Judge: Michael Shultz, Case: 20STCV46654, Date: 2022-08-04 Tentative Ruling
Case Number: 20STCV46654 Hearing Date: August 4, 2022 Dept: A
20STCV46654
EDGAR TORRES v. ANSCHUTZ ENTERTAINMENT
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.
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.
II.
PLAINTIFF’S TWO MOTIONS TO QUASH DEFENDANT’S SUBPOENA FOR
PRODUCTION OF BUSINESS RECORDS FROM FEDERAL EXPRESS CORPORATION AND FEDEX
GROUND PACKAGE SYSTEM, INC.
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.
III.
DISCUSSION
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.
-------------------------------------------------------------------------------------------------------------------------------
20STCV46654
EDGAR TORRES V. ANSCHUTZ ENTERTAINMENT GROUP
Thursday, August
4, at 8:30 a.m.
[TENTATIVE]
ORDER GRANTING DEFENDANT’S MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR
PRODUCTION OF DOCUMENTS, SET TWO
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.
II.
DEFENDANT’S MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR
PRODUCTION OF DOCUMENTS, SET TWO
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.
III. DISCUSSION
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.
IV. CONCLUSION
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.
20STCV46654
EDGAR TORRES V. ANSCHUTZ ENTERTAINMENT GROUP
Thursday,
August 4, 2022, at 8:30 a.m.
[TENTATIVE]
ORDER GRANTING DEFENDANT’S MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL
INTERROGATORIES, SET TWO
III.
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.
IV.
DEFENDANT’S MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL
INTERROGATORIES, SET TWO
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.
III. DISCUSSION
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.
IV. CONCLUSION
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.
-------------------------------------------------------------------------------------------------------------------------------
Thursday, August
4, 2022 at 8:30 a.m.
[TENTATIVE] ORDER
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.
II.
PLAINTIFF’S
MOTION TO COMPEL FURTHER DISCOVERY RESPONSES TO SPECIAL INTERROGATORIES, SET
ONE, REQUEST FOR SANCTIONS
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.