On 28 March 2014, the motions of defendant American Financial Network, Inc. (“AFN”) (1) to compel further responses to special interrogatories, set two (“SI”) and for monetary sanctions, and (2) to compel further responses to requests for production of documents, set two (“RPD”) and for monetary sanctions were argued and submitted. Plaintiff Prospect Mortgage, LLC (“Prospect”) filed formal oppositions to the motions.

Statement of Facts

This action arises from an employment dispute. Prospect and AFN are mortgage lenders. Defendant/cross-complainant David Shumard (“Shumard”) worked for Prospect until he resigned in November 2011, allegedly due to Prospect’s unethical practices. Prospect alleges that Shumard breached his employment agreement by recruiting Prospect’s employees to join AFN, and financially harmed Prospect by posting certain information about it online.

On 28 August 2012, Prospect filed this action against Shumard and AFN (collectively, “Defendants”), asserting causes of action for breach of contract, breach of fiduciary duty, breach of duty of loyalty, tortious interference with contractual relations, tortious interference with an economic advantage, and a violation of the unfair competition law (Bus. & Prof. Code, §17200, et seq.) (“UCL”). On 22 January 2013, cross-complainants Shumard, John Telesco, and Jerry Shumard (collectively, “Cross-Complainants”) filed their first amended cross-complaint against Prospect, asserting causes of action for wrongful termination and a violation of the UCL.

Discovery Dispute

On 13 September 2013, AFN served the SI and the RPD on Prospect. Prospect served objection-only responses on 18 October 2013. AFN believes that the objections lacked merit. On 28 October 2013, its counsel sent a “meet and confer” letter to Prospect’s counsel, asking to discuss the propriety of the objections on the phone. Later that day, Prospect served supplemental responses to the SI and the RPD, asserting the same objections as it had in its initial responses and providing some substantive answers. AFN believed the supplemental responses to be deficient.

On 5 November 2013, the parties’ counsel met and conferred on the phone. After the conversation, Prospect indicated that it would provide a formal “meet and confer” letter to provide a more detailed response to the issues discussed. On 14 November 2013, Prospect’s counsel sent a “meet and confer” letter in which Prospect agreed to provide amended responses to both the SI and the RPD.

On 6 January 2014, Prospect served amended responses to the SI and the RPD. AFN found the responses were still deficient, and on 13 January 2014, its counsel sent a final “meet and confer” letter, asking for amended responses. On 21 January 2014, Prospect indicated that it would not provide any further amended responses to the SI.

Consequently, on 24 February 2014, AFN filed its motions to compel further responses to SI Nos. 38, 42, 77-80, 87-89, 91-92, 95-96, 99-101, 107-108, and 111-12 and to compel further responses to RPD Nos. 32 and 34. Prospect filed oppositions to the two motions on 17 March 2014. On 21 March 2014, AFN filed a reply brief for each motion.

Discussion

I. AFN’s Motion to Compel Further Responses to the SI

AFN moves to compel further responses to SI Nos. 38, 42, 77-80, 87-89, 91-92, 95-96, 99-101, 107-108, and 111-112, and requests an award of monetary sanctions against Prospect.

The SI seek facts concerning the amount of damages suffered as a result of comments by nonparties Ron Graf and Paul Matos on the “Implode-O-Meter” website (SI Nos. 38 and 42), AFN’s solicitation of Prospect’s employees and employee-recruits (SI Nos. 77-80, 95-96, 99-100, and 111-112 ), and AFN and Shumard’s interference with Prospect’s customers (SI Nos. 87-89, 91-92, 101, and 107-108). Prospect responded to all of the SI requests at issue with objections and substantive responses.

AFN argues further responses are warranted because the objections lack merit and the substantive responses are incomplete and/or evasive. Prospect opposes the motion on the grounds that its objections have merit and its substantive responses are complete.

A party propounding interrogatories may move for an order compelling further responses if that party deems an objection is without merit or too general or a response is incomplete. (Code Civ. Proc., § 2030.300, subd. (a).) The statute does not require any showing of good cause in support of a motion. (See Code Civ. Proc., § 2030.300, subd. (a); see also Coy v. Superior Court. (1962) 58 Cal.2d 210, 220-221.) The burden is on the responding party to justify any objections or failure to fully answer. (Coy v. Superior Court, supra, 58 Cal.2d at pp. 220-221.)

A. Objections

Prospect raised numerous objections to each individual SI. In its opposition, Prospect only attempts to justify its “premature” objection on the ground that it has not yet calculated its damages. “Premature” is not a proper ground for objection because any party may propound interrogatories without leave of court any time 10 days after service of summons on, or appearance by, the responding party. (Code Civ. Proc., § 2030.020, subd. (b).) Thus, all of the objections are overruled. (Coy v. Superior Court, supra, 58 Cal.2d at pp. 220-221.)

Therefore, Prospect’s objections to the SI are overruled in their entirety.

B. Substantive Responses

Prospect provided substantive responses to all of the SI at issue. AFN contends that further responses are warranted because the substantive responses provided are incomplete and/or evasive.

An interrogatory response must be as complete and straightforward as the information available to the responding party permits. (Code Civ. Proc., § 2030.220, subd. (a).) The responding party must make a reasonable and good faith effort to obtain the information by inquiry to other persons or organizations, and if the responding party lacks sufficient personal knowledge to fully respond to a request, it shall so state. (Code Civ. Proc., § 2030.220, subd. (c).)

First, Prospect’s responses to SI Nos. 78, 80, 88, 92, 95-96, 99-101, 107-108, and 111-112 are patently incomplete because the responses improperly reference other discovery responses. “Answers must be complete and responsive. Thus, it is not proper to answer by stating, ‘See my deposition,’ ‘See my pleading,’ or ‘See the financial statement.’” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783-784.) Therefore, further responses to SI Nos. 78, 80, 88, 92, 95-96, 99-101, 107-108, and 111-112 are warranted.

Second, SI Nos. 38 and 42 ask Prospect to state the amount of damages it claims to have suffered as a result of negative online comments about it made by two nonparties. Prospect responded by stating that it lacks sufficient knowledge to respond. AFN contends that, in Prospect’s “meet and confer” correspondence, Prospect’s counsel indicated that it was not aware of any damages as a result of the posting. As such, AFN conclude that Prospect could state that it suffered no damages. Prospect argues these responses are complete and straightforward because they are authorized by Code of Civil Procedure section 2030.220. Prospect’s argument lacks merit. As noted above, Prospect’s counsel stated that Prospect was unaware of any damages as a result of the posting. Therefore, Prospect acknowledges that it had sufficient knowledge to respond to SI Nos. 38 and 42 by stating that it has suffered no damages as a result of the negative online comments. Accordingly, these responses are evasive.

Third, SI Nos. 77 and 79 ask Prospect to state the amount of damages it suffered as a result of AFN and Shumard’s solicitation of Audrey Hutton and Suzanne Bowers, two of Prospect’s former employees. Prospect responded that it has suffered an amount of damages to be determined after expert discovery, it has expended $82,261.52 on recruiting efforts directed to the Northern California market, and it received over $9 million in profit from the solicited individuals in the period preceding their solicitation. AFN contends that Prospect did not provide a full and complete response to the interrogatories since no specific amount of damages was provided. Prospect argues these responses are as complete as they can be because it has yet to employ an expert to determine the amount of lost profits that were never earned as a result of the solicitation. Code of Civil Procedure section 2030.220 requires a responding party to provide as much information as is reasonably available to it, and to “make a reasonable and good faith effort to obtain the information” sought. Prospect appears to have provided as much information as is currently available concerning its damage calculations. AFN has submitted no specific facts indicating that Prospect has failed to make a good faith effort to obtain the information sought. Therefore, the responses to SI Nos. 77 and 79 are not incomplete or evasive.

Next, SI Nos. 87 and 91 seek the amount of damages Prospect claims to have suffered as a result of AFN and Shumard’s interference with Prospect’s customers. Prospect responded that it has suffered damages to be determined following expert discovery, and did not provide additional information in contrast to SI Nos. 77 and 79. If Prospect has sufficient knowledge to respond to the interrogatory, it must provide as much information as is reasonably available to it. (Code Civ. Proc., § 2030.220, subd. (a).) If it does not have sufficient knowledge to respond, it must so state and make a reasonable and good faith effort to obtain the information by inquiry. (Code Civ. Proc., § 2030.220, subd. (c).) In response to SI Nos. 87 and 91, Prospect does not provide any information concerning the amount of damages. At the same time, it does not state that it does not have sufficient knowledge to respond. Therefore, the responses to SI Nos. 87 and 91 are evasive and incomplete.

Finally, SI No. 89 asks for the identity of each Prospect customer with which Shumard interfered. Prospect stated that it lacks personal knowledge sufficient to respond to the interrogatory following a reasonable and good faith effort to obtain the information by inquiry. AFN contends that, a year and a half after Prospect filed its complaint, Prospect should be able to identify these customers. AFN suggests that the passage of time indicates a lack of good faith effort to obtain the requested information. Prospect argues that it is attempting to discover through depositions of AFN’s persons most knowledgeable whether AFN interfered with any of Prospect’s customers. Prospect’s argument as to why it does not have personal knowledge sufficient to respond to SI No. 89 is persuasive. Litigants are often unable to discover all pertinent information concerning their lawsuit without extensive discovery, and there is no reason to believe that Prospect’s response, which is facially code-compliant, is untruthful. Therefore, Prospect’s response to SI No. 89 is not evasive or incomplete.

C. Conclusion

AFN’s motion to compel further responses to the SI is GRANTED IN PART and DENIED IN PART. The motion is DENIED as to SI Nos. 77, 79 and 89. The motion is GRANTED as to SI Nos. 38, 42, 78, 80, 87-88, 91-92, 95-96, 99-101, 107-108, and 111-112.

II. AFN’s Motion to Compel Further Responses to the RPD

AFN moves to compel further responses to RPD Nos. 32 and 34. The RPD seek documents pertaining to all damages Prospect suffered as a result of negative comments posted by nonparties Ron Graf and Paul Matos on the “Implode-O-Meter” website. Prospect responded to each of these requests with objections and substantive responses.

AFN argues further responses are warranted because the objections lack merit and the substantive responses are incomplete. Prospect contends that an order compelling further responses to RPD Nos. 32 and 34 is not warranted because its objections have merit and substantive responses are complete.

A party propounding a request for production may move for an order compelling a further response if it deems that a response is incomplete or evasive, or an objection in the response is without merit or too general. (Code Civ. Proc., § 2031.310, subd. (a).) The motion must set forth “specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1); Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.) Good cause is established simply by a fact-specific showing of relevance. (Kirkland v. Superior Court, supra, 95 Cal.App.4th at p. 98.) If good cause is shown, the burden shifts to the responding party to justify any objections. (Id.)

A. Good Cause

Discovery is allowed for any matters that are not privileged, relevant to the action, and reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.010.) Information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement thereof. (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.)

The discovery sought by RPD Nos. 32 and 34 is relevant because the requests seek evidence related to the damages Prospect is claiming with respect to negative blogs to which Shumard and nonparties Ron Graf and Paul Matos posted. As such, good cause exists for the discovery sought.

B. Objections

In response to RPD Nos. 32 and 34, Prospect asserted a litany of objections. In its opposition, Prospect only attempts to justify its “premature” objection on the ground that it has not yet calculated its damages. “Premature” is not a proper ground for objection because any party may make a demand for inspection without leave of court any time 10 days after service of summons on, or appearance by, the responding party. (Code Civ. Proc., § 2031.020, subd. (b).) Thus, all of the objections are overruled, except for attorney-client privilege and attorney work product doctrine, which have been preserved. (See Coy v. Superior Court, supra, 58 Cal.2d at pp. 220-221, Best Products, Inc. v. Superior Court, supra, 119 Cal.App.4th at pp. 1188-1189.)

C. Substantive Responses

Prospect provided substantive responses to RPD Nos. 32 and 34. AFN argues that further responses to the RPD are warranted because the responses provided are incomplete.

A substantive response to a demand for production must address each item or category of items separately with a statement of compliance or a statement of an inability to comply. (See Code Civ. Proc., § 2031.210, subd. (a).)

In each of its responses, Prospect made a statement of an inability comply with the requests that is “subject to” its objections. AFN argues further responses are warranted because these responses are “subject to” Prospect’s frivolous objections. This argument is well-taken. The “subject to” language suggests that the substantive responses only include matters that Prospect did not find objectionable. Therefore, the substantive responses are incomplete.

In addition, Prospect responded to RPD Nos. 32 and 34 by stating that following a diligent search and reasonable inquiry into the demand, Plaintiff is unable to comply with the demands because the particular items or categories have never existed since Plaintiff has not calculated its damages associated with the commentary by Ron Graf and Paul Matos.

AFN contends that Prospect’s responses are evasive and incomplete because Prospect has unilaterally narrowed the scope of the request to documents that it created to calculate its damages associated with the negative online comments of Ron Graf and Paul Matos. Therefore, Prospect’s responses do not address documents that were not created in response to this lawsuit, such as documents reflecting loss of revenue or loss of business. Prospect contends that, since it has not done a damages analysis, it does not know which documents AFN wants. AFN’s argument is persuasive. RPD Nos. 32 and 34 are not limited to documents Prospect created to calculate its damages. The requests seek all documents pertaining to the damages Prospect suffered as a result of the negative online comments. As Prospect’s responses do not completely address the requests, the responses to RPD Nos. 32 and 34 are incomplete. Accordingly, the substantive responses are additionally deficient for this reason.

D. Conclusion

Based on the foregoing, the motion to compel further responses to RPD Nos. 32 and 34 is GRANTED.

III. AFN’s Requests for Monetary Sanctions

A. Motion to Compel Further Responses to the SI

With regard to the motion to compel further responses to the SI, AFN makes a code-compliant request for an award of monetary sanctions against Prospect in the amount of $4,975. Code of Civil Procedure section 2030.300, subdivision (d) provides that the court shall impose a monetary sanction against any party or attorney who unsuccessfully makes or opposes a motion to compel further responses to interrogatories unless the party or attorney acted with substantial justification or other circumstances make the imposition of a sanction unjust.

Prospect’s opposition was largely unsuccessful, and the Court finds it did not act with substantial justification. Furthermore, the Court finds no other circumstances exist that would make the imposition of a sanction unjust. Thus, an award of monetary sanctions is warranted.

AFN’s counsel declares that his client paid $85 in “attorney service fees” and $90 in filing fees to bring this motion, and that he spent a total of 15 hours preparing the motion and anticipates spending an additional hour at the hearing at a rate of $300 per hour. In AFN’s reply brief, counsel indicates that he spent an additional 4 hours drafting a reply brief.

A court may only award monetary sanctions for reasonable fees incurred. (Code Civ. Proc., § 2023.030.) Counsel’s anticipated fees for attending the hearing have not been incurred, and therefore are not compensable. While counsel’s hourly rate is reasonable, the time that counsel spent preparing the motion and reply is not. The Court finds 11 hours to be a reasonable amount of time for him to have spent preparing the motion. Furthermore, while the Court finds the filing fees to be a reasonable expense, the undefined $85 “attorney service fee” is not.

Accordingly, AFN’s request for an award of monetary sanctions against Prospect is accordingly GRANTED IN PART in the amount of $3,390.

B. Motion to Compel Further Responses to the RPD

With regard to the motion to compel further responses to the RPD, AFN makes a code-compliant request for an award of monetary sanctions against Prospect in the amount of $3,325. Code of Civil Procedure section 2031.310, subdivision (h) provides that the court shall impose a monetary sanction against any party or attorney who unsuccessfully makes or opposes a motion to compel further responses to requests for production of documents unless the party or attorney acted with substantial justification or other circumstances make the imposition of the sanction unjust.

Here, Prospect was unsuccessful in its opposition, and the Court finds it did not act with substantial justification. Since the Court finds no other circumstances exist that would make the imposition of a sanction unjust, an award of monetary sanctions is warranted.

AFN’s counsel declares that he bills at $300 per hour, spent 9.5 hours preparing this motion, and anticipates spending an additional hour at the hearing on this matter. In AFN’s reply brief, counsel states that he spent an additional 2.5 hours drafting the reply brief. He also declares that his client incurred an “attorney service fee” of $85 and filing fees of $90.

The court may only award sanctions for reasonable expenses incurred. (Code Civ. Proc., § 2023.030.) The Court will not award sanctions for counsel’s anticipated time to attend the hearing on this matter. Counsel’s anticipated fees for attending the hearing have not been incurred, and therefore are not compensable. While the counsel’s hourly rate is reasonable, the amount of time he spent preparing the moving and reply papers is not. The Court finds 6 hours to be a reasonable amount of time to have spent preparing the motion and the reply. Furthermore, while the Court finds the filing fees to be reasonable expenses, the $85 “attorney service fee” is not.

Accordingly, AFN’s request for an award of monetary sanctions against Prospect is GRANTED IN PART in the amount of $1,890.

Conclusion and Order

AFN’s motion to compel further responses to the SI is GRANTED IN PART and DENIED IN PART. The motion is DENIED as to SI Nos. 77, 79 and 89. The motion is GRANTED as to SI Nos. 38, 42, 78, 80, 87-88, 91-92, 95-96, 99-101, 107-108, and 111-112. Accordingly, within 20 days of the date of the filing of this Order, Prospect shall serve verified code-complaint further responses to SI Nos. 38, 42, 78, 80, 87-88, 91-92, 95-96, 99-101, 107-108, and 111-112, without objection.

AFN’s request for an award of monetary sanctions against Prospect in connection with its motion to compel further responses to the SI is GRANTED IN PART in the amount of $3,390. Accordingly, within 20 days of the date of the filing of this Order, Prospect shall pay $3,390 to AFN’s counsel.

AFN’s motion to compel further responses to RPD Nos. 32 and 34 is GRANTED. Accordingly, within 20 days of the date of the filing of this Order, Prospect shall serve verified code-compliant further responses to RPD Nos. 32 and 34, without objection (except for attorney-client privilege and attorney work product doctrine, which have been preserved), and produce documents in accordance with those responses. To the extent any documents are withheld based upon attorney-client privilege and/or attorney work product doctrine, Defendant shall also serve a privilege log identifying all documents withheld and providing a factual basis for the privilege claimed.

AFN’s request for an award of monetary sanctions against Prospect in connection with its motion to compel further responses to the RPD is GRANTED IN PART in the amount of $1,890. Accordingly, within 20 days of the date of the filing of this Order, Prospect shall pay $1,890 to AFN’s counsel.