Judge: John J. Kralik, Case: 23BBCV03051, Date: 2024-12-06 Tentative Ruling

Case Number: 23BBCV03051    Hearing Date: December 6, 2024    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations of Complaint

Plaintiff Anait Torosyan (“Plaintiff”) alleges she slipped and fell in front of the property located at 1051 W. Burbank Blvd, Burbank, CA 91506 (the “Property”) owned, operated, and managed by Defendant Costco Wholesale Corporation (“Defendant”). Plaintiff alleges she slipped and fell in front of Defendant’s Property as a result of Defendant’s negligence.

The complaint, filed December 26, 2023, alleges causes of action for: (1) Premises Liability and (2) General Negligence.

On June 5, 2024, Defendant filed its Answer to Complaint.

B.     Motions on Calendar

            On October 25, 2024, Defendant filed a motion to compel Plaintiff’s further responses to Requests for Admissions, set one (“RFA”).

            On October 29, 2024, Defendant filed motions to compel Plaintiff’s further responses to Form Interrogatories, set one (“FROG”) and Special Interrogatories, set one (“SROG”).

            On November 21, 2024, Plaintiff filed opposition briefs.

            On November 27, 2024, Defendant filed a reply briefs.

DISCUSSION                                                                                              

Defendant Costco Wholesale Corporation (hereinafter, “Defendant”) moves to compel Plaintiff Anait Torosyan (hereinafter, “Plaintiff”) to serve further responses to RFA No. 2; FROG No. 17.1; and SROG Nos. 23, 30, 45, and 49.

Request for Admissions and Form Interrogatories

Defendant argues Plaintiff has refused to provide any substantive answer to RFA No. 2 and FROG 17.1 as it pertains to RFA No. 2. Defendant also argues Plaintiff’s objections are meritless. As a preliminary matter, the Court notes the parties appear to have adequately met and conferred regarding the RFAs pursuant to Code of Civil Procedure Section 2033.290, subdivision (b). (McKenzie Decl., ¶¶14-18, Exs. J-L.) Thus, the only RFA the parties were unable to resolve informally is No. 2 and FROG 17.1 as it relates to RFA No. 2 for the reasons stated above.

Code of Civil Procedure Section 2033.220 states:  

(a) Each answer in a response to requests for admission shall be as complete and straightforward as the information reasonably available to the responding party permits. 

(b) Each answer shall: 

(1) Admit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by the responding party. 

(2) Deny so much of the matter involved in the request as is untrue. 

(3) Specify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge. 

(c) If a responding party gives lack of information or knowledge as a reason for a failure to admit all or part of a request for admission, that party shall state in the answer that a reasonable inquiry concerning the matter in the particular request has been made, and that the information known or readily obtainable is insufficient to enable that party to admit the matter. 

(CCP § 2033.220.)   

            RFA No. 2 seeks the following: “Admit that YOU reserve the right to seek more than $75,000 in damages, exclusive of interest and costs, at the trial of this matter.” (Def. RFA Sep. Stmt at 2:1-3.)

            Plaintiff responded to RFA No. 2 as follows: “Objection. Vague and ambiguous. Calls for a legal conclusion. attorney-client privilege and attorney work product doctrine.” (Def. RFA Sep. Stmt at 2:4-6.)

FROG No. 17.1 asks the following:

“Is your response to each request for admission served with these interrogatories an unqualified admission? If not, for each response that is not an unqualified admission:

(a) state the number of the request;

(b) state all facts on which you base your response;

(c) state the names, ADDRESSES, and telephone numbers of all

PERSONS who have knowledge of those facts; and

(d) identify all DOCUMENTS and other tangible things that support

your response and state the name, ADDRESS, and telephone number of

the PERSON who has each DOCUMENT or thing.”(Def. FROG Sep. Stmt at 2:7-16.)

Plaintiff responded to FROG No. 17.1 as follows:

“(a) Request for Admission, Set One, Request 2

(b) Objection. Vague and ambiguous. Calls for a legal conclusion. attorney-client privilege and attorney work product doctrine. Responding party refers propounding party to responding party’s statement of damages

(c) Objection. Vague and ambiguous. Calls for a legal conclusion. attorney-client privilege and attorney work product doctrine.

(d) Objection. Vague and ambiguous. Calls for a legal conclusion. attorney-client privilege and attorney work product doctrine.” (Def. FROG Sep. Stmt at 2:21-27.)

Defendant contends there is nothing vague or ambiguous about the request because it merely seeks to elicit whether Defendant’s potential exposure at trial is exceeds $75,000.00, exclusive of interest and costs. Furthermore, Defendant contends “calls for legal conclusion” is not grounds for refusing to respond to a RFA citing to Burke v. Superior Court of Sacramento County (1969) 71 Cal.2d 276, which states “when a party is served with a request for admission concerning a legal question properly raised in the pleadings he cannot object simply by asserting that the request calls for a conclusion of law. He should make the admission if he is able to do so and does not in good faith intend to contest the issue at trial, thereby ‘setting at rest a triable issue.’ [Citation]. Otherwise he should set forth in detail the reasons why he cannot truthfully admit or deny the request. [Citation].” (Burke v. Superior Court of Sacramento County (1969) 71 Cal.2d 276, 282.) Finally, Defendant asserts the request does not ask about any of Plaintiff’s communications with her counsel and if Plaintiff cannot answer without implicating work product privilege, she can say she lacks the information to admit or deny, and provide an explanation as to why.

In opposition, Plaintiff argues her verified responses to Defendant’s RFAs admitted that her damages do not exceed $75,000.00 and she served her statement of damages outlining that her damages are below $75,000.00. As such, Plaintiff contends the instant motion was filed to harass her, justify removal to federal court, and compel her to waive her right to seek damages above $75,000.00 at trial.

            In reply, Defendant concedes that Plaintiff has responded to RFA Nos. 1 and 26, indicating that her damages do not currently exceed $75,000.00. However, Defendant argues those requests are phrased in the present tense while RFA No. 2 asks whether Plaintiff reserves the right to to seek more damages at the time of trial.

            Here, the Court overrules Plaintiff’s objections to RFA No. 2 and FROG 17.1.  First, RFA No. 2 clearly asks Plaintiff to either admit or deny whether she reserves the right to seek more than $75,000.00 in damages at the time of trial. Plaintiff has not demonstrated she cannot provide an intelligible response to this request and does not contend she lacks sufficient knowledge or information to admit or deny this request, thus it is not vague and ambiguous. Moreover, the request does not seek information regarding any communication between Plaintiff and her counsel. It is merely asking whether Plaintiff has reserved or waived the right to seek damages in excess of $75,000. Plaintiff’s response indicates that she can clarify that she does not have damages in excess of $75,000 at present, but has not waived the right to seek such damages in the future. Her opposition papers state as much. 

Therefore, the motions are granted as RFA No. 2 and FROG No. 17.1.

Special Interrogatories

As to the SROGs, Defendant argues Plaintiff’s response to SROG No. 23 is unintelligible and Nos. 30, 45, and 49 are subject to meritless objections.

Code of Civil Procedure Section 2030.220 states:

(a) Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits.

(b) If an interrogatory cannot be answered completely, it shall be answered to the extent possible.

(c) If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.

(CCP § 2030.220.)

            SROG No. 23 asks the following: “Please specify each fact that supports YOUR contention that prior to the INCIDENT, Defendant COSTCO had notice of the dangerous condition YOU claim caused or contributed to the INCIDENT.” (Def. SROG Sep. Stmt at 2:1-3.)

Plaintiff responded to SROG No. 23 as follows: “Objection. Vague, ambiguous, overbroad, oppressive, harassing, and burdensome. Subject to and without waiving said objections, responding party responds as follow: discolored fruit peel on the floor.” (Id. at 2:4-7.) Defendant argues this request is relevant to discovering information related to Plaintiff’s theory of liability – constructive notice, against Defendant because this is a premises liability matter and such question would be disallowed at a deposition. Although Plaintiff contends she has no other facts to provide in response to this request, her response is not a complete and straightforward sentence as required under the Code of Civil Procedure. The motion is granted as to SROG No. 23. Plaintiff’s amended response should indicate whether she now has additional facts to support her contention of notice other than the fact that there was a fruit peel on the floor.

            SROG No. 30 asks the following: “Please IDENTIFY all health care providers with whom YOU have treated within the last five (5) years.” (Def. SROG Sep. Stmt at 2:18-20.)

Plaintiff responded to SROG No. 30 as follows: “Objection. Vague, ambiguous, overbroad, oppressive, harassing, and burdensome. Violates responding party’s privacy rights.” (Id. at 2:21-23.) Defendant contends it only seeks the doctors’ names, which is very basic information. The court agrees. This request does not seek Plaintiff’s medical records, billing, reports, or other similar documents , which would invoke Plaintiff’s privacy rights. This request merely asks Plaintiff to identify the healthcare providers she has sought treatment from in the last five years, which is relevant due to Plaintiff seeking damages for physical injuries. The motion is granted as to SROG No. 30.

            SROG No. 45 asks the following: “State YOUR social security number. (Note: This number is required for propounding party to confirm whether plaintiff is or is not a Medicare recipient).” (Def. SROG Sep. Stmt at 3:4-6.)

            SROG No. 49 asks the following: “Do YOU have End-Stage Renal Disease?” (Def. SROG Sep. Stmt at 3:19-20.)

Plaintiff responded to SROG Nos. 45 and 49 as follows: “Objection. Vague, ambiguous, overbroad, oppressive, harassing, and burdensome. This interrogatory exceeds the permitted number of specially prepared interrogatories under CCP Section 2030.030 and is not warranted to exceed that number under CCP section 2030.040. Violates responding party’s privacy right.” (Id. at 3:7-11; 3:21-25.) First, the Court notes that Defendant provided a Declaration for Additional Discovery with the SROGs and Plaintiff does not place the sufficiency of the declaration at issue in her opposition. As such, the objections to SROG Nos. 45 and 49 on those grounds are overruled. Moreover, Defendant asserts SROG No. 45 merely seeks Plaintiff’s Social Security Number for the purpose of ascertaining whether she is a Medicare beneficiary, which is not privileged. Defendant also contends it will agree to Plaintiff producing it pursuant to protective order to address any privacy concerns. Similarly, Defendant argues inquiring whether Plaintiff has End Stage Renal Disease is solely for determining whether she is Medicare eligible and not privileged per Social Security Amendments of 1972 (PL 92-603), Section 2991. Likewise, Plaintiff does not refute SROG No. 49 is discoverable per Social Security Amendments of 1972 (PL 92-603), Section 2991 and provides no legal authority that supports answering whether or not she has a medical condition is privileged information in a case where her medical condition has been placed at issue. The motion is granted as to SROG Nos. 45 and 49.

            The Court notes that it normally does not view a slip and fall as requiring more than 35 special interrogatories, and Defendant should be careful not to propound further extensive interrogatories if the burden is not justified.

Request for Monetary Sanctions

The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to request for admissions and 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.” (CCP § 2030.300, subd. (d); CCP § 2033.290, subd. (d).)

As to the RFA motion, Defendant seeks monetary sanctions in the amount of $1,410.00 (= [4hrs on researching, drafting, editing, and finalizing motion and accompanying papers + estimated 2hrs reviewing the opposition, preparing the reply papers, and attending hearing on the motion] at $225/hr + $60.00 filing fee.)

As to the FROG and SROG motions, Defendant seeks $1,185.00 (= [3hrs on researching, drafting, editing, and finalizing motion and accompanying papers + estimated 2hrs reviewing the opposition, preparing the reply papers, and attending hearing on the motion] at $225/hr + $60.00 filing fee) for each motion for a total of $2,370.00.  

The Court notes that Mr. Mckenzie’s declarations are nearly identical for all motions with the exception of spending 3 hours as opposed to 4 hours on the FROG and SROG motions each. (McKenzie RFA Decl., ¶20; McKenzie FROG Decl., ¶20; McKenzie SROG Decl., ¶ 20.) Further, the motions, oppositions, and reply briefs as it relates to the RFA and FROG are substantially identical, thus it can be reasonably inferred that there was overlap such that imposing three sanction awards for a total of $3,780 would constitute a substantial windfall. For instance, Mr. McKenzie requests 2 hours each for reviewing the opposition, preparing the reply papers, and attending hearing on the motion, awarding 3 hours for a one hour hearing would be inappropriate.

Defendant’s request for sanctions is granted in the reduced amount of $900.  Plaintiff’s request for sanctions is denied.

CONCLUSION AND ORDER

Defendant Costco Wholesale Corporation’s motions to compel Plaintiff Anait Torosyan’s further Requests for Admissions, set one; Form Interrogatories, set one; and Special Interrogatories, set one are granted. Plaintiff is ordered to provide a verified, objection-free response to RFA No. 2, FROG 17.1, and SROG Nos. 23, 30, 45, and 49 within 30 days of this order. Plaintiff is also ordered to pay monetary sanctions in the amount of $900 to Defendant, by and through counsel.

Defendant shall provide notice of this order.

DATED: December 6, 2024                                       ___________________________

                                                                              John J. Kralik

                                                                              Judge of the Superior Court