Judge Ralph C. Hofer, Case Number: 20STCV22372, Date: 2025-01-10 Tentative Ruling

Judge: Ralph C. Hofer, Case: 20STCV22372, Date: 2025-01-10 Tentative Ruling

Case Number: 20STCV22372 Hearing Date: January 10, 2025 Dept: D

TENTATIVE RULING

Calendar: 4

Date: 1/10/2025

Case No: 20 STCV22372 Trial Date: May 19, 2025

Case Name: Calvert, et al. v. Beckman Coulter, Inc., et al.

MOTIONS TO COMPEL FURTHER RESPONSES

TO DISCOVERY (2)

Moving Party: Plaintiffs Colby Calvert and Emmeline Calvert

Responding Party: Defendant Beckman Coulter, Inc. (Documents)

Defendant Hung Luong (Requests for Admissions)

RELIEF REQUESTED:

Further responses to certain identified requests in Request to Produce to Beckman Coulter, Inc. (Second Set) and Request to Produce to Beckman Coulter, Inc. (Third Set)

Further Responses to certain identified Requests for Admissions to Hung Luong, Set Two

FACTUAL BACKGROUND:

Plaintiff Colby Calvert alleges that he was injured when defendant Hung Luong, working for defendant Beckman Coulter, Inc. (Beckman Coulter), serviced a piece of laboratory equipment at a laboratory located at the California Institute of Technology (Cal Tech) and while so doing negligently allowed the equipment’s laser to shine through an open door into a highly-trafficked hallway, where it struck plaintiff in the eye, rendering permanent ocular damage. Plaintiff alleges that plaintiff was working at the Cal Tech laboratories as a research technician, and was at the time walking within a hallway of Elowitz Laboratory where Luong was aligning the lasers of a CytoFlex Flow Cytometer inside a room within the Elowitz Laboratory, when defendant allowed the Cytometer’s laser array to shine into the hallway by leaving the door open to the room housing the Cytometer. Plaintiff alleges that the Cytometer was owned and controlled by defendant Howard Hughes Medical Institute (HHMI), which had an actual employer-employee relationship with defendant Michael B. Elowitz, and that the Elowitz Laboratory was used, at least in part, to perform research commissioned by HHMI.

The operative complaint, the Second Amended Complaint, alleges causes of action for negligence, negligent hiring/training/supervision of defendant Luong, strict product liability, vicarious liability, and loss of consortium. The loss of consortium claim is brought by plaintiff Emmeline Calvert, the spouse of plaintiff Colby Calvert.

The file shows that on November 30, 2023, plaintiff filed a Request for Dismissal of the action with prejudice as to defendants Michael B. Elowitz and HHMI only.

ANALYSIS:

Plaintiffs bring these two motions to compel further responses to discovery.

Under CCP § 2017.010, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action..., if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” The Section specifically provides that “[d]iscovery may relate to the claim or defense of the party seeking discovery or of any other party to the action,” and that discovery “may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition and location of any document, electronically stored information, tangible thing, or land or other property.”

Document Demands

Plaintiffs seek relief under CCP § 2031.310, which provides that a party demanding a document inspection may move for an order compelling further responses to the demand if the demanding party deems that:

“(1) A statement of compliance with the demand is incomplete.

(2) A representation of inability to comply is inadequate, incomplete, or evasive.

(3) An objection in the response is without merit or too general.”

Under CCP § 2031.310 (b)(1), “The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand.”

The burden is on the moving party to show both relevance to the subject matter and specific facts justifying discovery. Glenfed Develop. Corp. v. Superior Court (1997, 2nd Dist.) 53 Cal.App.4th 1113, 1117. Once good cause is established by the moving party, the burden then shifts to the responding party to justify any objections made to document disclosure. See Hartbrodt v. Burke (1996, 2nd Dist.) 42 Cal.App.4th 168, 172-174.

The motion indicates in the notice of motion that it concerns identified requests in Request to Produce to Beckman Coulter, Inc. (Second Set) and Request to Produce to Beckman Coulter, Inc. (Third Set).

The separate statement submitted with the motion addresses only the Request for Production of Documents, Set No. 3, with no reference to Set No. 2, and specifically addresses Requests Nos. 61, 62, 63, 64, 70 and 71.

Defendant Beckman Coulter in the opposition indicates that since the filing of the present motion, Beckman Coulter has supplemented its written discovery responses with respect to Requests Nos. 61, 62, and 63. [Campodonico Decl., para. 10, Ex. E]. The supplemental responses are attached to the opposition as Exhibit E, were served on December 27, 2024, but are not verified. The responses are accompanied by a sheet stating, “Verification to Follow.” [Ex. E, p. 11]. This showing is insufficient to render the motion moot as to the subject requests. CCP § 2031.250 provides, in pertinent part:

“(a) The party to whom the demand for inspection, copying, testing, or sampling is directed shall sign the response under oath unless the response contains only objections.

(b) If that party is a public or private corporation or a partnership of association or governmental agency, one of its officers or agents shall sign the response under oath on behalf of that party.”

While the opposition explains that Beckman Coulter has been delaying in providing verifications to avoid the pressure of deadlines which arise concerning compelling further responses, this is a questionable practice, and is no excuse for failing to verify supplemental responses defendant is relying on to render a discovery motion moot. The motion is considered as to Requests Nos. 61, 62, 63, as well as Requests Nos. 64 and 70.

Defendant Beckman Coulter in opposition also indicates that as to Request No. 71, the request is not in dispute, as Beckman Coulter has always represented it will make the subject tools, or exemplars of them, available for inspection at its attorney’s office at a mutually convenient time. Accordingly, the motion is granted, at the concession of defendant in the opposition, and a further verified response to this request is ordered to be served, without objection, which includes a fully code compliant statement of compliance, and the items are ordered to be made available for inspection on a date certain within the next ten days.

Requests Nos. 61, 62, and 63:

Request No. 61 requests, “Any DOCUMENT IDENTIFYING any PERSONS with any knowledge RELATING TO Colby Calvert.”

Request No. 62 requests, “Any DOCUMENT IDENTIFYING any PERSONS with any knowledge RELATING TO the lawsuit that is the subject of this action.”

Request No. 63 requests, “Any DOCUMENT RELATING TO any interview conducted by YOU of any PERSON RELATING TO any aspect of the lawsuit that is the subject of this action.”

The motion notes that during meet and confer efforts, the parties agreed that these requests only encompass third parties, in effect, do not require identification of individuals within Beckman Coulter, only documents in Beckman Coulter’s possession relating to third parties.

The responses are some version of objections such as vague, overbroad, unlimited in time so oppressive and burdensome, the documents are not described with reasonable particularity, and that the requests invade the attorney client privilege, and work product. The responses are then:

“Subject to and without waiving the foregoing general and specific objections, Responding Party responds that it is conducting a diligent search and reasonable inquiry pertaining to the existence of any responsive, non-privileged documents and that discovery is continuing.”

As pointed out in the motion, this is not a code compliant response, as responding party is required to conduct a search and inquiry prior to responding to the request, and it is not acceptable to respond that “discovery is continuing.”

If the representations are intended to be statements that defendant does not have such documents, the response does not comply with the Code. Under CCP section 2031.210, a response shall either be a statement of compliance, a representation that the party lacks the ability to comply, or an objection.

With respect to a statement of inability to comply, CCP section 2031.230 requires:

“A representation of inability to comply with the particular demand for inspection shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.”

The responses here do not affirm that a diligent search and reasonable inquiry has been made, but indicates defendant is in the process of such inquiry, and does not include the required information.

To the extent defendant intends to submit a statement of compliance, such a statement must comply with CCP § 2031.220:

“A statement that a party to whom an inspection demand has been directed will comply with the particular demand shall state that the production, inspection, 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 make will be included in the production.”

The motion also indicates that defendant has been representing that it has no responsive documents, but in response to a request that a verified code compliant response to this effect be served, has failed to do so.

If defendant is truly in a position where it has no responsive documents, defendant must serve proper statements of inability to comply, discussed above.

The opposition argues that given the narrowed scope of the requests, defendant has amended its responses to comply with the narrowly defined requests, affirmatively stating defendant has no responsive documents. As discussed above, defendant accordingly is ordered to serve proper verified code-compliant statements of inability to comply.

The opposition does not attempt to justify any of the objections other than attorney client and work product privileges. To the extent defendant intends to continue to withhold responsive documents based on those privileges, defendant will be required to serve a privilege log.

It is generally the burden of the party seeking to withhold documents based on the attorney-client or work product privilege to establish the facts establishing the privilege. See D.I Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 729; See Wellpoint Health Networks, Inc. v. Superior Court (1997 2nd Dist) 59 Cal.App.4th 110, 123.

CCP §2031.240 (b) requires that any documents withheld on the basis of privilege be identified with particularity and with a statement of the specific ground for the objection.

Subdivision (c)(1) provides:

“(c)(1) If an objection is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.”

Under Wellpoint Health Networks, Inc v. Superior Court (1997, 2nd Dist.) 59 Cal.App.4th 110, 130, the information provided must be sufficiently specific to allow a determination whether the document is, in fact, privileged (interpreting former section 2031).

It is held:

“In general, … a privilege log typically should provide the identity and capacity of all individuals who authored, sent, or received each allegedly privileged document, the document's date, a brief description of the document and its contents or subject matter sufficient to determine whether the privilege applies, and the precise privilege or protection asserted.”

Catalina Island Yacht Club v Superior Court (2015) 242 Cal.App.4th 1116, 1130, citations omitted.

The court orders defendant to serve a further response which fully complies with the code and includes all required information. With respect to the attorney-client and work product privileges only, the court will consider ordering further responses without objections other than those objections, which are to be fully supported by an appropriate objection and a privilege log directed to the specific document request, and which further response, as to all other responsive documents, otherwise complies with the Code.

There is no attempt in the opposition to justify any of the other objections to the subject requests, which the court has reviewed and finds without merit, so any further responses are to be verified and without objections other than attorney-client or work product.

Request No. 64

Request No. 64 requests, “Any and all DOCUMENTS RELATING TO any LASER EXPOSURE in the ten (10) years prior to the INCIDENT.

“[LASER EXPOSURE was defined within the RFPD Set No. 3 as: [A]ny exposure or contact, however minimal, between any PERSON’s eyes or face, and direct or indirect, reflected, specular, refracted, diffracted, diffuse or other form of laser radiation from any laser or mirror system housed within any Beckman Coulter cytometer product, regardless of whether it caused any injury, complaints or symptoms, but inclusive of any reported injury, symptom, complaint, condition, pain, sensitivity or other reported side-effect, whether physical, mental or otherwise.”

The response is:

“Responding Party objects to this request on the grounds that it is vague, overbroad, and uncertain. Further, this request is the same as, or substantially similar to, a previously- propounded Request for Production of Document that Responding Party already answered which, pursuant to California Code of Civil Procedure section 2031.310(c), results in a waiver of any right to seek a further response to the demand. Subject to and without waiving the foregoing general and specific objections, Responding Party responds that it reserves all rights.”

Plaintiffs argue that the previous document request asked about “actual injuries” that had occurred in the ten years prior to the incident, and that when the response was that defendant had no documents related to injuries by its procedures, plaintiffs broadened their inquiry to include even “exposure” to lasers caused by defendant’s products.

The opposition sets forth the text of the previous request, which was directed to “injuries” and the current request is not to be objectionable as duplicative. The opposition indicates that defendant previously served a statement that it had no responsive documents in its custody, possession or control, but fails to establish that the response was verified.

The objection that the request is similar to previous requests appears to be encompassed in an argument that requiring duplicative efforts here would be burdensome and oppressive. However, the argument appears to concede that the request seeks a broader set of documents than previously requested, so it is not duplicative. In addition, there is no explanation of why responding to the request would be unduly burdensome. This situation does not appear to be an unusual case. The defendant does not argue here that there are seven rooms full of documents which defendant would be required to review. See, eg. Mead Reinsurance Co. v. Superior Court (1986) 188 Cal.App.3d 313, 318 (uncontradicted declarations showed over 13,000 claims would have to be reviewed, requiring 5 claims adjusters working full time for 6 weeks each); Civil Proc. Before Trial (Cal. Practice Guide, the Rutter Group, 2024 rev.) sec. 8:1475, 1475.1, 1475.4.

Here, there are no unusual circumstances asserted or other facts which justifies this objection. However, it is overruled. A further verified response is required to be served.

Request No. 70

The request seeks:

“Any and all COMMUNICATIONS between YOU and Defendant Michael B. Elowitz including with his attorneys RELATING TO this lawsuit in any way.

The response is the same series of objections above, an objection that the request is the same as a previous request which was already answered, and then, “Subject to and without waiving the foregoing general and specific objections, Responding Party responds that it reserves all rights.”

The moving papers explain that there has been no prior request, and counsel for defendant has conceded as much in meet and confer. The moving papers also indicate that the reason behind the request is that defendant Elowitz, who is no longer a defendant in this matter, intimated at deposition that he possessed communications from co-workers relating to plaintiff Colby Calvert, and Calvert’s supposed dismay with his job prior to the incident.

This showing is sufficient to establish good cause for production, shifting the burden to defendant to justify its objections.

The opposition argues that plaintiff previously asked for communications between defendant and defendant Elowitz, “relating to the CYTOMETER,” and has requested “ALL COMMUNICATIONS RELATED TO THE SUBJECT INCIDENT.” These contacts would not encompass communications which predated the subject incident concerning defendant Elowitz’s suspected dissatisfaction with his job.

Defendant also argues that plaintiffs improperly seek communications between legal counsel as it relates to their observations, impressions, conclusions, opinions and legal theories, and such communications are protected from disclosure by the joint defense and common interest doctrine.

It would appear that the request should be narrowed to encompass the communications that plaintiffs are seeking, those made by co-workers concerning plaintiff Colby Calvert related to any satisfaction or dissatisfaction with his employment. As so narrowed, i unduly burdensome for defendant to prepare a privilege log with respect to documents withheld, as discussed above.

Requests for Admissions

Plaintiffs seek further responses to Requests for Admissions, Set 2, to defendant Hung Luong. Again, the notice of motion does not identify the specific requests at issue, but seeks further responses to “those certain identified requests” in the discovery set.

The requests identified and discussed in the separate statement are Requests Nos. 34, 35, 36, 37, 38, 39, and 40.

Defendant Luong in opposition argues that responding party has served supplemental responses to two of the requests since the filing of the motion, on December 26, 2024, rendering the motion moot as to those requests. [Campadonico Decl., para. 5, Ex. C]. The supplemental responses are submitted with the opposition, are verified and were served on December 26, 2024, which renders the motion as to those responses, i.e., for Requests Nos. 34 and 35, moot. If plaintiffs require further responses to those two requests, plaintiffs must meet and confer concerning the supplemental responses, and, if necessary, file a new motion to compel, with an updated separate statement, including the supplemental responses.

Under CCP Section 2033.290:

“(a) On receipt of a response to requests for admissions, the party requesting admissions may move for an order compelling a further response if that party deems that either or both of the following apply:

(1) An answer to a particular request is evasive or incomplete.

(2) An objection to a particular request is without merit or too general.”

Under CCP § 2033.220(b):

“(b) Each answer shall:

(1) Admit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by the responding party.

(2) Deny so much of the matter involved in the request as is untrue.

(3) Specify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge.”

Because this language is so broad and permits the qualification of response by a responding party, it is held that it is not proper ground for objection that a request for admission is vague or “ambiguous,” unless it is so ambiguous that the responding party cannot in good faith make an intelligent reply. See Cembrook v. Superior Court (1961) 56 Cal.2d 423, 428-430.

Request No. 36

This request requests that responding party:

“ADMIT that if the hex driver you were holding as you serviced the CYTOMETER on the date of the SUBJECT INCIDENT crossed any of the laser beam paths, a beam could escape the CYTOMETER.”

The response is:

“Responding Party incorporates the General Statements and Objections and also objects to this Request on the grounds that it is vague, ambiguous, overly burdensome, and calls for speculation. Responding Party further objects on the ground that the undefined term “could escape the CYTOMETER” renders the Request speculative and uncertain. Subject to and without waiving said objections, Responding Party responds that he is unable to admit or deny the request at the present time. Responding Party does not believe the subject hex driver is reflective such that “a beam could escape the CYTOMETER” if the hex driver he was holding at times while he serviced the subject CytoFLEX S “crossed any of the laser beam paths.” Responding Party does not have knowledge because he does not recall an instance when he had a hex driver cross a laser beam path. Responding Party is in the process of making a reasonable inquiry from available sources and reserves the right to supplemental this Response.”

Plaintiffs argue that this response does not comply with the code, as it does not indicate that a reasonable investigation has been made of materials not falling within defendant’s personal knowledge, as required, which is particularly problematic because defendant Luong is still employed by Beckman Coulter, with access to resources to make a reasonable investigation prior to responding to this request. Again, the Code requires the reasonable inquiry to have been made prior to responding to the request, and a further code compliant response is ordered to be served.

Requests Nos. 37, 38, 39, and 40

These requests request that defendant Luong admit that he caused a laser beam within the Cytometer to escape the Cytometer on the day of the incident, that Luong caused Colby Calvert to be exposed to a Class B laser, that Luong injured Calver, and that Luong performed his work negligently on the date of the incident.

The responses are various objections, followed by the response, “Subject to and without waiving said objections, Responding Party responds as follows: Deny.”

Plaintiffs argue that it is improper to object to the requests and defendant has failed to justify those objections.

However, as noted above, under CCP section 2033.290, a motion to compel a further response may be brought only where a response is evasive or incomplete, or an objection is without merit or too general. Accordingly, it is held that where a response contains an unequivocal denial, there are no grounds to compel a further response, even if the facts involved are unquestionably true. Holguin v. Superior Court (1972) 22 Cal.App.3d 812, 820 (“A court cannot force a litigant to admit any particular fact if he is willing to risk a perjury prosecution or financial sanctions (by denying it).”).

This outcome is recognized even where such a denial is preceded by boilerplate that it is made, “without waiving” asserted objections. See American Federation of State, County and Municipal Employees v. Metropolitan Water Dist. of Southern California (2005) 126 Cal.App.4th 247, 268.

The motion as to these requests accordingly is denied, and responding party will be held to its denials as unequivocal in any further proceedings in this litigation.

Sanctions

Moving party seeks sanctions.

CCP § 2031.310 (h) provides that the court “shall impose a monetary sanction...against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to 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.” A similar provision applies to requests for admissions. CCP § 2033.290 (d).

Under CCP § 2023.010, misuse of the discovery process includes “(d) Failing to respond or to submit to an authorized method of discovery.”; “(e) Making, without substantial justification, an unmeritorious objection to discovery”; and “(f) Making an evasive response to discovery.” Where there has been a misuse of the discovery process, under Section 2023.030(a), the court “may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” Where there has been misuse of the discovery process, under Section 2023.030(a), the court “may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.”

While the court here might ordinarily consider awarding sanctions for the expense of having brought these motions, the motions are procedurally deficient, as they do not, in the notice of motion, specify against whom the sanctions are sought. The notices state, “Plaintiffs will also be seeking sanctions” in specified sums, pursuant to specified statutes.

CCP § 2023.040 clearly requires that

“A request for a sanction shall, in the notice of motion, identify every person, party and attorney against whom the sanction is sought and specify the type of sanction sought. “

(Emphasis added).

The requests for sanctions will be denied for failure to make the appropriate identification.

RULING:

Motion to Compel Responses and Documents is GRANTED.

Defendant Beckham Coulter, Inc. is ordered to serve further verified responses to Plaintiff Colby Calvert’s Request for Production of Documents, Set No. Three, Requests Nos. 61, 62, 63, 64, 70 and 71, and inspection is to be permitted of all responsive documents and things within ten days.

The responses must provide all information requested and must fully comply with CCP §§ 2031.210, 2031.220 and 2031.230, including for each request either 1) a statement that the responding party will comply with the particular demand, including a statement that the production, inspection, 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 responding party and to which no objection is being make will be included in the production, or 2) a statement of inability to comply, which statement shall specify whether any inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party, and which sets forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item, or, (3) for requests to which an objection is being asserted based on privilege (Nos. 61, 62, 63, and 70) including for attorney client privilege, or attorney work product, a response which fully complies with CCP section 2031.240 (b) and (c):

“(b) If the responding party objects to the demand for inspection, copying, testing, or sampling of an item or category of item, the response shall do both of the following:

(1) Identify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made.

(2) Set forth clearly the extent of, and the specific ground for, the objection. If an objection is based on a claim of privilege, the particular privilege invoked shall be stated. If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted.”

(c)

(1) If an objection is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.”

The Court finds a privilege log is necessary and must be included in any further response with objections on these grounds.

The privilege log must be sufficiently specific to allow a determination whether a withheld document is, in fact, privileged. See Wellpoint Health Networks, Inc v. Superior Court (1997, 2nd Dist.) 59 Cal.App.4th 110, 130. The privilege log must provide the identity and capacity of all individuals who authored, sent, or received each allegedly privileged document, the document's date, a brief description of the document and its contents or subject matter sufficient to determine whether the privilege applies, and the precise privilege or protection asserted. See Catalina Island Yacht Club v Superior Court (2015) 242 Cal.App.4th 1116, 1130.

Request No. 70 is modified to request only communications made by co-workers concerning plaintiff Colby Calvert related to any satisfaction or dissatisfaction with his employment.

The Court has reviewed all other objections, and finds that defendant has failed to justify them, and they are without merit, so that all other objections are overruled.

The Court does not find acceptable a response which states, “discovery is continuing.”

Monetary sanctions requested by moving party are DENIED. The moving papers fail to comply with CCP § 2023.040, as the notice of motion fails to identify every person, party and attorney against whom the sanction is sought.

Motion to Compel Further Responses (to Requests for Admissions to Hung Luong (Set 2)):

Motion as to Requests Nos. 34 and 35 is MOOT in light of the service of verified supplemental responses to those requests on December 26, 2024.

Motion as to Request No. 36 is GRANTED. Defendant Hung Luong is ordered to serve a further non-evasive response to the subject request, without objection, which the Court has considered and finds without merit, within ten days. The further response shall fully comply with CCP § 2033.220(b):

“(b) Each answer shall:

(1) Admit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by the responding party.

(2) Deny so much of the matter involved in the request as is untrue.

(3) Specify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge.”

The Court does not find acceptable a discovery response which states that responding party is in the process of making a reasonable inquiry or reserves the right to supplement the response.

Motion as to Requests Nos. Requests Nos. 37, 38, 39, and 40 is DENIED.

The responses to these requests, respond with objections, but state, “Subject to and without waiving said objections, Responding Party responds as follows: Deny.”

The Court construes the above responses as unequivocal denials, and, despite the objections finds no cause to require further responses. Under CCP section 2033.290, a motion to compel a further response may be brought only where a response is evasive or incomplete, or an objection is without merit or too general. Accordingly, it is held that where a response contains an unequivocal denial, there are no grounds to compel a further response, even if the facts involved are unquestionably true. Holguin v. Superior Court (1972) 22 Cal.App.3d 812, 820 (“A court cannot force a litigant to admit any particular fact if he is willing to risk a perjury prosecution or financial sanctions (by denying it).”). This result is recognized even where such a denial is preceded by boilerplate that it is made, “without waiving” asserted objections. See American Federation of State, County and Municipal Employees v. Metropolitan Water Dist. of Southern California (2005) 126 Cal.App.4th 247, 268. Accordingly, despite the existence of objections, where a denial is made “notwithstanding” objections, the Court will not require further responses. Defendant will be held to its denials as unequivocal in any further proceedings in this litigation.

DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE

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