Form Interrogatories

The party responding to interrogatories has an obligation to provide responses which are “as complete and straightforward” as possible, which obligates the party to make a “reasonable and good faith effort to obtain the information” from sources within its reach/control. CCP §2030.220. Even if portions of an interrogatory are objectionable, the remaining answerable portion must be substantively addressed. CCP §2030.240; Best Products, Inc. v. Superior Court (2004) 119 Cal.App.4th 1181, 1188-1189; Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 293.

With regard to the original responses, which form the basis for this motion, this Court concludes as follows:

2.5: Plaintiff’s inability to recall home addresses prior to 2012 is unfortunate, but not sufficiently likely to lead to the discovery of admissible evidence to warrant judicial intervention.

2.8: Plaintiff failed to provide a substantive response. In her supplemental response, sufficient information is provided.

4.1: Plaintiff was required to provide a substantive response sufficient to meet Prop 213 requirements, as well information which might pertain to collateral source payments. Her supplemental response is adequate.

6.2: Although a partial response was given, plaintiff’s reliance on the “burdensome compilation” response was without merit since there is no showing or necessity of burden/expense. See CCP § 2030.220; Fuss v. Superior Court (1969) 273 Cal.App.2d 807, 815. Plaintiff’s supplemental response more than covers the inquiry.

6.3: The response is adequate as is.

6.4: The response is adequate as is.

6.5: Plaintiff must provide a substantive response. Plaintiff’s reliance on the “burdensome compilation” response is without merit since there is no showing or necessity of burden/expense. See CCP § 2030.220; Fuss v. Superior Court (1969) 273 Cal.App.2d 807, 815. The supplemental response is not curative.

7.1: Plaintiff should still include the loss amount for the vehicle if a claim for that is being made. Her supplemental response is sufficient.

8.1-8.8: Defendants describe these as not answered, but in fact plaintiff did answer, indicating that she is making a loss wage claim but did not yet have that information available. In her supplemental responses, plaintiff indicates that she was unemployed but might be making a loss wage claim relating to domestic services as a mother of three. Though skeptical, the response is adequate.

9.2: Plaintiff’s response is confusing. Although the 9 Series is not intended for pain and suffering, the medical records are not evidence of pain and suffering. If plaintiff intends to introduce a diary or other writing showing general damages, a further response is needed. Otherwise, none is needed.

10.1: The response “no” is sufficient.

12.1: Reference to the police report was not adequate. Plaintiff’s supplemental response is sufficient since defendant can presumably contact her own co-workers.

12.2: The decision to interview anyone is itself work product. See Nacht & Lewis Architects, Inc. v. Superior Court (1996) 47 Cal.App.4th 214, 217. No further response is necessary.

12.3: Statements obtained from witnesses are work product only if the attorney participated in its preparation; Non-derivative statements may be discoverable. See Nacht & Lewis Architects, Inc. v. Superior Court (1996) 47 Cal.App.4th 214, 217. The supplemental response “no” is adequate.

12.4: Plaintiff must provide a further response to each of the subparts. Her supplemental response is adequate.

17.1: Although the response supporting the denial of RFA 3 leaves much to be desired, that answer is adequately covered by the 6 Series responses which plaintiff has been ordered to supplement.

In Conclusion,

Granted: 6.5, 17.1 (RFA 3)

Granted but moot: 2.8, 4.1, 6.2, 7.1, 8 Series, 12.1, 12.3, 12.4

Denied: 2.5, 6.3, 6.4, 9.2, 10.1, 12.2, 17.1

Sanctions. Many of the original discovery responses were facially inadequate, reflecting lackluster effort by plaintiff’s counsel. Filing the motion to compel was proper. Plaintiff’s counsel had the motion for nearly one month before providing supplemental responses, which cured most of the deficiencies. Plaintiff’s counsel offers no justification for the original responses, or the delayed supplementals. Sanctions therefore are proper.

However, no sanctions shall issue in defense counsel’s favor because – to the extent defendants were seeking further responses beyond merely acquiring a verification – defense counsel failed to satisfy the requisite meet-and-confer effort. The Discovery Act requires that, prior to the initiation of a motion to compel, the moving party declare that he or she has made a reasonable and good faith attempt to obtain an informal resolution of each issue. This rule is designed to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order. Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1293. To qualify as “reasonable and in good faith,” counsel’s meet and confer attempt must be a “serious effort” at negotiation and informal resolution, which “entails something more than bickering” with opposing counsel.” Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1438. It is “more than the mere attempt by the discovery proponent to persuade the objector of the error of his ways … the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.” Clemente, supra, 177 Cal.App.4th at 1294. How much informal “meet and confer” effort prior to filing motions will turn on the circumstances:

“An evaluation of whether, from the perspective of a reasonable person in the position of the discovering party, additional effort appeared likely to bear fruit, should also be considered. Although some effort is required in all instances, the level of effort that is reasonable is different in different circumstances, and may vary with the prospects for success. These are considerations entrusted to the trial court’s discretion and judgment, with due regard for all relevant circumstances.”

Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 432–433.

On 01/09/14, plaintiff served the challenged responses.

On 01/16/14, defense counsel sent a meet and confer letter which threatening judicial intervention if resolution was not achieved within seven days.

Plaintiff’s counsel received the letter over a long holiday weekend, and admits it was not at the top of his to-do list (he misplaced the letter). In a perfectly prudent, professional world defense counsel would have picked up the phone, called plaintiff’s counsel and asked about the meet and confer letter. Defense counsel did nothing to follow-up, and instead raced into court with the motion in hand on the exact day he threatened to file. There was no urgency at all: no trial date set, no pending MSJ, not even appearance of all parties.

Since there was no genuine meet and confer effort, any sanctions to be awarded for prevailing on the motion would be equitably wiped out by sanctions to be imposed for failing to meet and confer.

Production of Documents

Upon receipt of a demand for production of documents, a substantive response must take one of three forms, including a hybrid:

(1) A statement of compliance, which includes the actual documents or a clear indication as to when and how the documents will be provided (CCP §§ 2031.210(a)(1); 2031.220; 2031.280);

(2) A statement of noncompliance based on inability, which must confirm a “diligent search and reasonable inquiry” and the reason for the inability, to wit: the documents never existed, were lost/destroyed, or in the possession of someone else (CCP §§ 2031.210(a)(2); 2031.230);

(3) A statement of noncompliance based on objection, which must describe responsive documents and set forth “clearly” the specific grounds for the objection (CCP §§ 2031.210(a)(3) and (d); 2031.240(b)).

A propounding party unsatisfied with a substantive response may bring a motion to compel under one of two section:

(1) Section 2031.310, which seeks an order compelling a further response (either the writing or the actual production); and

(2) Section 2031.320, which seeks an order compelling documents the responding party already agreed to produce.

Moving party has failed to appreciate the distinction, which is significant. A motion under §2031.310 requires a meet and confer declaration AND a showing of good cause for the documents. CCP §2031.310(b). By contrast, a motion under §2031.320 does not require a meet and confer declaration or good cause. See Standon Co., Inc. v. Superior Court (1990) 225 Cal.App.3d 898, 903. Instead, all that must be shown is that the responding party agreed to produce, but for unknown reasons requires judicial incentive to actually follow through with that promise.

Here, defendants’ motion is a confused hybrid. First, it seeks a verification – which was thereafter provided. Second, it seeks documents which plaintiff agreed to produce, but never did (until after the motions were filed). Third, it purports to seek “further” responses, but the extent of “furthers” is unclear. From the gravamen of the motion, it seems as though defendants wanted a verification and the promised documents, not furthers. Why does this matter? Well, if counsel only wanted verifications and documents promised, his failure to adequately meet and confer (as noted for the form interrogatories) is of no consequence since asking for a verification and documents promised does not require any meet and confer effort. Plaintiff agreed to produce documents responsive to categories 1-7 and 12-15, and within these categories are the ones raised by the motion. A supplemental response was provided with “voluminous documents” that were allegedly not labeled or organized, but neither party has provided a copy of that production for the Court’s consideration.

Notwithstanding these issues, the court orders Plaintiff to provide a supplemental written response clearly indicating whether or not documents were withheld from production, and to provide a privilege log for all such documents.

Sanctions. Failing to include a verification or any documents with the response was clearly improper. Upon receipt of the motion, plaintiff waited nearly a month before providing a verification or documents. There is no substantial justification for the conduct herein. Defense counsel bills at $150/hr, and affirms that he spent at least 4 hours on the motion so far. Sanctions shall issue in the amount of $810 (5 hrs + filing fee), payable in 30 days.

Request For Admissions

Requests for admissions seek to eliminate the need for proof and to set at rest triable issues so that they will not have to be tried. Stull v. Sparrow (2001) 92 Cal.App.4th 860, 865. The responding party has an affirmative duty to “admit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by the responding party.” CCP §2033.220(b)(1).

Here, plaintiff served substantially compliant responses, albeit without a verification. An unverified response is tantamount to no response at all. Melendrez v. Superior Court (2013) 215 Cal.App.4th 1343, 1348. Defendants filed the present motion, seeking to have the unverified denials deemed admissions. Approximately one month after the motion was filed, plaintiff’s counsel provided defense counsel with a verification. Upon so doing, the responses became substantially complaint and no motion to deem the denials admitted could survive. See St. Mary v. Superior Court (2014) 223 Cal.App.4th 762 (jump cite unavailable).

Sanctions. RFAs are unique in that monetary sanctions are mandated if timely compliant responses are not provided. CCP §2033.280(c). Moreover, since an unverified response is no response at all, defense counsel was not obligated to meet and confer beforehand. See Sinaiko Healthcare Consulting v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 411. Although it was inconsiderate to race into Court on such a simple, easily-cured matter, it was defense counsel’s prerogative to do so.

Defense counsel bills at $150/hr, and affirms that he spent at least 3 hours on the motion so far. Sanctions shall issue in the amount of $660 (4 hrs + filing fee), payable in 30 days.