Judge: Walter P. Schwarm, Case: 30-2018-01002061, Date: 2023-07-18 Tentative Ruling

Motion No 1:

Defendant’s (Nili Alai) Motion to Seal Documents Under Docket Nos. 1077 1075 1072 1069, 1060, and 366 (Motion), filed on 1-30-23 under ROA No. 1162, is GRANTED in part and DENIED in part.

Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125, states, “A basic principle of motion practice is that the moving party must specify for the court and the opposing party the grounds upon which that party seeks relief. Code of Civil Procedure section 1010 requires that a notice of motion must state ‘the grounds upon which it will be made.’ California Rules of Court, rule 311 requires a notice of motion to state in its opening paragraph ‘the nature of the order being sought and the grounds for issuance of the order.’ As a general rule, the trial court may consider only the grounds stated in the notice of motion. [Citations.] An omission in the notice may be overlooked if the supporting papers make clear the grounds for the relief sought. [Citations.] The purpose of these requirements is to cause the moving party to ‘sufficiently define the issues for the information and attention of the adverse party and the court.’ [Citation.]”

McNair v. National Collegiate Athletic Assn. (2015) 234 Cal.App.4th 25, 31 (McNair), explains, “ ‘The public has a First Amendment right of access to civil litigation documents filed in court and used at trial or submitted as a basis for adjudication. [Citation.] Substantive courtroom proceedings in ordinary civil cases, and the transcripts and records pertaining to these proceedings, are “ ‘presumptively open.’ ” [Citation.]’ [Citation.]”

California Rules of Court, rule 2.551, states, “(a) A record must not be filed under seal without a court order. The court must not permit a record to be filed under seal based solely on the agreement or stipulation of the parties. [¶] (b)(1) A party requesting that a record be filed under seal must file a motion or an application for an order sealing the record. The motion or application must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing. . . .”

California Rules of Court, rule 2.551(c), states, “A record filed publicly in the court must not disclose material contained in a record that is sealed, conditionally under seal, or subject to a pending motion or an application to seal.”

California Rules of Court, rule 2.550, subdivision (d) states, “The court may order that a record be filed under seal only if it expressly finds facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest.”

California Rules of Court, rule 2.550, subdivision (e), provides in part, “(1) An order sealing the record must: (A) Specifically state the facts that support the findings; and (B) Direct the sealing of only those documents and pages, or, if reasonably practicable, portions of those documents and pages, that contain the material that needs to be placed under seal. All other portions of each document or page must be included in the public file.”

The Notice of Motion requests the court to seal the following documents: (1) ROA No. 1077; (2) ROA No. 1075; (3) ROA No. 1069; (4) ROA No. 1060; (5) ROA No. 1072; and (6) ROA No. 366. (Motion; iv:7-21.)

On 7-6-18, the court ordered sealing of the Complaint filed on 6-27-18 under ROA No. 2.  The court’s 7-6-18 Minute Order states, “The Ex Parte Application by Defendants is granted in part. Due to the allegations in the Complaint, the Complaint is sealed pending further order of the court.” (7-6-18 Minute Order.)  On 9-17-18, the court ordered sealing of the Oppositions filed by Plaintiff (Law Offices of Mark B. Plummer) on 9-6-18 under ROA Nos. 73, 75, 77, and 78. (9-17-18 Minute Order.)  The court’s 9-17-18 Minute Order states in part, “The oppositions filed by Plaintiff on 09/06/2018 and 09/07/2018 are ordered sealed.” (9-17-18 Minute Order.)  The court’s 3-20-19 Minute Order states, “Defendant's ex-parte application For Protective Order As to Court Order Sealed Document is Granted ONLY to the extent the Court is ordering the parties to follow CRC 2.551(c). All parties are required to follow CRC 2.551(c).” (3-20-19 Minute Order; Uppercase in 3-20-19 Minute Order.)

As to ROA No. 366 (Exhibit F attached to the Motion), the court GRANTS the Motion because it contains material from the Complaint that the court sealed on 7-6-18 in violation of California Rules of Court, rule 2.551(c), including references to the court case number of another at pages 3:10-28, 4:12-14, 8:8-11, Exhibit A, and Exhibit B, which is material contained in the sealed Complaint at ¶¶ 2, 3, and 7. The court ORDERS sealing of ROA No. 366 in its entirety.  The court ORDERS Plaintiff to file a redacted version of ROA No. 366 that complies with the court’s 7-6-18 and California Rules of Court, rule 2.551(c).  The court ORDERS Plaintiff to redact any material in ROA No. 366 that discloses information from the Complaint.

As to ROA No. 1060 (Exhibit D attached to the Motion), the court GRANTS the Motion because it contains material from the Complaint that the court sealed on 7-6-18 in violation of California Rules of Court, rule 2.551(c), including references to the court case number of another case at Exhibit F, and a copy of the Complaint as Exhibit H. The court ORDERS sealing of ROA No. 1060 in its entirety.  The court ORDERS Plaintiff to file a redacted version of ROA No. 1060 that complies with the court’s 7-6-18 and California Rules of Court, rule 2.551(c).  The court ORDERS Plaintiff to redact any material in ROA No. 1060 that discloses information from the Complaint.

As to ROA No. 1069 (Exhibit C attached to the Motion), the court GRANTS the Motion because it contains material from the Complaint that the court sealed on 7-6-18 in violation of California Rules of Court, rule 2.551(c), including the first page of the Complaint as the first exhibit. The court ORDERS sealing of ROA No. 1069 in its entirety.  The court ORDERS Plaintiff to file a redacted version of ROA No. 1069 that complies with the court’s 7-6-18 and California Rules of Court, rule 2.551(c).  The court ORDERS Plaintiff to redact any material in ROA No. 1069 that discloses information from the Complaint.

The court DENIES the Motion as to ROA No. 1072 because ROA No. 1072 is a Minute Order.

As to ROA No. 1075 (Exhibit B attached to the Motion), the court GRANTS the Motion because it contains material from the Complaint that the court sealed on 7-6-18 in violation of California Rules of Court, rule 2.551(c), including Exhibit 2 which contains the court case number from another case. The court ORDERS sealing of ROA No. 1075 in its entirety.  The court ORDERS Plaintiff to file a redacted version of ROA No. 1075 that complies with the court’s 7-6-18 and California Rules of Court, rule 2.551(c).  The court ORDERS Plaintiff to redact any material in ROA No. 1075 that discloses information from the Complaint.

As to ROA No. 1077 (Exhibit A attached to the Motion), the court GRANTS the Motion because it contains material from the Complaint that the court sealed on 7-6-18 in violation of California Rules of Court, rule 2.551(c), including the court case number form another case at Exhibits D and F and references to the other case in the motion filed under ROA No. 1077. The court ORDERS sealing of ROA No. 1077 in its entirety.  The court ORDERS Plaintiff to file a redacted version of ROA No. 1077 that complies with the court’s 7-6-18 and California Rules of Court, rule 2.551(c).  The court ORDERS Plaintiff to redact any material in ROA No. 1077 that discloses information from the Complaint.

Based on the above, the court GRANTS Defendant’s (Nili Alai) Motion to Seal Documents Under Docket Nos. 1077 1075 1072 1069, 1060, and 366, filed on 1-30-23 under ROA No. 1162, as to ROA Nos. 366 1060 1069, 1075, and 1077 as set forth above.  The court DENIES the Motion as to ROA No. 1072.  California Rules of Court, rule 2.30 states in part, “(b) In addition to any other sanctions permitted by law, the court may order a person, after written notice and an opportunity to be heard, to pay reasonable monetary sanctions to the court or an aggrieved person, or both, for failure without good cause to comply with the applicable rules. For the purposes of this rule, “person” means a party, a party's attorney, a witness, and an insurer or any other individual or entity whose consent is necessary for the disposition of the case. If a failure to comply with an applicable rule is the responsibility of counsel and not of the party, any penalty must be imposed on counsel and must not adversely affect the party's cause of action or defense thereto. [¶] (c) Sanctions must not be imposed under this rule except on noticed motion by the party seeking sanctions or on the court's own motion after the court has provided notice and an opportunity to be heard. A party's motion for sanctions must (1) state the applicable rule that has been violated, (2) describe the specific conduct that is alleged to have violated the rule, and (3) identify the attorney, law firm, party, witness, or other person against whom sanctions are sought. The court on its own motion may issue an order to show cause that must (1) state the applicable rule that has been violated, (2) describe the specific conduct that appears to have violated the rule, and (3) direct the attorney, law firm, party, witness, or other person to show cause why sanctions should not be imposed against them for violation of the rule.”

Mix v. Tumanjan Development Corporation (2002) 102 Cal.App.4th 1318, 1324 (Mix), states, “An individual who elects to represent himself or herself may also retain counsel to assist in the prosecution or defense of the action. The retained attorney hired to assist a litigant in propria persona has an attorney-client relationship with the litigant and owes the litigant fiduciary and ethical obligations. Such a retained attorney serves the purposes of providing an independent third party's judgment and a means of examination if the litigant is also a witness. ‘Legal counsel is just as necessary—perhaps more necessary—for the party who endeavors to represent himself, as it is for the person who has counsel of record. We certainly think it unwise to adopt a policy which would dissuade litigants from retaining attorneys to assist in lawsuits before the attorney appears with respect to filed documents.’ [Citations.] If an attorney is in fact retained by the pro se litigant and renders legal services assisting in the lawsuit, the attorney need not be an attorney of record in order for the reasonable fees of the attorney to be awarded to a prevailing party. [Citations.] Moreover, a rule permitting a litigant in propria persona to recover attorney fees for the legal services of assisting attorneys may be applied equally to both attorney and nonattorney pro se litigants.”

The court DENIES Defendant’s request for a monetary sanction under California Rules of Court, rule 2.30(b). (Juarez Decl., ¶ 32.)  The Motion makes clear that Defendant seeks a monetary sanction for Plaintiff’s violation of California Rules of Court, rule 2.551(c).  The court finds that imposition of a monetary sanction would be unjust for Plaintiff’s violation of California Rules of Court, rule 2.551(c).  In the court’s review of some of the documents in the court’s file, the court has found documents filed by Defendant in violation of California Rules of Court, rule 2.551(c).  These documents contain material from the Complaint that the court sealed on 7-6-18. (For example, see Defendant’s Separate Statement Separate Statement (SS), filed on 1-4-23 under ROA No. 1122, at pp. 15:22-16:1 and 17:16-18; Defendant’s Separate Statement, filed on 1-4-23 under ROA No. 1126, at pp. 2:21-24, 3:1-4, 5:11-13, and 9:14-15; Defendant’s Separate Statement, filed on 1-4-23 under ROA No. 1124 at p. 5:24-26.)

Defendant is to give notice.

Motion No. 2:

Defendant’s (Nili Alai) Motion for Sanctions Against Plaintiff Law Offices of Mark B. Plummer, PC and His Counsel Mark Plummer Pursuant to Code of Civil Procedure sections 128(A)(5), and 128.5 (Motion), filed on 1-26-23 under ROA No. 1156, is DENIED.

Code of Civil Procedure section 128.5 states in part, “(a) A trial court may order a party, the party's attorney, or both, to pay the reasonable expenses, including attorney's fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay. This section also applies to judicial arbitration proceedings under Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3. [¶] (b) For purposes of this section: [¶] (1) ‘Actions or tactics’ include, but are not limited to, the making or opposing of motions or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading. The mere filing of a complaint without service thereof on an opposing party does not constitute ‘actions or tactics’ for purposes of this section. [¶] (2) ‘Frivolous’ means totally and completely without merit or for the sole purpose of harassing an opposing party. . . . [¶] (f) Sanctions ordered pursuant to this section shall be ordered pursuant to the following conditions and procedures: [¶] (1)  If after notice and a reasonable opportunity to respond, the court issues and order pursuant to subdivision (a), the court may, subject to the conditions below, impose an appropriate sanction upon a party . . . [¶] (A) A motion for sanctions under this section shall be made separately from other motions or requests and shall describe the specific alleged action or tactic, made in bad faith, that is frivolous or solely intended to cause unnecessary delay. [¶] (B) If the alleged action or tactic is the making or opposing of a written motion or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading that can be withdrawn or appropriately corrected, a notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court, unless 21 days after service of the motion or any other period as the court may prescribe, the challenged action or tactic is not withdrawn or appropriately corrected.”

Shelton v. Rancho Mortgage & Investment Corporation (2002) 94 Cal.App.4th 1337, 1346 (Shelton), provides, “This court has repeatedly stated that to impose sanctions under section 128.5, there must be a showing the action or tactic was meritless or frivolous and that it was pursued in bad faith, and whether the action is taken in bad faith must be judged by a subjective standard. [Citations.]  While the trial court may infer subjective bad faith from the pursuit of a frivolous tactic [citation], ‘it is within a court's discretion not to draw that inference if convinced the party was acting in the good faith belief the action was meritorious.’ [Citation.]” (Italics in Shelton.)

Levy v. Blum (2001) 92 Cal.App.4th 625, 635 (Levy), explains, “A trial court may impose sanctions pursuant to section 128.5 against a party, the party's attorney, or both, for ‘bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay,’ when the actions or tactics ‘arise from a complaint filed, or a proceeding initiated,’ prior to January 1, 1995. [Citations.] A bad faith action or tactic is considered ‘frivolous’ if it is ‘totally and completely without merit’ or instituted ‘for the sole purpose of harassing an opposing party.’ (§ 128.5, subd. (b)(2).) Whether an action is frivolous is governed by an objective standard: any reasonable attorney would agree it is totally and completely without merit. [Citations.] There must also be a showing of an improper purpose, i.e., subjective bad faith on the part of the attorney or party to be sanctioned. [Citations.]  Section 128.5 requires notice and an opportunity to be heard before the imposition of sanctions, and the court must issue a written order reciting in detail the conduct justifying sanctions. [Citation.]”

The Motion states, “The Motion will be made pursuant to Code of Civil Procedure §128 (a)(5) on the following basis that Plaintiff and his ‘counsel’ willfully and knowingly: [¶] 1. Failed to comply with the July 6, 2018 Non-Dissemination Order of this Court; [¶] 2. Failed to comply with the July 6, 2018 Sealing Order of this Court, which sealed Plummer’s Complaint, and by reference incorporates the two prior Superior Court anonymity, protective, and confidentiality orders; [¶] 3. Failed to comply with the Court’s September 17, 2018 Non-Disparagement Order; [¶] 4. Failed to comply with the March 19, 2019 Court Protective Order; and [¶] 5. Failed to comply with the March 19, 2019 Court Order requiring parties to comply with ‘Rule 2.551 (c)’ for case documents; and [¶] 6. Failure to comply with the November 9, 2019 Court of Appeals Order in Case G057721, denying Plummer’s request to unseal the Complaint (collectively ‘the Orders’).” (Motion; 2:9-19.)

On 7-6-18, the court ordered sealing of the Complaint filed on 6-27-18 under ROA No. 2.  The court’s 7-6-18 Minute Order states, “The Ex Parte Application by Defendants is granted in part. Due to the allegations in the Complaint, the Complaint is sealed pending further order of the court.” (7-6-18 Minute Order.) Defendant characterizes this order as a non-dissemination order. (Juarez Decl., ¶ 15 and Exhibit 3.)  The 7-6-18 Minute Order prohibits the parties from disseminating the documents that were the subject of that order.  The 7-6-18 Minute Order states, “Mr. Plummer is provided copies of the lodged documents submitted by defendants, the Order filed 09/09/2014 and the Order filed 08/28/2017. Plaintiff is ordered not to dissipate [sic] the documents, they are for use only in this case.”  The 7-6-18 Minute Order did not prohibit the use of the documents subject to that Minute Order in this case. 

The Motion also describes the 7-6-18 Minute Order as incorporating two prior Superior Court anonymity, protective and confidentiality orders.” (Motion; 2:11-13.) The 7-6-18 Minute Order, however, does not incorporate any other orders.

The Motion refers to a non-disparagement order issued by the court on 9-17-18.  The court understands this reference as directing the court to the transcript of the court proceedings on 9-17-18. (Juarez Decl., ¶ 26 and Exhibit 6.)  At the 9-17-18 hearing the court stated, “So I think it's appropriate at this point to grant the motion to seal; however, on future motions, the previous orders of the court will always be considered. [¶] And if it appears to the court that Mr. Plummer or any party is filing documents that contain libelous misstatements or slanderous statements, the court will certainly consider the fact that both sides know that those documents were sealed and the reputations of both sides are an issue. [¶] And any effort to damage the reputation of the other will be considered a serious violation of the court order. So everyone is on warning.” (Juarez Decl., ¶ 26 and Exhibit 6 (9-17-18 RT 17:20-18:6.).)  The court’s 9-17-18 Minute Order does not refer to a non-disparagement order. (9-17-18 Minute Order.)  At the 9-17-18, the court refers to a court order, but does not identify that court order.

The Motion characterizes the court’s 3-19-19 Minute Order as a court protective order.  The court’s file does not show that the court issued an order on 3-19-19.  The court assumes that Defendant intended to refer to the court’s 3-20-19 Minute Order.  The court’s 3-20-19 Minute Order states in part, “The Court's tentative decision is to deny Defendant's ex-parte applications. Argument heard. [¶] Defendant's ex-parte application To Stay Action pending judgment in case no. 30-2015-00767937 is Denied Without Prejudice. [¶] Defendant to file as a noticed motion. Defendant's ex-parte application For Protective Order As to Court Order Sealed Document is Granted ONLY to the extent the Court is ordering the parties to follow CRC 2.551(c). All parties are required to follow CRC 2.551(c). [¶] Judge Crandall's order stands.”   (3-20-19 Minute Order.)  The court’s 3-20-19 Minute Order is not a protective order.

The court’s file does not contain an order from the Court of Appeal dated 11-9-19.  The court’s file, however, contains an order from the Court of Appeal filed on 11-4-19 under ROA No. 682 pertaining to Court of Appeal Case No. G057721.  The court assumes the Motion is referring to the Court of Appeal Order filed on 11-4-19.  The 11-4-19 Court of Appeal Order states, “In response to the court's October 17, 2019 order, respondent has provided the court with trial court orders sealing appellant's complaint filed on June 27, 2018. Accordingly, appellant's motion to unseal is DENIED as to appellant's complaint filed on June 27, 2018, which appears at pages 77 through 81 of the confidential clerk's transcript filed on August 1, 2019 and pages 91 through 95 of the confidential supplemental clerk's transcript filed on September 26, 2019. No trial court orders sealing the remaining documents contained in the confidential clerk's transcript filed on August 1, 2019 and confidential supplemental clerk's transcript filed on September 26, 2019, having been provided, those documents are ordered placed in the public record. (Cal. Rules of Court, rule 8.46(c).)” (Uppercase in the 11-4-19 Court of Appeal Order.)

As discussed above with respect to Motion No. 1, Plaintiffs (Law Offices of Mark B. Plummer and Mark B. Plummer) have violated California Rules of Court, rule 2.551(c), by disclosing material contained in a record that was sealed.

The court does not find a violation or orders incorporated into the court’s 7-6-18 Minute Order because the court’s 7-6-18 Minute Order does not incorporate any orders.

The court does not find a violation of the non-dissemination order because Defendant’s evidence does not demonstrate that Plaintiffs have disseminated the documents that were the subject of that order outside of this case.  Further, the court notes that the Ex Parte Application that was the subject of the hearing on 7-6-18 did not request a non-dissemination order. (Ex Parte Application filed on 7-5-18 under ROA No. 7.)

The court does not find a violation of a non-disparagement order issued on 9-17-18 because the court’s 9-17-18 Minute Order does not refer to a non-disparagement order.  The transcript from the 9-17-18 hearing does not connect the court’s comments to a particular order.  Further, the Ex Parte Application that was the subject of the 9-17-18 hearing did not request a non-disparagement order. (Ex Parte Application filed on 9-14-18 under ROA No. 84.)

The court does not find a violation of the 11-4-19 Court of Appeal order did not impose an order on any of the parties in this action.

Based on Shelton and Levy, the court finds that Plaintiffs’ actions or tactics were in subjective bad faith in that the filing of material that was the subject of the court’s sealing order was for the sole purpose of harassing Defendant or intended to cause unnecessary delay.  The court’s file reflects numerous filings by both parties that have resulted in significant law and motion work for the parties which has delayed the trial in the case.  Although it was improper for Plaintiffs to disclose material from a record that was sealed, Plaintiffs filed these documents in support of motions or oppositions to motions that the parties had filed.  Plaintiffs did not file these documents without connection to another filing related to law and motion matters before the court.  Further, as discussed with Motion No. 1, it appears that the scope of the court’s 7-6-18 order sealing the Complaint is unclear because both parties have filed documents that disclose material from the Complaint.

Based on the above, the court DENIES Defendant’s (Nili Alai) Motion for Sanctions Against Plaintiff Law Offices of Mark B. Plummer, PC and His Counsel Mark Plummer Pursuant to Code of Civil Procedure sections 128(A)(5), and 128.5 filed on 1-26-23 under ROA No. 1156.

Plaintiff is to give notice.

Motion No. 3:

Moving Party’s (Nili Alai) Motion to Compel Plummer to Provide Responses to Request for Admissions Set Two and Form Interrogatories (Motion), filed on 1-4-23 under ROA No. 1130, is GRANTED in part and DENIED in part.

Requests of Admission:

Code of Civil Procedure section 2033.290 states, in part, “(a) On receipt of a response for admissions, the party requesting admissions may move for an order compelling a further response if that party deems that either or both of the following apply: [¶] (1) An answer to a particular request is evasive or incomplete. [¶] (2) An objection to a particular request is without merit or too general. [¶] (b)(1) A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040. . . . [¶] (c) Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental 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 requests for admission. . . .”

Code of Civil Procedure section 2033.210 states in part, “(a) The party to whom requests for admission have been directed shall respond in writing under oath separately to each request. [¶] (b) Each response shall answer the substance of the requested admission, or set forth an objection to the particular request. . . .”

Code of Civil Procedure section 2033.220 provides, “(a) Each answer in a response to requests for admission shall be as complete and straightforward as the information reasonably available to the responding party permits. [¶] (b) Each answer shall: [¶] (1) Admit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by the responding party. [¶] (2) Deny so much of the matter involved in the request as is untrue. [¶] (3) Specify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge. [¶] (c) If a responding party gives lack of information or knowledge as a reason for a failure to admit all or part of a request for admission, that party shall state in the answer that a reasonable inquiry concerning the matter in the particular request has been made, and that the information known or readily obtainable is insufficient to enable that party to admit the matter.”

Fairmont Insurance Company v. Superior Court (2000) 22 Cal.4th 245, 255, explains, “Or a party may object to a particular discovery request, placing the burden on the party seeking discovery to enforce discovery through a motion to compel.”  Williams v. Superior Court (2017) 3 Cal.5th 531, 541 (Williams), states, “While the party propounding interrogatories may have the burden of filing a motion to compel if it finds the answer it receives unsatisfactory, the burden to justify any objection and failure to respond remains at all times with the party resisting an interrogatory. [Citation.]” 

Based on Moving Party’s Separate Statement (SS), filed on 1-4-23 under ROA No. 1122, the court DENIES the Motion as to Request for Admission (RFA) Nos. 63, 64, 65, 66, 75, 76, 91, 92, 93, 94, and 95 because Responding Party’s (Law Office of Mark B. Plummer, PC) responses comply with Code of Civil Procedure section 2033.220, subdivision (b).

The court GRANTS the Motion as to RFA No. 45 because Responding Party’s communications with Michele Ironcastle without involving Defendants is relevant under Code of Civil Procedure section 2017.010 as to Moving Party’s claim involving breach of fiduciary duty.

The court GRANTS the Motion as to RFA No. 46 prior lawsuits involving other clients are relevant under Code of Civil Procedure section 2017.010 as to Moving Party’s claim involving breach of fiduciary duty.

The court GRANTS the Motion as to RFA No. 90 because Responding Party’s communications with Michelle Ironcastle are relevant under Code of Civil Procedure section 2017.010 as to Moving Party’s claim involving breach of fiduciary duty.

As to RFA Nos. 140-149, the court notes that SS discloses material from the Complaint which is a sealed record in violation of California Rules of Court, rule 2.551(c). (SS; 15:22-16:1 (See also, SS at 17:16-18.).)  “The right of privacy is an ‘ “inalienable right” ’ secured by article I, section 1 of the California Constitution. [Citation.] The right of privacy protects against the unwarranted, compelled disclosure of private or personal information and ‘extends to one’s confidential financial affairs as well as to the details of one's personal life.’ [Citation.] (SCC Acquisitions, Inc. v. Superior Court (2015) 243 Cal.App.4th 741, 754.) “The constitutional right of privacy is not absolute; it may be abridged to accommodate a compelling public interest. [Citations.] One such interest, evidenced by California's broad discovery statutes, is ‘ “the historically important state interest of facilitating the ascertainment of truth in connection with legal proceedings.” ’ [Citation.] When an individual’s right of privacy in his financial affairs conflicts with the public need for discovery in litigation, the competing interests must be carefully balanced. [Citation.] Even where the balance weighs in favor of disclosure of private information, the scope of the disclosure will be narrowly circumscribed; such an invasion of the right of privacy ‘ “must be drawn with narrow specificity” ’ and is permitted only to the extent necessary for a fair resolution of the lawsuit. [Citations.]” (Moskowitz v. Superior Court (1982) 137 Cal.App.3d 313, 316; disapproved on other grounds in Williams v. Superior Court (2017) 3 Cal.5th 531, 557, fn. 8.)

“We conclude corporations do not have a right of privacy protected by the California Constitution.  Article I, section 1 of the California Constitution protects the privacy rights of “people” only.  ‘ “[T]he constitutional provision simply does not apply to corporations.” ’ [Citations.] While corporations do have a right to privacy, it is not a constitutional right. The corporate right to privacy is a lesser right than that held by human beings and is not considered a fundamental right. [Citation.]” (SCC, supra, 243 Cal.App.4th at pp. 755-756; Footnotes 3 and 4 omitted.)

Williams v. Superior Court (Williams) (2017) 3 Cal.5th 531, 552, explains, “The party asserting a privacy right must establish a legally protected privacy interest, and objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. [Citations.] The party seeking information may raise in response whatever legitimate and important countervailing interest disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interest or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations. [Citation.]”

After conducting the balancing under Williams, the court finds that Responding Party’s limited privacy right outweighs the asserted relevance of the information sought by RFP Nos. 140-149.  Although the cases lost by Responding Party may be relevant to Responding Party’s damages, Responding Party’s annual income is not reasonably calculated to the discovery of admissible evidence.  Therefore, the court DENIES the Motion as to RFA Nos. 140-149.

Form Interrogatories:

The court DENIES the Motion to the extent it seeks to compel further responses to Form Interrogatories.  The declaration from Moving Party’s attorney states, “Ms. Alai served the referenced discovery set to Plaintiff on November 12, 2018 . . . .” (Juarez Decl. filed under ROA No. 1130, ¶ 3.)  The declaration attaches “Form Interrogatories—General Set No. 2” directed to Mark B. Plummer (as an individual) as Exhibit C.  Exhibit C does not attach a Proof of Service.  Although Responding Party, objected to the Form Interrogatories directed to the Law Office of Mark B. Plummer as well as Form Interrogatories (Set 3) directed to Mark B. Plummer as an individual (Kuhn Decl., ¶ 4 and Exhibit D), Responding Party’s objections to the discovery did not list “Form Interrogatories—General Set No. 2” directed to Mark B. Plummer (as an individual).  Since the court does not have a Proof of Service as to “Form Interrogatories—General Set No. 2” directed to Mark B. Plummer (as an individual), the court does not have sufficient evidence of service, and DENIES the Motion to the extent it seeks to compel further responses to “Form Interrogatories—General Set No. 2” directed to Mark B. Plummer (as an individual).

Based on the above, the court GRANTS Moving Party’s (Nili Alai) Motion to Compel Plummer to Provide Responses to Request for Admissions Set Two and Form Interrogatories, filed on 1-4-23 under ROA No. 1130, as to RFA Nos. 45, 46, and 90.  The court ORDERS Responding Party to serve Code of Civil Procedure compliant responses to RFA Nos. 45, 46, and 90.  The court DENIES the remainder of the Motion as set forth above.

The court DENIES each party’s request for a monetary sanction because, as to this motion, imposition of a monetary sanction is unjust under these circumstances.  Although Responding Party achieved more success on this Motion than Moving Party, it does not appear that Responding Party meaningfully engaged in the meet and confer process. (Juarez Decl., ¶ 13.)

Moving Party is to give notice.