Maritza Best vs Steven J Sherwin et al
Case No: 18CV02921
Hearing Date: Wed Aug 14, 2019 9:30

Nature of Proceedings: (4) Motions to Compel Further Responses

TENTATIVE RULINGS: The motions are granted, in their entirety, as outlined below. Plaintiffs are ordered to provide further verified responses to the interrogatories at issue, on or before August 28, 2019.

Background: Plaintiffs’ complaint, filed June 12, 2018, alleges causes of action for negligence, negligent infliction of emotional distress, both common law and statutory breach of the implied warranty of habitability, private nuisance, breach of contract, and retaliatory eviction. It arises from plaintiffs’ lease and inhabitance of a residence which proved to be contaminated by toxic mold, the failure to contain the contamination during work performed to mitigate the problem, and the personal injuries and damages incurred by the plaintiffs as a result of their exposure to the conditions. The plaintiffs include Maritza and Sean Best, and minor plaintiffs Inez and Joaquin Best. Defendants include the owner of the premises, a property management company, and a building maintenance company.

Defendant Coastal Building Maintenance propounded Form Interrogatories upon each of the four plaintiffs, and now seeks to compel further responses to Nos. 4.1, 12.2, 12.3, and 12.5 as to each of the four plaintiffs, and Nos. 8.3, 8.4, 8.5, 8.6. 8.7, and 8.8 as to the adult plaintiffs. While no sanctions were sought against plaintiffs or their attorney in the motions to compel, plaintiffs seek sanctions of $2,500 against defendant and its attorneys in their oppositions to the motions.

ANALYSIS: The motions are granted, in their entirety, as outlined below. Plaintiffs are ordered to provide further verified responses to the interrogatories at issue, on or before August 28, 2019. Plaintiffs’ opposition request for sanctions is denied.

Because the responses of each plaintiff to the interrogatories at issue were identical (noting that Nos. 8.3-8.8 were propounded only to the adult plaintiffs), the Court will address the motions and interrogatories collectively.

1. Insurance information. (All plaintiffs.)

Form Interrogatory No. 4.1 seeks to discover whether, at the time of the incident that gave rise to the action, there was “in effect any policy of insurance through which you were or might be insured in any manner (for example, primary, pro-rata, or excess liability coverage or medical expense coverage) for the damages, claims, or actions that have arisen out of the incident?” If the answer is yes, the interrogatory seeks detailed information about the policy, including coverage limits, the existence of reservations of rights, etc.

Each plaintiff responded to No. 4.1 by objecting on relevance and invasion of privacy grounds, citing Hrnjak v. Graymar (1971) 4 Cal.3d 725; Pacific Gas & Electric Company v. Superior Court (1994) 28 Cal.App.4th 174; and Helfend v. SCRTD (1970) 2 Cal.3d 1. In further responses, each plaintiff reiterated the response, and added that the request sought information within the zone of privacy protected by the California Constitution, article I, section1, citing Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 762, 656.

In meet and confer communications, the parties exchanged citations related to the limitation on the amounts recoverable for medical expenses to those actually paid by the medical insurer (although interestingly not the California Supreme Court case on the issue), an issue not particularly relevant to the discovery of medical insurance information. Plaintiffs also relied on their right to privacy, and the provisions of Code of Civil Procedure section 2017.210, related to discoverability of liability insurance information. In its separate statement in support of the motion to compel, defendant asserted it needs the information because plaintiffs’ medical history is important to their evaluation of the claims of physical and emotional injuries. Finally, defendant asserts that no privacy violation could exist, because plaintiffs have already fully responded to Interrogatory No. 4.1, as propounded by co-defendants Steven J. Sherwin and Meridian Group Real Estate Management Inc.

In light of the fact that plaintiffs have already provided the information to other parties, the Court need not determine whether any privacy right exists in the insurance policy information. Even if it does, plaintiffs have waived that privacy right by providing the information in verified responses served in this action. Plaintiffs are each ordered to provide further verified responses to Form Interrogatory No. 4.1, as propounded by Coastal Building Maintenance.

2. Loss of earnings information. (Plaintiffs Sean Best and Maritza Best only.)

Loss of Earnings information Form Interrogatory Nos. 8.3-8.8 seek information about claimed loss of income or earning capacity. Specifically, they ask the responding party to state the last date before the incident that they worked for compensation (#8.3), state the party’s monthly income at the time of the incident, and how that amount was calculated (#8.4), state the date the responding party returned to work at each place of employment following the incident (#8.5), state the dates the responding party did not work and for which he or she lost income as a result of the incident (#8.6), state the total income lost to date as a result of the incident, and how the amount was calculated (#8.7), and state whether the responding party would lose income in the future as a result of the incident and, if so, the factual basis for the contention, an estimate of the amount, an estimate of how long they would be unable to work, and how the claim for future income is calculated (#8.8).

Plaintiffs Maritza Best and Sean Best responded, with respect to Nos. 8.3-8.8, “Unknown at this time. Discovery is continuing,” except that Sean Best responded to No. 8.4 with “Commission sales.” Supplemental responses were provided, also stating “Unknown at this time. Discovery is continuing,” as to each of these interrogatories. Defendant asserts that plaintiffs are making loss of income claims, and it entitled to a good faith effort by them to provide the information. Plaintiffs have personal knowledge of, e.g., the last date they worked for compensation before the “incident” or can find the information by inquiry to their employers. In opposition to the motion to compel, plaintiffs assert that the responses are full and complete in themselves, and demonstrate that plaintiffs have no facts to respond to the interrogatories. They further assert that defendant’s arguments for further responses “are exercises in sophistry,” in demanding information that, as far as plaintiffs know, does not exist.

The Court will grant the motion, and will order plaintiffs Sean Best and Maritza Best to provide further verified responses to Form Interrogatory Nos. 8.3-8.8. Their responses to No. 8.1 establish that each is attributing loss of income or earning capacity to the incident. Certainly, the “incident” in question in this action was not a single snapshot-in-time sort of event for which it is clear what might have occurred “before” the incident, or “following” the incident. Even so, it is clearly well within each plaintiff’s knowledge what their monthly income was at any relevant time (#8.4). While the nature of the injuries sustained by plaintiffs may make it difficult to ascertain whether any individual absence from work was, in fact, attributable to the mold contamination, thereby making it difficult to answer the questions regarding the last date “before” the incident that the plaintiff worked for compensation (#8.3), the date he/she returned to work “following” the incident (#8.5), and the dates each did not work and for which they lost income “as a result of” the incident (#8.6), the difficulties in responding can be explained in the verifies response—even if it means providing a verified response that plaintiffs believe that they lost income or earning capacity, but cannot yet articulate specific dates upon which they missed work as a result of the mold contamination.

If, in fact, plaintiffs truly do not currently possess any facts to support their claim of lost income or earning capacity, as their opposition to the motion appears to indicate, that fact should be set forth in a verified response, even if qualified by the statement that discovery is continuing, and the plaintiffs reserve the right to assert further facts in support of their lost income/earnings capacity claims at the time as such facts are ascertained.

A party is required to exercise the utmost good faith in responding to an interrogatory in the most full and complete manner possible, even if that requires explaining why it cannot at that time provide a detailed response. Plaintiffs did not do so, and the Court will grant the motion requiring them to provide further responses to the interrogatories in question.

3. Investigation information. (All plaintiffs.)

Nos. 12.2, 12.3, and 12.5 relate to investigation conducted with respect to the incident. No. 12.2 asks whether the party or anyone acting on their behalf interviewed any individual concerning the incident, and for each such individual to state their name, address, and telephone number, the date of the interview, and the name, address, and telephone number of the person who conducted the interview. No. 12.3 asks whether the party or anyone acting on their behalf obtained a written or recorded statement from any individual concerning the incident, and for each such statement to provide the name, address, and telephone number of the individual providing the statement, the individual who obtained the statement, and the individual who has the original or a copy of the statement, as well as the date the statement was obtained. No. 12.5 asks whether the responding party or anyone acting on their behalf knows of any diagram, reproduction, or model of any place or thing (except for items developed by expert witnesses covered by Code of Civil Procedure sections 2034.210-2034.310) concerning the incident and, for each such item, state the type of item, its subject matter, and the name, address, and telephone number of each person who has it.

Plaintiffs each responded to Nos. 12.2 and 12.3, by stating “Not to my knowledge,” and to No. 12.5 by stating “Not that I am aware of.” In supplemental responses, each plaintiff also stated “Not to my knowledge.” In meet and confer efforts, plaintiffs explained that they have no knowledge about whether they or anyone acting on their behalf has interviewed any individual concerning the incident, obtained any written or recorded statements concerning the incident, or knows of any diagram, reproduction, or model of any place or thing concerning the incident. Their counsel explained that if he, as their attorney, had interviewed anyone regarding the incident, that information would be protected by attorney-client privilege and work product doctrine. He declined to provide any further response to the requests.

Defendant seeks to compel further responses to these interrogatories, contending that plaintiffs had deliberately misconstrued the requests—which seek information regarding whether the party “or anyone acting on their behalf” had any responsive information—in a manner which unduly limited the response. Defendant contends that each had an obligation to ascertain whether any such information existed, and the information in possession of their attorney must be considered in responding to the interrogatories.

The court agrees. Even had the interrogatories not expressly sought information regarding whether they, or anyone acting on their behalf, had interviewed a witness, obtained a statement, or knew of a diagram, reproduction, or model of any place or thing, the obligation still exists to make reasonable inquiry to obtain the information that would enable the party to respond to the request, even—and especially—of the party’s own attorney. Considering that the attorney prepared the interrogatory responses, it was plaintiffs’ counsel, and not defense counsel, who was engaging in acts of sophistry in responding in the manner he did. If neither plaintiffs nor their attorney have conducted interviews, obtained statements, or knew of any diagram, reproduction, or model, a response of “no” may properly be made. If counsel personally conducted interviews, obtained statements, or knew of any diagram, reproduction, or model, or those actions were conducted at counsel’s behest and within his knowledge, the interrogatories must be answered “yes,” although disclosure of the identities of the interviewee (etc.) could potentially be objected to if a valid claim of attorney-client privilege or attorney work product protection could properly be made. In that manner, defendant at least knows of the existence of any such interview, statement, or diagram (etc.), and can challenge the objections before the court.

For these reasons, the Court will order each plaintiff to provide further verified responses to Form Interrogatory Nos. 12.2, 12.3, and 12.5.