TENTATIVE RULING

Calendar: 10

Date: 1/26/2024

Case No: BC 658710 Trial Date: June 10, 2024 

Case Name: Lawson-Apana v. Ford Motor Company, et al. 

MOTIONS TO COMPEL FURTHER RESPONSES TO DISCOVERY (2 Motions)

Moving Party: Defendant NGP Motors, Inc. dba Sunrise Ford of North Hollywood  

Responding Party: Plaintiff Toni Lawson-Apana 

RELIEF REQUESTED:

Further Responses to Special Interrogatories, Set One 

Further Responses to Request for Production of Documents, Set One 

FACTUAL BACKGROUND

Plaintiff Toni Lawson-Apana alleges that she leased a vehicle from defendant Sunrise Ford, which vehicle was manufactured by defendant Ford Motor Company, and which was equipped with a Power Liftgate System, an electrical opening and closing system.  Plaintiff alleges that contrary to defendants’ representations regarding the subject vehicle’s safety and reliability, in April of 2015, while plaintiff was unloading water bottles from the rear of the subject vehicle, suddenly and without warning the Liftgate failed and came crashing down on plaintiff’s head.  Plaintiff alleges that the force of the metal hitting plaintiff’s head was so severe that her teeth smashed together, her jaw locked, and she suffered traumatic brain injury and other serious injuries.

Plaintiff’s spouse, plaintiff Keith Apana, alleges a cause of action for loss of consortium. 

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.

Special Interrogatories Nos. 1-6

The responses are objections that the interrogatories are vague and ambiguous, overly broad, compound, unduly burdensome and oppressive, seek information equally available to the propounding party, and also object on attorney-client and work product privilege grounds, and state that each interrogatory “impermissibly calls for legal conclusions, the application of law to fact and/or expert testimony.”  

Plaintiff argues that plaintiffs are not experts regarding the complexities surrounding auto manufacturing and indicates that plaintiffs expected that when they opened the power liftgate of their vehicle that it would remain in the open position.   It is not clear why plaintiff could not have responded to the interrogatories with this information.   Plaintiff also argues that defendant NGP has been in possession of a draft report from plaintiff’s liability expert, in addition to numerous verified responses to discovery and documents provided to defendant Ford during this litigation, and that both plaintiffs have been twice deposed in this matter. 

This response appears to be an argument that defendant already has the information, which is not an appropriate response to discovery.  Plaintiff makes no showing that the questions have been asked and answered as to this or any other defendant and has failed to justify any of the enumerated objections.   

It has long been recognized that 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. 

The California Supreme Court in Coy noted:

“As was pointed out in Singer v. Superior Court, 54 Cal.2d 318, 324 [5 Cal.Rptr. 697, 353 P.2d 305], "no rule or authority is cited which authorizes refusal to answer an interrogatory simply on the ground that the answer is known to the party seeking the information." In Greyhound Corp. v. Superior Court, supra, 56 Cal.2d 355, 373, it was pointed out that litigants have been given the statutory right to resort to both depositions and interrogatories for the purpose of pretrial discovery.”

Coy, at 218. 

Plaintiff argues that defendant has conceded that plaintiff will have to rely on expert testimony to prove any defect, which seems to be an argument that the objection that the interrogatories call for expert testimony.  

The interrogatories are straightforward, and, as noted above, under CCP section 2017.010, “discovery may relate to the claim or defense of the party seeking discovery or of any other party…” 

  

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.” 

Here, while the parties appear to agree that plaintiff will rely on experts to prove any theories concerning product defect, this position does not dispose of plaintiff’s obligation to answer interrogatories concerning her contentions in this matter.  Plaintiff has failed to justify any of the asserted objections.  The motion is granted, and plaintiff is ordered to serve further complete responses to the subject interrogatories, without objections. 

Special Interrogatory No. 18

Plaintiff in opposition argues that defendant is not requesting posts or information pertaining to a specific social media platform, but requesting account access information for all websites plaintiff has ever interacted with.  This position seems to be an argument of overbreadth, but plaintiff does not explain why there would be some burden on plaintiff to answer such a question.   

Plaintiff also argues that defendant has failed to justify why social media information is relevant, arguing that defendant has sat dormant in this case for six years and now requests irrelevant information to purportedly evaluate the case.   Plaintiff argues that defendant’s own discovery responses indicate that defendant has not conducted any surveillance of plaintiff, and if defendant needed insight into plaintiff’s social life, it should have done so, or requested information by now.  

This argument appears to concede that information concerning plaintiff’s social life is relevant in this matter and does not justify any objection made by plaintiff.  As argued in the reply, there is no authority cited pursuant to which a party must request discovery within a particular timeframe which has not been met here.  

With respect to privacy, generally, in evaluating a discovery order involving information protected by this privacy right, the trial court should apply the framework set forth in Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, for evaluating invasion of privacy claims. 

First, a claimant must possess a “legally protected privacy interest.” Hill, at 35.  Second, the claimant must have a reasonable expectation of privacy under the particular circumstances, including the customs, practices, and physical settings surrounding particular activities.  Hill, at 36-37.  Third, the invasion of privacy must be serious in nature, scope, and actual or potential impact.  Trivial invasions do not create a cause of action.  Hill, at 37.  If there is a reasonable expectation of privacy and the invasion of privacy is serious, then the court must balance the privacy interest at stake against other competing or countervailing interests.  Hill, at 37-40. 

Defendant relies on Williams v. Superior Court (2017) 3 Cal. 5th 531, in which the California Supreme Court reiterated that the Hill analysis is to be applied in determining the scope of discovery of private information, and that the burden to establish a privacy interest remains initially with the party asserting such an interest: 

 “The state Constitution expressly grants Californians a right of privacy. (Cal. Const., art. I, § 1.) Protection of informational privacy is the provision's central concern. (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35, 26 Cal.Rptr.2d 834, 865 P.2d 633.) In Hill, we established a framework for evaluating potential invasions of privacy. 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. (Id. at pp. 35–37, 26 Cal.Rptr.2d 834, 865 P.2d 633.) The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations. (Id. at pp. 37–40, 26 Cal.Rptr.2d 834, 865 P.2d 633.).”

Williams, at 552. 

Special Interrogatory No. 21

“Please list in detail each injury and itemize, by dollar amount, each and every item of damage for which You seek compensation in this lawsuit, including, but not limited to, physical injuries, medical expenses, physical pain, mental anguish, inconvenience, future medical expenses, loss of earnings and lessening of future earning capacity, humiliation and embarrassment and any other item of damages.”

“Plaintiffs will rely on experts, including vehicle engineers, economists, physicians, and/or life care planner’s opinions to calculate the damages arising out of Plaintiffs’ claim as set forth in the Complaint. To the extent this request calls for notes, memoranda, and/or information prepared by the potential testifying expert(s), Responding Party objects to the request as premature and expressly reserves the right to supplement this response in accordance with the time period for exchanging expert reports set by the Court.”

“(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.”

Plaintiff argues that if defendant is requesting plaintiff’s medical bills to be tallied up into a number, defendant has the ability to make such a calculation itself based on the documents produced by plaintiff so far in the matter, and plaintiff has indicated in its mandatory settlement conference statement that the medical treatment costs to date are “in excess of $50,000.”   Again, plaintiff appears to be improperly referring the propounding party to other materials, rather than answering the interrogatory. 

As discussed above, this approach is improper, as information may be sought through various discovery methods, and it is improper to answer an interrogatory by reference to other materials.  See 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.’”).  This rule is due, in part, to the fact that depositions and interrogatories serve different purposes and provide different levels of binding a party to particular matters.   Coy, supra, at 219.  Here, a mandatory settlement conference statement is not binding, and, in any case, the response to the discovery at issue provided does not reference such a statement or make any attempt to reasonably quantify the damages, or to respond to the discovery by referring plaintiff to specifically identified documentation. 

  Under CCP § 2030.230: 

“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.”

Special Interrogatory No. 22

This explanation does not explain what level or burdensomeness would be required here, which would be plaintiff’s burden to establish.  West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 417-418; (“objection based upon burden must be sustained by evidence showing the quantum of work required”).  Plaintiff cannot reasonably object to having to provide information for the eight years since the incident, as plaintiff is seeking damages for that entire period. 

 

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.

Requests Nos. 3 and 4

Plaintiff also argues that the court should consider the amount of time which has elapsed from defendant’s request to the date of its records requested, arguing that the time is significant, and that this case has been pending since 2017, but defendant waited until 2023 to request records from 2010.   As discussed above, plaintiff has not made any legal argument that defendant has propounded or pursued discovery outside the permitted time deadlines.   

Plaintiff argues that defendant does not explain why defendant is requesting records from 2010, five years before the date of the incident.  The argument appears to be that the requests are overly broad and burdensome on this ground.  

Again, the burden is on the party seeking to avoid discovery on these grounds to establish facts showing the level of burden.  See, e.g., Mead Reinsurance Co. v. Superior Court (1986) 188 Cal.App.3d 313, 318 (demand held “oppressive” where declarations showed over 13,000 claims would have to be reviewed, requiring 5 adjusters working full time for six weeks each.).   Weil & Brown advise practitioners:

“Avoid raising the ‘burdensome and oppressive’ objection unless the facts are truly unusual (e.g., very fragile property which could be damaged by any movement, touching, etc.).  If you are going to object in such a case, state the reasons for your objection and offer to permit whatever inspection can be allowed under the circumstances.”  

Weil & Brown, Civ. Proc. Before Trial sec. 8:1476, emphasis in the original.

 

Request No. 16

Requests Nos. 19-24

“Responding Party objects to this Request on the grounds and to the extent that it: is vague, ambiguous, overbroad, and fails to specifically describe the items sought with reasonable particularity; is unduly burdensome and oppressive; seeks information protected by the attorney client privilege, the attorney work product doctrine, and/or other applicable privileges and protections; impermissibly calls for legal conclusions, the application of law to fact, and/or expert testimony; and seeks information equally or more available to, or already in the possession, custody or control of Propounding Party.”

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.”

Plaintiff is ordered to serve further responses to the subject discovery which fully comply with the Code, and which specify which documents produced respond to which request.  

 

Requests Nos. 27-30 

It appears that plaintiff concedes that documents concerning her income would be relevant if she continues to pursue loss of income damages and would be subject to the protective order entered in this matter since the motions were filed.  Plaintiff objects that seeking documents from 2010 to 2023 is overly broad and unduly burdensome but does not provide specifics concerning what burden would be imposed to collect documents from this time period.  It is not unreasonable in connection with a loss of income damage claim to review documents from five years before the accident to trace how the income has changed.  

Overall, plaintiff has failed to justify objections.  The court orders the plaintiff to serve further Code-compliant responses, without objections, with the exception of the tax records requested in Request No. 29.  

Plaintiff in connection with tax returns, W-2 forms and 1099 forms relies on Webb v. Standard Oil Co. (1957) 49 Cal.2d 509, in which the California Supreme Court evaluated the applicable provisions of the Revenue and Taxation Code and held: 

“The purpose of the amended statutory provisions prohibiting disclosure is to facilitate tax enforcement by encouraging a taxpayer to make full and truthful declarations in his return, without fear that his statements will be revealed or used against him for other purposes. If the information can be secured by forcing the taxpayer to produce a copy of his return, the primary legislative purpose of the secrecy provisions will be defeated. The effect of the statutory prohibition is to render the returns privileged, and the privilege should not be nullified by permitting third parties to obtain the information by adopting the indirect procedure of demanding copies of the tax returns.”

Webb, at 513. 

As stated in Weingarten v. Superior Court (2002) 102 Cal.App.4th 268, 278:

“There is no recognized federal or state constitutional right to maintain the privacy of tax returns.   California courts, however, have interpreted state taxation statutes as creating a statutory privilege against disclosing tax returns.   The purpose of the privilege is to encourage voluntary filing of tax returns and truthful reporting of income, and thus to facilitate tax collection.

But this statutory tax return privilege is not absolute.  The privilege will not be upheld when

(1) the circumstances indicate an intentional waiver of the privilege;

(2) the gravamen of the lawsuit is inconsistent with the privilege; or 

(3) a public policy greater than that of the confidentiality of tax returns is involved.  

This latter exception is narrow and applies only when warranted by a legislatively declared public policy.   A trial court has broad discretion in determining the applicability of a statutory privilege.”

Weingarten, at 274, citations omitted. 

 

It is held that this privilege extends to information which is considered an “integral part” of a tax return, including W-2 forms.   Brown v. Superior Court (1977) 71 Cal.App.3d 141, 142.  In Brown, the court of appeal issued a writ of prohibition restraining the trial court from compelling a personal injury plaintiff to produce her W-2 forms.  The court recognized that the privilege extended to documents used in the preparation of tax forms, and rejected an argument that the privilege should not apply because the documents were relevant, as the best evidence of, plaintiff’s claim for loss of earnings.  The extension of the privacy protection to W-2 forms in Brown has been cited with approval by the Supreme Court.  See Schnabel v. Superior Court (1993) 5 Cal.4th 704, 720. 

  Plaintiff has sufficiently supported her objection to the production of tax documents in response to Request No. 29, and to the extent tax documents fall within the financial documents requested by the other requests with respect to loss of income, and this objection is recognized by the court. 

Sanctions 

This posture leaves the issue of monetary sanctions, which are sought by both sides. 

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).   

In this case, defendant has not unsuccessfully made these motions, as they are almost entirely granted, so plaintiff is not entitled to monetary sanctions.  

  With respect to defendant’s request for sanctions, plaintiff has unsuccessfully opposed the motions for the most part.  In addition, 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. 

RULING:

Defendant NGP Motors, Inc. dba Sunrise Ford of North Hollywood’s Motion to Compel Plaintiff Toni Lawson-Apana’s Further Responses to Special Interrogatories, Set One, is GRANTED.  

Plaintiff Toni Lawson-Apana is ordered to serve further verified responses to Special Interrogatories, Set One, Interrogatories Nos. 1-6, 18, 21 and 22, 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 has considered plaintiff’s objections and finds they are without merit, so all objections are OVERRULED, and all further responses are to be without objections. 

 

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 $2,364.65 (9.8 hours @ $235/hour) [9.8 hours requested] plus $61.25 filing fees [Amount Requested $2,364.65], which sum is to be awarded in favor of defendant NGP Motors, Inc. dba Sunrise Ford of North Hollywood and against plaintiff Toni Lawson-Apana, and plaintiff’s counsel of record, jointly and severally, payable within 30 days. CCP §§ 2030.300(c), 2023.010 (e) and (f), and 2023.030(a).

Monetary sanctions requested in the opposition are DENIED.

Defendant NGP Motors, Inc. dba Sunrise Ford of North Hollywood’s Motion to Compel Plaintiff Toni Lawson-Apana’s Further Responses to Requests for Production of Documents, Set One:

Motion is DEEMED WITHDRAWN as to Request No. 16, pursuant to defendant’s statement in the Reply.    

Motion as to Request No. 29 is DENIED.  Plaintiff has sufficiently established that the documents requested are protected by the taxpayer privilege.

Motion as to all other Requests and on all other grounds is GRANTED.  

Plaintiff Toni Lawson-Apana is ordered to serve further responses to Requests for Production of Documents, Set One, Requests Nos. 3, 4, 19-24, 27, 28, and 30, 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 plaintiff 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.  The responses must specify which responsive documents are being produced in response to which document request.  

Plaintiff may assert further objection to Requests Nos. 27, 28 and 30 limited to the withholding of responsive documents which would fall within the tax return privilege.  

Otherwise, all further responses are to be without objection, as plaintiff has failed to justify all other objections, and the Court finds the objections asserted to be 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 $2,293.75 (8.0 hours @ $235/hour) [8 hours requested] plus $61.25 filing fees [Amount Requested $2,293.75], which sum is to be awarded in favor of defendant NGP Motors, Inc. dba Sunrise Ford of North Hollywood and against plaintiff Toni Lawson-Apana, and plaintiff’s counsel of record, jointly and severally, payable within 30 days. CCP §§ 2031.310(h), 2023.010 (e) and (f), and 2023.030(a).

Monetary sanctions requested in the opposition are DENIED.

DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE 

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