Judge Salvatore Sirna, Case 22PSCV00180 2023-02-02 Tentative Ruling

Defendant NTG Franchising, LLC’s Motion to Compel Further Responses to Interrogatories

Defendant NTG Franchising, LLC’s Motion to Compel Further Responses to Interrogatories is GRANTED IN PART as to Interrogatory Nos. 15 and 17 and DENIED IN PART as to Interrogatory Nos. 5, 7, 8, 12, 18, 19, 20, and 21.

Plaintiff is ordered to serve further and complete code-compliant responses without objection on Defendant within ten (10) days.

This is a disability rights action. Plaintiff Rebecca Castillo is a visually impaired and legally blind individual. NTG Franchising, LLC (Defendant) owns and operates a commercial and publicly accessible website that provides consumers with access to goods, services, and information related to Defendant’s brick-and-mortar locations.

As early as February 2022, Plaintiff visited Defendant’s website and alleges the following barriers to access existed: (1) incorrect labels or lack of alt-text for graphics, links, and buttons; (2) multiple unlabeled or mislabeled buttons; (3) multiple pages with insufficient navigational headings; (4) inaccessible menu links and descriptions; and (5) an inaccessible checkout system. On June 15, 2022, a Certified Professional in Accessibility Core Competencies (CPACC) identified at least fifty-seven accessibility barriers.

On February 23, 2022, Plaintiff filed a complaint against Defendant and Does 1-10, alleging violation of the Unruh Civil Rights Act (UCRA). On July 20, Plaintiff filed a First Amended Complaint (FAC) alleging the same cause of action against the same defendants.

On July 21, 2022, Defendant moved for a protective order. On July 26, Plaintiff moved to compel further responses to Plaintiff’s form interrogatories, special interrogatories, and requests for production. On September 8, the court denied Defendant’s motion for a protective order and ordered parties to meet and confer on any outstanding discovery issues.

On September 21, 2022, Defendant filed the present motion. A hearing is set for February 2, 2023.

Defendant moves to compel Plaintiff to provide additional responses to Defendant’s interrogatories numbered 5, 7-8, 12, 15, and 17-21.[1]

A party may file a motion compelling further answers to interrogatories if it deems the responses are inadequate, incomplete, or evasive, or an objection in the responses is without merit or too general. (Code Civ. Proc., § 2030.300.) The motion shall be accompanied with a meet and confer declaration. (Code Civ. Proc., § 2030.300, subd. (b).) Each answer in the response must be “as complete and straightforward as the information reasonably available to the responding party permits,” (Code Civ. Proc., § 2030.220, subd. (a)) and “[i]f an interrogatory cannot be answered completely, it shall be answered to the extent possible.” (Code Civ. Proc., § 2030.220, subd. (b).) Pursuant to Code of Civil Procedure section 2030.300, subdivision (d), “[t]he court shall impose a monetary sanction under Chapter 7 (commencing with¿Section 2023.010) 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.”

On September 16, 2022, Defendant’s counsel emailed Plaintiff’s counsel, stating Plaintiff’s responses to Defendant’s interrogatories were nonresponsive and evasive as they did not respond with particularity, requesting further responses by September 20, 2022. (Jankowski Decl., Ex. 2, p. 12.) On September 19, 2022, at 3:39 PM, Plaintiff’s counsel responded to Defendant with a detailed email. (Jankowski Decl., Ex. 2, p. 6-7.) At 4:04 PM, Defendant’s counsel responded, disagreeing with the response from Plaintiff’s counsel and offered to discuss the issue further via telephone on September 22 or September 23 as Defendant’s counsel was in a trial on September 20 and September 21. (Jankowski Decl., Ex. 2, p. 6)

At 4:42 PM, Plaintiff’s counsel responded, claiming Defendant’s counsel did not respond to Plaintiff’s arguments. (Jankowski Decl., Ex. 2, p. 4-5.) At 5:57 PM, Defendant’s counsel renewed the request for telephonic discussions and offered to give Plaintiff’s counsel two weeks to provide additional responses. (Jankowski Decl., Ex. 2, p. 3-4.) Plaintiff’s counsel responded the next morning by demanding a draft of Defendant’s motion to compel and refusing to meet and confer with Defendant’s counsel over the phone without further responses. (Jankowski Decl., Ex. 2, p. 2-3.)

Even after filing the present motion, Defendant’s counsel once again sought to meet and confer with Plaintiff’s counsel on September 22 or September 23. Plaintiff’s counsel refused. (Jankowski Decl., Ex. 2, p. 1-2.) The court finds Defendant’s counsel made good faith attempts to meet and confer by first emailing reasons for objecting to Plaintiff’s responses and then by offering to discuss the issues further at the end of the week when Defendant’s counsel was available.

Defendant argues Plaintiff failed to provide specific dates as to when Plaintiff visited Defendant’s website and why. Plaintiff responded “at least twice in February 2022 and at least once in July 2022.” The court finds this response to be sufficient as Defendant’s request is vaguely worded and does not request a specific date or dates when Plaintiff visited the website. The additional information Defendant seeks from the interrogatory as identified in Defendant’s separate statement is not contemplated by the request. (Separate Statement, p. 2:23-27.)

Defendant contends Plaintiff failed provide the steps taken to purchase a gift card on Defendant’s website. The court finds that Defendant’s interrogatory does not ask Plaintiff to provide those steps. The interrogatory asks for facts supporting the allegation that the website “denied you full and equal access.”

In responding, Plaintiff listed, in great detail, the barriers Plaintiff encountered. (Separate Statement, p. 3:18-4:7.)

Defendant maintains Plaintiff failed to identify what Plaintiff was purchasing each time Plaintiff visited the website. The court notes, however, that Defendant’s interrogatory does not request Plaintiff to identify what Plaintiff was purchasing each time Plaintiff visited the website. The interrogatory asks for facts supporting Plaintiff’s allegation that Plaintiff was deterred from accessing the website on a regular basis. Plaintiff describes in detail how Plaintiff was deterred from ordering food through the website on July 15, 2022, and how Plaintiff was unable to purchase a gift card using the website.

Defendant argues Plaintiff does not address Defendant’s specific inquiry about the lack of alt-text on Defendant’s website. This interrogatory is vaguely worded and it is unclear if Defendant wants facts supporting Plaintiff’s allegation that barriers existed because of the lack of alt-text or if Defendant wants facts supporting Plaintiff’s allegation that the website lacked alt-text.

Defendant contends Plaintiff does not address which of the headings were deficient and how they were deficient. The court agrees. The interrogatory asks for facts supporting Plaintiff’s allegation that Plaintiff was required to “expend substantial additional time to access information on multiple Defendant's Website pages because of insufficient navigation headings.” While Plaintiff responds with the fact that Plaintiff is blind and utilizes a screen reader, Plaintiff does not provide any facts about how or which navigational headings were insufficient for Plaintiff’s navigation of the website. (Separate Statement, p. 28:17-27.)

A further response from Plaintiff identifying deficiencies in the website’s navigational headings is required.

Defendant maintains Plaintiff failed to specify which aspect of the checkout system was inaccessible. The court agrees as the interrogatory asks for facts supporting the allegation that the checkout system was inaccessible. Plaintiff’s response does not state how the checkout system in particular was inaccessible for Plaintiff on the occasions Plaintiff visited the website. (Separate Statement, p. 38:4-7.)

A further response from Plaintiff identifying how the checkout system was inaccessible is required.

Defendant argues Plaintiff failed to identify which aspect of the website denied Plaintiff the ability to locate brick-and-mortar locations. The court disagrees as Plaintiff responded that Plaintiff “does not so contend that she was not able to eventually locate and visit a physical restaurant.” Plaintiff states the website’s deficiencies resulted in her “inability to independently place an order for her intended visit . . . .” (Separate Statement, p. 53:8-25.)

Defendant contends Plaintiff failed to specify which dates Plaintiff visited Defendant’s physical locations and which barriers Plaintiff encountered. The court finds that the interrogatory does not ask Plaintiff to identify the dates upon which she visited the website. The interrogatory asks Plaintiff to identify all facts that that support the allegation that Plaintiff “encountered multiple access barriers. . . .” The court finds Plaintiff’s response sufficient. (Separate Statement, p. 54:10-55:11.)

Defendant maintains Plaintiff fails to provide facts and only offers opinion and conjecture. The court disagrees as the interrogatory asks for all facts supporting Plaintiff’s allegation that Defendant “lacks a plan and policy reasonably calculated to make its website fully and

equally accessible to, and independently usable by, blind and other visually-impaired consumers.” Plaintiff’s response provided facts regarding the existence of accessibility barriers and made clear that Plaintiff relies on these barriers to support Plaintiff’s allegation. (Separate Statement, p. 70:7-12.)

Defendant argues Plaintiff failed to provide facts establishing intentional discrimination. The court disagrees as the interrogatory asks for all facts supporting Plaintiff’s allegation that Defendant’s actions “constitute intentional discrimination against you on the basis of a

disability.” As in response to Interrogatory 20, Plaintiff did provide facts regarding the existence of accessibility barriers and made clear Plaintiff relies on these barriers to support Plaintiff’s allegation. (Separate Statement, p. 78:17-23.)

Both parties request the award of sanctions. The court declines to award sanctions to either parties since no party can rightfully be determined to be the prevailing party. Under these circumstance, the court finds an award of sanctions would be unjust as to either party and DENIES both requests.

For the foregoing reasons, Defendant’s motion to compel further is GRANTED IN PART, DENIED IN PART.

Plaintiff is ordered to serve further and complete code-compliant responses to Interrogatories 15 and 17, without objection, within ten (10) days.

[1] While Defendant’s separate statement also addresses Interrogatory No. 16, it is not challenged in Defendant’s motion to compel further and thus not addressed. (Motion, p. 5:15-17.)