2017-00215931-CU-BC

Pacific Infrastructure Const., LLC vs. City of Sacramento

Nature of Proceeding: Motion to Compel Form Interrogatories

Filed By: Douris, Meghan A.

Plaintiff’s Motion to Compel Further Responses to Form Interrogatories is GRANTED IN PART and DENIED IN PART. The request for sanctions is DENIED.

The notice of motion does not provide notice of the Court’s tentative ruling system as required by CRC 3.1308 and Local Rule 1.06(D). Counsel for moving party are ordered to notify the opposing party immediately of the tentative ruling system and to be available at the hearing, in person or by telephone, in the event the opposing party appears without following the procedures set forth in Local Rule 1.06(B).

FACTS

On August 28, 2017, Plaintiff served Form Interrogatories on Defendant City of Sacramento. On October 2, 2017, the City served its responses.

According to Plaintiff, the City objected to certain of the form interrogatories on the grounds of vagueness and also posited objections based on attorney-client privilege and work product doctrine. (See Pl. Motion at pp. 3-4.) Accordingly, on November 16, 2017, Meghan Douris, counsel for Plaintiff, sent an email to counsel for the City, generally indicating that Plaintiff believed the City’s responses were deficient, but did not specify the grounds for that belief. (See Douris Decl., Exh. 3.) Ms. Douris also requested an extension to file a motion to compel to January 2018. (Id.) Deputy City

Attorney Melissa Bickel responded to Ms. Douris, requesting more substantive meet and confer efforts and extended the time by which Plaintiff had to file a motion to compel to December 15, 2017. (Id.) Ms. Bickel also proposed a schedule for written meet and confer efforts, to which Ms. Douris agreed. (Id.)

Ms. Douris sent a meet and confer letter on November 17, 2017, which addressed the following:

· Removal of all objections to the use of the word “incident.”

· The City’s refusal to Answer Interrogatory Nos. 12.2 and 12.3 on the grounds attorney-client privilege and work product doctrine.
· The City’s reliance on an unidentified report as the basis for response Interrogatory No. 12.6.

· The City’s reliance on an Inspection Completion Report as the basis response to Interrogatory No. 12.7.
· Demand of an “affirmative or negative answer” as to whether the City conducted surveillance, as requested by Interrogatory Nos. 13.1 and 13.2.
· The City’s basis for the affirmative defenses asserted in its Answer to Complaint, as requested by Interrogatory No. 15.1.

The City responded to Plaintiff’s issues via email on December 1, 2017. The City requested clarification as to the term “Incident” and also exactly which responses Plaintiff believed were deficient, since apparently the City responded to some interrogatories despite the lack of clarification. (Douris Decl., Exh. 5.) With respect to Interrogatory Nos. 12.2 and 12.3, the City responded that Plaintiff’s beliefs regarding the insufficiency of the City’s responses were “without merit” and that “[p]erhaps [Plaintiff] should read the cases cited [presumably in the City’s objections], which clearly indicate City is within its right to object.” Finally, the City stated that its responses to Form Interrogatory No. 15.1 regarding “certain affirmative defenses were plead so as not to be barred from asserting them at a later date. With discovery in its infancy, City simply lacks sufficient information upon which to base a meaningful response to this interrogatory[.]” City then concludes that this is an adequate response at this stage of litigation and that it will amend its response after discovery has been conducted.

In this Motion, Plaintiff requests that the City be compelled to respond to Form Interrogatory Nos. 12.2, 12.3 and 15.1. Plaintiff also requests that the City be required to withdraw any objections based on vagueness related to the definition of the term “incident.”

ANALYSIS

The Court has some concerns as to whether the pre-filing meet and confer requirements have been met in this case.The meet and confer process is a necessary prerequisite to seeking judicial enforcement of a litigant’s disclosure duties in the interrogatory and document production demand contexts. (Code Civ. Proc., §§ 2016.040, 2023.010, subd. (i), 2023.020, 2030.300, subd. (b), 2031.310, subd. (b)(2).) The evidence submitted by both Parties reflects that Plaintiff waited over a month from the time counsel received City’s initial responses to initiate any contact at all regarding purported deficiencies in the responses. The City responded to Plaintiff’s delayed meet-and-confer attempts, but then heard nothing other than the filing of the instant motion. There is nothing in the documents submitted to the Court that evinces any

sort of attempt to reach an understanding or consensus between the Parties as to the discovery requests at issue; rather, the exhibits – comprising a handful of letters and emails between counsel – reflect an unyielding position by both Parties.

Despite the Court’s reservations, the Court will rule on the instant motion in the interests of economy and efficiency, since, based on the tenor of the communications between counsel, the Court doubts that additional meet and confer efforts would be successful, and the Court cannot say that the efforts to date were unreasonable or in bad faith as to all issues presented.

Form Interrogatory Nos. 12.2 and 12.3

The motion to compel further responses to Interrogatory Nos. 12.2 and 12.3 is GRANTED.

Defendant asserts that a response to Nos. 12.2 and 12.3 would violate the attorney-client privilege and/or the attorney work product doctrine, citingNacht & Lewis Architects, Inc. v. Superior Court(1996) 47 Cal.App.4th214, andCoito v. Superior Court (2012) 54 Cal.4th 480.

While these cases support Defendants’ work product objection, where the attorney for Defendant has interviewed witnesses, the Court inNacht & Lewisalso held that “a list of potential witnesses who turned over to counsel their independently prepared statements would have no tendency to reveal counsel’s evaluation of the case. Such a list would therefore not constitute qualified work product.” (47 Cal.App.4that 217-218.) Similarly, the California Supreme Court held inCoitothat witness statements, even procured by counsel, were not automatically entitled to absolute work product protection; instead, such protection required a foundational showing that disclosure would reveal an attorney’s impressions, conclusions, opinions, legal research or theories. (54 Cal.4that 495-496.) Moreover, the Court does not see that attorney-client privilege or work product doctrine covers the underlying fact of the identity of members of a particular group. (See Hays v. Wood(1979) 25 Cal.3d 772, 785 [generally, the attorney-client privilege is designed only to protect confidential communications between a client and attorney and does not protect identities of witnesses].)

The Court believes it is unlikely that the Judicial Council-approved Form Interrogatory would violate the attorney-client privilege or the work product privilege, but leaves open the possibility that, with evidentiary support, the application of the privilege might be possible. (See Coito, at 495-496.) Unfortunately, Defendant has not made any such evidentiary showing either to Plaintiff or the Court in this regard. Nonetheless, if privilege is claimed, a privilege log may be provided. C.C.P., sec. 2031.240(c)(1) provides: “If an objection is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.”

Based on the foregoing, the Motion to Compel Further Responses as to these Interrogatories is GRANTED.

Form Interrogatory No. 15.1

Form Interrogatory 15.1 seeks facts, witnesses and documents that support each

affirmative defense that Defendant raised in its Answer. Defendants asserted a general response that does not comply with the required subparts of the Form Interrogatory, then proceeded to state as to each of the affirmative defenses that “discovery has not been completed in this case” and that the “City lacks sufficient information upon which to base a meaningful response to this interrogatory.” (Douris Decl., Exh. 2 at p. 10.) These responses are insufficient.

Each answer to an interrogatory must be “as complete and straightforward as the information reasonably available to the responding party permits. If an interrogatory cannot be answered completely, it shall be answered to the extent possible.” (CCP § 2030.220(a), (b).) Further, “[p]arties must state the truth, the whole truth, and nothing but the truth in answering written interrogatories.” (Scheiding v. Dinwiddie Const. Co. (1999) 69 Cal.App.4th64, 76.) Where the question is specific and explicit, an answer that supplies only a portion of the information requested is improper. It also is improper to provide “deftly worded conclusionary answers designed to evade a series of explicit questions.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783.)

Here, if Defendant City has no facts at this time to support the specific affirmative defenses alleged, it must so indicate. A party served with interrogatories is required to make a reasonable investigation to ascertain facts when it has available to it sources of information pertaining to the matters involved in the interrogatories. (West v. Johnson & Johnson Products, Inc. (1986) 174 Cal.App.3d 831, 874.)

The City shall serve further verified responses that comply with the subparts of Form Interrogatory No. 15.1 as to each affirmative defense, without objections, on or before February 5, 2018.

Vagueness of the Term “Incident”

The Motion as to striking the City’s objections based on vagueness to the term “incident” is DENIED.

First, there isno evidencein the moving papers of any attempt on Plaintiff’s part to meet and confer regarding the clarification of the term, as Defendant requested. (See CCP §§ 2016.040, 2030.300(b), 2031.310(b)(2), 2033.290(b).)

In addition, Plaintiff has not provided a separate statement in support of any motion to compel what amounts to further discovery responses with regard to specific interrogatories containing this objection. (See California Rule of Court 3.1345(a).) The separate statement required by Rule of Court 3.1345 must be full and complete so that no person is required to review any other document to ascertain the full request and the full response, and the reasons why further response should be compelled. Specifically, the separate statement must contain the following information: (1) the verbatim discovery request concerning which further responses are sought; (2) the verbatim response made by the responding party; (3) the reason(s) why further response should be ordered; (4) if necessary to the determination, all definitions, instructions, and other information required to understand the discovery demand and response thereto, (5) if response is dependent upon a response to another demand, then that demand and response thereto must be set forth; (6) if pleadings or other documents are relevant to the motion, the party relying on them must summarize them. (Cal. Rule of Court 3.1345.) A motion to compel further responses must be denied if no separate statement in full compliance with the rules accompanies the

motion.

Here, there is no separate statement identifying which discovery responses Plaintiff places at issue in conjunction with the request to obtain further responses without the vagueness objection relating to the term “incident.” Absent the separate statement in this regard, the motion must be DENIED.

CONCLUSION

Defendant City of Sacramento shall provide further responses compliant with this Order as to Interrogatory No. 12.2, 12.3 and 15.1 on or before February 9, 2018.

Moving party’s request for sanction is denied based on the fact that Defendant’s opposition had some merit and in light of the questionable meet and confer efforts.