Case Number: 18STCV20652 Hearing Date: February 10, 2020 Dept: 32

Superior Court of California
County of Los Angeles
Department 32

charles e. davies,

Plaintiff,

v.

UNION PACIFIC RAILROAD, et al.

Defendants.

Case No.: 19STCV20652

Hearing Date: February 10, 2020

[TENTATIVE] order RE:

(1) motion to compel further responses to Form Interrogatories, set one

(2) motion to compel further responses to special interrogatories, set one

(3) motion to compel further responses to requests for production of documents, set one

(4) motion to compel further responses to requests for admission, set one

BACKGROUND

Plaintiff Charles E. Davies (“Plaintiff”) commenced this action against Defendant Union Pacific Railroad (“Defendant”) on June 13, 2019. The operative pleading is the First Amended Complaint (“FAC”) filed on July 8, 2019. The FAC asserts a single cause of action for violation of the Federal Employers Liability Act (“FELA”). The FAC alleges in pertinent part as follows.

Plaintiff was employed by the Defendant as a fireman from 1962 to 1963 and as a brakeman/conductor from 1969 to 2009. During the course and scope of his employment with Defendant, Defendant’s negligent conduct caused Plaintiff to be exposed to various toxic substances and carcinogens including diesel fuel/exhaust, benzene, creosote, and rock/mineral dust and fibers. This exposure caused Plaintiff to develop kidney cancer. By this action, Plaintiff seeks all damages recoverable under the FELA.

DISCUSSION

Motions to Compel Further re: Interrogatories

Defendant moves to compel Plaintiff to provide further responses to Defendant’s Form Interrogatories (“FI”), Set One, Nos. 2.5, 6.2-6.7, 10.1, and 17.1 and Special Interrogatories (“SI”), Set One, Nos. 4, 12, 20, 26, 32, 38, 44, 47-48, 51-53, 55, and 56.

A. Legal Standard

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 (1) an answer to a particular interrogatory is evasive or incomplete, (2) an exercise of the option to produce documents under CCP section 2030.230 is unwarranted or the required specification of those documents is inadequate, or (3) an objection to an interrogatory is without merit or too general. (CCP § 2030.300(a).) The responding party has the burden of justifying the objections thereto. (Coy v. Sup.Ct. (1962) 58 Cal.2d 210, 220-221.)

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. (CCP § 2030.300(d).)

B. FI Analysis

1. FI No. 2.5

FI No. 2.5 asks Plaintiff to state (a) his present residence address, (b) his residence addresses for the past five years, and (c) the date he lived at each address. Plaintiff responded: “a. through c. 3340 NFM 1753, Windom, Texas 75492 for the past year; prior to that, 5539 Joshua St., Hesperia, California 92345.”

Defendant argues that this response is evasive and incomplete because it fails to provide the dates Plaintiff lived at the Hesperia residence and does not indicate whether Plaintiff has lived at this residence for the past five years. The Court agrees. This straight-forward interrogatory consists of three parts. Plaintiff only answered two parts, and those answers were incomplete and vague. A further response is required.

Plaintiff responds that his answer is clear: Plaintiff “has lived at a specific address in Texas for the past year and before that lived at a specified address in Hesperia — obviously during the rest of the five-year period.” The Court is unpersuaded. The response provided does not convey this information.

2. FI Nos. 6.2-6.7

FI Nos. 6.2-6.7 request information about Plaintiff’s alleged injuries and medical treatment. In response to each interrogatory, Plaintiff exercised the option to produce writings under CCP section 2030.230.[1]

Plaintiff’s responses are deficient for two reasons. First, exercising the option to produce writings under CCP section 2030.230 is only proper where “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 “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.” These straight-forward interrogatories about Plaintiff’s injuries and medical treatment do not necessitate such a compilation/summary, and the burden of making the same is presumably less onerous for Plaintiff, the party claiming injury.

Second, Plaintiff waived the right to exercise this option by serving untimely responses to the interrogatories. (CCP § 2030.290(a).) Specifically, Defendant mail-served Plaintiff with the written discovery at issue on July 19, 2019. (Panagos Decl. ¶ 3, Ex. B.) Plaintiff’s deadline to respond was August 23, 2019. (CCP §§ 1013, 2030.260(a).) On August 13, 2019, Defendant’s counsel agreed to extend this deadline by two weeks, i.e., to September 6, 2019. (Panagos Decl. ¶ 4, Ex. C.) On September 6, 2019, Plaintiff’s counsel requested an extension until September 9, 2019, but there is no evidence that this request was granted. (Panagos Decl. ¶ 5, Ex. D; CCP § 2030.270(b) (requiring a writing to extend date for service of a response).) Plaintiff served his responses on September 9, 2019. (Panagos Decl. ¶ 6, Ex. E.) Because Plaintiff’s responses were untimely, Plaintiff cannot exercise the option to produce writings under CCP section 2030.230.

Further responses are required.

3. FI No. 10.1

FI No. 10.1 asks Plaintiff whether he had any injuries prior to the incident that involved the same part of his body claimed to have been injured in the incident and, if so, to provide information about those injuries. Plaintiff responded “No.”

Defendant asserts that this response is evasive and incomplete because “it is clear that Plaintiff did have such injuries but refuses to provide a response.” The Court disagrees. Plaintiff’s response is adequate, albeit terse. Plaintiff is stating that prior to the incident, he had no complaints or injuries that involved the same parts of his body claimed to have been injured in the incident. Plaintiff therefore has no additional information to give.

No further response is required.

4. FI No. 17.1

FI No. 17.1 asks Plaintiff to provide certain information about every qualified admission that he gave in his RFAs. FI No. 17.1 asks Plaintiff to note for each qualified admission (1) the number of the request, (2) the facts upon which he based his response, (3) the contact information of persons who have knowledge of those facts, and (4) the identification of documents that support his response and the contact information for those who possess each document. In response, Plaintiff listed (1) RFA Nos. 1-21, (2) several paragraphs reiterating the claims made in this action, (3) his wife Barbara, and (4) his exercise of the option to produce writings pursuant to CCP section 2030.230.

Plaintiff’s response is inadequate because it clearly fails to answer each of the various subparts of this interrogatory. A further response is required.

C. SI Analysis

1. SI Nos. 4, 12, 20, 26, 32, 38, 44,

SI Nos. 4, 12, 20, 26, 32, 38, and 44 request the identification of writings known to Plaintiff that contain information pertinent to his claims. Plaintiff responded to each of these interrogatories with an objection that “the interrogatory calls for premature expert discovery.”

Plaintiff’s objection is without merit. As noted ante, Plaintiff waived objections by filing an untimely response. Moreover, Plaintiff has not explained how the identification of writings necessarily calls for premature expert discovery. As Defendant notes, these requests “do not seek the identification of expert witnesses nor any expert opinions.” If Plaintiff does not possess the writings requested, Plaintiff must so state in a code-compliant discovery response.

Further responses are required.

2. SI Nos. 47-48

SI No. 47 asks Plaintiff to identify “each and every of your employers by setting forth the name of the employer, the year(s) during which you worked at each employer, and your job title and/or a brief description of your job duties.” Plaintiff responded: “Defendant, whose address is equally or better known to propounding party; U.S. Navy.”

SI No. 48 asks Plaintiff to “set forth the branch of military in which you served, the year or years you served, a brief description of your job duties, and what type of discharge you received.” Plaintiff responded: “U.S. Navy, 1961-63, honorable discharge; worked on a ship.”

Defendant argues that Plaintiff’s responses are incomplete and evasive. The Court concurs. For SI No. 47, Plaintiff was asked to identify each of his employers, the years worked for each employer, job titles, and a brief description of job duties. Plaintiff only identified one employer with no other supportive information. For SI No. 48, Plaintiff was asked (among other things) to provide a “brief description of [his] job duties.” Plaintiff’s response that he “worked on a ship” is too vague and evasive.

Further responses are required.

3. SI Nos. 51-53

SI No. 51 asks Plaintiff to identify health care providers where he has sought treatment for any purpose. SI Nos. 52-53 ask Plaintiff to identify health care providers where he has sought treatment for cancer and exposure to toxic substances.

In response to each interrogatory, Plaintiff stated that he would exercise the option to produce writings pursuant to CCP section 2030.230. Plaintiff also responded that SI Nos. 51 is irrelevant, burdensome, and harassing.

Plaintiff’s responses are without merit because he has waived objections and the right to produce writings pursuant to CCP section 2030.230. Plaintiff also cannot exercise the right to produce writings because Plaintiff is simply being asked to identify health care providers.

Further responses are required.

3. SI No. 55

SI No. 55 asks Plaintiff to set forth the frequency with which he consumes alcohol. Plaintiff responded that the information requested is irrelevant. According to Plaintiff “there is no known link between alcohol and leukemia.”

Plaintiff’s response is without merit because he waived objections by serving untimely responses. Further, as Defendant notes, Plaintiff has placed his health at issue so this request concerning alcohol consumption, which can have negative health repercussions, is reasonably calculated to lead to the discovery of admissible evidence.

A further response is required.

4. SI No. 56

SI No. 56 asks Plaintiff to set forth the address of each residence at which he has ever lived. Plaintiff responded that the interrogatory is irrelevant, burdensome, and harassing.

Plaintiff’s response is without merit because he waived objections by serving untimely responses. Further, as Defendant notes, Plaintiff’s residential history is relevant because it may indicate whether alternative exposures, such as household radon contamination, are responsible for Plaintiff’s condition.

A further response is required.

D. Conclusion

Defendant’s motion to compel Plaintiff to provide further responses to FI, Set One, Nos. 2.5, 6.2-6.7, and 17.1 is GRANTED.

Defendant’s motion to compel Plaintiff to provide further responses to SI, Set One, Nos. 4, 12, 20, 26, 32, 38, 44, 47-48, 51-53, 55, and 56 is GRANTED.

Motion to Compel Further re: Document Requests

Defendant moves to compel Plaintiff to provide further responses to Defendant’s Requests for Production of Documents (“RPD”), Set One, Nos. 1, 2, 8, 11, and 21. In reply, Defendant withdrew the motion as to RPD No. 8.

A. Legal Standard

On receipt of a response to an RPD, the demanding party may move for an order compelling further responses to the demand if the demanding party deems that (1) a statement of compliance with the demand is incomplete, (2) a representation of inability to comply is inadequate, incomplete, or evasive, or (3) an objection in the response is without merit or too general. (CCP § 2031.310(a).)

Motions to compel further responses to RPDs must set forth specific facts showing good cause justifying the discovery sought by the request. (CCP § 2031.310(b).) To establish good cause, a discovery proponent must identify a disputed fact that is of consequence in the action and explain how the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact. (Digital Music News LLC v. Superior Court (2014) 226 Cal.App.4th 216, 224 disapproved on other grounds by Williams v. Superior Court (2017) 3 Cal.5th 531; see also Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98 (characterizing good cause as “a fact-specific showing of relevance”).) If good cause is shown by the moving party, the burden shifts to the responding party to justify any objections made to disclosure of the documents. (Kirkland, supra, 95 Cal.App.4th at 98.)

B. Analysis

1. RPD No. 1

RPD No. 1 asks for “all documents relating in any way to any Social Security Administration benefits, Veterans Administration benefits, unemployment compensation benefits, workers’ compensation benefits, life, health or disability insurance, or other benefits received or applied for by [Plaintiff] at any time.” In response, Plaintiff objected based on the collateral source rule. Plaintiff also represented that he would produce Veterans Administration documents in his possession, custody, and control but that he had no documents to produce relating to Social Security, unemployment compensation, workers’ compensation, or life, health, or disability insurance because he did not receive such benefits.

Defendant claims that Plaintiff has not complied with his partial statement of compliance as he has not produced responsive Veterans Administration documents. Plaintiff responds that he produced documents to Defendant on a CD. In reply, Defendant acknowledges receipt of the CD but asserts that this CD does not contain any documents responsive to this RPD. None of Defendant’s assertions are backed by sworn statements.

Given the lack of evidence on this issue, the Court will not order Plaintiff to comply with his partial statement of compliance. However, if Plaintiff fails to cure any incompliance with his statement of compliance after the hearing on this motion, the Court invites Defendant to bring a motion under CCP section 2031.320. Unlike a motion to compel further under CCP section 2031.310, a motion to compel compliance under CCP section 2031.320 has no time limitations.

2. RPD No. 2

RPD No. 2 asks for “any and all documents, articles, publications, studies, reports, texts or treatises upon which you, or any witness acting on behalf of you, will rely on to establish your allegations against defendant.” In response, Plaintiff objected on the ground that the request sought “premature expert discovery.” Plaintiff also represented that he would produce “all responsive non-expert documents in [his] possession, custody and control and/or an authorization that will enable [D]efendant to obtain them.”

Initially, Defendant reiterated that Plaintiff had not supplied Defendant with responsive documents. In reply, Defendant acknowledges that the CD produced by Defendant contains responsive documents. Defendant maintains, however, that Plaintiff’s objection is meritless because these documents are discoverable and not protectable work product of an expert.

The Court agrees with Defendant that Plaintiff’s objection is meritless. Plaintiff must produce any documents withheld pursuant to this objection.

3. RPD No. 11

RPD No. 11 asks for “all documents which support a claim that you were exposed to diesel fuel/exhaust, benzene, creosote, and rock/mineral dust and fibers, or any other alleged toxic substance and carcinogen while working at Union Pacific.” In response, Plaintiff objected that “the request seeks premature expert discovery.”

Plaintiff’s objection is without merit. As noted ante, Plaintiff waived the right to interpose objections and this request also does not reasonably seek “premature expert discovery.” If Plaintiff has no responsive documents, Plaintiff must give a code-compliant response. (CCP §§ 2031.210, 2031.230 (statement of inability to comply).)

A further response is required.

4. RPD No. 21

RPD No. 21 asks for “any and all documents, writings, or records that evidences, describes, notes, or relates to [his] employment with any employer.” In response, Plaintiff objected to this request as irrelevant, burdensome, and harassing. While Plaintiff has waived objections by not serving timely responses, the Court nonetheless agrees that this request is overbroad. This request conceivably asks for thousands of documents which have no bearing on this case. No further response is required for this request.

C. Conclusion

Defendant’s motion to compel Plaintiff to provide further responses to RPD, Set One, Nos. 2 and 11 is GRANTED.

Motion to Compel Further re: Requests for Admission

Defendant move to compel Plaintiff to provide further responses to Defendant’s Requests for Admission (“RFA”), Set One, Nos. 34-37, 40, and 41.

A. Legal Standard

On receipt of a response to requests for admission, the party requesting admissions may move for an order compelling a further response if that party deems that either or both of the following apply: (1) an answer to a particular request is evasive or incomplete or (2) an objection to a particular request is without merit or too general. (CCP § 2033.290(a).)

The court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response, 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. (CCP § 2033.290(d).)

B. Analysis

The RFAs at issue request the admission that (1) smoking cigarettes is a risk factor for kidney cancer (No. 34), (2) Plaintiff knew as of 1980 that smoking cigarettes could cause cancer (No. 35), (3) smoking cigarettes caused or contributed to Plaintiff’s alleged kidney cancer (No. 36), (4) Plaintiff’s doctors advised him not to or to stop smoking cigarettes (No. 37), (5) Plaintiff knows of no persons to support his claim that Defendant caused or contributed to his alleged injuries (No. 40), and (6) Plaintiff knew of no writings to support his claim that Defendant caused or contributed to his alleged injuries (No. 41).

In response, Plaintiff objected to each RFA on the grounds that each seeks (1) premature expert discovery and (2) expert information from a lay witness. In response to RFA No. 37, Plaintiff also objected that the request was irrelevant and, notwithstanding said objections, denied the request for admission.

Plaintiff’s objections are without merit. As noted ante, Plaintiff waived objections by failing to serve timely responses. Moreover, if Plaintiff lacks sufficient knowledge of information to answer certain requests, Plaintiff is still obliged to provide a code-compliant response. CCP section 2033.220(b)(3) states that a responding party must “[s]pecify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge.”

Further responses are required.

C. Conclusion

Defendant’s motion to compel Plaintiff to provide further responses to RFA, Set One, Nos. 34-37, 40, and 41 is GRANTED.

Sanctions

In each of the four motions, Defendant requests monetary sanctions against Plaintiff in the amount of $1,320 for a grand total of $5,280. Defendant’s request for monetary sanctions is well-taken. Defendant is entitled to monetary sanctions because Plaintiff did not serve timely discovery responses and Plaintiff’s belated responses consisted almost entirely of meritless objections or evasive answers.

CONCLUSION

The Court grants Defendant’s motions to compel Plaintiff to provide further responses to (1) FI, Set One, Nos. 2.5, 6.2-6.7, and 17.1; (2) SI, Set One, Nos. 4, 12, 20, 26, 32, 38, 44, 47-48, 51-53, 55, and 56; (3) RPD, Set One, Nos. 2 and 11; and (4) RFA, Set One, Nos. 34-37, 40, and 41. The Court awards monetary sanctions to Defendant and against Plaintiff in the total amount of $5,280.

Plaintiff must provide further responses and pay the monetary sanctions within 30 days’ notice of this court order.

[1] CCP section 2030.230 provides: “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, it is a sufficient answer to that interrogatory to refer to this section and to specify the writings from which the answer may be derived or ascertained. This 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. The responding party shall then afford to the propounding party a reasonable opportunity to examine, audit, or inspect these documents and to make copies, compilations, abstracts, or summaries of them.”