(1) Defendant’s Motion for a Protective Order
Moving Party: Defendant Sandy Alprecht
Responding Party: Plaintiff Alexander Rosteck
Ruling: Defendant’s Motion for a Protective Order is granted solely as to withdraw the defective deposition subpoena. Requests for sanctions are denied.
As a preliminary matter, Plaintiff contends that this Court should deny the motion because Defendant did not bring a separate motion for a protective order for each discovery device at issue. While separate motions are required for compelling discovery responses, Plaintiff provides no grounds for the proposition that a Court may not fashion a protective order affecting multiple discovery devices from one set of moving papers.
Defendant moves for a protective order prohibiting Plaintiff from seeking responses to his Requests for Admission, Set Two, Requests for Production, Set Three, Form Interrogatories, Set Two, Special Interrogatories, Set One, and Subpoena for Business Records issued to Anita Tolbert, all dated February 12, 2020.
A court may make any order that justice requires to protect a party from “unwanted annoyance, embarrassment or oppression or undue burden and expense.” (Code Civ. Proc. § 2030.090, subd. (b).) The burden of proof is on the party seeking the protective order to show “good cause” for the order he or she seeks. (Fairmont Insurance Co. v. Superior Court (2000) 22 Cal.4th 245, 255.) A motion for a protective order “shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2030.090.) “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.)
Meet and Confer
Counsel for Defendant, David Hua, declares that on February 21, 2020, he sent a letter to Plaintiff’s counsel to discuss the issues raised in the present motion. (Hua Decl. ¶ 7, Exh. 2.) Hua declares that as of this motion, no response had been received. (Id. ¶ 8.)
In opposition, Plaintiff argues that on February 21, 2020, Defense counsel sent a letter to “associate, Yumi Gibson, despite knowing that Natalie Schneider, Esq. was lead trial counsel on this case.” (Opp. 8:18.) Tellingly, Plaintiff then asserts that “Ms. Gibson inadvertently did not forward this meet and confer letter to Ms. Schneider.” (Id. 8:19-20.) Plaintiff does not dispute that a meet and confer email was sent to Plaintiff’s counsel. Plaintiff’s counsel’s own inadvertence shall not form the basis for an argument that opposing counsel’s attempt to meet and confer was inadequate.
The Court finds that Defendant attempted to meet and confer prior to the filing of this motion.
RFA, FROG, SROG, and RFP
Defense counsel declares that the second set of RFA requests duplicative admissions as to the first set. Specifically, Set Two, Nos. 16 to 96 request admissions to information that was provided in Set One, Nos. 16-48. (Hua Decl. ¶ 6.) However, Defendant does not attach a copy of the first set for this Court to review.
To justify exceeding the statutory limit of thirty-five (35) RFA, counsel for Plaintiff declared that the number of RFA was warranted because “of the quantity of the existing and potential issues in the particular case, and the information sought is relevant to the issues concerning the parties’ respective contributions towards their interest in the real property subject to this action (the “Property”), Defendant’s contentions that her interest in the Property was acquired by gift, Defendant’s contentions that she paid valuable consideration for her interest in the Property, and the benefits enjoyed by Defendant that were derived from her interest in the property.” (RFA, Set Two, Schneider Decl. ¶ 8.)
This declaration explicitly identifies three issues. While it is unclear if these three issues warrant almost one hundred RFA, Defendant does not make a showing of good cause for a protective order on the basis of overly burdensome or oppressive discovery. The RFA all pertain to the parties’ relationship and the subject property. Other than noting the number of requests, Plaintiff does not articulate why a protective order is necessary.
Defendant contends that FROG, Set Two, and SROG, Set Two seek irrelevant information, and that RFP 89’s request for communications between the parties from October 1, 2017 is excessive in light of Plaintiff’s equal access to the documents.
A review of the SROG and FROG does not reveal discovery requests that appear facially irrelevant. Rather, the five (5) SROG propounded relate to Defendant’s contention that the half interest in the subject property interest was a gift, which is a central issue to this matter. Plaintiff is seeking responses to FROG 17.1, which requests an identification of facts and documents which support Defendant’s answer to each RFA which is not an unqualified admission.
While RFP 89 may request documents pertaining to communications between the parties, Plaintiff does not make a substantive argument that both parties in fact have access to the same responsive documents, nor as to why she should not be required to produce responsive documents in her possession. The citations to authority made by Defendant fail to provide a pincite, nor do they cite to relevant language in the authority. Nevertheless, the cited cases did not involve a comparable factual situation. For example, in Ryan v. Sup. Ct., the court held that “it cannot be said that the court abused its discretion in not requiring the plaintiff to do the clerical work of checking the names in one publication against those in the other when the records from which this work could be done were equally available to the defendants.” (Ryan v. Superior Court In & For Los Angeles Cty. (1960) 186 Cal. App. 2d 813, 819.) Here, it is not immediately apparent that both parties have access to the same documents. Additionally, RFP 89 is limited in temporal scope to October 1, 2017, to the present, and only seeks communications relating to the subject property. This RFP is not overly burdensome nor oppressive.
In opposition, Plaintiff does not address why numerous sets of discovery devices were propounded in this matter despite the rather narrow scope of issues and claim for relief. However, Plaintiff argues that the RFA are proper because they seek information relevant to this action;
Relating to the maintenance fees of the Property, taxes, of the Property, Defendant’s online access to the account for the Property, payments toward the property, and clubpoints related to the taxes and fees paid on the Property, Defendant’s interest, and economic benefits of the Property. These requests should be easy for Defendant to answer off the top of her head as she should have first-hand knowledge of the funds she has contributed to the Property, current balance owed on the Property, and benefits she has derived from being a co-owner of the Property. These requests are directly related to Plaintiff’s causes of action for contribution and unjust enrichment.
Indeed, a review of the subject RFA does not reveal any inherently irrelevant request. The RFA pertain to the property and the parties’ personal relationship. Both issues are central to this dispute.
In sum, the five (5) SROG, the FROG, the RFA, and the RFP are not overly burdensome or oppressive so as to warrant a protective order.
Subpoena Issued to Anita Tolbert
Defendant similarly seeks a protective order to withdraw the subpoena issued to Anita Tolbert, whom Defendant claims is a “friend of Defendant (with no connection to any claims at issue in this matter).” (Motion 14:9-10.) However, Defendant then notes that Tolbert assists Defendant in the preparation of her taxes.
The subject subpoena seeks “[a]ll accounting records, correspondence (emails, text messages, etc.), and any other business records related to the services provided to Sandy Alprecht regarding her interest in the real property described in the WBKL Vacation Suites Vacation Ownership Interest Deed, Contract 68-S10238, recorded December 18, 2017, a true and authentic copy of which is attached hereto as “Exhibit 1”, for the time period of January 1, 2017 through and including the present.” (Hua Decl. Exh. 6-2.) No Exhibit 1 is attached to the subpoena.
In opposition, Plaintiff contends that the failure to attach Exhibit 1 is not important because “Defendant is aware of what Exhibit 1 is as it is the Ownership Interest Deed,” and “[a]ny procedural defects have since been corrected and Ms. Schneider has agreed to stay the subpoena until resolution of this instant discovery dispute. Therefore, this objection should be disregarded.” (Opp. 7:8-10.)
Defendant notes that RFP 6, Set Two, already seeks “”All DOCUMENTS EVIDENCING communications, including, but not limited to text messages and emails, between YOU and Anita Tolbert CONCERNING the PROPERTY.” However, the scope of RFP 6 and the subpoena differs in that the subpoena also seeks “accounting” and “business” records, in addition to communications.
Nevertheless, the Court notes that the date indicated on the Notice to Consumer of subpoena is February 12, 2020. The proof of service attached to the subpoena is devoid of dates. In a Notice of Errata filed March 30, 2020, counsel for Plaintiff asserts that the Notice to Consumer was erroneously dated “2/23/2020” and not “3/23/2020.” Counsel’s attempt to correct a Notice of Consumer or a proof of service via Notice of Errata is confusing. The Notice to Consumer is not dated “2/23/2020” as indicated by counsel, and the proof of service is blank. This subpoena is clearly defective in that it fails to attach a referenced exhibit, and apparently contains an incorrect date in the Notice to Consumer, despite counsel’s attempt to clarify the issue.
In light of the foregoing, a protective order shall be issued to withdraw the defective subpoena.
Defendant requests sanctions in the amount for $6,990 for employing discovery methods to cause unwarranted annoyance, embarrassment, or oppression, and for opposing this motion without substantial justification. (Code Civ. Proc. § 2023.010(c), (h).
In light of the discussion above, this request is denied.
In turn, Plaintiff requests sanctions in the amount of $7,000 for filing the present motion without making a good faith attempt to meet and confer prior to filing this motion Plaintiff contends that “the Darvish Firm failed to meet and confer with Boyd Law in good faith.” (Opp. 8:16.)
This request relates to the meet and confer discussion above. It appears that Defense counsel’s action of sending the meet and confer letter to an associate rather than the lead counsel in this action forms the sole basis for Plaintiff’s request for sanctions. Again, Plaintiff does not dispute that a meet and confer email was sent to Plaintiff’s counsel. Plaintiff’s counsel’s own inadvertence shall not form a basis for sanctions. Additionally, Plaintiff provides no authority for the proposition that the fact “Ms. Schneider was not even cc’d on this meet and confer email” warrants the imposition of sanctions. (Id. 8:19.)
Plaintiff’s request for sanctions is denied.
|Date: November 20, 2020|
|Honorable Stuart M. Rice
Judge of the Superior Court