Judge Ronald F. Frank, Case 21STCV18145 2023-04-14 Tentative Ruling

Judge: Ronald F. Frank, Case: 21STCV18145, Date: 2023-04-14 Tentative Ruling

Case Number: 21STCV18145 Hearing Date: April 14, 2023 Dept: 8

Tentative Ruling¿¿

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HEARING DATE: April 14, 2023

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CASE NUMBER: 21STCV18145

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CASE NAME: David Zeil v. DOES 1-100

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MOVING PARTY: Plaintiff, David Zeil

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RESPONDING PARTY: Defendant, Southwest Airlines Co., named as Doe 1

TRIAL DATE: Not Set

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MOTION:¿ (1) Motion for Order Compelling Verification of Responses to Form Interrogatories and Further Responses to Interrogatory Nos. 4.1, 12.1, 15.1, 16.1, 16.2, 16.9, & 16.10

(2) Motion for Order Compelling Verification of Responses to Special Interrogatories and Further Responses to Interrogatory Nos. 2, 3, 5, 6, 8-14, 18, 19, 21-26, 34

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Tentative Rulings: (1) Motion for Order Compelling Verification of Responses to Form Interrogatories and Further Responses to Interrogatory Nos. 4.1, 12.1, 15.1, 16.1, 16.2, 16.9, & 16.10, and for monetary sanctions, is GRANTED.

(2) Motion for Order Compelling Verification of Responses to Special Interrogatories and Further Responses to Interrogatory Nos. 2, 3, 5, 6, 8-14, 18, 19, 21-26, 34, and for monetary sanctions, is GRANTED.

(3) Motion for Order Compelling Verification of Inspection Demand Responses by Defendant Southwest Airlines Co. and To Compel Further Responses and the Production of Documents Demanded Thereby in Response to Demands Nos. 1-12, 15-34 & 37-55, and to Provide Privilege Log, and for monetary sanctions, is CONTINUED to give Defendant an opportunity to comply with the Court’s directions below

(4) Code-compliant amended verifications to the original responses must be provided forthwith.

At the outset, the Court is disappointed that these motions needed to be filed. Southwest’s counsel promised to provide a proper verification for each of the discovery responses and claims in the Opposition briefs to have done so in October, but the purported amended verifications are not attached to the opposition declarations or provided anywhere else for the Court to review. Second, the 3 Opposition briefs argue that supplemental responses were provided on September 21, 2022, but those further or supplemental responses are not attached to the opposition papers either. This leads the Plaintiff (and the Court) to believe that defense counsel believes that the meet-and-confer letter constitutes a further or supplemental discovery response which it is not. Third, the defense provided an opposition separate statement but the document (which contains different substantive information than the original verified responses) does not appear to contain the defendant’s quoted language from any verified further response.

On the state of this record, the Court will need to hear from defense counsel as to why monetary sanctions should not be awarded as there does not appear to be a substantial justification for wrongly contending that an unverified letter or an unverified separate statement qualifies as an additional, further, or supplemental discovery response under the Civil Discovery Act’s provisions. The Court’s tentative ruling is to order monetary sanctions for the FROG and SROG motions to compel, continue the hearing as to the RFP motion, and to order verified supplemental responses within 30 days. The fact that Southwest has filed a summary judgment motion does not relieve it from the obligation to participate in discovery, but it may require a continuance of the MSJ hearing until the Defendant’s discovery obligations have been satisfied.

I. BACKGROUND¿¿¿

This is a bodily injury claim arising from an incident aboard a domestic passenger airline flight. Plaintiff alleges that on May 23, 2019, during a scheduled flights on Southwest Airlines form SFO to LAX, smoke began emanating from a passenger’s carryon bag or backpack that filled the cabin and caused injuries to Plaintiff’s skin and the inhaled smoke caused damage to his lungs. Plaintiff alleges that the owner of the carry-on or backpack was Defendant Valencia Manu, and that Ms. Manu was a Southwest Airlines employee. Ms. Manu’s default has already been taken. Subsequent investigation appears to have revealed that the source of the smoke was a laptop computer or laptop batter which exploded during the flight.

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A. Motion Practice¿¿¿

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Plaintiff notes that on August 1, 2022, he served Form Interrogatories, Admission Requests, and Inspection Demands on Defendant. The motions state that on August 31, 2022, Defendant served responses to the above discovery. However, Plaintiff argues that the responses contain multiple improper objections, fail to provide substantive responses to most of the discovery and in general are not good faith responses. Additionally, Plaintiff claims that the discovery responses do not include proper verifications. The alleged impropriety in the verifications is that while they are dated and signed by a Corporate Insurance Manager for Southwest, the pre-printed verification forms do not contain a check in the appropriate box as to whether the discovery being verified is being made on information and belief, personal knowledge, or otherwise.

Plaintiff notes that on September 14, 2022, Plaintiff sent a detailed meet and confer letter to defense counsel regarding Defendant’s responses, setting forth responses were needed to form interrogatories 4.1, 15.1, and the 16 series, special interrogatories 2, 3, 5, 6, 8-14, 18, 19, 21-26, 29 and 34 and Inspection Demand Nos. 1-13, 15-34, and 37-55. One week later defense counsel responded, agreeing to provide a new verification and responding to the specifically disputed items in the Plaintiff’s meet-and-confer letter. Among other things, Plaintiff asserts that in the responses, Defendant refused to provide any facts, documents, and witnesses that supported its Form Interrogatory No. 15.1 responses to question concerning evidence to support the many affirmative defenses listed in Southwest’s Answer. The defense response letter asserts that the FROG 15.1 affirmative defenses were pleaded prospectively and offered to supplement if and when discovery leads to information that would require Southwest to withdraw any defense. The defense letter also stood by the response to FROG 4.1 regarding the amount of insurance coverage provided, which was essentially a not so polite “of course we have more insurance than the $75,000 amount of stipulated damages.” Southwest refused to provide personal contact information for its employees but offered to contact them through counsel. As to the SROGS, the defense response letter refused to supplement or provide any additional information besides what was given in the original responses. Similarly, the defense meet-and-confer response letter stood by its limited responses and its asserted objections to the RFP.

Not surprisingly, motions to compel followed as to the SROGS, FROGS, and RFPs.

B. Procedural¿¿¿

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On March 9, 2023, Plaintiff filed a Motion for Order Compelling Verification of Responses to Form Interrogatories and Further Responses to Interrogatories 4.1, 12.1, 15.1, 16.1, 16.2, 16.9 &16.10. On April 3, 2023, Defendant filed an opposition. On April 4, 2023, Plaintiff filed a reply brief.

On March 9, 2023, Plaintiff filed a Motion for Order Compelling Further responses to Special Interrogatories Nos. 2, 3, 5, 6, 8-14, 18, 19, 21-26 & 34. On April 3, 2023, Defendant filed an opposition. On April 4, 2023, Plaintiff filed a reply brief.

On March 9, 2023, Plaintiff filed a Motion for Order Compelling Verification of Responses to Inspection Demand Nos. 1-12, 15-34 & 37-55. On April 3, 2023, Defendant filed an opposition. On April 4, 2023, Plaintiff filed a reply brief.

II. MEET AND CONFER

Plaintiff notes that on September 14, 2022, he sent a detailed meet and confer letter to defense counsel regarding Defendant’s responses, setting forth responses were needed to form interrogatories 4.1, 15.1, and the 16 series, special interrogatories 2, 3, 5, 6, 8-14, 18, 19, 21-26, 29 and 34 and Inspection Demand Nos. 1-13, 15-34, and 37-55. Defendant wrote response letter a week later, disputing the need to make any further substantive verified response. As such, this Court finds that Plaintiff has met his meet and confer requirements.

III. ANALYSIS¿¿

A. Legal Standard

A party must respond to interrogatories within 30 days after service. (Code Civ. Proc., § 2030.260, subd. (a).) If a party to whom interrogatories are directed does not provide timely responses, the requesting party may move for an order compelling responses to the discovery. (Code Civ. Proc., § 2030.290, subd. (b).) If a timely response is given, the propounding party must bring a motion to compel further responses within 45 days. Similar rules and deadlines apply to RFPs and RFAs.

B. Motion for Order Compelling Verification of Responses to Form Interrogatories and Further Responses to Interrogatory Nos. 4.1, 12.1, 15.1, 16.1, 16.2, 16.9, & 16.10

Verification Issue

Plaintiff notes that Defendant did not provide proper verifications for its discovery responses pursuant to Code of Civil Procedure § 2030.250. That section state that when a verification is provided by a business entity, one of its officers or agents shall sign the response under oath on behalf of that party. Here, Plaintiff points out that Defendant did not indicate the basis of its knowledge of the responses, noting that the corporate manager who signed the verification failed to check one or the other box on the pre-printed verification form as to whether the was “informed and believe and on the ground allege that the matters stated in the foregoing document are true” or that the “matters stated in the foregoing document are true of [his] own knowledge except as to those matters which are stated on information and belief, and as to those matters [he] believe them to be true.” Plaintiff argues that the verification provided by Defendant does not satisfy the requirements of the discovery statute. The Court agrees. Defendant is to provide Plaintiff with proper, amended verifications to its original responses, verifications that specify the name / title / caption of the discovery response being verified.

Form Interrogatories

Plaintiff seeks further responses to Form Interrogatory Nos. 4.1, 12.1, 15.1, 16.1, 16.2, 16.9 and 16.10, noting that these are basic, straightforward interrogatories concerning properly identifying available insurance, and identifying the facts, witnesses and documents that support Defendant’s defenses and affirmative defenses and defendant’s contentions concerning the causes and contributing facts that resulted in the incident and Plaintiff’s injuries.

In opposition, Defendant concedes that when responses were provided, they were not immediately verified. However, Defendant notes that verifications for its responses to Form Interrogatories, Set One, was provided to Plaintiff’s counsel after the instant motion was filed by counsel. Defendant also notes that on September 21, 2022, Defendant sent a letter to Plaintiff’s counsel with further responses. But the Opposition’s representations are not proven out by an exhibit i.e., a copy of the October 2022 amended verifications, or a copy of the further or supplemental responses, if any, which were purportedly given on September 21, 2022. The Court is left to wonder if defense counsel mistakenly believed that the September 21, 2022 meet-and-confer letter constitutes a further or supplemental response. A letter is not a further discovery response; it is a letter from counsel, not a Code-compliant verified discovery response from the attorney’s client.

In Plaintiff’s reply brief, he notes these same points. Plaintiff has asserted that the letter cannot be considered a form of discovery, and the Court agrees. Plaintiff’s Motion to Compel Further Responses to Form Interrogatories, Set One, is GRANTED. Defendant is to provide Code-compliant Further Responses to Form Interrogatory Nos. 4.1, 12.1, 15.1, 16.1, 16.2, 16.9 and 16.10, and properly verify them. If no facts are currently known to support an affirmative defense, the further response must so state.

Sanctions

Plaintiff argues that monetary sanctions are proper as Defendant represented to Plaintiff that it would be standing on its original responses and will provide no further discovery responses. Plaintiff asserts this total is from the preparation of this motion, causing Plaintiff to incur $7,150 in attorneys fees. Plaintiff’s counsel also noted that he spent two (2) hours in his meet and confer efforts. He further notes he has spent five (5) hours preparing the separate statement in support of his motion, two (2) hours drafting this motion, two (2) hours reviewing opposition papers and preparing a reply; and two (2) hours preparing for and participating in the hearing. Plaintiff’s counsel also notes that Plaintiff will incur a $68.40 fee charge for the reservation and filing fees for this motion. As such, Plaintiff requests sanctions in the amount of $7,218.40. The amount sought is excessive in the Court’s experience and in light of sanctions awards granted in other comparable cases, but the Court is inclined to grant $2,568 for the FROG motion, payable by defense counsel within 30 days.

C. Motion for Order Compelling Verification of Responses to Special Interrogatories and Further Responses to Interrogatory Nos. 2, 3, 5, 6, 8-14, 18, 19, 21-26, 34

Verification Issue

Plaintiff notes that Defendant did not provide proper verifications for its discovery responses as discussed above. The Court agrees. Defendant is to provide Plaintiff with proper verifications to its responses.

Special Interrogatories

Plaintiff notes that he seeks further responses to Special Interrogatory Nos. 2, 3, 5, 6, 8-14, 18, 19, 21-26 and 34, noting that these are basic, straightforward interrogatories concerning properly identifying available insurance, and identifying the facts, witnesses and documents that support Defendant’s defenses and affirmative defenses and defendant’s contentions concerning the causes and contributing facts that resulted in the incident and Plaintiff’s injuries.

Plaintiff notes that on August 1, 2022, Plaintiff noted that he served Form Interrogatories, Special Interrogatories, Admission Requests, and Inspection Demands on Defendant. Plaintiff also notes that on August 31, 2022, Defendant served responses to the above discovery. However, Plaintiff argues that the responses contain multiple improper objections, fail to provide substantive responses to most of the discovery and in general are not good faith responses. Additionally, Plaintiff claims that the discovery responses do not include proper verifications.

In opposition, Defendant concedes that when responses were provided, they were not immediately verified. However, Defendant notes that verifications for its responses to Special Interrogatories, Set One, was provided to Plaintiff’s counsel after the instant motion was filed by counsel. Defendant also notes that on September 21, 2022, Defendant sent a letter to Plaintiff’s counsel with further responses.

The meet and confer process is frustrated when the propounding party raises legitimate concerns with the substance of initial responses or raises legitimate questions as to the propriety of objections asserted, but the responding party makes no reasonable effort to back off from untenable initial positions or to consider supplementing the original responses to address the legitimate issues raised in the meet-and-confer letter sent by the propounding party. That is what happened here. Defendant’s Separate Statement appears to recognize that additional or supplemental answers to many of the questioned interrogatories are warranted, but the substance of the purported further responses articulated in the defense separate statement are useless to the Plaintiff because THEY ARE NOT VERIFIED. Accordingly, Plaintiff’s Motion to Compel Further Responses to Special Interrogatories, Set One, is GRANTED. Defendant is to provide Further Responses to Special Interrogatory Nos. 2, 3, 5, 6, 8-14, 18, 19, 21-26 and 34, and properly verify them.

Sanctions

For the reasons discussed above, the amount sought by Plaintiff for monetary sanctions is excessive but the Court is inclined to grant $2,568 for the SROG motion, payable by defense counsel within 30 days.

D. Motion for Order Compelling Verification of Inspection Demand Responses by Defendant Southwest Airlines Co. and To Compel Further Responses and the Production of Documents Demanded Thereby in Response to Demands Nos. 1-12, 15-34 & 37-55, and to Provide Privilege Log.

Verification Issue

The same issue and same ruling applies for the deficient verification to the RFP.

Inspection Demand

Plaintiff notes that he seeks further responses to Inspection Demand Nos. 1-12, 15-34, and 37-55, noting that these are basic demands concerning the documents that support defendant’s responses to form interrogatories and special interrogatories, documents concerning defendant's relationship with and respondeat superior liability for defendant Ms. Manu and documents that contain defendant's rules and policies regarding vape pens on flights. Plaintiff argues that all such information is discoverable.

The Court is inclined to have the parties meet and confer as to the RFP, given the number of requests at issue and the direction given by the Court in this Tentative as to the FROGs and SROGs. The Court will continue the hearing on the motion to compel and monetary sanctions as to the RFPs for approximately a month, giving Defendant the opportunity to provide a substantive further response, and to propose its own form of Protective Order within 10 days of this ruling as to any documents Defendant is prepared to produce as long as a suitable stipulated protective order is in place.