Case Number: BC697342 Hearing Date: June 18, 2019 Dept: 4A

Motion to Amend Order

The Court considered the moving, opposition, and reply papers and rules as follows.

BACKGROUND

On March 9, 2018, Plaintiff Cynthia Tomlinson (“Plaintiff”) filed a Complaint against Defendants Ralphs Grocery Company (“Defendant” or “Ralphs”) and The Kroger Company for general negligence and premises liability based on a slip and fall that occurred on April 3, 2016.

Trial is set for September 9, 2019.

PARTY’S REQUEST

Plaintiff moves the Court for clarification of its February 20, 2019 discovery order and to stay the order for a period of 30 days pending receipt of such clarification.

LEGAL STANDARD

Pursuant to Code of Civil Procedure §473(d), “The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.”

The Court has power to reconsider or clarify past orders or judgments. (See Le Francois v. Goel (2005) 35 Cal.4th 1094, 1104; see also Chinn v. KMR Property Mgmt. (2008) 166 Cal.App.4th 175, 182.)

DISCUSSION

Plaintiff moves the Court to amend its February 20, 2019 order on Defendant’s motion to compel further responses, to specify how Plaintiff’s responses should be different. Plaintiff asserts that, without this guidance, she will be unable to supply what the Court wishes her to provide and will be stuck in a discovery motion cycle.

Defendant Ralphs the motion arguing that it is an untimely motion for reconsideration and should be denied. The Court disagrees. Plaintiff’s primary request is for an order clarifying, rather than altering, her responsibilities under the February 20, 2019 order. Plaintiff moves under CCP § 473(d) which allows the Court to correct errors in its orders and under its own authority to clarify or modify past orders. The Court denies Plaintiff’s motion under CCP § 473(d), finding there are no errors in the prior order that need correction.

That being said, the Court issues this minute order under its own authority to clarify Plaintiff’s duty to provide complete, code-compliant answers to Defendant’s outstanding discovery, without modifying the prior order.

In its February 20, 2019 order, the Court found that Plaintiff failed to provide “fully code-complaint responses” to Defendant’s document requests numbered 1-5, 8-12, and 25 and ordered her “to serve verified, code-compliant responses to each of these requests within thirty days” of the order.

For such responses to be code-compliant, Plaintiff “shall respond separately to each item or category of item” with a statement of compliance, a representation of an inability to comply and/or objections. (Code Civ. Proc. §2031.210(a). Specifically, a statement of compliance shall “state that the production, inspection, and related activity demanded will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.” (Code Civ. Proc. § 2031.220.) To the extent that Plaintiff is unable to comply fully with a particular demand for inspection, she “shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.” (Code Civ. Proc. § 2031.230.)

The Court also ruled that Plaintiff’s responses to Form Interrogatories 6.4 through 6.7 were not complete responses, including to each of “the subparts of each interrogatory,” and directed Plaintiff “to serve complete, verified responses to form interrogatories 6.4 through 6.7 within thirty days of [the] order.”

With regard to the supplemental responses to form interrogatories attached to Plaintiff’s opposition, Plaintiff must respond to each interrogatory by giving “as complete and straightforward” an answer “as the information reasonably available to you, including the information possessed by your attorneys or agents, permits.” (See DISC-001 Form Interrogatories – General, Section 3, Instructions to the Answering Party). An interrogatory that cannot be fully answered should be answered “to the extent possible,” including a separate answer to each of the subparts of each interrogatory. (Id.)

If the answering party lacks enough personal information to respond, he or she should “say so, but make a reasonable and good faith effort to get the information by asking other persons or organizations, unless the information is equally available to the asking party.” (Id.; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 406; Regency Health Services, Inc. v. Sup. Ct. (1998) 64 Cal.App.4th 1496, 1504). Where responses reveal all information currently available to Plaintiff, but Plaintiff cannot furnish all requested information, then Plaintiff should set forth the efforts made to obtain that information. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 782, superseded by statute on another ground as stated in Guzman v. General Motors Corp. (1984) 154 Cal.App.3d 438, 444.) “Whenever an interrogatory may be answered by referring to a document, the document may be attached as an exhibit to the response and referred to in the response.” (Form Interrogatory Instructions, supra). The interrogatory answers must be verified, dated and signed. (Id.)

The Court, therefore, DENIES Plaintiff’s motion in its entirety. Because the Court provides guidance for Plaintiff’s compliance, there is no need for the requested stay.

Plaintiff is ordered to serve complete, code-compliant and verified responses in compliance with the February 20, 2019 order and the Court’s guidance in this order, within 20 days of this order. To the extent not already done, Plaintiff shall pay the sanctions awarded in the February 20, 2019 order within 10 days of this order.

Plaintiff is ordered to give notice of this order.