Judge: Nathan Vu, Case: 2021-01226778, Date: 2022-10-03 Tentative Ruling

Motions to Compel

Plaintiff Adriana Alonso’s motion to compel further responses to special interrogatories (set one) is GRANTED as to special interrogatories numbers 1, 13, and 14, and is DENIED as to the remainder of the special interrogatories at issue.

Plaintiff Adriana Alonso’s motion to compel further responses to requests for the production of documents (set one) is GRANTED as to request numbers 1, 2, 7, and 21, and is DENIED as to the remainder of the requests for production at issue.

Plaintiff Adriana Alonso’s motion to compel further responses to requests for admission (set one) is DENIED as to request for admission numbers 1, 2, and 7.

Defendant Imperial Spa Fullerton, LLC is ORDERED to serve by personal service or overnight mail, no later than 10/13/2022, further responses to Plaintiff Adriana Alonso’s special interrogatories (set one), special interrogatories numbers 1, 13, and 14, and requests for the production of documents (set one), request numbers 1, 2, 7, and 21. These responses shall be compliant with the Civil Procedure Code and verified.

Defendant Imperial Spa Fullerton, LLC is ORDERED to serve by personal service or overnight mail, no later than 11/02/2022, all documents that are responsive to request for the production of documents (set one), request numbers 1, 2, 7, and 21, and that are not privileged or otherwise protected from discovery, and are not related to expert witnesses. Defendant shall provide a privilege log for all responsive documents that are withheld.

Plaintiff Adriana Alonso moves to compel further responses from Defendant Imperial Spa Fullerton, LLC, to special interrogatories (set one), requests for the production of documents (set one), and requests for admission (set one).

Meet and Confer

A motion to compel must be accompanied by a meet and confer declaration “showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Civil Proc. Code, §§ 2016.040, 2030.310, subd. (b), 2031.310, subd. (b)(2) & 2033.290. subd. (b)(1).)

The meet and confer requirement is designed “to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order . . . . This, in turn, will lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes.” (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1016, quoting Townsend v. Superior Ct. (1998) 61 Cal.App.4th 1431, 1435, internal quotations and citations omitted.) Thus, there must be a serious effort at negotiation and informal resolution. (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294.)

“[T]he law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.” (Id.) The particular level of effort required in each case depends on the circumstances including the amount of discovery propounded, the time available to confer before the motion filing deadline, and the extent to which a party was complicit in the lapse of available time. (Obregon v. Superior Ct. (1998) 67 Cal.App.4th 424, 432.) “An evaluation of whether, from the perspective of a reasonable person in the position of the discovering party, additional effort appeared likely to bear fruit, should also be considered. Although some effort is required in all instances, the level of effort that is reasonable is different in different circumstances, and may vary with the prospects for success.” (Id. at pp. 432–33.)

On 06/22/2022, Defendant responded to Plaintiff’s initial meet and confer effort. (Jonoobi Decl. ¶ 6, Exh. 4.) Plaintiff waited 3 ½ weeks to respond and then demanded amended responses 2 days later or an extension of time to file a motion to compel. (Id., Exh. 6.) Defendant refused to provide either amended responses to an extension of time. (Id., Exh. 7.)

Here, neither party met and conferred in good faith. However, the court will exercise its discretion and proceed to the merits of the motions to compel in light of the fact that both parties are responsible for the failure to meet and confer and trial is set to commence shortly in this matter.

Special Interrogatories

A party may move to compel further responses to interrogatories on the grounds that the answer is evasive or incomplete, an exercise of the option to produce documents under Civil Procedure Code section 2030.230 is unwarranted or the required specification of those documents is inadequate, or an objection to an interrogatory is without merit or too general. (Civil Proc. Code, § 2030.300, subd. (a).)

If a timely motion to compel has been filed, the burden is on the responding party to justify any objection. (See Wiliams vs. Superior Ct. (2017) 3 Cal.5th 531, 541; Fairmont Ins. Co. v. Superior Ct. (2000) 22 Cal.4th 245, 255.)

In addition, “[p]arties must state the truth, the whole truth, and nothing but the truth in answering written interrogatories.” (Scheiding v. Dinwiddie Const. Co. (1999) 69 Cal.App.4th 64, 76; see Civil Proc. Code, § 2023.010, subd. (f) [evasive response is ground to compel further responses and grant sanctions].) Where the question is specific and explicit, it is improper to respond with an answer that supplies only a portion of the information sought or to provide “deftly worded conclusionary answers designed to evade a series of explicit questions.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783.)

Here, Defendant fails to justify the objections asserted in response to special interrogatory numbers 1, 13, and 14, and Defendant’s substantive responses thereto are evasive.

Defendant does justify its objection to special interrogatory numbers 36, 37, 38, 43, and 47. These interrogatories surpass the statutory limit of interrogatories and there is no evidence that Plaintiff served a declaration of necessity to allow for these additional interrogatories. (See Civil Proc. Code, § 2030.050; see Hakkak Decl., Exhs. A & G; Jonoobi Decl., Exhs. 1 & 6.)

Requests for Production of Documents

A party may move for an order compelling further responses to requests for the production of documents on the grounds that: (1) a statement of compliance with the request is incomplete; (2) a representation of inability to comply is inadequate, incomplete, or evasive; or (3) an objection in the response is without merit or too general. (Civil Proc. Code, § 2031.310, subd. (a).)

In this case, Defendant provided only objections and no statement of compliance with respect to request numbers 1, 2, 7, and 21. Defendant fails to justify its objections to these requests, and does not explain its refusal to comply, at least in part, with the requests or provide a statement of inability to comply.

To the extent the requests call for documents that are protected by the attorney-client privilege, attorney work-product doctrine, or the right to privacy, Defendant may withhold such documents and provide a privilege log. (See Civil Proc. Code, § 2031.240.) The same is true for documents that relate to expert witnesses. (See Civil Proc. Code, §§ 2034.210-2034.310.) Request numbers 1, 2, 7, and 21 are sufficiently specific and Defendant fails to justify its refusal to produce responsive documents that are not protected from discovery and not related to expert witnesses. (fn.1)

The court agrees with Defendant that request number 22 is overbroad and compliance is not possible without undue burden.

With respect to the remainder of the requests, Defendant responded that “after a diligent search and reasonable inquiry Responding Party does not have nonprivileged responsive documents to this request in its custody and control as no such documents exist.” (See Hakkak Decl., Exh. A [responses to requests numbers 3-6, 19-20, 23-24, 26-27, & 31].) These responses comply with Defendant’s obligations under the Civil Procedure Code. (See Civil Proc. Code, §§ 2031.210, subd. (a)(2), & 2031.230.)

If Plaintiff believes these responses to be untrue, Plaintiff may conduct informal discovery or propound further formal discovery (such as the deposition of Defendant’s person(s) most qualified or custodian of records, or further requests for the production of documents). It is not appropriate to file a motion to compel further responses where a party has already responded that it has conducted a diligent search and reasonable inquiry and determined that no such documents exist.

Requests for Admissions

A party may move for an order compelling further responses to requests for admission if that party deems that either or both of the following apply: (1) an answer to a particular request is evasive or incomplete and/or (2) an objection to a particular request is without merit or too general. (Civil Proc. Code, § 2033.290, subd. (a).)

With respect to request for admission numbers 1, 2, and 7, Defendant responded by stating that it “has a made a reasonable inquiry to obtain sufficient information to respond to the request, but the information known or readily obtainable is insufficient to enable this responding Party to admit to the matter.” (Hakkak Decl., Exh. A at pp. 1-3.)

These responses comply with Defendant’s obligations under the Civil Procedure Code. (See Civil Proc. Code, § 2033.220, subd. (b)(3) & (c).) If Plaintiff believes these responses to be untrue, Plaintiff may prove the truth of the matter and request that Defendant pay the reasonable expenses incurred in making that proof, including reasonable attorney’s fees. (Civil Proc. Code, § 2033.420, subd. (a).)

Sanctions

The Civil Procedure Code requires the court to impose a monetary sanctions against a party, person, or attorney who unsuccessfully makes or opposes a motion to compel further responses, “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.” (Civil Proc. Code, §§ 2030.300, subd. (d), 2031.310, subd. (h), & 2033.290 subd. (d).)

Here, both parties failed to meet and confer in good faith, and both parties were unsuccessful in part and successful in part with respect to the merits of the motions to compel. Therefore, the court will deny Plaintiff’s request for sanctions.

Defendant shall give notice of this ruling.

(fn.1) Plaintiff failed to include request for the production of documents number 1 in her separate statement of items in dispute. However, in lieu of a separate statement, the court may allow the moving party to submit “ a concise outline of the discovery request and each response in dispute.” (See Civil Proc. Code, § 2031.310, subd. (b)(3).) Here, Plaintiff has provided the needed information in her memorandum of points and authorities and in her counsel’s declaration, which includes Defendant’s responses. (See Hakkak Decl. Exh. A.) Further, request number 1 is similar to request number 2 and the responses are nearly identical.

Plaintiff’s separate statement of items in dispute also fails to correctly identify request number 7 and the response thereto. However, Plaintiff’s counsel’s declaration attaches Defendant’s responses, which also includes the correct request number 7 and the response thereto. (See Hakkak Decl. Exh. A.) The court is thus able to rule on Plaintiff’s motion.

Plaintiff is informed, however, that the court may not be so lenient in the future.