Tentative Ruling

Judge Pauline Maxwell
Department 6 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION
Cortland T Day vs City of Carpinteria
Case No: 18CV05119
Hearing Date: Wed Nov 13, 2019 9:30

Nature of Proceedings: Compel Further Responses

TENTATIVE RULING:

As set forth herein, the motion of defendants City of Carpinteria, Southern California Edison Company, Southern California Gas Company, and Lyles Utility Construction, LLC, to compel further responses to discovery is granted in part and denied in part. The motion is granted to compel further verified, written responses, without objection except as to privilege and in a form complying with the Code of Civil Procedure, to form interrogatories, set one, Nos. 9.1 and 9.2, special interrogatories, set one, Nos. 1, 2, 3, 5, 6, 8, 9, 11, 12, 14, 17, 20 through 24, 26, 27, 29, 30, 32, 33, 35, 36, and 39, and request for production of documents, set one, Nos. 1 through 16, as explained herein. Plaintiff Cortland T. Day shall serve such further responses on or before December 2, 2019. Concurrently with the service of such further responses, plaintiff shall also produce for inspection all responsive documents identified in the further responses to the requests for production, together with a privilege log identifying all responsive documents withheld from production on the grounds of privilege. In all other respects, including requests for awards of sanctions, the motion is denied.

Background:

On October 18, 2018, plaintiff Cortland T. Day, individually and as personal representative of the estate of Jana Whelan, filed a complaint for dangerous condition of public property and negligence against defendants City of Carpinteria, Southern California Edison Company (SCE), Southern California Gas Company (SCG), and Lyles Utility Construction, LLC (Lyles). Plaintiff alleges:

On October 22, 2017, at approximately 12:46 p.m., Whelan was riding her bicycle eastbound on Carpinteria Avenue, in the Class II bicycle lane, just east of Reynolds Avenue in Carpinteria. (Complaint, ¶ 12.) At that time and place there existed an irregular, uneven, and dangerous depression causing a vertical change in elevation of the roadway surface of the roadway and a sharp difference between the roadway segments within the bicycle lane, which extended across the bicycle lane. (Complaint, ¶ 13.) Whelan came upon the dangerous depression, lost control of her bicycle, fell to the ground and suffered injuries resulting in her death on November 4. (Complaint, ¶ 14.) Defendants had performed utility maintenance work involving trenching on the roadway. (Complaint, ¶ 15.) The depression was caused by a defective L-shaped asphalt patch. (Complaint, ¶ 16.) The defective patch was of significant and unsafe height deviation along the edges of the patch from the rest of the roadway. (Complaint, ¶ 27.) Also, there were jagged and loose gravel, gaps, separations, and uneven pavement/asphalt which caused a hazard and exposed bicyclists. (Ibid.)

On February 22, 2019, defendants served their first sets of form interrogatories (FI), special interrogatories (SI), and requests for production of documents (RFP) on plaintiff Day in his capacities both individually and as personal representative. (Brownson decl., ¶¶ 4-5 & exhibits A-C.) On May 17, 2019, pursuant to stipulation as to timeliness, Day served his responses to this discovery. (Brownson decl., ¶¶ 6-7 & exhibits E, F; Kim decl., ¶ 3.)

On May 31, 2019, counsel for defendants, attorney Michael R. Johnson, sent a letter to counsel for plaintiff, attorney Catherine B. Kim, asserting deficiencies in the discovery responses. (Brownson decl., ¶ 8 & exhibit G; Kim decl., ¶ 4.) In response to this letter, Day served further responses to the FI on July 26, 2019, together with a response letter. (Brownson decl., ¶ 10 & exhibit D; Kim decl., ¶ 5 & exhibit 2.)

On August 15, 2019, Johnson sent a second letter to Kim asserting deficiencies in the discovery responses. (Brownson decl., ¶ 11 & exhibit H; Kim decl., ¶ 7.) Kim responded that no further responses would be forthcoming. (Kim decl., ¶ 8.)

On October 17, 2019, defendants filed and served (by mail and by email) this motion to compel further responses to FI Nos. 8.1, 9.1, and 9.2, SI Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 17, 19, 21, 22, 23, 24, 26, 27, 29, 30, 32, 33, 35, 36 and 39, and RFP Nos. 1 through 16, as those discovery requests are directed to Day in his individual capacity. (Responses by Day in his capacity as personal representative are not at issue in this motion.) Defendants also request an award of monetary sanctions in the amount of $8,244.00.

Day opposes the motion and requests an award of monetary sanctions in the amount of $8,569.95.

Analysis:

(1) Procedural Matters

Proof of service of this motion shows service both by mail and by email on October 17, 2019. Day points out that mail service on October 17, 2019, is one day too late for a hearing on November 13 (presumably because the Veteran’s Day holiday was not excluded in counting court days). Day asserts that email service is not effective because the parties have not expressly agreed to email service. (Kim decl., ¶ 10.) For cases filed on or before December 31, 2018 (such as this case), agreement to accept email service is shown by virtue of electronic filing of documents. (Code Civ. Proc., § 1010.6, subd. (a)(2)(A)(i); Cal. Rules of Court, rule 2.251(c)(3).) (Note: The court strongly encourages the parties to accept electronic service, either alone or as a back-up to ensure timely receipt of documents.) Service is timely and, in any case, plaintiff has filed a substantial opposition demonstrating a lack of prejudice by the timing of service.

The court notes that the particular request numbers of the discovery requests at issue are not stated in the notice of motion. As a result, the court has been required to search the papers in order to identify which requests are at issue in this motion. The preferred practice is to identify all such requests in the notice of motion.

(2) Form Interrogatories

FI No 8.1 is: “Do you attribute any loss of income or earning capacity to the INCIDENT?”

The response to FI No. 8.1 is: “In addition to the loss of support resulting from Decedent’s death, the following response is given: No. Plaintiff is claiming loss of support. Investigation and discovery are continuing; therefore, Plaintiff reserves the right to supplement this response in the future upon proper written request.”

Defendants assert that a further response is required because Day claims $10 million in damages in the statement of damages, the response is improperly limited to loss of support, and Day provides no substantive basis for calculating the $10 million figure.

The statement of damages cited is a statement of damages dated November 29, 2018, which states as items of damage: past medical specials, past loss of earnings/ earning capacity, past loss of support, future loss of earnings/ earning capacity, future loss of support, property damage, funeral expenses, loss of household services, general damages to the Estates of Jana Whelan, and general damages to Day. (Kim decl., ¶ 2 & exhibit 1.) As to each of the items listed except for the last two items (general damages), the amount listed is “According to proof.” As to the last two items (general damages), the amount listed for each is $10 million.

FI No. 8.1 is a yes or no question regarding loss of income or earning capacity. As indicated in the remainder of the questions following FI No. 8.1, these questions address lost earnings from work by the responding party. The “no” answer is a complete answer to the question and is consistent with the explanation that the loss asserted is for loss of support, not income or earning capacity.

“General damages include damages for ‘ “pain [and] suffering, emotional distress, and other forms of detriment that are sometimes characterized as subjective or not directly quantifiable.” [Citation.]’ [Citations.] By contrast, special damages do not necessarily arise from the typical infliction of the injury and are instead the ‘out-of-pocket losses’ ‘ “peculiar to the infliction of each respective injury.” ’ [Citation.] Special damages include medical and related expenses as well as lost income.” (Licudine v. Cedars-Sinai Medical Center (2016) 3 Cal.App.5th 881, 892.) The general damages stated in the statement of damages are not responsive to FI No. 8.1. No further response is required to FI. No. 8.1.

FI No. 9.1 is: “Are there any other damages that you attribute to the INCIDENT? If so, for each item of damage state:

(a) the nature;

(b) the date it occurred;

(c) the amount; and

(d) the name, ADDRESS, and telephone number of each PERSON to whom an obligation was incurred.

The original response to FI No. 9.1 is: “Objection. Vague, ambiguous, and unintelligible as to ‘other damages’ so as to make a response impossible without speculation. This interrogatory seeks information relating to trial strategy which is protected from disclosure by the attorney work-product privilege in violation of C.C.P. §2018.010 et seq. Plaintiff has not disclosed which, if any, expert witnesses may be called at trial; insofar as this interrogatory seeks to ascertain the identity and writings of Plaintiff’s experts who have been retained or utilized to date solely as an advisor or consultant, it violates the work-product privilege and the statutory protections set forth in Code of Civil Procedure §2018.020-§2018.040, and is also premature under the provisions of Code of Civil Procedure §2034.210 et seq. Subject to and without waiving said objections, Plaintiff responds as follows: Yes. Cremation expenses of approximately $2,000. Investigation and discovery are continuing, and Plaintiff reserves the right to supplement this response in the future upon proper written request, and to rely on expert opinion at trial.”

The further response to FI No. 9.1 is: “Objection. Vague, ambiguous, and unintelligible as to ‘other damages’ so as to make a response impossible without speculation. This interrogatory seeks information relating to trial strategy which is protected from disclosure by the attorney work-product privilege in violation of C.C.P. §2018.010 et seq. Plaintiff has not disclosed which, if any, expert witnesses may be called at trial; insofar as this interrogatory seeks to ascertain the identity and writings of Plaintiff’s experts who have been retained or utilized to date solely as an advisor or consultant, it violates the work-product privilege and the statutory protections set forth in Code of Civil Procedure §2018.020-§2018.040, and is also premature under the provisions of Code of Civil Procedure §2034.210 et seq. Subject to and without waiving said objections, Plaintiff responds as follows: As of this date, Plaintiff claims the financial support that Jana Whelan would have contributed to the family, the loss of gifts or benefits that Plaintiff would have expected to receive from Jana Whelan, the reasonable value of household services that Jana Whelan would have provided and cremation expenses in the approximate amount of $2,000. Plaintiff will present additional economic and non-economic damages permitted as part of expert discovery and at the time of trial. Investigation and discovery are continuing and Plaintiff reserves the right to supplement this response upon proper written request and to rely upon expert opinion at trial.”

Defendants assert that this response is insufficient because the $10 million in general damages is not addressed and the statement regarding support is not broken down as required by the interrogatory. Day argues that the response is sufficient based upon Day’s present knowledge and that further breaking down the $10 million in general damages is not appropriate.

The objection of vague, ambiguous, and unintelligible as to “other damages” is overruled. FI No. 9.1 is clear when compared with the other damage-related questions in the form interrogatories. FI No. 6.0 addresses physical, mental, or emotional injuries; FI No. 7.0 addresses property damage; FI No. 8.0 addresses loss of income or earning capacity (as discussed above). FI No. 9.1 refers to all other types of damage claims not included within FI Nos. 6.0, 7.0, or 8.0. In this case “general damages” as non-economic damages may refer to mental or emotional injuries within FI No. 6.0 or may refer to non-economic damages for loss of comfort and society. Loss of support is, as discussed above, not included within FI No. 8.0 and therefore is included within FI No. 9.1. In any case, there is damage claimed that is not within the scope of FI Nos. 6.0, 7.0, or 8.0.

“Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits.” (Code Civ. Proc., § 2030.220, subd. (a).) “If an interrogatory cannot be answered completely, it shall be answered to the extent possible.” (Code Civ. Proc., § 2030.220, subd. (b).) “If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but 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.” (Code Civ. Proc., § 2030.220, subd. (c).)

It is a sufficient answer to state that the responding party does not have personal knowledge sufficient to respond fully, if that is a truthful answer, and to provide a response based on the knowledge reasonably available. To the extent that Day has no information upon which to make a response other than expert opinion, then a sufficient response may so state. In any event, Day is required to respond to FI No. 9.1 as to each of its subparts with respect to each type of damage claimed that is not within the scope of FI Nos. 6.0, 7.0, or 8.0. A further response will be required.

FI No. 9.2 is: “Do any DOCUMENTS support the existence or amount of any item of damages claimed in interrogatory 9.1? If so, describe each document and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT.”

The original response to FI No. 9.2 is: “Objection. Vague, ambiguous, and unintelligible as to ‘other damages’ so as to make a response impossible without speculation. This interrogatory seeks information relating to trial strategy which is protected from disclosure by the attorney work-product privilege in violation of C.C.P. §2018.010 et seq. Plaintiff has not disclosed which, if any, expert witnesses may be called at trial; insofar as this interrogatory seeks to ascertain the identity and writings of Plaintiff’s experts who have been retained or utilized to date solely as an advisor or consultant, it violates the work-product privilege and the statutory protections set forth in Code of Civil Procedure §2018.020-§2018.040, and is also premature under the provisions of Code of Civil Procedure §2034.210 et seq. Subject to and without waiving said objections, Plaintiff responds as follows: Plaintiff is searching for these documents. Investigation and discovery are continuing, and Plaintiff reserves the right to supplement this response in the future upon proper written request, and to rely on expert opinion at trial.”

The further response to FI No. 9.2 is: “Objection. Vague, ambiguous, and unintelligible as to ‘other damages’ so as to make a response impossible without speculation. This interrogatory seeks information relating to trial strategy which is protected from disclosure by the attorney work-product privilege in violation of C.C.P. §2018.010 et seq. Plaintiff has not disclosed which, if any, expert witnesses may be called at trial; insofar as this interrogatory seeks to ascertain the identity and writings of Plaintiff’s experts who have been retained or utilized to date solely as an advisor or consultant, it violates the work-product privilege and the statutory protections set forth in Code of Civil Procedure §2018.020-§2018.040, and is also premature under the provisions of Code of Civil Procedure §2034.210 et seq. Subject to and without waiving said objections, Plaintiff responds as follows: Plaintiff is in possession of Jana Whelan’s W-2s. Plaintiff believes and thereon alleges other responsive documents may exist and is in the process of searching for these documents. Investigation and discovery are continuing, and Plaintiff reserves the right to supplement this response in the future upon proper written request, and to rely on expert opinion at trial.”

The vague, ambiguous, and unintelligible objection is overruled for the same reason as discussed above. Insofar as a further response to FI No. 9.1 is required, a further response to FI No. 9.2 is also required so that the response to FI No. 9.2 is complete based upon the supplemented response. As noted above, a sufficient response need only be complete based upon the knowledge available to the responding party, but the responding party has an obligation to make a reasonable and good faith effort to obtain the information. In the case of documents, a reasonable and good faith effort to find documents is the same obligation as with the production of documents to make a diligent search and a reasonable inquiry. (See Code Civ. Proc., § 2031.230.) A sufficient response should affirm that after a diligent search and reasonable inquiry the responding party is able to identify only the specific documents indicated. A further response will be required.

(3) Special Interrogatories

SI No. 1 is: “IDENTIFY … all facts that support YOUR … contention that LYLES was negligent on the PROJECT ….”

The response to SI No. 1 is: “Objection. Overly broad and burdensome. Vague and ambiguous. Seeks information protected by attorney-client and attorney work product privileges. Plaintiff has not disclosed which, if any, expert witnesses may be called at trial; insofar as this interrogatory seeks to ascertain the identity and writings of Plaintiffs experts who have been retained or utilized to date solely as an advisor or consultant, it violates the work-product privilege and that statutory protections set forth in Code of Civil Procedure §2018.010 et seq., and is also premature under the provisions of Code of Civil Procedure §2034.210 et seq. Subject to and without waiving said objections, Plaintiff responds as follows: At this time, without the benefit of having completed any discovery in this matter, and having not yet deposed the defendants, their agents and/or employees, and in light of the fact that California is a notice pleading state, Plaintiffs contentions are based on information and belief following their review and best analysis of the information available to them prior to litigation and in consultation with expert witnesses and/or consultants. Because these Defendants and their agents and employees have not yet responded to written discovery and have not been deposed, the interrogatory is premature and calls for speculation. That said, Plaintiff contends the negligence of Defendants, including Lyles Utility Construction, LLC (‘Lyles’), included but was not limited to negligently performing their utility maintenance work and repairs on eastbound Carpinteria Avenue and negligently applying defective ‘L’ -shaped asphalt patch which caused irregular, uneven and dangerous depression on the roadway to exist with unsafe height deviation along the edges of the patch from the rest of the roadway, jagged and loose gravel, gaps, separations and uneven pavement/asphalt. Defendants further failed to place warning signs or devices to warn of the condition. Defendants caused this condition to exist in the designated bicycle lane at or near 4677 Carpinteria Avenue on October 22, 2017, causing Decedent Jana Whelan, who was prudently and lawfully riding her bicycle within the designated bicycle lane, to fall from her bicycle and suffer fatal injuries. The existence of the dangerous condition was documented by and confirmed in the records of the City of Carpinteria and Carl Warren & Company. Plaintiffs are informed and believe that other facts supportive of the contentions in their Complaint will become known during discovery and after further investigation. Discovery and investigation are continuing and Plaintiff reserves the right to supplement this response in the future upon proper written request and to rely on expert opinion at the time of trial.”

Defendants assert that this response is improper because it merely restates contentions made in the complaint without specifying or identifying facts and is made on information and belief. Day asserts that he has responded with the information available to him and that the meet and confer efforts addressed this issue too generally to require a more specific response. (Note: The statement that California is a “notice pleading” state is incorrect. “[T]he theory of pleading under California law is fact pleading.” (California Trout, Inc. v. Superior Court (1990) 218 Cal.App.3d 187, 204.) “Fact pleading” is also referred to as “Code pleading.” (4 Witkin, Cal. Procedure (5th ed. 2019) Pleading, § 1.) “Notice pleading” is a theory of pleading found, among other places, in the federal courts pursuant to the Federal Rules of Civil Procedure. (Bach v. County of Butte (1983) 147 Cal.App.3d 554, 561.))

With respect to the meet and confer efforts, the court recognizes that there is substantial economy in addressing discovery requests in groups. The only serious limitation with this approach is that issues that may be specific to particular requests often get lost or diminished. General discussions inevitably lead to general dispositions. The court takes that approach here.

“[I]f a timely motion to compel has been filed, the burden is on responding party to justify any objection.” (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.) There are three objections here: (1) overly broad and burdensome; (2) vague and ambiguous; and, (3) attorney-client and work-product privilege. SI No. 1 seeks facts that Lyles was negligent. Day fails to explain how the interrogatory is overly broad or burdensome. The first objection is overruled. Day also fails to explain how the vague or ambiguous. “Indeed, where the question is somewhat ambiguous, but the nature of the information sought is apparent, the proper solution is to provide an appropriate response.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783.) (Note: The court does allow that including definitions as parentheticals within this interrogatory—rather than as a separate parenthetical sentence immediately following the interrogatory—makes identifying the text of the interrogatory a bit strained.) The issue addressed by the interrogatory is a core contention of the plaintiff and a proper subject of an interrogatory. (See Code Civ. Proc., § 2030.010, subd. (b).) The second objection is overruled. The third objection is for privilege, both generally and specifically as to expert opinion. It is not apparent that any responsive information was withheld on this basis (and the court has no present information upon which to adjudicate any claim of privilege for withheld information). The third objection is thus best understood in the present context as a qualification that the interrogatory is interpreted to seek only-non privileged information. In this context, the objection/ qualification is not improper.

There are also two related qualifications: (1) that the information is based upon information and belief prior to the completion of discovery; and (2) that plaintiff reserves the right to supplement the responses as further information is discovered. As quoted above, the Code of Civil Procedure requires that responses to interrogatories be as complete and straightforward as the information reasonably available to the responding party permits and if personal knowledge is not sufficient to respond fully, that party must state and also make a reasonable and good faith effort to obtain the information. (Code Civ. Proc., § 2030.220, subds. (a), (c).)

Defendants complain that the assertions on information and belief are improper. This argument misapprehends the function of the verification and the requirement of complete responses. “Verification of the answers is in effect a declaration that the party has disclosed all information which is available to him. If only partial answers can be supplied, the answers should reveal all information then available to the party. If a person cannot furnish details, he should set forth the efforts made to secure the information. He cannot plead ignorance to information which can be obtained from sources under his control.” (Deyo v. Kilbourne, supra, 84 Cal.App.3d at p. 782.) It is not necessary that the verifying party have personal knowledge of the underlying facts stated in the response. The verifying party is verifying that the facts stated are complete as far as the knowledge and information reasonably available to the responding party. The first qualification essentially states as much. When exhaustive discovery is demanded before a plaintiff has the opportunity fully to investigate the facts, the discovery is not premature, but fully appropriate responses may not be very satisfying to the propounding party.

Interrogatory responses must only be based on knowledge and information available as of the time of the response. “An interrogatory may not be made a continuing one so as to impose on the party responding to it a duty to supplement an answer to it that was initially correct and complete with later acquired information.” (Code Civ. Proc., § 2030.060, subd. (g).) Consequently, a qualification that discovery is continuing and that later discovered information may be responsive is superfluous to the substantive response but not inappropriate.

Defendants complain about the substance of the response itself on the grounds that it merely repeats what is alleged in the complaint. There is inherently no problem with repeating what is alleged in a complaint as an answer to an interrogatory seeking facts. The only issue is the relative specificity of the facts either as alleged in the complaint or as stated in response. The response states that the defendant’s negligence was in applying an L-shaped asphalt patch which caused an irregular, uneven, and dangerous depression in the roadway with unsafe height deviation and was also in failing to warn of that condition. It is unclear from defendants’ arguments what additional facts Day could add as to these two items. Defendants’ principal argument is that the repeated use of the adverb “negligently” makes the response circular rather than substantive. This is an unreasonable reading of the response. The adverb “negligently” adds nothing substantive to the otherwise sufficient statement of facts.

What is problematic with the response, however, is the “included but not limited to” language in introducing the facts. As discussed above, a response must be complete based upon the knowledge and information that is available when the response is made. A response cannot provide some known facts but omit others as “not limited to” the facts stated. A further response is required for Day to identify all facts known as of the date of the response. It may be that all of the facts now known are the facts stated in the response, in which case the “included but not limited to” qualification needs to be removed.

Based upon this same analysis, further responses are required for SI No. 22.

In the case of SI Nos. 4, 7, 10, 19, the interrogatories request facts relating to allegations that are sufficiently answered by the same facts provided in response to SI No. 1. Unlike the response to SI No. 1, these responses are complete by their own terms. No further responses are required to these interrogatories.

SI No. 2 is: “IDENTIFY the name, address, and telephone number of each and every person who has knowledge concerning YOUR response to Interrogatory No. l.”

The response to SI No. 2 is: “Objection. Overly broad and burdensome. Vague and ambiguous. Seeks information protected by attorney-client and attorney work product privileges. Plaintiff has not disclosed which, if any, expert witnesses may be called at trial; insofar as this interrogatory seeks to ascertain the identity and writings of Plaintiff’s experts who have been retained or utilized to date solely as an advisor or consultant, it violates the work-product privilege and that statutory protections set forth in Code of Civil Procedure §2018.010 et seq. and is also premature under the provisions of Code of Civil Procedure §2034.210 et seq. Subject to and without waiving said objections, Plaintiff responds as follows: At this time, without the benefit of having completed any discovery in this matter, and having not yet deposed the defendants, their agents and/or employees, and in light of the fact that California is a notice pleading state, Plaintiff’s contentions are based on information and belief following their review and best analysis of the information available to them prior to litigation and in consultation with expert witnesses and/or consultants. Because these Defendants and their agents and employees have not yet responded to written discovery and have not been deposed, the interrogatory is premature and calls for speculation. Those persons presently known are the Plaintiffs, the Defendants to the instant action, their agents, employees and all other persons involved in the project, investigators at Carl Warren & Company who inspected the subject roadway, all investigating police officers and emergency personnel who were present at the scene of the incident, all witnesses to the incident and the condition of the roadway identified in Plaintiff’s responses to Form Interrogatory No. 12.1, as well as all medical care providers who rendered care to Decedent Jana Whelan. Plaintiffs are informed and believe that other persons supportive of the contentions in his Complaint will become known during discovery and after further investigation. Discovery and investigation are continuing and Plaintiff reserves the right to supplement this response in the future upon proper written request and to rely on expert opinion at the time of trial.”

The analysis above regarding objections and qualifications is equally applicable here. This interrogatory and response both raise the additional issue of the interrogatory being complete: “Each interrogatory shall be full and complete in and of itself.” (Code Civ. Proc., § 2030.060, subd. (d).) The interrogatory refers to the response to SI No. 1. (Note: The text of the interrogatory ambiguously refers to knowledge of the response to SI No. 1 rather than to the facts set forth in the response to SI No. 1. All parties understand the interrogatory to refer to the facts set forth in the response and not to the response itself.) The response refers to plaintiff’s response to FI No. 12.1. Plaintiff’s response to FI No. 12.1 is not provided to the court in either the separate statement or in the exhibits attached to the motion. As discussed above, an important function of discovery is completeness. It is generally improper for a response to refer or incorporate by reference something in a different document. The proper practice is to copy and paste the duplicative information unless a responding party complies with the requirements of section 2030.230 (which was not done here).

The principal issue with this response is the identification of the particular persons by name, address, and telephone number. The response of identifying persons by function is useful, but not complete. A complete response to the interrogatory includes the names, addresses and telephone numbers of each known witness. To the extent this information is not known, then a statement complying with section 2030.220, subdivision (c), is sufficient as to unknown persons or information. To the extent the information has been compiled elsewhere (as in a report), compliance with section 2030.230 would be sufficient. The generic references here are insufficient. A further response is required to SI No. 2.

The same analysis applies to SI Nos. 5, 8, 11, 14, 17, 20, 23, 26, 29, 32, and 35. Further responses will be required to these interrogatories.

SI No. 6 is: “IDENTIFY each DOCUMENT that relates to or concerns YOUR response to Interrogatory No. 4.”

The response to SI No. 6 is: “Objection. Overly broad and burdensome. Vague and ambiguous. Seeks information protected by attorney-client and attorney work product privileges. Plaintiff has not disclosed which, if any, expert witnesses may be called at trial; insofar as this interrogatory seeks to ascertain the identity and writings of Plaintiffs experts who have been retained or utilized to date solely as an advisor or consultant, it violates the work-product privilege and that statutory protections set forth in Code of Civil Procedure §2018.010 et seq., and is also premature under the provisions of Code of Civil Procedure §2034.210 et seq. Subject to and without waiving said objections, Plaintiff responds as follows: At this time, without the benefit of having completed any discovery in this matter, and having not yet deposed the defendants, their agents and/or employees, and in light of the fact that California is a notice pleading state, Plaintiff’s contentions are based on information and belief following their review and best analysis of the information available to them prior to litigation and in consultation with expert witnesses and/or consultants. Those documents presently known are the Santa Barbara County Sheriff’s Department’s traffic collision report and coroner’s report including all supporting documents, AMR and Carpinteria-Summerland Fire Department reports of the incident, Decedent’s medical records and all other documents that may be exchanged in discovery during litigation. Plaintiffs are informed and believe that other documents supportive of the contentions in his Complaint will become known during discovery and after further investigation. Discovery and investigation are continuing and Plaintiff reserves the right to supplement this response in the future upon proper written request and to rely on expert opinion at the time of trial.

The objections and qualifications are subject to the same analysis as discussed above. The substantive issue raised by the motion is that the response is overly inclusive and therefore not responsive. Plaintiff asserts that given the breadth of the interrogatory, the response must be equally broad.

SI No. 4 asks about facts that decedent Whelan was riding her road bicycle in a reasonable, prudent, and lawful fashion at the time of the incident. The named documents in the response to SI No. 6 (reports and medical records) on the face of the response appears to be responsive to the interrogatory. Even medical records could “relate to or concern” the issue of SI No. 4 because information regarding decedent’s injuries could in some way evidence some aspect of how the incident occurred and hence implicate decedent’s riding at the time of the incident. The fact that the identified documents are expansive is a function of the interrogatory, not plaintiff’s response.

At the same time, the “all other documents that may be exchanged in discovery during litigation” is not a proper response. The purpose of an interrogatory to identify documents is to provide a description sufficient for the propounding party to request such documents in a document production request. This catch-all is insufficient for that purpose and suggests the possibility of plaintiff’s knowledge of responsive documents that are not otherwise identified. The response must be complete as of the time of the response. Documents about which Day has no knowledge or reasonably obtained information need not be identified. It may be that there are no other presently-known documents. Whatever is the case, the response must be complete. A further response will be required.

The same analysis applies to SI Nos. 3, 9, 12, 21, 24, 27, 30, 33, 36, and 39. Further responses will be required as to these interrogatories.

(4) Requests for Production of Documents

“On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that 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.” (Code Civ. Proc., § 2031.310, subd. (a).)

“A motion under subdivision (a) shall comply with both of the following:

“(1) The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand.

“(2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2031.310, subd. (b).)

RFP No. 2 is: “Any and all DOCUMENTS related to YOUR response in Special Interrogatory No. 6.”

The response to RFP No. 2 is: “Objection. Overly broad and burdensome, oppressive, annoying and harassing. Vague and ambiguous as to the phrase ‘DOCUMENTS related to YOUR response in Special Interrogatory No. 6’ as used. So vague and ambiguous to render the request unintelligible. The request fails to specifically describe individual items with ‘reasonable particularity’ as required by Code of Civil Procedure section 2031.030. Seeks production of documents protected by the attorney-client privileges. Seeks production of documents protected by the attorney work product privilege in that it places the burden of identifying documents for production on the responding party. Plaintiffs are not the custodians of records and therefore do not have custody, control or possession of said documents and would not be able to certify them as being true and complete copies of said documents. Plaintiffs have identified documents and sources of documents. The documents are equally available to the propounding party. Plaintiffs have not disclosed which, if any, expert witnesses may be called at trial and insofar as this interrogatory seeks to ascertain the identity and writings of Plaintiffs’ experts who have been retained or utilized to date solely as an advisor or consultant, it violates the work-product privilege and the statutory protections set forth in Code of Civil Procedure §2018.020- §2018.040, and is also premature under the provisions of Code of Civil Procedure §2034.210, et seq.”

RFP No. 2 is ambiguous and potentially over broad as it is written. Good cause is shown for production of documents identified in the response to SI No. 6, but not for production of documents that are generically related to the response. Day’s principal argument in opposition to the motion is that the request, as written, does not reasonably particularizing each category of item. (See Code Civ. Proc., § 2031.030, subd. (c)(1).) The class of documents identified by Day in response to the interrogatory is reasonably particularized. The court construes this request as limited to those documents actually identified in the response to the interrogatory. With respect to privilege objections, to the extent that any document so identified is to be withheld from production, a privilege log is required to identify the document and to provide such additional information as necessary to adjudicate the privilege asserted.

There is no showing by Day that production of responsive documents would be oppressive. (See Mead Reinsurance Co. v. Superior Court (1986) 188 Cal.App.3d 313, 320–321.) Although protective orders are available (but not sought here) to protect a party from unwarranted annoyance (Code Civ. Proc., § 2031.060, subd. (b)), there is no proper objection that discovery requests are merely annoying. (Indeed, if there were, it is unlikely any discovery would happen at all.) Day makes no showing that the documents are voluminous or that it would be unfair for defendants to obtain copies of documents from Day that might also be obtained from a third party by subpoena.

“The party to whom a demand for inspection, copying, testing, or sampling 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, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling pursuant to paragraph (2) of subdivision (c) of Section 2031.030 and any related activities.

“(2) A representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item.

“(3) An objection to the particular demand for inspection, copying, testing, or sampling.” (Code Civ. Proc., § 2031.210, subd. (a).)

“A statement that the party to whom a demand for inspection, copying, testing, or sampling has been directed will comply with the particular demand shall state that the production, inspection, copying, testing, or sampling, and related activity demanded, will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.” (Code Civ. Proc., § 2031.220.)

“A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also 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. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.” (Code Civ. Proc., § 2031.230.)

The court will require a further response to RFP No. 2, as construed herein, and production of responsive documents. The fact that a document is identified in response to an interrogatory does not necessarily mean that such document is also in the possession of that party and available for production; if documents are identified by not available for production, an appropriate response consistent with section 2031.230 would be required.

The same analysis applies to RFP Nos. 1, and 3 through 16, including the construction of the request that it refers only to documents identified in response to the applicable special interrogatory. As to each request a further response will be required.

(5) Sanctions

Based upon the foregoing mixed result, the court finds that an award of sanctions would be unjust against any party. All requests for awards of sanctions will be denied.