Judge Ashfaq G. Chowdhury, Case Number: 23GDCV01728, Date: 2024-04-05 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 23GDCV01728, Date: 2024-04-05 Tentative Ruling

Case Number: 23GDCV01728 Hearing Date: April 5, 2024 Dept: E

Hearing Date: 04/05/2024-8:30am
Case No: 23GDCV01728
Trial Date: UNSET
Case Name: LISA BAYNE SAAVEDRA v. PHILIP R. SHUPE

TENTATIVE RULING ON MOTION TO COMPEL FURTHER RESPONSES

RELIEF REQUESTED
“Plaintiff, Lisa Bayne Saavedra, moves this Court for:

1. An order compelling Defendant Philipe R. Shupe to Further Respond to Plaintiff’s Form Interrogatories 15.1, Set One, Set One, as they relate to all of Defendant Shupe’s Affirmative Defenses without objections, and for:;

2. An order compelling Defendant Shupe to Further Respond to Plaintiff's Form Interrogatory 17.1 as it related to Plaintiff Saavedra’s Request for Admissions #2.

3. An award of monetary sanctions in the amount of $3,105.00 against Defendant Shupe and his attorneys of record Adam L. Robinson, LaFollette, Johnson, DeHass, Fessler & Ames, jointly and severally. Plaintiff relies on Code of Civil Procedure §128.7, 2023.010, 2023.030, 2030.010, 2030.220 and 2030.300

This motion will be made on the grounds that Plaintiff propounded Judicial Council Form Interrogatories, Set One, on Defendant Shupe but defendant has not properly responded to Form Interrogatory 15.1 as it relates to all of Defendant’s Affirmative Defenses and Form Interrogatory 17.1 as they related to Plaintiff Saavedra’s Request for Admission #2. This Court is empowered to compel defendant to respond to discovery, and to award sanctions pursuant to Code of Civil Procedure §§128.7, 2023.010, 2023.030, 2030.010, 2030.220, and 2030.300.

This motion is based on this notice, the accompanying Memorandum of Points and Authorities, the Declaration of Victoria Le and Thomas Emmitt, the attached exhibits thereto, this Court’s file and pleadings in this case, as well as any other evidence as may be submitted at the hearing of this motion.”

Procedural

Moving Party: Plaintiff, Lisa Bayne Saavedra
Responding Party: Defendant, Philip R. Shupe, DPM

Proof of Service Timely Filed (CRC Rule 3.1300): Ok
16/21 Court Days Lapsed (CCP 1005(b)): Ok
Proper Address (CCP §1013, §1013a, §1013b): Ok

Moving Papers: Motion; Separate Statement; Exhibit List; Notice of Errata; Notice of Striking;

Opposition Papers: Opposition; Separate Statement

Reply Papers: Reply; Objections to Robinson Declaration

[The Court notes that Plaintiff only provided a proof of service for service of the motion itself, the notice of errata, and the notice of striking. Plaintiff did not provide proof of service for the: separate statement and the exhibit list.

LEGAL STANDARD - COMPEL FURTHER RESPONSES TO INTERROGATORIES
Under CCP § 2017.010, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action..., if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” The Section specifically provides that “[d]iscovery may relate to the claim or defense of the party seeking discovery or of any other party to the action,” and that discovery “may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition and location of any document, electronically stored information, tangible thing, or land or other property.”

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 any of the following apply:

(1) An answer to a particular interrogatory is evasive or incomplete.

(2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate.

(3) An objection to an interrogatory is without merit or too general.

(CCP § 2030.300(a).

If a timely motion to compel has been filed, the¿burden is on the responding party¿to justify any objection or failure fully to answer.¿(Coy v. Superior Court of Contra Costa County (1962) 58 Cal.2d 210, 220–221 [addressing a motion to compel further responses to interrogatories]; see also¿Fairmont Ins. Co. v. Superior Court¿(2000) 22 Cal.4th 245, 255.)

“While the party propounding interrogatories may have the burden of filing a motion to compel if it finds the answers it receives unsatisfactory, the burden of justifying any objection and failure to respond remains at all times with the party resisting an interrogatory.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 541 citing Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221.)

Furthermore, to the extent there is any doubt in whether these records should be discoverable, California’s liberal approach to discovery provides that doubt should be resolved in favor of permitting discovery. (Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 173.)

The party to whom interrogatories have been propounded shall respond in writing under oath separately to each interrogatory by any of the following:

(1) An answer containing the information sought to be discovered.

(2) An exercise of the party’s option to produce writings.

(3) An objection to the particular interrogatory.

(CCP §2030.210(a).)

ANALYSIS

As a preliminary matter, both moving, opposition, and reply papers are less than models of clarity.

The parties often cite inapposite statutes and case law, and generally fail to provide legal authority for their arguments.

For example, Plaintiff extensively cites to CCP § 128.7, despite CCP §128.7(g) stating, “This section shall not apply to disclosures and discovery requests, responses, objections, and motions.”

Further, although Plaintiff’s notice of motion indicates it is seeking to compel further responses to FROG, Set On, 15.1 and 17.1, it does not appear as if 17.1 is at issue before this Court. Plaintiff submitted a document called “Notice of Striking.”

It is unclear what this document seeks to accomplish. The Court is guessing it is an attempt to say that FROG 17.1 is not before this Court, but Plaintiff can confirm at the hearing.

Either way, 17.1 would not be before this Court because Plaintiff did not include the response to 17.1 in the Separate Statement. Plaintiff simply discussed RFA # 2, and compelling further responses to requests for admission are not before this Court. Plaintiff mentions that a motion to compel further responses to RFAs is also set to be heard on 4-5-2024, but this is not the case. Plaintiff did not file a motion to compel further responses re: RFA.

“A separate statement is a separate document filed and served with the discovery motion that provides all the information necessary to understand each discovery request and all the responses to it that are at issue. The separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and the full response. Material must not be incorporated into the separate statement by reference. The separate statement must include-for each discovery request (e.g., each interrogatory, request for admission, deposition question, or inspection demand) to which a further response, answer, or production is requested-the following:

(1) The text of the request, interrogatory, question, or inspection demand;

(2) The text of each response, answer, or objection, and any further responses or answers;

(3) A statement of the factual and legal reasons for compelling further responses, answers, or production as to each matter in dispute;

(4) If necessary, the text of all definitions, instructions, and other matters required to understand each discovery request and the responses to it;

(5) If the response to a particular discovery request is dependent on the response given to another discovery request, or if the reasons a further response to a particular discovery request is deemed necessary are based on the response to some other discovery request, the other request and the response to it must be set forth; and

(6) If the pleadings, other documents in the file, or other items of discovery are relevant to the motion, the party relying on them must summarize each relevant document.”

(CRC, rule 3.1345(a)(1)-(6).)

Here, Plaintiff’s Separate Statement does not include the response to RFA 17.1. Instead, Plaintiff included further responses to RFA #2. The Court cannot evaluate whether 17.1’s response was proper if Plaintiff does not include how Defendant responded to 17.1.

45-Day Requirement
“Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories.” (CCP §2030.300(c).)

Here, the Court will hear argument. Frankly, it is hard to decipher the parties’ arguments.

Meet and Confer
“A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040.” (CCP § 2030.300(b)(1).)

The Court will hear from counsel. Defendant appears to be arguing that the meet and confer with respect to the issues in this motion was not sent until after the filing of this motion.

As stated in Indio Police Command Unit Assn. v. City of Indio (2014) 230 Cal.App.4th 521, 539:

“[W]hether a party actually engaged in meetings in good faith is generally a factual question, and the fact-finder's express or implicit determination will be upheld on appeal if supported by substantial evidence. [Citations.]” (Santa Clara County Correctional Peace Officers' Assn. v. County of Santa Clara (2014) 224 Cal.App.4th 1016, 1027, 169 Cal.Rptr.3d 228.) “ ‘In general, good faith is a subjective attitude and requires a genuine desire to reach agreement [citations]. The parties must make a serious attempt to resolve differences and reach a common ground [citation]. The effort required is inconsistent with a “predetermined resolve not to budge from an initial position.” [Citations.]’ [Citation.] However, adamantly insisting on a position does not necessarily establish bad faith. [Citation.]” (Id. at p. 1044, 169 Cal.Rptr.3d 228.)

(Indio Police Command Unit Assn. v. City of Indio (2014) 230 Cal.App.4th 521, 539.)

FROG 15.1

“Identify each denial of a material allegation and each special or affirmative defense in your pleadings and for each:

(a) state all facts upon which you base the denial or special or affirmative defense;

(b) state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of those facts;

( c) Identify all DOCUMENTS and other tangible things that support your denial or special or affirmative defenses, and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT.”

Response FROG 15.1
“Defendant objects to this interrogatory on the basis that it is burdensome, oppressive and asks that the defendant provide plaintiffs with all discovery in this case. Responding party further objects on the grounds that this request is premature, particularly in light of plaintiffs’ allegations which merely set forth the elements of a cause of action for negligence, without a single fact to put the defendant on notice as to what claim is being made against him. Furthermore, although responding party has served initial discovery to learn the plaintiff’s contentions, plaintiff has requested, and been granted, multiple extensions for plaintiff to respond (which has not yet occurred). Further, Section 2 Instructions to the Asking Party (d) of plaintiffs’ Form Interrogatories specifically provides that the interrogatories in Section 16.0 should not be used until the defendant has had a reasonable opportunity to conduct an investigation or discovery of plaintiff’s injuries and damages. Responding party has initiated investigation and discovery. In addition, this interrogatory is objected to because it seeks information that is privileged and protected by the attorney-client privilege, Evidence Code § 1157, and the attorney-work product doctrine, and violates California Code of Civil Procedure §§ 2034.210, et seq.

Without waiving these objections, defendant provides information as it understands the question as follows: With respect to the denial of material allegations, this responding party denied generally and specifically all allegations under the provisions of California Code of Civil Procedure § 431.30, as responding party contends that he, at all times, met the applicable standard of care. Discovery is continuing. As to the affirmative defenses, they are separately delineated and further identification is unnecessary. They were alleged prophylactically and to protect the interests of this responding party. Discovery is in its infancy and is continuing.”

15.1 Analysis
If a timely motion to compel has been filed, the¿burden is on the responding party¿to justify any objection or failure fully to answer.¿(Coy v. Superior Court of Contra Costa County (1962) 58 Cal.2d 210, 220–221 [addressing a motion to compel further responses to interrogatories]; see also¿Fairmont Ins. Co. v. Superior Court¿(2000) 22 Cal.4th 245, 255.)

Here, Plaintiff seeks to compel further responses to FROG 15.1 as they relate to Defendant’s affirmative defenses.

As a preliminary matter, Defendant’s responses did not separately identify each affirmative defense, nor did they identify subparts (a),(b), and (c) for each affirmative defense.

Further, Defendant did not attempt to justify its objections with legal authority. Defendant makes no argument why attorney-client privilege or attorney-work product are appropriate objections.

The response to FROG 15.1 contained a reference to Section 16.0 and how interrogatories in section 16.0 should not be used until defendant has had a reasonable opportunity to conduct an investigation or discovery of plaintiff’s injuries and damages.

In Reply, Plaintiff points out that this is a FROG for 15.1, which isn’t a part of section 16.0. The Reply’s argument seems availing that Defendant’s objection based on 16.0 is not on point.

TENTATIVE RULING

Plaintiff’s motion to compel further responses to FROG 15.1, Set One, is GRANTED.

Plaintiff’s motion to compel further responses to FROG 17.1, Set One, is DENIED.

Sanctions

“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.” (CCP § 2030.300(d).)

“The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.” (Cal. Rules of Court, rule 3.1348(a).)

Plaintiff requests the Court grant a sanctions request against Defendant and his attorney of record, jointly and severally, in the amount of $3,105.00 to be paid within twenty days of entering of the order.

The Le Declaration requests sanctions as follows: I have spent 5.2 hours researching and drafting this motion and declaration, and compiling exhibits. I expect to spend another 1.5 hours drafting the reply. I expect to spend 1.0 hour preparing for the hearing, and attending via telephone, for a total of 8.7 hours. I bill my time at a rate of $ 350 per hour. Including the filing fee, the cost to Plaintiff is $3,105. (11.7 hr. x $ 350 = $ 3045 + $60 = $3,105.)

Opposition argues that sanctions are not warranted because Defendant had substantial justification for their objections, and this is a legitimate discovery dispute which does not warrant sanctions based on objecting. Defendant argues that the time requested for sanctions is excessive in light of there being zero unique case law to discuss 2 form interrogatories.

Defendant argues that sanctions should be imposed against Plaintiff for failing to meet and confer in good faith. Defendant cites to § 2023.010(i) which states, “Misuses of the discovery process include, but are not limited to, the following: Failing to confer in person, by telephone, or by letter with an opposing party or attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery, if the section governing a particular discovery motion requires the filing of a declaration stating facts showing that an attempt at informal resolution has been made.” (Ibid.)

Defendant also cites to § 2023.020 which states, “Notwithstanding the outcome of the particular discovery motion, the court shall impose a monetary sanction ordering that any party or attorney who fails to confer as required pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.”(Ibid.)

Defendant requests sanctions in the amount of $2,115.50, jointly and severally, against Plaintiff’s counsel.

The Court will hear from counsel.