Case Name: Walter S. Newman, Jr. v. Manor Care of Sunnyvale CA, LLC, et al.
Case No.: 18CV330047

I. Background and Discovery Dispute

Walter S. Newman, Jr. (“Plaintiff”) alleges he suffered serious injuries while residing at a nursing home operated by defendants Manor Care of Sunnyvale CA, LLC (“Manor Care”) and HCP Properties, LP (collectively, “Defendants”). Plaintiff alleges Defendants knew he needed staff assistance to walk and engage in weight-bearing activities, even when using his walker, but did not provide him with adequate assistance. He fell twice on June 21, 2017, suffered a spinal cord injury, and is now quadriplegic. In the operative first amended complaint, Plaintiff asserts causes of action against Defendants for: (1) negligence; (2) elder abuse; and (3) violation of the Patients’ Bill of Rights.

Manor Care and Plaintiff have a discovery dispute. On September 28, 2018, Manor Care served Plaintiff with form interrogatories, set one (“FI”) and special interrogatories, set one (“SI”). (Gari Decl., ¶ 3.) Manor Care extended Plaintiff’s time to respond on several occasions such that his responses were ultimately due on December 10, 2018. (Gari Decl., ¶¶ 4–6.) Plaintiff belatedly served Manor Care with unverified responses to the FI and SI on December 12, 2018. (Gari Decl., ¶ 7.) Manor Care raised the lack of a verification as well as issues with the substance of Plaintiff’s responses. (Gari Decl., ¶¶ 8–11.) Plaintiff promised to provide verifications as well as supplemental responses to FI Nos. 6.5, 8.4, 8.7, 8.8, and 10.2 as well as SI Nos. 7–12, 17–20, 24, 26, and 28–30, but he did not follow through on his promise. Consequently, Manor Care filed the present motions to compel further responses to those particular FI and SI and requests an award of monetary sanctions. Although Plaintiff represents he has since provided verifications, the parties still dispute whether his responses to the SI and FI are otherwise sufficient.

II. Discussion

A. Merits of Motions

“The party to whom interrogatories have been propounded shall respond in writing under oath separately to each interrogatory by any of the following: [¶] (1) An answer containing the information sought to be discovered. [¶] (2) An exercise of the party’s option to produce writings. [¶] (3) An objection to the particular interrogatory.” (Code Civ. Proc., § 2030.210, subd. (a); see generally Coy v. Super. Ct. (1962) 58 Cal.2d 210, 216.) “Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits.” (Code Civ. Proc., § 2030.220, subd. (a).) “If an objection is made to an interrogatory or to a part of an interrogatory, the specific ground for the objection shall be set forth clearly in the response.” (Code Civ. Proc., § 2030.240, subd. (b).) “If an interrogatory cannot be answered completely, it shall be answered to the extent possible.” (Code Civ. Proc., § 2030.220, subd. (b).) Similarly, “[i]f only a part of an interrogatory is objectionable, the remainder of the interrogatory shall be answered.” (Code Civ. Proc., § 2030.240, subd. (a).)

“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…[a]n answer to a particular interrogatory is evasive or incomplete[,] [a]n exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate[, or] [a]n objection to an interrogatory is without merit or too general.” (Code Civ. Proc., § 2030.300, subd. (a).) “While the party propounding interrogatories may have the burden of filing a motion to compel if it finds the answers it receives unsatisfactory, the burden of justifying any objection and failure to respond remains at all times with the party resisting an interrogatory.” (Williams v. Super. Ct. (2017) 3 Cal.5th 531, 541.)

1. FI

FI Nos. 6.5, 8.4, 8.7, 8.8, and 10.2 seek information about the injuries Plaintiff suffered and the amount of damages he incurred as a result of his injuries. Plaintiff primarily objected, but did provide some substantive responses to these requests. Manor Care argues Plaintiff’s objections lack merit and his substantive responses are incomplete and improper.
FI No. 6.5 asks Plaintiff for information about the medications he has taken since his injury, and FI No. 10.2 asks him to identify preexisting medical conditions. In response to these interrogatories, Plaintiff cited Code of Civil Procedure section 2030.230, objected on the ground that answering the requests would require preparation of a compilation, and stated Manor Care could ascertain the information from his medical records. This response is not code-compliant, and the points advanced by Plaintiff, which are largely nonresponsive, do not support a contrary conclusion.
Code of Civil Procedure section 2030.230 does not establish a ground for objecting to an interrogatory. Rather, it allows a party to “specify the writings from which the answer may be derived or ascertained” if “the answer to an interrogatory would necessitate the preparation or the making of a compilation, abstract, audit, or summary of or from the documents of the party to whom the interrogatory is directed, and if the burden or expense of preparing or making it would be substantially the same for the party propounding the interrogatory as for the responding party.” (Code Civ. Proc., § 2030.230, italics added.) The “specification shall be in sufficient detail to permit the propounding party to locate and to identify, as readily as the responding party can, the documents from which the answer may be ascertained.” (Code Civ. Proc., § 2030.230.) “A broad statement that the information is available from a mass of documents is insufficient.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 784.)

The Court is not persuaded that these interrogatories require the preparation of a compilation in the first instance. Additionally, Plaintiff does not demonstrate the burden or expense of preparing the compilation would be substantially the same for Manor Care. Also, Plaintiff’s generic reference to medical records without specification is inadequate. Accordingly, Plaintiff’s objections based on Code of Civil Procedure section 2030.230, which in fact appear to be attempts to exercise the option to produce documents, are improper. Further responses to FI Nos. 6.5 and 10.2, without objections, are warranted.

In response to interrogatories asking for the wages and income lost and an estimate of future wages and income that will be lost, namely FI Nos. 8.4, 8.7, and 8.8, Plaintiff cited Code of Civil Procedure section 2034.010 and objected on the basis the interrogatories prematurely call for expert disclosures. Although he did provide some substantive information in response to FI Nos. 8.4 and 8.7, he responded to FI No. 8.8 by simply directing Manor Care to his response to FI No. 8.7.

Plaintiff’s objections to these requests are entirely without merit because the interrogatories do not ask for expert witness information and he does not otherwise provide a reasoned explanation or legal authority to establish the legitimacy of his objections. Otherwise, Plaintiff’s substantive responses are incomplete and evasive. And so, further responses to FI Nos. 8.4, 8.7, and 8.8, without objections, are warranted.

To be clear, Plaintiff must state the wages and income he lost and anticipates losing (to the extent possible), even if he is unable to completely answer each interrogatory. (Code Civ. Proc., § 2030.220, subds. (a)–(b).) To the extent Plaintiff is honestly unable to fully respond at this juncture, he must state as much in his response and comply with Code of Civil Procedure section 2030. 220, subdivision (c). Finally, Plaintiff must separately and completely respond to each interrogatory, including FI No. 8.8, and cannot simply refer to his response to another interrogatory. (Code Civ. Proc., § 2030.210, subd. (a); Deyo, supra, 84 Cal.App.3d at pp. 783–84.)

2. SI

SI Nos. 7–12, 17–20, 24, 26, and 28–30 consist of contention interrogatories and related interrogatories to elicit the witnesses and documentary evidence supporting those contentions. Of these requests, Plaintiff separately responded to SI Nos. 7, 8, and 9. In response to SI Nos. 10, 17–18, 24, 26, and 28, Plaintiff directed Manor Care to his response to SI No. 7. In response to SI Nos. 12, 20, and 30, Plaintiff directed Manor Care to his response to SI No. 9. In response to SI Nos. 11, 19, and 29, Plaintiff directed Manor Care to his response to SI No. 8.

First, because Plaintiff did not separately respond to all of the interrogatories, further responses to SI Nos. 10–12, 17–20, 24, 26, and 28–30 are warranted. Additionally, for the reasons set forth below, Plaintiff must also provide further responses to SI Nos. 7–9.

Plaintiff interposed boilerplate objections to SI Nos. 7–9 on the grounds the requests are vague, overbroad, premature , seek information protected by the attorney-client privilege and work-product doctrine, and seek “equally available information.” (Sep. Stat. at p. 2.) Of these objections, Plaintiff only attempts to justify his objections on the ground the requests are premature. Plaintiff does not cite and the Court is not aware of any authority recognizing such an objection. In actuality, a party must answer an interrogatory to the extent possible, and the inability to completely respond is not a basis for refusing to provide any response. (Code Civ. Proc., § 2030.220, subds. (a)–(c).) Thus, Plaintiff’s prematurity objection lacks merit. In light of this conclusion and because Plaintiff’s remaining objections are undefended, all objections to SI Nos. 7–9 are overruled.

Plaintiff also provided substantive responses to SI Nos. 7–9. For the following reasons, these substantive responses are insufficient.

SI No. 7 asks Plaintiff for the facts supporting his contention that Manor Care was negligent. In response, Plaintiff pasted a portion of his complaint that contains a few facts but otherwise consists of vague allegations, legal contentions, and statements of law. SI No. 7 does not ask Plaintiff for contentions or allegations, it asks for supporting facts. Consequently, Plaintiff’s answer is incomplete and largely nonresponsive. A further response to this request is, therefore, warranted.

SI No. 8 asks Plaintiff to provide the names and contact information for witnesses with knowledge of facts supporting his negligence claim. Plaintiff responded by stating he “identifies himself, his medical care providers, and those employed by defendants, the identities of which are all equally available to the propounding party.” (Sep. Stat. at p. 2.) This answer is incomplete and evasive because Plaintiff does not actually identify witnesses by name and provide their contact information as requested. Additionally, an assertion that information is equally available to the propounding party does not excuse the responding party from answering to the extent possible based on his or her personal knowledge. (See Code Civ. Proc., § 2030.220.) Thus, a further response to this request is warranted.

SI No. 9 asks Plaintiff to identify documents—including their name, date, and author—supporting his contention that Manor Care acted negligently. Plaintiff responded by listing broad categories of documents, such as facility records. Such a response is not complete and straightforward. And so, a further response to this request is warranted.

Based on the foregoing, further responses to SI Nos. 7–12, 17–20, 24, 26, and 28–30—without objections—are required.

3. Conclusion

In consideration of the foregoing, Manor Care’s motions to compel further responses to FI Nos. 6.5, 8.4, 8.7, 8.8, and 10.2 as well as SI Nos. 7–12, 17–20, 24, 26, and 28–30 are GRANTED. Plaintiff shall provide verified, code-compliant responses (see Code Civ. Proc., §§ 2030.220–2030.250)—without objections—within 20 calendar days of the Court’s order.

B. Requests for Monetary Sanctions

Manor Care requests an award of monetary sanctions against Plaintiff and his counsel in connection with each motion to compel for a total of $5,565. Plaintiff opposes these requests.
Under Code of Civil Procedure section 2030.300, subdivision (d): “The court shall impose a monetary sanction…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, Plaintiff unsuccessfully opposed the motions without substantial justification and there are no circumstances that make the imposition of the sanction unjust. Consequently, Manor Care is entitled to an award of monetary sanctions.

Manor Care’s attorney charges a reasonable rate of $225 per hour. He states he spent 9 hours preparing the moving papers for one motion and 11.2 hours for the second motion—which amounts to 20.2 hours—and paid a $60 filing fee for each motion. He also anticipates spending an additional 4 hours to prepare reply briefs and attend the hearing on the motions. The Court does not award sanctions for anticipated expenses. (See Code Civ. Proc., § 2023.030, subd. (a); see also Tucker v. Pac. Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551.) Additionally, the Court finds the hours actually expended are not reasonable under the circumstances given the number of requests, nature of the deficiencies in Plaintiff’s responses, and overlapping issues. Consequently, the Court finds the reasonable attorney’s fees incurred in connection with both motions is a total of $2,520. Plaintiff may also recover his filing fees, which brings the total award to $2,640.

In conclusion, Manor Care’s requests for monetary sanctions are GRANTED. Plaintiff and his counsel shall pay $2,640 to counsel for Manor Care within 20 calendar days of the Court’s order.