Judge: David A. Rosen, Case: EC065899, Date: 2023-08-04 Tentative Ruling
Case Number: EC065899 Hearing Date: August 4, 2023 Dept: E
Hearing Date: 08/04/2023 – 2:00pm
Case No: EC065899
Trial Date: 12/26/2023
Case Name: KV ELECTRIC INC. v. FAIRVIEW EAST LLC, ET AL
TENTATIVE
RULING ON MOTION TO COMPEL FURTHER RESPONSES
Procedural
Moving
Party: Defendant, Fairview East, LLC (Defendant)
Responding Party: Plaintiff/Cross-Defendant, KV Electric, and Cross-Defendant,
Min Shang Ko
Proof
of Service Timely Filed (CRC Rule 3.1300): Ok
16/21 Court Days Lapsed (CCP 1005(b)): Ok
Proper Address (CCP §1013, §1013a, §1013b): Ok
Moving
Papers: Notice/Motion; Separate Statement; Proposed Order; Notice of Errata
Opposition
Papers: Opposition; Proof of Service
Reply
Papers: No Reply
RELIEF
REQUESTED
The
Court notes that there is some initial confusion as to what relief this motion
requests based on the moving and opposing papers.
Moving
Defendant’s Notice of Motion page states in relevant part as follows:
Defendant, Fairview East, LLC will file a motion to
compel production of documents and for monetary sanctions in the sum of $3,652.10
against Plaintiff, KV Electric, Inc. and its counsel of record, John Tkach and
Law Office of John Tkach jointly and severally.
This motion will be made on the grounds that plaintiff
has failed to produce documents as agreed in response to a set of document
demands pursuant to Code of Civil Procedure, sections 2031.320, 2025.280
& 2025.410 and case law and will be based upon the attached Declaration
and Memorandum of Points and Authorities as well as all the files contained in
this action.
(Def. Mot. p. 2.)
The Court notes that the notice page and the entire
motion itself doesn’t refer to which set of production requests this motion pertains
to. However, it appears based on the Ho Declaration that this motion pertains
to Demands for Production and Inspection of Documents, Set 5. The Court assumes
this to be the case because Paragraph 2 of the Ho Declaration stated, “On March
28, 2023, defendant Fairview East, LLC served Demands for Production and
Inspection of Documents, Set 5, together with notices to consumer or employee
as well as deposition subpoenas, on plaintiff KV Electric, Inc. in essence seeking
the production of employment records, redacting personal and financial
information, of four individuals who claimed to have performed work at the
Fairview construction project in question. See Ex. 1.” (Ho Decl.
¶2.)
The Court also explains its confusion as to what
relief is requested because on page 5 of Defendant’s motion, Defendant has a
section titled, “IN THE ALTERNATIVE, DEFENDANT FAIRVIEW EAST, LLC IS ENTITLED
TO OBTAIN DOCUMENTS REQUESTED PURSUANT TO A DEPOSITION NOTICE UNDER CODE OF
CIVIL PROCEDURE, SECTION 2025.280 AS KV HAS WAVIED THE OBJECTIONS.” (Def. Mot.
p. 5.)
On 06/16/2023, Defendant submitted a Notice of Errata,
presumably to be clearer, stating in relevant part, “…defendant Fairview East,
LLC’s Notice of Motion and Motion to Compel Production of Documents, initially
set for November 2, 2023, now advanced to August 4, 2023, has been mislabeled.
The title of the motion should be Notice of Motion and Motion to Compel Further
Responses to Document Demands.” (Def. Not. Errata p. 2.)
Despite this attempt to clear things up, Plaintiff
appeared to be confused in its Opposition. [The Court notes that Opposition did
not put page numbers in its Opposition. The Court will assume the page titled
“MEMORANDUM OF POINTS AND AUTHORITIES” is page 2 of the Opposition.] In
relevant part of the Opposition, Plaintiff wrote, “…(hereinafter collectively
“KV ELECTRIC”) oppose Defendant and Cross-Complainant Fairview East, LLC’s
(hereinafter “FAIRVIEW EAST’) re-labeled Motion to Compel Further Responses to
Document Demands Set 5 and Third Notice of Continued deposition.” (Oppo. p. 2.)
The Court notes that it will construe this motion as a
Motion to Compel Further Responses to Document Demands, Set Five, and is not
construing this motion as any type of motion pertaining to a deposition. The
Court arrives at this conclusion for several reasons. First, this is based on
the original notice not mentioning anything about this being a motion
pertaining to a deposition. Second, the Notice of Errata filed by Defendant
stated it was originally mislabeled and the title of the motion should be a
Motion to Compel Further Responses to Document Demands. Third, a motion must be
brought separately as to each discovery method at issue. If the instant motion
is indeed an attempt to combine two types of motions, which isn’t entirely
clear, the Court finds this improper. If this was in fact an attempt to combine
a motion to compel further responses to Document Demands and some type of
motion pertaining to a deposition, Defendant should have filed two separate
motions and paid two filing fees. “[P]ayment of filing fees is both mandatory
and jurisdictional.” (Hu vs. Silgan
Containers Corp. (1999) 70 Cal. App. 4th 1261, 1269.)
BACKGROUND
Plaintiff
KV Electric Inc. (KV) initiated this matter on December 19, 2016, against
Defendants Fairview East, LLC (Fairview); Tai On Ho; Eric Ho; Uni-Glory
Development, Inc.; SEM Construction Management Inc; and Kevin Guo. Fairview
cross-complained against KV and Min Shang Ko.
Court
judgment was ultimately rendered on July 10, 2018. The Court ordered that
Plaintiff take nothing by way of the Complaint, and the Court ordered that
Cross-Complainant Fairview recover $367,185.89 from Cross-Defendants KV and Ko
jointly and severally, plus prejudgment interest and unpaid discovery
sanctions. (Min. Order 6/9/2023 p.2.)
Cross-Defendants
moved to vacate the judgment. The Court granted the motion and was subsequently
affirmed by the Court of Appeal on May 13, 2020. The judgment having been
vacated; Fairview has engaged in substantial discovery practice. (Min. Order
6/9/2023 p. 2.)
On
6/9/2023, this Court heard Fairview’s motion to compel compliance with agreement
to produce documents and motion for leave to amend the Cross-Complaint. The
Court noted on page 3 of the 6/9/2023 Minute Order that “Although this is
noticed as a motion to compel compliance, this is actually a motion to compel
further responses, as Fairview acknowledges that KV Electric has served
responses.” (Min. Order 6/9/2023 p. 3.) Ultimately, the Court noted on pages 4
and 7 of the 6/9/2023 Minute Order that Fairview’s Motion to Compel Compliance was
denied. Further, the motion for leave to amend the Cross-Complaint was granted
as noted on page 7 of the 6/9/2023 Minute Order.
ANALYSIS
As
noted, both Plaintiff and Defendant’s moving and opposing papers are difficult
to decipher.
Plaintiff’s Opposition is borderline incomprehensible.
Further, the only perceptible attempt at finding an
argument in Defendant’s motion itself as to why Defendant is owed further
responses appears as if it is in the “Introduction” section of the moving
papers.
The Introduction states as follows:
Plaintiff, KV
Electric, Inc. filed a lawsuit alleging breach of contract, fraud, common
counts for construction services performed, unfair business practices and
foreclosure on the mechanic's lien against Fairview East, LLC (Fairview) and
Fairview's manager, Tai On Ho and employee Kevin Guo. Without any evidence or
probable cause, Plaintiff brought Mr. Ho and Mr. Guo into the action.
Defendant,
Fairview entered into an agreement to construct a 10-unit condominium with the
general contractor, Defendant Uni-Glory Development, Inc. (who had been
dismissed from the lawsuit). KV Electric, Inc. was one of the subcontractors
employed by Defendant, Uni-Glory. Because of the abandonment of the
construction project by Uni-Glory, Fairview and KV Electric formed a separate
and distinct agreement to complete the construction project.
Fairview
instituted a Cross-Complaint against Plaintiff, KV and KV's principal,
Cross-Defendant, Min Shang Ko.
About August 2016,
Fairview discovered the defects and determined in essence that KV Electric (at
the command of Cross-Defendant Ko) failed to competently complete all required
tasks, including but not limited to, resulting in defects as to the humidity
sensors, switches, lines, dimmers, fire sprinklers, fire alarms and wirings in
over hundreds of areas, indicating such conduct was intentional or recklessness
or gross negligence so that KV Electric could return to complete all the
planned misconduct to gain more economic advantages. Further example is that KV
Electric would intentionally fail to connect the wirings to the outlets or
intentionally fail to connect all wirings inside the walls, leaving these wires
hanging loose. There was no way of knowing where KV Electric had planned and
schemed the defects. When requested to return, KV Electric wanted more money to
consummate the defective jobs that it deliberately planned since the
commencement of the construction. Attempting to accomplish the finality of the
project, Fairview had to employ other professionals who concluded that such
conduct was intentionally designed. These hired professionals had to break the
walls in hundreds of places, creating holes in the walls, to find the
intentional defects done by KV Electric, resulting in losses to the
already-delayed construction effort. All the misconduct and incompetent work
performed significantly and drastically altered and affected the overall appearance
of the architecture of the condo.
During discovery,
Fairview discovered that the workers utilized by KV were not licensed and
appeared to be non-employees of KV, thus making these workers independent
contractors, subject to the licensing requirements under the law. Fairview
requested for employment records of these alleged employees but KV vigorously
objected. Fairview noticed a deposition of KV's PMQ with document demands.
However, KV failed to serve any objections thus waiving all objections.
(Def. Mot. p.
3-4.)
45-Day Requirement
Unless
notice of this motion is given within 45 days of the service of the verified
response, or any supplemental verified response, or on or before any specific
later date to which the demanding party and the responding party have agreed in
writing, the demanding party waives any right to compel a further response to
the demand. (CCP §2031.310(c).)
Here, Plaintiff, KV, served responses to Fairview’s
Demand for Production and Inspection of Documents, Set Five, on April 27, 2023
Moving Defendant does not address whether or not, or
how, the instant motion is timely. Plaintiff also does not address whether this
motion is timely. To the Court, this motion appears timely because responses
were served on April 27, 2023 and the instant motion was filed and served by
email on May 31, 2022, which is within 45 days of April 27, 2023.
Meet and Confer
“The
motion shall be accompanied by a meet and confer declaration under Section
2016.040.” (CCP §2031.310(b)(2).)
Here, moving party met
and conferred. (Ho Decl. ¶9, Ex. 6.)
LEGAL STANDARD – COMPEL FURTHER – REQUESTS
FOR PRODUCTION
CCP § 2031.310(a) provides that a party demanding a document
inspection may move for an order compelling further responses to the demand if
the demanding party deems that:
“(1) A statement of compliance with the demand is
incomplete.
(2) A
representation of inability to comply is inadequate, incomplete, or evasive.
(3)
An objection in the response is without merit or too general.”
Under
CCP § 2031.310 (b)(1), “The motion shall set forth specific facts showing good
cause justifying the discovery sought by the demand.”
Document Demands 5.1 – 5.4
DOCUMENT DEMAND 5.1
All
DOCUMENTS showing (including but not limited to personnel records, pay stubs,
time sheets, W2s, redacting all personal and financial information) Guo Xiong
Deng was an employee from the time of performance of the Fairview construction
project until this employee departed KV Electric, Inc.
DOCUMENT DEMAND 5.2
All
DOCUMENTS showing (including but not limited to personnel records, pay stubs,
time sheets, W2s, redacting all personal and financial information) Kei Fun Lum
(Joe) was an employee from the time of performance of the Fairview construction
project until this 22 employee departed KV Electric, Inc.
DOCUMENT DEMAND 5.3
All
DOCUMENTS showing (including but not limited to personnel records, pay stubs,
time sheets, W2s, redacting all personal and financial information) Xiang Zhen
Chen was an employee from the time of performance of the Fairview construction
project until this employee departed KV Electric, Inc.
DOCUMENT DEMAND 5.4
All
DOCUMENTS showing (including but not limited to personnel records, pay stubs,
time sheets, W2s, redacting all personal and financial information) Min Shang
Ko was an employee from the time of performance of the Fairview construction
project until KV Electric, Inc. ceased the performance of the Fairview construction
project.
Responses to Document Demands 5.1 – 5.4
[The Court notes that all of Plaintiff’s responses were the same for 5.1 – 5.4]
Objection.
The production demand seeks confidential information
concerning the financial affairs of third persons and therefore invades their
rights of privacy, whose rights the responding party is obligated to assert. Valley
Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652,542 P.2d 977, 125
Cal.Rptr. 553.
The production demand seeks disclosure of confidential
personnel information pertaining to third persons and therefore invades the
privacy of third persons, whose rights the responding party is obligated to assert.
Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 174
Cal.Rptr. 160.
The production demand seeks tax information from
responding party's W2 forms which is privileged from discovery. Brown v.
Superior Court (1977) 71 Cal.App.3d 141, 139 Cal.Rptr. 327.
Responding parties object to this production demand on
the ground that it is overly broad in scope, is oppressive and is an attempt to
create an unreasonable burden on responding parties such that responding to
same would create an injustice to responding parties. West Pico Furniture
Co. v. Superior Court (1961) 56 Cal.2d 407, 417-418, 15 Cal.Rptr. 119. The
production demand seeks disclosure of trade secrets and is therefore privileged
from discovery pursuant to Evidence Code§ 1060.
This production demand is overly broad and oppressive
and is an attempt to create an unreasonable burden on responding party such
that responding to same would create an injustice to responding party. West
Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 417-418, 15
Cal.Rptr. 119.
MOVING ARGUMENTS - REASONS WHY THE
PRODUCTION IS REQUIRED
[The
Court notes that Defendant’s separate statement indicates that the reasons for
production of the Document Demands are the same for each request.]
On January 25, 2023, at a continued deposition of plaintiff,
KV Electric, Inc.'s PMQ, Mr. Min Shang Ko (who is also a cross-defendant), the
moving party's counsel discovered that the workers hired or employed by KV were
not licensed electricians. KV alleged that these workers were
employees. After this discovery, defendant Fairview East, LLC subpoenaed
employment-related documents and served discovery requests on KV, in an attempt
to verify the testimony of Mr. Ko, from the identified workers (who were all no
longer working for KV). However, all of the workers' addresses supplied by
KV were bad as the server was informed that none of these individuals
resided at the locations indicated, and nobody had heard of these persons.
On April 27, 2023, during another continued deposition
of plaintiff s PMQ, the moving party also found that KV lacked anv
supporting employment records showing the workers hired for the Fairview
construction project were employees, and that there was evidence that
Mr. Ko, the responsible managing officer (RMO) and/or responsible managing
employee (RME) did not exercise direct supervision and control over the
construction project in violation of applicable law, particularly Business & Professions
Code, sections 7031 & 7068.1.
The law is well-established that a sham RMO/RME may
not recover any compensation, and that the property owner, Fairview may seek
disgorgement of all compensation paid to the unlicensed contractor or
subcontractor. See B&P Code. section 7031.
Based upon a recent case law (Kim v. TWA
Construction (2022) 78 Cal.Anp.5th 808), which stands for the proposition
that a general contractor may not recover compensation paid to unlicensed
subcontractors, the amendment becomes necessary. In Kim v. TWA Construction
(2022) 78 Cal.App.5th 808 (a case of first impression), the trial
court, after hearing on a motion in limine requesting that unless a proper
licensure could be shown TWA could not recover any compensation paid to an
unlicensed subcontractor, granted such motion barring TWA from "collecting
compensation for services performed by the subcontractor for the tree trimming
if, in fact, the subcontractor was unlicensed at the relevant time. The ruling
in effect allowed Kim and Truong to claim the money paid for the unlicensed
contractor (disgorgement) and disallowed TWA from presenting a claim for money
owed for the tree removal work performed by an unlicensed subcontractor. The
ruling did not explicitly bar any party from bringing evidence at trial as to
whether Hoffman was licensed." I.d., at 819-820. The appellate court
affirmed the ruling of the lower court. The Kim v. TWA court, construing
the code section in question, in effect expanded the reach of B&P Code.
section 7031.
Good cause is shown that proving proper licensure is an
essential element of the claim for compensation by the contractor KV
Electric, Inc. Jeff Tracy, Inc. v. City of Pico Rivera (2015) 240
Cal.App.4th 510, 517.
The moving party has made effort subpoenaing the
former workers but to no avail. There is no alternative source of
gathering this information. See Associated Brewers Distrib. Co. v. Sup. Ct.
(1967) 65 Cal.2d 583, 588.
It should also be noted that Fairview is not
seeking anv personal identifying or financial information of any of these
alleged former employees but confirmation, with documentation, that these
workers were in fact employees.
Thus, the court should order the production of these
employment documents redacting all personal and financial information.
PLAINTIFF’s ARGUMENTS IN OPPOSITION
Previously Produced
On
page 2 and 3 of Plaintiff’s Opposition, Plaintiff appears to be arguing that it
has already produced all documents responsive to this demand and that prior to
filing this motion, Fairview was aware the requested documents do not exist.
Here, the Court notes that if Plaintiff is trying to
say it already complied with the document demands, or it lacks the ability to
comply with the demands, Plaintiff’s response was not code compliant.
If Plaintiff is trying to state it already complied,
2031.220 sets forth the requirements of how a response must be done when indicating
that a party will comply. “A statement that the party to whom a demand for
inspection, copying, testing, or sampling has been directed will comply with
the particular demand shall state that the production, inspection, copying,
testing, or sampling, and related activity demanded, will be allowed either in
whole or in part, and that all documents or things in the demanded category
that are in the possession, custody, or control of that party and to which no
objection is being made will be included in the production.” (CCP §2031.220.)
If Plaintiff is arguing that it lacks the ability to
comply with the demands, Plaintiff’s response was not code compliant. CCP
§2031.230 sets forth the requirements of how a response must be done when
indicating an inability to comply. “A representation of inability to comply
with the particular demand for inspection, copying, testing, or sampling shall
affirm that a diligent search and a reasonable inquiry has been made in an
effort to comply with that demand. This statement shall also specify whether the
inability to comply is because the particular item or category has never
existed, has been destroyed, has been lost, misplaced, or stolen, or has never
been, or is no longer, in the possession, custody, or control of the responding
party. The statement shall set forth the name and address of any natural person
or organization known or believed by that party to have possession, custody, or
control of that item or category of item.” (CCP §2031.230.)
Other Arguments
Plaintiff’s
Opposition from page 2,line 22 to page 4 is incomprehensible.
Motion to Compel Compliance
Plaintiff
argues that on June 9, 2023, Fairview’s motion to compel compliance with
agreement to produce documents was denied on the basis the requested documents
did not exist. Plaintiff refers to Fairview’s Production Demand Set Four,
demand 4.2 which requested the following:
“4.2 All DOCUMENTS (notes relating to the
Fairview construction project and payroll work records showing names
of workers, number of hours worked, dates, work done and name of the project) …identified
during the deposition of KV Electric, Inc’s PMQ, Mr. Min Shang Ko on September
6, 2022.” (See dec of John A. Tkach – Exhibit E, pg. 3:16-19).”
Plaintiff seems to think the instant requests in
Document Demands Set 5 are identical to the previously requested demands
because Plaintiff argues the instant discovery seeks employment records,
redacting personal and financial information, of four individuals who claimed
to have performed work at the Fairview construction project.
Here, the Court does not find Plaintiff’s argument
availing. The instant requests pertain to four specific individuals that are
alleged to be employees. These requests seem similar at first glance, because
the prior request was relating to all workers, but the instant requests were
tailored to 4 specific individuals.
DISCUSSION
As
a preliminary matter, Opposition did not submit a Separate Statement. “Any
motion involving the content of a discovery request or the responses to such a
request must be accompanied by a separate statement. The motions that require a
separate statement include a motion: (3) To compel further responses to a
demand for inspection of documents or tangible things.” (CRC 3.1345(a)(3).)
The burden is on the moving party to show both
relevance to the subject matter and specific facts justifying discovery. (Glenfed
Develop. Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117. ) Once
good cause is established by the moving party, the burden then shifts to the
responding party to justify any objections made to document disclosure. (See Hartbrodt
v. Burke (1996) 42 Cal.App.4th 168, 172-174.)
Here, moving Defendant appears to have established
good cause by arguing that Plaintiff cannot recover compensation paid to
unlicensed subcontractors and that four of Plaintiff’s employees may have been
unlicensed subcontractors.
In Opposition, Plaintiff does not attempt to justify
any of the objections that it asserted in its responses. Instead, Plaintiff
seems to just state that it previously produced these documents, that Defendant
was aware the documents do not exist, and that this motion is a second bite at
the apple of the June 9, 2023 motion to compel compliance.
TENTATIVE RULING
Defendant’s
motion to compel further responses to Demands for Production and Inspection of
Documents, Set Five, to Plaintiff KV is GRANTED. Plaintiff is to provide
further, verified, code complaint, complete responses within 20 days.
“Subcontractors
are governed by the licensing law. (§
7026.)
“Both owners and general contractors are entitled to protection against illegal
subcontract work by unlicensed persons. Hence, an unlicensed subcontractor may
not recover compensation for his work from either the owner or the general
contractor.” (Hydrotech,
supra, 52 Cal.3d at p. 997, 277 Cal.Rptr. 517, 803 P.2d 370.)” (Kim
v. TWA Construction, Inc. (2022) 78 Cal.App.5th 808, 824.)
While it is not entirely clear, Defendant seems to
argue that a general contractor may not recover compensation paid to unlicensed
subcontractors.
The Opposition stands behind its Objections, then
maybe we insert the following language if you decide to still grant the motion.
As a general rule,
all unprivileged information that is relevant to the subject matter of the
action is discoverable if it would itself be admissible evidence at trial or if
it appears reasonably calculated to lead to the discovery of admissible
evidence. (Code Civ. Proc. § 2017.010; Schnabel v. Superior Court (1993)
5 Cal.4th 704, 711.) When the information sought to be discovered impacts a
person’s constitutional right to privacy, limited protections come into play
for that person. (Shaffer v. Superior Court (1995) 33 Cal.App.4th
993, 999.) The protections cover both a person’s personal and financial
matters. (Id.) The court must balance competing rights — the right of a
litigant to discover relevant facts and the right of an individual to maintain
reasonable privacy — in determining whether the information is discoverable. (Id.)
For discovery
purposes, information is relevant if it might reasonably assist a party in
evaluating the case, preparing for trial, or facilitating settlement. (Gonzalez
v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.)
The framework for evaluating invasions of privacy in discovery has been
clarified in Williams v. Superior Court (2017) 3 Cal.5th 531.
There, the California Supreme Court held that, generally, “[t]he party
asserting a privacy right must establish a legally protected privacy interest,
an objectively reasonable expectation of privacy in the given circumstances,
and a threatened intrusion that is serious. The party seeking information may
raise in response whatever legitimate and important countervailing interests
disclosure serves, while the party seeking protection may identify feasible alternatives
that serve the same interests or protective measures that would diminish the
loss of privacy. A court must then balance these competing
considerations. (Williams, 3 Cal.5th at p. 533, citing Hill
v. Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35.) The court
rejected cases which held that the party seeking protected information must
always show a compelling need or interest. (Id. at p.
557.) Instead, the court held, “[o]nly obvious invasions of interest
fundamental to personal autonomy must be supported by a compelling
interest.” (Id.) When lesser interests are at stake, “the strength of
the countervailing interest sufficient to warrant disclosure of private
information var[ies] according to the strength of the privacy interest itself,
the seriousness of the invasion, and the availability of alternatives and
protective measures.” (Id.)
Parties may
overcome objections on the basis of a right to privacy by demonstrating that
the information sought is “directly relevant to a cause of action or defense …
i.e., that it is essential to determining the truth of the matters in
dispute.” (Britt v. Superior Court (1978) 20 Cal.3d
844, 859-862.) Once good cause is shown, courts must carefully
balance a right of privacy against the interest in having just litigation. (Pioneer
Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th
360, 371.)
A court may abuse
its discretion in denying requests for discovery, or in granting a motion to
quash, where it fails to consider interests favoring disclosure, or an order
partially limiting rather than outright denying discovery. (Johnson v.
Superior Court (2000) 80 Cal.App.4th 1050, 1073 (reversing trial court
order quashing entirely deposition notice, and instead ordering discovery of
private medical history, but only to the extent relevant.)
Thus, on balance, based on the limitations set forth
in the requests, the interest in having just litigation outweighs the minimal
privacy concerns asserted by Plaintiff.
Moreover, “(a) If only part of an item or category
of item in a demand for inspection, copying, testing, or sampling is
objectionable, the response shall contain a statement of compliance, or a
representation of inability to comply with respect to the remainder of that
item or category.
(b) If the responding party objects to the demand
for inspection, copying, testing, or sampling of an item or category of item,
the response shall do both of the following:
(1) Identify with particularity any document,
tangible thing, land, or electronically stored information falling within any
category of item in the demand to which an objection is being made.
(2) Set forth clearly the extent of, and the
specific ground for, the objection. If an objection is based on a claim of
privilege, the particular privilege invoked shall be stated. If an objection is
based on a claim that the information sought is protected work product under
Chapter 4 (commencing with Section 2018.010), that claim shall be expressly
asserted.
(c) (1) If an objection is based on a claim
of privilege or a claim that the information sought is protected work product,
the response shall provide sufficient factual information for other parties to
evaluate the merits of that claim, including, if necessary, a privilege log.
(2) It is the intent of the Legislature to codify
the concept of a privilege log as that term is used in California case law. Nothing
in this subdivision shall be construed to constitute a substantive change in
case law.”
(CCP §2031.240)
Plaintiff did not comply with the Code as the only
document identified by Plaintiff in its objections are the W2s.
SANCTIONS
Except
as provided in subdivision (j), 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 to compel further
response to a demand, 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. (CCP §2031.310(h).)
Defendant’s counsel requests sanctions in the sum of
$3,652.10 against Plaintiff KV and its counsel of record, Mr. John Tkach and
Law Offices of John Tkach.
In the Ho Declaration, Defendant requests sanctions as
follows:
As a result of this motion, my office has and will have
incurred the following fees and costs:
A. Time
preparing, including meeting and conferring, the motion: $2,005 (4.718 hours);
B. Time expected to reply
to the opposition: $425 (1 hour);
C. Court appearance:
$212.50 (0.5 hour);
D. Motion fee: $61.65;
E. Electronic filing fee:
$18.15;
F. Ex Parte Application
for order shortening time or advance hearing, including addressing the opposition:
$850 (2 hours);
G. Ex Parte Application
fee: $61.65; and
H. Electronic filing fee:
$18.15.
I have been practicing law for about 21 years mainly
in the area of litigation. My hourly rate is $425. The total amount is
$3,652.10, which is reasonable and necessary associated with the motion
practice.
In Opposition, Plaintiff argues that Defendant should
not be awarded sanctions because it acted with substantial justification.
Plaintiff argues as follows:
The phrase
“substantial justification” has been understood to mean that a justification is
clearly reasonable because it is well-grounded in both law and fact.” Kwan
Software Engineering, Inc. v. Hennings (2020) 58 Cal.App.5th 57, 75.
The declarations
of John A. Tkach demonstrates “substantial justification” for KV ELECTRIC’s
Opposition to FAIRVIEW’S MOTION TO COMPEL FURTHER RESPONSE TO PRODUCTION DEMAND
SET 5 and Notice of Continued Deposition. All relevant and responsive documents
in the possession of KV ELECTRIC have been previously produced. John A. Tkach
has affirmed and represented that all documents responsive to FAIRVIEW EAST’s
production demand have been produced. (See dec of John A. Tkach – Exhibit E).
FAIRVIEW EAST
admits that as of April 27, 2023, KV ELECTIC’s PMK stated that KV ELECTRIC did
not have any documentation “…showing the workers hired for the Fairview
construction project were employees…” (See dec of John A. Tkach – Exhibit G).
(Pl. Oppo. p.
6-7.)
Further, in Opposition,
Plaintiff appears to request sanctions against Defendant, but Opposition only
says, “The declaration of John A. Tkach supports an award of $ as sanctions against FAIREVIEW EAST and its
counsel.” (Oppo. p. 7.)
In the Tkach
Declaration in the Opposition, Plaintiff requests sanctions as follows. “The
time to review and respond to the motion is 4.1 hours, the time estimated at
the remote hearing is 1.5 hours. My billing rate is $395 per hour. The total
equals $2,212.00. It is respectfully requested that defendants and their
counsel be jointly and severally ordered to pay this amount within 15 days of
the order.” [The Court notes that the amount of sanctions requested by
Plaintiff was never once mentioned in the Opposition itself.]
The Court finds it
would be unjust to award sanctions to either party here, in view of the moving
and opposition papers and the reasons advanced by Plaintiff for not responding
to this discovery.