Judge Audra Mori, Case 21STCV29980 2022-08-18 Tentative Ruling

Plaintiff Esther Naghi-Eghbal (“Plaintiff”) filed this action against Defendant Century Hill Association (“Defendant”) for damages relating to Plaintiff’s alleged slip and fall on Defendant’s property.

Defendant Century Hill Association’s (“Defendant”) instant motions to compel further responses to form interrogatories, set one, and request for production of documents (“RPDs”), set one, against Plaintiff Esther Naghi Eghbal (“Plaintiff”) were originally set for hearing on March 11, 2022. (Min. Order, March 11, 2022.) However, the hearing was continued to June 7, 2022, for the parties to participate in an Informal Discovery Conference (“IDC”), which the parties did on May 19, 2022. The parties appeared at the IDC, and at the conclusion of the hearing, the court deemed the issues resolved. (Min. Order, May 19, 2022.) Defendant represents that Plaintiff promised at the IDC to supplement her responses, but Plaintiff did not do so until 1:31 p.m. on June 7, 2022, right as the hearing was commencing.[1]

The June 7, 2022 hearing was then continued pursuant to Plaintiff’s request. (Min. Order, June 7, 2022.) A second IDC concerning the discovery was set for July 5, 2022, and the motions were continued to August 12, 2022. (Min. Order, June 16, 2022.) At the July 5 IDC there was no appearance or contact by Plaintiff; Plaintiff’s and defense counsel were ordered to meet and confer and file a joint statement regarding the discovery issues on August 5, 2022, in advance of the hearing on August 12, 2022. (Min. Order, July 5, 2022; Notice of Rule filed July 8, 2022.)

On August 5, 2022, Defendant filed a Statement of Issues in Dispute indicating that defense counsel made efforts to meet and confer with Plaintiff’s counsel as ordered, but Plaintiff’s counsel did not respond. The hearing was then continued to August 18, 2022. (Min. Order, Aug. 12, 2022.)

At this time, Defendant moves to compel further responses to form interrogatories, set one, Nos. 12.1 and 12.7, and to RPDs, set one, Nos. 1-13 and 15-27. Defendant avers Plaintiff’s original and supplemental discovery responses contain improper objections, and that the responses to the subject form interrogatories are evasive and incomplete. Further, Defendant asserts that Plaintiff’s responses to the RPDs are not code compliant. Plaintiff has not opposed the motions or otherwise filed any response to Defendant’s Statement of Issues.

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.)

Defendant contends that the form interrogatories and RPDs at issue contain improper objections because Plaintiff failed to serve timely responses to the discovery requests and waived any objections.

Defendant’s evidence submitted with the motions filed on February 2, 2022, shows that Defendant served form interrogatories, set one, and RPDs, set one, on Plaintiff on October 5, 2021, and that after Plaintiff requested a three-week extension, responses were due on November 29, 2021. (Mots. Exhs. A-B.) Plaintiff did not provide any responses to the discovery until after this date.[2] (Mot. Re: Form Interrogatories Exh. G; Mot. Re: RPDs Exh. K.)

Defendant’s Statement of Issues shows that Plaintiff asserted general objections to the form interrogatories and RPDs and objected to certain discovery requests. 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) [“The party to whom the interrogatories are directed waives any right to exercise the option to produce writings under Section 2030.230, as well as any objection to the interrogatories, 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.) In addition, 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 failed to appear at the July 5, 2022 IDC, did not file an opposition to either motion to compel further responses, and 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.

Defendant’s Statement of Issues shows that Plaintiff failed to provide any response to 12.1 and subpart (a) of 12.7. (Statement of Issues Exh. D.) Accordingly, Plaintiff’s responses to the form interrogatories are evasive and incomplete. (CCP § 2030.300(a)(1).)

Defendant’s motion to compel further responses to form interrogatories, set one, is granted. Plaintiff is ordered to serve further responses, without objection, to form interrogatories, set one, Nos. 12.1 and 12.7 within 20 days.

(1) A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling pursuant to paragraph (2) of subdivision (c) of Section 2031.030 and any related activities.

(2) A representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item.

(3) An objection to the particular demand for inspection, copying, testing, or sampling.

“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.” (CCP § 2031.220.) Concerning a statement of an inability to comply, CCP § 2031.230 states:

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.

Here, Plaintiff’s responses to the subject RPDs, on their face, are not code compliant.

As to RPDs 1-5, 7-11, 17-18, and 21, Plaintiff provided in her original and supplemental responses that she did not have documents in her control or possession at this time; however, the responses fail to comply with CCP § 2031.230. For example, Plaintiff does not assert in any response that a diligent search and inquiry has been made, nor does Plaintiff “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 [Plaintiff].”

As to RPD 22, Plaintiff responded, “Discovery is ongoing and plaintiff will produce these documents.” (Statement of Issues Exh. E.) The response does not comply with CCP § 2031.220, as Plaintiff does not state whether the production will be allowed in whole or in part and that all documents will be included in the production.

As to RPDs, 6, 8, 12, 13, 15-16, 19-20, and 23-27, Plaintiff’s responses fail to comply with CCP § 2031.210(a). Plaintiff does not indicate in her original or supplemental responses that she will either comply with the demand or that she lacks the inability to comply. For example, in responses to multiple requests, Plaintiff merely states that “The documents are in the possession of defendants and are best known to them as this time.” (Statement of Issues Exh. E.) In response to other RPDs, Plaintiff merely states, “N/A”, and that Plaintiff reserves the right to name additional documents. This is improper. Additionally, Plaintiff asserts objections in response to RPDs 15 and 16; however, as analyzed above, Plaintiff has waived all objections to the RPDs.

Based on the foregoing, Defendant’s motion to compel further responses to RPDs, set one, is granted. Plaintiff is ordered to serve further responses, without objection, to RPDs, set one, Nos. 1-13 and 15-27 within 20 days.

Sanctions are mandatory. (CCP §§ 2030.300(d), 2031.310(h).) The court awards Defendant two hours for preparing each motion [four hours], two hours for preparing the Statement of Issues, and one hour to appear for the hearing- but awards this time only once- at a rate of $200 per hour for a total of $1,400.00 in attorney fees. Further, the court awards Defendant two motion filing fees of $60, or $120 total, as costs.

Defendant does not identify any conduct by Plaintiff warranting sanctions against Plaintiff personally. Sanctions are imposed against Plaintiff’s counsel only. Plaintiff’s counsel is ordered to pay sanctions to Defendant, by and through Defendant’s attorney of record, in the total amount of $1,520.00, within twenty days.

As a final note, Defendant filed a second set of motions to compel further responses to the form interrogatories, set one, and RPDs, set one, on July 25, 2022. These motions concern the identical discovery issues, and Plaintiff’s deficient supplemental responses, as addressed above. Notably, Defendant provides in these later filed motions that they were being filed “out of an abundance of caution.” (Mots. Filed July 25, 2022, at p. 6:23-24.) Because Defendant’s motions are granted, the motions filed July 25, 2022 are moot. Therefore, the court takes these motions set for hearing on October 28, 2022, off calendar.

Hon. Audra Mori

Judge of the Superior Court

[1] The hearing on Defendant’s motions to compel further responses to form interrogatories and RPDs was set for June 7, 2022, at 1:30 p.m.

[2] On December 17, 2020, and December 20, 2020, respectively, Plaintiff emailed responses to the form interrogatories and RPDs with a proof of service alleging that responses were provided on December 13, 2020.