Judge: Michael Shultz, Case: 20STCV46654, Date: 2022-08-04 Tentative Ruling

Case Number: 20STCV46654    Hearing Date: August 4, 2022    Dept: A


Thursday, August 4, 2022, at 8:30 a.m.


  I.        Background.

            The First Amended Complaint (“FAC”) filed on April 7, 2021, alleges that on December 8, 2018, Plaintiff attended a ticketed event held at a facility owned and controlled by Defendant. Plaintiff tripped and fell while walking to his seat. Plaintiff alleges claims for negligence and premises liability.

            On May 11, 2022, Plaintiff filed his first Motion to Quash Deposition Subpoena for Business Records directed to Federal Express Corporation (“FedEx”) scheduled to be heard on June 14, 2022. Plaintiff filed his second Motion to Quash Deposition Subpoena for Production of Business Records directed to FedEx Ground Package System, Inc., (“FedEx Ground”) on June 7, 2022, set for hearing on July 7, 2022. The court continued both hearings to July 14, 2022, and subsequently to August 4, 2022.

            As both motions concern the scope of permissible discovery of Plaintiff’s employment records, the court addresses both motions in one ruling.




A.      Motions filed May 11, 2022, and June 7, 2022


            The first motion concerns the first subpoena that Defendant issued seeking production of Plaintiff’s “independent contractor” records from FedEx. The second motion involves Defendant’s second subpoena seeking production of Plaintiff’s “employment records” from FedEx Ground. Plaintiff argues that both subpoenas essentially seek identical employment information from two different entities. Both subpoenas are overbroad in scope and seek employment records which are protected from disclosure by Plaintiff’s constitutional right to privacy. The employment records contain tax records, which are also privileged from disclosure. Defendant can verify Plaintiff’s lost wages or lost earning capacity through payroll records or check stubs.

            Despite Plaintiff’s attempts to meet and confer, Defendant refused to limit the scope of records sought despite the court’s suggestion that the phrase “any and all employment records” was overbroad. Defendant insisted that Plaintiff prepare Defendant’s deposition subpoenas. For this misuse of the discovery process, Plaintiff asks for an order imposing sanctions against Defendant and its attorney.


B.      Oppositions filed June 1, 2022, and June 21, 2022

            Defendant argues that Plaintiff admits the employment records are discoverable but seeks an order to quash the entire subpoena. Defendant repeatedly asked Plaintiff’s counsel to provide acceptable language.

            At the informal discovery conference on May 20, 2022, concerning other matters, the parties discussed the FedEx subpoena. Defendant agreed to strike “employment records” from the subpoena and to redact Plaintiff’s social security number, however, Plaintiff still objects to the entire subpoena. Form Interrogatories permit discovery of a 10-year scope of information.  Defendant asks for less than 10 years of records. Plaintiff was unwilling to meet and confer regarding the scope of the language or to provide alternative language.

            Defendant issued an amended subpoena with a more limited scope of records which renders the motion moot, but Plaintiff refuses to withdraw the motion.


C.      Reply filed June 7, 2022

            Plaintiff argues that Defendant has not demonstrated how all of Plaintiff’s personnel records are relevant. Tax information is also protected from discovery. Defendant subsequently served an amended subpoena for production of documents, which demonstrates Defendant’s bad faith.



            The court can quash a subpoena to protect the Plaintiff from unreasonable or oppressive demands including unreasonable violations of the right of privacy by motion “reasonably made.” The court has discretion to quash the subpoena upon such terms or conditions as the court shall declare, including issuing protective orders. Code Civ. Proc., § 1987.1.

            Plaintiff’s counsel attempted to meet and confer by letters dated May 4, 2022, through May 5, 2022, regarding the first subpoena and on May 31, 2022, with respect to the second subpoena.  Declaration of Colleen O’Hara, 11:5-14:22.

            Defendant issued the first subpoena for production of records from FedEx on April 15, 2022. First Motion, Ex. A. The subpoena requests “all employment records, records of payment, lease agreements 1099 records, employment schedules, employee file, off work orders, medical qualifications, driver qualifications, driver requirements, and driver manuals.” Id. Defendant issued the second subpoena on May 27, 2022, for production of records from FedEx Ground requesting the identical records. Second Motion, Ex. A. While Defendant contends that Defendant issued a third subpoena, it is not submitted. Regardless, the parties continue to dispute the proper scope of records subject to discovery. Therefore, the issue has not been rendered moot.

            Both subpoenas are overbroad in that Defendant seeks Plaintiff’s employee file, medical qualifications, driver requirements, and driver manuals as opposed to wage records, which would otherwise be relevant to Plaintiff’s claims for lost income or lost earning capacity. The right to privacy is protected by the California Constitution. White v. Davis (1975) 13 Cal.3d 757; Vinson v. Superior Court (1987) 43 Cal.3d 833, 839. Where privacy rights are implicated, Defendant must show that the records are directly relevant to Plaintiff’s claim and essential to the fair resolution of the lawsuit. Defendant must show a compelling need for the discovery. Harris v. Superior Court (1992) 3 Cal.App.4th 661, 665. However, there is an implicit waiver of Plaintiff’s constitutional rights encompassing discovery directly relevant to Plaintiff’s claims. Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1014.

            The scope of privacy protects disclosure of employment personnel records, tax records, and medical records pertaining to topics not placed in issue by filing the complaint. Brown v. Superior Court (1977) 71 Cal.App.3d 141 (tax records and related records), Webb v. Standard Oil (1957) 49 Cal.2d 509, 513 (tax records and attachments), Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516 (personnel records).

            Plaintiff does not dispute that Plaintiff’s wage loss claim is within the scope of permissible discovery, however, Plaintiff argues that Defendant should be confined to discovery of payroll or check stubs. First Motion, 6:9-10. While tax records are generally privileged from disclosure, any 1099s relating to Plaintiff’s earnings are equally discoverable as they are directly relevant given the nature of Plaintiff’s wage loss claim.

            However, Defendant has not demonstrated why any other documents not pertaining to the wage loss claim are directly relevant and discoverable, such as Plaintiff’s employee file, medical records, and medical and driver qualifications. Accordingly, both the original and amended subpoenas are overbroad in scope to the extent it requests disclosure of non-wage related documents.

           The court may award costs and attorney’s fees incurred in making this motion. Code Civ. Proc., § 1987.2. Defense counsel has not shown substantial justification for the conduct described above. Accordingly, the court imposes sanctions against defense counsel, Yasmine Hussein, subject to a declaration from Plaintiff’s counsel setting forth facts to support the amount of monetary sanctions sought. Code Civ. Proc., § 2023.040. Sanctions are payable to Plaintiff’s counsel within 10 days of the court’s order.


IV.                CONCLUSION

            Based on the foregoing, Plaintiff’s two Motions to Quash Subpoenas for production of records issued to both FedEx and FedEx Ground are GRANTED.      




Thursday, August 4, at 8:30 a.m.





The First Amended Complaint (“FAC”) filed on April 7, 2021, alleges that on December 8, 2018, Plaintiff attended a ticketed event held at a facility owned and controlled by Defendant. Plaintiff tripped and fell while walking to his seat. Plaintiff alleges claims for negligence and premises liability.



A.      Motion filed July 7, 2022

Defendant requests an order compelling Plaintiff’s further response to the second set of Defendant’s document request propounded on February 25, 2022. After several attempts to meet and confer, Plaintiff served a response on April 12, 2022, that improperly included objections that had been waived and refusing to respond to Requests 73-78 and 80. Plaintiff subsequently obtained relief from waiver of objections, although her motion for protective order was denied.  

At an informal discovery conference with the Hon. Judge Long held on May 20, 2022, the court ordered Plaintiff to serve responses to Requests 73-78 and 80 without objection. However, Plaintiff served supplemental responses to Requests 63-67 and ignored the court’s order. Defendant asks for imposition of monetary sanctions against Plaintiff for abusing the discovery process.

On July 27, 2022, Defendant filed a notice stating that Plaintiff failed to file an opposition.

B.      Opposition filed July 28, 2022 (Due July 22, 2022, nine court days before the hearing).

Plaintiff argues Defendant has misrepresented the court’s order issued on May 20, 2022, after the informal discovery conference. The court should strike Defendant’s answer and impose monetary sanctions.  Judge Long did not issue an order on May 20, 2022. No orders were ever issued requiring Plaintiff to respond further. Defendant is continuing to lie. Defendant is not entitled to an award of monetary sanctions because defense counsel did not include the request in the notice of motion.

C.      No reply has been filed at this writing.



The court acknowledges that Plaintiff untimely filed the opposition six days late, ostensibly resulting in a late filing of Defendant’s reply brief. The court has discretion to consider late papers in favor of the strong policy favoring disposition of the case on the merits. Kapitanski v. Von’s (1983) 146 Cal.App.3d 29, 32. [“Judges are well aware of the unnecessary burdens placed on courts and counsel when strict compliance with local procedural rules results in the expenditure of unnecessary time and money for the preparation of later section 473 motions.”]. To avoid any prejudice to Defendant, the court will also consider Defendant’s reply brief if it is untimely filed.

On February 25, 2022, Defendant served Request for Production of Documents, Set Two, consisting of Requests 62-81. Motion, Ex. A-2. Plaintiff served responses on April 12, 2022, containing numerous objections, although they had been waived by the late response. Motion, Ex. D.  Plaintiff also failed to respond to Requests 73-76.

            The court’s file reflects that on May 12, 2022, the court granted Plaintiff’s Motion for Relief from Waiver of Objections relating to the document request. However, the court denied Plaintiff’s Motion for a Protective order to avoid having to respond at all. Min. Ord. 5/12/22. The court denied the motion, in part, because Plaintiff’s counsel did not demonstrate undue burden or oppression given that Defendant served responses to the discovery 11 days after being notified of the document request. Plaintiff’s counsel expressly stated in her declaration that she did not have an objection to “most of them.” Plaintiff also produced documents in response to the request. See Min. Ord. 5/12/22. The court did not order Plaintiff to respond to any document request; the court granted her relief from any untimely made objections.

The parties participated in an informal discovery conference with the court on May 20, 2022.  The court’s minute order stated in part that “Plaintiff will provide amended self-contained best and final responses to the interrogatories at issue in the February 24, 2022, Minute Order, without objections, and within 20 days of this date, and the Defendant will have 50 days from this date to file and serve any motion to compel.”  Min. Ord. 5/20/22. On June 23, 2022, Plaintiff served Supplemental Responses to document requests 63-67. Motion, Ex. H. Plaintiff also produced documents. Id.

The court has discretion to conduct its own informal discovery conference at a party’s request “for the purpose of discussing discovery matters in dispute between the parties.” Code Civ. Proc., § 2016.080(a). The 5/20/22 order does not state that Plaintiff stipulated to provide documents without objection. Plaintiff’s counsel denies entering into a stipulation. Plaintiff’s counsel claims she advised the court that she may voluntarily supplement or amend her responses to be “conciliatory and courteous.” Declaration of Colleen O’Hara, 16:19-25.

Defendant has not provided any evidence that the court ordered Plaintiff to respond to Requests 73-78 and 80 without objection no later than June 24, 2022. Motion, 1:22. The effect of the court’s granting Plaintiff relief from waiver of objections is that Plaintiff’s original responses to the document request that included objections were properly made at the time. However, in substance, the objections are without merit.

Requests No. 73-76

            Plaintiff is ordered to provide a further response. Defendant requests documents supporting claims for costs disclosed in Plaintiff’s response to Form Interrogatories, specifically costs incurred for an ice pack, a heat pack, an Epsom salt, and an “Unna boot.” None of Plaintiff’s objections have merit. These questions are not duplicative of general requests for bills, statements, and invoices. Defendant requests cost documentation for specific items Plaintiff disclosed in interrogatory responses.

            Plaintiff’s contention that Defendant should rephrase the requests to make it consistent with interrogatories is not a basis for refusing to answer it. Plaintiff does not contend that the requests are incomprehensible. The requests are clear. Plaintiff’s objections that the demands are excessive, oppressive, or unreasonable are also without merit. The court denied Plaintiff’s motion for a protective order on May 12, 2022.

Request No. 77

            Plaintiff is ordered to provide a further response. Defendant requests documents to support Plaintiff’s claim that the floor “felt moist” when he stepped on it as disclosed in his response to special interrogatory (“SI”) 5. Plaintiff’s response is inconsistent; on the one hand Plaintiff maintains he previously responded to a production request for photographs and videos or that confirm Plaintiff’s allegations, on the other hand Plaintiff contends this Request is “non-sensical.” 

            The request is not duplicative of prior requests. That objection was overruled when the court declined to issue a protective order. Plaintiff provides no evidence that this request is protected by the attorney-client relationship or work product privilege. Even if any privilege applied, Plaintiff is required to produce a privilege log, identify the document, and state the objection at issue to enable the court to decide whether any particular privilege applies. Code Civ. Proc., § 2031.240. Plaintiff’s objections based on oppression or that the requests are duplicative are without merit given the court’s denial of a protective order.

Request No. 78

            Plaintiff is ordered to provide a further response without objection. Defendant requests documents supporting Plaintiff’s claim that the specific area where he fell was not well lit as stated in response to SI No. 17. Plaintiff’s objections based on privilege, oppression or that the requests are duplicative are without merit for the reasons stated previously.


Request No. 80


            Plaintiff is ordered to provide a further response.  Defendant asks for documents supporting the claim that Defendant did not inspect the location before allowing people in the area as Plaintiff claimed in response to SI 35. A commercial landowner owes plaintiff a duty to exercise reasonable care by performing reasonable inspections. Howard v. Omni Hotels Management Corp. (2012) 203 Cal.App.4th 403, 431.

Plaintiff’s objections based on privilege, oppression or duplicative requests are without merit for the reasons stated. Plaintiff’s contention that these facts are within Defendant’s knowledge is evasive. Defendant is entitled to discover evidence in Plaintiff’s possession. Plaintiff’s claim that the request is premature is not a code-compliant response. If Plaintiff is not able to respond, Plaintiff “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.” Code Civ. Proc., § 2031.230.

The court declines to impose monetary sanctions against Plaintiff as doing so would be unjust under the circumstances, given Defendant’s inability to establish that Plaintiff was ordered to provide further responses without objection to particular document requests. Code Civ. Proc., § 2031.300(c). Additionally, a request for sanctions must identify in the notice, the person, party, and attorney against whom the sanction is sought as well as the type of sanction sought. Code Civ. Proc., § 2023.040.

Imposition of sanctions in favor of Plaintiff and against Defendant is also unjust under the circumstances given Plaintiff’s evasive responses to Request for Production of Documents. 



Based on the foregoing, Defendant’s Motion to Compel Further Responses to Request for Production Set Two, specifically Requests 73-78 and 80 is GRANTED. Code Civ. Proc., § 2031.310(c). Plaintiff, Edgar Torres, is ordered to provide further, verified responses without objection to Requests 73-78 and 80 within 10 days.




Thursday, August 4, 2022, at 8:30 a.m.





The First Amended Complaint (“FAC”) filed on April 7, 2021, alleges that on December 8, 2018, Plaintiff attended a ticketed event held at a facility owned and controlled by Defendant. Plaintiff tripped and fell while walking to his seat. Plaintiff alleges claims for negligence and premises liability.




D.     Motion filed June 20, 2022

Defendant served Special Interrogatories, Set Two (“Set Two” or “SI”) on August 26, 2021. After receiving responses, Defendant moved to compel further responses which the court granted on February 24, 2022. Instead of complying, Plaintiff added new objections and refused to respond to Requests 39 and 40 unless Defendant responded in good faith to discovery not yet propounded.

The parties participated in an informal discovery conference with the court on May 20, 2022. Defendant states the court ordered Plaintiff to provide substantive responses no later than June 9, 2022. Defendant contends that Plaintiff’s counsel, Colleen O’Hara, improperly served amended responses that Ms. O’Hara drafted on behalf of the Plaintiff because the discovery constituted contention interrogatories. Defendant argues that the discovery sought facts, not legal contentions.

Defendant asks for an order striking the amended response and imposing monetary and evidentiary sanctions precluding the introduction of evidence relevant to actual or constructive notice at issue in SI 39 and 40.

E.      Opposition filed July 8, 2022

Plaintiff argues Defendant has misrepresented the court’s order issued on May 20, 2022, after the informal discovery conference. Plaintiff did not stipulate to anything. Plaintiff voluntarily agreed to amend responses to Special Interrogatories 39 and 40. A motion was not at issue. The court did not issue an order. There are only two contention interrogatories at issue (Nos. 39 and 40), and Defendant did not meet and confer about those interrogatories. Responses to contention interrogatories must be crafted by the attorney. The Plaintiff cannot be expected to apply law to facts.

Defendant cannot request a motion to strike. That motion must be separately made. There is no basis for issuance of sanctions; Plaintiff acted with substantial justification. The court should impose sanctions against defense counsel for her discourteous behavior.

F.       Reply filed July 14, 2022

Defendant contends that the issue is not that Plaintiff was assisted by counsel, it was that counsel personally answered the interrogatories. Plaintiff’s opposition misrepresents the history of what occurred in this case.



            Defendant is entitled to move to compel a further response to interrogatories where (among other reasons) Defendant deems the objections to be without merit or if a specific response is evasive or incomplete. Code Civ. Proc., § 2030.300(a) The parties are required to meet and confer in good faith prior to bringing the motion. Id. The evidence supports that defense counsel, Yasmine Hussein, attempted to meet and confer informally before the first motion to compel, and twice with the court as more fully discussed below.

            The court’s file reflects that the Hon. Thomas D. Long granted Defendant’s Motion to Compel Further Responses to Special Interrogatories, Set Two on February 24, 2022. Plaintiff’s opposition attempts to relitigate issues that the court considered and rejected on that date. At issue at that time were Set Two, Nos. 36-41. The court rejected Plaintiff’s contention that Set Two exceeded the statutory limit of 35 despite comments made by the Hon. Susan Murillo at another informal discovery conference. Min. Ord. 2/24/22, page 2, subpart A. Judge Long determined that Defendant had a statutory right to propound more than 35 interrogatories so long as counsel justified the interrogatories’ necessity. Code Civ. Proc., § 2030.050, Min. Ord. 2/24/22, page 3. Plaintiff’s remedy was to file a protective order, which the court determined had not been filed.

The court further rejected Plaintiff’s contention that Set Two was duplicative of Set One; rather Set Two requested different information. Id., page 3-4. The court ordered Plaintiff to provide further, code-compliant, and verified responses to SI Nos. 36 through 41 without objection. Min. Ord. 2/24/22, page 7.

On March 14, 2022, Plaintiff served supplemental responses as ordered by the court asserting objections in part, despite the court’s order precluding objections. Motion, Ex. B. In response to SI 39 and 40. Plaintiff’s counsel responded by disparaging defense counsel, maintaining that the question was previously asked although the court determined otherwise, and challenging defense counsel’s jurisdiction to propound discovery (among other things). Plaintiff’s counsel asserts that Defense counsel failed to respond in good faith to Plaintiff’s discovery. Motion, Ex. B, 7:13 and 9:25-10-8:2-16. This response was not responsive, was evasive, and failed to comply with the court’s order of February 24, 2022. Defendant asked Plaintiff to provide facts in support of contentions, not legal theories. Id. 4) A party may not “deliberately misconstrue a question for the purpose of supplying an evasive answer.” Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771, 783.

The parties again participated in an informal discovery conference with the court on May 20, 2022, regarding Plaintiff’s supplemental responses after three weeks of attempted informal conferences by defense counsel. Hussein Declaration ¶ 20, Ex. D.  At the informal discovery conference, the court issued a minute order stating that the issues were not resolved and noted that Plaintiff would provide “amended, self-contained, best and final responses” without objections within 20 days. Min. Ord. 5/20/22.

Ms. O’Hara admits she agreed to do this voluntarily to avoid having a court order issued against her client. O'Hara Declaration, 34:9-16. She declares that she opted to provide the amended responses which were served on June 8, 2022. Motion, Ex. E.  While Plaintiff provided facts to SI 39 and 40 as requested, the responses were prefaced with the caveat that Ms. O’Hara was responding on behalf of Plaintiff because 39 and 40 were contention interrogatories. Id., Ex. E:6-7 and 5:10-11. This response is improper.

Plaintiff’s reliance on Rifkind v. Superior Court (1994) 22 Cal.App 4th 1255 is misplaced. The court concluded that “contention questions of the kind at issue in this case, while entirely appropriate for interrogatories, are not proper in the deposition of a party who is represented by counsel." Rifkind v. Superior Court (1994) 22 Cal.App.4th 1255, 1263. The court also observed that contention interrogatories are expressly permitted by statute. Code Civ. Proc., § 2030.010(b) ["An interrogatory may relate to whether another party is making a certain contention, or to the facts, witnesses, and writings on which a contention is based. An interrogatory is not objectionable because an answer to it involves an opinion or contention that relates to fact or the application of law to fact or would be based on information obtained or legal theories developed in anticipation of litigation or in preparation for trial."].

Ms. O’Hara was not authorized to provide factual responses over which she had no personal knowledge. She is not a party. The party is obligated to respond to interrogatories. Code Civ. Proc., § 2030.220. Counsel is authorized to sign responses to interrogatories where responses contain an objection. Code Civ. Proc., § 2030.250(c). The party to whom the interrogatories are directed “shall sign the response under oath unless the response contains only objections.” Code Civ. Proc., § 2030.250(a).

Monetary sanctions are warranted against Plaintiff’s counsel for refusing to comply with the court’s February 25, 2022, order, and failing to provide substantial justification for her conduct. Code Civ. Proc., § 2030.300(d). Contrary to Plaintiff’s argument, Defendant properly gave notice of the intent to seek imposition of sanctions. Notice of Motion, 2:23. Code Civ. Proc., § 2023.040 [“A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.”]. The court has considered the declaration of Ms. Hussein and finds that $300/hour is a reasonable fee. Accordingly, the court imposes sanctions of $2,400 (7.8 hours to prepare the motion, reply and to appear) plus $60 filing fee.

The court declines to impose evidentiary sanctions.  Discovery sanctions are not to be imposed for punishment, but instead are used to encourage fair disclosure of discovery to prevent unfairness resulting from the lack of information. Midwife v. Bernal (1988) 203 Cal.App.3d 57, 64–65. Sanctions should be “appropriate to the dereliction and should not exceed that which is required to protect the interests of the party.” Do It Urself Moving & Storage v. Brown (1992) 7 Cal. App. 4th 27, 35. Evidentiary sanctions are excessive under the circumstances.



Based on the foregoing, Defendant’s Motion to Compel Further Responses to Special Interrogatories, Set Two, Nos. 39 and 40 are GRANTED. Plaintiff, Edgar Torres, is ordered to provide Second Amended Further Responses without objection and verified by him as the responding party as required by statute. Plaintiff’s counsel, Colleen O’Hara, is ordered to pay monetary sanctions of $2,400 to Defendant within 10 days. Defendant’s request to strike Plaintiff’s amended responses (Ex. E) is DENIED.


20STCV46654 Edgar Torres v. Anschutz Southern California Sports Complex, LLC,

Thursday, August 4, 2022 at 8:30 a.m.





I.            BACKGROUND

The First Amended Complaint (“FAC”) filed on April 7, 2021, alleges that on December 8, 2018, Plaintiff attended a ticketed event held at a facility owned and controlled by Defendant. Plaintiff tripped and fell while walking to his seat. Plaintiff alleges claims for negligence and premises liability.



A.      Plaintiff’s Motion filed on July 26, 2022.

Plaintiff argues that several Defendant’s responses to Special Interrogatories, Set One (“SI”) are not code compliant, are invasive and incomplete, and objections made are without merit. Plaintiff asks for imposition of sanctions against Defense counsel for abuse of the discovery process.

Plaintiff sent an electronic email to defense counsel regarding the insufficient of the interrogatory responses, but Defense counsel refused to supplement. Plaintiff contends the time limit for filing this motion to compel further responses expires on July 27, 2022.


B.      Defendant’s objection filed on July 27, 2022.

Defendant objects to the motion and asks the court to vacate it because Plaintiff missed the deadline to file it, which was July 26, 2022. Plaintiff also failed to schedule an informal discovery conference with the court. Plaintiff also failed to informally meet and confer with defense counsel. Defendant does not address the substantive merits of Plaintiff’s motion.


C.      Plaintiff’s Objection filed July 27, 2022

Plaintiff argues that the motion was timely filed. Defendant served responses by email, which increases the 45-day time limit to file this motion by two court days. The court took off calendar the scheduled informal discovery conference.

III.            DISCUSSION

While this motion was originally scheduled for September 13, 2022, the court advanced the hearing and continued it to August 4, 2022. Min. Ord. 7/22/22.

A party can move to compel a further response to interrogatories where the party deems an answer to be evasive or incomplete, or an exercise of the option to produce documents is unwarranted or inadequate, or an objection is without merit or too general. Code Civ. Proc., § 2030.300(a). The parties are required to meet and confer prior to making the motion. Code Civ. Proc., § 2030.300(b). 

Plaintiff sent an email to defense counsel in an effort to informally meet and confer. Declaration of O’Hara, Ex. C. Defense counsel responded by email, requesting further explanation. Id. An informal discovery conference was previously scheduled with the court for August 25, 2022, but the court vacated it on its own motion. Min. Ord. 7/20/22.

A notice of motion to compel further responses must be 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.” Code Civ. Proc., § 2030.300(c). The 45-day limit is increased by two court days where the responses are served electronically. Code Civ. Proc., § 1010.6(a)(4)(A).

Defendant served responses by electronic mail on June 9, 2022. Motion, Ex. B, .pdf page 47. Therefore, the deadline for Plaintiff to file the motion was July 24, 2022 (45th day) increased by two court days, in this case by July 26, 2022. The motion was filed on July 26, 2022 at 9:49 p.m. Documents received after close of business (11:59 p.m.) are deemed to have been received on the next court day. CA ST CIVIL RULES Rule 8.77(c). Accordingly, the motion was timely filed. Defendant has not addressed any of the substantive issues raised by Plaintiff.

At issue are the following responses: SI 1-8, 11-12, 14-18, 20-25, 27-31. Plaintiff contends that Defendant’s responses do not comply with the code. The Discovery Act requires that each answer “shall be as complete and straightforward as the information reasonably available to the responding party permits.” Code Civ. Proc., § 2030.220(a). The responding party must respond to the extent possible if it cannot be answered completely. If responding party does not have personal knowledge sufficient to respond, the party must state that fact, “but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.” Id.

SI 1-2: GRANT. Defendant is ordered to provide a further response. Defendant is required to provide contact information of witnesses, in this case, Ulysses Gonzalez, who is the only identified witness thus far. Although disclosure of contact information of percipient witnesses may invade their privacy, there is generally no protection for the identity, addresses and phone numbers of such witnesses except where there is a risk of physical harm to the witness. Puerto v. Superior Court (Wild Oats Markets, Inc. (2008) 158 Cal.app.4th 1242, 1251-1252. Defendant refused to provide this information, but instead informed Plaintiff that the witness could be contacted through defense counsel.

SI 3.  DENY. Defendant adequately described the lighting at the Stubhub Center as “effect lighting.”

SI 4, 22 GRANT. Defendant responded that the individuals responsible for maintenance was ABM Janitorial services, with whom Defendant contracted. Defendant did not identify these individuals by name or provide contact information. Defendant is required to respond after reasonable and diligent inquiry to others.

SI 5: GRANT. Defendant’s response to the request for all persons with personal knowledge of the incident is incomplete. Defendant provided name and contact information but did not describe their job titles and what they purportedly witnessed.

SI 6: DENY. Defendant adequately identified persons who spoke to Plaintiff on the date of the address including name and contact information.

SI 7, 8, 30: GRANT. Plaintiff requests the identification of investigators, persons interviewed, whether a recorded statement was obtained, who has custody of the statement, including contact information. Defendant characterized the interrogatory as asking for expert information, which it is not. As Defendant did not file a substantive opposition, Defendant has failed to establish how the work product doctrine privilege applies and to which documents. Defendant did not affirm whether investigative reports exist. Plaintiff is entitled to percipient witness information. Defendant’s contention that the request was previously propounded is not a ground for refusing to respond based on information currently in Defendant’s possession.

 11-12 GRANT. These interrogatories requests information of prior accidents and any procedures concerning inspection, repair, maintenance, or cleaning of the walkway at issue. Defendant refused to respond, contending the interrogatories are outside the scope of Plaintiff’s claims. These questions are relevant to Plaintiff’s prima facie case for premises liability.  A landowner has an “affirmative duty to exercise ordinary care to keep the premises in a reasonably safe condition, and therefore must inspect them or take other proper means to ascertain their condition.”  Swanberg v. O'Mectin (1984) 157 Cal.App.3d 325, 330. Additionally, Plaintiff is required to establish the landowner’s actual or constructive notice of the dangerous condition with evidence showing the existence of a dangerous condition and that the defendant knew or should have known of it.” Vaughn v. Montgomery Ward & Co. (1950) 95 Cal.App.2d 553, 556.

SI 14: GRANT. The interrogatory requests information about training material for employees and independent contracts regarding slip and fall injuries. Defendant avoids the question by referring to its third-party contractor. Defendant is required to make a reasonable inquiry and provide specific information requested.

SI 15-21: GRANT. Plaintiff asks for facts to support specific affirmative defenses asserted by Defendant. Defendant provides the same evasive and non-responsive answer to each interrogatory. Defendant asserts general denials that are not tailored to the specific defense asserted and does not answer the question.

SI 23: DENY. Defendant adequately responded that it does not have any surveillance video of the subject incident.

SI 24:-25: GRANT. Plaintiff requests that Defendant identify any verbal warnings given to Plaintiff prior to the incident. Defendant contends it does not have a duty to warn. This is a legal conclusion that avoids the question.

 SI 27: DENY. Plaintiff requests information that the moisture on the stairs was not a factor contributing to the incident. Defendant states, among other things, that Defendant “likely spilled his drink while walking down the stairs, thus inferring that Defendant was not responsible for the condition of the stairs.” Defendant infers that the moisture is not a factor because Plaintiff created the moisture with his drink.

SI 28-29: GRANT. Plaintiff asks Defendant to identify procedures that Defendant followed concerning inspection, repair, or maintenance, and or cleaning of the steps. The response that generally refers to its maintenance contractor is incomplete. Plaintiff asks for Defendant’s own inspection and repair policies (among other policies).

SI 31. GRANT. Plaintiff asks for the persons responsible for the lighting on the date of the incident. Defendant states lighting was preapproved, and additional lighting was provided by the “event promoter.” The response is vague, evasive, and non-responsive.

     Plaintiff is entitled to an award of sanctions for Defendant’s failure to provide code-compliant responses to authorized discovery and for making unmeritorious objections. Code Civ. Proc., § 2023.010 (e) and (f).  Accordingly, sanctions of $1,200 ($400/hour x 3 hours) are imposed against defense counsel, Yasmine Hussein. Declaration of O’Hara.


IV.            CONCLUSION

Based on the foregoing, the court GRANTS Plaintiff’s Motion in part. Defendant shall provide within 10 days, further, verified responses to the following without objection. Special Interrogatories 1-2, 4, 5, 7, 8, 11-12, 14, 15-21, 22, 24-25, 28-31. The court DENIES all remaining interrogatories at issue in this motion.

            The court orders defense counsel, Yasmine Hussein, to pay sanctions of $1,200 to Plaintiff within 10 days.