Judge: Armen Tamzarian, Case: 22STCV08394, Date: 2023-03-09 Tentative Ruling

Please notify Department 52 via email at smcdept52@lacourt.org and indicate that the parties are submitting on the tentative ruling. Please provide the attorney's name and represented party. Please notify the opposing side via email if submitting on the Court's tentative ruling.

Case Number: 22STCV08394    Hearing Date: March 9, 2023    Dept: 52

Plaintiff Boae Lee’s Motions to Compel Further Responses to (1) Requests for Production of Documents and Things, Set One; and (2) Interrogatories, Set One          

(1) Requests for Production          

Plaintiff Boae Lee moves to compel defendant Dignity Community Care dba California Hospital Medical Center to serve further responses to requests for production of documents Nos. 1, 2, 5-15, 17-22, 24, 25, 28-31, 36, 43, 45, and 46. 

Timeliness

            Defendant argues this motion is untimely as to its objections (if not the substantive responses).  (Opp., p. 6.)  Defendant relies on the rule that the 45-day deadline runs from “the service of the verified response, or any supplemental verified response.”  (CCP § 2031.310(c).)  Defendant contends that, because objections are not verified, plaintiff’s deadline started when defendant initially served objections, before it served the verification.

The Court of Appeal recently rejected this very argument.  “[T]he clock on a motion to compel begins to run once ‘verified responses’ or ‘supplemental verified responses’ are served.  …  Thus, if responses are not verified, the clock cannot begin to run.”  (Golf & Tennis Pro Shop, Inc. v. Superior Court (2022) 84 Cal.App.5th 127, 135.)  “As a matter of law, the responses here had to be verified because they were a combination of responses and objections.  And because they had to be verified, the clock did not begin running until they were.”  (Id. at p. 136.)

Defendant’s supplemental responses to the requests for production were a combination of objections and substantive responses.  They had to be verified, so the clock began running only when defendant served its verification on December 23, 2022.  The motion is timely. 

Meet and Confer

            Plaintiff made a sufficient effort to meet and confer before filing this motion.  Before moving to compel further discovery responses, a party must make a “reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (CCP § 2016.040.)  This rule aims “to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order.”  (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1293.)      

            On January 20, 2023, plaintiff’s counsel sent a meet and confer letter specifying why she found these responses inadequate.  (Yellin Decl., Ex. F.)  Plaintiff’s counsel demanded supplemental responses “no later than close of business on Monday, January 23, 2023 unless the parties can agree to continue all of Plaintiff’s motion deadlines.”  (Id., p. 6.) 

Though plaintiff should not have demanded supplemental responses the next business day, this effort was adequate in the circumstances.  Defendant replied on January 23 that it would not further supplement its responses but “will prepare and produce a privilege log as to any documents being withheld on the basis of privilege.”  (Yellin Decl., Ex. G, p. 1.)  Plaintiff waited until February 8 to file this motion. 

Though doing so would have been more courteous, plaintiff’s counsel was not required to formally communicate that she would “accept” a privilege log.  The fact that defendant still has not provided a privilege log and (as discussed below) equivocates on whether it withheld any documents as privileged also suggests that additional correspondence would have been futile.

Further Responses

            Plaintiff is entitled to further responses to these requests for production.  A party demanding 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).)

            To each of the disputed requests for production, defendant’s supplemental response includes numerous objections, followed by: “Subject to and without waiving the foregoing objections: “Defendant will comply with this request in whole by producing all nonprivileged responsive documents in the [sic] possession, custody, or control.”

Defendant makes no attempt to justify its various objections, tacitly conceding they are meritless.  Except for objections based on attorney-client privilege and attorney work product, all of defendant’s objections are overruled because defendant has not met its burden of showing they have merit.

In its opposition, defendant argues, “It is unnecessary to go through and discuss each of the objections defendant raised in the preamble to the responses since, ultimately, defendant did not rely on any of those objections and agreed to comply with each request in full.”  (Opp., p. 7.)  If defendant did not rely on its objections, it should have never made them in the first place or it should have withdrawn them.  By making meritless objections, defendant misused the discovery process.  (CCP § 2023.010(e).)

Instead attempting to defend its boilerplate objections, defendant argues its substantive responses were code compliant.  They were not.  Though they purported to be statements of full compliance without objections, they incorporate an objection.  Stating defendant will produce “all nonprivileged documents” means—or should mean—defendant is withholding some documents based on privilege. 

When a response includes an objection, “the response shall … [i]dentify with particularity any document … to which an objection is being made.”  (CCP § 2031.240(b)(1).)  “If an objection is based on a claim of privilege, the particular privilege invoked shall be stated.”  (CCP § 2031.240(b)(2).)  “If an objection is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.”  (CCP § 2031.240(c)(1).)

Defendant’s response does none of those three things.  It does not identify with particularity any privileged documents.  It refers to “privilege” without stating “the particular privilege invoked.”  And it does not provide any factual information for plaintiff to evaluate the merits of the claim of privilege. 

Defendant argues it was not required to do this in the response itself, and that later offering a privilege log was enough.  Defendant contends, “A privilege log does not need to be provided within the response itself.  See C.C.P. § 2031.220 (elements of a proper response).”  (Opp., p. 3.)  That section concerns statements of compliance, not objections.  The section on objections expressly provides, “[T]he response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.”  (CCP § 2031.240(c)(1).  Facts supporting the privilege are thus required in ”the response” itself.  Moreover, though defendant at one point offered to provide a privilege log, it has not done so. 

Defendant, however, correctly argues that not providing a privilege log does not waive the attorney-client privilege.  “[I]f a party responding to an inspection demand timely serves a response asserting an objection based on the attorney-client privilege or work product doctrine, the trial court lacks authority to order the objection waived even if the responding party fails to serve a privilege log, serves an untimely privilege log, or serves a privilege log that fails either to adequately identify the documents to which the objection purportedly applies or provide sufficient factual information for the propounding party to evaluate the objection.”  (Catalina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, 1126.)

Though defendant has not waived objections based on attorney-client privilege or work product, plaintiff is entitled to further responses to these requests for production.  If defendant is withholding documents based on privilege, it must identify the specific privilege, identify the particular documents withheld, and provide sufficient factual information (such as via a privilege log) for plaintiff to evaluate the merits of that claim.  If defendant is not withholding any documents based on privilege, it must provide a supplemental response giving a full statement of compliance and not including any reference to privilege.  For example, defendant may respond, “Defendant will comply with this request in whole by producing all responsive documents in its possession, custody, or control.”       

Sanctions

            Plaintiff moves for $4,060 in sanctions against defendant and its counsel Zachary Schwake.  “[T]he court shall impose a monetary sanction … against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, 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.”  (CCP § 2031.310(h).)

            Defendant unsuccessfully opposed this motion.  It did not act with substantial justification.  Sanctions are just under the circumstances.  Defendant made numerous meritless objections and made no effort to justify them.  A responding party should not object simply for the sake of objecting.  Furthermore, defendant’s opposition obfuscates the issue plaintiff seeks to resolve via this motion: is it withholding any documents based on privilege?  Defendant argues, “To the extent that documents are withheld on the basis of the attorney-client privilege, defendant already offered in meet and confer efforts to produce a privilege log.”  (Opp., p. 3.)  Defendant has refused, without good cause, to comply with a party’s obligations when responding to requests for production.    

Disposition

            Plaintiff Boae Lee’s motion to compel further responses to requests for production of documents is granted.

            Defendant Dignity Community Care dba California Hospital Medical Center is ordered to serve further supplemental responses to requests for production Nos. 1, 2, 5-15, 17-22, 24, 25, 28-31, 36, 43, 45, and 46 within 30 days.

            Defendant Dignity Community Care dba California Hospital Medical Center and its counsel Zachary Schwake are ordered to pay plaintiff $4,060 in sanctions within 30 days.  Defendant and its counsel shall be jointly and severally liable for the sanctions.

(2) Interrogatories

Plaintiff Boae Lee moves to compel defendant Dignity Community Care dba California Hospital Medical Center to serve further responses to form interrogatories Nos. 12.2, 12.3, 17.1, 215.1, 215.2, and 216.1.

Timeliness

            Defendant argues this motion is untimely as to Nos. 12.2, 12.3, 17.1, 215.1, and 215.2.  The court declines to address the issue because, as discussed below, there is an independent reason to deny the motion as to those interrogatories.

Meet and Confer

            Defendant again argues plaintiff failed to meet and confer in good faith.  This argument is more persuasive with respect to the interrogatories because plaintiff filed this motion on January 24, two weeks earlier than the other motion.  But in these circumstances, the court concludes this effort was adequate.  Though plaintiff gave an unrealistic deadline and filed the motion quickly afterward, the parties’ correspondence thoroughly discusses the substance of this dispute.  Defendant’s letter on January 23 clearly stated it would not provide any further supplemental responses.  There was nothing more left to discuss.

Further Responses

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’s motion fails as to Nos. 12.2, 12.3, 17.1, 215.1, and 215.2.  To those responses, defendant initially served substantive responses.  In its supplemental response, it stated for each of these interrogatories: “No supplemental response will be provided.  Defendant’s response is correct and complete.” 

Plaintiff’s separate statement states, “Plaintiff herein only addresses the supplemental responses, and not any objections raised in Defendant’s original responses since the original responses have been replaced by the supplemental responses, which do not contain any objections.” 

  Plaintiff elevated form over substance and attacked a straw man instead of showing why defendant’s substantive responses were evasive or incomplete or why the objections were meritless.  Though it may have been better for defendant to not include anything labeled a “supplemental response” to these interrogatories, the substance of its discovery responses was clear: it stood by its initial responses.  Defendant expressly stated it did not purport to provide new or further answers to these interrogatories.    Plaintiff uses a “gotcha” strategy in arguing these statements “replaced” the initial responses.  For an order compelling further responses, plaintiff must show the substantive were inadequate.  Plaintiff did not do so.

Plaintiff is entitled to a further response to No. 216.1.  That interrogatory asks defendant to “[i]dentify each denial of a material allegation and each special or affirmative defense in your pleadings and for each:” (a) state all supporting facts, (b) identify supporting witnesses, and (c) identify supporting documents.

Defendant’s supplemental response begins by objecting that the “interrogatory seeks information that is protected by the attorney-client privilege and attorney work product doctrine, as it requires Defendant to identify which allegations of the Complaint it believes to be material.”  Attorney-client privilege protects confidential communications between attorney and client.  It does not apply. 

Work product also does not apply.  The Civil Discovery Act expressly provides, “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.  An 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.”  (CCP § 2030.010(b).)  The question is not objectionable merely because it asks for counsel’s opinion or contention on which allegations are material. 

Furthermore, that an answer denies an allegation itself establishes that defendant’s counsel considers that allegation material.  “The answer to a complaint shall contain: (1) The general or specific denial of the material allegations of the complaint controverted by the defendant.”  (CCP § 431.10(b).)  An answer should not deny immaterial allegations.    

Defendant’s substantive response is incomplete or evasive because it does not separately identify each affirmative defense.  Defendant argues this motion constitutes an improper attack on the merits of the defenses that should be raised by demurrer or motion for judgment on the pleadings.  Defendant chose to assert boilerplate 35 affirmative defenses, many of which do not appear to apply to the facts of this case.  Doing so means it bears the corresponding burden of answering this question for each of them.  Defendant could have easily avoided this burden by only asserting applicable defenses.

Defendant’s response to 216.1(b) is incomplete because it does not provide addresses or telephone numbers of any person identified.  “Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter.”  (CCP § 2017.010.)  A witness’s contact information “is basic civil discovery.”  (Puerto v. Superior Court (2008) 158 Cal.4th 1242, 1254.)  Defendant’s response states the witnesses should be contacted through defense counsel.  That does not justify refusing to answer the question.  Even if these current or former employees could be considered a represented parties under Rules of Professional Conduct rule 2-100(B), that is a rule of professional ethics—not discovery.

Finally, defendant’s response to 216.1(c) includes meritless objections and is incomplete.  Defendant objected that “it would be it would be unreasonably burdensome to identify individually every potentially relevant document.”  The interrogatory asks about documents that support defendant’s denials or affirmative defenses, not “every potentially relevant document.”  Moreover, a party objecting to interrogatories as unduly burdensome must present “ ‘evidence showing the quantum of work required.’ ” (Williams v. Superior Court (2017) 3 Cal.5th 531, 549.)  Defendant presents no such evidence.  The court therefore has “nothing in the record upon which to base a comparative judgment that any responsive burden would be undue or excessive, relative to the likelihood of admissible evidence being discovered.”  (Ibid.)

Defendant’s objections to form interrogatory No. 216.1 are overruled.

Sanctions

Each party requests sanctions against the other.  Both parties were partially successful.  Both acted, in part, with substantial justification.  The court will not impose sanctions for this motion.

Disposition

Plaintiff Boae Lee’s motion to compel further responses to interrogatories is denied as to Nos. 12.2, 12.3, 17.1, 215.1, and 215.2.  Plaintiff Boae Lee’s motion to compel further responses to interrogatories is granted as to No. 216.1. 

            Defendant Dignity Community Care dba California Hospital Medical Center is ordered to serve a further supplemental response without objections to form interrogatory No. 216.1 within 30 days.