Judge: Mark A. Young, Case: 19SMCV00056, Date: 2023-07-20 Tentative Ruling

Case Number: 19SMCV00056    Hearing Date: October 20, 2023    Dept: M

CASE NAME:           Marasco, v. 1753 9th Street LLC, et al.

CASE NO.:                19SMCV00056

MOTION:                  Motion to Compel Further Responses

HEARING DATE:   10/20/2023

Legal Standard

            In the absence of contrary court order, a civil litigant’s right to discovery is broad. “[A]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action . . . if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (CCP § 2017.010; see Davies v. Superior Court (1984) 36 Cal.3d 291, 301.) “For discovery purposes, information is relevant if it ‘might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement.’ [Citation] Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence. [Citation] These rules are applied liberally in favor of discovery.” (Gonzales v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.)

A motion to compel further responses to form (FROG) or specially prepared interrogatories (SROG) may be brought if the responses contain: (1) answers that are evasive or incomplete; (2) an unwarranted or insufficiently specific exercise of an option to produce documents in lieu of a substantive response; or (3) unmerited or overly generalized objections.  (CCP § 2030.300(a).)   

            A motion to compel further responses be brought based on responses to requests for admission (RFA) that: (1) provide evasive or incomplete answers; or (2) make unmeritorious or overly-generalized objections.  (CCP., § 2033.290(a).) However, a motion to compel further responses cannot compel the admission of matters already denied.  (Holguin v. Superior Court (1972) 22 Cal.App.3d 812, 821.)

            A motion to compel further must be noticed within 45 days of the service of a response, or any supplemental response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing. Otherwise, the propounding party waives any right to compel further response to the inspection demand. (See, e.g., CCP § 2031.310(c).)

            Motions to compel further responses must always be accompanied by a meet-and confer-declaration (per CCP § 2016.040) demonstrating a “reasonable and good faith attempt an informal resolution of each issue presented by the motion.” (CCP §§ 2030.300(b), 2031.310(b)(2), 2033.290(b).) They must also be accompanied by a separate statement containing the requests and the responses, verbatim, as well as reasons why a further response is warranted. (CRC, rule 3.1345(a).) The separate statement must also be complete in itself; no extrinsic materials may be incorporated by reference. (CRC rule 3.1345(c).)

            If a timely motion to compel has been filed, the¿burden is on the responding party¿to justify any objection or failure fully to answer.¿(Coy v. Superior Court (1962) 58 Cal.2d 210, 220–221 [addressing a motion to compel further responses to interrogatories]; see also¿Fairmont Ins. Co. v. Superior Court¿(2000) 22 Cal.4th 245, 255.)

Analysis

Plaintiff Theresa Marasco moves to compel further responses from Defendant 1753 9TH Street LLC as to Plaintiff’s Form Interrogatories, Set One (“FROGs”) and Requests for Admissions, Set One (“RFAs”). Plaintiff also requests that the Court sanction Defendant and its counsel of record, Kere Tickner, Esq., Mary Kate Sullivan, Esq., and/or Joel Spann, Esq., jointly and severally, in the sum of $6,593.49 and $5,678.24 for having to bring the two motions.

Discovery at Issue

On November 13, 2022, Plaintiff served Defendant with FROGs and RFAs by electronic mail. Following meet and confer efforts, on February 17, 2023, Defendant served its current responses. Plaintiff asserts that when a category was not improperly objected to, the responses were not specific, and the production simply consisted of Plaintiffs’ own document production. Plaintiff notes that apparently Defendant merely deleted Plaintiff’s Bates Number from the document, replaced it with their own Bates Number, and served them back upon Plaintiff.

Generally, Defendant admits that the current responses are deficient. Counsel promises to endeavor to provide code-compliant responses within 30 days of this order. For guidance, the Court will briefly address each group of requests/responses as provided in the separate statements.  In summary, the motion to compel further responses to the FROGs is GRANTED as to all cited FROGs except no. 3.3 and RFAs nos. 3 and 6.

FROG No. 3.3

Defendant responded that this subsection was not applicable. This response is acceptable, as it unambiguously states that there are no other names used by the company during the past 10 years. No further response is required.

FROG No. 4.1

Defendant provides unreasonable boilerplate objections to this FROG and otherwise provides an evasive response. A further response is required.

FROG Nos. 12.1-12.7

Defendant provides unreasonable boilerplate objections to these FROGs, and otherwise provides evasive responses. Further responses are required.

FROG Nos. 13.1-13.2

Defendant provides unreasonable boilerplate objections to these FROGs, and otherwise provides evasive responses. Further responses are required.

FROG Nos. 14.1-14.2

Defendant provides unreasonable boilerplate objections to these FROGs, and otherwise provides evasive responses. Further responses are required.

FROG No. 15.1

Defendant provides an evasive response as to (a) and (c). Defendant does not identify any facts which Defendant bases the denials. Defendant also provides the unhelpful response of identifying all documents produced in discovery. Further responses are required.

FROG Nos. 16.1-16.10

Defendant provides unreasonable boilerplate objections to these FROGs, and otherwise provides evasive responses. Further responses are required.

FROG No. 17.1

Defendant provided multiple denials against the RFAs. In this FROG, Defendant failed to provide explanations for each response that was not an unqualified admission. Therefore, further responses are required, and must be consistent with any further responses to RFAs.

FROG Nos. 50.1-50.6

Defendant provides unreasonable boilerplate objections to these FROGs, and otherwise provides evasive responses. Further responses are required.

RFA no. 2

Defendant provides an evasive response to this RFA. Defendant both responds that it “lacks information, knowledge, or belief as to either admit or deny this request” and also “denies” the RFA. This contradictory response is not code compliant. A further response is required.

RFA no. 3

Respondent provides an unqualified admission. Therefore, a further response is not required. (See American Federation of State, County & Municipal Employees v. Metropolitan Water Dist. of Southern Calif., (2005) 126 Cal.App.4th 247, 268 [denial following boilerplate objections was unequivocal].)

RFA no. 4

Defendant provides an evasive response to this RFA. Defendant both responds that it “lacks information, knowledge, or belief as to either admit or deny this request” and also “denies” the RFA. This contradictory response is not code compliant. A further response is required.

RFA no. 5

Defendant provides an evasive response to this RFA. Defendant both responds that it “lacks information, knowledge, or belief as to either admit or deny this request” and also “denies” the RFA. This contradictory response is not code compliant. A further response is required.

RFA no. 6

Respondent provides an unqualified denial. A further response is not required.

RFA nos. 7-18

Defendant provides evasive responses to these RFAs. The RFAs request an admission to liability on each cause of action. Defendant denies that there has been an adjudication as to its liability on each cause of action. Defendant’s denials reframe the requests to avoid the call of the question. Further responses are therefore required.

RFA nos. 19-22

Defendant provides evasive responses to these RFAs. Defendant both responds that it “lacks information, knowledge, or belief as to either admit or deny this request” and also “denies” the RFAs. This contradictory response is not code compliant. Further responses are required.

RFA no. 23

Defendant provides an evasive response. The RFA requests an admission that there are no affirmative defenses. It does not ask whether Defendant alleged affirmative defenses. Defendant denies on the basis that it has asserted affirmative. Defendant’s denial reframes the request to avoid the call of the question. A further response is therefore required.

RFA no. 24-26

Defendant provides evasive responses to these RFAs. Defendant both responds that it “lacks information, knowledge, or belief as to either admit or deny this request” and also “denies” the RFAs. This contradictory response is not code compliant. Further responses are required.

Conclusions

The motion to compel further responses to the FROGs is GRANTED as to all cited FROGs except no. 3.3.  The motion to compel further responses to the RFAs is GRANTED as to all cited RFAs except nos. 3 and 6.

SANCTIONS

Sanctions are mandatory. The Court must sanction any party that unsuccessfully makes or opposes a motion to compel a further response, “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.” (See, e.g., CCP, § 2030.300(d).) Here, sanctions are mandatory as Defendant failed to justify the evasive responses or their objections.

Plaintiff requests sanctions against Defendant and its former counsel of record, Kere Tickner, Esq., Mary Kate Sullivan, Esq., and/or Joel Spann, Esq., jointly and severally, in the sum of $6,593.49 and $5,678.24.

The Court finds that the imposition of sanctions would be unjust against Defendant, as the record suggests that the prior counsel of record was responsible for the discovery misconduct. Current counsel provides that Defendant was simply an entity relying on the expertise of prior counsel for its defense, and should therefore not be sanctioned. The Court is inclined to grant the noticed sanctions against its former counsel of record only.

The Court finds that the requested sanctions are unreasonably high given the circumstances. There is substantial overlap between the four motions in this discovery dispute, including in the meet and confer efforts and the memoranda filed. Further, the rates requested are unreasonably high and not based on counsel’s hourly rate of $495.00 per hour. Thus, the Court is inclined to grant sanctions as follows. As to the FROGs, the Court will grant sanctions in the reduced amount of $555. As to the RFAs, the Court will grant sanctions in the reduced amount of $555.  Accordingly, the sanctions request is GRANTED in the total amount of $1,110.00, inclusive of costs, against Defendant’s former counsel of record, Kere Tickner, Esq. and Severson & Werson jointly and severally, payable within 30 days.