Judge: Kerry Bensinger, Case: 21STCV36175, Date: 2023-08-08 Tentative Ruling
Case Number: 21STCV36175 Hearing Date: August 8, 2023 Dept: 27
Tentative Ruling
Judge Kerry Bensinger, Department 27
HEARING DATE: July
5, 2023 TRIAL
DATE: October 24, 2023
CASE: Sandra Martinez Basurto v. Bodega Latina Corporation
CASE NO.: 21STCV36175
MOTIONS
TO COMPEL FURTHER RESPONSES TO DISCOVERY
MOVING PARTY: Plaintiff
Sandra Martinez Basurto
RESPONDING PARTY: Defendant Bodega
Latina Corporation
I. BACKGROUND
On October 1, 2021, Plaintiff, Sandra Martinez Basurto,
filed this action against Defendant, Bodega Latina Corporation dba El Super for
injuries arising from a slip and fall incident on Defendant’s premises.
On December 29, 2022, Plaintiff served Defendant with
Special Interrogatories, Set Two, and Request for Productions of Documents, Set
Two. Responses were due on February 2, 2023. Defendant served
objection-filled responses on February 9, 2023 despite objections having been
waived. After meet and confer efforts did not resolve issues with
Defendant’s discovery responses, Plaintiff filed these motions to compel
Defendant to serve further, verified responses to the at-issue discovery.
Plaintiff seeks monetary sanctions against Defendant and its counsel.
The parties participated in an Informal Discovery Conference
on June 15, 2023. The discovery issues were not resolved. As such,
Plaintiff proceeded with her motions to compel.
Defendant filed oppositions indicating that further
responses to the at-issue discovery were served on June 20, 2023. For
this reason, Defendant argues the motion is moot and the request for sanctions
should be denied. Plaintiff filed replies. Although the replies
claim, without explanation, that the further responses are still inadequate,
the replies focus primarily on the issue of sanctions. Given that
Defendant did not serve further responses until June 20, 2023, sanction are
appropriate.
At the hearing Plaintiff contended that the further
responses were still deficient. As such,
the Court continued the motions to compel to August 8, 2023. Plaintiff was to file a separate statement by
July 20, 2023. Defendant was to file a response by August 2, 2023.
Plaintiff and Defendant filed timely separate statements. The Court rules as follows.
II. LEGAL
STANDARDS FOR COMPELLING FURTHER RESPONSES
Under Code of Civil Procedure sections 2030.300 and 2031.310,
parties may move for a further response to interrogatories or requests for
production of documents where a statement of compliance with the demand is
incomplete, a representation of inability to comply is inadequate, incomplete,
or evasive, 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., §§ 2030.300, subd.
(c); 2031.310, subd. (c).) The motions must also be accompanied by a meet
and confer declaration. (Code Civ. Proc., §§ 2030.300, subd. (b); 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).)¿¿
A.
Monetary 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.¿
If the court finds that a party has unsuccessfully made or
opposed a motion to compel responses to interrogatories or inspection demands,
the court “shall impose a monetary sanction . . . 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.”¿ (Code Civ. Proc.,
§§ 2030.290, subd. (c), 2031.300, subd. (c).)¿¿¿
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. DISCUSSION
A. Special Interrogatories
Section 2030.220(a) requires
responses to each interrogatory "to the extent possible" which are "as
complete and straightforward as the information reasonably available" to the
responding party. Section 2030.220 (c)
states: 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. “The responding party must make a reasonable
effort to obtain wherever information is sought; and if unable to do so, must
specify why the information is unavailable and what efforts the responding
party made to obtain it.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 782.)
Rutter Group 8:1061)
Plaintiff seeks a further response to Special Interrogatory
(“SROG”) Nos. 35, 41, 43, 51, 53-58, and 62.
The Court addresses each in turn.
SROG No. 35:
Please state with specificity how the INCIDENT occurred.
Defendant initially responded with objections on the grounds
that it presented an incomplete hypothetical, called for a legal conclusion,
and sought confidential information. Defendant
then provided the following further response:
“Subject to and without waiving the foregoing objection, as shown in the
video previously produced as Exhibit 3, on March 14, 2020, plaintiff walked in
and throughout the produce department for several minutes. In the time leading
to the fall, plaintiff looked to her sides and not ahead of her where she was
walking. At or around 12:08 p.m., plaintiff walked through the produce
department without paying attention to where she was stepping and fell. Soon
thereafter, a Bodega employee found plaintiff on her back with squashed green
produce near her foot.”
Plaintiff seeks a further response arguing that the foregoing
response is not a full and substantive response. The Court disagrees. Defendant indicates in its response that its
knowledge of how the incident occurred is depicted on the video previously
produced as Exhibit 3. Defendant also
points to Plaintiff’s lack of attention to where she was walking as the cause
of how she came to step on and slip on produce.
Accordingly, the motion as to SROG no. 35 is DENIED.
SROG No. 41:
Please state the daily safety procedures conducted by El Super's employees.
Defendant initially asserted the same objections and later
provided the following further response:
“Subject to and without waiving the foregoing objections, and limiting
to safety procedures conducted to avoid slip and falls in the produce
department, Responding Party instructs every employee to be aware of their
surroundings and do visual inspections as they walk around the store. Every
employee is instructed if they see a spill to not leave it unattended, to clean
it, or wave someone to bring cleaning supplies. Every 30 minutes, uninterrupted
sweeps must be completed as outlined in the documents previously produced as
Exhibit 4. There are various safety guidelines and sweep procedures employees
must follow as outlined in the documents previously produced as Exhibit 4.”
Plaintiff seeks a further response because Defendant does
not define or explain a “visual inspection.” The Court finds that a further response is not
required. As Defendant points out,
“visual inspection” is self-explanatory.
Further, the response is supported by the other procedures an employee
is to undertake if a spill is found on the premises. Plaintiff improperly focuses on the meaning
of “visual inspection” while failing to consider the term in context of the
entire response.
Accordingly, the motion as to SROG No. 41 is DENIED.
SROG No. 43:
Please state where the safety manual is kept in the subject El Super.
Defendant provided the following further response: Subject
to and without waiving the foregoing objections, and limiting to safety
procedures conducted to avoid slip and falls in the produce department,
Responding Party provides employees with the documents previously produced as
Exhibit 4, but does not have anything called a “safety manual.”
Plaintiff seeks a further response because Defendant does
not identify where the safety manual is kept at El Super. However, Defendant states that it “does not
have anything called a ‘safety manual.’”
Accordingly, the motion as to SROG No. 43 is DENIED.
SROG No. 51:
Identify the precise location of each and every video camera (or any other
visual recording device) that were present at subject El Super on March 14, 2020.
Defendant’s separate statement indicates that after meeting
and conferring with Plaintiff, Defendant will provide a second further response. The second further response is included in
Defendant’s separate statement that appears to be a code-compliant response.
Accordingly, the motion as to SROG No. 51 is MOOT.
SROG No. 53:
If any of the video cameras at or near the produce department (or any other
visual recording devices) were not working at the time of the INCIDENT please
IDENTIFY which video cameras were not working.
SROG No. 54:
If any of video cameras at or near the produce department (or any other visual
recording devices) were not working at the time of the INCIDENT, state when
they stopped working.
SROG No. 55:
If any of video cameras at or near the produce department (or any other visual
recording devices) were not working at the time of the INCIDENT, state when YOU
discovered that they stopped working.
SROG No. 56:
If any of video cameras at or near the produce department (or any other visual
recording devices) were not working at the time of the INCIDENT, state why they
stopped working.
SROG No. 57:
If any of video cameras at or near the produce department (or any other visual
recording devices) were not working at the time of the INCIDENT, state when YOU
discovered that they stopped working.
SROG No. 58:
If any of video cameras at or near the produce department (or any other visual
recording devices) were not working at the time of the INCIDENT, state when the
video cameras were repaired.
SROG No. 62:
If the visual recordings of the INCIDENT were permanently destroyed, state the
date each recording was destroyed.
Defendant provided the further response of “not applicable” to
SROG Nos. 53-58 and 62. A response of “not applicable” indicates that the cameras
were working at the time of the incident and that the visual recordings of the
incident were not destroyed. Contrary to
Plaintiff’s position, this is a complete and straightforward response. Plaintiff is not entitled to a further
response.
Accordingly, the motion as to SROG Nos. 53-58 and 62 is
DENIED.
B. Request for Production of Documents
The Code of Civil
Procedure contemplates three forms of proper responses to a request for
production: (1) a statement of compliance in full or in part (CCP §
2031.220); (2) a statement of inability to comply (CCP § 2031.230); and (3) a
partial objection coupled with a statement of compliance or representation of
inability to comply (CCP § 2031.240).
A
statement of compliance under section 2031.220 has two parts:
(1)
the responding party “shall state that the production, inspection, copying,
testing, or sampling, and related activity demanded, will be allowed either in
whole or in part,” and
(2)
“that all documents or things in the demanded category that are in the
possession, custody, or control of that party and to which no objection is
being made will be included in the production.”
A
representation of inability to comply under section 2031.230 has three parts: the statement must
(1)
affirm that a diligent search and reasonable inquiry has been made in an effort
to comply, and
(2)
the statement shall 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.”
And
(3) The
third part comes into play if the responding party knows or believes someone
else has possession of the documents: if
so, “[t]he 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.”
Plaintiff seeks a further response to Request for Production
(“RPD”) Nos. 47, 54, 55, 57-61, 65, 66, 68, 68 [sic], and 69. Defendant indicates in its separate statement
that it will provide second further responses to RPD Nos. 47, 54, 55, 57-61,
and 69. The second further responses
appear Code-compliant. As such, the
motion as to RPD Nos. 47, 54, 55, 57-61, and 69 is MOOT. The Court addresses the remaining at-issue
RPDs.
RPD No. 65:
Any and all DOCUMENTS/TANGIBLE THING/ELECTRONICALLY STORED INFORMATION that
evidence, refer to, or relate to each PERSON who was responsible for preserving
the visual recordings of the subject El Super on March 14, 2020.
RPD No. 66:
Any and all DOCUMENTS/TANGIBLE THING/ELECTRONICALLY STORED
INFORMATION that evidence, refer to, or relate to each PERSON who was
responsible for reviewing visual recordings of the subject El Super on March
14, 2020.
Defendant provided the further response to RPD Nos. 65 and
66 that “Responding Party previously produced all responsive documents as
Exhibit 4.” Plaintiff seeks a further
response because Defendant failed to identify each person responsible for
preserving the visual recording on March 14, 2020. Contrary to Plaintiff’s position, the RPD does
not ask Defendant to identify each person.
Defendant provided a Code-compliant response.
Accordingly, the motion as to RPD Nos. 65 and 66 is DENIED.
RPD No. 68:
Any and all DOCUMENTS/TANGIBLE THING/ELECTRONICALLY STORED INFORMATION that
evidence, refer to, or relate to each communication between YOU and Sandra
Martinez Basurto on the date of the INCIDENT.
Defendant provided the following further response: “Responding
Party previously produced all responsive documents as BL000036 in Exhibit 6.” Plaintiff seeks a further response because
Defendant did not identify whether other documents exist and are being withheld
based on privilege. Contrary to
Plaintiff’s position, Defendant provided a Code-compliant response. Defendant indicated that it produced “all
responsive documents.” This response
indicates that there are no other responsive documents.
Accordingly, the motion as to RPD No. 68 is DENIED.
RPD No. 68 [sic]:
Any and all DOCUMENTS/TANGIBLE THING /ELECTRONICALLY STORED INFORMATION that
evidence, refer to, or relate to each communication between YOU and Sandra
Martinez Basurto after the INCIDENT.
Defendant provided the following further response: “Despite
a diligent search and reasonable inquiry. Responding Party cannot comply with
this request because no responsive documents have ever existed.” Contrary to Plaintiff’s position, this is a
Code-compliant response.
Accordingly, the motion as to RPD No. 68 [sic] is
DENIED.
Monetary Sanctions
Plaintiff requests monetary sanctions against Defendant and their
counsel. Although the Court has denied
these motions, Defendant only provided Code-compliant responses because Plaintiff
filed these motions.¿ As such, the Court finds sanctions are warranted. Pursuant to Hennings, supra,
imposition of monetary sanctions against counsel is also 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, Plaintiff’s request for monetary sanctions is GRANTED.¿ The Court
imposes monetary sanctions against Defendant and their counsel in the amount of
$620, which represents 2 hours at plaintiff’s counsel’s hourly rate and $120 in
filing fees.¿
IV. CONCLUSION
The motions
to compel as to Special Interrogatory No. 51 and RPD Nos. 47, 54, 55, 57-61,
and 69 are MOOT. The motions as to the
remaining at-issue discovery is denied.
The request
for sanctions is granted. Defendant and
their counsel are ordered to pay, jointly and severally, monetary sanctions to
Plaintiff, by and through Plaintiff’s counsel, in the amount of $620 within 10
days of this order.
Moving party to give notice.
Dated: August 8, 2023 ___________________________________
Kerry
Bensinger
Judge
of the Superior Court
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.