Judge: Alison Mackenzie, Case: 20STCV32454, Date: 2023-05-22 Tentative Ruling
Case Number: 20STCV32454 Hearing Date: May 22, 2023 Dept: 207
Background
Plaintiff M.O., a minor by and through his guardian ad litem
J.O. (“Plaintiff”) brings this action alleging he was injured by another
student at school. Plaintiff brings this action against Defendants Zerlyn
Fonceca Del Rosario (“Defendant” or “Ms. Del Rosario”) and Eleuterio Bernardo
Del Rosario (“Mr. Del Rosario” and, collectively with Ms. Del Rosario,
“Defendants”), who Plaintiff alleges are the parents of the child who injured
Plaintiff at school. Plaintiff has filed separate motions seeking to compel the
depositions of Defendants, and has also filed motions seeking to compel Ms. Del
Rosario to provide further responses to written discovery propounded on her by
Plaintiff consisting of Form Interrogatories, Special Interrogatories, and
Requests for Admission. In total, Plaintiff has filed five discovery motions
against Defendants, each of which is unopposed. In the interest of efficiency,
the Court will address all those motions together.
Legal Standard
Code
Civ. Proc. § 2025.450(a) provides:
If,
after service of a deposition notice, a party to the action or an officer,
director, managing agent, or employee of a party, or a person designated by an
organization that is a party under Section 2025.230, without having served a
valid objection under Section 2025.410, fails to appear for examination, or to
proceed with it, or to produce for inspection any document, electronically
stored information, or tangible thing described in the deposition notice, the
party giving the notice may move for an order compelling the deponent’s attendance
and testimony, and the production for inspection of any document,
electronically stored information, or tangible thing described in the
deposition notice.
(C.C.P. § 2025.450(a).)
The
motion must “be accompanied by a meet and confer declaration under Section
2016.040, or, when the deponent fails to attend the deposition…by a declaration
stating that the petitioner has contacted the deponent to inquire about the
nonappearance.” (C.C.P. § 2025.450(b)(2).) A court shall impose monetary
sanctions if the motion to compel is granted unless the one subject to
sanctions acted with substantial justification or other circumstances would
make the imposition of the sanction unjust. (C.C.P. § 2025.450(g)(1).)
Under
Code Civ. Proc. § 2030.300, subdivision (a), a court may order a party to serve
a further response to an interrogatory. On receipt of a response to interrogatories, the propounding
party may move for an order compelling a further response if the propounding
party deems that an objection to an interrogatory is without merit or too
general. (C.C.P. § 2030.300(a)(3).) The responding party has the burden of
justifying the objections to the interrogatories. (Coy v. Sup.Ct. (1962)
58 Cal.2d 210, 220-221.) The moving party on a motion to compel further
responses to requests for production of documents must submit “specific facts
showing good cause justifying the discovery sought by the inspection demand.”
(C.C.P. § 2031.310(b)(1).) If the moving party has shown good cause for the
requests, the burden is on the objecting party to justify the objections. (Kirkland
v. Sup. Ct (2002) 95 Cal. App.4th 92, 98.) A motion to compel further
responses may be brought based on responses to requests for admission that: (1)
provide evasive or incomplete answers; or (2) make unmeritorious or overly
generalized objections. (C.C.P. § 2033.290(a).) However, a motion to compel
further responses cannot compel the admission of matters already denied. (Holguin
v. Superior Court (1972) 22 Cal.App.3d 812, 821.)
Analysis
1. Motions
to Compel Depositions
Plaintiff has filed separate
motions seeking to compel the depositions of Defendants. On May 3, 2022,
Plaintiff served notices of both depositions on Defendants’ counsel, setting
the depositions for May 17, 2022, and May 19, 2022. Defendants’ counsel refused
to produce his clients for deposition on those dates and would not provide any
new dates for those depositions. On March 13, 2023, Defendants both filed
substitution of attorney forms indicating they are now representing themselves
in this action. Defendants have not opposed these motions or otherwise disputed
Plaintiff’s representations. As it is uncontested that Plaintiff is entitled to
take Defendants’ depositions, his motions to compel are both GRANTED and the
Court orders Defendants to sit for deposition within 30 days of the date of
this order.
Each motion also requests monetary
sanctions of $2,310 representing 4.5 hours of attorney time in connection with
each motion at $500 per hour, plus $60 in filing fee. Such monetary sanctions
are authorized by Code Civ. Proc. § 2025.450(g)(1), however the Court notes
this 4.5 hours in attorney time includes an estimate of 3 hours to draft a
reply to Defendants’ opposition, and 1 hour to attend the hearing on the
motion. As no opposition or reply has been filed, the Court rejects any
sanction in connection with drafting a reply. As the motions will be heard
together on the same date the Court finds an award of 1 hour of waiting time
for the hearing on each motion to be duplicative and will instead divide that 1
hour of waiting time between Defendants. In its discretion, the Court will therefore
award Plaintiff monetary sanctions of $560 for each motion.
2. Special Interrogatories
Plaintiff moves to compel Ms. Del
Rosario to provide a further response to Special Interrogatory No. 1, which
called for her to identify her child who is alleged to have injured Plaintiff.
Ms. Del Rosario responded “The definition of ‘PLAINTIFF’ set forth in the
interrogatory is vague and ambiguous. The responding party does not know who
‘M.O.’ or J.O. are and, therefore is unable to respond adequately to this
interrogatory as asked.” The Court agrees this response is incomplete. If Ms.
Del Rosario had multiple children enrolled at St. Augustine School at the time
of the subject incident, then a purported lack of knowledge of Plaintiff’s
identity may render her unable to determine which child this interrogatory is
directed at, but if this is the case she should state so directly. The same is
true if she does not have any children enrolled at St. Augustine. If, however,
she had only one child enrolled at St. Augustine during the relevant time
period, the claimed lack of knowledge of Plaintiff’s identity would not prevent
her from identifying that child. For these reasons, Plaintiff’s motion is
GRANTED.
Plaintiff requests the Court impose monetary sanctions in the
amount of $560 in connection with this motion. (Medvei Decl. at ¶7 [“If there
is no opposition, the fee would be $500. In addition, I incurred a filing fee
of $60”].) The Court finds this request is reasonable and grants Plaintiff’s
request for monetary sanctions in the amount of $560 against Ms. Del Rosario.
3. Form
Interrogatories
Plaintiff moves to compel Ms. Del
Rosario to provide further responses to Form Interrogatories Nos. 12.1, 15.1,
and 17.1.
Form Interrogatory No. 12.1 called
for Ms. Del Rosario to identify the name, address, and telephone number of
witnesses to the incident, as well as anyone who made or heard statements by an
individual at the scene of the incident or who otherwise has knowledge of the
incident. Defendant’s response does not identify any individuals and states
instead that she “does not have personal knowledge of the incident, witnesses
to the incident, or the events occurring immediately before or after the
incident.” Plaintiff’s Complaint in this action alleges Defendants are the
parents of the unidentified minor child who put the pen on Plaintiff’s chair,
causing his injuries. Plaintiff claims Defendant should thus be forced to
identify the name of her child in response to this interrogatory. However, on
February 9, 2022, Defendants filed a joint Answer which includes a denial of
“each and every allegation contained in the Complaint.” (Answer at 2.) In other
words, Defendants have denied that they are the parents of the individual
responsible for Plaintiff’s injuries. To require Ms. Del Rosario to identify
her child in response to Form Interrogatory No. 12.1 would in essence be an
admission that the child was involved in the incident, a factual assertion
which she contests. Plaintiff has not made a sufficient showing that Defendant
should be forced to concede this issue, and the Court DENIES Plaintiff’s motion
as to Form Interrogatory No. 12.1.
Form Interrogatory No. 15.1 called
for Ms. Del Rosario to state all facts upon which she bases her affirmative
defenses, identify the individuals with knowledge of those facts, and identify
the documents which support those defenses. She did not provide any substantive
response and instead claimed “This interrogatory is premature. Discovery is
ongoing.” The Court agrees this response is deficient. In responding to
interrogatories, Defendant must provide any responsive information known to
her, and she remains free to supplement her responses with additional information
that is later discovered. If she lacks such knowledge, she must state so
directly. As stated, the response is improper and evasive and the Court GRANTS
Plaintiff’s motion as to Form Interrogatory No. 15.1.
Form Interrogatory No. 17.1 seeks
the same information as Form Interrogatory No. 15.1, but this time in the
context of requests for admission which were not admitted by Defendant.
Plaintiff’s motion identifies three relevant Requests for Admission which
called for Defendant to admit (1) that Plaintiff is entitled to damages against
her, (2) that Plaintiff is entitled to damages of at least $19,000, and (3)
that she has insurance available to cover Plaintiff’s injuries. For each of
these requests, Defendant’s response to Form Interrogatory No. 17.1 states
“Responding party does not know who the request for admission is referring to
and is unaware of the names M.O. and J.O.” Plaintiff argues that Defendant must
know the identity of Plaintiff because she has previously offered to settle
this case. The Court disagrees. Plaintiff has not put before the Court any
evidence suggesting Defendant’s response is false or evasive with respect to
the Requests for Admission concerning Plaintiff’s damages. Defendant’s
responses concerning those requests appear to be based on an asserted lack of
knowledge of the underlying incident and lack of knowledge of Plaintiff’s
identity. It is true that Ms. Del Rosario does not identify any witnesses or
documents in response to form interrogatory 17.1, but it is not clear how she
could identify any such witness or documents to prove her lack of knowledge.
Defendant cannot be compelled to prove a negative.
However, Ms. Del Rosario’s
response does appear to be evasive with respect to Request for Admission No. 3
concerning whether she has insurance to cover Plaintiff’s injuries. Defendant
does not need to know Plaintiff’s identity to ascertain whether she has
insurance coverage for injuries caused by her children at school. The Court
thus GRANTS Plaintiff’s motion with respect to Form Interrogatory 17.1, but
only as to Request for Admission No. 3.
As the Court has granted
Plaintiff’s motion in part and denied it in part, the Court declines to find
Ms. Del Rosario acted without substantial justification in her responses to
Plaintiff’s Form Interrogatories and Plaintiff’s request for monetary sanctions
in connection with this motion is denied.
4. Requests for Admission
Plaintiff moves to compel further
responses to requests for admission 1, 2, and 3, propounded on Ms. Del Rosario
which are the same Requests for Admission discussed above in connection with
Form Interrogatory No. 17.1. She responded to each of these requests with the
statement “Objection. Vague and ambiguous. Cannot admit or deny as the
request is phrased.” From Defendant’s response to Form Interrogatory No. 17.1,
it appears Defendant’s response is based on the assertion that she does not
know Plaintiff’s identity. For the same reasons as discussed above in
connection with Form Interrogatory No. 17.1, the Court finds her responses to
Requests for Admission Nos. 1 and 2 concerning Plaintiff’s damages are not
evasive or incomplete, but GRANTS Plaintiff’s motion with respect to Request
for Admission No. 3 concerning insurance coverage.
As the Court has granted
Plaintiff’s motion in part and denied it in part, the Court declines to find
Ms. Del Rosario acted without substantial justification in her responses to Plaintiff’s
Requests for Admission and Plaintiff’s request for monetary sanctions in
connection with this motion is denied.
Conclusion
Plaintiff’s motion to compel the deposition of Defendant
Eleuterio Bernardo Del Rosario is GRANTED and Defendant
is ordered to sit for deposition within 30 days of the date of this order.
Plaintiff’s request for monetary sanctions against Mr. Del Rosario is granted
in the amount of $560, to be paid to counsel for Plaintiff within 20 days of
the date of this order.
Plaintiff’s motion to compel the deposition of Defendant
Zerlyn Fonceca Del Rosario is GRANTED and Defendant
is ordered to sit for deposition within 30 days of the date of this order.
Plaintiff’s request for monetary sanctions against Ms. Del Rosario is granted in
the amount of $560, to be paid to counsel for Plaintiff within 20 days of the
date of this order.
Plaintiff’s motion to compel Ms. Del Rosario to provide a
further response to Special Interrogatory No. 1 is GRANTED. Plaintiff’s request for monetary sanctions against Ms. Del
Rosario is granted in the amount of $560, to be paid to counsel for Plaintiff
within 20 days of the date of this order.
Plaintiff’s motion to compel Ms. Del Rosario to provide
further responses to Form Interrogatories is GRANTED in part and DENIED in part
as set forth above. Plaintiff’s request for monetary
sanctions against Ms. Del Rosario is DENIED.
Plaintiff’s motion to compel Ms. Del Rosario to provide
further responses to Requests for Admission is GRANTED in part and DENIED in part
as set forth above. Plaintiff’s request for monetary
sanctions against Ms. Del Rosario is DENIED.