2017-00211048-CU-PO

Mallory D. Bahler vs. Shaun Ranney

Nature of Proceeding: Motion to Compel 1. Admissions 2. Form 3. Production

Filed By: Berschler, Arnold I.

*** If oral argument is requested, the parties must at the time oral argument is requested notify the clerk and opposing party of the specific discovery requests that will be addressed at the hearing. The parties are also reminded that pursuant to local court rules, only limited oral argument is permitted on law and motion matters. ***

Plaintiff Mallory Bahler’s motion to compel further responses from Defendant Shaun Ranney is ruled upon as follows.

This is an action for personal injuries. Plaintiff alleges that she was boating with Defendant. Plaintiff was swimming when Defendant, operating the boat, struck Plaintiff with the propeller.

Plaintiff moves to compel further responses to Request for Admission (“RFAs”) nos. 18 -22 and Form Interrogatory No. 17.1. Plaintiff also moves to compel the actual production of documents which Defendant stated he would produce in his amended response to Request for Production (“RFP”), No. 3.

Request for Admissions:

Preliminarily, the Court disagrees with Defendant that Plaintiff failed to sufficiently meet and confer regarding further responses to the RFAs. Defendant served his initial response on October 20, 2017. In his response to RFAs, Defendant objected on various grounds, and responded that he had insufficient information to confirm or deny. The parties thereafter met and conferred. Plaintiff confirmed the parties’ agreement in writing: “Requests for admissions responses: Nos. 13, will be amended. 18-23, all such contention-based requests will be reviewed by you and Mr. Cotter, and either amended responses will be served or objections will be reasserted.” (Declaration of Arnold Berschler, Ex. 4.) Defendant served amended responses on December 8, 2017. In his amended responses, Defendant removed the portion where he claimed he had insufficient information to confirm or deny, and reasserted his objections that the request was vague and ambiguous, compound, overbroad, and called for premature disclosure of expert witness testimony.

The Court agrees with Plaintiff that further meet-and-confer efforts would have been futile because Defendant simply reasserted his prior objections and deleted any substantive response.

The Court will now turn to the merits of the dispute – the validity of the objection “calls for premature disclosure of expert witness testimony.” The objection is invalid.

A party to an action may not necessarily avoid responding to a request for admission on the ground that the request calls for expert opinion and the party does not know the answer. (See Chodos v. Superior Court (1963) 215 Cal.App.2d 318, 322-323 [30 Cal. Rptr. 303] [defendants claimed request for admission “call[ed] for an expert opinion as to engineering practice” and, “as lay property owners,” they could not express an opinion].) “[S]ince requests for admissions are not limited to matters within personal knowledge of the responding party, that party has a duty to make a reasonable investigation of the facts before answering items which do not fall within his personal knowledge. ( Lindgren v. Superior Court (1965) 237 Cal.App.2d 743, 746 [47 Cal. Rptr. 298]; Chodos v. Superior Court, 215 Cal.App.2d 318, 323 … .)” (Smith v. Circle P Ranch Co. (1978) 87 Cal.App.3d 267, 273 [150 Cal. Rptr. 828].)

(Bloxham v. Saldinger (2014) 228 Cal.App.4th 729, 751-752.)

Requests for admissions … are primarily aimed at setting at rest a triable issue so that it will not have to be tried. Thus, such requests, in a most definite manner, are aimed at expediting the trial. For this reason, the fact that the request is for the admission of a controversial matter, or one involving complex facts, or calls for an opinion, is of no moment. If the litigant is able to make the admission, the time for making it is during discovery procedures, and not at the trial.

(Cembrook v. Superior Court (1961) 56 Cal.2d 423, 429.)

The objection is OVERRULED. The motion to compel further responses to the RFAs is GRANTED.

Form Interrogatory 17.1:

The motion to compel further responses to Form Interrogatory 17.1 is DENIED for failure to meet and confer. The Court notes that although Defendant served responses to Plaintiff’s form interrogatories, he did not respond to Form Interrogatory 17.1. The parties met and conferred on November 22, 2017, and Defendant agreed to answer Form Interrogatory 17.1. (Declaration of Arnold Berschler, Ex. 4.) Defendant thereafter served his response to Form Interrogatory 17.1 on December 8, 2017.

Thus, the deadline to file the instant motion was January 22, 2018. On December 12th, Plaintiff sent an email to Defendant requesting deposition dates. With respect to Form Interrogatory 17.1, Plaintiff states:

. . . [T]he late answer to form interrogatory no. 17.1 compel Ms. Bahler into motion practice to compel complete non-evasive responses an answer that provides facts, not contentions. Plaintiff see[s] such discovery and substantially related to the above deposition discovery issues, affecting her position Please call my office ASAP to set a date and time for counsel to confer by telephone. I will be unavailable between December 15 and December 25, inclusive. If we have no appointment set by December 13 to meet and confer when I am available, I will consider such circumstance to be Defendant’s refusal to meet and confer. After all, time is important, here.

(Declaration of Kevin Heitz, Ex. C.) This generic and overly simplistic email was not intended to facilitate any meaningful discussion in an attempt to resolve the parties’ dispute or avoid the need for judicial intervention. Indeed, Plaintiff set an arbitrary deadline of merely one day for Defendant to respond to Plaintiff’s email to set an appointment to meet-and-confer, despite the fact that the deadline to file the motion to was January 22, 2018. Defendant contacted Plaintiff on December 14th and attempted to meet-and-confer with Plaintiff. (Declaration of Kevin Heitz.) Plaintiff’s counsel did not want to discuss the written discovery responses. (Id.) Plaintiff filed the instant motion on December 14, 2017, without satisfying the meet-and-confer requirements for Form Interrogatory 17.1.

As this Court has often explained, the meet-and-confer process is not intended to be some perfunctory formality but rather, it “requires…a serious effort at negotiation and informal resolution.” (Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1438.) Thus, motion to compel further responses to Form Interrogatory No. 17.1 is DENIED.

Request for Production No. 3:

In his amended response, Defendant agreed to produce all “non-privileged documents.” Defendant now indicates that he does not have in his possession documents responsive to this request. Because Defendant is unable to comply with the discovery request, he must so respond. (CCP §2031.230.) Thus, the motion is GRANTED. To the extent Defendant is withholding any documents based on privilege, work-product, he shall serve a privilege log.

Where the motion to compel is granted, Defendant shall serve further verified written responses by no later than February 8, 2018. Defendant shall also serve a privilege log (if necessary) by no later than February 8, 2018.

Both parties’ requests for sanctions are DENIED.