| Trony Solar etc. v. Marathoner Clean & Lean Power etc. | CASE NO. 113CV241286 | |
| DATE: 15 August 2014 | TIME: 9:00AM | 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 Thursday 14 August 2014. Please specify the issue to be contested when calling the Court and counsel.
On 15 August 2014, the following motions were argued and submitted: (1) the motion of plaintiff Trony Solar Holdings Company, Ltd. (“Trony”) to compel compliance with the Court’s order and for monetary sanctions, and (2) Trony’s motion to compel defendant Huashan Wang (“Wang”) to answer deposition questions and for monetary sanctions. Wang filed a formal opposition to the motion to compel compliance, in which he requests monetary sanctions, and to the motion to answer deposition questions, in which he does not request monetary sanctions.
Statement of Facts
This action arises from the alleged misappropriation of Trony’s confidential client lists, market research information and proprietary technology by Wang, a former Trony executive. Trony is an investment holding company involved in developing, manufacturing, and selling solar products. (Compl., p. 3:5-9.) On or about 12 January 2009, Trony hired Wang as a sales director responsible for developing the United States market. (Compl., p. 3:12-14.) In August of 2009, Trony appointed Wang as the director of its Product and Application Technology Center in China, in charge of new product research and development. (Compl., p. 4:24-28.)
About two years later, on 11 May 2011, Trony appointed Wang as the director of two subsidiaries specializing in the sales of solar products in Africa and south Asia. (Compl., p. 5:1-6.) As a high-ranking Trony executive, Wang had extensive access to Trony’s proprietary technology and trade secret information. (Compl., p. 3:16-18.) In 2012, Trony employees reported that Wang began working for another company, defendant Marathoner Clean & Lean Power, Ltd. (“Marathoner”), and was engaged in the research and development of solar products for Marathoner while still employed by Trony. (Compl., p. 5:11-15.)
In late October of 2012, Trony terminated Wang’s employment. (Compl., p. 5:16-18.) Trony alleges that, after Wang’s termination, he misappropriated its confidential information and proprietary technology to secure an unfair competitive advantage for Marathoner and other solar development companies he directs. (Compl., p. 5:19-28.)
In its complaint, Plaintiff alleges eight causes of action against Wang, his wife, and Marathoner for (1) breach of contract, (2) breach of fiduciary duty, (3) misappropriation of trade secrets in violation of the Uniform Trade Secrets Act, (4) tortious interference with contractual relations, (5) tortious interference with prospective economic damages, (6) unfair competition, (7) aiding and abetting, and (8) declaratory relief.
Discovery Disputes
On 22 November 2013, Trony noticed the deposition of Wang. After the parties could not agree on a suitable date for the deposition, Trony filed a motion to compel Wang’s appearance at deposition on 7 February 2014.
Meanwhile, on 26 November 2013, Trony served requests for production of documents, set one (“RPD”) on Wang. On 27 December 2013, Wang served responses consisting solely of objections. After discussions between counsel concerning the responses, Wang served amended responses, consisting of both objections and substantive responses. Dissatisfied with the amended responses, Trony’s counsel continued to meet and confer. Once it became clear that the parties could not informally resolve the dispute, Trony filed a motion to compel further responses to the RPD.
On 14 March 2014, the Court granted both the motion to compel Wang’s appearance at deposition and the motion to compel further responses to the RPD. The Court ordered Wang to serve verified code-compliant further responses to RPD Nos. 1-25, 27-34, 35, 40-41, 51-53, 60-63, 70, 112, and 145, without objections (except for attorney client privilege and attorney work product doctrine, which were preserved as to RPD Nos. 35 and 40-41), and produce responsive documents in accordance with the responses within 20 calendar days of the ruling. In addition, the Court ordered Wang to appear and be deposed within 60 calendar days of the ruling.
On 2 April 2014, Wang served amended responses to the RPD. The responses consisted solely of substantive responses. Dissatisfied with the amended responses, Trony’s counsel met and conferred with opposing counsel on or about 28 May 2014. During this conversation, Wang’s counsel indicated that Wang would not be providing additional documents.
In the meantime, on 12 May 2014, Wang appeared at his deposition and provided a full day of testimony. He refused, however, to answer a number of questions, including questions concerning his employment as a consultant at Omnivoltaic, a solar power company. Despite meeting and conferring at the deposition, counsel were unable to resolve the dispute. On 3 July 2014, counsel engaged in further meet and confer discussions, but remained unable to settle their differences.
Consequently, on July 11, 2014, Trony filed the instant motions to compel Wang to comply with the Court’s 14 March 2014 order and answer deposition questions. Wang filed his oppositions on 4 August 2014. On August 8, 2014, Trony filed its reply briefs.
Discussion
I. Motion to Compel Compliance with Court Order
Trony moves to compel compliance with the Court’s 14 March 2014 order, contending that Wang did not provide code-compliant further responses to the RPD. The relief sought by Trony is an order for terminating and evidentiary sanctions, further responses to the RPD, and monetary sanctions.
A. Nature of the Motion
To the extent that Trony is seeking further responses to the RPD, it is unclear whether the motion is being made pursuant to Code of Civil Procedure section 2031.310, subdivision (i), which authorizes the court to make those orders that are just when a party fails to comply with a court order compelling further responses to requests for production of documents, including the imposition of a monetary, issue, evidence, and terminating sanction, or section 2031.310, subdivision (a), which governs a standard fair motion to compel further responses to requests for production of documents.
While Trony’s motion is entitled a “Motion to Compel Compliance with Court Order,” it has many of the features of a typical motion to compel further responses to requests for production of documents. First, in its notice of motion, Trony states that its motion is brought under Code of Civil Procedure section 2031.310, subdivision (a). Second, Trony’s motion includes a declaration showing a good faith attempt to informally resolve the dispute. (See Code Civ. Proc., § 2031.310, subd. (b)(2).) There is no requirement that a party meet and confer prior to filing a motion to compel compliance with an order compelling further responses to requests for production of documents. (See Code Civ. Proc., § 2031.310, subd. (i).) Finally, in the first sentence of its reply brief, Trony affirmatively states: “This is a motion to compel further responses from Defendant Huashan Wang (‘Defendant’) following his failure to provide responses in accordance with the Court’s order.” (Reply, p. 1:2-3.)
Nevertheless, Trony’s motion is otherwise largely framed with reference to Wang violating the Court’s order. In fact, Trony cites to Code of Civil Procedure section 2031.310, subdivision (i)[1] in its memorandum of points and authorities for the proposition that the court may “make those orders that are just” in response to a party’s failure to obey an order compelling further responses to a request for the production of documents, and seeks sanctions that are only authorized under that subdivision.
Here, treating the request for further responses to the RPD as an item of relief under Code of Civil Procedure section 2031.310, subdivision (i) is more consistent with the overall framework of the present motion. For instance, in the 14 March 2014 order, the Court already analyzed the merits of the requests and Wang’s responses thereto, and found that Trony showed good cause exists for the RPD. Rehashing the Court’s prior analysis would serve no purpose. Accordingly, the Court will construe the request for further responses to the RPD as an item of relief sought under Code of Civil Procedure section 2031.310, subdivision (i).
B. Legal Standard
If a party fails to obey an order compelling further responses to requests for production of documents, the court may make those orders that are just, including the imposition of evidentiary and/or terminating sanctions. (Code Civ. Proc., § 2031.310, subd. (i).) “A trial court has broad discretion to impose discovery sanctions, but two facts are generally prerequisite to the imposition of nonmonetary sanctions… (1) absent unusual circumstances, there must be a failure to comply with a court order, and (2) the failure must be willful.” (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327; see also Liberty Mutual Fire Ins. Co. v. LcL Administrators, Inc. (2008) 163 Cal.App.4th 1093, 1102.) It is the moving party’s burden to establish the responding party’s failure to obey the earlier discovery order. (See Corns v. Miller (1986) 181 Cal.App.3d 195, 201.)
C. Meet and Confer
As an initial matter, Wang argues that Trony did not adequately meet and confer prior to filing this motion. As indicated above, there is no meet and confer requirement prior to filing a motion to compel compliance with an order compelling further responses to requests for production of documents. (See Code Civ. Proc., § 2031.310, subd. (i).) In any event, based upon the information supplied by the parties, Trony’s meet and confer efforts appear to be adequate. Accordingly, Wang’s argument is not persuasive.
D. Good Cause
Wang contends that Trony has not demonstrated good cause to compel the production of documents. Wang’s argument is without merit. There is no requirement that a party moving to compel compliance with an order compelling further responses to requests for production of documents establish good cause. (See Code Civ. Proc., § 2031.310, subd. (i).) In addition, in its 14 March 2014 order, the Court previously determined that good cause existed for the discovery sought. Accordingly, Wang’s argument lacks merit.
E. Compliance with 14 March 2014 Order
As indicated above, to comply with the Court’s 14 March 2014 order, Wang was required to provide verified, code-compliant further responses to RPD Nos. 1-25, 27-34, 35, 40-41, 51-53, 60-63, 70, 112, and 145. Trony contends that Wang failed to comply with the order because he did not provide code-compliant further responses to RPD Nos. 35, 40, 41, 53, 60, and 70.
1. RPD Nos. 35, 40, 41, 53 and 60
Trony contends that Wang’s responses to RPD Nos. 35, 40, 41, 53 and 60 are not code-compliant because he refuses to produce any responsive documents for the time period after his employment was terminated in October 2012. In his opposition, Wang does not address this argument.[2]
A review of Wang’s responses to RPD Nos. 35, 40, 41, 53, and 60 indicate that he agreed to produce “responsive documents for the time period January 2011 through his termination from Trony in October 2012” (RPD Nos. 35, 40, 41, and 60) and “responsive documents in his possession, custody or control up to the date of his termination by Trony” (RPD No. 53). However, the requests at issue request documents for the period of January 2011 to the date of the original service of the requests on 26 November 2013.
Pursuant to Code of Civil Procedure section 2031.210, the party to whom a request for production of documents has been directed shall respond by: (1) making a statement that the party will comply with the request, (2) making a representation that the party lacks the ability to comply, or (3) interposing an objection to the request.
Here, Wang’s responses to RPD Nos. 35, 40, 41, 53 and 60 are incomplete because he fails to either state that he will provide responsive documents from October 2012 until the present or that he lacks the ability to comply with the requests. Accordingly, Wang failed to comply with the portion of the Court’s order requiring him to provide further responses to these requests.
2. RPD No. 70
In contrast, Wang’s response to RPD No. 70 is not incomplete or evasive. The response reads, “Responding party has conducted a diligent search and reasonable inquiry and has already produced all responsive documents in his possession, custody or control (with family members’ private and unrelated calendar events redacted). To the best of responding party’s knowledge, additional responsive documents for the time period January 2011 through October 2012 would be in the possession, custody or control of Trony.”
Trony reads the last sentence of the response as a statement that Wang will not produce any documents from January 2011 through 2012 because the documents would be equally available to Trony. This argument is without merit. Considered as a whole, the response merely indicates that additional documents that are not in Wang’s possession, custody and control may be in Trony’s possession, custody and control. Accordingly, as Wang’s response to RPD No. 70 is not incomplete or evasive, Wang complied with this portion of the Court’s order.
F. Remedies for Noncompliance
Trony seeks nonmonetary sanctions, further responses to the RPD, and monetary sanctions against Wang to remedy his failure to comply with the Court’s order.
Trony contends that terminating or evidentiary sanctions are warranted because Wang has willfully refused to provide documents relating to his post-employment activities. In opposition, Wang indicates that he attempted in good faith to comply with the Court’s order.
Here, Wang provided code-compliant further responses to the vast majority of the RPD in compliance with this Court’s 14 March 2014 order. The defects in the remaining five responses appear to have been an oversight and can be easily corrected. As such, it appears that Wang did not willfully disobey the 14 March 2014 order. Accordingly, nonmonetary sanctions are not warranted.
Even if there was a basis to conclude that Wang willfully disobeyed the Court’s order, the Court finds that the imposition of a terminating or evidentiary sanction is too extreme under the current circumstances. (See Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1293 [sanctions must not go beyond those necessary to compel disclosure and compensate for costs incurred in enforcement of discovery].) Instead, the Court finds it appropriate to order that Wang serve code-compliant further responses to RPD Nos. 35, 40, 41, 53, and 60, and responsive documents in accordance with those responses.
Trony also requests monetary sanctions in the amount of $3,960 against Wang and his counsel to reimburse it for the reasonable expenses and attorney’s fees associated with bringing this motion.
The court may impose a monetary sanction against a party that fails to obey an order compelling a further response to a request for production of documents, 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. (Code Civ. Proc., § 2031.310, subd. (i).)
Here, Wang has not fully complied with the 14 March 2014 order. Although his disobedience was not willful, he has not acted 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 against Wang and his counsel is warranted.
Trony requests a total of $3,960 in monetary sanctions against Wang and his counsel. Trony’s counsel, Eric Suits, avers that he spent 7 hours preparing this motion and supporting documents at a rate of $440.00 per hour. While the hourly rate is reasonable, the amount of time spent preparing the motion, reviewing the opposition, and preparing the reply brief is not. The Court finds 6 hours a reasonable time for counsel to draft the motion, review the opposition, and prepare the reply. Accordingly, monetary sanctions are warranted in the amount of $2,640.
In conclusion, in consideration of the foregoing, to the extent that Trony seeks terminating and evidentiary sanctions, the motion is DENIED. To the extent that Trony requests a further response to RPD No. 70, the motion is DENIED. With regard to Trony’s request for further responses to RPD Nos. 35, 40, 41, 53, and 60, the motion is GRANTED. With regard to Trony’s request for monetary sanctions against Wang and his counsel, the motion is GRANTED IN PART in the amount of $2,640.
- Wang’s Request for Monetary Sanctions
Wang seeks monetary sanctions against Trony and its counsel for bringing this motion without substantial justification. As an initial matter, Wang does not identify a statutory basis for his request. In any event, as indicated above, Trony successfully demonstrated that Wang failed to comply with the Court’s 14 March 2014 order. Accordingly, Trony was substantially justified in bringing this motion, and Wang’s request for monetary sanctions is therefore DENIED.
II. Motion to Compel Wang to Answer Deposition Questions
Trony moves to compel Wang to answer 40 deposition questions.[3] The questions fall into four different categories.
The questions in the first category concern Omnivoltaic (Questions 1, 2, 10-12, 14-17, 19, 20, 25-29, 31, 33, and 36-39) (“Category 1”), the solar power company at which Wang is presently a consultant. The second category of questions concern compensation Wang receives as a consultant for Omnivoltaic (Questions 13, 18 and 21-23) (“Category 2”). The third category of questions relates to Wang’s children (Questions 7-9) (“Category 3”). The fourth category of questions involves questions to which Wang gave purportedly nonresponsive answers (Questions 3, 4, 6, 34, 35, and 40) (“Category 4”).
A. Legal Standards
If a deponent fails to answer a question at his or her deposition, the party seeking discovery may move for an order compelling an answer. (Code Civ. Proc., § 2025.480, subd. (a).) There is no requirement that the moving party show good cause to compel answers at a deposition. (Compare Code Civ. Proc., § 2025.40, subd. (b)(1) [showing of good cause required where motion pertains to production of documents described in deposition notice] with subd. (b)(2) [no good cause requirement where motion pertains to oral testimony].) A deponent who has objected to a question and refused to answer bears the burden of justifying such a refusal. (See Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221.)
B. Meet and Confer
Wang argues that Trony did not adequately meet and confer prior to filing this motion because its counsel only made one phone call concerning the dispute and did not refer to the questions at issue by reference to the deposition transcript.
A motion to compel answers at deposition shall be accompanied by a meet and confer declaration “showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc., §§ 2016.040, 2025.480, subd. (b).) A reasonable and good faith attempt at informal resolution entails something more than argument with opposing counsel. It requires that the parties present the merits of their respective positions with candor, specificity, and support. (Townsend, supra, 61 Cal.App.4th at pp. 1435, 1439.) The level of effort at informal resolution that satisfies the “reasonable and good faith attempt” standard depends upon the circumstances of the case. (Obregon, supra, 67 Cal.App.4th at p. 431.) The court has discretion to deny discovery absent efforts to meet and confer, but must consider whether a less drastic remedy is appropriate given the circumstances presented. (See Townsend v. Superior Court, supra, 61 Cal.App.4th at p. 1439, Obregon v. Superior Court, supra, 67 Cal.App.4th at p. 434.)
Trony’s counsel, Eric Suits, states that on 3 July 2014, he met and conferred with opposing counsel concerning Wang’s purportedly improper objections. (See Suits Decl., p. 5:7-8.) He further indicates that Wang’s counsel informed him that Wang would not provide further answers or agree to resume his deposition. (See Suits Decl., p. 5:8-10.)
In opposition, Wang’s counsel, Gretchen Birkheimer, avers that Mr. Suits contacted her on 2 July 2014 to meet and confer regarding Wang’s responses to deposition questions and counsel agreed to meet and confer on the matter the following day. (See Birkheimer Decl., pp. 1:27-28, 2:1.) She states that Mr. Suits did not identify specific questions or responses he contended were problematic. (See Birkheimer Decl., p. 2:2-4.) Instead, he identified fourteen categories of questions that Wang did not fully respond to and did not put forward any legal authority for Trony’s position. (See Birkheimer Decl., p. 2:4-7.) As such, Ms. Birkheimer indicated that Wang would not appear for a second day of deposition. (See Birkheimer Decl., p. 2:21-22.) On 9 July 2014, Mr. Suits contacted Ms. Birkheimer again to inquire whether Wang had changed his position. (See Birkheimer Decl., p. 3:1-3.) Ms. Birkheimer indicated that he had not. (See Birkheimer Decl., p. 3:3-5.)
Here, Trony meets its burden to show a good faith attempt at informal resolution of the dispute. While Trony may not have organized its meet and confer arguments in a manner that Wang preferred, it appears that Trony presented the merits of its position as to all of the questions at issue. Accordingly, the Court finds Trony’s meet and confer efforts to be adequate.
C. Objections
Wang refused to respond to the deposition questions at issue on the grounds that the information sought is confidential, impinges upon Omnivoltaic’s trade secrets, intrudes upon Wang’s right to privacy, and violates the tax return privilege.
1. Confidentiality
Wang declined to answer deposition questions in Categories 1 and 2 concerning Omnivoltaic on the ground that the information sought is confidential.
Objecting to discovery on the ground that it seeks “confidential information” is generally improper. (See Columbia Broadcasting System, Inc. v. Superior Court (1968) 263 Cal.App.2d 12, 23.) If the information sought by the discovery is of a confidential nature which a defendant does not want to be included in the public record, the defendant can move for a protective order. (Id.) Here, the parties signed a stipulated protective order regarding confidential information, which was filed on 18 February 2014. Thus, if Wang is concerned about public disclosure of information concerning Omnivoltaic, he may designate relevant portions of the transcript as confidential.
Wang contends that, regardless of the terms of the stipulated protective order, if he responds to these deposition questions, he will be in violation of a nondisclosure agreement entered into between him and Omnivoltaic. This argument is not well-taken. Even if Wang’s deposition testimony is considered a breach of the nondisclosure agreement, the breach would not be actionable. (See ITT Telecom Prods. Corp. v. Dooley (1989) 214 Cal.App.3d 307, 323 [party or witness’s statements disclosure of trade secrets in judicial proceeding privileged].) Accordingly, Wang’s objections on the ground of confidentiality are overruled.
2. Trade Secrets
Wang refused to answer deposition questions in Categories 1 and 2 concerning Omnivoltaic on the ground that by doing so he would be disclosing its trade secrets.
Wang has the burden of establishing the existence of a protected trade secret that might be divulged. (See Bridgestone/Firestone, Inc. v. Superior Court (1992) 7 Cal.App.4th 1384, 1393.) He has not met his burden. First, he merely asserts that any information concerning Omnivoltaic such as the identity of its employees or the country in which it is located, are trade secrets, but provides no supporting declaration or evidence in support of this assertion. Second, Wang does not even attempt to establish all of the elements of a trade secret. (See Civ. Code, § 3426.1, subd. (d); Cadence Design Systems, Inc. v. Avant! Corp. (2002) 29 Cal.4th 215, 221-222.) As such, Wang’s objections on this ground are without merit. Accordingly, Wang’s trade secret objections are overruled.
3. Privacy
Wang refused to answer deposition questions in Category 2 concerning his compensation from Omnivoltaic and Category 3 with regard to his children on the ground that they violate his right to privacy.
The right to privacy protects an individual’s “reasonable expectation of privacy against a serious invasion.” (Pioneer Electronics, Inc. v. Superior Court (2007) 40 Cal.4th 360, 370.) Where a serious invasion of the right to privacy is shown, the proponent of the discovery must demonstrate that the information sought is “directly relevant” to a claim or defense, and “essential to the fair resolution of the lawsuit.” (Britt v. Superior Court (1978) 20 Cal.3d 844, 859; see also Binder v. Superior Court (1987) 196 Cal.App.3d 893, 901 [holding “direct relevance” requires something more than an assertion that the requested discovery might lead to admissible evidence].) Once direct relevance has been demonstrated, the proponent of discovery must show that the information sought is not available through less intrusive means. (Allen v. Superior Court (1984) 151 Cal.App.3d 447, 449.) The Court must then carefully balance the right to privacy on the one hand, and the right of civil litigants to discover facts, on the other. (Pioneer Electronics, Inc. v. Superior Court, supra, 40 Cal.4th at p. 371.)
a. Compensation from Omnivoltaic
Wang contends that he has a reasonable expectation of privacy in the amount of compensation he receives from Omnivoltaic. This argument is persuasive. It is well established that a right to privacy exists as to a party’s confidential financial affairs. (See Cobb v. Superior Court (1979) 99 Cal.App.3d 543, 550.) Thus, the burden shifts to Trony to demonstrate that the amount of Wang’s compensation is directly relevant to a claim or defense and essential to the fair resolution of this lawsuit.
Trony argues that the amount and type of compensation Wang receives from Omnivoltaic will assist it in determining whether Wang is a key player in the formation and operation of Omnivoltaic. While this information may lead to admissible evidence, the information is not directly relevant to a claim or defense at issue in the lawsuit. (See Binder, supra, 196 Cal.App.3d 893 at p. 901.) Accordingly, Wang’s privacy objections concerning his compensation at Omnivoltaic are sustained.
b. Wang’s Children
Wang asserts that questions concerning the names of his children, the school they attend, and the number of times Wang sees his children clearly violate his right to privacy. Wang’s argument is meritorious. A person’s familial relationship indisputably serves as a valid foundation for the assertion of the right to privacy. (See Tylo v. Superior Court (1997) 55 Cal.App.4th 1379, 1388; Roberts v. United States Jaycees (1984) 468 U.S. 609, 619-620.) As such, the burden shifts to Trony to demonstrate that this information is directly relevant to a claim or defense and essential to the fair resolution of this lawsuit.
Trony contends that “testimony regarding Wang’s background, residence, ties to the community and related affiliations would help it seek other sources of information reasonably calculated to lead to the discovery of admissible evidence.” (Sep. Stmt., p. 16:20-22.) It is not apparent to the Court how this information would lead to the discovery of any admissible evidence, and there is no indication that Wang’s children are percipient witnesses. Accordingly, Wang’s privacy objections as to questions about his children are sustained.
4. Tax Return Privilege
Wang declined to answer deposition questions in Category 2 concerning his compensation from Omnivoltaic and Category 3 with regard to his children on the ground that his tax returns are privileged.
Pursuant to Revenue and Taxation Code section 19542, it is a misdemeanor for the Franchise Tax Board or any member thereof to disclose or make known in any manner information as to the amount of income or any particulars set forth in a tax return. In Webb v. Standard Oil Co. of California (1957) 49 Cal.2d 509, 513-514, the California Supreme Court interpreted this provision as providing a blanket privilege to taxpayers to withhold disclosure of their federal or state income tax returns. The purpose of the privilege is “to facilitate tax enforcement by encouraging a taxpayer to make full and truthful declarations in his return, without fear that his statements will be revealed or used against him for other purposes.” (Id. at p. 513.) The privilege extends to questions concerning specific entries in the return. (See Sav-On Drugs, Inc. v. Superior Court (1975) 15 Cal.3d 1, 7.)
A review of the questions at issue indicates that only one question (Question 21) concerns an entry on Wang’s tax return.[4] Accordingly, the objection to Question 21 on the ground of the tax return privilege is sustained. The objections to all other questions on the ground of the tax return privilege are otherwise overruled because the questions do not implicate the privilege.
5. Conclusion
In sum, the objections to Category 1 are overruled, the objections to Categories 2 and 3 on the ground of privacy are sustained, the objection to Question 21 on the ground of the tax return privilege is sustained, and objections on the ground of the tax return privilege as to all other questions are overruled. Accordingly, further answers to Category 1 are warranted and further answers to deposition questions in Categories 2 and 3 are unwarranted.
D. Nonresponsive Answers
Trony moves to compel Wang to provide further answers to several questions that it contends he did not fully answer (Category 4:3, 4, 6, 34, 35 and 40).
Question 3 reads, “Q. Whether or not you received a W-2, when did you cease your employment with Trony?” Rather than answer the question, Wang asked for clarification as to “what Trony is.” (See Suits Decl., Ex. A, pp. 27:9 – 29:22.)
Question 4 reads, “Q. Okay. Did you look for any documents relating to Trony after this lawsuit was filed? After seeking clarification as to the term “Trony”, Wang answered, “A. Correct. So I did not seek any information about Trony Science and Technology Shenzhen.” (See Suits Decl., Ex. A, pp. 33:22 – 34:7.)
In Question 6, Trony’s counsel asked Wang to name the person who asked him to see whether a company could be formed around the idea of Marathoner. After seeking clarification as to the period of time, Wang responded, “A. I’m not so sure.” (See Suits Decl., Ex. A, pp. 45:14 – 46:12.)
Question 34 reads, “Q. So why were you, acting on behalf of Marathoner, joining a Trony employee visiting a customer of any type?” In response, Wang asked for a definition of a “Trony customer” and indicated that he didn’t know because he did not know whether the people he met had anything to do with Trony. (See Suits Decl., Ex. A, pp. 133:22 – 136:6.)
Question 35 reads, “Q. Okay. Then answer my question. Do you have any idea who asked you to create this domain name for Marathoner?” Wang answered, “I paid for the registration of the domain name.” (See Suits Decl., Ex. A, pp. 149:17 – 151:14.)
Question 40 reads, “Q. Okay. Now, based on your understanding of Exhibit 15 and Exhibit 16, do you believe it is a fair conclusion to say that as of April 2012, there was at least 500 or more available samples from which the Lighting Africa panel could select 35?” In response, Wang stated, “I do not know Marathoner ever had products available for sampling.” (See Suits Decl., Ex. A, pp. 171:21 – 172:20.)
Trony contends that the answers to these questions are evasive and incomplete and, therefore, further answers should be required. In opposition, Wang argues that he answered all of the questions asked.
As indicated above, a party may move to compel an answer at deposition only if “a deponent fails to answer any question….” (Code Civ. Proc., § 2025.480, subd. (a).) Thus, if a deponent gives a partial or nonresponsive answer to the question, the burden is the deposing party to press for a complete answer at deposition. (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2014) ¶ 8:741, p. 8E-124.) Nevertheless, an unresponsive or unintelligible answer may be deemed to be a failure to answer if the deposing party established that the deponent’s responses frustrated the achievement of the deposition.(See Fuss v. Superior Court (1969) 273 Cal.App.2d 807, 818; In re Marriage of Lemen (1980) 113 Cal.App.3d 769, 783 [motion to compel proper where responses brought deposition to grinding halt].)
Here, while Wang’s responses to the above questions were not as full and complete as Trony would have preferred, he did provide at least a partial answer to each question asked and Trony did not press for complete answers. Moreover, Trony has not established that these responses were intended to or did in fact frustrate the achievement of the deposition. Despite the purportedly nonresponsive answers, Wang provided testimony for close to seven hours. (See Birkheimer Decl., p. 2:24-27.) Accordingly, further answers to deposition questions in Category 4 are unwarranted.
E. Trony’s Request for Monetary Sanctions
Trony seeks monetary sanctions against Wang and his counsel pursuant to Code of Civil Procedure section 2025.480, subdivision (j), which provides that the court shall impose a monetary sanction against any party who unsuccessfully makes or opposes a motion to compel an answer, 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.
Here, the Court sustained a number of Wang’s privacy objections and one of his objections on the ground of the tax return privilege. In addition, the Court found that further answers to depositions questions in Category 4 were unwarranted. Accordingly, Wang and his counsel acted with substantial justification and Trony’s request for monetary sanctions is DENIED.
Conclusion and Order
Trony’s motion to compel compliance with the Court’s 14 March 2014 order is GRANTED IN PART and DENIED IN PART as follows:
(1) To the extent that Trony seeks terminating and evidentiary sanctions, the motion is DENIED.
(2) To the extent that Trony requests a further response to RPD No. 70, the motion is DENIED.
(3) With regard to Trony’s request for further responses to RPD Nos. 35, 40, 41, 53, and 60, the motion is GRANTED. Accordingly, within 20 calendar days of the filing of this order, Wang shall serve verified, code-compliant further responses to RPD Nos. 35, 40, 41, 53, and 60, without objections, and produce documents in accordance with those responses.
(4) With regard to Trony’s request for monetary sanctions against Wang and his counsel, the motion is GRANTED IN PART in the amount of $2,640. Accordingly, Wang and/or his counsel shall pay $2,640 to Trony’s counsel within 20 calendar days of the filing of this order.
Wang’s request for monetary sanctions in connection with its opposition to the motion to compel compliance is DENIED.
The motion to compel Wang to answer deposition questions is GRANTED IN PART and DENIED IN PART. The motion is DENIED as to Questions 3, 4, 6-9, 13, 18, 21-23, 34-35, and 40. The motion is GRANTED as to Questions 1-2, 5, 14-17, 19-20, 24-33, and 36-39. Accordingly, Wang is ordered to appear and answer these questions at a mutually agreed upon date and time, within 20 calendar days of the filing of this order. Trony may also pose reasonably related follow-up questions, subject to Wang’s right to assert any applicable, justifiable and legally valid objections.
Trony’s request for monetary sanctions in connection with the motion compel Wang to answer deposition questions is DENIED.
| ____________________________
DATED: |
_________________________________________________
HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara |
[1] In its memorandum of points and authorities, Trony appears to have inadvertently cited Code of Civil Procedure section 2030.300, subdivision (c), the code section concerning failure to comply with an order to compel responses to a request for production of documents, instead of the code section concerning failure to comply with an order to compel further responses to a request for production of documents.
[2] Wang does acknowledge that the response to RPD No. 60 is nonresponsive due to a copy-and-paste error.
[3] For ease of reference, the Court will refer to the questions as numbered in the table of contents of Trony’s separate statement. (See Sep. Stmt., pp. i-ii.)
[4] The question reads, “Have you filed any income tax returns in the United States that reflect any activity of yours with Omnivoltaic?” (Sep. Stmt., p. 35:17-18.)
Link to this page