Judge Ralph C. Hofer, Case 21STCV11395 2023-03-03 Tentative Ruling

Plaintiffs Neuro Diagnostic Center, Inc. and Shushanik Devine allege that they were in possession of premises in Glendale and that defendants A & D Fire Sprinklers, Inc. and National Community Renaissance of California, while conducting construction work installing a new fire sprinkler system and plumbing at property directly behind the subject premises, were negligent, causing a major water overflow from the property which caused flooding throughout plaintiffs’ entire premises, as a result of which plaintiffs sustained significant property damage and loss of earnings.

The complaint alleges that defendants were responsible for three major water flows and flooding, in December of 2018, February of 2019 and March of 2019. The form complaint alleges a cause of action for general negligence.

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.”

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:

Special Interrogatory No. 4 seeks, “State all facts in support of YOUR claim that the alleged water intrusion at YOUR PROPERTY was the result of any action or inaction by PROPOUNDING PARTY or is agents.”

The responses are a series of objections, including violation of privacy, calls for a narrative, calls for legal conclusion, calls for expert opinions from a layperson, premature disclosure of expert witnesses and opinions, vague, ambiguous, overbroad, burdensome, harassing, violation of protected privacy right, violation of attorney-client privilege and attorney work product.

Subject to the objections, the responses then basically recite the allegations from the complaint, and state, “Discovery is ongoing and Plaintiff reserves the right to supplement her response to this request upon new and admissible information.”

Defendant argues that plaintiff should be compelled to provide substantive answers without resort to any of the asserted objections, and responses that are as complete and straightforward as the information reasonably available to plaintiffs permits.

Plaintiffs in opposition argues that plaintiffs have described in length the facts supporting their claim, and have explained that the interrogatory responses will be supplemented upon new information through more discovery. Plaintiffs argue that they will be in a better position to further respond with more facts and indicate that they need to take all of defendants’ PMQ depositions, conduct a site inspection, and conduct written discovery. Plaintiffs argue that the requests call for legal conclusions, expert opinions, and plaintiffs do not know how else and with what other information they can respond. The oppositions also indicate that as to these interrogatories, plaintiff withdraws the objections that the interrogatories are vague, ambiguous and overbroad.

These interrogatories clearly call for discoverable information, as they call for facts supporting the allegations plaintiffs are pursuing against defendant in this lawsuit. The burden accordingly shifts to plaintiffs to justify any objections.

“An interrogatory may relate to whether another party is making a certain contention, or to the facts, witnesses, and writings on which a contention is based. An interrogatory is not objectionable because an answer to it involves an opinion or a contention that relates to fact or the application of law to fact, or would be based on information obtained or legal theories developed in anticipation of litigation or preparation for trial.”

Accordingly, the objections that the interrogatories call for a legal conclusion or expert opinions from a lay person, or premature discovery of expert opinions, are not validly asserted. All information responsive to these interrogatories, even facts plaintiffs anticipate will eventually be relied upon by an expert, must be provided at this point.

(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.”

While plaintiffs seem to argue that their responses are proper because plaintiffs offer to supplement the responses once more facts are discovered, this in fact makes the responses insufficient, as defendant is entitled to discover the facts of which plaintiffs are currently aware, and upon which they base their action and seek significant damages. Defendant under the Code is entitled to be provided the facts plaintiffs 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 are ordered to be served.

With respect to the objections based on attorney-client privilege or attorney work product and constitutional privacy, it is ordinarily the initial burden of the party seeking to withhold information from discovery to show that a privilege applies. See Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733 (“The party claiming the privilege has the burden of establishing the preliminary facts necessary to support its exercise, i.e., a communication made in the course of an attorney-client relationship,” citing D.I Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 729.

Where there is a privacy objection, the initial burden is on the party claiming the privilege to establish the basis for it, which has not been done here. See Williams v. Superior Court (2017) 3 Cal.5th 531, 556-557 (“The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious…. Courts must instead place the burden on the party asserting a privacy interest to establish its extent and the seriousness of the prospective invasion…”).

Plaintiffs have failed to establish a basis for these objections. Plaintiffs concede in the opposition that they have the burden to establish information is protected by the attorney-client privilege and argue that plaintiffs have an attorney-client relationship with their lawyer regarding this case, and whatever was discussed and how it was discussed is completely confidential. This argument is not made in connection with any particular discovery request or the facts necessary to be disclosed in response to the interrogatories. The type of evidentiary facts and identification of documents called for in the interrogatories do not become privileged because plaintiffs have discussed them with an attorney or an expert. See Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 119. Plaintiffs have failed to justify any withholding of information on this basis. All objections are overruled. Plaintiffs are ordered to serve further complete responses to these interrogatories without objections.

“Asked and answered by previous interrogatories served by Defendant National Community Renaissance of California. This request is duplicative, and Defendant has propounded an identical request that was asked and answered previously in order to harass, annoy and oppress Plaintiff. Irrelevant, Violation of financial privacy and taxpayer privilege. This discovery request seeks to discover Plaintiff s financial history and/or treatment which is completely unrelated to the issues in this litigation in violation of plaintiff’s constitutionally protected right to privacy under Article 1, section 1 of the California Constitution. Subject to and without waiving the objection, Plaintiff responds as follows in the spirit of cooperation:

Defendant argues that the responses with objections are deficient, and that all of the interrogatories relate to plaintiff’s claims in this matter, as well as defendant’s defenses. The interrogatory clearly seeks discoverable information with respect to the damages being claimed by plaintiffs. This showing again shifts the burden to plaintiffs to justify objections.

Plaintiffs in opposition indicate that plaintiffs withdraw the following objection: “Irrelevant.” This position is a concession that the information is discoverable. The oppositions set forth plaintiffs’ position on this interrogatory response, generally arguing that plaintiffs “rightfully objected to this request,” without addressing any of the other specific objections. As discussed above, the applicability of any financial privacy objection would have to be initially established by plaintiffs, and plaintiffs have failed to address the objection. Plaintiffs have failed to meet their burden to justify any of the objections made to this interrogatory, and defendant is entitled to a response without objections. The objections are overruled.

Specifically, in addition to the points set forth above, and as argued in the moving papers, the objection that the question has been asked and answered by previous interrogatories served by another defendant is not valid, as the moving defendant is entitled to a response to its own discovery. To the extent that the objection is that the request is duplicative of other requests propounded by this defendant, plaintiffs have failed to point to any previous discovery which would show that this interrogatory is duplicative, and defendant maintains that there is none.

Plaintiffs primarily argue that plaintiffs properly responded to this interrogatory by stating “None” as the response because plaintiffs have received zero sums as a result of the subject incident so far, be it through insurance proceeds or otherwise. However, plaintiffs’ assertion of numerous objections suggests that the response is not unequivocal but that plaintiffs may be withholding information which plaintiffs deem privileged, by, for example, alleged financial privacy. This position keeps defendant from having a verified response to the interrogatory to which plaintiffs would be bound in this proceeding in the event it is later discovered that plaintiffs did receive monies as a result of the alleged incident. A further verified response, without objections, is ordered to be served.

“If YOU contend YOU suffered a loss of income, please IDENTIFY all DOCUMENTS that support YOUR loss of income claim. (As used in these interrogatories, the term ‘IDENTIFY,’ as to a DOCUMENT means to state the author, recipient, date and general description of the DOCUMENT.)”

There is no question that this interrogatory seeks information directly relevant to plaintiffs’ loss of income claim in this action, which defendant argues is now in the range of $150,000.00. Again, in opposition to the motion, plaintiffs withdraw the objection that the interrogatory seeks “Irrelevant” material, conceding the discoverability of the information sought.

The response also improperly refers defendant to matters produced in response to production of documents. It has long been recognized that reference to documents otherwise provided is not a proper response to an interrogatory. See Coy v. Superior Court (1962) 58 Cal.2d 210, 217-219; see also Deyo v. Kilbourne (1978, 2nd Dist..) 84 Cal.App.3d 771, 783-784 (“it is not proper to answer [an interrogatory] by stating ‘See my deposition,’ ‘See my pleading,’ or ‘See the financial statement.’”).

“If the answer to an interrogatory would necessitate the preparation or the making of a compilation, abstract, audit, or summary of or from the documents of the party to whom the interrogatory is directed, and if the burden or expense of preparing or making it would be substantially the same for the party propounding the interrogatory as for the responding party, it is a sufficient answer to that interrogatory to refer to this section and to specify the writings from which the answer may be derived or ascertained. This specification shall be in sufficient detail to permit the propounding party to locate and to identify, as readily as the responding party can, the documents from which the answer may be ascertained. The responding party shall then afford to the propounding party a reasonable opportunity to examine, audit, or inspect these documents and to make copies, compilations, abstracts, or summaries of them.”

Plaintiffs in opposition actually concede that the response was inadequate by simply identifying an exhibit in which the requested documents could be found, and then provides a “supplement” to the response in the opposition memorandum, identifying certain financial statements by dates. This approach is not a proper method of providing further responses to interrogatories, as evidently no separate further response has been served, and this passage in each opposition is obviously not verified. The opposition also indicates that plaintiffs have also provided additional financial statements to defendant at a deposition. Again, as noted above, this is improper; each document responsive to this interrogatory must be identified directly in response to this interrogatory.

The oppositions in connection with this interrogatory indicate in a footnote that defendant has attached to the motions the entirety of plaintiffs’ bank account information, and plaintiffs indicate that they “request an emergency protective order to seal the records as it relates to Plaintiffs’ personal financial records for Defendant’s failure to follow proper exclusion or redaction of identifiers per CRC Rule 1.201 (a)(2).” [Opp., p. 11, n. 1].

To protect personal privacy and other legitimate interests, parties and their attorneys must not include, or must redact where inclusion is necessary, the following identifiers from all pleadings and other papers filed in the court's public file, whether filed in paper or electronic form, unless otherwise provided by law or ordered by the court:…

“The responsibility for excluding or redacting identifiers identified in (a) from all documents filed with the court rests solely with the parties and their attorneys. The court clerk will not review each pleading or other paper for compliance with this provision.”

With respect to interrogatories, 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.”

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.”

Here, the responses served included objections which plaintiffs have withdrawn or failed to justify, and evasive responses, including a response plaintiffs concede in their oppositions is incomplete. Plaintiffs’ conduct and positions in connection with this discovery made these motions necessary. The oppositions argue broadly that plaintiffs had substantial justification to object to the requests of defendant and oppose the motions and have only used the tools available to them to protect their rights.

This argument does not show substantial justification for the responses and objections, or injustice in shifting the reasonable expense of having had to make the motions to the parties who resisted serving appropriate discovery responses.

Sanctions are awarded to the moving party. The sanctions sought in the moving papers are $2,560 for each of the two motions. This sum does not appear unreasonable, the oppositions do not challenge in any manner the specific sum of sanctions sought, but the court is reducing the total attorney hours to prepare each motion from 7.5 hours to 5.0 hours resulting in total attorneys’ fees of $2,000.00 for each motion.

Further responses must provide all information requested in that interrogatory, and 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:

The Court has reviewed the objections asserted, and finds that plaintiff in the opposition has failed to justify them, and that they are without merit, and all objections are OVERRULED. Further response to Special Interrogatory No. 19 shall not refer the propounding party to documents included in other discovery but will identify each specific document which support’s plaintiff’s specific contention.

The Court does not find acceptable a response that discovery is continuing or that plaintiff will supplement its response, given the duty imposed by CCP section 2030.220 to make reasonable inquiry before responding to an interrogatory.

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 $2,000.00 (10.0 hours @ $200/hour) [12.5 hours requested ], plus filing fees in the sum of $60 [Amount Requested $2,560], which sum is to be awarded in favor of defendant A & D Fire Sprinklers, Inc. and against plaintiff Neuro Diagnostic Center, Inc., payable within 30 days. CCP §§ 2030.300(c), 2023.010 (e) and (f), and 2023.030(a).

The Court has reviewed the objections asserted and finds that plaintiff in the opposition has failed to justify them, and that they are without merit, and all objections are OVERRULED. Further response to Special Interrogatory No. 19 shall not refer the propounding party to documents included in other discovery but will identify each specific document which support’s plaintiff’s specific contention.

The Court does not find acceptable a response that discovery is continuing or that plaintiff will supplement her response, given the duty imposed by CCP section 2030.220 to make reasonable inquiry before responding to an interrogatory.

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 $2,000.00 (10.0 hours @ $200/hour) [12.5 hours requested], plus filing fees in the sum of $60 [Amount Requested $2,560], which sum is to be awarded in favor of defendant A & D Fire Sprinklers, Inc. and against plaintiff Shushanik Devine, payable within 30 days. CCP §§ 2030.300(c), 2023.010 (e) and (f), and 2023.030(a).

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