Steve Tepper vs Alan Noelle Engineering
Case No: 15CV02718
Hearing Date: Wed Jul 24, 2019 9:30

Nature of Proceedings: 3 Motions to Compel Further Responses

TENTATIVE RULING: The motions of defendant 19SIX Architects to compel plaintiff to provide further responses to (1) Requests for Production of Documents, Set Three, (2) Requests for Admission, Set Three, and (3) Form Interrogatories, Set Two, are granted as set forth herein. Defendant 19SIX Architects is awarded monetary sanctions against plaintiff in the sum of $3,400.00. The trial date is ordered continued from August 28, 2019 to October 30, 2019, with all statutory deadlines to correspond with the new trial date.

BACKGROUND:

This is an action for personal injuries, specifically, pulmonary fibrosis, that plaintiff Steve Tepper allegedly sustained while working as the facility manager at the Granada Theatre, located at 1214 State Street in Santa Barbara. The small office (120 square feet) in which plaintiff worked was located in the basement of the building and was the storage facility for approximately sixty industrial batteries used as a backup for the theatre’s electrical system. The batteries allegedly produced toxic vapor believed to be hydrogen sulfide that damaged plaintiff’s lungs. Plaintiff began working at the Granada Theatre in March 2012. In 2007, the Granada Theatre underwent remodeling. Defendant 19SIX Architects, formerly PMSM Architects, Inc. (“19SIX”), provided the plans and specifications for the remodel work. Defendant Alan Noelle Engineering (“ANE”) approved installation of the batteries.

Plaintiff’s first amended complaint, filed on September 8, 2016, alleges causes of action against defendants for negligence and loss of consortium (by plaintiff’s spouse, Noriko Tepper). Plaintiff alleges that 19SIX negligently designed the premises, resulting in an unsafe work environment. Plaintiff alleges that ANE failed to install the batteries in a safe area with proper ventilation and failed to follow the safety precautions recommended by the manufacturer of the batteries. On December 8, 2014, twelve air samples were collected from the basement area and the sulfuric acid concentration was almost six times the normal/safe concentration level. As a result of defendants’ alleged negligence, plaintiff was exposed to toxic material and has had to undergo medical treatment for his respiratory condition.

On February 26, 2019, 19SIX served (1) Requests for Production of Documents, Set Three, (2) Requests for Admission, Set Three, and (3) Form Interrogatories, Set Two, on plaintiff. On April 1, 2019, 19SIX granted plaintiff an extension to April 16, 2019 to respond to the discovery. On May 22, 2019, nearly five weeks after his responses were due, plaintiff provided incomplete and evasive responses to the requests for production of documents, requests for admission, and form interrogatories. After the parties met and conferred, plaintiff promised to provide further information and documents, but nothing since has been produced. 19SIX now moves to compel further responses and for sanctions, both monetary and evidentiary. Defendant also requests a continuance of the August 28, 2019 trial date.

There is no filed opposition to the motions.

ANALYSIS:

1. Requests for Production of Documents, Set Three

“A party may demand that any other party produce and permit the party making the demand, or someone acting on the demanding party’s behalf, to inspect and to copy a document that is in the possession, custody, or control of the party on whom the demand is made.” Code Civ. Proc. §2031.010, subd. (b).

In this case, 19SIX served a third set of requests for production of documents on plaintiff on February 26, 2019. (Hoffman Dec., ¶2, Ex. 1.) After being granted an extension of time to respond, plaintiff served his responses on May 22, 2019, five weeks late. (Hoffman Dec., ¶5, Ex. 2.) 19SIX contends that the responses are incomplete and evasive and moves to compel further responses. The specific requests at issue are the following (defendant’s motion states that Request No. 57 is also at issue, but its separate statement does not include any discussion regarding this request, so the request will not be considered) :

Request for Production No. 46: Produce any and all DOCUMENTS RELATRED TO MEDICAL TREATMENT that YOU have received as a result of the INJURY from January 1, 2016 to the present.

Response: After a diligent search and reasonable inquiry, other than documents that have already been produced in the course of this litigation, Plaintiff is not in possession of additional documents responsive to this request. Discovery is ongoing and Plaintiff reserves the right to supplement this response at a later date.

Request for Production No. 56: Produce any and all DOCUMENTS RELATED TO any settlement agreement that YOU made with the Granada Theater/Santa Barbara Center for the Performing Arts.

Response: Pursuant to the agreement of the parties, the following is the only response this Plaintiff may provide when asked about the claims and/or settlement of the action and the cessation thereof of the action between this Plaintiff and Santa Barbara Center for the Performing Arts and The Granada Theatre: “The matter has been resolved and the resolution confidential.” As such, Plaintiff is unable to produce documents responsive to this request.

(Hoffman Dec., ¶2, Ex. 1; ¶5, Ex. 2.)

Plaintiff claims significant lung damage in this case. In response to Form Interrogatory No. 6.4, plaintiff stated that as a result of his injuries he has continued to receive medical treatment from Dr. Robert Wright, Dr. David Fisk, Cottage Hospital, and Pueblo Radiology, through the present. (Defendant’s Sep. Stm., p. 3:4-6.) The court does not find credible, therefore, plaintiff’s assertion that “after a diligent search and reasonable inquiry” he is not in possession of any documents responsive to this request. (Hoffman Dec., ¶5, Ex. 2.) Plaintiff shall provide a further response, without objection, to Request No. 46. Plaintiff, as the recipient of the medical treatment, certainly has access to his own medical records.

As to Request No. 56, plaintiff objected to producing a copy of his settlement agreement with the Granada Theatre and the Santa Barbara Center for Performing Arts on the ground that the agreement is confidential. (Hoffman Dec., ¶5, Ex. 2.) 19SIX contends that plaintiff waived any objections to the request by failing to provide a timely response. Code Civ. Proc. §2031.300, subd. (a). Plaintiff, however, cannot waive the confidentiality rights of the Granada Theatre and the Santa Barbara Center for Performing Arts with respect to the settlement agreement. To verify that the settlement agreement, in fact, is confidential, plaintiff shall produce a copy of the agreement in camera for the court to review at the hearing on this matter. If the agreement was intended to be confidential, it will not be produced.

2. Requests for Admission, Set Three

“Any party may obtain discovery within the scope delimited by Chapter 2 . . . by a written request that any other party to the action admit the genuineness of specified documents, or the truth of specified matters of fact, opinion relating to fact, or application of law to fact. A request for admission may relate to a matter that is in controversy between the parties.” Code Civ. Proc. §2033.010.

On February 26, 2019, 19SIX propounded a third set of requests for admission on plaintiff. (Hoffman Dec., ¶2, Ex. 1.) Plaintiff served his responses on May 22, 2019, five weeks late. (Hoffman Dec., ¶5, Ex. 2.) 19SIX contends that plaintiff’s responses to the following requests are incomplete and evasive and moves to compel further responses:

Request for Admission No. 34: Admit that the attached Exhibit 183 is an AUTHENTIC copy of an email that YOU received in February 2013 regarding backup battery testing.

Request for Admission No. 35: Admit that the attached Exhibit 184 is an AUTHENTIC copy of an email that YOU received in February 2013 containing evacuation meeting notes.

Request for Admission No. 36: Admit that the attached Exhibit 185 is an AUTHENTIC copy of an email that YOU received in July 2014 regarding the backup batteries in the Production Office.

Request for Admission No. 37: Admit that the attached Exhibit 186 is an AUTHENTIC copy of an email that YOU received in July 2014 regarding the theater’s emergency backup lighting system.

Request for Admission No. 40: Admit that the attached Exhibit 189 is an AUTHENTIC copy of portions of the BATTERY INVERTER User Manual.

Request for Admission No. 41: Admit that the attached Exhibit 190 contains an AUTHENTIC depiction of the BATTERY INVERTER’s Front Panel Display.

Request for Admission No. 42: Admit that YOU saw the BATTERY INVERTER’s Front Panel Display prior to 2014.

Request for Admission No. 43: Admit that YOU saw the BATTERY INVERTER’s Front Panel Display prior to 2015.

Request for Admission No. 48: Admit that YOU filed a Worker’s Compensation claim against YOUR former employerBahia Corinthian Yacht Club that settled in 2012.

Request for Admission No. 53: Admit that YOU smoked TOBACCO PRODUCTS in YOUR 20s (ages 20-29).

Request for Admission No. 54: Admit that YOU smoked TOBACCO PRODUCTS in YOUR 30s (ages 30-39).

Request for Admission No. 55: Admit that YOU smoked TOBACCO PRODUCTS in YOUR 40s (ages 40-49).

Request for Admission No. 56: Admit that YOU smoked TOBACCO PRODUCTS in YOUR 50s (ages 50-59).

Request for Admission No. 64: Admit that YOU have not sought treatment from a mental health professional from 2012 to the present.

Request for Admission No. 65: Admit that YOU have not sought any marriage counseling since 2012.

Request for Admission No. 66: Admit that YOU have done nothing to improve sexual relations with YOUR wife since 2013.

Request for Admission No. 68: Admit that the first time YOU investigated the Production Office ventilation was at least one (1) year after YOU first perceived a lack of ventilation in that office.

Request for Admission No. 72: Admit that YOU never searched for the key to the BATTERY CABINET prior to 2014.

Request for Admission No. 74: Admit that YOU were exposed to cleaning solvent fumes prior to 2014.

Request for Admission No. 75: Admit that YOU were exposed to cleaning solvent fumes prior to 2015.

Request for Admission No. 76: Admit that YOU were exposed to paint fumes prior to 2014.

Request for Admission No. 77: Admit that YOU were exposed to paint fumes prior to 2015.

Request for Admission No. 81: Admit that YOU were curious what was inside the BATTERY CABINETS prior to the date that YOU picked the BATTERY CABINET locks.

Request for Admission No. 86: Admit that YOU have not sought employment since 2015.

Request for Admission No. 92: Admit that the attached Exhibit 191 is an AUTHENTIC copy of an email between Kate Kurlas and Zander Furlong that contains a preventative maintenance annual schedule.

(Hoffman Dec., ¶2, Ex. 1.)

In response to each of these requests, plaintiff answered: “Plaintiff can neither admit nor deny.” (Hoffman Dec., ¶5, Ex. 2.) This is not a proper response. For each response to a request for admission, the responding party must (1) admit so much of the matter involved in the request as is true, (2) deny so much of the matter involved in the request as is untrue, and/or (3) specify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge. Code Civ. Proc. §2033.220, subd. (b). If a responding party lacks sufficient information or knowledge to answer a request for admission, that party must 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.” Code Civ. Proc. §2033.220, subd. (c).

Here, plaintiff failed to admit, deny, deny only so much of the matter involved in the request as is untrue, or state that he lacks sufficient information or knowledge to answer the particular request for admission. He also failed to state that he made a reasonable inquiry concerning the matter. Plaintiff shall therefore provide further responses to each of the above requests for admission, without objection and with code compliant responses.

3. Form Interrogatories, Set Two

“Any party may obtain discovery . . . by propounding to any other party to the action written interrogatories to be answered under oath.” Code Civ. Proc. §2030.010, subd. (a). “An interrogatory may relate to whether another party is making a certain contention, or to the facts, witnesses, and writings on which a contention is based. Code Civ. Proc. §2030.010, subd. (b). “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 interrogatory cannot be answered completely, it shall be answered to the extent possible.” Code Civ. Proc. §2030.220, subd. (b).

On February 26, 2019, plaintiff was served with 19SIX’s Form Interrogatories, Set Two. (Hoffman Dec., ¶2, Ex. 1.) 19SIX contends that plaintiff’s response to Form Interrogatory No. 6.5 is evasive and incomplete because plaintiff failed to state for “each medication” he is taking the person who prescribed it, the date it was prescribed, the dates he began and stopped taking it, and the cost to date. Form Interrogatory No. 6.5 and plaintiff’s response are as follows:

Form Interrogatory No. 6.5: Have you taken any medication, prescribed or not, as a result of injuries that you attribute to the INCIDENT? If so, for each medication state:

(a) The name;

(b) The PERSON who prescribed or furnished it;

(c) The date it was prescribed or furnished;

(d) The dates you began and stopped taking it; and

(e) The cost to date.

(Hoffman Dec., ¶2, Ex. 1.)

Response: Yes.

(a) Prednisone, Vericonazole, Posaconazole, Noxifil, and over the counter pain relief Aleeve;

(b) David Fisk, M.D. and Robert Wright, M.D.;

(c) Plaintiff has been prescribed various medications since first treating for his injuries in July of 2014;

(d) Plaintiff does not know the exact dates he has taken each drug;

(e) Plaintiff is unsure of the cost to date; with respect to the over the counter pain relief, about $20 per month for the last three years.

(Hoffman Dec., ¶2, Ex. 2.)

The court agrees that plaintiff’s response is not code compliant. Code of Civil Procedure Section 2030.220, subdivision (a), requires plaintiff to provide a “complete and straightforward” response to each interrogatory based on information reasonably available to him. Instead, plaintiff has left 19SIX to guess which medications, if any, he continues to take and the amount he intends to claim as special damages related to medications. Plaintiff is therefore ordered to provide a further response to Form Interrogatory No. 6.5 for each medication he has taken as a result of the injuries he attributes to the events in this case.

Defendant contends that plaintiff’s response to Form Interrogatory 17.1 is likewise deficient. The form interrogatory reads:

Form Interrogatory No. 17.1: Is your response to each request for admission served with these interrogatories an unqualified admission? If not, for each response that is not an unqualified admission:

(a) State the number of the request;

(b) State all facts upon which you base your response;

(c) State the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of those facts; and

(d) Identify all DOCUMENTS and other tangible things that support your response and state the name, ADDRESS, and telephone number of the PERSON who has each

DOCUMENT or thing.

(Hoffman Dec., ¶2, Ex. 1.)

In response to Requests for Admission Nos. 26-28, 34-37, 40-43, 53-57, 59-69, 72-77, 86, 89, and 90, plaintiff either denied the request or stated that he could “neither admit nor deny” it. However, in response to Form Interrogatory No. 17.1 regarding these requests, plaintiff provided no meaningful information, stating instead “unknown at this time” or “plaintiff does not recall at this time.” (Hoffman Dec., ¶2, Ex. 3.) For example, Request for Admission No. 34 asked plaintiff to “Admit that the attached Exhibit 183 is an AUTHENTIC copy of an email YOU received in February 2013 regarding backup battery testing.” Plaintiff responded, “Plaintiff can neither admit nor deny.” In response to Form Interrogatory 17.1 regarding this request, plaintiff responded, “Unknown at this time.” (Ibid.) Request for Admission No. 89 asked plaintiff to “Admit that YOU were prescribed a bronchodilator by a medical professional in or before 2012.” Plaintiff denied the request. In answer to Form Interrogatory No. 17.1 regarding this request, plaintiff responded, “Plaintiff does not recall at this time.” (Ibid.)

Plaintiff’s response to Form Interrogatory 17.1 is plainly deficient as he fails to provide any factual support for his decision to deny certain requests for admission and his inability to admit or deny others. When responding to interrogatories, plaintiff is required to provide “[a]n answer containing the information sought.” Code Civ. Proc. §2030.210, subd. (a)(1). If an interrogatory cannot be answered completely, “it shall be answered to the extent possible.” Code Civ. Proc. §2030.220, subd. (b). Plaintiff has not done that. As noted above, plaintiff claims ignorance regarding email communications that were sent to him while working as the facility manager at the Granada Theatre, as well as an inability to recall whether he was prescribed a bronchodilator for his lungs prior to 2012. Accordingly, plaintiff is ordered to provide a further response to Form Interrogatory No. 17.1 regarding Requests for Admission Nos. 26-28, 34-37, 40-43, 53-57, 59-69, 72-77, 86, 89, and 90.

4. Sanctions

Code of Civil Procedure Section 2023.030 authorizes the trial court to impose a monetary sanction and/or an evidence sanction against any party “engaging in the misuse of the discovery process.” Code Civ. Proc. §2023.030, subds. (a) and (c). A “misuse of the discovery process” is defined in Code of Civil Procedure Section 2023.010 to include the following:

“(d) Failing to respond or to submit to an authorized method of discovery.

“(e) Making, without substantial justification, an unmeritorious objection to discovery.

“(f) Making an evasive response to discovery.”

Here, plaintiff has failed to provide complete and accurate responses to requests for production of documents, requests for admission, and form interrogatories. 19SIX is therefore awarded monetary sanctions in the sum of $3,400.00 against plaintiff and his attorney, jointly and severally, for reasonable attorney’s fees and costs associated with the filing of these three motions. (Hoffman Dec., ¶17.) The monetary sanctions shall be paid within ten days of the date of this order. The court declines to impose any evidence sanctions at this time.

5. Trial Continuance

The court may grant a continuance of the trial date upon “an affirmative showing of good cause requiring the continuance.” Cal. Rules of Court, Rule 3.1332, subd. (c). Good cause includes “[a] party’s excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts.” Cal. Rules of Court, Rule 3.1332, subd. (c)(6). Here, good cause exists to continue the trial date due to plaintiff’s failure to provide basic and straightforward information regarding the nature and extent of his injuries, medical history, and work history.

The trial date is ordered continued sixty (60) days, from August 28, 2019 to October 30, 2019, with all statutory deadlines to correspond with the new trial date.