Tran v. 2000 Senter Road, LLC		CASE NO. 114CV260736
DATE: 25 September 2014	TIME: 9:00	LINE NUMBER: 13

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 Wednesday 24 September 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 25 September 2014, the motion of Plaintiff Ba Tran to compel further responses to

1)           Plaintiff’s Form Interrogatories, Set One, Nos. 3.7, 12.1, 12.2, 12.3, 14.1, 14.2, 15.1, and 17.1

2)           Plaintiff’s Special Interrogatories, Set One, Nos. 5-9

3)           Plaintiff’s Requests for Admissions, Set One, Nos. 2-7, 14, 15, 19, 23-25, 30, 31, 33, and 34

4)           Plaintiff’s Requests for Production of Documents, Set One, Nos. 1, 2, 6-12, 15-17, 19, 22-24, 27-33, 35, and 36

was argued and submitted.[1]

Defendants did not file formal opposition to the motion.[2]

All parties are reminded that all papers must comply with Rule of Court 3.1110(f).[3]

I.       Statement of Facts.

This case arises from the death of Plaintiff’s son, Viet Tran, who was shot while attending a nightclub at 2010 Senter Road, San Jose, California.  Plaintiff alleges that Defendant, the owner of the property, had knowledge of the ‘underground’ nightclub and the danger it posed.

II.      Discovery Dispute.

On 16 May 2014, Plaintiff served Defendant with Form Interrogatories, Set One, Special Interrogatories, Set One, Requests for Admissions, Set One, and Requests for Production of Documents, Set One.  Defendant requested an extension to respond until 4 July 2014.

On 30 June 2014, Defendant served Plaintiff with responses to Plaintiff’s discovery. Plaintiff received the served documents by mail on 15 July 2014.

On 23 July 2014, Plaintiff sent a meet and confer letter to Defendant explaining why Plaintiff thought many of Defendant’s discovery responses were inadequate.  Plaintiff did not respond.

On 4 August 2014, Plaintiff called and sent an email to Defendant, asking Defendant to meet and confer regarding the discovery issues.  On 5 August 2014, Defendant responded, and agreed to provide further responses to the discovery requests that Plaintiff believed were not code compliant.  The parties agreed to extend the deadline for a motion to compel until 5 September 2014.

On 12 August 2014, parties continued to meet and confer.  Defendant indicated that Defendant would not provide financial information due to privacy concerns.  Even though Plaintiff believed a privacy objection had been waived, Plaintiff offered to enter into a stipulated protective order.  Defendant did not respond.

On 19 August 2014, Plaintiff mailed and emailed a letter to Plaintiff demanding that further responses and responsive documents be provided by 26 August 2014.  Plaintiff stated that if Defendant did not contact Plaintiff by 26 August 2014, Plaintiff would file a motion to compel and for sanction.

On 27 August 2014, Plaintiff filed this motion to Compel Further Responses to Discovery Requests and for Sanctions.  Defendant did not file a response.

On 16 September 2014, Plaintiff called and spoke with Defendant.  Defendant confirmed knowledge of the motion, and wished to work something out.  Defendant indicated Defendant would call Plaintiff the next day.  Defendant has not communicated further with Plaintiff.

III.     Analysis.

1. Meet and Confer

A code-compliant attempt to meet and confer is an explicit prerequisite in many situations including: compelling further responses to interrogatories (Code Civ. Proc. § 2030.300(b)); compelling further responses to inspection of documents (Code Civ. Proc. § 2031.310(b)); compelling further responses to requests for admissions (Code Civ. Proc. § 2033.290(b)).  Under California Code of Civil Procedure § 2016.040, “a meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.”  The failure to attempt to meet and confer where required is an explicitly named misuse of the discovery process. (See Code Civ. Pro. § 2023.010(i)).

Here, Plaintiff has shown a sufficient attempt to meet and confer.

1. Plaintiff’s Motion to Compel Further Responses to Plaintiff’s Form Interrogatories, Set One

Plaintiff motions to compel further responses to Plaintiff’s Form Interrogatories, Set One, Nos. 3.7, 12.1, 12.2, 12.3, 14.1, 14.2, 15.1, and 17.1.  Plaintiff’s motion is code compliant.

After receiving responses to interrogatories, the propounding party may move for an order compelling further responses if the propounding party deems that any of the following apply: (1)  An answer to a particular interrogatory is evasive or incomplete. (2)  An exercise of the option to produce documents is unwarranted or the required specification of those documents is inadequate.(3)  An objection to an interrogatory is without merit or too general.

(CCP, § 2030.300, subd. (a)(1) – (3).) If a timely motion to compel has been filed, the burden is on the responding party to justify any objection. (See Fairmont Ins. Co. v. Sup. Ct. (2000) 22 Cal.4th 245, 255, citing Coy v. Sup. Ct. (1962) 58 Cal.2d 210, 220-221.)

1. Form Interrogatories, Set One, Nos. 3.7, 12.1, 14.1, and 15.1

Interrogatory No. 3.7 asks Defendant if Defendant has been licensed or registered by any public entity in the last 5 years, and if so, to provide details on those licenses.  Defendant’s response that Defendant has all necessary licenses is incomplete.

Interrogatory No. 12.1 asks for information on witnesses known to Defendant.  Defendant’s response that Defendant “was not involved in subject incident” is not responsive to the question asked.

Interrogatories Nos. 14.1 and 14.2 ask Defendant questions regarding potential contentions.  Defendant’s response that Defendant “was not involved in subject incident” is not responsive to the question asked.

Interrogatory No. 15.1 asks Defendant to identify each denial of a material allegation, each special or affirmative defense, and provide all facts related to each.  Defendant’s response is incomplete.  Referring Plaintiff to Defendant’s answer, and stating that investigation is continuing is not sufficient.  Plaintiff is entitled to all facts Defendant will use to support Defendant’s defenses.

The motion to compel further responses is GRANTED.  Defendant shall provide Plaintiff with code compliant responses within 20 calendar days.

2. Form Interrogatories, Set One, Nos. 12.2 and 12.3

Interrogatories 12.2 and 12.3 ask Defendant if Defendant has interviewed any individual concerning the incident, obtained any written or recorded statements, and for the identity of the individuals interviewed.  Defendant objects on the basis of attorney client privilege and work product rule.  Plaintiff correctly states that generally the identity of witnesses is discoverable but not whether an attorney director questions to particular witnesses, citing Coito v. Superior Court (2012) 54 Cal App 4^th 529.  Interrogatory 3.7 asks for the identity of all witnesses.  Asking which witnesses were interviewed by Defendant impacts on the work product rule and then objection was properly raised.

The motion to compel further responses is DENIED.  Defendant shall provide Plaintiff with code compliant responses within 20 calendar days.

3. Form Interrogatories, Set One, No.17.1

Interrogatory 17.1 asks if Defendant’s response to each request for admission is an unqualified admission, and if not, for further information on responses not unqualified.  Defendant has responded yes to the interrogatory, but goes on to qualify certain admissions.  Defendant’s response appears to be in error, and should be corrected.  

Therefore, Plaintiff’s motion to Compel Defendant to Further Respond to Plaintiff’s Form Interrogatories, Set One, Nos. 3.7, 12.1, 12.2, 12.3, 14.1, 14.2, 15.1, and 17.1 is GRANTED.  Defendant shall provide Plaintiff with code compliant responses within 20 calendar days.

1. Plaintiff’s Motion to Compel Further Responses to Plaintiff’s Special Interrogatories, Set One

Plaintiff motions to compel further responses to Plaintiff’s Special Interrogatories, Set One, Nos. 5-9.  Plaintiff’s motion is code compliant.

1.            Special Interrogatories, Set One, Nos. 5, and 7-9

Interrogatories 5, 7, 8 and 9 seek information relating to Defendant’s incorporation.  Plaintiff seeks this information to establish a potential argument for piercing the corporate veil.  Defendant objects as to relevancy, ambiguity, and over breadth.  However, Plaintiff is correct that Plaintiff request is clear, and that relevancy extends to potential claims.  The motion to compel further responses is DENIED.  Defendant shall provide Plaintiff with code compliant responses within 20 calendar days.Special Interrogatories, Set One, No. 6

Interrogatory 6 asks Defendant to describe in detail the reasons for Defendant’s transfer of the property in question.  Defendant’s response that the transfer was for ‘personal reasons’ is vague, evasive, and inadequate.

Therefore, Plaintiff’s Motion to Compel Defendant to Further Respond to Plaintiff’s Special Interrogatories, Set One, Nos. 5-9 is GRANTED.  Defendant is to provide code compliant responses to Plaintiff within 20 calendar days.

1. Plaintiff’s Motion to Compel Further Responses to Plaintiff’s Requests for Admissions, Set One

1.         Deficient Responses to Requests for Admissions

Plaintiff motions to compel further responses to Plaintiff’s Requests for Admissions, Set One, Nos. 2-7, 14, 15, 19, 23-25, 30, 31, 33, and 34.  Plaintiff’s motion is code compliant.

Where responses to RFAs have been timely filed but are deemed deficient by the requesting party (e.g., because of objections without merit or evasive responses), that party may move for an order compelling a further response.  (Code of Civil Procedure, § 2033.290; See Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4^th 618, 636; St. Mary v. Superior Court (2014) 223 Cal. App. 4th 762, 777 (Stating that Court may grant Motion to Compel Further Responses to an RFA where responses inadequate or deficient).

Responses to a RFA must: “admit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by the responding party… deny so much of the matter involved in the request as is untrue…[and] specify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge.” (Code Civ. Proc. § 2033.220).

“If a responding party gives lack of information or knowledge as a reason for a failure to admit all or part of a request for admission, that party shall state in the answer that a reasonable inquiry concerning the matter in the particular request has been made, and that the information known or readily obtainable is insufficient to enable that party to admit the matter.” (Id.).  Where only a part of a request for admission is objectionable the remainder must be answered. (Code Civ. Proc. § 2033.230(a)).  In order for an objection to be sufficient it must state the specific grounds must be clearly set forth. (Code Civ. Proc. § 2033.230(b)).  When a party is responding to a specific request to admission with an answer stating that they have no personal knowledge of the matter, that party has a duty to make a reasonable investigation of the matter before making such an answer.  Smith v. Circle P Ranch Co. (Cal. Ct. App. 1978) 87 Cal. App. 3d 267, 273).  The court can make an inference based on the evidence in front of it as to whether a party’s stated inability to answer one way or another is legitimate.  (See Lindgren v. Superior Court, (1965) 237 Cal.App.2d 743; Chodos v. Superior Court, (1963) 215 Cal.App.2d 318).  Where the court determines that it can make an inference based on available evidence that a reasonable investigation would in fact allow the party citing lack of information to properly answer the request for admission, the court may compel that party to respond.  (Id).  In situations such as this, courts have deemed monetary sanctions appropriate. (See Circle P Ranch Co., 87 Cal. App. 3d at 267).

Where a party responds to a RFA in a manner inconsistent with the above statutes and case law, these responses are deficient and a Motion to Compel Further Responses is warranted and generally appropriate to grant. (See Code Civ. Proc. 2033.290).

The motion must include a declaration stating facts showing a reasonable, good faith attempt to informally resolve the issues presented in the motion through a meet and confer declaration as per California Code of Civil Procedure 2016.040. (CCP § 2033.290(b); See Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294, 99 Cal.Rptr.3d 791 (The law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate)).  It must also be accompanied by a separate statement setting forth each request, the response given, and the factual and legal reasons for compelling a further response. (Rule of Court 3.1345(c)).

A court cannot order further responses to a request for admission where there has been an unqualifiedly denial even if the facts involved are unquestionably true.  (See Holguin v.  Superior Court (1972) 22 Cal App 3d 812, 820) (“[A] court cannot force a litigant to admit any particular effect if he is willing to risk a perjury prosecution or financial sanctions” by denying them.”).  However, “if a party, after being served with a request under Section 2033 of this code to admit the genuineness of any documents or the truth of any matters of fact, serves a sworn denial thereof and if the party requesting the admissions thereafter proves the genuineness of any such document or the truth of any such matter of fact, he may apply to the court in the same action for an order requiring the other party to pay him the reasonable expenses incurred in making such proof, including reasonable attorney’s fees. If the court finds that there were no good reasons for the denial and that the admissions sought were of substantial importance, the order shall be made” (Circle P Ranch Co. 87 Cal. App. 3d at 273-74).

2.         Requests for Admissions Nos. 2-7, 19, 23-25, 30, 31, 33, and 34

Plaintiff is correct that Defendant’s responses to RFAs Nos. 2-7, 19, 23-25, 30, 31, 33, and 34 are deficient.  When a response to a RFA indicates that the responding party lacks sufficient information to respond, the responding party must state that a reasonable inquiry regarding the matter has been made.  Defendant has not made such a statement in Defendant’s responses to Plaintiff’s RFAs.

The motion to compel further responses is GRANTED.  Defendant shall provide Plaintiff with code compliant responses within 20 calendar days.

3.            Requests for Admissions Nos. 14, 15

RFAs 14 and 15 ask Defendant to admit to having knowledge about the premises in question as of 6 April 2013.  Defendant admits to having said knowledge as of 29 May 2013.  This appears to be intended as a denial.  However, as written, Defendant’s responses are evasive and inadequate.  Defendant must respond with either an admission, a denial, or a hybrid response.

Therefore, Plaintiff’s Motion to Compel Defendant to Further Respond to Plaintiff’s Requests for Admissions, Set One, Nos. 2-7, 14, 15, 19, 23-25, 30, 31, 33, and 34 is GRANTED.  Defendant shall provide code compliant responses to Plaintiff within 20 calendar days.

1. Plaintiff’s Motion to Compel Further Responses to Plaintiff’s Requests for Production of Documents, Set One

Plaintiff motions to compel further responses to Plaintiff’s Requests for Production of Documents, Set One, Nos. 1, 2, 6-12, 15-17, 19, 22-24, 27-33, 35, and 36.  Plaintiff’s motion is code compliant.

A party propounding a request for production of documents may move for an order compelling further responses if it deems that an objection in the response is without merit. (Code Civ. Proc., § 2031.310, subd. (a).) A motion for an order compelling further responses to the request for production of documents “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).) In order to establish good cause, the burden is on the moving party to show relevance to the subject matter and specific facts justifying the discovery. (See Glenfed Develop. Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117.) Once a showing of good cause is made, the burden shifts to the opposing party to justify his or her objections. (See Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.)  The motion must also be accompanied by a separate statement setting forth each request, the response given, and the factual and legal reasons for compelling a further response. (Rule of Court 3.1345(a)-(c).)

Code of Civil Procedure, § 2031.210(a) gives the responding party three options of responses.  “The party to whom an inspection demand has been directed shall respond separately to each item or category of item by any of the following: (1) A statement that the party will comply with the particular demand for inspection and any related activities;(2) A representation that the party lacks the ability to comply with the demand for inspection of a particular item or category of item; (3) An objection to the particular demand.

1.            Requests for Production, Set One, Nos. 1 and 2

Requests for Production 1 and 2 ask Defendant to produce Defendant’s operating agreement and buy-sell agreement.  Plaintiff seeks this information to establish a potential argument for piercing the corporate veil.  Defendant objects as to relevancy, ambiguity, and over breadth.  However, Plaintiff is correct that Plaintiff’s request is clear, and that relevancy extends to potential claims.

2.            Requests for Production, Set One, Nos. 6 and 8

Requests for Production 6 and 8 ask Defendant to produce documents relating to lease agreements and communications with tenants.  Plaintiff uses the language “any and all documents.” Defendant has responded by naming documents.  Plaintiff suspects there are other responsive documents that have not been named.

Withholding documents in discovery is an issue that this Court takes very seriously.  However, if Plaintiff has any evidence that documents have been withheld, that evidence has not been presented in this motion.  While it might be reasonable to infer that Defendant has more documents related to leases than a copy of a standard lease, the assumption is that a list of provided documents is complete.  Defendant is reminded that if Defendant does not produce documents during the discovery process, Defendant may be barred from relying on those documents at trial.  The motion to compel further responses is GRANTED.  Defendant shall provide Plaintiff with code compliant responses within 20 calendar days.

               3.            Requests for Production, Set One, No. 7

Request for Production 7 asks Defendant to produce al documents relating to any communications between any tenant or sub-tenant of the property in question.  Plaintiff seeks information showing that Defendant knew or should have known of the regular operation of parties and nightclubs.  Defendant objects on the basis of vagueness, relevance, over breadth, and ambiguity.  Defendant is correct.

The request may be overbroad if it is seeking “any and all” communications of any type.  However, if the communications pertain to the matters that show that Defendant knew or should have known about the regular operation of parties, nightclubs or similar events at 2010 Senter Rd, San Jose, that material should be provided and thus the Court will GRANT motion as to this request.[4]

               4.            Requests for Production, Set One, No. 9

Request for Production 9 asks for Defendant’s bank statements from 1 January 2012 to 6 April 2013.  Plaintiff seeks evidence of financial kickbacks for allowing the operation of parties, and for piercing purposes.  Defendant formally objected on the basis of vagueness, ambiguity, over breadth, and relevancy.  Defendant also informally objected on the basis of privacy in later communications with Plaintiff.

Defendant is correct.  There is no issue concerning punitive damages at this point and this Court will not allow fishing through financial records on the representation that financial kickbacks might be involved without some further offer of proof.

The motion to compel further responses is DENIED

5.            Requests for Production, Set One, Nos. 10-12, 15-17, 19, 22-24, 27-33, 35, and 36

Defendant has responded to Plaintiff’s Requests for Production, Set One, Nos. 10-12, 15-17, 19, 22-24, 27-33, 35, and 36 by stating “Responding party is not in possession of any documents responsive to this request.”  However, Plaintiff is correct that a code compliant response requires that Defendant affirm a diligent search has been made, and must specify if the item never existed, or why it is no longer in Defendant’s control.

Therefore, Plaintiff’s Motion to Compel Defendant to Respond Further to Plaintiff’s Requests for Production of Documents, Set One, Nos. 1, 2, 10-12, 15-17, 19, 22-24, 27-33, 35, and 36 is GRANTED.  Defendant shall produce to Plaintiff code compliant responses within 20 calendar days

Plaintiff’s Motion to Compel Defendant to Respond Further to Plaintiff’s Requests for Production of Documents, Set One, Nos. 6-8 is DENIED.

Plaintiff’s Motion to Compel Defendant to Respond Further to Plaintiff’s Requests for Production of Documents, Set One, No. 9 is GRANTED subject to a stipulated protective order.  Parties will agree on a protective order and Defendant will produce to Plaintiff code compliant responses within 20 calendar days.  If the parties cannot agree on a protective order, the Court shall provide a model protective order.

         E.   Sanctions.

Plaintiff make a request for monetary sanctions.

Code of Civil Procedure, § 2023.040 states: “A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.”  (See Rule of Court 2.30).  The party’s motion must also state the applicable rule that has been violated. (Id.).

Plaintiff’s request is not code-compliant.  In support of the request for sanctions, Plaintiff cites Code of Civil Procedure, §§ 2023.010(i), 2023.020, 2030.300(d), 2033.290(d), and 2031.310(h).

However, section 2023.010 defines acts that constitute misuses of the discovery process, and does not itself set forth any provisions regarding the issuance of a monetary sanction.

Next, section 2023.030 provides that sanctions may be imposed for misuses of the discovery process “[t]o the extent authorized by the chapter governing any particular discovery method or any other provision of this title.”  As such, section 2023.030 does not provide an independent basis for an award of sanctions and thus is not self-executing.  In other words, to invoke section 2023.030 as a basis for sanctions, the moving party must first be authorized to seek sanctions under the provisions in the Civil Discovery Act applicable to the discovery requests at issue.

The California Code of Civil Procedure states that the Court shall impose monetary sanctions in many different situations. See Code Civ. Pro. § 2030.300(d) (Imposing monetary sanctions for a motion to compel further responses to interrogatories); Code Civ. Pro. § 2033.290(d) (Imposing monetary sanctions for motion to compel further responses to a request for admission); Code Civ. Pro. § 2031.310(d) (Imposing monetary sanction against losing party for motion to compel further responses to inspection demand).  However, where the Court “finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust” no monetary sanctions shall be imposed. (Code Civ. Proc. § 2023.030(a)).

However, where there are no opposition papers filed, the proper source of authority for monetary sanctions is Rule of Court 3.1348(a) as there has been no failed opposition.

Here, Defendant has not unsuccessfully opposed Plaintiff’s motions. (Code Civ. Proc. §§ 2030.300(d), 2033.290(d), and 2031.310(h).) Therefore, reliance on §§ 2030.300(d), 2033.290(d), and 2031.310(h) for monetary sanctions is inapplicable in this case because Defendant has not unsuccessfully opposed Plaintiff’s motion to compel further responses. The proper authority for monetary sanctions in this case would be Rule of Court 3.1348(a), where the court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.

Parties are reminded that in determining the amount for monetary sanctions the determination of a reasonable attorney’s fee involves multiplying the time spent and reasonable hourly compensation of each attorney involved in the presentation of the case. (Serrano v. Priest (1977) 20 Cal.3d 25, 48-49).  Sanctions should be awarded only for expenses actually incurred. (See Tucker v. Pacific Bell Mobile Services (1st Dist. 2010) 186 Cal.App.4th 1548, 1551).  Prospective costs, such as future travel time, are not appropriate.

Therefore, Plaintiff’s request for monetary sanctions in the amount of $3,622.50 is DENIED. [5]

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IV.     Order.

As to all matters for which further responses were ordered, Defendant is to provide code compliant responses within 20 days of the date of the filing of this Order.

Plaintiff’s request for monetary sanctions in the amount of $3,622.50 is DENIED.

 

 

________________­­­____________ DATED:

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

 

[1] Rule of Court 3.1345(d) states: “A motion concerning interrogatories, inspection demands, or admission requests must identify the interrogatories, demands, or requests by set and number.”

[2] “The failure to file a written opposition or to appear at a hearing or the voluntary provision of discovery shall not be deemed an admission that the motion was proper or that sanctions should be awarded.”  Rule of Court 3.1348(b).

[3] “Each exhibit must be separated by a hard 8½ x 11 sheet with hard paper or plastic tabs extending below the bottom of the page, bearing the exhibit designation. An index to exhibits must be provided. Pages from a single deposition and associated exhibits must be designated as a single exhibit.”

[4] An argument considered by this Court was that the request asks for her the attorney’s opinion as to what constitutes “evidence” and thus could be protected by the work product rule.  However, since this objection was not raised, this Court will not consider it.  He

[5] See “Civil Discovery Sanctions in California Courts–“The 3:10 to Discoveryville”  http://www.abtl.org/report/nc/abtlnorcalvol23no1.pdf