Judge: Andrew E. Cooper, Case: 20CHCV00479, Date: 2023-08-22 Tentative Ruling

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Case Number: 20CHCV00479    Hearing Date: August 22, 2023    Dept: F51

MOTION FOR PROTECTIVE ORDER

Motion filed: 3/17/23

MOVING PARTY: Defendant Sowers Construction, Inc. (“Defendant”)

RESPONDING PARTY: Plaintiff Thomas Allen (“Plaintiff”)

NOTICE: ok 

RELIEF REQUESTED: A protective order finding that Plaintiff’s Special Interrogatories, Set Two, are unduly burdensome, cumulative, repetitive, unwarranted, and oppressive, and that Defendant is excused from responding to the interrogatories. Defendant also requests monetary sanctions against Plaintiff in the amount of $4,559.50.

TENTATIVE RULING: The motion is partially granted. Defendant is excused from responding to Plaintiff’s Special Interrogatories, Set Two. Nos. 53–54, 58–59, 63–64, 68–69, 73–74, 78–79, 83–84, 88–89, 93–94, 98–99, 103–104, 108–109, 113–114, 118–119, 123–124, 128–129, 133–134, 138–139, 143–144, 148–149, 153–154, 158–159, 163–164, 168–169, 173–174, 178–179, 183–184, 188–189, 193–194, 198–199, and 203–204. Sanctions are denied.

REQUEST FOR JUDICIAL NOTICE: Defendant’s request for judicial notice is granted.

BACKGROUND

On 2/24/23, Plaintiff served his second set of Special Interrogatories on Defendant. On 3/17/23, Defendant filed the instant motion for a protective order excusing it from responding thereto. On 5/26/23, Plaintiff filed his opposition. On 6/2/23, Defendant filed its reply.

On 6/9/23, the Court ordered the parties to further meet and confer to attempt to resolve and/or narrow all outstanding discovery issues. On 7/31/23, the parties informed the Court that their meet and confer efforts were unsuccessful.

ANALYSIS

I.                   Meet and Confer

Counsel for the parties have represented to the Court that their meet and confer efforts were unsuccessful. (7/31/23 Minute Order.)

II.                Special Interrogatories

“When interrogatories have been propounded, the responding party, and any other party or affected natural person or organization may promptly move for a protective order. … The court, for good cause shown, may make any order that justice requires to protect any party or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc. § 2030.090, subds. (a), (b).)

“If the answer to an interrogatory would necessitate the preparation or the making of a compilation, abstract, audit, or summary of or from the documents of the party to whom the interrogatory is directed, and if the burden or expense of preparing or making it would be substantially the same for the party propounding the interrogatory as for the responding party, it is a sufficient answer to that interrogatory to refer to this section and to specify the writings from which the answer may be derived or ascertained.” (Code Civ. Proc. § 2030.230 [emphasis added].)

Here, Plaintiff’s Special Interrogatories seek information regarding 31 jobs under Sowers 3 in 2018 and 2019. (Ex. 1 to Daws Decl.) For each of these jobs, Plaintiff seeks “(i) the amount of money received from the client for each job, (ii) the dates Sowers received money from the client for each job and the total amount of money received on each date, (iii) the total amount of costs and expenses incurred for each job, (iv) the profit earned for each job, and (v) the amount paid to Plaintiff for his share of the profit for each job.” (Ibid.; Def.’s Mot. 7:8­–12.) In total, Plaintiff propounded 161 interrogatories on Defendant in his second set of Special Interrogatories.

Defendant seeks a protective order excusing it from answering the interrogatories, arguing that they “require the preparation of summaries and related calculations, are unduly compound, arguably require expert opinion, and otherwise would cause Sowers to incur tens of thousands of dollars in costs to properly respond.” (Def.’s Mot. 6:13–15.) Specifically, “answering these interrogatories necessarily requires the preparation of a summary of documents and detailed forensic calculations that are unnecessary and unwarranted. The inconvenience and the expense to Sowers to prepare such a summary of documents and detailed forensic calculations outweighs the value of the information sought.” (Id. at 15:24–27.)

Plaintiff argues that “Defendant’s continued refusal to produce the unredacted accounting documents has forced Plaintiff to serve these requests.” (Pl.’s Opp. 7:4–5.) Plaintiff further asserts that “Defendants have refused to adequately respond to discovery thus far, and have not provided any of the needed accounting information for Plaintiff to prove his case.” (Id. at 5:2–3.) Therefore, “Defendants must either respond to all discovery requests regarding each individual job, or they must provide unredacted copies of the accounting records so that Plaintiff can obtain the information that is needed to verify the amount of profits that Defendants earned and then determine the amount of profits that Defendants failed to pay Plaintiff.” (Id. at 5:23–26.)

The Court agrees with Plaintiff, and recognizes that while the preparation of the requested summaries and calculations may cause burden and expense to Defendant, Plaintiff has maintained that the requested financial information is essential to his claims regarding the amounts owed to him by Defendant. Moreover, it appears that Defendant’s reliance on Code of Civil Procedure section 2030.230 is inapposite because here, as Plaintiff asserts, the burden is not the same to each party. Defendant has not produced unredacted accounting records sufficient to allow Plaintiff to create the same calculations, and the potential burden on Plaintiff to prepare such reports is therefore much greater than that on Defendant.

Based on the foregoing, the Court partially grants Defendant’s motion, excusing Defendant from responding to the special interrogatories which seek the total amount of profit earned per job, and the identities of the person who procured the lead for each job.

III.             Sanctions

Defendant requests monetary sanctions in the total amount of $4,559.50 to be imposed on Plaintiff and his counsel. This amount includes: (1) 7.7 hours that attorney Daws spent working on the instant motion, preparing the reply, and appearing at the hearing at her hourly billing rate of $335.00 per hour; and (2) 4.4 hours that attorney Mahar spent preparing the motion at his hourly billing rate of $450.00 per hour. (Daws Decl. ¶¶ 20–22.)

As the Court finds that neither party was completely successful in bringing or opposing the instant motion, no monetary sanctions will be imposed against either party.

CONCLUSION

The motion is partially granted. Defendant is excused from responding to Plaintiff’s Special Interrogatories, Set Two. Nos. 53–54, 58–59, 63–64, 68–69, 73–74, 78–79, 83–84, 88–89, 93–94, 98–99, 103–104, 108–109, 113–114, 118–119, 123–124, 128–129, 133–134, 138–139, 143–144, 148–149, 153–154, 158–159, 163–164, 168–169, 173–174, 178–179, 183–184, 188–189, 193–194, 198–199, and 203–204. Sanctions are denied.