belated declaration assumed to be adequate, the motion to compel would still be denied as premature.

Monetary sanctions
Pursuant to CCP §2033.090(d) the Court “shall” impose monetary sanctions against the losing party on a motion to compel further responses to RFAs unless the Court finds “substantial justification” for that party’s position or that other circumstances make imposing a sanction “unjust.” As the motion to compel further RFA responses is denied Plaintiff’s request for monetary sanctions (made only in connection with the motion to compel further responses to RFAs) is also denied. In opposition, Defendant requests $3,500 in monetary sanctions. (See Jackson Decl. at ¶12.) While the Court finds that Plaintiff did not act with “substantial justification” in bringing this motion (as Plaintiff knew or should have known that he had not complied with CCP §§2033.030-2033.050), the Court does not award sanctions for anticipated expenses. (See Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551 [the court awards sanctions only for expenses actually incurred, not for anticipated expenses].) Accordingly monetary sanctions are imposed against Plaintiff only in the amount of $2975.00, representing the time actually spent by Defense Counsel in opposing the motions (8.5 hours at $350/hour).

2. Motion to Compel further responses to Form Interrogatory 17.1
Pursuant to CCP §2030.300(a)(1) & (3), a party that has propounded interrogatories “may move for an order compelling a further response if the propounding party deems” an answer to an interrogatory “to be evasive or incomplete” or an objection to an interrogatory to be “without merit or too general.”

Plaintiff’s Form Interrogatory No. 17.1 asked Defendant to provide various information for each response to the RFAs that as not an unqualified admission. As Defendant responded to the RFAs with nothing but objections (including the objection that Plaintiff had propounded more than 35 RFA without a sufficient declaration of necessity) Defendant’s responded to the form interrogatory by stating: “Responding Party only served objections in response to the accompanying request for admissions and therefore no response will be provided.” (See Plaintiff’s separate statement in support of the motion to compel re: Form Interrogatory 17.1.)

Plaintiff’s motion to compel a further response to Form Interrogatory 17.1 is DENIED as the motion is necessarily dependent upon Plaintiff first establishing that Defendant was required to respond to set two of his RFAs. As Plaintiff is unable to demonstrate that he had complied with CCP §§ 2033.030 to 2033.050 and therefore has failed to show that Defendant had a duty to respond to set two of his RFAs he has also failed to demonstrate that Defendant is required to provide any further response to Form Interrogatory 17.1.

3. Motion to Compel further responses to RFPD
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. (CCP §§2031.310-2031.320.)

In this motion Plaintiff seeks to compel Defendant to provide a further response to Plaintiff’s RFPD no. 12, which asked Defendant to “[p]roduce all DOCUMENTS identified in response to Plaintiff’s First Set of Form Interrogatories, General served via overnight delivery December 6, 2018.” Defendant’s response, after asserting various objections, was to state that: “Responding Party has conducted a diligent and good faith search for responsive document, and no such documents exists in Responding party’s possession, custody, or control.” (See Plaintiff’s separate statement in support of the motion to compel re: RFPDs.) Plaintiff argues that “[b]ased upon the Declaration for Additional Discovery served January 23, 2019, and for the reasons set forth in the accompanying Motion to Compel Responses to [RFAs], Set Two, Defendant should be ordered to provide a substantive response to [FI] No. 17.1 and [RFPD] No. 12 to provide the evidence supporting Defendant’s counterclaim and affirmative defenses.” (Plaintiff’s Memo. of points and authorities at p.3:7-12.)

Plaintiff’s motion to compel is DENIED. Plaintiff has failed to establish that Defendant was required to provide any responses to the additional RFAs given Plaintiff’s failure to comply with CCP §§ 2033.030 to 2033.050, and therefore cannot demonstrate that Defendant is required to provide further responses to any written discovery that is dependent upon those additional RFAs, which includes RFPD no. 12.