Judge Kerry Bensinger, Case Number: 22STCV34766, Date: 2024-03-07 Tentative Ruling

On October 31, 2022, Plaintiff, Suma Gowda, filed this employment action against Defendants, healthPiper LLC, healthPiper PC, and Dr. Joshua Edward Freedman.

On February 2, 2023, Plaintiff served healthPiper LLC and healthPiper PC (collectively, “healthPiper Defendants”) with Special Interrogatories, Set One, and Requests for Production of Documents, Set One. On April 7, 2023, after Plaintiff granted four extensions to respond to discovery, healthPiper Defendants served objection-only responses. Plaintiff took issue with the responses. Thereafter, the parties met and conferred resulting in healthPiper Defendants serving supplemental responses on April 25, 2023 and October 16, 2023 to a portion of Plaintiff’s discovery requests. Plaintiff still found the responses to be deficient.

On December 1, 2023, the parties participated in an Informal Discovery Conference (IDC). The issues were not resolved at the IDC. The court ordered the parties to meet and confer and directed Plaintiff to prepare a Notice of Outcome regarding the meet and confer conference.

On December 13, 2023, Plaintiff filed a Notice of Outcome. The Notice states, in relevant part, that healthPiper Defendants agreed to provide further information and documents responsive to various interrogatories and production requests by January 12, 2024. The Notice also states that the deadline for Plaintiff to file motion to compel further responses is extended to March 14, 2024.

On January 12, 2024, healthPiper Defendants served additional documents which were not responsive to the at-issue productions requests. Further, healthPiper Defendants did not provide further responses to the at-issue special interrogatories.

The parties met and conferred once more. healthPiper Defendants served responses to some of the special interrogatories on January 26, 2024, but did not produce any additional documents.

On February 13, 2024, Plaintiff filed these motions to compel healthPiper Defendants to provide further responses to Special Interrogatories (“SROG”), Nos. 8-13, 34, and 45-48, and Requests for Production of Documents (“RPD”), Nos. 5, 6, 8, and 15-19. Plaintiff requests sanctions against healthPiper Defendants and their counsel of record.

Under Code of Civil Procedure sections 2030.300 and 2031.310, parties may move for a further response to interrogatories and requests for production of documents where an answer to the requests are evasive or incomplete or where an objection is without merit or too general.¿ A motion to compel further response to requests for production “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.”¿ (Code Civ. Proc., § 2031.310, subd. (b)(1).)¿¿

Notice of the motions must be given within 45 days of service of the verified response, otherwise, the propounding party waives any right to compel a further response.¿ (Code Civ. Proc., §§ 2030.300, subd. (c); 2031.310, subd. (c).)¿ The motions must also be accompanied by a meet and confer declaration.¿ (Code Civ. Proc., §§ 2030.300, subd. (b)(1); 2031.310, subd. (b)(2).)¿¿

Finally, Cal. Rules of Court, Rule 3.1345 requires that all motions or responses involving further discovery contain a separate statement with 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).)¿

Code of Civil Procedure section 2023.030 is a general statute authorizing the Court to impose discovery sanctions for “misuse of the discovery process,” which includes (without limitation) a variety of conduct such as: making, without substantial justification, an unmeritorious objection to discovery; making an evasive response to discovery; and unsuccessfully and without substantial justification making or opposing a motion to compel or limit discovery.¿ (Code Civ. Proc., § 2023.010.)¿¿¿

If sanctions are sought, Code of Civil Procedure section 2023.040 requires that the notice specify the identity of the person against whom sanctions are sought and the type of sanction requested, that the motion be supported in the points and authorities, and the facts be set forth in a declaration supporting the amount of any monetary sanction.¿¿

If the court finds that a party has unsuccessfully made or opposed a motion to compel responses to interrogatories or inspection demands, the court “shall impose a monetary sanction . . . 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., §§ 2030.290, subd. (c), 2031.310, subd. (h).)¿¿¿

Sanctions against counsel:¿ The court in Kwan Software Engineering, Inc. v. Hennings (2020) 58 Cal.App.5th 57, 81 (Hennings) noted that discovery sanctions against an attorney are governed by a different standard than sanctions against a party:¿¿¿¿

By the terms of the statute, a trial court under section 2023.030(a) may not impose monetary sanctions against a party’s attorney unless the court finds that the attorney “advised” the party to engage in the conduct resulting in sanctions. (§ 2023.030(a); Ghanooni v. Super Shuttle (1993) 20 Cal.App.4th 256, 261, 24 Cal.Rptr.2d 501.)¿ “Unlike monetary sanctions against a party, which are based on the party's misuse of the discovery process, monetary sanctions against the party's attorney require a finding the ‘attorney advis[ed] that conduct.’ ” (Ibid.) “It is not enough that the attorney's actions were in some way improper.” (Corns v. Miller (1986) 181 Cal.App.3d 195, 200, 226 Cal.Rptr. 247 (Corns).) Because an attorney's advice to a client is “peculiarly within [his or her] knowledge,” the attorney has the burden of showing that he or she did not counsel discovery abuse. (Ibid.) Accordingly, when a party seeking sanctions against an attorney offers sufficient evidence of a misuse of the discovery process, the burden shifts to the attorney to demonstrate that he or she did not recommend that conduct. (Id. at pp. 200–201, 226 Cal.Rptr. 247; Ghanooni, at p. 262, 24 Cal.Rptr.2d 501.)¿

Unless notice of the motion is given within 45 days of the service of the verified response, or any supplemental verified response, or any specific later date to which the requesting party and the responding party have agreed in writing, the requesting party waives any right to compel further response to the interrogatory, demand for inspection, or request for admission.¿ (Code Civ. Proc., §§ 2030.290, subd. (c), 2031.290, subd. (c).)¿ Here, Plaintiff filed these motions on February 13, 2024 which is consistent with the parties written agreement.¹ (See 12/13/23 Notice of Outcome.)¿ Accordingly, the motions are timely.¿

healthPiper Defendants attack the timeliness of these motions on another ground. Specifically, they contend the motions were not timely filed in relation to the March 7, 2024 hearing date. Motions must be filed at least sixteen (16) court days before the hearing. (Code Civ. Proc., § 1005, subd. (b).) An additional two (2) court days are added when serving electronically. (Code Civ. Proc., § 1010.6, subd. (a)(2)(B).) Accounting as well for court holidays, the deadline to file these motions was February 8, 2024. healthPiper Defendants are therefore technically correct. However, the argument is not well-taken because healthPiper Defendants have been aware of the issues raised by these motions for over a year. healthPiper Defendants fail to point to any prejudice resulting from Plaintiff’s untimely filings. Indeed, there is no prejudice where, as here, healthPiper Defendants were able to respond to the merits of Plaintiff’s motions. The issues have been briefed and are ripe for review. The court exercises its discretion to consider the merits. (See Cal. Rules of Court, rule 3.1300(d).)

healthPiper Defendants next attack these motions based on Plaintiff’s alleged failure to meet and confer prior to filing these motions as to some of the at-issue discovery requests. This argument is also not well-taken. As detailed above, the parties engaged in numerous meet and confer conferences and an IDC. Plaintiff’s motions are supported by meet and confer declarations. (See Tojarieh Decls.) Notwithstanding these efforts, the impasse on the discovery responses persists. The procedural requirements have been met.[1]

No. 8: For each PERSON who has an equity share in YOUR business, state the amount of equity they own and the date they received it.

No. 9: IDENTIFY all venture capital firms, private investors, or any other investors who invested in YOUR business.

No. 10: For each PERSON who invested in YOUR business, state the amount they invested and the date they made the investment.

No. 11: If YOU received a valuation for YOUR business, state in details all facts concerning the valuation, including the date YOU received the valuation, the amount of the valuation, and the PERSON who provided you with valuation.

No. 12: State YOUR gross revenues for each year during the RELEVANT TIME PERIOD.

In response, healthPiper Defendants asserted the same general, boilerplate objections to each request based on the following laundry list: vagueness, ambiguity, uncertainty, not reasonably calculated to lead to the discovery of admissible evidence, unduly burdensome, and speculation. They also asserted objections based on attorney-client privilege, attorney work product doctrine, and privacy. None of the objections are well taken. healthPiper Defendants do not demonstrate how the foregoing discovery requests are vague, ambiguous, uncertain or intrude upon privilege. To the contrary the requests are sufficiently clear and do not, on their face, seek information implicating any privilege. As Plaintiff points out, Nos. 8-13 do not inquire into oral or written communication between healthPiper Defendants and their attorney nor do they seek attorney work product. And even if Nos. 8-13 sought identification of a document protected by the work-product doctrine (they do not), healthPiper Defendants would still be required to identify the documents. (See Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 293 [“[i]f an interrogatory asks the responding party to identify a document, an adequate response must include a description of the document.”].) Moreover, these requests are directly relevant to Plaintiff’s claims and damages. Further, any privacy concerns are obviated by the protective order entered into by the parties. (Tojarieh Decl., Ex. 26.) Further responses are warranted.

Plaintiff seeks an order compelling a further response to RPD, Nos. 5, 6, 8, and 15-19,

Nos. 5, 6, and 8 concern communications between Plaintiff, Defendant Dr. Joshua Freedman, and third parties. healthpiper Defendants represent the following. During meet and confer efforts, healthPiper Defendants agreed to a rolling production of documents and engaged an e-Discovery vendor to undertake the data collection process. In all, the data at issue consists of 131,783 documents which will require an additional four to five weeks for attorney review prior to production. (See Ledergerber Decl.) Based on the foregoing, healthPiper Defendants argue the motions should be denied because Plaintiff filed them notwithstanding Healthpiper’s good faith efforts and communications regarding the production of the documents.

In Reply, Plaintiff argues these are misrepresentations. In support, Plaintiff refers the court to the Notice of Outcome filed on December 13, 2023 wherein healthPiper Defendants unequivocally stated they would produce all communications responsive to Nos. 5, 6, and 8 by January 12, 2024.

The Notice of Outcome supports Plaintiff’s position. (See 12/13/23 Notice of Outcome, ¶ 2.) There is no language contemplating a rolling production. healthPiper Defendants, without question, agreed to produce the documents by January 12, 2024. In essence, Plaintiff seeks to compel compliance rather than a further response. If a party filing a response to a demand for inspection, copying, testing or sampling thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that party’s statement of compliance, the demanding party may move for an order compelling compliance.¿ (Code Civ. Proc., § 2031.320, subd. (a).) The court construes Plaintiff’s motion accordingly. healthPiper Defendants must produce the documents.

No. 15: Each and every DOCUMENT reflecting the amount of equity any PERSON has in YOUR business.

No. 16: Each and every DOCUMENT reflecting investments made by any venture capital firms, private investors, or any other investors in YOUR business. No. 17: Each and every DOCUMENT reflecting any valuations YOU received for YOUR business.

No. 18: Each and every DOCUMENT reflecting YOUR annual revenues during the RELEVANT TIME PERIOD.

No. 19: Each and every DOCUMENT reflecting YOUR annual profits during the RELEVANT TIME PERIOD.

In response, healthPiper Defendants asserted the same general, boilerplate objections to each request based on the following (albeit shorter) list: vagueness, ambiguity, uncertainty, not reasonably calculated to lead to the discovery of admissible evidence, unduly burdensome, and privacy. None of the objections are well taken. healthPiper Defendants do not demonstrate how the foregoing discovery requests are vague, ambiguous, uncertain or intrude upon privilege. To the contrary the requests are sufficiently clear. These requests are directly relevant to Plaintiff’s claims and damages. Further, any privacy concerns are obviated by the protective order the parties entered into. (Tojarieh Decl., Ex. 26.)

healthPiper Defendants argue the motion should be denied as to RPD Nos. 15-19 because healthPiper LLC and healthPiper PC are different entities with different responses to these discovery requests. healthPiper Defendants confuse the analysis. The issue here is whether the objections interposed were different. As it stands, each defendant asserted the same objections. healthPiper Defendants do not show otherwise. Absent that showing, the court finds both healthPiper LLC and healthPiper PC asserted the same, baseless objections to RPD Nos. 15-19. It is therefore proper to evaluate the merit of those objections in this single motion. The court also notes that the responses to RPD Nos. 15-19 are not code compliant. The Code of Civil Procedure contemplates three forms of proper responses to a request for production: (1) a statement of compliance in full or in part (CCP § 2031.220); (2) a statement of inability to comply (CCP § 2031.230); and (3) a partial objection coupled with a statement of compliance or representation of inability to comply (CCP § 2031.240).¿¿healthPiper Defendants are not in compliance. Further responses are warranted.

Plaintiff requests sanctions against healthPiper Defendants and their counsel. Given the Court has granted these motions, sanctions are warranted. Pursuant to Hennings, supra, imposition of monetary sanctions against counsel is also proper unless counsel shows that he or she did not counsel the discovery abuse.¿ (Hennings, 58 Cal.App.5th at p. 81.)¿ Defense counsel does not meet their burden. Accordingly, sanctions are imposed against healthPiper LLC, healthPiper PC, and their attorney of record in the amount of $2,852.44, consisting of four hours at plaintiff’s counsel’s hourly rate and $152.44 in filing fees.

The motions to compel further responses to Special Interrogatory, Set One, Nos. 8-13, and Requests for Production of Documents, Set One, Nos. 15-19 are GRANTED. Defendants healthPiper LLC and healthPiper PC are ordered to provide further responses within 20 days of this order.

The motion to compel further responses to Requests for Production of Documents Nos. 5, 6, 8, construed as a motion to compel compliance, is GRANTED. Defendants healthPiper LLC and healthPiper PC are ordered to produce the documents responsive to these requests within 20 days of this order.

The motion to compel further responses to Special Interrogatory, Set One, Nos. 34, and 45-48 is MOOT.

The request for sanctions is GRANTED. Defendants healthPiper LLC and healthPiper PC and their counsel of record are ordered to pay, jointly and severally, sanctions in the sum of $2,852.44, to be paid to Plaintiff, by and through her counsel within 30 days of this order.

Kerry Bensinger

Judge of the Superior Court

[1] healthPiper Defendants’ insistence on the procedural defects of Plaintiff’s motions does not end here. They next point out that Plaintiff improperly combined two defendants (healthPiper LLC and healthPiper PC) regarding two sets of discovery requests. In other words, Plaintiff should have filed four motions in all. There is some merit to healthPiper Defendants point. healthPiper Defendants provided different responses to some of the at-issue discovery. In an apparent concession, Plaintiff has withdrawn the motion as to SROG Nos. 34, and 45-48. (See Reply, p. 4.) However, as discussed herein, the same objection does not hold as to RPD Nos. 15-19. The court will not require Plaintiff to file motions as to each healthPiper Defendant, especially when Plaintiff has withdrawn the SROG Nos. 34 and 45-48.