R. Arroyo, Jr. v. Robinson Oil Corporation		CASE NO. 113CV252002
DATE: 8 August 2014	TIME: 9:00	LINE NUMBER: 11

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 7 August 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 8 August 2014, the motion of defendant Robinson Oil Corporation (“Robinson”) to compel further responses to special interrogatories, set one (“SI”) and request for production of documents, set one (“RPD”), and for monetary sanctions was argued and submitted. Plaintiff Rafael Arroyo, Jr. (“Arroyo”) filed a formal opposition to the motion.

Statement of Facts

This is an action for the violation of civil rights arising from the alleged denial of full and equal access to Robinson’s service station. In his complaint, Arroyo alleges the following: He is a paraplegic, who uses a wheelchair for mobility (Compl., p.1:23-24.)

On or about December 29, 2012, Arroyo drove his specially configured automobile to Robinson’s service station located at 455 East Julian Street in San Jose. (Compl., p. 2:11-12.) He was unable to use any of the fuel dispenser pumps because he could not reach the operating mechanism for the payment card reader. (Compl., p. 2:17-21.) Arroyo asserts he was denied full and equal access to a public accommodation due to the inaccessibility of the payment card reader. (Compl., pp. 2:28, 3:1-2.)

In his complaint, Arroyo asserts three causes of action against Robinson for:

(1) violation of the Unruh Civil Rights Act,

(2) violation of the California Disabled Persons Act (“DPA”), and

(3) negligence.

Discovery Dispute

On 4 April 2014, Robinson served the SI and RPD on Arroyo. Arroyo provided responses to both sets of discovery requests on 9 May 2014. The responses to the SI and RPD consisted of both objections and substantive responses.

On 15 May 2014, Robinson’s counsel sent a meet and confer letter to Arroyo’s counsel, raising several perceived deficiencies with the responses to the SI and RPD. On 17 June 2014, Arroyo’s counsel sent a letter in response, indicating that the responses were code-compliant. Nevertheless, counsel indicated that, in the spirit of compromise, Arroyo would serve supplemental responses. On 20 June 2014, Arroyo served supplemental responses to the SI and RPD.

Dissatisfied with these responses, Robinson’s counsel initiated further meet and confer efforts. Despite a number of discussions, the parties were unable to resolve their disagreements. Consequently, on 2 July 2014, Robinson filed this motion to compel further responses to the SI and RPD. Arroyo filed his opposition on 21 July 2014.

Discussion

I. Request for Judicial Notice

Robinson requests that the Court take judicial notice of an order on a motion to compel further responses to interrogatories set 1 and 2, request for sanction, and motion to allow additional discovery, filed in Arroyo v. Robinson Oil Corporation, Merced County Superior Court Case No. CVM015355.

A court may take judicial notice of court records that are relevant to a pending issue. (Evid. Code, §452, subd. (d); People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 [only relevant matters subject to judicial notice].)

While the order at issue is a court record, Robinson fails to specifically articulate how it is relevant to the issues involved in this motion. In addition, it is not readily apparent how an order on a discovery motion filed in another court, based on presumably different factual circumstances, is relevant to the pending motion. Accordingly, Robinson’s request for judicial notice is DENIED.

II. Motion to Compel Further Responses to the SI

Robinson moves to compel further responses to SI Nos. 12-15 on the ground that Arroyo’s objections are without merit and his substantive responses are incomplete.

               A. Legal Standards

A party propounding interrogatories may move for an order compelling further responses if that party deems an objection is without merit or too general or a response is evasive or incomplete. (See Cal. Code Civ. Proc., §2030.300, subd. (a).) The statute does not require any showing of good cause in support of a motion.  (See Cal. Code Civ. Proc., §2030.300; see also Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221.)  The burden is on the responding party to justify any objections.  (See Coy v. Superior Court, supra, 58 Cal.2d at pp. 220-221.)

               B. Objections

Arroyo raised a number of objections to each of the SI.[1] In its opposition, Arroyo does not attempt to justify any of the objections asserted in his responses to the SI.[2] Thus, all of the objections are overruled.  (Coy v. Superior Court, supra, 58 Cal.2d at pp. 220-221.)

            C. Substantive Responses

Robinson contends that further responses are warranted because the substantive responses provided are incomplete.

SI No. 12 asked Arroyo to state the number of business establishments providing gas that he visited each day during the period of December 27, 2012 to December 31, 2012. Arroyo’s substantive response was as follows, “Notwithstanding the objections and subject to them, both Plaintiff and his counsel have made a diligent search of all non-privileged records and Plaintiff can recall visiting 10 establishments providing gas on December 29, 2012.”

SI No. 13 asked Arroyo to state the date and time of each visit identified in SI No. 12. Arroyo responded, “Notwithstanding the objections and subject to them, Plaintiff and his counsel have made a diligent search of all non-privileged records and Plaintiff can recall visiting 10 establishments providing gas on December 29, 2012. He visited said establishments between 1:16 am and 3:38 pm.”

SI No. 14 asked Arroyo to state the name and address of each business establishment identified in SI No. 13. Arroyo’s substantive response provides the names and addresses of each business establishment identified in SI No. 13, with the proviso that his response is subject to his prior objections.

SI No. 15 asked Arroyo to list each business establishment identified in SI No. 14 from which he purchased gasoline. Arroyo responded, “Notwithstanding the objections and subject to them, Plaintiff was successful in purchasing gas. However, as this was in 2012, Plaintiff is unable to recall from which station he made his purchase.”

An interrogatory response must be as complete and straightforward as the information available to the responding party permits.  (Code Civ. Proc., § 2030.220, subd. (a).)  The responding party must make a reasonable and good faith effort to obtain the information by inquiry to other persons or organizations, and if the responding party lacks sufficient personal knowledge to fully respond to a request, it shall so state. (Code Civ. Proc., § 2030.220, subd. (c).)

In each of his responses, Arroyo makes a prefatory statement that his responses are “subject to” his objections. Robinson argues further responses are warranted because Arroyo’s responses are improperly limited by the assertion of his unjustified objections. This argument is well-taken.  The “subject to” language suggests that the substantive responses only include information that Arroyo did not find objectionable.[3] Therefore, the substantive responses are incomplete.

               D. Conclusion

In sum, Arroyo’s objections to SI Nos. 12-15 are overruled and his substantive responses are incomplete. Accordingly, the motion to compel further responses to the SI is GRANTED.

II. Motion to Compel Further Responses to the RPD

Robinson moves to compel further responses to RPD Nos. 10 and 11 on the ground that Arroyo’s objections are without merit and his substantive responses are evasive.

RPD No. 10 sought all documents evidencing the date, time and location of all visits Arroyo made to any business establishment providing gasoline from December 27, 2012 to December 31, 2012.

RPD No. 11 sought all documents evidencing Arroyo’s purchase of gasoline from all business establishments providing gasoline from December 27, 2012 to December 31, 2012.

Arroyo responded to the RPD by interposing a number of objections and representing that he is unable to comply with the requests.

               A. Legal Standards

A party propounding a request for production may move for an order compelling a further response if it deems that a representation of inability to comply is inadequate, incomplete or evasive, or 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. Superior Court (2002) 95 Cal.App.4th 92, 98.)  Good cause is established simply by a fact-specific showing of relevance.  (Kirkland v. Superior Court, 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.)

               B. Good Cause

Discovery is allowed for any matters that are relevant to the action, reasonably calculated to lead to the discovery of admissible evidence and not privileged. (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. Superior Court (1995) 33 Cal.App.4th 1539, 1546.)

Robinson argues that documents concerning the gas stations that Arroyo visited are likely to lead to admissible evidence. In particular, it suggests that the documents may support its contention that Arroyo visited gas stations solely for the purpose of discovering violations of the Americans with Disabilities Act (“ADA”), rather than with the intent to procure gasoline.

In opposition, Arroyo cites Molski v. Price (C.D. Cal. 2004) 224 F.R.D. 479, for the proposition that a litigant’s motivation in visiting a place of public accommodation is not relevant to an action based on a violation of the ADA. Arroyo’s reliance on Molski is misplaced.

In Molski, a disabled individual (“Molski”) sought injunctive relief against a service station for, in part, failing to provide an ADA-compliant restroom for its customers. (Molski, supra, 224 F.R.D. at p. 480.) The service station moved to dismiss the complaint for lack of subject matter jurisdiction. It argued that Molski failed to show that he had standing for injunctive relief because the only reason he intended to return to the service station would be to determine whether the service station complied with the ADA. (Id. at p. 483.) The federal district court rejected the service station’s argument. The court held that Molski’s motivation to return to the service station was irrelevant to determining his standing for injunctive relief. (Id. at p. 484.)

Unlike Molski, supra, the present case does not involve the issue of Arroyo’s standing for injunctive relief. (See Reycraft v. Lee (2009) 177 Cal.App.4th 1211, 1217 [holding that federal authorities ill-suited to analysis of standing under the DPA].) Instead, Robinson seeks these documents in order to demonstrate that Arroyo did not intend to patronize its business establishment to purchase gas. The information is relevant to the issue of standing under the DPA as Arroyo must show that he actually presented himself “to a business or public place with the intent of purchasing its products or utilizing its services in the manner in which those products and/or services are typically offered to the public and was actually denied equal access on a particular occasion.” (Id. at p. 1224.)

Furthermore, relative to Arroyo’s cause of action for violation of the Unruh Civil Rights Act, a plaintiff may demonstrate a denial of full and equal access if he experienced difficulty, discomfort, or embarrassment as a result of a violation of the ADA. (See Code Civ. Proc., § 55.56, subd. (c); Mundy v. Pro-Thro Enterprises (2011) 192 Cal.App.4th Supp. 1, 5.) Here, evidence that Arroyo visited other gas stations for the sole purpose of discovering violations of the ADA may be relevant to contest the veracity of Arroyo’s claim that he experienced difficulty due to the alleged denial of equal access at the Julian Street service station. (See Ramirez v. Sam’s for Play Café (N.D.Cal. Aug. 15, 2013, C 11-1370 MEJ) 2013 U.S.Dist. Lexis 115833 [indicating that prior ADA violation claims may serve as basis for credibility determination if fraudulent or otherwise made in bad faith].)

Accordingly, the documents sought by RPD Nos. 10 and 11 are relevant, and good cause exists for their discovery.

               C. Objections

In response to RPD Nos. 10 and 11, Arroyo asserted a number of objections.[4] In his opposition, he only attempts to justify his relevance objection. As indicated above, the documents sought are relevant because they may assist Robinson in proving that Arroyo did not intend to patronize its business establishment to purchase gas. Accordingly, all of the objections are overruled, except for the objections on the basis of the attorney-client privilege and attorney work product doctrine, which have been preserved. (See Kirkland v. Superior Court, supra, 95 Cal.App.4th at p. 98; Best Products, Inc. v. Superior Court (2004) 119 Cal.App.4th 1181, 1188-1189.)

D. Substantive Responses

In his identical substantive responses to RPD Nos. 10 and 11, Arroyo stated: “Notwithstanding the objections and subject to them, after a diligent search and reasonable inquiry, Plaintiff does not have any responsive documents to this request in his possession, custody or control at this time. Should responsive documents become available, Plaintiff will supplement.”

Robinson contends that these responses are not code-compliant because Arroyo does not state the reasons he cannot comply. Robinson’s argument is persuasive.

A representation of inability to comply must affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with the request and specify 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 the possession, custody, or control of the responding party. (See Code Civ. Proc., § 2031.230.)

Here, Arroyo has not specified the reason he is unable to comply, as required by Code of Civil Procedure section 2031.230. Accordingly, his responses to RPD Nos. 10 and 11 are not code-compliant.

               E. Conclusion

In sum, there is good cause for the discovery sought, all of Arroyo’s objections are overruled, except for his objections on the grounds of the attorney-client privilege and attorney work product doctrine, which have been preserved, and the responses to RPD Nos. 10 and 11 are not code-compliant. Accordingly, the motion to compel further responses to the RPD is GRANTED.

III. Robinson’s Request for Monetary Sanctions

Robinson seeks monetary sanctions against Arroyo and his counsel pursuant to Code of Civil Procedure sections 2030.300, subdivision (d), and 2031.310, subdivision (h), which 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 or requests for production of documents unless the party or attorney acted with substantial justification or other circumstances make the imposition of a sanction unjust.

Here, Robinson prevailed on the motion. Thus, Arroyo and his counsel did not act with substantial justification, and no other circumstances make the imposition of sanctions unjust. Accordingly, the Court will award monetary sanctions against Arroyo and/or his counsel.

Robinson’s counsel, Linda MacLeod, avers that she spent 3 hours drafting the motion to compel at a billing rate of $400 per hour. Ms. MacLeod further estimates that she will spend an additional 3 hours drafting a reply brief and appearing at the hearing. 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 the amount of time spent preparing the motion to compel are otherwise reasonable. Finally, Robinson seeks reimbursement of the $90 filing and court reporter fees for this motion. These fees constitute reasonable expenses.

Accordingly, Robinson’s request for monetary sanctions against Arroyo and his counsel is GRANTED IN PART in the amount of $1,290.         

Conclusion and Order

Robinson’s request for judicial notice is DENIED.

Robinson’s motion to compel further responses to the SI is GRANTED. Accordingly, within 20 calendar days of the filing of this Order, Arroyo shall serve verified, code-compliant further responses to SI Nos. 12-15, without objections.

Robinson’s motion to compel further responses to the RPD is GRANTED. Accordingly, within 20 calendar days of the filing of this Order, Arroyo shall serve verified code-compliant further responses to RPD Nos. 10 and 11, without objections (except for objections on the ground of the attorney-client privilege and attorney work product doctrine, which have been preserved), and produce documents in accordance with those responses. To the extent any documents are withheld based upon the attorney-client privilege and/or attorney work product doctrine, Arroyo shall also serve a privilege log identifying all documents withheld and providing a factual basis for the privilege claimed.

Robinson’s request for monetary sanctions against Arroyo and his counsel is GRANTED IN PART in the amount of $1,290. Accordingly, Arroyo and/or his counsel shall pay $1,290 to Robinson’s counsel within 20 calendar days of the filing of this Order.

 

 

________________­­­____________ DATED:

_________________________­­­________________________ HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara