Judge Lee S. Arian, Case Number: 21STCV36175, Date: 2023-10-25 Tentative Ruling

On October 1, 2021, Plaintiff Sandra Martinez Basurto (“Plaintiff”) filed this action against Defendants Bodega Latina Corporation dba El Super (“Defendant”) and Does 1 through 50, inclusive, asserting two causes of action for (1) negligence and (2) premises liability.

The Complaint alleges that on or about March 14, 2020, Plaintiff was a lawful invitee at Defendant’s store at 315 San Fernando Mission Blvd., San Fernando, CA 91340 (the “Premises”), when she slipped and fell on a tomato, severely injuring herself. (Compl., ¶¶ 5, 7.)

On July 7, 2023, Plaintiff filed the instant motion to compel Defendant’s further responses to her Form Interrogatories, Set One.

“(a) Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits.

(b) If an interrogatory cannot be answered completely, it shall be answered to the extent possible.

(c) 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.”

In addition, “[i]f an objection is made to an interrogatory or to a part of an interrogatory, the specific ground for the objection shall be set forth clearly in the response.” (Code Civ. Proc., § 2030.240, subd. (b).)

“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).)

Similarly, “[o]n receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: ¶ (1) A statement of compliance with the demand is incomplete. ¶ (2) A representation of inability to comply is inadequate, incomplete, or evasive. ¶ (3) An objection in the response is without merit or too general.” (Code Civ. Proc., § 2031.310, subd. (a).) “The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).)

Motions to compel further responses to interrogatories must be brought within 45 days of service of a verified response, supplemental verified response, or on a date to which the propounding and responding parties have agreed to in writing; otherwise, the propounding party waives the right to compel further responses. (Code Civ. Proc., § 2030.300, subd. (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., § 2030.300, subd. (d).)

“If a party then fails to obey an order compelling further response to interrogatories, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of, or in addition to, that sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).” (Code Civ. Proc., § 2030.300, subd. (e).)

To understand the Plaintiff’s motion, it is helpful to review the relevant procedural background.

On April 25, 2022, Plaintiff filed a motion to compel further responses to
“Plaintiff’s Form Interrogatories to Defendant, Set One” (“FROG”), among other discovery. (Motion, filed April 25, 2022, declaration of Svetlana Liberman, ¶ 3; Exhibit A – copy of the FROGs; Evid. Code, § 452, subd. (d) [providing that a court may take judicial notice of court records].)

On January 25, 2023, the Court held a hearing of the FROG motion, but continued it to February 21, 2023, ordering the parties to meet, confer, and determine which interrogatories were still at issue before the next hearing. (Minute Order dated January 25, 2023, pp. 2-3.) The hearing was subsequently continued to April 13, 2023.

On April 13, 2023, the Court granted Plaintiff’s request to compel Defendant’s further responses to FROG Nos. 15.1, 16.3, 16.4, and 16.5 (the “April 13 Order”). (April 13 Order, p. 13, Conclusion section.) The Court imposed sanctions of $1,560 against Defendant and its counsel of record, jointly and severally, for failing to provide further responses to the FROGs and other discovery. (April 13 Order, pp. 12-13, beginning on the last paragraph of Page 12.) The Court ordered Defendant to pay the sanctions and provide further responses to the FROGs within 20 days of the April 13 Order (i.e., by May 11, 2023). (April 13 Order, p. 13.)

Plaintiff now moves to compel Defendant’s further responses to FROG Nos. 15.1, 16.3, 16.4, and 16.5, arguing that Defendant has still failed to produce code compliant responses. Plaintiff’s counsel attests to the following facts in support of the motion: On May 26, 2023, Defendant served a late, improper, and incomplete third set of its further responses to the FROGS. (Motion, declaration of Svetlana Liberman (“Liberman Decl.”), ¶ 4; Exhibit B – a copy of the third set of further responses to the FROGs.) The Court notes that the third set was verified at the time of service. (See Motion, Liberman Decl., Exhibit B, p. 2, verification provided by Adrian Rios.) On June 28, 2023, Plaintiff’s counsel sent defense counsel a meet and confer letter, seeking to resolve the dispute concerning Defendant’s incomplete responses. (Liberman Decl., ¶ 5; Exhibit C – a copy of the letter.) Defense counsel responded the same day, stating that she would respond to the meet and confer letter, but never did. (Liberman Decl., ¶¶ 6-7.)

This is a continuing dispute regarding interrogatory responses that has already involved the Court multipletimes, albeit, in part, to a different set of interrogatories. In the end, Defendant contends the motion is “moot” because it has agreed to serve further responses to the form interrogatories now at issue. It is helpful that the parties appear to have reached an agreement on further responses, but it is not ideal that they have done so only after (1) legal fees were incurred to bring this motion and (2) involving the Court.

Although Defendant has indicated that it will provide supplemental responses, Defendant’s responses to date are insufficient to make the instant motion moot because “[u]nsworn responses are tantamount to no responses at all.” (Appleton v. Superior Court (1988) 206 Cal. App. 3d 632, 636 [discussing unverified discovery responses].)

Therefore, the Court finds it proper to grant Plaintiff’s request to compel those further responses. The request to compel further responses to FROGs Nos. 15.1, 16.3, 16.4, and 16.5 is granted.

The imposition of sanctions is also proper due to the Defendant’s failure to provide code-compliant and/or verified responses despite being given multiple opportunities to do so. The Court hereby awards sanctions in the amount of $1500 to Defendant.

Plaintiff Sandra Martinez Basurto’s Motion to Compel Further Responses to Form Interrogatories is GRANTED as follows.

The request to compel further responses to Plaintiff’s Form Interrogatories to Defendant Bodega Latina Corporation dba El Super, Set One, Nos. 15.1, 16.3, 16.4, and 16.5 is GRANTED. Defendant is ordered to serve verified, further, code-compliant responses to those interrogatories within 20 days of this ruling.

The request to impose sanctions is GRANTED against Defendant Bodega Latina Corporation dba El Super only. Defendant is ordered to pay Plaintiff sanctions of $1,500 within 20 days of this ruling.

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. Lee S. Arian

Judge of the Superior Court