2012-00132204-CU-BC

Paul Shieh DDS vs. Thomas Yamamoto DDS

Nature of Proceeding:   Motion to Compel Special Interrogatories

Filed By:  Rymek, Robert C.

On motion of the court, this matter is continued to July 2, 2014 at 09:00AM in this
department.  If the new date is inconvenient for any party, then counsel shall meet and
confer and inform the Department 54 clerk of their request for a different, subsequent
date.

Plaintiff moves to compel Defendant’s further responses to the following
interrogatories:  3-8, 12, 15, 16 and 19.  These interrogatories seek: (1) the number of
“Non-Family Practice Patients” to whom Defendant provided dental services in
purported violation of the non-compete clause, (2) the total amount compensation
Defendant received from “Non-Family Practice Patients” for the dental services
purportedly in violation of the non-compete clause, (3) the date upon which Defendant
first began providing dental treatment to “Non-Family Practice Patients” for the dental
services purportedly in violation of the non-compete clause, (3) the total number of
times and the date upon which Defendant provided dental treatment to “Non-Family
Practice Patients” purportedly in violation of the non-compete clause.

Having reviewed the moving and opposing papers, and the numerous discovery
requests that the parties dispute, it is apparent to the court that counsel must resume
the meet-and-confer process in good faith before drawing upon the court’s limited
resources.  Counsel for the parties are thus ordered to resume the meet-and-confer
process in order to resolve or substantially narrow their discovery dispute.

In resuming the meet-and-confer process, the parties should be guided by the
observation(s) that: (1) given Plaintiff’s clarification regarding the typographical error in
the definition of “Non-Family Practice Patients”, the definition is no longer vague or
ambiguous, (2) the interrogatories should be clarified so that they also exclude
individually identifiable dental information, (3)  the objection that the contract of sale
violates B&P Code section 16601, is overbroad and unethical goes to the merits of
Plaintiff’s complaint and is not a proper objection to discovery, (4) the time period
included in the interrogatories does not appear to be overbroad or not calculated to            lead to the discovery of admissible evidence, (5) the Court disagrees with Defendant
that his “financial gain” is not discoverable, indeed Defendant cites to  General Paint
Corp. v. Seymour (1932) 124 Cal. App. 611, 616 which states that the measure of
damages for lost profits “is the value of the business lost to plaintiff — not the gain of
defendant, which may be more or less than plaintiff’s loss; though such gain may be
considered in evidence, it should be shown to correspond in whole or in part with the
loss of plaintiff.” [emphasis added], (6) the Court agrees with Plaintiff that he is not
seeking financial information in violation of Civ. Code §3295 as the information goes to
the heard of his claim. (Rawnsley v Superior Court (1986) 183 Cal.App.3d 86), and (7)
to the extent Defendant is concerned regarding his financial privacy, the parties may
enter into a protective order.

Counsel shall meet and confer in person by June 13, 2014.  After thoroughly meeting
and conferring in an attempt to resolve each and every issue that the motion currently
encompasses, and no later than June 23, 2014, counsel shall file a joint statement
indicating which discovery issues have been resolved, and which issues (if any)
remain outstanding.  For each outstanding issue, counsel shall set forth in the joint
statement their respective positions, citing the relevant facts and authorities.
Boilerplate or cut-and-paste arguments are strongly discouraged.

Counsel are reminded that this court does not have the resources to tend to and
resolve every discovery issue that could have and should have been resolved
informally. (See Young v. Rosenthal (1989) 212 Cal.App.3d 96, 117 [“The very
purpose of an order to meet and confer is to obtain a negotiated resolution of a
discovery dispute without having to expend judicial time to sort out which party is
correct and what relief should be granted. What the court seeks is an agreement by
the parties which resolves the dispute”].)

Counsel are also reminded that this court has adopted, as part of its local rules, the
California Attorney Guidelines of Civility and Professionalism, promulgated by the
State Bar of California.  In particular, the court refers counsel to Sections 4, 6, 9 and
10. The court is bound to impose monetary sanctions against any party who
unsuccessfully makes or opposes a motion to compel further discovery\line responses,
absent a substantial justification or other reason making the imposition of sanctions
unjust.  The court may also impose sanctions for the failure to meet and confer in good
faith or otherwise misuse the discovery process. (See Cal. Code Civ. Proc. §§
2023.010-2023.030.)

The court will consider each side’s meet-and-confer efforts in deciding whether to
impose sanctions.