Judge Lee S. Arian, Case Number: 21STCV35636, Date: 2023-12-11 Tentative Ruling

On September 28, 2021, Plaintiff Jose Antonio De La Cruz Centeno filed this action against Defendant J& J Snack Foods Corp. for injuries arising from a fall on Defendant’s property.

On December 2, 2022, Plaintiff served Defendant with Form Interrogatories, Special Interrogatories, Requests for Production of Documents, and Requests for Admissions. On January 25, 2023, Defendant provided their objection-only responses to the foregoing discovery. The responses are verified by defense counsel.

On March 29, 2023, Plaintiff filed motions to compel Defendant to serve further, verified responses to Form Interrogatories, Special Interrogatories, Requests for Production of Documents, and Requests for Admissions.

On July 18, 2023, the Court denied the motions regarding Form and Special Interrogatories and Request for Admissions on the grounds that it was without jurisdiction to rule on those motions. The Court continued the motion to compel further responses to the Request for Production to allow the parties to schedule and attend an IDC and ordered the parties to meet and confer and, where possible, narrow the issues.

On September 28, 2023, the Court continued the hearing on the IDC to October 18, 2023. The Court granted Defendant’s request for extension to produce the documents. Plaintiff’s counsel was ordered to file a notice of outcome no later than October 10, 2023.

On October 18, 2023, the Court found that the issues were not resolved and ordered Defendant’s counsel to produce responsive pleading and production of documents with a privilege log (if necessary) by November 1, 2023. The hearing on motion to compel further discovery responses was continued to December 11, 2023.

On November 16, 2023, Plaintiff filed a notice of outcome pursuant to the October 18, 2023, IDC. Plaintiff stated “[he] has yet to receive any responses and/or further responses from Defendant. As such, all items in the original moving papers remain at issue. Since all original items remain as issue, the court should use the original moving papers for the present motion as the operative motion.” (11/16/23 Notice of Outcome.)

Any party may obtain any discovery of information, documents, land, property or electronically stored information so long as the discoverable matter is not privileged, is relevant to the subject matter and can lead one to admissible evidence. (Code Civ. Proc. § 2017.010.) If a court determines the scope of discovery imposes a burden, causes great expense or is intrusive and such outweighs the likelihood that the discoverable information sought will garner admissible evidence, the court shall limit the scope of discovery. (Code Civ. Proc. § 2017.020.)

When responses to an RPD are deficient, the propounding party may file a motion to compel further responses. (Code Civ. Proc. § 2031.310.) A motion to compel further responses to RPDs may be brought when the responses contain: (1) “a statement of compliance when the demand is incomplete;” (2) “answers that are inadequate, incomplete or evasive;” and (3) “an objection to a particular request is without merit or too general.” (Id.)

· RPD No.1: All DOCUMENTS that support YOUR contention that Plaintiff was not injured as a result of this INCIDENT.

· RPD No.2: All DOCUMENTS that support YOUR contention that YOU were not 100% responsible for this INCIDENT.

· RPD No.3: All DOCUMENTS that support YOUR contention that YOU were not 100% liable for this INCIDENT

· RPD No.4: All DOCUMENTS that support YOUR contention that YOU were not 100% negligent for this INCIDENT. RPD No.5: All DOCUMENTS that support YOUR contention that YOU were not 100% at fault in causing this INCIDENT.

· RPD No.6: All DOCUMENTS that support YOUR contention that Plaintiff is responsible for this INCIDENT.

· RPD No.7: All DOCUMENTS that support YOUR contention that some other person or entity is responsible for this incident.

· RPD No.8: Any statement given by YOU concerning the INCIDENT whether written, oral, or taped.

· RPD No.9: Any statement given by Plaintiff concerning this INCIDENT whether written, oral, or taped.

· RPD No.10: Any statement given by any third person or party concerning this INCIDENT whether written, oral, or taped.

· RPD No.11: Any independent witness statements concerning the INCIDENT whether written, oral, or taped.

· RPD No.12: A copy of the insurance policy covering YOUR PREMISES that was in effect at the time of the incident.

· RPD No.13: A copy of any excess insurance policy covering YOUR PREMISES that was in effect at the time of the INCIDENT. RPD No. 14: A copy of the declaration sheet for the insurance policy covering YOUR PREMISES that was in effect at the time of the INCIDENT.

· RPD No.23: All DOCUMENTS identified in YOUR response to Special Interrogatories, Set One.

· RPD No.25: All Accident/Investigation reports in connection with this INCIDENT

· RPD No.26: All DOCUMENTS that YOU intend to introduce at trial that supports YOUR contention that YOU are not responsible for Plaintiff’s injuries sustained as a result of this INCIDENT.

· RPD No.27: All DOCUMENTS reflecting email(s) sent and/or received by YOU relating to the Plaintiff.

· RPD No.28: All DOCUMENTS reflecting email(s) sent and/or received by YOU relating to the INCIDENT

· RPD No.31: All DOCUMENTS related to how YOU learned about how the INCIDENT occurred.

· RPD No.32: All DOCUMENTS regarding each date of inspection by YOU of YOUR PREMISES from October 2011 up to the date of the incident.

· RPD No.33: All DOCUMENTS regarding the results of each inspection conducted by YOU of YOUR PREMISES from October 2011 up to the date of the incident.

· RPD No.34: All DOCUMENTS regarding all recommendations resulting from each inspection conducted by YOU of YOUR PREMISES from October 2011 up to the date of the INCIDENT.

· RPD No.35: All DOCUMENTS regarding any repair of YOUR PREMISES from October 2011 up to the date of the incident.

· RPD No.36: All DOCUMENTS regarding any repair made by YOU of YOUR PREMISES after the date of the INCIDENT.

· RPD No.37: All DOCUMENTS regarding YOUR policies and procedures to clean the interior areas of YOUR PREMISES, including common areas that were in effect during the time of the INCIDENT. RPD No.38: All DOCUMENTS regarding YOUR policies, procedures, and guidelines for responding to a personal injury at the SUBJECT PREMISES in effect on the date of the INCIDENT.

· RPD No.39: All DOCUMENTS regarding any incidents where a PERSON slipped and fell as a result of the condition on YOUR PREMISES from October 2011 to the date of the INCIDENT.

· RPD No.40: All DOCUMENTS regarding the last date prior to the date of the INCIDENT that a potentially unsafe, hazardous, defective, and/or unreasonable condition was discovered on any portion of YOUR PREMISES.

· RPD No.42: All DOCUMENTS regarding how many surveillance video cameras were at the SUBJECT PREMISES at the time of the INCIDENT.

· RPD No.52: All DOCUMENTS related to any agreements, whether written or oral, regarding YOUR PREMISES.

· RPD No.53: All DOCUMENTS related to any lease agreements, whether oral or written, regarding YOUR PREMISES.

Plaintiff argues that Defendant’s responses are improper for the following reasons:

(1) the responses do not comply with Civ. Proc. Code . 2031.240 (b)(2) because Defendant relies on privileges (e.g., “Responding Party will produce all responsive, non-privileged documents”), but has failed to produce a privilege log and/or provided sufficient detail to allay Plaintiff’s belief that the privileges are applicable to the material being withheld;

(2) Defendant’s response does not comport with the requirements of Code of Civil Procedure §2033.230 because Defendant provided boilerplate objections without setting forth clearly the specific grounds for the objection nor did Defendant identify with particularity what documents it is withholding;

(3) Defendant indicated it would provide responsive documents, but has yet to produce the documents;

(4) pursuant to CCP 2031.280(a), Defendant must identify what documents are responsive to the request; and

(5) Defendants responses are not code complaint because Defendant has failed to indicate who may have possession, custody, or control of responsive documents per Civ. Pro. Code . 2031.230.

(Mot. p. 6:3-14.) Plaintiff states “by failing to provide Plaintiff with answers to discovery, Defendant is directly thwarting the purpose and principle of discovery and impeding the search for justice. Without these discovery answers, there is no way that Plaintiff can assess the allegations and prepare for trial. Responses to Request for Production pertain to important issues and the preparation of this party’s defense. Without these responses, Plaintiff is at a significant disadvantage until it receives these answers.” (Id. 6:18-24.)

In opposition, Defendant argues that the motion to compel is untimely and that no Informal Discovery Conference (“IDC”) occurred. As to the first of these arguments, it appears based on the responses attached as an exhibit to the Declaration of Plaintiff’s counsel that no verifications were provided to the responses. If, in fact, there were no verifications, then the motion to compel is not untimely. The Court will hear from the parties regarding whether there was a verification.

With regard to the second argument, that no IDC occurred, the Court will hear from Defendant’s counsel regarding this argument, which appears to be patently false and potentially subject to sanctions, which the Court will address at the hearing.

To the extent Defendant’s timeliness argument is incorrect, the Court finds Plaintiff’s arguments to have merit, finding that the requests are relevant to Plaintiff’s case and that the responses are improper for the reasons identified by Plaintiff.

Accordingly, if the timeliness argument cannot be supported by a verification, the Court intends to GRANT Plaintiff’s motion to compel further responses to Plaintiff’s RPD, Set One, except as to RFP No. 26, for which the Court finds that the attorney work product objection is a sufficient response.

Code of Civil Procedure section 2023.030, subdivision (a) provides that a court may impose a monetary sanction for misuse of the discovery process unless a court finds that the one subject to sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. Code of Civil Procedure section 2023.010, subdivisions (e) and (f) provide that misuse of the discovery process includes making an unmeritorious objection to discovery and making an evasive response to discovery.

Again, to the extent Defendant’s timeliness argument is unsupported, Plaintiffs’ request for monetary sanctions against Defendant and its counsel is GRANTED in the reduced amount of $3,660 (8 hours at $450/hour plus one $60 filing fee). The Court declines to award fees for time spent in reviewing and propounding discovery and meeting and conferring. The Court also reduces the anticipated 1.5 hours to attend hearing to 1 hour. The Court finds 5 hours in drafting the instant motion, 2 hours in reviewing opposition papers and drafting reply, and 1 hour to attend the hearing to be reasonable. Sanctions are to be paid to Plaintiffs’ counsel within 20 days.

Hon. Lee S. Arian

Judge of the Superior Court