Judge: Mark H. Epstein, Case: 22SMCV00775, Date: 2023-01-31 Tentative Ruling
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Case Number: 22SMCV00775 Hearing Date: January 31, 2023 Dept: R
Plaintiff’s motions to compel (to the extent not moot) are
GRANTED to the extent it has not been withdrawn. The requests for sanctions are DENIED.
Plaintiff filed a fraud action against defendant concerning the leasing of a motor vehicle. In discovery, plaintiff sought admissions that defendant did not make certain statements to plaintiff or disclose pre-existing issues prior to leasing. Plaintiff also sought information through form interrogatories.
Turning to the RFAs, plaintiff initially sought to compel further responses as to eight of them. Plaintiff withdrew the motion as to three of four as to Kosova. The remaining RFA asks defendant to admit that it “did not disclose to Plaintiff any pre-existing issues” with the car before leasing. The response was that defendant denied “that the subject vehicle had pre-existing issues prior to Plaintiff’s lease.” Plaintiff contends that this is evasive, and it is.
Defendant worries that if they admit the request it will be used as a tacit admission that there was a pre-existing condition, similar to seeking an admission that a party has “stopped using drugs.” If one is forced to answer “admit” or “deny,” the answer impliedly admits that at least in the past the responding party did use drugs. Although the court sympathizes with the defense, the court disagrees. Defendant’s position is that there was no pre-existing condition to disclose. But the RFA does not seek an admission that there was a pre-existing condition, tacitly or otherwise. A proper response could have been ”Admit.” If defendant felt the need to elaborate, defendant could have added a separate sentence stating that “Kosava further states that there were no pre-existing conditions to disclose.” The unqualified admission would have comported with the Code of Civil Procedure. While the added sentence might not be typical, it would have done no harm and it would have stopped plaintiff from attempting to mis-use the admission at a later date. (The court is not suggesting plaintiff would have mis-used the admission; rather the court is saying that defendant could easily have precluded even the risk of such mis-use.) The problem with defendant’s position is that the RFA does not include the tacit factual assumption and thus it is not objectionable. As such, it should have been admitted or denied as written. Defendant did not have the right to re-write the request. This is (in part) because an RFA is not merely an evidentiary statement; it is an admission that takes the need to prove a fact out of the case. By admitting the fact, plaintiff would have been relieved from having to worry about some disclosure coming up or being alleged later. The motion is therefore GRANTED as to this RFA.
RFA 10 as to Marshall sought an admission that Marshall “told” plaintiff that the car “had no known issues with any of its mechanical or nonmechanical components.” RFA 11 seeks an admission that Marshall “made representations” to plaintiff that the car “had no known issues with any of its mechanical or nonmechanical components.” In response to both, Marshall stated that it admitted “that responding party provided a Carfax and NMVTIS report to Plaintiff prior to her lease, and explained that those documents did not show any issues with the vehicle’s mechanical or nonmechanical components.” Plaintiff asserts that these responses are evasive. The court agrees, although this is a closer matter. Marshall cannot re-write the RFA. If the unadorned statements or representations were made, then Marshall must admit as much. Whatever Marshall’s basis for the statements might have been is irrelevant; the point is that the statements or representations were made. If the unadorned statements were not made, then the RFA should be denied. The more detailed explanation—that a more limited representation was made extending only to the Carfax and NMVTIS reports—would have been disclosed in response to interrogatory 17.1. In other words, plaintiff chose to ask for a bold admission. But if the bold statement or representation was not as strongly made as in the admission’s call then the RFA is properly denied. If the bold statement or representation was made, then the RFA is properly admitted. Defendant can explain at trial, if need be, the basis for the admission. That said, though, the matter is close, at least as to RFA 11. The term “made representations” is a bit ambiguous given the answer. Is a statement that the Carfax and NMVTIS showed no issues with the car a “representation” that the car “had no known issues”? The court would say probably not—it is more limited than the unqualified representation for which an admission is requested. But it is not free from doubt, and the court can understand how a defendant could be leery of denying the request only to have plaintiff argue the contrary later. (Recall that if an RFA is denied when it should have been admitted, the propounding party can seek sanctions including attorneys’ fees at trial for the cost of proving up the fact in question.) But although the matter is closer, on balance defendant should have answered the request as phrased and then explained in in FI 17.1 (if the request was denied), or perhaps in a second sentence within the RFA (if admitted). Relatedly, defendant could have objected to the term “representation” and then defined the term reasonably and answered using the defined term. The request is therefore GRANTED as to these two RFA’s. Plaintiff withdrew the motion as to the other two RFA’s.
Turning to the form interrogatories, plaintiff originally sought further responses as to 2.5, 2.8, 12.1, and 17.1 as to Kosova. The 17.1 request has been withdrawn except as it pertains to RFA 7 and 8. The court notes that there was a response as to RFA 7, but as to RFA 8, plaintiff is correct, although that seems to be an oversight and the meet and confer seems garbled. The court begins by observing that form interrogatories are not immune from objection just because the Judicial Council has approved them, but that approval does put a thumb on the scale when one starts raising objections. Of course, not every FI is applicable to every case. And an objection will lie where a box is checked to an interrogatory that is totally off point. But again, at least for background information, that is a steep hill to climb.
As to FI 2.5, plaintiff seeks Kosova’s residential address for the last five years. It is fair to say that defendant has not provided that information, stating instead that Kosova can be reached through counsel. Plaintiff is correct that this information should be provided. Counsel might well be the proper communication conduit—certainly that is the case as to communications from plaintiff’s counsel. But 2.5 is useful for other purposes. If the fear is privacy, that is better addressed by way of a confidentiality order. Defendant’s privacy interests will not prevail over plaintiff’s need for this sort of identifying information. The motion is GRANTED.
FI 2.8 asks if Kosova has been convicted of a felony. Kosova objected and refused to provide any substantive response. Whether or not the evidence is admissible at trial, it is discoverable. No good cause has been shown to refuse the information and the court is not persuaded by the privacy assertion. In many cases, this is a matter of public record. Even where a felony is sealed or expunged, the privacy interest will not outweigh the propounding party’s ability to learn at least the basics of the conviction to determine if it relates to the case at hand or might go to credibility in an admissible way. In other words, it is reasonably calculated to lead to the discovery of admissible evidence, which is probably why the Judicial Council included it on the form. The motion is GRANTED.
FI 12.1 asks Kosova to identify witnesses to the incident. Kosova objected on the basis of work product, but did list some people and stated that their contact information was unknown or they could be contacted through counsel. Plaintiff is entitled to this information, at least absent more of a showing. The identity of witnesses is discoverable, and that includes their contact information. If the witnesses are represented by counsel, then that will pose some issues regarding plaintiff’s counsel contacting them directly but their contact information is still discoverable. And at this point, it is not clear that they are represented anyway. Of course, if Kosova does not know the contact information or the witness’s names, then a statement under oath can be provided, but of course that would not be work product. If the witnesses’ identity was only discovered through work product, then counsel needs to make more of a showing. Among other things, the showing would need to explain whether (and the bases therefor) the work product is qualified or absolute. On this record, though, no such showing was made and thus the objection is waived. The court also notes that the actual objections seem to go more to the content of any witness statements. But FI 12.1 does not seek disclosure of such content; that FI seeks only identifying information. Accordingly, the motion is GRANTED.
That said, the court cannot, and does not, conclude that Kosova is hiding witnesses, as plaintiff argues. The failure to respond to discovery is not the same as secreting evidence.
The identical motion as to Marshall is granted for the same reasons.
As to sanctions, the court is concerned that the initial meet and confer was not adequate. Much, if not all, of the foregoing would have been an easy place for the parties to land had they had an actual meaningful meet and confer. The court will inquire further on that subject. The court is also of the view that the sanctions sought apply to the entire motion, much of which was withdrawn after what appears to have been some additional meet and confer. As such, sanctions as prayed could not be imposed under any circumstances. The parties might want to discuss if the race is worth the candle.