Stacy M. Bromley, et al. v. Steven S. McGowan, et al.

evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” “‘For discovery purposes, information is relevant if it ‘might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement....’ [Citation.] Admissibility is not the test and information unless privileged, is discoverable if it might reasonably lead to admissible evidence. [Citation.] These rules are applied liberally in favor of discovery [citation], and (contrary to popular belief), fishing expeditions are permissible in some cases.’” (Garamendi v. Golden Eagle Ins. Co. (2004) 116 Cal.App.4th 694, 712, fn. 8.)

“A trial court must be mindful of the Legislature’s preference for discovery over trial by surprise, must construe the facts before it liberally in favor of discovery, may not use its discretion to extend the limits on discovery beyond those authorized by the Legislature, and should prefer partial to outright denials of discovery.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 540 (Williams).)

Section 2031.310 provides that a party may move to compel a further response to a document request if a statement of compliance is incomplete; a representation of inability to comply is inadequate, incomplete, or evasive; or an objection is without merit or too general. (§ 2031.310, subd. (a).) The motion must set forth specific facts showing good cause justifying the discovery and be accompanied by a meet and confer declaration. (§ 2031.310, subd. (b).)

2. Meet and Confer Efforts

The parties must make a good faith attempt to informally resolve discovery disputes before seeking court intervention. (§ 2025.480.) “‘[A] reasonable and good faith attempt at informal resolution entails something more than bickering with [opposing] counsel.... Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.’ [Citation.]” (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294; Ellis v. Toshiba Am. Info. Sys., Inc. (2013) 218 Cal.App.4th 853, 880, as modified (Aug. 14, 2013), as modified on denial of reh’g (Sept. 10, 2013).) “The level of effort at informal resolution which satisfies the ‘reasonable and good faith attempt’ standard depends upon the circumstances. . ..” (Stewart v. Colonial W. Agency, Inc. (2001) 87 Cal.App.4th 1006, 1016.)

Plaintiffs present evidence that their attorney had multiple meet and confer discussions with defense attorney Gayle Kalustian-Carrier. (Declaration of Emilie de la Motte (de la Motte Dec.), ¶¶ 5, 6, 7, 10, 11, Exs. C, D, E, H.) Toste Defendants submit the declaration of attorney Michael D. Haupt in support of their argument that Plaintiffs failed to meet and confer in good faith. Plaintiffs object to paragraph 6 of Mr. Haupt’s declaration on the ground he lacks personal knowledge of meet and confer communications between Plaintiffs’ counsel and Ms. Kalustian- Carrier. The objection is sustained.

The evidence shows that Plaintiffs’ counsel engaged in multiple meet and confer communications and Defendants refused to withdraw its objections and provide any responsive documents. Plaintiffs clarified in the meet and confer discussions that the requested bank records are limited to “documents related to accounts used for project funds.” (de la Motte Dec., Ex. C, p. 2.) Defendants object that the scope of Request 11, from 2012, is too broad, but admit that there are responsive documents. (Declaration of Anthony Toste (Toste Dec.), ¶¶ 4, 5.)

The Court finds that Plaintiffs sufficiently met and conferred prior to filing the subject motions.

3. Toste Defendants’ Objections

Request 11 appears to be straight forward and Toste Defendants do not specify any vagueness or ambiguousness. Even if the request is somewhat vague or ambiguous the responding party must provide an appropriate response if the nature of the information sought is apparent. (See, Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783.)

Request 11 is not overbroad in that any bank account used for Project funds is relevant and Defendants admit they have bank statements during the relevant period that reflect Project funds. Toste explains that his “office was responsible for paying the Project-related invoices using the SSD and Silver Shoals checkbooks provided by McGowan” yet “advanced” the expenses of Toste Construction, Inc. (which was general contractor) from Toste accounts and later took reimbursement from the SSD and Silver Shoals accounts. (Toste Dec., ¶¶ 2, 4.) As a result, Toste Defendants’ bank accounts contain responsive documents and arguably irrelevant documents.

Section 2031.240 provides, “[i]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.” (§ 2031.240, subd. (a).) Toste declares, “I have no objection to providing Plaintiffs with bank statements reflecting Project-related expenses, but this is not what Plaintiffs are requesting.” (Toste Dec., p. 3, lns. 6-7.) It is clear Toste Defendants violated their statutory duty in providing responses to Request 11.

As for Toste Defendants’ other objections, “[t]he objection based upon burden must be sustained by evidence showing the quantum of work required, ....” (West Pico Furniture Co. of Los Angeles (1963) 56 Cal. 2d 407, 417.) Toste Defendants provide no evidence of the quantum of work required to identify bank statements that reflect Project funds and do not object to producing those documents.

A party asserting a privacy interest in response to discovery has the burden of establishing the extent and the seriousness of the prospective invasion. (Williams, supra, 3 Cal.5th at 557.) The Court weighs that showing against the countervailing interests identified by the propounding party. “What suffices to justify an invasion will, . . ., vary according to the context. (Id.)

Here, there is a protective order in place and Toste Defendants chose to comingle Project funds in accounts for multiple projects. The invasion of Toste Defendants’ privacy is minimal under the circumstances. Toste Defendants have not met their burden of establishing the extent or seriousness of a prospective invasion of third-party rights. Plaintiffs state in their Reply that “non‐Project transactions may be redacted.” (Reply, p. 4, ln. 20.)

4. Sanctions

Section 2031.310, subd. (h) provides that the court shall impose a monetary sanction against any party or attorney who unsuccessfully makes or opposes a motion to compel further response unless it finds that imposition of the sanction would be unjust.

Sanctions are warranted because Toste Defendants refused to produce responsive documents it has “no objection” to producing. This caused Plaintiffs to have to bring the subject motion.

Plaintiffs seek sanctions against Toste and his attorneys in the sum of $1,945 and against Toste Construction, Inc. and its attorneys in the sum of $1,945. (de la Motte Dec., ¶ 12.) While counsel declares “I spent 4 hours preparing the motion against defendant Anthony Toste (this is separate, in addition to my time spent on the motion against Toste Construction, Inc.)” and vice versa in the motion concerning Toste Construction, Inc., the moving papers are nearly identical. The Court finds that only one of the charges is reasonable.

5. Ruling

Plaintiffs’ motion is granted as to bank statements that reflect Project funds and that non-Project transactions may be redacted. Toste Defendants are ordered to provide code compliant responses to Request 11 and produce responsive documents within 20 days of notice of entry of order. Toste Defendants and their counsel are ordered to pay $1,945 in sanctions to Plaintiffs within 20 days of notice of entry of order. Plaintiffs are ordered to give notice of entry of order.

4