Case Number: BC663290 Hearing Date: October 29, 2019 Dept: J

HEARING DATE: Tuesday, October 29, 2019

NOTICE: See below[1]

RE: Banda v. Food 4 Less of California, Inc. (BC663290)

______________________________________________________________________________

1. Defendant Food 4 Less of California, Inc. dba Food 4 Less’ MOTION TO COMPEL

FURTHER RESPONSES TO REQUEST FOR ADMISSIONS, SET ONE

Responding Party: Plaintiff, Gloria Banda

2. Defendant Food 4 Less of California, Inc. dba Food 4 Less’ MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET TWO

Responding Party: Plaintiff, Gloria Banda

Tentative Ruling

1. Defendant Food 4 Less of California, Inc. dba Food 4 Less’ Motion to Compel Further

Responses to Request for Admissions, Set One is GRANTED. Sanctions are awarded

in the reduced amount of $810.00.

2. Defendant Food 4 Less of California, Inc. dba Food 4 Less’ Motion to Compel Further

Responses to Special Interrogatories, Set Two is GRANTED. Sanctions are awarded

in the reduced amount of $810.00.

Background

Plaintiff Gloria Banda (“Plaintiff”) alleges that she sustained injuries in a January 13, 2017 slip and fall. On May 30, 2017, Plaintiff filed a complaint, asserting causes of action against Defendant Food 4 Less of California, Inc. and Does 1-50 for:

Negligence

Premises Liability

On March 28, 2019, this case was transferred from Department 4A (personal injury hub) to this instant department.

A Trial Setting Conference is set for February 28, 2020.

1. Motion to Compel Furthers Re: Requests for Admissions

Legal Standard

A party may move to compel further responses to requests for admission if the propounding party deems that (1) an answer to a particular request is evasive or incomplete, or (2) an objection to a particular request is without merit or too general. (CCP § 2033.290(a).) Again, the moving party must demonstrate a “reasonable and good faith attempt” at an informal resolution of each issue presented. (CCP §§ 2016.040, 2033.290(a).)

Notice of the motion must be provided within 45 days of service of the verified response, or any supplemental verified response, or on or before any specific later date to which the parties have agreed in writing. (CCP § 2033.290(c).) The responding party has the burden of justifying the objections or failure fully to answer the requests. (Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221; Fairmount Ins. Co. v. Sup. Ct. (Stendell) 22 Cal.4th 245, 255.)

Motions to compel further responses must always be accompanied by a separate statement containing the requests and the responses, verbatim, as well as reasons why a further response is warranted. (California Rules of Court [“CRC”] Rule 3.1345(a).) The separate statement must also be complete in itself; no extrinsic materials may be incorporated by reference. (CRC Rule 3.1345(c).)

Discussion

Defendant Food 4 Less of California, Inc. dba Food 4 Less (“Defendant”) moves the court for an order compelling Plaintiff to provide further responses to Defendant’s Requests for Admissions, Set One, Nos. 14, 21, 23, 26 and 38.

On August 9, 2018, Defendant served the subject discovery. (Huber Decl., ¶3, Exh. A). On February 27, 2019, Plaintiff served amended responses. (Id., ¶4, Exh. B.) On March 28, 2019, Defendant’s counsel Gina Huber (“Huber”) sent Azizi a meet and confer letter, requesting further responses on or before April 5, 2019. (Id., ¶5, Exh. C.) Counsel subsequently agreed that that Plaintiff would be given until April 26, 2019 to provide further responses and that, in turn, Defendant would have until May 10, 2019 within which to file any motion to compel furthers. (Id., ¶6, Exh. D.) No further responses were provided, as of the May 10, 2019 motion filing. (Id., ¶7).

At the outset, the court is in receipt of Plaintiff’s September 5, 2019 opposition, which states merely that the parties must participate in an Informal Discovery Conference (“IDC”) prior to the hearing of any motion to compel furthers pursuant to an Amended General Order Re: Personal Injury Court Procedures. As the parties are well aware, this case was transferred from Department 4A (personal injury hub) to this instant department on March 28, 2019; accordingly, any orders issued by the personal injury courts are no longer applicable.

The discovery in issue reads as follows:

Request for Admission No. 14

Admit YOUR right shoulder calcific tendinitis was not related to the INCIDENT.

Request for Admission No. 21

Admit YOU received cortisone shorts to your right knee prior to the INCIDENT.

Request for Admission No. 23

Admit Dr. Adelaide Willis diagnosed YOU with chronic osteoporosis in 201.3

Request for Admission No. 26

Admit that any complaints of pain preexisted the INCIDENT.

Request for Admission No. 28

Admit YOU had osteoarthritis in YOUR right knee in October 20, 2014.

Plaintiff provided the following identical response to the above requests: “A reasonable inquiry concerning this matter in the particular request has been made, and the information known or readily obtainable is insufficient to enable Plaintiff to admit or deny. This request calls for Medical expert opinion. Discovery and investigation continuing. Plaintiff reserves the right to supplement and/or amend this response.

Plaintiff’s responses reflect non-compliance with CCP § 2033.220(c) (i.e., “[i]f 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”).

“A party to an action may not necessarily avoid responding to a request for admission on the ground that the request calls for expert opinion and the party does not know the answer.” (Bloxham v. Saldiner (2014) 228 Cal.App.4th 729, 751.) “[S]ince requests for admissions are not limited to matters within personal knowledge of the responding party, that party has a duty to make a reasonable investigation of the facts before answering items which do not fall within his personal knowledge.’” (Smith v. Circle P Ranch Co. (1978) 87 Cal.App.3d 267, 273.) Plaintiff, moreover, has failed meet her burden of justifying her objections to the requests. Accordingly, the motion is GRANTED in full.

Defendant also seeks sanctions of $1,890.00 against Plaintiff and her attorney of record, David Azizi, Esq. (“Azizi”) of the Law Offices of David Azizi, jointly and severally [calculated as follows: 4.5 hours preparing motion, plus 1 hour reviewing opposition, plus 2 hours preparing reply, plus 3 hours attending hearing at $180.00/hour]. The court awards sanctions, but in the reduced amount of $810.00 (i.e., 3 hours preparing motion, plus 1.5 hours appearance time at $180.00/hour).

2. Motion to Compel Furthers Re: Special Interrogatories

Legal Standard

A party may move to compel further responses to interrogatories if the propounding party deems that (1) an answer to a particular interrogatory is evasive or incomplete, (2) an exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate, or (3) an objection to an interrogatory is without merit or too general. (CCP § 2030.300(a).) The moving party must demonstrate a “reasonable and good faith attempt” at an informal resolution of each issue presented. (CCP §§ 2016.040, 2030.300(b).)

Notice of the motion must be provided within 45 days of service of the verified response, or any supplemental verified response, or on or before any specific later date to which the parties have agreed in writing. (CCP § 2030.300(c).) Again, the responding party has the burden of justifying the objections or failure fully to answer the requests. (Coy, supra, 58 Cal.2d at 220-221;

Fairmount, supra, 22 Cal.4th at 255.)

Motions to compel further responses must always be accompanied by a separate statement containing the requests and the responses, verbatim, as well as reasons why a further response is warranted. (CRC Rule 3.1345(a).) The separate statement must also be complete in itself; no extrinsic materials may be incorporated by reference. (CRC Rule 3.1345(c).)

Discussion

Defendant moves the court for an order compelling Plaintiff to provide further responses to Defendant’s Special Interrogatories, Set Two, Nos. 53, 55, 56-66 and 70-72.

On September 7, 2018, Defendant served the subject discovery. (Huber Decl., ¶3, Exh. A). After having failed to received any responses from Plaintiff, Defendant filed a “Motion to Compel Plaintiff’s Responses to. . .Special Interrogatories, Set Two,” which was granted by the court on February 27, 2019. Plaintiff served verified responses to the Special Interrogatories, Set Two on March 29, 2019. (Id., ¶6, Exh. D.) On April 2, 2019, Huber sent Azizi a meet and confer letter, requesting further responses on or before April 12, 2019. (Id., ¶7, Exh. E.) Counsel subsequently agreed that that Plaintiff would be given until April 26, 2019 to provide further responses and that, in turn, Defendant would have until May 10, 2019 within which to file any motion to compel furthers. (Id., ¶8, Exh. F.) On May 7, 2019, Plaintiff’s counsel’s office advised that further responses would not be provided. (Id., ¶8, Exh. G.) On May 8, 2019, Huber sent a follow-up email to Azizi. (Id., ¶9, Exh. H.) Nothing further was received from Plaintiff’s counsel’s office prior to the filing of the motion. (Id., ¶10).

Again, the court is in receipt of Plaintiff’s September 5, 2019 opposition regarding the need for an IDC, which the court rejects for the reasons set forth above.

The discovery in issue seeks information related to the identification of body parts for which Plaintiff sought medical treatment and the specific medical treatments received by Plaintiff. Plaintiff, in response, states that she either does not recall or may/may have not received treatment. Plaintiff’s responses to the discovery in issue reflect non-compliance with CCP § 2030.220(c) (i.e., “[i]f 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.”) “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 (1978) 84 Cal.App.3d 771, 782.) Here, it is unclear whether Plaintiff made any reasonable inquiry or sought to obtain records, documents, or other sources of information to provide a response to each of the interrogatories; accordingly, the motion is GRANTED in full.

Defendant also seeks sanctions of $1,890.00 against Plaintiff and Azizi, jointly and severally [calculated as follows: 4.5 hours preparing motion, plus 1 hour reviewing opposition, plus 2 hours preparing reply, plus 3 hours attending hearing at $180.00/hour]. The court awards sanctions, but in the reduced amount of $810.00 (i.e., 3 hours preparing motion, plus 1.5 hours appearance time at $180.00/hour).

[1] The motions were filed on May 10, 2019. Motion #1 was originally set for hearing on September 18, 2019; on August 14, 2019, the court advanced the September 18, 2019 hearing to August 14, 2019 and continued it to September 19, 2019, to be heard concurrently with Motion #2. On August 20, 2019, moving party filed its “Notice of Advancement and Continuance of Hearing on Defendant’s Motion to Compel Further Discovery Responses;” it had been mail-served on August 19, 2019.

On September 18, 2019, the motions were rescheduled by the court to October 7, 2019. On October 7, 2019, the court continued the hearing to October 29, 2019 and ordered the parties to meet and confer no later than October 15, 2019; counsel for Plaintiff was instructed to give notice. There is no indication that Plaintiff has provided the requisite notice. The parties have not provided the court with any status update regarding any meet and confer efforts, to date (i.e., as of October 22, 2019, 10:14 a.m.).