Judge Melvin D. Sandvig, Case Number: 22CHCV01241, Date: 2023-11-14 Tentative Ruling

Judge: Melvin D. Sandvig, Case: 22CHCV01241, Date: 2023-11-14 Tentative Ruling

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Case Number: 22CHCV01241 Hearing Date: November 14, 2023 Dept: F47

Dept. F47

Date: 11/14/23

Case #22CHCV01241

2 MOTIONS TO COMPEL FURTHER RESPONSES

(Requests for Admissions, Set 1)

Motions filed on 7/17/23.

MOVING PARTY: Plaintiff Roland Lemus

RESPONDING PARTY # 1: Defendant Richard Manzaneras

RESPONDING PARTY # 2: Defendant Magali Manzaneras

NOTICE: ok

RELIEF REQUESTED:

(1) An order compelling Defendant Richard Manzaneras to provide a further, verified response, without objections, to Plaintiff Roland Lemus’ Requests for Admissions, Set 1, No.24. Additionally, Plaintiff requests sanctions against Defendant’s counsel in the amount of $1,861.65;

(2) An order compelling Defendant Magali Manzaneras to provide a further, verified response, without objections, to Plaintiff Roland Lemus’ Requests for Admissions, Set 1, No.24. Additionally, Plaintiff requests sanctions against Defendant’s counsel in the amount of $871.65.

RULING: The motions are denied.

SUMMARY OF FACTS & PROCEDURAL HISTORY

This action arises out of a motor vehicle accident. On 5/16/23, Defendants Richard Manzaneras (Richard) and Magali Manzaneras (Magali) (collectively, Defendants) served their responses, which included substantive responses and objections, to Plaintiff Roland Lemus’ (Plaintiff) first set of written discovery. On 6/2/23, Defendants served verifications for the responses. On 6/8/23, Plaintiff’s counsel sent a meet and confer email to Defendants’ counsel regarding deficient responses to certain of the discovery requests. Defendants’ counsel never responded to the meet and confer email. On 7/17/23, Plaintiff filed and served the instant motions seeking orders compelling Richard and Magali to provide a further, verified response without objections, to Plaintiff’s Requests for Admissions, Set 1, No.24. Additionally, Plaintiff requests sanctions against Defendant’s counsel in the amount of $1,861.65 for the motion against Richard and $871,65 for the motion against Magali. On 10/24/23, Defendants filed and served oppositions to the motions. On 10/30/23, Plaintiff filed and served a combined reply to the oppositions.

ANALYSIS

Request for Admission 24 asks Defendants to admit that they do not have any medical documents that show a pre-existing condition to Plaintiff’s injuries prior to the date of the INCIDENT which is the subject of the action. Defendants responded only with objections to this request.

CCP 2033.240 provides, in relevant part:

“(a) The party to whom the requests for admission are directed shall sign the response under oath, unless the response contains only objections.

. . .

Neither the motions nor the oppositions provide the Court with information regarding extensions of time to respond to the discovery. Plaintiffs’ counsel’s declarations indicates that the discovery was served on 2/13/23 but does not provide copies of the discovery requests. (Allton Decls. ¶2). Plaintiff’s counsel goes on to state that unverified responses containing substantive responses and objections to the discovery were served on 5/17/23 [should be 5/16/23] with verifications which were signed on 5/27/23 (should be 5/26/23), being served on 6/2/23. (Allton Decl. ¶¶2-3, Ex.A-B). The motion as to Magali argues that objections were waived because the responses are untimely because the verifications were dated 10 days after the responses, which were served in May, not because responses were due 30 days after the discovery was served in February. (See Magali Motion, p.5:24-27). The motion as to Richard does not make the foregoing argument. (See Richard Motion, generally). Based on the foregoing, presumably, the parties had agreed to an extension of time to respond to the discovery to sometime on or around 5/16/23.

The Court finds that the lack of verification of a timely hybrid response, meaning a response which contains both objections and substantive responses, preserves the objections. See Food 4 Less Supermarkets, Inc. (1995) 40 CA4th 651. Based on the lack of clear argument with regard to when a timely response to the discovery was due, the Court finds the objections were not waived.

CCP 2033.290 provides, in relevant part:

“(a) On receipt of a response to requests for admissions, the party requesting admissions may move for an order compelling a further response if that party deems that either or both of the following apply:

(1) An answer to a particular request is evasive or incomplete.

(2) An objection to a particular request is without merit or too general.

(b)(1) A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040.”

The Court finds that Plaintiff adequately met and conferred before filing the motions as Defendants made no effort to respond to Plaintiff’s counsel meet and confer email.

Unlike other discovery devices, Requests for Admissions are not designed to uncover factual information. Rather, the main purpose of Requests for Admissions is to set issues at rest by compelling admission of things that cannot reasonably be controverted. Shepard & Morgan (1982) 31 C3d 256, 261; Murillo (2006) 143 CA4th 730, 735; City of Glendale (2015) 235 CA4th 344, 352-353; Orange County Water District (2018) 31 CA5th 96, 115.

The Court finds Defendants’ objection based on relevance to the Request for Admission has merit under the circumstances. Whether or not Defendants have any medical documents that show a pre-existing condition to Plaintiff’s injuries prior to the date of the INCIDENT which is the subject of the action will not eliminate Plaintiff’s need to establish any element of his case. Plaintiff’s argument that an admission or denial of the response may lead to the discovery of admissible evidence is confusing. Plaintiff would seemingly know whether he had a pre-existing condition and/or whether any medical documentation of such a pre-existing condition exists. Plaintiff may use other discovery vehicles (i.e., requests for production) to obtain any documents that Defendants may have regarding a pre-existing condition Plaintiff may have. Further, whether or not Defendants have any such documentation would not establish that Plaintiff did or did not have a pre-existing condition.

Plaintiff’s argument that the discovery is somehow relevant to Defendants’ affirmative defense of “failure to mitigate” is also confusing. (See Reply, p.3:3-8). To mitigate means “to make less severe or painful.” See Merriam-Webster Dictionary. A defense based on failure to mitigate means that Defendants claim that Plaintiff failed to do something at the time of or after the incident to make his injuries/damages less severe or painful not that Plaintiff had a pre-existing condition. Whether Plaintiff had a pre-existing condition would go to whether the incident caused Plaintiff’s claimed injuries/damages. Plaintiff has the burden of proving that Defendants caused the injuries and/or damages he claims in this action.

CONCLUSION

The motions are denied.

Dept. F47

Date: 11/14/23

Case #22CHCV01241

2 MOTIONS TO COMPEL FURTHER RESPONSES

(Requests for Production of Documents, Set 1)

Motions filed on 7/17/23.

MOVING PARTY: Plaintiff Roland Lemus

RESPONDING PARTY # 1: Defendant Richard Manzaneras

RESPONDING PARTY # 2: Defendant Magali Manzaneras

NOTICE: ok

RELIEF REQUESTED:

(1) An order compelling Defendant Richard Manzaneras to provide a further, verified response, without objections, to Plaintiff Roland Lemus’ Requests for Production of Documents, Set 1, Nos. 1, 2, 4, 7, 9-12, 14-16, 23-29, 34-35, and 39-43. Additionally, Plaintiff requests sanctions against Defendant’s counsel in the amount of $2,401.65;

(2) An order compelling Defendant Magali Manzaneras to provide a further, verified response, without objections, to Plaintiff Roland Lemus’ Requests for Production of Documents, Set 1, Nos. 1, 2, 4, 7, 9-12, 14-16, 23-28, 35, and 39-43. Additionally, Plaintiff requests sanctions against Defendant’s counsel in the amount of $1,771.65.

RULING: The motions are granted, in part, and denied, in part, as set forth below.

SUMMARY OF FACTS & PROCEDURAL HISTORY

On 7/17/23, Plaintiff filed and served a motion seeking an order compelling Richard to provide a further, verified response without objections, to Plaintiff’s Requests for Production of Documents, Set 1, Nos. 1, 2, 4, 7, 9-12, 14-16, 23-29, 34-35, and 39-43. Additionally, Plaintiff requests sanctions against Defendant’s counsel in the amount of $2,401.65.

On 7/17/23, Plaintiff also filed and served a motion seeking an order compelling Defendant Magali to provide a further, verified response, without objections, to Plaintiff’s Requests for Production of Documents, Set 1, Nos. 1, 2, 4, 7, 9-12, 14-16, 23-28, 35, and 39-43. Additionally, Plaintiff requests sanctions against Defendant’s counsel in the amount of $1,771.65.

On 10/26/23, Defendants filed and served oppositions to the motions. On 11/6/23, Plaintiff filed and served a combined reply to the oppositions.

ANALYSIS

There are certain inconsistencies in the motions.

In the motion as to Richard, the notice of motion, the accompanying separate statement and the reply do not include Request 33; however, Request 33 is referenced in the memorandum of points and authorities. (See Richard Motion, p.2:8, p.6:16; Richard Separate Statement and Reply, generally).

In the motion as to Magali, the notice of motion does not include Requests 29 and 44. (See Magali Motion, p.2:8). Request 29 is referenced in the memorandum of points and authorities but is not included in the accompanying separate statement. (See Magali Motion, p.6:4; Separate Statement, generally). Although Request 44 is not referenced in the notice, it is addressed in the memorandum of points and authorities and separate statement. (Magali Motion, p.6:4; Separate Statement, pp.33-34).

The oppositions to the motions indicate that further responses will be provided to Requests 25, 26, 27, 35, 39, 42 and 43. (See Richard Opposition, p.6:21-25; Magali Opposition, p.6:4-8). Additionally, Magali indicates that the partial objections based on relevancy preceding the responses to Requests 9-11 and 28 should not have been included and, therefore, further responses without the objection will be provided. (Magali Opposition, p.6 fn.1). As set forth below, the Court finds that the substantive responses to these requests are also deficient.

CCP 2031.250 provides, in relevant part:

“(a) The party to whom the demand for inspection, copying, testing, or sampling is directed shall sign the response under oath unless the response contains only objections.

. . .

Neither the motions nor the oppositions provide the Court with information regarding extensions of time to respond to the discovery. Plaintiffs’ counsel’s declarations indicates that the discovery was served on 2/13/23 but do not provide copies of the discovery requests. (Allton Decls. ¶2). Plaintiff’s counsel goes on to state that unverified responses containing substantive responses and objections to the discovery were served on 5/17/23 [should be 5/16/23] with verifications which were signed on 5/27/23 (should be 5/26/23), being served on 6/2/23. (Allton Decls. ¶¶2-3, Ex.A-B). Although the attorney declaration mentions that the meet and confer letter discussed “the objection waiver,” the motions do not specifically argue that Defendants waived objections because responses and/or verifications of the responses were not timely served. (See Allton Decls. ¶4). Based on the foregoing, presumably, the parties had agreed to an extension of time to respond to the discovery to sometime on or around 5/16/23.

CCP 2031.310 provides, in relevant part:

“(a) On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply:

(1) A statement of compliance with the demand is incomplete.

(2) A representation of inability to comply is inadequate, incomplete, or evasive.

(3) An objection in the response is without merit or too general.

(b) A motion under subdivision (a) shall comply with each of the following:

(1) The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand.

(2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040.”

The Court finds that Plaintiff adequately met and conferred before filing the motions as Defendants made no effort to respond to Plaintiff’s counsel’s meet and confer email.

The Court finds Richard and Magali’s objections to Requests 1 and 2 to be meritorious. Request 1 which seeks “all DOCUMENT(S) in YOUR possession, custody or control, and that relate to, refer to or make mention of PLAINTIFFS, including but not limited to emails and/or letters” is overbroad as it seems to subsume the other requests which are more particularized. As such, it cannot be determined which documents would be responsive to the request making it vague and ambiguous. Similarly, it cannot be discerned what documents are sought in Request 2 which asks Defendants to “[p]roduce YOUR file pertaining to the IMPACT.” The requests presumes that Defendants have an undefined “file” regarding the impact/incident which is the subject of this action. To the extent that Plaintiff seeks to have Defendant’s counsel produce their entire file regarding this case, such request is improper. Requiring a privilege log as to the attorney’s entire file would also be improper as such would give Plaintiff unfair insight into the defense counsel’s tactics and strategy.

Defendants’ responses to Requests 4, 7, 9, 10, 11 and 28 state, in relevant part:

“The production, inspection, copying, testing, sampling, and related activity demanded will be allowed in whole, and all documents or things in the demanded category that are in Defendant’s possession, custody or control, and to which no objection is being made will be included in the production.”

The responses are deficient because it cannot be discerned what documents are being withheld, if any, based on some unidentified objection. Defendants fail to address the fact this qualifier is included in the responses to these requests and merely argue that they have responded by stating that production will be allowed in whole with all documents in their custody, possession or control being produced. (See Richard Opposition, p.2:11-20, Magali Opposition, p.5:21-p.6:2).

Requests 12, 14, 15, 16, 23 and 24, without reasonably particularity, seek documents which support various contentions apparently anybody may be making as they ask for documents that support a or any contention regarding certain matters without indicating who is making such a contention. See CCP 2031.030(c)(1). It is not clear if Plaintiff is seeking documents to support contentions Defendants have made as there is no reference to other discovery responses or pleadings where Defendants made such contentions or whether Plaintiff is seeking to discover whether Defendants have documents which may support Plaintiff’s own contentions. For example, Request 12 seeks:

“any and all DOCUMENT(S) in YOUR possession, custody or control, and that support a contention that YOUR vehicle was or was not being operated in a negligent manner at the time of the IMPACT.” (emphasis added).

If Defendant produced documents in response to this request, it could not be determined whether the documents were intended to support a contention that Defendants’ vehicle was being operated in a negligent manner or was not being operated in a negligent manner. If Plaintiff is seeking to discover Defendants’ contentions, Plaintiff must use other discovery methods (i.e., interrogatories) to determine what those contentions are before requesting the production of documents in support of such contentions. See Calcor Space Facility, Inc. (1997) 53 CA4th 216, 222; Rifkind (1994) 22 CA4th 1255, 1259, 1261, 1263; Singer (1960) 54 C2d 318, 324.

Request 29 as to Richard seeks documents related to any injuries Richard sustained during the accident.” Richard responded to the request with various objections, including objections based on privilege without providing a privilege log. However, Richard also objected on the ground that because he is not making a claim for any injuries against Plaintiff, the request improperly invades his right to privacy with regard to his medical condition. In the motion Plaintiff merely argues that Defendant’s right to privacy must be weighed against the public interest without explaining how the information would aid the public interest when Defendant is not making a claim for personal injuries. Plaintiff fails to address Request 29 in the reply. (See Reply, generally).

Requests 34, 40 and 41 as to Richard seek documents that relate to hours of employment that Richard missed as a result of the impact/accident, communications Richard had with his employer regarding his vehicle and any communications Richard had with his employer on the date of the impact/accident. In response to these requests, Richard indicated that a diligent search had been made but he is unable to comply with the requests because the documents are not in his possession, custody or control. These responses do not comply with CCP 2031.230 which provides:

“A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also 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.” (emphasis added)

Requests 40 and 41 as to Magali seek documents regarding communications Magali had with his employer regarding his vehicle and documents relating to communications Magali had with his employer on the date of the impact/accident. Magali objected to the requests on the ground that the documents are not relevant nor reasonably calculated to lead to the discovery of admissible evidence because Magali was not the driver of the vehicle nor present at the time of the accident. Plaintiff fails to address these objections. Instead, both the separate statement as to Magali and the reply contend that Magali provided the same response to these requests as Richard. (See Magali Separate Statement, pp.30-31; Reply, p.4:17-28). Plaintiff has failed to show how this information with regard to Magali is relevant.

Request 44 as to Magali seeks:

“all DOCUMENTS and WRITINGS, as defined in Evidence Code §250, with regard to the itemized portions of the cellular (mobile) telephone bill for any cellular (mobile) telephone that you possessed in YOUR vehicle for the time from one hour prior to the time of the IMPACT through the time of two hours after the time of the IMPACT, including any and all data usage and any calls that were sent or received or in progress.”

Magali also objected to this request on the ground that the documents are not relevant nor reasonably calculated to lead to the discovery of admissible evidence because Magali was not the driver of the vehicle nor present at the time of the accident. Again, Plaintiff fails to address the specific objection. (See Magali Separate Statement, pp.33-34; Reply, generally).

CONCLUSION

With regard to Defendant Richard Manzanares, the motion is granted as to Requests 4, 7, 9, 10, 11, 25, 26, 27, 28, 34, 35, 39, 40, 41, 42 and 43 and denied as to Requests 1, 2, 12, 14, 15, 16, 23, 24 and 29. Further responses are due within 30 days.

With regard to Defendant Magali Manzanares, the motion is granted as to Requests 4, 7, 9, 10, 11, 25, 26, 27, 28, 35, 39, 42 and 43 and denied as to 1, 2, 12, 14, 15, 16, 23, 24, 40, 41 and 44. Further responses are due within 30 days.

Since Plaintiff was not completely successful on the motions, the Court finds that imposing sanctions on Defendants’ counsel would be unjust under the circumstances. CCP 2031.310(h). Therefore, the requests for sanctions are denied.