Judge Lee S. Arian, Case Number: 22STCV09280, Date: 2023-11-30 Tentative Ruling

This action arises from Plaintiff allegedly being attacked by a dog. On April 26, 2023, Plaintiff Jaheim Martin (“Plaintiff”) filed a complaint against Defendants Malin Asset Management, Klint Brenna aka Klint Bremma, Benna Kay Klink, Charlavonna M. Barrett, and Does 1 through 100, alleging causes of action for strict liability and general negligence.

On June 3, 2023, Defendant Charlavonna M. Barrett filed a cross-complaint against Brenna Kay Klink and Roes 1 to 10, alleging causes of action for indemnification, apportionment of fault, and declaratory relief.

On October 10, 2023, Defendant Charlavonna M. Barrett (“Moving Defendant”) filed a motion to compel Plaintiff’s further responses to Form Interrogatories, Set One, Numbers 1.1, 2.1, 2.2, 2.5, 2.6, 2.7, 2.8, 2.9, 2.10, 2.11, 2.12, 2.13, 4.1, 4.2, 6.1, 6.2, 6.3, 6.4, 6.5, 6.6, 6.7, 7.1, 7.2, 7.3, 8.1, 8.2, 8.3, 8.4, 8.5, 8.6, 8.7, 8.8, 9.1, 9.2, 10.1, 10.2, 10.3, 11.1, 11.2, 12.1, 12.2, 12.3, 12.4, 12.5, 12.6, 12.7, 13.1, 13.2, 14.1, and 14.2 (the “Form Interrogatories”), which were originally served upon Plaintiff on June 23, 2023 (the “Motion”). The Motion is made on the grounds that Plaintiff served objection-only responses to Moving Defendant’s Form Interrogatories. Moving Defendant does not request any monetary sanctions for bringing the Motion.

On October 25, 2023, the Court granted N. Alex Lopez’s motion to be relieved as counsel for Plaintiff. On November 2, 2023, a proof of service was filed indicating that Plaintiff was served with the order granting the motion to be relieved as counsel.

On November 28, 2023, an Informal Discovery Conference (“IDC”) was scheduled. The IDC was not called for a hearing and there was no appearance by or for Plaintiff and there was no communication with the Court as to why there was no appearance. (11/28/23 Minute Order.) The Court ruled from chambers that Moving Defendant “has met the informal discovery conference requirement.” (Id.)

The Motion is unopposed. Any opposition to the Motion was required to have been filed and served at least nine court days prior to the hearing. (Code Civ. Proc., § 1005, subd. (b).)

In California, discovery statutes “must be construed liberally in favor of disclosure unless the request is clearly improper.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 541.) “Under the discovery statutes, information is discoverable if it is unprivileged and is either relevant to the subject matter of the action or reasonably calculated to reveal admissible evidence.” (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1186.) “Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action.” (Ibid.)

A party may move for an order compelling a further response to interrogatories where an answer to a particular interrogatory is evasive or incomplete. (Code Civ. Proc., § 2030.300, subd. (a)(1).) A further response to interrogatories may also be compelled where an objection is without merit or is too general. (Code Civ. Proc., § 2030.300, subd. (a)(3).)

“The Discovery Act requires that, prior to the initiation of a motion to compel, the moving party declare that he or she has made a serious attempt to obtain an informal resolution of each issue.” (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1016.) “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc., § 2016.040.)

The Court finds that the meet and confer requirement has not been met under Code Civ. Proc., § 2016.040. (Rickett Decl., ¶ 6 and Exhibit B.) Moving Defendant’s counsel sent a letter to Plaintiff’s counsel requesting further responses to the Form Interrogatories and raising the issue of Plaintiff’s objections to the Form Interrogatories. (Id.) Counsel’s meet and confer correspondence, however, did not address the lack of verifications to the Form Interrogatories even though counsel attests that Plaintiff provided unverified responses. (Rickett Decl., ¶ 6.) Counsel merely wrote that “Plaintiff’s responses are incomplete, inadequate, and not well taken.” (Id., ¶ 6 and Exhibit B.)

While the Court can deny the motion solely on this ground, the Court will discuss additional procedural issues with the Motion.

A motion to compel further responses to interrogatories requires a separate statement. (Cal. Rules of Court, Rule 3.1345, subd. (a).) “The separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and the full response.” (Cal. Rules of Court, Rule 3.1345, subd. (c).) “The separate statement must include—for each discovery request (e.g., each interrogatory, request for admission, deposition question, or inspection demand) to which a further response . . . is requested . . . the text of the request, interrogatory, question, or inspection demand.” (Cal. Rules of Court, Rule 3.1345, subd. (c)(1).)

Moreover, a separate statement must include “[a] statement of the factual and legal reasons for compelling further responses . . . as to each matter in dispute.” (Cal. Rules of Court, Rule 3.1345, subd. (c)(3).) A separate statement is not required “(1) When no response has been provided to the request for discovery; or (2) When a court has allowed the moving party to submit—in place of a separate statement—a concise outline of the discovery request and each response in dispute.” (Cal. Rules of Court, Rule 3.1345, subd. (b).) A court has discretion to deny a motion to compel discovery where the separate statement is procedurally non-compliant. (Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 891-892.)

The Court finds that Moving Defendant’s Separate Statement in support of the Motion is deficient. The Court has not allowed Moving Defendant to submit a concise outline of the discovery request and responses in dispute and Moving Defendant does not contend that no responses were received. Moving Defendant has failed to set forth the text of the disputed interrogatories in the Separate Statement. Moving Defendant has only included the following in the Separate Statement pursuant to each interrogatory: (1) Plaintiff’s Responses; and (2) Moving Defendant’s Requested Further Response.

Additionally, the Court also finds that inconsistencies exist with the Memorandum of Points and Authorities and the Separate Statement. While the Memorandum of Points and Authorities states that Plaintiff objected to the Form Interrogatories, the Separate Statement indicates that Plaintiff failed to answer certain interrogatories or provided answers to some interrogatories. (Separate Statement at 7:11-13, 9:14-16.)

Moreover, the Court notes that Plaintiff’s discovery responses are not before the Court. Moving Defendant did not attach Plaintiff’s purportedly deficient responses to the Form Interrogatories to the declaration of counsel in support of the Motion. The only documents before the Court are: (1) the Form Interrogatories propounded by Moving Defendant to Plaintiff, and (2) counsel’s meet and confer correspondence.

In support of the Motion, Moving Defendant’s counsel declares that Plaintiff provided unverified responses to the Form Interrogatories. (Rickett Decl., ¶ 6.)

“Unverified responses are tantamount to no responses at all.” (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.)

Given that Plaintiff provided no verifications to the Form Interrogatories, Moving Defendant’s instant motion to compel further responses is procedurally improper. Moving Defendant should have filed a motion to compel responses under Code Civ. Proc., § 2030.290, which addresses motions to compel initial responses to interrogatories. The Court cannot rule on a motion to compel further responses when no responses have been received under Appleton v. Superior Court, supra, 206 Cal.App.3d 632 due to the lack of verifications.

The Motion is therefore DENIED WITHOUT PREJUDICE. The Court cannot reach the merits of the Motion or grant the Motion as it is procedurally improper.

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.

Hon. Lee S. Arian

Judge of the Superior Court