Judge Nathan Vu, Case 30-2021-01225093 2022-12-05 Tentative Ruling

Judge: Nathan Vu, Case: 30-2021-01225093, Date: 2022-12-05 Tentative Ruling

Please Note: The hearing on this matter is scheduled for 8:30 A.M.

Motion to Compel (Earthwise Property Services LLC)

Plaintiff Elizabeth Lockett’s motions to compel further responses to form interrogatories (set one), special interrogatories (set one), requests for production (set one), and requests for admission (set one) from Defendant Earthwise Property Services LLC are GRANTED.

Defendant Earthwise Property Services LLC is ORDERED to serve verified responses without objections to form interrogatories (set one), special interrogatories (set one), requests for production (set one), and requests for admission (set one) within 30 days of receiving notice of this ruling.

Defendant Earthwise Property Services LLC is ORDERED to produce all documents in its custody, possession, or control that are responsive to requests for production (set one), pursuant to Civil Procedure Code sections 2031.210 et seq., within 30 days of receiving notice of this ruling.

Defendant Earthwise Property Services LLC is ORDERED to serve, insofar as Defendant Earthwise Property Services LLC is asserting the attorney-client privilege or the attorney work product doctrine, a privilege log sufficient to determine if the requested discovery is protected by any privilege or protection, within 30 days of receiving notice of this ruling.

Defendant Earthwise Property Services LLC is ORDERED to pay sanctions of $2,040 (6 hours x $300 per hour + $240 filing fees) to Plaintiff Elizabeth Lockett no later than 30 days after receiving notice of this ruling.

Plaintiff Elizabeth Lockett moves to compel further responses to form interrogatories (set one), special interrogatories (set one), requests for production (set one), and requests for admission (set one) propounded on Defendant Earthwise Property Services LLC.

Verifications

It is well settled that unverified discovery responses are the equivalent of no response at all. (See Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.) Plaintiff has established and Defendant Earthwise does not dispute that it did not verify its responses to Plaintiff’s discovery requests. Despite claiming that it is in the process of preparing verifications, Defendant Earthwise still has not submitted verifications. Defendant Earthwise requests 60 additional days to submit verifications. This is excessive in light of the fact that Defendant Earthwise has known for more than 3 months of this deficiency.

Form Interrogatories

A party may move for an order compelling further responses to interrogatories on the grounds that: (1) an answer to a particular interrogatory is evasive or incomplete; (2) an exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate; or (3) an objection to an interrogatory is without merit or too general. (Code Civ. Proc., § 2030.300, subd. (a).)

Form Interrogatory 12.1 requests the name, address, and telephone number of each individual who witnessed the incident, made any statements at the scene of the incident, heard any statements about the incident by any individual at the scene, and anyone who claims to have knowledge of the incident.

Defendant Earthwise objected on numerous bases, including that the interrogatory is vague, ambiguous, overbroad, assumes facts lacks foundation, calls for an expert opinion, seeks irrelevant information, invades Defendant Earthwise’s right to privacy, and calls for privileged information. Subject to these objections, Defendant Earthwise responded: Anthony Molinar and Plaintiff.

If a timely motion to compel has been filed, the burden is on the responding party to justify any objection or failure fully to answer the interrogatories or other discovery. (Coy v. Superior Court (1962) 58 Cal.2d 210, 220-21; Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.)

With respect to this particular interrogatory, Defendant Earthwise has not made any attempt to justify its objections. The objections are therefore overruled and Defendant Earthwise must provide a response without objections. Insofar as Defendant Earthwise intends to assert the attorney-client privilege or the attorney work product doctrine, Defendant Earthwise should provide a privilege log with information sufficient to determine if the requested discovery is protected by any privilege or protection. (See Code Civ. Proc., § 2031.240.)

Form Interrogatory 12.2 seeks information relating to whether Defendant Earthwise or any of its agents interviewed any person concerning the incident. Defendant Earthwise asserted the same objections as it asserted to Form Interrogatory 12.1 and, without waiving those objections, stated “No.” Defendant Earthwise has not justified its objections and they are overruled.

Defendant Earthwise should provide a response without objections. Insofar as Defendant Earthwise intends to assert the attorney-client privilege or the attorney work product doctrine, Defendant Earthwise should provide a privilege log sufficient to determine if the requested discovery is protected by any privilege or protection.

Defendant Earthwise made similar or identical objections to Form Interrogatories 12.3, 12.4, 12.5, 12.6, and 12.7, but did not justify its objections. The court’s rulings with respect to these form interrogatories are the same as for Form Interrogatories 12.1 and 12.2.

Form Interrogatory 13.1 seeks information on any surveillance conducted on any individual involved in the incident. Defendant Earthwise asserted the same objections it did in response to the other interrogatories, but has not justified its objections. The objections are therefore overruled.

Defendant Earthwise should provide a response without objections. At this point, it is not clear whether there is any sub rosa evidence. If there is, and Defendant Earthwise intends to assert the attorney-client privilege or the attorney work product doctrine, Defendant Earthwise is ordered to provide a privilege log sufficient to determine if the requested discovery is protected by any privilege or protection.

Defendant Earthwise made similar or identical objections to Form Interrogatory 13.2, but did not justify its objections. The court’s rulings with respect to this form interrogatory are the same as for Form Interrogatory 13.1.

Special Interrogatories

Plaintiff seeks further responses to Special Interrogatories 1-3, 5, 6, 10, 11, 29, 42-50, 55-56, and 58. Defendant Earthwise responded to each of these interrogatories with a host of objections and little or no substantive responses.

For example, Special Interrogatory 1 asks Defendant Earthwise to identify each person it claims is any way responsible to contribute to the damages for which Defendant Earthwise may be held liable for this incident in the event a judgment is entered against Defendant Earthwise. Defendant Earthwise responded with only objections. Defendant Earthwise has not justified these objections and they are overruled.

Defendant Earthwise should provide a response without objections. Insofar as Defendant Earthwise intends to assert the attorney-client privilege or the attorney work product doctrine, Defendant Earthwise is ordered to provide a privilege log sufficient to determine if the requested discovery is protected by any privilege or protection.

Defendant Earthwise made similar or identical objections to Special Interrogatories 1-3, 5, 6, 10, 11, 29, 42-50, 55-56, and 58. The court’s rulings with respect to these special interrogatories are the same as for Special Interrogatory 1.

Requests for Admission

A party may move for an order compelling further responses to requests for admissions on the grounds that: (1) an answer to a particular request is evasive or incomplete or (2) an objection to a particular request is without merit or too general. (Code Civ. Proc., § 2033.290, subd. (a).)

Plaintiff seeks to compel further responses to Requests for Admission (RFA) 2 and 24-28, on the basis that the original responses are defective.

For example, RFA 2 asks Defendant Earthwise to admit it does not have any statements made by any party concerning how the underlying incident occurred. Defendant Earthwise asserted numerous objections. It does not attempt to justify these objections and they are overruled.

RFA 24 asks Defendant Earthwise to admit it did not take disciplinary action against Defendant Molinar as a result of the incident. Defendant Earthwise interposes numerous objections but the only objection it attempts to justify is that the term “disciplinary action” is vague and the RFA seeks irrelevant information and the premature disclosure of expert opinion.

Courts generally do not sustain “vague and ambiguous” objections unless the question is unintelligible. This RFA is not unintelligible and, thus, the answering party owes a duty to respond in good faith as best he or she can. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783.)

The information sought by this RFA is relevant, especially given the broad nature of discovery and the fact that Defendant Earthwise does not identify any sort of protectible privacy interest. (See, e.g., Bridgestone/Firestone, Inc. v. Superior Court (1992) 7 Cal.App.4th 1384, 1392.) Finally, it is unclear how this RFA seeks expert opinion and Defendant Earthwise does not sufficiently explain.

RFA 26 asks Defendant Earthwise to admit that it did not conduct any type of safety committee meeting after the incident. Defendant Earthwise objected on the same bases as the other RFAs and for the same reasons, those objections are overruled.

Plaintiff also requests that the RFAs be deemed admitted because the responses are unverified. However, the Court may only deem admitted an RFA if a party fails to serve a timely response. (Code Civ. Proc., § 2033.280.) Defendant Earthwise served timely responses. Although the responses may be defective, that is not cause to deem them admitted. (Code Civ. Proc. § 2033.290.)

Defendant Earthwise should serve responses without objections. Insofar as Defendant Earthwise intends to assert the attorney-client privilege or the attorney work product doctrine, Defendant Earthwise is ordered to provide a privilege log sufficient to determine if the requested discovery is protected by any privilege or protection.

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. (Code Civ. Proc., § 2031.310, subd. (a).)

Plaintiff seeks to compel further responses to Requests for Production (RFP) 9-15, 16-18, 20, 31, 34-39, 53, 54, and 62.

Defendant Earthwise asserts the same objections in response to the RFPs as it did in response to the other discovery requests. For the reasons discussed previously, these objections are overruled except as to the attorney-client privilege and the work product doctrine.

Defendant Earthwise should provide responses without objections and produce responsive documents. Insofar as Defendant Earthwise intends to assert the attorney-client privilege or the attorney work product doctrine, Defendant Earthwise is ordered to provide a privilege log sufficient to determine if the requested discovery is protected by any privilege or protection.

Sanctions

The Civil Procedure Code requires the court to impose 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.” (Code Civ. Proc., §§ 2030.300, subd. (d), 2031.310, subd. (h), & 2033.290 subd. (d).)

Defendant Earthwise failed to verify its responses and its objections are without merit. Defendant Earthwise has not acted with substantial justification or shown that other circumstances make the imposition of sanctions unjust. Thus, the court must award sanctions to Plaintiff against Defendant Earthwise.

Plaintiff also seeks sanctions against Defendant’s counsel. Sanctions against counsel generally “require a finding the ‘attorney advis[ed] that [sanctionable] conduct.’” (Ghanooni v. Super Shuttle (1993) 20 Cal.App.4th 256, 261.) Here, there is insufficient evidence of improper conduct on the part of counsel.

Motion to Compel (Defendant Anthony Molinar)

Defendant Andrew Molinar is ORDERED to serve verified responses without objections to form interrogatories (set one), special interrogatories (set one), requests for production (set one), and requests for admission (set one) within 30 days of receiving notice of this ruling.

Defendant Andrew Molinar is ORDERED to produce all documents in his custody, possession, or control that are responsive to requests for production (set one), pursuant to Civil Procedure Code sections 2031.210 et seq., within 30 days of receiving notice of this ruling.

Defendant Andrew Molinar is ORDERED to serve, insofar as Defendant Andrew Molinar asserts the attorney-client privilege or the attorney work product doctrine, a privilege log sufficient to determine if the requested discovery is protected by any privilege or protection, within 30 days of receiving notice of this ruling.

Defendant Andrew Molinar is ORDERED to pay sanctions of $2,040 (6 hours x $300 per hour + $240 filing fees) to Plaintiff Elizabeth Lockett no later than 30 days after receiving notice of this ruling.

Defendant Molinar’s discovery responses were not verified. Further, Defendant Molinar did not oppose the motions to compel on the merits or otherwise attempt to justify his objections to each of the discovery requests. For the reasons discussed above, those objections are overruled.

Defendant Molinar should provide responses without objections and produce responsive documents. Insofar as Defendant Molinar intends to assert the attorney-client privilege or the attorney work product doctrine, Defendant Molinar is ordered to provide a privilege log sufficient to determine if the requested discovery is protected by any privilege or protection.

Defendant Molinar’s counsel also indicates that they have lost contact with their client and have hired private investigators to locate their client. The court understands that this places counsel into a difficult position, but it is not a basis upon which to deny the motion to compel or grant more time. If counsel continue to be unable to contact their client, they may move to be relieved as counsel,

Sanctions

Defendant Molinar failed to verify his responses and his objections are without merit. Defendant Molinar has not acted with substantial justification or shown that other circumstances make the imposition of sanctions unjust. Thus, the court must award sanctions to Plaintiff against Defendant Molinar.

Plaintiff also seeks sanctions against Defendant’s counsel. Sanctions against counsel generally “require a finding the ‘attorney advis[ed] that [sanctionable] conduct.’” (Ghanooni v. Super Shuttle, supra, 20 Cal.App.4th at p. 261.) Here, there is insufficient evidence of improper conduct on the part of counsel, particularly as counsel have not been able to contact Defendant Molinar.

Plaintiff shall give notice of this ruling.