Plaintiffs Marci Higher (“Higer”) and Brad Waisbern (“Waisbern” and collectively “Plaintiffs”) were tenants at the storage facility located at 3421 Gillespie in Acton, CA (the “Property”).  On August 03, 2017, a tumultuous rainstorm resulted in flooding on the Property, damaging Plaintiff’s stored chattels.  On February 02, 2018, Plaintiffs filed a Government Tort Claim with Defendant County of Los Angeles (COLA), which was ultimately denied on May 21, 2018. 

On November 18, 2018, Plaintiffs filed their initial Complaint against COLA and Defendants Los Angeles County of Regional Planning, Los Angeles County Department of Public Works, Los Angeles County Flood Control District, and Los Angeles County Waterworks District No. 37, Acton, alleging ten (10) cause of action sounding in (1) Negligence, (2) Inverse Condemnation; (3) Public Nuisance; (4) Private Nuisance; (5) Premises Liability; (6) Premises Liability–Willful Failure to Warn (Civ. Code § 846); (7)  Trespass; (8) Intentional Infliction of Emotional Distress; (9) Negligent Infliction of Emotional Distress (“NIED”); (10) Dangerous Condition of Public Property–Gov. Code §§ 830–840.6.  Plaintiffs’ principle contention is that the flooding on the property was caused and exacerbated by the design, construction, and maintenance of the county’s neighboring roads and flood water infrastructure, which allegedly carried large amounts of storm runoff directly to Plaintiffs’ property as a de facto catch basin. 

On June 10, 2019, prior to any Answer from any defendant, Plaintiffs filed their first amended complaint (“FAC”), alleging ten (10) causes of action sounding in (1) Inverse Condemnation, (2) Negligence; (3) Public Nuisance; (4) Private Nuisance; (5) Premises Liability; (6) Trespass; (7) Premises Liability–Willful Failure to Warn (Civ. Code § 846) ; (8) NIED; (9) Dangerous Condition of Public Property (Gov. Code §§ 830–840.6); and (10)Violations of the California Public Records Act Request, Gov. Code § 6250 et al.  Plaintiff named only two of the previously named defendants in the initial complaint, COLA and Defendant Los Angeles County Flood Control District (“LAFCD” and collectively “Defendants”). 

On December 12, 2019, the Court sustained Defendants’ Demurrer to Plaintiff’s FAC, with leave to amend.  Plaintiff filed their Second Amended Complaint (“SAC”) on January 10, 2020 alleging four (4) causes of action for (1) Inverse Condemnation (2) Risk of Peculiar Kind (Gov. Code § 815.6); (2) Dangerous Condition of Public Property (Gov. Code §§ 830–840.6); and Violation of the California Public Records Act (Gov. Code § 6250). 

On July 09, 2020 the Court sustained Defendants’ Demurrer to the first, second, and third causes of action, with leave to amend and overruled the demur as to the fourth cause of action.  Plaintiffs filed the Third Amended Complaint (“TAC”) on August 03, 2020 realleging four (4) causes of action for (1) Inverse Condemnation (2) Risk of Peculiar Kind (Gov. Code § 815.6); (3) Dangerous Condition of Public Property (Gov. Code §§ 830–840.6); and (4) Violation of the California Public Records Act (Gov. Code § 6250). 

On October 20, 2020, the Court sustained Defendants’ Demurrer to the first, second, and third causes of action to Plaintiffs’ TAC, providing Plaintiffs with leave to amend. On April 05, 2021, Plaintiffs filed the Fourth Amended Complaint realleging four (4) causes of action for (1) Inverse Condemnation, (2) Violation of Gov. Code § 815.6; (3) Dangerous Condition of Public Property (Gov. Code §§ 830, 835, 835.2); and (4) Violation of the California Public Records Act (Gov. Code § 6250).

On July 16, 2021, the Court sustained Defendants’ Demurrer to the first, second, and third causes of action to Plaintiffs’ Fourth Amended Complaint, providing Plaintiff’s with leave to amend. On October 14, 2021, Plaintiffs filed the Fifth Amended Complaint (“5AC”) realleging four (4) causes of action for (1) Inverse Condemnation, (2) Violation of Gov. Code § 815.6; (3) Dangerous Condition of Public Property (Gov. Code §§ 830, 835, 835.2); and (4) Violation of the California Public Records Act (Gov. Code § 6250).

On December 15, 2021, Defendants filed a Demurrer to Plaintiffs’ 5AC and a Motion to Strike, subsequently overruled and denied, respectively.

On February 18, 2022, Defendants filed their Answer, amended on April 01, 2022.

Informal Discovery Conferences (“IDCs”) were held on August 23, 2022; September 06, 2022; September 13, 2022; and October 04, 2022.

On October 14, 2022, Defendants filed a Motion for Summary Judgment set for hearing on November 19, 2022.

On October 18, 2022, Defendants filed an Ex Parte Application to Continue the Trial Date (“Ex Parte Application”). The Court was dark and the matter was heard in Department A15 on October 19, 2022. The Ex Parte Application was continued to allow it to be head by Judge Morgan in Department A14.

On October 31, 2022, the Court heard Defendants’ Hearing on Ex Parte Application to Continue the Trial Date. The Ex Parte Application was granted and the Motion for Summary Judgment was continued to March 16, 2023.

On October 28, 2022, Defendants filed this instant Motion to Compel Plaintiffs to Provide Further Responses to Form Interrogatory 7.1(C) (Set One) and for Monetary Sanctions (“Motion to Compel Further”).

On November 30, 2022, Plaintiffs filed their Opposition.

On December 06, 2022, Defendants filed their Reply.

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Legal Standard

Standard for Compelling Further Response– Under Cal. Code Civ. Proc. § 2030.300, a court may order a party to serve a further response to interrogatories when the court finds that any of the following apply:¿¿ 

¿ 

1.     An answer to a particular interrogatory is evasive or incomplete.¿¿ 

¿ 

1. An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate.¿¿ 

   ¿ 

1. An objection to an interrogatory is without merit or too general.¿¿¿ 

   ¿ 

   (Cal. Code Civ. Proc. § 2030.300(a).)¿¿ 

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Meet and Confer Requirement¿– Before filing a motion to compel further, the moving party is required to meet and confer with the party to engage in a reasonable and good faith attempt at an informal resolution of each issue presented by the motion. (Cal. Code Civ. Proc. §§ Cal. Code Civ. Proc. § 2030.300(b), 2016.040.) The Court notes that this requirement has been attempted by counsel via meet and confer letter and multiple IDCs were held between the parties to address the outstanding issue of Form Interrogatory 7.1. (Decl. Laura T. Jacobson ¶¶ 6-31.)

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Discussion

The issue presented to the Court is whether the answer given by Plaintiffs to Form Interrogatory 7.1(c), propounded by Defendants, is (1) evasive or incomplete and (2) whether the objections provided by Plaintiffs in their response are without merit or too general.

Defendants present the following timeline:

• Written discovery was propounded on March 18, 2022 (Decl. Laura T. Jacobson ¶ 2).

• Plaintiffs responded on May 2, 2022 with objections.

• On May 20, 2022, defense counsel wrote to Plaintiffs and demanded a further response to Form Interrogatory 7.1(c)

• On June 28, 2022, Plaintiffs responded and continued to object.

• Parties participated in IDCs on August 30, 2022; September 6, 2022; September 13, 2022; and October 04, 2022 as well as continued correspondence with each other.

• On September 8, 2022, Plaintiffs served further responses to Defendants' Form

  Interrogatories (Set One) without a further response to 7.1(c).

(Decl. Laura T. Jacobson ¶¶ 6-31.)

Defendants’ separate statement argues that a response to Form Interrogatory 7.1(c) should be compelled as (1) Plaintiffs bear the burden of providing their damages and (2) Form Interrogatory 7.1(c) requires Plaintiffs to state the evidence that they will have to introduce at trial to prove damages. Defendants separate statement also goes through Plaintiffs’ objections while arguing that the objections are baseless and/or frivolous.

Plaintiffs present that they have responded as fully and completely to Form Interrogatory 7.1(c) as possible, but concede that they have not served “an actual formal response.” (Opposition 4:26-27.) Specifically, Plaintiffs present that they have served verified responses to Defendants’ Special Interrogatories 1, 9, 10 and 11 with information that is currently available regarding the vehicles, a listing of custom Steering Wheels and over 2100 photographs and videos of the subject personal property. Plaintiffs reiterate that there are a multitude of objects in containers, that “[t]he process of inventorying, photographing and valuing the personal property will require months[,]” and, until the inventory has been completed, the information Defendants seek is not “reasonably available” to Plaintiffs as defined under Cal. Code Civ. Proc. §2030.220. (Opposition 5:12-13.)

Plaintiffs believe that Defendants have obstructed the personal property evaluation effort as Defendants wrote to Plaintiff requesting confirmation that “[Plaintiffs] will not remove, destroy, alter or test any evidence related to this case unless you give us reasonable advance notice and an opportunity to be present when any such actions take place[,]” thereby placing Plaintiffs in a position where inventory was requested, but barring Plaintiffs from removing personal property (Exh. F.) Plaintiff presents that they gave notice that they will begin the work of inspecting and documenting the subject personal property, and that Defendants representatives/experts are welcome to attend. (See Exh. 22.) Plaintiffs then present that Defendants responded that they intend to perform an inspection of the subject property and that they would be in contact with dates Exh. 23) and, to date, Defendants have not scheduled any time to view the subject property. It appears Plaintiffs have begun to undertake the task of inventorying their damages. (See Exh. G.)[1]

Plaintiffs also believe that Defendants have presented two opposing arguments by requesting a trial continuance and filing Motion to Compel Further, including a request for a response within 10 days of the Court’s order.

In response, Defendants argue: (1) Plaintiffs admit that they have not responded in full; (2) Plaintiffs admit that they are still compiling a list of the alleged damaged property, even though it has been almost nine months since the discovery requests were originally propounded; (3) Plaintiffs have provided competing stories about their efforts as the Opposition states that they are continuing their efforts to obtain responsive information while Waisbern’s declaration addresses the process of inventorying the damaged property in future tense  (¶­¶ 15-19); and (4) that the special interrogatories answered contain a different request from Form Interrogatory 7.1(c) (description of the damaged items, a description of the damaged vehicles, the identity of the owners of the vehicles, and the state in which the vehicles were registered).

As an initial matter, Defendants’ application for a trial continuance does not preclude the filing of the Motion to Compel Further. The Court has previously granted the trial continuance. This Motion to Compel Further focuses on Plaintiffs’ responses to Form Interrogatory 7.1(c). Accordingly, the Court will only address the arguments applicable to this instant motion.

Form Interrogatory 7.1 reads:

7.1 Do you attribute any loss of or damage to a vehicle or other property to the INCIDENT? If so, for each item of property:

(a) describe the property;

(b) describe the nature and location of the damage to the property;

(c) state the amount of damage you are claiming for each item of property and how the amount was calculated; and

(d) if the property was sold, state the name, ADDRESS, and telephone number of the seller, the date of sale, and the sale price.

(Exh. 1.)

Plaintiffs’ responses have two parts. The General Objections read:

The following general objections are incorporated by reference into each of Plaintiffs specific responses set forth below. By stating specific objections to a particular interrogatory. Plaintiff does not waive or otherwise limit the following General Objections:

1. Plaintiff objects to the Interrogatories to the extent they seek information protected by the attorney-client privilege, the attorney work-product doctrine, the joint-defense privilege, the common-interest privilege, and/or any other applicable doctrine of privilege or immunity.

2. Plaintiff objects to the Interrogatories to the extent they seek information subject to an obligation of confidentiality to a third party or that Plaintiff believes are sensitive or proprietary, or constitute trade secrets, or are otherwise confidential.

3. Plaintiff objects to the Interrogatories to the extent that they seek disclosure of information that is protected from discovery or disclosure by the rights of privacy guaranteed by the California Constitution, the United States Constitution, or any applicable law. By providing any information requested herein. Plaintiff does not waive any privilege or protection that is or may be applicable to such information.

4. Plaintiff objects to the Interrogatories to the extent they purport to impose on Plaintiff any duties and/or responsibilities greater than those imposed by the Court’s orders, the California Code of Civil Procedure, or the California Rules of Court.

5. Plaintiff objects to the Interrogatories to the extent they seek information that does not exist, that is not in Plaintiffs possession, custody, or control, or that is equally available to Defendant.

6. Plaintiff objects to the Interrogatories to the extent they assume the existence of facts or documents that do not exist or the occurrence of events that did no [sic] occur. Any response of Plaintiff to any individual Interrogatory is not intended to be, and shall not be construed as, an admission that any factual predicate stated in or implied by the request is accurate.

7. Plaintiff objects to the Interrogatories to the extent they use words and phrases that are not defined in an understandable manner.

8. Plaintiff objects to the Interrogatories to the extent they seek information not relevant to the claims or defenses of any party to this action; are overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence; and/or seek documents for which the burden or expense of the proposed discovery outweighs any likely benefit in resolving the issues of this action.

9. Plaintiff objects to the Interrogatories to the extent that such Interrogatories to the extent that such Interrogatories are vague, ambiguous, confusing, and contrary to the plain meaning of the terms involved.

10. Plaintiff objects to the Interrogatories to the extent that such Interrogatories do not contain an appropriated restriction on the covered time period as unduly burdensome, unnecessarily broad, and not reasonably calculated to lead to the Plaintiff discovery of admissible evidence.

11. Plaintiff objects to the Interrogatories to the extent that they are premature. Accordingly, additional facts and witnesses may be discovered. Plaintiff reserves the right to use at trial and in any other proceeding in this action any such additional documents, witnesses, facts and evidence that may have been omitted from these responses for one of the foregoing reasons or otherwise. Without obligating Plaintiff to do so. Plaintiff reserves the right to supplement these responses in the future as may be appropriate, to assert additional objections to these Interrogatories as necessary and/or appropriate, and to seek any and all necessary judicial protection.

Without waiving or limiting in any manner any of the foregoing General Objections, but rather incorporating them into each of the following responses to the extent possible, Plaintiff will also state additional objections to the Interrogatories where appropriate, including objection that are not generally applicable to all of the Interrogatories. By setting forth such objections, Plaintiff does not intend to limit or restrict the General Objections set forth above the extent Plaintiff responds to the specific Interrogatories. Stated objections are not waived by providing information, documents or other things.

Plaintiff’s responses are based only upon Plaintiffs current knowledge and reasonable belief. Plaintiff expressly reserves the right to modify and/or supplement any and all of Plaintiffs responses, to assert additional objections to these interrogatories as necessary and/or appropriate, and to seek any and all necessary judicial protection. Nothing in these responses shall be deemed an admission by Plaintiff regarding the existence of any information, the relevant or admissibility or any information, or any purpose, or the truth or accuracy of any statement or characterization.

(Exh. 4.)

The response to Form Interrogatory No. 7.1 reads:

RESPONSE TO FORM INTERROGATORY NO. 7.1:

Yes.

(a) Vehicles, Personal Property and Storage Containers

(b) Underwater, flooded, damaged and destroyed at the subject premises

(c) Objection. Plaintiff incorporates by reference each of general objections stated above. Plaintiff objects to this special interrogatory on the grounds that it is overbroad, vague, unduly burdensome and ambiguous. Without waiving those objections, and subject to those objections, it would be impossible for Plaintiff to describe in detail each item of personal property damaged or destroyed. However, with the exception of a small amount of personal property removed from one 20 ft. container, all of the personal property and vehicles remain at the subject premises and are available for inspection.

(d) Not Applicable - nothing has been sold.

(Id.)

The general objections regarding privilege, privacy rights, and relevance are inapplicable. At issue are the items that have been damaged and the amount of damages. This is directly relevant to the action, does not involve any third party, and does not infringe upon Plaintiffs’ privacy rights.

Regarding General Objection No. 4 (Plaintiff objects to the Interrogatories to the extent they purport to impose on Plaintiff any duties and/or responsibilities greater than those imposed by the Court’s orders, the California Code of Civil Procedure, or the California Rules of Court.), the Court is unsure as to what this objection seeks.

General Objection No. 5 is inapplicable as Plaintiffs’ possessions are not equally available to Defendants. The items do exist as Plaintiffs are claiming damages in the form of damaged property.

General Objections No. 7 and 9 are inapplicable as Form Interrogatory 7.1 is not vague or ambiguous and does not include any undefined terms that would make the interrogatory unable to be understood.

General Objection No. 11 is inapplicable as the amount of damages are essential to this action.

Regarding General Objections No. 8 and 10, while the act of inventorying the damaged property may be burdensome, it is (1) necessary to the action, (2) reasonably calculated to lead to the discovery of admissible evidence, and (3) the proposed discovery has a benefit in resolving the issues of this action. The objection regarding time is inapplicable as the issue at hand is what items at the unit where damaged.

As to Plaintiffs’ statement that “. . it would be impossible for [Plaintiffs] to describe in detail each item of personal property damaged or destroyed. However, with the exception of a small amount of personal property removed from one 20 ft. container, all of the personal property and vehicles remain at the subject premises and are available for inspection[,]” it appears that Plaintiffs are attempting to catalogue the damaged items. (See Plaintiffs’ Separate Statement regarding Special Interrogatories.) As Defendants correctly stated, Plaintiffs bear the burden of proving their damages. Though all property may not successfully be catalogued, Plaintiffs must provide a basis for the damages that they are claiming and that they intend to testify to at trial. That is, if the amount and catalogued items do not come out in discovery, they cannot be presented at trial and Plaintiffs will not be able to proof an element of their case (damages).

While Plaintiffs argues that their responses to Defendants’ Special Interrogatories are “virtually the same” (Plaintiffs’ Separate Statement 7: 24-26), Plaintiffs concede that they did not serve a further response to Defendants’ Form Interrogatory 7.1(c) request. (Opposition 4:26-27.)

It is patent that the response to Form Interrogatory 7.1(c) is incomplete.

Accordingly, the Motion to Compel Further is GRANTED. Due to the large amount of damaged property, as presented by Plaintiffs, the Court requires the response to be given within 20 days of the Court’s order on this motion.

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Sanctions

Defendants request sanctions under Cal. Code Civ. Proc. § n 2023.010(d)-(f) (misuses of the discovery process) and Cal. Code Civ. Proc. § 2030.290(c) (statute governing failure to serve timely responses to interrogatories). Defendants argue that monetary sanctions are warranted as “Plaintiffs' obstructive gamesmanship has caused Defendants to incur significant attorneys’ fees and suffer prejudice in their ability to prepare for trial.” (Motion 8:11-13.)

Defendant requests $12,266.22 in attorney’s fees [Counsel Laura T. Jacobson – 27.7 hrs @ $222.94/hr; Principal Deputy County Counsel Warren R. Wellen – 23.1 hrs @ $262.67/hr].

Plaintiffs argue that they have: (1) complied with the discovery request even in light of the obstruction of the Defendants; and (2) in no way misused the discovery process. Plaintiffs believe that this Motion to Compel Further is not only moot due to the trial continuance, but also defective as Ca. Code Civ. Proc. § 2023.040 requires facts supporting both the motion to compel and the amount of any monetary sanction sought and the declaration of Laura T. Jacobson only addresses the hours and services performed in a general sense.

While Defendants cite Cal. Code Civ. Proc. § 2030.290, the correct governing statute is Cal. Code Civ. Proc. § 2030.300 as this is a motion for an order compelling a further response and not a general motion to compel.

Cal. Code Civ. Proc. § 2030.300(d) reads:

The 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.

Here, given the requests by Defendants to Plaintiffs, the ongoing IDCs, and discussions of joint inspection of the property, the Court understands why there was a delay in inventorying the damaged property. As such, the Court declines to impose monetary sanctions.

However, the Court notes that the inventorying of the damaged property has been a long-standing, ongoing issue. Based on what is presented, the Court emphasizes that Plaintiffs must produce evidence to justify their clamed damages and an issues with the damaged property, such as mold, does not negate Plaintiffs’ duty to inspect the property and their burden to prove their claimed damages.

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Conclusion

Defendants County of Los Angeles and Los Angeles County Flood Control District’s Motion to Compel Plaintiffs to Provide Further Responses to Form Interrogatory 7.1(C) (Set One) and for Monetary Sanctions is GRANTED in part.

Monetary sanctions are DENIED.