Judge: Lee S. Arian, Case: 22STCV02681, Date: 2023-11-14 Tentative Ruling

Case Number: 22STCV02681    Hearing Date: November 14, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

                    I.INTRODUCTION 

On January 24, 2022, Plaintiff Maria Guadalupe Salazar Soto (“Plaintiff”) filed a complaint against Defendant 99 Cents Only Stores, LLC (“Defendant”) alleging two causes of action for premises liability and general negligence arising from an incident when Plaintiff was exiting the Defendant’s restroom and was hit with a cart stacked with boxes.

On May 10, 2022, Defendant filed an Answer.

On September 15, 2023, Plaintiff filed two Motions to Compel Further Discovery Responses. On October 27, 2023, Defendant filed an Opposition. On November 7, 2023, Plaintiff filed a Reply. (Plaintiff has filed both motions to compel interrogatories and requests for production; the Court addresses both below, though because the legal standards are generally the same, it does not repeat those standards.)

                 II.LEGAL STANDARD 

The propounding party may bring a motion to compel further responses to interrogatories if the propounding party deems that production is deficient, incomplete, or contains meritless objections.  CCP § 2030.300(a).  The legal burden to justify refusing or failing to provide discovery lies with the objecting party.  (Coy v. Superior Court (1962) 58 Cal.2d 210, 220). 

The motion must be accompanied by a good-faith meet-and-confer declaration. CCP § 2031.310(b). “A determination of whether an attempt at informal resolution is adequate . . . involves the exercise of discretion.” (Stewart v. Colonial W. Agency (2001) 87 Cal.App.4th 1006, 1016).  “The history of the litigation, the nature of the interaction between counsel, the nature of the issues, the type and scope of discovery requested, the prospects for success and other similar factors can be relevant.  Judges have broad powers and responsibility to determine what measure and procedures are appropriate in varying circumstances.”  Id. 

CCP § 2030.300 provides the court shall apposes monetary sanctions against a person, party, or attorney that unsuccessfully makes or opposes a motion to compel further response, unless that subject to sanction acted “with substantial justification or other circumstances make the imposition of sanctions unjust.”  CCP § 2023.010(h).  The court “may impose a monetary sanction” against any attorney or party, or both, to pay the reasonable expenses, including attorney fees, if there has been a “misuse of the discovery process.  CCP § 2023.030(a).  “A trial court has broad discretion when imposing a discovery sanction.”  (Lee v. Lee (2009) 175 Cal.App.4th 1553, 1559). 

              III.DISCUSSION 

Motion to Compel Interrogatories

Plaintiff moves to compel Defendant to provide further responses to both the Special and Form Interrogatories, Set One. Specifically, Plaintiffs moves to compel further responses to Special Interrogatories Nos. 1-13 and 16, as well as to Form Interrogatories No. 15.1.  

Special Interrogatories:  

1.       DESCRIBE IN DETAIL every statement made by any party to this action concerning how the INCIDENT occurred.

2.       DESCRIBE IN DETAIL every statement made by any other person who YOU believe may have witnessed any fact regarding the INCIDENT.

3.       For each person that YOU contend caused or contributed to causing, in any way, the occurrence of the INCIDENT, DESCRIBE IN DETAIL all facts upon which YOU base such contention.

4.       DESCRIBE IN DETAIL how the INCIDENT occurred.

5.       DESCRIBE IN DETAIL YOUR contention that Plaintiff is not truthful in alleging injuries sustained as a result of the INCIDENT.

6.       DESCRIBE IN DETAIL YOUR contention that YOU are not 100% at fault in causing this INCIDENT.

7.       DESCRIBE IN DETAIL YOUR contention that YOU are not 100% responsible in causing this INCIDENT.

8.       DESCRIBE IN DETAIL YOUR contention that YOU are not 100% negligent in causing this INCIDENT.

9.       DESCRIBE IN DETAIL YOUR contention that YOU are not 100% liable in causing this INCIDENT.

10.   DESCRIBE IN DETAIL YOUR contention that Plaintiff was not injured as a result of this INCIDENT.

11.   DESCRIBE IN DETAIL YOUR contention that Plaintiff was at fault in causing this INCIDENT.

12.   DESCRIBE IN DETAIL YOUR contention that some third person or party is responsible for causing this INCIDENT.

13.   DESCRIBE IN DETAIL all facts that support YOUR contention that Plaintiff is responsible for causing this INCIDENT.

14.            

15.           J

16.   DESCRIBE IN DETAIL how YOU believe the INCIDENT occurred.

Form Interrogatory:

15.1: Identify each denial of a material allegation and each special or affirmative defense inyour pleadings and for each: a) State facts upon which you base the denial or special affirmative defense; b) State the names, addresses, and telephone numbers of all persons who have knowledge of those facts; c) Identify all documents and other tangible things that support your denial or special affirmative defense, and state the name, address, and telephone number of the person who has each document.

Plaintiff propounded discovery on January 3, 2023, with responses provided on March 3, 2023. The parties met and conferred and on May 11, 2023, Defendant provided responses for review. Defendant provided further responses on May 18, 2023. The parties then participated in an Informal Discovery Conference, whereby the parties were ordered to meet and confer further and to submit a Notice of Ruling following the meet and confer. On September 1, 2023, Defendant served further responses.

            Plaintiff argues that Defendant’s responses are improper because they are evasive and not straightforward. While Defendant claims to not have sufficient knowledge of certain information, Plaintiff argues that this response is illogical as Defendant had the former employee’s statement. Plaintiff further argues that Defendant cannot claim that certain information, such as the employer’s statement, is privileged as the statements are not privileged. As to Form Interrogatory 15.1, Plaintiff argues that Defendant has pled 50 affirmative defenses, but has not provided any facts to support these defenses, despite having Plaintiff’s discovery responses, medical records, and the former employee’s statement.

            Defendant argues that the information requested is privileged. Specifically, the incident report is considered work product. The incident report was created in anticipation of litigation. The document, as indicated by Defendant’s Senior Corporate Paralegal Mary Delgado, is labeled with “Confidential Information. Property of 99 Cents Stores, LLC. Distribution limited to authorized personnel only.” The incident report contains information about the incident, statements made by employees and the resulting investigation, all of which was done for the purpose of helping counsel prepare against any claims. (Opp. 6: 1-6.)

            The Court finds that Defendant’s claim for privilege is valid as to the Special Interrogatories. Defendant relies on Scripps Health, which the Court finds instructive. There, plaintiffs in a wrongful death action sought records of any and all incidents during the decedent’s time that were not medical records. Defendant responded that the requests were work product and privileged.

            The Court of Appeal determined that when a corporate employer makes a report, whether the report is privileged depends on the dominant purpose. (Scripps Health v. Superior Court (2003) 109 Cal.App.4th 529, 533.) The Court stated “Scripps's corporate in-house counsel declared that the occurrence reports are confidential records prepared by Scripps employees under its Risk Management Plan (the Plan) and pursuant to the directive of its Legal Department. The Plan was devised so that Scripps could participate in a self-insurance program for professional liability claims.” (Id. at 534–535.) Thus, these reports were “primarily created for the purpose of attorney review whether or not litigation is actually threatened at the time a report is made” (Id.) In Scripps, the incident reports included at the top of the form “CONFIDENTIAL REPORT OF INCIDENT (NOT PART OF MEDICAL RECORD).” (Id. at 534.) Here, as the Declaration of Ms. Delgado indicates, the incident report contains similar text, reading “Confidential Information. Property of 99 Cents Stores, LLC. Distribution limited to authorized personnel only.” (Dec. Delgado ¶ 2.) While Plaintiff claims in its Reply that Defendant has not provided a policy or procedure that states that “collecting such reports, statements, and information is made for the purpose of litigation.” (Reply 3: 1-4.) However, the Court finds this argument unavailing. Plaintiff does not provide any authority that indicates there must be a policy in writing about the purpose of the incident report. Further, in Scripps, the Court of Appeal makes no mention of a policy, but does rely on Scripps’s corporate in-house counsel, who declared that the reports were confidential, as stated above. (Id. at 534-535) Similarly, the Court finds that while there is no set policy concerning the incident’s report main purpose, the Declaration of Ms. Delgado is sufficient, as it provides that the reports are confidential in nature, sent directly to the Risk Management Department, and that the purpose is for “Corporate Counsel to assess internal risks and to create claims profile in the event the incident leads to litigation.” (Dec. Delgado, ¶¶ 2-4.)

            Therefore, looking at Defendant’s multiple responses as to the Special Interrogatories, the claim of privilege is valid. Additionally, after making these objections, which the Court does find some to be boilerplate, Defendant did indicate that it did not have sufficient knowledge to respond.

As to the Form Interrogatory 15.1, the Court finds Defendant’s response insufficient. Defendant relies on CCP § 2030.230. It states that if an answer would:

necessitate the preparation or the making of a compilation, abstract, audit, or summary of or from the documents of the party to whom the interrogatory is directed, and if the burden or expense of preparing or making it would be substantially the same for the party propounding the interrogatory as for the responding party, it is a sufficient answer to that interrogatory to refer to this section and to specify the writings from which the answer may be derived or ascertained.

Here, Defendant has raised 50 affirmative defenses, but only provided one paragraph about general denials and affirmative defenses. In Liberty Mutual Fire Ins. Co., the Court of Appeal determined that a trial court did not abuse its discretion when it determined that,

LCL was being “evasive” when it tendered discovery responses that submitted no meaningful information and claimed throughout that information will be “developed” by “future discovery,” especially where the case had been active for 16 months, LCL repeatedly ignored meet and confer letters, continued to parrot the same answers after two orders compelling it to give further responses, and propounded no discovery of its own until faced with a motion for terminating sanctions.”

(Liberty Mutual Fire Ins. Co. v. LcL Administrators, Inc. (2008) 163 Cal.App.4th 1093, 1102–1103.)

While here the parties have met and conferred multiple times, the Court still finds the response to Form 15.1 insufficient. The Court finds it odd that while there were 50 affirmative defenses raised, Defendant could not provide any facts, any contact information, or any documents to support these defenses. As Defendant states, it provided the last known contact information for the former employee, yet failed to include that information in this response. It is reasonable to infer that with any of these defenses, the former employee who is to have allegedly ran into Plaintiff would have some facts about it.

      Motion to Compel Document Production

Plaintiff moves to compel Defendant to provide further responses to Requests for Production of Documents, Set One. Specifically, Plaintiffs moves to compel further responses to Request for Production of Documents, Set One, Nos. 1-8, 10, 11, 19, and 25.

Requests for Production of Documents

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

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

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

-        No. 4: All DOCUMENTS that support YOUR contention that YOU were not 100% negligent for this INCIDENT.

-        No. 5: All DOCUMENTS that support YOUR contention that YOU were not 100% at fault in causing this INCIDENT.

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

-        No. 7: All DOCUMENTS that support YOUR contention that some other person or entity is responsible for this INCIDENT.

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

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

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

-        No. 19: All DOCUMENTS concerning claims for personal injuries made by Plaintiff before this INCIDENT.

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

Plaintiff propounded discovery on January 3, 2023, with responses provided on March 3, 2023. The parties met and conferred and on May 11, 2023, Defendant provided responses for review. Defendant provided further responses on May 18, 2023. The parties then participated in an Informal Discovery Conference, whereby the parties were ordered to meet and confer further and to submit a Notice of Ruling following the meet and confer. On September 1, 2023, Defendant served further responses.

            Plaintiff argues that Defendant’s responses are inadequate because they contain boilerplate objections, do not comply with CCP § 2031.240, relies on privileges but does not include factual support to determine if the claim has merit, and the responses do not comply with CCP § 2031.230 as Defendant does not identify why it is unable to comply.

Defendant argues that the information requested is privileged. Specifically, the incident report is considered work product. The incident report was created in anticipation of litigation. The document, as indicated by Defendant’s Senior Corporate Paralegal Mary Delgado, is labeled with “Confidential Information. Property of 99 Cents Stores, LLC. Distribution limited to authorized personnel only.” The incident report contains information about the incident, statements made by employees and the resulting investigation, all of which was done for the purpose of helping counsel prepare against any claims. (Opp. 6: 1-6.)

After reviewing the Requests for Production of Documents, the Court finds that the responses were insufficient as to some responses, specifically Nos. 8, 10, 11, and 25. First, as to Plaintiff’s claim that the responses to not comply with CCP § 2031.240, the Court finds that this is accurate. Under CCP § 2031.240(c)(1), “f an objection is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.” Here, Defendant does object and “refers to the documents identified in the privilege log.” Which documents? This response is insufficient as it does not provide Plaintiff with sufficient factual information to evaluate the claim.

            However, as to the remaining RPD, Nos. 1-7, 19, the court finds that the responses are adequate. Under CCP § 2031.230, if a party indicates that they are unable to comply with the request, they must provide the following:

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. The 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.”

Here, Defendant objects and also includes the following:

Subject to and without waiving these objections: after a diligent search and reasonable inquiring concerning the matters set forth in said request has been made, responding party is unable to comply with said request as it has no such documentation in its possession, custody or control. Responding party is also unaware of any entity or individual who may have the requested documentation. Discovery and investigation are continuing and Defendant reserves the right to supplement this response.

This response complies with CCP § 2031.230.

Sanctions:

Code of Civil Procedure section 2023.030, subdivision (a) provides, in pertinent part, that the court may impose a monetary sanction on a party engaging in the misuse of the discovery process to pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. A misuse of the discovery process includes failing to respond or to submit to an authorized method of discovery. (Code Civ. Proc., § 2023.010, subd. (d).) Further, sanctions are mandatory in the event that a party “unsuccessfully makes or opposes a motion to compel further responses to a demand, unless it finds that the one subject to the sanction acted with substantial justification…” (CCP § 2031.310).

Here, both parties request sanctions. However, the Court finds that sanctions are not appropriate. Defendant did not provide sufficient responses to some of the requests, but did provide code compliant responses to others. Plaintiff was justified in requesting further responses for some, but not all of the requests. Therefore, sanctions will not be given.

Request for Sanctions is DENIED.

              IV.CONCLUSION 

The Motion to Compel Further as to the Special Interrogatories is DENIED. The Motion to Compel Further as to the Form Interrogatories is GRANTED.

The Motion to Compel Further Responses as to the RPDs is GRANTED, in part, and DENIED, in part.

The Request for Sanctions is DENIED.  

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 November 14^th, 2023