Judge: Margaret L. Oldendorf, Case: 22AHCV00067, Date: 2022-10-13 Tentative Ruling

Case Number: 22AHCV00067    Hearing Date: October 13, 2022    Dept: P

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

NORTHEAST DISTRICT

I.         INTRODUCTION

            This lawsuit alleges violation of the Unruh Civil Rights Act, Civ. Code §51, et seq., by a restaurant whose website was not fully accessible to visually impaired and blind persons. Plaintiff Perla Mageno (Mageno) is such a person. Mageno alleges her attempts to use the website of Defendant Burgers #3, Incorporated (Burgers #3) were unsuccessful because the website lacks “screen-reader” software that would enable her to access its functions to the same extent as a sighted person.

            At issue here is Burgers #3’s motion to compel further responses to its special interrogatories. For the reasons that follow, the motion is granted in part and denied in part.

II.        LEGAL STANDARD

            A.  Law Governing Unruh Claims

            “California’s Unruh Civil Rights Act provides: ‘All persons within the jurisdiction of this state are free and equal, and no matter what their ... disability ... are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.’ (Civ. Code, § 51, subd. (b).) A plaintiff can recover under the Unruh Civil Rights Act on two alternate theories: (1) a violation of the ADA (§ 51, subd. (f)); or (2) denial of access to a business establishment based on intentional discrimination. (See Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 670, 94 Cal.Rptr.3d 685, 208 P.3d 623.)” Martinez v. San Diego County Credit Union (2020) 50 Cal.App.5th 1048, 1059 (Martinez).

            “To establish a violation, a plaintiff must show: (1) a covered disability; (2) ‘the defendant is a private entity that owns, leases, or operates a place of public accommodation; and (3) the plaintiff was denied public accommodations by the defendant because of [the] disability.’ (Citations.)” Id. at 1060.

            Martinez addresses the question whether a website qualifies as a place of public accommodation. It contains a summary of the differing views district courts have on the issue. While Martinez was pending, Thurston v. Midvale Corp. (2019) 39 Cal.App.5th 634 (Thurston) was decided; that action held that “including websites connected to a physical place of public accommodation is not only consistent with the plain language of Title III, but it is also consistent with Congress’s mandate that the ADA keep pace with changing technology to effectuate the intent of the statute.” Thurston at 644. Finding that websites qualify as places of public accommodation when they are connected to a physical space is referred to as the “nexus theory.” The appellate court in Martinez declined the defendant’s invitation to reject Thurston and its nexus theory holding as wrongly decided.

            “We agree instead with each of the courts specifically addressing the issue that the nexus test governs if the ADA is construed to define a public accommodation to include only a physical place. (Citations.) As stated by the Thurston court, ‘ “The statute applies to the services of a place of public accommodation, not services in a place of public accommodation. To limit the ADA to discrimination in the provision of services occurring on the premises of a public accommodation would contradict the plain language of the statute.” ’ (Thurston, at p. 642, 252 Cal.Rptr.3d 292, quoting Robles, at p. 905.) Moreover, a narrower construction would defeat the purposes of the ADA. ‘The ADA is a remedial statute and as such should be construed broadly to implement its fundamental purpose of eliminating discrimination against individuals with disabilities.’ (Thurston, at pp. 642-643, 252 Cal.Rptr.3d 292.) We would be undermining this purpose if we were to conclude that under no circumstances can discrimination on a website be actionable regardless of the connection between the discrimination and the place of public accommodation.” Martinez, supra, 50 Cal.App.5th at 1065-1066.

B. Law Governing Further Responses

Code Civ. Proc. §2030.300 governs motions to compel further responses to interrogatories. It provides as follows:

“(a) 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.”

Motions must be made within 45 days of any response or supplemental response (Subdivision (c)) and must be accompanied by a declaration demonstrating the parties met and conferred to attempt informal resolution; they must also be accompanied by a separate statement or concise outline. (Subdivision (b).)

Subdivision (d) provides for the issuance of monetary sanctions against any party who unsuccessfully makes or opposes a motion to compel further responses, unless the court finds the party who would be subject to sanctions acted with substantial justification or that other circumstances make sanctions unjust.

C. Objections

1. Specific Objections

                        a. Relevance

            Code Civ. Proc. §2017.010 permits a party to “obtain discovery regarding any matter, not privileged, that is relevant to the subject matter . . . if the matter is either itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” According to a leading treatise, “For discovery purposes, information should be regarded as ‘relevant’ to the subject matter if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. [Gonzalez v. Sup.Ct. (City of San Fernando) (1995) 33 CA4th 1539, 1546, 39 CR2d 896, 901 (citing text); Lipton v. Sup.Ct. (Lawyers' Mut. Ins. Co.) (1996) 48 CA4th 1599, 1611, 56 CR2d 341, 347 (citing text); Stewart v. Colonial Western Agency, Inc. (2001) 87 CA4th 1006, 1013, 105 CR2d 115, 120 (citing text)]” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group June 2022), ¶8:66.1.)

A number of the interrogatories at issue here are objected to on the ground of relevance. Mageno urges that the “prior lawsuits have no relevancy to this action” and are not calculated to the lead to the discovery of admissible evidence. But if the information sought would assist Burgers #3 in evaluating the case, preparing for trial, or if it would facilitate settlement, then it is relevant. Interrogatories will be evaluated with these guidelines in mind.

            b. Privacy

Certain information such as social security numbers, tax returns, banking information, medical records, and the like, are protected by a constitutional right to privacy. Calif. Const., Art. 1, §1; County of Los Angeles v. Superior Court (2021) 65 Cal.App.5th 621, 639 (privacy interest in patient medical and prescription records). A privacy interest is qualified, not absolute, and disclosure may be required if a compelling public interest is demonstrated. Cross v. Superior Court (2017) 11 Cal.App.5th 305, 326. The analysis here will turn on what privacy interest Mageno has identified, if any, and whether Burgers #3 has demonstrated a compelling interest that overcomes such privacy interest.

            c. Burden and Oppression

To some interrogatories Mageno raises the objections that they are “oppressive because the burden of answering this interrogatory greatly outweighs the utility of the information,” and that the interrogatory “is designed solely to cause unwanted annoyance, embarrassment, harassment or oppression, and places undue burden and expense on Plaintiff.” The much-cited West Pico Furniture Co. of Los Angeles v. Superior Court (1961) 52 Cal.2d 407, 417-418 (West Pico) has this to say about what is meant by a burden and what is oppressive:

“Oppression must not be equated with burden. The objection based upon burden must be sustained by evidence showing the quantum of work required, while to support an objection of oppression there must be some showing either of an intent to create an unreasonable burden or that the ultimate effect of the burden is incommensurate with the result sought. . . .  But, under the pertinent code sections burden, alone, is not a ground for objection. In addition to expressly incorporating the provisions of subdivision (b) of section 2016, and of subdivision (b) of section 2019, subdivision (b) of section 2030 provides that the court may ‘protect the (objecting) party from annoyance, expense, embarrassment or oppression.’ Subdivision (b) of section 2019 includes similar language, omitting the word ‘expense.’ Each of the sections grants the power to make such orders as justice requires, but none of them so much as refers to ‘burden.’ This indicates a legislative acknowledgment that some burden is inherent in all demands for discovery. The objection of burden is valid only when that burden is demonstrated to result in injustice. Hence, the trial court is not empowered to sustain an objection in toto, when the same is predicated upon burden, unless such is the only method of rendering substantial justice.”

 Mageno has not offered any evidence regarding the “quantum of work” that would be required to respond to an interrogatory. Consequently, the objections that any interrogatory is burdensome is overruled. The objection that an interrogatory is oppressive and/or is intended to cause unwanted annoyance, etc., will be analyzed in light of the information sought.

            d. Miscellaneous

Mageno objects to some interrogatories as assuming facts not in evidence, and to others as vague. These lack merit and are overruled. West Pico, supra, 52 Cal.2d at 421 (“even if both objections [compound and assumes facts not in evidence] were meritorious, that would not be grounds for objection to an interrogatory propounded under the provisions of section 2030”); Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783 (“where the question is somewhat ambiguous, but the nature of the information sought is apparent, the proper solution is to provide an appropriate response”).

            Another objection raised is that the information sought is equally available to the other party. Code Civ. Proc. §2030.220 (c) requires a responding party “who does not have personal knowledge sufficient to respond fully” to make a “reasonable and good faith effort to obtain the information . . . except where the information is equally available to the propounding party.” As stated in Bunnell v. Superior Court (1967) 254 Cal.App.2d 720, 724, “There is statutory precedent in California for placing the burden of research on the propounder of the interrogatory where the records from which the research is to be done are equally available to him.” The analysis here turns on whether the information is equally available to Burgers #3.  

 2. General Objections

Mageno’s responses to the interrogatories are prefaced with a set of “General Objections.” Each of her individual interrogatory responses begins by incorporating all the General Objections and, very often, adding new objections. Frequently, after identifying these numerous objections, a substantive response is provided, “subject to and without waiving” the objections. While not necessarily improper, this method is not particularly enlightening.

A responding party is under a statutory obligation to provide responses that are “as complete and straightforward as the information reasonably available to the responding party permits.” (Code Civ. Proc. §2030.220 (a).) Further, “If only part of an interrogatory is objectionable, the remainder of the interrogatory shall be answered,” and “the specific ground for the objection shall be set forth clearly in the response.” (Code Civ. Proc. §2030.240 (a)(b), italics added.) That is, to be code-compliant, a response should state all  information available and, if there is additional responsive information that is being withheld based on a privilege, it should so state and identify the privilege under which information is being withheld. Prefacing a substantive response with the words, “subject to and without waiving” all objections is not helpful in terms of understanding whether additional information is being withheld based on a privilege, and which privilege is at issue.

            Here, for example, among the General Objections Mageno raises is this: “Plaintiff objects to each of the Interrogatories to the extent they seek documents or information subject to protection under the attorney-client privilege or any other applicable privilege or protection.” However, none of her individual interrogatory responses reiterates this objection (other than the incorporation of all General Objections) or states that information is being withheld based on this privilege. By making the objection in a general way, Mageno has made it impossible to ascertain whether information is being withheld based on attorney-client privilege, or whether any particular objection is at issue.

III.      ANALYSIS

            A. Procedural Considerations

            This motion is timely as it was made within 45 days of service of Mageno’s supplemental responses. (Declaration of Michelle Leight, ¶7 and Exhibit 4.) The motion also complies with the separate statement requirement.

Mageno urges that Burger #3 failed to comply with the meet and confer requirement and failed to request an Informal Discovery Conference (IDC). These arguments fail. Burger #3 sent an extensive meet and confer letter following receipt of Mageno’s initial responses. (Leight Declaration, ¶6 and Exhibit 3.) In response to the meet and confer letter, Mageno sent supplemental responses. Prior to filing this motion Burgers #3 did not send a follow-up meet and confer letter. However, Mageno has not identified any legal authority requiring a new meet and confer effort following supplemental responses.

            Regarding an IDC, Burgers #3 could have but was not required to request one. Code Civ. Proc. §2016.080(a) provides that the court may conduct an IDC upon request of a party or on the court’s own motion. On a go-forward basis, however, the parties in this case are to encouraged to request an IDC prior to filing any discovery motion.

B. Further Responses

            The central issue posed by this discovery dispute is whether Mageno must answer questions about her history of suing businesses whose websites are not fully usable by the visually impaired. In response to Interrogatory 17, which asked Mageno to identify every business she had sued over the last 10 years, Mageno listed the 60 cases she had filed in just the past year. However, she objected to follow-up questions about those cases on relevance and other grounds.

            The parties disagree over whether Mageno’s prior lawsuits are relevant to any legal issue in this case. Burgers #3 takes the position they go to Mageno’s “real motivation” in filing these lawsuits, which, it strongly urges, is not to be a “tester,” as alleged in ¶9 of the complaint, but rather to obtain a quick settlement. Mageno counters by citing cases explaining that advocates such as herself who file multiple suits perform an important function in advancing ADA compliance. “For the ADA to yield its promise of equal access for the disabled, it may indeed be necessary and desirable for committed individuals to bring serial litigation advancing the time when public accommodations will be compliant with the ADA.” D’Lil v. Best Western Encina Lodge & Suites (9^th Cir. 2008) 538 F.3d 1031, 1040. Thus, evidence that Mageno files serial lawsuits resulting in settlements would not necessarily disprove the allegation that she is a “tester.”

Burgers #3 makes a related but slightly different argument, which does have merit. Burgers #3 argues that evidence from prior lawsuits could lead to the discovery of information concerning Mageno’s standing to bring this action, citing Thurston v. Omni Hotels Management Corp. (2021) 69 Cal.App.5th 299, 308-309[1]. This is not quite correct. As this case makes clear, the question is not one of standing but of the merits. It goes to the defense that a plaintiff in an Unruh/ADA case lacks a bona fide interest in using a defendant’s services. Here, Burgers #3’s Answer alleges as a defense that Mageno did not possess a bona fide interest in using its services. Answer at 1:26-28 and 8:20-9:26. It is entitled to conduct discovery on this defense.

            Interrogatory 23 asks Mageno to identify among the cases she filed, those in which her deposition was taken, and Interrogatory 24 asks for the date of the deposition. Mageno’s relevance objections to these interrogatories are overruled. The information sought need not be directly relevant to this litigation. Information about other cases Mageno has filed is potentially useful to Burgers #3 for purposes of evaluating the case and possibly settling it.

Whether Mageno’s former testimony would be admissible here is no basis for disallowing the interrogatory, as admissibility is not the test. That objection is overruled.

The privacy objection lacks merit since litigation is generally open to the public. Thus, except as to sealed documents, the privacy objection is overruled. Objections that the interrogatories are vague, compound, and argumentative are overruled. Objections that the interrogatories are oppressive or are intended to cause annoyance or embarrassment are also overruled.

            Objection that the information is equally available to the propounding party is a closer call. If Mageno and Burgers #3 were both third parties, then for one of them to ask the other to identify all cases of a certain type could implicate this objection. But here, Mageno is the plaintiff in each of the cases. She is in a much better position to answer this interrogatory than Burgers #3 is. The objection is therefore overruled.

            Interrogatory 25 asks Mageno to list the total amount of money she has received as a result of settling lawsuits in which she was a plaintiff since 2015. As an initial observation, Mageno’s privacy objection is at odds with her objection that the information is equally available to Burgers #3. To the extent the information is publicly available, she has not identified a protectable privacy right. Mageno’s objection that the information sought is subject to confidentiality pursuant to Evidence Code § 1152 is overruled. Burgers #3 is not seeking information concerning offers to compromise.

            All other objections, including relevance, are overruled. Discovery of amounts Mageno received in settlement of prior lawsuits may assist Burgers #3 in evaluating and settling the present action.

            In opposing this motion, Mageno raises a new argument:  most if not all the cases she has settled are subject to confidentiality agreements. To the extent that is true, Mageno should so state in her further response. Otherwise, her further response to this interrogatory should state the amount she has received as a result of settling lawsuits.

            Interrogatories 26-33 seek information about Mageno’s other sources of income. Interrogatory 26 asks Mageno to “list the total amount of income that you received from sources other than the resolution of lawsuits in 2015.” Interrogatory 27 asks the same about 2016, Interrogatory 28 about 2017, and so forth to Interrogatory 33, which seeks information about 2022 up to the present.

            Mageno’s privacy objection is implicated by these interrogatories. How much Mageno earns and the source of her income is generally private information. Burgers #3 has the burden of demonstrating a compelling public interest that overcomes this privacy interest. Its argument that the information sought is relevant to Mageno’s allegation she is an advocate for the visually impaired and to Burgers #3’s contrary contention that she is instead an individual who is motivated by quick settlement, is not persuasive.

            Burgers #3 has not articulated a compelling public interest in the information. Therefore, the privacy objection is sustained.

            C. Sanctions

            Because the motion is granted in part and denied in part, it cannot be said that either party either made or opposed the motion without substantial justification. Therefore, the sanction requested by both Burgers #3 and Mageno are denied.

IV.      CONCLUSION AND ORDER

            For the reasons articulated and based on the rulings to objections, Burgers #3’s motion to compel further responses to Special Interrogatories is granted as to Interrogatories 23, 24, and 25, and is otherwise denied. All requests for monetary sanctions are denied. Mageno is ordered to provide further verified responses within 20 days of service of notice of this order. Burgers #3 is ordered to provide notice.

Dated:                                                                        _______________________________

                                                                                          MARGARET OLDENDORF

                                                                                 JUDGE OF THE SUPERIOR COURT