Judge: Armen Tamzarian, Case: 21STCV07947, Date: 2023-01-06 Tentative Ruling

Case Number: 21STCV07947    Hearing Date: January 6, 2023    Dept: 52

Defendant BNSF Railway Company’s Motions to Compel Further Responses to: (1) Requests for Production; (2) Form Interrogatories; and (3) Special Interrogatories

Requests for Production

Defendant BNSF Railway Company (BNSF) moves to compel plaintiff Wayne Olson to serve further responses to requests for production, set one, Nos. 1-29.  A party propounding requests for production may move to compel further responses if “[a] statement of compliance with the demand is incomplete,” “[a] representation of inability to comply is inadequate, incomplete, or evasive,” or “[a]n objection in the response is without merit or too general.”  (CCP § 2031.310(a).)

Plaintiff made objections that were too general.  His response began with numerous “general objections,” which are improper. 

Plaintiff also made meritless objections.  To nearly all requests, plaintiff responded only, “Plaintiff objects to this request [as] overly broad, unduly burdensome, and as it requires Plaintiff to prematurely marshal his evidence. Subject to these objections, Plaintiff reserves the right to supplement.”  These objections are without merit and the response is evasive.  Most of the requests ask for documents that support plaintiff’s various contentions.  Those documents are discoverable as “matter involved in the pending action” that “either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.”  (CCP § 2017.010.) 

Moreover, requiring the responding party to “prematurely marshal his evidence” is not a valid objection.  A responding party must make “a diligent search and a reasonable inquiry” to comply, and the sworn response must “affirm” he did so.  (CCP § 2031.230.)

Plaintiff’s objections are overruled.

Plaintiff’s response to No. 24 is an incomplete statement of compliance.  A statement of compliance “shall state that the production … demanded, will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.”  (CCP § 2031.220.)  Plaintiff responded, “The medical records responsive to this request are being produced.”  That response is incomplete because it does not state plaintiff is allowing the demand in whole and does not state under oath that he will produce all responsive documents in his possession, custody, or control.

Plaintiff’s responses also include inadequate statements of inability to comply.  Such responses must “affirm that a diligent search and a reasonable inquiry has been made,” specify the reason for plaintiff’s inability to comply, and identify anyone believed to possess the items requested.  (CCP § 2031.230.) 

That plaintiff “reserves the right to supplement” is effectively a statement of inability to comply.  It neither states plaintiff will permit the inspection nor that he is withholding documents based on objections.  To Nos. 19, 28, and 29, plaintiff responded that he “has no responsive documents.”  These responses are inadequate, incomplete, and evasive because they do not affirm a diligent search, specify the reason for his inability to comply, or identify anyone believed to possess the items.

Defendant is entitled to an order compelling further responses without objections to the requests for production.

Form Interrogatories

            Defendant BNSF moves to compel further responses by plaintiff Wayne Olson to form interrogatories, set one, Nos. 6.4, 6.5, 6.7, 8.2-8.8, 9.1, 9.2, 10.2, 10.3, 12.1, 14.1, and 17.1.  A party may move to compel further responses to interrogatories when an answer “is evasive or incomplete” (CCP § 2030.300(a)(1), “[a]n exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate” (§ 2030.300(a)(2)), or an objection “is without merit or too general” (§ 2030.300(a)(3)).

            Plaintiff made objections that were too general.  His response began with over a page of “general objections.” 

            Plaintiff also made meritless objections to form interrogatories Nos. 9.1 and 12.1.    No. 9.1 asked him to describe “any other damages” he attributes to the incident, defined as “[t]he alleged exposures to asbestos or chemicals that form the basis of your complaint.”  Plaintiff responded by objecting that the interrogatory “is vague, uncertain and overbroad, and being without limitation as to time or specific subject matter in its use of the word ‘incident.’ ”

No. 12.1 asked plaintiff to identify people who witnesses the incident, made any statements at the scene, heard any statements made at the scene, or has knowledge of the incident.  Plaintiff objected that the interrogatory is “not applicable and irrelevant” and “vague, uncertain and overly broad, and being without limitation as to time or specific subject matter in its use of the word ‘incident.’ ” 

Plaintiff alleges exposure over four decades (Comp., ¶¶ 16, 18), so there are likely many witnesses.  But the request is not vague or uncertain.  Plaintiff understands the question; it is just hard to answer.  Despite the long duration, that is what plaintiff alleges in his complaint, so the question is not overly broad.  Moreover, he gave a partial substantive response that his exposure “was witnessed by several individuals, including his co-workers and supervisors,” but he did not identify any of those witnesses as required.  Plaintiff may not remember every person but must identify those he remembers.      

Plaintiff’s objections are overruled.

            In plaintiff’s response to No. 6.7, he refers to documents without complying with Code of Civil Procedure section 2030.230.  When an answer “would necessitate the preparation or the making of a compilation,” the responding party may instead “specify the writings from which the answer may be derived or ascertained.  This specification shall be in sufficient detail to permit the propounding party to locate and to identify, as readily as the responding party can, the documents from which the answer may be ascertained.”  (CCP § 2030.230.)

            No. 6.7 asks for information regarding whether any “health care provider advised that [plaintiff] may require future or additional treatment for any injuries that you attribute to the incident?”  Plaintiff’s response included that he “refers Defendants to the medical records produced in this case to date.”  He fails to establish that answering this question necessitates the preparation or making of a compilation or summary.  Plaintiff also does not specify any document.  That response does not have sufficient detail to permit defendant to ascertain an answer.

Plaintiff also gave evasive and incomplete responses.  For example, No. 8.1 asks if he attributes any loss of income or earning capacity to the incident.  He responded only, “Plaintiff will supplement this request.”  To No. 10.3, he responded, “Discovery and investigation continue.”  Most of plaintiff’s responses amount to stating he will answer later. 

Those responses are inadequate.  “If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.”  (CCP § 2030.220(c).)  “[A] responding party generally may not respond to interrogatories just by asserting its ‘inability to respond.’ ”  (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 406.)  Plaintiff therefore must perform a reasonable and good faith investigation and attempt to answer each interrogatory.     

Defendant is entitled to an order compelling further responses without objections.

Special Interrogatories

            Defendant BNSF moves to compel further responses by plaintiff Wayne Olson to special interrogatories, set one, Nos. 1-9, 12-14, 17-29, 31-34, 36-43, 47, 49-50, 53-60, 66-73, 80-106, and 108-114.

            As with the form interrogatories, plaintiff’s response began with improper “general objections.”

            Plaintiff again made meritless objections to specific interrogatories.  To many interrogatories, he responded, “Plaintiff objects to this request overly broad, unduly burdensome, and as it requires Plaintiff to prematurely marshal his evidence.”  (E.g., Nos. 1-9, 17-27, 34.)  The requests are not overly broad or unduly burdensome.  For example, Nos. 1-8 are standard interrogatories about facts, writings, and witnesses, supporting various contentions in plaintiff’s complaint.  That information is discoverable.  (CCP § 2017.010 [“Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence … of any document”]; § 2030.010(b) [“An interrogatory may relate to whether another party is making a certain contention, or to the facts, witnesses, and writings on which a contention is based”].)

In addition, requiring plaintiff to prematurely marshal evidence is not a valid objection.  As discussed above, the responding party has a duty to investigate to obtain the information necessary to answer interrogatories. 

To several requests, plaintiff objected that “this information is best obtained through the deposition testimony of Plaintiff and medical witnesses.”  (E.g., Nos. 34, 36, 37, 39.)  That is not a valid objection.  The requesting party gets to choose which discovery method to employ, regardless of whether it is the “best” method.

Plaintiff’s objections are overruled.

Again, some of plaintiff’s responses refer to documents without complying with Code of Civil Procedure section 2030.230.  His responses to several interrogatories include, “Plaintiff refers Defendant to medical and billing records being produced in this matter” (Nos. 31, 47), or “to the medical records produced in this case to date” (e.g., Nos. 32, 33, 37-43).  Plaintiff fails to establish that answering those questions necessitates the preparation or making of a compilation or summary.  He also does not specify any document, so the response lacks sufficient detail to permit defendant to ascertain an answer.            

Plaintiff also made evasive or incomplete responses.  To almost every interrogatory, he gave no substantive answer and instead stated he “reserves the right to supplement” (e.g., Nos. 1-9, 12-14, 17-29, 32-34, 37), or he “will supplement this response” (e.g., Nos. ), or “will supplement this request [sic]” (e.g., Nos. 12-14, 28, 29, 32-34, 37.)  As discussed above, these answers are insufficient.  Instead of promising future answers, plaintiff must perform a reasonable and good faith investigation and attempt to answer each interrogatory.           

Defendant is entitled to an order compelling further responses without objections to its special interrogatories.

Sanctions

            In each motion, defendant moves for monetary sanctions.  The notices of motion specify defendant seeks sanctions under Code of Civil Procedure sections 2023.030, 2030.300, subdivision (d) for interrogatories, and 2031.300, subdivision (c) for requests for production.  (The latter is an error.  The appropriate statute is section 2031.310, subdivision (h), because this is a motion to compel further responses, not to compel a response by a party who failed to timely respond.)

The court cannot issue sanctions under these three statutes.  The Court of Appeal recently held, “Section 2023.030 describes the types of sanctions available under the Discovery Act when another provision authorizes a particular sanction.  Section 2023.030 does not independently authorize the court to impose sanctions for discovery misconduct.”  (City of Los Angeles v. PricewaterhouseCoopers, LLC (2022) 84 Cal.App.5th 466, 502.)

Sanctions are not available under the statutes independently authorizing sanctions, Code of Civil Procedure sections 2030.300, subdivision (d) and 2031.310, subdivision (h) because plaintiff did not oppose this motion.  Both subdivisions provide, in relevant part, “The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, 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.”  Plaintiff did not unsuccessfully oppose these motions because he did not file any oppositions. 

Disposition

            Defendant BNSF Railway Company’s requests for sanctions are denied.

            Defendant BNSF Railway Company’s motion to compel further responses to requests for production is granted.  Plaintiff Wayne Olson is hereby ordered to provide further verified responses without objections to requests for production Nos. 1-29 within 30 days.

Defendant BNSF Railway Company’s motion to compel further responses to form interrogatories is granted.  Plaintiff Wayne Olson is hereby ordered to provide further verified responses without objections to form interrogatories Nos. 6.4, 6.5, 6.7, 8.2-8.8, 9.1, 9.2, 10.2, 10.3, 12.1, 14.1, and 17.1 within 30 days.

Defendant BNSF Railway Company’s motion to compel further responses to special interrogatories is granted.  Plaintiff Wayne Olson is hereby ordered to provide further verified responses without objections to special interrogatories Nos. 1-9, 12-14, 17-29, 31-34, 36-43, 47, 49-50, 53-60, 66-73, 80-106, and 108-114 within 30 days.