Judge: David B. Gelfound, Case: 22STCV23442, Date: 2024-03-11 Tentative Ruling

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Case Number: 22STCV23442    Hearing Date: March 14, 2024    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

MOTION TO COMPEL DEFENDANT PLAYCORE WISCONSIN INC.’S FURTHER RESPONSES TO PLAINTIFF’S SPECIAL INTERROGATORIES, SET ONE, AND REQUEST FOR SANCTIONS

Motion filed: 9/27/23

MOVING PARTY: Plaintiff Krystal Shin, by and through her parent and guardian ad litem (“GAL”) You Sun Jang (“Plaintiff”)

RESPONDING PARTY: Defendant PlayCore Wisconsin Inc. (“Defendant” or “PlayCore”) 

NOTICE: ok 

RELIEF REQUESTED: An order from this Court compelling Defendant PlayCore to produce further responses to Plaintiff’s Special Interrogatories, Set One, Nos. 1, 3, 4, 6, 7, 8, 9, 10, 11, 12, 13, 16, 17, 21, 30, 31, 32, 33, 34, and 35 without objection within 10 days, and imposing monetary sanctions in the amount of $4,400.00 against PlayCore and its counsel jointly and severally.

TENTATIVE RULING: The motion is GRANTED IN PART. The monetary sanction is DENIED.

BACKGROUND

This action arises from injuries sustained by a 5-year-old Plaintiff on February 20, 2022, allegedly caused by the playground equipment located at a Los Angeles City Community Park, 11075 Foothill Boulevard in Lake View Terrace, California 91432 (the “Park”).

On July 20, 2022, Plaintiff initiated the present action against Defendants City of Los Angeles, and Does 1 through 20. The Complaint alleges the following causes of action: (1) dangerous condition of public property, (2) negligence, and (3) strict liability.

On September 16, 2022, Defendant City of Los Angeles filed its Cross-Complaint against Roes 1 to 20 for (1) apportionment of fault, (2) declaratory relief, and (3) indemnification.

On February 8, 2023, Plaintiff filed her Amendment to Complaint, substituting Defendant PlayCore for Doe 1.

On February 16, 2022, Defendant City of Los Angeles filed its Answer.

            On March 13, 2023, Defendant PlayCore filed its Answer to the Complaint.

            On September 27, 2023, Plaintiff filed the instant Motion to compel Defendant PlayCore to provide further responses to Plaintiff’s Special Interrogatories, Set One. Subsequently, PlayCore filed its Opposition on March 1, 2024, and Plaintiff replied on March 5, 2024.

            On November 28, 2023, Plaintiff filed another Amendment to Complaint, substituting Defendant Evergreen Environment Inc. (“Evergreen”) for Doe 2.

ANALYSIS

“A propounding party may move for an order compelling further response [to interrogatories] if the propounding party deems … (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 the interrogatory is without merit or too general.” (Code Civ. Proc., § 2030.300 (a).)

“Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits.” (Code Civ. Proc., § 2030.220, subd. (a).)

“The court shall impose a monetary sanction … 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.” (Code Civ. Proc., § 2030.300 (d).)

A.    All Procedural Requirements Are Met

1.)    45-Day Rule

“Unless notice of this motion [to compel further responses to interrogatories] 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.” (Code Civ. Proc., § 2030.300, subd. (c).)

Plaintiff filed and served this Motion on September 27, 2023, within 45 days of receiving Defendant PlayCore’s supplemental responses to the Special Interrogatories, Set One, on September 15, 2023. (See 9/27/23 Nazdjanova Decl., ¶ 12, 9/27/23 Proof of Service.)

2.)    Meet and Confer

A motion to compel further responses to interrogatories must be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2030.300, subd. (b)(1).)

            Plaintiff met and conferred with Defendant PlayCore on multiple occasions before filing the instant Motion. This includes a meet and confer letter dated August 7, 2023, which outlines the deficiencies in PlayCore’s initial response, and a second meet and confer letter dated September 19, 2023, seeking to resolve the discovery dispute and requesting supplemental responses. (9/27/23 Nazdjanova Decl., ¶¶ 6, 13.)

            Therefore, the meet and confer requirements per Code of Civil Procedure section 2030.300 subdivision (b)(1) are satisfied.

3.)    Separate Statement

A motion to compel further responses to interrogatories must be accompanied by a separate statement. (Cal. Rules of Court, rule 3.1345(a)(2).) “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.” (Cal. Rules of Court, rule 3.1345(c).)

Plaintiff has met the above requirement by filing a separate statement explaining the interrogatories at issue, Defendant PlayCore’s responses, and why further responses to the interrogatories are necessary.

B.     Defendant PlayCore’s Supplemental Responses

The Court observes that PlayCore’s supplemental responses, dated September 15, 2023, consist of the same generic, boilerplate answers to all Special Interrogatories at issue. Specifically, each supplemental response states,

“Objections: Responding party asserts all general and specific objections previously asserted all off prior discovery; further objects on the grounds that the propounding party refused a request for a time extension of time to respond to the instant discovery based on the full disclosure to opposing counsel of the unavailable of responding party to review and verify' said responses and that responding party's attorneys are engaged to commence a multi-party trial with a month-long trial estimate. In the spirit of discovery and cooperation, Propounding Party was given a lengthy extension to file any motion to compel, if necessary, if the discovery matter could not be resolved informally. Propounding party, therefore, is acting bad faith and non-compliance with local court guidelines for civility in litigation. Additionally, Propounding party's counsel served a Notice of Unavailability which opposing counsel expects to be honored.”

Plaintiff correctly points out that “propounding party refused a request for a time extension of time to respond ... and that responding party’s attorneys are engaged to commence a multi-party trial with a month-long trial estimate” does not warranty a failure to provide code-compliant responses. A review of the records indicates that Plaintiff’s counsel had granted a 30-day extension for the time to respond, around the end of June 2023 (9/27/23 Nazdjanov Decl., ¶ 4), and later granted an additional three-week extension on September 5, 2023. (Id., ¶ 9.) Consequently, although the Court agrees that parties should make efforts to resolve discovery issues, including scheduling and availability, the Court determines that Plaintiff is not obligated to grant any additional time extensions and did not act in bad faith in refusing the request from Defendant.

Since PlayCore’s supplemental responses did not provide material answers beyond the boilerplate objection. The Court now proceeds to review the answers and objections provided in its initial response dated August 4, 2023. (9/27/23 Nazdjanova Decl., Ex. “B.”)

C.    Plaintiff Sufficiently Demonstrate Defendant PlayCore’s Further Responses are Warranted as to Nos. 1, 7, 8, 9, 10, 12, 13, 16, 17, 21, 30, and 31.

1.)    Special Interrogatories Nos. 1, 12, 13, 30, and 31

Special Interrogatory No. 1 states, “Please IDENTIFY each PERSON who designed the SUBJECT PRODUCT.” PlayCore’s response is “GameTime.” Furthermore, PlayCore acknowledged that “[it] is able to supplement its response to identify the employees, one whom is deceased. Aside from the aforementioned information.” (Def.’ Separate Statement, at 3.)

Special Interrogatory No. 12 states, “Please IDENTIFY each PERSON who installed the SUBJECT PRODUCT at the PARK.” PlayCore’s response is “An authorized installer installed the tractor climber. Discovery and investigation are continuing.”

Special Interrogatory No. 13 states, “Please describe the nature of relationships between YOU and each PERSON who installed the SUBJECT PRODUCT at the PARK.” PlayCore responds, “An authorized installer installed the tractor climber. Discovery and investigation are continuing.”

Special Interrogatory No. 30 states, in part, “please IDENTIFY each PERSON who was responsible for assuring that the design of the SUBJECT PRODUCT conformed with the prevailing design and safety standards.” PlayCore’s response is “The tractor climber is designed to meet ASTM F1487-21 and CPSC by GameTime.”

Special Interrogatory No. 31 states, in part, “please IDENTIFY each PERSON who was responsible for the SUBJECT PRODUCT's conformance with prevailing design and safety standards.” In its response, PlayCore states, “The tractor climber is designed to meet ASTM F1487-21 (Playground Equipment for Public Use Standard) and CPSC by GameTime.”

Plaintiff correctly points out that PlayCore’s responses to the above-listed interrogatories are evasive and incomplete, as the definition of the “IDENTIFY” for the above-listed interrogatories explicitly requires the responding party to state the name, address, and legal status of the PERSON, rendering PlayCore’s answers either irrelevant or incomplete. Consequently, further responses to the above-listed interrogatories are warranted.

2.)    Special Interrogatory No. 21

Special Interrogatory No. 21 states, in part, “please IDENTIFY all DOCUMENTS relating to the design change made.” PlayCore responds, “Discovery and investigation are continuing.”

Code of Civil Procedure section 2030.220 subdivision (b) provides, “if an interrogatory cannot be answered completely, it shall be answered to the extent possible.”

Here, a response of “discovery is continuing” without further elaboration is effectively equivalent to no response at all. Moreover, PlayCore has acknowledged in its responses to Special Interrogatory No. 18 that there was a design change in the subject product. (Def.’ Separate Statement, at 19.) Furthermore, PlayCore has indicated that “[it] will provide the information sought.” (Def.’ Separate Statement, at 19.) 

Based on this, the Court agrees with Plaintiff that PlayCore’s initial response is incomplete and evasive, necessitating supplemental responses.

3.)    Special Interrogatory Nos. 7, 8

Special Interrogatory No. 7 states, “Please IDENTIFY each DOCUMENT that includes the procedures relating to the manufacture of the SUBJECT PRODUCT.” PlayCore responded, “The tractor climber is designed and manufactured to meet ASTM F1487-21 (Playground Equipment for Public Use Standard) and CPSC. Discovery and investigation are continuing.”

Special Interrogatory No. 8 states, “Please IDENTIFY each DOCUMENT relating to the production specifications YOU used in the manufacture of the SUBJECT PRODUCT.” PlayCore’s response is “The tractor climber is designed and manufactured to meet ASTM F1487-21 (Playground Equipment for Public Use Standard) and CPSC.”

For Nos. 7 and 8, PlayCore’s responses are evasive and incomplete, as it has admitted to designing and manufacturing the subject product. (9/27/23 Nazdjanova Decl., Ex. “B,” at 4, 5.) By contrast, ASTM represents an industrial standard and is not typically regarded as covering a manufacturer’s proprietary internal procedures, where, as here, PlayCore has not specified whether ASTM F1487-21 incorporates or references any design and manufacturing practices it relies upon.

Consequently, PlayCore’s response referring to an industrial standard without identifying documents, as defined in the interrogatories, is evasive and incomplete. 

4.)    Special Interrogatory Nos. 9, 10

Special Interrogatory No. 9 states, “Please describe each test YOU performed to determine whether the SUBJECT PRODUCT was safe for its intended uses.” PlayCore responds, “The tractor climber is tested to meet ASTM F1487-21 (Playground Equipment for Public Use Standard) and CPSC.”

Special Interrogatory No. 10 states, “Please IDENTIFY each DOCUMENT that reflects all tests YOU performed to determine whether the SUBJECT PRODUCT was safe for its intended uses.” PlayCore’s response is “The tractor climber is tested to meet ASTM F1487-21 (Playground Equipment for Public Use Standard) and CPSC. Discovery and investigation are continuing.”

For Nos, 9 and 10, Plaintiff argues that “[ASTM F1487-21] is specifications for Consumer Safety and Performance. It only sets standards and manufacturer has to develop its own tests to ensure that its product is compliant with those standards.” (Reply, at 6.)

In its Opposition, PlayCore claims that “[t]hese industry group develop comprehensive guidelines, test methods, specifications, and performance requirements for manufacturers[.]” (Opp’n., at 4.) (Underlines added.) However, PlayCore’s answer falls short of identifying any specific documents or explicitly acknowledging that ASTM F1487-21 is a responsive document. Its evasive statement that “[the subject product] is tested to meet ASTM,” however, fails to provide a complete and straightforward answer regarding the specific tests conducted. Additionally, while PlayCore admits that it relies on ASTM F1487-21 for safety codes and protocols, rather than test methods (Ibid), this admission renders its response irrelevant to the interrogatory asking about tests.

Consequently, the Court finds PlayCore’s answers to Nos. 9 and 10 incomplete and invasive, necessitating further responses.

5.)    Special Interrogatories Nos. 16, 17

Special Interrogatory No. 16 states, “Please IDENTIFY each DOCUMENT which indicates that the SUBJECT PRODUCT was installed at the PARK in accordance with the assembly instructions of the SUBJECT PRODUCT.” PlayCore’s response states, “Installation instructions were provided. Discovery and investigation are continuing.”

Here, Plaintiff correctly points out that installation instruction does not demonstrate compliance as is requested in this specific interrogatory, a point with which the Court agrees.

Special Interrogatory No. 17 states, “Please IDENTIFY each DOCUMENT that reflects protocols for tests YOU followed to determine whether the SUBJECT PRODUCT was installed at the PARK in accordance with YOUR specifications.” PlayCore responds, “Discovery and investigation are continuing. See also document marked as Attachment F and produced by defendant City of Los Angeles showing that on August 6, 2019, an inspection was completed and certified as meeting the current CPSC, ASTM and Title 24 codes.”

            The responding party is responsible for identifying any relevant documents in its possession, custody, or control. Here, PlayCore fails to fulfill this responsibility by referencing documents produced by another party without specifying whether these documents are outside its possession, custody, or control, which cannot be reasonably presumed as circumstances, in this case, suggest the contrary. Therefore, PlayCore’s response to No. 17 should be found evasive and incomplete. 

            Therefore, the Court GRANTS the Motion to Compel Further Responses to Special Interrogatories Nos. 1, 7, 8, 9, 10, 12, 13, 16, 17, 21, 30, and 31.     

D.     Plaintiff Has Not Sufficiently Demonstrated PlayCore’s Further Responses are Warranted as to Nos. 3, 4, 6, 11, 32, 33, 34, and 35.

1.)    Special Interrogatories Nos. 3, 4, 6, and 11

Special Interrogatory No. 3 states, “Please describe all protocols intended to ensure that the design of the SUBJECT PRODUCT comported in all respects with such applicable statutes, ordinances, or regulations.” PlayCore’s responses is “The tractor climber is designed to meet ASTM F1487-21 (Playground Equipment for Public Use Standard) and CPSC.”

Special Interrogatory No. 4 states, “Please IDENTIFY each DOCUMENT that includes all protocols intended to ensure that the design of the SUBJECT PRODUCT compelled in all respects with such applicable statutes, ordinances, or regulations.” In response, PlayCore stated, “The tractor climber is designed to meet ASTM F1487-21 (Playground Equipment for Public Use Standard) and CPSC.” (Def.’s Separate Statement, at 5.)

Special Interrogatory No. 6 states, “Please describe quality control procedures relating to the manufacture of the SUBJECT PRODUCT.” PlayCore responded, “The tractor climber is designed and manufactured to meet ASTM F1487-21 (Playground Equipment for Public Use Standard) and CPSC. Discovery and investigation are continuing.” (Def.’s Separate Statement, at 7.)

Special Interrogatory No. 11 states, “Please IDENTIFY each DOCUMENT that reflects protocols for tests to determine whether the SUBJECT PRODUCT was safe for its intended uses.” PlayCore responds, “The tractor climber is tested to meet ASTM F1487-21 (Playground Equipment for Public Use Standard) and CPSC. Discovery and investigation are continuing.”

For Nos. 3, 4, 6, and 11, Plaintiff contends that Defendant’s mere reference to an ASTM standard does not constitute a proper response, arguing that ASTM F1487-21 does not contain specific protocols or quality control procedures (Reply, at 5); thus requiring PlayCore to identify and describe each protocol that it used [other than the ASTM.]” (Def.’s Separate Statement, at 4.)

Importantly, PlayCore contends that “[it] does not produce its own safety protocols, [relying instead on] controlling standards generally by independent organizations.” (Opp’n, at 4.) It claims to have fulfilled its discovery duties by “referring Plaintiff to the independent standards” (Ibid), and argues that “standards and protocols [] are not in Defendant’s specific possession, custody, or control [as they are] publicly available information from independent third-party organizations[.]” (Id., at 2.)

The Court notes PlayCore’s reference to the specific ASTM F1487-21 within which it claims its protocols and procedures are included. The Court agrees that if the standards, protocols, and quality control procedures are indeed referenced in the ASTM F1487-21 and are publicly accessible, PlayCore is not required to identify every document separately. Specifically, the issue here concerns PlayCore's compliance with the standards rather than the contents of the standards or protocols within ASTM itself. Therefore, PlayCore’s citation of publicly available standards and protocols would be deemed sufficient.

The Court further observes that, unlike the other terms in Special Interrogatories, Set One, Plaintiff, as the propounding party, does not define the terms “protocol” or “procedure.” Consequently, without a clear definition to distinguish between ASTM, CPSC, and the specific protocols and procedures sought by Plaintiff, this dispute cannot be effectively resolved.

Accordingly, the Court concludes that Plaintiff has not convincingly demonstrated that PlayCore’s responses referring to the specific ASTM standards necessitate further responses. Plaintiff is directed to provide definitions of the terms “protocol” and “procedure” or to clearly distinguish their scope in relation to the content of ASTM standards.

2.) Special Interrogatories Nos. 32, 33, 34, and 35

Special Interrogatory No. 32, states, “Please describe each act YOU undertook to reduce the risk of injury associated with the SUBJECT PRODUCT.” PlayCore responds, “The tractor climber

is designed to meet ASTM F1487-21 (Playground Equipment for Public Use Standard) and

CPSC by GameTime.”

            Special Interrogatory No. 33 states, “As to each act YOU undertook to reduce the risk of injury associated with the SUBJECT PRODUCT, please set forth the date that such activity was undertaken.” In response, PlayCore states, “The tractor climber is designed to meet ASTM F1487-21 (Playground Equipment for Public Use Standard) and CPSC by GameTime.”

Special Interrogatory No. 34, states, “As to each act YOU undertook to reduce the risk of injury associated with the SUBJECT PRODUCT, please IDENTIFY each PERSON who has knowledge of any facts relating to such act.” PlayCore responds, “The tractor climber

is designed to meet ASTM F 1487-21 (Playground Equipment for Public Use Standard) and

CPSC by GameTime.”

Special Interrogatory No. 35 states, “As to each act YOU undertook to reduce the risk of injury associated with the SUBJECT PRODUCT, please IDENTIFY each DOCUMENT relating to such activity.”

            The Court finds the above-listed interrogatories lack specificity regarding the term “risk of injury associated with the SUBJECT PRODUCT,” a term not clearly defined. Furthermore, in response to interrogatory No. 36, which asks, “whether YOU were aware of any condition of the SUBJECT PRODUCT which poses a risk of bodily injury,” PlayCore explicitly answered, “No.” (9/27/23 Nazdjanova Decl., Ex. “B,” at 13.) Considering PlayCore’s denial of any known risk of injury in its response to No. 36, with which Plaintiff has not sought further responses in the instant Motion, the Court determines that Plaintiff is not entitled to further responses for Nos. 32 and 33.

            Therefore, the Court DENIES the Motion to Compel Further Responses to Special Interrogatories Nos. 3, 4, 6, 11, 32, 33, 34, and 35.

E.     Objections Dated August 3, 2023

Defendant PlayCore advanced various objections to the Special Interrogatories, including, but not limited to, claims that the requests were “vague, ambiguous, and overbroad.” (See generally Def.’s Separate Statement)

“By objecting to the requests as a whole, without some attempt to admit or deny in part, and by making no attempt to answer with an explanation of its inability, it failed to show the “good faith” required by the statute.” (Cembrook v. Superior Court In and For City and County of San Francisco (1961) 56 Cal.2d 423, 430.)

The Court finds these interrogatories to be relevant and not overbroad. Furthermore, Defendant’s mere assertion of vagueness and ambiguity does not fulfill its burden to substantiate its objection. (See Coy v. Superior Court of Contra Costa County (1962) 58 Cal.2d 210, 220-221; Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.)

However, as previously discussed, Defendant’s references to ASTM standards and the ensuing Plaintiff’s dispute over their adequacy highlight the necessity for Plaintiff to amend Nos. 3, 4, 6, and 11 to clearly distinguish the protocols and procedures sought by the interrogatories from ASTM standards.

F.     Monetary Sanctions

Pursuant to Code of Civil Procedure section 2030.300, subdivision (d), the Court concludes that Defendant PlayCore and its’ counsel may be properly subjected to the monetary sanctions against them, jointly and severally, for unsuccessfully opposing the instant Motion.

            However, as the Court has decided to GRANT IN PART and DENY IN PART the Motion, consequently, Code of Civil Procedure section 2030.300 subdivision (d) is inapplicable.

Accordingly, the Request for Monetary Sanctions is DENIED.

CONCLUSION

Plaintiff’s Motion to Compel Defendant PlayCore’s Further Responses to Special Interrogatories, Set One, Nos. 1, 7, 8, 9, 10, 12, 13, 16, 17, 21, 30, and 31 is GRANTED.

Plaintiff’s Motion to Compel Defendant PlayCore’s Further Responses to Special Interrogatories, Set One, Nos. 3, 4, 6, 11, 32, 33, 34, and 35 is DENIED.

Plaintiff’s Request for Monetary Sanctions is DENIED

Defendant PlayCore is ordered to provide supplemental responses to Plaintiff’s Special Interrogatories, Set One, Nos. 1, 7, 8, 9, 10, 12, 13, 16, 17, 21, 30, and 31 within 15 days.

Moving party to give notice.