2017-00216777-CU-PA

Autumn Stiffler vs. Phillip Burris

Nature of Proceeding: Motion for Protective Order

Filed By: Barnes, Alan R.

Plaintiff Autumn Stiffler’s motion for protective order is denied.

In this personal injury action, Plaintiff moves for a protective order restricting Defendant Phillip Burris to propounding 35 special interrogatories. Defendant propounded 57 special interrogatories which Plaintiff argues are cut and paste interrogatories used in every automobile accident case.

Upon a motion for protective order regarding interrogatories, “[t]he court, for good cause shown, may make any order that justice requires to protect any party or other natural person or organization from unwarranted, annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions:

(1) That the set of interrogatories, or particular interrogatories in the set, need not be answered. (2) That, contrary to the representations made in a declaration submitted under Section 2030.050, the number of specially prepared interrogatories is unwarranted. (3) That the time specified in Section 2030.060 to respond to the set of interrogatories, or to particular interrogatories in the set, be extended. (4) That the response be made only on certain terms and conditions. (5) That the method of discovery be an oral deposition instead of interrogatories to a party…” (CCP §2030.090(b).) Further, “[i]f the responding party seeks a protective order on the ground that the number of specially prepared interrogatories is unwarranted, the propounding party shall have the burden of justifying the number of these interrogatories.” (CCP §2030.040(b).)

The Code of Civil Procedure generally limits litigants to 35 special interrogatories. (CCP § 2030.030(a)(1) (special interrogatories).) Section 2030.050 permits a litigant to serve a greater number of interrogatories is counsel provides a “Declaration for Additional Discovery” in substantially the form prescribed by statute. Section 2030.090 (b)(2) allows the responding party to seek a protective order on the ground “[t]hat, contrary to the representations made in a declaration submitted under Section

2030.050, the number of specially prepared interrogatories is unwarranted. (CCP §

2030.090(b)(2).) “If the responding party seeks a protective order on the ground that the number of specially prepared interrogatories is unwarranted, the propounding party shall have the burden of justifying the number of these interrogatories.” (CCP §

2030.040(b).) Of course, where the opposing party demonstrates that the number of interrogatories is warranted, the burden then shifts to the plaintiff to show “good cause” for seeking this protective order. The concept of “good cause” requires a showing of specific facts demonstrating “undue burden,” etc., and justifying the relief sought. (See

Goodman, supra, 253 Cal.App.2d at p. 819; Weil & Brown, Cal. Practice Guide, Civil Procedure Before Trial (The Rutter Group 2005), §8:1016.)

Factors to consider when determining whether a greater number of interrogatories are warranted include “(1) The complexity or the quantity of the existing and potential issues in the particular case. (2) The financial burden on a party entailed in conducting discovery by oral deposition. (3) The expedience of using this method of discovery to provide to the responding party the opportunity to conduct an inquiry, investigation, or search of files or records to supply the information sought.” (CCP § 2030.040.) The Civil Discovery Act (§ 2016.010 et seq.) authorizes a trial court to “make any order that justice requires to protect any party or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. (See, e.g., §§ 2030.090, subd. (b) [interrogatories].) Of course, “‘Oppression’ means the ultimate effect of the burden of responding to the discovery is ‘incommensurate with the result sought.'” People v. Sarpas (2014) 225 Cal. App. 4th 1539, 1552 (citing West Pico Fumiture Co. v. Superior Court (1961) 56 Cal. 2d 407, 417). In considering whether the discovery is unduly burdensome or expensive, the court takes into account “the needs of the case, the amount in controversy, and the importance of the issues at stake in the litigation.” Id. at 1552 (citing Code Civ. Proc. § 2019.030, subd. (a)(2)).

Here, Defendant predictably argues that more than 35 special interrogatories are warranted. Equally predictably, Plaintiff argues to the contrary. Plaintiff’s argument that more than 35 are not warranted appears to focus on the fact that the special interrogatories included 3 interrogatories dealing with a child seat in Plaintiff’s vehicle even though Plaintiff was walking at the time she was struck and also Defendant’s counsel’s apparent statement in the meet and confer process that these same set of interrogatories are served in all cases like this one. Plaintiff reasons that Defendant’s counsel’s declaration that the case requires more than 35 interrogatories is therefore false. Plaintiff argues that Defendant’s counsel has admitted that these same interrogatories are served in all cases, and this necessarily means that Defendant’s counsel could not have personally reviewed the instant set of interrogatories and determined that they were necessary. But as Defendant points out in opposition, the three interrogatories regarding child seat safety were immediately withdrawn when Plaintiff’s counsel brought the matter to Defendant’s counsel’s attention. The meet and confer process is a necessary prerequisite to seeking judicial enforcement of a litigant’s claim. (See Young v. Rosenthal (1989) 212 Cal.App.3d 96, 117 [“The very purpose of an order to meet and confer is to obtain a negotiated resolution of a discovery dispute without having to expend judicial time to sort out which party is correct and what relief should be granted. What the court seeks is an agreement by the parties which resolves the dispute”].)

With the three withdrawn interrogatories, 54 remain. Defendant argues that the complaint raises numerous issues related to Defendant’s alleged negligence, Plaintiff’s potential contributory negligence, economic damages (past and future medicals), past and future wage loss, existence of potential medical liens, and non-economic damages. Applying the standards articulated herein, the Court concludes that 54 interrogatories, 19 over the 35 limit, are warranted under the circumstances of the case. As a result, the Court finds that a protective order is not warranted based on the fact that Defendants served more than 35 interrogatories.

Plaintiff also argues that the interrogatories inappropriately contain prefaces in

violation of CCP § 2030.060(d). That section provides that “[e]ach interrogatory shall be full and complete in and of itself. No preface or instruction shall be included with a set of interrogatories unless it has been approved under Chapter 17 (commencing with Section 2033.710).” CCP § 2033.060(e) provides that

“[a]ny term specially defined in a set of interrogatories shall be typed with all letters capitalized wherever that term appears.” (CCP § 2033.060(e).) Defendant admits that the interrogatories contain two paragraphs of prefaces related to Medicare/Medicaid which should not have been included, but argues that their inclusion does not warrant a protective order as they “are an artifact of times past when many practitioners were ignorant of the severe consequences attending failure to obey Medicare and Medicaid/Medi-Cal reporting requirements, causing needless law and motion proceedings to compel responses to interrogatories pertaining to Medicare and Medi-Cal.” (Oppo. 6:8-11.) Defendant also points out that his definitions were identical to the definitions used in the Judicially Council approved definitions for form interrogatories. Defendant indicates that while he bolded the definitions, he failed to capitalize the first letter of the definition. The Court finds that any minor deviation from the CCP with respect to the inclusion of prefaces or the failure to capitalize definitions does not warrant a protective order relieving Plaintiff of the obligation to respond. Obtaining a protective order requires require a showing of good cause to protect from annoyance, embarrassment, or oppression, or undue burden and expense. (Code Civ. Proc, §§ 2030.090, subd. (b), 2031.060, subd. (b).) There is no such showing with respect to any unnecessary inclusion of prefaces/definitions.

The motion is denied.