Judge Michelle Williams Court, Case 21STCV32018 2022-08-19 Tentative Ruling

Judge: Michelle Williams Court, Case: 21STCV32018, Date: 2022-08-19 Tentative Ruling

Case Number: 21STCV32018 Hearing Date: August 19, 2022 Dept: 74

21STCV32018 ANGELA WILSON vs SHLOMO RECHNITZ

(1) Defendants’ Motion to Compel Plaintiff’s Further Responses to Request for Production, Set One; Request for Sanctions in the amount of $2,040.00 against Plaintiff and Her Attorney of Record

(2) Defendants’ Motion to Compel Plaintiff’s Further Responses to Form Interrogatories, Set One; Request for Sanctions in the amount of $1,996.00 against Plaintiff and Her Attorney of Record

TENTATIVE RULINGS:

Defendants’ Motion to Compel Plaintiff’s Further Responses to Request for Production, Set One; Request for Sanctions in the amount of $2,040.00 against Plaintiff and Her Attorney of Record is MOOT as to Request No. 20 and DENIED as to Request Nos. 22 and 23.

Defendants’ Motion to Compel Plaintiff’s Further Responses to Form Interrogatories, Set One; Request for Sanctions in the amount of $1,996.00 against Plaintiff and Her Attorney of Record is taken OFF-CALENDAR at the request of the moving party.

The Court declines to impose sanctions.

Background

On August 30, 2021, Plaintiff Angela Shalome Streat Wilson, by and through her Guardian ad Litem, Megan Frilot filed this action against Defendants Shlomo Rechnitz, The Healthcare Center of Down, LLC, Rechnitz Lakewood GP, Rockport Administrative Services, and Steven Stroll. The complaint alleged two causes of action: (1) Dependent Adult Abuse and (2) Negligent Hiring and Supervision. The complaint alleges that the Defendants, through various entities, aided and abetted wrongful acts and omissions at the direction of Shlomo Rechnitz, resulting in Plaintiff, a dependent adult, eloping from the facility and being allowed to roam the streets for two months. Defendants allegedly failed to staff enough individuals, hired unqualified employees, and provided sub-standard care to the patients, including Plaintiff.

Motion to Compel Further Responses

Defendants move the Court to compel further responses to Request for Production of Documents, Set One Request Nos. 20, 22, and 23.

Defendants separately filed a motion to compel further responses to Form Interrogatories, Set One, Interrogatories Nos. 6.6, 12.2, 12.3 and 14.1.

Opposition

In opposition, Plaintiff notes she supplemented her responses to two of the discovery requests at issue, Request for Production No. 20 and Form Interrogatory No. 14.1, and argues her responses are otherwise code compliant.

Reply

In reply to the motion to compel further responses to the Requests for Production, Defendants acknowledge Plaintiff’s supplemental response, withdraw the motion as to Request No. 20, and reiterate their arguments in their initial moving papers.

On August 12, 2022, Defendants filed a Notice of Withdrawal of Defendants’ Motion to Compel Further Responses to Form Interrogatories, Set One.

Motion to Compel Further Responses to Interrogatories and Requests for Production

Standard

The propounding party may bring a motion to compel further responses to interrogatories and requests for production 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, the statement of compliance is incomplete, or if the objections raised are meritless or too general. (Code Civ. Proc. §§ 2030.300(a); 2031.310(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.)

As an additional requirement only as to requests for production, the motion must set forth specific facts showing good cause justifying the discovery sought. (Code Civ. Proc. § 2031.310(b)(1).) “[T]hat burden is met simply by a fact-specific showing of relevance.” (TBG Ins. Services Corp. v. Superior Court, 96 Cal. App. 4th 443, 447 (2002).) 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) 2031.310(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 February 11, 2022, Defendants served their Requests for Production, Set One and Form Interrogatories, Set One upon Plaintiff. (Nilssen Decl. Ex. A.) Plaintiff served unverified responses on March 15, 2022. (Id. Ex. B.) On April 27, 2022, Defendants sent a meet and confer letter noting Plaintiff had not served verifications and that Plaintiff’s responses to Request for Production of Documents, Set One Request Nos. 20, 22, and 23 as well as Form Interrogatories, Set One, Interrogatories Nos. 6.6, 12.2, 12.3 and 14.1 were insufficient. (Id. Ex. C.) Plaintiff provided verifications on April 28, 2022. (Nilssen Decls. ¶ 5.) Plaintiff did not provide supplemental responses and Defendant filed the instant motion.

Requests for Production, Set One

Defendants move the Court to compel further responses to Requests for Production, Set One, Nos. 20, 22, and 23.

Request No. 20 seeks “[a]ny and all notes, diaries, or journals concerning the incident giving rise to this lawsuit and/or the injuries and damages that you allegedly sustained from the alleged incident giving rise to this lawsuit, including but not limited to any entries on blogs, websites, Facebook, Instagram, Snapchat, Twitter and/or any other social media.”

Plaintiff responded “Objection, attorney-client privilege and attorney work product doctrine. After a diligent search and reasonable inquiry, there all documents within the care, custody or control of the responding party which were not expressly prepared for presentation to legal counsel in anticipation and furtherance of litigation are served concurrently herewith. To even provide a privilege log would require a waiver of same. However, in the spirit of discovery, if the Defendant is willing to execute a stipulation that requires the Defendant to place in the privilege log communications between the Defendant and their counsel the Plaintiff is happy to revisit this issue.”

Plaintiff’s response was not code compliant. In opposition, Plaintiff attaches verified a supplemental response to Request No. 20 dated May 4, 2022. (Opp. Ex. 1.) In reply, Defendants withdraw their motion as to this request. The motion is therefore MOOT as to Request No. 20.

Request No. 22 sought “Any and all writings (as defined by Evidence Code section 250) which evidence, refer, relate or pertain to your 1st cause of action for Dependent Abuse/Neglect as stated in the OPERATIVE COMPLAINT.” Request No. 23 similarly sought “Any and all writings (as defined by Evidence Code section 250) which evidence, refer, relate or pertain to your 2nd cause of action for Negligent Hiring and Supervision as stated in the OPERATIVE COMPLAINT.”

“A statement that the party to whom a demand for inspection, copying, testing, or sampling has been directed will comply with the particular demand shall state that the production, inspection, copying, testing, or sampling, and related activity demanded, will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.” (Code Civ. Proc. § 2031.220.)

Plaintiff responded to both Request No. 22 and Request No. 23 by stating: “After a diligent search and reasonable inquiry all documents within the care, custody or control of the responding party as of the date of this response are served concurrently herewith.” Plaintiff’s responses are code compliant and there is nothing further for the Court to compel. (Code Civ. Proc. § 2031.220.) Defendant cites Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 784, which involved answers to interrogatories and is therefore inapposite.

The motion is DENIED as to Request Nos. 22 and 23.

Form Interrogatories, Set One

Defendants initially moved the Court to compel further responses to Form Interrogatories Nos. 6.6, 12.2, 12.3, and 14.1.

In opposition, Plaintiff argued her responses to Form Interrogatories Nos. 6.6, 12.2, and 12.3 were sufficient and that she supplemented her response to Form Interrogatory No. 14.1

On August 12, 2022, Defendants’ filed a Notice of Withdrawal of Defendants’ Motion to Compel Further Responses to Form Interrogatories, Set One. Accordingly, Defendants’ motion is taken OFF-CALENDAR at the request of the moving party.

Sanctions

Pursuant to Code of Civil Procedure sections 2030.300(d) and 2031.310(h), the Court shall impose monetary sanctions against any party or attorney “who unsuccessfully makes or opposes a motion to compel further response . . . , 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.” Similarly Code of Civil Procedure section 2031.320(b) provides, “the 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 compliance with a demand, 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.”

The Court finds both parties acted with substantial justification as Plaintiff’s responses were adequate as to some of the discovery requests at issue, but inadequate as to others.