Judge: Steven A. Ellis, Case: 21STCV43096, Date: 2023-11-30 Tentative Ruling

Case Number: 21STCV43096    Hearing Date: November 30, 2023    Dept: 29

Tentative

Plaintiff’s motion to compel further responses is GRANTED.

Plaintiff’s request for monetary sanctions is GRANTED.

Defendant’s request for monetary sanctions is DENIED.

Background

Plaintiff Polin Lee Cheng (“Plaintiff”) alleges that she was injured on May 7, 2021, when she tripped and fell on scrap and/or slabs of marble rock building supplies on certain premises on Valley Boulevard in Rosemead, California.  On November 22, 2021, Plaintiff filed the Complaint in this action asserting a cause of action for premises liability against Defendants Jeannie Shen and Does 1 through 25.

On March 14, 2022, Plaintiff amended her complaint to name Phido Shen, as Trustee of the Shen Revocable Family Trust, as Doe 1.  On September 21, 2022, Plaintiff amended her complaint to name 8755 East Valley Property, LLC (“Defendant”) as Doe 2.

On November 8, 2022, Defendant filed its Answer.

On November 14, 2022, the Court, at the request of Plaintiff, dismissed the claims against Defendants Jeannie Shen and Phido Shen, as Trustee of the Shen Revocable Family Trust, without prejudice.

On September 29, 2023, Plaintiff filed this motion to compel further responses to Form Interrogatory No. 17.1, as it relates to Requests for Admission Nos. 8, 16, and 21.  Plaintiff also seeks sanctions.  Defendant filed its opposition and request for sanctions on November 15, and Plaintiff filed her reply on November 17.

Legal Standard

“On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (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. (3) An objection to an interrogatory is without merit or too general.”  (Code Civ. Proc., § 2030.300, subd. (a).)

Notice of a motion to compel further responses must be given “within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing.” (Id., subd. (c).)

A motion to compel further responses must be accompanied by a meet-and-confer declaration and a separate statement or, in the discretion of the Court, a “concise outline of the discovery request and each response in dispute.” (Id., subd. (b)(1) & (b)(2); Cal. Rules of Court, rule 3.1345.)

“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.”  (Code Civ. Proc., § 2030.300, subd. (d).)

“If a party then fails to obey an order compelling further response to interrogatories, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 ….  In lieu of, or in addition to, that sanction, the court may impose a monetary sanction under Chapter 7 ….”  (Code Civ. Proc., § 2030.300, subd. (e).)

In Chapter 7 of the Civil Discovery Act, Code of Civil Procedure section 2023.030, subdivision (a) provides, in pertinent part, that the court may impose a monetary sanction ordering that any person “engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” A “misuse of the discovery process” includes (among other things) failing to respond or to submit to an authorized method of discovery; making, without substantial justification, an unmeritorious objection to discovery; making an evasive response to a discovery request; disobeying a court order to provide discovery; and making or opposing, unsuccessfully, a motion to compel without substantial justification. (Code Civ. Proc., § 2023.010, subds. (d)-(h).)

Discussion

As a threshold matter, the Court finds that Plaintiff has made a good faith effort to resolve the discovery disputes through the process of meeting and conferring and participating in an informal discovery conference.  (Yorke Decl., ¶¶ 6-12 & Exhs. C-D; Sorkin Decl., ¶¶ 2-3; Orloff Decl., ¶¶ 6-8.)  These efforts have not resolved the parties’ dispute.

Turning to the merits, Form Interrogatory No. 17.1 requests that the responding party state, for each response to a request for admission (“RFA”) that is not an “unqualified admission,” the following: (a) the number of the RFA; (b) all facts upon which the responding party bases its response; (c) the names, addresses, and telephone numbers of all persons with knowledge of those facts; and (d) the identity of all documents that support the response and the identity of the person who has each document.

Requests for Admission Nos. 8 and 16

Plaintiff’s RFA No. 8 requests that Defendant admit that Plaintiff “sustained an injury in the INCIDENT, which is the subject matter of this litigation.”  RFA No. 16 is almost identical and requests that Defendant admit that Plaintiff “sustained injury in the INCIDENT, which is the subject matter of this litigation.”

In response to each of these RFAs, Defendant made various objections and then stated, “Responding Party has made a reasonable inquiry concerning the matter in the request and the information known and readily obtainable is insufficient to enable Responding Party to admit or deny this request.”  That appears to be a code compliant response (see Code Civ. Proc., § 2033.220, subd. (c)), and the Court does not understand Plaintiff to contend otherwise.

In the corresponding request to Form Interrogatory No. 17.1 for each of these RFAs, Defendant asserts various objections and then (a) identifies the RFA; (b) states that “Responding Party lacks sufficient information and knowledge to respond to these requests prior to the completion of additional discovery”; that Defendant “has yet to conduct expert discovery” and Plaintiff “has yet to undergo an independent medical examination”; and that the requests “calls for Responding Party to provide responses as to medical and scientific matters on which expert testimony will be called upon at trial; (c) identifies “Responding Party” as the only person with knowledge; and (d) states that Responding Party is not aware of any supporting documents.  (See Yorke Decl., Exh. D.)

All of Defendant’s objections are OVERRULED.  This includes the general objections stated at the beginning of the response to Form Interrogatory No. 17.1 as well as the objections relating to incomplete discovery and expert testimony; the interrogatory requires Defendant to respond with all information known or reasonably available to Defendant at the time of the response, and the fact that Defendant might obtain additional information later (including through discovery and/or retaining consultants or experts) does not excuse Defendant’s obligation to provide the information currently known or reasonably available to it.

Defendant’s substantive responses are not code compliant. 

As to subdivisions (b) and (d), Defendant provides no indication that it has made a reasonable and good faith effort to obtain responsive information.  (See Code Civ. Proc., § 2030.220, subd. (c).)  The references to the “completion of additional discovery,” expert discovery, and a medical examination in subdivision (b) are evasive at best, as the obligation to respond to an interrogatory includes all information known or reasonably available to the responding party, not just information obtained through formal discovery.  The Court understands that Defendant is asserting that it does not have sufficient information to enable it to admit or deny the corresponding RFAs, but Defendant still must provide all facts known or reasonably available to it at the time of the response, and identify the documents supporting the response, even if that information is partial and not sufficient to allow Defendant to admit or deny the RFA.

Of course, if Defendant truly has absolutely no responsive information (known or reasonably available to Defendant at the time of the response), Defendant may say so, but Defendant must do so in a code compliant manner.

As to subdivision (c), the response is, on its face, evasive and neither complete nor straightforward.  Defendant is an entity, and if it has knowledge (and Defendant says it does), then one or more natural persons must also have that knowledge.  Defendant must identify such persons.

The motion to compel further responses to Form Interrogatory No. 17.1, subdivisions (b), (c), and (d), is GRANTED as it relates to RFAs Nos. 8 and 16.

Requests for Admission No. 21

Plaintiff’s RFA No. 21 requests that Defendant admit that it was “negligent in the use and maintenance of the property at the time of the subject INCIDENT.”

In response to the RFA, Defendant asserts various objections and then states, “Deny.”  That is a complete and straightforward, code compliant response.  (See Code Civ. Proc., § 2033.220, subds. (a) and (b).)

In the corresponding request to Form Interrogatory No. 17.1, Defendant asserts various objections and then (a) identifies the RFA; (b) states that “Responding Party lacks sufficient information and knowledge to respond to these requests prior to the completion of additional discovery”; and that the request “calls for Responding Party to provide responses as to medical and scientific matters on which expert testimony will be called upon at trial; (c) identifies “Responding Party” and “Peggy Tsai, property manager, who can be reached through counsel of record”; and (d) states that Responding Party is not aware of any supporting documents.

All of Defendant’s objections are OVERRULED.  This includes the general objections stated at the response to Form Interrogatory No. 17.1 as well as the objection relating to expert testimony; the interrogatory requires Defendant to respond with all information known or reasonably available to Defendant at the time of the response, and the fact that Defendant might obtain additional information later (including through retaining consultants or experts) does not excuse Defendant’s obligation to provide the information currently known or reasonably available to it.  It is also unclear (at best) as to what “medical” information is needed to address Defendant’s alleged negligence.

Defendant’s substantive responses are not code compliant. 

As to subdivisions (b) and (d), Defendant provides no indication that it has made a reasonable and good faith effort to obtain responsive information.  (See Code Civ. Proc., § 2030.220, subd. (c).)  The reference to the “completion of additional discovery” in subdivision (b) is evasive at best, as the obligation to respond to an interrogatory includes all information known or reasonably available to the responding party, not just information obtained through formal discovery.  Moreover, this interrogatory asks Defendant to provide at least some information about its own conduct, and Defendant has not explained why formal discovery is necessary for it to provide information regarding its own conduct.  Defendant has denied RFA No. 21, and Plaintiff is entitled to substantive answers with regard to all the facts and all documents that support Defendant’s denial.

As to subdivision (c), the response is, on its face, code compliant.

The motion to compel further responses to Form Interrogatory No. 17.1, subdivisions (b) and (d), is GRANTED as it relates to RFA No. 21.

Sanctions

Defendant and its counsel have unsuccessfully opposed a motion to compel and are therefore subject to sanctions.  The Court does not find that Defendant or its counsel acted with substantial justification or that other circumstances make the imposition of sanctions unjust.  (Code Civ. Proc., § 2030.300, subd. (d).)

The Court awards sanctions in the amount of $2,260, calculated as follows: 5.5 hours of reasonable attorney time preparing the motion and supporting papers, reviewing the opposition, preparing the reply, and preparing for the hearing, multiplied by counsel’s billing rate of $400 per hour, plus a $60 filing fee.  (Yorke Decl., ¶ 13.)  The Court bases this award on the information provided by Plaintiff’s counsel in his declaration but also notes that Defendant’s counsel in his declaration states that he has spent or will spend a total of 9 hours of time reviewing Plaintiff’s motion, preparing the opposition, reviewing the reply, and preparing for the hearing.  (Orloff Decl., ¶ 10.)

Defendant’s request for sanctions is denied.

Conclusion

Plaintiff’s motion to compel further responses to Form Interrogatory No. 17.1 is GRANTED.

The Court ORDERS Defendant to provide complete and straightforward, code compliant, verified responses, without objection, to Plaintiff’s Form Interrogatory No. 17.1, subdivisions (b), (c), and (d) as it relates to Plaintiff’s Requests for Admission No. 8 and 16, and to Plaintiff’s Form Interrogatory No. 17.1, subdivisions (b) and (d) as it relates to Plaintiff’s Requests for Admission No. 21, within 21 days of notice of the ruling.

The Court ORDERS Defendant and counsel of record Grant, Genovese & Baratta, LLP, jointly and severally, to pay monetary sanctions to Plaintiff under the Civil Discovery Act in the amount of $2,260 within 21 days of notice of the ruling.

Plaintiff is ordered to give notice.