Judge Gregory Keosian, Case Number: 22STCV18984, Date: 2024-01-03 Tentative Ruling

Judge: Gregory Keosian, Case: 22STCV18984, Date: 2024-01-03 Tentative Ruling

Case Number: 22STCV18984 Hearing Date: March 18, 2024 Dept: 61

Defendant Los Angeles Magazine’s Motions to Compel Further Responses to Requests for Production and Special Interrogatories from Plaintiff Yashar Ali is GRANTED as to Requests No. 1–16 and 19–22; GRANTED as to Request No. 17, interpreting the request to seek communications between Plaintiff’s attorneys and employees/affiliates of Defendant; and GRANTED as to Requests No. 18, 23, and 24, limited in time to documents or communications created on or after January 1, 2016. The motion is GRANTED as to all interrogatories, with Interrogatories No. 21–23 limited to documents created on or after January 1, 2016, and doctors who have treated Plaintiff in the same time frame.

Sanctions are awarded against Plaintiff in the amount of $3,815.

Defendant to provide notice.

I. MOTIONS TO COMPEL FURTHER

“Any party may obtain discovery . . . by propounding to any other party to the action written interrogatories to be answered under oath.” (Code Civ. Proc., § 2030.010(a).) If a propounding party is not satisfied with the response served by a responding party, the former may move the court to compel further interrogatory responses. (Code Civ. Proc., § 2030.300; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403.) The propounding party must demonstrate that the responses were incomplete, inadequate or evasive, or that the responding party asserted objections that are either without merit or too general. (Code Civ. Proc., § 2030.300(a)(1)–(3); Sinaiko Healthcare Consulting, Inc., supra, 148 Cal.App.4th at 403.)

“A propounding party may demand a responding party to produce documents that are in their possession, custody or control. (Code Civ. Proc., § 2031.010.) A party may likewise conduct discovery by propounding interrogatories to another party to be answered under oath. (Code Civ. Proc. § 2030.010, subd. (a).) The responding party must respond to the production demand either by complying, by representing that the party lacks the ability to comply, or by objecting to the demand. (Code Civ. Proc., § 2031.210.) The responding party must respond to the interrogatories by answering or objecting. (Code Civ. Proc. § 2030.210, subd. (a).) If the responding party fails to serve timely responses, the propounding party may move for an order compelling responses to the production demand and interrogatories. (Code Civ. Proc., §§ 2030.290, 2031.300.)

Defendant Los Angeles Magazine (Defendant) moves to compel further responses to Special Interrogatories No. 1–3, 5–18, 20–40, and 43, and Requests for Production No. 1–24, from Plaintiff Yashar Ali (Plaintiff).

The requests for production seek documents related to Plaintiff’s allegations and the injuries suffered as a result of Defendant’s alleged misconduct. Plaintiff responded to Requests No. 1, 3, 4, 7, 8, 17, 18, 23, and 24 with objections only, and to Requests No. 2, 5, 6, 8, 10–16, and 19–22 with objections and identical language of nominal compliance: “Subject to and without waving the foregoing objections, Responding Party responds as follows: Responding Party will produce all non-privileged documents in his possession, custody and control responsive to this request, if any.” (Separate Statement.)

Further response is required as to all requests. The responses to Requests No. 2, 5, 6, 8, 10–16, and 19–22 are not statutorily compliant. A party must generally respond to requests for production with (1) statements of compliance, (2) statements of inability to comply, and/or (3) objections. (Code Civ. Proc. § 2031.210, subd. (a)(1)–(3).) Plaintiff’s responses to the above requests are a jumble of all three that leaves confusion as to what exactly Plaintiff is producing. Plaintiff expressly agrees to produce only non-privileged documents, and to produce them subject to objections, but does not indicate if any documents are actually being withheld, or provide any description of those documents that would allow the propounding party to assess the validity of the objections, as required by Code of Civil Procedure § 2031.240. Plaintiff also states that responsive documents will be produced, “if any,” indicating that he has not conducted or completed a search for the responsive documents in question. These statements of compliance are therefore indistinguishable from statements of inability to comply for lack of documents. (See Code Civ. Proc. § 2031.220 [statements of compliance]; 2031.230 [statements of inability to comply].)

Plaintiff’s objection-only responses are also non-compliant. Each of the requests at issue is supported by good cause, as they expressly relate to the allegations of Plaintiff’s complaint, but Plaintiff has filed no opposition supporting the objections offered. “[A]s with other objections in response to interrogatories, the party opposing discovery has an obligation to supply the basis for this determination.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 549.) Plaintiff’s objections to Requests No. 1, 3, 4, 7, and 8 are unsupported.

Plaintiff’s objections to Requests No. 17, 18, 23, and 24 are worth some consideration, however. Request No. 17 sought all communications “involving Plaintiffs attorney(s) and Peter Kiefer, Maer Roshan, or anyone else at Los Angeles Magazine” related to the article that is the subject of this lawsuit. (Separate Statement at p. 23.) Plaintiff objected on attorney-client privilege grounds, as the request plainly seeks communications with or about his attorney. (Ibid.) Defendant responds that communications involving third parties employed at Los Angeles Magazine are not privileged. (Ibid.) But it is not clear what “involving” means in the context of this request. If the request is reinterpreted in light of Defendant’s characterization — i.e. communications between Plaintiff’s attorneys and employees/affiliates of Defendant — then the request becomes less objectionable, as it ceases to concern confidential communications between Plaintiff and his attorneys. (See Evid. Code § 952.)

Requests No. 18, 23, and 24, meanwhile, propose on their face an overbroad inquiry into Plaintiff’s private health information. Request No. 18 seeks all documents and communications referring to Plaintiff’s clinical depression before the publication of the underlying article on June 9, 2021. (Separate Statement at p. 23.) Request No. 23 seeks all documents related to Plaintiff’s treatment for “clinical depression or other mental issues, including medical records and files and your notes and files,” without time limitation. (Separate Statement at p. 29.) And Request No. 24 seeks all documents related to visits to therapists or psychologists related to Plaintiff’s clinical depression or other mental issues, once again without limitation in time. (Separate Statement at p. 30.)

It is true that Plaintiff has tendered the issue of his emotional distress to some extent. (See Evid. Code § 1016 [patient-litigant exception to the psychotherapist-patient privilege].) The First Amended Complaint (FAC) alleges that after the publication of the underlying article, Plaintiff’s “ongoing clinical depression continued to deepen, and Ali suffered severe emotional distress and anguish.” (FAC ¶ 1.) And while Plaintiff’s sole remaining claim is one for breach of contract, for which emotional distress damages are “generally not recoverable,” it is unclear if Plaintiff embraces the theory that the type of contract at issue was “of such kind that serious emotional disturbance was a particularly likely result” from its breach. (Levy v. Only Cremations for Pets, Inc. (2020) 57 Cal.App.5th 203, 214.) Moreover, although Plaintiff’s objections to these requests cite their overbreadth, no specific objection based on privacy or privilege is raised.

The remedy is to limit Requests No. 18, 23, and 24 in time, in accordance with Plaintiff’s overbreadth objection. Defendant is entitled to the documents described, limited in time to those created on or after January 1, 2016, roughly five years preceding the publication of the underlying article.

In summary, the motion is GRANTED as to Requests No. 1–16 and 19–22; GRANTED as to Request No. 17, interpreting the request to seek communications between Plaintiff’s attorneys and employees/affiliates of Defendant; and GRANTED as to Requests No. 18, 23, and 24, limited in time to documents or communications created on or after January 1, 2016.

Plaintiff’s responses to Special Interrogatories, meanwhile, are largely non-compliant. Asked to provide the facts supporting certain allegations, Plaintiff supplies vague allegations that do not identify the particular wrongs he charges Defendant with committing or the damages he alleges he sustained. (See Separate Statement, Nos. 7, 16, 38.) Asked to identify supporting documents, Plaintiff supplies only vague descriptions of collections of documents of little use to the propounding party (See Separate Statement Nos. 9, 15, 18, 40), sometimes doing so when the interrogatory had called for a description of facts. (See Separate Statement No. 10, 12.) Plaintiff consistently responds to interrogatories with the preface that the information is “without limitation” or “among other things,” suggesting that Plaintiff is not supplying all information reasonably available to him. (See Separate Statement No. 2, 3, 5, 6, 8, 11, 25, 39.)

Plaintiff claims privacy objections prevent him from disclosing the friendships that have ended or eroded as a result of Defendant’s publication. (See Separate Statement No. 26–37.) But Plaintiff specifically cites the “loss of friendships” as damages in his breach of contract claim. (FAC ¶ 34.) Plaintiff’s reliance on privacy to prevent the disclosure of individuals with whom he’s discussed his depression is also unavailing. (Separate Statement No. 24.) Plaintiff both alleges his depression and emotional distress in his complaint (FAC ¶ 1) and acknowledges having disclosed his depression personally to “dozens of people” and publicly to “millions.” (Separate Statement at p. 26.)

A further response is warranted for most of these, although certain interrogatories ought to have limitations. Interrogatories No. 21–23 seek all documents related to his depression, as well as the identification of all doctors and psychologists who have treated him, to which Plaintiff has provided only partial responses. In keeping with the ruling with respect to the requests for production, Plaintiff need only respond with documents created on or after January 1, 2016, and doctors who have treated him in the same time frame.

The motion is therefore GRANTED.

II. SANCTIONS

Statute provides that the court shall impose sanctions upon a party who unsuccessfully makes or opposes a motion to compel further response to interrogatories, requests for production of documents, or requests for admission, absent substantial justification otherwise. (Code Civ. Proc. §§ 2030.300, subd. (d); 2031.310, subd. (h); 2033.290, subd. (d).)

Defendant seeks $5,040.00 in sanctions for the interrogatories motion, 14.4 hours of attorney work at $350 per hour. (Hedrick Decl. ¶ 21), and $3,465 for the documents motion, representing 9.9 hours of attorney work at the same rate. (Hedrick Decl. ¶ 22.) This total sanctions request of $8,505.00 includes eight hours of work to review opposition materials that were never filed, meaning the maximum total sanctions award is $5,705.00. Sanctions are awarded against Plaintiff in the amount of $3,815.