Judge: Michael P. Linfield, Case: 21STCV40951, Date: 2022-08-05 Tentative Ruling
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Case Number: 21STCV40951 Hearing Date: August 5, 2022 Dept: 34
SUBJECT: Motion
to Compel Further Responses to Special Interrogatories, Set One; Request for
Sanctions
Moving Party: Plaintiff
Andrew Baracco
Resp. Party: Defendant
Shakey’s USA, Inc.
SUBJECT: Motion
to Compel Further Responses to Request for Production, Set One; Request for
Sanctions
Moving Party: Plaintiff
Andrew Baracco
Resp. Party: Defendant
Shakey’s USA, Inc.
SUBJECT: Motion
to Compel Further Responses to Form Interrogatories, Set One; Request for
Sanctions
Moving Party: Plaintiff
Andrew Baracco
Resp. Party: Defendant
Shakey’s USA, Inc.
SUBJECT: Motion
to Compel Code-Compliant Responses to Requests for Admission, Set One; Request
for Sanctions
Moving Party: Plaintiff Andrew Baracco
Resp. Party: Defendant
Shakey’s USA, Inc.
SUBJECT: Motion
to Compel Deposition Testimony of Defendant’s Person(s) Most Knowledgeable;
Request for Sanctions
Moving Party: Plaintiff
Andrew Baracco
Resp. Party: Defendant
Shakey’s USA, Inc.
The Court revises its order of July 25, 2022, nunc pro tunc, as follows:
The GRANTS in part and DENIES in
part Plaintiff’s Motions to Compel, as indicated above. The Court DENIES both parties requests for
sanctions.
The Court takes off-calendar the Informal
Discovery Conference previously scheduled for August 11, 2022.
I.
BACKGROUND
On November 5, 2021, Plaintiff Andrew Baracco filed a complaint against
Defendant Shakey’s USA, Inc. alleging Violation of Unruh Civil Rights Act
(California Civil Code §§ 51, 52, et seq.).
On June 24, 2022, Baracco moved the Court to compel Shakey’s to provide
further responses to Baracco’s Special Interrogatories, Set One; Request for
Production, Set One; and Form Interrogatories, Set One, and moved the Court to
compel the deposition testimony of Shakey’s Person(s) Most Knowledgeable.
On July 12, 2022, Shakey’s opposed Baracco’s five discovery motions.
On July 18, 2022, Baracco replied to Shakey’s discovery oppositions.
II.
ANALYSIS
A.
Legal
Standard
1.
Motion
to Compel Further
Motions to compel further responses to
discovery requests must always be accompanied by a meet-and confer-declaration
(CCP § 2016.040) demonstrating a reasonable and good faith attempt to
informally resolve each issue presented by the motion. (Id., §§ 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. (Cal. Rules of Court, rule
3.1345(a).) The separate statement must also be complete in itself; no
extrinsic materials may be incorporated by reference. (Id., rule
3.1345(c).) "In lieu of a separate statement required under the California
Rules of Court, the court may allow the moving party to submit a concise
outline of the discovery request and each response in dispute." (CCP §
2030.300.)
“Unless notice of this motion is given within
45 days of the service of the verified response, or any supplemental verified
response, or on or before any specific later date to which the propounding
party and the responding party have agreed in writing, the propounding party
waives any right to compel a further response to the interrogatories.” (CCP §
2030.300(c).) Any motion to compel further must be filed within 45 days from
responses, supplemental responses, or a specific later date agreed to in
writing. (CCP §§ 2030.300(c), 2031.310(c), 2033.290(c).) Failure to file the
motion within the specified period constitutes a waiver of the right to compel
a further response. (Sexton v. Superior Court (1997) 58 Cal.App.4th
1403, 1410.) The time period is mandatory and jurisdictional in the sense that
it renders the Court without authority to rule on motions to compel other than
to deny them. (Id.)
A motion to compel further responses to form
or specially prepared interrogatories 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 to
requests for production “shall set forth specific facts showing good cause
justifying the discovery sought by the inspection demand.” (CCP §
2031.310(b)(1).) “To establish ‘good cause,’ the burden is on the moving party
to show both: [¶] Relevance to the subject matter (e.g., how the information in
the documents would tend to prove or disprove some issue in the case); and [¶]
Specific facts justifying discovery (e.g., why such information is necessary
for trial preparation or to prevent surprise at trial.) [Citations.] [¶] The
fact that there is no alternative source for the information sought is an
important factor in establishing ‘good cause’ for inspection. But it is not
essential in every case.” (Edmon & Karnow, California Practice Guide:
Civ. Proc. Before Trial (The Rutter Group 2020) ¶ 8:1495.6.)
“If ‘good cause’ is shown by the moving
party, the burden is then on the responding party to justify any objections
made to document disclosure (the same as on motions to compel answers to
interrogatories or deposition questions).” (Edmon & Karnow, supra,
at ¶ 8:1496.)
2.
Motion
to Compel Deposition
Any party may obtain discovery,
subject to restrictions, by taking the oral deposition of any person, including
any party to the action.¿(CCP § 2025.010.)¿A properly served deposition notice
is effective to require a party or party-affiliated deponent to attend and to
testify, as well as to produce documents for inspection and copying.¿(CCP §
2025.280, subd. (a).)
“If, after service of a
deposition notice, a party . . . fails to appear for examination, or to proceed
with it, or to produce for inspection any document . . . described in the
deposition notice, the party giving notice may move for an order compelling
deponent’s attendance and testimony, and the production . . . of any document .
. . described in the deposition notice.”¿¿(CCP § 2025.450, subd. (a).)¿The
motion must set forth both facts showing good cause justifying the demand for
any documents and a meet and confer declaration.¿(CCP § 2025.450, subds.
(b)(1), (b)(2).) “Implicit in the requirement that counsel contact the deponent
to inquire about the nonappearance is a requirement that counsel listen to the
reasons offered and make a good faith attempt to resolve the issue,” including
by rescheduling. (Leko v. Cornerstone Bldg. Inspection Serv. (2001)
86 Cal.App.4th 1109, 1124.)
Good cause is construed
liberally; discovery justification is found where specific facts show the
documents are necessary for effective trial preparation or to prevent surprise
at trial. (Associated Brewers Distributing Co. v. Superior Court of Los
Angeles County (1967) 65 Cal.2d 583, 587; [8:787] Motion to Compel Answers,
Cal. Prac. Guide Civ. Pro. Before Trial Ch. 8E-15.) A lack of an alternative source for the
sought information is an important "good cause" factor, but it is not
essential. (Id. at 587-88.) A meet and confer declaration under CCP §
2016.040 “shall state facts showing a reasonable and good faith attempt at an
informal resolution of each issue presented by the motion.” (CCP § 2016.040.)
B.
Discussion
On July 25, 2022, the day scheduled
for a hearing on these motions, the Court took the motions off-calendar and
ordered the parties to an Informal Discovery Conference.
The Court now revises its order of
July 25, 2022, and issues the following orders on the motions to compel.
1.
Motion
to Compel Further Responses to Special Interrogatories
SPECIAL INTERROGATORY NO. 5:
IDENTIFY all defenses YOU have asserted and/or claimed in this
litigation, including: (a) the substance of each such defense, and (b) all
facts which support each defense
DENIED
as overbroad.
SPECIAL INTERROGATORY NO. 6:
Provide all facts that support, refute or in any way RELATE to the
allegations made in YOUR answer to Plaintiff’s COMPLAINT.
DENIED
as overbroad.
SPECIAL INTERROGATORY NO. 8: IDENTIFY every PERSON who
performed analysis CONCERNING the ACCESSIBILITY of the WEBSITE for the last two
(2) years from the filing of the COMPLAINT.
DENIED as overbroad and ambiguous as to
the term “accessible” and “concerning.”
SPECIAL INTERROGATORY NO. 9: DESCRIBE what analysis was
performed CONCERNING the ACCESSIBILITY of the WEBSITE for the last two (2)
years from the filing of the COMPLAINT.
DENIED as overbroad and ambiguous as to
the term “accessible” and “concerning.”
SPECIAL INTERROGATORY NO. 11: DESCRIBE your POLICIES
CONCERNING the ACCESSIBILITY of the WEBSITE for the last two (2) years from the
filing of the COMPLAINT.
DENIED as overbroad and ambiguous
as to the term “accessible” and “concerning.”
SPECIAL INTERROGATORY NO. 13: DESCRIBE all DOCUMENTS that
measure compliance with DISABILITY ACCESS LAWS CONCERNING the WEBSITE for the
last two (2) years from the filing of the COMPLAINT.
DENIED as overbroad
and ambiguous.
SPECIAL INTERROGATORY NO. 16: IDENTIFY any ACCESSIBILITY
protocols or guidelines that were consulted with in operating YOUR WEBSITE.
GRANTED.
SPECIAL INTERROGATORY NO. 17 State all facts upon which you
rely for each and every one of your affirmative defenses.
GRANTED.
2.
Motion
to Compel Further Responses to Requests for Production of Documents
REQUEST FOR PRODUCTION OF DOCUMENT NO. 6: Produce all
DOCUMENTS CONCERNING the ACCESSIBILITY of the WEBSITE for the last two (2)
years from the filing of the COMPLAINT.
DENIED as overbroad and ambiguous
as to the terms ”accessible” and “concerning.”
REQUEST FOR PRODUCTION OF DOCUMENT NO. 9: Produce all
DOCUMENTS IDENTIFYING the WEBSITE’s SOURCE CODE from the filing of the
COMPLAINT to the present
DENIED.
REQUEST FOR PRODUCTION OF DOCUMENT NO. 10: Produce the
WEBSITE’s SOURCE CODE from the filing of the COMPLAINT to the present.
GRANTED.
REQUEST FOR PRODUCTION OF DOCUMENT NO. 12: Produce all
DOCUMENTS CONCERNING all actions YOU have taken to make the WEBSITE ACCESSIBLE
to visually-impaired users for the last two (2) years from the filing of the
COMPLAINT.
DENIED as overbroad and ambiguous
as to the terms ”accessible” and “concerning.”
REQUEST FOR PRODUCTION OF DOCUMENT NO. 16: Produce all
DOCUMENTS CONCERNING any MODIFICATION to the WEBSITE made from the filing of
the COMPLAINT to the present
DENIED as overbroad and ambiguous
as to the terms ”accessible” and “concerning.”
REQUEST FOR PRODUCTION OF DOCUMENT NO. 18: Produce all
reports that measure compliance of the WEBSITE with YOUR ACCESSIBILITY POLICIES
for the last two (2) years to the present.
GRANTED.
REQUEST FOR PRODUCTION OF DOCUMENT NO. 19: Produce all
DOCUMENTS CONCERNING any action YOU have taken to make the WEBSITE ACCESSIBLE
in accordance with the DISABILITY ACCESS LAWS.
DENIED as overbroad and ambiguous
as to the terms ”accessible” and “concerning.”
REQUEST FOR PRODUCTION OF DOCUMENT NO. 24: Produce all
DOCUMENTS CONCERNING the maintenance of the WEBSITE.
DENIED as overbroad and ambiguous
as to the term “concerning.”
REQUEST FOR PRODUCTION OF DOCUMENT NO. 25: Produce all
DOCUMENTS CONCERNING the design of the WEBSITE.
DENIED.
REQUEST FOR PRODUCTION OF DOCUMENT NO. 26: Produce all
DOCUMENTS CONCERNING the development of the WEBSITE.
DENIED.
REQUEST FOR PRODUCTION OF DOCUMENT NO. 27: Produce all
DOCUMENTS CONCERNING any MODIFICATIONS to the WEBSITE made in the last two (2)
years to the present.
DENIED.
REQUEST FOR PRODUCTION OF DOCUMENT NO. 30: Produce any
ACCESSIBILITY protocol YOU believe apply [sic] to YOUR WEBSITE.
GRANTED.
REQUEST FOR PRODUCTION OF DOCUMENT NO. 31: Produce all
DOCUMENTS CONCERNING any effort YOU took to measure the ACCESSIBILITY of the
WEBSITE for the last two (2) years to the present.
DENIED.
REQUEST FOR PRODUCTION OF DOCUMENT NO. 32: Produce all
DOCUMENTS CONCERNING any training offered to any of YOUR employees regarding
ACCESSIBILITY of the WEBSITE.
DENIED as overbroad and ambiguous
as to the term “concerning.”
REQUEST FOR PRODUCTION OF DOCUMENT NO. 33: Produce all
DOCUMENTS CONCERNING the ACCESS BARRIERS present on YOUR WEBSITE for the last
two (2) years to the present
DENIED.
REQUEST FOR PRODUCTION OF DOCUMENT NO. 34: Produce all
DOCUMENTS CONCERNING any efforts YOU took to assess the ACCESS BARRIERS present
on the WEBSITE for the last two (2) years to the present.
DENIED.
REQUEST FOR PRODUCTION OF DOCUMENT NO. 35: Produce all
DOCUMENTS CONCERNING any MODIFICATIONS to the WEBSITE made in response to
ACCESS BARRIERS for the last two (2) years to the present.
DENIED as overbroad and ambiguous
as to the term “concerning.”
REQUEST FOR PRODUCTION OF DOCUMENT NO. 36: Produce the
SOURCE CODE RELATING to the ACCESS BARRIERS present on the WEBSITE for the last
two (2) years to the present.
DENIED.
REQUEST FOR PRODUCTION OF DOCUMENT NO. 41: Produce all
documents RELATING to the location where the WEBSITE’s SOURCE CODE is stored
for the last two (2) years to the present.
DENIED as overbroad and ambiguous
as to the term “relating.”
REQUEST FOR PRODUCTION OF DOCUMENT NO. 43: Produce all
DOCUMENTS documenting or otherwise discussing the ACCESSIBILITY of YOUR
WEBSITE.
DENIED.
REQUEST FOR PRODUCTION OF DOCUMENT NO. 46: Produce all
DOCUMENTS IDENTIFYING the WEBSITE’s SOURCE CODE
DENIED.
REQUEST FOR PRODUCTION OF DOCUMENT NO. 47: Produce all
DOCUMENTS describing the WEBSITE’s SOURCE CODE
DENIED.
REQUEST FOR PRODUCTION OF DOCUMENT NO. 48: Produce the
WEBSITE’s SOURCE CODE, including program files, library files and compiling
files.
GRANTED.
REQUEST FOR PRODUCTION OF DOCUMENT NO. 52: Produce all
DOCUMENTS, including all COMMUNICATIONS RELATING TO any discussions of the
ACCESS BARRIERS
DENIED.
3.
Motion
to Compel Further Responses to Requests for Admission
REQUEST FOR ADMISSION NO. 1: Admit YOU operate “places of
public accommodation” as defined by the DISABILITY ACCESS LAWS.
GRANTED
REQUEST FOR ADMISSION NO. 2: Admit that the “places of
public accommodation” that YOU operate are actual physical places
GRANTED
REQUEST FOR ADMISSION NO. 7: Admit the WEBSITE is not as
ACCESSIBLE to a visually-impaired person as to a nonvisually impaired person.
DENIED.
REQUEST FOR ADMISSION NO. 8: Admit the WEBSITE was not as
ACCESSIBLE to a visually-impaired person as to a nonvisually impaired person
prior to the COMPLAINT.
DENIED.
REQUEST FOR ADMISSION NO. 9: Admit there are ACCESS BARRIERS
on the WEBSITE that impede visually-impaired individuals from fully ACCESSING
the WEBSITE.
DENIED
REQUEST FOR ADMISSION NO. 10: Admit there were ACCESS
BARRIERS on the WEBSITE that impeded visually-impaired persons from fully
ACCESSING the WEBSITE prior to the COMPLAINT
DENIED
REQUEST FOR ADMISSION NO. 11: Admit that the lack of ACCESS
of the WEBSITE impedes the full and equal enjoyment of GOODS and SERVICES
offered in places of public accommodation that YOU operate.
DENIED
REQUEST FOR ADMISSION NO. 12: Admit the WEBSITE does not
comply with version 2.1 of the Web Content Accessibility Guidelines Success
Criteria AA set forth by the international website standards organization W3C
DENIED
REQUEST FOR ADMISSION NO. 13: Admit the WEBSITE did not
comply with version 2.1 of the Web Content Accessibility Guidelines Success
Criteria AA set forth by the international website standards organization W3C
prior to the COMPLAINT.
DENIED
REQUEST FOR ADMISSION NO. 15: Admit PLAINTIFF was denied
equal ACCESS to the WEBSITE.
DENIED
REQUEST FOR ADMISSION NO. 16:
Admit the WEBSITE violates DISABILITY ACCESS LAWS.
DENIED
REQUEST FOR ADMISSION NO. 17: Admit the WEBSITE violated
DISABILITY ACCESS LAWS prior to the COMPLAINT
DENIED
REQUEST FOR ADMISSION NO. 18: Admit the WEBSITE violates the
Unruh Civil Rights Act.
DENIED
REQUEST FOR ADMISSION NO. 19: Admit the WEBSITE violates the
Unruh Civil Rights Act prior to the COMPLAINT.
DENIED
REQUEST FOR ADMISSION NO. 20: Admit YOU have received
complaints about the WEBSITE’s ACCESSIBILITY from PERSONS other than the
PLAINTIFF.
GRANTED
REQUEST FOR ADMISSION NO. 21: Admit that altering the
WEBSITE to be ACCESSIBLE to visually-impaired PERSONS would not result in an
undue burden to YOU.
DENIED
4.
Motion
to Compel Further Responses to Form Interrogatory 17.1
GRANTED.
5.
Motion
to Compel Deposition
The Court orders the parties to meet-and-confer
to determine a mutually-convenient date for the deposition. Defendant is to produce the documents ordered
by the Court two weeks prior to the date of the deposition. If the parties cannot agree on the details of
this deposition, they may schedule an Informal Discovery Conference.
6.
Sanctions
The Court denies both parties requests
for sanctions.
III.
CONCLUSION
The GRANTS in part and DENIES in
part Plaintiff’s Motions to Compel, as indicated above. The Court DENIES both parties requests for
sanctions.
The Court takes off-calendar the Informal
Discovery Conference previously scheduled for August 11, 2022.