Judge Gregory Keosian, Case 22STCV26262 2023-05-02 Tentative Ruling

Judge: Gregory Keosian, Case: 22STCV26262, Date: 2023-05-02 Tentative Ruling

Case Number: 22STCV26262 Hearing Date: May 2, 2023 Dept: 61

Plaintiff Madeline Arroyo’s Motions to Compel Further Responses to Requests for Production and Form Interrogatories from Defendant Harmony Congregate Living, Inc. are GRANTED as to Requests for Production No. 14, 15, 18, 21–23, 84, 85, and 87, and DENIED as to the other requests and as to all interrogatories.

No sanctions are awarded.

Plaintiff 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.)

Plaintiff Madeline Arroyo (Plaintiff) moves to compel further responses to Requests for Production No. 1–92 and Form Interrogatories, Employment, No. 201.1–201.6, 207.1, 208.1, 208.2, 216.1, and 217.1 from Defendant Harmony Congregate Living, Inc. The requests for production sought documents related to Plaintiff’s employment with Defendant, communications involving Plaintiff, and Defendant’s retaliation policies. Defendant’s responses varied, ranging from statements that it would “produce documents in its possession, custody, or control,” without indication as to whether it would produce all such documents or only a portion (See Separate Statement No. 4); statements that after a diligent search, Defendant was “unable to locate any documents in its possession, custody, or control,” without indicating the probable disposition of responsive documents as required under Code of Civil Procedure § 2031.230 (See Separate Statement No. 5; and statements no promising production at all, but promising that Defendant “will conduct” a diligent search for documents. (See Separate Statement No. 64.)

As to the Form Interrogatories, Defendant responded to Interrogatories No. 201.1–201.6, 208.1 and 208.2 with objections, based on the fact that the interrogatory spoke of an “employer” and “employee,” while Defendant denies being Plaintiff’s employer. (Separate Statement at pp. 2–15.) As to Interrogatories No. 216.1 and 217.1, which asked Defendant to identify the facts and evidence supporting its defenses and denials of requests for admission, Defendant declined to provide particular responses as to each defense, and instead broadly stated that its defenses were based on its denial of the existence of an employment relationship, the lack of a record of any complaint by Plaintiff, and a denial that it retaliated against Plaintiff. (Separate Statement No. 216.1.)

Defendant in opposition points to supplemental responses and meet-and-confer correspondence, served after the motion was filed, which it claims are now sufficient. The new responses to Requests No. 1-7, 9, 10, 12-15, 19, 20, 22, 23, 26-28, 32-33, 83-86, 88, and 89 ask for documents related to the alleged employment relationship between Plaintiff and Defendant, and Defendant’s responses now state that Defendant lacks any responsive documents, because “Plaintiff was never employed by nor compensated by Harmony, so this particular category of documents appears to have never existed in Harmony’s possession, custody, or control.” (Opposition Exh. I.) Defendant further argues that it has supplemented its responses to Requests No. 18, 21–26, 29–31, 87, and 90 each of which sought communications related to Plaintiff, and records of investigation, Defendant responded by stating that it lacked responsive documents, because no such documents ever existed. (Opposition Exh. I.)

Plaintiff in reply objects to these new responses on the grounds that Defendant states, in its justification for its inability to comply, only that it “appears” these documents have never existed, when they should provide a more certain attestation as to the disposition of the documents. (Reply at pp. 2–3.) Plaintiff further argues that as to certain requests — Requests No. 6, 14, 15, 18, 21, 22, 23, 84, 85, 87, and 90 — Defendant states an inability to comply without indicating the probable disposition of the requested documents, without an “appears” statement or otherwise. (Opposition at p. 3.) And Plaintiff further argues that Reqeusts No. 88 and 89 do not provide Bates numbers identifying the responsive documents to be produced. (Reply at pp. 3–4; see Code Civ. Proc. § 2031.280, subd. (a).)

Most of this dispute concerns the application of Code of Civil Procedure § 2031.230, which governs statements of inability to comply:

A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.

(Code Civ. Proc. § 2031.230.)

No further response is made necessary by the addition of the word “appears” in Defendant’s responses, Defendant states that it lacks responsive documents after a reasonable inquiry and diligent search. The addition of a qualifying word as to the search’s result does not meaningfully limit the scope of Defendant’s response.

However, Plaintiff is correct that certain responses lack an explanation as to whether the given category of documents “has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party.” Specifically, the responses to Requests No. 14, 15, 18, 21–23, 84, 85, and 87 either include no statement as to the probable disposition of the documents requested, or else provides an elusive answer stating that it was not Defendant’s responsibility to maintain the requested documents, without indicating whether any such documents were ever in its possession. A further response is appropriate as to Requests No. 14, 15, 18, 21–23, 84, 85, and 87.

Additionally, a further response is appropriate as to Requests No. 88 and 89, in order to identify by page number the responsive documents being produced, in accordance with Code of Civil Procedure § 2031.280 subd. (a).

As to interrogatories, Plaintiff acknowledges in reply that with the provision of supplemental responses, the only interrogatories remaining at issue are Interrogatories No. 201.5, 201.6, and 216.1. (Reply at p. 4.) Plaintiff objects that the response to 201.5, which sought information concerning the identity of the employees who replaced Plaintiff after her termination, contained only first names and no contact or job information. Plaintiff further objects that the new response to Form Interrogatory No. 201.6 refers to the defective response to No. 201.5. And Plaintiff argues finally that the supplemental response to Form Interrogatory No. 216.1, concerning Defendant’s affirmative defenses, provides information concerning only 14 out of 15 such defenses. (Reply at p. 4.)

This court cannot render a decision as to these last interrogatories, however, as neither Defendant in opposition nor Plaintiff in reply has provided the supplemental responses at issue for this court’s review.

Accordingly, the motion is GRANTED as to Requests for Production No. 14, 15, 18, 21–23, 84, 85, and 87, and DENIED as to the other requests and as to all interrogatories.

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).)

Plaintiff seeks sanctions in the amount of $3,891.50 for the documents motion, representing 9.7 hours of attorney work at $395 per hour plus a $60 filing fee. (Villareal Decl. ¶¶ 20–23.) Plaintiff also seeks $1,877.00 in sanctions for the interrogatories motion, representing 4.6 hours of attorney work at the same rate, plus the same filing fee. (Villareal Decl. ¶¶ 20–23.) Defendant in turn seeks $5,699.00 in sanctions, representing 8.2 hours of attorney work at $695 per hour. (Opposition at p. 12.) No sanctions are awarded, as the motions were brought and opposed with substantial justification.