Judge Kerry Bensinger, Case 21STCV42589 2023-02-28 Tentative Ruling

On November 17, 2021, Plaintiff Juan Carlos Rosas Hernandez (“Hernandez”) filed this action against Defendants Steven R. Espinoza, aka Steven Ramirez Espinoza, Law Offices of Steven R. Espinoza, and Sae & JGE, LLC, asserting causes of action for (1) general negligence and (2) premises liability.

The allegations in the Complaint allege the following. On November 27, 2019, defendants negligently, carelessly, and recklessly owned, entrusted, managed, and maintained their premises so as to allow a dangerous condition (specifically, wet and slippery floor) to exist. As a result, Plaintiff slipped and fell, sustaining damages and physical injuries.

On October 24, 2022, Defendant Law Office of Steven Espinoza (“Defendant”) filed the instant motion to compel Plaintiff’s further responses to Form Interrogatories, Set One. Defendant had filed its separate statement, declaration of defense counsel Martin Arteaga (“Arteaga Decl.”), and proof of service of the moving papers a few days earlier on October 20, 2022.

“On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: ¶ (1) An answer to a particular interrogatory is evasive or incomplete. ¶ (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate. ¶ (3) An objection to an interrogatory is without merit or too general.” (Code Civ. Proc., § 2030.300, subd. (a).)

Notice of motion to compel further interrogatories must be brought within 45 days of the verified response. (Code Civ. Proc., § 2030.300, subd. (c) [“Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories”].)

If service of the notice of motion is made via mail, the 45-day deadline is extended by five (5) calendar days. (Code Civ. Proc., § 1013, subd. (a) [“Service is complete at the time of the deposit, but any period of notice and any right or duty to do any act or make any response within any period or on a date certain after service of the document, which time period or date is prescribed by statute or rule of court, shall be extended five [5] calendar days, upon service by mail, if the place of address and the place of mailing is within the State of California …”].)

Here, defense counsel testifies that Plaintiff served verified responses to the interrogatories at issue on August 31, 2022. (Arteaga Decl., ¶ 2; Exhibit B – a copy of the responses.) The responses were served by mail. (Arteaga Decl., Exhibit B, Proof of Service page.) Therefore, Defendant had until October 20, 2022 (50 days after service of the responses), to serve the notice of motion. The Proof of Service filed on October 20, 2022, indicates that service of the moving papers was made on October 20.

A motion to compel further responses to interrogatories must be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2030.300, subd. (b)(1).)

Here, Plaintiff’s counsel concedes that he received the meet and confer letter defense counsel sent on October 3, 2022. (Opposition, declaration of Reyes Valenzuela (“Valenzuela Decl.”), ¶ 10.) However, he states that when the letter was served, it demanded the parties meet and confer only seven (7) days later, on October 10, 2022, at a time when Plaintiff’s counsel was preparing for two trials. (Valenzuela Decl., ¶ 11.) Therefore, Plaintiff argues, Defendant failed to meet and confer in good faith because Plaintiff’s counsel could not meet during those seven days he was at trial. (Opposition, p. 3:8-14.) In addition, Plaintiff adds, Defendant did not request an Informal Discovery Conference (“IDC”) before filing the instant motion. (Opposition, p. 3:18-26.)

However, Plaintiff’s counsel does not state whether he at least informed defense counsel that he was unavailable on October 10, 2022. On the other hand, defense counsel testifies that he called Plaintiff’s counsel on October 7, 2022, to schedule a meet and confer meeting, to no avail. (Arteaga Decl., ¶ 4.) In addition, his office sent a second meet and confer letter to Plaintiff’s counsel on October 17, 2022, offering additional dates to respond, but as of October 19, 2022 (a day before the deadline to file the motion), no supplemental responses had been served. (Arteaga Decl., ¶ 5.)

As for the IDC, the parties had one on January 25, 2023, and Plaintiff’s counsel stipulated to waiving objections and providing responses by February 4, 2023. (Arteaga Suppl. Decl., ¶ 9.) However, as of the date defense counsel signed his supplemental declaration on February 16, 2023, Plaintiff had not served the responses. (Arteaga Suppl. Decl., ¶ 9.)

Defendant has filed a separate statement the motion as required. (Cal. Rules of Court, rule 3.1345(a)(2) [requiring motions to compel further responses to interrogatories to be accompanied by a separate statement].)

Defendant moves to compel Plaintiff’s further responses to its Form Interrogatories, Set One (“FROG”), Nos. 2.3 and 17.1.

FROG No. 2.3 asked Plaintiff: “At the time of the incident, did you have a driver’s license? If so state: ¶ (a) The state or other issuing entity; ¶ (b) The license number and type; The date of issuance: and ¶ (c) All restrictions.” (Separate Statement, p. 2:9-14.)

Plaintiff responded: “‘Respondent objects to this interrogatory as vague and ambiguous, overbroad, not relevant nor reasonably calculated to lead to discovery of admissible evidence, and as invading Respondent’s right of privacy.’” (Separate Statement, p. 2:16-18.)

The Court finds it proper to grant the request to compel further responses to FROG No. 2.3 for the following reasons. First, the Court does not find the interrogatory ambiguous or overbroad. Second, there is no right to privacy to driver’s license information. (People v. Herrera (1981) 124 Cal.App.3d 386, 389 [Information contained on a driver’s license does not give such rise to a person’s reasonable expectation of privacy. Drivers’ licenses are displayed routinely for purposes of identification”].) Third, “[u]nless otherwise limited by order of the court …, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action ….” (Code Civ. Proc., § 2017.010.) Here, although this is a slip and fall action, Defendant argues that Plaintiff’s driver’s license information “is essential to prove up his identity as the individual harmed but also to defend against a duty of care owed to Plaintiff during the scope of his employment” with Door Dash, Inc. (Separate Statement, p. 3:10-14.) “Furthermore, [that] identity records are required to corroborate any damages suffered by such an individual.” (Separate Statement, p. 3:14-15.) Plaintiff has not disputed any of these facts.

FROG No. 17.1 asked Plaintiff: “Is your response to each request for admission served with these interrogatories an unqualified admission [e.g., a denial]? 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; 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.” (Separate Statement, pp. 4:22-5:8.)

Plaintiff answered there were two responses to Defendant’s requests for admission (“RFA”), Nos. 11 and 12, that were denials. (Separate Statement, p. 5:9-25.) RFA No. 11 asked Plaintiff to admit that he was negligent at the time of the incident, while RFA No. 12 asked him to admit that he contributed to the cause of the incident. (Separate Statement, p. 7:6-16.)

As stated above, FROG No. 17. 1, subpart (b), asked Plaintiff to “state all facts” upon which he based his denials to RFA Nos. 11 and 12.

Plaintiff responded: “Respondent was not negligent at the time of the incident. Plaintiff failed to properly maintain their premises. This failure caused Plaintiffs slip and fall on the premises ….” (Separate Statement, p. 5:11-13; 21-23.)

“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).)

Here, the Court finds Plaintiff’s response to FROG No. 17. 1, subpart (b), incomplete. Plaintiff needs to provide more information regarding what he means that he was not negligent.

FROG No. 17.1, subpart (c), asked Plaintiff to identify all documents that support his denials to RFA Nos. 11 and 12.

Plaintiff responded: “After a diligent search and a reasonable inquiry had been made in an effort to comply with this request, there are no documents within Responding party’s possession, custody, or control.” (Separate Statement, p. 5:16-19.)

The Court finds that response proper. “If an interrogatory cannot be answered completely, it shall be answered to the extent possible.” (Code Civ. Proc., § 2030.220, subd. (b).) “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.” (Code Civ. Proc., § 2030.220, subd. (c).) Here, Plaintiff answered that after a diligent search and a reasonable inquiry to comply with the request, there were no documents that he found that were in his possession, custody, or control to support his denials to RFA Nos. 11 and 12. Accordingly, the Court denies the request to compel further response to FROG No. 17.1, subpart (c).

For the reasons set forth above, the Court grants Defendant’s request to compel Plaintiff’s further responses to Defendant’s Form Interrogatories, Set One, Nos. 2.3 and 17.1(b). The Court denies the request to compel further response to No. 17.1(c).

“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 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.” (Code Civ. Proc., § 2030.290, subd. (d).)

Defendant requests sanctions of $2,260 against Plaintiff and Plaintiff’s counsel. (Notice of Motion, p. 2:9-11.) That amount consisted of 5.5 hours defense counsel spent on the moving papers, at his billing rate of $400 per hour ($2,200), plus a $60 filing fee. (Arteaga Decl., ¶ 8.)

However, in its reply brief, Defendant states that it is now seeking $5,750, consisting of the time counsel spent on the moving papers ($2,200), 3 hours that his associate spent preparing for and attending the IDC at a billing rate of $250 per hour ($750), 4 hours counsel spent on the reply at his $400 per hour billing rate ($1,600), and 3 hours he anticipates spending at (or preparing for) the hearing at his $400 per hour billing rate ($1,200). (Arteaga Decl., ¶ 10.)

“A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.” (Code Civ. Proc., § 2023.040.)

Here, the Notice of Motion requested $2,260. Therefore, the Court declines to award sanctions above that amount. In any event, the Court finds sanctions of $5,750 excessive.

For those reasons, the Court grants the request for monetary sanctions, but in the reduced amount of $2,260.

The Court rules on the Motion to Compel Further Responses to Form Interrogatories, Set No. One, as follows. The Court GRANTS Defendant Law Office of Steven R. Espinoza’s request to compel Plaintiff Juan Carlos Rosas Hernandez’s further responses to form interrogatories Nos. 2.3 and 17.1(b). The Court DENIES the request to compel further response to No. 17.1(c). The Court orders Plaintiff to serve his further responses, without objections, within 20 days of this ruling.

The Court GRANTS the request for sanctions, but in the reduced amount of $2,260. Sanctions are imposed against Plaintiff and counsel of record, jointly and severally. Plaintiff and his counsel, jointly are ordered to pay Defendant Law Office of Steven R. Espinoza $2,260 in sanctions within 20 days 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’s 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