David Ferguson vs. Joshua Bryant

If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will be forward the form to the Court Reporter’s Office and an official reporter will be provided.

TENTATIVE RULING:

Plaintiff’s motion to compel defendants’ further responses to special interrogatories and to requests for production is ruled upon as follows.

*** If oral argument is requested, the parties must at the time oral argument is requested notify the clerk and the opposing party of the specific discovery requests that will be addressed at the hearing. The parties are also reminded that pursuant to local rules, only limited oral argument is permitted on law and motion matters. ***

Both moving and opposing counsel failed to comply with CRC Rule 3.1110(b)(4).

Factual Background

This lawsuit arises out of plaintiff’s prior employment with defendant Element 26 Environmental & Demolition, Inc. (“E26”), beginning in 2010 and ending in the fall of 2021. Among other things, plaintiff claims that defendants have refused acknowledge his 30% ownership interest in E26 as was promised upon being hired in 2010. The operative complaint filed on 11/19/2021 purports to assert causes of action for breach of contract, misrepresentation, concealment, false promise, constructive fraud, and

34-2021-00311493-CU-FR-GDS: David Ferguson vs. Joshua Bryant 11/15/2023 Hearing on Motion to Compel Further Discovery Responses from Element 26//Bryant in Department 53

accounting. Trial is set to commence on 6/11/2024.

Moving Papers. According to the Notice of Motion, plaintiff now moves “pursuant to Code of Civil Procedure §2033.290(a) [sic]” for an order compelling (1) defendant Joshua Bryant to provide further responses to the second sets of special interrogatories and requests for production, and (2) defendant E26 to provide further responses the first set of requests for production. The Notice of Motion also includes a request for $6,650 in monetary sanctions against defendants and their attorneys “pursuant to Code of Civil Procedure §§2023.010 et seq. and 2031.300(c) [sic].” Curiously, the moving points & authorities request that this Court order further responses to the special interrogatories and requests for production “[p]ursuant to Code of Civil Procedure §2031.310 [sic],” along with monetary sanctions “pursuant to Code of Civil Procedure §§2023.010 et seq. and 2031.310(h) [sic].”

Opposition. Defendants oppose, generally arguing that plaintiff propounded “expansive and sometimes unintelligible discovery requests that seek document and information from all the way back to 2010, not only from [his] former employer [E26], but [also] the personal bank account and tax records of defendant Bryant and his wife, the relevancy of which is highly dubious, irrespective of their right to privacy in such financial matters.” Despite meritorious objections, defendants have nevertheless responded to many of plaintiff’s discovery requests and produced “thousands of pages” but the opposition maintains that this motion must be denied.

First, the opposition asserts that plaintiff’s motion for defendant E26’s further responses requests for production should be denied because plaintiff never actually served on E26 any set of requests for production pursuant to Code of Civil Procedure §2031.010 et seq. and thus, plaintiff’s reliance on Code of Civil Procedure §2031.310 is misplaced. Defendants concede plaintiff did serve a “PMK Deposition Notice” (Code of Civil Procedure §2025.230 actually refers person(s) “most qualified,” not “most knowledgeable”) on E26 but even if plaintiff had cited the correct statutory authority for this motion, it must be denied since E26’s objections to the deposition notice did not state that no documents would be produced and since plaintiff’s counsel never asked the witness if any documents were being produced for inspection.

In short, plaintiff cannot establish any non-compliance which justifies an order compelling a further response.

Second, the opposition claims this motion should be denied as to defendant Bryant because he has already provided amended response to several of the interrogatories (Nos. 43-45) and requests for production (No. 13), along with the production of additional documents, and because the remaining interrogatories (Nos. 40-42) and request for production (No. 12) pertain to personal financial information which is

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2021-00311493-CU-FR-GDS: David Ferguson vs. Joshua Bryant 11/15/2023 Hearing on Motion to Compel Further Discovery Responses from Element 26//Bryant in Department 53

considered private under California law.

The opposition does not seek sanctions against plaintiff or his attorneys.

Discussion

Defendant E26. The motion shall be denied as to defendant E26. The separate statement filed by plaintiff in support of this motion does not indicate that any requests for production pursuant to Code of Civil Procedure §2031.010 et seq. were actually served on E26 but instead, it admits the discovery at issue here relates to E26’s objections to the document requests included in plaintiff’s notice of deposition for defendant E26’s “person most knowledgeable.” Where a party contends another has failed to comply with a deposition notice, a motion to compel compliance pursuant to Code of Civil Procedure §2025.450 may be brought but for unknown reasons, the moving papers nowhere cite or discuss this provision which is directly applicable to the dispute over E26’s objections to the document requests included in the notice of deposition.

To the contrary, the moving papers cite and/or discuss the provisions of §§2031.300, 2031.310 and 2033.290 but none of these provisions has any bearing on the present discovery dispute and because plaintiff’s motion fails to identify the correct authority to obtain the relief requested, this motion will be denied as to defendant E26.

Even if plaintiff had correctly cited the authority to compel compliance with the deposition notice, the moving separate statement concedes that at least some responsive documents were produced. The Court has also reviewed the deposition transcript attached to the moving declaration and was unable to find therein any inquiry as to whether the deponent had available for inspection any other documents which were requested in the deposition notice. Indeed, the reply papers admit that the deponent was not actually asked on the record if he brought any of the requested documents to the deposition.

While the reply papers assert that the witness stated before the deposition began he did not bring any of the responsive documents and it was therefore unnecessary for plaintiff to ask about the documents on the record, these assertions by plaintiff do not alter the outcome here. First, the deponent was not under oath before the deposition began and his statements were clearly not “on the record” for this Court to consider. Second, the general rule in California is that new arguments and evidence presented for the first time on reply are not permitted as it the opposing party had no opportunity to address these new matters in the opposition papers. (See, e.g., Carbajal v.

CWPSC, Inc. (2016) 245 Cal.App.4th 227, 241; Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537; Tyler v. Children’s Home Society (1994) 29 Cal.App.4th 511, 526, n.8.) In the end, as defendant E26 had timely asserted objections to these requests and plaintiff has otherwise failed to competently demonstrate that E26 did not have ready for inspection any additional documents responsive to the requests in the

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

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deposition notice, this motion shall be denied as to defendant E26.

Finally, to the extent plaintiff may be able to demonstrate that his reliance on inapplicable statutory provisions is not fatal to this motion as it relates to E26, this Court finds that plaintiff has also failed to carry his burden under §2031.310(b)(1) inasmuch as the moving papers do not comply with the express requirement to “set forth specific facts showing good cause justifying the discovery sought by the demand[s].” Instead, plaintiff’s argument essentially consists of nearly identical conclusory claims that the documents are “highly relevant to Plaintiff’s claims” and the objections are “not supported by law or fact.” However, this alone is insufficient to satisfy the “good cause” requirement for compelling a further response to requests for production and this is particularly true when the Court is not persuaded that the entire array of objections asserted is without any merit whatsoever.

Defendant Joshua Bryant. Here, plaintiff seeks defendant Bryant’s further responses to special interrogatory Nos. 40-45 and to requests for production Nos. 12, 13, 16 and 17. According to the opposition, “Amended Responses” to interrogatory Nos. 43-45 and request for production No. 13 were served in October 2023 and with respect to the remainder, defendants contend they impermissibly seek private financial information not otherwise relevant to this case.

First, the Court has reviewed defendant Bryant’s “Amended Responses” to interrogatory Nos. 43-45 and requests for production No. 13 which were attached as Exhibits E and F to the Sherman Declaration in opposition. Since “Amended Responses” include no objections at all and otherwise appear to provide complete and code-compliant responses, the Court need not issue an order compelling further responses to these discovery requests but to the extent plaintiff may contend any of these “Amended Responses” is deficient for some reason, plaintiff remains free bring an appropriate motion after completing the requisite meet-and-confer process.

Second, interrogatory Nos. 40-42 seek not only the names of “all financial institutions” used defendant Bryant from January 2019 through January 2021 but also the type of each account and the account numbers. The moving separate statement claims this information will “clarify the loan made by Plaintiff to Defendant,” show how the money was utilized, clarify the “vague and/or conflicting testimony” by defendant and his wife, be “a potential basis for impeachment,” and “reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement.” The Court finds that plaintiff has failed to establish entitlement to a further response to any of these three interrogatories.

California has long recognized that individuals have a valid constitutional privacy

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

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interest in their personal financial information (see, e.g., Valley Bank of Nevada v. Superior Court (Barkett) (1975) 15 Cal.3d 652, 656-657) and this privacy right was recently reaffirmed by the Sixth District Court of Appeal (see, Look v. Penovatz (2019 (Rev. denied)) 34 Cal.App.5th 61, 73). Where privacy rights are implicated, the party seeking discovery must show more than mere legal relevance or likely to lead to admissible evidence. He/she must first establish that the information sought is not only “directly relevant” to the parties’ claims but also “essential” to a fair resolution of the lawsuit. (See, e.g., Alch v.

Superior Court (Time Warner Entertainment Co.) (2008) 165 Cal.App.4th 1412, 1432-1433.) Additionally, in order to pass constitutional scrutiny, any discovery into matters deemed private must be “narrowly tailored” to obtain only the “essential” information and the party seeking the discovery must show there is no less intrusive means to obtain this information. (See, e.g., Tien v. Superior Court (Tenet Healthcare Corp.) (2006) 139 Cal.App.4th 528, 539-540; In re Marriage of Harris (2004) 34 Cal.4th 210, 244.)

Even where all these prerequisites are met, there is still no categorical right to conduct discovery into the private matters as the trial Court is required to “carefully balance” the rights and interests involved before permitting the proposed invasion of privacy. (See, e.g., Alch, at 1423-1425.)

Plaintiff has failed to make this heightened showing necessary to overcome defendant Bryant’s right to financial privacy. Plaintiff’s argument for further responses to these interrogatories consists of nearly identical conclusory claims that the information sought is “highly relevant to Plaintiff’s claims” and the objections are “not supported by law or fact” but nowhere does plaintiff attempt to show that (1) the requested information is “directly relevant” or “essential” to a fair resolution of the lawsuit; (2) the interrogatories are “narrowly tailored” and there is no less intrusive means to obtain this information; or (3) the balance of the parties’ respective interests weigh in favor of the proposed invasion of privacy. According, the motion must be denied as to Interrogatory Nos. 40- 42.

For these same reasons, the motion to compel will also be denied as to request for production No. 12 which seeks all bank statements for the accounts identified in response to Interrogatory Nos. 40-42. These bank statements clearly fall within the scope of the aforementioned constitutional right of privacy and plaintiff has failed to make the heightened showing needed to overcome this protection and to obtain the requested bank statements.

Finally, the two remaining requests for production at issue in this motion (i.e., Nos. 16- 17) each relate to E26’s “network servicers” but the requests themselves are awkwardly phrased and it is therefore difficult for this Court to ascertain exactly what is sought here. Still, the moving separate statement in support of this motion confirms that defendant Bryant’s response to each of these requests was fundamentally identical and

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

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after several objections based on relevance, ambiguity, overbreadth and third-party rights, defendant Bryant stated:

“After diligent search and reasonable inquiry, Responding Party is unable to comply with this request because the particular item or category has never existed.”

Although the opposition does not appear to specifically address either of these two requests, plaintiff has failed to identify any deficiency in the responses to justify an order compelling further responses. Again, plaintiff’s argument relating to these requests is limited to conclusory claims that the items sought are “highly relevant to Plaintiff’s claims” and defendant’s objections are “not supported by law or fact.” But even assuming plaintiff’s characterizations were correct, the moving papers fail to identify any material deficiency in defendant’s Bryant’s actual responses consisting of a representation of inability to comply with these requests and more importantly, this Court finds that defendant’s Bryant’s responses conform to the spirit, if not the letter, of Code of Civil Procedure §2031.230 which specifically permits these responses.

Accordingly, this Court is not persuaded that a further response to either request is warranted under the circumstances here.

Disposition

For the reasons explained above, plaintiff’s motion to compel shall be DENIED in its entirety.

Plaintiff’s request for monetary sanctions is denied because his motion is denied.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)