TENTATIVE RULING

Calendar: 2

Date: 3/3/2023

Case No: 20 STCV36297 Trial Date:   Sept. 18, 2023 

Case Name: Tate v. Langford, et al.  

MOTIONS TO COMPEL FURTHER RESPONSES TO DISCOVERY

(2 Motions)

Moving Party: Plaintiff Gregory Tate  

Responding Party: Defendant Brookfield Properties Retail Inc. (No Opposition)

 

RELIEF REQUESTED:

Further Responses to Special Interrogatories, Set Four 

Further Responses to Request for Production of Documents, Set Four 

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Gregory Tate alleges that he was injured when he was hired by defendants Clint Langford and Langford Installations as an independent contractor to finish a construction project involving placing decals on temporary barricades which had been erected around a construction site at premises in the Glendale Galleria mall, pursuant to which defendant Dunkin’ Brands, Inc. was constructing a restaurant within the premises cafeteria. It is alleged that defendant Brookfield Properties Retail Inc. owned, possessed, controlled, maintained and/or managed the Glendale Galleria mall, including the mall cafeteria. 

Plaintiff alleges that at the time Langford hired plaintiff to complete the job, the Langford defendants had discovered that the flooring at the premises was unsafe, and that placing a ladder on the flooring was unsafe, as the ladder would slip, but Langford did not indicate that the premises was unsafe in any way, but informed plaintiff that plaintiff could use his own ladder to perform the project.  Plaintiff alleges that he placed the ladder up against the Dunkin’s temporary barricade and climbed to the top to finish affixing the decal, and when he applied pressure to the decal, his ladder lost its grip, causing Tate to fall nearly 20 feet on to the tile flooring below, and suffer severe injury. 

The operative complaint, the First Amended Complaint, alleges causes of action for premises liability, negligence, and negligent hiring, supervision or retention of employee.  

The file shows that on January 6, 2023, the court heard several discovery motions in this matter, including motions to compel verification of responses to Special Interrogatories, Set Four, and of responses to Request for Production, Set Four.  The motions were granted and monetary sanctions were awarded against defendant Brookfield Properties Retail, Inc. in the sum of $465 for each of the two motions.  

ANALYSIS:

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 “Discovery 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.”

Interrogatories

CCP § 2030.300(a) provides that if the party propounding interrogatories deems that an objection “is without merit or too general” or that “an answer to a particular interrogatory is evasive or incomplete…the propounding party may move for an order compelling a further response...”

If a timely motion to compel has been filed, the burden is on the responding party to justify any objection or failure to fully respond to discovery.  Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221.  The granting or denial of a motion to compel is in the discretion of the trial court.  Coy, at 221-222.   A court should generally consider the following factors:

The relationship of the information sought to the issues framed in the pleadings;

The likelihood that disclosure will be of practical benefit to the party seeking discovery;

The burden or expense likely to be encountered by the responding party in furnishing the information sought.

Columbia Broadcast System, Inc. v. Superior Court (1968) 263 Cal.App.2d 12, 19.

There has been no timely opposition filed to this motion to compel further responses to special interrogatories.   Plaintiff has confirmed with the courtroom assistant that no timely opposition papers have been served.  The motion is granted on the ground defendant has failed to timely oppose the motion, so has failed to meet its burden to justify any objections or failure to fully respond. 

As an initial matter, the moving papers indicate that defendant Brookfield Properties has still not served verifications of its responses to the subject interrogatories.  Although defendant represented in opposition to the previous motion compelling verification of the responses that it had served verifications before the hearing, the verification attached to the opposition was to the third set of special interrogatories, not the fourth set of interrogatories, which is at issue here.   Plaintiff indicates in the moving papers that verification to this fourth set of special interrogatories has not been served since the previous hearing date.  [Forouzan Decl., para. 11]. The court requires that further responses to this set of interrogatories be verified. 

In addition, a review of the separate statement shows that the special interrogatories at issue involve a direct question, “Do YOU contend that YOU sold or otherwise provided tiles of any kind to any of the defendants in this matter as part of the SUBJECT CONSTRUCTION?”  (Interrogatory No. 104).  Several interrogatories following this interrogatory ask that if defendant is making this contention, that defendant state all facts, and identify all witnesses, related to that contention, and state the manufacturer, make, model, and/or serial number of the tile, where defendant obtained the tile, .   (Interrogatories Nos. 105-109).   

The responses state:

“Objection. At this time, this party’s investigation with regard to the subject of this interrogatory is incomplete and continuing. 

Responding Party states as follows: After a reasonable and good faith effort to obtain the information sought by this interrogatory, Responding Party does not have personal knowledge sufficient to respond to this interrogatory at this time. Investigation and Discovery are ongoing, and Responding Party reserves its right to amend this response.” 

These interrogatories clearly call for discoverable information relating to plaintiff’s allegations in this matter that defendant is responsible for the tile which caused or contributed to the condition of the premises which resulted in plaintiff’s alleged fall and injuries.  

Defendant has failed to justify its objection or failure to fully respond.  The objection that investigation is continuing is not valid and is overruled.  

It is questionable that responding party does not have personal knowledge sufficient to respond to the interrogatory at this time.  Defendant should surely have personal knowledge concerning whether it is contending it provided tile, and the details concerning any tile it personally provided. Plaintiff indicates that deposition testimony from the contractor on the project indicates that the contractor reached out to defendant Brookfield to provide replacement mall tile so that the mall floor would be continuous, and that the tile used is a specific tile used in the mall, only ordered by the mall and supplied by the mall to the contractor.  [See Ex. E, Dornan Depo., pp.  79, 80, 83]. 

A response that investigation and discovery are ongoing and responding party reserves the right to amend the response is also not valid. 

Specifically, under CCP § 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.

(b) If an interrogatory cannot be answered completely, it shall be answered to the extent possible.”

Under CCP § 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.

(b) If an interrogatory cannot be answered completely, it shall be answered to the extent possible.

(c) If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.”

If defendant intends to stand by its position that it does not have personal knowledge of fact concerning the provision of tile, it must make reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, which in this case would clearly include the contractor which is claiming the mall provided certain tile. 

Plaintiff under the Code is entitled to be provided the facts defendant can now provide after a reasonable and good faith effort to obtain the information by inquiry to others.  Further complete responses which fully comply with the Code will be ordered to be served.   

However, it appears from the separate statement that Interrogatory No. 109 is duplicative of Interrogatory No. 107. 

Interrogatory No. 107 asks:

“If YOU contend that YOU sold or otherwise provided tiles of any kind to any of the defendants in this matter as part of the SUBJECT CONSTRUCTION, state the manufacturer, make, model, and/or serial number of the tile.”

Interrogatory No. 109 asks:

“If YOU contend that YOU sold or otherwise provided tiles of any kind to any of the defendants in this matter as part of the SUBJECT CONSTRUCTION, specify that tile’s make, model, and/or serial number.”

While there is some difference in word order between the two interrogatories, and No. 107 requests identification of the “manufacturer” in addition to the other details, the information sought in Interrogatory No. 109 appears to be a subset of what is already sought in No. 107.  The court is inclined to deny the motion as to Interrogatory No. 109 as duplicative of Interrogatory No. 107.  The court will hear argument by plaintiff, if any, concerning why this should not properly be the order of the court.  

Interrogatory No. 110 requests:

“Describe the exact location of each of the VIDEO CAMERAS which existed at the Glendale Galleria Mall within 200 feet of the INCIDENT LOCATION on the date of the INCIDENT.”

The response is:

“Objection, this request is not reasonably calculated to lead to the discovery of admissible evidence. This request calls for the disclosure of confidential and proprietary information, further, as phrased this request seeks the disclosure of information that, if made public could potentially lead to a safety risk for the patrons of the Glendale Galleria Mall. Responsive information, should it exist, will be provided subject to a protective order.”

This interrogatory clearly calls for discoverable information with respect to this matter, shifting the burden to defendant to justify any objections or failure to fully respond. Plaintiff argues that the parties entered into, or plaintiff offered, to enter into a protective order as of August of 2022, and defendant has nevertheless failed to supplement its response to this interrogatory. 

The objection that the interrogatory does not seek discoverable information is invalid and is overruled.  The objection related to the absence of a protective order is not justified in light of plaintiff executing a protective order, and the response agreeing to provide responsive information once a protective order is in place.  The objections are not justified here, and a further response is ordered to be served without objections. 

To the extent the response states that information will be provided “should it exist,” this is not an appropriate response to an interrogatory, and, as argued by plaintiff, plaintiff is entitled to a response which fully complies with CCP section 2030.220 and is straightforward with respect to whether the information exists, whether it will be provided, and whether defendant has sufficient knowledge to provide a substantive response.  A further response which fully complies with the Code is ordered to be served.   

Document Requests

CCP § 2031.310 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.

Again, as an initial matter, the moving papers indicate that defendant Brookfield Properties has still not served verifications of its responses to the subject requests for production of documents.  Although defendant represented in opposition to the previous motion compelling verification of the responses that it had served verifications before the hearing, the verification attached to the opposition was to the third set of requests for production, not the fourth set of requests for production of documents, which is at issue here.   Plaintiff indicates in the moving papers that verification to this fourth set of requests for production of documents has not been served since the previous hearing date.  [Forouzan Decl., para. 11]. The court requires that further responses to this set of requests for production of documents be verified. 

Requests Nos. 78, 79, 80, 81, 82, 83 and 84 

The requests seek documents sufficient to determine the manufacturer and retailer of the tile that existed at the incident location at the time of the incident, to determine the make, model and/or serial number and specifications of the subject tile, documents related to any tile defendant sold or otherwise provided to any other defendant in this matter as part of the subject project, documents related to the contention that defendant sold or provided tile, and documents sufficient to indicate where defendant obtained the tile provided as part of the construction. 

The responses are:

“After a diligent search and a reasonable inquiry, responding party is unable to locate responsive documentation.  Discovery is ongoing, responding party reserves the right to supplement its response to this demand.”  

Plaintiff argues that he has filed a premises liability cause of action against defendant Brookfield, the owner of the Glendale Galleria, alleging that the flooring of the mall is unsafe and caused plaintiff to sustain injuries while working on the construction project at the mall, so that information about the flooring is directly relevant and material to plaintiff’s liability investigation, and that deposition discovery has confirmed that responding defendant provided tile for the project.  [Ex. E, Dornan Depo., pp. 83, 85-87].   

This showing is sufficient to show good cause for compelling production of responsive documents.  There is no opposition here, and defendant has failed to justify the failure to fully respond.  It appears unlikely that defendant does not in fact have access to responsive documents.  

Moreover, the responses are not Code-compliant.  

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 compliance, CCP section 2031.220 requires:

“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.”

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 reasonably 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.”

Defendant is ordered to serve further responses to the subject discovery which fully comply with these sections. 

As discussed above, it is not appropriate to respond that discovery is ongoing and that responding party reserves the right to supplement a response.  Plaintiff is entitled to a response based on inquiry occurring in response to the document request, and to the statutorily required details explaining the status of existing documents.  Further responses will not include any qualifiers but will be fully code compliant.  If defendant intends to stand by its position that there are no documents in its possession, custody or control, in addition to the information required under the Code, the court requires that defendant explain in detail the efforts and inquiries made, and to whom, to obtain the subject documentation.  

Request No. 85

This request seeks:

“DOCUMENTS sufficient to show the exact location of each of the VIDEO CAMERAS which existed at the Glendale Galleria within 200 feet of the INCIDENT LOCATION on the date of the INCIDENT.” 

The response is:

“Objection, this request is not reasonably calculated to lead to the discovery of admissible evidence. This request calls for the disclosure of confidential and proprietary information, further, as phrased this request seeks the disclosure of information that, if made public could potentially lead to a safety risk for the patrons of the Glendale Galleria Mall. Responsive documentation, should it exist, will be provided subject to a protective order

Defendant has failed to oppose the motion, so has failed to justify any objections.  In addition, the moving papers establish that the request seeks discoverable material.  Defendant has also failed to meet any burden to establish that the material is confidential or proprietary, and, in any case, plaintiff has long ago offered to enter into a protective order to limit disclosure of any information which would implicate the safety of mall patrons.  The objections are overruled. 

Defendant is ordered to serve a Code-compliant response, without objection, which traces the requirements of CCP section 2031.220 for a statement of compliance. 

Sanctions 

CCP § 2030.300 (d) provides that the court “shall impose a monetary sanction...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.”   A similar provision applies to motions to compel further responses to document demands.  CCP § 2031.310 (h).  

 

  Under CCP § 2023.010, misuse of the discovery process includes “(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.”

The burden is on the party subject to sanctions to show substantial justification or injustice.  Mattco Forge, Inc. v. Arthur Young & Co. (1990, 2nd Dist.) 223 Cal.App.3d 1429, 1436. 

Here, the responses served included objections which responding party has failed to justify, and evasive responses, and responding party has clearly made these motions necessary.  There are no oppositions here, so the responding party has failed to meet its burden of showing substantial justification or injustice.  Sanctions are awarded.  The sanctions sought are $1,865.00 for the interrogatories motion, and $865.00 for the motion concerning document requests. The time spent to attend the hearing on the motions is sought only once in connection with the interrogatories motion.  The sanctions are reasonable in amount and there is no challenge by defendant.  The sanctions are awarded as requested.   

RULING:

[No Opposition]

Plaintiff’s UNOPPOSED Motion to Compel Further Responses to Special Interrogatories (Set Four):

Motion is DENIED as to Special Interrogatory No. 109, as the same information is sought in Special Interrogatory No. 107. 

Motion is otherwise GRANTED.

Defendant Brookfield Properties Retail, Inc. is ordered to serve further verified responses to Plaintiff’s Special Interrogatories to Defendant Brookfield Properties Retail Inc., Set Four, Interrogatories Nos.  104, 105, 106, 107, 108, and 110, without objection.  The further responses must provide all information requested.  All further responses are to fully comply with the requirements under the Discovery Act, including, under CCP § 2030.210 (a)(1) answers “containing the information sought to be discovered.”  The responding party must also comply fully with CCP § 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.

(b) If an interrogatory cannot be answered completely, it shall be answered to the extent possible.

(c) If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.”

The Court does not find acceptable a response to discovery which states that investigation and discovery is incomplete or ongoing, or that responding reserves its right to amend the response.  Further responses are to be without objection, as defendant has failed to oppose this motion and justify objections, and the Court has reviewed the objections and find they are without merit.   

Monetary sanctions requested by moving party: Utilizing a lodestar approach, and in view of the totality of the circumstances, the Court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motion is $1,865.00 (4.5 hours @ $400/hour) [4.5 hours requested] plus filing fees of $65 [Amount Requested $1,865], which sum is to be awarded in favor of plaintiff Gregory Tate, and against defendant Brookfield Properties Retail Inc., and defendant’s counsel of record, jointly and severally, payable within 30 days. CCP §§ 2030.300(c), 2023.010 (e) and (f), and 2023.030(a).

Plaintiff’s UNOPPOSED Motion to Compel Further Responses to Request for Production (Set Four) is GRANTED. 

Defendant Brookfield Properties Retail, Inc. is ordered to serve further verified responses to Plaintiff’s Requests for Production of Documents to Defendant Brookfield Properties Retail, Inc., Set Four, Requests Nos. 78, 79, 80, 81, 82, 83 and 84, and to permit inspection and copying of all responsive documents within ten days.   The further responses must fully comply with CCP §§  2031.210, 2031.220 and 2031.230, including for each request either 1) a statement that 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 defendant 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.  Further responses are to be without objection, as defendant has made no objections to the subject interrogatories, so all objections have been waived. 

Defendant is further ordered to serve a further verified response to Request No. 85, and to permit inspection and copying of all responsive documents within ten days.   The further response must fully comply with CCP §2021.220, and consist of a statement that 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 defendant and to which no objection is being make will be included in the production.  Defendant has failed to justify objections, and the Court finds the objections asserted to be without merit.  Objections are accordingly OVERRULED, and the further response is to be without objection.  

The Court does not find acceptable a response to discovery which states that investigation and discovery is incomplete or ongoing, or that responding reserves its right to amend the response.    

Monetary sanctions requested by moving party: Utilizing a lodestar approach, and in view of the totality of the circumstances, the Court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motion is $865.00 (2.0 hours @ $400/hour) [2 hours requested] plus filing fees of $65 [Amount Requested $865], which sum is to be awarded in favor of plaintiff Gregory Tate, and against defendant Brookfield Properties Retail Inc., and defendant’s counsel of record, jointly and severally, payable within 30 days.  CCP §§ 2031.310 (h), 2023.010 (e) and (f), and 2023.030(a).

GIVEN THE CORONAVIRUS CRISIS, AND TO ADHERE TO HEALTH GUIDANCE THAT DICTATES SAFETY MEASURES, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES

Please make arrangement in advance if you wish to appear via LACourtConnect/Microsoft Teams by visiting www.lacourt.org to schedule a remote appearance.  Please note that LACourtConnect/Microsoft Teams offers free audio and video appearance. Counsel and parties (including self-represented litigants) are encouraged not to personally appear.  With respect to the wearing of face masks, Department D recognizes that currently, the Los Angeles Department of Public Health strongly recommends masks indoors, especially when interacting with individuals whose vaccination status is unknown; for individuals who have a health condition that puts them at higher risk for severe illness; individuals who live with someone who is at higher risk; and for individuals who are around children who are not yet eligible for vaccines.  In accordance with this guidance, it is strongly recommended that anyone personally appearing in Department D wear a face mask.  The Department D Judge and court staff will continue to wear face masks.  If no appearance is set up through LACourtConnect/Microsoft Teams, or otherwise, then the Court will assume the parties are submitting on the tentative.