Judge: Theresa M. Traber, Case: 21STCV44158, Date: 2022-09-09 Tentative Ruling

Case Number: 21STCV44158    Hearing Date: September 9, 2022    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     September 9, 2022                 TRIAL DATE: NOT SET

CASE:                         Diane Charles et al. v. Kinetic Content, et al.

CASE NO.:                 21STCV44158           

MOTION TO COMPEL FURTHER RESPONSES; REQUEST FOR SANCTIONS

MOVING PARTY:               Plaintiffs Diane Charles and Bazzel Baz.

RESPONDING PARTY(S): Defendant Kinetic Content.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an idea submission action filed on December 2, 2021. Plaintiffs allege that they submitted a pitch for a television show to Defendants with an implied contractual obligation to retain Plaintiffs as creators and producers, and Defendants subsequently created a television show using Plaintiffs’ pitch without crediting them.

Plaintiffs move to compel further responses to four Requests for Production.

TENTATIVE RULING:

            Plaintiffs’ motion to compel further responses is GRANTED IN PART with respect to Requests for Production 14, 15, and 28 and otherwise DENIED.

            Plaintiffs’ Request for Sanctions is DENIED.

DISCUSSION:

            Plaintiffs move to compel Defendant to produce further responses to Plaintiff’s Requests for Production Nos. 14, 15, 28, and 29, and for sanctions against Defendant and its counsel, jointly and severally, in the amount of $7,810.

Legal Standards

Under Code of Civil Procedure section 2031.310, subdivision (a), a court may order a party to serve a further response to a demand for inspection when the court finds that: “(1) A statement of compliance with the demand is incomplete[;] (2) A representation of inability to comply is inadequate, incomplete, or evasive[; or] (3) An objection in the response is without merit or too general.”

The burden is on the moving party to “set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).) This burden “is met simply by a fact-specific showing of relevance.” (TBG Ins. Servs. Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 448.)

Meet and Confer

A party making a motion to compel further responses must also include a declaration stating facts showing a “reasonable and good faith attempt” to resolve informally the issues presented by the motion before filing the motion. (Code Civ. Proc., §§ 2016.040, 2031.310, subd. (b)(2).)

            The parties met and conferred extensively between May 3 and August 8, 2022 to attempt to resolve this discovery dispute. Plaintiffs have provided true and correct copies of the parties’ electronic correspondence. (Declaration of Daniel B. Lifschitz ISO Mot. Exhs. 4, 6.) Plaintiffs have satisfied the statutory meet and confer requirement. 

Timeliness

A motion to compel further responses to interrogatories must be served “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. § 2031.310(c).) The 45-day requirement is mandatory and jurisdictional. (Sexton v. Superior Court¿(1997) 58 Cal.App.4th 1403, 1410.)

            Defendants served their most recent supplemental response on August 5, 2022. (Lifschitz Decl. ¶ 14.) Furthermore, the parties stipulated that Plaintiffs were entitled to an open-ended extension to file any motion to compel, subject to termination upon two weeks’ notice to Plaintiffs. (Lifschitz Decl. ¶ 12, Exh. 5.) No such notice has been provided. (Id. ¶ 13.) Furthermore, the motion to compel further responses was served and filed on August 17, 2022, well under the 45-day time limit from the most recent supplemental production. Therefore, the motion is timely.

Relevance

            Plaintiffs move to compel further responses to Requests for Production Nos. 14, 15, 28, and 29. Request No. 14 seeks “all documents that reflect compensation for producers and/or executive producers of Spy Games.” (Separate Statement p.2:6-8.) Request No. 15 seeks “all documents that reflect compensation [Defendant has] received and will receive related to Spy Games.” (Id. p.3:27-4:1.) Request No. 28 seeks “all documents that reflect agreements pertaining to actual sources of revenue derived from Spy Games.” (Id.p.5:19-21.) Request No. 29 seeks “all documents that reflect agreements pertaining to potential sources of revenue that could be derived from Spy Games.” (Id.p.7:10-12.)

            Plaintiffs contend that each of these requests are relevant to show Plaintiffs’ lost profits. There is an implied contractual right to compensation when a writer submits material to a producer with an understanding that the writer will be paid for use of the concept. (See Desny v. Wilder (1956) 46 Cal.2d 715.) Plaintiffs argue that lost profits are a proper measure of damages for Desny claims, relying on CBS v. Superior Court (1968) 263 Cal.App.2d 12, 22. In opposition, Defendant argues that Desny claims, as claims for breach of an implied-in-fact contract, are limited to contract damages, and thus, a plaintiff can only seek the reasonable value of the work, not lost profits, relying on Mann v. Columbia Pictures, Inc. (1982) 128 Cal.App.3d 628, 631.) Defendant therefore argues that Requests 28 and 29 are irrelevant because they seek documents that are not relevant to the reasonable value of the work.

            In the Court’s view, the question of which measure of damages is appropriate is not a question to be resolved in connection with a discovery motion, and, in any event, the Court need not resolve this dispute of law here. Even under Defendant’s preferred standard of the “reasonable value” of the idea submitted, compensation and sources of revenue are facially relevant to an assessment of the reasonable value of a television pitch. Defendant’s contention that CBS v. Superior Court stands for the proposition that these materials are not relevant is not well taken. As stated in the excerpts quoted by Defendant, the discovery sought in CBS included “each item of income, revenue and gross receipts, and each item of cost expended or incurred,” and “each written contract, agreement or other document which would evidence or furnish a basis for such information.” (CBS, supra 263 Cal.App.2d 24-25.) The CBS court specifically took issue with requesting the “detailed information and documentation as to defendants’ contracts relating to the production, financing, and distribution of the entire series or as to its receipts and disbursements.” (Id. at 26.) Put plainly, CBS is distinguishable in that records of costs and expenses were also being sought, whereas, here, only documents relating to revenue are being sought.

            Defendant also argues that Requests 14 and 15 seek irrelevant information because Plaintiffs did not specifically allege an agreement to act as producers. However, as Defendant itself notes, paragraph 32 of the Complaint expressly states that Plaintiffs were injured because they were not credited as creators and producers. (Complaint ¶ 32.) Moreover, drawing all presumptions in favor of discovery, as is required at this stage, compensation for producers is relevant here because the Plaintiffs have alleged that they were injured by not being credited as producers. The absence of explicit allegations that Plaintiffs were to be credited as producers is not a bar to the requested documents.

            The Court therefore finds that, with respect to requests 14, 15, and 28, Plaintiffs have shown good cause for the requests.

            With respect to Request No. 29, however, the Court reaches a different conclusion. Plaintiff offers no explanation of how “potential sources of revenue” is relevant to either an assessment of actual lost profits or a reasonable value of the idea submitted, and, unlike the previous requests, the connection between the request and Plaintiffs’ claims is not obvious on its face. Potential sources of revenue do not speak to what the reasonable value of an idea might be, nor do they have any connection to the actual profits of which Plaintiffs were deprived because they were not given creator and producer credits. The Court therefore finds that Plaintiff has not shown good cause for this request.

General Objections

            Defendant asserts a series of “general objections” in addition to each objection raised specifically in the responses. The Code of Civil Procedure requires that objections be stated separately in response to each request for inspection. (Code Civ. Proc. § 2031.210(a)(3).) Defendant’s general objections are improper, and the Court will not consider them.

Overbreadth

            Defendant asserts that each of the requests is overbroad and unduly burdensome, stating in a conclusory fashion that they would require Defendant to review and produce hundreds of pages of documents that have “no relevance” to Plaintiffs’ claims. Defendant’s sole piece of evidence in support of this contention is a single sentence in the Declaration of Cristina Salvato repeating this statement verbatim. (Declaration of Cristina Salvato ISO Opp. ¶ 15.) This is not sufficient to carry Defendant’s burden to justify these objections.

Third-Party Privacy

            Defendant objects to requests Nos. 14 and 15 on the grounds that they improperly seek confidential and private third-party financial documents.

In ruling on a privacy objection in the context of discovery, the party asserting a privacy right must establish a legally protected privacy interest. (Williams v. Superior Court (2017) 3 Cal.5th 531, 552.) The party asserting a privacy right must also establish an objectively reasonable expectation of privacy in the given circumstances. (Id.) Further, the party asserting a privacy right must establish a threatened intrusion that is serious. (Id.) The Court need not proceed to the fourth step of balancing competing interests if all three of the above are not satisfied. (Id. at 555.)

If the Court reaches the fourth step, the Court must balance the competing interests of the parties.  The party seeking information may raise whatever legitimate and important countervailing interests disclosure may serve. (Id. at 552.) The party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. (Id.) Courts may not require the party seeking discovery to demonstrate a “compelling need” simply because discovery of any facially private information is sought. (Id. at 556-557.) When a privacy interest is asserted, the party seeking production must show that the information sought is directly relevant to a cause of action or a defense. (Harris v. Superior Court (Smets) (1992) 3 Cal.App.4th 661, 665, citing Britt v. Superior Court (1978) 20 Cal.3d 844, 859-62.)

Financial information is protected by an individual’s right of privacy under article I, section 1 of the California Constitution. (Hooser v. Superior Court (2000) 84 Cal.App.4th 997, 1003, overruled in part by Williams v. Superior Court (2017) 3 Cal.5th 531, 557 and n. 8.2) However, that protection is not absolute and must be balanced against the countervailing public interest in disclosure, such as the ascertainment of truth in connection with legal proceedings, obtaining just results in litigation, and facilitating the enforcement of judgments. (Hooser, supra, 84 Cal.App.4th at 1004.) “[I]f an intrusion on the right of privacy is deemed necessary under the circumstances of a particular case, any such intrusion should be the minimum intrusion necessary to achieve its objective.” (Lantz v. Superior Court (1994) 28 Cal.App.4th 1839, 1855, overruled in part by Williams v. Superior Court (2017) 3 Cal.5th 531, 557 and n. 8.)

            Here, there is certainly no question that the producers have a reasonable expectation of privacy in their financial documents given their protection under the California Constitution. However, the Parties have stipulated to a Protective Order which allows any party to designate documents, testimony, or information as “confidential” or “highly confidential,” and subject to strict controls regarding their dissemination or publication. (See May 25, 2022 Stipulation and Order.) In light of this order, the Court cannot conclude that the threatened intrusion would be serious. Pursuant to the Stipulation, Defendant may designate any responsive documents which implicate these concerns as “confidential” or “highly confidential,” as appropriate, and thereby protect the privacy of the individuals in question by invoking the protections of the Order. The Court therefore finds that Defendant has not established a threatened intrusion that is serious under the circumstances. The Court therefore does not proceed to balancing the competing interests.

            Defendant also raised privacy objections in connection with Requests 28 and 29. However, Defendant does not address these objections in its opposition. Defendant has therefore failed to justify these objections.

Sanctions

            Plaintiffs request sanctions in the amount of $7,810 in attorney’s fees and costs against Defendant and its counsel, jointly and severally.

Code of Civil Procedure section 2023.030 authorizes the Court to impose monetary sanctions on any attorney engaging in the misuse of the discovery process by requiring that attorney to pay the reasonable expenses incurred by anyone as a result of that conduct. Code of Civil Procedure section 2030.300(d) requires the Court to impose sanctions against any party who unsuccessfully makes or opposes a motion to compel further response, 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.

            As neither party is the prevailing party on all aspects of this motion, the Court finds that Plaintiffs are not entitled to sanctions.  Further, the Court concludes that Defendant’s objections and opposition to the motion were not without substantial justification.   

CONCLUSION:

            Accordingly, Plaintiffs’ motion to compel further responses is GRANTED IN PART with respect to Requests For Production 14, 15, and 28 and otherwise DENIED.

            Plaintiffs’ Request for Sanctions is DENIED.

            Moving Parties to give notice.

IT IS SO ORDERED.

Dated: September 9, 2022                              ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.