Rafael Arroyo, Jr., v. Robinson Oil Corporation		CASE NO. 113CV251897
DATE: 8 August 2014	TIME: 9:00	LINE NUMBER: 10

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 408.882.6856 and the opposing party no later than 4:00 PM Thursday 7 August 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 8 August 2014, the motion of defendant Robinson Oil Company to compel further responses to special interrogatories and for an award of monetary sanctions was argued and submitted.  Plaintiff Rafael Arroyo, Jr. filed a formal opposition to the motion.

Statement of Facts  

This is a limited civil case, arising out of allegations that card readers on gas dispensing machines are located at a height that prevents use by individuals in wheelchairs.  Plaintiff Rafael Arroyo, Jr. (“Plaintiff” ) is a paraplegic who uses a wheelchair for mobility.  (See Complaint, ¶ 1.)  On or about 2 July 2013, Plaintiff went to the Rotten Robbie gas station located at 25 Washington Street, Santa Clara, California, which is owned an operated by defendant Robinson Oil Corporation (“Defendant”).  (See Complaint, ¶¶ 2, 4.)  Plaintiff alleges that he attempted to use the card readers on the fuel dispenser pumps at the gas station.  (See Complaint, ¶¶ 4-8.)   However, the controls and operating mechanisms for the card readers were located 59 inches above the ground, denying him full and equal access.  (See id.)

On 26 August 2013, Plaintiff filed the operative complaint, alleging causes of action for: (1) violation of the Unruh Civil Rights Act; (2) violation of the California Disabled Persons Act; and (3) negligence.

Discovery Dispute

On 4 April 2014, Defendant served Plaintiff with special interrogatories, set one (“SI”).  (See MacLeod Dec., p. 4:16-17, Ex. E.)  Plaintiff served Defendant with his initial responses to the SI on 9 May 2014.  (See MacLeod Dec., p. 4:17-18, Ex. F.)

Defendant’s counsel sent Plaintiff’s counsel a meet and confer letter on 15 May 2014, regarding Plaintiff’s responses to the SI.  (See MacLeod Dec., p. 4:18-19, Ex. G.)  In relevant part, Defendant’s counsel requested that Plaintiff provide a further response to SI Nos. 12-15, which asked Plaintiff to state: the number of establishments he visited from 30 June 2013 to 5 July 2013 that provided gas; the time and date of each visit; the identity and contact information for each business establishment that he visited; and the business establishments from which he actually purchased gasoline.  (See MacLeod Dec., Ex. G, p. 8:19-27, 9:1-28, 10:1-4.)  Defendant’s counsel asserted that Plaintiff’s objections to SI Nos. 12-15 lacked merit and his substantive responses were incomplete.

Plaintiff’s counsel replied to Defendant’s counsel’s meet and confer letter on 17 June 2014.  (See MacLeod Dec., p. 4:19-20, Ex. H.)  Plaintiff’s counsel advised that Plaintiff’s responses to SI Nos. 12-15, which indicated that he could not recall the exact number of businesses visited during the subject time frame, were accurate and Plaintiff’s memory remained unchanged.  (See MacLeod Dec., Ex. H, p. 1.)  In addition, Plaintiff’s counsel asserted that the SI are overbroad and irrelevant because they seek information about gas stations visited on dates other than 2 July 2013.  (Id.)  Plaintiff’s counsel stated that Plaintiff would supplemental his responses by “providing the relevant information for any gas station he recalls visiting on July 2, 2013.”  (See MacLeod Dec., Ex. H, p. 2.)

On 20 June 2014, Plaintiff served Defendant with further responses to the SI.  (See MacLeod Dec., p. 4:20-21, Ex. I.)

Defendant’s counsel sent Plaintiff’s counsel an email on 30 June 2014, regarding, in relevant part, Plaintiff’s further responses to SI Nos. 12-15.  (See MacLeod Dec., p. 4:25-27, Ex. J.)  Defendant’s counsel asserted that Plaintiff’s further responses are deficient because his objections lack merit and his substantive responses indicate that he only reviewed non-privileged documents.  (See MacLeod Dec., Ex. J.)  Defendant’s counsel further asserted that the information sought by the SI is relevant to establish whether Plaintiff has standing to bring his claim because the information goes to Plaintiff’s credibility and “motivation to find violations.”  (Id.)

On the same day, Plaintiff’s counsel responded via email, indicating that the parties had reached an impasse with respect to SI Nos. 12-15.  (Id.)  Plaintiff’s counsel indicated that Plaintiff did not have any of the information that was requested. (Id.)  Furthermore, Plaintiff’s counsel asserted that the information sought is irrelevant because Plaintiff’s motivation for bringing the instant litigation does not affect whether he has standing.  (Id.)  Defendant’s counsel replied via email the same day, and advised that Defendant would file a motion to compel further responses to the SI that remained at issue.  (Id.)

On 2 July 2014, Defendant filed the instant motion to compel further responses to SI Nos. 12-15, and for an award of monetary sanctions.  Plaintiff filed papers in opposition to the motion on 21 July 2014.  Defendant filed a reply on 1 August 2014.

Discussion

I.             Defendant’s Request for Judicial Notice

Defendant requests that the Court take judicial notice of an order on a motion to compel further responses that was issued in the case of Arroyo v. Robinson Oil Corporation, Merced County Superior Court case number CVM015355.

A court may take judicial notice of any court record that is relevant to a pending issue. (See Evid. Code, § 452, subd. (d); People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 [only relevant matters subject to judicial notice].)  Here, the subject order is not relevant to the pending matter because the fact that the Merced County Superior Court granted a motion to compel further responses in another case filed by Plaintiff has no bearing on this Court’s ruling on the instant motion.

Accordingly, Defendant’s request for judicial notice is DENIED.

II.            Motion to Compel Further Responses to SI

Defendant moves to compel further responses to SI Nos. 12-15, arguing that Plaintiff’s objections to the requests lack merit and his substantive responses are incomplete and/or evasive.  Plaintiff opposes the motion and argues that his objections have merit and his substantive responses are complete.

A.           Legal Standard

A party propounding interrogatories may move for an order compelling further responses if that party deems an answer is evasive or incomplete and/or an objection is without merit or too general. (See Code Civ. Proc., § 2030.300; Coy v. Super. Ct. (1962) 58 Cal.2d  210, 220-221.)  The burden is on the responding party to justify any objections or failure to fully answer. (See Coy v. Super. Ct., supra, 58 Cal.2d at p. 220-221.)

B.           Objections

As indicated above, SI Nos. 12-15 ask Plaintiff to state: the number of establishments he visited from 30 June 2013 to 5 July 2013 that provided gas; the time and date of each visit; the identity and contact information for each business establishment that he visited; and the business establishments from which he actually purchased gasoline.  (See MacLeod Dec., Ex. G, p. 8:19-27, 9:1-28, 10:1-4.)

In his responses to SI Nos. 12-15, Plaintiff asserted several objections.  Except as expressly indicated below, Plaintiff does not attempt to defend his objections, and therefore, the Court finds that the undefended objections are without merit.  (See Coy v. Super. Ct., supra, 58 Cal.2d at p. 220-221.)    

Plaintiff argues that SI Nos. 12-15 are irrelevant because his motivation for filing this case does not bear on whether he has standing to bring the action.  Plaintiff cites the case of Molski v. Price (“Molski”) (C.D. Cal. 2004) 224 F.R.D. 479, in support of his position.  In Molski, the plaintiff filed hundreds of cases alleging violations of the Americans with Disabilities Act and testified that he intended to return to the businesses to determine if the services that were offered were equally available to someone like him who could not walk.  (See Molski, supra, 224 F.R.D. at p. 481.)  The defendants argued that the plaintiff’s motivation to go to these businesses was to further his litigation which affected his standing to bring the lawsuit.  (See id. at p. 483.)  The court rejected that argument and held that the plaintiff’s motivation was irrelevant.  (See id. at p. 484.)  Plaintiff argues that the instant case is analogous to Molski and his motivation is irrelevant because he alleges in his complaint that Defendant violated the Americans with Disabilities Act, thereby violating the Unruh Civil Rights Act and the California Disabled Persons Act.

Conversely, Defendant argues that Plaintiff’s motivation is relevant to the issue of standing.  Defendant asserts that in order to prove that he has standing under California law, Plaintiff “must prove that he actually suffered ‘difficulty, discomfort, or embarrassment’ from the denial of access.”  (Sep. Stmt., p. 2:23-27 citing Mundy v. Pro-Thro Enters. (2011) 192 Cal.App.4th Supp. 1.)  Defendant explains that it believes Plaintiff is going to numerous gas stations in California specifically looking for violations at those establishments in order to bring lawsuits, based upon the fact that Plaintiff has filed approximately 200 cases “claiming that the card readers on gas dispensing machines violate the American’s [sic] with Disabilities Act and the California Building Code by preventing use by individuals in wheelchairs.”  (Mem. Ps & As., p. 1:21-25.)  Defendant contends that this shows that Plaintiff “is not actually looking to buy gas and suffering discomfort, difficulty or embarrassment from the denial of access, but instead is simply trolling the roads of California looking for violations which actually benefit him especially since he is unemployed.”  (Sep. Stmt., p. 3:1-4.)   Defendant states that “[i]f [Plaintiff] was actually happy or wanted to find violations because this is his sole source of income (as evidenced by his unemployment and the fact that he continually went to gas stations whether or not he really needed gas or whether it was difficult to get it) then this suggests lack of standing.”  (Sep. Stmt. 4:13-16.)

Defendant further argues that Molski is distinguishable from the instant case because it involved a lawsuit brought under the Americans with Disabilities Act and, although a violation of the Americans with Disabilities Act’s access standards can constitute a violation of the Unruh Civil Rights Act or the California Disabled Persons Act, Plaintiff’s claims are brought under the California statutes and not the Americans with Disabilities Act.

Discovery is allowed for any matters that are not privileged and that are relevant to the subject matter involved in the action and reasonably calculated to lead to the discovery of admissible evidence.  (See Code Civ. Proc., § 2017.010.)  The “relevance to the subject matter” and “reasonably calculated to lead to discovery of admissible evidence” standards are applied liberally with any doubt generally resolved in favor of discovery.  (See Colonial Life & Acc. Ins. Co. v. Super. Ct. (1982) 31 Cal.3d 785, 790.)  Moreover, for discovery purposes, information is “relevant to the subject matter” if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement thereof.  (See Gonzalez v. Super. Ct. (1995) 33 Cal.App.4th 1539, 1546.)

Under Civil Code section 55.56, subdivision (a), a plaintiff alleging a violation of either the Unruh Civil Rights Act, Civil Code section 51 et seq., or the California Disabled Persons Act, Civil Code sections 54 and 54.1, may recover statutory damages only if the violation denied him or her full and equal access to the place of public accommodation on a particular occasion.  (See Mundy v. Pro-Thro Enterprises (2011) 192 Cal. App. 4th Supp. 1, 5, fn. 4.)  A plaintiff is denied full and equal access either by personally encountering the violation or being deterred thereby from accessing the location.  (See Civ. Code, § 55.56, subd. (b).)  A violation personally encountered by a plaintiff may be sufficient to cause a denial of full and equal access if the plaintiff experienced difficulty, discomfort, or embarrassment because of the violation.  (See Civ. Code, § 55.56, subd. (c); see also Kohler v. Presidio Int’l, Inc. (C.D. Cal. Mar. 25, 2013) 2013 U.S. Dist. LEXIS 42816, 18-19.)

As a preliminary matter, the Court finds that Molski is inapplicable to the instant case because the court in that case was addressing whether the plaintiff had standing to seek injunctive relief under the Americans with Disabilities Act, which is different from standing to bring a claim under the Unruh Civil Rights Act or California Disabled Persons Act.  In order to have standing to seek injunctive relief, a plaintiff under the Americans with Disabilities Act “must establish that he has knowledge of architectural barriers at a place of public accommodation, and that he intends to return to the public accommodation.”  (Molski, supra, 224 F.R.D. at p. 483.)  Thus, “in order to establish standing to seek injunctive relief, [the plaintiff needed to] demonstrate that he [had] the intent to return to the service station.”  (Id.)  The court found that since the plaintiff testified that he had such an intent, his motivation to return to the service stations was irrelevant.  (Id. at pp. 483-484.)  In the instant case, Plaintiff does not need to establish that he intended to return to the business establishment in order to prove standing, but that he experienced difficulty, discomfort, or embarrassment because of the violation.  (See Civ. Code, § 55.56, subd. (c).)

Here, Defendant persuasively argues that the reasons why Plaintiff went to the gas station on 2 July 2013, are relevant as to whether Plaintiff actually suffered difficulty, discomfort, or embarrassment as a result of the card readers being located too high on the fuel dispensers.  As Defendant points out, if Plaintiff wants to find violations, obtains his only income from the lawsuits filed as a result of the violations, and/or seeks out business establishments with violations regardless of whether he needs gas or the card readers are placed above a certain height, then this bears upon the credibility of Plaintiff’s claims that he suffered difficulty, discomfort, or embarrassment.

The case of Ramirez v. Sam’s for Play Café (“Ramirez”) (N.D. Cal. Aug. 15, 2013) 2013 U.S. Dist. LEXIS 115833,  further supports the proposition that facts pertaining to whether a plaintiff frequents business establishments for the purpose of finding violations are relevant to a plaintiff’s claims of experiencing difficulty, discomfort, or embarrassment.  In Ramirez, the plaintiffs brought a claim under the Unruh Civil Rights Act and filed a motion for summary judgment.  (See id. at p. 12.) The plaintiffs objected to facts regarding other disability lawsuits they had filed on the grounds that the facts were not relevant for purposes of deciding the motion for summary judgment.  (See id. at p. 14.)  The defendants countered that the 69 additional lawsuits established a pattern of abusive or predatory litigation in which the plaintiffs intentionally maximize, or “stack” statutory damages by paying multiple visits to non-compliant businesses before they could reasonably expect the alleged barriers to be removed. (See Ramirez, supra, at p. 15.)  The defendants argued that the lawsuits were relevant to the plaintiffs’ credibility in relation to their reasons for repeatedly visiting the businesses at which they encountered barriers.  (See id. at pp. 15-16.)  The court found that the evidence of plaintiffs’ prior behavior was relevant to the issue of “stacked” damages for multiple visits and was admissible to challenge the credibility of their damages claims.   (See id.)  With respect to the plaintiffs’ allegations that they experienced difficulty, discomfort, or embarrassment, the court declined to make a credibility determination “based solely on the fact that [the plaintiffs] have filed numerous similar cases, absent evidence that such claims were fraudulent or otherwise made in bad faith.”  (See id. at pp. 24-25 [emphasis added].)  Thus, should Defendant develop evidence that Plaintiff’s numerous similar cases were fraudulent or otherwise made in bad faith, evidence of those lawsuits and Plaintiff’s reasons for frequenting the business establishments would be relevant to the issue of standing in the instant case.

Therefore, the Court finds that the information sought by SI Nos. 12-15, regarding the other business establishments Plaintiff visited around 2 July 2013, is relevant to the issue of standing.  Accordingly, Plaintiff’s relevancy objection is overruled.

               C.           Substantive Responses

As indicated above, SI Nos. 12-15 ask Plaintiff to state: the number of establishments that provided gas that he visited from 30 June 2013 to 5 July 2013; the time and date of each visit; the identity and contact information for each business establishment that he visited; and the business establishments from which he actually purchased gasoline.  (See MacLeod Dec., Ex. G, p. 8:19-27, 9:1-28, 10:1-4.)

In his initial responses to the requests, Plaintiff objected to the SI on several grounds, including relevancy.   Plaintiff provided a substantive response to SI No. 12, stating “[n]othwithstanding the objections and subject to them, Plaintiff does not recall the number of business establishments providing gas that he visited during June 30, 2013 to July 5, 2013.”  (See Sep. Stmt., p. 2:3-5.)  Plaintiff provided a substantive response to SI No. 13, stating “[n]othwithstanding the objections and subject to them, Plaintiff does not recall the date and time of his visits to business establishments providing gas during June 30, 2013 to July 5, 2013.”  (See Sep. Stmt., p. 7:16-18.)  Plaintiff provided a substantive response to SI No. 14, stating “[n]othwithstanding the objections and subject to them, Plaintiff does not recall the name and address of business establishments providing gas that he visited during June 30, 2013 to July 5, 2013.”  (See Sep. Stmt., p. 13:3-5.)   Plaintiff provided a substantive response to SI No. 15, stating “[n]othwithstanding the objections and subject to them, Plaintiff does not recall all the business establishments providing gas that he visited during June 30, 2013 to July 5, 2013.”  (See Sep. Stmt., p. 18:16-18.)

In his further responses to the requests, Plaintiff objected to the SI on several grounds, including relevancy.  Plaintiff also provided identical substantive responses, stating “[n]otwithstanding the objections or subject to them, Plaintiff does not recall the name/address of any other such establishment that he may have visited during June 30, 2013, to July 5, 2013. Both Plaintiff and his counsel have made a diligent search of all non-privileged records and are unable to locate any information regarding such visits.”  (See e.g, Sep Stmt., p. 2:11-14.)

Defendant persuasively argues that Plaintiff’s substantive responses to the SI are evasive and incomplete because they are made “subject to” his numerous objections.  An interrogatory response must be as complete and straightforward as the information available to the responding party admits.  (See Code Civ. Proc., § 2030.220, subd. (a).)  Plaintiff’s substantive responses are not straightforward, as it is unclear whether his response would be different if he did not respond “subject to” his meritless objections.

Defendant also convincingly argues that Plaintiff’s substantive responses are evasive and incomplete because Plaintiff states that he and his counsel have searched only non-privileged documents, as Plaintiff and his counsel are also obligated to search privileged documents for the responsive information.

Defendant is also correct that Plaintiff’s further responses to SI Nos. 12 and 13 are non-responsive.  In his further responses to SI Nos. 12 and 13, Plaintiff states that he does not recall the names or addresses of the business establishments that provided gas during the subject time frame, but those requests ask for the number of establishments that provided gas and the time and date of each visit.

In his opposition, Plaintiff argues that his substantive responses are complete because he cannot recall visiting any other establishments during the specified time period and “will not suddenly remember events—or discover documents related to those events—simply because a letter is written or a motion is filed.”  (Opp’n., p. 3:21-22.)  However, as articulated above, Plaintiff has indicated that he did not search documents in his possession, custody, or control which he deemed privileged.  Thus, it is possible that after a diligent search of those documents, Plaintiff will be able to uncover responsive information.

D.           Conclusion

Accordingly, as all of Plaintiff’s objections are overruled and his substantive responses are evasive and incomplete, further responses to SI Nos. 12-15 are warranted.

III.           Defendant’s Request for Sanctions             

Defendant requests an award of monetary sanctions in the amount of $2,890 against Plaintiff and his attorney under Code of Civil Procedure section 2030.300.

Code of Civil Procedure section 2030.300, subdivision (d) provides 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 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.

Here, Defendant was successful on its motion.  The Court finds that Plaintiff did not act with substantial justification and there are no other circumstances that make the imposition of the sanction unjust.

Defendant’s counsel declares that she spent 4 hours preparing the motion and anticipates spending another 3 hours preparing a reply and attending the hearing.  Defendant’s counsel further declares that her hourly rate is $400.  Defendant also seeks to recoup the $90 filing and court reporter fee.

The Court awards sanctions only for expenses actually incurred, not for anticipated expenses.  (See Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551.)  Thus, the 3 hours of anticipated expenses are not compensable. The Court finds that the time spent by Defendant’s counsel, her billing rate, and the filing fee are otherwise reasonable.

Accordingly, the Court finds that Defendant is entitled to a monetary sanction against Plaintiff and his counsel in the amount of $1,690.

Accordingly, Defendant’s request for monetary sanctions is GRANTED IN PART in the amount of $1,690.

Conclusion and Order

Defendant’s motion to compel further responses to SI Nos. 12-15 is GRANTED.  Accordingly, within 20 days of the date of the filing of this order, Plaintiff shall provide further verified, code-compliant responses to SI Nos. 12-15, without objection.

Defendant’s request for monetary sanctions is GRANTED IN PART in the amount of $1,690.  Accordingly, within 20 days of the date of the filing of this order, Plaintiff and his counsel shall pay $1,690 to Defendant’s counsel.

 

 

________________­­­____________ DATED:

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