Judge: Andre De La Cruz, Case: 2020-01152657, Date: 2023-08-21 Tentative Ruling

Motion to Compel Further Responses to Special Interrogatories filed by Joseph Fernandez on 4/21/23

The unopposed Motion to Compel Further Responses brought by Plaintiff Joseph Fernandez is GRANTED, pursuant to Code of Civil Procedure section 2030.300.

Defendant Dr. Don Thorne is ordered to provide further verified responses, without objections, to Plaintiff Joseph Fernandez’s Special Interrogatories, Set Two, Nos. 19 (erroneously labelled), 20, 22 and 29, within 15 calendar days’ notice of this order. Additionally, Defendant and his counsel of record are jointly ordered to pay sanctions to Plaintiff, in the amount of $1,908.00, pursuant to Code of Civil Procedure section 2023.030(a). See also Code Civ. Proc., § 2023.010(e) and (f).

Initially, the instant motion was filed on April 21, 2023, which is precisely 45-days after the date Counsel declares Defendant served discovery responses. ¶3 of Feig Declaration. Given the above, the motion was timely filed pursuant to Code of Civil Procedure section 2030.300(c).

Additionally, Counsel for Plaintiff attaches a meet and confer correspondence to his Declaration, which he asserts was sent to Defendant. ¶4 of Feig Declaration and Exhibit A thereto. The attached correspondence is dated April 5, 2023, and, although the letter mistakenly refers to Requests for Admission (RFA), a review of the letter indicates that each interrogatory at issue in this motion is addressed therein. Id. In response, Defendant stated: “[Y]our demand that my client provide supplemental responses without objection is rejected.” Id. The Court finds the above communications marginally sufficient compliance with Code of Civil Procedure section 2030.300(b)(1) (proscribing meet and confer by “telephone” or “in person”).

As to several of these requests, Defendant objected, asserting certain terms were “vague and ambiguous” and that the requests called for a legal conclusion.  

Defendant’s objections fail: “[I]f a timely motion to compel has been filed, the burden is on responding party to justify any objection.” Fairmont Ins. Co. v. Superior Court (2000) 22 Cal. 4th 245, 255, citing Coy v. Superior Court (1962) 58 Cal. 2d 210, 220-221. As the instant motion is unopposed, Defendant necessarily failed to meet this burden.

Additionally, “[a]n interrogatory is not objectionable because an answer to it involves an opinion or contention that relates to fact or the application of law to fact, or would be based on information obtained or legal theories developed in anticipation of litigation or in preparation for trial.” Code Civ. Proc., § 2030.010(b).

Further, “[a] party may not deliberately misconstrue a question for the purpose of supplying an evasive answer.” Deyo v Kilbourne (1978) 84 Cal.App.3d 71, 783. “Indeed, where the question is somewhat ambiguous, but the nature of the information sought is apparent, the proper solution is to provide an appropriate response.” Id.

In addition to the above, Plaintiff provides an email from Defense Counsel, which demonstrates Defense Counsel used the same terms objected to in the interrogatories. Specifically, Plaintiff offers a January 25, 2023 email from Counsel Kalab Honey (Counsel for Dr. Thorne), who states: “The bank account you subpoenaed is owned by SoCal Fresh, which is the company that holds or manages various food delivery brands…” ¶5 of Feig Declaration and Exhibit B thereto.

Based on this communication, it is apparent that the terms “holds,” “manages” and “SoCal Fresh” are not ambiguous and that Defendant is capable of responding. Similarly, the above communication demonstrates that Defendant’s response is evasive.  While Defendant ultimately responded “none” to Special Interrogatories Nos. 19 (erroneous label) and 20, Counsel for Defendant earlier represented that SoCal Fresh “holds or manages various food delivery brands…” ¶5 of Feig Declaration and Exhibit B thereto.

At the very least, Defendant should explain the contradictory statements. A party “cannot plead ignorance to information which can be obtained from sources under his control.” Deyo v Kilbourne (1978) 84 Cal. App. 3d 71, 782. Additionally, pursuant to Code of Civil Procedure section 2030.220(a), “[e]ach answer in response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits.” Code Civ. Proc., § 2030.220(a).

Similarly, Counsel for Plaintiff presents a Business Signature Card obtained from Bank of America, related to a checking account for “SOCAL FRESH LLC,” signed by Defendant Dr. Thorne as the Managing Member.  ¶6 of Feig Declaration and Exhibit C thereto. The above demonstrates that Defendant’s response to Special Interrogatory No. 22 was evasive:  When asked to identify his relationship with SoCal Fresh, Defendant responded with “none,” contrary to the offered evidence.

Further, with respect to Special Interrogatory No. 29, Defendant failed to support his objections based on privacy and Civil Code section 3295. As noted above, “if a timely motion to compel has been filed, the burden is on responding party to justify any objection.” Fairmont Ins. Co. v. Superior Court (2000) 22 Cal. 4th 245, 255, citing Coy v. Superior Court (1962) 58 Cal. 2d 210, 220-221.  Moreover, it is unclear how the simple identification of corporate bank accounts – a request which does not implicate any of the financial records or information contained within the accounts - threatens the privacy of the individual Defendant or third-parties.  Nor is it apparent the request violates Civil Code section 3295.

Based on all of the above, the motion is GRANTED, in its entirety, on the basis Defendant’s responses are evasive and Defendant failed to support any objections to the identified interrogatories.

Further responses are ORDERED served within 15 calendar days of notice of this ruling.

Moving party to provide notice.