Judge Alison Mackenzie, Case 22SMCV01527 2023-05-24 Tentative Ruling

Judge: Alison Mackenzie, Case: 22SMCV01527, Date: 2023-05-24 Tentative Ruling

Case Number: 22SMCV01527 Hearing Date: May 24, 2023 Dept: 207

Background

Plaintiff John Doe (“Plaintiff”) brings this action against Defendants Daniel Moghadam, M.D. (“Moghadam”) and Modern Aesthetica, Corp. (collectively with Moghadam, “Defendants”) stemming from two surgical procedures performed by Moghadam which Plaintiff alleges left him with injuries and lingering complications. Plaintiff has filed two motions to compel Defendant to provide further responses to written discovery, one concerning Requests for Admission and the second concerning Form Interrogatories. Defendant opposes both motions, which were previously the subject of an Informal Discovery Conference with the Court. In the interest of efficiency, the Court will address the two motions together.

Legal Standard

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. Requests for Admission

Plaintiff moves to compel further responses to Requests for Admission Nos. 2, and 6-12.

Request No. 2 called for Defendant to admit he performed a penile enlargement procedure on Plaintiff around April 16, 2022. Defendant objected on the basis that the term “penile enlargement” is vague and ambiguous because the Complaint alternatively refers to the procedure as an “augmentation/enlargement,” an “augmentation,” an “enhancement,” and a “penile enlargement.” The fact that a procedure may be described in different way does not render the use of the term “penile enlargement” vague or ambiguous. Defendant does not claim the phrase “penile enlargement” is inherently ambiguous, nor does he allege any substantive difference between the various euphemisms used to describe the same procedure in the Complaint. A request for admission asking a defendant to admit he struck plaintiff with his car would not be rendered vague or ambiguous because the complaint referred to the defendant’s vehicle as an “automobile.” Plaintiff’s motion to compel is GRANTED as to Request for Admission No. 2.

Requests for Admission Nos. 6-12 call for Defendant to admit the genuineness of text messages alleged to be exchanged between Plaintiff and Defendant. Defendant is correct that Plaintiff’s separate statement fails to comply with the requirements of the California Rules of Court in that it does not set forth the text of each request and response but rather summarizes the requests in its own language. However, Plaintiff attaches full copies of the Requests for Admission and Defendant’s responses to its motion such that the Court can fully consider those requests as though they had been properly set forth in the separate statement.

Each of the subject requests called for Defendant to admit or deny the genuineness of approximately ten pages of text messages which are Bates stamped and attached to the Requests for Admission. Defendant objected to these requests, arguing they were impermissibly compound and failed to sufficiently identify the documents which Plaintiff seeks to authenticate. Defendant argues simply identifying the documents by Bates number is insufficient to satisfy the requirement under Code Civ. Proc. § 2033.010 that requests for admission of the genuineness of documents refer to “specified documents.” Defendant offers no authority suggesting that identifying documents by Bates number and attaching those same Bates numbered documents to the Request for Admission is somehow insufficient to “specify” the relevant documents under section 2033.010. Assertions unsupported by legal authority are presumed to lack merit. (Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, In Re Marriage of Nichols (1994) 27 Cal.App.4th 661, 673; Utz v. Aureguy (1952) 109 Cal.App.2d 803, 807.) Indeed, it is difficult to imagine what more could have been done to specifically identify the documents which Plaintiff is seeking to authenticate through his requests.

Defendant also contends the requests are impermissibly compound under Code Civ. Proc. § 2033.060(f) because they each seek Defendant to admit to the genuineness of approximately ten pages of text messages. Section 2033.060(f) provides “No request for admission shall contain subparts, or a compound, conjunctive, or disjunctive request unless it has been approved under Chapter 17 (commencing with Section 2033.710).” Defendant argues that these requests are compound in that they ask Defendant to admit the genuineness of multiple pages of text message. As these text messages are relevant to Plaintiff’s fraud claim against Defendant as they concern the representations made by Defendant prior to the subject surgical procedure, there appears to be good cause for these requests. It is thus Defendant’s burden to justify his objections. The Court finds Defendant has failed to do so here. These requests seek only an admission that the text messages attached to each are genuine. If, for example, the requests called for Defendant to admit the genuineness of the text messages and also admit they were sent for the purpose of inducing Plaintiff to agree to the surgical procedure, they would be impermissibly compound. Defendant has not shown a request is rendered impermissibly compound because it encompasses multiple text messages. In the same way, a request to admit the genuineness of a document is not rendered compound because there are multiple words or pages contained within a single document. In the absence of any supporting authority, the Court finds this objection is without merit.

Defendant also objected on the basis that he did not prepare or send many of the messages attached to Plaintiff’s requests. To the extent Defendant appears to be arguing he lacks sufficiently knowledge to authenticate whether Plaintiff is the one who sent him the messages in question, this would not foreclose him from admitting the genuineness of the text messages he sent, nor would it preclude him from admitting they messages attached were ones he received, regardless of whether he knows they were sent by Plaintiff or some other person. To the extent he sent any of the text messages attached, he has sufficient knowledge to admit their genuineness. If he is contending the messages received by Plaintiff were in fact not sent by Defendant, he can conduct a reasonable inquiry as to their genuineness with the individual who did send them, and based on that inquiry either admit, deny, or explain why he lacks sufficient knowledge to admit or deny even after having conducted a reasonable inquiry into the genuineness of those messages.

As set forth in Code Civ. Proc. § 2033.220(b), in responding to Plaintiff’s requests, Defendant was obligated to “(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. [¶] [or] (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.” Under section 2033.220(c), “If a responding party gives lack of information or knowledge as a reason for a failure to admit all or part of a request for admission, that party shall state in the answer that a reasonable inquiry concerning the matter in the particular request has been made, and that the information known or readily obtainable is insufficient to enable that party to admit the matter.” Defendant cannot avoid these obligations by objecting on the basis that he lacks sufficient information to admit or deny the genuineness of some of the text messages identified in Plaintiff’s requests. The Court GRANTS Plaintiff’s motion to compel as to Requests for Admission Nos. 6-12.

Plaintiff asks the Court to impose monetary sanctions against Defendant in the amount of $800. An award of monetary sanctions is mandatory under Code Civ. Proc. § 2033.290(d) where a party opposes a motion to compel further responses to requests for admission unless the Court finds the opposing party acted with substantial justification. The Court finds Defendant’s objections and opposition were made without substantial justification, and in its discretion finds $500 is reasonable to reimburse Plaintiff the fees incurred in bringing this motion. The Court thus GRANTS Plaintiff’s request for monetary sanctions in the amount of $500 in connection with this motion.

2. Form Interrogatories

Plaintiff moves to compel Defendant to provide further responses to Form Interrogatory No. 15.1, as well as Form Interrogatory No. 17.1 to the extent that interrogatory concerns Requests for Admissions Nos. 2 and 6-12 discussed above. As with Plaintiff’s motion concerning those Requests for Admission, Plaintiff’s separate statement submitted with this motion fails to comply with the California Rules of Court as it does not set forth the verbatim interrogatories at issue but rather provides Plaintiff’s own summary of what those interrogatories seek. As Plaintiff has otherwise attached the full set of Form Interrogatories and Defendant’s responses to his motion, the Court will consider the merits of Plaintiff’s motion. However, the point of the separate statement requirement is to ease the burden on the Court in having to sort through dozens of pages of discovery requests and responses to find the portions which are put at issue by a motion to compel. Counsel are cautioned to comply with the separate statement requirement in future filings or risk having their motion denied.

Turning to the merits of Plaintiff’s motion, Defendant argues no further response to Form Interrogatory 17.1 is warranted because his objections to Requests for Admission Nos. 2 and 6-12 are all proper and justified. The Court has expressly found to the contrary as set forth above. Accordingly, the Court GRANTS Plaintiff’s motion to compel with regard to Form Interrogatory No. 17.1.

Form Interrogatory No. 15.1 called for Defendant to (a) state all facts upon which he bases his affirmative defenses, (b) identify the individuals with knowledge of those facts, and (c) identify the documents which support those defenses. Contrary to Plaintiff’s representations, Defendant’s response to Form Interrogatory No. 15.1 did not merely state “The denials and affirmative defenses are based on the grounds that Responding Party denies liability.” Defendant actually stated “As to the denial of material allegations, Responding Party denied generally and specifically all allegations contained in the Complaint under the provisions of California Code of Civil Procedure, §431.30, and it is his right to do so. As to the affirmative defenses, they were alleged to protect the interest of this Responding Party and to prevent them from being waived, and are based on the decisional and statutory law of the State of California cited therein. The denials and the affirmative defenses are based on the grounds that Responding Party denies liability.” (Emphasis in original.) As for witnesses, Defendant identified “Any and all individuals identified in Plaintiff’s medical records. Defendant also identified Plaintiff’s medical records as documents supporting his denial and affirmative defenses.

The Court agrees this response is deficient as to Form Interrogatory No. 15.1(a). Defendant merely states that he denied Plaintiff’s allegations without identifying any specific facts upon which that denial is based. It is not sufficient to merely state that he “denies liability” for Plaintiff’s alleged injury, he must provide the facts which support that denial of liability. If he has no such facts, he must state so. The same is true with respect to Defendant’s affirmative defenses. Defendant’s reply appears to suggest they were asserted without a factual basis, but if that is the case he must state so directly. If there are facts which support his affirmative defenses, he must provide them. Plaintiff’s motion to compel a further response to Form Interrogatory No. 15.1 is GRANTED.

Plaintiff asks the Court to impose monetary sanctions against Defendant in the amount of $800. An award of monetary sanctions is mandatory under Code Civ. Proc. § 2030.300(d) where a party opposes a motion to compel further responses to interrogatories unless the Court finds the opposing party acted with substantial justification. The Court finds Defendant’s opposition was made without substantial justification, and in its discretion finds $500 is reasonable to reimburse Plaintiff the fees incurred in bringing this motion. The Court thus GRANTS Plaintiff’s request for monetary sanctions in the amount of $500 in connection with this motion.

Conclusion

Plaintiff’s motions to compel Defendant to provide further responses to Requests for Admission and Form Interrogatories are GRANTED. Defendant is to provide further responses to the discovery identified above within 20 days of the date of this order. The Court also GRANTS Plaintiff’s requests for monetary sanctions in connection with each motion in the cumulative amount of $1,000, to be paid to counsel for Plaintiff within 20 days of the date of this order.