Thomas Vogele & Associates, APC vs. Kern River Corridor Endowment and Holding Co.

10 Thomas Vogele Motion to Compel Further Responses to Form Interrogatories / & Associates, Motion to Compel Production / Motion to Compel Response to APC vs. Kern Requests for Admissions River Corridor Endowment and Holding Plaintiff Thomas Vogele & Associates, APC’s motion to compel Co., defendant Kern River Corridor Endowment and Holding Co. to provide further response to form interrogatories, set one, is granted. [ROA #58.] Defendant is to serve a verified, Code compliant response to form interrogatory no. 50.2 no later than August 28, 2026. Plaintiff 2025-01491400 is awarded sanctions of $750 against Defendant, to be paid to Plaintiff’s counsel no later than August 28, 2026.

Plaintiff’s motion to compel Defendant to provide further responses to requests for admission, set one, nos. 51 and 52, is granted. [ROA #63.] Defendant is to serve verified, Code compliant responses without objection no later than August 28, 2026. Plaintiff is awarded sanctions of $750, to be paid to Plaintiff’s counsel no later than August 28, 2026.

Plaintiff’s motion to compel Defendant to provide further responses to requests for production, set one, nos. 1-17, is granted. [ROA #54.] Defendant is to provide verified, Code compliant responses without objection no later than August 28, 2026. Plaintiff is awarded sanctions of $1,225 against Defendant, to be paid to Plaintiff’s counsel not later than August 28, 2026.

Facts This is an action by a law firm to recover attorneys’ fees of about $4 million it contends are due under a retainer agreement based on a settlement obtained for its client, defendant Kern River Corridor Endowment and Holding Co. (“KRC”).

Plaintiff alleges that it had prior experience and expertise in the particular type of trespass dispute between KRC and Chevron, so KRC retained Plaintiff to represent KRC on the existing complaint and possibly in negotiations with Chevron. [Complaint (ROA # 2), ¶¶ 7-11.]

According to Plaintiff, after almost four years of work, in 2023, KRC reached a settlement with Chevron for Chevron to pay $11 million and then $50,000 annually. This agreement was orally approved by KRC’s representative to Plaintiff, Fallgatter, confirmed in writing, and

approved by KRC’s board of directors. The court was notified of the settlement and the parties ceased active litigation on that basis. [Complaint, ¶¶ 17-19.]

Plaintiff then worked with Chevron’s counsel to document the settlement, for August 2023 into April 2024 but was stymied by Fallgatter (who was a member of the KRC board and its general counsel) and then ultimately discharged by KRC on 4/19/24 and refused to pay it the contingency amount due based on the 2023 settlement amount of $11 million. [Complaint, ¶¶ 14, 15, 21-23.]

Plaintiff asserts three cause of action for: (1) declaratory relief; (2) breach of contract; and (3) breach of the implied covenant of good faith and fair dealing.

In its answer, Defendant asserts affirmative defenses of unclean hands (“acted inequitably by prioritizing his own financial interest over the client’s instruction and best interest”) and offset. [Answer (ROA #11) fifth and seventh affirmative defenses.]

The Discovery at Issue On 9/22/25, Plaintiff served the form interrogatories, set one, RFPs, set one, and RFAs, set one on Defendant. [Lewis Decl. (ROA #50), ¶ 4 and Ex. 1.]

Defendant concededly did not serve responses by the due date of 10/24/25. [Id., ¶ 5; Vercoski Decl. (ROA #157), ¶ 4.] Initially, the due date was missed due to an in office error. [Id.] Then, there was further delay as the person necessary to review and verify the responses was ill – receiving treatment for cancer. [Id., ¶ 5.]

Eventually responses were served on 1/2/26. [Vercoski Decl., ¶7; Lewis Decl., ¶¶ 7-14 and Exs. 7-9.] Supplemental responses were then served on 2/27/26. Vercoski Decl., ¶ 8; Lewis Decl., ¶¶ 16-19 and Exs. 15-17.] These included a privilege log identifying a settlement agreement between Kern River and Chevron being withheld on the ground of confidentiality. [Lewis Decl., ¶ 21 and Ex. 16.] The privilege log did not identify any communications withheld based on attorney-client privilege or work product protection responsive to the discovery requests at issue in these motions. [Id., ¶ 22.]

The pending motions were filed on 3/11/26. After this, the parties stipulated to a protective order, under which Defendant produced to Plaintiff the settlement agreement between Kern River and Chevron. [Vercoski Decl., 10.]

Motion to Compel Further Responses to Form Interrogatory Legal Standard Each answer in the response to an interrogatory must be “as complete and straightforward as the information reasonably available to the responding party permits. If an interrogatory cannot be answered completely, it shall be answered to the extent possible.” Code Civ. Proc.§ 2030.220(a), (b) (emphasis added). “Parties must state the truth, the whole truth, and nothing but the truth in answering written interrogatories.” Scheiding v. Dinwiddie Const. Co. (1999) 69 Cal.App.4th 64, 76 (internal quotes omitted); see also Code Civ. Proc. § 2023.010(f) (evasive response is ground for sanctions).

Where the question is specific and explicit, an answer that supplies only a portion of the information sought is improper. It is also improper to provide “deftly worded conclusionary answers designed to evade a series of explicit questions.” 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. (Hunter v. International Systems & Controls Corp., supra, 56 F.R.D. 617, 625). 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. (See C.E.B., California Civil Discovery Practice, Section 8.54 (C.E.B.1975).)

Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783.

If a party to whom interrogatories are directed fails to serve a timely response, that party waives any right to exercise the option to produce writings under Section 2030.230, as well as any objection to the interrogatories, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010). Code Civ. Proc. §2030.290(a). The court, on motion, may relieve that party from this waiver on its determination that both of the following conditions are satisfied: (1) The party has subsequently served a response that is in substantial compliance with Sections 2030.210, 2030.220, 2030.230, and 2030.240.

(2) The party's failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect. Code Civ. Proc., § 2030.290(a)(1), (2).

A party may move to compel further responses to interrogatories on the grounds that the answer is evasive or incomplete. Code Civ. Proc. § 2030.300(a)(1). Prior to filing such a motion, the moving party must meet and confer with the responding party in a reasonable and good faith attempt to informally resolve each issue that would be presented by the motion. Code Civ. Proc. § 2030.300(b); § 2016.040. In the absence of agreement extending the time to file, a motion to compel further responses must be filed no more than 45 days (+ time for service by mail, email, etc.) after the verified responses, or verified supplemental responses, are served. Code Civ. Proc. §§ 2030.300(c), 2016.50.

If a timely motion to compel has been filed, the burden is on the responding party to justify any objection or failure to fully answer the interrogatories. Fairmont Ins. Co. v. Superior Court (2000) 22 Cal. 4th 245, 255.

Discussion

Form Interrogatory No. 50.2 Was there a breach of any agreement alleged in the pleadings? If so, for each breach describe and give the date of every act or omission that you claim is the breach of the agreement.

Supplemental Response to Form Interrogatory No. 50.2 In its pleadings, Plaintiff alleges that ‘KRC breached its obligations under the retainer agreement by failing and refusing to pay for legal services earned and costs incurred by TVA on KRC’s behalf, despite TVA’s demand.’ (Complaint, ¶ 22.) Plaintiff’s Second Claim for Relief is for Breach of Contract against all Defendants. In Defendant’s Verified Answer to Plaintiff’s Complaint, there are no affirmative defenses alleged for Breach of Contract. Furthermore, subsequent to the filing of Defendant’s Verified Answer, in complete compliance with the terms of the contract Plaintiff fully paid Plaintiff for the legal services performed by Plaintiff and the costs incurred by Plaintiff.

[See Separate Statements (ROA ## 46, 147.]

Defendant’s explanation that it did not allege a contract is insufficient to relieve of its obligations to give a straightforward response. Plaintiff alleged a contract, and a breach of a contract; it is entitled to discovery as to Defendant’s contentions and supporting facts about those allegations.

The motion to compel further response is granted.

Motion to Compel Further Responses to RFAs Legal Standard (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.

Code Civ. Proc. § 2033.220.

If a party to whom requests for admission are directed fails to serve a timely response, it waives any objection to the requests, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010). The court, on motion, may relieve that party from this waiver. Code Civ. Proc. § 2033.280(a).

After receiving responses to requests for admission that a party finds evasive or incomplete a party may move for further responses. Code Civ. Proc. §2033.290(a). The motion must be accompanied by a declaration showing a good faith attempt to meet and confer and a separate statement. Code Civ. Proc. §2033.290(b).

Discussion

Request for Admission No. 51

Admit that the settlement agreement with Chevron granted Chevron the right to continue its operations on the Kern River preserve.

Supplemental Response to Request for Admission No. 51 Defendant objects to this Request on the grounds that it seeks information that is not relevant to the claims or defenses in this matter. Defendant further objects on the grounds that the Request seeks information barred by the Parol Evidence Rule. Defendant further objects on the grounds that the Request seeks information subject to a confidentiality agreement between Defendant and Chevron. Defendant identified the settlement agreement in its privilege log. Defendant is not obligated to provide a response because answering this request would disclose information subject to the confidentiality provisions of the settlement agreement.

Request for Admission No. 52 Admit that the settlement agreement with Chevron granted Chevron the right to record a document memorializing its operations on the Kern River preserve.

Supplemental Response to Request for Admission No. 52 Defendant objects to this Request on the grounds that it seeks information that is not relevant to the claims or defenses in this matter. Defendant further objects on the grounds that the Request seeks information barred by the Parol Evidence Rule. Defendant further objects on the grounds that the Request seeks information subject to a confidentiality agreement between Defendant and Chevron. Defendant identified the settlement agreement in its privilege log. Defendant is not obligated to provide a response because answering this request would disclose information subject to the confidentiality provisions of the settlement agreement.

[See Separate Statements (ROA ## 52, 151).]

These responses are almost entirely objections. But Defendant waived its objections by its untimely responses. In its opposition, Defendant asks to be relieved of that waiver. But Defendant has not actually moved for relief.

Plaintiff points to its production of the settlement agreement with Chevron and asserts the motion thus moot. First, Plaintiff disputes this production. Second, an admission is more that evidence. The motion is not moot.

Accordingly, the motion to compel further responses to the RFAs is granted.

Motion to Compel Further Responses to RFPs Legal Standard Code Civ. Proc. section 2031.310 provides, in relevant part, that “any party may obtain discovery” by “inspecting, copying, testing, or sampling documents, tangible things, land or other property, and electronically stored information in the possession, custody, or control of any other party to the action.” Code Civ. Proc., § 2031.010(a). Section 2031.220 requires a party responding to an inspection demand to respond with (1) a statement that it will comply, (2) a representation that it does not have the ability to comply, or (3) an objection.

If the party responds with a statement of compliance, it must specify whether production “will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.” Code Civ. Proc., § 2031.220.

If the party responds with a representation that it does not have the ability to comply, it “shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand.” Additionally, it “shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.” Code Civ. Proc., § 2031.230.

Finally, (a) If only part of an item or category of item in a demand for inspection, copying, testing, or sampling is objectionable, the response shall contain a statement of compliance, or a representation of inability to comply with respect to the remainder of that item or category.

(b) If the responding party objects to the demand for inspection, copying, testing, or sampling of an item or category of item, the response shall do both of the following: (1) Identify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made. (2) Set forth clearly the extent of, and the specific ground for, the objection. If an objection is based on a claim of privilege, the particular privilege invoked shall be stated.

If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted. (c)(1) If an objection is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.

Code Civ. Proc. § 2031.240.

If a party to whom an RFP is served fails to serve a timely response to it, he waived any objection to the demand, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010). The court, on motion, may relieve that party from this waiver. Code Civ. Proc. § 2031.300(a).

Where there has been a response to RFPs that the propounding party finds inadequate, then the Code provides for a motion and order compelling production upon a showing of good cause, prior meeting and conferring, and the filing of a separate statement. Code Civ. Proc. § 2031.310(b)(1) and (2); CRC 3.1345; Cal. Prac. Guide, Civil Procedure before Trial §8:1494.1.

In order to meet the burden of showing good cause, the moving party must show: (1) relevance to the subject matter and (2) specific facts justifying discovery. Weil & Brown, Cal. Civ. Proc. Before Trial, 8:1495.6 (The Rutter Group 2011). Declarations are generally used to show good cause, and they must contain specific facts and not mere conclusions. Id. at 8:1495.7. If the moving party demonstrates good cause, then the opposing party must justify any objections. Kirkland v Superior Court (2002) 95 Cal. App. 4th 92, 98.

Discussion

Plaintiff has moved to compel further responses to RFP nos. 1-17. Plaintiff shows good cause; and Defendant raises no objection on this point. [See Motion MPA (ROA #54) at 11.]

Defendant’s RFP responses all include (or consist entirely of) objections.

Again, though, Defendant waived its objection by serving untimely responses. Nor has it brought a motion for relief – or justified its objections and responses. Rather, in opposition Defendant contends that it has produced all the documents it has. [Opp. (ROA #153) at 5.]

Defendant asserts that:

To the extent this Request seeks documents beyond those already produced, no further response is required because such documents either (1) do not exist, (2) have already been produced, or (3) are not relevant to the claims or defenses in this action and are not proportional to the needs of the case.

[Defendant’s Separate Statement (ROA #155).] But if this is true, Plaintiff is entitled to a verified, Code compliant response that says this.

The motion to compel further responses to the RFPs is granted. Plaintiff to give notice.