Judge: Ralph C. Hofer, Case: 24NNCV02087, Date: 2024-12-20 Tentative Ruling

Case Number: 24NNCV02087    Hearing Date: December 20, 2024    Dept: D

Meet and Confer?                                                                   Ok, Para. 4 Ex. C  

FACTUAL BACKGROUND:

Plaintiff Perla Mageno alleges that plaintiff is a visually impaired and legally blind person who requires screen-reading software to read website content using a computer, and that she has visited the website offered by defendant Lokal, Inc. ,www.lokalsandwichshop.com, and that during visits to defendant’s website, using plaintiff’s screen-reader, plaintiff encountered multiple accessibility barriers which denied plaintiff full and equal access to the facilities, goods and services offered to the public and made available to the public on defendant’s website.  The complaint alleges a cause of action for violation of the Unruh Civil Rights Act, Civil Code § 51, et seq.

ANALYSIS:

Interrogatories

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.”

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.

Form Interrogatory No. 15.1

The motion seeks further responses to Form Interrogatory No. 15.1, which requests that the responding party identify each material allegation and affirmative defense in its pleading and for each state the facts, witnesses, and documents supporting the allegation or defense. 

            The response is:

“Plaintiff had no genuine intent to patronize Defendant’s business. Plaintiff’s “tester” activities do not confer standing. Plaintiff had the ability to review the menu selection on Defendant’s website and to place an order on the date(s) of the incident. Plaintiff has therefore suffered no difficulty or discomfort. In addition, Plaintiff had no intention to return to the business and consequently, no standing to demand injunctive relief. Plaintiff has filed over 1,000 cases; committed to returning to each of the businesses she has sued to patronize and has failed to do so. She continues to file lawsuits knowing full well that she does not return to these businesses to patronize.”

            Plaintiff argues that defendant has filed an answer here generally and specifically denying every allegation of plaintiff’s complaint, and asserting twenty-nine affirmative defenses.  Plaintiff argues that the interrogatory requires defendant to state all facts upon which defendant bases its denial in its answer and affirmative defenses, and the response is evasive and fails to respond to all subsections, including those calling for identification of persons with knowledge of facts, and documents in support of denials and affirmative defenses. 

This interrogatory is a straightforward contention interrogatory.  As noted above, “discovery may relate to the claim or defense of the party seeking discovery or of any other party…”   CCP section. 2017.010.

CCP sec. 2030 .010(a) specifically permits the propounding of contention interrogatories:

“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 facts, or would be based on information obtained or legal theories developed in anticipation of litigation.”

This interrogatory is an approved Judicial Council form interrogatory.    

            The response is clearly incomplete, and does not respond to each subsection of the interrogatory.

The response is also not Code compliant.  CCP § 2030.210 provides, in pertinent part:

“(a) The party to whom interrogatories have been propounded shall respond in writing under oath separately to each interrogatory by any of the following:

(1) An answer containing the information sought to be discovered.

(2) An exercise of the party's option to produce writings.

(3) An objection to the particular interrogatory.”

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.”

            Defendant is ordered to fully comply with the Code.

            Defendant has failed to file timely written opposition to this motion, so has failed to meet its burden of justifying its failure to fully comply.  A further complete Code-compliant response which responds to each subsection with respect to each denial and affirmative defense will be ordered to be served.

Form Interrogatory No. 17.1

            Form Interrogatory 17.1 requests that for each request for admission which is not an unqualified admission, the responding party state the number of the request, the facts upon which the response is based, and the persons who have knowledge of those facts, and identify all documents and tangible things supporting the response, along with information concerning any person who has the document or thing.

            The response states:

“(a) 7, 8, 9, 10, 11, 12, 13, 14, 15, 17, 18, 19, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31

(b) Plaintiff had no genuine intent to patronize Defendant’s business. Plaintiff’s “tester” activities does not confer standing. Plaintiff’s disability is unrelated to the deviations from the ADA Standards, as alleged in the operative Complaint. Plaintiff has therefore suffered no difficulty or discomfort. Plaintiff has no intention to return and consequently, no standing to demand injunctive relief.

(c) Leni Kumalasari, who can be reached through this office.

(d) Objection: duplicative. See document production served concurrently.”

The RFAs at issue request that defendant admit matters such as that persons who are visually impaired were denied goods and services on the website, that the website is not as accessible to visually-impaired users as persons without such impairment, that there were barriers on the website, that the website does not comply with web content accessibility standards in various respects, and that certain methods were or were not used in testing the website.  

As plaintiff argues, the response does not state any facts related to the subject requests for admissions.  Plaintiff also argues that the response to subsection (d) is insufficient as no documents were identified or produced in response to requests for production.

It is not an acceptable response to discovery to direct the propounding party to other discovery responses.   A party is entitled in discovery to seek the same information through different discovery devices. See Coy v. Superior Court (1962) 58 Cal.2d 210, 218; see also Deyo v. Kilbourne (1978, 2^nd 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.’”).   

The interrogatory is straightforward, and a further response which responds with respect to each of the listed requests for admissions with facts, witnesses and documents pertinent to that request are ordered to be served.  Such responses must be fully Code-compliant, and may not refer to other discovery responses.  

Requests for Admissions

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.”

Specifically, section 2033.220, subdivision (c) provides:

“If a responding party gives lack of information or knowledge as a reason for a failure to admit all or part of a request for admission, that party shall state in the answer that a reasonable inquiry concerning the matter in the particular request has been made, and that the information readily known or readily obtainable is insufficient to enable that party to admit the matter.”

            The Requests here seek admissions such as that the website does not comply with certain aspects of the web content accessibility guidelines, that altering the website to comply would not result in undue burden, that the coding has been changed, and that the testing of the website was done in a certain fashion.

            The responses are some combination of objections that the request is overly broad, vague and ambiguous, calls for the testimony of an expert, or cannot be admitted or denied because it is incomprehensible.  

            Again, defendant has failed to file timely opposition, so has not met its burden to justify any of these objections, or failure to respond. 

            Because the statutory language concerning requests for admissions is so broad and permits the qualification of response by a responding party, it is held that it 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. 

            Such objections are not appropriate here, and it also does not appear to be appropriate to object that response to the requests are best reserved for an expert.  As argued by plaintiff, the requests do not require an expert to answer, and, in any case, it is held improper to deny a request where the information is known to the party’s expert witness.  Chodos v. Superior Court (1963, 2^nd Dist.) 215 Cal.App.2d 318, 323-324 (finding improper objections to requests for admissions that the parties had no “independent information” or called for “an opinion”), Bloxham v. Saldinger (2014) 228 Cal.App.4^th 729, 752 (“Since requests for admissions are not limited to matters within personal knowledge of the responding party, that party has a duty to make a reasonable investigation of the facts before answering items which do not fall within his personal knowledge,” quoting Chodos, at 322.).   

            Further responses to each of the subject requests for admissions is ordered to be served, without objections, and which admit or deny each request according to Code.

  Sanctions

            Moving party seeks 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.”  Similar provisions apply to motions for further responses to requests for admissions.  CCP § 2033.290 (d).

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 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, 2^nd Dist.) 223 Cal.App.3d 1429, 1436.

Under CRC Rule 3.1348(a):

“The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.”

In this case, defendant has made evasive responses to discovery, interposed objections defendant has failed to justify, and has made these motions necessary.

The court will award sanctions in favor of the moving party.  The sanctions sought are $1,000.00 for each of the two motions.  It appears that time is sought only for preparation of the motions; no time to attend the hearing or prepare replies is claimed.  The request appears reasonable and there is no opposition so no challenge to the sum of sanctions sought.  The sanctions are awarded in full as requested.

RULING:

[No Opposition]

Plaintiff’s UNOPPOSED Motion to Compel Defendant Lokal, Inc.’s Further Responses to Form Interrogatories Set Number One is GRANTED.

Defendant Lokal, Inc. is ordered to serve further verified responses to Form Interrogatory No. 15.1 and Form Interrogatory No. 17.1, which provide information as to each denial and affirmative defense, and each identified Request for Admission, and which separately respond to each subsection of those interrogatories. 

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 refers to other discovery responses.  The Court also notes that any further responses must be without objection, as objections have not been asserted and so have been waived.

Further responses to be served within ten days. 

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 $1,000

( 2 hours @ $500/hour) [2 hours requested] [Amount Requested $1,000.00], which sum is to be awarded in favor of plaintiff Perla Mageno, and against defendant Lokal, Inc. and defendant’s counsel of record, jointly and severally, payable within 30 days. CCP §§ 2030.300(d), 2023.010 (e) and (f), and 2023.030(a).

Plaintiff’s UNOPPOSED Motion to Compel Defendant Lokal, Inc.’s Further Responses to Requests for Admission, Set Number One is GRANTED.

Defendant Lokal, Inc. is ordered to serve further complete verified responses to Requests Nos. 13, 14, 15, 19, 20, 22, 23, 24, 25, 29, 30 and 31, which provide all information requested, and which fully comply with the Code as to the subject discovery.  The Court has considered the asserted objections and finds they are without merit, and that defendant has failed to justify them, and therefore overrules all objections, so that further responses are to be served without objections.

Further responses to be served within ten days.

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 $1,000

(2 hours @ $500/hour) [2 hours requested] [Amount Requested $1,000.00], which sum is to be awarded in favor of plaintiff Perla Mageno, and against defendant Lokal, Inc. and defendant’s counsel of record, jointly and severally, payable within 30 days. CCP §§ 2033.290(d), 2023.010 (e) and (f), and 2023.030(a).

DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE

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