Ed Foley v. Cinemark USA, Inc.		CASE NO. 113CV249418
DATE: 24 October 2014	TIME: 9:00	LINE NUMBER: 6

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 Thursday 23 October 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 24 October 2014, the motion of plaintiff Ed Foley (“Plaintiff”) to compel defendant Cinemark USA, Inc. (“Defendant”) to provide further responses to requests for admission was argued and submitted.  Defendant filed a formal opposition to the motion.

All parties are reminded that all papers must comply with California Rules of Court, rule 3.1110(f).[1]

1. Statement of Facts

On 14 June 2013, Plaintiff went to see a movie at a Century 24 movie theatre in San Jose, California that was owned by Defendant.  As he was leaving the theatre, Plaintiff thought he was walking towards an open glass exit door, but instead he walked into a large, unmarked exterior window of the theatre.  The glass window broke, causing severe lacerations to Plaintiff’s right arm.

On 12 July 2013, Plaintiff filed the operative complaint, alleging a cause of action for premises liability and/or negligence.

1. Discovery Dispute

During the course of discovery, Defendant produced to Plaintiff a copy of its lease agreement with its landlord, Syufy Enterprises (“Syufy”), for the Century 24 theatre premises.  (See Duffy-Smith Dec., Ex. J.)  The long-term commercial lease became effective on 1 October 1995.  (See id.)  Paragraph 7.02 of the lease provides: “Repairs – Maintenance. Tenant shall, at its sole cost and expense, maintain the Premises in first class condition for a building of like kind and place and make such structural and non-ordinary and extraordinary, foreseen and unforeseen repairs such that the Premises shall not be in violation of any law or covenant recorded as of the Effective Date.”  (Id.)

On 4 June 2014, Defendant entered into a stipulation with Plaintiff, stating that: Defendant leased, occupied, and controlled the subject premises at all relevant times prior to and at the time of the incident; if Plaintiff submits the issue of who leased, occupied, and controlled the subject premises to the court or jury, Defendant will agree that it leased, occupied, and controlled the subject premises at all relevant times prior to and at the time of the incident; and Defendant will not seek to avoid liability in this case by asserting that the owner of the subject premises is in fact liable for Plaintiff’s premises liability claim.  (See Roche Dec., Ex. A.)

On 6 June 2014, Plaintiff served Defendant with requests for admission, set three (“RFA”).  (See Duffy-Smith Dec., Ex. A.)  RFA No. 29 asks Defendant to admit that “[f]rom October 1, 1995, until June 14, 2013, inclusive, Defendant … was solely responsible for making all REPAIRS (defined as making such structural and nonstructural, ordinary and extraordinary, foreseen and unforeseen repairs such that the Century 24 Theater premises shall not be in violation of any law or covenant recorded as of October 1, 1995) to the exterior windows located at the Century 24 Theater premises.”  (See id.)

Defendant requested an extension of time to respond to the RFA and the parties agreed that Defendant would have until 18 July 2014, to respond to the discovery requests.  (See Duffy-Smith Dec., Ex. B.)

Defendant served Plaintiff with its unverified responses to the RFA on 18 July 2014.  (See Duffy-Smith Dec., Ex. C.) In response to RFA No. 29, Defendant objected to the request as overbroad, burdensome, harassing, not reasonably calculated to lead to the discovery of admissible evidence, vague, and ambiguous.  (See id.)  Subject to and without waiving its objections, Defendant also provided a substantive response to the request, stating that: Defendant “admits that Section 7.02 of the subject lease agreement contains the following language: ‘7.02 Repairs – Maintenance. Tenant shall, at its sole cost and expense, maintain the Premises in First class condition for a building of like kind and place and make such structural and non-ordinary and extraordinary , foreseen and unforeseen repairs such that the Premises shall not be in violation of any law or covenant recorded as of the Effective Date.’ Defendant also admits that between 2007 and June 14, 2013, [it] was responsible for making repairs to the subject premises.”  (See id.)

Plaintiff’s counsel sent Defendant’s counsel a meet and confer letter on 31 July 2014.  Plaintiff’s counsel asserted that Defendant’s objections to RFA No. 29 were without merit and its substantive response was evasive.

Defendant’s counsel sent Plaintiff’s counsel a reply letter on 6 August 2014, asserting that RFA No. 29 was vague, ambiguous, and overbroad and Defendant’s substantive response was sufficient.  On the same date, Defendant also served Plaintiff with a verification for its responses to the RFA.

Plaintiff’s counsel and Defendant’s counsel exchanged further meet and confer letters on 12 August 2014, 20 August 2014, 22 August 2014, and 27 August 2014, but were unable to resolve the dispute with respect to RFA No. 29.  (See Duffy-Smith Dec., Exs. F, G, H, I.)

On 10 September 2014, Plaintiff filed the instant motion to compel Defendant to provide a further response to RFA No. 29.  Defendant filed papers in opposition to the motion on 10 October 2014.  Plaintiff filed a reply on 16 October 2014.

III.     Discussion

Plaintiff moves to compel Defendant to provide a further response to RFA No. 29.

1. Legal Standard

If a party demanding a response to a request for admission deems an answer to be incomplete or evasive, or an objection to be without merit or too general, that party may move for an order compelling further response.  (See Code Civ. Proc., § 2033.290.)  The objecting party bears the burden of explaining and justifying any objection.  (See Fairmont Ins. Co. v. Super. Ct. (2000) 22 Cal 4th 245, 255, citing Coy v. Super. Ct. (1962) 58 Cal. 2d. 210, 220-221.)

1. Objections
2. Undefended Objections

Except as expressly indicated below, Defendant does not attempt to defend its objections to the discovery request, and, therefore, the Court finds that any undefended objections are without merit.  (See Coy v. Super. Ct., supra, 58 Cal.2d at p. 220-221.)

2. Vague and Ambiguous

Defendant argues that “[t]he most significant problem with RFA No. 29 is that it is vague and ambiguous because it defines the word ‘REPAIRS,’ using language from [Defendant’s] lease agreement that does not actually define the word ‘repair.’”  (Opp’n., p. 7:11-13.)  Defendant points out that the term “repairs” is defined in the request as “making such structural and nonstructural, ordinary and extraordinary, foreseen and unforeseen repairs such that the Century 24 Theater premises shall not be in violation of any law or covenant recorded as of October 1, 1995.”  Defendant asserts that the language used to define the term “repairs,” which is quoted from Defendant’s commercial lease with Syufy, “is not meant to define what is a ‘repair’ for the purposes of the lease, but simply to describe the scope of [Defendant’s] obligation to make repairs under the lease.”  (Opp’n., p. 7:16-18.)  Defendant contends that the “actual definition of ‘repair’ is to ‘restore by replacing a part or putting together what is torn or broken” and is found in the Merriam-Webster dictionary.  (Opp’n., p. 7:18-20.)  Defendant states that while it understands the quoted language from the lease to mean that it was responsible for making repairs to the theatre to the extent that they were required, “Plaintiff has clearly interpreted this provision to mean that [Defendant] had an obligation to make otherwise unnecessary improvements to the premises for the sole purpose of making it compliant with any applicable laws at the time [Defendant] took possession of the lease.”  (Opp’n., p. 7:21-28.)  Defendant contends that “Plaintiff’s interpretation of the lease agreement is not accurate or reasonable.”  (Opp’n., p. 8:1.)  Defendant further contends that “[b]y defining ‘REPAIRS’ in the RFA by improperly quoting language from the lease, Plaintiff inserts inherent ambiguity into the RFA itself, making it impossible for [Defendant] to … completely admit or deny the RFA, as drafted.”  (Opp’n., p. 8:5-9.)

Plaintiff argues that the definition of the term “repairs” that is provided in the RFA is appropriate.  Plaintiff contends that Defendant does not cite any case law prohibiting it from defining the term as it chooses, even if the definition is somewhat unusual.  Plaintiff argues that its definition of the term “repairs” comes from the lease itself and it is not required to define the term as it is defined by the Merriam-Webster dictionary, citing Code of Civil Procedure section 2033.060, subdivision (e).

A vagueness and ambiguity objection will only be sustained if the request is unintelligible.  (See Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783; see also Cembrook v. Superior Court of San Francisco (1961) 56 Cal. 2d 423, 430.)

Here, Defendant fails to establish that RFA No. 29 is unintelligible because it merely argues that the quoted language from the commercial lease, which is used to define the term “repairs,” is subject to more than one interpretation, not that it is unable to understand Plaintiff’s definition of the term.  Moreover, Plaintiff is correct that Code of Civil Procedure section 2033.060, subdivision (e) allows him to specially define any term in the request and he is not required to use the definition of the term “repairs” that is provided by the Merriam-Webster dictionary.  (See Code Civ. Proc., 2033.060, subd. (e).)

Thus, Defendant’s objection to the request as vague and ambiguous is OVERRULED.

3. Overbroad as to Time

Defendant argues that RFA No. 29 is overbroad as to time because the request asks it “to admit or deny what its obligations were [under the commercial lease] in 1995, over 20 years ago.”  (Opp’n., p. 8:11-12.)  Defendant contends that the parties agreed to limit discovery to the 5 years prior to the incident and, therefore, its response to the request was reasonably limited to the period of 2007 to 14 June 2013.  Defendant asserts in a conclusory manner that any obligations that it owed under the lease from 1995 to 2007 are irrelevant to the instant litigation.

Plaintiff does not directly address Defendant’s arguments regarding over breadth in his papers.  Plaintiff generally argues that the admission sought by RFA No. 29 is relevant because he will request a negligence per se instruction at trial and attempt to prove that Defendant alone “had an on-going duty to repair the premises such that the premises would not be in violation of any law from the date that it entered into the lease (October 1, 1995) until the date of the incident.”  (Opp’n., pp. 3:8-12, 4:11-16.)  Plaintiff indicates that he will present “expert testimony as to which laws were in effect as concerns repairs required to be made to the exterior windows such that the windows would not be in violation of any law during the time that [Defendant] was the lessee, until the date of the incident (October 1, 1995 to June [14], 2013).”  (Opp’n., p. 4:17-20.)  Plaintiff contends that the admission sought by RFA No. 29 “goes directly to the first prong of the [n]egligence [p]er [s]e instruction, to wit: did [Defendant] (as compared to all others) violate a law in effect by failing to make necessary and agreed upon repairs to the subject exterior windows to bring them in compliance with any law(s) prior to the time that Plaintiff made contact with them on June 14, 2013.”  (Opp’n., p. 4:20-24.)

First, Defendant does not provide the Court with any evidence indicating that the parties agreed to limit discovery to the time period of 2007 to the date of the incident.

Second, whether Defendant was solely responsible for making repairs to the exterior windows at the subject premises from 1 October 1995 to 14 June 2013, is relevant to the issues of liability and causation.  While Plaintiff’s injury did not occur until 14 June 2013, it is possible that Defendant, by failing to repair the windows, violated an applicable statute, regulation, or ordinance prior to the date of the incident that later caused Plaintiff’s injury.  (See CACI No. 418; see also Evid. Code § 669, subd. (a) [setting forth the conditions that cause the presumption of negligence per se to arise].)  Therefore, whether Defendant was solely responsible for making any and all repairs to the exterior windows at the subject premises, even as early as 1 October 1995, is relevant to Plaintiff’s claim of negligence.

Thus, Defendant’s overbroad objection is OVERRULED.

4. Irrelevant

Defendant argues that the admission sought by RFA No. 29 is irrelevant because its obligations under the commercial lease that it entered into with Syufy are not relevant to the issues raised in this litigation.  Defendant contends that whether a breach of the commercial lease occurred is irrelevant because the commercial lease would not create an independent duty of care to a third party that is not a party to the lease agreement (i.e., Plaintiff).  Defendant further contends that liability is no longer at issue because the 4 June 2014 stipulation indicated that it leased, occupied, and controlled the subject premises at all relevant times and that it would not seek to avoid liability by asserting that the owner of the premises, Syufy, was in fact liable for Plaintiff’s claim.  (See Opp’n., p. 9:4-10.)

As indicated above, Plaintiff asserts that the admission sought by the request is relevant to its claim of negligence per se.

Defendant is correct that whether it was obligated under the terms of the commercial lease to make repairs to the exterior windows of the theatre so that they did not violate any laws does not have any bearing on whether Defendant had a duty to comply with applicable laws, regulations, or ordinances.  However, the request does not ask Defendant to admit that it had particular obligations under the lease or that it violated specific provisions of the lease.  RFA No. 29 asks Defendant to admit that “[f]rom October 1, 1995, until June 14, 2013, inclusive, Defendant … was solely responsible for making all REPAIRS (defined as making such structural and nonstructural, ordinary and extraordinary, foreseen and unforeseen repairs such that the Century 24 Theater premises shall not be in violation of any law or covenant recorded as of October 1, 1995) to the exterior windows located at the Century 24 Theater premises.”  (See Duffy-Smith Dec., Ex. A.)  Thus, while the request incorporates language that was used in the commercial lease, it merely asks Defendant whether it was solely responsible for making all repairs to the exterior windows of the theatre.  This information is clearly relevant to establish liability for any failure to make repairs to the exteriors windows that were required by statute, regulation, or ordinance.

Moreover, the 4 June 2014 stipulation does not completely resolve the issue of liability because it provides only that Defendant leased, occupied, and controlled the subject premises at all relevant times and Defendant will not seek to avoid liability in this case by asserting that Syufy is liable for Plaintiff’s premises liability claim.  (See Roche Dec., Ex. A.)  The RFA goes further than the stipulation and seeks an admission that Defendant was responsible for making all repairs (structural and nonstructural, ordinary and extraordinary, foreseen and unforeseen repairs such that the subject premises were not be in violation of any law or covenant recorded as of October 1, 1995) to the exterior windows of the theatre from 1 October 1995 to 14 June 2013.

Thus, Defendant’s irrelevant objection is overruled.

1. Substantive Response

Defendant provided a substantive response to RFA No. 29, subject to and without waiving its objections, stating that: Defendant “admits that Section 7.02 of the subject lease agreement contains the following language: ‘7.02 Repairs – Maintenance. Tenant shall, at its sole cost and expense, maintain the Premises in First class condition for a building of like kind and place and make such structural and non-ordinary and extraordinary , foreseen and unforeseen repairs such that the Premises shall not be in violation of any law or covenant recorded as of the Effective Date.’ Defendant also admits that between 2007 and June 14, 2013, [it] was responsible for making repairs to the subject premises.”  (See Duffy-Smith Dec., Ex. C.)

Plaintiff argues that Defendant’s substantive response to the request is evasive and incomplete because Defendant merely admits that the commercial lease contains the language found in paragraph 7.02 and that it was responsible for making repairs to the subject premises from 2007 to the date of the incident.  Plaintiff points out that the request asks Defendant to admit that it was solely responsible for making all repairs, but Defendant’s response indicates only that it was generally responsible.  Plaintiff also notes that the request asks for information prior to 2007, but Defendant’s answer only pertains to the time period of 2007 to 14 June 2013.

Defendant states only that it provided as complete a response to the request as it could, given that the request is vague, ambiguous, and overbroad.

Defendant’s substantive response is evasive and incomplete.  Defendant’s substantive response is conditioned upon its meritless objections and fails to admit or deny that it was solely responsible for making repairs to the exterior windows of the theatre as early as 1 October 1995.

Since all of Defendant’s objections are overruled and its substantive response to the request is incomplete and evasive, a further response to RFA No. 29 is warranted and Plaintiff’s motion to compel a further response is GRANTED.

1. Conclusion and Order

Plaintiff’s motion to compel a further response to RFA No. 29 is GRANTED.  Accordingly, within 20 days of the date of the filing of this Order, Defendant shall provide Plaintiff with a code-compliant, verified further response to RFA No. 29, without objections.

 

 

________________­­­____________ DATED:

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

[1] “Each exhibit must be separated by a hard 81/2 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.”