Case Number: BC706510 Hearing Date: December 12, 2018 Dept: 7

[TENTATIVE] ORDER RE: DEFENDANTS’ MOTION FOR PROTECTIVE ORDER; MOTION GRANTED

On May 17, 2018, Plaintiff Carl Evans (“Plaintiff”) filed this action against Defendants Kate G. Duffy (“Duffy”) and James Theodore Carlson (“Carlson”) (collectively, “Defendants”) for negligence, negligence per se, and negligent entrustment relating to an October 25, 2017 automobile versus motorcycle collision. On September 5, 2018, Plaintiff served 152 special interrogatories on Carlson and 93 special interrogatories on Duffy. (Declaration of Grayson L. Sobel, ¶ 4; Exh. B.) Defendants seek a protective order as to these special interrogatories.

A party may propound thirty-five specially prepared interrogatories that are relevant to the subject matter of the pending action. (Code of Civ. Proc., § 2030.030, subd. (a).) Subject to the right of the responding party to seek a protective order, any party seeking to propound a greater number of specially prepared interrogatories to another party must attach a supporting declaration stating the greater number of interrogatories is warranted because of any of the following: (1) the complexity or the quantity of the existing and potential issues in the case; (2) the financial burden on a party entailed in conducting the discovery by oral deposition; or (3) the expedience of using this method of discovery to provide to the responding party the opportunity to conduct an inquiry, investigation, or search of files or records to supply the information sought. (Code of Civ. Proc., §§ 2030.040, subds. (a)(1)-(a)(3), 2030.050.)

Unless a declaration has been made, the responding party need only respond to the first 35 special interrogatories if the responding party first makes an objection that the limit has been exceeded. (Code of Civ. Proc., § 2030.030, subd. (c).) If the responding party seeks a protective order on the ground that the number of specially prepared interrogatories is unwarranted, the propounding party shall have the burden of justifying the number of these interrogatories. (Code of Civ. Proc., § 2030.040, subd. (b).)

The court, for good cause shown, may make an order that justice requires to protect a party from unwarranted annoyance, embarrassment, oppression, or undue burden and expense. A protective order may include, but is not limited to, an order that: (1) the set of requests or particular requests in the set need not be answered at all; (2) that the number of requests is unwarranted; (3) that the time specified to respond to the requests be extended; (4) that a trade secret or other confidential research not be admitted or be admitted only in a certain way; or (5) that some or all of the answers to requests be sealed and thereafter opened only on order of the court. (Code of Civ. Proc., §§ 2030.090, subd. (b), 2031.060, subd. (b), 2033.080, subd. (b).)

If the motion is denied in whole or in part, the court may order that the responding party provide the discovery against which protection was sought on terms and conditions that are just. (Code of Civ. Proc., §§ 2030.090, subd. (c), 2031.060, subd. (c), 2033.080, subd. (c).)

Plaintiff’s counsel’s declaration states the need for the additional requests is due to the complex nature of the incident, numerous parties, and cross-complaints. (Sobel Decl., ¶ 5.) However, Defendants contend this is a simple matter involving a vehicle vs. motorcycle accident, without complex issues and the excessive special interrogatories are confusing and duplicative. (Sobel Decl., ¶ 6.) Defendants argue liability is disputed but that the witness to the accident supports Carlson’s version of events that Plaintiff bears full liability. (Sobel Decl., ¶ 7.) The parties met and conferred on September 18, 25, and October 4, 2018, but reached no agreement as to the special interrogatories. (Sobel Decl., ¶¶ 8-11.) Defendants also state this action is in the preliminary stages of discovery—Plaintiff’s subpoenaed medical records have not yet been received, no depositions have occurred, and Plaintiff’s IME has not been taken. Therefore, Defendants cannot attempt to answer a large majority of Plaintiff’s requests. (Sobel Decl., ¶ 12.)

Plaintiff’s counsel contends the number of special interrogatories is warranted because Defendants’ actions made this case “complex.” Plaintiff’s counsel states Defendants have made accusations against Plaintiff in their Answer—namely, that Plaintiff was “stopping/braking/slowing suddenly,” Plaintiff was not wearing a seatbelt, Plaintiff was driving drunk, and that Plaintiff did not have insurance. Based on these accusations by Defendants, Plaintiff seeks discovery supporting Defendants’ contentions. Plaintiff also seeks information regarding permission to use the vehicle Defendant was driving, contributory negligence, medical contentions, and mitigation of damages. Further, Plaintiff argues Defendant has purposefully withheld the contact information for third-party witness Chrissy Brit. (Declaration of Stephen D. Wegman, ¶ 6.) Defendants calendared the deposition of Ms. Brit, but 15 minutes prior to her scheduled deposition, Defendants cancelled the deposition. (Wegman Decl., ¶ 6.) Plaintiff has no contact information for Ms. Brit and her deposition has not been rescheduled. (Wegman Decl., ¶ 7.) Therefore, Plaintiff’s counsel contends Defendants have been “hiding the ball” and Plaintiff had no choice but to propound very succinct and specific contention requests that are followed up with questions relating to witnesses and documents. (Wegman Decl., ¶ 8.) Plaintiff’s counsel contends that the excessive number of requests is necessary so that he does not discover, in the middle of a jury trial, that Defendants have several witnesses accusing Plaintiff of drunk driving, among other things, as delineated in Defendants’ Answer. (Wegman Decl., ¶ 10.)

Having reviewed the moving, opposition, and reply papers, and the 245 special interrogatories propounded on Defendants, the Court finds Plaintiff has failed to meet his burden of justifying the excessive number of interrogatories propounded. The number of interrogatories are unduly oppressive and burdensome. For example, Requests Nos. 34-49 ask whether Defendant was using a cell phone in the thirty minutes prior to the accident, who Defendant was contacting, how long Defendant was using the cell phone, any supporting documents that Defendant was using the cell phone and who Defendant was contacting, the contact information for anyone with knowledge of Defendant’s use of the cell phone and who Defendant was contacting, who Defendant’s cell phone provider is, the contact information for anyone with knowledge of Defendant’s cell phone provider, and any documents that support Defendant’s cell phone provider. These requests are overbroad and the information sought could have been asked in two or three interrogatories. More importantly, form interrogatories, drafted by the Judicial Council, could have been used for the information requested in Plaintiff’s numerous special interrogatories. The Court is not convinced by Plaintiff’s assertion that Defendants are “hiding” witnesses, thus necessitating this excessive amount of interrogatories. Finally, it is unlikely that Plaintiff’s counsel will find himself “in the middle of jury trial” and discovering witnesses for the first time. Focused discovery and depositions will yield all information each side has with respect to this case. The Court is doubtful that this case involves complex issues such that the excessive number of interrogatories propounded is necessary.

The Motion for protective order is GRANTED and Defendants need not respond to more than the first 35 specially prepared interrogatories propounded by Plaintiff. The Court encourages the parties to meet and confer regarding whether, in light of this Order, Plaintiff wishes to withdraw the current set of specially prepared interrogatories to propound a new set of 35.

Defendants seek monetary sanctions. “The court shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order under this section, unless it finds that the one subject to sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code of Civ. Proc., § 2030.090, subd. (d).) Monetary sanctions are GRANTED and imposed against Plaintiff and Plaintiff’s counsel, jointly and severally, in the reduced amount of $326.00 for two hours at defense counsel’s hourly rate of $133.00 and the $60.00 filing fee, to be paid within twenty (20) days of the date of this Order.

Moving party to give notice.