Judge: Ronald F. Frank, Case: 23TRCV02385, Date: 2024-10-09 Tentative Ruling

Case Number: 23TRCV02385    Hearing Date: October 9, 2024    Dept: 8

Tentative Ruling¿¿

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HEARING DATE:                 October 9, 2024

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CASE NUMBER:                   23TRCV02385

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CASE NAME:                        Brian Whitaker v. K-Cork, Inc.

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MOVING PARTY:                 Plaintiff Brian Whitaker

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RESPONDING PARTY:        Defendant K-Cork, Inc. 

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TRIAL DATE:                        November 18, 2024

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MOTION:¿                              (1) Motion to Compel Defendant K-Cork, Inc. to Provide Supplemental Responses to Plaintiff’s Special Interrogatories

                                                (2) Request for Sanctions

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Tentative Rulings:                  (1) DENIED with specific rulings as to each special interrogatory that will limit the evidence Defendant may offer at trial given its second supplemental responses. 

                                                (2) DENIED

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I. BACKGROUND¿¿¿ 

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A.    Factual¿¿¿ 

On July 21, 2023, Plaintiff Brian Whitaker (“Plaintiff”) filed the instant Complaint against Defendant K-Cork, Inc. (“Defendant”) alleging two causes of action: (1) violation of the Unruh Civil Rights Act and (2) violation of the California Disabled Persons Act. Plaintiff is a quadriplegic who uses a wheelchair. He alleges Defendant failed to provide accessible dining surfaces when Plaintiff went to KC’s Crepes Café, owned by Defendant. (Complaint, ¶ 1, 8, 13.)

Defendant filed its answer on January 22, 2024. On June 4, 2024, Plaintiff served Set One of Special Interrogatories on Defendant. (Motion to Compel, p. 3.) On June 27, 2024, Defendant’s counsel requested a fifteen-day extension, which Plaintiff agreed to. (Motion to Compel, p. 3.) On July 1, 2024, Defendant served responses, and Plaintiff’s counsel contacted Defendant the next day “regarding the boilerplate responses, questioning if they were sent due to an oversight of the previously granted extension.” (Motion to Compel, p. 4.) Defendant stated they did not receive Plaintiff’s agreement to the extended deadline, and Plaintiff’s counsel reiterated that the new response deadline was July 22, 2024. (Motion to Compel, p. 4.)

Defendant did not provide updated responses by the extended deadline, and Plaintiff sent a meet and confer letter on July 23, 2024, advising Plaintiff would file a motion to compel if Defendant did not send responses by July 24, 2024. On July 26, 2024, Defendant requested another two-week extension, and on August 7, 2024, Defendant requested another five-day extension. (Motion to Compel, p. 4.)

On August 9, 2024, Defendant served responses, and on August 13, 2024, Plaintiff’s counsel sent another meet and confer letter regarding Defendant’s “vague and evasive responses.” (Motion to Compel, pp. 4–5.) Plaintiff’s counsel set another deadline of August 14, 2024, and on that day, Defendant requested another two-week extension. (Motion to Compel, p. 5.)

On September 2, 2024, Defendant served responses, but did not address most of Plaintiff’s issues in the previous meet and confer letter. (Motion to Compel, p. 5.) Plaintiff’s counsel sent another email on September 7, 2024, narrowing down the discovery requests and reiterating Plaintiff’s intention to compel responses. (Motion to Compel, p. 5.) Plaintiff’s counsel called Defendant’s counsel on September 11, 2024, repeating the contents of the email and requesting a response by end of day, indicating Plaintiff would proceed with the motion to compel if no response was received. (Motion to Compel, p. 5.)

B.    ¿¿Procedural  

On September 13, 2024, Plaintiff filed this Motion to Compel Supplemental Responses to Special Interrogatories, Set One. On September 25, 2024, Defendant filed an Opposition to the motion. On October 2, 2024, Plaintiff filed a Reply, erroneously titled Reply re Document Production Requests rather than special interrogatories.  The Court considered the Reply nonetheless.

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¿II. MEET AND CONFER

            ¿¿A Motion Compelling Further Responses to Interrogatories requires a meet and confer declaration. (Code Civ. Proc., § 2030.300, subd. (b)(1).)

Plaintiff has met the meet and confer requirements. On July 2, 2024, Plaintiff’s counsel contacted Defendant’s counsel regarding Defendant’s responses. (Declaration of Sumedh Rishi, ¶ 5.) Plaintiff’s counsel then sent a meet and confer letter on July 23, 2024, after Defendant failed to serve responses by the extended deadline. (Declaration of Sumedh Rishi, ¶ 7.) On August 13, 2024, Plaintiff’s counsel sent a second meet and confer letter regarding Defendant’s “vague and evasive supplemental responses.” (Declaration of Sumedh Rishi, ¶ 11.) Still unsatisfied with Defendant’s responses, Plaintiff’s counsel sent an email on September 7, 2024. (Declaration of Sumedh Rishi, ¶ 15.) Defendant did not respond. (Declaration of Sumedh Rishi, ¶ 16.) Plaintiff’s counsel then called Defendant’s counsel on September 11, 2024, and left a voicemail reiterating the contents of the September 7 email. (Declaration of Sumedh Rishi, ¶ 17.)

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¿III. ANALYSIS¿¿ 

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A.              Motion to Compel Further Responses to Interrogatories

Code of Civil Procedure, section 2030.300, subdivision (a), provides that a party may bring a motion to compel further responses to interrogatories if the demanding party deems that (1) an answer to a particular interrogatory is evasive or incomplete; (2) an exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate; or (3) an objection to an interrogatory is without merit or too general.

The propounding party must submit a meet and confer declaration and a separate statement that provides the information necessary to understand each discovery request. (Code Civ. Proc., § 2031.310, subd. (b)(2); Cal. Rules of Court, rule 3.1345(a).) In lieu of a separate statement, the court may allow the moving party to submit an outline of the discovery request and each response in dispute. (Code Civ. Proc., § 2030.300, subd. (b)(2).)

Plaintiff moves to compel further supplemental responses to its Special Interrogatories on the grounds that Defendant “has provided evasive, meritless, and boilerplate objections…” (Motion to Compel, p. 8.) Plaintiff argues that the following requests remain at issue:

Special Interrogatory No. 7: When was the subject property built?

Defendant’s second supplemental response states, after a series of meritless objections, “unknown.”  Defendant indicates it lacks records to ascertain the date the subject property was built, which is discoverable in disability access cases because the date of construction affects which if any architectural standards apply.  Plaintiff alleges that Defendant must make a reasonable and good faith effort to obtain the information requests by inquiry to other natural persons or organizations and could have found the requested information from the property owner.  The Court’s tentative ruling is that the objections are overruled, the “unknown” answer shall stand with Defendant implicitly having made a diligent search and reasonable inquiry given the looming trial date, and Defendant being expressly placed at risk at trial of being unable to assert a defense that Plaintiff or his expert are applying the wrong architectural standards because of the date of construction. 

Special Interrogatories Nos. 8 and 9: Identify financial wherewithal and financial status documents

Plaintiff alleges that Defendant’s responses look like perjury, as Defendant responded “None” to requests for identification of financial documents and financial status of the property, which Plaintiff alleges Defendant must maintain under California law. (Separate Statement in Support of Motion to Compel, pp. 5, 7.) Plaintiff argues that the requested information is crucial to preparing against Defendant’s possible defense of financial hardship. The Court finds the objection meritorious, akin to the Court’s ruling on the motion to compel documents heard on October 8, 2024, subject to Defendant being barred from any defense at trial that it lacks the financial resources to make changes to its dining areas and counter surfaces to comply with the ADA.

Special Interrogatory No. 13: facts tending to show accessible dining surfaces not readily achievable

Plaintiff alleges that Defendant responded to this interrogatory, after a series of objections, with a statement that its premises are already in compliance.  The thrust of the interrogatory is to discovery facts based on a contention that Defendant apparently does not make here.  Accordingly, as with the financial records interrogatory, the Court denies the motion to compel this interrogatory subject to Defendant being barred from any defense at trial that making the dining surfaces at the subject property ADA-compliant is not readily achievable per 42 U.S.C. section 12181(9). 

B.              Sanctions

¿ Code of Civil Procedure, section 2030.290, subdivision (c), provides that the court may impose a monetary sanction on a party who unsuccessfully makes or opposes a motion to compel 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.

Here, Plaintiff seeks sanctions in the amount of $3,660.00 for sanctions of Defendant’s failure to respond to Requests for Production of Documents.  In light of the rulings noted above, Defendant had substantial justification for some of the objections thus making monetary sanctions inappropriate under the circumstances.   

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