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Company information about defendant Romano’s Towing.

Case Number: BC643955 Hearing Date: March 21, 2018 Dept: 46

Case Number: BC643955
MARIA NAVARRETTE VS ROMANOS TOWING INC ET AL

Filing Date: 12/15/2016
Case Type: Motor Vehicle – PI/PD/WD

03/21/2018
MOTION – COMPEL FURTHER RESPONSES

TENTATIVE RULING

MOTION #1: Maria Navarrette Motion to Compel Further Responses to Form Interrogatories, Set No. One, served on 9/12/2017 is moot because defendant Roman provided a response to the interrogatory on 1/16/2018. Defendant Roman is ordered to pay monetary sanctions in the sum of $685 to Plaintiff within 30 days pursuant to CCP 2030.300(d). See discussion re sanctions.

MOTION #2: Defendant Romano’s Towing Motion to Compel Further Responses to Form Interrogatories, Set No. One, served on 6/22/2017, is denied. Interrogatories 2.6, 8.3 and 8.8 are moot in light of Plaintiff’s stipulation to waive all loss of earnings claims and damages. Regarding interrogatory 2.13, the motion is denied as the evidence submitted in opposition convinces the court that any order to provide further information is a futile act as Plaintiff has no additional information to provide. Sanctions are denied as the parties should have been able to resolve this issue after a reasonable meet and confer.

MOTION #3: Defendant Romano’s Towing Motion to Compel Further Responses to Special Interrogatories, Set No. One, served on 6/22/2017, is partially granted and partially denied pursuant to CCP §2030.300. The motion is granted as to Special Interrogatories 4, 5, and 11; however, the motion is otherwise denied. Plaintiff is ordered to give full and complete verified responses to Special Interrogatories 4, 5, and 11, without objection, within 15 days. See discussion below. As the motion was only partially successful, sanctions are partially granted in the amount of $480 to be paid by Plaintiff to Romano’s Towing within 30 days pursuant to CCP 2030.300(d).

MOTION #4: Defendant Romano’s Towing Motion to Compel Further Responses to Requests for Production of Documents, Set No. One, served on 6/22/2017, is granted. Plaintiff is ordered to serve full and complete responses to Requests for Production within 20 days including production of all responsive documents without objection and the service of a declaration of compliance. Sanctions, however, are denied. See discussion below.

DISCUSSION

Sanctions Re: Motion No. 1

The interrogatory in question asked for prior felony convictions on the part of Defendant Roman. (Plaintiff’s Separate Statement p. 2). It appears from the papers that the motion is moot. D Roman provided a response to the interrogatory at issue here on 1/16/18, the day before an ex parte appearance by both parties to advance the hearing dates on the instant motions. Plaintiff maintains that the motion was necessary to obtain the response, and persists in seeking sanctions. Defendant Roman maintains that this motion was an improper attempt to gain negotiating leverage regarding the other three motions currently on calendar.

Defendant Roman’s argument is not on solid footing. In the first place, Roman is apparently a percipient witness to the crash which is the subject of this suit. Plaintiff is entitled to this information for the sole purpose, as expressed in the motion, to impeach Roman’s credibility as a witness with a felony conviction. Roman’s objection that he was not convicted of a crime of moral turpitude may prevent admission at trial, but Plaintiff has no way of knowing this until she asks the question and Roman answers. Roman also objects that Plaintiff can testify to contradict him if she wishes, but this obviously begs the issue.

Roman’s proffered objections are relevance and privacy. (Id. p. 2). Both are completely baseless. Relevance has already been discussed in the previous paragraph. As to privacy, Roman undercuts his own argument when he argues, in the same sentence, that the motion is unnecessary because his conviction history is a matter of public record. (Roman’s Separate Statement p. 7:5-8) (“these are all moot points because although Defendant Roman objected on the basis of privacy, and that the information…is a matter of public record”).

Roman had no good grounds for refusing to answer the interrogatory, and only answered when a motion to compel became more imminent. The motion was necessary to procure the answer, and sanctions are appropriate here.

Sanctions are awarded in the amount of $685.00. Sanctions are calculated as 1 hour preparing the motion + .5 hours preparing reply + 1 hour appearing at hearing @ $250/hour in addition to the $60 filing fee.

Discussion Regarding Motion #2

Defendant’s Form Rog Nos. 2.6, 8.3, and 8.8: These interrogatories ask for various details about Plaintiff’s current and past employment. (Plaintiff’s Separate Statement p. 2, 5, 7). The response, apart from objections states that Plaintiff is currently unemployed, and her past employment consisted of a few months assisting a “Marina Navarrette” with light cleaning duties in Phoenix, AZ. (Id.). The stated purpose of the interrogatory is to obtain information on Plaintiff’s damages related to her loss of earnings claim. Plaintiff argues that she never made a loss of earnings claim, and that she stipulated to waive any future loss of earnings claim at her deposition. But the Complaint clearly seeks loss of earnings (Prayer ¶ C), and Plaintiff’s deposition was not until 11/7/17 (Declaration of Mani S. Navab, Exhibit 1), the day after this motion was filed. On the representation of Plaintiff that she has stipulated to waive all loss of earnings damages, this interrogatory is MOOT. The parties should have been able to resolve these issues without resort to law and motion.

D’s Form Rog No. 2.13: This interrogatory asks if P or any person involved in the incident used alcohol or any drug of any kind, and seeks a description of the drug, how much was taken, when, where, who was there, and the information of any health care provider and the health condition for which the drug was given. (Plaintiff’s Separate Statement p. 4). Plaintiff responded that she had taken blood pressure medication, but that she could provide none of the additional information sought. Defendant Towing apparently does not believe her. Be that as it may, Plaintiff has sworn under penalty of perjury that she has no further information to give, and an order from this court requiring her to produce information she does not have would be a futile act.

Sanctions: Sanctions are DECLINED. Most of these issues should have been resolved by the parties during the meet and confer process. No facts appear which make the failure of resolution clearly the fault of one party or another. It would therefore be unreasonable to award sanctions.

Discussion Regarding Motion #3

Motion is granted as to Special Rog Nos. 4-5: These interrogatories ask for the identities of Plaintiff’s health care providers for the last ten years, and Plaintiff’s pharmacists for the last 5; Plaintiff’s responses consisted of objections, a unilateral limitation on the time period and subject matter, and the statement that within the limitation, Plaintiff knows nothing about providers and had no pharmacists. (Plaintiff’s Separate Statement p. 2-5). At the outset, Plaintiff is not entitled to unilaterally limit or alter interrogatories put by the defense. Parties must answer or object to the questions they are asked, not the questions they think they should have been asked, or the questions they would prefer to answer. Therefore, Plaintiff’s answers are inadequate; whether further answers must be provided depends on the strength of the objections.

Plaintiff’s objection on privilege grounds has been abandoned at this stage; Plaintiff rests on her privacy and overbreadth objections. Overbreadth objections succeed only where the question is totally unintelligible, or where requiring an answer would be oppressive. Weil & Brown, et al., Cal. Prac. Guide Civ. Proc. Before Trial (The Rutter Group 2017) ¶ 8:1084 “[T]o support an objection of oppression there must be some showing either of an intent to create an unreasonable burden or that the ultimate effect of the burden is incommensurate with the result sought.” West Pico Furniture Co. of Los Angeles v. Superior Court In and For Los Angeles County (1961) 56 C.2d 407, 417. The requests at issue are intelligible (see generally Plaintiff’s Separate Statement), and Plaintiff has provided no evidence to show that requiring an answer would be oppressive. Therefore, that objection is overruled.

The Privacy objection is also overruled. ““In Hill, we established a framework for evaluating potential invasions of privacy. The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations.” Williams v. Superior Court (2017) 3 Cal.5th 531, 552 (internal quotations and citations omitted).

Plaintiff obviously has a privacy interest in her medical care. But the bare name, address, and phone number of her treating physicians and pharmacists reside on the periphery of that sphere of interest. And by filing a personal injury suit, Plaintiff has placed her physical and medical condition in issue, substantially lowering any expectation of privacy she may have. John B. v. Superior Court (2006) 38 C.4th 1177, 1199 (quoting Heller v. Norcal Mutual Ins. Co. (1994) 8 C.4th 30, 43-44).

Motion is granted as to Special Rog No. 11: This interrogatory asks for the name, address, and phone number of any person lay or medical who has knowledge of the facts underlying Plaintiff’s claim. (P’s Separate Statement p. 5). Essentially, it is a request for a witness list. The response was a battery of objections followed by the statement “Plaintiff, Patricia Franco, Defendants, and all medical doctors that have treated Plaintiff as a result of this accident. Discovery is ongoing.” (Id. p. 6). Plaintiff now simply argues that no further response is necessary because the information can be found in Plaintiff’s medical records, and Plaintiff gave testimony on the subject at her deposition. Plaintiff’s claims that this interrogatory is “simply Defense counsel grasping at straws and attempting to have Plaintiff respond in the exact manner Defense counsel wants.” (P’s Separate Statement p. 7:19-20).

Plaintiff answers her own argument in her Reply on her motion to compel discussed above: “[w]ritten discovery and deposition testimony are two separate devices that have been codified by the Discovery Act. Plaintiff is entitled to receive responsive information in response to written discovery regardless of what type of deposition testimony a party provides.” (P’s Reply to Roman’s Opposition to Plaintiff’s Motion to Compel Further Responses, filed 3/14/18, p. 2:16-19). And it has been the law for 40 years that a party cannot respond to an interrogatory by simple reference to other documents or other discovery. Deyo v. Kilbourne (1978) 84 C.A.3d 771, 783-784.

Motion is denied as to Special Rog Nos. 27-28: These interrogatories ask whether P is covered by Medi-Cal, and seek certain Medi-Cal information. (P’s Separate Statement p. 7-10). Welf. & Inst. Code § 14124.71 provides in relevant part:

“(a) When benefits are provided or will be provided to a beneficiary under this chapter because of an injury for which another party is liable… the director shall have a right to recover from such a party… the reasonable value of benefits so provided.

(c) No action taken on behalf of the director pursuant to this section or any judgment rendered in such action shall be a bar to any action upon the claim or cause of action of the beneficiary, his guardian, conservator, personal representative, estate, dependents, or survivors against the third party who may be liable for the injury, or shall operate to deny to the beneficiary the recovery for that portion of any damages not covered hereunder.”

Welf. & Inst. Code § 14124.72 provides in relevant part:

“(d) The director’s claim for reimbursement of the benefits provided to the beneficiary shall be limited to the amount of the director’s lien, as defined in subdivision (d) of Section 14124.70.”

Welf. & Inst. Code § 14124.70(d) states:

““Lien” means the director’s claim for recovery, from a beneficiary’s tort action or claim, of the reasonable value of benefits provided on behalf of the beneficiary.”

Welf. & Inst. Code § 14124.73 provides in relevant part:

“(a) If either the beneficiary or the director brings an action or claim against such third party or carrier, the beneficiary or the director shall within 30 calendar days of filing the action give to the other written notice by personal service, registered mail, or other means of communication deemed appropriate by the department of the action or claim, and of the name of the court or state or local agency in which the action or claim is brought. The purpose of the notice is to provide the beneficiary and the director, as applicable, the opportunity to ensure their interests are adequately represented in an action or claim against a liable third party or carrier. Proof of such notice shall be filed in such action or claim. If an action or claim is brought by either the director or the beneficiary, the other may, at any time before trial on the facts, become a party to, or shall consolidate his action or claim with the other if brought independently.

…

(c) Notification of either the beneficiary or the director of an action or claim against a third party or carrier shall include, at a minimum, the following information:

(1) The date of the beneficiary’s injury.

(2) The beneficiary’s Medi-Cal identification number.

(3) The name and contact information of the liable third party or carrier against whom the action or claim has been filed.

(4) The name and contact information of the carrier for the party identified in paragraph (3) against which a claim has been or will be filed for the beneficiary’s injury, the carrier’s unique claim identifier for the claim, and the name and contact information of the party responsible for adjudicating the claim on the carrier’s behalf, to the extent these are known by the party providing notice under subdivision (a) at the time such notice is provided.

(d) If any information required pursuant to paragraph (4) of subdivision (c) is not known to the party at the time notice pursuant to subdivision (a) is provided, the party providing such notice shall provide such information to the notice recipient within 15 calendar days of obtaining the information.”

Welf. & Inst. Code § 14124.74 provides in relevant part:

“In the event of a settlement, judgment, or award in a suit or claim against a third party or carrier:

(a) If the action or claim is prosecuted by the beneficiary alone, the court or agency shall first order paid from any settlement, judgment, or award the reasonable litigation expenses incurred in preparation and prosecution of the action or claim, together with reasonable attorney’s fees, when an attorney has been retained. After payment of these expenses and attorney’s fees the court or agency shall, on the application of the director, allow as a first lien against the amount of the settlement, judgment, or award the amount that the director is entitled to recover as satisfaction of the director’s lien, as provided in subdivision (d) of Section 14124.72.”

In short, if Plaintiff received benefits from Medi-Cal in connection with this injury, Plaintiff was obliged to notify the director of Medi-Cal within 30 days of filing this lawsuit, and the director is entitled to recover the reasonable value of those benefits out of any settlement or judgment Plaintiff may obtain. Not only that, but the director is entitled to be paid first, after costs and attorney’s fees have been paid. Apparently Towing seeks this information as part of determining what the overall damages might be and to whom they would be paid.

Plaintiff responded that, while she has received Medi-Cal benefits in the last ten years, none of them came as a result of this injury. (Plaintiff’s Separate Statement p. 8:26-27 and 10:27-28). Once that statement has been made, there is nothing more to be said. If Plaintiff has not received Medi-Cal benefits in connection with this injury, the above-quoted statutory provisions are not triggered, and everything proceeds in the ordinary course. Defendant has no further interest or duty in connection with this subject; the duty to notify Medi-Cal lies with Plaintiff, and any breach of that duty will be between Plaintiff and the director. Also, the lien available to the director of Medi-Cal is only against the judgment or settlement, which will no longer belong to Defendant in any event.

Since Defendant no longer has any interest in this information, Plaintiff’s privacy objections are therefore sustained. The motion should be DENIED as to these Special Rogs.

Motion is denied as to Special Rog Nos. 38-39 and 41-44: These interrogatories pertain to Plaintiff’s employment information. This has been sufficiently discussed in connection with the other motions, above.

Motion is partially granted and partially denied as to Requests for Sanctions: Plaintiff’s intransigence as to Special Rog Nos. 4-5 and 11 was without substantial justification. But the responses to Special Rog Nos. 27-28 were not, and fault cannot be assigned with respect to Special Rog Nos. 38-39 and 41-44. Therefore, D is entitled to a partial award of sanctions on the motion. Sanctions are awarded in the amount of $480 (calculated as ½ of the total motion labor cost (total labor cost for 2 hours preparing motion + 1 hour preparing reply + 1 hour appearing at hearing @ $210/hour = $840] + $60 filing fee).

Discussion Regarding Motion No. 4

Towing has asked for a wide assortment of documents on different subjects and for different reasons. Plaintiff has responded to some of those requests with objections and two variations on the same statement: (1) “[a]fter a diligent search and reasonable inquiry, no documents responsive to this request were identified” and (2) “[a]fter a diligent search and reasonable inquiry, there are no documents responsive to this request.” (See generally, Separate Statements).

It would be reasonable to read this response as stating that no responsive documents ever existed, which would be sufficient under CCP §2031.230. However, the response leaves room for the possibility that responsive documents did exist at one point; in that case, Towing would be entitled to know what happened to them. It is just this kind of ambiguity that the meet and confer process is intended to solve. Counsel should be able to clarify the meaning of the responses between themselves; if that cannot be done, then it should not be difficult to give supplemental responses that parrot the language of CCP §2031.230.

Because the responses are technically ambiguous, Towing is entitled by Section 2031.230 to a response that recites directly and that no (other) responsive documents ever existed.

Therefore Towing’s motion is GRANTED, and Plaintiff is ordered to provide the appropriate response.

The fault for this motion cannot be attributed to the unreasonableness of either party based upon the clouded atmosphere of this case, so sanctions are denied.