| Juanita Lujan v. Regional Medical Center of San Jose | CASE NO. 114CV258658 | |
| DATE: 25 September 2014 | TIME: 9:00 | LINE NUMBER: 11 |
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 Juanita Lujan (“Plaintiff”) to compel further responses to requests for admission, form interrogatories, and requests for production of documents, compel production of a privilege log, compel compliance with defendant Regional Medical Center of San Jose’s (“Defendant”) responses to requests for production of documents, extend the discovery cut-off date, and for an award of monetary sanctions was argued and submitted. Defendant filed a formal opposition to the motion.
Statement of Facts
On 10 June 2013, Plaintiff attempted to enter a doorway leading to the cafeteria at Defendant’s facility from an outdoor patio. As Plaintiff walked through the doorway, she tripped on a raised door threshold and fell forward onto the floor of the cafeteria. Plaintiff sustained injuries to her left leg and/or hip as a result of the fall.
On 7 January 2014, Plaintiff filed the operative complaint, alleging causes of action for general negligence and premises liability. Plaintiff then moved for preferential trial setting due to her age. The court granted the motion and ordered the case set for trial on 20 October 2014.
Discovery Dispute
On 18 June 2014, Plaintiff served Defendant with requests for production of documents, set one (“RPD”). On 19 June 2014, Plaintiff served Defendant with requests for admission, set one (“RFA”), and form interrogatories, set one (“FI”).
Defendant requested an extension of time to provide responses to the discovery requests on 22 July 2014. Plaintiff agreed to grant Defendant an extension of time to provide responses to the RFA, FI, and RPD to 4 August 2014. Defendant served Plaintiff with its verified responses to the RFA, FI, and RPD on 4 August 2014. (See Fabbro Dec., Exs. 2, 3, 4.)
Plaintiff’s counsel sent Defendant’s counsel a meet and confer letter on 19 August 2014, regarding Defendant’s responses to the discovery requests. Plaintiff’s counsel asserted that Defendant’s counsel failed to sign the responses and, thus, Defendant’s objections were waived. Plaintiff’s counsel further asserted that Defendant failed to produce certain responsive documents as it agreed to in its responses to the RPD. Plaintiff’s counsel also argued that several of Defendant’s responses to the RFA, FI, and RPD were deficient. Plaintiff’s counsel requested that Defendant provide full and complete discovery responses and produce the requested records by 25 August 2014.
Additionally, Plaintiff’s counsel sent Defendant’s counsel a letter on 22 August 2014, indicating that Plaintiff had not received a copy of the security video that Defendant promised to produce in response to RPD No. 21.
On 26 August 2014, Defendant’s counsel showed Plaintiff’s counsel portions of the security video, but Defendant did not produce a copy of the same.
On 29 August 2014, Plaintiff filed the instant motion to: compel further responses to RFA Nos. 2-14, 21-22, and 30, FI No. 17.1 (as to RFA Nos. 2-22, 25-26, and 30), and RPD Nos. 3-6, 8-9, 14-20, 22-25, 27-36, 42-45, and 47-50; compel production of a privilege log; compel compliance with Defendant’s responses to RPD Nos. 10-11, 21, 26, 37-41, and 46; and extend the discovery cut-off date. Defendant filed papers in opposition to the motion on 12 September 2014. Plaintiff filed a reply on 18 September 2014.
Discussion
I. Further Responses to the RFA, FI, and RPD and Production of a Privilege Log
Plaintiff moves to compel further responses to RFA Nos. 2-14, 21-22, and 30, FI No. 17.1 as to RFA Nos. 2-22, 25-26, and 30, and RPD Nos. 3-6, 8-9, 14-20, 22-25, 27-36, 42-45, and 47-50 and production of a privilege log.
A. Mootness
In its opposition, Defendant states that on September 11, 2014, it served Plaintiff with further responses to RFA Nos. 2-7 and 12-14, FI No. 17.1 as to RFA Nos. 3, 5-7, and 12-14, and RPD Nos. 3-6, 8-9, 14-20, 22-25, 27-36, 42-43, and 47-50, and a privilege log. (See Robertson Dec., ¶ 3, Exs. A, B, C, D.)
When discovery responses are served after a motion to compel is filed, the court has substantial discretion in deciding how to rule in light of the particular circumstances presented. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408-409.) Through this discretion, the court might deny the motion to compel as moot and just impose sanctions, or examine the responses to determine if they are code-compliant. (See id., at p. 409.)
Defendant has provided its further responses to the Court. Upon review of the further responses, it appears that Defendant has made substantive amendments to its responses to the requests. Additionally, Defendant has now produced a privilege log, listing all of the documents that it has withheld from its production.
Plaintiff incorrectly indicates in her reply that Defendant did not provide a further response to RFA No. 14. The further responses to the RFA submitted to the Court by Defendant clearly demonstrate that a further response was provided to that request. (See Robertson Dec., Ex. B, p. 5:20-27, 6:1-2.)
Accordingly, the Court denies Plaintiff’s motion to compel further responses as to RFA Nos. 2-7 and 12-14, FI No. 17.1 as to RFA Nos. 3, 5-7, and 12-14, and RPD Nos. 3-6, 8-9, 14-20, 22-25, 27-36, 42-43, and 47-50, and production of a privilege log as MOOT.
B. Separate Statement
As a preliminary matter, Plaintiff’s separate statement does not address RFA No. 30, FI No. 17.1 as to RFA No. 30, or RPD Nos. 44-45, even though Plaintiff discusses those requests in her memorandum of points and authorities and indicates that she is moving for further responses as to those requests.[1]
Furthermore, while Plaintiff explicitly states in her memorandum of points and authorities that she seeks a further response to RPD Nos. 7 and 37, she does not otherwise address those requests in her memorandum of points and authorities or her separate statement.
California Rules of Court, rule 3.1345(a) states that “[a]ny motion involving the content of a discovery request or the response to such a request must be accompanied by a separate statement.” The motions that require a separate statement include motions to compel further responses to interrogatories, requests for admission, and requests for production of documents. (See Cal. Rules of Court, rule 3.1345(a).) The separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and response. (See Cal. Rules of Court, rule 3.1345(c).) The separate statement must include, for each discovery request to which a further response is requested, the text of the discovery request, the text of the response, and a statement of the factual and legal reasons for compelling a further response for each matter in dispute. (Id.) The Court has the discretion, but is not required, to deny a motion for a deficient separate statement. (See Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 894.)
Here, Plaintiff has not complied with California Rules of Court, rule 3.1345 because her separate statement does not address RFA No. 30, FI No. 17.1 as to RFA No. 30, or RPD Nos. 7, 37, 44, and 45. More importantly, as a result of this omission, Defendant does not address those requests in its separate statement or otherwise provide any substantive analysis regarding the merits of Plaintiff’s argument as it pertains to those requests.
Accordingly, the Court exercises its discretion and DENIES the motion to compel further responses as to RFA Nos. 30, FI No. 17.1 as to RFA No. 30, and RPD Nos. 7, 37, 44, and 45.
C. Remaining Discovery Requests at Issue
The discovery requests that remain at issue are RFA Nos. 8-11 and 21-22 and FI No. 17.1 as to RFA Nos. 2, 4, 8-11, 15-22, and 25-26.
1. Legal Standard
If a party demanding a response to an interrogatory or request for admission deems an answer to a particular interrogatory or request for admission as 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., §§ 2030.300, 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.)
2. Waiver of Objections
Plaintiff argues in her moving papers that Defendant’s objections to the discovery requests are waived because the responses were not signed by Defendant’s counsel. Defendant asserts that this argument is without merit because its counsel signed the RFA and FI on the second page of each set of discovery. In her reply, Plaintiff concedes that Defendant’s counsel did in fact sign the responses.
Accordingly, Defendant’s objections to the RFA and FI have not been waived.
3. RFA Nos. 8 and 9
RFA No. 8 asks Defendant to admit that on 10 June 2013, “the door thresholds of the exit doors of the cafeteria facility at the business premises of [Defendant] did not comply with the building standards of the California Building Code that were extant in 2013.” (Sep. Stmt,. pp. 3:27-28, 4:1-2.) RFA No. 9 asks Defendant to admit that “the door thresholds of the exit doors of the cafeteria facility at the business premises of [Defendant] extant on June 10, 2013 did not comply with the building standards of the California Building Code that were extant when the door thresholds were installed.” (Sep. Stmt., p. 4:2-5.)
Defendant provided identical responses, objecting to the requests as vague, ambiguous, overbroad, and impermissibly seeking disclosure of expert information. (See Sep. Stmt., p. 4:6-10.)
In its opposition, Defendant specifically defends its objection on the ground of impermissible expert disclosure. Defendant argues that since it is not a building expert, it is not qualified to offer an opinion as to which building codes apply and whether the door threshold complied with any building code provision. Defendant contends that this matter is clearly an expert issue as the parties have retained experts as to the building codes for the cafeteria exit doors.
With respect to its remaining objections to the requests as vague, ambiguous, and overbroad, Defendant merely asserts that “[t]he other objections are also appropriate because Plaintiff fails to specify the specific building standards of the California Building Code that apply here to the door threshold.” (Opp’n. Sep. Stmt., p. 3:18-20.)
The Court finds that Defendant’s objection that the request impermissibly calls for an expert opinion is without merit. While the issue of whether the cafeteria exit doors complied with the applicable building code provisions may call for expert testimony, Defendant is required to answer requests for admission with reference to sources reasonably available to it, including its experts. (See Code Civ. Proc., § 2033.220, subd. (c); see also Chodos v. Super. Ct. (1963) 215 Cal.App.2d 318, 322-323 [objections that requests for admission called for an expert opinion lacked merit].) Thus, this objection is overruled.
In addition, the Court finds that Defendant’s single conclusory statement that the remaining objections are valid because Plaintiff does not identify specific building code provisions is inadequate to justify its objections to the requests as vague, ambiguous, and overbroad. A vagueness and ambiguity objection will only be sustained if the request is unintelligible and Defendant does not explain how the failure to identify specific building code provisions makes the requests unintelligible. (See Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783.) Moreover, Defendant does not explain how the failure to identify specific building code provisions makes the requests overbroad. Thus, Defendant’s objections to the requests as vague, ambiguous, and overbroad are overruled.
Since all of Defendant’s objections to RFA Nos. 8 and 9 are overruled and Defendant did not provide a substantive response to the requests, further responses are warranted.
4. RFA Nos. 10 and 11
RFA No. 10 asks Defendant to admit that on 10 June 2013, the door thresholds of the cafeteria exit doors did not comply with the accessibility standards of the Americans with Disability Act (“ADA”). (See Sep. Stmt., p. 4:17-19.)
Defendant provided an objection-only response, objecting to the request as irrelevant, vague, ambiguous, overbroad, and impermissibly seeking premature disclosure of expert witness information.
RFA No. 11 asks Defendant to admit that on 10 June 2013, the door thresholds of the cafeteria exit doors did not comply with the accessibility standards of “ANSI A-117.1-1961, American National Standard Specifications for Making Buildings and Facilities Accessible to and Usable by the Physically Handicapped that were extant when the door thresholds were installed.” (Sep. Stmt., pp. 4:25-28, 5:1.)
Defendant provided an objection-only response to the request, objecting to the request as irrelevant, vague, ambiguous, overbroad, and impermissibly seeking premature disclosure of expert witness information.
Defendant attempts to justify its objection to the requests as irrelevant, arguing Plaintiff has not alleged a violation of the ADA or its predecessor, ANSI A-117.1-1961 and, therefore, its compliance with the same is irrelevant.
Defendant also attempts to justify its objection to the requests as impermissibly seeking expert opinions, arguing that it is not an ADA accessibility expert or qualified to proffer opinions on whether the door threshold is subject to the ADA or ANSI A-117.1-1961, or whether the door threshold complies with the ADA accessibility standards.
With respect to its remaining objections to the requests as vague, ambiguous, and overbroad, Defendant merely asserts that “[t]he other objections are also appropriate because Plaintiff fails to specify the specific ADA standard(s) that would apply here to the door threshold.” (Opp’n. Sep. Stmt., p. 4:26-27.)
Plaintiff contends that Defendant’s objections are without merit because the ADA and ANSI A-117.1-1961 set forth accessibility standards.
Defendant’s single conclusory statement that its vague, ambiguous, and overbroad objections are valid because Plaintiff does not identify specific ADA standards is inadequate to justify those objections. A vagueness and ambiguity objection will only be sustained if the request is unintelligible and Defendant does not explain how the failure to identify specific ADA standards makes the requests unintelligible. (See Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783.) Moreover, Defendant does not explain how the failure to identify specific ADA standards makes the requests overbroad. Thus, Defendant’s objections to the requests as vague, ambiguous, and overbroad are overruled.
Defendant’s objection that the request impermissibly calls for an expert opinion is without merit. While the issue of whether the cafeteria exit doors complied with ADA standards may call for expert testimony, Defendant is required to answer requests for admission with reference to sources reasonably available to it, including its experts. (See Code Civ. Proc., § 2033.220, subd. (c); see also Chodos v. Super. Ct. (1963) 215 Cal.App.2d 318, 322-323 [objections that requests for admission called for an expert opinion lacked merit].) Thus, this objection is overruled.
Nonetheless, Defendant persuasively argues that the information sought by RFA Nos. 10 and 11 is irrelevant as Plaintiff has not alleged any violation of the ADA or its predecessor, ANSI A-117.1-1961, and therefore whether the door thresholds complied with the accessibility standards provided by those laws is not relevant to the subject matter of this case. (See Code Civ. Proc., § 2017.010 [providing that discovery is allowed for any matter that is not privileged, relevant to the subject matter involved in the action, and reasonably calculated to lead to the discovery of admissible evidence].)
Accordingly, Defendant’s relevance objection to RFA Nos. 10 and 11 is sustained and further responses are not warranted to those requests.
5. RFA Nos. 21 and 22
RFA Nos. 21 and 22 ask Defendant to admit that on 10 June 2013, the condition of the door thresholds of the cafeteria exit doors caused Plaintiff to fall and sustain injuries. (See Sep. Stmt., pp. 5:27-28, 6:1-4.)
Defendant provided identical responses, objecting to the requests as overbroad, vague, and ambiguous. Without waiving its objections, Defendant also provided substantive responses to the requests, stating that it made a reasonable inquiry concerning the matter in the requests and “the information known and/or readily attainable is insufficient to enable [it] to either admit or deny this matter.” (Sep. Stmt., p. 6:7-10.)
In its opposition, Defendant does not defend its over breadth objection and, therefore, the Court finds that the objection is without merit. (See Coy v. Super. Ct., supra, 58 Cal.2d at p. 220-221.)
Defendant attempts to justify its objections to the requests as vague and ambiguous, arguing that it “cannot intelligently answer this request because Plaintiff has failed to define what she means by ‘condition of the door thresholds’ … and [it] cannot be expected to speculate and guess about what specifically Plaintiff meant [sic] ‘condition of the door thresholds” is supposed to mean for purposes of this discovery request.” (Opp’n. Sep. Stmt., p. 6:17-20.) Defendant further contends that since Plaintiff failed to provide an adequate definition, it lacks the information necessary for it to admit or deny the RFA.
The term “condition,” as it pertains to the door thresholds of the cafeteria exit doors, is not so vague or ambiguous as to make the requests unintelligible as the term is commonly understood to mean the state of something, especially with regard to its appearance, quality, or working order. (See Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783 [a vagueness and ambiguity objection will only be sustained if the request is unintelligible]; see also Merriam-Webster On-line Dictionary at http://www.merriam-webster.com/dictionary/condition.) Thus, Defendant’s objections to the requests as vague and ambiguous are overruled.
Since Defendant’s substantive responses to the RFA—that it lacks the requisite information to admit or deny the matter—are clearly conditioned upon its objections, further responses to RFA Nos. 21 and 22 are warranted.
6. FI No. 17.1 (as to RFA Nos. 2, 4, 8-11, 15-22, and 25-26)
FI No. 17.1 asks for: (a) the identification of all responses to the RFA that are not unqualified admissions; (b) all facts on which an identified response is based; (c) all persons with knowledge of those facts; and (d) all documents that support an identified response.
a. RFA No. 2 and 4
Defendant responded to FI No. 17.1 as to RFA Nos. 2 and 4 by stating that it made a reasonable inquiry concerning the matter in the requests, but “the information known and/or readily attainable is insufficient to enable [it] to either admit or deny this matter.” (Sep. Stmt., p. 7:16-19.)
In its opposition, Defendant states that it has provided further responses to RFA Nos. 2 and 4 admitting the requests such that no further response to FI No. 17.1, as it pertains to RFA Nos. 2 and 4, is warranted. In its further responses to RFA Nos. 2 and 4, Defendant did in fact admit the requests without qualification. (See Robertson Dec., Ex. B, pp. 2-3.) Thus, a further response to FI No. 17.1 as it pertains to RFA Nos. 2 and 4 is not warranted.
b. RFA Nos. 8 and 9
Defendant responded to FI No. 17.1 as to RFA Nos. 8 and 9 by stating: “No response can be provided. See objections to this request.” (Sep. Stmt., p. 10:16.)
In its opposition, Defendant argues that its objections to RFA Nos. 8 and 9 are valid and, therefore, it cannot provide a response to FI No. 17.1 as it pertains to RFA Nos. 8 and 9 based on its objections.
As articulated above, all of Defendant’s objections to RFA Nos. 8 and 9 are overruled and further responses to those requests are warranted. Thus, if Defendant’s further responses to RFA Nos. 8 and 9 are anything other than unqualified admissions, Defendant must also provide a further response to FI No. 17.1 as to RFA Nos. 8 and 9.
c. RFA Nos. 10 and 11
Defendant responded to FI No. 17.1 as to RFA Nos. 10 and 11 by stating: “No response can be provided. See objections to this request.” (Sep. Stmt., p. 11:16.)
In its opposition, Defendant argues that its objections to RFA Nos. 10 and 11 are valid and, therefore, it cannot provide a response to FI No. 17.1 as it pertains to RFA Nos. 10 and 11 based on its objections.
As articulated above, Defendant’s objection to RFA Nos. 10 and 11 based on relevance is sustained and no further responses are warranted for those requests. Accordingly, Defendant’s refusal to provide a response to FI No. 17.1 based on its objections to RFA Nos. 10 and 11 was appropriate and no further response to FI No. 17.1 as it pertains to RFA Nos. 10 and 11 is warranted.
d. RFA Nos. 15-20
RFA Nos. 15-18 ask Defendant to admit that on 10 June 2013, the condition of the door thresholds of the cafeteria exit doors was dangerous and/or a trip hazard to persons attempting to enter and/or exit the cafeteria through the exit doors. RFA Nos. 19 and 20 ask Defendant to admit that on 10 June 2013, it was aware that the condition of the door thresholds of the cafeteria exit doors was dangerous and/or a trip hazard to persons attempting to enter and/or exit the cafeteria through the exit doors. Defendant responded RFA Nos. 15-20 by denying the requests.
Defendant provided substantive responses to subparts (b), (c), and (d) of FI No. 17.1 as to RFA Nos. 15-20. In response to subpart (b), Defendant stated that the door thresholds and the surrounding area were not dangerous or a trip hazard. Defendant further stated that it was unaware of any incidents prior to the subject accident involving the door thresholds of the cafeteria exit doors or the surrounding area where the condition of the door thresholds or surrounding area caused a person to fall and/or fall and injure themselves. Defendant also stated that it did not have actual or constructive notice of any dangerous or unsafe condition and Plaintiff improperly used the exit-only doors to attempt to enter the cafeteria. In response to subpart (c), Defendant identified Tracey McKinzie (“Ms. McKinzie”). In response to subpart (d), Defendant simply stated “[n]one.” (Sep. Stmt., p. 14:13-14.)
Plaintiff asserts that Defendant’s response to FI No. 17.1 as to RFA Nos. 15-20 is incomplete. Plaintiff argues that Defendant has not identified any facts that support its denial that the door thresholds or the surrounding area were dangerous other than its statement that it was not aware of any prior incidents. Plaintiff contends that Defendant should provide a further response stating why it denies the condition was dangerous and identifying the support for its contentions. Plaintiff also contends that Defendant’s statement that it was not aware of any prior incident is insufficient because Defendant does not indicate the period of time the response relates to, what is meant by the area surrounding the cafeteria doors, whether there are documents that demonstrate the lack of accidents, or whether there are persons who have knowledge of the lack of accidents.
Plaintiff further argues that Defendant’s response to FI No. 17.1 as to RFA Nos. 15-20 is evasive as Defendant identified Ms. McKinzie as the only person with personal knowledge of the facts stated in the responses, but Ms. McKinzie verified Defendant’s responses upon information and belief. Plaintiff asserts that in light of Ms. McKinzie’s verification, Ms. McKinzie does not have personal knowledge of the facts stated therein. Plaintiff contends that this demonstrates that Defendant did not conduct a reasonable investigation to obtain responsive information or that Defendant is intentionally withholding full and complete information.
In its opposition, Defendant reiterates the contents of its responses and states only that they are code-compliant.
Defendant’s response is incomplete because Defendant does not state specific facts that support its denials that the door thresholds and surrounding areas were unsafe and/or dangerous and it was aware of the dangerous condition. If there are no specific facts that support Defendants assertions, then Defendant should so state. Additionally, Plaintiff persuasively argues that Defendant’s response is evasive to the extent that it identifies Ms. McKinzie as an individual with personal knowledge because the verification signed by Ms. McKinzie indicates that her knowledge of the information contained in the responses is based only upon information and belief.
Accordingly, a further response to FI No. 17.1 as to RFA Nos. 15-20 is warranted.
e. RFA Nos. 21 and 22
Defendant responded to FI No. 17.1 as to RFA Nos. 21 and 22 by stating: “No response can be provided. See objections to this request.” (Sep. Stmt., p. 19:2-3.)
In its opposition, Defendant argues that its objections to RFA Nos. 21 and 22 are valid and, therefore, it cannot provide a response to FI No. 17.1 as it pertains to RFA Nos. 21 and 22 based on its objections.
As articulated above, all of Defendant’s objections to RFA Nos. 21 and 22 are overruled and further responses to those requests are warranted. Thus, if Defendant’s further responses to RFA Nos. 21 and 22 are anything other than unqualified admissions, Defendant must also provide a further response to FI No. 17.1 as to RFA Nos. 21 and 22.
f. RFA Nos. 25 and 26
RFA Nos. 25 and 26 ask Defendant to admit that it was aware that there were tables and chairs set up for persons to use on the exterior patio adjacent to the cafeteria facility. Defendant responded to the RFA by denying the requests.
Defendant provided substantive responses to subparts (b), (c), and (d) of FI No. 17.1 as to RFA Nos. 25 and 26. In response to subpart (b), Defendant stated that it was aware that there were tables and chairs outside of the cafeteria at the time of the incident, but the tables and chairs were not for any persons’ use. Defendant further stated that the area in question was an employee entrance area only and the cafeteria door at issue was an exit-only door that was not meant for ingress. In response to subpart (c), Defendant identified Ms. McKinzie. In response to subpart (d), Defendant generally identified photographs of the area and building plans.
Plaintiff persuasively argues that Defendant’s response to FI No. 17.1 as to RFA Nos. 25 and 26 is evasive as Defendant identified Ms. McKinzie as the only person with personal knowledge of the facts stated in the responses, but Ms. McKinzie verified Defendant’s responses only on information and belief.
Accordingly, a further response to FI No. 17.1 as to RFA Nos. 25 and 26 is warranted.
7. Conclusion
Plaintiff’s motion to compel further responses as to RFA Nos. 8-11 and 21-22 and FI No. 17.1 as to RFA Nos. 2, 4, 8-11, 15-22, and 25-26 is GRANTED IN PART and DENIED IN PART. The motion is GRANTED as to RFA Nos. 8-9 and 21-22 and FI No. 17.1 as to RFA Nos. 8-9, 15-22, and 25-26. The motion is DENIED as to RFA Nos. 10-11 and FI No. 17.1 as to RFA Nos. 2, 4, and 10-11.
II. Compliance with Defendant’s Responses to the RPD
Plaintiff moves to compel compliance with Defendant’s responses to RPD Nos. 10-11, 21, 26, 37-41, and 46.
A. Legal Standard
If a responding party agrees to comply with a request for production of documents but then fails to do so, compliance may be compelled under Code of Civil Procedure section 2031.320. (See Code Civ. Proc., § 2031.320 subd. (a); see also Weil & Brown et al., Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2014) §§ 8:1503 and 8:1508, p. 8H-50.) Unlike a motion to compel further responses to requests for production of documents made pursuant to Code of Civil Procedure section 2031.310, a motion to compel compliance does not require the moving party to set forth specific facts showing good cause justifying the discovery sought by the inspection demand. (See Standon Co., Inc. v. Super. Ct. (1990) 225 Cal.App.3d 898, 903.) “All that has to be shown is the responding party’s failure to comply as agreed.” (See Weil & Brown et al., Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2014) § 8:1508.1, p. 8H-50.)
B. Analysis
RPD Nos. 10-11, 21, 26, 37-41, and 46 ask Defendant to produce: photographs or video recordings that depict Plaintiff; photographs that depict the location of the incident; photographs or video recordings of the location of the incident taken on the date of the incident; correspondence between Defendant and any other person concerning the incident; communications between Defendant and Plaintiff, her representatives, her friends, or her family concerning the incident; documents that describe the location of the incident; documents reflecting applications for building permits related to the construction of the cafeteria and/or exterior patio located adjacent to the cafeteria; and Defendant’s emergency exit plan for the cafeteria.
In response to the RPD, Defendant asserted numerous objections and, without waiving the same, stated that it would produce all responsive documents in its possession, custody, or control.
In her moving papers, Plaintiff argues Defendant has not produced all documents that are responsive to the RPD. Plaintiff states that the only documents produced were “a one-page evacuation plan, some photographs and the emergency room report.” (Mem. Ps & As., p. 2:28-29.) Plaintiff states that she is particularly concerned that Defendant has not produced documents in response to RPD No. 21, which asks for photographs and video recording from the day of the incident. Plaintiff asserts that Defendant’s counsel advised on 19 August 2014, that there was a security video that depicted the scene of the incident and witnesses involved. The video was shown to Plaintiff’s counsel on 26 August 2014, but Defendant did not produce it.
In its opposition, Defendant states that on 3 September 2014, it produced a copy of the security video on DVD. (See Robertson Dec., ¶ 4.) Defendant further states that it has produced all documents in its possession, custody, or control that are responsive to RPD Nos. 10-11, 21, 26, 37, 38-41, and 46.
In her reply, Plaintiff states that Defendant has produced only 8 minutes of security footage and claims to have lost the footage for the remainder of the day of the incident. Plaintiff also states that during the deposition of Defendant’s person most knowledgeable, Kendall Jones (“Mr. Jones”), Mr. Jones stated that efforts were being made to locate the video, but a complete copy has not been provided to date. Plaintiff further states that Defendant’s counsel showed her counsel approximately 5 photographs taken of the missing video footage, but Defendant has only produced copies of one of the photographs.
Additionally, Plaintiff contends that Defendant has not produced documents responsive to RPD Nos. 22 and 48-50, relating to a “Consent Decree and/or ADA compliance inspections which were conducted pursuant to a 12/04/2009 Settlement Agreement and Consent Decree relating to the removal of ADA accessibility barriers.” (Reply, p. 3:3-17.) Plaintiff also states that Defendant has not produced documents responsive to RPD No. 27, “relating to any property manager’s and/or supervisor’s log, daily diaries, daily reports, maintenance schedules, inspection schedules and/or other records.” (Id.)
Plaintiff does not indicate in her papers what documents, if any, she believes Defendant has not produced that are responsive to RPD Nos. 10-11, 26, 37, 38-41, and 46.
Here, Plaintiff has demonstrated that Defendant has not complied with its response to RPD No. 21. While Defendant has produced a copy of 8 minutes of the security video and contends that it does not have the remaining portions of the security video because they have been lost, it appears that copies of 4 photographs from the missing security video footage have not been produced. Thus, Defendant has failed to comply with its response to RPD No. 21 as it has not produced the remaining 4 photographs depicting scenes from the missing security video footage.
Plaintiff’s assertion that Defendant has not produced all documents that are responsive to RPD Nos. 10-11, 26, 37, 38-41, and 46 appears to be mere speculation because Plaintiff does not identify any documents that Defendant purportedly failed to produce in response to those requests. Moreover, Defendant represents that it has produced all documents that are responsive to those requests.
Lastly, Plaintiff did not indicate in her moving papers that she was moving to compel compliance with Defendant’s responses to RPD Nos. 22, 27, and 48-50. Plaintiff’s attempt to raise the issue of Defendant’s purported noncompliance with its responses to RPD Nos. 22, 27, and 48-50 for the first time in her reply is improper. (See REO Broadcasting Consultants v. Martin (1999) 69 Cal.App.4th 489, 500 [“This court will not consider points raised for the first time in a reply brief for the obvious reason that opposing counsel has not been given the opportunity to address those points”].) Moreover, Plaintiff’s assertion that Defendant has not produced all documents that are responsive to those requests appears to be mere speculation because Plaintiff does not provide any evidence demonstrating that the documents identified by her are being withheld by Defendant.
Accordingly, Plaintiff’s motion to compel compliance as to RPD Nos. 10-11, 21, 26, 37, 38-41, and 46 is GRANTED IN PART and DENIED IN PART. The motion is GRANTED as to RPD No. 21. The motion is DENIED as to RPD Nos. 10-11, 26, 37, 38-41, and 46. However, Defendant shall serve Plaintiff with a verified statement, declaring that it has produced all documents in its possession, custody, or control that are responsive to RPD Nos. 10-11, 21, 26, 37, 38-41, and 46 and explaining what happened to the missing portions of the security video footage.
III. Extension of the Discovery Cut-off Date
Plaintiff moves for an order extending the discovery cut-off date to 10 October 2014, pursuant to Code of Civil Procedure section 2024.050.
A. Legal Standard
“[A]ny party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action.” (Code Civ. Proc., § 2024.020, subd. (a).) Once discovery is closed, the court lacks jurisdiction to hear any discovery matter unless a party moves to reopen discovery pursuant to Code of Civil Procedure section 2024.050, subdivision (a). (See Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, 1586.) The court, however, has discretion to allow a party to complete discovery proceedings closer to or after the initial trial date. (See Code Civ. Proc., § 2024.050.) In exercising its discretion to permit discovery beyond the cut-off date, the court may consider the following factors: (1) the need and reasons for further discovery, (2) the diligence of the party seeking the discovery and the reasons the discovery was not completed earlier, and (3) the likelihood that permitting the discovery will prevent the case from going to trial on the date set or result in prejudice to any other party. (See Code Civ. Proc., § 2024.050, subd. (b).)
B. Analysis
Plaintiff argues that the Court should extend the discovery cut-off date to 10 October 2014, to allow her to conduct further discovery “as to any information disclosed in any further responses or documents produced arising out of the Court’s order on this motion.” (Mem. Ps & As., pp. 13:35-37, 14:1-2.)
Conversely, Defendant argues that the Court should not extend the discovery cut-off date because it has “provided all written discovery responses and produced all responsive documents.” (Opp’n., p. 411-12.) Defendant asserts that if Plaintiff wants to perform further discovery, she can “seek a continuance of the trial date and keep the discovery open or she can file the appropriate motion.” (Opp’n., p. 4:13-14.) Defendant also points out that Plaintiff did not seek a stipulation from it to extend the discovery deadlines and did not proceed ex parte on her request. Defendant contends that Plaintiff’s request to extend the discovery cut-off date should have been made sooner. Defendant also argues that the instant motion is set for hearing beyond the discovery cut-off date and should therefore be denied.
Here, trial is set for 20 October 2014. Thus, the discovery in this case must be completed on or before 22 September 2014, and any motions concerning discovery must be heard on or before 6 October 2014.[2]
Defendant’s argument that the instant motion is improperly set for hearing on 25 September 2014, is without merit. As indicated above, a hearing on discovery matters may be heard up until the 15th day before the trial date. (See Code Civ. Proc., § 2024.020, subd. (a).) The instant motion is set for 25 September 2014, and is therefore appropriately scheduled to be heard before the 6 October 2014 deadline.
With respect to Plaintiff’s request to extend the discovery cut-off date from 22 September 2014 to 10 October 2014, the Court finds that the factors enumerated by Code of Civil Procedure section 2024.050, subdivision (b) do not support the extension of the discovery cut-off date given the present circumstances. Plaintiff indicates that she needs to extend the discovery cut-off date in order to conduct further discovery should Defendant’s further responses to the discovery requests, which are the subject of the instant motion, reveal new information. Defendant served Plaintiff with its responses to these discovery requests on 4 August 2014, and Plaintiff’s counsel sent Defendant’s counsel a meet and confer letter regarding the requests on 19 August 2014. Thus, at least as of 19 August 2014, Plaintiff was aware that some of Defendant’s responses were deficient and of the possibility that further discovery would be needed based upon any new information provided in further responses.
As Defendant points out, Plaintiff was not diligent in seeking to extend the discovery cut-off date. Upon realizing that further responses might be necessary, Plaintiff did not promptly move ex parte or otherwise seek to extend the discovery cut-off date. Instead, Plaintiff waited to file this motion until 29 August 2014, with a hearing date of 25 September 2014, a mere few weeks prior to the parties’ trial date. Moreover, if the Court were to extend the discovery cut-off date and permit Plaintiff to conduct additional discovery, it would very likely prevent the case from going to trial. If Plaintiff was to propound further discovery, Defendant’s responses would not be due until well after the trial date.
Accordingly, Plaintiff’s request to extend the discovery cut-off date is DENIED.
IV. Plaintiff’s Request for Monetary Sanctions
Plaintiff requests monetary sanctions against Defendant in the amount of $2,500 under Code of Civil Procedure sections 2030.300, 2031.310, 2031.320, and 2033.290.
Those statutes provide that the court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further responses to interrogatories, requests for production of documents, or requests for admission or compliance with a request for production of documents, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (See Code Civ. Proc., §§ 2030.300, subd. (d), 2031.310, subd. (h), 2031.320, subd. (b), and 2033.290, subd. (d).)
Here, Plaintiff was largely successful on its motion to compel further responses to the RFA, FI, and RPD, production of a privilege log, and compliance with Defendant’s responses to the RPD because Defendant served Plaintiff with a privilege log and further responses to several of the discovery requests after the filing of the instant motion. In addition, with respect to the requests that remained at issue, Plaintiff was the prevailing party on most of the requests. While a small number of Defendant’s objections had merit, the Court finds that Defendant acted with substantial justification by opposing the motion.
Additionally, Defendant was justified in opposing the motion of Plaintiff to extend the discovery cutoff.
Accordingly, Plaintiff’s request for monetary sanctions is DENIED.
Conclusion and Order
Plaintiff’s motion is DENIED IN PART and GRANTED IN PART. The motion as to Plaintiff’s request to compel further responses as to RFA Nos. 2-7 and 12-14, FI No. 17.1 (as to RFA Nos. 3, 5-7, and 12-14), and RPD Nos. 3-6, 8-9, 14-20, 22-25, 27-36, 42-43, and 47-50 and production of a privilege log is DENIED as moot. The motion as to Plaintiff’s request to compel further responses to RFA Nos. 10-11 and 30, FI No. 17.1 (as to RFA No. 2, 4, 10-11, and 30), and RPD Nos. 44-45, compel compliance with Defendant’s responses to RPD Nos. 10-11, 26, 37, 38-41, and 46, and extend the discovery cut-off date is DENIED on the merits. The motion as to Plaintiff’s request to compel further responses as to RFA Nos. 8-9 and 21-22 and FI No. 17.1 (as to RFA Nos. 8-9, 15-22, and 25-26) and compliance with Defendant’s responses to RPD No. 21 is GRANTED. Accordingly, Defendant shall serve Plaintiff with further verified, code-compliant responses to RFA Nos. 8-9 and 21-22 and FI No. 17.1 (as to RFA Nos. 8-9, 15-22, and 25-26, without objection, by 3 October 2014. In addition, Defendant shall produce the remaining 4 photographs depicting scenes from the missing security video footage and serve Plaintiff with a verified statement, declaring that it has produced all documents in its possession, custody, or control that are responsive to RPD Nos. 10-11, 21, 26, 37, 38-41, and 46 and explaining what happened to the missing portions of the security video footage by 3 October 2014.
Plaintiff’s request for monetary sanctions is DENIED.
| ____________________________
DATED: |
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HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara |
[1] The Court notes that Plaintiff’s separate statement also fails to address RFA Nos. 2-4. However, as indicated above, Plaintiff’s motion to compel further responses to those requests is moot.
[2] The 30th day before the 20 October 2014 trial date actually falls on 20 September 2014, a Saturday, and therefore the date by which discovery must be completed rolls forward to the next court day, 22 September 2014. (See Code Civ. Proc. § 2016.060 [“When the last day to perform or complete any act provided for in this title falls on a Saturday, Sunday, or holiday as specified in Section 10, the time limit is extended until the next court day closer to the trial date.”].) Similarly, the 15th day before the 20 October 2014 trial date falls on 5 October 2014, a Sunday, and thus the last date on which a discovery hearing can be heard is 6 October 2014. (See Code Civ. Proc. § 2016.060.)
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