Abdollahi v. P. F. Chang’s		CASE NO. 113CV252969
DATE: 10 July 2014	TIME: 9:00	LINE NUMBER: 15

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 9 July 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 10 July 2014, the motion of Plaintiff to compel Defendant PF Chang’s China Bistro to compel further responses to Plaintiff’s second set of special interrogatories and requests for production and for monetary sanctions was argued and submitted.

Defendants filed formal opposition to the motion and requested monetary sanctions.

Statement of Facts

This is a food poisoning case.  Plaintiff consumed scallops at Defendant’s restaurant in SunnyvaleCalifornia.  Several hours later he began to throw up.  He was taken to a KaiserHospital for observation.  He was then released.  Medical specials totals $65.00.

The operative second amended complaint (“SAC”) alleges that plaintiff Martin Abdollahi (“Plaintiff”) and his aunt, Arezzo Abdollahi, consumed a scallop dish at defendant P.F. Chang’s China Bistro, Inc. (“Defendant”) in Sunnyvale, California (“the Sunnyvale location”) on 16 June 2013. A few hours later, Plaintiff and his aunt suffered diarrhea and vomiting. Plaintiff was taken to Kaiser Santa Clara and the evaluating doctor opined that he likely suffered from food poisoning. Plaintiff alleges causes of action for: (1) strict liability; (2) negligence; and (3) breach of warranty.

Discovery Dispute

On 22 February 2014, Plaintiff propounded a second set of special interrogatories and requests for production which are the subject of the present motion.  The discovery addressed investigations, communications with and violations issued by the County Health Department and claims for food poisoning against the PF Chang’s restaurants in Palo Alto and San Jose.

In responses served on 31 March 2014, Defendant objected to every single discovery response.

On 18 April 2014, this Court heard a prior discovery motion which was files by Plaintiff.  A central theme to the resolution of this dispute was the belief of this Court that while prior claims of food-related illness are relevant to the instant case, the Court agreed with Defendant that the 5-year time period is overbroad. However, information about the claims of food-related illness made during June 2013 would be helpful in proving causation and is therefore relevant.  This Court further believed that Plaintiff persuasively argued that information as to whether the Sunnyvale location maintained a system for recording claims or communications regarding food-related illness could reasonably lead to admissible evidence such as whether other customers suffered from food-related illness around the same time as him.

In a meet and confer a letter dated 23 April 2014, a Wednesday, Plaintiff took exception with the assertion of objections, claiming that Defendant did not provide a privilege log to justify the objections based on privilege.

Plaintiff also took exception to the claim that various discovery requests implicated an “expert opinion.”  Defendant’s objection based on the ground that the RPD calls for an improper expert opinion and/or premature disclosure of expert identities and reports was found to be without merit. Defendant argued that the RPD requests information regarding food-related illness and medical diagnoses and symptoms which require disclosure of an expert opinion, identity, and/or report.  However, Defendant did not indicate that it has retained any expert in this matter such that his or her identity or opinion would be privileged. (See Schreiber v. Estate of Kiser (1999) 22 Cal. 4th 31, 37 [the identity and opinions of a party’s retained experts are generally privileged unless they are going to testify at trial].) In addition, Defendant did not identify any documents which contain expert opinions that would be protected under the work product doctrine. (See Hernandez v. Super. Ct. (2003) 112 Cal.App.4th 285, 297 [opinions of experts who have not been designated as trial witnesses are protected by the attorney work product rule].)  Moreover, the fact that the documents requested relate to “food-related illness” or other medical terms did not in and of itself demonstrate that an expert opinion is involved.

In a letter dated 6 May 2014, Defendant responded with its own meet and confer letter.  Defendant responded with references to the limitations mentioned by this Court during the 18 April 2014 hearing.

In a letter dated 8 May 2014, Plaintiff makes a sideways reference to complaints of other patrons who claim they became ill after eating at the restaurants owned by Defendant in this county.[1]  Apparently there were complaints made to the Health Department of the County of Santa Clara.  There is nothing to indicate what investigation, if any, was taken by the Health Department and what findings, if any, were made.

Analysis

Defendant filed the opposition papers on 30 June 2014.  In a supplemental declaration filed on 1 July 2014, Council admits that he neglected to include the July 4 holiday in determining when the opposing papers were due.[2]

In the interests of bringing this matter to a resolution, this Court will overlook the fact that the opposition papers were filed a day late.

This Court finds the relevant time period to be one year prior to the date of the claimed injury sustained by Plaintiff.  The relevant area in question will be the County of Santa Clara.

Therefore, the motion of Plaintiff to compel Defendant PF Chang’s China Bistro to compel further responses to Plaintiff’s second set of special interrogatories and requests for production is GRANTED as follows: Defendant is ordered to RESPOND to Plaintiff’s second set of special interrogatories and requests for production with those calendar and geographic limitations.  Any claim of privilege must be supported by a privilege log.  Said further responses are due within 20 calendar days of the date of the filing of this Order.

Sanctions

The mutual requests for monetary sanctions are DENIED as both sides acted with substantial justification.

 

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Order

Defendant is ordered to RESPOND to Plaintiff’s second set of special interrogatories and requests for production with those calendar and geographic limitations.  Any claim of privilege must be supported by a privilege log.  Said further responses are due within 20 calendar days of the date of the filing of this Order.

The mutual requests for monetary sanctions are DENIED as both sides acted with substantial justification.