Case Name: Brad Sijin Lee v. Escugen Consulting Co., et al.
Case No.: 17CV311936

I. Background

Plaintiff Brad Sijin Lee (“Plaintiff”) alleges he was not fully compensated for consulting services provided to defendant Qing Zhou (“Zhou”) and his companies, namely defendants Escugen Consulting Company, Ltd. and Escugen Biotechnology Corporation (collectively, “Escugen Entities”). Plaintiff alleges he agreed to receive a deferred salary payment after Escugen Entities received their next round of funding, but that he expected this deferred payment to include compensation for work he performed prior to March 1, 2017. Zhou, however, asserted Plaintiff would start earning a salary on March 1, 2017, and would not receive retroactive compensation for work performed prior to that date. Plaintiff alleges Zhou’s refusal to compensate him for all the work he performed constituted a breach of their agreement. He asserts causes of action against Zhou and Escugen Entities (collectively, “Defendants”) for: (1) breach of contract; (2) false promise; (3) breach of fiduciary duty (against Zhou only); and (4) unfair competition.

On September 26, 2018, Plaintiff served Defendants via email with requests for production of documents, set one (“RPD”) and special interrogatories, set one (“SI”). (Pierz Decl., Exs. A, B, J–K, M.) Defendants emailed their responses to the RPD and SI on October 31, 2018. (Pierz Decl., Exs. L, N.) They objected and provided some substantive responses to the requests. (Pierz Decl., Exs. L, N.) Plaintiff asserted the responses were untimely and were not code-compliant. (Pierz Decl., Exs. C–F, H–I.) The parties failed to informally resolve their discovery dispute, and so Plaintiff filed a motion to compel Defendants to provide further responses to RPD and SI. In light of Plaintiff’s assertion that Defendants waived the right to object to the requests, they filed a motion for relief from waiver of their objections.

II. Discussion

To evaluate the sufficiency of Defendants’ objections and responses to the SI and RPD, the Court necessarily must determine whether they waived their objections in the first instance. Accordingly, the Court first considers Defendants’ motion for relief from waiver before evaluating Plaintiff’s motion to compel further responses.

A. Motion for Relief from Waiver

When a party fails to timely respond to an inspection demand or interrogatory, that party waives the right to object on any ground including privilege and the work-product doctrine. (Code Civ. Proc., §§ 2030.290, 2031.300.) A court may relieve the responding party from this waiver if it determines that the party failed to timely respond as a result of mistake, inadvertence, or excusable neglect and subsequently served a substantially code-compliant response to the request. (Code Civ. Proc., §§ 2030.290, subds. (a)(1)–(2), 2031.300, subds. (a)(1)–(2).)
Defendants conclude, without more, that their responses to the SI and RPD substantially comply with the Code of Civil Procedure. For the reasons that follow, their conclusion is not supported by the record.

“The party to whom interrogatories have been propounded shall respond in writing under oath separately to each interrogatory by any of the following: [¶] (1) An answer containing the information sought to be discovered. [¶] (2) An exercise of the party’s option to produce writings. [¶] (3) An objection to the particular interrogatory.” (Code Civ. Proc., § 2030.210, subd. (a); see generally Coy v. Super. Ct. (1962) 58 Cal.2d 210, 216.) “Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits.” (Code Civ. Proc., § 2030.220, subd. (a).) “If an objection is made to an interrogatory or to a part of an interrogatory, the specific ground for the objection shall be set forth clearly in the response.” (Code Civ. Proc., § 2030.240, subd. (b).) “If an interrogatory cannot be answered completely, it shall be answered to the extent possible.” (Code Civ. Proc., § 2030.220, subd. (b).) Similarly, “[i]f only a part of an interrogatory is objectionable, the remainder of the interrogatory shall be answered.” (Code Civ. Proc., § 2030.240, subd. (a).)

As with interrogatories, a party must separately respond to each request for production propounded. (Code Civ. Proc., § 2031.210, subd. (a).) The responding party may object or state whether it will comply or is unable to comply with the demand. (Code Civ. Proc., § 2031.210, subds. (a)(1)–(3).) If the responding party objects, the response must “[s]et forth clearly the extent of, and the specific ground for, the objection,” including by identifying with particularity the document to which the objection is being made. (Code Civ. Proc., § 2031.240, subds. (b)(1)–(2).) If a request is objectionable in part, the responding party must state whether it otherwise will comply or is unable to comply with the remainder of the request. (Code Civ. Proc., § 2031.240, subd. (a).) When a party states it will comply, it must clearly state whether it is complying in whole or in part and that it will produce all documents “in the possession, custody, or control of that party and to which no objection is being made….” (Code Civ. Proc., § 2031.220.) A responding party’s representation of inability to comply with a demand “shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand.” (Code Civ. Proc., § 2031.230.) The party must identify the reason for the inability to comply and provide information about any other person or organization believed to have the requested documents. (Code Civ. Proc., § 2031.230.)

Defendants responded to the SI by referencing general prefatory objections. Because a party must respond separately to each request, general prefatory objections are not code-compliant. Additionally, they appear to partially object to some requests without otherwise answering the remainder of each interrogatory. Thus, many of their responses are incomplete.

Defendants’ responses to the RPD are problematic for the same reasons. Defendants again rely on general prefatory objections and neither these general objections nor the few objections interposed to individual requests comply with the particularity requirements set forth in Code of Civil Procedure section 2031.240. Additionally to the extent Defendants provided substantive responses to the requests “subject to and without waiving” their objections, their responses are incomplete because they do not identify the documents withheld, the documents they will produce, and the reason they are unable to produce some documents. (Ryan Decl., Ex. A at p. 9.)

For these reasons, and given the absence of legal analysis from Defendants to support a contrary conclusion, the Court finds the untimely responses Defendants served to the SI and RPD are not substantially code-compliant.

Next, Defendants state their untimeliness resulted from inadvertence and/or excusable neglect. Inadvertence and excusable neglect within the meaning of the Civil Discovery Act are subject to the same definitions and standards applicable under Code of Civil Procedure section 473, subdivision (b). (City of Fresno v. Super. Ct. (1988) 205 Cal.App.3d 1459, 1466–67.) As relevant here, “[i]nadvertence is defined as lack of heedfulness or attentiveness, inattention, fault from negligence. [Citations.]” (Baratti v. Baratti (1952) 109 Cal.App.2d 917, 921.) Excusable neglect “is that neglect which might have been the act of a reasonably prudent person under the same circumstances.” (Ibid.; see also Toho-Towa Co. v. Morgan Creek Productions, Inc. (2013) 217 Cal.App.4th 1096, 1112.)

Defendants’ counsel states she correctly calendared the deadline for responding to the SI and RPD but neglected to serve responses until October 31 due to an “oversight.” (Ryan Decl., ¶¶ 4, 6–7.) Because Defendants’ counsel states she correctly calendared the deadline and does not otherwise illuminate the nature of her oversight or provide an explanation about what happened, there is insufficient evidence to support a finding of inadvertence or excusable neglect. (See, e.g., Younessi v. Woolf (2016) 244 Cal.App.4th 1137, 1146–47 [conclusory declaration was insufficient to establish inadvertence or excusable neglect].)

For these reasons, Defendants do not demonstrate they should be relieved from the waiver of their objections. Their motion is therefore DENIED.

B. Motion to Compel Further Responses

Plaintiff moves to compel Escugen Entities to provide further responses to SI Nos. 1–5 and RPD Nos. 8–10, 13–14, 17, 19, and 21 and Zhou to provide further responses to RPD Nos. 8–10, 14, 17–19, and 21.

In presenting his motion, he makes several problematic and erroneous statements about the nature of his motion and the statutory requirements that apply. Plaintiff states “[w]here, as here, the Defendants have failed to serve timely responses, the motion to compel responses occurs under §§ 2030.290(b) and 2031.300(b) and thus relieves the moving party of both the 45-day deadline to file a motion to compel and the meet and confer requirement of §§ 2030.300 and 2031.310.” (Mem. of Pts. & Auth. at p. 9:12–14.) This is an inaccurate statement of the law and circumstances of the present motion.

Code of Civil Procedure sections 2030.290 and 2031.300 establish when a party may move for an order compelling initial responses to interrogatories and inspection demands. Those statutes do not govern motions to compel further responses brought under Code of Civil Procedure sections 2030.300 and 2031.310 or otherwise operate to excuse any statutory requirement in sections 2030.300 and 2031.310. Plaintiff indisputably moves to compel further responses. This is apparent from the fact that Defendants served initial responses before he filed his motion and is also reflected in the papers he presents, including a separate statement. Accordingly, contrary to what Plaintiff asserts, his motion to compel further responses is governed by sections 2030.300 and 2031.310, not by sections 2030.290 and 2031.300.

A party must meet and confer before moving to compel further responses to inspection demands and interrogatories. (Code Civ. Proc., §§ 2030.300, subd. (b), 2031.310, subd. (b)(2).) And so, Plaintiff’s assertion that he was excused from meeting and conferring and did so only as a courtesy is incorrect.

He also erroneously asserts that “though not required to do so, [he] has filed his notice and motion within 45 days of the service of Defendants’ responses.” (Mem. of Pts. & Auth. at p. 10:1–2.) Plaintiff’s motion is, indeed, subject to the 45-day deadline set forth in Code of Civil Procedure sections 2030.300, subdivision (c) and 2031.310, subdivision (c). Because Defendants did not agree to extend his deadline for filing a motion to compel (Pierz Decl., Ex. I), he was required to give notice of his motion within 45 days of service of their responses. The 45-day deadline ran from October 31, 2018, until December 15, 2018. December 15, 2018, was a Saturday, and so Plaintiff had until Monday, December 17, 2018, to file his motion. (See Code Civ. Proc., § 12a [computation of time].) Although he did timely serve and file his motion on the last day to do so, he was statutorily required to do so and would have waived the right to compel further responses had he filed his motion later. (See New Albertsons, Inc. v. Super. Ct. (2008) 168 Cal.App.4th 1403, 1427–28; see also Vidal Sassoon, Inc. v. Super. Ct. (1983) 147 Cal.App.3d 681, 685 [deadline for motion to compel is mandatory and jurisdictional].)

Having clarified these matters, the Court turns to the merits of the motion.

1. SI

The propounding party may move for an order compelling a further response to an interrogatory if the responding party’s answer is evasive or incomplete or an objection lacks merit or is too general. (Code Civ. Proc., § 2030.300, subd. (a).) “While the party propounding interrogatories may have the burden of filing a motion to compel if it finds the answers it receives unsatisfactory, the burden of justifying any objection and failure to respond remains at all times with the party resisting an interrogatory.” (Williams v. Super. Ct. (2017) 3 Cal.5th 531, 541.)

Escugen Entities waived their objections to SI Nos. 1–5. Additionally, irrespective of this waiver, they do not substantiate their objections on the ground of relevance—the only ground they address—with a reasoned explanation based on the applicable legal standard. As for SI No. 1, which is the only request they seemed to answer, their statement directing Plaintiff to “the documents produced by both parties” that “speak for themselves” is neither a straightforward answer nor a code-compliant exercise of the option to produce documents. (See Code Civ. Proc., §§ 2030.210–2030.230.) For these reasons, Escugen Entities’ responses are inadequate and further responses to SI Nos. 1–5, without objections, are warranted.

2. RPD

The propounding party may move for an order compelling a further response to an inspection demand if the responding party’s substantive response or objection is inadequate. (Code Civ. Proc., § 2031.310, subd. (a).) But when moving to compel a further response to an inspection demand, the propounding party must first “set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).) “To establish good cause, a discovery proponent must identify a disputed fact that is of consequence in the action and explain how the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact.” (Digital Music News, LLC v. Super. Ct. (2014) 226 Cal.App.4th 216, 224, disapproved on another ground in Williams, supra, 3 Cal.5th at p. 557, fn. 8.) If the demanding party establishes good cause, the responding party must, then, justify his or her objections. (Kirkland v. Super. Ct. (2002) 95 Cal.App.4th 92, 98.)

RPD Nos. 8–10 seek communications and documents pertaining to the end of Defendants’ business relationship with a man named Robert. RPD Nos. 13–14 and 17 seek communications about an investor meeting that Plaintiff helped Defendants prepare for as well as the draft agreement that was to be presented at the investor meeting. RPD Nos. 18–19 seek documents and communications pertaining to Zhou’s compensation and Plaintiff’s consulting work. Finally, RPD No. 21 seeks documents pertaining to an angel investment made in November 2017. Plaintiff does not explicitly address whether there is good cause for all of these discovery requests, but he does generally address the relevance of some of the requests at issue for the purpose of arguing Defendants’ relevance objections lack merit.

With respect to RPD Nos. 8–10, Plaintiff explains that the departure of the former colleague that is the subject of the requests resulted in his being hired to do consulting work for Defendants. He states the circumstances surrounding the departure of this former colleague may lead to the discovery of admissible evidence about why Zhou defrauded him into providing consulting services. Thus, Plaintiff adequately articulates facts establishing there is good cause for RPD Nos. 8–10.

As for RPD Nos. 13–14, 17, and 19, Plaintiff does not provide any explanation that supports a finding of good cause. To be clear, he addresses neither good cause nor relevance as a general matter. There is no discussion of the nature and substance of these requests in any of the papers presented to the Court and it is not self-evident there is good cause for these requests. Thus, Plaintiff does not establish good cause for RPD Nos. 13–14, 17, and 19.

Plaintiff asserts RPD No. 18 will provide insight into the structure and management of Escugen Entities. He does not explain and it is fundamentally unclear how Zhou’s financial records will illuminate facts about Escugen Entities. Thus, Plaintiff does not establish good cause for RPD No. 18.

RPD No. 21 seeks documents pertaining to an angel investment made in November 2017. Defendants stated in response to a form interrogatory that Plaintiff waived compensation for work performed prior to the close of that round of financing. Plaintiff disputes this contention. While it is apparent the date of the financing may be relevant to Plaintiff’s claim, he does not articulate and it is not obvious how there is good cause for “all documents and evidence relating to the financing.” (Pierz Decl., Ex. J at p. 7.) Accordingly, he does not make a fact-specific showing of good cause for RPD No. 21.

In summary, Plaintiff makes a threshold showing of good cause for RPD Nos. 8–10 but not RPD Nos. 13–14, 17–19 and 21. Thus, the Court solely considers the sufficiency of the responses to RPD Nos. 8–10 below. Further responses to the remaining requests are not warranted.

Defendants provided objection-only responses to RPD Nos. 8–10. They objected to each request on the ground of relevance and additionally relied on their general prefatory objections. As explained above, the general prefatory objections are improper. And, in any event, they waived the right to object on any ground. Incidentally, Defendants do not provide a clear explanation based on the applicable legal standard to substantiate their relevance objections. Accordingly, further responses to RPD Nos. 8–10, without objections, are warranted.

3. Conclusion

For the reasons set forth above, Plaintiff’s motion to compel Defendants to provide further responses to SI Nos. 1–5 and RPD Nos. 8–10, 13–14, 17–19, and 21 is GRANTED IN PART and DENIED IN PART. Escugen Entities shall provide further, code-compliant responses without objections to SI Nos. 1–5 and RPD Nos. 8–10 within 20 calendar days of the Court’s order. Zhou shall provide further, code-compliant responses without objections to RPD Nos. 8–10 within 20 calendars days of the Court’s order.