Judge: Virginia Keeny, Case: 19VECV01307, Date: 2022-08-19 Tentative Ruling
Case Number: 19VECV01307 Hearing Date: August 19, 2022 Dept: W
ELIZABETH HARANDI V. LINDA HOUSE, ET AL.
MOTION
TO COMPEL FURTHER DISCOVERY RESPONSES
Date
of Hearing: August 19, 2022 Trial Date: November 28, 2022
Department:
W Case No.: 19VECV01307
TAC
Filed: March 29, 2022
Moving Party: Defendant Jessica Thomas
Responding
Party: Plaintiff Elizabeth Harandi
in Propria Persona
Notice: Proper
BACKGROUND
This is a professional malpractice action. Plaintiff alleges that
she hired Defendants Linda House, Law Offices of Galindo & Fox, A
Professional Corporation, Galindo and Fox, a partnership and Marcia Galindo to
represent Plaintiff in a Dissolution of Marriage. Plaintiff alleges that over
the course of the representation, Defendants committed a multitude of negligent
acts including: failing to file a "Keech Declaration " which caused
Plaintiff's motion to be ineligible for attorney's fees, failing to respond as
to how to report Plaintiff's income to the court which caused the court to make
inaccurate and detrimental decision concerning Plaintiff's finances, failing to
inform Plaintiff with required promptness of developments in her case, among
many other alleged negligent acts.
Defendant Marcia Galindo passed away on August 1, 2021. Plaintiff
discovered that Defendant Jessica Thomas was the Trustee of Defendant Marcia
Galindo’s Trust. On March 28, 2022, Jessica
Thomas was substituted in as Defendant as Beneficiary of Defendant Galindo’s
Trust, as Successor-in-Interest.
Plaintiff filed a complaint on September 12, 2019, alleging:
1)
Professional Malpractice
2)
Breach of Fiduciary Duty
3)
Breach of Contract
On Jul1 19, 2022, Defendant Jessica Thomas filed the instant
motion to compel Plaintiff Jessica Thomas further responses to Defendants
Requests for Admissions No. 35 and Special Interrogatories No. 12, All Set One.
This motion is made pursuant to Code of Civil Procedure § 2033.290-2023.010, et
seq.
Defendant also seeks monetary sanctions in the sum of $1,010.28
for each motion.
[TENTATIVE]
RULING:
1. Defendant’s Motions are GRANTED.
DISCUSSION
Meet and
Confer and Separate Statement
Defendant’s counsel attaches a declaration demonstrating that meet
and confer requirements were satisfied.
(Dolce Decl. ¶ 5-7.) Defendant
also filed a separate statement identifying the requests.
Request for
Admissions, No. 35
Defendant moves to compel further responses to Request for
Admissions, No. 35, which read as follows:
“With reference to your dismissal of Linda House from the
above-action with prejudice, as filed March 5, 2021, admit you did not receive
any monetary consideration from Ms. House for that dismissal. [“monetary
consideration,” for purposes of this request, means legal currency of any kind
and in any amount].”
Plaintiff responded to the subject RFA as follows:
Plaintiff objects to this request based on Premature disclosure of
experts: “Objection. The interrogatory seeks premature disclosure of expert
opinion in violation of Code of Civil Procedure sections 2034.210, 2034.220,
and 2034.270. The interrogatory also seeks attorney work-product in violation
of Code of Civil Procedure sections 2018.020 and 2018.030. Plaintiff has not
decided on which, if any, expert witnesses may be called at trial; insofar as
this interrogatory seeks to ascertain the identity, writings, and opinions of
plaintiff experts who have been retained or utilized to date solely as an
advisor or consultant, it is violative of the work product privilege. (See
South Tahoe Public Utilities District v. Superior Court (1979) 90 Cal.App.3d
135 [154 Cal.Rptr. 1]; Sheets v. Superior Court (1967) 257 Cal.App.2d 1 [64
Cal.Rptr. 753]; and Sanders v. Superior Court, (1973) 34 Cal.App.3d 270 [109
Cal.Rptr. 770].)”. It is improper for an interrogatory to seek the identity, writings,
or the opinions of an expert prior to the exchange of expert witnesses. (South
Tahoe Public Utilities io n 12 17 18 19 i will. 20 21 22 23 24 25 26 27 28
District v. Superior Court (1979) 90 Cal.App.3d 135, [154 Cal.Rptr. 1].) 3.)
Plaintiff Objects to this question as a Central Factual issue for trial, (See
Thompson, 152 Wash 2nd at 472). 4.) Plaintiff objects to this question as
premature. She has not fully completed discovery and has not completed trial
preparation. Further discovery, legal research, and analysis may supply
additional information. So the responding party reserves the right to
supplement these responses at trial. 5.) Argumentative: "Objection. This
discovery request as phrased is argumentative. It requires the adoption of an
assumption, which is improper.”
“Without waiving any of the foregoing objections, Responding Party
responds as follows: Plaintiff can neither [sic] admit or deny, there is a
Non-Disclosure [sic] agreement in place, dated 02-25-2021. if [sic] the court
orders me to answer I will.”
Defendant propounded the Request for Admissions, No. 35 on
Plaintiff on May 6, 2022. Defendant requests that the Court overrule these
objections and order Plaintiff to provide a response without objections. Defendant
argues that Plaintiff’s responses bear unmeritorious objections followed by
non-complying answers.
In opposition, Plaintiff argues that
California disfavors discovery of confidential settlement agreements as
contrary to the strong public policy favoring settlements. A Motion to Compel
therefore places Plaintiff in a moral and legal dilemma because if Plaintiff
had complied with request for the information in Request For Admission, No. 35,
Plaintiff would be in breach of her Agreement with Defendant Linda House.
Plaintiff was so advised and believes Plaintiff would be in Breach of that
Nondisclosure agreement. Plaintiff did not to supply that information as good
faith attempt to be compliant with the agreement and the legal advice Plaintiff
was given.
“Unless
otherwise limited by order of the court in accordance with this title, any
party may obtain discovery regarding any matter, not privileged, that is
relevant to the subject matter involved in the pending action or to the
determination of any motion made in that action, if the matter either is itself
admissible in evidence or appears reasonably calculated to lead to the
discovery of admissible evidence.” (Code of Civ. Proc., § 2017.010.) For
discovery purposes, information is regarded as relevant “if it might reasonably
assist a party in evaluating the case, preparing for trial, or facilitating
settlement thereof.” (City of Los Angeles v. Superior Court (2017)
9 Cal.App.5th 272, 288.)
A
motion to compel further responses may be brought based on responses to
requests for admission (“RFA”) that: (1) provide evasive or incomplete answers;
or (2) make unmeritorious or overly generalized objections. (Code Civ.
Proc., § 2033.290(a).) However, a motion to compel further responses
cannot compel the admission of matters already denied. (Holguin v.
Superior Court (1972) 22 Cal.App.3d 812, 821.)
Trial courts
are vested with “wide discretion” to allow or prohibit discovery. (Williams v. Superior
Court (2017) 3 Cal.5th 531, 540.) It has been said that a denial of all
or portion of the request must be unequivocal. (Weil & Brown, Cal. Practice
Guide: Civil Procedure Before Trial (The Rutter Group 2004) ¶ 8:1332.1, p.
8G–16.)
Here,
Plaintiff responded to the RFA stating that, “Without waiving any of the
foregoing objections, Responding Party responds as follows: Plaintiff can
neither [sic] admit or deny, there is a Non-Disclosure [sic] agreement in
place, dated 02-25-2021. if [sic] the court orders me to answer I will.” California
law explicitly permits a party to respond to an interrogatory by stating they
do not have sufficient information to answer. (CCP § 2033.220(b)(3).) In such
cases, however, the party is required to “specify” what aspect of the request
they cannot respond to and must further “state in the answer that a reasonable
inquiry concerning the matter in the particular request has been made, and that
the information known or readily obtainable is insufficient to enable that party
to admit the matter.” (CCP § 2033.220(c).) Plaintiff has failed to comply with
either of these requirements.
Accordingly,
for the foregoing reasons, Defendant’s motion to compel further responses to
requests for admissions is GRANTED as to RFA No. 35.
Special
Interrogatory No. 12
Defendant moves to compel further responses to Request for
Admissions, No. 12, which read as follows:
“With respect to your dismissal of Linda House from this ACTION,
please IDENTIFY what you received from Ms. House in return for that dismissal.
[IDENTIFY for purposes of this Interrogatory means to list: the amount YOU were
paid, if any; the means in which you were paid (by check; money order; Zelle);
the date in which YOU were paid; and whether YOU and Ms. House entered into a
settlement agreement memorializing additional terms relevant to that payment].”
Plaintiff
responded to the subject RFA as follows:
“A Non-Disclosure agreement was signed pertaining to this matter,
I cannot answer this question without violating that agreement. If the Court
Orders me to answer this, I will do so.”
Defendant propounded the Special Interrogatory, No. 12 on
Plaintiff on May 6, 2022. Defendant requests that the Court overrule these
objections and order Plaintiff to provide a response without objections. Defendant
argues that Plaintiff seems to be arguing that whatever agreement she entered
into with House is privileged from disclosure by virtue of a clause contained
within either the agreement itself or a separately executed NDA. Defendant argues that in general, Evidence
Code § 911 and Cal. Code of Civ. Pro. § 2017.010 do not carve out exceptions
for such private contemplations. Defendant argues that what Plaintiff needed to
do, if she actually believed her NDA/settlement agreement was protected from
disclosure, was to “promptly move for a protective order” under Cal. Code of
Civ. Pro. § 2030.090. That way the Court could decide this question. Plaintiff
did not do this, and instead imposed an objection that belies the parameters of
Evidence Code § 911 and Cal. Code of Civ. Pro. § 2017.010.
In opposition, Plaintiff presents
the same arguments argue in her opposing Request for Admission papers.
“[T]he 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 [; or] (3) An objection to an interrogatory is without
merit or too general.” (Code Civ. Proc. § 2030.300.)
The answer to each interrogatory must
be “as complete and straightforward as the information reasonably available to
the responding party permits.” (Code Civ. Proc., § 2030.220(a); Collin v.
CalPortland Co. (2014) 228 Cal.App.4th 582, 590; Ahn v. Kumho Tire U.S.A., Inc.
(2014) 223 Cal.App.4th 133, 145.) An answer is incomplete if it merely
refers to other documents without summarizing them, e.g., “See my deposition,”
or “See the financial statement.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d
771, 783–784 [opinion contains comprehensive list of responses that fail to
fully answer interrogatories].) When an interrogatory cannot be answered
completely, it must be answered to the extent possible. (Code Civ. Proc., §
2030.220(b).)
And if exercising the option to
produce writings in lieu of answering, the responding party must refer to
section 2030.220 and must describe the documents from which an answer may be
obtained in enough detail to permit the propounding party to locate and
identify them as easily as the responding party could. The responding
party must then allow the propounding party a reasonable opportunity to
examine, audit, or inspect the documents, and make copies, compilations,
abstracts, or summaries of them. (Code Civ. Proc., § 2030.230.)
Here,
Plaintiff responded to the Special Interrogatory stating that, “A
Non-Disclosure agreement was signed pertaining to this matter, I cannot answer
this question without violating that agreement. If the Court Orders me to
answer this, I will do so.” Code of
Civil Procedure 2030.220 provides: (a) Each answer in a response to
interrogatories shall be as complete and straightforward as the information
reasonably available to the responding party permits. (b) If an interrogatory cannot be answered
completely, it shall be answered to the extent possible.
“If the responding party does not have personal knowledge
sufficient to respond fully to an interrogatory, that party shall so state, but
shall make a reasonable and good faith effort to obtain the information by
inquiry to other natural persons or organizations, except where the information
is equally available to the propounding party.” (Code Civ. Proc., §
2030.220(c). Plaintiff has not complied with these requirements as to
special interrogatory. Plaintiff must
provide a response that is code compliant (without objections or reservation of
objections). The motion to compel further is GRANTED as to Special
Interrogatory No. 12.
Sanctions
“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).)
Defendant
requests monetary sanctions against Defendant in the sum of $1,010.28 based
upon Defendant’s counsel’s hourly rate of $300.00 for 3.15 hours in preparation
of the motions and for reviewing any opposition, preparing a reply, and
attending the hearing on the motions, plus a filing fee of $68.91 for each
motion. (Dolce Decl. ¶ 10.) The Court denies the request for sanctions as
the court finds that plaintiff’s position was substantially justified.