TENTATIVE RULING

Calendar:    9  

Date:          8/19/2022  

Case No: EC 069256 Trial Date:  January 30, 2023

Case Name: Benjauthrit v. Benjauthrit  

MOTION FOR PROTECTIVE ORDER

Moving Party: Plaintiff Prapai Benjauthrit   

Responding Party: Defendant Boonsieng Benjauthrit  

RELIEF REQUESTED:

Order that Plaintiff need not respond to Defendant Boonsieng Benjauthrit’s Second Set of Form Interrogatories, Second Set of Special Interrogatories, Second Set of Request for Admissions, and Third Set of Requests for Production of Documents. 

SUMMARY OF FACTS:

Plaintiff Prapai Benjauthrit brings this action against her brother, defendant Boonsieng Benjauthrit, alleging that the parties took title to properties in Glendale in 1977 as joint tenants, with one of the subject properties to be the principal place of residence of plaintiff.  Plaintiff alleges that defendant wrongfully induced plaintiff to sign away her interest in the subject properties while plaintiff was recovering from a coma.  

Evidently, an unlawful detainer action was filed by defendant Mr. Benjauthrit against Angelo Martinez, plaintiff’s partner. The trial was conducted on November 3, 2018, before the Honorable William Dodson, and the court ruled in favor of Mr. Benjauthrit and entered judgment.  The court stayed enforcement of that judgment until November 30, 2018, to accommodate the filing of a motion to consolidate or stay the UD case.  

This matter has been consolidated with the UD case, with this case designated the lead case, and the court has issued a preliminary injunction staying the unlawful detainer proceedings. Plaintiff has timely posted a $50,000 bond.

ANALYSIS:

Procedural

Timeliness

Defendant in opposition argues that the motion should be denied in its entirety because it is untimely.   

In connection with interrogatories, CCP §§ 2030.090(a) provides:

“When interrogatories have been propounded, the responding party, and any other party or affected natural person or organization may promptly move for a protective order.”

Similar provisions apply to requests for production of documents and requests for admissions.  CCP §§2031.060 (a) and 2033.080 (a).  

Defendant argues that the motion was not brought “promptly,” as it was brought on July 28, 2022, when the discovery requests were electronically served on June 9, 2022, so that responses were due by July 12, 2022, and so all objections had been waived by the time this motion was filed and served. 

However, it appears from the opposition that during the meet and confer process, defendant made a proposal that defendant withdraw some of the interrogatories, that plaintiff preserve objections, and that discovery be served electronically by August 10, 2022.   [Caruso Decl., Ex. 10].   The letter is dated July 26, 2022, and requests that the proposal be accepted by 5 pm on July 28, 2022.  [Id.].   While plaintiff’s counsel evidently did not accept the proposal by the deadline, plaintiff did file this motion on July 28, 2022, two days later, when it had become evident that defendant would not be withdrawing the major portion of the new discovery.  Under the circumstances, it would appear that the motion was brought “promptly” as required under statute.  The motion is not disregarded as untimely. 

Insufficient Notice

Defendant also argues that the motion was not brought on sufficient notice. 

Under CCP section 1005(b):

“Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing.” 

CCP section 1010.6 (a)(4)(B) provides that if the notice is served by electronic means, the period of notice before the hearing shall be extended by two court days. 

The motion was filed and served by email service July 28, 2022 for an August 19, 2022 hearing date.  This was sixteen court days prior to the hearing, but plaintiff did not allow the additional two court days prior to the hearing required due to the service of the motion by electronic means.  The motion accordingly was not brought on sufficient notice and could be denied outright on that ground, but the court elects not to do so. 

However, defendant has filed timely opposition addressing the merits of the motion.  It is held that insufficient or defective notice may be waived if opposing counsel argues the merits of the motion.  Alliance Bank v. Murray (1984, 2nd Dist) 161 Cal.App.3d 1, 7; Carlton v. Quint (2000, 2nd Dist.) 77 Cal.App.4th 690, 697. The court reluctantly deems the notice irregularity waived, and considers the motion on its merits to the extent possible, as qualified below.  

Separate Statement 

Defendant argues that the motion is improperly not accompanied by a separate statement, although it is directed to the content of various discovery requests, as plaintiff argues such requests are duplicative of previous requests to which plaintiff has already responded. 

CRC Rule 3.1345 (a) provides, 

“Except as provided in (b), any motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement….”   

Subdivision (b) provides, in pertinent part:

“A separate statement is not required under the following circumstances:

(1)  When no response has been provided to the request for discovery.” 

Here, no responses have been provided to the discovery requests, which is presumably why no separate statement has been submitted.  Plaintiff also argues broadly that the subject discovery is burdensome due to its scope and sheer numbers, requiring precious time to address such discovery very close to trial, so that being required to prepare a separate statement directed to each discovery request would arguably defeat the protection for which the protective order is sought.  However, as to a significant portion of the motion, plaintiff argues that the new requests are duplicative of requests previously propounded and responded to, which involves the content of the discovery request such that the parties and court would have greatly benefited from a separate statement setting forth the text of the current discovery request and identifying the previous discovery request argued to be duplicative, and setting forth that text for evaluation as to whether the current and previous requests are duplicative.  

Under the circumstances, the court will not outright deny the motion for failure of plaintiff to have filed a separate statement but will address the motion on its merits to the extent possible from the pleadings submitted.   

Meet and Confer

Defendant also argues that plaintiff has failed to sufficiently meet and confer prior to filing this motion, as the discussion was not sufficiently specific. 

Under CCP § 2030.090 (a), a motion seeking a protective order with respect to interrogatories, “shall be accompanied by a meet and confer declaration under Section 2016.040.”  Similar provisions apply to requests for production of documents and requests for admissions.  CCP §§2031.060 (a) and 2033.080 (a).  

CCP § 2016.040 requires:

“A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.”

While the meet and confer correspondence lacks specificity in some respects, so does the motion, and it does not appear that defendant has pointed to any specific issue presented by the motion was not included in the meet and confer process.  The court accordingly does not deny the motion on this ground but proceeds to consider the motion on its merits to the extent possible.  

Substantive 

Interrogatories—Form and Special 

Plaintiff seeks a protective order arguing that the newly propounded interrogatories, propounded now that new counsel has come aboard, are unduly burdensome on plaintiff because they are substantially duplicative of the interrogatories already answered and so are unwarranted. 

Relief is sought under CCP § 2030.090(b) (1) and (2), which provide:  

 “The court, for good cause shown, may make any order that justice requires to protect any party or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions: 

(1) That the set of interrogatories, or particular interrogatories in the set, need not be answered.

(2) That, contrary to the representations made in a declaration submitted under Section 2030.050, the number of specially prepared interrogatories is unwarranted….”

With respect to protective orders generally, the burden of showing good cause is ordinarily on the party seeking the protective order. Beverly Hills Nat. Bank & Trust Co. v. Superior Court (1961, 2nd Dist.) 195 Cal.App. 2d 861, 866-867.   The granting of a protective order is within the discretion of the trial court.  Id.  The granting or denial of a protective order is reviewed for abuse of discretion.   See Meritplan Insurance Co. v. Superior Court (1981) 124 Cal.App.3d 237, 242.  When the record shows facts on which the trial court exercised its discretion, this exercise will not be disturbed on appeal.  Foster v. Gillette Co. (1979) 100 Cal.App.3d 569, 578.

With respect to the newly propounded Form Interrogatories, plaintiff argues, very generally, that the questions “have already been answered in Plaintiff’s response to the form interrogatories served on defendant on January 28, 2020.”  [Memorandum, p. 6: 19-22].  In support of this argument, plaintiff cites to exhibits consisting of the proofs of service of the new form interrogatories and the previous responses. [Exhibits 1 and 6].  It is not specified which form interrogatories are duplicative, by interrogatory number, or which previous discovery response previously responded to a particular new form interrogatory.  The form interrogatories and the responses themselves are not attached, only the proofs of service, and plaintiff evidently expects the court to decide the issue in a vacuum, without having the opportunity to confirm that the discovery is in fact duplicative of previous discovery.  In addition, as discussed above, there is no separate statement submitted setting forth the text of the new objectionable interrogatories, and the text of the previous interrogatories, so that the court can analyze the content and confirm that there is duplication which would be improper.  Plaintiff has accordingly failed to meet plaintiff’s burden of showing good cause for entry of a protective order with respect to any of the form interrogatories.  

It also appears since there is not the concern with form interrogatories, as there is with special interrogatories, of exceeding the 35 special interrogatory limit, the argument that there is some undue burden is particularly weak.  Defendant in opposition points out that under CCP section 2030.030 (a)(2), a party may propound, “any additional number of form interrogatories…that are relevant to the subject matter of the pending action,” without need for a declaration of necessity, and without any express prohibition against re-issuing such form interrogatories.     

Defendant in the opposition also points out that propounding, for example, Form Interrogatory 17.1, concerning responses to Requests for Admissions, and the specifics 

concerning any failure to admit admissions, is properly propounded again with respect to newly propounded Requests for Admissions in the Second Set.   

Defendant in opposition does submit copies of the new discovery and the previous responses.  [Caruso Decl., Exs. 1, 2].  However, considering that these were not submitted by plaintiff who has the initial burden, that plaintiff has failed to specify by number any alleged duplicative discovery, and that plaintiff has opted not to file a separate statement, the court is not inclined to review each new form interrogatory, and each previous response submitted with the opposition papers to determine if the duplication exists which it was plaintiff’s initial burden to show.    

The court notes that defendant in opposition has conceded that during meet and confer defendant proposed that plaintiff’s responses to new form interrogatories which were previously propounded could be made by reference to the previous responses. This approach seems reasonable if those responses are not in need of updating, and the court will consider entering an order permitting this to occur.  The court also finds it reasonable to otherwise limit the response to Form Interrogatory No. 17.1 to apply to the responses plaintiff will be providing to Requests for Admissions, Set Two. 

With respect to special interrogatories, plaintiff argues that these interrogatories are “substantially” duplicative of previous special interrogatories, so are unnecessary, and that to respond to them would be unduly burdensome.  It appears that plaintiff is seeking to avoid responding to any of the additional special interrogatories, even those which are not duplicative, which appears improper. 

Again, the motion does not submit the new interrogatories, or the responses to the previous interrogatories, only the proofs of service, and, except for the single new interrogatory discussed below,  plaintiff does not identify which of the new special interrogatories are duplicative of those previously propounded by number, does not identify the number of the previous special interrogatories to which plaintiff responded which were duplicative, and fails to offer the court the text of the special interrogatories argued to be duplicative.  This showing fails to meet plaintiff’s burden on this motion. 

The only details provided in the moving papers are an argument by plaintiff that newly propounded Special Interrogatory No. 123 is duplicative of Special Interrogatories, Set One, Nos. 83-86.  

Special Interrogatory No. 123 is represented to have asked:

“Do YOU contend that Propounding Part offered to help YOU with the

collection of rents for the SUBJECT PROPERTIES immediately after YOUR ACCIDENT.” 

Special Interrogatories No. 83-84, in the previous set of Special Interrogatories are represented to have asked, “IDENTIFY all PERSONS who assisted YOU in the collection of rent from any third PERSON” for each of the subject properties.  

As argued in the opposition, these do not appear to be duplicative, as the new interrogatory asks if there was an offer to collect the rents by a particular party, regardless of whether that offer was accepted, and that party ultimately collected rents. The new interrogatory is also directed to the time period immediately after plaintiff’s accident.  Plaintiff has brought this issue into play in this action by her allegations that her brother engaged in a pattern of taking advantage of her weakened state with respect to the various properties.  The interrogatories are not strictly duplicative, and the motion for a protective order based on this duplicative argument is denied.  

Plaintiff also argues with respect to the special interrogatories that the declaration submitted in support of propounding more than 35 special interrogatories, which states that the additional interrogatories are warranted due to “the complexity of the subject matters involved in this action,” and “the manner of prior handling of this matter by Boonsieng Benjauthrit s prior counsel,” is not sufficient to support the necessity of this discovery.   Plaintiff argues that the matter includes only a limited quantity of potential issues, and that the parties and issues are not novel or complex. 

Under CCP section 2030.030, a party may propound to another party “(1) Thirty-five specially prepared interrogatories that are relevant to the subject matter of the pending action.”

Under subdivision (b), 

“Except as provided in Section 2030.070, no party shall, as a matter of right, propound to any other party more than 35 specially prepared interrogatories.”

CCP section 2030.040 permits the propounding of more than 35 special interrogatories with a supporting declaration:

“(a) Subject to the right of the responding party to seek a protective order under Section 2030.090, any party who attaches a supporting declaration as described in Section 2030.050 may propound a greater number of specially prepared interrogatories to another party if this greater number is warranted because of any of the following:

(1) The complexity or the quantity of the existing and potential issues in the particular case.

(2) The financial burden on a party entailed in conducting the discovery by oral deposition.

(3) The expedience of using this method of discovery to provide to the responding party the opportunity to conduct an inquiry, investigation, or search of files or records to supply the information sought.

(b)   If the responding party seeks a protective order on the ground that the number of specially prepared interrogatories is unwarranted, the propounding party shall have the burden of justifying the number of these interrogatories.”

As set forth in subdivision (b), since plaintiff has sought a protective order on the ground the number is unwarranted, defendant has the burden of justifying the number of special interrogatories. 

The additional interrogatories at issue are Special Interrogatories Nos. 123 through 174.   The interrogatories are largely contention interrogatories, confirming whether a certain contention is being made, and then follow up interrogatories concerning identifying the facts, witnesses and documents supporting such a contention.   [Caruso Decl., Ex. 5].   

Defendant argues that this case is in fact extraordinarily complex, with plaintiff making claim to multiple properties, and complaints regarding four properties, going back nearly 30 years, and that the details of the transactions are important, as is the identification of witnesses, as plaintiff is claiming cognitive and memory issues, and could also better provide the information under such circumstances in response to interrogatories with the assistance of counsel, rather than in a reconvened deposition. 

This case does appear to be rather complicated and has been recently further complicated by claims plaintiff has taken in opposition to defendant’s motion for summary judgment concerning her condition, the family history leading up to claims of susceptibility to undue influence, and plaintiff’s conduct, knowledge and intent in executing the various title documents, which prior counsel may not have been anticipating, and which are the subject of the interrogatories at issue.  Under the circumstances, it appears that the number of special interrogatories is warranted, and the motion for a protective order is denied. 

Moreover, to the extent plaintiff relies heavily on an argument that the new sets of discovery are burdensome as responding to them would require plaintiff to be dealing with voluminous discovery very close to trial, when plaintiff’s time should be spent preparing for trial, this argument is based on the fact that at the time the motion was filed, the trial date was set for September 26, 2022.   Since the filing of this motion, the court on August 4, 2022 heard an ex parte application brought by defendant to continue the trial date, which was granted, and the trial date is now set for January 30, 2023, with all discovery deadlines to be governed by the new trial date.  This should somewhat alleviate any burden plaintiff is facing.  In addition, given that plaintiff has recently prepared opposition to a motion for summary judgment/adjudication in which plaintiff herself raised or relied on some of the issues addressed by the new discovery, the information should not be difficult or burdensome for plaintiff to obtain.  

 The motion as to the special interrogatories accordingly is denied. 

Document Requests

With respect to written demands for inspection of documents, CCP §2031.060 (a) similarly provides that, “the party to whom the demand has been directed... may promptly move for a protective order,” and that: 

“(b) The court, for good cause shown, may make any order that justice requires to protect any party or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions:

(1) That all or some of the items or categories of items in the demand need not be produced or made available at all.

(2) That the time specified in Section 2030.260 to respond to the set of demands, or to a particular item or category in the set, be extended.

(3) That the place of production be other than that specified in the demand.

(4) That the inspection, copying, testing, or sampling be made only on specified terms and conditions.

(5) That a trade secret or other confidential research, development, or commercial information not be disclosed, or be disclosed only to specified persons or only in a specified way.

(6) That the items produced be sealed and thereafter opened only on order of the court.”

Again, with respect to protective orders generally, the burden of showing good cause is ordinarily on the party seeking the protective order. Beverly Hills Nat. Bank & Trust Co. v. Superior Court (1961, 2nd Dist.) 195 Cal.App. 2d 861, 866-867. 

Plaintiff argues that defendant has propounded 52 additional requests for production of documents in the most recent discovery set, and argues that “requests 1, 2, 38, 39, 43, 44, 45, 46, 48, and 49 have already been responded to and served upon Defendant.”  This statement appears to be a reference to a previous set of document requests, but plaintiff does not list or reference the requests in the new set of discovery to which the previous requests allegedly responded.  Again, the requests are not submitted with the moving papers, only proofs of service.  Under the circumstance, plaintiff has failed to meet any burden of showing good cause for the issuance of a protective order.  

Plaintiff also argues that the requests include requests which are not reasonably calculated to lead to admissible evidence.  Plaintiff sets forth one example, Request No. 30, a request which requests plaintiff to produce, “Any and all DOCUMENTS which REFER, REFLECT, or RELATE to any of YOUR travels from 1993 to the present.”   Plaintiff argues that even being required to object individually to these duplicative and unnecessary requests would require unwarranted annoyance and burden. 

As defendant argues in the opposition, this single example itself does not establish that the information sought is not discoverable in this case, as plaintiff is claiming that she was cognitively impaired such that she was a dependent adult, but discovery has revealed plaintiff traveled with her partner to Thailand, where plaintiff was able to assist as a translator, and plaintiff has separately traveled with defendant and other family members, bearing on the claims of cognitive impairment, as well as the claims that plaintiff has been abused by her family.   

Defendant also argues that plaintiff has not come forward with specific facts showing undue burden posed by the document requests, citing to Mead Reinsurance Co. v. Superior Court (1986) 188 Cal.App.3d 313, 318, in which a document demand was held “oppressive” where declarations showed over 13,000 claims would have to be reviewed, requiring 5 adjusters working full time for six weeks each.  No such showing is provided here.  The motion as to the requests for production is denied.        

Requests for Admissions 

With respect to requests for admissions, plaintiffs seek relief under CCP § 2033.080, which provides, in pertinent part:

“(a) When requests for admission have been made, the responding party may promptly move for a protective order. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.

(b) The court, for good cause shown, may make any order that justice requires to protect any party from unwarranted annoyance, embarrassment, oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions:

(1) That the set of admission requests, or particular requests in the set, need not be answered at all.

(2) That, contrary to the representations made in a declaration submitted under Section 2033.050, the number of admission requests is unwarranted.” 

Again, plaintiff argues that requests numbers 62-71 and 81 were already answered in previous discovery responses.  There is no indication except for with respect to Request No. 62, what these requests seek, and what prior discovery responses are alleged to have provided duplicative information.  

In the example cited, plaintiff argues that RFA No. 62 calls for an admission that plaintiff “has been fully response [sic]and functional since at least November 28, 1995.”  Plaintiff argues that her response to Special Interrogatory No. 59 identifies a document, a Department of Mental Health letter, so that defendant is effectively in possession of information which would deny that RFA.  This argument is nonsense.  There is no duplication shown here, and, in any case, it is well settled 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.   

Plaintiff also again argues that the declaration for additional discovery is insufficient, but, as discussed above, this is a complicated matter, with theories evolving over time.  To the extent plaintiff argues that one request, Request No. 82, seeking an admission concerning plaintiff’s travel with her siblings after the accident, does not seek discoverable information, as discussed above, the issues of plaintiff’s cognitive condition, as well as her travels with her siblings who were allegedly building up a family atmosphere which permitted undue influence to occur, are discoverable in this matter.  The motion for a protective order accordingly is denied. 

Defendant in the opposition requests that the court require plaintiff to respond forthwith to defendant’s interrogatories, Requests for Admissions and Supplemental Discovery, without objections. 

Under CCP § 2030.090 (c):

“(c) If the motion for a protective order is denied in whole or in part, the court may order that the party provide or permit the discovery against which protection was sought on terms and conditions that are just.”

Similar provisions apply to documents and requests for admissions.  See CCP §§ 2031.060(g) and 2033.080(c).

The motion does not seek a protective order with respect to the Supplemental Discovery, so the court will make no orders in connection with that discovery.   

The court orders that it permits the discovery, which is the subject of this motion, and that the plaintiff provides within thirty days, responses on the conditions the court finds just, as discussed above.  The court makes no orders concerning discovery being provided without objection.  If objections are made, and defendant finds that they are improperly asserted, a motion to compel further responses can be made, if necessary, after appropriate meet and confer, and which motion must be accompanied by a separate statement.  

RULING:

Motion for Protective Order Relieving Plaintiff from Responding to Defendant’s Abusive Discovery Requests:

The Court has reluctantly considered the motion to the extent possible, despite the fact that the Court recognizes that the motion was not served in compliance with statutory notice requirements but was served by electronic service only sixteen court days prior to the hearing date without providing two additional calendar days for such service, as required under CCP section 1005(b).   The Court has considered the motion only because defendant has filed opposition addressing the merits of the motion.  

The Court also notes that the motion is not accompanied by a separate statement, although the motion is directed in large part to the content of the subject discovery requests.  Although the Court does not deny the motion outright for this deficiency, the Court would be within its discretion to do so.  The Court has considered the motion on its merits without the separate statement only to the extent possible from the pleadings submitted. 

Plaintiff is cautioned that in the future, the Court may refuse to consider pleadings which do not comply with statutory notice requirements, or other applicable statutes, rules and procedures.    

Motion is GRANTED IN PART and DENIED IN PART. 

Motion as to Form Interrogatories, Set Two is GRANTED IN PART.   

The Court issues a protective order permitting plaintiff to respond to any Form Interrogatories previously propounded and responded to by reference to previous responses to the same numbered Form Interrogatories, where appropriate, and where plaintiff is willing to verify that no updated information to that particular Form Interrogatory is required. 

The Court issues a protective order limiting the scope of Form Interrogatory 17.1 to apply to the Responses to Requests for Admissions, Set Two only.  

Motion is otherwise DENIED. 

Pursuant to CCP §§ 2030.090 (c), 2031.060(g) and 2033.080(c) the Court Orders that Plaintiff Prapai Benjauthrit provide or permit the discovery against which protection was sought in this motion, Defendant Boonsieng Benjauthrit’s  Second Set of Form Interrogatories, Second Set of Special Interrogatories, Second Set of Request for Admissions, and Third Set of Requests for Production of Documents, upon the terms and conditions set forth in the orders above in connection with the Second Set of Form Interrogatories only, within ten days.  

The Court makes no orders in connection with Supplemental Discovery, which discovery is not the subject of this motion. 

 

 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.