Judge: Salvatore Sirna, Case: 22PSCV00474, Date: 2023-04-12 Tentative Ruling
Case Number: 22PSCV00474 Hearing Date: April 12, 2023 Dept: G
Plaintiff James Rutherford’s Motion to Compel
Defendant Wind Chime Properties, L.P.’s Further Responses to Special
Interrogatories, Set One
Respondent: Defendant Wind Chime Properties, L.P.
Plaintiff James Rutherford’s Motion to Compel Defendant Wind Chime Properties, L.P.’s Further Responses to Requests for Production, Set One
Respondent: Defendant Wind Chime Properties, L.P.
TENTATIVE RULING
Plaintiff James Rutherford’s Motion to Compel Defendant Wind Chime Properties, L.P.’s Further Responses to Special Interrogatories, Set One is GRANTED. Defendant Wind Chime Properties, L.P. is ordered to serve further and complete code-compliant responses without objection on Plaintiff within ten (10) days of the issuance of this order.
Sanctions are awarded to Plaintiff against Defendant in the amount of $400, payable within thirty (30) days of the issuance of this order.
Plaintiff James Rutherford’s Motion to Compel Defendant Wind Chime Properties, L.P.’s Further Responses to Requests for Production, Set One is GRANTED. Defendant Wind Chime Properties, L.P. is ordered to serve further and complete code-compliant responses and privilege logs on Plaintiff within ten (10) days of the issuance of this order.
Sanctions are awarded to Plaintiff against Defendant in the amount of $400, payable within thirty (30) days of the issuance of this order.
BACKGROUND
This is a disability rights action. Plaintiff James Rutherford is physically disabled and relies on mobility devices such as wheelchairs to ambulate. Defendant Wind Chime Properties, L.P. owns property located in Pomona upon which a Family Dollar is located. On March 30, 2022, Plaintiff visited Family Dollar for the purpose of making a purchase and conducting disability access testing. Plaintiff alleges barriers existed in the form of accessible parking spaces not being located on the shortest accessible route.
On May 18, 2022, Plaintiff filed a complaint against Defendant and Does 1-10, alleging violation of the Unruh Civil Rights Act (UCRA).
On February 10, 2023, Plaintiff filed the present motions. A hearing on the motion to compel further responses to special interrogatories is set for April 11 and a hearing on the motion to compel further responses to requests for production is set for April 12. A final status conference is set for June 5 with a jury trial on June 13.
ANALYSIS
Special Interrogatories
Plaintiff moves to compel Defendant to provide an additional response to Plaintiff’s Special Interrogatories Set One, No. 15 on the grounds that Defendant’s objection is without merit. For the following reasons, the court GRANTS Plaintiff’s motion.
Legal Standard
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.”
Discussion
On November 2, 2022, Plaintiff propounded special interrogatories on Defendant. (Fitzgerald Decl., ¶ 2; Orr Decl., ¶ 3.) On December 5, Defendant responded. (Fitzgerald Decl., ¶ 3.) On January 13, 2023, Plaintiff’s counsel sent Defendant’s counsel a meet and confer letter addressing deficiencies in Defendant’s response and had further discussions over the telephone on January 19. (Fitzgerald Decl., ¶ 4-5; Orr Decl., ¶ 4.) On January 25, Defendant provided supplemental responses. (Fitzgerald Decl., ¶ 6.) On February 6, Plaintiff’s counsel sent a meet and confer email to Defendant’s counsel addressing issues with Defendant’s response to No. 15 and received no response. (Fitzgerald Decl., ¶ 7.)
Interrogatory No. 15 requests all dates in which the Pomona property was inspected by a certified access specialist since January 1, 2010. Defendant objects on the grounds that this request seeks attorney work product and is protected by attorney client privilege. The court disagrees as Plaintiff does not seek the reports themselves but rather the dates on which they were conducted. To the extent Defendant asserts certified access specialist reports ordered by Defendant’s counsel are protected by attorney client privilege or the work product doctrine, that is not at issue in this interrogatory. Thus, the court GRANTS Plaintiff’s motion to compel further responses.
Plaintiff also requests the award of sanctions in the amount of $800 for 2 hours of work at $400 an hour. (Fitzgerald Decl., ¶ 8-9.) Because Plaintiff was successful, the court GRANTS Plaintiff’s request.
Utilizing a lodestar approach and in view of the totality of the circumstances, the court awards Plaintiff reasonable attorney fees and costs in the amount of $400 for two hours drafting the motion at $200 per hour.
Requests for Production
Plaintiff moves to compel Defendant to provide additional responses to Plaintiff’s Requests for Production Set One, Nos. 3, 11, 12, and 16. For the following reasons, the court GRANTS Plaintiff’s motion.
Legal Standard
A party may file a motion compelling further production 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., § 2031.310.) The motion shall be accompanied with a meet and confer declaration. (Code Civ. Proc., § 2031.310, subd. (b).) To prevail, the moving party must first offer specific facts demonstrating “good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).) This burden “is met simply by a fact-specific showing of relevance.” (TBG Ins. Services Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 448.) If “good cause” is shown by the moving party, the burden shifts to the responding party to justify any objections made to document disclosure. (Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.)
The court must impose sanctions on a party who unsuccessfully makes or opposes a motion to compel further unless the party acted with substantial justification or other circumstances make imposing a sanction unjust. (Code Civ. Proc., § 2031.310, subd. (h).) However, “absent exceptional circumstances, the court shall not impose sanctions on a party or any attorney of a party for failure to provide electronically stored information that has been lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system.” (Code Civ. Proc., § 2031.310, subd. (j)(1).)
Discussion
On November 2, 2022, Plaintiff propounded a request for production of documents on Defendant. (Fitzgerald Decl., ¶ 2; Orr Decl., ¶ 3.) On December 5, Defendant responded. (Fitzgerald Decl., ¶ 3.) On January 13, 2023, Plaintiff’s counsel sent Defendant’s counsel a meet and confer letter addressing deficiencies in Defendant’s response and had further discussions over the telephone on January 19. (Fitzgerald Decl., ¶ 4-5; Orr Decl., ¶ 4.) On January 25, Defendant provided supplemental responses. (Fitzgerald Decl., ¶ 6.)
Request for Production No. 3
Plaintiff requests all documents showing Defendant’s income for the last five years. Defendant objects to this request on the grounds that it is vague, ambiguous, overly broad, unduly burdensome, irrelevant, privileged, and seeks private financial and proprietary information.
Whether the removal of a barrier pursuant to the ADA is “readily achievable” is an affirmative defense that defendants can raise or waive. (Wilson v. Haria and Gogri Corp. (E.D. Cal. 2007) 479 F.Supp.2d 1127, 1133.) “The term ‘readily achievable’ means easily accomplishable and able to be carried out without much difficulty or expense.” (42 U.S.C. § 12181, subd. (9).) Relevant factors to support this defense include the “overall financial resources” of the facility or covered entity. (42 U.S.C. § 12181, subd. (9).) “The financial resources of owners, lessors, and operators are thus relevant to the issue of whether removing the alleged architectural barriers at the public accommodation is readily achievable.” (Rodriguez v. Barrita, Inc. (N.D. Cal. Nov. 21, 2011) No. 09–04057 RS–PSG, 2011 WL 5854397, *3.)
Here, Defendant asserts a “readily achievable” affirmative defense in its answer. Defendant claims, however, “financial ability” is not relevant because Defendant only claims the costs for removal of the alleged barriers is objectively excessive. However, Defendant’s answer is not so narrowly worded, merely stating such removal “cannot be achieved with minimal burden or expense.” (Answer, p. 4:19-21.) Thus, the court OVERRULES these objections and GRANTS Plaintiff’s motion as to this request for production.
Request for Production No. 11, 12, and 16
While Defendant asserts work product and attorney client privilege to these requests, Plaintiff claims Defendant has failed to provide a privilege log. Pursuant to Code of Civil Procedure section 2031.240, subdivision (c)(1), “[i]f an objection is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.”
Here, Plaintiff requests photographs of the Pomona property and documents relating to inspections by a certified access specialist. Defendant objects to providing a privilege log on the grounds that Plaintiff’s counsel is trying to show counsel investigated or photographed the property. The court rejects this argument as such a showing is not admissible and does not violate attorney client privilege or the work product doctrine. Accordingly, the court GRANTS Plaintiff’s motion with regards to these requests.
Further Responses
Plaintiff also argues Defendant’s further responses to its discovery requests were not properly identified by the request number they were responsive to pursuant to Code of Civil Procedure section 2031.280, subdivision (a). However, Defendant’s counsel has since provided Plaintiff’s counsel with a response that identifies the Bates numbers of the documents produced and the specific request to which the production relates. (Orr Decl., ¶ 9-10, Ex. 1.) Accordingly, the court deems this request MOOT.
Lastly, Plaintiff asserts Defendant failed to provide a verification pursuant to Code of Civil Procedure section 2031.250. It is unclear to the court which response Plaintiff is refers, but to the extent Plaintiff is referring to the most recent supplemental response, the court finds the response was verified. (Fitzgerald Decl., Ex. E, p. 17.) Thus, this request is DENIED.
Sanctions
Plaintiff also requests the award of sanctions in the amount of $800 for 2 hours of work at $400 an hour. (Fitzgerald Decl., ¶ 8-9.) Because Plaintiff was successful, the court GRANTS Plaintiff’s request. Utilizing a lodestar approach and in view of the totality of the circumstances, the court awards Plaintiff reasonable attorney fees and costs in the amount of $400 for two hours drafting the motion at $200 an hour.
CONCLUSION
For the foregoing reasons, Plaintiff’s motion to compel further responses to Special Interrogatories, Set One is GRANTED. Defendant is ordered to serve further and complete code-compliant responses without objection on Plaintiff within (10) days of the issuance of this order.
Sanctions are also awarded to Plaintiff against Defendant in the amount of $400, payable within thirty (30) days of the issuance of this order.
Plaintiff’s motion to compel further responses to Requests for Production of Documents, Set One is GRANTED. Defendant is ordered to serve further and complete code-compliant responses with privilege logs on Plaintiff within (10) days of the issuance of this order.
Sanctions are also awarded to Plaintiff against Defendant in the amount of $400, payable within thirty (30) days of the issuance of this order.