Tentative Ruling

Judge Donna Geck
Department 4 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION
Mercedes Sandoval vs Casey J Crawford et al
Case No: 19CV00432
Hearing Date: Fri Feb 28, 2020 9:30

Nature of Proceedings: Motion to Compel

TENTATIVE RULING: The motion is denied as to Nos. 2-7 and 9 based upon plaintiff’s failure to meet and confer on those issues prior to filing the motion. The motion is denied as to No. 8 on the ground that it was mooted by defendant’s service of a verified supplemental response to the request. No sanctions will be awarded to either party.

Background: This action arises from injuries allegedly suffered by plaintiff in a trip and fall incident which occurred on January 29, 2017, when plaintiff fell after stepping into a deep rut on the parkway adjacent to the sidewalk which abutted defendant’s property.

Plaintiff served a set of nine requests for admissions upon defendant on October 24, 2019, seeking defendant’s admissions that, among other things, he owned the adjacent real property, was a licensed real estate broker with a long history of owning and operating commercial and residential real estate, and that after plaintiff’s injury, he caused the previously unimproved parkway to be filled in with brick work, thereby indicating his control over the parkway.

Defendant served responses in mid-December, 2019. Defendant admitted No. 1 without qualification. With respect to Nos. 2-7 and 9, defendant asserted various objections, largely related to relevance or ambiguity of terms set forth in the request, but then either admitted the entire request, or admitted defendant’s interpretation of the request. With respect to No. 8, defendant asserted only objections, including objections regarding the ambiguity of terms used, and relevance, since the request sought information regarding subsequent remedial measures, which is inadmissible.

Also on December 18, 2019, plaintiff sent a meet and confer letter which first addressed the failure of the responses to include a verification. The letter then turned to Request No. 8, and asserted that a full and complete response was necessary. The letter contended that attorney-client privilege and work product protection (asserted only in the Preliminary Statement to defendant’s responses) should be asserted through a motion for protective order and not a blanket assertion of the privilege, and noted that, for discovery purposes, relevance extends beyond admissibility.

Defendant’s verification of its responses was transmitted on December 18, 2019. Plaintiff’s counsel asserts he sent letters to defense counsel on 10/2/2019, 10/28/2019, 11/6/2019, 11/19/2019 (all prior to service of the responses), the 12/18/2019 letter (the only letter before the court), and on 1/6/2020, 1/10/2020, 1/23/2020, and 1/28/2020. The subject matter of all letters other than the one sent on 12/18/2019 is unknown. Plaintiff’s counsel also states that voice messages were exchanged between January 28 and 30, 2020, but counsel were unable to connect. The content of any of the voice mail messages is not before the court.

The current motion to compel further responses to requests for admissions was filed on February 4, 2020. It seeks further responses to Request Nos. 2-9.

On February 13, 2020, defendant provided a verified further response to No. 8, re-asserting the previously asserted objections, but ultimately admitting the request. The further response was accompanied by a letter from defense counsel asserting that it was provided in the spirit of compromise, and requesting that the motion be taken off calendar, because it was improperly noticed and seeks further responses to requests for which plaintiff had failed to meet and confer. By letter dated February 18, 2020, plaintiff declined to take the motion off calendar, but offered to continue it to March 6 if that would be helpful.

Defendant filed opposition to the motion, seeking sanctions against plaintiff, based upon the failure to meet and confer with respect to Request Nos. 2-7 and 9. The opposition notes that defendant provided an amended response to Request No. 8, and argues that his prior response to the request was appropriate. Defendant objected to the motion’s provision of insufficient notice for the February 28 hearing date. Defense counsel set forth a series of events which resulted in his losing track of plaintiff’s meet and confer, which had requested a further response to No. 8.

In her late-filed reply (due 2/21/2020, filed 2/24/2020), plaintiff notes that he had offered to stipulate to a continuance of the hearing, to satisfy defendant’s timeliness objection, but defendant did not respond. She further contends that defendant’s boilerplate objections, and her own 9 attempts to meet and confer with respect to all of them, were well known to defendant prior to the filing of the motion. The opposition deemed the objections to be boilerplate objections, which are improper.

ANALYSIS: The motion is denied outright as to Request Nos. 2-7 and 9, based upon plaintiff’s counsel’s failure to provide a declaration showing any meet and confer efforts with respect to the adequacy of defendant’s responses to those requests. With respect to No. 8, the motion is denied as moot. Sanctions will be denied as to both parties, since each party acted both with and without substantial justification.

Each response to a request for admission must be as complete and straightforward as the information reasonably available to the responding party permits. (Code Civ. Proc., § 2033.220, subd. (a).) If any portion of the request is true, the party must admit that portion, either as expressed in the request itself, or as reasonably and clearly qualified by the responding party. (Code Civ. Proc., § 2033.220, sub. (b)(1).) Similarly, the responding party may deny so much of the matter involved in the request as is untrue. (Id.) The denial of all or any portion of the request must be unequivocal. (See American Federation of State, County & Municipal Employees v. Metropolitan Water District of Southern California (2005) 126 Cal.App.4th 247, 268.) However, reasonable qualifications and explanations are not improper. (St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 780-781.) A party may respond by claiming an inability to admit or deny the matter stated in the request because it lacks sufficient knowledge or information. (Code Civ. Proc., § 2033.220, subd. (b)(3).) However, if the responding party does so, it must also state that a reasonable inquiry was made to obtain sufficient information, and that the information known or readily obtainable is insufficient to enable the party to admit the matter. (Code Civ. Proc., § 2033.220, subd. (c).)

Rather than admitting or denying a request, the party may object to the particular request. (Code Civ. Proc., § 2033.210, subd. (b).) If only a part of the request is objectionable, however, the remainder must be answered. (Code Civ. Proc., § 2033.230, subd. (a).) The specific ground for objection must be set forth clearly in the response. (Code Civ. Proc., § 2033.230, subd. (b).) Just as with other discovery devices, that a request is ambiguous is not a ground for objection, unless the request is so ambiguous that the responding party cannot in good faith frame an intelligent reply. (See, e.g., Cembrook v. Superior Court (1961) 56 Cal.2d 423, 429.) Upon the filing of a motion to compel, the burden is on the objecting party to justify the objection. (Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221.)

Further, Code of Civil Procedure section 2033.290(b)(1) requires that any motion to compel further response to requests for admissions must be accompanied by a meet and confer declaration under Section 2016.040. Section 2016.040, in turn, requires that declaration to state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion. The meet and confer requirement is intended to force lawyers to reexamine their positions, and to narrow their discovery disputes to the irreducible minimum, before calling upon the court to resolve the matter. Failure to conduct reasonable and good faith efforts to informally resolve the discovery dispute is a misuse of the discovery process (Code Civ. Proc., § 2023.010, subd. (i)), which subjects the party or attorney to the imposition of monetary sanctions. (Code Civ. Proc., § 2023.020.)

Here, plaintiff provided a meet and confer declaration, but the declaration addressed only the efforts made to resolve the discovery dispute related to defendant’s objection-only response to Request No. 8. There was absolutely nothing in the declaration which specifically addressed defendant’s responses to Request Nos. 2-7 or 9, yet they were included in the motion to compel. Because a meet and confer declaration addressing each issue presented by the motion is mandatory under the discovery statutes, and because plaintiff’s declaration failed to specifically address any request other than No. 8, the motion will be denied outright as to Nos. 2-7 and 9.

Even if the Court were to address the motion to compel further responses to Nos. 2-7 and 9 on their merits, it would have denied the motion. Defendant asserted various objections to Request Nos. 2-7 and 9, yet provided a response to each such request. Rather than standing on his claims that various terms within Nos. 4-7 and 9 were ambiguous and refusing to answer, defendant properly answered each such request, sometimes clarifying the manner in which he interpreted the request, in the course of providing that response. Further, rather than standing on his relevance objections to Nos. 2-3, 7, and 9, defendant answered each request. His conduct in providing responses subject to the objections was proper, and the motion to compel further responses thereto is properly denied.

With respect to Request No. 8, the Court finds that defendant’s response consisting solely of objections, and his failure to provide any substantive response, justified the filing of the motion to compel further response to that request. Given the broad scope of discovery, under which information is relevant for discovery purposes if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement, give that information need not be admissible in order to be discoverable, and the required application of these rules liberally in favor of discovery (see Lopez v. Watchtower Bible and Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 591, quoting Garamendi v. Golden Eagle Ins. Co. (2004) 116 Cal.App.4th 694, 712, fn. 8), the information sought by the request was discoverable, and the motion properly filed.

Certainly, defendant recognized that a substantive response would likely be required by the Court, and provided a further verified response to No. 8, albeit well after the motion to compel had been filed. For that reason, the Court will deny the motion to compel further response to No. 8, but only because the motion is now moot as to that request.

Because plaintiff met and conferred with respect to No. 8 and was justified in moving to compel further response to that request, but failed to provide a declaration showing any effort to meet and confer as to Nos. 2-7 and 9, the Court will deny plaintiff’s request for sanctions. Because defendant failed to provide a proper response to No. 8 and therefore acted in a manner which necessitated the filing of the motion to compel, the Court will deny his request for sanctions, even though plaintiff failed to properly meet and confer with respect to Nos. 2-7 and 9. In essence, each party acted partially with substantial justification, and partially without substantial justification, and the Court will therefore deny both sanction requests.