Judge: Michael P. Linfield, Case: 21STCV04559, Date: 2023-02-23 Tentative Ruling
Case Number: 21STCV04559 Hearing Date: February 23, 2023 Dept: 34
SUBJECT: Motion to
Compel Further Responses to Form Interrogatories, Set One
Moving Party: Plaintiff Kymberlee
Michelee Nelson
Resp. Party: None
SUBJECT: Motion to
Compel Further Responses to Request for Admissions, Set One
Moving Party: Plaintiff Kymberlee
Michelee Nelson
Resp. Party: None
The Motion to Compel Further Responses to Requests
for Admission is GRANTED.
The Motion to Compel Further Responses to Form
Interrogatories is GRANTED in part. The motion is GRANTED as to FROG 17.1
regarding RFAs 1–2, 4, 6–7, 9–11, 13, 17, 20, and 32–35. The motion is DENIED
as to FROG 17.1 regarding RFAs 8, 23–26, and 29.
Defendant shall have 15 days to provide
further responses.
BACKGROUND:
On February 4, 2021, Plaintiff Kymberlee
Michelee Nelson filed her Complaint against Defendants La Playita Auto Sales,
Inc. and Hudson Insurance Company. This case regards Plaintiff’s purchase of a
car from Defendants that had allegedly previously been rented and damaged.
On January 24, 2022, by request of Plaintiff,
the Clerk’s Office dismissed with prejudice Hudson Insurance Company from the
Complaint.
On August 10, 2022, Plaintiff filed her First
Amended Complaint against Defendant.
On September 13, 2022, Defendant filed its
Answer to the First Amended Complaint.
On November 22, 2022, Plaintiff filed the
following motions:
(1) Motion to Compel
Further Responses to Form Interrogatories, Set One (“FROGs Motion”);
(2) Motion to Compel
Further Responses to Request for Productions, Set One (“RPDs Motion”); and
(3) Motion to Compel
Further Responses to Request for Admissions, Set One (“RFAs Motion”).
Each of the motions was concurrently filed
with a Memorandum, Separate Statement, Declaration of Gregory T. Babbitt, and
Proof of Service. None of the motions includes a request for sanctions.
On December 21, 2022, the Hearing on the
FROGs Motion and the RFAs Motion were rescheduled for February 23, 2023.
On December 23, 2022, the Hearing on the RPDs
Motion was taken off calendar.
On January 27, 2023, Plaintiff filed her
Second Amended Complaint.
No opposition, reply, or other response has
been filed to the FROGs Motion or the RFAs Motion.
ANALYSIS:
Given that the only form interrogatory (“FROG”) at issue is
directly connected with the requests for admission (“RFAs”) at issue, the Court
considers both the FROGs Motion and the RFAs Motion at the same time.
I.
Legal Standard
On receipt of a
response to form interrogatories, special interrogatories, and/or demand
requests, the propounding and/or demanding party “may move for an order
compelling further response” if: (1) the response is evasive or incomplete; (2)
the representation of inability to comply is inadequate incomplete, or evasive;
or (3) the objection is without merit or too general. (Code Civ. Proc., §§
2030.300, subd. (a), 2031.310, subd. (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. (Code Civ. Proc., § 2033.290, subd. (a)(1)–(2).)
II.
Discussion
A.
FROGs
Propounded
Plaintiff propounded FROG 17.1 on Defendant.
Here, FROG 17.1 regards RFAs 1–4, 6–11, 13, 17, 20, 22–26, 29–30, and 32–35.
B.
RFAs
Propounded
Plaintiff propounded the following RFAs on Defendant:
REQUESTS FOR
ADMISSIONS NO. 1
Admit the VEHICLE (For
the purposes of these requests, the term “VEHICLE” shall mean the 2017
Chevrolet Impala, VIN: 2G1145S31H9164073 which is the subject of this lawsuit)
is a “good” under Civil Code § 1761(a).
REQUEST FOR
ADMISSIONS NO. 2
Admit Plaintiff is a
“consumer” under Civil Code § 1761(d).
REQUEST FOR
ADMISSIONS NO. 4
Admit the Retail
Installment Sales Contract between YOU and Plaintiff for the VEHICLE was a
“transaction” under Civil Code § 1761(e).
REQUEST FOR
ADMISSIONS NO. 6
Admit YOU are a
Buy-here-Pay-here Dealer as defined by Vehicle Code § 241.
REQUEST FOR
ADMISSIONS NO. 7
Admit YOU do not
satisfy the Buy-here-Pay-here Dealer exceptions as listed in Vehicle Code §
241.1.
REQUEST FOR
ADMISSIONS NO. 9
Admit YOU are a
“retail seller” under Civil Code § 1791(l).
REQUEST FOR
ADMISSIONS NO. 10
Admit Plaintiff is a
“buyer” under Civil Code § 1791(b).
REQUEST FOR
ADMISSIONS NO. 11
Admit the VEHICLE is
a “used consumer good” under Civil Code § 1795.5.
REQUEST FOR
ADMISSIONS NO. 13
Admit the implied
warranty of merchantability accompanied the sale of the VEHICLE.
REQUEST FOR
ADMISSIONS NO. 17
Admit the warranty
YOU provided to Plaintiff did not cover all of the components listed in Civil
Code § 1795.51(a).
REQUEST FOR
ADMISSIONS NO. 20
Admit YOU did not
have the right to repossess the VEHICLE from Plaintiff.
REQUEST FOR ADMISSION
NO. 35
Admit YOU did not
agree to the demands in the Consumers Legal Remedies Act under Civil Code
section 1782, which is attached hereto as Exhibit 3.
C.
Analysis
Plaintiff moves the Court to compel Defendant
to: (1) provide further responses to FROG 17.1 regarding RFAs 1–2, 4, 6–11, 13,
17, 20, 23–26, 29, and 32–35; and (2) provide further responses to RFAs 1–2, 4,
6–7, 9–11, 13, 17, 20, and 35. (Memorandum to FROGs Motion, p. 7:17–19;
Memorandum to RFAs Motion, p. 5:9–11.)
Defendant has not opposed either motion or
filed a response.
The Court is troubled by Defendant’s attempt
to avoid answering the RFAs by objecting on the basis that the RFAs call for a
legal conclusion. The vast majority of the RFAs ask straightforward questions
of fact, not law. This objection is evasive when it comes to RFAs such as
“Admit the VEHICLE . . . is a ‘used consumer good’ under Civil Code § 1761(a)”
or “Admit YOU are a ‘retail seller’ under Civil Code § 1791(1).”
The Court grants the RFAs Motion in its
entirety. The Court also grants the FROGs Motion as to FROG 17.1 regarding RFAs
1–2, 4, 6–7, 9–11, 13, 17, 20, and 32–35. These are all items involving the
evasive objection at issue. The Court denies the FROGs Motion as to FROG 17.1
regarding RFAs 8, 23–26, and 29. The answers to these RFAs are sufficient
responses.
III.
Sanctions
A. Legal
Standard
The court shall
impose monetary sanctions against any party, person, or attorney who
unsuccessfully makes or opposes a motion to compel further interrogatories
and/or a motion to compel further production of documents, unless the Court
finds that the one subject to sanction acted with substantial justification or
that other circumstances make the imposition of the sanction unjust. (Code Civ.
Proc., §§ 2030.300, subd. (d), 2031.310, subd. (h).)
The court shall impose a monetary
sanction under Chapter 7 (commencing with Section 2023.010) against any party,
person, or attorney who unsuccessfully makes or opposes a motion to compel
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. (Code Civ. Proc., § 2033.290, subd. (d).)
B. Discussion
The Court has granted in part the FROGs Motion
and granted in its entirety the RFAs Motion. However, Plaintiff has not
requested sanctions here. These circumstances would make the imposition of a
sanction unjust, and thus the Court declines to impose monetary sanctions.
IV.
Conclusion
The RFAs Motion is GRANTED in its entirety.
The FROGs Motion is GRANTED in part. The
motion is GRANTED as to FROG 17.1 regarding RFAs 1–2, 4, 6–7, 9–11, 13, 17, 20,
and 32–35. The motion is DENIED as to FROG 17.1 regarding RFAs 8, 23–26, and
29.
Defendant shall have 15 days to provide
further responses.