Florencia Pichardo, et al. v. Thuan Luong CASE NO. 113CV257317
DATE: 27 June 2014 TIME: 9:00 LINE NUMBER: 23
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 408.808.6856 and the opposing party no later than 4:00 PM Thursday 26 June 2014. Please specify the issue to be contested when calling the Court and counsel.

On 27 June 2014, the motion of plaintiff Florencia Pichardo (“Florencia”) to compel further responses to form interrogatories, set one (“FI”) and requests for production of documents, set one (“RPD”), and for an award of monetary sanctions, was argued and submitted.

Defendant Thuan Luong (“Defendant”) filed a formal opposition to the motion, in which he requests monetary sanctions.

Statement of Facts

This is a personal injury action involving a motor vehicle accident. On 24 August 2012, Florencia was traveling on Highway 87 towards Highway 280 when she came to a full stop on the roadway due to traffic. Florencia alleges that while she was stopped, Defendant rear-ended her vehicle at an excessive speed, pushing it into the car in front of her. Florencia further alleges that she sustained an injury to her cervical spine as a result of the accident. Florencia’s husband, Cristobal Pichardo (“Cristobal”), alleges that he suffered a loss of Florencia’s love, companionship, and assistance as a result of the accident.

On 9 December 2013, Florencia and Cristobal (collectively “Plaintiffs”) filed a complaint alleging causes of action for general negligence and loss of consortium.

Discovery Dispute

On 29 January 2014, Plaintiffs served Defendant with the FI and RPD. (Contreras Dec., p. 1:25-27, p. 2:9-11, Exs. A, D.) Defendant served Plaintiffs with his initial responses to the FI and RPD on 19 March 2014. (Contreras Dec., p. 2:1-4, 12-13, Exs. B, E.) In response to the RPD, Defendant produced numerous hard copies of photographs that were taken of the vehicles that were involved in the accident. Defendant also served Plaintiffs with signed verifications for his initial responses to the FI and RPD. (Id.)

Plaintiffs’ counsel sent Defendant’s counsel a meet and confer letter on 21 March 2014, regarding FI Nos. 2.6, 7.3, and 12.2, and RPD Nos. 4-6. (Contreras Dec., p. 2:14-19, Ex. F.) In relevant part, Plaintiffs’ counsel requested that Defendant provide a further response to FI No. 7.3, stating the date that his vehicle was repaired, providing a description of the repair, stating the cost of the repair, and providing the contact information of the individual(s) whom performed the repair. (Id.) Plaintiffs’ counsel also requested that Defendant produce in response to RPD Nos. 4-5 a vehicle evaluation or damage assessment for his vehicle and all photographs in his possession of the three vehicles that were involved in the accident, in CD or electronic format. (Id.)

Plaintiffs’ counsel did not receive a response to his meet and confer letter and, therefore, sent a follow-up letter on 7 April 2014, regarding FI Nos. 2.6, 7.3, and 12.2, and RPD Nos. 4-6. (Contreras Dec., p. 2:20-24, Ex. G.)

On 7 April 2014, Defendant’s counsel replied to Plaintiffs’ counsel’s 21 March 2014 meet and confer letter. (Contreras Dec., p. 2:25-28, 3:1-3 Ex. H.) With regard to FI No. 7.3, Defendant’s counsel stated that Defendant could not provide the specific date on which his vehicle was repaired as he could only recall that it was “repaired in mid-September, 2012.” (Id.) Defendant’s counsel advised that Defendant performed much of the work on his vehicle himself and “with the assistance of an individual at a body shop.” (Id.) Defendant’s counsel further advised that Defendant could not recall the name or location of the body shop. (Id.) With respect to RPD No. 4, Defendant’s counsel indicated that Defendant did not possess a vehicle evaluation or damage assessment for his vehicle. With regard to RPD No. 5, Defendant’s counsel stated that she was enclosing with her correspondence “a CD which [contained] the photographs in Defendant’s possession in that manner in which they [were] received and are stored by [her] office.” (Id.)

On 9 April 2014, Plaintiffs’ counsel and Defendant’s counsel engaged in a telephone conference during which Defendant’s counsel advised Plaintiffs’ counsel that she replied to his initial meet and confer letter and provided him with a CD containing copies of the requested photographs on 7 April 2014. (Olsen Dec., p. 2:23-25.)

Plaintiffs’ counsel sent Defendant’s counsel a letter on 11 April 2014, requesting further responses to FI Nos. 2.6, 7.3, and 12.2. (Contreras Dec., p. 3:4-5, Ex. I.) Plaintiffs’ counsel also requested that Defendant provide further responses to RPD Nos. 4-5 and produce documents pertaining to “Defendants [sic] 1993 Nissan’s damage estimates and repair estimates.” (Id.) Plaintiffs’ counsel indicated that he had not received the CD containing copies of the photographs of the three vehicles involved in the accident. (Id.)

Plaintiffs’ counsel declares that he received a CD from Defendant’s counsel on 12 April 2014, which contained a property damage estimate of a third party’s vehicle and “8 photographs of 2 vehicles but not defendant’s vehicle.” (Contreras Dec., p. 3:6-10.)

On 16 April 2014, Defendant served Plaintiffs with an unverified further response to FI No. 7.3. (Contreras Dec., p. 2:5-8, Ex. C.) Defendant’s counsel sent Plaintiffs’ counsel a letter on the same date, stating that “[w]ith respect to your request for damage estimates, defendant has already indicated no documents were prepared in response to interrogatory 7.2.” (Id.) Defendant’s counsel further stated that “in response to request number 4, defendant identified and produced all responsive documents in his possession” and no further response would be provided. (Id.)

On 24 April 2014, Defendant served Plaintiffs with a verification for his further response to FI No. 7.3. (Olsen Dec., p. 3:9-11, Ex. F; Contreras Dec., Ex. C.)

Plaintiffs’ counsel sent Defendant’s counsel another meet and confer letter on 30 April 2014, contending that Defendant had “failed to produce property damage photographs of all 3 vehicles via CD format.” (Contreras Dec., p. 3:14-21, Ex. L.) Plaintiffs’ counsel requested that Defendant produce the photographs that were previously provided to him as hard copies in CD format as they were not included on the CD that was provided. (Id.) Plaintiffs’ counsel also asserted that Defendant “omitted to produce [his] 1993 Nissan’s Estimate of Repair, Vehicle Valuation Report and property damage check paid to [him], and requested that he be provided with a copy of the same. (Id.) Lastly, Plaintiffs’ counsel requested that Defendant provided further verified responses to RPD Nos. 4-5 and FI Nos. 7.2 and 7.3. (Id.) With respect to FI No. 7.3, Plaintiffs’ counsel argued that “Defendant’s position that he [could] not recall the name of the body shop where he repaired his vehicle is ludicrous” because he could “physically visit the body shop and produce the name, address, and requested information.” (Id.)

Defendant’s counsel replied to Plaintiffs’ counsel’s letter on 2 May 2014. (Contreras Dec., p. 3:22-27, 4:1-2, Ex. M.) Defendant’s counsel noted that Plaintiffs’ counsel requested further responses to FI Nos. 7.2 and 7.3. (Id.) With regard to FI No. 7.2, she advised that Defendant clearly stated in his original response to the request that no written estimate or evaluation was prepared for any item that was damaged on his vehicle and, thus, there is no further information that he could provide. (Id.) Defendant’s counsel further advised that Defendant repaired his vehicle himself and with the help of a friend and, consequently, does not have any bills or receipts pertaining to the repairs performed. (Id.)

With respect to FI No. 7.3, Defendant’s counsel argued that Defendant’s further response to the request is complete because he listed every part of the car that was repaired, provided an approximate value of the repairs, and provided an approximate date on which the repairs were performed. (Id.) Defendant’s counsel asserted that no further response would be provided to FI No. 7.3. (Id.)

With regard to the RPD, Defendant’s counsel stated that “[a]ll of the photographs that defendant has in his possession, custody or control were produced in paper format in [Defendant’s] responses to the [RPD].” (Id.) She noted that the production included 11 color photographs of all three vehicles involved in the accident, 43 black and white photographs of a 2001 Honda, and 11 black and white photographs of a 2010 Toyota. (Id.) Defendant’s counsel indicated that pursuant to Plaintiffs’ counsel’s request, Defendant also produced “a CD with all of the photographs that were previously produced in the manner in which they had been received and stored in [her] office,” on 7 April 2014. (Id.) She further indicated that Defendant did not fail or omit to produce a property damage estimate, vehicle valuation report, or property damage check for Defendant’s vehicle because no such documents were ever prepared. (Id.)

Plaintiffs’ counsel responded on 2 May 2014, and contended that contrary to Defendant’s counsel’s assertions, he had not received all of the photographs that were previously produced as hard copies on the CD that was provided on 7 April 2014. (Contreras Dec., p. 4:4-16, Ex. N.) Plaintiffs’ counsel stated that the CD contained only 11 photographs, while the hard copies previously produced contained approximately 66 photographs. (Id.) Plaintiffs’ counsel further argued that Defendant’s responses to the FI and RPD are deficient because the responses to the RPD do not contain code-compliant statements of inability to comply and the responses to the FI do not indicate the reasons why certain responsive documents do not exist. (Id.)

On 5 May 2014, Florencia filed the instant motion to compel further responses to FI Nos. 7.1, 7.2, and 7.3, and RPD Nos. 3-5, and for an award of monetary sanctions. Defendant filed papers in opposition to the motion on 13 June 2014, in which he requests monetary sanctions. Florencia filed a reply on 20 June 2014.

Discussion

I. Motion to Compel Further Responses to the FI and RPD

Florencia moves to compel further responses to FI Nos. 7.1, 7.2, and 7.3, and RPD Nos. 3-5, without objections, on the ground that Defendant’s responses are incomplete. Florencia also requests an order compelling Defendant to “produce in electronic format all documents, and photographs of the scene of the accident, photographs of damages to all three vehicles involved in the accident [. . .] and [. . .] all documents including but not limited to damage estimates, repair estimates, repair orders, receipts, canceled checks, property damage releases, vehicle damaged photographs, appraisals and/or payments for repairs or replacements.” (Notice of Motion, p. 2, 2:27-28, 3:1-4.)

Defendant opposes the motion and argues that his responses are complete and he has produced all responsive documents and photographs that are in his possession, custody, and control.

A. FI Nos. 7.1, 7.2, and 7.3

1. 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. (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 failure to fully answer. (See Coy v. Super. Ct., supra, 58 Cal.2d at p. 220-221.)

2. Meet and Confer

As a preliminary matter, Defendant argues that Florencia’s motion should be denied with regard to FI No. 7.1 because she failed to meet and confer with respect to that request.

A motion to compel further responses to interrogatories shall be accompanied by a meet and confer declaration “showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code of Civ. Proc. §§ 2016.040, 2030.300,subd. (b).) A reasonable and good faith attempt at informal resolution requires that the parties present the merits of their respective positions with candor, specificity, and support. (Townsend v. Super. Ct. (1998) 61 Cal.App.4th 1431, 1435, 1439.)

Defendant asserts that the instant motion was the first time that he learned that Florencia sought a further response to FI No. 7.1. Defendant’s argument is well-taken as a review of the correspondence between Plaintiffs’ counsel and Defendant’s counsel reveals that the only discovery requests discussed prior to the filing of the instant motion were FI Nos. 2.6, 7.2, 7.3, and 12.2, and RPD Nos. 4-6. As Florencia did not address FI No. 7.1 during her meet and confer efforts with Defendant, the Court finds that she failed to meet and confer with respect to that request.

Accordingly, Florencia’s motion is DENIED as to FI No. 7.1 on that basis.

3. Analysis

FI No. 7.2 asks Defendant whether a written estimate or evaluation has been made for any property loss that Defendant attributed to the accident and, if so, to identify the person who prepared the estimate and/or evaluation, persons with a copy of the estimate and/or evaluation, and the amount of damage stated. (Contreras Dec., Ex. A, p. 4.) Defendant responded to FI No. 7.2 by stating “No.” (Contreras Dec., Ex. B, p. 2:17.)

Florencia argues that the response to FI. No. 72 is incomplete because it does not identify any evaluations that were performed with respect to Defendant’s vehicle or provide a “complete itemization of all parts damaged.” (Sep. Stmt., p. 3:22-26.)

Defendant’s response to FI No. 7.2 is straightforward and complete because he clearly states that no written estimate or evaluation has been made for any property loss or damage that he attributes to the accident. (Code Civ. Proc., § 2030.220, subd. (a) [“[e]ach answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits”].) Thus, Defendant’s response is code-compliant and no further response is warranted to FI No. 7.2.

FI No. 7.3 asks Defendant if any property that was damaged as a result of the accident was repaired and, if so, to identify the date it was repaired, describe the repair that was performed, state the cost of the repair, identify the person who repaired the item, and identify the person who paid for the repair. (Contreras Dec., Ex. A, p. 4.) In his further response to FI No. 7.3, Defendant stated that he repaired his vehicle in “mid-September, 2012 for approximately $1,500.00, [. . .] with the help of a friend who works at a body shop, the name and location of which [he could] not recall.” (Contreras Dec., Ex. C, p. 1:23-27.) Defendant further stated that he changed the radiator and headlamp, replaced the hood, and painted the front end of his vehicle. (Id.)

Florencia argues that Defendant’s response to FI No. 7.3 is incomplete because he does not provide an “itemization of all parts” of his vehicle that were damaged, the contact information for the person that repaired his vehicle, and the contact information for the body shop where his vehicle was repaired.

With respect to Florencia’s argument that Defendant’s response is incomplete since he did not provide an “itemization of all parts” of his vehicle that were damaged, FI No 7.3 does not ask Defendant to provide a list of all parts of his vehicle that were damaged as a result of the accident. Moreover, Defendant provided a list of the specific parts that were repaired as requested by FI No. 7.3. Thus, Florencia’s argument lacks merit.

Defendant’s response to FI No. 7.3 is incomplete insofar as it does not provide contact information for the body shop where the vehicle was repaired, Defendant’s friend who helped him repair the vehicle, and the person who paid for the repairs on Defendant’s vehicle. To the extent that Defendant asserts that he cannot recall the name, location, or contact information of the body shop where the repairs were performed, he should state that he lacks sufficient personal knowledge to fully respond, but only after making 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 Plaintiffs. (Code Civ Proc., § 2030.220, subd. (c).) Thus, Defendant’s response is not code-compliant and a further response is warranted to FI No. 7.3.

4. Conclusion

Florencia’s motion to compel further responses is DENIED as to FI Nos. 7.1 and 7.2 and GRANTED as to FI No. 7.3.

C. RPD Nos. 3-5

1. Legal Standard

A party propounding a request for production of documents may move for an order compelling a further response if it 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. (Code Civ. Proc., § 2031.310, subd. (a).) The motion must set forth “specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1); Kirkland v. Super. Ct. (2002) 95 Cal.App.4th 92, 98.) Good cause is established simply by a fact-specific showing of relevance. (See Kirkland v. Super. Ct., supra, 95 Cal.App.4th at p. 98.) If good cause is shown, the burden shifts to the responding party to justify any objections. (Id.)

2. Meet and Confer

As a preliminary matter, Defendant argues that Florencia’s motion should be denied with regard to RPD No. 3 because she failed to meet and confer with respect to that request.

A motion to compel further responses to requests for production of documents shall be accompanied by a meet and confer declaration “showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code of Civ. Proc. §§ 2016.040, 2031.310, subd. (b).) A reasonable and good faith attempt at informal resolution requires that the parties present the merits of their respective positions with candor, specificity, and support. (Townsend v. Super. Ct., supra, 61 Cal.App.4th at p. 1435, 1439.)

Defendant asserts that the instant motion was the first time that he learned that Florencia sought a further response to RPD No. 3. Defendant’s argument is well-taken as a review of the correspondence between Plaintiffs’ counsel and Defendant’s counsel reveals that the only discovery requests discussed prior to the filing of the instant motion were FI Nos. 2.6, 7.2, 7.3, and 12.2, and RPD Nos. 4-6. As Florencia did not address RPD No. 3 during her meet and confer efforts with Defendant, the Court finds that she failed to meet and confer with respect to that request.

Accordingly, Florencia’s motion is DENIED as to RPD No. 3 on that basis.

3. Good Cause

Discovery is allowed for any matters that are not privileged, relevant to the action, and reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.010.) Information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement thereof. (See Gonzalez v. Super. Ct. (1995) 33 Cal.App.4th 1539, 1546.)

RPD Nos. 4-5 ask Defendant to produce all documents relating to the damage to the vehicles and/or any other property damage that occurred as a result of the accident, such as damage estimates, repair estimates, receipts, payments for repairs, and all photographs depicting property damage to the vehicles involved in accident.

The documents sought by the RPD will reveal information about the nature and extent of the damage sustained by the vehicles involved in the accident, which is relevant to the issues of liability, causation, and damages.

Accordingly, there is good cause for the discovery sought.

4. Objections

In his responses to RPD Nos. 4-5, Defendant asserted numerous objections to the requests. Defendant does not attempt to defend his objections in his opposition and argues only that his substantive responses are complete. Consequently, Defendant’s undefended objections are without merit and overruled, with the exception of his objections based on the attorney-client privilege and attorney work product doctrine, which are preserved. (See Coy v. Super. Ct., supra, 58 Cal.2d at pp. 220-221, Best Products, Inc. v. Super. Ct., (2004) 119 Cal.App.4th 1181, 1188-1189.)

5. Substantive Responses

RPD No. 4 asks Defendant to produce all documents relating to “all vehicles and/or property damage as a result of the [incident], including, but not limited to, damage estimates, repair estimates, repair orders, receipts, canceled checks, property damage, releases, vehicle damage photographs, appraisals, and/or payments for repairs or replacements.” (Contreras Dec., Ex. D, p. 4:5-9.) RPD No. 5 asks Defendant to produce all documents relating to “all photographs depicting property damage to the vehicles involved in the [incident].” (Contreras Dec., Ex. D, p. 4:11-13.)

Defendant provided identical substantive responses to RPD Nos. 4-5, stating that without waiving his objections he “encloses herein images of the vehicles, a vehicle valuation and damage assessment pertaining to the 2001 Honda, a draft payable to Michael J. Body Shop, a draft payable to Florencia Pichardo or Cristobal Pichardo, a damage assessment pertaining to the 2010 Toyota, and a draft payable to Abel Morelo. ” (Contreras Dec., Ex. E, p. 2:12-21.)

Pursuant to Code of Civil Procedure section 2031.210, subdivision (a), the party to whom a request for production of documents has been directed shall respond by providing: (1) a statement that the party will comply with the particular demand; (2) a representation that the party lacks the ability to comply with the demand; or (3) an objection to the particular demand.

Here, Defendant’s substantive responses to RPD Nos. 4-5 are not code-compliant because Defendant does not provide a statement of compliance or inability to comply, but merely indicates that he will produce certain documents of his own choosing. While Defendant indicates in his opposition papers that he has produced all responsive documents and photographs in his possession in response to RPD Nos. 4-5, he failed to state in his responses to the RPD that he will fully comply with the requests.

Similarly, Defendant indicates in his papers that he does not have any repair estimates, bills, or receipts that pertain to the repairs performed on his vehicle in connection with the accident, but fails to provide a representation of inability to comply in his responses to the RPD affirming that a diligent search and a reasonable inquiry has been made and specifying 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 his possession, custody, or control. (Code Civ Proc., § 2031.230.) Thus, further responses to RPD Nos. 4-5 are warranted.

Florencia also requests that the Court issue an order compelling Defendant to “produce in electronic format all documents, and photographs of the scene of the accident, photographs of damages to all three vehicles involved in the accident [. . .] and [. . .] all documents including but not limited to damage estimates, repair estimates, repair orders, receipts, canceled checks, property damage releases, vehicle damaged photographs, appraisals and/or payments for repairs or replacements.” (Notice of Motion, p. 2, 2:27-28, 3:1-4.) Florencia contends that despite Defendant’s assurances that he has produced all responsive materials, he has refused to produce several photographs in CD format and is withholding documents pertaining to damage estimates and evaluations that pertain to his vehicle.

Florencia’s basis for this request is that Defendant apparently agreed to produce certain responsive documents during meet and confer efforts and his statements of inability to comply made during meet and confer efforts are inaccurate. The Code of Civil Procedure does not provide that a party may move for an order compelling the production of documents when a party purportedly fails to comply with statements made during the meet and confer process, or the statements of inability to comply made during meet and confer efforts are inaccurate. The Code of Civil Procedure allows a party to move to compel compliance with a statement of compliance made in a response to a request for production of documents (Code Civ. Proc., § 2031.320), or a further response if a statement of inability to comply made in a response to a request for production of documents is evasive or incomplete. (Code Civ. Proc., 2031.310.) Given that Defendant’s responses to the RPD fail to state an agreement to comply or inability to comply, it would be premature for the Court to issue an order to compel the production of documents as requested by Florencia.

6. Conclusion

Florencia’s motion to compel further responses is DENIED as to RPD No. 3 and GRANTED as to RPD Nos. 4-5.

II. Requests for Sanctions

Both Florencia and Defendant request monetary sanctions in connection with the instant motion under Code of Civil Procedure section 2031.310, subdivision (h).

Code of Civil Procedure section 2031.310, subdivision (h) states that the court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, 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.

A. Florencia’s Request for Monetary Sanctions

Florencia requests monetary sanctions against Defendant and his counsel in the amount of $2,600.00. Here, Florencia’s motion was only partially successful and Defendant’s opposition was substantially justified, particularly with respect to FI Nos. 7.1 and 7.2, and RPD No. 3. Thus, an award of monetary sanctions pursuant to Code of Civil Procedure section 2031.310, subdivision (h) is unwarranted. Accordingly, Florencia’s request for sanctions is DENIED.

B. Defendant’s Request for Monetary Sanctions

Defendant requests monetary sanctions against Florencia and her counsel in the amount of $600.00. Here, Defendant was only partially successful in his opposition to the motion and Florencia was substantially justified in bringing the motion, particularly with respect to FI No. 7.3 and RPD Nos. 4-5. Thus, an award of monetary sanctions pursuant to Code of Civil Procedure section 2031.310, subdivision (h) is unwarranted. Accordingly, Defendant’s request for sanctions is DENIED.

Conclusion and Order

Florencia’s motion to compel further response is DENIED IN PART and GRANTED IN PART. The motion is DENIED as to FI Nos. 7.1, 7.2 and RPD No. 3. The motion is GRANTED as to FI No. 7.3 and RPD Nos. 4-5.

Accordingly, within 20 calendar days of the date of the filing of this Order, Defendant shall serve verified code-compliant further responses to FI No. 7.3 and RPD Nos. 4-5, without objections (except for the attorney-client privilege and work product doctrine objections, which have been preserved with respect to RPD Nos. 4-5), and produce responsive documents in accordance with his responses. To the extent any documents are withheld based upon the attorney-client privilege and/or work product doctrine, Defendant shall also provide a privilege log identifying all documents withheld and providing a factual basis for the privilege claimed.

Florencia’s request for monetary sanction is DENIED.

Defendant’s request for monetary sanctions is DENIED.