Judge Curtis A. Kin, Case 21STCV27900 2023-03-28 Tentative Ruling

Judge: Curtis A. Kin, Case: 21STCV27900, Date: 2023-03-28 Tentative Ruling

Case Number: 21STCV27900 Hearing Date: March 28, 2023 Dept: 72

MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES, SET ONE

Date: 3/28/23 (8:30 AM)

Case: Family Choice Private Duty Agency v. Easton, et al. (21STCV27900)

TENTATIVE RULING:

Defendant/cross-complainant Kamerron Easton’s Motion to Compel Further Responses to Form Interrogatories, Set One is GRANTED IN PART.

Defendant/cross-complainant Kamerron Easton moves to compel further responses from plaintiff/cross-defendant Family Choice Private Duty Agency, Inc. (“Family Choice”) to Form Interrogatories, Set One Nos. 1.1, 3.1, 3.6, 3.7, 4.1, 9.1, 9.2, 12.1-12.4, 12.7, 15.1, 16.1, 16.2, 16.3, 16.10, 50.1(a), 50.1(d), and 50.2.

As a preliminary matter, Easton contends that Family Choice’s verification is insufficient because it was based on information and belief. Easton cites no authority supporting this proposition. Arguments without any legal authority are without merit. (Kensington University v. Council for Private Postsecondary etc. Education (1997) 54 Cal.App.4th 27, 42-43.) CCP § 2030.220(c), cited by Easton, only requires a party responding to an interrogatory who does not have sufficient personal knowledge to fully respond to an interrogatory to so state but to also make a reasonable and good faith effort to obtain the requested information. The statute does not dictate the form of a verification to discovery. In any event, there is no requirement that Family Choice has personal knowledge of discovery responses as attorneys often prepare the responses. (Rifkind v. Superior Court (1994) 22 Cal.App.4th 1255, 1260, quoting Lance, Inc. v. Ginsburg (E.D.Pa.1962) 32 F.R.D. 51, 53 [stating with respect to legal contention discovery, “This is what lawyers are for”].) Because Family Choice, by and through officer Shelley Gray, signed the verification under penalty of perjury, the verification is sufficient. (Easton Decl. ¶ 3 & Ex. B.)

“[I]f a timely motion to compel has been filed, the burden is on responding party to justify any objection.” (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255, citing Coy v. Superior Court (1962) 58 Cal.2d 210, 220-21.) Family Choice served responses on January 11, 2023 and February 15, 2023 by email. (Easton Decl. ¶¶ 3, 7 & Exs. B, F.) Based on the January 11, 2023 responses, Easton had until February 28, 2023 to serve and file the instant motion. (CCP §§ 2030.300(c) [45 days from service of response], 1010.6(a)(3)(B) [two court days added with email service].) The motion was timely served on February 20, 2023 and filed on February 21, 2023. Accordingly, Family Choice has the burden to justify any objections to the subject discovery.

With respect to No. 1.1, which seeks the name, address, and telephone number of each person who assisted in the preparation of the responses to the form interrogatories, Family Choice indicated Shellydale Gray. However, Family Choice did not provide Gray’s address and telephone number. No. 1.1 also asks for the relationship of each person who assisted in the preparation of responses to Family Choice, but Family Choice did not indicate Gray’s relationship to it. A further response is required.

With respect to No. 3.1, which asks for all other names used by Family Choice during the past 10 years, Family Choice answered “No.” This answer is evasive because it does not indicate whether Family Choice used any other names in the past 10 years. If Family Choice used other names, subpart (b) of No. 3.1 requires it to state the dates each other name was used. No. 3.1(d) asks for the address of the principal place of business. Family Choice provided an address of 21151 S Western Ave, Torrance, CA 90501. Easton argues that Family Choice did not include the suite number. However, Family Choice did provide an address, as required by No. 3.1(d). For the foregoing reasons, although a further response is not required for No. 3.1(d), a further response is required for No. 3.1(b).

With respect to Nos. 3.6 and 12.4, these interrogatories were not set forth or discussed in the separate statement, as required by Rule of Court 3.1345(c). No further responses are required for Nos. 3.6 or 12.4.

With respect to No. 3.7, which asks whether any public entity has registered or licensed Family Choice, Easton argues that Family Choice did not provide an expiration date for the home care organization license issued by the Department of Social Services, as required by subpart (c). Family Choice is entitled to contend that its license has not expired, which it has done by not providing an expiration date. Easton also argues that Family Choice did not provide the months and days when it obtained the home care organization license and the business license from the City of Torrance, as purportedly required by subpart (c). However, the years provided for both licenses are sufficient. (See Merriam-Webster, https://www.merriam-webster.com/dictionary/date [defining “date” as duration].) Easton also argues that Family Choice did not identify the license issued by the City of Torrance, as required by subpart (a). However, Family Choice indicated that it obtained a business license from the City of Torrance. For the foregoing reasons, no further response is required.

With respect to No. 4.1, which seeks the name, address, and telephone number of the named insured that is covered under any insurance policy, Family Choice identified itself as the named insured. However, Family Choice did not provide its address or telephone number, as required by subpart (c). To the extent that Lloyds of London, the name of the insurance company that Family Choice provided, is incorrect, this is not a proper basis for a motion to compel further response. (See CCP § 2030.300(a).) The interrogatory asked for the name of the insurance company that covers or may cover the subject incident, and Family Choice provided this information. With respect to the address and telephone number of Family Choice Private Duty Agency, a further response is required.

With respect to No. 9.1, which seeks the nature and amount of damages that Family Choice attributes to the subject incident, “contractual damages as against the Estate” sufficiently describes the nature of the damages. For the amount of damages, however, Family Choice states “Unpaid balance.” This is insufficient, as no dollar amount is indicated. However, no explanation regarding how the amount of damages was calculated is required, as the interrogatory does not ask for such an explanation. The interrogatory also asks for the dates the damages occurred. The dates of October 2019 through February 14, 2020 provided by Family Choice are sufficient. The interrogatory also asks for the name, address, and telephone number of the person to whom an obligation was incurred. Family Choice named itself but did not provide its telephone number. A further response indicating the amount of damages and the telephone number of Family Choice is required.

With respect to No. 9.2, which seeks the name, address, and telephone number of each person who has documents supporting the existence or amount of damages, Family Choice did not provide the name, address, and telephone number of the persons who have the invoices purportedly supporting the damages. With respect to the request for description of each document supporting the existence or amount of damages, the answer of “invoices submitted to Marilyn Ashby and then to the Estate” is sufficient. Information regarding each invoice can be requested in further discovery. Easton’s concerns regarding the non-production of invoices is outside the scope of No. 9.2. With respect to the name, address, and telephone number of each person who has documents supporting the existence or amount of damages, however, a further response is required.

With respect to No. 12.1 which seeks the name, address, and telephone number of witnesses to the subject incident, Family Choice did not provide the address and telephone numbers of Ofelia de la Cerna and Nancy Uy. If Family Choice does not know the contact information of the two witnesses, then Family Choice is obligated to state in a verified response that it does not have sufficient personal knowledge to fully respond to No. 12.1, as required by CCP § 2030.220(c). With respect to Family Choice not naming cross-defendant Gray, this is not a basis to seek a further response. (See CCP § 2030.300(a).) Family Choice is entitled to assert that Gray is not a witness to the subject incident. With respect to address and telephone numbers of the two witnesses, a further response is required.

With respect to No. 12.2, which asks whether Family Choice interviewed any individual concerning the incident, Family Choice responded: “No.” This is sufficient. Easton contends that responses to special interrogatories indicate that caregivers Narcisa Uy and Ofelia de la Serna provided information relating to the responses to the special interrogatories. Nevertheless, Family Choice’s interpretation of the word “interview” may be different than Easton’s interpretation. To the extent that such difference exists, this is a topic for further discovery. No further response is required.

With respect to No. 12.3, which asks whether Family Choice or anyone acting on its behalf obtained a written or recorded statement from any individual concerning the incident, Easton moves for further responses solely based on the purportedly insufficient verification. For the reasons stated above, the verification is sufficient. Family Choice answered “no” to an interrogatory that allows for an answer of “no” without any requirement to answer any follow-up questions. No further response is required for No. 12.3.

With respect to No. 12.7, which asks for the name, address, and telephone number of the individual who Family Choice contends conducted a routine inspection of decedent Marilyn Ashby’s home for safety purposes, Family Choice did not provide this requested information. Family Choice also did not provide the date of the inspection, as requested in No. 12.7. A further response is required.

With respect to No. 15.1, which asks for the identification of facts, witnesses, and documents supporting each denial of a material allegation and each affirmative defense in Family Choice’s answer to the Cross-Complaint, Easton contends that, due to the general denial, Family Choice is required to address the Cross-Complaint paragraph by paragraph and identify each material allegation that it denies. However, No. 15.1 requires Family Choice to identify “each denial of a material allegation,” not each denial of each material allegation. There is only one general denial. A paragraph-by-paragraph denial is not required under No. 15.1.

However, with respect to the first, seventh, and eighteenth affirmative defenses, Family Choice did not answer subparts (a)-(c) of No. 15.1, which require Family Choice to identify facts, witnesses, and documents supporting the affirmative defenses. Family Choice did not provide the addresses and telephone numbers of the witnesses, as required by subpart (b). With respect to the thirteenth affirmative defense, Family Choice did not identify any supporting documents, or the lack thereof, for subpart (c). Family Choice only states that “[i]nvestigation and discovery are continuing.” For responses where Family Choice asserted that decedent signed the contract and checks, Easton’s assertion that the responses are incomplete based on his assertion that decedent would never have agreed to the contract or checks is unavailing, as Family Choice is entitled to contend that certain facts support its affirmative defenses. Easton does not directly address any other response contained within the response to No. 15.1. Accordingly, the response to No. 15.1 is otherwise sufficient. A further response is required.

With respect to Nos. 16.1, 16.2, 16.3, and 16.10, Family Choice objected without providing the requested information. Family Choice did not file any opposition to the instant motion. Family Choice thus did not meet its burden to justify its objections. Accordingly, further responses are required for Nos. 16.1, 16.2, 16.3, and 16.10.

With respect to Nos. 50.1(a) and 50.1(d), which seek the identification of the agreement and modification of the agreement alleged in the pleadings, Family Choice did not identify the name, address, and telephone number of each person who has the Agency/Client Service Agreement and any modifications thereto. Otherwise, the responses are sufficient. The interrogatories do not ask Family Choice to confirm the authenticity of the copy of the Agency/Client Service Agreement attached to the Complaint. Nor do the interrogatories ask Family Choice to confirm that it previously served the Addendum on page 3 of the Agency/Client Service Agreement on the Estate of Marilyn Ashby. Further responses are required with respect to the name, address, and telephone number of the persons who have the Agency/Client Service Agreement and any modifications thereto.

With respect to No. 50.2, which asks Family Choice to describe each breach of the agreement alleged in the pleadings and the date of every act or omission for each breach, on January 11, 2023, Family Choice described the breach as decedent Marilyn Ashby’s delay of payment. On February 15, 2023, Family Choice set forth the date of each breach. The responses in their totality are sufficient. With respect to breaches purportedly committed by Family Choice, as asserted by Easton, Family Choice is not required to comport with Easton’s view of the case in discovery. No further response is required.

The motion is GRANTED IN PART. By no later than fifteen (15) days hereof, plaintiff/cross-defendant Family Choice Private Duty Agency, Inc. shall serve further verified responses, without objection, to Form Interrogatories, Set One, No. 1.1, 3.1, 4.1, 9.1, 9.2, 12.1, 12.2, 12.7, 15.1, 16.1-16.3, 16.10, 50.1(a), and 50.1(d).

Defendant/cross-complainant Kamerron Easton’s request for sanctions is GRANTED IN PART. The Court shall impose a monetary sanction against any party that has unsuccessfully opposed a motion to compel further responses to interrogatories. (CCP § 2030.300(d).) However, even though defendant is an attorney, defendant is self-represented and accordingly cannot recover attorney’s fees as a monetary sanction for the discovery violation. (Argaman v. Ratan (1999) 73 Cal.App.4th 1173, 1180 [“If an attorney pro se litigant's time is compensated by a discovery sanction, the time of other nonattorney pro se litigants . . . should also be compensated. Clearly, there is no support for such a broad construction of the statute in case authority”].) Defendant is appearing in pro per and not as an attorney of record. Accordingly, defendant’s recovery of monetary sanctions is limited to the $61.65 in costs to file the instant motion. (Easton Decl. ¶ 9.) Such monetary sanctions shall be paid by plaintiff/cross-defendant Family Choice Private Duty Agency, Inc. within thirty (30) days hereof.