Morazan v. Morazan-Aviles CASE NO. 112CV220779
DATE: 1 May 2014 TIME: 9:00 LINE NUMBER: 3
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 408.808.6856 and the opposing party no later than 4:00 PM Wednesday 30 April 2014. Please specify the issue to be contested when calling the Court and counsel.

On 1 May 2014, the motion of plaintiff/cross-defendant Marvin Morazan (“Plaintiff”) to compel defendant/cross-complainant Janet Morazan-Aviles (“Defendant”) to provide answers to deposition questions and produce documents requested in the deposition notice, and for monetary sanctions, was argued and submitted. Defendant filed a formal opposition to the motion in which she also requests monetary sanctions.

All parties are reminded that all papers must comply with California Rules of Court, rule 3.1110(f).

Statement of Facts

Plaintiff and Defendant are siblings and the son and daughter, respectively, of Edgar Morazan (“Edgar”) and Teresa Morazan (“Teresa”). In 2008, Edgar and Teresa began receiving settlement proceeds from an asbestos case in which Edgar was a plaintiff. In total, Edgar and Teresa received approximately $700,000 from the settlement. Edgar passed away in October 2008. Teresa passed away in June 2011. According to Plaintiff, both before and after his parents’ deaths, Defendant took control of, managed, and ultimately misappropriated their parents’ money.

Based on these allegations, in March 2012, Plaintiff filed a complaint against his sister for breach of fiduciary duties, elder abuse, fraud, breach of contract, negligence, conversion, accounting and declaratory relief. The gist of the complaint is that, by misappropriating their parents’ money, Plaintiff’s sister divested him of his inheritance.

In October 2012, Defendant filed a cross-complaint against her brother alleging similar causes of action (elder abuse, fraud, breach of fiduciary duties, etc.) based upon allegations that Plaintiff misappropriated monies and property belonging to their parents when they lived in Plaintiff’s home prior to their deaths.

Discovery Dispute

On 13 January 2014, Plaintiff served Defendant with a third amended notice of deposition and attendant request for production of documents. The deposition notice required Defendant to appear on 30 January 2014 to provide testimony and specifies 120 categories of documents that Defendant was to bring to the deposition.

On 23 January 2014, Defendant served Plaintiff with an objection to the deposition notice. The objection, in its entirety, reads as follows:

Objection: all documents requested herein have already been produced and [to] do so again would be burdensome to Defendant. Responding party further states that despite her reasonable and good faith efforts to obtain further information, Responding party is unaware of the existence of any other additional documentation that may be responsive to these Requests. [¶] However, discovery is continuing and responding party reserves the right to amend or supplement these responses if and when additional information becomes available. (Decl. of Patricia A. Boyes in Support of Def.’s Opp. to Pl.’s Mot. to Compel Answers to Depo. and for Production of Docs. (“Decl. of Boyes”), Ex. 7.)

Defendant appeared for her deposition on 30 January 2014, but did not bring any of the requested documents. Given Defendants’ failure to produce the requested documents, the deposition lasted a little under 5 hours at which point Plaintiff’s counsel indicated that there was no reason to continue with the deposition until Defendant produced the documents. Plaintiff’s counsel stated:

Obviously there’s a problem in that you brought no records. We’re going to reserve the right to continue this deposition, and we may have to pick it up. We may have to have – get an order ordering you to bring in the further requested records. There may be further discovery. But without the records there’s not a whole lot of sense of going through a whole lot more. (Deposition of Janet Morazan-Aviles at 169:5-12, attached to Decl. of Koenig in Support of Mot. to Compel, Ex. 3.)

On 28 February 2014, Plaintiff’s counsel sent defense counsel a meet and confer letter, asking defense counsel whether Defendant intended to produce the requested documents—records as to Defendant’s personal bank account and other documents concerning payments that Defendant made from the parties’ father’s bank account. In the letter, Plaintiff’s counsel further indicated that “your client has not been forthcoming with regard to what she has, has had, can obtain, and her purported efforts to obtain records, many of which are in HER name and all it would take is a request to the bank or other appropriate institution.” (Decl. of Koenig, Ex. 4A.) Finally, Plaintiff’s counsel reminded defense counsel that she agreed to produce information identifying certain credit card accounts identified in Defendant’s deposition, and asked why that information had not been produced. (Id.)

On 4 March 2014, defense counsel responded to Plaintiff’s counsel’s letter. In the letter, defense counsel stated, among other things, that “my client has produced all bank records in her possession that are relevant to this action.” (Decl. of Koenig, EX. 4B.) Plaintiff’s counsel also stated that, “[a]s to my client’s Bank of America records, personal bills, and credit card accounts, these documents are not relevant to the subject matter of this instant action and thus, shall not be produced without good cause.” (Id.)

Plaintiff’s counsel responded the same day, once again addressing the requested documents. (Id., Ex. 4C.)

On 5 March 2014, defense counsel sent a letter to Plaintiff’s counsel, indicating that Defendant was going to file a motion for a protective order prohibiting Plaintiff from further seeking Defendant’s personal financial records. (Id., Ex. 4D.)

On 26 March 2014, Defendant filed her motion for a protective order. The motion was heard on 18 April 2014. At the conclusion of the hearing, the Court adopted its tentative ruling, which granted in part and denied in part the motion for a protective order. The Court found that Plaintiff’s fifth set of special interrogatories and fifth set of requests for production of documents were duplicative of special interrogatories and document requests previously served on Defendant.

Based upon that finding, the Court held that Defendant need not respond to the special interrogatories or document requests. In its ruling, the Court noted that Defendant also asked the Court to declare that Plaintiff “is not entitled to further discovery of [any of] Defendant’s financial records” through any discovery method. The Court expressly denied that request.

Following further unsuccessful meet and confer efforts, and after Defendant filed her motion for a protective order but before the Court ruled on the matter, Plaintiff filed the motion presently before the Court on 7 April 2014, seeking an order compelling Defendant to produce the documents requested in the deposition notice.

Defendant filed an opposition to Plaintiff’s motion on 18 April 2014. Plaintiff filed his reply on 24 April 2014.

Discussion

I. Requests for Judicial Notice

A. Defendant’s Request

Pursuant to Evidence Code section 452, subdivision (d), Defendant requests that the Court take judicial notice of the following two documents: (1) Defendant’s Motion for Summary Judgment filed in this case on 28 February 2014, and currently scheduled to be heard on 20 May 2014, and (2) the Court’s order dated 18 April 2014, granting in part and denying in part Plaintiff’s motion to compel further responses and granting in part and denying in part Defendant’s motion for a protective order.

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

The Court’s order dated 18 April 2014 and Defendant’s Motion for Summary Judgment filed on 28 February 2014, are part of the Court’s file in this case and relevant to the matter presently before the Court. Defendant’s request for judicial notice of both documents is therefore GRANTED.

B. Plaintiff’s Request

Plaintiff requests that the Court take judicial notice of two documents: (1) the Court’s order dated 10 July 2013, granting Plaintiff’s motion to compel further responses to certain discovery requests and ordering Defendant to provide verified, code-compliant responses within 20 days; and (2) the Court’s order dated 18 April 2014.

Both documents are part of the Court’s file in this case and relevant to the matter presently before the Court. Plaintiff’s request for judicial notice of both documents is therefore GRANTED.

II. Plaintiff’s Motion to Compel Answers and Documents Responsive to Deposition Notice

Plaintiff seeks an order compelling Defendant to produce the documents and items that were requested in the attachment to the amended deposition notice served on Defendant on 13 January 2014. Additionally, with respect to the document production, Plaintiff asks the Court to enter the following orders: (1) an order compelling Defendant to provide the information and records that Defendant and/or her attorney indicated could be provided during the deposition; (2) an order compelling Defendant “to use her best efforts to obtain all records that she claims she no longer has, including by obtaining those on line . . . and as to records and documents not available on line, by obtaining such records and documents from the issuer or other person or entity issuing or maintaining the same, such as for example banks, credit card issuers, and other such institutions” (Pl.’s Notice of Mot. to Compel Further Answers, ¶ 3); and (3) an order directing Defendant to provide Plaintiff’s counsel with documentation that written requests were made to such institutions. Plaintiff also seeks an order resetting Defendant’s deposition to a date to be noticed by Plaintiff “and that such deposition not be limited as to time because it was continued at the first session and substantial questioning did not occur because Defendant and her counsel produced no records.” (Id., ¶ 5.)

A. Legal Standard

Code of Civil Procedure section 2025.450 provides that, “[i]f, after service of a deposition notice, a party to the action . . . fails to appear for examination, or to proceed with it, or to produce for inspection any document . . . the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document.” (Code Civ. Proc. [“CCP”], § 2025.450, subd. (a).) The section further provides that “[t]he motion shall set forth specific facts showing good cause justifying the production for inspection of any document.” (CCP, § 2025.450, subd. (b)(1).)

Similarly, Code of Civil Procedure section 2025.480 provides that, if a deponent fails to answer any question or to produce any document specified in a deposition notice, the party seeking discovery may move the court for an order compelling an answer or production of documents described in the notice. (CCP, § 2025.480, subd. (a).) Section 2025.480 is silent as to which party carries the burden of persuasion. As a general rule, the party objecting to discovery bears the burden of defending its objections. (See Fairmont Ins. Co. v. Sup. Ct. (2000) 22 Cal.4th 245, 255; see also Weil & Brown, California Practice Guide: Civil Procedure Before Trial (Rutter Group 2012) at 8:814 [“A deponent who has objected to a question and refused to answer bears the burden of justifying such refusal on the motion to compel”].) However, “[a] motion to compel production of documents described in a deposition notice must be accompanied by a showing of ‘good cause’—i.e., declarations containing specific facts justifying inspection of the documents described in the notice.” (Weil & Brown, California Practice Guide: Civil Procedure Before Trial (Rutter Group 2012) at 8:801.2; see also CCP, § 2025.450, subd. (b)(1).)

B. Preliminary Matters

1. Nature of Motion and Requested Relief

Although Plaintiff’s motion is styled as a motion to compel further answers to deposition questions and to compel production of documents listed in the deposition notice, it is clear that Plaintiff is not seeking further answers to any particular deposition questions. The distinction is important because, as indicated above, Defendant bears the burden of justifying any objection or failure to answer a deposition question, while Plaintiff bears the burden of demonstrating good cause for the production of documents listed in a deposition notice. (see CCP, §§ 2025.450, subd. (b)(1) and 2025.480, subd. (a).) A request to compel further answers under section 2025.480 applies where a party (or other deponent) appears for a deposition and then expressly refuses to answer a question posed. That does not appear to be the scenario in this case and Plaintiff has not directed the Court to a specific question asked to Defendant that she refused to answer.

It appears that Plaintiff is characterizing his request for the Court to order Defendant to appear for a continued deposition as a request to compel further answers. As indicated below, the Court finds that Plaintiff has demonstrated good cause concerning the documents requested in the deposition notice. Based on that finding, as part of this order, the Court will allow Plaintiff to continue Defendant’s deposition on a date mutually agreed upon by the parties but no later than 30 days following the issuance of the written order on this matter. Defendant shall produce the requested documents at that time.

Plaintiff also requests that the Court enter the following orders: an order compelling Defendant “to use her best efforts to obtain all records that she claims she no longer has, including by obtaining those on line . . . and as to records and documents not available on line, by obtaining such records and documents from the issuer or other person or entity issuing or maintaining the same, such as for example banks, credit card issuers, and other such institutions” (Pl.’s Notice of Mot. to Compel Further Answers, ¶ 3); an order directing Defendant to provide Plaintiff’s counsel with documentation that written requests were made to such institutions; and an order that Defendant provide Plaintiff with the documents in advance of the deposition so that Plaintiff’s counsel may review the documents prior to questioning Defendant.

Plaintiff has cited no authority authorizing the Court to enter such orders. Consequently, the requests for such orders are DENIED. (See Quantum Cooking Concepts, Inc. v. LV Assocs., Inc. (2011) 197 Cal.App.4th 927, 934 [indicating that court may deny motion not accompanied by a memorandum setting forth the legal basis for the relief requested].)

2. Timeliness of Motion

Defendant argues that Plaintiff’s motion is untimely. For the reasons set forth below, the Court disagrees.

Code of Civil Procedure section 2025.480 provides that a motion for an order compelling answers to a deposition or for the production of documents requested in a deposition notice “shall be made no later than 60 days after the completion of the record of the deposition.” (CCP, § 2025.480, subd. (b).)

Defendant’s deposition took place on 30 January 2014. The deposition officer made the transcript available for Defendant’s review on 6 February 2014. Plaintiff filed his motion on 7 April 2014.

Defendant contends that the record of the deposition was “complete” within the meaning of section 2025.480, subdivision (b), on the day of the deposition when the short hand reporter took down Defendant’s testimony. Based on this reasoning, Defendant asserts that Plaintiff’s motion was due on or before 31 March 2014.

While there is no case law on this particular issue, the Court disagrees with Defendant’s interpretation of the statute. Section 2025.480, requires motions to compel answers to deposition questions or to produce documents requested in a deposition notice to be filed “no later than 60 days after the completion of the record of the deposition.” (CCP, § 2025.480, subd. (b), emphasis added.) The statute does not define the word “completion.” The common definition of the word is “the state of being complete or finished.” (Merriam-Webster Online Dictionary, at http://www.merriam-webster.com/dictionary/completion.) “Complete” is defined as “having all necessary parts: not lacking anything.” (Id., at http://www.merriam-webster.com/dictionary/complete.)

Code of Civil Procedure section 2025.540 requires the deposition officer to certify on the transcript (or in a writing accompanying the transcript) that the deponent was duly sworn and that the transcript is a true record of the testimony given. (CCP, § 2025.540, subd. (a).) The section further provides that, “[w]hen prepared as a rough draft transcript, the transcript of the deposition may not be certified and may not be used, cited, or transcribed as the certified transcript of the deposition proceedings.” (CCP, § 2025.540, subd. (b).)

Given the definitions of “completion” and “complete” and the language of Code of Civil Procedure section 2025.540, subdivisions (a) and (b), the Court finds that the “completion” of the deposition record within the meaning of section 2025.480 occurs, at the earliest, when the deposition officer certifies the transcript and makes it available for the deponent to review. In this case, the deposition officer certified the transcript on 6 February 2014, making Plaintiff’s motion due on or before 7 April 2014. Plaintiff’s motion was filed on 7 April 2014. The motion is therefore timely.

3. Effect of Pending Motion for Summary Judgment

Defendant argues that all discovery motions should be stayed pending the outcome of her motion for summary judgment, which is set to be heard on 20 May 2014. (Def.’s Mem. of Ps & As in Opp. to Pl.’s Mot. to Compel, p. 5.) In support of this argument, Defendant cites six federal cases that hold that the trial court may stay discovery until preliminary issues which may dispose of the case are determined. (See e.g., Petrus v. Bowen (5th Cir. 1987) 833 F.2d 581, 583.)

Defendant’s argument is problematic. The law articulated by the federal courts cited by Defendant does not apply in California. Indeed, it is well-settled in this state that the right of discovery does not depend on the status of the pleadings and deficiencies in the pleadings generally do not affect either party’s right to conduct discovery. (See Matteo Forge, Inc. v. Arthur Young & Co. (1990) 223 Cal.App.3d 1429, 1435-36 n.3.) The fact that a hearing on a dispositive motion is pending ordinarily does not excuse the during party from complying with a discovery request. (Id.)

Moreover, the Court of Appeal has previously held that “discovery is proper if it would be material to any possible issue raised by new allegations in an amended complaint (Union Mutual Life Ins. Co. v. Sup. Ct. (1978) 80 Cal.App.3d 1, 10) and discovery may continue after a demurrer has been sustained with leave to amend and no amended complaint has yet been filed (Budget Finance Plan v. Sup. Ct. (1973) 34 Cal.App.3d 794, 797).

Based upon the above discussion, Defendant’s request to stay discovery pending a decision on her motion for summary judgment is DENIED.

C. Analysis

Plaintiff seeks an order compelling Defendant to produce the documents and items that were requested in the attachment to the amended deposition notice served on 13 January 2014. The document requests attached to the deposition notice seek personal financial information from Defendant, such as the identification of bank accounts (regardless of whether they are held in Defendant’s name or in the name of her husband or children) into which Defendant deposited the parties’ parents’ money, documents related to those accounts, and other financial information, such as documents relating to credit card accounts Defendant testified that she paid with the parties’ parents’ money.

As indicated above, in order to compel the production of documents requested in a deposition notice, Plaintiff is required to “set forth specific facts showing good cause justifying the production.” (CCP, § 2025.450, subd. (b)(1).) To establish “good cause,” the burden is on the moving party to show both relevance to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case) and specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). (Glenfed Develop. Corp. v. Sup. Ct. (1997) 53 Cal.4th 1113, 1117.) Where the moving party establishes “good cause,” the burden shifts to the responding party to justify its objections. (Kirkland, supra, 95 Cal.App.4th at p. 98.)

1. Good Cause

The relevance of the documents at issue has been addressed by the parties in several previous motions. On this point, in its 18 April 2014 order, the Court stated the following:

[T]he parties spend an inordinate amount of time arguing whether Defendant’s bank account information is relevant and whether the information is protected by the right of privacy. . . . Both of these matters, however, are non-issues. The Court has already ordered Defendant to produce information and documents responsive to Plaintiff’s [second set of special interrogatories and second set of requests for production of documents], which requested information and documents concerning “any and all” accounts into which the parties’ parents’ money was deposited or transferred. If money was transferred from the parties’ parents’ account into one of Defendant’s personal accounts, then such information would have had to be provided in accordance with the Court’s July 10 Order. (Order on Discovery Motion, dated 18 April 2014.)

Because Plaintiff is required to establish good cause for the documents, and because this issue continues to resurface in this case, the Court will address the relevance of the documents. Hopefully, this discussion will put the issue to rest.

Defendant contends that documents and information concerning her personal financial information is irrelevant to the subject matter of this litigation. Defendant focuses on Plaintiff’s elder abuse claim which requires Plaintiff to demonstrate, among other things, that Defendant took, hid, appropriated, obtained, or retained decedent’s property. (See Welfare and Institutions Code section 15610.30.) According to Defendant, Plaintiff’s claims do not require that Defendant explain, or that Plaintiff demonstrate, how Defendant spent or disposed of any money or property. Under Defendant’s theory, “[i]t would make no difference to Plaintiff’s action if Defendant spent the money, or destroyed it.” (Mem. of Ps & As in Opp. to Pl.’s Mot. to Compel, p. 9.) The Court disagrees.

Plaintiff claims that Defendant’s management of her father’s finances gave rise to a fiduciary duty. A fiduciary duty—where a person is duty bound to act with the utmost good faith for the benefit of another—may arise in two circumstances. (Richelle L. v. Roman Catholic Archbishop (2003) 106 Cal.App.4th 257, 270-273.) First, fiduciary duties may arise from certain legally defined relationships—such as the attorney-client relationship. (Id., at p. 271.)

Second, such duties may arise from certain “confidential” relationships. (Id., at pp. 271-272.) A confidential relationship “refers to an unequal relationship between parties in which one surrenders to the other some degree of control because of the trust and confidence which he [or she] responses in the other.” (Id., at p. 272, fn. 6.) While a “confidential relationship” is not susceptible to a precise definition, its elements are generally: (1) the vulnerability of one party to the other which (2) results in the empowerment of the stronger party by the weaker, and which (3) prevents the weaker party from effectively protecting him or herself. (Id., at p. 272.) Courts have recognized that a confidential relationship may form between an elderly woman and a person upon whom she depends for assistance. (Id., citing Stenger v. Anderson (1967) 66 Cal.2d 970, 979.)

While “the key factor in the existence of a fiduciary relationship lies in control by a person over the property of another,” “the prerequisite of a confidential relationship is the reposing of trust and confidence by one person in another who is cognizant of this fact.” (Vai v. Bank of America (1961) 56 Cal.2d 329, 338.) “Both relationships give rise to a fiduciary duty, that is, a duty ‘to act with the utmost good faith for the benefit of the other party.’” (Persson v. Smart Inventions, Inc. (2005) 125 Cal.App.4th 1141, 1160.)

In light of the above principles, if Plaintiff can establish the existence of a legally recognized fiduciary relationship, or a confidential relationship, Defendant would be duty bound to have acted with the utmost good faith in managing her father’s financial affairs. Accordingly, contrary to Defendant’s argument, it does matter what Defendant did with the money. Indeed, how Defendant managed her father’s financial affairs and how she spent the money is not only relevant to the subject matter of this action, it is also directly relevant to the question of whether Defendant breached her fiduciary duties.

Concerning specific facts justifying the discovery, Plaintiff directs the Court to Defendant’s previous discovery responses, in which she indicated that she was a signer on a joint bank account with her father and that, after her father’s death, the $700,000 in settlement proceeds was deposited directly into two accounts in Defendant’s name. Defendant provided Plaintiff with the three bank account numbers at issue and Plaintiff has served third-party subpoenas to the financial institutions where the accounts were held. Defendant has also disclosed that she wrote checks in amounts of $100,000 and $50,000 from these accounts and that she paid her own and other family members’ bills with monies from these accounts, including her credit card bills.

Based on the above discussion, the Court finds that Plaintiff has demonstrated the relevance of the documents sought and set forth specific facts justifying the discovery. Accordingly, Plaintiff has demonstrated good cause. (Glenfed Develop. Corp. v. Sup. Ct. (1997) 53 Cal.4th 1113, 1117.)

2. Objections

Because Plaintiff has demonstrated good cause, the burden shifts to Defendant to justify her objections. (Kirkland, supra, 95 Cal.App.4th at p. 98.)

In response to the amended deposition notice, Defendant served Plaintiff with the following written objection:

Objection: all documents requested herein have already been produced and to do so again would be burdensome to Defendant. Responding party further states that despite her reasonable and good faith efforts to obtain further information, Responding party is unaware of the existence of any other additional documentation that may be responsive to these Requests. (Decl. of Koenig, Ex. 2.)

As an initial matter, reading the above objection, one comes away with the impression that Defendant has produced all the requested documents that she has in her possession. Defendant’s opposition, however, makes clear that she has only produced all documents responsive to the deposition document requests that she believes are relevant. Notwithstanding the statement in her objection, Defendant has made it abundantly clear that she has not produced information and documents related to her personal financial affairs. (See Mem. of Ps & As in Opp. to Pl.’s Mot. to Compel, p. 1 [indicating that production of Defendant’s personal financial documents would violate her right to privacy].)

In her opposition, Defendant argues that the deposition document requests are unintelligible, overbroad, duplicative, irrelevant, unduly burdensome, and in violation of Defendant’s right to privacy. The relevance of the requested documents is discussed above and, based on that discussion, Defendant’s relevance objection is overruled.

Defendant did not object to the deposition document requests on the grounds that they are unintelligible, overbroad, duplicative, or in violation of Defendant’s right to privacy in her written objection to the amended deposition notice. Similarly, at the deposition itself, in response to Plaintiff’s counsel’s inquiry as to why none of the requested documents were brought to the deposition, defense counsel stated: “We filed an objection to this request for production of documents stating that no such documents exist, that Janet Morazan does not have any such documents in her possession and that we would not be producing any documents.” (Deposition of Janet Morazan, at 19:17-21, attached to Decl. of Boyes, Ex. 10.)

Because Defendant failed to raise the objections in either her written objection or at the deposition itself, those objections are therefore waived, (Scottsdale Ins. Co. v. Sup. Ct. (1997) 59 Cal.App.4th 263, 273 [waiver occurs where the responding party fails to timely raise an objection in its initial response]), with the exception of the privacy objections, which are preserved (see Heda v. Sup. Ct. (1990) 225 Cal.App.3d 525, 529 [no waiver where responding party timely objected on relevancy even though privacy objection not initial raised]; see also Boler v. Sup. Ct. (1987) 201 Cal.App.3d 467, 472 [no waiver of third persons’ privacy objections]). Thus, the only objections at issue are Defendant’s undue burden objection and her privacy objection.

a. Undue Burden

Defendant objected to the deposition document requests on the basis of undue burden. A party claiming that requested discovery is unduly burdensome must make a particularized showing of facts demonstrating hardship. (West Pico Furniture Co. v. Sup. Ct. (1961) 56 Cal.2d 407, 417-418.) Defendant has not made a particularized showing or otherwise explained why the production of documents concerning her financial records would create a hardship. Defendant’s objection on the basis of undue burden is therefore overruled.

b. Privacy

The right of privacy established by the California Constitution protects an individual’s “reasonable expectation of privacy against a serious invasion.” (Pioneer Electronics, Inc. v. Sup. Ct. (2007) 40 Cal.4th 360, 370.) There is a legally recognized privacy interest in a person’s financial affairs. (See Fortunato v. Sup. Ct. (2003) 114 Cal.App.4th 475, 480; see also Valley Bank of Nevada v. Sup. Ct. (1975) 15 Cal.3d 652, 656-657 (“Valley Bank”).) The right to privacy, however, is not absolute, and where privacy rights are implicated, the court must “carefully balance” the right of privacy and the right of civil litigants to discover relevant facts. (Valley Bank, supra, 15 Cal.3d at 657.)

To obtain private information, the party seeking discovery must show that the discovery sought is directly relevant to a particular cause of action or defense. (Britt v. Sup. Ct. (1978) 20 Cal.3d 844, 859-862.) “Direct relevance” is a higher standard than the “relevancy to the subject matter” standard generally applicable to discovery requests. (Id., at p. 859.) According to the California Supreme Court, direct relevance means that the discovery sought is essential to the fair resolution of a matter in dispute. (Id.)

For the reasons set forth above in connection with the Court’s discussion of the relevance of the requested documents, the Court finds that Defendant’s personal financial information related to how she spent the money taken from her father’s account is directly relevant to the issue of whether Defendant breached a fiduciary duty related to her management of her father’s money.

Because the documents sought are directly relevant, the Court must next balance the right of privacy, on the one hand, and the right of civil litigants to discover relevant facts, on the other. (Valley Bank of Nevada v. Sup. Ct. (1975) 15 Cal.3d 652, 657.) The existence of a protective order limiting access to the information claimed to be private is an important factor in balancing the need for discovery with privacy rights. (See Alch v. Sup. Ct. (2008) 165 Cal.App.4th1412, 1435.)

Here, the Court has entered a protective order limiting access to Defendant’s financial information to Plaintiff’s counsel and prohibiting Plaintiff from using the discovered information for any purpose other than the ensuing litigation. (See Order on Discovery Motion, dated 18 April 2014.)

The Court finds that the protective order will sufficiently protect Defendant’s interest in keeping her personal financial information private. Defendant’s objections on the basis of privacy rights are therefore overruled.

D. Conclusion

Plaintiff has demonstrated good cause justifying the discovery sought through the deposition notice and Defendant has failed to justify her objections. Consequently, Plaintiff’s motion to compel is GRANTED IN PART. Plaintiff’s motion is GRANTED as to his request that Defendant’s deposition be reset at a time and date to be notice by Plaintiff and to produce the requested documents.

Plaintiff’s motion is otherwise DENIED.

III. Requests for Monetary Sanctions

A. Plaintiff’s Request

Plaintiff seeks monetary sanctions against Defendant and her attorney pursuant to Code of Civil Procedure section 2025.450. That section provides that, “[i]f a motion under subdivision (a) [to compel production of documents pursuant to a deposition notice] is granted, the court shall impose a monetary sanction . . . in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (CCP, § 2025.450, subd. (g)(1).)

Plaintiff prevailed on his motion to compel, Defendant did not act with substantial justification, and no other circumstances render the imposition of a sanction unjust. Therefore, a monetary sanction shall be imposed to compensate for the reasonable expenses, including attorney’s fees, incurred as a result of Plaintiffs’ conduct. (CCP, § 2023.030, subd. (a).)

Counsel for Plaintiff declares that, at an hourly rate of $325, he spent 6 hours reviewing and researching Defendant’s meet and confer letters. He further declares that he spend in excess of 20 hours reviewing the deposition and preparing the separate statement and other documents for the present motion. He further anticipates 5 hours of time drafting a reply and attending a hearing on the matter. Finally, Plaintiff seeks compensation for the $60 filing fee and $30 for the court reporter fee associated with the motion.

Sanctions under section 2023.030 are only available for expenses “incurred” as a result of the sanctionable conduct, (CCP, § 2023.030, subd. (a)), which in this case is Defendant’s unsuccessful opposition, without substantial justification, to Plaintiff’s motion. (CCP, § 2023.010, subd. (h) [unsuccessful opposition to motion, without substantial justification, to a motion to compel discovery is a misuse of the discovery process].) The expenses stemming from Plaintiff’s counsel’s time spent as part of the meet and confer process cannot be said to have been “incurred” as a result of Defendant’s sanctionable conduct. Thus, Plaintiff is not entitled to remuneration for the time spent in the meet and confer process. Similarly, sanctions are not awarded for anticipated expenses as they have yet to be “incurred.” (See Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551.) If the matter is orally argued before the Court, this Court will entertain the issue of further sanctions at that time.

Defense counsel’s hourly rate ($325) is reasonable. The hours spent, however, are not. Plaintiff’s counsel claims to have spent 20 hours working on the moving papers related to this matter. Half of that time appears reasonable.

Accordingly, Plaintiff’s request for monetary sanctions against Defendant and her counsel is GRANTED IN PART in the amount of $3,340 (10 hours x $325/hr + $60 in filing fee + $30 in court reporter fee).

B. Defendant’s Request

Defendant requests sanctions against Plaintiff and his counsel in the amount of $1,435 pursuant to Code of Civil Procedure section 2025.480. That section provides that “[t]he court shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer or production, 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. (CCP, § 2025.480, subd. (j).)

Defendant did not successfully oppose Plaintiff’s motion to compel. Her request for sanctions is therefore DENIED.

Conclusion and Order

Defendant’s request for judicial notice is GRANTED.

Plaintiff’s request for judicial notice is GRANTED.

Plaintiff’s motion to compel further answers and to produce documents associated with a deposition notice is GRANTED IN PART as it pertains to the production of the documents listed in the attachment to the deposition notice. Accordingly, Defendant shall appear for the continuation of her deposition and produce all documents in her possession responsive to the requests attendant to the notice of deposition at a date and time mutually agreed upon by the parties but no later than 30 days from the issuance of the written order on this matter.

Plaintiff’s request for monetary sanctions is GRANTED IN PART in the amount of $3,340. Defendant and her counsel shall pay $3,340 to counsel for Plaintiff within 20 calendar days of the filing of this Order.

Defendant’s request for monetary sanctions is DENIED.