Judge: Elaine Lu, Case: 21STCV24026, Date: 2022-08-30 Tentative Ruling
Case Number: 21STCV24026 Hearing Date: August 30, 2022 Dept: 26
|
PATRICIA
COSTELLO-GOLDSTEIN, Plaintiff, vs. WELLS FARGO FINANCIAL NETWORK, LLC, et al., Defendants. |
Case No.: 21STCV24026 Hearing Date: August 30, 2022 [TENTATIVE] order RE: DEFENDANT TOWNSGATE WEALTH MANAGEMENT’S
MOTION TO COMPEL plaintiff’s FURTHER RESPONSES TO SPECIAL INTERROGATORIES AND
for SANCTIONS IN THE SUM OF $2,880.00 |
Background
On June 29, 2021, Patricia
Costello-Goldstein (“Plaintiff”) initiated the present action against Wells
Fargo Advisors Financial Network, LLC, Townsgate Wealth Management, Larry A.
Bernstein, Abby E. Dinkins, and Does 1 through 20 (collectively,
“Defendants”). Plaintiff’s Complaint
alleged the following causes of action: (1) Breach of Fiduciary Duty; (2)
Negligence; (3) Intentional Infliction of Emotional Distress; (4) Promissory
Fraud; (5) Negligent Misrepresentation; and (6) Constructive Fraud.
On August 9, 2021, Defendants
Townsgate Wealth Management, Larry A. Bernstein, and Abby E. Dinkins filed a
Demurrer and Motion to Strike against Plaintiff’s Complaint.
On August 16, 2021, Defendant Wells
Fargo Advisors Financial Network, LLC filed a Demurrer and Motion to Strike
against Plaintiff’s Complaint.
On December 23, 2021, Defendant
Townsgate Wealth Management filed the following two discovery motions: (1)
Defendant Townsgate Wealth Management’s Motion to Compel Plaintiff’s Further
Responses to Special Interrogatories and Sanctions in the Sum of $2,880.00; and
(2) Defendant Townsgate Wealth Management’s Motion to Compel Plaintiff’s Further
Responses to Request for Production of Documents and Sanctions in the Sum of
$2,880.00 (collectively, “Motions to Compel Further”).
On February 1, 2022, the Court ustained
Defendants’ Demurrers to the Complaint with leave to amend and granted
Defendants’ Motions to Strike Plaintiff’s Complaint with leave to amend.
On February 24, 2022, Plaintiff
filed the operative First Amended Complaint against Defendants. Plaintiff’s operative First Amended Complaint
alleges the following causes of action: (1) Breach of Contract; (2) Breach of
Fiduciary Duty; (3) Negligence; (4) Intentional Infliction of Emotional
Distress; (5) Promissory Fraud; (6) Negligent Misrepresentation; and (7)
Constructive Fraud.
On August 8, 2022, the Court issued
an Order noting that Defendant Townsgate Wealth Management had filed the
aforementioned Motions to Compel Further.
The Court’s Order instructed the parties as follows: “The parties are
ordered to meet and confer by real time conversation face-to-face or by
telephone in good faith regarding their discovery disputes within two court
days of notice of this order. The
parties are also ordered to contact the Court Clerk to schedule an informal
discovery conference to occur during the week of August 8-12, 2022 so that the
Court may assist in the event the parties are unable to resolve all of their
discovery disputes.” (Minute Order,
filed August 8, 2022.)
On August 15, 2022, the Court
sustained Defendants’ Demurrers to the first cause of action as alleged within
Plaintiff’s First Amended Complaint, only, with leave to amend. The Court overruled Defendants’ Demurrer as
to the remainder of Plaintiff’s First Amended Complaint and denied Defendants’
Motion to Strike Plaintiff’s First Amended Complaint.
On August 25, 2022, Plaintiff filed a
Request for Dismissal of the first cause of action of the operative First
Amended Complaint, which the Court granted.
Defendant Wells Fargo Advisors Financial Network, LLC answered on August
29, 2022, and the other three answers each answered August 25, 2022
A Case Management Conference is
scheduled for October 20, 2022. The
Court has yet to set a trial date in this action.
Legal Standard
“Any party may obtain discovery . .
. by propounding to any other party to the action written interrogatories to be
answered under oath.” (Code Civ. Proc.,
§ 2030.010, subd. (a).)
“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).
“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 interrogatory cannot be answered
completely, it shall be answered to the extent possible.” (Code Civ. Proc., § 2030.220, subd.
(b).) “If the responding party does not
have personal knowledge sufficient to respond fully to an interrogatory, that
party shall so state, but shall make a reasonable and good faith effort to
obtain the information by inquiry to other natural persons or organizations,
except where the information is equally available to the propounding
party.” (Code Civ. Proc., § 2030.220,
subd. (c).)
“On receipt of a response to interrogatories,
the propounding party may move for an order compelling a further response if
the propounding party deems that any of the following apply: (1) An answer to a
particular interrogatory is evasive or incomplete[;] (2) An exercise of the
option to produce documents under Section 2030.230 is unwarranted or the
required specification of those documents is inadequate[;] (3) An objection to
an interrogatory is without merit or too general.” (Code Civ. Proc., § 2030.300, subd. (a).)
A propounding party’s motion for an
order compelling a further response must be made “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 propounding party and the
responding party have agreed in writing . . . .” (Code Civ. Proc., § 2030.300, subd. (c).)
A propounding party’s motion for an
order compelling a further response must be accompanied by a meet and confer
declaration. (Code Civ. Proc., §
2030.300, subd. (b)(1).) A meet and
confer declaration in support of a motion shall state facts showing a
reasonable and good faith attempt at an informal resolution of each issue
presented by the motion.” (Code Civ. Proc. § 2016.040.)
A propounding party’s motion for an
order compelling a further response must also be accompanied by a separate
statement, outlining the text of each request, the response, and a statement of
factual and legal reasons for compelling further responses. (Cal. Rules of
Court, Rule 3.1345, subd. (a)(3).)
“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 a
further response to interrogatories, 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., § 2030.300, subd. (d).)
Discussion
Defendant Townsgate Wealth Management (“Defendant”) moves
for an Order compelling Plaintiff Patricia Costello-Goldstein’s further
response to the following Special Interrogatories: Special Interrogatory Nos.
2-6, 8-11, 13, 15-20. Defendant brings
the present Motion on the ground that Plaintiff’s responses to the
aforementioned Special Interrogatories constitute meritless, boilerplate
objections.
Meet and Confer Obligation under Code of Civil
Procedure Section 2030.300
The
Court finds Defendant has properly met and conferred in compliance with Code of
Civil Procedure section 2030.200, subdivision (b)(1). (Code Civ. Proc., § 2030.300, subd.
(b)(1).) Pursuant to the averments made
within Defendant’s supporting evidentiary Declaration, Defendant demonstrates
that, following receipt of Plaintiff’s responses, Defendant sent a meet and
confer letter to Plaintiff’s counsel on approximately November 12, 2021
concerning Plaintiff’s alleged insufficient responses. (Markun Decl., ¶ 4, Ex. C.) On November 18, 2021, Plaintiff responded to
Defendant’s meet and confer letter. (Id.
¶ 5.) On November 30, 2021, the parties
engaged in a telephonic meet and confer regarding Plaintiff’s alleged
insufficient responses to Defendant’s Special Interrogatories (Set One). (Ibid.) During the aforementioned telephonic meet and
confer, the parties agreed Plaintiff would serve a sufficient, supplemental
response no later than December 15, 2021.
(Ibid.) Despite the lapse
of this deadline, Plaintiff has failed to serve the agreed-upon supplemental
response, which necessitated the present Motion. (Ibid.) The Court finds Defendant has properly met
and conferred with Plaintiff, for the purposes of attempting to reach an
informal resolution to the issues presented within Defendant’s Motion, in
compliance with Code of Civil Procedure section 2030.200, subdivision
(b)(1). (Code Civ. Proc., § 2030.300,
subd. (b)(1).)
Defective Notice of Motion under Code of Civil
Procedure Section 2030.290
Plaintiff
argues that the Court should deny Defendant’s Motion in its entirety on the procedural
ground that Defendant noticed the present Motion under the incorrect provision
of the Code of Civil Procedure.
Specifically, Plaintiff argues that Defendant has improperly noticed the
present Motion under Code of Civil Procedure 2030.290 (provision governing
motions to compel a party’s initial responses to interrogatories), as opposed
to Code of Civil Procedure section 2030.300 (provision governing motions to
compel a party’s further response to interrogatories). (Code Civ. Proc., §§ 2030.290 [“If a party to
whom interrogatories are directed fails to serve a timely response . . . ¶(b)
The party propounding the interrogatories may move for an order compelling
response to the interrogatories.”], 2030.300 [“On receipt of a response to
interrogatories, the propounding party may move for an order compelling a
further response . . . .”].)
Plaintiff’s
argument is unpersuasive. Most
troublesome is that Plaintiff’s contention that Defendant has failed to
properly notice the present Motion under Code of Civil Procedure section
2030.300 is plainly incorrect. Defendant’s
Notice of Motion clearly states: “Defendant seeks this relief pursuant to
C.C.P. Sections . . . 2030.300 . . . .”
(Notice of Mot., at p. 2:11-12 [italics added].) Accordingly, the Court rejects Plaintiff’s
procedural argument as lacking merit.
Separate Statement under California Rules of Court,
Rule 3.1345
Plaintiff
opposes Defendant’s Motion on an additional procedural ground. In particular, Plaintiff argues that the Court
should deny Defendant’s Motion in its entirety for failure to submit a Separate
Statement which complies with California Rules of Court, Rule 3.1345. (Cal. Rules of Court, Rule 3.1345.) Plaintiff contends Defendant’s Separate
Statement is insufficient because it fails to set forth “[the] factual and
legal reasons for compelling further responses . . . as to each matter in
dispute” and fails to provide “the text of all definitions, instructions, and
other matters required to understand each discovery request and the responses
to it.” (Id., Rule 3.1345, subd.
(c)(3), (c)(4).)
Again,
Plaintiff’s argument is unpersuasive. Plaintiff’s
contention that Defendant’s Separate Statement fails to include “[the] factual
and legal reasons for compelling [a] further response” is unsupported. Defendant’s Separate Statement is not as bare
as Plaintiff would lead this Court to believe.
Defendant’s Separate Statement sufficiently outlines the factual and
legal reasons for compelling Plaintiff’s further response and specifically
addresses the merits of each objection asserted within Plaintiff’s responses. (See Def.’s Separate Statement, at pp.
2-16.)
Plaintiff
also contends that Defendant’s Separate Statement fails to provide “the text of
all definitions.” This contention is
also meritless. The definitions that
Plaintiff asserts are lacking – for terms such as “Plaintiff,” “Complaint,” “Bernstein,”
“Dinkins,” “Defendants,” “Action,” “Documents” and “Relating To” -- are simply not
necessary to “understand each discovery request” presently in dispute. (Opp., at p. 3:24-27.) The Court finds that these terms are self-explanatory
and self-evident, and a definition is not “necessary” to understand the Special
Interrogatories within which they are referenced.
Accordingly,
the Court finds Defendant’s Separate Statement to be sufficient.
Special Interrogatory Nos. 2-4, 6, 9, 10-11, 13, 16, 19, and 20
The
Court will first address Plaintiff’s objections to the following Special Interrogatories
(Set One): Special Interrogatory Nos. 2-4, 6, 9, 10-11, 13, 16, 19, and 20.
Special
Interrogatory No. 2 requests: “Identify all of the specific financial records
that PLAINTIFF provided to BERNSTEIN as referenced in Paragraph 11 of the
COMPLAINT (alleging that PLAINTIFF ‘provided Bernstein with documentation
concerning . . . her other brokerage accounts, with a view towards transferring
her assets to Townsgate and Wells Fargo for Bernstein to manage.’). (Def.’s Separate Statement, at p. 2.)
Special
Interrogatory No. 3 requests: “Identify all of the specific financial
information that PLAINTIFF provided BERNSTEIN as referenced in Paragraph 11 of
the COMPLAINT (alleging that ‘plaintiff had numerous oral and written
communications with Bernstein in which she divulged to him intimate details
concerning her financial condition and financial affairs . . .’).” (Def.’s Separate Statement, at p. 3.)
Special
Interrogatory No. 4 requests: “Identify all of the information comprising the
“divorce strategy” that PLAINTIFF allegedly disclosed to BERNSTEIN at issue in
Paragraphs 11, 15, 16, 19, 20, 24, 25, 32, 36, 39 and 40 of the COMPLAINT.” (Def.’s Separate Statement, at p. 4.)
Special Interrogatory No. 6 requests: “Identify all
of the specific ‘highly sensitive and confidential information about her
divorce strategy’ that PLAINTIFF ‘shared with Bernstein’ as alleged in
Paragraph 11 of the COMPLAINT.” (Def.’s
Separate Statement, at p. 6.)
Special Interrogatory No. 9 requests: “Identify the
specific information that PLAINTIFF disclosed to DINKINS ‘when Dinkins
pressured plaintiff in April 2020 to speak with Bernstein’ as alleged in
Paragraph 15 of the COMPLAINT.” (Def.’s
Separate Statement, at p. 7.)
Special
Interrogatory No. 10 requests: “State all facts supporting the contention in
Paragraph 15 of the COMPLAINT that ‘Dinkins, who has a history of improperly
gossiping about her clients and disclosing to others confidential financial
information about her clients.’” (Def.’s
Separate Statement, at p. 8.)
Special
Interrogatory No. 11 requests: “Identify each and every instance within your
personal knowledge of DINKINS ‘improperly gossiping about her clients and
disclosing to others confidential financial information about her clients’ as
alleged in Paragraph 15 of the COMPLAINT.”
(Def.’s Separate Statement, at p. 9.)
Special
Interrogatory No. 13 requests: “On what specific date did PLAINTIFF first
become aware of DINKINS’ alleged ‘history of improperly gossiping about her
clients and disclosing to others confidential financial information about her
clients’ as referenced in Paragraph 15 of the Complaint.” (Def.’s Separate Statement, at p. 10.)
Special
Interrogatory No. 16 requests: “Paragraph 16 of the COMPLAINT alleges that ‘plaintiff
has had to incur and continues to incur significant additional legal fees and
costs in her pending divorce proceeding by reason of [DEFENDANTS’ alleged
misconduct].’ Is PLAINTIFF seeking to recover any of those ‘attorneys’ fees and
costs’ as an element of PLAINTIFF’s damages in this ACTION?” (Def.’s Separate Statement, at p. 12.)
Special
Interrogatory No. 19 requests: “State the name and contact information of each
person whom PLAINTIFF contends has personal knowledge of the events at issue in
PLAINTIFF’s COMPLAINT.” (Def.’s Separate
Statement, at p. 14.)
Special
Interrogatory No. 20 requests: “State the name and contact information of each
PERSON whom PLAINTIFF contends has possession, custody or control of DOCUMENTS
RELATING TO the events at issue in PLAINTIFF’s COMPLAINT.” (Def.’s Separate Statement, at p. 15.)
Plaintiff’s
responses to Defendant’s Special Interrogatory Nos. 2-4, 6, 9, 10-11, 13, 16,
19, and 20 are nearly identical. To each
of these Special Interrogatories, Plaintiff advances three (3) objections. First, Plaintiff objects on the ground that the
Special Interrogatory is “compound, conjunctive, or disjunctive, in violation
of C.C.P. § 2030.060(f).” Second,
Plaintiff objects on the ground that the Special Interrogatory “is not full and
complete in and of itself in violation of C.C.P. § 2030.060(d).” Finally, Plaintiff objects on the ground that
various terms employed in the above Special Interrogatories—including the terms,
“identify,” “financial records,” “information,” “specific information”
“information comprising the ‘divorce strategy’,” “highly sensitive and
confidential information about her divorce strategy,” and “supporting”—are “not
defined, vague, ambiguous, and unintelligible in the context of this
interrogatory.” The Court addresses each
of Plaintiff’s objections in turn.
Objection—Compound,
Conjunctive, or Disjunctive
Code of Civil
Procedure section 2030.060, subdivision (f) provides, “[n]o specially prepared
interrogatory shall contain subparts, or a compound, conjunctive, or
disjunctive question.” (Code Civ. Proc.,
§ 2030.060, subd. (f).) Where an
interrogatory covers two (2) discrete matters in a single question, an
objection on the grounds of compound and disjunctive may be sustained. (Weil & Brown, Cal. Practice Guide: Civil
Procedure Before Trial (The Rutter Group 2021 Update) ¶ 8:978.)
Here, the Court finds Plaintiff’s
objection that these special interrogatories are “compound,
conjunctive, or disjunctive” to be meritless.
Upon review, the only Special Interrogatories which may be potentially subject
to such an objection would be Special Interrogatory Nos. 19 and 20, which
request that Plaintiff identify the name and contact information of individuals
who have “personal knowledge of the events at issue in PLAINTIFF’s COMPLAINT” or
who may possess “DOCUMENTS RELATING TO the events at issue in PLAINTIFF’s
COMPLAINT.” (Def.’s Separate Statement,
at pp. 14-15.) However, the Court is
unpersuaded an individual’s name and contact information constitute sufficiently
different or “discrete” topics for the purposes of rendering Special
Interrogatory Nos. 19 and 20 susceptible to an objection on the ground of
“compound” or “disjunctive.” Accordingly, the Court overrules Plaintiff’s
objection of “compound, conjunctive, or disjunctive” with respect to Special
Interrogatory Nos. 2-4, 6, 9, 10-11, 13, 16, 19, and 20.
Objection—Not
Full and Complete In and Of Itself
Code
of Civil Procedure section 2030.260, subdivision (d) provides, “Each
interrogatory shall be full and complete in and of itself.” (Code Civ. Proc., § 2030.260, subd.
(d).) “ ‘The requirement that each
interrogatory be “full and complete in and of itself” is violated where resort
must necessarily be made to other materials in order to answer the
question. [Citation.]’ [Citation.]”
(Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1289, citing Weil
& Brown, California Practice Guide: Civil Procedure Before Trial (The
Rutter Group 2009), at p. 8F-21 [emphasis in original].) However, “reference to other materials or
documents or incorporation by reference of such materials is prohibited [only]
where the effect is to undermine the rule of 35[,]” that is, the rule which
proscribes the propounding of more than thirty-five (35) special
interrogatories upon a party. (Id.
at p. 1290.) In other words, a party’s
reference to other materials within a special interrogatory will be
impermissible only where such a reference “effectively” and practically
requires the responding party’s response to more than thirty-five (35) special
interrogatories. (Ibid. [“
‘[Plaintiff’s] interrogatories were not “full and complete in and of
(themselves)” because they required reference to transcripts of [plaintiff’s]
deposition testimony. [Plaintiff] was
effectively asking more than 10,000 separate questions (violating the Rule of
35).’ ”].)
The
Court recognizes that Defendant’s Special Interrogatory Nos. 2-4, 6, 9, 10-11,
13, 16, 19, and 20 expressly reference Plaintiff’s operative Complaint and
request specific information regarding the specific allegations included within
Plaintiff’s operative Complaint. (E.g.,
Def.’s Separate Statement, at p. 3 [Special Interrogatory No. 3 states, “Identify
all of the specific financial information that PLAINTIFF provided BERNSTEIN as referenced
in Paragraph 11 of the COMPLAINT (alleging that ‘plaintiff had numerous oral and
written communications with Bernstein in which she divulged to him intimate
details concerning her financial condition and financial affairs . . .’).”].) Though Defendant’s Special Interrogatories will
require Plaintiff to reference outside materials for the purposes of providing
a response (i.e., Plaintiff’s operative Complaint), the Court finds Plaintiff’s
objection under Code of Civil Procedure section 2030.260, subdivision (d) to be
meritless because such a reference has not been employed by Defendant to
violate the “rule of 35.” (Clement,
supra, 177 Cal.App.4th at p. 1290.)
Each of Defendant’s Special Interrogatories references Plaintiff’s
Complaint for the purposes of seeking a single item of information—for example,
identification of the “financial information” which Plaintiff allegedly shared
with Defendant Larry A. Bernstein, or identification of Plaintiff’s alleged
“divorce strategy” which she shared with Defendant Larry A. Bernstein. (Def.’s Separate Statement, at pp. 3-4
[Special Interrogatory Nos. 3-4.) Defendant’s
Special Interrogatories do not reference Plaintiff’s Complaint for the purposes
of requesting information over and beyond thirty-five (35) categories of
information. Accordingly, the Court
finds Plaintiff’s objection under Code of Civil Procedure section 2030.260,
subdivision (d) is meritless, and this objection is overruled with respect to
Defendant’s Special Interrogatory Nos. 2-4, 6, 9, 10-11, 13, 16, 19, and 20.
Objection—Not
Defined, Vague, Ambiguous, and Unintelligible
An
objection on the ground that an interrogatory is vague and ambiguous will only
be sustained where the interrogatory is wholly unintelligible and where the
nature of the information sought is unascertainable. (Deyo v. Kilbourne (1978) 84
Cal.App.3d 771, 783 [“A party may not deliberately misconstrue a question for
the purpose of supplying an evasive answer. [Citation.] Indeed, where the
question is somewhat ambiguous, but the nature of the information sought is
apparent, the proper solution is to provide an appropriate response.”].)
Here,
the Court finds Plaintiff’s objection of “not defined, vague, ambiguous, and
unintelligible” to be meritless.
Plaintiff contends Defendant’s Special Interrogatories (Set One) employs
terms which are not defined and which render each Special Interrogatory vague,
ambiguous, and unintelligible.
Specifically, Plaintiff takes issue with the following terms—“identify,”
“financial records,” “information,” “specific information” “information
comprising the ‘divorce strategy’,” “highly sensitive and confidential
information about her divorce strategy,” and “supporting.” The Court observes that the aforementioned
terms do not, and cannot, render Defendant’s Special Interrogatories “wholly
unintelligible.” The meaning of each
term is plainly clear or, alternatively, Defendant is merely requesting that
Plaintiff provide information with respect to the terms and allegations
expressly included in Plaintiff’s own operative Complaint. For example, Plaintiff herself has repeatedly
referenced her “divorce strategy” within the operative Complaint and cannot now
maintain that Defendant’s adoption of Plaintiff’s term is vague, ambiguous, or
unintelligible. Accordingly, the Court
finds Plaintiff’s objection of “not defined, vague, ambiguous, and
unintelligible” is meritless. The Court
overrules this objection with respect to Defendant’s Special Interrogatory Nos.
2-4, 6, 9, 10-11, 13, 16, 19, and 20.
Conclusion
and Findings
The
Court finds Plaintiff’s objections in response to Defendant’s Special
Interrogatory Nos. 2-4, 6, 9, 10-11, 13, 16, 19, and 20 constitute “meritless
objections,” and, therefore, Defendant is entitled to a further response. (Code Civ. Proc., § 2030.300, subd. (a)(3) “On
receipt of a response to interrogatories, the propounding party may move for an
order compelling a further response if the propounding party deems that . . .
¶(3) An objection to an interrogatory is without merit or too general.”].) Accordingly, Defendant’s Motion to Compel
Further Responses to Special Interrogatories (Set One) is GRANTED, with respect
to Special Interrogatory Nos. 2-4, 6, 9, 10-11, 13, 16, 19, and 20.
Special Interrogatory
Nos. 5, 8, and 15
Next, the Court considers Plaintiff’s objections to
Defendant’s Special Interrogatory Nos. 5, 8, and 15.
Special Interrogatory No. 5 requests: “Identify the
brokerage name and account number for each of the ‘brokerage accounts’ at issue
in Paragraph 11 of the COMPLAINT (alleging that PLAINTIFF ‘provided Bernstein
with documentation concerning ... her other brokerage accounts, with a view
towards transferring her assets to Townsgate and Wells Fargo for Bernstein to
manage’).” (Def.’s Separate Statement,
at p. 5.)
Special
Interrogatory No. 8 requests: “Identify the date and time of each of the
“numerous communications” between PLAINTIFF and DINKINS “in which [DINKINS]
strongly pressed Plaintiff to move all of her assets to Townsgate and Wells
Fargo for Bernstein to manage” as referenced in Paragraph 13 of the COMPLAINT.” (Def.’s Separate Statement, at p. 7.)
Special
Interrogatory No. 15 requests: “State the name and contact information of each
of PLAINTIFF’s ‘neighbors and friends’ at issue in Paragraph 15 of the COMPLAINT
(which alleges that ‘[DINKINS] informed one or more of plaintiff’s neighbors
and friends that plaintiff was being unreasonable in the divorce proceeding,
was a liar, and was in need of mental health counseling’).” (Def.’s Separate Statement, at p. 11.)
Plaintiff’s
responses to Special Interrogatory Nos. 5, 8, and 15 are identical. Plaintiff advances the following two (2)
objections, as follows: “Objection on the following grounds: (1) the
interrogatory is compound, conjunctive, or disjunctive in violation of C.C.P. §
2030.060(f); and (2) the interrogatory is not full and complete in an[d] of
itself in violation of C.C.P. § 2030.060(d).”
The Court addresses Plaintiff’s objections in turn, respectively.
Objection—Compound,
Conjunctive, or Disjunctive
The
Court has reviewed Plaintiff’s objection to Defendant’s Special Interrogatory
Nos. 5, 8, and 15. Plaintiff’s objection
on the ground of “compound, conjunctive, or disjunctive” is meritless. The Court recognizes that Defendant’s Special
Interrogatory Nos. 5, 8, and 15 request Plaintiff’s disclosure of “the
brokerage name and account number” of each brokerage account Plaintiff
provided to Defendant Larry A. Bernstein, “the date and time” Defendant
Abby E. Dinkins allegedly persuaded Plaintiff to move her assets to Defendant
Townsgate Wealth Management, and “the name and contact information” of
Plaintiff’s neighbors or friends who Plaintiff informed about her divorce
proceedings. However, Plaintiff’s
objections are meritless against each of the aforementioned Special
Interrogatories because the Special Interrogatories presently in dispute each
concerns a single transaction and does not require Plaintiff to disclose of
information involving separate and discrete categories of information. (Weil & Brown, supra, ¶
8:978 [where an interrogatory covers two (2) discrete matters in a single
question, an objection on the grounds of compound and disjunctive may be
sustained].) Accordingly, the Court
finds Plaintiff’s objection on the ground of “compound, conjunctive, or
disjunctive” is meritless. This
objection to Special Interrogatory Nos.
5, 8, and 15 is overruled.
Objection—Not
Full and Complete In and Of Itself
For
the same reasons set forth in the preceding sub-section of this Order regarding
Plaintiff’s objections on the ground of “not complete in and of itself,” the
Court finds Plaintiff’s objection to Special Interrogatory No. 5, 8, and 15 on
the ground of “not complete in and of itself” is meritless. The Court recognizes that Defendant’s Special
Interrogatory Nos. 5, 8, and 15 require Plaintiff to reference certain
paragraphs within her operative Complaint for the purposes of responding to the
aforementioned Special Interrogatories.
(Def.’s Separate Statement, at p. 7 [Special Interrogatory No. 8 requests:
“Identify the date and time of each of the “numerous communications” between
PLAINTIFF and DINKINS “in which [DINKINS] strongly pressed Plaintiff to move
all of her assets to Townsgate and Wells Fargo for Bernstein to manage” as
referenced in Paragraph 13 of the COMPLAINT.”].) However, Defendant’s Special Interrogatory
Nos. 5, 8, and 15 are not susceptible to Plaintiff’s objection because Defendant’s
reference to outside materials (i.e., Plaintiff’s operative Complaint) does not
violate the “rule of 35.” (Clement,
supra, 177 Cal.App.4th at p. 1290.)
Defendant’s Special Interrogatory Nos. 5, 8, and 15 reference
Plaintiff’s Complaint for the purposes of seeking a single item of
information—for example, identification of the “brokerage account” Plaintiff
shared with Defendant Larry A. Bernstein, or identification of the time period
when Defendant Abby E. Dinkins pressured Plaintiff to “move all of her assets
to [Defendant] Townsgate and Wells Fargo.” (Def.’s Separate Statement, at pp. 5, 7
[Special Interrogatory Nos. 5 and 8].)
Defendant’s Special Interrogatories do not reference Plaintiff’s
Complaint for the purposes of requesting information over and beyond
thirty-five (35) categories of information.
Accordingly, Plaintiff’s objection under Code of Civil Procedure section
2030.260, subdivision (d) is meritless and overruled with respect to
Defendant’s Special Interrogatory Nos. 5, 8, and 15.
Conclusions
and Findings
Plaintiff’s
objections to Defendant’s Special Interrogatory Nos. 5, 8, and 15 constitute
“meritless objections,” and, therefore, Defendant is entitled to a further
response. (Code Civ. Proc., § 2030.300,
subd. (a)(3) “On receipt of a response to interrogatories, the propounding
party may move for an order compelling a further response if the propounding
party deems that . . . ¶(3) An objection to an interrogatory is without merit
or too general.”].) Accordingly,
Defendant’s Motion to Compel Further Responses to Special Interrogatories (Set
One) is GRANTED, with respect to Special Interrogatory Nos. 5, 8, and 15.
Special Interrogatory
Nos. 17 and 18
Finally,
the Court considers Plaintiff’s
objections in response to Defendant’s Special Interrogatory Nos. 17 and 18.
Special
Interrogatory No. 17 requests: “If Plaintiff is seeking to recover any of the ‘attorneys’
fees and costs’ at issue in Paragraph 16 of the COMPLAINT as an element of
PLAINTIFF’s damages in this ACTION: State the total amount of such attorneys’
fees and costs incurred as of June 29, 2021 when PLAINTIFF filed this action.” (Def.’s Separate Statement, at p. 13.)
Special
Interrogatory No. 18 requests: “If Plaintiff is seeking to recover any of the
“attorneys’ fees and costs” at issue in Paragraph 16 of the COMPLAINT as an
element of PLAINTIFF’s damages in this ACTION: State the total amount of such
attorneys’ fees and costs incurred as the date of PLAINTIFF’s response to this
first set of Special Interrogatories.”
(Def.’s Separate Statement, at p. 13.)
Plaintiff’s
response to Special Interrogatory Nos. 17 and 18 are identical, and state as
follows: “Objection on the following grounds: (1) the interrogatory is not full
and complete in and of itself in violation of C.C.P. § 2030.060(d); and (2) the
interrogatory improperly seeks the premature disclosure of expert witness
opinions.” The Court addresses
Plaintiff’s objections in turn, respectively.
Objection—Not
Full and Complete In and Of Itself
For
the reasons stated above, the Court finds Plaintiff’s objection to Defendant’s Special Interrogatory Nos. 17
and 18 on the ground of “not complete in and of itself” to be meritless. The Court recognizes that Defendant’s Special
Interrogatory Nos. 17 and 18 require Plaintiff to reference certain paragraphs
within her operative Complaint for the purposes of responding to the
aforementioned Special Interrogatories.
However, Defendant’s Special Interrogatory Nos. 17 and 18 are not
susceptible to Plaintiff’s objection because Defendant’s reference to outside
materials (i.e., Plaintiff’s operative Complaint) does not violate the “rule of
35.” (Clement, supra, 177
Cal.App.4th at p. 1290.) Defendant’s
Special Interrogatory Nos. 17 and 18 reference Plaintiff’s Complaint for the
purposes of seeking a single item of information—for example, identification of
the amount of attorneys’ fees Plaintiff has incurred in this action. (Def.’s Separate Statement, at p. 13) Defendant’s Special Interrogatories do not
reference Plaintiff’s Complaint for the purposes of requesting information over
and beyond thirty-five (35) categories of information. Accordingly, Plaintiff’s objection under Code
of Civil Procedure section 2030.260, subdivision (d) is meritless and is
overruled with respect to Defendant’s Special Interrogatory Nos. 17 and 18.
Objection—Improperly
Seeks Premature Disclosure of Expert Witness Opinions
Plaintiff’s
objection to Special Interrogatory Nos. 17 and 18, on the ground the Special
Interrogatories “improperly seek premature disclosure of expert witness
opinions” constitute general and meritless objections. Plaintiff has failed to cite any case law or
statutory authority which outlines the basis for Plaintiff’s objection. Further, nothing in these interrogatories
requires Plaintiff to disclose information concerning the attorneys’ fees
incurred in this action or contemplates the disclosure of expert testimony or
opinion. Accordingly, Plaintiff’s
objection on this ground is general, meritless, and hereby overruled with
respect to Special Interrogatory Nos. 17 and 18.
Conclusion
and Findings
The
Court concludes Plaintiff’s objections in response to Defendant’s Special
Interrogatory Nos. 17 and 18 constitute “meritless objections,” and, therefore,
Defendant is entitled to a further response.
(Code Civ. Proc., § 2030.300, subd. (a)(3) “On receipt of a response to
interrogatories, the propounding party may move for an order compelling a
further response if the propounding party deems that . . . ¶(3) An objection to
an interrogatory is without merit or too general.”].) Accordingly, Defendant’s Motion to Compel
Further Responses to Special Interrogatories (Set One) is GRANTED with respect
to Special Interrogatory Nos. 17 and 18.
Imposition of Monetary Sanctions under Code of Civil
Procedure section 2030.300
“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 a
further response to interrogatories, 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., § 2030.300, subd. (d).)
The Court finds Plaintiff has without
justification unsuccessfully opposed Defendant’s present Motion, and therefore,
monetary sanctions are proper and warranted.
(Code Civ. Proc., § 2030.300, subd. (d).) Plaintiff’s boilerplate objections to Defendant’s
Special Interrogatories (Set One) wholly lacked merit. The Court imposes monetary sanctions against
Plaintiff and Plaintiff’s counsel, collectively, in an amount of $2,240.00
($320 hourly rate multiplied by 7 hours for preparation of the Motion, preparation
of the Reply, and attending the hearing).
(Markun Decl., ¶ 7.)
Conclusion and ORDER
Defendant Townsgate Wealth
Management’s Motion to Compel Further Responses to Special Interrogatories and
Sanctions is GRANTED.
Plaintiff Patricia
Costello-Goldstein is ordered to serve further, verified, code-compliant
response to Defendant’s Special Interrogatories (Set One) Nos. 2-6, 8-11, 13,
15-20, without objections, within twenty (20) days of this Court’s Order.
Plaintiff
Patricia Costello-Goldstein and Plaintiff’s counsel of record Steiner &
Libo are, collectively, ordered to pay monetary sanctions to Defendant
Townsgate Wealth Management in a sum of $2,240.00 within 30 days. (Code Civ. Proc., § 2030.300, subd. (d).)
The
analysis in this order should provide guidance to the parties with regard to Defendant
Townsgate’s motion to compel Plaintiff’s further responses to requests for
production of documents, which is set for hearing on September 13, 2022. The parties are ordered to meet and confer
by real time conversation face-to-face or by telephone in good faith within three
days regarding Defendant
Townsgate’s motion to compel Plaintiff’s further responses to requests for
production of documents, which is set for hearing on September 13, 2022. No later than three court days before
the September 13, 2022 hearing, the parties must file a joint statement
summarizing the meet and confer efforts and setting forth all items of discovery
that remain in dispute. For each
discovery request still in dispute, the joint statement must include: (1) the
text of the request or discovery item in dispute; and (2) all responses,
answers, and objections, already provided.
The parties are not to provide any argument in the joint statement. For any matters withheld on the basis of a
privilege or other protection, a privilege log must be prepared, setting forth
the title, subject, and nature of the claim of privilege with respect to each
document. The privilege log should also
include a declaration generally detailing the underlying factual predicates for
each claimed privilege.
For any motion to compel further in
this action that has been filed or will be filed in the future, the responding
party’s voluntary service of supplemental responses prior to the hearing will
moot all issues for the motion except for sanctions. The parties are ordered to meet and confer
regarding sanctions and to file a joint statement within 5 days of the service
of supplemental responses; the joint statement must advise that supplemental
responses have been served and advise whether the parties have been able to
resolve the sole remaining issue of sanctions.
In order to demonstrate that supplemental responses have been served
thereby mooting a pending motion to compel further, the responding party must
also file and serve a copy of the verified supplemental responses no later than
when the opposition is due. If the
moving party deems that the supplemental responses remain deficient and/or
non-code compliant, the moving party must timely (within 45 days of service of
the supplemental responses) file and serve a new motion to compel further
complying with all statutory requirements, including a meet and confer
regarding the supplemental responses and a separate statement that includes all
responses (original and supplemental).
On August 15, 2022, the Court
sustained Defendants’ Demurrers to the first cause of action as alleged within
Plaintiff’s First Amended Complaint, only, with leave to amend.
On August 25, 2022, Plaintiff elected
not to amend the first cause of action pursuant to the leave granted on August 15, 2022 and
instead filed a Request for Dismissal of the first cause of action. All four named defendants have now answered,
and the case is at issue. Accordingly,
the Court hereby advances the Case Management Conference from October 20, 2022 to
September 15, 2022 at 8:30 am. All
parties are to file case management statements
at least 5 days in advance and to appear at the CMC.
Moving Party to give notice within
seven days.
DATED: August 30, 2022 ___________________________
Elaine Lu
Judge of the Superior Court