Case Name: West Valley Precision, Inc. v. Breault Research Organization, Inc., et al.
Case No.: 16-CV-292711

This is a breach of contract action initiated by plaintiff West Valley Precision, Inc. (“Plaintiff”) against defendants Breault Research Organization, Inc., Robert P. Breault, and Judith S. Breault (collectively “Defendants”). According to allegations in the complaint (“Complaint”), Defendants requested particular goods and services from Plaintiff in exchange for compensation requested in invoices. Defendants additionally agreed to pay 1.5% per month on balances overdue beyond 30 days and attorney’s fees and court costs in the event the amounts were untimely paid. Defendants failed to pay the amount listed on the November 13, 2015 invoice and all other invoices issued thereafter. Plaintiff asserts two causes of action for breach of contract and common counts to recover compensation due under the terms of their agreement.

The present matter involves a discovery dispute. On July 21, 2016, Defendants propounded requests for production, set one (“RPD”) on Plaintiff. (Walsh Decl., ¶ 3; Exh. A.) Plaintiff timely responded thereto with both objections and an agreement to produce responsive documents. It is undisputed that Plaintiff never produced documents in accordance with its statement of compliance. On April 20, 2017, Defendants propounded special interrogatories, set two (“SI”) on Plaintiff, to which Plaintiff responded with objection-only responses. (Id. at ¶¶ 6, 10; Exh. D.) Defendants considered the objections meritless and met and conferred with Plaintiff to obtain further responses to the SI. (Id. at ¶¶ 8-12.) At that time, Defendants also requested production pursuant to the statement of compliance. (Ibid.) The parties could not informally resolve the dispute and, consequently, Defendants presently move for an order compelling Plaintiff to produce responsive documents and provide further responses to the SI. Both parties also request an award of monetary sanctions.

I. Merits of the Motion

As a threshold matter, on July 11, 2017, Defendants filed a supplemental memorandum of points and authorities, arguing there is no statutory time-limit to file a motion to compel compliance. Plaintiff urges the Court to disregard the supplemental memorandum because it was not filed 21 court days prior to the hearing as required by Code of Civil Procedure section 1005, subdivision (b), which governs when moving papers must be filed. Plaintiff additionally contends the supplemental brief should be disregarded because when its length is added to the length of memorandum of points and authorities, the totality of pages exceeds the 15-page limit set forth by California Rule of Court, rule 3.1113(d). Plaintiff, however, fails to provide any legal authority stating the Court does not have discretion to hear an untimely supplemental brief or one in excess of the page limit. Further, it does not appear Plaintiff is prejudiced by the untimely filing of the brief because it responds to the issues raised therein. The Court will thus still consider the contents of the supplemental brief. Defendants’ counsel is admonished to comply with the California Rules of Court in the future.

A. Requests for Production

A party responding to an inspection demand may respond by representing that he or she is able to comply with the demand. (Code Civ. Proc., § 2031.210, subd. (a)(1)-(2).) If the responding party fails to permit inspection in accordance with its agreement to comply, the demanding party’s remedy is to file a motion compelling the responding party to comply with its statement of compliance. (Code Civ. Proc., § 2031.320.) In response to RPD Nos. 1-15, Plaintiff stated it would produce responsive documents. Defendants contend Plaintiff has failed to do so and thus now move to compel compliance.

The parties dispute whether this motion was timely filed. Defendants assert there is no time-limit to file this motion whereas Plaintiff insists the motion must have been filed within 45 days of service of the responses. In order to move for an order compelling compliance under Code of Civil Procedure section 2031.320 (“Section 2031.320”), all that has to be shown is the responding party’s failure to comply as agreed. (Code Civ. Proc., § 2031.320, subd. (a).) Under the statutory framework, a propounding party may move to compel initial responses, further responses, and compliance with a statement of compliance. Section 2031.320 and Section 2031.300, which govern motions to compel compliance and initial responses, do not state a statutory time-limit for bringing those motions. In contrast, Section 2031.310, which governs motions to compel further responses, expressly prescribes a 45-day limit to bring a motion under that provision. As Section 2031.310 expressly requires the motion be brought within 45 days, it is the only statute of the three provisions governing motions to compel placing a time limit on moving parties. If a party moving to compel further responses to inspection demands does not comply with the time-limit, the Court is without jurisdiction to hear the motion. (Sexton v. Super. Ct. (1997) 58 Cal.App.4th 1403, 1410.) On the other hand, the absence of any such limit in Sections 2031.320 and 2031.300 reflects there is no such statutory time-limit. (Standon v. Super. Ct. (1990) 225 Cal.App.3d 898, 903 [“No time limit is placed on such a motion.”]; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 404 [Section 2031.300 does not have a 45-day limit in contrast to Section 2031.310]; Weil & Brown, et al., Cal. Practice Guide: Civ. Pro. Before Trial (The Rutter Group 2016), ¶ 8:1482.) As such, this motion to compel compliance need not have been brought within 45 days of the service of the responses.

Plaintiff’s argument in opposition does not support a contrary conclusion. Plaintiff simply states it was the legislative intent to place a 45-day limit on all motions to compel. Plaintiff fails to support this argument with any legal authority and consequently does not substantiate its argument. As such, the motion to compel compliance is timely.

Turning to the merits of the motion, it is clear from Plaintiff’s argument that it has not produced any responsive documents even though it possesses them. Plaintiff contends it previously propounded inspection demands on Defendants when they were represented by prior counsel, Suzanne Brei (“Brei”). Plaintiff states Defendants then produced all documents possibly relevant to the issues in the case, and thus it is apparent they already possess every document responsive to the RPD. Plaintiff states its counsel had an agreement with Brei by which it did not need to produce any documents in response to the RPD because it was evident Defendants already possessed them. This argument is problematic because Brei submitted a declaration in support of the reply stating she never agreed to allow Plaintiff to forego production of documents. (Brei Decl., ¶¶ 4-7.) Defendants therefore dispute the existence of any agreement. Further, in light of such purported agreement, Plaintiff could have amended its responses reflecting the information sought was equally available to Defendants and it would not produce documents. However, Plaintiff failed to take such action, and now it must produce documents in accordance with its statement of compliance.

Accordingly, the motion as to RPD Nos. 1-15 is GRANTED. Plaintiff shall produce all documents responsive to defendant RPD Nos. 1-15 within his possession, custody, and control within 10 calendar days from notice of entry of this Order.

B. Special Interrogatories
A party may respond to an interrogatory by objecting. (Code Civ. Proc., § 2030.210, subd. (a).) The propounding party may move for an order compelling further responses if that party deems an objection is meritless. (Code Civ. Proc., § 2030.300, subd. (a).) Defendants move to compel further responses to SI Nos. 6-10 on the basis the objections are meritless.

SI Nos. 6-10 relate to the amount of fees Plaintiff’s counsel has billed while representing his client in the instant action. Plaintiff objected to each SI on the grounds of relevance, the attorney-client privilege, the attorney work product doctrine, and undue burden. Plaintiff did not attempt to justify its undue burden objection and it is therefore overruled. (See Kirkland v. Super. Ct. (2002) 95 Cal.App.4th 92, 98 [objecting party must justify its objections].)

As to the relevance objection, information is relevant to the subject matter if it might reasonably assist a party in evaluating its case, preparing for trial, or facilitating settlement. (Gonzalez v. Super. Ct. (1995) 33 Cal.App.4th 1539, 1546.) “Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence.” (Ibid., emphasis in original.) Courts liberally construe the relevance standard, and any doubts as to whether a request seeks information within the scope of discovery are generally resolved in favor of allowing discovery. (Colonial Life & Accident Ins. Co. v. Super. Ct. (1982) 31 Cal.3d 785, 790.)

Plaintiff insists the information sought is not relevant because attorney’s fees are “handled” post-judgment and the amount is decided after a determination of whether the prevailing party is entitled to them in the first instance. If there is entitlement, Plaintiff states “there might be some limited discovery, or there might not be” to determine the amount sought. (Opp., p. 9: lis. 12-13.) This argument is misplaced. As persuasively argued by Defendants, Plaintiff alleges the subject contract has an attorney’s fees provision, entitling it to attorney’s fees should it prevail. The amount of attorney’s fees sought may help Defendants evaluate the case and determine whether it should settle in order to minimize costs. The relevance objection is therefore overruled.

Turning to the attorney-client privilege and the attorney work product doctrine objections, it is not immediately apparent to the Court whether Plaintiff intended to justify them. Plaintiff copied and pasted its entire objection, underlined the portion stating the relevance, attorney-client privilege, and the attorney work product doctrine, and stated the objections are valid. Whereas Plaintiff argued in detail relative to the relevance objection, it advanced absolutely no argument in support of the other two objections. To the extent Plaintiff attempts to justify the objections by stating they are “valid,” it fails to substantiate its argument.

As to the attorney-client privilege, it is “codified in Evidence Code section 954, provides in pertinent part: ‘. . . the client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer[.]” (Southern Cal. Gas Co. v. Public Utilities Com. (1990) 50 Cal.3d 31, 37, internal citations omitted.) “‘The party claiming the privilege has the burden of establishing the preliminary facts necessary to support its exercise, i.e., a communication made in the course of an attorney-client relationship.’” (DP Pham, LLC v. Cheadle (2016) 246 Cal.App.4th 653, 665, citations omitted.) Because Plaintiff is completely silent as to this objection, it fails to establish the preliminary facts necessary to support the application of the attorney-client privilege. The objection is therefore unsubstantiated and overruled.

With respect to the attorney work product doctrine, it precludes the discovery of a writing that reflects an attorney’s impressions, conclusions, opinions, theories, or legal research. It also prevents the discovery of other attorney work product not specifically identified in section 2018.030 unless the denial of discovery will unfairly prejudice the party seeking the discovery. (Code Civ. Proc., § 2018.030, subd. (b).) The attorney work product doctrine evolved from the protection “against invading the privacy of an attorney’s course of preparation[.]” (Coito v. Super. Ct. (2012) 54 Cal.4th 480, 490, citations omitted; see also Fireman’s Fund Ins. Co. v. Super. Ct. (2011) 196 Cal.App.4th 1263, 1281 [stating the doctrine protects the “mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client’s case”].) Plaintiff has made no showing that interrogatories relating to its billing would reveal the mental processes of its attorney or that the doctrine would otherwise be implicated.

In sum, all of Plaintiff’s objections are overruled. Accordingly, the motion as to SI Nos. 6-10 is GRANTED. Plaintiff shall serve verified, code-compliant further responses, without objections, within 10 calendar days of this Order.

II. Requests for Sanctions

Defendants request an award of monetary sanctions against Plaintiff and its counsel in the amount of $3,740.00 pursuant to Code of Civil Procedure sections 2031.320, subdivision (b) and 2030.300, subdivision (b), which provide that sanctions shall be imposed against any party who unsuccessfully makes or opposes a motion to compel further responses to interrogatories or compel compliance with an agreement to produce unless the party subject to sanctions acted with substantial justification or other circumstances would make imposing sanctions unjust. As stated above, Defendants prevailed in bringing this motion. The Court finds Plaintiff did not act with substantial justification in opposing the motion and there are no circumstances that would otherwise make the imposition of sanctions unjust. As Defendants were successful in bringing this motion, they are entitled to an award of monetary sanctions.

Defendants request an award of $3,740.00, representing one hour of research conducted by Paul B. Walsh at an hourly rate of $225.00 and eleven hours of research conducted by Drew Williams at an hourly rate of $200.00. (Walsh Decl., ¶ 15.) Anticipated costs are also encompassed in the request, including 2 hours of time to draft the reply and 4 hours to attend the hearing, both at an hourly rate of $225.00. (Ibid.) The Court, however, only awards monetary sanctions for expenses actually incurred and does not award them for anticipated time. (See Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551.) In addition, given the relative simplicity of the motion, the Court finds 12 hours of work to be excessive. As such, the Court will award monetary sanctions for 1 hour of research at an hourly rate of $225.00 and 5 hours of work at an hourly rate of $200.00.

Accordingly, Defendants’ request for monetary sanctions is GRANTED IN PART in the amount of $1,225.00. Plaintiff and his counsel shall pay this sanction to Defendants’ counsel within 10 calendar days of this Order.

Plaintiff also requests an award of monetary sanctions in the amount of $7,500.00. Plaintiff’s request is deficient as he does not cite any statute authorizing an award of attorney’s fees. As such, the request is DENIED.