Judge: Steven A. Ellis, Case: 22STCV01956, Date: 2023-08-16 Tentative Ruling
Case Number: 22STCV01956 Hearing Date: February 28, 2024 Dept: 29
Defendant’s Motion to Compel Further Response to Special
Interrogatory No. 25
Tentative
The motion is denied.
The request for sanctions is denied.
Background
On
January 18, 2022, Plaintiff Ixsa Orellana (“Plaintiff”) filed a Complaint
asserting causes of action for (1) general negligence and (2) premises
liability against defendants Vive Night Club, Ruben Aguinaga, individually and
dba Vive Night Club, Matrix Entertainment, and Does 1 through 50. In the
Complaint, Plaintiff alleges that on July 11, 2021, she was “walking to a table
at Defendants’ place of business when she slipped and fell on the wet floor,
falling and sustaining bodily injuries including a facial fracture.”
(Complaint, at p. 4.)
On January
26, 2023, Defendants Topanga Entertainment, Inc. (erroneously sued as Vive
Night Club) (“Topanga”) and Ruben Aguinaga (“Aguinaga”) each filed an answer.
(Topanga and Aguinaga are referred to collectively as “Defendants.”)
On September 25, 2023, Defendants served Plaintiff with
Special Interrogatories (Set Two). In this
set, Special Interrogatory No. 25 asked Plaintiff to provide the full name and
contact information for the person identified as “Christine” in Plaintiff’s
deposition, a person for whom Plaintiff testified that she performed house
cleaning services. (Soll Decl., ¶ 3
& Exh. 2.)
On November 3, 2023, Plaintiff served a verified response
stating, “Responding party is unable to provide this information as she is
bound by a confidentiality agreement and cannot lawfully provide this
information.” (Id., ¶ 4 & Exh.
3.)
Defendants sent a meet and confer letter by email on November
6. (Id., ¶ 5 & Exh. 4.). On December 19, Defendants followed up with a
phone and left a message. (Id., ¶
6.)
Defendants filed this motion to compel on December 20, 2023. The hearing was set for February 28, 2024.
On February 5, 2024, the Court conducted an Informal Discovery
Conference (IDC). The dispute was not
resolved.
Plaintiff did not file a timely opposition. On February 21, 2024, Plaintiff served a
verified further response to Interrogatory No. 25, adding some objections and
still stating that she is “unable” to provide the information because of a
confidentiality agreement. (Zeesman
Decl., ¶ 8 & Exh. B.)
On February 23, 2024, Plaintiff filed an untimely opposition
to the motion. On February 26,
Defendants filed a reply.
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, Defendants argue that because Plaintiff’s
opposition was untimely, they have been denied their due process right to
prepare a timely reply. Given the
significance of the matter in dispute, the Court will consider Plaintiff’s
untimely opposition, but, upon Defendant’s request, the Court will continue the
hearing so that Defendants have the full opportunity to prepare and file a written
reply prior to the hearing on the merits.
The Court now turns to the merits of Plaintiff’s opposition.
First, Plaintiff argues that the motion is moot. It is not.
Defendants have propounded an interrogatory and Plaintiff has not
answered it. The dispute remains live.
Second, Plaintiff argues that Defendants did not engage in an
adequate meet and confer effort. This
argument appears to have merit.
Defendants sent one letter, waited until the 45-day time period had
almost expired, placed a phone call, and then filed the next day. This does not appear to be an adequate meet
and confer effort prior to filing the motion, which is a mandatory requirement. (Code Civ. Proc., § 2030.300, subd. (b)(1).)
Although that is a sufficient basis to deny the motion, the
Court will address the other arguments of the parties in an effort to provide a
complete tentative ruling.
Third, Plaintiff argues that her objections are valid, but
that does not appear to be the case. Defendants
are attempting to obtain contact information of a witness. This is a legitimate matter for discovery. The existence of a private agreement between
Plaintiff and a third party does not, in itself, defeat Defendants’ right to
obtain information about potential witnesses under the Civil Discovery Act; a
protective order of some sort might be appropriate, but at this point no none
has proposed such a protective order.
Fourth, Plaintiff argues that counsel agreed that the motion
would be taken off calendar if Plaintiff agreed to Defendants’ request to
continue trial. Plaintiff did not oppose
Defendants’ request, and the Court, on February 20, 2024, granted Defendants’
motion and continued the trial date for approximately 90 days. A review of the correspondence reveals that
the parties discussed an agreement in which Plaintiff would sign a stipulation
to continue trial and, in exchange, Defendants would take this motion to compel
off calendar. (Zeesman Decl., Exh. C.) But no such stipulation was ever filed. Accordingly, it does not appear that there
was ever an agreement to take this motion off calendar.
In sum, the Court DENIES the motion to compel on the ground
that Defendants did not comply with the mandatory requirement to submit a
meet-and-confer declaration with the moving papers.
Plaintiff’s request for sanctions is denied. The Court finds that Defendants have acted
with substantial justification.
Conclusion
The Court DENIES the motion to compel.
The Court DENIES Plaintiff’s request for sanctions.
Moving party is ordered to give notice.