Case Name: Sherry Seitzinger aka Sherry Ross v. Richard M. Ladden

Case No.: 17CV313092

Motion to Compel Verified Responses or in the Alternative to Compel Further Responses to Form and Special Interrogatories and Requests for Admission; for an Order that all Objections have been Waived and that Requests for Admission be Deemed Admitted and for Sanctions

Factual and Procedural Background

On March 18, 2014, defendant Richard M. Ladden (“Ladden”) filed a lawsuit against plaintiff Sherry Seitzinger aka Sherry Ross (“Seitzinger”) asserting a claim for malicious prosecution (“Underlying Action”). (Complaint, ¶3.)

Ladden purportedly served Seitzinger with summons and complaint in the Underlying Action on April 23, 2014 by substitute service on an individual named Dan Martin, 55 years old with gray hair, 5’8” and 170 pounds, the occupant at 7392 Crews Road in Gilroy. (Complaint, ¶4.) However, service of process did not occur as described. (Complaint, ¶5.) The address above is the home of Seitzinger’s son, Daniel Seitzinger, but he was not at home at the time of purported service and nobody was present to receive copies of the summons and complaint. (Id.) At the time of purported service, Daniel Seitzinger was 6’0”, 250 pounds, 47 years old with dark blond hair which does not match the process server’s description. (Complaint, ¶6.) Seitzinger never received copies of the summons and complaint by personal delivery or substitute service. (Complaint, ¶10.)

On July 21, 2014, default judgment was entered in the Underlying Action. (Complaint, ¶11.) Seitzinger first learned of the Underlying Action when default judgment had been entered against her. (Complaint, ¶13.)

On July 14, 2017, plaintiff Seitzinger filed the instant action against defendant Ladden asserting causes of action for:

(1) Independent Action in Equity to Set Aside and Vacate Judgment for Lack of Personal Jurisdiction
(2) Independent Action in Equity to Set Aside and Vacate Judgment for Extrinsic Fraud or Mistake
(3) Independent Action in Equity for Violations of the California and Federal Constitutions

On November 6, 2017, defendant Ladden filed his answer to plaintiff Seitzinger’s complaint.

Discovery Dispute

On November 3, 2017, Ladden served Seitzinger with form interrogatories (“FI”), special interrogatories (“SI”), requests for admission (“RFA”), and requests for production of documents (“RPD”).

Responses to these discovery requests were timely served on December 5, 2017. The responses contained both responses and objections and were signed by Seitzinger’s attorney. None of the discovery responses contained a verification by Seitzinger.

On December 11, 2017, Ladden sent Seitzinger’s counsel a meet and confer letter detailing numerous deficiencies.

On December 22, 2017, Ladden met and conferred with Seitzinger’s counsel by telephone. On the same date, Ladden sent a second meet and confer letter to Seitzinger’s counsel emphasizing the lack of verification to any of the discovery responses.

On December 26, 2017, Ladden received photocopied verifications to the discovery. Each of the verifications was back-dated to December 6, 2017 and failed to reference a case number or court.

On January 2, 2018, Ladden sent a third meet and confer letter to Seiztinger’s counsel challenging the validity of the verifications and requesting further responses without objection.

On January 8, 2018, Seitzinger’s counsel telephoned Ladden to meet and confer.

On January 22, 2018, Seitzinger’s counsel sent a meet and confer letter responding to Ladden’s earlier correspondence.

On January 28, 2018, Ladden responded to Seitzinger’s counsel’s January 22, 2018 letter.

On February 8, 2018, Ladden filed the motion now before the court, a motion to compel verified responses or in the alternative to compel further responses to form and special interrogatories and requests for admission; for an order that all objections have been waived and that requests for admission be deemed admitted and for sanctions.

II. Ladden’s motion to compel verified responses, without objections, to FI and SI and to deem RFA admitted is DENIED.

“If a party to whom interrogatories are directed fails to serve a timely response, … The party to whom the interrogatories are directed waives … any objection to the interrogatories…. The party propounding the interrogatories may move for an order compelling response to the interrogatories.” (Code Civ. Proc., §2030.290, subd. (a) – (b).)

“If a party to whom requests for admission are directed fails to serve a timely response, … The party to whom the requests for admission are directed waives any objection to the requests…. The requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction.” (Code Civ. Proc., §2033.280, subd. (a) – (b).) The moving party need only show that the discovery was propounded and a timely response was not served. (Demyer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393, 395, disapproved of on another point by Wilcox v. Birtwhistle (1999) 21 Cal.4th 973.)

Ladden initially moves for an order compelling Seitzinger’s verified response to FI and SI and for an order that the genuineness of any documents and the truth of any matters specified in the RFA be deemed admitted on the basis that although Seitzinger provided a timely response, Seitzinger did not provide timely or valid verifications to those discovery responses. Ladden relies on Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636 for the proposition that, “Unsworn responses are tantamount to no responses at all.” Ladden contends the subsequently provided verifications are invalid because they do not refer to this case, were back-dated, and were sent alone unaccompanied by the actual responses.

The court is not persuaded by Ladden’s arguments. The court agrees with Seitzinger’s counsel that the failure to verify a hybrid response (containing substantive response and objections) does not result in a waiver of objections. (See Food 4 Less Supermarkets, Inc. v. Superior Court (1995) 40 Cal.App.4th 651, 657 – 658—“Defendants did serve their responses within the statutory time period. The lack of verification did not render their objections untimely. The trial court therefore erred in finding defendants had waived their objections and in imposing monetary sanctions upon defendants.”)

Accordingly, Ladden’s motion to compel verified response to FI and SI and for the genuineness of any documents and the truth of any matters specified in the RFA be deemed admitted is DENIED.

III. Ladden’s motion to compel further responses is GRANTED, in part.

A. Interrogatories.

Code of Civil Procedure section 2030.300, subdivision (a) states, in relevant part: “On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (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.(3) An objection to an interrogatory is without merit or too general.”

In the alternative, Ladden moves to compel a further response from Seitzinger to SI, numbers 1 – 6. Ladden’s SI, number one, asks Seitzinger to, “IDENTIFY all lawsuits for the last 10 years in which you have been a plaintiff. (IDENTIFY in this interrogatory means court, case name, case number, date of filing and disposition.)” In response, Seitzinger objected, in part, on the basis that the request “is not reasonably calculated to lead to the discovery of admissible evidence.” Ladden’s FI, numbers 11.1 and 11.2 are similar.

The party objecting to a discovery request bears the burden of explaining and justifying the objections. (See Coy v. Super. Ct. (1962) 58 Cal.2d 210, 220-221.) In opposition, Seitzinger stands by her objection by basically restating her position that the requests are irrelevant and Ladden is pursuing a “fishing expedition.” Seitzinger has not met her burden of explaining or justifying her objection. The scope of permissible discovery is broad. Admissibility is not the test.

Ladden’s SI, number 2, asks Seitzinger to “State all the facts that support the allegation of your cross-complaint in Santa Clara Superior Court case 109CV1951044 that the [defendant] engaged in unethical, disloyal and outrageous conduct ‘that was designed to interfere with [plaintiff’s] existing contractual relationships, business expectancies and prospective economic advantages.” In response, Seitzinger objected, in part, on the basis that the request “is not reasonably calculated to lead to the discovery of admissible evidence.”

Ladden contends the request is relevant because a plaintiff seeking to set aside default based upon extrinsic mistake, as Seitzinger seeks to do here in her second cause of action, must demonstrate a meritorious case.

We note that a trial court retains discretion to vacate a default on equitable grounds, even if statutory relief is unavailable. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981, 35 Cal.Rptr.2d 669, 884 P.2d 126.) “One ground for equitable relief is extrinsic mistake—a term broadly applied when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits.” (Ibid.) But for a party to qualify for such equitable relief on this basis, courts have developed a three-part test: first, the defaulted party must demonstrate it has a meritorious case; second, it must articulate a satisfactory excuse for not presenting a defense to the original action; and third, the moving party must demonstrate diligence in seeking to set aside the default once it was discovered. (Cruz v. Fagor America, Inc., supra, 146 Cal.App.4th at p. 503, 52 Cal.Rptr.3d 862.)

(Lee v. Ji Hae An (2008) 168 Cal.App.4th 558, 566.)

In opposition, Seitzinger contends she need not demonstrate a meritorious case in order to set aside default based upon lack of personal jurisdiction. “Where a person has been deprived of property in a manner contrary to the most basic tenets of due process, ‘it is no answer to say that in his particular case due process of law would have led to the same result because he had no adequate defense upon the merits.’ [Citation.]” (Peralta v. Heights Medical Center, Inc. (1988) 485 U.S. 80, 86–87.) Seitzinger’s argument would have merit if the only basis for her action to set aside the default was lack of personal jurisdiction. However, Seitzinger’s complaint includes a second cause of action which seeks to set aside default based upon extrinsic fraud or mistake. As such, Ladden’s SI, number 2, as well as numbers 3 – 4, is relevant.

Ladden’s SI, number 5, ask Seitzinger to “State all facts that support your assertion … that mail was stolen from the vicinity of the area of your property, 7390 Crew Road, Gilroy, CA 95020, between March 1, 2014 and July 31, 2014.” In response, Seitzinger states, “Responding party made no such contention pertaining to the stated address.” Ladden contends Seitzinger’s response is evasive in that it is demonstrably false, but admits that the address is incorrectly identified in the interrogatory. To the extent the address is incorrect, Seitzinger’s response does not appear to be false.

Ladden’s SI, number 6, asks Seitzinger to “State all facts that support the assertion made in your Motion to Vacate Default and Default Judgment [in the Underlying Action] that the defendant colluded with the registered process server to falsify the return of service of the substituted service on your son-tenant-employee, Dan Martin Seitzinger.” In response, Seitzinger states, “Responding party made no such contention.” Ladden contends Seitzinger’s response is evasive in that it is demonstrably false. Ladden asks this court to take judicial notice of Seitzinger’s motion to vacate default in the Underlying Action. At page 8, lines 8 – 12, Seitzinger argued, in relevant part, “it is evident that [Ladden] instructed the process server to falsely use the name Dan Martin instead of Daniel’s actual surname, Seitzinger, which is the name Daniel uses at home and in all other circumstances.” The interrogatory posed by Ladden does not substantially mirror the argument/ assertion/ contention made in the motion to vacate. Accordingly, the court does not find Seitzinger’s response to be false or evasive.

With regard to FI, number 17.1, Ladden contends the response is incomplete. Form interrogatory 17.1 asks Seitzinger, “Is your response to each [RFA] served with these interrogatories an unqualified admission? If not, for each response that is not an unqualified admission: (a) state the number of the request; (b) state all facts upon which you base your response; (c) state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of those facts; and (d) identify all DOCUMENTS and other tangible things that support your response and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or thing.” Ladden’s RFA, number 7, asks Seitzinger to “Admit that Dan Martin [Seitzinger] is your son, your tenant at 7390 Crew Road, Gilroy, CA 95020, and was your employee at the University of Silicon Valley Law School at all times that it existed.” Seitzinger responded to RFA, number 7, by stating, “Admit that Dan Martin is my son and was an employee during the referenced times. Deny all else.” Seitzinger’s response to FI, number 17.1, as it relates to RFA, number 7, states, “the statement is not true, there are no witnesses to this incorrect statement, there are no documents pertaining to this incorrect statement.”

Ladden contends such a response is boilerplate and incomplete. With regard to RFA, number 7, Seitzinger essentially denies that Dan Martin is a tenant at 7390 Crew Road, Gilroy, CA 95020. FI, number 17.1, as it relates to RFA, number 7, asks Seitzinger what facts support her denial. Seitzinger’s response is that it is not true that Dan Martin is a tenant at 7390 Crew Road, Gilroy, CA 95020. By Ladden’s own admission, the address is incorrect, which supports Seitzinger’s assertion that the statement is untrue. Nevertheless, the court finds Seitzinger’s response to be evasive and incomplete. Seitzinger is asked to provide facts to support her denial. Asserting the statement is untrue is not sufficient. A proper non-evasive response might be, “Dan Martin resides at 7392 Crew Road, Gilroy, CA.”

Accordingly, Ladden’s motion to compel Seitzinger’s further response to SI, numbers 1 – 4 and FI, numbers 11.1 – 11.2 and 17.1, is GRANTED. Seitzinger shall provide a further verified response in compliance with the Code of Civil Procedure to SI, numbers 1 – 4, and FI, numbers 11.1 – 11.2 and 17.1, within 15 days from notice of entry of this order.

B. RFA.

“On receipt of a response to requests for admissions, the party requesting admissions may move for an order compelling a further response if that party deems that either or both of the following apply: (1) An answer to a particular request is evasive or incomplete. (2) An objection to a particular request is without merit or too general.” (Code Civ. Proc., §2033.290, subd. (a).)

Ladden seeks to compel Seitzinger’s further response to RFA, numbers 1 – 4 and 6 – 8 on the basis that they are evasive, i.e., demonstrably false. Yet, Ladden concedes the address at issue in those RFAs is incorrect. Ladden contends Seitzinger understood the address to be incorrect, but nevertheless responded to RFA, number 5, which also identifies the incorrect address. By doing so, Ladden apparently contends Seitzinger waived any defect with the address. However, as Seitzinger points out in opposition, RFA, number 5, asks Seitzinger to, “Admit that at no time prior to July 31, 2014, did you file a change of address form with the U.S. Post Office to have mail forwarded to you at your sister’s address in Hayward rather than 7390 Crew Road, Gilroy, CA 95020.” Seitzinger contends her response to RFA, number 5, is accurate regardless of the incorrect address because she never filed a change of address form. However, since the accuracy of the address is important in responding to RFA, numbers 1 – 4 and 6 – 8, Seitzinger contends she properly denied them. The court does not find Seitzinger’s response to RFA, numbers 1 – 4 and 6 – 8, to be evasive or incomplete.

As noted above, the party objecting to a discovery request bears the burden of explaining and justifying the objections. (See Coy v. Super. Ct. (1962) 58 Cal.2d 210, 220-221.) Ladden also seeks to compel a further response to RFA, numbers 9 – 10. Seitzinger objected to those RFAs. In her opposition, Seitzinger argues only that the RFAs include an incorrect address. RFA, numbers 9 – 10, do not reference any address. Seitzinger has not met her burden of explaining or justifying her objection to RFA, numbers 9 – 10.

In his RFA, Ladden also asked Seitzinger to “Admit that the original of each of the following documents, a copy of which is attached as Exhibit A, is genuine.” Ladden’s Exhibit A identified the following three documents:

D.1. The Intentional Tort Cause of Action of plaintiff’s cross-complaint filed in Santa Clara Superior Court case 109CV151044.
D.2. The General Negligence Cause of Action of plaintiff’s cross-complaint filed in Santa Clara Superior Court case 109CV151044.
D.3. The plaintiff’s responses under oath to the defendant’s Special Interrogatories 2 and 3 in Santa Clara Superior Court case 109CV151044.

Seitzinger did not respond to Ladden’s request to admit the genuineness of these documents. In a meet and confer letter, Seitzinger’s counsel explained, “you failed to number your requests for admission of the genuineness of documents. As a result, the Responding Party did not see this request. Plaintiff will provide responses to a request for admission of genuineness of documents once a properly numbered request is served.” In response, Ladden’s counsel “emailed copies of the three documents to plaintiff’s attorney, placing the designation D.1, D.2 or D.3 on the documents as specified in Exhibit A of the [RFA].”

“Each request for admission in a set shall be separately set forth and identified by letter or number.” (Code Civ. Proc., §2033.060, subd. (c).) “No request for admission shall contain subparts, or a compound, conjunctive, or disjunctive request unless it has been approved under Chapter 17 (commencing with Section 2033.710).” (Code Civ. Proc., §2033.060, subd. (f).) “A party requesting an admission of the genuineness of any documents shall attach copies of those documents to the requests, and shall make the original of those documents available for inspection on demand by the party to whom the requests for admission are directed.” (Code Civ. Proc., §2033.060, subd. (g).)

Ladden’s RFA seeking an admission of the genuineness of the documents was improperly formatted. Ladden should have included RFA, numbers 11 – 13. Each of those RFAs should have asked for Seitzinger to admit the genuineness of a single document. In view of the defective request, Seitzinger was not obligated to respond.

Accordingly, Ladden’s motion to compel Seitzinger’s further response to RFA, numbers 9 – 10, is GRANTED. Seitzinger shall provide a further verified response in compliance with the Code of Civil Procedure to RFA, numbers 9 – 10, within 15 days from notice of entry of this order.

IV. Ladden’s request for sanctions is DENIED.

Ladden did not prevail on his motion to compel responses and to deem RFA admitted. Consequently, Ladden is not entitled to sanctions pursuant to Code of Civil Procedure section 2030.290, subdivision (c) or section 2033.280, subdivision (c).

Ladden also requests sanctions pursuant to Code of Civil Procedure sections 2030.300, subdivision (d) and 2033.290, subdivision (d) which authorizes an award of monetary sanctions “against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories [or request for admission], 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.” Since Ladden did not prevail on the entirety of his motion, the court finds imposition of sanctions would be unjust under the circumstances.

Ladden’s reliance on Code of Civil Procedure section 2023.010 is misplaced as that section defines acts constituting misuses of the discovery process, and does not itself set forth any provisions regarding the issuance of a monetary sanction.

Accordingly, Ladden’s request for sanctions is DENIED.