Judge: Christopher K. Lui, Case: 22STCV28325, Date: 2023-09-14 Tentative Ruling

Case Number: 22STCV28325    Hearing Date: March 5, 2024    Dept: 76

Pursuant to California Rule of Court 3.1308(a)(1), the Court does not desire oral argument on the motion addressed herein.  Counsel must contact the staff in Department 76 to inform the Court whether they wish to submit on the tentative, or to argue the matter.  As required by Rule 3.1308(a), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to appear and argue.

Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776.

Per Rule of Court 3.1308, if notice of intention to appear is not given, the Court may adopt the tentative ruling as the final ruling.

Plaintiff alleges that Defendant Zelocchi stole Plaintiff’s laptop which contained a cryptocurrency wallet, and Zelocchi tried to extort money from Plaintiff to give back the laptop. However, Defendant Zelocchi then kidnapped Plaintiff and threatened him. Plaintiff was able to escape. Defendant Do was allegedly assisting Defendant Zelocchi in decrypting the laptop password to access the cryptocurrency. 

Plaintiff hired Defendants Childs and Paramount Investigative Services to watch Defendant Do so that Plaintiff could contact law enforcement when Do left the laptop unattended at his home. However, Defendant Childs allegedly had conspired with Zelocchi, and did not perform any of the surveillance for which Plaintiff had paid.

Thereafter, the Defendants engaged in defamation and extortion activities against Plaintiff.

Defendant Enzo Zelocchi demurs to the Complaint. 

Plaintiff moves for a protective order limiting discovery propounded by Defendant Kenneth Childs, and requests the imposition of sanctions. 

TENTATIVE RULING

Defendant Enzo Zelocchi’s demurrer to the second, third, fourth, sixth and twelfth causes of action is OVERRULED. 

Defendant is ordered to answer the Complaint within 10 days.

Plaintiff Adam Iza’s motion for a protective order and request for sanctions is DENIED without prejudice. 

ANALYSIS

Demurrer

Meet and Confer

            The Declaration of John Sullivan reflects that Defendant’s counsel satisfied the meet and confer requirement set forth in Civ. Proc. Code, § 430.41.

Discussion

            Defendant Enzo Zelocchi demurs to the Complaint as follows:

1.         Second Cause of Action (Extortion).

            Defendant argues that Plaintiff does not allege threats of the use of force or actual use of force to obtain property from another. (Penal Code, § 518.)

(a) Extortion is the obtaining of property or other consideration from another, with his or her consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right.

 

(b) For purposes of this chapter, “consideration” means anything of value, including sexual conduct as defined in subdivision (b) of Section 311.3, or an image of an intimate body part as defined in subparagraph (C) of paragraph (4) of subdivision (j) of Section 647.

 

(c) Notwithstanding subdivision (a), this section does not apply to a person under 18 years of age who has obtained consideration consisting of sexual conduct or an image of an intimate body part.


     (Pen. Code § 518 [bold emphasis added])

 

Fear, such as will constitute extortion, may be induced by a threat of any of the following:

 

1. To do an unlawful injury to the person or property of the individual threatened or of a third person.

 

2. To accuse the individual threatened, or a relative of his or her, or a member of his or her family, of a crime.

 

3. To expose, or to impute to him, her, or them a deformity, disgrace, or crime.

 

4. To expose a secret affecting him, her, or them.

 

5. To report his, her, or their immigration status or suspected immigration status.


     (Pen. Code § 519 [bold emphasis added].)

 

Here, Plaintiff has alleged the wrongful use of fear to obtain money by threat of unlawful injury to Plaintiff’s property, i.e., keeping his laptop containing Bitcoin. (Complaint, ¶ 56.) Plaintiff actually paid money in the total sum of $361,422 due to such threats. (Id. at ¶ 62.) This cause of action is sufficiently pled.

 

The demurrer to the second cause of action is OVERRULED.

 

2.         Third Cause of Action (Intentional Infliction of Emotional Distress).

 

            Defendant argues that there are insufficient facts pled to support this cause of action.

 

“The elements of the tort of intentional infliction of emotional distress are: ‘ “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. …” Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.’ [Citation.]” (Citation omitted.) “It is not enough that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware.” (Ibid.)

 

(Catsouras v. Department of California Highway Patrol (2010) 181 Cal.App.4th 856, 874-75.)

 

            Here, the allegation that on November 20, 2021, Defendant Zelocchi abducted IZA, during which abduction he brandished a gun at IZA and taunted him that he had other weapons (Complaint, ¶ 65.b) The details of this abduction are set forth in ¶ 16. This is sufficient to support the IIED cause of action, and thus, this cause of action survives demurrer.

 

            A demurrer does not lie to only part of a cause of action or a particular type of damage or remedy. (See Kong v. City of Hawaiian Gardens Redevelopment Agency (2003) 108 Cal.App.4th 1028, 1046; PH II, Inc. v. Superior Court (Ibershof) (1995) 33 Cal.App.4th 1680, 1682.)  The proper procedure is to bring a motion to strike the substantively defective allegation. (Id. at 1682-83.)

 

            The demurrer to the third cause of action is OVERRULED.

 

3.         Fourth Cause of Action (Fraud).

 

            Defendant alleges that this cause of action is not pled with the requisite specificity.

 

            The elements of a cause of action for a false promise constituting fraud or deceit are: “(1) a promise made regarding a material fact without any intention of performing it; (2) the existence of the intent at the time of making the promise; (3) the promise was made with intent to deceive or with intent to induce the party to whom it was made to enter into the transaction; (4) the promise was relied on by the party to whom it was made; (5) the party making the promise did not perform; (6) the party to whom the promise was made was injured.” (Regus v. Schartkoff (1957) 156 Cal.App.2d 382, 389.)

 

          As stated in Service By Medallion v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1816:

 

"An action for promissory fraud may lie where a defendant fraudulently induces the plaintiff to enter into a contract." (Lazar v. Superior Court (1996) 12 Cal. 4th 631, 638 [49 Cal. Rptr. 2d 377, 909 P.2d 981].) The action is one of deceit, which requires proof that the defendant made a misrepresentation of fact or a promise without any intention of performing it. (Civ. Code, § 1710.) A complaint for fraud must allege the following elements: (1) a knowingly false representation by the defendant; (2) an intent to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages. (Croeni v. Goldstein (1994) 21 Cal. Cal. App. 4th 754, 758 [26 Cal. Rptr. 2d 412].) Every element must be specifically pleaded. (Tarmann v. State Farm  Mut. Auto. Ins. Co. (1991) 2 Cal. Cal. App. 4th 153, 157 [2 Cal. Rptr. 2d 861].)

 

            “Consequently, in pleading the tort it is indispensable to set forth the falsity of the promise at the time it was tendered. (Citation omitted.) In so differentiating a false promise from the great bulk of broken promises, the allegations necessary to show contemporaneous intention not to perform should be clear, specific, and unequivocal. (Citations omitted.)” (Hills Transp. Co. v. Southwest Forest Industries, Inc. (1968) 266 Cal.App.2d 702, 708.)

 

            “The mere failure to carry out a promise is not a tort, and it is therefore essential, in pleading fraud consisting of a false promise, to allege the elements of fraud.” (Maynes v. Angeles Mesa Land Co. (1938) 10 Cal.2d 587, 589.)

 

Fraud must be pleaded with specificity rather than with “ ‘general and conclusory allegations.’ ” (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184 [132 Cal. Rptr. 2d 490, 65 P.3d 1255].)  The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made, and, in the case of a corporate defendant, the plaintiff must allege the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made. (Lazar v. Superior Court, supra, 12 Cal.4th at p. 645.)

 

We enforce the specificity requirement in consideration of its two purposes. The first purpose is to give notice to the defendant with sufficiently definite charges that the defendant can meet them. (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216 [197 Cal. Rptr. 783, 673 P.2d 660].) The second is to permit a court to weed out meritless fraud claims on the basis of the pleadings; thus, “the pleading should be sufficient ‘ “to enable the court to determine whether, on the facts pleaded, there is any foundation, prima facie at least, for the charge of fraud.” ’ ” (Id. at pp. 216–217.)

 

(West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793.)

 

            Here, ¶ 72 sufficiently pleads the details of the misrepresentation made by Defendant Zelocchi in November 2021. ¶ 73 alleges that Zelocchi did not give Plaintiff the actual laptop, but rather an identical one that had a logger device to track the password when Plaintiff typed it in. (Id. at ¶ 73.) A jury can infer from the fact that a dummy laptop was provided that Defendant Zelocchi did not intend to return Plaintiff’s actual laptop containing the Bitcoin when Zelocchi indicated he would do so in return for payment. The details of the exact date of the misrepresentation can be ascertained through discovery. This cause of action is sufficiently pled.

 

            The demurrer to the fourth cause of action is OVERRULED.

 

4.         Sixth Cause of Action (Trade Libel).

 

            Defendant argues that Plaintiff does not allege defamation of the quality of Plaintiff’s services or goods.

 

“Trade libel is the publication of matter disparaging the quality of another's property, which the publisher should recognize is likely to cause pecuniary loss to the owner. [Citation.] The tort encompasses ‘all false statements concerning the quality of services or product of a business which are intended to cause that business financial harm and in fact do so.’ [Citation.] [¶] To constitute trade libel, a statement must be false.” (Citation omitted.)

(City of Costa Mesa v. D'Alessio Investments LLC (2013) 214 Cal.App.4th 358, 376.)

 

            ¶ 88 refers to the disparagement of the qualify of Iza’s service, as set forth in the fifth cause of action. ¶ 10 alleges that Plaintiff Iza is the founder and CEO of Zort, Inc. ¶ 81.b alleges that Defendant Zelocchi published statements that Zort is a front for money laundering of stolen cryptocurrency. This is sufficient to allege a false statement about Zort’s services. This cause of action is sufficiently pled.

 

            The demurrer to the sixth cause of action is OVERRULED.

 

5.         Twelfth Cause of Action (Violation of the Bane Act, Civil Code, § 52.1).

 

            Defendant argues that a Bane Act violation cannot be asserted against a private individual except in extraordinary circumstances, citing Jones v. Kmart (1998) 17 Cal.4th 329, 332 – 336, and that Plaintiff has not alleged that Zelocchi works for a government agency.

 

            This cause of action is based on an alleged violation of Civil Code, § 52.1, which provides in pertinent part as follows:

 

(b) If a person or persons, whether or not acting under color of law, interferes by threat, intimidation, or coercion, or attempts to interfere by threat, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state, the Attorney General, or any district attorney or city attorney may bring a civil action for injunctive and other appropriate equitable relief in the name of the people of the State of California, in order to protect the peaceable exercise or enjoyment of the right or rights secured. An action brought by the Attorney General, any district attorney, or any city attorney may also seek a civil penalty of twenty-five thousand dollars ($25,000). If this civil penalty is requested, it shall be assessed individually against each person who is determined to have violated this section and the penalty shall be awarded to each individual whose rights under this section are determined to have been violated.

 

(c) Any individual whose exercise or enjoyment of rights secured by the Constitution or laws of the United States, or of rights secured by the Constitution or laws of this state, has been interfered with, or attempted to be interfered with, as described in subdivision (b), may institute and prosecute in their own name and on their own behalf a civil action for damages, including, but not limited to, damages under Section 52, injunctive relief, and other appropriate equitable relief to protect the peaceable exercise or enjoyment of the right or rights secured, including appropriate equitable and declaratory relief to eliminate a pattern or practice of conduct as described in subdivision (b).

 

. . .

 

(k) Speech alone is not sufficient to support an action brought pursuant to subdivision (b) or (c), except upon a showing that the speech itself threatens violence against a specific person or group of persons; and the person or group of persons against whom the threat is directed reasonably fears that, because of the speech, violence will be committed against them or their property and that the person threatening violence had the apparent ability to carry out the threat.

 

     (Civ Code § 52.1(b), (c), (k)[bold emphasis added].)

 

The case Defendant cites—Jones v. Kmart—recognizes that a private actor may technically violate this statute if there is an attempted or completed interference with a right secured by the Constitution or federal or state laws, accompanied by a form of coercion. In Jones, the Fourth Amendment right against unreasonable searches and seizures was the underlying violation, but only a government agent can violate that right. The Jones court did not hold that only a government agent can violate the Bane Act.

 

Plaintiffs do not deny that defendants' actions were those of private actors and that the state played no role in causing Jones's losses. They contend, however, that because section 52.1 provides for relief regardless of whether the offender acted under color of law, the Legislature has removed any state action requirement in every case in which a private actor commits misconduct that, if committed by a state actor, would violate a constitutional provision. 1

 

 Plaintiffs misunderstand the statute's scope, and accordingly miss the point. They are correct that there is no state action requirement per se. [*334]  Section 52.1 nowhere mentions state action. But section 52.1 does require an attempted or completed act of interference with a legal right, accompanied by a form of coercion. Plaintiffs produced no evidence that defendants interfered with Jones's rights against unreasonable search and seizure. When they assert that defendants interfered with those rights by directly violating them, they are mistaken: Only the government or its agents can do so.

 

We recognize that because section 52.1 proscribes attempted or completed interferences with rights secured by law, it may provide a cause of action based on such rights when a private actor interferes with them or attempts to do so by coercion, even if the wrongdoer could not violate them directly. For example, if a burglary victim, suspecting that his stolen property lay hidden in a nearby house, stood at the door with the police and threatened to injure the homeowner if she did not change her mind and consent to an official and warrantless search of her premises, the homeowner might, under section 52.1, be able to sue her neighbor for interfering with her Fourth Amendment rights, assuming for purposes of this example that the Fourth Amendment protected her against warrantless searches by the state without her consent under the circumstances. For another example, the right to vote ( Burdick v. Takushi (1992) 504 U.S. 428, 441 [112 S. Ct. 2059, 2067, 119 L. Ed. 2d 245]) includes a right to vote, under the Fifteenth, Nineteenth and Twenty-fourth Amendments to the United States Constitution, free of certain burdens ( Ex parte Yarbrough (1884) 110 U.S. 651, 664-665 [4 S. Ct. 152, 158-159, 28 L. Ed. 274]; Williams v. Rhodes (1968) 393 U.S. 23, 29 [89 S. Ct. 5, 9-10, 21 L. Ed. 2d 24]). To the extent that the right to vote is guaranteed by the federal Constitution, or by other "laws" (§ 52.1), a private actor's coercive attempted or completed interference with it might be actionable under section 52.1.

 

(Jones v. Kmart Corp. (1998) 17 Cal.4th 329, 333-334.)

 

            ¶ 124 alleges that the state or constitutional rights involved here are those of association, formation and enforcement of contracts, privacy, and protection from bodily restraint or harm, from personal insult, from defamation, and from injury to personal relations. However, ¶ 125 also invokes the right of protection from bodily restraint or harm:

 

Besides the personal rights mentioned or recognized in the Government Code, every person has, subject to the qualifications and restrictions provided by law, the right of protection from bodily restraint or harm, from personal insult, from defamation, and from injury to his personal relations.

 

     (Civ. Code § 43.)

           

            Here, ¶ 125 alleges:

 

125. ZELOCCHI acted violently against IZA to prevent him from exercising his right of protection from bodily restraint or harm, (Cal. Civ. Code § 43), when he abducted IZA by tricking him into entering his car to go get the Laptop, then brandished a firearm at him, as more fully set forth above and incorporated herein.  

 

            This allegation is sufficient to allege a violation of the Bane Act. As discussed above, a demurrer does not lie to only part of a cause of action or a particular type of damage or remedy.

 

            The demurrer to the twelfth cause of action is OVERRULED.

 

            Defendant is ordered to answer the Complaint within 10 days.

 

Motion For Protective Order

 

Plaintiff moves for a protective order limiting discovery propounded by Defendant Kenneth Childs, and requests the imposition of sanctions. Plaintiff seeks a protective order which prohibits Defendant Childs from seeking responses to the following discovery: 

 

•  641 Request for Admissions, Set One, dated May 19, 2023;

 

• Form Interrogatory 17.1, Set One, dated May 19, 2023, seeking responses to the 641 requests for admission;

 

• Special Interrogatories, Set One, dated May 19, 2023, consisting of 329 special interrogatories;

 

            Plaintiff argues that good cause exists for this protective order preventing or restricting the 970 separate requests for admission and interrogatories served by Defendant Childs. Plaintiff argues that Defendant’s requests seek overly burdensome, oppressive, harassing, unwarranted, irrelevant, and immaterial information and evidence that does not outweigh the possibility that such evidence will be admissible at Trial. In addition, a less burdensome alternative is available to Defendant as the dates for which Plaintiff is available for deposition have been provided to Defendant’s counsel. Finally, Defendant’s 641 RFAs and 329 Special Interrogatories are unwarranted and the accompanying declarations of necessity fail to justify any more than the 35 requests for admissions or special interrogatories allowed. (See Civ. Proc. Code, §§ 2030.040; 2033.040; 2030.050; 2033.050.)

 

Plaintiff seeks a Protective Order stating that he does not have to comply with Defendant’s Requests for Admission, Set One; Form Interrogatory 17.1, Set One; and Special Interrogatories, Set One. This Motion is also made pursuant to CCP § 2033.080 [requests for admission] and CCP § 2030.090 [interrogatories], requesting that Defendant withdraw this discovery, and that Plaintiff shall recover $7,762.50 in monetary sanctions against Defendant and his counsel, Plain Legal PC, pursuant to CCP §2023.010(c),(h); CCP § 2033.080(d); CCP § 2030.090(d).

 

 The general provisions regarding discovery protective orders are set forth at Civ. Proc. Code § 2019.030 and § 2017.020 as follows:

 

(a) The court shall restrict the frequency or extent of use of a discovery method provided in Section 2019.010 if it determines either of the following:

 

(1) The discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive.

 

(2) The selected method of discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, and the importance of the issues at stake in the litigation.

 

(b) The court may make these determinations pursuant to a motion for a protective order by a party or other affected person. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.

 

(c) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order, 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.


(Code Civ. Proc., § 2019.030.)

 

(a) The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. The court may make this determination pursuant to a motion for protective order by a party or other affected person. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.

 

(b) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order, 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.

 

(c)

 

(1) Notwithstanding subdivision (b), or any other section of this title, absent exceptional circumstances, the court shall not impose sanctions on a party or any attorney of a party for failure to provide electronically stored information that has been lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system.

 

(2) This subdivision shall not be construed to alter any obligation to preserve discoverable information.


(Code Civ. Proc., § 2017.020 [bold emphasis added].)

 

            More specifically to the various written discovery methods:

      Requests For Admission

 

(a) When requests for admission have been made, the responding party may promptly move for a protective order. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.

 

(b) The court, for good cause shown, may make any order that justice requires to protect any party from unwarranted annoyance, embarrassment, oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions:

 

(1) That the set of admission requests, or particular requests in the set, need not be answered at all.

 

(2) That, contrary to the representations made in a declaration submitted under Section 2033.050, the number of admission requests is unwarranted.

 

(3) That the time specified in Section 2033.250 to respond to the set of admission requests, or to particular requests in the set, be extended.

 

. . .

.

(c) If the motion for a protective order is denied in whole or in part, the court may order that the responding party provide or permit the discovery against which protection was sought on terms and conditions that are just.

 

(d) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order under this section, 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.


     (Code Civ. Proc., § 2033.080.)

 

(a)  Subject to the right of the responding party to seek a protective order under Section 2033.080, any party who attaches a supporting declaration as described in Section 2033.050 may request a greater number of admissions by another party if the greater number is warranted by the complexity or the quantity of the existing and potential issues in the particular case.

(b)  If the responding party seeks a protective order on the ground that the number of requests for admission is unwarranted, the propounding party shall have the burden of justifying the number of requests for admission.

     (Code Civ. Proc., § 2033.040 [bold emphasis added].)

 

However, Civ. Proc. Code, § 2033.030(b) provides:

           

(b) Unless a declaration as described in Section 2033.050 has been made, a party need only respond to the first 35 admission requests served that do not relate to the genuineness of documents, if that party states an objection to the balance under Section 2033.230 on the ground that the limit has been exceeded.

 

     (Civ. Proc. Code, § 2033.039(b)]bold emphasis and underlining added].)

Civ. Proc. Code, § 2033.030(b) does not excuse a response as to the first 35 requests for admission that do not relate to the genuineness of documents, and also requires that the party respond with an objection to the balance of the requests on the ground that the limit has been exceeded.

 

Plaintiff did not indicate that responses in this form were served, so Plaintiff is not entitled to the requested protective order.

 

Interrogatories

 

(a) 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. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.

 

(b) 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. This protective order may include, but is not limited to, one or more of the following directions:

 

(1) That the set of interrogatories, or particular interrogatories in the set, need not be answered.

 

(2) That, contrary to the representations made in a declaration submitted under Section 2030.050, the number of specially prepared interrogatories is unwarranted.

 

(3) That the time specified in Section 2030.260 to respond to the set of interrogatories, or to particular interrogatories in the set, be extended.

 

(4) That the response be made only on specified terms and conditions.

 

(5) That the method of discovery be an oral deposition instead of interrogatories to a party.

 

. . .

 

(c) If the motion for a protective order is denied in whole or in part, the court may order that the party provide or permit the discovery against which protection was sought on terms and conditions that are just.

 

(d) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order under this section, 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.


(Code Civ. Proc., § 2030.090.)

 

            When a responding party brings a motion for a protective order regarding special interrogatories, pursuant to Civ. Proc. Code, § 2030.040(b), the propounding party bears the burden of justifying the number of special interrogatories exceeding 35 under the factors set forth in Civ. Proc. Code § 2030.040(a)(1) – (3).

(a)  Subject to the right of the responding party to seek a protective order under Section 2030.090, any party who attaches a supporting declaration as described in Section 2030.050 may propound a greater number of specially prepared interrogatories to another party if this greater number is warranted because of any of the following:

(1)  The complexity or the quantity of the existing and potential issues in the particular case.

(2)  The financial burden on a party entailed in conducting the discovery by oral deposition.

(3)  The expedience of using this method of discovery to provide to the responding party the opportunity to conduct an inquiry, investigation, or search of files or records to supply the information sought.

(b)  If the responding party seeks a protective order on the ground that the number of specially prepared interrogatories is unwarranted, the propounding party shall have the burden of justifying the number of these interrogatories.

(Code of Civ. Proc., § 2030.040 (bold emphasis and underlining added).

            However, Civ. Proc. Code, § 2030.030(c) provides:

 

(c) Unless a declaration as described in Section 2030.050 has been made, a party need only respond to the first 35 specially prepared interrogatories served, if that party states an objection to the balance, under Section 2030.240, on the ground that the limit has been exceeded.


     (Civ. Proc. Code, § 2030.030(c)[bold emphasis and underlining added].)

 

Civ. Proc. Code, § 2030.030(c) does not excuse a response as to the first 35 specially prepared interrogatories, and also requires that the party respond with an objection to the balance of the requests on the ground that the limit has been exceeded.

 

Plaintiff did not indicate that such responses were served, so Plaintiff is not entitled to the requested protective order.

 

            Once Plaintiff provides substantive responses to the 35 requests for admission and 35 specially prepared interrogatories as discussed above, Plaintiff may bring a renewed motion for a protective order if desired.

 

            Plaintiff’s motion for a protective order and request for sanctions is DENIED without prejudice.