Case Name:   Hoang O. Meeuwissen v. Daley’s Drywall and Taping, Inc., et al.

Case No.:       1-13-CV-253206

 

Currently before the Court is the motion of plaintiff Hoang O. Meeuwissen (“Plaintiff”) to compel further responses to requests for admission (“RFA”s) 1-6 and form interrogatories (“FI”s) 12.1, 15.1, 16.1, 16.2, and 17.1, and for monetary sanctions.  Defendant Lyncon Construction, Inc. (“Lyncon”) filed an opposition to the motion in which it also requests monetary sanctions.

 

Meet and Confer

 

Lyncon contends that Plaintiff failed to adequately meet and confer prior to filing the instant motion because her counsel refused to re-direct the discovery at issue to defendant Daley’s Drywall and Taping, Inc. (“Daley’s”), which Lyncon’s counsel suggested would be more fruitful given that Daley’s was more directly involved with the incident giving rise to Plaintiff’s injuries.  However, Plaintiff was obligated only to present the merits of her position to Lyncon, not to agree to the solution proposed by Lyncon.  (See Code Civ. Proc. (“CCP”), §§ 2016.040, 2030.300, subd. (b), 2033.290, subd. (b) [a motion to compel further responses 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”]; Townsend v. Super. Ct. (EMC Mortgage Co.) (1998) 61 Cal.App.4th 1431, 1435, 1439 [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].)  Plaintiff fulfilled this obligation in her April 14, 2014 letter, and Lyncon’s response made it clear that the parties had reached an impasse prior to when Plaintiff filed the instant motion.  Under the circumstances, Plaintiff was not required to continue to meet and confer.  (See Obregon v. Super. Ct. (Cimm’s, Inc.) (1998) 67 Cal.App.4th 424, 431 [the level of effort at informal resolution that satisfies the “reasonable and good faith attempt” standard depends upon the circumstances of the case].)

 

The RFAs

 

Lyncon does not defend or even address its responses to the RFAs in its opposition papers.  Consequently, the Court finds that its objections to the RFAs lack merit. (See Coy v. Super. Ct. (Wolcher) (1962) 58 Cal.2d 210, 220-221 [party asserting objections has the burden to prove them].)

 

It is unclear to what extent Lyncon’s substantive responses stating that it is unable to admit or deny the RFAs depend upon its meritless objections.  However, given that the RFAs pertain to matters concerning Lyncon’s own actions and its contentions in this lawsuit, these responses appear to be substantively deficient to the extent they do not depend upon Lyncon’s objections.  While Lyncon may respond that it lacks information to admit or deny the RFAs based on information known to it or readily obtainable following a reasonably inquiry where appropriate (see CCP, § 2033.220, subd. (c)), if it does not intend to contest the facts to which Plainitff’s RFAs pertain, it is obligated to say so via an admission, and it should simply deny RFAs setting forth facts that it intends to dispute.  (See Chodos v. Super. Ct. (Lowe) (1963) 215 Cal.App.2d 318, 323-324.)

 

In accordance with the above, Plaintiff’s motion is GRANTED as to RFAs 1-6.  Lyncon shall serve verified, code-compliant further responses, without objections, to RFAs 1-6 within 20 calendar days of the filing of the Court’s order.

 

The FIs

 

Lyncon’s response to FI 12.1 included a reference to an unidentified Daley’s employee, and Plaintiff moves to compel a further response that identifies the employee.  Lyncon contends that it does not have this information because Daley’s was merely its subcontractor on the project during which Plaintiff was injured.  However, Plaintiff points out that Lyncon and Daley’s are represented by the same counsel in this matter.  A party furnishing answers to interrogatories “cannot plead ignorance to information which can be obtained from sources under his or her control” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 782), including from his or her counsel (Smith v. Super. Ct. (Alfred) (1961) 189 Cal.App.2d 6, 12 [“Even if the names and addresses of the witnesses were known only to the attorneys, they would have to be disclosed on a proper interrogatory addressed to the party.”]).  Further, if a party can provide only a partial answer to an interrogatory, he or she “should set forth the efforts made to secure the information.”  (Deyo v. Kilbourne, supra, 84 Cal.App.3d at p. 782.)  Thus, Lyncon must provide a further response to this FI, providing the name of the Daley’s witness or else indicating that it has been unable to obtain the witness’s name after making inquiries to the sources under its control, including its attorneys.

 

Lyncon objected to FIs 15.1, 16.1, and 16.2 based on the attorney-client privilege and/or attorney work product doctrine, stating in its response to FI 15.1 that its affirmative defenses were asserted in order to preserve its rights pending development of the facts of this case, and answering generally that Plaintiff negligently failed to follow established safety procedures related to entry into restricted areas.  Lyncon did not provide a substantive response to FI 16.1 or 16.2.  Lyncon does not defend its privilege and work product objections, which are not generally applicable to interrogatories calling for the identification of facts, witnesses, and documents.  (See Best Products, Inc. v. Super. Ct. (Granatelli Motorsports, Inc.) (2004)119 Cal.App.4th 1181, 1190 [noting that the existence of a document containing privileged information is not privileged].)  Rather, it merely contends that its defenses were ones it “deemed proper under the facts as known at the time of the answer,” and it is too early in the litigation for it to be able to completely answer these interrogatories.  However, Lyncon is obligated to respond to Plaintiff’s interrogatories based on the information currently available to it.  (See Singer v. Super. Ct. (Parr-Richmond Terminal Co.) (1960) 54 Cal. 2d 318, 326 [“All that is requested are the facts now known to the defendant upon which it predicates its defenses. The plaintiff is entitled to that information.”].)  Further, FI 15.1 specifically requests that Lyncon provide this information as to each of its denials and defenses, so Lyncon’s general response to this FI is insufficient.  (See Deyo v. Kilbourne, supra, 84 Cal.App.3d at p. 783 [“Where the question is specific and explicit, an answer which supplies only a portion of the information sought is wholly insufficient. Likewise, a party may not provide deftly worded conclusionary answers designed to evade a series of explicit questions.”].)  Accordingly, further responses to FIs 15.1, 16.1, and16.2 are warranted.

 

Finally, Plaintiff seeks to compel a further response to FI 17.1 insofar as it pertains to RFAs 1-7.  As discussed above, Lyncon must respond fully to each part of FI 17.1.  (See Deyo v. Kilbourne, supra, 84 Cal.App.3d at p. 783.)  The portions of the FI asking Lyncon to identify witnesses and documents supporting its responses to the RFAs at issue are not inapplicable merely because Lyncon denied or stated it was unable to admit or deny the RFAs.  Further, it is improper to answer an interrogatory with reference to another document without summarizing the document so that the answer is fully responsive to the question.  (Id. at pp. 783-784.)  A further response to FI 17.1 is warranted as to each of these RFAs to correct these deficiencies.

 

Plaintiff’s motion is consequently GRANTED as to FIs 12.1, 15.1, 16.1, 16.2, and 17.1.  Lyncon shall serve verified, code-compliant further responses, without objections, to these FIs within 20 calendar days of the filing of the Court’s order.

 

Requests for Monetary Sanctions

 

Plaintiff and Lyncon each request monetary sanctions in connection with the instant motion.

 

Plaintiff’s Request for Monetary Sanctions

 

CCP sections 2030.300, subdivision (d) and 2033.290, subdivision (d)^[1] provide that the court shall impose a monetary sanction against any party or attorney who unsuccessfully makes or opposes a motion to compel further responses to interrogatories and requests for admission, unless the party or attorney acted with substantial justification or other circumstances make the imposition of a sanction unjust.  Here, Lyncon’s opposition to Plaintiff’s motion to compel was unsuccessful, Lyncon was not substantially justified in its failure to respond fully to the discovery at issue, and no other circumstances make the imposition of sanctions unjust. Therefore, the Court will award monetary sanctions against Lyncon.

 

Plaintiff’s counsel states that freelance litigator Laura Liccardo spent 5.5 hours drafting the motion to compel at a billing rate of $150 per hour (for a total of $825). In addition, counsel estimates that an additional 2 hours will be required to review Lyncon’s opposition, prepare a reply brief, and appear at the hearing on this motion. However, the Court does not award sanctions for expenses not yet incurred (see CCP, § 2023.030, subd. (a); Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551), so these anticipated attorney fees are not compensable.  Ms. Liccardo’s hourly rate and the amount of time spent preparing the motion to compel are otherwise reasonable.

 

Accordingly, Plaintiff’s request for monetary sanctions against Lyncon and its counsel is GRANTED IN PART in the amount of $825.  Lyncon and its counsel shall pay $825 to Plaintiff’s counsel within 20 calendar days of the filing of the Court’s order.

 

Lyncon’s Request for Monetary Sanctions

 

Lyncon requests monetary sanctions in an unspecified “amount to be submitted at time of hearing” pursuant to CCP section 2023.030, subdivision (a).  Lyncon’s request is not code-compliant because it does not state whether sanctions are sought against Plaintiff, her counsel, or both, and it is not accompanied by a declaration setting forth facts supporting the amount of the monetary sanction requested.  (See CCP, § 2023.040.)  Further, “[s]ection 2023.030 authorizes a court to impose the specified types of sanctions, ‘[t]o the extent authorized by the chapter governing any particular discovery method or any other provision of this title.’ (Ibid.) This means that the statutes governing the particular discovery methods limit the permissible sanctions to those sanctions provided under the applicable governing statutes.”  (New Albertsons, Inc. v. Super. Ct. (Shanahan) (2008) 168 Cal.App.4th 1403, 1422.)  Here, Lyncon does not cite to any statute governing a particular discovery method in support of its request, and the Court accordingly finds that the request is unsupported.

 

Consequently, Lyncon’s request for monetary sanctions is DENIED.