Judge: Michelle Williams Court, Case: 19STCV07203, Date: 2022-09-28 Tentative Ruling

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Case Number: 19STCV07203    Hearing Date: September 28, 2022    Dept: 74

19STCV07203           MARGARET SHAW vs DORINA SCHIRO

Defendants/Cross-Complainants FirstService Residential California, LLC; and Ocean Towers Housing Corporation’s Motion to Compel Plaintiff, Margaret Shaw to Serve Further Verified Responses to Defendants, First Service Residential California, LLC and Ocean Towers Housing Corporation’s Special Interrogatories, Set Two, Nos. 18-23, 29-30 and 36-38.

TENTATIVE RULING:  The motion is GRANTED in its entirety.  Plaintiff is ordered to service further complete, verified and code-compliant responses to Special Interrogatories, Set Two, Nos. 18-23, 29-30 and 36-38 without objection within 20 days.

Background

On February 27, 2019, Plaintiff Margaret Shaw filed this action complaint against Defendants Dorina Schiro, Alfred Joseph Verdi dba Sea Cliff Realtors, Graham Nudd, and Laura Nudd. On October 14, 2022, Plaintiff filed the First Amended Complaint asserting causes of action for (1) breach of rental lease/contract for implied warranty of habitability; and (2) negligence arising out of Plaintiff’s fall due to a damaged floor in Plaintiff’s apartment.

On November 23, 2020, Ocean Towers Housing corporation and FirstService Residential California, LLC filed a cross-complaint against Graham Nudd, and Laura Nudd for indemnification, apportionment of fault, declaratory relief, express indemnity, and breach of deed of trust.   

Motion

On June 22, 2022, Defendants/Cross-Complainants FirstService Residential California, LLC; and Ocean Towers Housing Corporation filed the instant motion to compel Plaintiff to provide further responses to Special Interrogatories, Set Two, Nos. 18-23, 29-30 and 36-38.

Opposition

In opposition, Plaintiff contends her responses are clear, responsive, and code compliant.

Reply

In reply, Defendants reiterate their arguments that Plaintiff’s responses are evasive and improper and not Plaintiff failed to justify any of the asserted objections.

Motion to Compel Further Responses

Standard

The propounding party may bring a motion to compel further responses to interrogatories if it believes the responses received are evasive or incomplete, the attempt to produce writings pursuant to Code of Civil Procedure section 2030.230 is unwarranted or inadequate, or if the objections raised are meritless or too general. (Code Civ. Proc. § 2030.300(a).) The motion must be accompanied by a good-faith meet and confer declaration, (Code Civ. Proc. § 2016.040), and be accompanied by a separate statement. (Cal. R. Ct., rule 3.1345.) The opposing party bears the burden of justifying any objections. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255; Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 97-98.)

Unless extended, the motion must be filed within 45 days of service of the responses. (Code Civ. Proc. §§ 2016.050; 2030.300(c); Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410 (“the time within which to make a motion to compel . . . is mandatory and jurisdictional.”).)

Background of Discovery and Meet and Confer

On March 7, 2022, Defendants served Special Interrogatories, Set Two upon Plaintiff. (Morovati Decl. ¶ 7, Ex. D.) Plaintiff served responses on April 22, 2022. (Id. ¶ 8, Ex. E.) Plaintiff served supplemental response to Special Interrogatories, Set Two, Nos. 24-27, 31, and 32 on June 10, 2022. (Id. Ex. F.) The parties exchanged meet and confer correspondence regarding Plaintiff’s responses to Special Interrogatories, Set Two, Nos. 18-23, 29-30 and 36-38, but were unable to resolve their dispute. (Id. Ex. G-J) The motion was timely filed based upon the parties’ extension and is accompanied by the required separate statement.

Special Interrogatories Nos. 18-23

Special Interrogatory No. 18 requests that Plaintiff “[s]et forth the total amount of payments that were made by YOU for YOUR past medical expenses, as a result of the SUBJECT INCIDENT.”

Special Interrogatory No. 19 requests that Plaintiff “IDENTIFY all WRITINGS which set forth/evidence the total amount of payments that were made by YOU for YOUR past medical expenses, which YOU allege in this case.”

Special Interrogatory No. 20 requests that Plaintiff “[s]et forth the total amount of payments that were made by YOUR medical insurance carrier, Blue Cross Blue Shield of Texas, for YOUR past medical expenses, as a result of the SUBJECT INCIDENT.”

Special Interrogatory No. 21 requests that Plaintiff “IDENTIFY all WRITINGS which set forth/evidence the total amount of payments that were made by YOUR medical insurance carrier for YOUR past medical expenses, which YOU allege in this case.”

Special Interrogatory No. 22 requests that Plaintiff “[s]et forth the total Howell amount of YOUR past medical expenses, as a result of the SUBJECT INCIDENT.”

Special Interrogatory No. 23 requests that Plaintiff “IDENTIFY all WRITINGS which set forth/evidence the total Howell amount of YOUR past medical expenses, which YOU allege in this case.”

Plaintiff provided identical responses to each interrogatory that included a series of objections, and the statement “please see the medical records produced in this action, including PLAINTIFF000414-002472, PLAINTIFF002477-003459,  PLAINTIFF003569-003571, and records subpoenaed by the defense, pursuant to CCP  2030.320.”

In opposition, Plaintiff does not justify any of the asserted objections and contends the responses are code compliant. (Opp. at 5:14-6:24.) Defendants provide evidence that the identified documents “include over three thousand pages of Plaintiff’s medical records, detailing treatment prior to and following the Subject Incident. Of these thousands of pages of medical records cited by Plaintiff, only seven pages actually refer to medical billing or payments of any kind” and Defendants have “received subpoenaed medical records from eight separate facilities.” (Morovati Decl. ¶¶ 9-10.)

The Court finds Plaintiff’s responses do not constitute a proper exercise of the right to respond to an interrogatory by reference to documents pursuant to Code of Civil Procedure section 2030.230. Defendants have demonstrated Plaintiff’s specifies a large mass of unidentified documents, that largely include irrelevant documents. A further response is required. (See Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 293 (“If an interrogatory asks the responding party to identify a document, an adequate response must include a description of the document.”); Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 784 (“A broad statement that the information is available from a mass of documents is insufficient.”); Liberty Mutual Fire Ins. Co. v. LcL Administrators, Inc. (2008) 163 Cal.App.4th 1093, 1102 (“by specifying as supporting documents the entire compendium of Liberty's workers' compensation files, LCL's responses were worthless.”).)

In opposition, Plaintiff contends Deyo, “discusses answers that are entirely different than a response provided pursuant statute” and “to the extent defendant’s interpretation of Deyo is inconsistent with CCP 2030.230, the 2005 statute of the legislature controls over a 1978 case interpreting another statute and not CCP 2030.230 which did not even exist at that time.” (Opp. at 6:17-24.) However, the statute addressed in Deyo is identical to Code of Civil Procedure section 2030.230. (Compare Deyo, supra, 84 Cal.App.3d at 784 (“When in order to answer an interrogatory, it is necessary to make a compilation, abstract, audit, or summary of business records of a party, and such compilation, abstract, audit, or summary does not exist or is not under the control of the party, it is a sufficient answer to so state and to specify the records from which the answer may be derived or ascertained and to afford the other party reasonable opportunity to examine, audit, or inspect such records and to make copies thereof, abstracts, or summaries therefrom.”) with Code Civ. Proc. § 2030.230 (“If the answer to an interrogatory would necessitate the preparation or the making of a compilation, abstract, audit, or summary of or from the documents of the party to whom the interrogatory is directed, and if the burden or expense of preparing or making it would be substantially the same for the party propounding the interrogatory as for the responding party, it is a sufficient answer to that interrogatory to refer to this section and to specify the writings from which the answer may be derived or ascertained. This specification shall be in sufficient detail to permit the propounding party to locate and to identify, as readily as the responding party can, the documents from which the answer may be ascertained.”).) Plaintiff must provide further responses.

The motion is GRANTED as to Special Interrogatories Nos. 18-23.

Special Interrogatories Nos. 29 and 30

Special Interrogatory No. 29 requests that Plaintiff “set forth the amount of earnings YOU contend YOU lost as a result of the subject INCIDENT.

Special Interrogatory No. 30 requests that Plaintiff “set forth the method by which YOU calculated the amount of earnings YOU contend YOU lost as a result of the subject INCIDENT.”

In response to both interrogatories, Plaintiff asserted various objections and responded “this interrogatory calls for premature expert information, but in a good faith effort to respond to discovery, Plaintiff states – unknown at this time. Discovery and investigation continue.”

Plaintiff does not justify any of the asserted objections and contends the “response could not be any clearer. There is nothing to compel.” (Opp. at 7:2.) Plaintiff also contends “Disagreement with the substance of a response is not a basis to move to compel a different and false response, and such a motion is sanctionable.” (Id. at 7:7-8.) Plaintiff cites Holguin v. Superior Court (1972) 22 Cal.App.3d 812, which involved requests for admissions, and rejected “Plaintiffs' position . . . that certain matters which defendants have denied are so unquestionably true, that they cannot deny them” and therefore a motion to compel was proper.

Here, Defendants provide evidence that Plaintiff is making a lost earnings claim and served a statement of damages claiming $200,000.00 for loss of earnings. (Morovati Decl. Ex. C.) In light of these facts, Plaintiff’s response of “ unknown at this time” is evasive. (Liberty Mutual Fire Ins. Co. v. LcL Administrators, Inc. (2008) 163 Cal.App.4th 1093, 1102 (“the trial court did not abuse its discretion in concluding that LCL was being ‘evasive’ when it tendered discovery responses that submitted no meaningful information and claimed throughout that information will be ‘developed’ by ‘future discovery,’ especially where the case had been active for 16 months.”). Plaintiff “cannot plead ignorance to information which can be obtained from sources under h[er] control.” (Deyo, supra, 84 Cal.App.3d at 782; Code Civ. Proc. § 2030.220(a) (“Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits.”).) Plaintiff must provide non-evasive, substantive responses. (Regency Health Services, Inc. v. Superior Court (1998) 64 Cal.App.4th 1496, 1504 (“a party has a general duty to conduct a reasonable investigation to obtain responsive information . . . and must furnish information from all sources under his or her control.”).)

The motion is GRANTED as to Special Interrogatories Nos. 29 and 30.

Special Interrogatories Nos. 36-38

Special Interrogatory No. 36 requests the Plaintiff “IDENTIFY any and all learning disabilities with which YOU were diagnosed prior to November 2018.”

Special Interrogatory No. 37 requests that Plaintiff “IDENTIFY any and all mental health conditions with which YOU were diagnosed prior to November 2018.”

Special Interrogatory No. 38 requests that Plaintiff “IDENTIFY any and all medical conditions that effected your balance with which YOU were diagnosed prior to November 2018.”

Plaintiff responded to each of these interrogatories with objections and provided the following response “Plaintiff states – Plaintiff cannot recall any diagnosis. Discovery and investigation continue.” In opposition, Plaintiff did not justify any of the asserted objections. Plaintiff repeats the contention that the “response could not be any clearer. There is nothing to compel” and the citation to Holguin. (Opp. at 8:18-9:21.) Defendants’ counsel notes “[a] review of Plaintiff’s medical records reveals passing references to prior diagnoses of long-standing anxiety, generalized anxiety disorder, opioid use disorder, attention deficit hyperactivity disorder, and psychiatric treatment.” (Morovati Decl. ¶ 11.) Plaintiff’s responses are evasive and improper as an interrogatory response. Plaintiff “cannot plead ignorance to information which can be obtained from sources under h[er] control.” (Deyo, supra, 84 Cal.App.3d at 782; Code Civ. Proc. § 2030.220(a) (“Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits.”).) Plaintiff must provide non-evasive, substantive response. (Regency Health Services, supra, 64 Cal.App.4th at 1504.)

The motion is GRANTED as to Special Interrogatories Nos. 36-38.

Defendants Did Not Request Sanctions

Pursuant to Code of Civil Procedure section 2030.300(d), “[t]he court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

While Plaintiff sought sanctions in her unsuccessful opposition, Defendants declined to seek sanctions in their motion.