Judge Audra Mori, Case 22STCV17935 2022-09-16 Tentative Ruling

Plaintiff Oralee Maxwell (“Plaintiff”) filed this action against defendants Peter Meng Hok, et al. for injuries relating to Plaintiff’s alleged slip and fall in a store. The complaint alleges claims for premises liability and general negligence.

At this time, Defendants Peter Meng Hok, Shirley Nguyen, Saomony Vuthy, USA Beer and Wine Market (collectively, “Defendants”) move for a protective order reducing the number of special interrogatories that Defendants respond to and for a protective order reducing the number of requests for admissions (“RFAs”) that Defendants must respond to. Plaintiff opposes both motions, and Defendants filed a reply to each opposition. The motions, oppositions, and replies are largely identical and will be addressed together.

CCP §2030.030 limits the number of interrogatories that can be propounded to 35. CCP § 2030.040 permits a party to propound more than 35 special interrogatories with a declaration of necessity. CCP § 2030.040(a) states: Section 2030.050 may propound a greater number of specially prepared interrogatories to another party if this greater number is warranted because of any of the following:

(1) The complexity or the quantity of the existing and potential issues in the particular case.

(2) The financial burden on a party entailed in conducting the discovery by oral deposition.

(3) The expedience of using this method of discovery to provide to the responding party the opportunity to conduct an inquiry, investigation, or search of files or records to supply the information sought.

CCP § 2030.090(b)(2) permits a party receiving interrogatories in excess of 35 to move for a protective order limiting the interrogatories to 35. A motion for protective order can be used to challenge a “declaration of necessity,” which is required to justify more than 35 interrogatories (under CCP § 2030.050. (See CCP § 2030.090(b)(2).) The motion for protective order must be accompanied by a declaration showing the moving party made a “reasonable and good faith attempt” to resolve the issues outside of court. (CCP § 2030.090(a).) Where more than 35 specially prepared interrogatories have been served with a “declaration of necessity,” and the responding party seeks a protective order, the burden is on the propounding party to prove the number of questions is justified. (CCP § 2030.040(b).)

The motion for protective order effectively controverts the propounding party's “declaration of necessity” and places the burden on the propounding party to justify more than 35 questions: “If the responding party seeks a protective order on the ground that the number of specially prepared interrogatories is unwarranted, the propounding party shall have the burden of justifying the number of these interrogatories.” (CCP § 2030.040(b).) Such order may be granted on the ground “(t)hat, contrary to the representations made (in the declaration of necessity) … the number of specially prepared interrogatories is unwarranted.” (CCP § 2030.090(b)(2); see People v. Sarpas (2014) 225 Cal.App.4th 1539, 1552-53.)

(a) When requests for admission have been made, the responding party may promptly move for a protective order. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.

(b) The court, for good cause shown, may make any order that justice requires to protect any party from unwarranted annoyance, embarrassment, oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions:

(1) That the set of admission requests, or particular requests in the set, need not be answered at all.

(2) That, contrary to the representations made in a declaration submitted under Section 2033.050, the number of admission requests is unwarranted.

Here, on June 30, 2022, Plaintiff served Defendants Saomony Vuthy and USA Beer and Wine Market with special interrogatories containing 90 and 95 interrogatories, respectively. On July 8, 2022, Plaintiff then served Peter Meng Hok and Shirley Nguyen with special interrogatories containing 90 and 91 interrogatories, respectively. Similarly, Defendants assert that Plaintiff served Defendants each with identical RFAs containing 41 requests.

Defendants contend that the declarations of Plaintiff’s counsel submitted in support of the additional discovery with the special interrogatories and RFAs do not prove the excessive amount of discovery is necessary because of the complexity of the case. Defendants contend many of the interrogatories and RFAs repeat the same question, and that the remaining interrogatories were addressed by Defendants in other discovery.

In opposition, Plaintiff argues the complexity of the case and issues require discovery beyond the permissible 35 special interrogatories and RFAs, and that Plaintiff has sufficiently satisfied Plaintiff’s burden for additional discovery through Plaintiff’s counsel’s declaration attached to the discovery.

However, although Plaintiff contends he has satisfied the burden for the additional discovery through Plaintiff’s counsel’s declaration submitted with the discovery requests, the motion for protective order controverts Plaintiff’s “declaration of necessity” and places the burden on Plaintiff to justify more than 35 questions. (CCP § 2030.040(b).) Plaintiff seemingly argues that the case is complex because Plaintiff has the burden of proof of establishing notice, damages, causation, and the dangerousness of the condition through gathering evidence. The fact that Plaintiff has the burden of proof of establishing Plaintiff’s case is not itself sufficient to establish that excessive discovery is required in this case. If it were, a plaintiff in any civil action would automictically have the right to propound over 35 special interrogatories and RFAs. Plaintiff does not otherwise provide any reasoning as to why this matter concerning an alleged slip and fall is so complex as to justify more than 35 special interrogatories and RFAs. Moreover, Plaintiff did not go through the relevant discovery to show why each interrogatory and RFA, or categories of them, are necessary.

Plaintiff’s opposition does not meet Plaintiff’s burden of justifying the propounded special interrogatories and RFAs in excess of 35. Additionally, as Defendants contend, there is good cause to limit the discovery requests. On their face, numerous of the special interrogatories and RFAs appear repetitive and request duplicative information. Notably, Defendants assert this is a straightforward slip and fall case, which Plaintiff does not effectively dispute.

Defendants’ motions for a protective order reducing the number of special interrogatories and RFAs Defendant must respond to is granted. Defendants are each ordered to respond to the relevant special interrogatories and RFAs Nos. 1-35 within 20 days. Defendants are not required to respond to the remaining interrogatories and RFAs.

CCP §§ 2030.090(d) and 2033.280(d) mandate imposition of sanctions in favor of the party who prevails on this motion unless the opposing party acted with substantial justification or other circumstances render imposition of sanctions unjust.

Here, the Court finds sanctions warranted. The Court awards Defendants one hour for preparing each motion [two hours total], 0.5 hours for each reply [one hour total], and one hour for appearing at the hearing- but awards this time only once- all at the reasonable rate of $160.17, for a total attorney fees award of $640.68. Further, Defendants are awarded two $61.25 motion filing fees as costs.

Sanctions are sought against Plaintiff and Plaintiff’s attorney of record. However, Defendants do not describe any conduct by Plaintiff warranting sanctions against her directly; rather, it appears Plaintiff’s counsel’s conduct in serving the subject interrogatories necessitated the motion. Sanctions are imposed against Plaintiff’s counsel of record only. Plaintiff’s counsel is ordered to pay sanctions to Defendants, by and through its counsel, in the total amount of $763.18 within 20 days.

Hon. Audra Mori

Judge of the Superior Court