Judge: Andrew E. Cooper, Case: 22CHCV01127, Date: 2024-07-09 Tentative Ruling

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Case Number: 22CHCV01127    Hearing Date: July 9, 2024    Dept: F51

MOTIONS FOR PROTECTIVE ORDERS

Motions filed: 1/22/24

MOVING PARTY: Defendants Ramon Lopez and Yolanda Cruz (collectively, “Moving Defendants”)

RESPONDING PARTY: Plaintiff Irma Leticia Nila (“Plaintiff”)

NOTICE: ok 

RELIEF REQUESTED: A protective order finding that (1) Plaintiff’s Special Interrogatories, Set One, propounded on each Moving Defendant, need not be responded to; or, alternatively, (2) that the number of special interrogatories be appropriately limited, with each Moving Defendant provided at least 30 days after the Court’s ruling to provide responses to the same. Moving Defendants also seek monetary sanctions to be imposed against Plaintiff and her counsel in the amount of $1,519.56.

TENTATIVE RULING: The motion is granted in part. Moving Defendants to serve code-compliant responses to Plaintiff’s Special Interrogatories, Set One, Nos. 72–82, within 30 days. The Court declines imposing monetary sanctions against either party.

BACKGROUND

This is a personal injury action in which Plaintiff alleges that on 2/18/22, she was injured while exiting an apartment complex located at 11850 Gladstone Ave., Sylmar California 91342, when she tripped over a sidewalk elevated by a tree root and fell onto the concrete. (Compl. ¶ 11.) Plaintiff alleges that nonmoving defendants County of Los Angeles (the “County”) and City of Los Angeles (the “City”) owned and maintained the public sidewalk, and that Moving Defendants owned and maintained the surrounding property and curtilage. (Id. at ¶¶ 8–9.)

On 11/10/22, Plaintiff filed the instant action, alleging against Defendants Negligence and Statutory Liability. On 12/16/22, the County filed its answer. On 12/27/22, Moving Defendants filed their answer. On 1/17/23, the City filed its answer and cross-complaint against Moving Defendants, alleging the following causes of action: (1) Indemnification; (2) Apportionment of Fault; and (3) Declaratory Relief. On 3/22/23, Moving Defendants filed their answer to the City’s cross-complaint. On 4/13/23, Plaintiff dismissed the County from the instant action without prejudice.

On 12/21/23, Plaintiff served Moving Defendants with her first set of Special Interrogatories. (Ex. A to Decl. of Mineh Eisaeian.) On 1/22/24, Moving Defendants filed the instant motion for a protective order. On 6/24/24 and 6/25/24, Plaintiff filed her oppositions. On 7/1/24, Moving Defendants filed their replies.

ANALYSIS

A.                Meet and Confer

A motion for protective order must be accompanied by a meet and confer declaration stating “facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc. §§ 2030.090, subd. (a); 2016.040.)

Here, Moving Defendants’ counsel declares that beginning on 1/3/24, she met and conferred with Plaintiff’s counsel regarding the issues raised in the instant motion, but the parties were unable to come to a resolution. (Eisaeian Decl. ¶¶ 7–8.) While Plaintiff disputes the sufficiency of the meet and confer process, the Court finds that counsel has satisfied the meet and confer requirements of Code of Civil Procedure section 2030.090.

B.                 Protective Order

When document requests, interrogatories, or a deposition notice have been propounded, the responding party, may promptly move for a protective order. (Code Civ. Proc. §§ 2025.420, subd. (a), 2030.090, subd. (a), 2031.060, subd. (a).) “The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc. §§ 2025.420, subd. (b), 2030.090, subd. (b), 2031.060, subd. (b).)

Here, Plaintiff’s Special Interrogatories, Set One, propounded to each Moving Defendant, consists of  82 interrogatories, seeking, inter alia, the identities of every person who owned, controlled, or maintained the subject premises, sidewalk, tree, tree well, and block. (Ex. A to Eisaeian Decl.) Moving Defendants argue that “no circumstances exist in this straightforward trip and fall incident case that justify Plaintiff and her counsel’s serving both Defendants with 82 identical special interrogatories, which are excessive in number, not appropriately tailored, and are not warranted in this non-complex case.” (Def.’s Mot. 5:21–26.)

1.      Supporting Declaration

The discovery statute requires a propounding party to attach a supporting declaration to special interrogatories exceeding the statutory limit of 35 interrogatories, based on any of the following reasons: “(1) The complexity or the quantity of the existing and potential issues in the particular case; (2) The financial burden on a party entailed in conducting the discovery by oral deposition; (3) The expedience of using this method of discovery to provide to the responding party the opportunity to conduct an inquiry, investigation, or search of files or records to supply the information sought.” (Code Civ. Proc. § 2030.040, subd. (a).) In the supporting declaration, the propounding party is required to “state each factor described in Section 2030.040 that is relied on, as well as the reasons why any factor relied on is applicable to the instant lawsuit.” (Code Civ. Proc. § 2030.050.) “If the responding party seeks a protective order on the ground that the number of specially prepared interrogatories is unwarranted, the propounding party shall have the burden of justifying the number of these interrogatories.” (Code Civ. Proc. § 2030.040, subd. (b).)

Here, in support of Plaintiff’s Special Interrogatories, Set One, Plaintiff’s counsel declares that “this number of questions is warranted under Section 2030.040 of the Code of Civil Procedure because of the complexity and/or the quantity of the existing potential issues in this particular case.” (Ex. B to Eisaeian Decl., ¶ 8.) In bringing the instant motion, Moving Defendants argue that “there are no facts included in the declarations supporting the conclusory assertions that additional special interrogatories are warranted ‘because of the complexity and/or the quantity of the existing potential issues in this particular case.’ To the contrary, as demonstrated by the allegations in Plaintiff’s complaint, the issues presented are not complex and there are few issues in this common place trip and fall incident case with a single cause of action for general negligence/premises liability.” (Def.’s Mot. 7:7–12.)

Moving Defendants further argues that to the extent that Plaintiff intends to rely on the remaining reasons provided in the statute, these arguments fail because “Plaintiff’s counsel also fails to assert the interrogatories are being used in lieu of taking Defendants’ oral depositions. … Nowhere does Plaintiff’s counsel claim the interrogatories are a more expedient method for to obtain the information from other means of discovery ot [sic] to demonstrate the same.” (Def.’s Mot. 7:26–8:1, citing Ex. B to Eisaeian Decl.; Code Civ. Proc. § 2030.040, subds. (a)(2)–(3).)

In opposition, Plaintiff mistakenly asserts that the burden of proof belongs to Moving Defendants, as the responding parties, to establish the undue burden of responding to Plaintiff’s special interrogatories. (Pl.’s Opp. 6:16–17, citing Williams v. Superior Court (2017) 3 Cal.5th 539, 549.) While this may be the usual rule for protective orders, here, the statute explicitly provides that the filing of the instant motion challenging Plaintiff’s supporting declaration shifts the burden to Plaintiff as the propounding party to justify the number of interrogatories. (Code Civ. Proc. § 2030.040, subd. (b).) “To meet that burden of proof, the propounding party must establish facts that specifically support the reasons given in the declaration.” (Cal. Judges Benchbook Civ. Proc. Discovery § 18.14.)

Here, the Court agrees with Moving Defendants that “the conclusory assertion in Plaintiff’s declaration for additional discovery that number of requests is warranted because of ‘the complexity and the quantity of the existing and potential issues in this particular case’ does not suffice because it does not articulate why the alleged complexity or quantity of issues warrant the excessive number of special interrogatories.” (Def.’s Reply 3:9–12.) Plaintiff merely argues that “pursuant to the Court’s ruling in Rifkind, the subject written interrogatories are the more appropriate and expedient method for Plaintiff to obtain information relating to those legal contentions and defenses contained within Defendant’s Answer to the Complaint and Defendant’s Answer to the Cross-complaint. Such responses will permit Plaintiff and its counsel to take an informed and thorough deposition of Defendant in order to obtain that information which is necessary for this matter to be tried on its merits.” (Pl.’s Opp. 7:12–17.)

In Rifkind v. Superior Court (1994) 22 Cal.App.4th 1255, the Court of Appeal held that deposition questions may ask a deponent about the basis for, or information about, factual conclusions or assertions, but not the basis for a legal conclusion. “If a deponent says that a certain event happened at a particular time or place, it is quite proper to ask the person, at deposition, how he or she became aware of it, his or her knowledge about it, and for similar information of a factual nature.” (Rifkind, 22 Cal.App.4th at 1259.) However, in contrast, deposition questions that call for a witness’ legal contentions are improper because “legal contention questions require the party interrogated to make a ‘law-to-fact application that is beyond the competence of most lay persons.’ … Even if such questions may be characterized as not calling for a legal opinion … or as presenting a mixed question of law and fact … their basic vice when used at a deposition is that they are unfair. They call upon the deponent to sort out the factual material in the case according to specific legal contentions, and to do this by memory and on the spot. There is no legitimate reason to put the deponent to that exercise. If the deposing party wants to know facts, it can ask for facts; if it wants to know what the adverse party is contending, or how it rationalizes the facts as supporting a contention, it may ask that question in an interrogatory.” (Id. at 1262.)

Here, the Court notes that only Special Interrogatory Nos. 72–82 ask for each Moving Defendant’s legal contentions, which Rifkind limits to written interrogatories as opposed to oral deposition questions. As to the remaining 71 interrogatories, Plaintiff has not made a sufficient factual showing that the number of interrogatories is warranted based on the complexity and/or quantity of the existing and potential issues in the case. (Code Civ. Proc. § 2030.040, subd. (a)(1).) The Court also finds that as Plaintiff has not opted to rely on any of the other reasons provided in the statute in her supporting declaration, the Court disregards any additional argument to that extent. (Id. at subds. (a)(2)–(3).) Based on the foregoing, the Court limits the number of Plaintiff’s Special Interrogatories, Set One, to Special Interrogatory Nos. 72–82. The Court notes the parties’ arguments concerning the substance of the subject interrogatories but declines to reach them in light of the foregoing, and because these issues were not raised during the meet and confer process.

C.                Sanctions

“The court shall impose a monetary sanction … against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order under this section, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc. §§ 2025.420, subd. (h), 2030.090, subd. (d), 2031.060, subd. (h).) Additionally, “the court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” (Code Civ. Proc. § 2023.030, subd. (a).)

Here, Moving Defendants request monetary sanctions in the amount of $1,519.56 per motion to be imposed on Plaintiff and her counsel, totaling $3,039.12. This amount includes: (1) 9.1 hours of Moving Defendants’ attorney’s time spent preparing the instant papers and appearing at the hearing, at counsel’s hourly rate of $160.17 per hour; and (2) $61.65 in filing fees per motion. (Eisaeian Decl. ¶¶ 10–11.) The Court notes that these calculations yield a total of $3,038.39.

In opposition, Plaintiff requests monetary sanctions in the total amount of $1,500.00 to be imposed on each Moving Defendant and their counsel, totaling $3,000.00, which encompasses (1) 5 hours of Plaintiff’s counsel’s time preparing each opposition; and (2) 1 hour attending each hearing, at counsel’s hourly rate of $250.00 per hour. (Decl. of Andrew J. Lopez, ¶ 10.)

Based on the foregoing, the Court finds that monetary sanctions are not warranted in this instance because neither party was completely successful in making or opposing the motion.

CONCLUSION

The motion is granted in part. Moving Defendants to serve code-compliant responses to Plaintiff’s Special Interrogatories, Set One, Nos. 72–82, within 30 days. The Court declines imposing monetary sanctions against either party.