Judge: Kerry Bensinger, Case: 21STCV36175, Date: 2023-04-13 Tentative Ruling

Case Number: 21STCV36175    Hearing Date: April 13, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

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 Form Interrogatories, Special Interrogatories, and Requests for Production of Documents on Defendant. Defendant served responses on March 11, 2022.  

On April 25, 2022, Plaintiff filed these motions to compel Defendant’s further responses to the at-issue discovery.  On February 16, 2023, the Court continued the motions to allow the parties to file separate statements.

On April 6, 2023, Plaintiff filed separate statements as to the remaining discovery issues.  Plaintiff’s counsel also filed a declaration acknowledging receipt of two rounds of Defendant’s further responses, but Plaintiff maintains Defendant’s further responses are deficient.

Defendant filed a response to the separate statements on April 11, 2023.

As a preliminary matter, Plaintiff’s motion to compel further responses to Form Interrogatories and Special Interrogatories is procedurally improper.  Plaintiff should have filed two separate motions.  Nonetheless, the Court will consider the merits.

II.      LEGAL STANDARDS

A.   Compel Further Responses

Under Code of Civil Procedure sections 2030.300, subdivision (a), and 2031.310, subdivision (a), parties may move for a further response to interrogatories or requests for production of documents where an answer to the requests are evasive or incomplete or where an objection is without merit or too general.  A motion to compel further response to requests for production “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.”  (Code Civ. Proc., § 2031.310, subd. (b)(1).)

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., § 2030.300, subd. (c); Code Civ. Proc., § 2031.310, subd. (c).)  The motions must also be accompanied by a meet and confer declaration.  (Code Civ. Proc., § 2030.300, subd. (b); Code Civ. Proc., § 2031.310, subd. (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).)

B.   Sanctions

Code of Civil Procedure section 2023.030 is a general statute authorizing the Court to impose discovery sanctions for “misuse of the discovery process,” which includes (without limitation) a variety of conduct such as: making, without substantial justification, an unmeritorious objection to discovery; making an evasive response to discovery; and unsuccessfully and without substantial justification making or opposing a motion to compel or limit discovery.  (Code Civ. Proc., § 2023.010.)

If sanctions are sought, Code of Civil Procedure section 2023.040 requires that the notice specify the identity of the person against whom sanctions are sought and the type of sanction requested, that the motion be supported in the points and authorities, and the facts be set forth in a declaration supporting the amount of any monetary sanction.  

With regard to a motion to compel further responses to requests for production, Code of Civil Procedure Section 2031.310, subdivision (h) provides that sanctions shall be awarded against any party, person or attorney who unsuccessfully makes or opposes a motion to compel further responses, unless the Court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of sanctions unjust.

Sanctions against counsel:  The court in Kwan Software Engineering, Inc. v. Hennings (2020) 58 Cal.App.5th 57, 81 (Hennings) noted that discovery sanctions against an attorney are governed by a different standard than sanctions against a party: 

By the terms of the statute, a trial court under section 2023.030(a) may not impose monetary sanctions against a party's attorney unless the court finds that the attorney “advised” the party to engage in the conduct resulting in sanctions. (§ 2023.030(a); Ghanooni v. Super Shuttle (1993) 20 Cal.App.4th 256, 261, 24 Cal.Rptr.2d 501.)  “Unlike monetary sanctions against a party, which are based on the party's misuse of the discovery process, monetary sanctions against the party's attorney require a finding the ‘attorney advis[ed] that conduct.’ ” (Ibid.) “It is not enough that the attorney's actions were in some way improper.” (Corns v. Miller (1986) 181 Cal.App.3d 195, 200, 226 Cal.Rptr. 247 (Corns).) Because an attorney's advice to a client is “peculiarly within [his or her] knowledge,” the attorney has the burden of showing that he or she did not counsel discovery abuse. (Ibid.) Accordingly, when a party seeking sanctions against an attorney offers sufficient evidence of a misuse of the discovery process, the burden shifts to the attorney to demonstrate that he or she did not recommend that conduct. (Id. at pp. 200–201, 226 Cal.Rptr. 247; Ghanooni, at p. 262, 24 Cal.Rptr.2d 501.)

III.     ANALYSIS

The Court has reviewed the separate statements and rules as follows.

A.   Form Interrogatories

Plaintiff seeks Defendant’s further response to Form Interrogatories (“FROG”) Nos. 15.1, 16.2, 16.3, 16.4, 16.5, and 17.1. 

FROG No. 15.1: “Identify each denial of a material allegation and each special or affirmative defense in your pleadings and for each:

(a) state all facts upon which you base the denial or special or affirmative defense;

(b) state the names, ADDRESS, and telephone numbers of all PERSONS who have knowledge of those facts;

(c) identify all DOCUMENTS and other tangible things which support your denial or special or affirmative defense, and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT.

The following is the substantive portion of Defendant’s further response to No. 15.1.

(a) All special and affirmative defenses were inserted in Responding Party’s Answer to Plaintiffs complaint in order to protect Responding Party’s right to assert those defenses at trial, or otherwise, during this litigation. The specific facts supporting Responding Party’s denial of material allegations and special and affirmative defenses can be summarized as follows: DEFENDANT states that it exercised reasonable care in maintaining its premises nor did this defendant have constructive notice of the alleged condition. For instance, on the date of incident, sweeps and visual inspections of the produce department performed by store runner Eduardo Polanco, produce manager Santos Virgin, produce clerk Tony Mendoza and DAX clerk Lety Zelda from, but not limited to, 11:32 a.m. to 11:59 a.m. as shown on the subject store incident video entitled “Wet Rack.” DEFENDANT alleges that the subject incident may have been caused in whole or in part by PLAINTIFF’s negligence and failure to exercise ordinary care for her own safety under the circumstances.

(b) Responding Party identifies the witnesses listed in response to Interrogatory No. 12.1 above and in 15.1 (a). Employees Santos Virgin, Tony Mendoza and Lety Zelada may be contacted through defense counsel. Eduardo Polanco’s last known information is as follows: 1118 Coronel St., San Fernando, CA; (760) 493-0946.

(c) Responding Party objects to this interrogatory on the ground that it would be unreasonably burdensome to identify individually every potentially relevant document. Responding Party also objects on the ground that, until the factual basis of the Plaintiffs claim is clarified through further discovery, it is not possible for Responding Party to identify all documents that would contradict those claims. Subject to these objections, Responding Party states that the documents which have been exchanged between the parties in discovery support Responding Party's denial of Plaintiffs claims, including photographs and video.

Defendant’s response to 15.1(a) and 15.1(c) is not code compliant.  Defendant attempts to respond to 15.1(a) with a narrative summary when the interrogatory seeks a specific and explicit response.  “Where the question is specific and explicit, an answer which supplies only a portion of the information sought is wholly insufficient.”  (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783.)  Defendant’s further response is incomplete.  Moreover, the response is overly broad and necessitates a further response.  (See Burke v. Superior Court of Sacramento County (1969) 71 Cal.2d 276, 285.)

As to 15.1(c), Defendant fails to “identify all DOCUMENTS and other tangible things which support your denial or special or affirmative defense, and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT.”  Defendant’s objection that the interrogatory is unduly burdensome is without merit.  “If an interrogatory asks the responding party to identify a document, an adequate response must include a description of the document. [Citation omitted].”  (Best Products, Inc. v. Superior Court (2004) 119 Cal.App.4th 1181, 1190, quoting Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 293).  Accordingly, the motion is GRANTED as to FROG No. 15.1.

FROG No. 16.2: Do you contend that plaintiff was not injured in the INCIDENT? If so:

(a) state all facts upon which you base your contention;

(b) state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of the facts; and

(c) identify all DOCUMENTS and other tangible things that support your contention and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or thing.”

The following is the substantive portion of Defendant’s second further response to No. 16.2:

“Subject to and without waiving the foregoing objections, responding party does not contend plaintiff was not injured, but does dispute the extent of plaintiffs claimed injuries, that some or all of these claimed injuries are attributable to the subject incident, and that responding party’s conduct was the cause of such injuries.

(a)  Responding Party exercised reasonable care in maintaining its premises and did not have constructive notice of the alleged condition. On the date of the incident, sweeps and visual inspections of the produce department performed by store runner Eduardo Polanco, produce manager Santos Virgin, produce clerk Tony Mendoza, and DAX clerk Lety Zelada from, but not limited to, 11:32 a.m. to 11:59 a.m. as shown on the subject store incident video entitled “Wet Rack.”  Per Plaintiffs discovery responses, the last treatment plaintiff received for claimed injuries was in or around August 2020;

(b)  Plaintiff; Employees Santos Virgin, Tony Mendoza, and Lety Zelada who may be contacted through defense counsel; Eduardo Polanco's last known information is as follows: 1118 Coronel St., San Fernando, CA, (760) 493-0946; and plaintiffs various treating providers; and;

(c)  Plaintiff’s medical records; plaintiffs discovery responses photographs produced as BL 000001- BL 000005; sweep sheet produced as BL 000009; video of the produce department on March 14, 2020. Responding party reserves the right to amend this response at any time, and without limitation.

The Court finds Defendant’s second further response is code compliant. 

Accordingly, the motion is DENIED as to FROG No. 16.2

FROG No. 16.3: “Do you contend that the injuries or the extent of the injuries claimed by plaintiff as disclosed in discovery proceedings thus far in this case were not caused by the INCIDENT? If so, for each injury:

(a) identify it;

(b) state all facts upon which you base your contention;

(c) state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of the facts;

(d) identify all DOCUMENTS and other tangible things that support your contention and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or thing.”

FROG No. 16.4: “Do you contend that any of the services furnished by any HEALTH CARE PROVIDER claimed by plaintiff in discovery proceedings thus far in this case were not due to the INCIDENT? If so:

(a)  identify each service;

(b) state all facts upon which you base your contention;

(c) state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of the facts;

(d) identify all DOCUMENTS and other tangible things that support your contention and state the name, ADDRESS and telephone number of the PERSON who has each DOCUMENT or thing.”

FROG No. 16.5: “Do you contend that any of the costs of services furnished by any HEALTH CARE PROVIDER claimed as damages by plaintiff in discovery proceedings thus far in this case were unreasonable? If so:

(a) identify each cost;

(b) state all facts upon which you base your contention;

(c) state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of the facts;

(d) identify all DOCUMENTS and other tangible things that support your contention and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or thing.”

The following is the substantive portion of Defendant’s second further responses to Nos. 16.3, 16.4, and 16.5:

“Subject to and without waiving any objections and in the spirit of cooperation and discovery, responding party states the following:

Yes.

(a) All plaintiff’s claimed injuries;

(b) The subject incident was not sufficient to cause plaintiffs claimed injuries. Per Plaintiff’s discovery responses, the last treatment plaintiff received for the claimed injuries was in or around August 2020;

(c) Plaintiff and plaintiffs various treating providers; and

(d) Plaintiff’s medical records and discovery responses.  Responding party reserves the right to amend this response at any time, and without limitation.”

The Court finds that Defendant’s second further responses to 16.3, 16.4, and 16.5 are insufficient.  Defendant fails to respond to several of the form rog requests.  The repetitious answers are not responsive.   

Accordingly, the motion is GRANTED as to FROG Nos. 16.3, 16.4, and 16.5.

FROG No. 17.1:  “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 upon which you base your response;

(c) state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of those facts;

(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.”

Plaintiff seeks a further response to No. 17.1 because Defendant “provided further denials to Request for Admission number 14 and 15 but failed to provide a further response to Form Interrogatory 17.1.”  Plaintiff does not provide Request for Admission nos. 14 and 15 nor any argument or basis for a further response to FROG No. 17.1  

Accordingly, the motion is DENIED as to FROG No. 17.1

B.   Special Interrogatories

Plaintiff seeks Defendant’s further response to Special Interrogatories (“SROG”) Nos. 20, 21, 26, 31, and 32. 

          SROG No. 20: “State all facts that support a contention that Plaintiff is not being truthful about how the INCIDENT occurred.”

          In the substantive portion of Defendant’s second further response, Defendant states, “despite a reasonable and good faith effort to obtain the information by inquiry, responding party cannot respond to this interrogatory because plaintiff has not yet been deposed and none of plaintiff’s discovery responses state how she contends the INCIDENT occurred.  Moreover, the complaint filed in the underlying lawsuit is unverified.”

The response is not code compliant.  “If an interrogatory cannot be answered completely, it shall be answered to the extent possible.”  (Code Civ. Proc., section 2030.220, subd. (b).)  Defendant fails to provide an answer.  Defendant is sufficiently aware of how the incident occurred to provide a fact-based response.[1]  Defendant was required to answer to the extent possible based on the information currently known to Defendant. 

Accordingly, the motion is GRANTED as to SROG No. 20.

SROG No. 21: “State all facts that support a contention that Plaintiff was not injured as a result of the INCIDENT.”

In the substantive portion of Defendant’s further response, Defendant states, “responding party does not contend plaintiff was not injured, but does dispute the extent of plaintiffs claimed injuries, that some or all of these claimed injuries are attributable to the subject incident, and that responding party’s conduct was the cause of such injuries[2].

The response is neither code compliant nor responsive.  Left out of the response are the facts.  If the Defendant disputes the extent of Plaintiff’s injuries, Defendant must state the facts that support that contention:  What claimed injuries are excessive and what facts support that contention; what injuries are not attributable to the incident and what facts support that contention. 

Accordingly, the motion is GRANTED as to SROG No. 21.

SROG No. 26: “If YOU contend that the Plaintiff’s conduct contributed to the causation of the INCIDENT that forms the basis of this litigation, state all facts that support this contention.”

In the substantive portion of Defendant’s second further response, Defendant states, “despite a reasonable and good faith effort to obtain the information by inquiry, responding party cannot respond in full to this interrogatory because plaintiff has not yet been deposed and none of plaintiff’s discovery responses state how she contends the INCIDENT occurred. At this time, responding party contends plaintiff was not aware of her surroundings and not paying attention at the time of the INCIDENT. Plaintiff’s failure to observe her surroundings and lack of paying attention to where she was walking caused or contributed to the INCIDENT.”

To start an answer with “the responding party cannot respond... because....” and then to offer a response muddles the discovery process.  On its face, the response is not code complaint.  “Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits.”  (Code Civ. Proc., § 2030.220, subd. (a).)   Moreover, Defendant’s response is incomplete because the assertion that Plaintiff lacked awareness of her surroundings is a conclusion that requires Defendant to supply the facts that support the conclusion.  The question calls for the evidentiary facts that support the conclusion (such as the video, or witness statements, etc.)  

Accordingly, the motion is GRANTED as to SROG No. 26.

SROG No. 31: “If YOU contend that any of the medical bills incurred by Plaintiff in connection with the injuries she suffered as a result of the INCIDENT that forms the basis of this litigation, are unreasonable state all facts that support this contention.”

SROG No. 32: “IDENTIFY all WRITINGS that support YOUR contention that the medical bills incurred by Plaintiff in connection with the injuries she suffered as a result of the INCIDENT that forms the basis of this litigation, are unreasonable.”

In the substantive portion of Defendant’s second further response to SROG Nos. 31 and 32, Defendant states, “despite a reasonable and good faith effort to obtain the information by inquiry, responding party cannot respond in full to this interrogatory because plaintiff has not yet been deposed and responding party has not yet received all subpoenaed medical records. At this time, responding party contends the subject incident was not sufficient to cause plaintiff’s claimed injuries. Per Plaintiffs discovery responses, the last treatment plaintiff received for the claimed injuries was in or around August 2020.”

The Court finds that this response is not code compliant.  Defendant contends that the subject incident was not sufficient to cause Plaintiff’s claimed injuries.  Implicit in that response is the contention that Plaintiff’s medical bills are all unreasonable.  However, Defendant does not so state in a straightforward manner.  Nor does Defendant provide factual support for the contention that the incident was sufficient to cause Plaintiff’s injuries.  Defendant’s response also acknowledges receipt of some subpoenaed medical records.  If Defendant has not yet received or reviewed medical billing records, Defendant should so state. 

Accordingly, the motion is GRANTED as to SROG Nos. 31 and 32.

C.   Request for Production

Plaintiff seeks Defendant’s further response to Request for Production of Documents (“RPD”) Nos. 5 and 44. 

RPD No. 5: “Originals or true and correct copies of all "Sweep Sheets" of the SUBJECT LOCATION for the period from March 2019 through March 2020.”

In Defendant’s first further response, Defendant states, “A diligent search and reasonable inquiry has been made in an effort to comply with this request. Responding party is unable to fully comply with this request. Responding party is only in possession of the produce department sweep sheet for the week of the incident, which has been produced. Responding party is no longer in possession, custody or control of any other responsive documents.”

In the substantive portion of Defendant’s second further response, Defendant states, “Responding party produces all responsive documents in its possession, custody, and control as Exhibit 1. Despite a diligent search and reasonable inquiry, responding party is unable to fully comply with this request because all other responsive documents are no longer in the possession, custody, or control of the responding party.  Responding party is unaware of any other persons or entities who would have responsive documents.”

The Court finds that this response is code compliant.  Pursuant to Code of Civil Procedure section 2031.230, the 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.”  (Emphasis added.)  Here, Defendant states that the responsive documents (i.e., sweep sheets beyond the week of the incident) “are no longer in the possession, custody, or control of the responding party.” 

Accordingly, the motion is DENIED as to RPD No. 5.

RPD No. 44:  “All DOCUMENTS/ESI that refer to or demonstrate the layout of the SUBJECT LOCATION.”

In its initial response, Defendant states, “[t[he store video will be produced.”  In its further response, Defendant states, “Responding party produces all responsive documents in its possession, custody, and control as Exhibit 3.”

Plaintiff argues that a further response is warranted because the video footage is not the layout of the subject store.  However, Defendant’s response indicates all responsive documents in its possession, custody, and control have been produced.  If a layout of the store does not exist, Plaintiff cannot insist on its production.

Accordingly, the motion is DENIED as to RPD No. 44. 

D.  Sanctions

Plaintiff requests sanctions in the amount of $1,560 (interrogatories) and $1,310 (requests for production) for bringing the respective motions.  In the notices of motion, Plaintiff seeks sanctions against Defendant and its counsel of record.  Because the Court has denied the motion to compel further responses to Request for Production, Plaintiff’s request for sanctions as to that motion is DENIED.

As to Plaintiff’s motion to compel further responses to the interrogatories, the Court finds that sanctions are warranted notwithstanding the Court’s ruling on FROG Nos. 16.2 and 17.1.  Defendant provided further responses and supplemental responses that were not code compliant.  Defendant does not explain why these supplemental responses could not have been provided when Plaintiff propounded the at-issue discovery in 2021.  Waiting nearly a  year from the filing of these motions frustrates discovery, delays the prosecution and resolution of the case, and unnecessarily burdens the Court.  Imposition of sanctions is warranted.

The Court also imposes sanctions against counsel for Defendant.  Pursuant to Hennings, supra, imposition of monetary sanctions against counsel is proper unless counsel shows that he or she did not counsel the discovery abuse.  (Hennings, 58 Cal.App.5th at p. 81.)  Defense counsel does not meet their burden.  Accordingly, the Court imposes monetary sanctions against Defendant and their counsel in the amount of $1,560, which represents 4 hours at plaintiff’s counsel’s hourly rate of $250 and $60 in filing fees. 

IV.     CONCLUSION

The motion to compel further responses to Form Interrogatories is GRANTED as to Nos. 15.1, 16.3, 16.4, and 16.5.  The motion is DENIED as to Nos. 16.2 and 17.1.

Defendant is ordered to provide further responses to Form Interrogatories Nos. 15.1, 16.3, 16.4, and 16.5. 

The motion to compel further responses to Special Interrogatories is GRANTED.

Defendant is ordered to provide further responses to Special Interrogatories Nos. 20, 21, 26, 31, and 32. 

The motion to compel further responses to Request for Production is DENIED.

Plaintiff’s request for sanctions is GRANTED.  Defendant and their counsel of record, jointly and severally, are ordered to pay sanctions to Plaintiff, by and through Plaintiff’s counsel, in the amount of $1,560.

Sanctions are to be paid and further responses are to be provided within 20 days.

Moving party to give notice.

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.

Dated this 13th day of April 2023