Nathan Beckner v. Beacon Construction, Inc., et al. CASE NO. 112CV225964
DATE: 19 June 2014 TIME: 9:00 LINE NUMBER: 5
This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.882.6856 and the opposing party no later than 4:00 PM Wednesday 18 June 2014. Please specify the issue to be contested when calling the Court and counsel.

On 19 June 2014, the motion of defendant WM O’Neill Lath & Plastering Corp. to compel discovery responses to form interrogatories, set one (“FI”) and special interrogatories, set one (“SI”), and for an award of monetary sanctions, was argued and submitted. Plaintiff filed a formal opposition to the motion on 6 June 2014.

All parties are reminded that all papers must comply with California Rules of Court, rule 3.1110(f).

Statement of Facts

Plaintiff Nathan Beckner (“Plaintiff”) alleges that he struck and injured his left eye on a metal post on 23 August 2011, while working as a glazier on scaffolding at a Santana Row construction project. Plaintiff alleges that defendants Beacon Construction, Inc., WM O’Neill Lath & Plastering Corp. (“O’Neill”), Green Valley Corp. dba Barry Swenson Builder, and F&F Steel & Stairway, Inc. (collectively “Defendants”) left metal posts at the construction site uncapped and unguarded so as to create an unreasonably dangerous condition. Plaintiff further alleges that Defendants constructed scaffolding next to the unprotected metal posts and required him to use the scaffolding to perform his work, thereby making an already dangerous condition even more perilous.

On 6 June 2012, Plaintiff filed a complaint against Defendants, asserting causes of action for: (1) personal injury; (2) negligence; and (3) premises liability. Plaintiff seeks recovery of lost wages, hospital and medical expenses, general damages, and lost earning capacity.

Discovery Dispute

On 4 December 2013, O’Neill served Plaintiff with the SI. (Peck Dec., p. 7:11-15, Ex. B.) Plaintiff served O’Neill with his responses to the SI on 21 January 2014, and provided O’Neill with a verification for his responses on 29 January 2014. (Peck Dec., p. 7:16-17, Ex. C.)

O’Neill’s counsel sent Plaintiff’s counsel a meet and confer letter regarding Plaintiff’s responses to the SI on 12 February 2014. (Peck Dec., p. 7:18-20, Ex. D.) O’Neill’s counsel asserted that Plaintiff’s objections to the SI are without merit. (Id.) O’Neill’s counsel further contended that Plaintiff’s substantive responses to, in relevant part, SI Nos. 13, 15, 19-22, 24-27, 33-35, 38, and 44, are incomplete and/or evasive. O’Neill’s counsel requested that Plaintiff provide further responses to the SI by 26 February 2014. (Id.)

Plaintiff’s counsel replied to O’Neill’s counsel’s meet and confer letter via email on 19 February 2014. (Peck Dec., p. 7:23-25, Ex. E.) Plaintiff’s counsel noted that O’Neill’s counsel requested further responses to the SI by 26 February 2014. (Id.) He advised O’Neill’s counsel that he would be out of town until 1 March 2014, and requested an extension of time to respond to the meet and confer letter and provide further responses to the SI. (Id.)

On 21 February 2014, O’Neill granted Plaintiff an extension of time to provide further responses to the SI until 12 March 2014. (Peck Dec., p. 7:26-28, Ex. F.) Plaintiff granted O’Neill a corresponding extension of time to file a motion to compel further responses until 26 March 2014. (Id.) The same day, O’Neill served Plaintiff with FI No. 17.1. (Peck Dec., p. 7:28, 8:1, Ex. F.) Pursuant to the parties’ agreement, FI No. 17.1 was served via email. (Id.)

O’Neill’s counsel sent an email to Plaintiff’s counsel on 18 March 2014, advising that he had not received any further responses to the SI. (Id.) Plaintiff’s counsel replied via email the same day and attempted to schedule a telephone conference with O’Neill’s counsel for later in the week. (Id.)

On 20 March 2014, O’Neill requested and Plaintiff granted a one-week extension of time until 2 April 2014, for O’Neill to file a motion to compel further responses, with the intention that the parties’ counsel would engage in a telephone conference regarding the discovery responses. (Peck Dec., p. 8:1-5, Ex. F.)

O’Neill’s counsel called Plaintiff’s counsel on 31 March 2014, to discuss Plaintiff’s responses to the SI. O’Neill’s counsel was informed that Plaintiff’s counsel was unavailable. (Peck Dec., p. 8:6-7.)

Plaintiff’s counsel sent an email to O’Neill’s counsel on 1 April 2104, advising that he was currently busy working on other matters and would try to call O’Neill’s counsel during that afternoon. (Peck Dec., p. 8:8-12, Ex. G.) O’Neill’s counsel did not receive a telephone call from Plaintiff’s counsel that afternoon and, therefore, proposed an additional extension of time for Plaintiff to provide further responses to the SI and for O’Neill to file a motion to compel further responses. (Id.) Plaintiff agreed to grant O’Neill an extension of time to file a motion to compel until 16 April 2014, and O’Neill granted Plaintiff an extension of time to provide further responses to the SI. (Id.)

On 16 April 2014, O’Neill and Plaintiff agree that Plaintiff would receive another extension of time to provide further responses to the SI until 5 May 2014, and O’Neill would receive a corresponding extension of time to file a motion to compel further responses until 19 May 2014. (Peck Dec., p. 8:13-17, Ex. H.) Plaintiff did not provide further responses to the SI by the 19 May 2014 deadline. (Peck Dec., p. 8:18-19.)

On 19 May 2014, O’Neill filed the instant “motion to compel discovery responses” to FI No. 17.1 and SI Nos. 13, 15, 19-22, 24-27, 33-35, 38, and 44. (Notice of Motion, p. 1.) Plaintiff filed papers in opposition to the motion on 6 June 2014. O’Neill filed a reply on 12 June 2014.

Discussion

I. Nature of the Motion

As a preliminary matter, O’Neill’s motion is framed generally as one to compel “discovery responses” to FI No. 17.1 and SI Nos. 13, 15, 19-22, 24-27, 33-35, 38, and 44. It appears from the moving papers that O’Neill is moving to compel further responses to the SI on the grounds that Plaintiff’s objections are without merit and his substantive responses are incomplete and/or evasive. With respect to FI No. 17.1, O’Neill indicates that it is moving to compel an initial response to the FI, as no response was ever provided.

Thus, the Court will construe O’Neill’s motion as one to compel an initial response to FI No. 17.1 under Code of Civil Procedure section 2030.290, and one to compel further responses to SI Nos. 13, 15, 19-22, 24-27, 33-35, 38, and 44 under Code of Civil Procedure section 2030.300.

II. Motion to Compel Initial Response to FI 17.1

1. Legal Standard

The party to whom interrogatories have been propounded is required to serve a response within 30 days, or on any later date to which the parties have agreed. (See Code Civ. Proc., §§ 2030.260, 2030.270.) An additional 2 court days are added if the discovery is served electronically. (Code Civ. Proc., § 1010.6, subd. (a)(4).)

If the party to whom interrogatories are directed fails to serve a timely response, that party waives any objection to the discovery. (Code Civ. Proc., § 2030.290, subd. (a).)

Additionally, the propounding party may move for an order compelling a response to the interrogatories. (Code Civ. Proc., §§ 2030.290, subd. (b).)

There is no limitation period or meet and confer requirement for bringing a motion to compel an initial response to interrogatories. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 410-411; Leach v. Super. Ct. (1980) 111 Cal.App.3d 902, 905-906.) The moving party need only show that the discovery was properly propounded and a timely response was not served. (Id.)

2. Analysis

Here, O’Neill’s counsel declares that he caused FI No. 17.1 to be electronically served on 21 February 2014. (Peck Dec., p. 8:18-19; Opp’n., p. 5:3-5.) Since FI No. 17.1 was served electronically on 21 February 2014, Plaintiff’s response was due within 30 days, plus 2 additional court days, on 25 March 2014. O’Neill’s counsel declares that Plaintiff had yet to serve any response to the FI as of 19 May 2014, the date the motion was filed. (Id.)

In his opposition, Plaintiff does not address FI No. 17.1 and his discussion pertains solely to the SI at issue.

Therefore, as the FI has been properly propounded and a response has yet to be served, the motion to compel an initial response to FI No. 17.1 is GRANTED.

III. Motion to Compel Further Responses to SI Nos. 13, 15, 19-22, 24-27, 33-35, 38, and 44

1. Mootness

On 28 May 2014, subsequent to the filing of the instant motion, Plaintiff’s counsel and O’Neill’s counsel met and conferred regarding SI Nos. 13, 15, 19-22, 24-27, 33-35, 38, and 44. (Sigala Dec., p. 2:16-18.) At that time, Plaintiff agreed to provide further responses to the SI by 2 June 2014, and O’Neill agreed to “vacate the motion should the further responses suffice.” (Sigala Dec., p. 2:21-24.) On 2 June 2014, Plaintiff electronically served O’Neill with further responses to SI Nos. 13, 15, 19-22, 24-27, 33-35, 38, and 44. (Sigala Dec., p. 2:25-27, 3:1-3, Ex. B, C.)

On 3 June 2014, Plaintiff’s counsel sent an email to O’Neill’s counsel requesting that O’Neill “vacate the motion.” (Sigala Dec., p. 3:4-6, Ex. D.)

On 4 June 2014, O’Neill’s counsel sent Plaintiff’s counsel a meet and confer letter, requesting further responses to SI Nos. 34-35. (Peck Reply Dec., p. 6:12-16, Ex. A.) SI Nos. 34-35 asked Plaintiff to identify his immediate supervisor and co-workers for each jobsite that he had worked at, in his capacity as a glazier for his current employer, Silicon Valley Glass, since the date of the incident. O’Neill’s counsel noted that in his further responses to SI Nos. 34-35, Plaintiff provided the full names of some of his supervisors, indicated that he could not recall the names of other supervisors, and provided some partial names of co-workers. (Id.) Plaintiff did not provide contact information for any of the individuals identified. (Id.) O’Neill’s counsel requested that Plaintiff make a good faith effort to obtain the full names and contact information for the individuals identified in his responses by inquiry to other natural persons or organizations, except where the information was equally available to O’Neill. (Id.)

Later the same day, Plaintiff’s counsel replied to O’Neill’s counsel’s meet and confer letter via email. (Peck Reply Dec., p. 6:18-21, Ex. B.) With respect to SI No. 34, Plaintiff’s counsel advised that Plaintiff had made a reasonable and good faith effort to obtain the information and “his responses remain the same.” (Id.) Plaintiff’s counsel indicated that Plaintiff did not know the address and telephone number for the supervisors that he identified. (Id.) Plaintiff’s counsel asserted that Plaintiff’s supervisors’ contact information was equally available to O’Neill as it had the opportunity to depose representatives of Silicon Valley Glass. (Id.) He further advised that Plaintiff felt uncomfortable asking his supervisors or his employer for the supervisors’ contact information “while this litigation is pending.” (Id.)

With respect to SI No. 35, Plaintiff’s counsel advised that Plaintiff only knew a few of his co-workers by name and, in many cases, he did not know their full names or contact information. (Id.) He further asserted that it was “unreasonable (and unwise)” for O’Neill to expect Plaintiff to “start asking co-employees for their last name and contact information.” (Id.) Plaintiff’s counsel then stated, “[h]aving said that Justin [sic] last name is Patton [. . .] Mike L is Mike Lasavo(sic). John is Jim. And Jarrod is Jared Dramstrom.” (Id.)

On 10 June 2014, O’Neill’s counsel replied via email and indicated that Plaintiff had not made an adequate effort to obtain the names and contact information of his co-workers and supervisors because he had not asked his supervisors, employer, or co-workers for the requested information. (Peck Reply Dec., p. 6:22-26, Ex. C.) O’Neill’s counsel further indicated that O’Neill would agree to take the motion to compel off calendar if Plaintiff would confirm that he would not call any individual who was not “fully identified in [his] responses as a witness at trial.” (Id.) As of 12 June 2014, O’Neill’s counsel had not received a response from Plaintiff’s counsel. (Peck Reply Dec., p. 6:25-26.)

In its reply papers, O’Neill acknowledges that the dispute as to SI Nos. 13, 15, 19-22, 24-27, 33, 38, and 44 has been resolved by Plaintiff’s supplemental responses. Accordingly, the Court finds that the motion is MOOT with respect to SI Nos. 13, 15, 19-22, 24-27, 33, 38, and 44.

O’Neill and Plaintiff indicate that SI Nos. 34-35 remain in dispute. O’Neill asks that the Court order further, code-compliant responses to SI Nos. 34-35. While supplemental responses were provided for SI Nos. 34-35, the supplemental responses purportedly contain some of the same deficiencies as the initial responses. The supplemental responses are provided to the Court as exhibits and their contents are set forth in Plaintiff’s opposition. Moreover, the parties met and conferred subsequent to the filing of the motion, specifically with regard to Plaintiff’s supplemental responses to SI Nos. 34-35, and appeared to have reached an impasse.

Under the circumstances, the Court has the discretion to hear the motion despite the fact that supplemental responses were subsequently served. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408-409.) Thus, the Court exercises its discretion to reach the merits of the motion with respect to SI Nos. 34-35.

2. Legal Standard

A party propounding form interrogatories may move for an order compelling further responses if that party deems an answer is evasive or incomplete and/or an objection is without merit or too general. (See Code Civ. Proc., § 2030.300; Coy v. Super. Ct. (1962) 58 Cal.2d 210, 220-221.) The burden is on the responding party to justify any objections or failure to fully answer. (See Coy v. Super. Ct., supra, 58 Cal.2d at p. 220-221.)

3. SI Nos. 34-35

As indicated above, SI No. 34 asked Plaintiff to identify his immediate supervisor for each jobsite that he had worked at, in his capacity as a glazier for Silicon Valley Glass, since the date of the incident. SI No. 35 asked Plaintiff to identify every other Silicon Valley Glass employee that worked at each jobsite he had worked at, in his capacity as a glazier with Silicon Valley Glass, since the date of the incident.

In his further responses to SI Nos. 34-35, Plaintiff objected to the SI as vague, unduly burdensome, harassing, seeking information that is equally available to O’Neill, overbroad, ambiguous, irrelevant, invading his right to privacy, and violating the attorney-client privilege and work product doctrine.

Without waiving his objections, Plaintiff provided a substantive further response to SI No. 34, providing the full names of his immediate supervisors for three jobsites. Plaintiff also identified a fourth jobsite that he worked at, but indicated that he could not recall the name of his immediate supervisor at that work site. Plaintiff stated that while he had worked at other jobsites and had other supervisors he could not recall their names.

Without waiving his objections, Plaintiff provided a substantive further response to SI No. 35, providing first names for some of his co-workers and full names for other co-workers for four jobsites. Plaintiff stated that while he had worked at other jobsites and with many other employees he could not recall their names.

a. Objections

In his opposition, Plaintiff attempts to defend only his objections based on undue burden and harassment with respect to SI No. 35, and equally available information with respect to SI Nos. 34-35. Thus, the Court finds that the undefended objections are without merit and are overruled. (See Coy v. Super. Ct., supra, 58 Cal.2d at p. 220-221.)

With respect to Plaintiff’s objection to the SI as unduly burdensome and harassing, Plaintiff argues SI No. 35 is burdensome and harassing because it asks him “to know and identify every single employee who worked at [each jobsite that he worked at after the incident] and their contact information” and “[t]here are very many employees who work at each particular site at any given particular time even when [he] is not on [sic] present.” (Opp’n,. p. 5:3-6.)

The Court finds that Plaintiff’s unduly burdensome and harassing objections are not well-taken. To the extent that Plaintiff does not have personal knowledge of every employee who worked at each jobsite that he worked at after the incident, he only needs to state that he does not have sufficient personal knowledge to fully response to the SI and that he has made 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. (Code of Civ. Proc., § 2030.220, subd. (c).) Plaintiff is not required to “know and identify every single employee” who may have worked at the same jobsites. Thus, responding to SI No. 35 is not unduly burdensome and harassing and those objections are overruled.

With respect to Plaintiff’s objection to the SI as seeking information that is equally available to O’Neill, Plaintiff asserts that the names and contact information of his supervisors and co-workers are equally available to O’Neill through his employer, Silicon Valley Glass. Plaintiff asserts that he has made a good faith reasonable effort to obtain the information sought by the SI and does not have the contact information for the supervisors or co-workers that he listed in his responses. He further states that he has identified the individuals whom “he recalled by first name and those he he [sic] knows by first and last name who worked there when he was on site.” (Opp’n., p. 5:6-8.) Plaintiff asserts that it is “simply unreasonable to have [him] probe the other co-employees for their names and contact information.” (Opp’n., p. 5:8-9.)

Plaintiff further contends that O’Neill had the opportunity to obtain this information from Steve Gessell (“Mr. Gessell”), the superintendent of Silicon Valley Glass, Linda Goyette (“Ms. Goyette”), the CEO and CFO of Silicon Valley Glass, and two of his co-workers, when it recently deposed those individuals.

Conversely, O’Neill argues that the information is not equally available to it because “Silicon Valley Glass is unlikely to volunteer their employees’ contact information upon request from a third party.” (Reply, p. 3:24-25.) O’Neill further argues that it cannot propound interrogatories on Silicon Valley Glass because it is not a party to this lawsuit. O’Neill contends that it “would have to resort to issuing subpoenas to Silicon Valley Glass,” but that Plaintiff has provided “so little information regarding his co-workers (sometimes only a first name) that it would be impossible for O’Neill to craft a subpoena for business records not open to being quashed as vague.” (Reply, p. 3:26-27, 4:1-2.)

The Court finds that Plaintiff’s objection has merit. While Plaintiff is under a duty to furnish information available from sources under his control, he is under no duty to make inquiry of independent witnesses. (Regency Health Services, Inc. v. Sup. Ct. (1998) 64 Cal.App4th 1496, 1504 [stating that a party has a general duty to conduct a reasonable investigation to obtain responsive information and must furnish information from all sources under his or her control; Holguin v. Sup. Ct. (1972) 22 Cal.App.3d 812, 821.)

Here, Plaintiff states that he has provided the first names and, when possible, the full names of his supervisors and co-workers whom are known to him. Plaintiff states that he does not have his supervisors’ or his co-workers’ contact information. Plaintiff’s supervisors and co-workers are not under his control, but are independent witnesses, and thus, Plaintiff is under no duty to obtain more complete information from them.

Here, the information sought is equally available to O’Neill as it had the opportunity to depose Mr. Gessell and Ms. Goyette who would have likely had access to the contact information for Plaintiff’s supervisors and co-workers. In addition, O’Neill can subpoena business records that contain the names and contact information of Plaintiff’s immediate supervisors and co-workers directly from Silicon Valley Glass.

O’Neill’s argument that it does not have sufficient information to draft a subpoena request that is not vague, without Plaintiff first providing more information, is without merit. To obtain the names and contact information of Plaintiff’s supervisors and co-workers, the subpoena request need not include the individuals’ full names or any names at all. O’Neill can simply request that Silicon Valley Glass produce the names and contact information for Plaintiff’s immediate supervisors and Plaintiff’s co-workers that worked at each of the jobsites that Plaintiff worked at after 6 June 2012. Thus, Plaintiff’s objection on the grounds that the information sought is equally available to O’Neill is sustained.

4. Conclusion

Accordingly, O’Neill’s motion to compel further responses is MOOT with respect to SI Nos. 13, 15, 19-22, 24-27, 33, 38, and 44, and DENIED with respect to SI Nos. 34-35.

IV. O’Neill’s Request for Sanctions

O’Neill requests monetary sanctions against Plaintiff in the amount of $1,620.00 under Code of Civil Procedure sections 2030.290, subdivision (c) and 2031.300, subdivision (c).

Code of Civil Procedure section 2031.300, subdivision (c) is inapplicable in this case because it pertains to the imposition of monetary sanctions in connection a motion to compel initial responses to inspection demands and the instant motion is one to compel initial and further responses to interrogatories.

Code of Civil Procedure section 2030.290, subdivision (c) states that the court shall impose a monetary against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a 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.

Here, O’Neill’s motion with respect to FI No. 17.1 is a motion to compel an initial response and, thus, Code of Civil Procedure section 2030.290 is applicable. O’Neill was successful on its motion to compel and initial response to FI No. 17.1. Plaintiff did not provide any explanation for his failure to serve O’Neill with his initial response to the FI. Thus, the Court finds that O’Neill was not substantially justified and there are no other circumstances that make the imposition of sanctions unjust.

O’Neill’s counsel declares that he spent 6 hours drafting the instant motion at his hourly rate of $180.00. He also declares that he anticipates an additional 3 hours to travel to and attend the hearing on this motion.

The, Court does not award sanctions for expenses not yet incurred. (See Code Civ. Proc., § 2023.030, subd. (a); Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551.) Consequently, these anticipated attorney fees are not compensable. The hourly rate and hours spent are otherwise reasonable.

The Court notes that a large part of O’Neill’s motion pertains solely to the SI. While Plaintiff prevailed on the motion with respect to FI No. 17.1, O’Neill did not succeed on its motion to compel further responses to the SI and also did not cite authority for an award of monetary sanctions relative to a motion to compel further responses to interrogatories. Therefore, the monetary sanction shall be apportioned and imposed in connection with the motion only with respect to FI No. 17.1. (See Mattco Forge Inc. v. Arthur Young & Co. (1990) 223 Cal.App.3d 1429, 1437 [where a motion is granted in part, the court has the discretion to apportion sanctions or award any amount deemed reasonable under the circumstances].) The Court finds that 2 hours is a reasonable amount of time to have spent on the motion with respect to FI No. 17.1.

Accordingly, O’Neill’s request for monetary sanctions is GRANTED IN PART in the amount of $360.00.

Conclusion and Order

O’Neill’s motion to compel an initial response to FI No. 17.1 is GRANTED. Accordingly, within 20 calendar days of the date of the filing of this Order, Plaintiff shall provide a verified code-compliant response to FI No. 17.1, without objections.

O’Neill’s motion to compel further responses is MOOT with respect to SI Nos. 13, 15, 19-22, 24-27, 33, 38, and 44, and DENIED with respect to SI Nos. 34-35.

O’Neill’s request for monetary sanctions is GRANTED IN PART in the amount of $360.00. Accordingly, Plaintiff shall pay $360.00 to O’Neill’s counsel within 20 calendar days of the date of the filing of this Order.