Judge Gary I. Micon, Case Number: 23CHCV03025, Date: 2024-04-22 Tentative Ruling

Judge: Gary I. Micon, Case: 23CHCV03025, Date: 2024-04-22 Tentative Ruling

Case Number: 23CHCV03025 Hearing Date: April 22, 2024 Dept: F43

Dept. F43

Date: 4-22-24

Case #23CHCV03025, Susie Villegas vs. Rattler’s Bar B Que 1, Inc.

Trial Date: N/A

MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES

MOVING PARTY: Plaintiff Susie Villegas

RESPONDING PARTY: Defendant Rattler’s Bar B Que 1, Inc.

RELIEF REQUESTED

Defendant’s further responses to certain discovery responses, as well as sanctions

RULING: Motion is denied, but sanctions are awarded to Plaintiff in the amount of $500

SUMMARY OF ACTION

On November 7, 2023, Plaintiff Susie Villegas (Plaintiff) served Defendant Rattler’s Bar B Que 1, Inc. (Defendant) with Plaintiff’s Form Interrogatories, Set One. After Plaintiff gave Defendant a couple of extensions to respond to the Form Interrogatories, Defendant served its responses on January 24, 2024.

Thereafter, Plaintiff determined that some of Defendant’s responses were not code-compliant. Plaintiff’s counsel sent a meet and confer letter to Defendant’s counsel on February 20, 2024, requesting further responses to Form Interrogatories Nos. 3.7, 4.1, 12.1, 12.4, and 15.1. The parties agreed to allow Defendant to have until March 1 to respond if Defendant agreed to extend Plaintiff’s deadline for filing a motion to compel to March 20. On March 1, 2024, Defendant served further responses to the Form Interrogatories. Plaintiff still found Defendant’s responses to Form Interrogatories Nos. 12.1, 12.4, and 15.1 to be deficient.

After Plaintiff asked if Defendant would be providing any further responses to these three interrogatories, Defense counsel responded on March 11 by saying that no further responses would be provided for 12.1 and 12.4, but Defendant would provide further response for 15.1. Defendant provided a further response to 15.1 on March 13, but it was not to Plaintiff’s satisfaction.

Plaintiff filed this motion to compel further responses on March 18, 2024. On April 5, 2024, Defendant filed its opposition. In Defendant’s opposition, Defendant indicated that it had provided further responses to the three interrogatories on March 21, 2024. Defendant argues that this moots Plaintiff’s motion and that the further responses were sufficient to answer the interrogatories. Defendant also argues that Plaintiff’s motion does not cite any authority for the central points of her motion. Finally, Defendant argues that its employees have a constitutional right to privacy in their personal contact information.

In Plaintiff’s reply, Plaintiff indicates that Defendant’s response to Form Interrogatory No. 15.1 is sufficient, but Plaintiff still seeks further responses to 12.1 and 12.4. Plaintiff argues that her interest in obtaining the employee’s contact information is greater than their privacy interests.

The following are the remaining Form Interrogatories at issue and Defendant’s most recent responses:

Form Interrogatory No. 12.1:

State the name, ADDRESS, and telephone number of each individual:

(a) who witnessed the INCIDENT or the events occurring immediately before or after the INCIDENT;

(b) who made any statement at the scene of the INCIDENT;

(d) who YOU OR ANYONE ACTING ON YOUR BEHALF claim has knowledge of the INCIDENT (except for expert witnesses covered by Code of Civil Procedure § 2034).

Defendant’s Further Response to Form Interrogatory No. 12.1:

(a) Plaintiff; witness, Rattler’s team members, Nathalie Lozoya and Kenneth Hill, who may be contacted through counsel for responding party;

(b) Plaintiff; Rattler’s team member, Nathalie Lozoya; Rattler’s manager, Erika Diego, who may be contacted through counsel for responding party

(c) Rattler’s team member, Nathalie Lozoya; Rattler’s manager, Erika Diego, who may be contacted through counsel for responding party;

(d) Responding party’s employee, People and Culture Manager, Lindsey Ritenour, who may be contacted through responding party.

Form Interrogatory No. 12.4:

Do YOU OR ANYONE ACTING ON YOUR BEHALF know of any photographs, films, or videotapes depicting any place, object, or individual concerning the INCIDENT or plaintiffs injuries? If so, state:

(a) the number of photographs or feel of film or videotape;

(b) the places, objects, or persons photographed, filmed, or videotaped;

(d) the name, ADDRESS, and telephone number of the individual taking the photographs, films, or videotapes; and

(e) the name, ADDRESS, and telephone number of each PERSON who has the original or a copy of the photographs, films, or videotapes.

Defendant’s Further Response to Form Interrogatory No. 12.4:

Responding party objects to this interrogatory to the extent it calls for information or writings protected from disclosure by the attorney-client privilege and the attorney work product doctrine which may include information obtained or writings prepared for, or in anticipation of, litigation concerning the incident, or which may be withheld for impeachment. Without waiving its objections, and subject thereto, responding party has made a diligent effort and a reasonable inquiry in an effort to respond to this interrogatory, and states:

(a) Eight photographs; no cameras were operating, thus, no video exists;

(b) The subject metal strip on ground wherein plaintiff alleges she fell;

(d) Responding party’s General Manager for the subject restaurant, Javier Arambula, who may be contacted through counsel for responding party;

(e) Responding party.

(a) One photograph;

(b) The subject metal strip on ground wherein plaintiff alleges she fell;

(d) Unknown as it was marked as Exhibit 1 in plaintiff’s Special Interrogatories;

(e) Plaintiff and responding party.

Plaintiff’s issue with the further responses is that they do not contain the employees’ contact information. Plaintiff argues that this information is necessary in case the employee witnesses no longer work for Defendant in the future.

Plaintiff also seeks sanctions in the amount of $3,060.00 against Defendant and Defendant’s counsel of record for abuse of the discovery process.

ANALYSIS

Form Interrogatories

To compel a further response to interrogatories, the movant can show that: (1) the responding party’s answer to a particular interrogatory is evasive or incomplete (CCP § 2030.300(a)(1)); (2) the responding party’s exercise of the option to produce documents in response to an interrogatory was unwarranted or the required specification of those documents was inadequate (CCP § 2030.300(a)(2)); and (3) the responding party’s objection to an interrogatory is without merit or too general (CCP § 2030.300(a)(3); see, e.g., Williams v. Superior Court (2017) 3 Cal.5th 531, 550 (Williams) [defendant’s argument that plaintiff was required to establish good cause or prove merits of underlying claim before propounding interrogatories without merit]).

Plaintiff argues that Defendant’s responses to Form Interrogatories Nos. 12.1 and 12.4 are not as complete and straightforward as possible because Defendant did not include the addresses and phone numbers for all the witnesses listed.

Defendant argues in responses that the personnel records of employees are protected by the constitutional right of privacy. (See Hill v. NCAA (1994) 7 Cal.4th 1, 16.) However, the right to privacy is not absolute, and may be outweighed by the legitimate interests of another party to a lawsuit. (Heda v. Superior Court (1990) 225 Cal.App.3d 525, 527.) Whether the employee contact information is discoverable hinges on whether the request for it is “reasonably calculated to lead to the discovery of admissible evidence.” (Williams, 3 Cal.5th at 542.)

It is worth noting that Rule 4.2 of the Rules of the State Bar of California prohibits communications between a lawyer and the current employee of the opposing corporation if the communication is about any act or omission of the person in connection with the matter which may be binding upon or imputed to the corporation for purposes of civil liability. (Prof. Conduct, Rule 4.2(b)(2).)

In this case, Defendant indicated that while the employees in question are employed by it, it will take care of producing any current employee for deposition, or it will provide Plaintiff with the former employee’s last known contact information if the employee no longer works for Defendant.

The Court agrees that this is the proper approach. Direct communication about the subject case between an opposing lawyer and the current employee of a defendant corporation is prohibited by Rule 4.2. It is not necessary, at this time, for Plaintiff to obtain the contact information of Defendant’s employees.

Plaintiff’s motion is denied for these two interrogatories.

Sanctions

CCP § 2023.030 authorizes the Court to issue sanctions against a party engaging in conduct that is a misuse of the discovery process. Failure to respond to discovery, evasive responses, and objections lacking substantial justification are “misuses of the discovery process.” (CCP § 2023.010, subd. (d)-(f).)

Plaintiff has requested sanctions in the amount of $3,060.00 against Defendant and Defendant’s counsel of record for having to bring this motion. The amount was based on Plaintiff’s counsel spending an anticipated 12 hours on the motion at $250.00, as well as the $60.00 filing fee. (Martinez Decl., ¶¶ 20-22.)

Defendant argues in its opposition that it should be able to obtain sanctions from Plaintiff on the basis that Plaintiff’s motion is baseless and constitutes an abuse of the discovery process within the meaning of CCP § 2023.010(h). Defendant has requested sanctions in the amount of $2,737.00 against Plaintiff’s counsel. The amount was based on Plaintiff’s counsel spending 11.9 hours at $230 an hour. (Sawyer Decl., ¶ 10.)

While Plaintiff was justified in bringing this motion because Defendant served further responses after Plaintiff filed the motion, the Court ultimately denied the motion for the remaining interrogatories. Therefore, the Court will award sanctions to Plaintiff for having to bring this motion, but at the reduced amount of $500.

Plaintiff’s request for sanctions against Defendant and Defendant’s counsel of record is granted in the reduced amount of $500.

ORDER

1. Plaintiff’s motion to compel further responses to form interrogatories is denied.

2. Defendant and Defendant’s counsel of record are ordered to pay sanctions in the total amount of $500.00. Defendant and Defendant’s counsel of record are ordered to pay these sanctions to Plaintiff’s counsel within twenty (20) days.