Judge: Michael E. Whitaker, Case: 21STCV33055, Date: 2023-03-21 Tentative Ruling

Case Number: 21STCV33055    Hearing Date: March 21, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

Plaintiff Graciela Fonesca Garcia (Plaintiff) sued Defendant Super Center Concepts, Inc., dba Superior Grocers (Defendant) based on injuries Plaintiff alleges she sustained in a slip in fall incident at Defendant’s store.  Plaintiff moves for a protective order to excuse Plaintiff from having to respond to Request for Admissions, set one (RFA), which Defendant served on Plaintiff.  Defendant opposes the motion.  Plaintiff replies.

On March 7, 2023, the original hearing date for the instant motion, the Court continued the hearing to March 21, 2023 to allow time for Plaintiff to file a supplemental reply to Defendant’s untimely opposition filed on March 7, 2023, and for the Court to review and consider both the opposition and reply.  Plaintiff filed her supplemental reply on March 8, 2023.

ANALYSIS

“The court, for good cause shown, may make any order that justice requires to protect any party from unwarranted annoyance, embarrassment, oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions:  (1) That the set of admission requests, or particular requests in the set, need not be answered at all.  (2) That, contrary to the representations made in a declaration submitted under Section 2033.050, the number of admission requests is unwarranted.”  (Code Civ. Proc., §§ 2033.080, subd. (b)(1)-(2).)  A party seeking a protective order must show good cause for issuance of the order by a preponderance of the evidence.  (Stadish v. Superior Court (1999) 71 Cal.App.4th 1130, 1145.) 

Here, Plaintiff avers the RFA propounded by Defendant is excessive and constitutes an abuse of the Discovery Act.  Defendant indicates that it offered to withdraw the subject RFA in exchange for Plaintiff taking the instant motion off calendar.  (See Declaration of Anna Sasaki, ¶¶ 8-9, Exhibit B.)  Plaintiff declined to take the motion off calendar so as to be heard regarding her request for sanctions in connection with the motion.  As Plaintiff indicates in her reply, Defendant has not yet withdrawn the RFA and has provided no assurances that it will withdraw the RFA in the future.  As such, the Court will proceed with its analysis of the purported burden that the RFA imposes on Plaintiff.

Plaintiff first argues the RFA Nos. 55-81 violate attorney client protected information as they request Plaintiff admit that her Counsel referred her to various medical providers which may fall within confidential communication between client and lawyer.  (Evid. Code, § 952.)

Plaintiff next argues that the remaining RFAs, which seek information about whether certain providers accept Medi-Cal or whether certain medical procedures are typically covered by Medi-Cal, are improper and run counter to objective of Requests for Admission which are  meant “to narrow the issues and save the time and expense of preparing for unnecessary proof.”  (2 Witkin, Cal. Evidence (3d ed. 1986) Discovery and Production of Evidence, § 1553, p. 1506).  Plaintiff states that the RFA is intended to establish Plaintiff’s choice to pay for rendered medical services out of pocket rather than use insurance.  Plaintiff states this issue is irrelevant in determining a claim for medical expenses which only requires demonstration of the amount of each claimed expense, its reasonableness, and whether it was caused by the injury at issue.  Plaintiff concludes because it is already clear this issue is not relevant to the case at issue, the subject RFA is not necessary and thus harassing.

Finally, Plaintiff argues the number of requests is unwarranted.  Code of Civil Procedure section 2033.030 which provides “[n]o party shall request, as a matter of right, that any other party admit more than 35 matters that do not relate to the genuineness of documents.”  Under Code of Civil Procedure section 2033.040, a party may serve more than 35 requests for admission but only "if the greater number is warranted by the complexity or quantity of the existing or potential issues in the particular case."  Plaintiff states notwithstanding counsel for Defendants' declaration to the contrary, this relatively straightforward premises liability action does not warrant ninety (90) requests for admission especially when the RFA is being used for the purpose of determining the irrelevant issue of whether Plaintiff elected to pay for subject medical services out of pocket.

In opposition, Defendant argues that the propounded RFAs are linked to the calculation of damages which is a key issue in this case.  However, Defendant concedes “there may have been more efficient ways to obtain this same information, or at least with fewer requests.”  (Defendant’s Opposition, p. 3.)

As such, Plaintiff has met her burden to show that the discovery constitutes an undue burden on Defendant.  (See American Home Assurance Co. v. Societe Commerciale Toutelectric (2002) 104 Cal.App.4th 406, 427 [“It is consistent with California law generally requiring the party seeking a protective order or resisting discovery by way of objection to establish the necessity of the requested relief”].) 

Plaintiff seeks monetary sanctions in connection with the motion.  Plaintiff argues Defendant propounded written discovery in a manner or to an extent that caused unwarranted annoyance or undue burden and expense, warranting monetary sanctions.  (Code Civ. Proc., §§ 2023.010, subd. (c), 2033.080, subd. (d).)  In opposition, Defendant argues it acted with substantial justification in issuing the discovery request and for its delay in offering to withdraw said discovery, based on the natural flow of discovery, new information being received, personnel changes, and change in strategies.  The Court finds Defendant has failed to establish it acted with substantial justification in issuing the RFA as it has failed to explain why it was  justified in issuing 90 requests for admission in light of the claims at issue.  Accordingly, the Court will impose monetary sanctions against Defendant and Defendant’s counsel of record, Tyson & Mendes, LLP and Brianna Z. Andrade, in the amount of $1060, which represents four hours of attorney time to prepare the motion and attend the hearing at $250 per hour, plus the filing fee of $60.

CONCLUSION AND ORDER

Plaintiff has met her burden to show good cause for the issuance of the protective order.   Therefore, the Court grants Plaintiff’s motion for protective order, and excuses Plaintiff from responding to the RFA. 

Further, the Court orders Defendant and Defendant’s counsel of record, Tyson & Mendes, LLP and Brianna Z. Andrade, jointly and severally, to pay monetary sanctions in the amount of $1060 to Plaintiff, by and through counsel for Plaintiff, within 30 days of notice of the Court’s orders.

Plaintiff shall provide notice of the Court’s orders and file proof of service of such.