Superior Court of California 

County of Los Angeles – West District 

Beverly Hills Courthouse / Department 205 

 

A party may move to compel further responses to interrogatories when the answer to an interrogatory is evasive or incomplete or where an objection to an interrogatory is without merit or too general. (Code Civ. Proc., § 2030.300, subds. (a)(1), (a)(3).)  A party responding to interrogatories with objections bears the burden of justifying its objections in response to a motion to compel further responses. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.)  

Parties may request production of documents that pertain to, among other things: (1) any matter relevant to the subject matter of the pending action; and (2) any matter that either is itself admissible or which appears reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., §§ 2017.010; 2031.010, subd. (a).)   

A party may move to compel further responses to requests for production when a statement of compliance with the demand is incomplete or when an objection to the request is without merit or too general. (Code Civ. Proc., § 2031.310, subds. (a)(1), (a)(3).)  A party moving to compel further responses to requests must set forth specific facts showing good cause justifying the discovery sought by the demand. (Id., subd. (b)(1).)   

EVIDENTIARY OBJECTIONS 

The Court sustains Objection Nos. 1-3 to the Declaration of Thomas Dreblow. 

DISCUSSION 

Good Cause 

Smith argues that A&M has failed to show good cause for the discovery it seeks because the documents it seeks can be obtained from another party.  The Court disagrees in part.     

Contrary to Smith’s argument, A&M is not¿required to provide¿good cause to compel further responses to¿form interrogatories.  Such cause is only¿required in motions to compel further responses to requests for production of documents.  (Compare¿Code Civ. Proc., §§ 2030.300,¿2031.310, subd. (b)(1).) 

As to the document requests, A&M has not met its burden to show good cause.  To establish “good cause,” the burden is on the moving party to demonstrate both: (1) relevance to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case); and (2) specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial).  (Digital Music News LLC v. Superior Court (2014) 226 Cal.App.4th 216, 224;¿Glenfed Develop. Corp. v. Sup.Ct. (1997) 53 Cal.App.4th 1113, 1117.)    

Arguments made in the moving papers or in a¿separate statement are insufficient to satisfy this requirement;¿good cause must be shown by way of admissible evidence, such as by¿declaration. (Calcor Space Facility, Inc. v. Superior Court¿(1997) 53 Cal.App.4th 216, 224¿(motion to compel production of documents must be supported by factual evidence by way of declarations setting forth specific facts justifying each category of materials sought to be produced; arguments in a separate statement or in briefs are insufficient).)  

The declaration submitted by A&M does not set forth facts justifying each category of documents sought to be produced.  (See generally Dunn Decl.)  It merely references attached exhibits, describes the parties’ meet and confer efforts, and attests to the fees incurred in preparing the motion or to be incurred in preparing the reply and attending the hearing on the motion.  Because A&M has not provided evidence to support its claim for good cause, there is no basis to grant its motion to compel production of documents.  The remainder of this Order will, therefore, focus on the motion to compel form interrogatories.         

Fifth Amendment Objection 

A party may invoke his Fifth Amendment rights to refuse to respond to discovery on “any matter that may tend to incriminate him”.  (Cal. Evid. Code §940.)  Smith has objected to four form interrogatories on Fifth Amendment grounds.  His Fifth Amendment objections are without merit for four reasons: 

First, a party is not entitled to decide for himself¿whether he is protected by the Fifth Amendment privilege.  This question is for the court to decide after conducting a “particularized inquiry,” deciding, in connection with each specific area that the questioning party seeks to explore, whether or not the privilege is well-founded. (Warford v. Medeiros¿(1984) 160 Cal. App. 3d 1035, 1045.)  

A blanket¿refusal to testify is unacceptable; a person claiming the Fifth Amendment privilege must do so with specific reference to particular questions asked or other evidence sought.  Once this is done, the trial court must undertake a particularized inquiry with respect to each specific claim of privilege to determine whether the claimant has established that the testimony or other evidence sought might tend to incriminate him.  (Id.)¿ The burden is on the party invoking the privilege to show that the testimony¿or other evidence could¿tend to incriminate him or her.  (Id.) 

The only factual basis Smith has provided for his Fifth Amendment objections is that the requested discovery would furnish a “link in the chain of evidence” connecting him to embezzlement from Stelaro.  (Opp. at 6-7.)  But none of A&M’s discovery requests touch on Smith’s embezzlement.  A&M’s discovery requests focus on loans Stelaro obtained from A&M.  Smith argues that answering A&M’s discovery could allow A&M to “gather evidence potentially damaging” to him (Opp. at 7), but there is no exception in the discovery statutes for information that is harmful to a party’s defense. 

Smith argues that he may be prosecuted for the actions A&M alleges.  (Opp. at 7.)  But every fraud case could potentially be prosecuted as a crime, so Smith’s argument amounts to a discovery exemption for defendants in fraud cases.  No such exemption exists.  Without a better explanation from Smith as to how A&M’s form interrogatories implicate him, the Court cannot undertake the “particularized inquiry” necessary to determine whether the Fifth Amendment applies.  (Warford, 160 Cal.App.3d at 1045 & fn. 8.)  

Second, Smith’s Fifth Amendment objections apply only to information that could tend to incriminate him, not all information he possesses about the case.  (In re Marriage of Sachs (2002) 95 Cal.App.4th 1144, 1151–1152.)  Form Interrogatories 12.1, 14.1, 16.1, and 16.2 do not seek information about Smith and thus have no tendency to implicate him.  These interrogatories instead ask Smith to provide information about other people who may have witnessed the incidents at issue in this case (FROG No. 12.1), other people who may have violated the law (FROG No. 14.1), other people who may have caused A&M’s injuries (FROG No. 16.1) and whether A&M was injured (FROG No. 16.2).  

Third, Smith asserts 30 affirmative defenses, on which he has the burden of proof. (Dunn Decl., Ex. A.)  Many of these affirmative defenses include factual allegations.  For example, Smith alleges A&M failed to prevent, or caused, the damage.  Smith also alleges A&M consented to his actions, and his actions were lawful and justified.  Smith further alleges A&M “has sustained no damages by reason of any act or omission by this answering Defendant.”  He also alleges third parties caused A&M’s damage.  

By asserting 30 affirmative defenses and inserting affirmative factual allegations into this case, Smith has waived any Fifth Amendment privilege that applies to evidence on these issues. “[A] party who affirmatively tenders an issue waives its privilege as to evidence relevant to that issue.” (Popelka, Allard v. Superior Court (1980) 107 Cal.App.3d 496, 502–503.)  It would be “manifestly unfair” to allow Smith to assert factual allegations but object on Fifth Amendment grounds to A&M’s discovery requests on the same topics.  (Fuller v. Superior Court (2001) 87 Cal.App.4th 299, 306; see also Transamerica Title Ins. Co. v. Superior Court (1987) 188 Cal.App.3d 1047, 1053 (“the deliberate injection of the advice of counsel into a case waives the attorney-client privilege as to communications and documents relating to the advice”).)  Simply put, Smith cannot use the Fifth Amendment as a sword and a shield. 

 Fourth, the Fifth Amendment “may only be invoked when the threat of criminal prosecution is reasonably particular and apparent.”  (U.S. v. Antelope (9th Cir. 2005) 395 F.3d 1128, 1134.)  The Court must order a party to respond unless the person asserting a Fifth Amendment privilege “demonstrates that his or her fear of prosecution is reasonable and not advanced fancifully or merely imagined.”  (Warford v. Medeiros (1984) 160 Cal.App.3d 1035, 1048.)  Here, Smith concedes there is no pending criminal investigation (Opp. at 7), much less an actual prosecution.  He refers only to A&M’s principal’s stated “goal” of seeing him prosecuted (Opp. at 7), which does not create a credible threat of prosecution as there is no evidence the principal has any ability to have Smith prosecuted.   

Troy v. Superior Court (1986) 186 Cal.App.3d 1006 is instructive. There, a judgment debtor, who had already served time in prison for committing fraud, resisted discovery propounded by a receiver trying to collect funds for the victims of the fraud scheme.  (Id. at 1009-1010.)  The judgment debtor refused to respond, citing his Fifth Amendment rights and fear of further prosecution based on the fraud claims of other victims.  The Court of Appeal found the objections to be baseless, as the debtor was not facing criminal prosecution or investigation and had not substantiated a reasonable fear of further prosecution.  (Id. at 1011–1013.)   

Here, Smith admits he has never faced any sort of criminal investigation related to Stelaro, and thus his Fifth Amendment objection is even weaker than the judgment debtor’s in Troy.  Were we to accept Smith’s argument, “a defrauder who makes it big can always be cloaked and immune … because there’s always, quote, somebody out there who can come around and initiate a prosecution.”  (Id. at 1013.)  Smith’s fear of inadvertently providing information which might cause him to be prosecuted is based upon pure speculation, and not the existence of the “real danger” which must exist for Smith to properly invoke the Fifth Amendment privilege. 

Form Interrogatory No. 15.1 

Form Interrogatory 15.1 requests that, for his general denial and for each of the 30 affirmative defenses he asserts, Smith: (1) state all facts upon which he bases his denial or defense; (2) identify all persons with knowledge of those facts; and (3) identify all documents that support the denial or defense.   

Smith does not object to this form interrogatory on Fifth Amendment grounds.  Instead, Smith refuses to provide a substantive response, arguing that his general denial and 30 affirmative defenses are intended to “preserve” his defenses and that his affirmative defenses “are or may become relevant as discovery and investigation reveal more information.” (Dunn Decl., Ex. D at Form Rog 15.1.)  

Smith’s refusal to provide a substantive response is not defensible.  He claims this form interrogatory is “vague, ambiguous, and overbroad in time and scope,” but this is a common form interrogatory the Judicial Council has approved.  He argues the form interrogatory seeks privileged information and work product, but facts, witnesses, and documents supporting his pleadings are the proper subject of interrogatories and are not privileged.  (Code Civ. Proc., § 2030.010, subd. (b).)  He claims this form interrogatory is “premature” because the case is “in its early stages,” but A&M is entitled to propound discovery 10 days after Smith appears. (Code Civ. Proc., § 2030.020, subd. (b).)  A&M is entitled to all facts that Smith can identify after reasonable and good faith efforts on which he asserted his general denial and each of his 30 defenses. (Code Civ. Proc., § 2030.220, subd. (c).) 

Other Objections 

Besides his Fifth Amendment objections, Smith asserts several other objections throughout his responses to A&M’s form interrogatories.  They have no merit.   

First, Smith objects to the term “INCIDENT” as used in form interrogatories as “vague, ambiguous, and overbroad.” Courts do not sustain objections to interrogatories on the grounds they are ambiguous unless the question is totally unintelligible.  Instead, the answering party owes a duty to respond as best he can in good faith.  (See Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783 (“where the question is somewhat ambiguous, but the nature of the information sought is apparent, the proper solution is to provide an appropriate response”).)  

The form interrogatories define “INCIDENT” as Defendants’ solicitation, procurement, and performance of short-term loans from A&M beginning January 1, 2019. (Ex. B to Dunn Decl., at 2.)  This definition is not totally unintelligible.  The definition of “INCIDENT” is also not overbroad.   

Second, Smith objects that the form interrogatories are burdensome.  To sustain an objection to an interrogatory on the grounds it is too burdensome, the responding party must show, with evidence, that the burden of answering is so unjust as to amount to oppression. (West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 417.)  Smith has not explained why responding to form interrogatories regarding his involvement in a handful of loans from A&M to Stelaro amounts to oppression.  A&M defines “INCIDENT” to include conduct stretching over four years, but that period matches the duration of Defendants’ alleged misconduct, which began in early 2019 and continued through early 2023.  A&M cannot reasonably narrow this definition given the allegations of this case.  

Third, Smith objects to the form interrogatories as seeking “premature disclosure of expert opinion” and as “premature as the case is only in its early stages of investigation and discovery.” A&M’s form interrogatories do not seek expert opinions; rather, they seek, among other things, the factual bases for Smith’s contentions (FROG Nos. 16.1, 16.2). These topics are plainly within the scope of non-expert discovery. (Code Civ. Proc., §§ 2017.010, 2030.010, subds. (a), (b).)  A plaintiff may serve interrogatories on a defendant 10 days after that defendant is served or appears in the case. (Code Civ. Proc., § 2030.020, subd. (b).)  Parties responding to those interrogatories must undertake a reasonable and good faith effort to obtain all information requested in an interrogatory from parties under his control. (Code Civ. Proc., § 2030.220, subd. (c); Deyo, 84 Cal.App.3d at 782.)  Smith answered the First Amended Complaint in November 2023, so discovery served in late December is not premature. (Dunn Decl., Exs. A, B, C.)  If, after undertaking a reasonable and good faith effort to obtain responsive information, Smith has no such information, A&M is entitled to a verified response saying so.   

Sanctions 

The Court shall impose a monetary sanction against a party that unsuccessfully opposes a motion to compel further responses to interrogatories or requests for production unless it finds that the opposing party acted with substantial justification or other circumstances make the imposition of the sanction unjust.  (Code Civ. Proc., §§ 2030.290, subd. (c); 2031.300, subd. (c).)  The parties make dueling requests for sanctions.   

The Court concludes that sanctions are not warranted.  While ultimately unsuccessful, Smith had substantial justification to invoke his Fifth Amendment rights.  Smith also prevailed on the motion to compel requests for document production.  As to A&M, the Court concludes its motion to compel was well supported by the law and facts, and its failure to prevail on its motion to compel requests for production was due to a procedural defect.   

Stay 

Smith asks the Court to stay discovery.  Given that there is no credible threat of prosecution as discussed above, the Court concludes that a stay is not warranted.   

Smith’s reliance on Pacers, Inc. v. Superior Court (1984) 162 Cal.App.3d 686, is misplaced.  There, the Court of Appeal found that the defendants, who were facing the threat of criminal prosecution for the “same facts as the civil action,” were entitled to a stay of discovery because of the very real threat of criminal prosecution.  (Id. at 688–689.)  The defendants had been in a fight with DEA agents, leading the U.S. Attorney for the Southern District of California to seek indictments of the defendants. (Id. at 687.)  The grand jury rejected the indictments, but the U.S. Attorney maintained an “open file” on the case. (Id.)  In those specific factual circumstances, the Court of Appeal found a stay of discovery until the expiration of the relevant statute of limitations was warranted.  (Id. at 688–689.)  

Here, Smith admits that no prosecutor is seeking his indictment, and he further admits there is “no currently pending criminal investigation”. (Opp. at 7.)  The only issue Smith identifies on which he may face prosecution is his admitted embezzlement from Stelaro. (Opp. at 7.)  None of A&M’s discovery requests ask about his embezzlement, 

CONCLUSION 

Based on the foregoing, the Court GRANTS IN PART and DENIES IN PART Plaintiff’s motion to compel further responses to form interrogatories and requests for production and request for sanctions.   

 

IT IS SO ORDERED. 

 

DATED: June 13, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court