Judge Audra Mori, Case 20STCV28221 2022-10-25 Tentative Ruling

Plaintiff Juan Galicia (“Plaintiff”) filed this action against Defendants DS Services of America, Inc. (“DS Services”) and Louis Pulido (collectively, “Defendants”) for damages arising from a motor vehicle accident.

Defendants filed the instant motions to compel further responses to DS Services’ form interrogatories, set one, and request for production of documents (“RPDs”), set one, on March 11, 2022. The parties participated in an Informal Discovery Conference (“IDC”) on May 10, 2022. At the conclusion of the IDC, the Court deemed the issues partially resolved.

The motions were initially set to be heard on June 6, 2022. Two court days prior to the hearing, Plaintiff filed an opposition asserting that the relevant discovery responses had been served on Defendants. Defendants then filed a reply contending that the responses remained inadequate and were not Code-compliant. This matter was last heard on September 9, 2022, where the hearing was continued, and the parties were ordered to file a joint statement of items in dispute two weeks prior to the hearing date.

On October 11, 2022, Defendants filed a statement regarding their motions to compel further responses to form interrogatories and RPDs. Defendants provide that all items identified in their motions are still in dispute, and that Plaintiff has still not produced complete responses to the discovery requests. Defendants further assert that Plaintiff waived all objections to the requests, but Plaintiff improperly maintains that he has not waived any privilege or work-product protections. Defendants attest that defense counsel emailed Plaintiff’s counsel a copy of the statement, but Plaintiff did not provide any input. As of October 20, 2022, Plaintiff has not filed anything further relating to the motions to compel further.

On receipt of a response to interrogatories the demanding party may move for an order compelling further responses if:

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

A party may move for an order compelling a further response to a request for production of documents if:

(2) A representation of inability to comply is inadequate, incomplete, or evasive.

“Unless otherwise limited by order of the court in accordance with [the discovery statutes], 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. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action....” (See Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1012-13.) “For discovery purposes, information is relevant if it ‘might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement....’ [Citation.] Admissibility is not the test and information unless privileged, is discoverable if it might reasonably lead to admissible evidence. [Citation.] These rules are applied liberally in favor of discovery [citation], and (contrary to popular belief), fishing expeditions are permissible in some cases.” (Id. at 1013.)

Defendants’ evidence submitted with the motions shows that DS Services served its form interrogatories, set one, and RPDs, set one, on Plaintiff electronically on September 11, 2021, making responses due on or before October 13, 2021. Plaintiff then did not serve responses until October 29, 2021, without requesting an extension of time to respond.

Defendants aver that Plaintiff continues to argue that certain materials and responsive information are protected by the attorney-client privilege and work-product doctrine, and so Plaintiff has not produced all responsive information.

Because Plaintiff failed to serve timely responses to the form interrogatories and RPDs, Plaintiff waived all objections to the discovery, including those based on privilege or the protection of attorney work product. (CCP §§ 2030.290(a), 2031.300(a) [The party to whom the requests are “directed waives any objection…, including one based on privilege or on the protection for work product.”]; see Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403-04.) Moreover, it is the burden of the objecting party to support the applicability of a particular privilege or objection. (See Denari v. Superior Court (1989) 215 Cal.App.3d 1488, 1494-95; see also Williams v. Sup. Ct. (2017) 3 Cal.5th 531, 552 [“The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious.”].) Plaintiff did not file an opposition addressing his position regarding the waived objections, and he did not participate in drafting a joint statement. Thus, Plaintiff does not establish the appropriateness of any objections asserted in the responses.

The objections asserted by Plaintiff, therefore, are improper. The Court will further address the specific discovery requests at issue below.

Defendants move to compel further responses to form interrogatories, set one, Nos. 6.7, 10.1, 10.2, 11.1, 11.2, 12.4, 20.9, and 20.10.

Form interrogatory 6.7 requests information regarding any future or additional treatment for injuries Plaintiff attributes to the incident, including the complaints for which the treatment was advised and certain details concerning the treatment. In relevant part, Plaintiff responded in his most recent responses, “Spinal surgery. Plaintiff has conducted a diligent search and at this time does not have the requested information in her possession, custody and/or control.” However, as Defendants contend, because Plaintiff has a right to obtain or review his medical records, they are within his control. Plaintiff does not provide any reason as to why he has no ability to gain access to information about future or additional treatment. Plaintiff’s response to form interrogatory 6.7 is thus incomplete. Defendant’s motion is granted as to this interrogatory.

Form interrogatory 10.1 asks Plaintiff if he had complaints or injuries regarding the same body parts he is claiming injuries for as a result of the subject accident, including the contact information for the health care providers who Plaintiff saw concerning those complaints. As to form interrogatory 10.1, Plaintiff responded he previously had a lower back injury, but Plaintiff did not provide the name, address, and telephone number of the health care providers that treated Plaintiff. Plaintiff again responded he did not have the requested information in his possession. However, Plaintiff provides no reasoning as to why he cannot provide this information, as Plaintiff has control over and access to his own records. Defendant’s motion is granted as to form interrogatory 10.1.

Form interrogatory 10.2 requests that Plaintiff list all physical, mental, and emotional disabilities Plaintiff had immediately before the incident. Plaintiff responded that he did not have any such disabilities prior to the accident. Defendants argue that Plaintiff’s response contradicts his other responses stating that he previously suffered injuries to his lower back, bilateral arms, legs, and neck. However, while Defendant is correct that Plaintiff states he suffered injuries to other body parts, this interrogatory on its face is requesting information about disabilities, which may be completely distinct from any injuries, Plaintiff had prior to the accident. Defendant does not submit any evidence suggesting Plaintiff did in fact have any physical, mental, or emotional injuries prior to the accident. Plaintiff will not be required to provide a further response to form interrogatory 10.2.

Form interrogatories 11.1 and 11.2 ask if in the past ten years Plaintiff has filed an action or made a written claim for personal injuries, or whether Plaintiff has made a claim for workers’ compensation in the past ten years. They then ask for specific information about the action or claim. As to form interrogatory 11.1, Plaintiff responded, “Yes,” but Plaintiff does not identify whether it was an action or a claim. Plaintiff did not otherwise provide information regarding the action or claim, including against whom the claim was made, any case number, and who represented Plaintiff. Plaintiff stated he does not have the requested information because it has been misplaced and subsequently lost. However, as with his medical records, no reason is offered as to why Plaintiff cannot obtain this information about an action or prior written demand Plaintiff made for personal injuries. Such information would be within Plaintiff’s control.[1] Therefore, the motion is granted as to form interrogatory 11.1.

As to form interrogatory 11.2, Defendant contends that Plaintiff failed to provide a description or information as to how the injury took place. However, on its face, form interrogatory 11.2 does not request a description or information regarding how the injury took place or occurred. Plaintiff answered each subpart of form interrogatory 11.2; there is no showing the response was evasive or incomplete. The motion is denied as form interrogatory 11.2.

Form interrogatory 12.4 asks if Plaintiff or anyone on his behalf has photos, films, or videotapes regarding the accident. In response, Plaintiff responded that he does not have the requested information in his possession, custody, or control. This response is incomplete. Plaintiff does not directly answer the interrogatory and indicate whether Plaintiff or anyone acting on his behalf has such materials. Plaintiff must respond to the interrogatory and provide the relevant information if such materials request. The motion is granted as to form interrogatory 12.4.

Form interrogatories 20.9 and 20.10 ask Plaintiff if he has information that a malfunction or defect in a vehicle caused the accident or that a defect in a vehicle contributed to the injuries sustained in the accident. Plaintiff again responded that he does not have the requested information in his possession, custody, or control. These responses do not squarely answer the questions asked. Defendant’s motion is granted as to form interrogatories 20.9 and 20.10.

Defendant’s motion to compel further responses to form interrogatories, set one, is granted in part. Plaintiff is ordered to serve further responses to form interrogatories Nos. 6.7, 10.1, 11.1, 12.4, 20.9, and 20.10, without objections, within twenty days.

As to RPDs 1-5, 10, 17-18, 25-26, and 29-30, Plaintiff responded to each document request that “Plaintiff has conducted a diligent search and will comply with this demand and produce responsive documents in his possession and control.” Regarding a statement of compliance, CCP § 2031.220 provides:

A statement that the party to whom a demand for inspection, copying, testing, or sampling has been directed will comply with the particular demand shall state that the production, inspection, copying, testing, or sampling, and related activity 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.

While Plaintiff responds to these RPDs by stating that he will comply with the demands, Plaintiff fails to indicate whether he will comply in whole or in part, and that all documents in Plaintiff’s possession, custody, or control will be included in the production. Moreover, as analyzed above, Plaintiff has waived all objections to the requests.

As to RPDs 6-9, 11-16, 19-24, and 28, Plaintiff responded in pertinent part that “Plaintiff has conducted a diligent search and is unable to comply” because the requested documents are not in Plaintiff’s possession “at this time” or they do not exist. Concerning a statement of an inability to comply with a particular demand, CCP § 2031.230 provides:

A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.

Plaintiff’s responses fail to comply with CCP § 2031.230. The responses do not affirm that a reasonable inquiry has been made. Furthermore, Plaintiff does not specify whether the inability to comply is because the requested documents never existed, have been destroyed, lost, misplaced, stolen or have never been, or are no longer, in Plaintiff’s custody, control or possession. Additionally, Plaintiff must set forth the name of any person or organization known or believed to have custody, control, or possession of the documents. To the extent that Plaintiff does have control over the documents, as with his medical records to which Plaintiff has a right to obtain, Plaintiff must produce the requested documents.

Accordingly, Defendant’s motion to compel further responses to RPDs, set one, is granted. Plaintiff is ordered to serve further responses to RPDs Nos. 1-28 and 29-30, without objections, within twenty days.

Sanctions are mandatory. (CCP §§ 2030.300(d), 2031.310(h).) Defendant is awarded three hours for preparing each motion- six hours total- all at the rate of $200 per hour for a total of $1,200 in attorney fees. Sanctions are sought and imposed against Plaintiff. Plaintiff is ordered to pay sanctions to Defendants, by and through Defendant’s attorney of record, in the total amount of $1,200.00, within thirty days.

Hon. Audra Mori

Judge of the Superior Court

[1] Defendant argues that Plaintiff has previously indicated it was a lawsuit, which would involve legal records.