Case Number: EC058994 Hearing Date: April 18, 2014 Dept: NCD

Defendant Armen Hacopian’s Motion to Compel Further Responses to Form Interrogatory 17.1 (Set Two) Regarding Requests for Admissions (Set Two)

Defendant Armen Hacopian’s Motion to Compel Further Responses to Form Interrogatory 17.1 (Set Three) Regarding Requests for Admissions (Set Three)

Defendant Armen Hacopian’s Motion to Compel Further Responses to Form Interrogatory 17.1 (Set Four) Regarding Requests for Admissions (Set Four)

Plaintiff’s Motion for a Protective Order that in Lieu of Responding to Excessive Form Interrogatories and Requests for Admissions, Discovery be Undertaken by Deposition

TENTATIVE:
Motions brought by Defendant Armen Hacopian are moot in light of the service of Supplemental Responses on April 7, 2014. Nonetheless, the Court finds that the subject motions were made necessary at least in part by plaintiff’s delay in providing responses to the disputed interrogatories, responses that were not apparently served until April 7, 2014.

(The Court notes that two additional discovery motions are on calendar on 4/25/14 in this case: Defendant’s Motion to Compel Further Responses to Form Interrogatory 17.1 (Set Five); and Defendant’s Motion to Compel Further Responses to Requests for Admission (Sets Two, Three, Four and Five). If one or the other of these motions warrants additional relief, that bridge will be crossed on 4/25/14.)

Monetary sanctions in the sum of $1,950 [$650 (Set Two), $650 (Set Three) and $650 (Set Four)] are awarded in favor of defendant Armen Hacopian and against plaintiff Vahik Meserkhani, payable within 30 days.

It appears that the motion for protective order is also moot in light of plaintiff’s voluntary service of supplemental responses to the discovery for which the protective order is sought. If the motion is not moot, it is DENIED.

ANALYSIS:
Plaintiff’s counsel has submitted a Supplemental Declaration indicating that supplemental responses to the subject discovery were served on April 7 2014. [Ex. 4]. The motions are therefore moot. The Court expects that it will be argued at the hearing that the supplemental responses are not sufficient. However, the parties are now required to further meet and confer and file a meaningful separate statement concerning any deficiencies. Plaintiff is hereby reminded again that any evidence he does not reveal in discovery responses will not be permitted to be admitted at trial. The court awards sanctions against plaintiff for having made these motions necessary, particularly as supplemental responses were served only after opposition was filed, so that there was further unnecessary expense incurred by defendant in preparing reply papers.

With respect to the motion for a protective order, this motion also appears to be moot in light of plaintiff’s service of supplemental responses.

Plaintiff, as the party seeking the protective order, to establish “good cause.” Fairmont Insurance Co. v. Superior Court (2000) 22 Cal.4th 245, 255.

Plaintiff’s argument is basically that since Form Interrogatory No. 17.1 contains multiple subparts as to multiple RFAs propounded in this case, it would be onerous to respond, and much easier to answer at a deposition.

Form Interrogatory 17.1 requests for each request for admission which is not an unqualified admission that, the responding party state the number of the request, the facts upon which the response is based, and the persons who have knowledge of those facts, and identify all documents and tangible things supporting the response, along with information concerning any person who has the document or thing.

Defendant again argues that interrogatories are particularly effective in gathering information concerning contentions, as when preparing responses to interrogatories, a party is under an obligation to provide information from all sources, not just information within the party’s personal knowledge, which is all that is required at deposition.

Under CCP section 2030.220(a), in connection with interrogatories, “each answer in a response shall be as complete and straightforward as the information reasonably available to the responding party permits.” Subdivision (b) provides, “if an interrogatory cannot be answered completely, it shall be answered to the extent possible.” Under subdivision (c), where a party does not have personal knowledge sufficient to answer a question, the party “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.”

It has long been recognized that depositions and interrogatories serve different purposes and provide different levels of binding a party to particular matters. See Coy v. Superior Court (1962) 58 Cal.2d 210, 217-219.

Accordingly, Weil & Brown note that depositions will usually “not be useful in obtaining information supporting a party’s contentions,” as it is improper to ask a deponent to state all facts, witnesses and documents supporting a particular contention. See Rifkind v. Superior Court (1994) 22 Cal.App.4th 1255, 1263. Weil & Brown, Civ. Proc. Before Trial 3:939 (italics in original). Instead, interrogatories will usually be “better suited to discovery of detailed information that a witness may not remember at deposition but that is available to the witness,” such as dates, and specific dollar amounts. Id, at 8:394
Here, the RFAs, particularly sets 3 and 4, consist largely of admissions that “you have no evidence to support your allegation that…” These appear appropriate, and the evidence upon which any denials are based would not necessarily be within plaintiff’s personal knowledge or at his fingertips during a deposition. Defendants are entitled to discovery concerning such evidence to defend against this lawsuit.

Sanctions
Defendant’s Motions–Interrogatories
Moving party seeks sanctions.

CCP § 2030.300 (d) provides that the court “shall impose a monetary sanction…against any party, person, or attorney who unsuccessfully…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.”

Under CCP § 2023.010, misuse of the discovery process includes “(d) failing to respond or to submit to an authorized method of discovery.”; “(e) making, without substantial justification, an unmeritorious objection to discovery”; and “(f) making an evasive response to discovery.” Where there has been a misuse of the discovery process, under Section 2023.030(a), the court “may impose a monetary sanction ordering that one 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.”

Under CRC Rule 3.1348(a): “The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel, even though no opposition to the motion was filed, or the requested discovery was provided to the moving party after the motion was filed.”

In this case, defendant made evasive and incomplete responses, and made the motions necessary, and has failed in his supplemental declaration to establish substantial justification for taking obstructive positions in connection with basic discovery concerning plaintiff’s very serious claims. Sanctions are therefore awarded. The sanctions sought are :
Set Two — $650
Set Three — $650
Set Four — $650

TOTAL: $1,950

The sanctions awarded here are in lesser amounts than those requested by moving party defendant because, while denied, plaintiff’s Motion for Protective Order identified certain burdensomeness issues that support some amount of justification for the delays in responding to the subject contention interrogatories. Moreover, the three discovery motions here are marked by at least some amount of duplication of effort that weighs in favor of reducing the sanctions award under the circumstances. Finally, while contention interrogatories are ordained by the governing discovery rules, it cannot be reasonably disputed that such interrogatories are frequently burdensome as here, and – – even in a situation in which full and complete responses are provided – – do not always yield a “treasure trove” of useful information.

Sometimes, perhaps here, a respondent basically responds to contention interrogatories with responses that collectively basically say to the propounding party, “that’s everything, that’s all there is.” If any given propounding party believes the responses do not support the various contentions in the governing Complaint, such propounding party is presumably then in a position to bring some kind of dispositive motion, or at least is in a position to prepare for trial with the belief that the other side will be unable to meet its burden at trial as to whatever the specific issue might be. Sometimes, under these circumstances, no particularly useful purpose is served by marching on in connection with successive sets of contention interrogatories, further discovery motions, etc. Sometimes, under such circumstances, the utility of marching on in this manner yields very modest results at enormous expense.

As stated several times previously, at least generally speaking, Mr. Meserkhani can properly be cross-examined at trial regarding allegedly inadequate responses to contention interrogatories and other discovery requests. Also, if offers of proof are made at trial on plaintiff Meserkhani’s side, and if it is apparent to the Court that discovery was previously not provided in connection with such offers of proof as required by the discovery rules, any such evidence in support of any such offers of proof presumably will be excluded.

In sum, the Court respectfully suggests to counsel on both sides that perhaps we are approaching the conclusion of the usefulness of these particular, current discovery disputes.

Protective Order
Here, the motion for a protective order is DENIED.