Case Name:   Kleidman v. Shah, et al.

Case No.:       1-13-CV-247406

Motion by Defendants Nitin Shah, Feeva Technology, Inc. and Don Cook to Compel Plaintiff Peter Kleidman to ProvideFurther Responses to Requests for Production of Documents, Set Five, Nos. 56-61 and Request for Sanctions

            Defendants seek to compel further responses to six document requests.  The motion focuses on Plaintiff’s objections and argues that they are not well taken.  Plaintiff as the responding party has the burden to justify objections once Defendants as the moving parties have established good cause.  (Kirkland v. Sup. Ct. (2002) 95 Cal.App.4th 92, 98.)

A motion for an order compelling further responses “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.” (Code of Civil Procedure section 2031.310(b)(1).)  To establish “good cause,” the burden is on the moving party to show by competent evidence 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.App.4th 1113, 1117.)  To meet this good cause requirement, evidence is required and mere conclusions do not suffice.  (Fireman’s Fund Ins. Co. v. Superior Court (1991) 233 Cal.App.3d 1138, 1141; Grannis v. Board of Medical Examiners (1971) 19 Cal.App.3d 551, 564.)

The motion is supported by one declaration from counsel Hawley, and nothing in that declaration relates in any way to showing good cause for Requests 56-59 or 61.  The only portion of that declaration that relates to “specific facts showing good cause” is paragraph 8 (miscited in Defendants’ Separate Statement as paragraph 9), stating in its entirety: “Denise Burns has, on many occasions, served documents on defendants on behalf of Plaintiff in this litigation.”  This relates to Request 60 which demands “any and all communications with Denise Burns from June 1, 2013 until the present regarding this litigation.”  This statement by itself does not establish good cause.  Defendants in their Separate Statement go on to speculate that “Ms. Burns may also assist Plaintiff in this litigation in more substantive ways.”  Such speculation is not good cause.

Defendants have failed to establish good cause as required by Code of Civil Procedure section 2031.310.  The motion is denied.

In his opposition, Plaintiff requested that the court impose on Defendants monetary sanctions in the amount of $30 if there is no hearing and $116 if there is a hearing, representing costs incurred in connection with opposing the motion.  These amounts are supported by statements in his declaration.

The Legislature has designed the Discovery Act so that, when the parties fail to resolve a discovery dispute informally and the court is required to rule on a discovery motion, the default circumstance is the imposition of monetary sanctions on the losing party.  (E.g., Code of Civil Procedure section 2031.310(h).)  “ ‘There is no requirement that misuse of the discovery process must be willful for a monetary sanction to be imposed.’ … ‘Whenever one party’s improper actions—even if not ‘willful’—in seeking or resisting discovery necessitate the court’s intervention in a dispute, the losing party presumptively should pay a sanction to the prevailing party’.” (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1287 [internal citations omitted].)

An exception pertains if the court finds that the losing party acted with substantial justification.  “Substantial justification” is generally defined as being justified to a degree that could satisfy a reasonable person, or stated another way, that it has a reasonable basis both in law and fact.  The burden for proving “substantial justification” for failing to comply with a discovery order is on the losing party claiming that it acted with “substantial justification.”  (Doe v. U.S. Swimming, Inc. (2011) 200 Cal.App.4^th 1424, 1434-1435.)  The justification must be “well-grounded in both law and fact”.  (Diepenbrock v. Brown (2012) 208 Cal.App.4^th 743, 747 [citations omitted].)

Defendants have not met their burden concerning substantial justification, and no other circumstances make an award of sanctions unjust.  Accordingly, Plaintiff’s request for monetary sanctions is granted.  Defendants are ordered to pay Plaintiff within fifteen days from notice of entry of this order the sum of $30 if there is no hearing and $116 if there is a hearing.