Judge Kerry Bensinger, Case 21STCV36175 2023-02-16 Tentative Ruling

On October 1, 2021, Plaintiff Sandra Martinez Basurto (“Plaintiff”) filed a Complaint alleging causes of action for (1) negligence and (2) premises liability against Defendant Bodega Latina Corporation dba El Super (“Defendant”). This matter arises from a slip and fall incident.

On December 9, 2021, Plaintiff served Request for Admissions on Defendant. (Liberman Decl. Ex. A.) On March 11, 2022, Defendant served responses. (Liberman Decl. Ex. B.) On April 25, 2022, Plaintiff filed the instant Motion to Compel Defendant’s Further Responses to Request for Admissions. On January 27, 2023, Defendant filed an Opposition to the Motion.

In its Opposition, Defendant represented that further responses have been provided to all of the discovery at issue, with the exception of Request for Admission No. 29. In her reply, Plaintiff represents that these responses were untimely, and “the further responses did not address the questions at issue in this Motion and were incomplete and not per code.” (Reply p. 2.) Plaintiff argues that the Motion should be granted because the motion has not been substantively opposed. (Reply p. 3.) Plaintiff submits a supplemental separate statement that addresses Defendant’s further responses and reflects that only RFAs Nos. 8, 14, 15, 27, 28, and 29 are at issue. Defendant has filed a reply brief addressing the supplemental separate statement.

Under Code of Civil Procedure sections 2033.290(a), parties may move for a further response for requests for admissions where an answer to the requests are evasive or incomplete or where an objection is without merit or too general.

Notice of the motions must be given within 45 days of service of the verified response, otherwise, the propounding party waives any right to compel a further response. (Code Civ. Proc., § 2033.290(c).) The motions must also be accompanied by a meet and confer declaration. (Code Civ. Proc. § 2033.290(b).)

Finally, Cal. Rules of Court, Rule 3.1345 requires that all motions or responses involving further discovery contain a separate statement with the text of each request, the response, and a statement of factual and legal reasons for compelling further responses. (Cal. Rules of Court, Rule 3.1345, subd. (a)(3)).

Each response to a Request for Admission (“RFA”) must contain either an answer or an objection to the particular RFA. (Code Civ. Proc. (“CCP”) § 2033.210(b).) Each answer “shall be as complete and straightforward as the information reasonably available to the responding party permits.” (CCP § 2033.220(a).)

Absent an objection, the response must contain an admission, denial, or a statement claiming inability to admit or deny. (CCP § 2033.220(b) “Each answer shall … [a]dmit 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.” (CCP § 2033.220(b)(1).)

In lieu of admitting or denying the RFA, a party may respond by claiming inability to admit or deny the matter stated in the request. (CCP § 2033.220(c).) But a party responding in this manner must also state that a reasonable inquiry was made to obtain sufficient information. (CCP § 2033.220(c).) The Discovery Act thus requires the responding party to undertake a “good faith” obligation to investigate sources reasonably available to him or her in formulating answers to RFAs. (CCP § 2033.220(c).) The propounding party may move to compel a proper response or to have the matter ordered admitted if the answering party has not made a reasonable inquiry or has access to “readily available” information that would enable him or her to admit or deny the matter. (See Asea, Inc. v. Southern Pac. Transp. Co. (1981) 669 F.2d 1242, 1245-1246.) Information known to a party's attorney or expert witnesses is deemed “obtainable” by the party. Therefore, responses to RFAs must be made in light of such information. (Bloxham v. Saldinger (2014) 228 Cal.App.4th 729, 752.)

The Court looks at each response individually to determine if the responses are compliant.

RFA No. 8: Admit that there was a tomato was on the floor of the SUBJECT LOCATION on March 14, 2020, prior to the INCIDENT.

Defendant’s Further Response to RFA No. 8: Objection. This request is vague, ambiguous, argumentative and calls for speculation. It also requires the adoption of an assumption, which is improper. This request seeks the premature disclosure of expert witness information, and calls for a legal conclusion. Subject to and without waiving asserted objections, Responding Party can only admit to the extent that at the time defendant employees responded to the incident, there was a piece of green produce near plaintiffs foot. After a reasonable inquiry concerning the matter requested, the information known or readily obtainable is insufficient to enable the responding party to admit or deny whether there was a tomato on the floor, near the incident area, prior to the incident.

Court’s Ruling as to RFA No. 8: DENY. The Court finds this response sufficiently admits as much of the matter as Defendant can with the information Defendant possesses after a “reasonable inquiry” and based on the information known or readily obtainable.

Defendant’s Further Response: This request is vague, ambiguous, argumentative and calls for speculation. It also requires the adoption of an assumption, which is improper. This request seeks the premature disclosure of expert witness reports and information, and calls for a legal conclusion. Subject to and without waiving asserted objections, Responding Party admits to the extent that plaintiff claimed injury to her right knee at the time of incident.

RFA No. 15: Admit that the Plaintiff was injured when she slipped and fell on March 14, 2020, at the SUBJECT LOCATION.

Court’s Ruling as to RFA Nos. 14, 15: GRANT. These responses are not code-compliant as the responses do not admit, deny, properly object to the RFA, or state that the information is not readily obtainable after a “reasonable inquiry.” It is not a proper objection that the request calls for an “opinion.” (Hillman v. Stults (1968) 263 CA2d 848, 885.) Nor is it ground for objection that the request is “ambiguous,” unless it is so ambiguous that the responding party cannot in good faith frame an intelligent reply. (Cembrook v. Sup.Ct. (1961) 56 Cal.2d 423, 428.) Additionally, a party may not necessarily avoid responding to RFA on ground it “calls for expert opinion and the party does not know the answer.” (Bloxham v. Saldinger (2014) 228 CA4th 729, 752.)

RFA No. 27: Admit that YOU have no facts to support YOUR contention that Plaintiff is not being truthful about her injuries in this case.

RFA No. 28: Admit that YOU have no facts that support YOUR contention that the services Plaintiff received from any HEALTH CARE PROVIDER for alleged injuries sustained as a result of the INCIDENT were unreasonable or unnecessary.

RFA No. 29: Admit that YOU have no facts that support YOUR contention that the medical bills Plaintiff received from any HEALTH CARE PROVIDER for alleged injuries sustained as a result of the INCIDENT were unreasonable or unnecessary.

Responses to RFAs No. 27-29: Objection. This request is vague, ambiguous and calls for speculation. It also requires the adoption of an assumption, which is improper. This request seeks the premature disclosure of expert witness reports and information, calls for a legal conclusion, is overbroad and compound. Subject to and without waiving asserted objections, Responding Party states as follows: A reasonable inquiry concerning the matter in this particular request has been made and the information known or readily obtainable is insufficient to enable Responding Party to admit or deny the matter. Responding Party has not had a reasonable time to conduct meaningful investigation or discovery into the nature of the incident or Plaintiff's claimed injuries and damages.

Court’s Ruling as to RFAs Nos. 27-29: DENY. This is a code-compliant response as it sufficiently states that a reasonable inquiry has been made and the information is insufficient to enable Defendant to admit or deny the matter. Additionally, Defendant states in its opposition, as to RFA No. 29, that it has not obtained an expert and Defendant has been unable to subpoena all of Plaintiff’s medical records. This is a sufficient response.

Where the court grants a motion to compel further responses, sanctions shall be imposed against the party who unsuccessfully makes or opposes a motion to compel, unless the party acted with substantial justification or the sanction would otherwise be unjust. (Code Civ. Proc., §§ 2033.290(d).)

Plaintiff’s request for sanctions is GRANTED. Sanctions are imposed against Defendant and counsel of record in a reduced amount of $560.00.

Sanctions in the amount of $560 are to be paid by Defendant and its counsel of record, within twenty (20) days of the date of this Order.

Plaintiff’s Motion to Compel Further Responses to Requests for Admissions is GRANTED in part and DENIED in part. The motion is GRANTED as to Requests Numbers 14 and 15. The motion is DENIED as to Requests Numbers 8, 27, 28, and 29.

Defendant is to provide further responses to the requests for which the motions were granted within 20 days of the issuance of this order.

Defendant and its counsel of record are to pay $560 to Plaintiff within 20 days of the issuance of this order.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Kerry Bensinger

Judge of the Superior Court