Case Number: BC577039 Hearing Date: May 11, 2018 Dept: NCD

TENTATIVE RULING

Calendar: 11

Date: 5/11/18

Case No: BC 577039 Trial Date: March 25, 2019

Case Name: Avery, et al. v. Estate of Fawaz Khalil, et al.

MOTION TO COMPEL FURTHER RESPONSES TO INTERROGATORIES

(CCP § 2030.300, et seq.)

Moving Party: Defendant City of Burbank

Responding Party: Plaintiff Angelique Avery

RULING:

Defendant City of Burbank’s Motion to Compel Further Responses to Special Interrogatories, Set One:

Motion is MOOT as to Special Interrogatories Nos. 10, 11, 18 and 22 in light of the service on April 20, 2018 of Further Responses to those Interrogatories.

As to Special Interrogatory No. 9, the motion is GRANTED IN PART.

The court notes that plaintiff is seeking damages in this action based on personal injuries she alleges she suffered in the subject incident. Defendant is accordingly entitled to discovery information concerning the condition of plaintiff which has been tendered by plaintiff in this lawsuit. Plaintiff is ordered to serve a further response to this interrogatory which identifies all physicians from whom plaintiff has received treatment during the past seven years limited to treatment provided for the specific medical conditions plaintiff is now claiming were caused by the subject incident, and body parts plaintiff is now claiming were affected by the subject incident. Further response is to be made without objections, which plaintiff has failed to justify and the court finds without merit.

As to Special Interrogatories Nos. 14, 16, 17 and 21:

The court notes it has considered the motion as to these interrogatories despite moving party’s failure to submit an appropriate separate statement. CRC Rule 3.1345(c) provides that a separate statement is a “separate document filed and served with the discovery motion that provides all the information necessary to understand each discovery request and all the responses to it that are at issue.” This separate statement “must include” for each discovery request to which a further response is requested, the text of the request, the text of each response or further response, and “(5) If the response to a particular discovery request is dependent on the response given to another discovery request,…the other request and the response to it must be set forth.” Here, the responses at issue are references to other responses, such as “Plaintiff is referred to FCA’s response and objections to Request for Production No. 9,” but the text of that request, and, more importantly, the response to it, are not set forth. The subdivision further states that “The separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and the full response.” The court has greatly inconvenienced by this omission, and plaintiffs are cautioned that further motions must provide all matter required to understand the discovery request and response.

Motion is GRANTED. Plaintiff is ordered to serve further complete responses which provide all information requested, and fully comply with CCP section 2030.220, including the requirement that where a party does not have personal knowledge sufficient to answer a question, the party “shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations…” The court does not find acceptable a response which states “Discovery is continuing.” The court has considered the asserted objections and finds they are without merit, and therefore overrules all objections, so that further responses are to be served without objections.

Further responses to be served within ten days.

Monetary sanctions in the amount of $2,000.00 [$2,000 requested] are awarded against plaintiff Angelique Avery, payable within 30 days. CCP sections 2030.300(d), 2023.010(f), 2023.030(a).

Monetary sanctions sought in the opposition are DENIED.

RELIEF REQUESTED:

Further Responses to Special Interrogatories, Set One

CHRONOLOGY

Date Discovery served : December 19, 2017

Date Responses served: February 13, 2018

Date Motion served: April 4, 2018 timely

Meet and Confer? Ok, Exhibit C

FACTUAL BACKGROUND:

Plaintiffs Angelique Avery, Adolphus Jones and Scott Ross allege that in September of 2014 they were passengers in a train when it collided with an automobile operated by defendant Fawaz Khalil. Plaintiffs allege that defendants Los Angeles County Metropolitan Transportation Authority, California Department of Transportation, the City of Burbank and the County of Los Angeles, negligently owned operated and maintained the subject vehicle to cause it to collide with Khalil’s vehicle, and breached their duties as common carriers, as well as statutory duties.

ANALYSIS:

Under CCP sec. 2017.010, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action…if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” The section specifically provides that “discovery may relate to the claim or defense of the party seeking discovery or of any other party,” and that discovery may be obtained “of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition and location of any…tangible thing.”

CCP sec. 2030.300(a) provides that if the party propounding interrogatories deems that an objection is without merit or too general or that “an answer to a particular interrogatory is evasive or incomplete”, “the propounding party may move for an order compelling a further response…”

If a timely motion to compel has been filed, the burden is on the responding party to justify any objection or failure to fully respond to discovery. Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221. The granting or denial of a motion to compel is in the discretion of the trial court. Id. A court should generally consider the following factors:

The relationship of the information sought to the issues framed in the pleadings;

The likelihood that disclosure will be of practical benefit to the party seeking discovery;

The burden or expense likely to be encountered by the responding party in furnishing the information sought.

Columbia Broadcast System, Inc. v. Superior Court (1968) 263 Cal.App.2d 12, 19.

The motion concerns nine special interrogatories. The opposition indicates that since the filing of the motion, plaintiff has served further responses to four of the nine, rendering the motion moot as to those Special Interrogatories, Nos. 10, 11, 18 and 22. If moving party finds those further responses unsatisfactory, the parties must further meet and confer and provide an updated separate statement to address any issues which cannot be resolved through meet and confer.

This leaves Special Interrogatories Nos. 9, 14, 16, 17 and 21.

Special Interrogatory No. 9

This interrogatory requests, “State the name, address and telephone number of all other physicians from whom YOU have received treatment during the past seven (7) years.”

The response states a series of objections, including irrelevant, ambiguous, unnecessary invasion of privacy, attorney client and work product privilege, seeks disclosure of expert witness information, overbroad and calls for a narrative, and calls for speculation from a layperson on a subject matter that may require an expert witness opinion.

Defendant argues that plaintiff has put her medical condition at issue in this case and the City is entitled to conduct discovery into plaintiff’s prior medical history and treatment to determine if plaintiff had prior related injuries or preexisting conditions.

Under Evidence Code § 990 and 1010, a patient enjoys a privilege to refuse to disclose any “confidential communication” between the patient and a treating physician. Section 996 provides an exception where the patient is a litigant, stating that there “is no privilege… as to a communications relevant to an issue concerning the condition of the patient if such issue has been tendered by …[the] patient.”

In Britt v. Superior Court (1978) 20 Cal.3d 844, the California Supreme Court reversed a trial court’s order granting a motion to compel discovery of a plaintiff homeowner’s medical histories in a nuisance and personal injury case against an airport, concluding:

“While [plaintiffs] may not withhold information which relates to any physical or mental condition which they have put in issue by bringing this lawsuit, they are entitled to retain the confidentiality or all unrelated medical or psychotherapeutic treatment they may have undergone in the past.”

Britt, at 862.

In Britt, the Supreme Court noted that where private information is sought, the burden is on the party seeking discovery to show a particularized need for the information sought, that the information is directly relevant to the cause of action or defense. Britt, at 859-862. The moving party must also show that the information sought is not available from other sources or through less intrusive means. Allen v. Superior Court (1984) 151 Cal.App.3d 447, 449.

Defendant cites In re Lifschutz (1970) 2 Cal.3d 415, in which the California Supreme Court addressed the issue of psychiatric records sought of a plaintiff which had initiated an action seeking damages for emotional distress. The court cautioned that in such a case, under Evidence Code section 1016, “disclosure can be compelled only with respect to those mental conditions the patient-litigant has disclosed by bringing an action in which they are in issue.” In re Lifschutz, at 435 (emphasis in the original).

The opposition argues that it is clear that seven years of past medical history for any and all reasons is entirely a fishing expedition by defendant in violation of plaintiff’s privacy.

There is no offer here by either side concerning what has been tendered in this lawsuit concerning plaintiff’s injuries in order for the court to properly narrow this interrogatory. This might be discussed at the hearing, as ordinarily the appropriate outcome for such a dispute would be to limit the interrogatory to identifying physicians who consulted, diagnosed or treated with respect to the specific conditions or body parts plaintiff is now claiming were affected by the accident. This can sometimes be established by responses by plaintiff to discovery requesting a description of each injury being claimed. The court may want to order the parties to meet and confer on this issue, or order that the interrogatory be responded to limited as set forth above.

Plaintiff has not discussed or justified any of the other objections, and any further response is ordered to be made without objection.

Special Interrogatory No. 14

This interrogatory requests:

“Please state the name, address and telephone number of each PERSON known to YOU to have personal knowledge of the facts upon which YOU base YOUR response to Interrogatory No. 12.”

As an initial matter, the separate statement is incomplete as to this interrogatory, as well as all other interrogatories still at issue, as each refer to a response to a previous interrogatory, but the text of such interrogatories and responses are not set forth verbatim in the separate statement, and those interrogatories do not appear to be at issue so the text is not otherwise set forth in the separate statement.

CRC Rule 3.1345(c) provides that a separate statement is a “separate document filed and served with the discovery motion that provides all the information necessary to understand each discovery request and all the responses to it that are at issue.” The section requires that a separate statement “must be full and complete so that no person is required to review any other document in order to determine the full request and the full response.” The rule requires the statement “must include” for each discovery request to which a further response is requested, the text of the request, the text of each response or further response, and “(5) If the response to a particular discovery request is dependent on the response given to another discovery request,…the other request and the response to it must be set forth.”

Here, the response at issue is a reference to another response, as set forth above, but the text of Interrogatory No. 12, and the response to it, are not set forth. The separate statement reasons for compelling a further response describes generally the other interrogatory and response, but since they are not set forth verbatim, this requires the court to review the responses themselves to confirm whether the responses here were sufficient, which is greatly inconvenient. The motion could be denied for failure to follow the mandatory provisions concerning separate statements, but the Court elects not to do so.

The response to this interrogatory is the same series of objections asserted to Interrogatory No. 9, and then “Without waiving the foregoing or any other objections, Responding Party responds as follows: Defendant, its employees and any independent contractors hired by Defendant. Discovery is continuing.”

Special Interrogatory No. 12 asks plaintiff if she contends the accident was caused by an act or omission of an employee of the City within the scope of employment, to which plaintiff responded with various objections, and then “Yes.”

Defendant argues that it is entitled to the names of witnesses, as the collision occurred in September of 2014 and plaintiff should know by now who the people are with such knowledge.

The opposition argues generally that plaintiff adequately responded to each question with the information she had at the time of responding.

Again, CCP § 2017.010, expressly provides that discovery may be obtained “of the identity and location of persons having knowledge of any discoverable matter…”

Under CCP section 2030.220(a), “each answer in a response shall be as complete and straightforward as the information reasonably available to the responding party permits.” Subdivision (b) provides, “if an interrogatory cannot be answered completely, it shall be answered to the extent possible.” Under subdivision (c), where a party does not have personal knowledge sufficient to answer a question, the party “shall make 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.”

Here, a further response is ordered which is complete, based on a reasonable and good faith effort to obtain this information, which plaintiff will need in any event to prove her case. Plaintiff has also failed to justify objections, so the response should be made without objection.

Interrogatories Nos. 16, 17, 21

These interrogatories seek facts supporting the contention that there was a dangerous condition, the identification of persons with knowledge of the existence of such a condition, and the identification of persons with knowledge of the City’s notice of such condition.

Again, the interrogatories refer to other interrogatories, and the motion could be denied on the ground the separate statement is incomplete, as discussed above, but the Court elects not to do so.

The responses are the same objections, and a recitation of general facts concerning the traffic lights, traffic signals, crossing designs, space, street design, railroad crossing arms and other necessary object/designs needed to maintain safe streets. The same witnesses are identified, essentially, defendant and its employees and independent contractors. Each response also states, “Discovery is continuing.”

Again, plaintiff has failed to justify the objections, and the responses appear incomplete, and fail to state that reasonable inquiry has been made. If plaintiff has not yet identified specific witnesses, the responses should so state. Further responses without objection and which provide full information are ordered served.

Sanctions

Both sides seek sanctions.

CCP § 2030.300 (d) provides that the court “shall impose a monetary sanction…against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further 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.”

Under CCP § 2023.010, misuse of the discovery process includes “(d) failing to respond or to submit to an authorized method of discovery.”; “(e) making, without substantial justification, an unmeritorious objection to discovery”; and “(f) making an evasive response to discovery.” Where there has been a misuse of the discovery process, under Section 2023.030(a), the court “may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.”

In this case, plaintiff has for the most part unsuccessfully opposed this motion (other than on the issue of imposing some limitation on the medical information), has made responses which are evasive and incomplete, objections she has failed to justify, and made the motion necessary. The court should award sanctions in favor of defendant.

The sanctions sought are $2,000, which appear reasonable.

Plaintiff seeks sanctions arguing that defendant failed to appropriately meet and confer, as it was not sufficient to send a letter, permit only seven days to respond, and then file the motion without any further contact. This does not appear unreasonable under the circumstances, as the letter was detailed, was faxed on March 13, 2018, requesting a response by March 20, 2018, the motion was not filed until two weeks later, on April 4, 2018, and plaintiff did not bother to respond until April 5, 2018. The argument would also be stronger if plaintiff were not standing by the responses to several interrogatories, confirming that an impasse had been reached and the motion could likely not have been avoided. No sanctions are awarded to plaintiff.