Judge: Michael Shultz, Case: 20STCV46654, Date: 2022-09-13 Tentative Ruling
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Case Number: 20STCV46654 Hearing Date: September 13, 2022 Dept: A
20STCV46654
Edgar Torres v. Anschutz Southern California Sports Complex, LLC
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.
This motion was originally heard
on August 4, 2022 and granted in part. The court ordered Defendant to provide
verified, further responses to some of the interrogatories at issue within 10
days without objection. The court ordered Defendant to pay sanctions to
Plaintiff of $1,200. On the same day, the court heard Plaintiff’s Two Motions
to Quash Deposition subpoenas issued to Federal Express and FedEx Ground
Packaging. The motions were granted, and sanctions were imposed subject to a
subsequent declaration by Plaintiff’s counsel in support of the fee request.
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 generally that Defendant’s responses to Special
Interrogatories, Set One (“SI”) are not code compliant, are evasive 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 insufficiency of the interrogatory responses, but defense counsel refused
to supplement. Plaintiff contends the time limit for filing this motion to
compel further responses expired on July 27, 2022.
B. Defendant’s objection filed on July 27, 2022.
Defendant
objects to the motion because Plaintiff missed the deadline to file it, failed to
schedule an informal discovery conference with the court and Plaintiff failed
to informally meet and confer with defense counsel. Defendant does not address
the substantive merits of Plaintiff’s motion.
Defendant
filed an opposition on August 25, 2022, contending that it provided amended responses
to some of the requests to which the court required further responses. However,
as to the remaining interrogatories at issue are SI 1- 2, 4, 7, 8, 11, 15-21,
22 and 30, Defendant maintains that its initial responses are adequate, and the
objections thereto are meritorious.
C. C. Reply filed September 6, 2022
Plaintiff
objects to Defendant’s opposition on grounds it exceeds 10 pages, and it goes
beyond the scope of the court’s order. The court allowed defense counsel to address
Plaintiff’s declaration supporting a request for sanctions with respect to
Plaintiff’s two motions to quash the subpoena for records from Federal Express
Corporation and FedEx Ground Packaging. Instead, defense counsel does not even
rebut Plaintiff’s fee request. Although Defendant had the benefit of the
court’s tentative ruling granting Plaintiff’s motion to compel further
responses, Defendant elected not to provide further responses to the remaining
interrogatories but instead opposes the motion in substance. Defendant’s
initial responses to the interrogatories at issue remain incomplete, and the
objections are without merit. The amount of sanctions sought is reasonable.
III.
DISCUSSION
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 attempted to 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.
As the court previously determined in its minute order of August
4, 2022, Plaintiff’s motion to compel further responses to Special
Interrogatories, Set One was timely made within the 45-day period to after
service of the response, which fell on July 24, 2022. Code Civ. Proc., §
2030.300 subd. (c). The deadline was increased by two court days, in this case
by July 26, 2022, to account for service of the responses by email. 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 did not previously address any of the substantive issues
raised by Plaintiff. At the time of the hearing, Defendant explained that this
motion was originally set for September 13, 2022, but the court advanced it to
August 4, 2022, of which Defendant was not aware. Although not clear from the
minute order, the court allowed Defendant to respond in substance to both the
Plaintiff’s declaration in support of sanctions and this motion. The court has
considered Defendant’s opposition filed on August 25, 2022, and Plaintiff’s
reply and objection thereto.
The court previously ordered
further responses to SI 1-2, 4-5, 7-8, 11-12, 14-22, 24-25, 28-29 and 31. The
court denied the motion with respect to all other requests. Defendant contends it provided further
responses to SI 5, 12, 14, 24, 25, 28, 29, and 31. Declaration of Hussein, Ex.
F. This leaves SI 1-2, 4, 7-8, 11, 15-22, and 30.
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.
Notwithstanding
Defendant’s assurance that non-party witnesses can be contacted through defense
counsel, Defendant is required to provide contact information of witnesses, in
this case, Ulysses Gonzalez and Mr. Banks. Although disclosure of contact
information of percipient witnesses may invade their privacy as Defendant
contends, 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. Witness contact
information is not subject to the attorney-client privilege as it is not
attorney-client communication. The scope of permissible discovery broadly
includes “the identity and location of persons having knowledge of any
discoverable matter, … .” Code Civ. Proc., § 2017.010.
Defendant cites Pioneer Electronics (USA), Inc. v. Superior (2007) 40 Cal.4th 360 for the proposition that the witnesses
here contact information was sought should first be given an “opt-in” notice to
affirmatively consent to the disclosure of their contact information. Pioneer
was a class action wherein plaintiffs sought contact information of customers
who complained about the manufacturer’s electronic product. In this case, there
are two non-party witnesses at issue. The Puerto court observed that
like in Pioneer, "the requested information, while personal, is not
particularly sensitive, as it is merely contact information, not medical or
financial details, political affiliations, sexual relationships, or personnel
information.” Puerto at 1253.
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 contending that ABM is a
third-party, and Plaintiff can subpoena ABM for identification of potential
witnesses. However, a responding party is required to “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.” Code Civ. Proc., § 2030.220 subd. (c). ABM and its employee
information is not “equally available” to Plaintiff. Defendant admits that it contracted with ABM,
making ABM an agent, and therefore, subject to Defendant’s control.
SI 7, 8, 30: GRANT.
Plaintiff
requests the identification of investigators, persons interviewed, whether a recorded
statement was obtained, and who has custody of the statement, including contact
information. Defendant characterized the interrogatory as asking for expert
information, which it is not. Defendant now argues that these interrogatories
patently request work-product information. However, Defendant has not
established how the work product doctrine privilege applies and to which documents.
Defendant did not affirm whether investigative reports exist or whether persons
were in interviewed. 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. Writings that reflect an attorney’s impressions, conclusions,
opinions, or legal research of theories is entitled to absolute protection from
disclosure. Code Civ. Proc., § 2018.030 (a). However, any other writing not
covered under subpart (a) is entitled to a qualified privilege. Id. subd. (b). Whether or not Plaintiff is ultimately
entitled to the substance of any investigation depends on predicate facts
including the reports “dominant purpose.” City of Hemet v. Superior Court
(1995) 37 Cal.App.4th 1411, 1418–1419 [“If a report is prepared in the usual
course of business for a purpose independent of possible legal consultation, no
privilege is created even if the document is later sent to counsel. … A document or report prepared for a dual
purpose is privileged, or not privileged, depending on the ‘dominant purpose’
behind its preparation."].
To the extent Plaintiff seeks factual information, including potential witness information, the work product privilege does not apply. Documents prepared independently by a party, including witness statements, “do not become privileged communications or work product merely because they are turned over to counsel. The person claiming the attorney-client privilege must establish that the evidence sought to be protected falls within the statutory terms.” Green & Shinee v. Superior Court (2001) 88 Cal.App.4th 532, 536–537.
11: GRANT.
This interrogatory
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. Defendant’s
contention that this information is irrelevant is not supported by Defendant’s
authority concluding that it is plaintiff’s burden to produce evidence that the
dangerous condition existed for a sufficient length of time such that it would
have been discovered had Defendant acted reasonably. Ortega v. Kmart Corp
(2001) 26 Cal. 4th 1200, 1212.
Defendant next
contends that it will have to disclose personal information of patrons to the
facility. As discussed previously, disclosure potential witness identification
and location is not an undue burden. The existence of prior accidents is
relevant to the issue of Defendant’s notice.
SI 15-21: GRANT.
Plaintiff
asks for facts to support specific affirmative defenses asserted by Defendant. Defendant
contends in opposition that it did provide substantive, factual responses to
each interrogatory. However, Defendant merely restated its general denials and
conclusions without reference to any facts. See Plaintiff’s Sep. Stmt.
17:25-24:13. Defendant’s general denials are not tailored to the specific
defense asserted and does not answer the specific request for facts.
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, payable to Plaintiff within 10 days.
BB. Plaintiff’s Request for Sanctions with Respect to the Two Motions
to Quash