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1 JOHNNY D. KNADLER (SBN 220942)
LAW OFFICE OF JOHNNY D. KNADLER
2 1527-E Pershing Drive
ELECTRONICALLY
San Francisco, CA 94129
3 Telephone: (310) 564-6695 F I L E D
Facsimile: (888) 323-0611 Superior Court of California,
County of San Francisco
4 Email: jdknadler@gmail.com
04/09/2021
5 Clerk of the Court
BY: SANDRA SCHIRO
Deputy Clerk
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Attorneys for Plaintiff/Defendant/Cross-complainant
7 SYNERGY PROJECT MANAGEMENT, INC.
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9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 IN AND FOR THE COUNTY OF SAN FRANCISCO
11 SYNERGY PROJECT MANAGEMENT, Case No. CGC-17-560034
INC., (Consolidated with Case No. CGC-19-576488)
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Plaintiff,
13 SYNERGY PROJECT
vs. MANAGEMENT, INC.’S
14 MEMORANDUM IN SUPPORT OF
CITY AND COUNTY OF SAN FRANCISCO, MOTION TO COMPEL
15 LONDON BREED, MOHAMMED NURU, PRODUCTION OF DOCUMENTS,
COMPLIANCE AND SANCTIONS
16 Defendants.
______________________________________
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GHILOTTI BROS., INC., a California Date: May 7, 2021
18 Corporation, Time: 9:00 a.m.
Dept: 301
19 Plaintiff,
Complaint filed: July 10, 2017
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vs,
21 DISCOVERY
SYNERGY PROJECT MANAGEMENT,
22 INC., a California Corporation, and
DOES 1-30,
23 Defendants.
24 ______________________________________
25 SYNERGY PROJECT MANAGEMENT, a
California Corporation,
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Cross-Complainant,
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vs.
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1 Case No. CGC-17-560034
GHILOTTI BROS, INC., a California
1 Corporation, and ROES 1-20,
2 Cross-Defendants.
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1 I. INTRODUCTION AND SUMMARY OF THE ARGUMENT
2 Plaintiff/Defendant/Cross-complainant Synergy Project Management, Inc. (hereafter
3 “Synergy”) seeks an order compelling Defendant/Plaintiff/Cross-defendant Ghilotti Bros., Inc.
4 (hereafter “GBI”) to provide further responses to Defendant’s Request for Production, Set Three.
5 GBI produced some documents in response to 3 requests, but GBI did not produce any
6 documents to the remaining 26 requests and provided evasive and/or boilerplate objections to all
7 of the requests.
8 This motion to compel and request for sanctions is based upon this notice of motion, the
9 motion itself, the memorandum of points and authorities, the declaration of Johnny Knadler, the
10 Separate Statement and documentary evidence as may be presented by Defendant upon the
11 hearing of the demurrer.
12 RELEVANT FACTUAL BACKGROUND
13 Synergy is suing various parties arising from a contract dispute on sewer contracts for
14 Haight Street and Van Ness Avenue in San Francisco. Synergy was awarded the contract for the
15 Haight Street Project. Due to issues on the Haight Street Project, Synergy was improperly
16 removed as a subcontractor. Further, in retaliation, Synergy was removed as a subcontractor on
17 the Van Ness Avenue project before it was started. In addition to removal, Synergy was not paid
18 for work it had completed on the Haight Street project.
19 In 2017, Synergy filed suit against the City and County of San Francisco and various City
20 officials (hereafter “City Defendants”). The City Defendants removed the matter to federal
21 court. Subsequently, Synergy added Ghilotti Bros., Inc. (hereafter “GBI”) for failure to pay
22 Synergy for completed work. The federal court dismissed the City Defendants and remanded the
23 remaining claims against GBI to state court. Synergy appealed the dismissal, and the appeal is
24 still pending. Meanwhile, GBI filed suit against Synergy in state court and Synergy counter-
25 claimed. After remand, GBI moved to consolidate the cases. Following consolidation, the court
26 set a trial date of March 29, 2021. The trial date was continued to August 23, 2021.
27 Synergy served the Request for Production of Documents, Set Three, on GBI on January
28 25, 2021. See Knadler Decl. Ex. F. On February 24, 2021, GBI served responses via email and
3 Case No. CGC-17-560034
1 mail. Id. at Ex. G. At that time, GBI did not serve any documents. Id. at ¶ 4. Further, many of
2 the objections to the Inspection Demand requests were similar or identical. Id. at Ex. G. None
3 of the objections appears to be particularized to the specific demand, and they appear baseless.
4 For example, in response to Request No. 60 which seeks communications between GBI and the
5 Department of Public Works “concerning the Haight Street Project”, GBI objects “that the
6 Request is not limited to Synergy’s involvement in the Haight Street Project . . ..” See Knadler
7 Decl. Ex. G.
8 Synergy sent meet and confer letters on February 26, 2021, March 9, 2021, and March
9 31, 2021. See Knadler Decl. Ex. A. In response, GBI responded that it stood by its objections.
10 In its responses on March 5, 2021 and April 2, 2021, GBI stated that its objections were valid.
11 See Knadler Decl. Ex. A. On March, 11, 2021, GBI did produce documents in response to
12 Requests 45, 66, and 69. However, these productions appear inadequate and/or incomplete as
13 they provide only limited information. To date, GBI has not produced documents for Requests
14 44, 46-65, 67-68, 70-72.
15 To date, GBI has not provided any substantive responses to the Requests for Production,
16 Set Three. Further, given that GBI only responded with objections to most of the requests, GBI
17 has not indicated that they have conducted a diligent search and that there are no other
18 responsive documents. Finally, despite asserting various privileges, GBI has not produced a
19 privilege log.
20 LEGAL ARGUMENT
21 Code of Civil Procedure Section 2017.010 provides that:
Unless otherwise limited by order of the court in accordance with
22 this title, any party may obtain discovery regarding any matter, not
privileged, that is relevant to the subject matter involved in the
23 pending action or t the determination of any motion made in that
action, if the matter either is itself admissible in evidence or
24 appears reasonably calculated to lead to the discovery of
admissible evidence. Discovery may relate to the claim or defense
25 of the party seeking discovery or of any other party to the action.
Discovery may be obtained of the identity and location of persons
26 having knowledge of any discoverable matter, as well as of the
existence, description, nature, custody, condition, and location of
27 any document, tangible thing, or land or other property.
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1 The responding party must make a reasonable effort to obtain whatever information is sought;
2 and if unable to do so, must specify why the information is unavailable and what efforts he or
3 she made to obtain it. Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 782. Further, “A party
4 cannot plead ignorance to information which can be obtained from sources under his control.”
5 Deyo, 84 Cal.App.3d at 782, Regency Health Services, Inc. v. Sup. Ct. (Settles) (1998) 64
6 Cal.App.4th 1496, 1504.
7 A responding party is required to state separate objections to document demands,
8 including identification “with particularity” of each document “to which an objection is being
9 made”, and further, a clear statement of the “specific grounds” for the objection including but not
10 limited to any privilege. CCP § 2031.210(a)(3) and § 2031.240(b). “Overbroad” is not a valid
11 objection unless it creates an undue burden or irrelevance to the subject matter is demonstrated.
12 Perkins v. Sup. Ct. (1981) 118 Cal.App.3rd 761, 764-65; Durst v. Sup. Ct. (1963) 218 Cal.App.2nd
13 460. An objection of “vague, ambiguous and unintelligible” to a request for any and all bills,
14 statements and invoices” may be treated as a “nuisance” objection exposing the responding party
15 to sanctions. Standon Co., Inc. 225 Cal..App.3d at 903; Manzetti V. Sup. Ct. (Fitzgerald) (1993)
16 21 Cal.App.4th 373, 377.
17 The court must impose a monetary sanction under Section 2031.290 of the Code of Civil
18 Procedure against any party, person, or attorney who unsuccessfully opposes a motion to compel
19 a response to an Inspection Demand, unless it finds that the one subject to the sanction acted with
20 substantial justification or that other circumstances make the imposition of the sanction unjust
21 (Code Civ. Proc. §§ 2030.290(c)). The court may award sanctions under the Discovery Act in
22 favor of a party who files a motion to compel discovery, even though no opposition to the motion
23 was filed, or opposition to the motion was withdrawn, or the requested discovery was provided
24 to the moving party after the motion was filed (Cal. Rules of Ct., Rule 3.1030(a)).
25 In an attempt to resolve this informally, Synergy engaged in lengthy meet and confer
26 efforts. See Knadler Decl. Ex. A. Synergy sent letters seeking to resolve this issue on February
27 26, 2021, March 9, 2021, and March 31, 2021. In addition to generally discussing the validity of
28 the requests and the invalidity of the boilerplate objections, Synergy discussed in detail why it
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1 needed the discovery for Requests 44, 45, 46, 47, 48, 49, 50, 51, 52, 54, 55, 69, 60, 61, 62, 63,
2 64, 67, 69, 70, 71, and 72. In each case, GBI responded that its objections were valid.
3 I. Synergy has Good Cause for production.
4 As discussed in detail in the Separate Statement and the Declaration of Johnny D.
5 Knadler, Synergy has established good cause for the Documents requested. See Knadler Decl. ¶
6 7; Separate Statement.
7 In particular, each Request seeks documents relevant to the subject matter of the
8 litigation. This case arises from the removal of Synergy from its subcontract with GBI. Synergy
9 claims that it was improperly removed from the Haight Street Project and that GBI breached the
10 subcontract between the parties. Further Synergy claims that GBI breached its covenant of good
11 faith and fair dealing and GBI engaged in the unlawful removal and substitution of a listed
12 subcontractor. GBI asserts in its claims and defenses against Synergy that Synergy was properly
13 removed and that it suffered damages as a result of the removal and the need to redo work that
14 Synergy performed. In particular, GBI asserts that it suffered increased costs associated with the
15 new subcontractors and that Synergy had numerous safety violations.
16 The requests seek information to support Synergy’s claims that it was improperly
17 removed and that GBI did not act in good faith in the removal. Further, the requests seek
18 information related to GBI’s claims against Synergy that it suffered damages and increased costs
19 associated with the removal of Synergy and the association of new subcontractors. Of most
20 significance, Synergy’s requests seek financial information to demonstrate that GBI did not
21 suffer any such increased costs or damages. Synergy refers to the Separate Statement for further
22 discussion of good cause for each request.
23 Meet and confer efforts did not resolve the issues. In response to each letter, GBI merely
24 responded that its boilerplate objections were valid. In an effort to delay this motion, GBI stated
25 that it was willing to meet and confer further. However, after 3 letters and no documents
26 produced in response to these letters, Synergy did not see any movement, and this motion was
27 warranted.
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1 If “good cause” is shown by the moving party, the burden is then on the responding party
2 to justify any objections made to document disclosure. Kirkland v. Sup.Ct. (Guess?, Inc.) (2002)
3 95 Cal.App.4th 92, 98.
4 II. The Objections to Document Requests were boiler plate and without merit.
5 A party may move to compel responses or additional responses if the responses to the
6 requests are (1) a statement of compliance with the demand is incomplete, (2) a representation of
7 inability to comply is inadequate, incomplete, or evasive, or (3) an objection is made that is
8 either too general or without merit. See Code of Civil Procedure § 2030.300(a). The objecting
9 party has the burden of justifying an objection to the discovery. Coy v. Superior Court (1962) 58
10 Cal.2d 210, 220. To be effective, the objection must set forth the specific ground for objection,
11 including claims of privilege or work product protection. CCP § 2031.240(b); Standon Co., Inc.
12 v. Sup.Ct. (Kim) (1990) 225 Cal.App.3d 898, 901. An objection of “vague, ambiguous and
13 unintelligible” to a request for any and all bills, statements and invoices” may be treated as a
14 “nuisance” objection exposing the responding party to sanctions. Standon Co., Inc. 225
15 Cal.App.3d at 903; Manzetti v. Sup. Ct. (Fitzgerald) (1993) 21 Cal.App.4th 373, 377.
16 “Overbroad” is not a valid objection unless it creates an undue burden or irrelevance to the
17 subject matter is demonstrated. Perkins v. Sup. Ct. (1981) 118 Cal.App.3rd 761, 764-65; Durst v.
18 Sup. Ct. (1963) 218 Cal.App.2nd 460. The Defendant has a duty to provide “complete” answers.
19 The Court is referred to the accompanying Separate Statement for the legal and factual
20 reasons for compelling further responses. In this case, Synergy is seeking the production of
21 documents because GBI has provided insufficient and evasive or incomplete objections and no
22 documents or insufficient documents. GBI only produced documents for three (3) requests, and
23 it failed to provide documents for Requests 44, 46-65, 67-68, 70-72. For the documents GBI has
24 produced, they were not accompanied by any declaration that these are a complete or partial
25 production of documents. GBI must provide a supplemental response indicating that it has
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1 produced all relevant documents in response to the three requests that it did provide some
2 documents.1
3 Each of GBI’s objections is evasive, too general and without merit. A review of the
4 objections for Requests 44-46 shows almost identical objections based on relevancy and various
5 privileges. For requests 47-72, the objections are virtually identical and rely on the boilerplate
6 claim that the request is “overbroad, unduly burdensome, and that it calls for the disclosure of
7 information not relevant to the subject matter of this action or likely to lead to the discovery of
8 admissible evidence . . .”. At no point does GBI describe how the request is unduly burdensome.
9 See W. Pico Furniture Co. Of Los Angeles v. Sup. Ct. in & For Los Angeles Cty. (1961) 56
10 Cal.2d 407, 417 (“[O]bjection based upon burden must be sustained by evidence showing the
11 quantum of work required.”). GBI also claims privilege, but no privilege log was produced. A
12 review of the objections reveals that substantially all of GBI’s objections are boilerplate and
13 nuisance objections. They are not tailored to each response and provide no foundation
14 supporting the objection. In many cases, GBI merely repeats the same objections to avoid
15 responding. There is absolutely no attempt to make any kind of meaningful response to the
16 document requests. These objections clearly fall under the “nuisance” objections and should be
17 overruled with sanctions ordered for the reasons to follow. Standon Co., Inc. 225 Cal.App.3d at
18 903; Manzetti v. Sup. Ct. (Fitzgerald) (1993) 21 Cal.App.4th 373, 377; Korea Data Systems Co.
19 v. Sup. Ct. (1997) 51 Cal.App.4th 1513, 1516 (noting that courts “recognize the use of ‘boiler
20 plate’ objections as were provided in this case may be sanctionable[.]”).
21 As demonstrated in the Separate Statement, Synergy is entitled to discovery of the
22 documents. Given GBI’s failure to provide documents, the Court should overrule GBI’s
23 objections and require that GBI produce documents for Requests 44, 45, 46, 47, 48, 49, 50, 51,
24 52, 54, 55, 59, 60, 61, 62, 63, 64, 67, 69, 70, 71 and 72.
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Interestingly, GBI supplemented responses to previously served document requests
27 from 2019 and 2020 which suggests that GBI failed to conduct a complete and thorough search
for documents that it has had in its possession for years. For example, Document GBI 1358 is
28 from 2015. This is one reason that Synergy seeks a supplemental response that a thorough
search has been conducted and that all responsive documents have been produced.
8 Case No. CGC-17-560034
1 III. Even when GBI produced documents, the production was incomplete.
2 GBI produced a handful of documents in Response to Request 45. Although the Request
3 seeks documents for 2015-19, only documents a few documents for 2016 and 2017 were
4 produced. GBI stated that it would produce Documents in response to Requests 66, 68, and 69.
5 Documents were produced for Requests 66 and 69, but no documents were produced for Request
6 68. Of the Documents produced for 66, GBI indicated that the documents were identical to the
7 production for response 45. In other words, GBI believes that its responsive documents for
8 Request 45 which seeks “project costs” for the Haight Street Project from 2015-2019 are
9 identical to “documents concerning any subcontractor hired to replace Synergy” on the Haight
10 Street Project. None of the produced documents reflect any signed subcontract between GBI and
11 a subcontractor. None of the documents reflect the total costs of the Haight Street Project. None
12 of the documents reflect any payments to the subcontractor, change orders, violations, or any of
13 the many other documents related to a subcontract. In other words, GBI has produced only a
14 fraction of the responsive documents that would show what work was done, what work was
15 redone, any safety issues, or the actual subcontract between GBI and the subcontractor. All of
16 these documents bear on Synergy’s claims and defenses because GBI claims that Synergy’s
17 work had to be redone, that Synergy had safety violations, and that GBI suffered damages due to
18 Synergy’s actions. The documents would demonstrate that Synergy’s work did not have to be
19 redone, that GBI did not suffer any damages, and that the subcontractors had safety violations
20 but were not removed.
21 In each case, GBI agreed to produce documents, but it either failed to do so (Request 68)
22 or did not provide a complete production (Requests 45, 66, and 69). If the responding party
23 agrees to comply with CCP § 2031.010 demand but then fails to so, compliance may be
24 compelled on a motion. See CCP § 2031.320. All that is required for such a motion is that the
25 responding party failed to comply as agreed. See CCP § 2031.320(a); Standon Co. Inc. v Sup.
26 Ct. (Kim) (1990) 225 Cal.App.3d 898, 903.
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1 The Court should overrule the objections to Requests 45, 66, 68 and 69, and require that
2 GBI certify that it has produced all documents related to these requests as GBI has stated that it
3 will produce documents.
4 IV. The Court should award monetary sanctions against GBI.
5 The responding party must make a reasonable effort to obtain whatever information is
6 sought; and if unable to do so, must specify why the information is unavailable and what efforts
7 he or she made to obtain it. Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 782. Further, “A
8 party cannot plead ignorance to information which can be obtained from sources under his
9 control.” Deyo, 84 Cal.App.3d at 782, Regency Health Services, Inc. v. Sup. Ct. (Settles) (1998)
10 64 Cal.App.4th 1496, 1504. Further, false or evasive answers are improper.
11 The Court must impose a monetary sanction under Section 2031.320(b) of the Code of Civil
12 Procedure against any party, person, or attorney who unsuccessfully opposes a motion to compel,
13 unless it finds that the one subject to the sanction acted with substantial justification or that other
14 circumstances make the imposition of the sanction unjust (Code Civ. Proc. §§ 2031.320(b)).
15 Code of Civil Procedure 2023.010 identifies several types of misuses of the discovery process,
16 including failure to respond to discovery, making without substantial justification unmeritorious
17 objections, making evasive responses, and disobeying court orders. See CCP § 2023.010(d)-
18 (g); CCP § 2023.030(a). Boiler plate responses are sanctionable. Korea Data Systems Co. v.
19 Sup. Ct. (1997) 51 Cal.App.4th 1513, 1516 (noting that courts “recognize the use of ‘boiler plate’
20 objections as were provided in this case may be sanctionable[.]”).
21 In this case, monetary sanctions are clearly warranted under sections 2023.010(d) through
22 (g). First, GBI cannot establish “substantial justification” for making meritless objections and
23 avoiding a substantive response by failing to produce documents. Second, GBI made almost
24 identical, impermissible boiler plate, general objections to Synergy’s Document Requests. These
25 actions constitute an abuse of the discovery process. GBI had opportunities to supplement its
26 responses during the meet and confer process, but it failed to do so. Thus, GBI improperly
27 increased the costs of litigation through abuse of the discovery process.
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1 CONCLUSION
2 Synergy propounded Document Requests, Set Three, and GBI has not provided
3 documents and/or a complete production. Accordingly, Defendant is entitled to an order
4 overruling GBI’s objections and compelling GBI to provide further responses to the Document
5 Requests and to monetary sanctions of $2450.00 for bringing this motion .
6
LAW OFFICE OF JOHNNY D.
7 KNADLER
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9 Dated: April 9, 2021 By: /s/ Johnny D. Knadler
10 JOHNNY D. KNADLER
Attorneys for Plaintiff/Defendant/Cross-
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SYNERGY PROJECT MANAGEMENT,
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1 JOHNNY D. KNADLER (SBN 220942) LAW OFFICE OF JOHNNY D. KNADLER 2 1527-E Pershing Drive ELECTRONICALLY San Francisco, CA 94129 3 Telephone: (310) 564-6695 F I L E D Facsimile: (888) 323-0611 Superior Court of California, County of San Francisco 4 Email: jdknadler@gmail.com 04/09/2021 5 Clerk of the Court BY: SANDRA SCHIRO Deputy Clerk 6 Attorneys for Plaintiff/Defendant/Cross-complainant 7 SYNERGY PROJECT MANAGEMENT, INC. 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 IN AND FOR THE COUNTY OF SAN FRANCISCO 11 SYNERGY PROJECT MANAGEMENT, Case No. CGC-17-560034 INC., (Consolidated with Case No. CGC-19-576488) 12 Plaintiff, 13 SYNERGY PROJECT vs. MANAGEMENT, INC.’S 14 MEMORANDUM IN SUPPORT OF CITY AND COUNTY OF SAN FRANCISCO, MOTION TO COMPEL 15 LONDON BREED, MOHAMMED NURU, PRODUCTION OF DOCUMENTS, COMPLIANCE AND SANCTIONS 16 Defendants. ______________________________________ 17 GHILOTTI BROS., INC., a California Date: May 7, 2021 18 Corporation, Time: 9:00 a.m. Dept: 301 19 Plaintiff, Complaint filed: July 10, 2017 20 vs, 21 DISCOVERY SYNERGY PROJECT MANAGEMENT, 22 INC., a California Corporation, and DOES 1-30, 23 Defendants. 24 ______________________________________ 25 SYNERGY PROJECT MANAGEMENT, a California Corporation, 26 Cross-Complainant, 27 vs. 28 1 Case No. CGC-17-560034 GHILOTTI BROS, INC., a California 1 Corporation, and ROES 1-20, 2 Cross-Defendants. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Case No. CGC-17-560034 1 I. INTRODUCTION AND SUMMARY OF THE ARGUMENT 2 Plaintiff/Defendant/Cross-complainant Synergy Project Management, Inc. (hereafter 3 “Synergy”) seeks an order compelling Defendant/Plaintiff/Cross-defendant Ghilotti Bros., Inc. 4 (hereafter “GBI”) to provide further responses to Defendant’s Request for Production, Set Three. 5 GBI produced some documents in response to 3 requests, but GBI did not produce any 6 documents to the remaining 26 requests and provided evasive and/or boilerplate objections to all 7 of the requests. 8 This motion to compel and request for sanctions is based upon this notice of motion, the 9 motion itself, the memorandum of points and authorities, the declaration of Johnny Knadler, the 10 Separate Statement and documentary evidence as may be presented by Defendant upon the 11 hearing of the demurrer. 12 RELEVANT FACTUAL BACKGROUND 13 Synergy is suing various parties arising from a contract dispute on sewer contracts for 14 Haight Street and Van Ness Avenue in San Francisco. Synergy was awarded the contract for the 15 Haight Street Project. Due to issues on the Haight Street Project, Synergy was improperly 16 removed as a subcontractor. Further, in retaliation, Synergy was removed as a subcontractor on 17 the Van Ness Avenue project before it was started. In addition to removal, Synergy was not paid 18 for work it had completed on the Haight Street project. 19 In 2017, Synergy filed suit against the City and County of San Francisco and various City 20 officials (hereafter “City Defendants”). The City Defendants removed the matter to federal 21 court. Subsequently, Synergy added Ghilotti Bros., Inc. (hereafter “GBI”) for failure to pay 22 Synergy for completed work. The federal court dismissed the City Defendants and remanded the 23 remaining claims against GBI to state court. Synergy appealed the dismissal, and the appeal is 24 still pending. Meanwhile, GBI filed suit against Synergy in state court and Synergy counter- 25 claimed. After remand, GBI moved to consolidate the cases. Following consolidation, the court 26 set a trial date of March 29, 2021. The trial date was continued to August 23, 2021. 27 Synergy served the Request for Production of Documents, Set Three, on GBI on January 28 25, 2021. See Knadler Decl. Ex. F. On February 24, 2021, GBI served responses via email and 3 Case No. CGC-17-560034 1 mail. Id. at Ex. G. At that time, GBI did not serve any documents. Id. at ¶ 4. Further, many of 2 the objections to the Inspection Demand requests were similar or identical. Id. at Ex. G. None 3 of the objections appears to be particularized to the specific demand, and they appear baseless. 4 For example, in response to Request No. 60 which seeks communications between GBI and the 5 Department of Public Works “concerning the Haight Street Project”, GBI objects “that the 6 Request is not limited to Synergy’s involvement in the Haight Street Project . . ..” See Knadler 7 Decl. Ex. G. 8 Synergy sent meet and confer letters on February 26, 2021, March 9, 2021, and March 9 31, 2021. See Knadler Decl. Ex. A. In response, GBI responded that it stood by its objections. 10 In its responses on March 5, 2021 and April 2, 2021, GBI stated that its objections were valid. 11 See Knadler Decl. Ex. A. On March, 11, 2021, GBI did produce documents in response to 12 Requests 45, 66, and 69. However, these productions appear inadequate and/or incomplete as 13 they provide only limited information. To date, GBI has not produced documents for Requests 14 44, 46-65, 67-68, 70-72. 15 To date, GBI has not provided any substantive responses to the Requests for Production, 16 Set Three. Further, given that GBI only responded with objections to most of the requests, GBI 17 has not indicated that they have conducted a diligent search and that there are no other 18 responsive documents. Finally, despite asserting various privileges, GBI has not produced a 19 privilege log. 20 LEGAL ARGUMENT 21 Code of Civil Procedure Section 2017.010 provides that: Unless otherwise limited by order of the court in accordance with 22 this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the 23 pending action or t the determination of any motion made in that action, if the matter either is itself admissible in evidence or 24 appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense 25 of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons 26 having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of 27 any document, tangible thing, or land or other property. 28 4 Case No. CGC-17-560034 1 The responding party must make a reasonable effort to obtain whatever information is sought; 2 and if unable to do so, must specify why the information is unavailable and what efforts he or 3 she made to obtain it. Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 782. Further, “A party 4 cannot plead ignorance to information which can be obtained from sources under his control.” 5 Deyo, 84 Cal.App.3d at 782, Regency Health Services, Inc. v. Sup. Ct. (Settles) (1998) 64 6 Cal.App.4th 1496, 1504. 7 A responding party is required to state separate objections to document demands, 8 including identification “with particularity” of each document “to which an objection is being 9 made”, and further, a clear statement of the “specific grounds” for the objection including but not 10 limited to any privilege. CCP § 2031.210(a)(3) and § 2031.240(b). “Overbroad” is not a valid 11 objection unless it creates an undue burden or irrelevance to the subject matter is demonstrated. 12 Perkins v. Sup. Ct. (1981) 118 Cal.App.3rd 761, 764-65; Durst v. Sup. Ct. (1963) 218 Cal.App.2nd 13 460. An objection of “vague, ambiguous and unintelligible” to a request for any and all bills, 14 statements and invoices” may be treated as a “nuisance” objection exposing the responding party 15 to sanctions. Standon Co., Inc. 225 Cal..App.3d at 903; Manzetti V. Sup. Ct. (Fitzgerald) (1993) 16 21 Cal.App.4th 373, 377. 17 The court must impose a monetary sanction under Section 2031.290 of the Code of Civil 18 Procedure against any party, person, or attorney who unsuccessfully opposes a motion to compel 19 a response to an Inspection Demand, unless it finds that the one subject to the sanction acted with 20 substantial justification or that other circumstances make the imposition of the sanction unjust 21 (Code Civ. Proc. §§ 2030.290(c)). The court may award sanctions under the Discovery Act in 22 favor of a party who files a motion to compel discovery, even though no opposition to the motion 23 was filed, or opposition to the motion was withdrawn, or the requested discovery was provided 24 to the moving party after the motion was filed (Cal. Rules of Ct., Rule 3.1030(a)). 25 In an attempt to resolve this informally, Synergy engaged in lengthy meet and confer 26 efforts. See Knadler Decl. Ex. A. Synergy sent letters seeking to resolve this issue on February 27 26, 2021, March 9, 2021, and March 31, 2021. In addition to generally discussing the validity of 28 the requests and the invalidity of the boilerplate objections, Synergy discussed in detail why it 5 Case No. CGC-17-560034 1 needed the discovery for Requests 44, 45, 46, 47, 48, 49, 50, 51, 52, 54, 55, 69, 60, 61, 62, 63, 2 64, 67, 69, 70, 71, and 72. In each case, GBI responded that its objections were valid. 3 I. Synergy has Good Cause for production. 4 As discussed in detail in the Separate Statement and the Declaration of Johnny D. 5 Knadler, Synergy has established good cause for the Documents requested. See Knadler Decl. ¶ 6 7; Separate Statement. 7 In particular, each Request seeks documents relevant to the subject matter of the 8 litigation. This case arises from the removal of Synergy from its subcontract with GBI. Synergy 9 claims that it was improperly removed from the Haight Street Project and that GBI breached the 10 subcontract between the parties. Further Synergy claims that GBI breached its covenant of good 11 faith and fair dealing and GBI engaged in the unlawful removal and substitution of a listed 12 subcontractor. GBI asserts in its claims and defenses against Synergy that Synergy was properly 13 removed and that it suffered damages as a result of the removal and the need to redo work that 14 Synergy performed. In particular, GBI asserts that it suffered increased costs associated with the 15 new subcontractors and that Synergy had numerous safety violations. 16 The requests seek information to support Synergy’s claims that it was improperly 17 removed and that GBI did not act in good faith in the removal. Further, the requests seek 18 information related to GBI’s claims against Synergy that it suffered damages and increased costs 19 associated with the removal of Synergy and the association of new subcontractors. Of most 20 significance, Synergy’s requests seek financial information to demonstrate that GBI did not 21 suffer any such increased costs or damages. Synergy refers to the Separate Statement for further 22 discussion of good cause for each request. 23 Meet and confer efforts did not resolve the issues. In response to each letter, GBI merely 24 responded that its boilerplate objections were valid. In an effort to delay this motion, GBI stated 25 that it was willing to meet and confer further. However, after 3 letters and no documents 26 produced in response to these letters, Synergy did not see any movement, and this motion was 27 warranted. 28 6 Case No. CGC-17-560034 1 If “good cause” is shown by the moving party, the burden is then on the responding party 2 to justify any objections made to document disclosure. Kirkland v. Sup.Ct. (Guess?, Inc.) (2002) 3 95 Cal.App.4th 92, 98. 4 II. The Objections to Document Requests were boiler plate and without merit. 5 A party may move to compel responses or additional responses if the responses to the 6 requests are (1) a statement of compliance with the demand is incomplete, (2) a representation of 7 inability to comply is inadequate, incomplete, or evasive, or (3) an objection is made that is 8 either too general or without merit. See Code of Civil Procedure § 2030.300(a). The objecting 9 party has the burden of justifying an objection to the discovery. Coy v. Superior Court (1962) 58 10 Cal.2d 210, 220. To be effective, the objection must set forth the specific ground for objection, 11 including claims of privilege or work product protection. CCP § 2031.240(b); Standon Co., Inc. 12 v. Sup.Ct. (Kim) (1990) 225 Cal.App.3d 898, 901. An objection of “vague, ambiguous and 13 unintelligible” to a request for any and all bills, statements and invoices” may be treated as a 14 “nuisance” objection exposing the responding party to sanctions. Standon Co., Inc. 225 15 Cal.App.3d at 903; Manzetti v. Sup. Ct. (Fitzgerald) (1993) 21 Cal.App.4th 373, 377. 16 “Overbroad” is not a valid objection unless it creates an undue burden or irrelevance to the 17 subject matter is demonstrated. Perkins v. Sup. Ct. (1981) 118 Cal.App.3rd 761, 764-65; Durst v. 18 Sup. Ct. (1963) 218 Cal.App.2nd 460. The Defendant has a duty to provide “complete” answers. 19 The Court is referred to the accompanying Separate Statement for the legal and factual 20 reasons for compelling further responses. In this case, Synergy is seeking the production of 21 documents because GBI has provided insufficient and evasive or incomplete objections and no 22 documents or insufficient documents. GBI only produced documents for three (3) requests, and 23 it failed to provide documents for Requests 44, 46-65, 67-68, 70-72. For the documents GBI has 24 produced, they were not accompanied by any declaration that these are a complete or partial 25 production of documents. GBI must provide a supplemental response indicating that it has 26 27 28 7 Case No. CGC-17-560034 1 produced all relevant documents in response to the three requests that it did provide some 2 documents.1 3 Each of GBI’s objections is evasive, too general and without merit. A review of the 4 objections for Requests 44-46 shows almost identical objections based on relevancy and various 5 privileges. For requests 47-72, the objections are virtually identical and rely on the boilerplate 6 claim that the request is “overbroad, unduly burdensome, and that it calls for the disclosure of 7 information not relevant to the subject matter of this action or likely to lead to the discovery of 8 admissible evidence . . .”. At no point does GBI describe how the request is unduly burdensome. 9 See W. Pico Furniture Co. Of Los Angeles v. Sup. Ct. in & For Los Angeles Cty. (1961) 56 10 Cal.2d 407, 417 (“[O]bjection based upon burden must be sustained by evidence showing the 11 quantum of work required.”). GBI also claims privilege, but no privilege log was produced. A 12 review of the objections reveals that substantially all of GBI’s objections are boilerplate and 13 nuisance objections. They are not tailored to each response and provide no foundation 14 supporting the objection. In many cases, GBI merely repeats the same objections to avoid 15 responding. There is absolutely no attempt to make any kind of meaningful response to the 16 document requests. These objections clearly fall under the “nuisance” objections and should be 17 overruled with sanctions ordered for the reasons to follow. Standon Co., Inc. 225 Cal.App.3d at 18 903; Manzetti v. Sup. Ct. (Fitzgerald) (1993) 21 Cal.App.4th 373, 377; Korea Data Systems Co. 19 v. Sup. Ct. (1997) 51 Cal.App.4th 1513, 1516 (noting that courts “recognize the use of ‘boiler 20 plate’ objections as were provided in this case may be sanctionable[.]”). 21 As demonstrated in the Separate Statement, Synergy is entitled to discovery of the 22 documents. Given GBI’s failure to provide documents, the Court should overrule GBI’s 23 objections and require that GBI produce documents for Requests 44, 45, 46, 47, 48, 49, 50, 51, 24 52, 54, 55, 59, 60, 61, 62, 63, 64, 67, 69, 70, 71 and 72. 25 // 26 1 Interestingly, GBI supplemented responses to previously served document requests 27 from 2019 and 2020 which suggests that GBI failed to conduct a complete and thorough search for documents that it has had in its possession for years. For example, Document GBI 1358 is 28 from 2015. This is one reason that Synergy seeks a supplemental response that a thorough search has been conducted and that all responsive documents have been produced. 8 Case No. CGC-17-560034 1 III. Even when GBI produced documents, the production was incomplete. 2 GBI produced a handful of documents in Response to Request 45. Although the Request 3 seeks documents for 2015-19, only documents a few documents for 2016 and 2017 were 4 produced. GBI stated that it would produce Documents in response to Requests 66, 68, and 69. 5 Documents were produced for Requests 66 and 69, but no documents were produced for Request 6 68. Of the Documents produced for 66, GBI indicated that the documents were identical to the 7 production for response 45. In other words, GBI believes that its responsive documents for 8 Request 45 which seeks “project costs” for the Haight Street Project from 2015-2019 are 9 identical to “documents concerning any subcontractor hired to replace Synergy” on the Haight 10 Street Project. None of the produced documents reflect any signed subcontract between GBI and 11 a subcontractor. None of the documents reflect the total costs of the Haight Street Project. None 12 of the documents reflect any payments to the subcontractor, change orders, violations, or any of 13 the many other documents related to a subcontract. In other words, GBI has produced only a 14 fraction of the responsive documents that would show what work was done, what work was 15 redone, any safety issues, or the actual subcontract between GBI and the subcontractor. All of 16 these documents bear on Synergy’s claims and defenses because GBI claims that Synergy’s 17 work had to be redone, that Synergy had safety violations, and that GBI suffered damages due to 18 Synergy’s actions. The documents would demonstrate that Synergy’s work did not have to be 19 redone, that GBI did not suffer any damages, and that the subcontractors had safety violations 20 but were not removed. 21 In each case, GBI agreed to produce documents, but it either failed to do so (Request 68) 22 or did not provide a complete production (Requests 45, 66, and 69). If the responding party 23 agrees to comply with CCP § 2031.010 demand but then fails to so, compliance may be 24 compelled on a motion. See CCP § 2031.320. All that is required for such a motion is that the 25 responding party failed to comply as agreed. See CCP § 2031.320(a); Standon Co. Inc. v Sup. 26 Ct. (Kim) (1990) 225 Cal.App.3d 898, 903. 27 28 9 Case No. CGC-17-560034 1 The Court should overrule the objections to Requests 45, 66, 68 and 69, and require that 2 GBI certify that it has produced all documents related to these requests as GBI has stated that it 3 will produce documents. 4 IV. The Court should award monetary sanctions against GBI. 5 The responding party must make a reasonable effort to obtain whatever information is 6 sought; and if unable to do so, must specify why the information is unavailable and what efforts 7 he or she made to obtain it. Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 782. Further, “A 8 party cannot plead ignorance to information which can be obtained from sources under his 9 control.” Deyo, 84 Cal.App.3d at 782, Regency Health Services, Inc. v. Sup. Ct. (Settles) (1998) 10 64 Cal.App.4th 1496, 1504. Further, false or evasive answers are improper. 11 The Court must impose a monetary sanction under Section 2031.320(b) of the Code of Civil 12 Procedure against any party, person, or attorney who unsuccessfully opposes a motion to compel, 13 unless it finds that the one subject to the sanction acted with substantial justification or that other 14 circumstances make the imposition of the sanction unjust (Code Civ. Proc. §§ 2031.320(b)). 15 Code of Civil Procedure 2023.010 identifies several types of misuses of the discovery process, 16 including failure to respond to discovery, making without substantial justification unmeritorious 17 objections, making evasive responses, and disobeying court orders. See CCP § 2023.010(d)- 18 (g); CCP § 2023.030(a). Boiler plate responses are sanctionable. Korea Data Systems Co. v. 19 Sup. Ct. (1997) 51 Cal.App.4th 1513, 1516 (noting that courts “recognize the use of ‘boiler plate’ 20 objections as were provided in this case may be sanctionable[.]”). 21 In this case, monetary sanctions are clearly warranted under sections 2023.010(d) through 22 (g). First, GBI cannot establish “substantial justification” for making meritless objections and 23 avoiding a substantive response by failing to produce documents. Second, GBI made almost 24 identical, impermissible boiler plate, general objections to Synergy’s Document Requests. These 25 actions constitute an abuse of the discovery process. GBI had opportunities to supplement its 26 responses during the meet and confer process, but it failed to do so. Thus, GBI improperly 27 increased the costs of litigation through abuse of the discovery process. 28 // 10 Case No. CGC-17-560034 1 CONCLUSION 2 Synergy propounded Document Requests, Set Three, and GBI has not provided 3 documents and/or a complete production. Accordingly, Defendant is entitled to an order 4 overruling GBI’s objections and compelling GBI to provide further responses to the Document 5 Requests and to monetary sanctions of $2450.00 for bringing this motion . 6 LAW OFFICE OF JOHNNY D. 7 KNADLER 8 9 Dated: April 9, 2021 By: /s/ Johnny D. Knadler 10 JOHNNY D. KNADLER Attorneys for Plaintiff/Defendant/Cross- 11 complainant SYNERGY PROJECT MANAGEMENT, 12 INC. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 Case No. CGC-17-560034