Case Number: EC061246    Hearing Date: November 07, 2014    Dept: A

Nowaid v Certain Underwriters

MOTIONS TO COMPEL FURTHER RESPONSES (3)

Calendar: 7
Case No: EC061246
Date: 11/7/14

MP: Defendant, Certain Underwriters at Lloyd’s London
RP: Plaintiff, Anthony Nowaid

RELIEF REQUESTED:
1. Order compelling the Plaintiff to serve further responses to the Defendant’s form interrogatories.
2. Order compelling the Plaintiff to serve further responses to the Defendant’s special interrogatories.
3. Order compelling the Plaintiff to serve further responses to the Defendant’s requests for production.

CHRONOLOGY:
Discovery Served: February 14, 2014
Responses Served: April 4, 2014

Motions filed: September 8, 2014 (TIMELY)

DISCUSSION:
This case arises from the Plaintiff’s claim that the Defendant breached a property insurance policy and acted in bad faith by failing to indemnify him for all wind damage to his property.
Trial is set for January 20, 2015.

This hearing concerns the Defendant’s three motions for discovery orders compelling the Plaintiff to serve further responses to the Defendant’s form interrogatories, special interrogatories, and requests for production.
The motions and accompanying declarations fail to indicate that the motions are timely. However, after searching through the chains of email correspondence in exhibits I, J, and K to the declaration of Defendant’s counsel, it appears that the parties agreed in an August 21, 2014 email sent at 6:22 pm that the Defendant could file its motions through September 8, 2014. Further, there is no opposition from the Plaintiff to indicate that the Plaintiff did not agree to the extension.

1. Motions Seeking Relief Regarding Form and Special Interrogatories
Under CCP section 2030.300, the Court may order a further response when any of the following applies:

1) an answer to a particular interrogatory is evasive or incomplete.
2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate.
3) An objection to an interrogatory is without merit or too general.

In the two motions regarding the form and special interrogatories, the Defendant seeks further responses to the following:

1) form interrogatories 3.1, 3.2, 3.3, 3.4, 3.5, 3.6, 3.7, 4.1, 4.2, 6.1, 6.2, 6.3, 6.4, 6.5, 6.6, 6.7, 7.1, 7.2, 7.3, 8.1, 8.2, 8.3, 8.4, 8.5, 8.6, 8.7, 8.8, 9.1, 9.2, 10.1, 10.2, 10.3, 11.1, 11.2, 12.2, 12.3, 14.1, 50.2, 50.3, and 50.6; and
2) special interrogatories 3, 12, 15, 16, 19, 20, 22, 23, and 24.

On October 31, 2014, the Defendant filed a notice that, based on supplemental responses it had received from the Plaintiff, it was withdrawing its request to compel further responses to 4.2, 6.1, 8.1, 8.7, and 9.2.

In response to the form interrogatories, the Plaintiff either failed to respond or served objections that the interrogatories were propounded to annoy, harass, and increase the cost of discovery. In addition, the Plaintiff asserted that the interrogatories were inapplicable and that based on the objections, the Plaintiff would not respond further.
Under California law, the objecting party has the burden of justifying its objections when the propounding party requests that the Court order further responses. Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221. This imposes the burden on the Plaintiff to proceed through each and every objection in all of its responses and demonstrate that each objection has merit. The Plaintiff did not meet this burden.
Accordingly, the Court will order the Plaintiff to serve further responses without objections to form interrogatories 3.1, 3.2, 3.3, 3.4, 3.5, 3.6, 3.7, 4.1, 6.2, 6.3, 6.4, 6.5, 6.6, 6.7, 7.1, 7.2, 7.3, 8.2, 8.3, 8.4, 8.5, 8.6, 8.8, 9.1, 10.1, 10.2, 10.3, 11.1, 11.2, 12.2, 12.3, 14.1, 50.2, 50.3, and 50.6.

The special interrogatories are contention interrogatories that sought facts, the identity of people with knowledge of the facts, and the identity of documents containing facts supporting the Plaintiff’s contentions.
In response to the special interrogatories the Plaintiff served objections, e.g., the documents were in the possession and control of the propounding party, the interrogatory calls for a legal conclusion, attorney work product, or known to propounding party. Under California law, the objecting party has the burden of justifying its objections when the propounding party requests that the Court order further responses. Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221. This imposes the burden on the Plaintiff to proceed through every objection in each of its responses and demonstrate that each objection has merit. The Plaintiff did not meet this burden.
In addition to objections, the Plaintiff served the same response: “Engineering Reports; Repair Estimates; photos; correspondence.” This vague list of documents appears to be an attempt to respond to the request for the identity of documents that contain evidence supporting the Plaintiff’s contentions. The response is incomplete because it does not identify a specific document and it does not identify the person who has the documents.

Accordingly, the Court will order the Plaintiff to serve further responses without objections to special interrogatories 3, 12, 15, 16, 19, 20, 22, 23, and 24.

Therefore, the Court will grant the Defendant’s two motions regarding the interrogatories and order the Plaintiff to serve further responses to the Defendant’s form and special interrogatories.

The Defendant did not seek any monetary sanctions.

2. Motion Seeking Relief Regarding Requests for Production
Under CCP section 2031.310, the Court may order a further response to a request for production when any of the following apply:

1) A statement of compliance with the demand is incomplete.
2) A representation of inability to comply is inadequate, incomplete, or evasive.
3) An objection in the response is without merit or too general.

The Defendant seeks an order compelling further responses to requests for production 7, 8, 13, and 19.

CCP section 2031.310(b)(1) requires the motion to set forth specific facts showing good cause justifying the production for inspection of any document or tangible thing described in the requests for production. In law and motion practice, factual evidence is supplied to the court by way of declarations. Calcor Space Facility v. Superior Court (1997) 53 Cal. App. 4th 216, 224 (rejecting facts supporting the production of documents that were in a separate statement because the document was not verified and did not constitute evidence). In Calcor, the Court of Appeal issued a writ of mandate issue directing the trial court to vacate its order compelling the defendant to produce records because the plaintiff had failed to provide specific facts showing good cause for their production.
Here, the same issue exists. The Defendant has not provided specific facts in a declaration to show good cause for the production of the documents sought in each of these requests for production. The declaration of the Defendant’s attorney, David Morrow, includes no facts regarding the documents sought in the requests for production at issue to demonstrate that there is good cause justifying the production of the documents. As noted in Calcor, this is grounds to deny the Defendant’s motion.
Accordingly, the Court will deny the Defendant’s motion to compel further responses because the Defendant did not comply with the requirement to set forth specific facts in CCP section 2031.310(b)(1).

RULING:
1. ORDER the Plaintiff to serve further responses without objections to the Defendant’s form interrogatories 3.1, 3.2, 3.3, 3.4, 3.5, 3.6, 3.7, 4.1, 6.2, 6.3, 6.4, 6.5, 6.6, 6.7, 7.1, 7.2, 7.3, 8.2, 8.3, 8.4, 8.5, 8.6, 8.8, 9.1, 10.1, 10.2, 10.3, 11.1, 11.2, 12.2, 12.3, 14.1, 50.2, 50.3, and 50.6 within twenty days.
2. ORDER the Plaintiff to serve further responses without objections to the Defendant’s special interrogatories within twenty days.
3. DENY Defendant’s motion to compel further responses to its requests for production.

Later:
In an untimely opposition filed on October 31, 2014, the Plaintiff did not proceed through its objection and demonstrate that each has merit. Instead, the Plaintiff made arguments that the interrogatories are inappropriate.
For example, form interrogatories 3.2 asked whether the Plaintiff is a partnership. Rather than simply serving the response “No”, the Plaintiff chose to make objections and argue that the interrogatory does not apply because he is an individual. It is not clear why the Plaintiff chose to make waste time and resources by making objections rather than simply drafting the reply “No”. However, since the Plaintiff made objections that the interrogatory was served to annoy, harass, and increase the cost, the Plaintiff had the burden to justify each objection. The Plaintiff’s objections are unmerited because the Plaintiff did not meet this burden.

NO CHANGE IN TENTATIVE RULING