Raymond and Michelle Plata v. City of San Jose CASE NO. 114CV258879
DATE: 6 June 2014 TIME: 9:00 LINE NUMBER: 24
This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.882.6856 and the opposing party no later than 4:00 PM Thursday 5 June 2014. Please specify the issue to be contested when calling the Court and counsel.

On 6 June 2014, the motion of defendant City of San Jose (“Defendant”) for a protective order, was argued and submitted. Plaintiffs Raymond and Michelle Plata (collectively “Plaintiffs”) filed a formal opposition to the motion.

Statement of Facts

On 10 January 2014, Plaintiffs filed this class action lawsuit against Defendant alleging that it has regularly used its water company, San Jose Municipal Water System (“Muni Water”), to generate profit in violation of the California Constitution.

In their complaint, Plaintiffs explain that Muni Water imposes fees and charges on the users of the water utility on a monthly basis. In 1996, California voters approved Proposition 218, which added articles XIII C and XIII D to the California Constitution. Articles XIII C and XIII D of the California Constitution provide that revenues derived from fees or charges imposed by Muni Water shall not be used for any purpose other than maintaining or improving Muni Water. Defendant is also prohibited from imposing fees or charges on water use to the extent that the revenue generated by the same exceeds the funds required to provide water service.

Plaintiffs allege that from January 1997 to the present, Defendant has illegally transferred approximately $30,000,000.00 from Muni Water to the general fund as “rate of return” transfers, “in-lieu fees,” “late fees,” and other transfers that are not related to the maintenance or improvement of Muni Water. Plaintiffs further allege that San Jose Municipal Code section 4.80.630, subdivision (a) purports to authorize unconstitutional “rate of return” transfers and, pursuant to this provision, Defendant has transferred to the general fund several millions of dollars as an illegal return on investment. Plaintiffs assert that the water utility fees and charges are imposed by Muni Water for general revenue purposes and exceed the reasonable and actual cost of providing the services. They further assert that, on an annual basis, the revenues have consistently exceeded projected amounts, while expenditures have consistently fallen short of projected amounts.

By their complaint, Plaintiffs seek a refund for any amount paid in fees or charges in excess of the cost of providing water service. Plaintiffs also seek a declaration of legal rights and duties, including a declaration that San Jose Municipal Code section 4.80.630 violates Article XIII D of the California Constitution and a declaration that the “rate of return” transfers and other transfers that are not related to the maintenance or improvement of Muni Water are in violation of Article XIII D of the California Constitution. Plaintiffs further seek a permanent injunction directing Defendant to refund Plaintiffs the amounts paid in excess of the cost of providing Muni Water services and enjoining Defendant from continuing to impose water charges that exceed the cost of providing those services, transferring funds from the water utility fund to the general fund and city hall debt service fund, and enforcing San Jose Municipal Code section 4.80.630.

Discovery Dispute

On 31 January 2014, Plaintiffs served Defendant with special interrogatories, set one (“SI”), requests for admission, set one (“RFA”), and requests for production of documents, set one (“RPD”). (Tolentino Dec., p. 1:24-25, 2:1-7, Exs. A, C, D.) Along with the discovery, Plaintiffs served declarations of necessity from their counsel in support of the SI and RFA. (Tolentino Dec., p. 1:26-28, 2:8-10, Exs. B, E.)

Defendant’s counsel sent Plaintiffs’ counsel a meet and confer letter regarding the SI, RFA, and RPD on 24 February 2014. (Tolentino Dec., p. 2:21-22, Ex. H.) Defendant’s counsel advised Plaintiffs’ counsel that the number of discovery requests is excessive and burdensome and many of the requests are overbroad and seek irrelevant information. (Id.) In particular, Defendant asserted the requests are overbroad as they seek “information from as far back as January 1, 1997, seventeen years ago,” and some requests even seek information going back 50 years. (Id.) Defendant’s counsel contended that such information is irrelevant because Plaintiffs were “barred from pursuing any claims arising prior to November 4, 2012 [. . .] under the Government Claims Act.” (Id.) In addition, Defendant’s counsel asserted that the declarations of necessity provided in support of the SI and RFA were insufficient. (Id.) Defendant’s counsel requested an extension of time to respond to the discovery until 4 April 2014, and that Plaintiffs narrow the scope of their requests to events and circumstance that occurred no more than “five years before Plaintiffs’ claim was filed (i.e. from November 4, 2008 to the present).” (Id.)

The following day, Plaintiffs granted Defendant’s request for an extension of time to respond to the discovery requests until 4 April 2014. (See Atkinson Dec., p. 3:4-6, Ex. K.)

Defendant’s counsel and Plaintiffs’ counsel met and conferred via telephone on 7 March 2014, and discussed the SI, RFA, and RPD, but no resolution was reached. (Tolentino Dec., pp. 2:15-19.)

On 10 March 2104, Plaintiffs’ counsel wrote to Defendant’s counsel to further meet and confer. (Tolentino Dec., p. 2:23-24, Ex. I.) Plaintiffs’ counsel agreed to: withdraw any interrogatories asking about events prior to 1997; amend requests seeking the identity of every employee for each year since 1997, to instead request the number of Muni Water employees for each year since 1997; amend the definition of the term “identify;” and amend requests seeking the identity of each employee involved in calculating, creating, or approving the budgets, to instead request the identity of the person or persons in charge of preparing the overall Muni Water budget for each year since 1997. (Id.) Plaintiffs’ counsel asserted that the number of SI, RFA, and RPD was warranted and relevant based on the fact that Plaintiffs alleged that Defendant had engaged in illegal conduct since 1997, and the subject transactions and charges were continuous. (Id.)

Defendant’s counsel responded via letter on 17 March 2014, and asserted that, even with the clarifications and amendments provided, the number of requests remains excessive. (Tolentino Dec., p. 2:25-26, Ex. J.) Defendant’s counsel again sought to limit the scope of the discovery requests as to time and proposed that the discovery be limited to information from “Fiscal Year 2008-2009 [. . .] to the present.” (Id.) Defendant’s counsel argued that any information prior to that time is not relevant to the instant case because Plaintiffs are barred from challenging any fees paid before 4 November 2014, by the Government Claims Act. (Id.) Defendant’s counsel noted that Plaintiffs contended that they are entitled to information from 1997 to the present, based upon their continuous tort theory and claims for declaratory and injunctive relief, and requested that Plaintiffs’ counsel provide legal authority supporting their position. (Id.)

On 21 March 2014, Plaintiffs’ counsel sent Defendant’s counsel a letter advising that Plaintiffs would not agree to limit discovery to the five years from fiscal year 2008-2009 to the present. (Tolentino Dec., p. 3:1-2, Ex. L.)

Defendant’s counsel sent Plaintiffs’ counsel a detailed letter on the same date, outlining the specific SI, RFA, and RPD which Defendant asserts are overbroad as to time. (Tolentino Dec., p. 2:27-28, Ex. K.) Defendant’s counsel also identified a number of the RFA which Defendant believes are improperly compound, conjunctive, or disjunctive. (Id.) Defendant’s counsel further identified several of the RPD that fail to describe with reasonable particularity the information sought and request documents that are equally available to Plaintiff. (Id.) Finally, Defendant’s counsel indicated that the number of SI and RFA propounded in excess of 35 is not justified because the declarations of necessity are insufficient. (Id.)

On 28 March 2014, Plaintiffs’ counsel responded to Defendant’s counsel’s 21 March 2014 letter. (Tolentino Dec., p. 3:3-4, Ex. M.) Plaintiff’s counsel disagreed with the majority of Defendant’s counsel’s arguments, but agreed to withdraw RFA Nos. 17, 21, and 23. (Id.)

On 11 April 2014, Defendant filed the instant motion for a protective order, essentially stating that it does not have to respond to many of the SI, RFA, and RPD propounded by Plaintiff. Plaintiff filed papers in opposition to the motion on 23 May 2014. Defendant filed a reply on 30 May 2014.

Discussion

Defendant moves for a protective order under Code of Civil Procedure sections 2030.090, subdivisions (a) and (b), 2033.080, subdivisions (a) and (b), and 2031.060, subdivisions (a) and (b) (Mem. Ps & As., p. 2:4-25) providing that: (1) “[a]ll discovery be limited to information related to events and transactions taking place in [the fiscal year] 08-09 to the present;” (2) “[c]ounsel’s declarations in support of Plaintiffs’ special interrogatories and requests for admission are insufficient to justify the excessive number of interrogatories and requests propounded by Plaintiff;” (3) “Defendant need not respond to document requests 1-11, 54, [55], 57, 59, 61, and 63-71, which fail to describe with reasonable particularity the information sought, or in the alternative, that Plaintiffs re-phrase these requests to sufficiently describe the documents requested;” and (4) “Defendant need not respond to requests for admission that are compound, conjunctive or disjunctive, namely request numbers 17, 19, 20, 21, and 23-93.” (Mem. Ps & As., p. 11:23-26, 12:1-9.)

A. Legal Standard

A party responding to interrogatories, requests for admission, or requests for production of documents may promptly move for a protective order. (Code Civ. Proc., §§ 2030.090, subd. (a) [interrogatories], 2033.080, subd. (a) [requests for admission], and 2031.060, subd. (a) [requests for production of documents].)

For good cause shown, a court may make any order that justice requires to protect any party or other natural person from unwanted annoyance, embarrassment, oppression, or undue burden and expense. (Code Civ. Proc., §§ 2030.090, sub. (b) [interrogatories], 2033.080, subd. (b) [requests for admission], and 2031.060, subd. (b) [requests for production of documents].)

A protective order may include any or all of the following directions: that the set of interrogatories, or particular interrogatories in the set, need not be answered (Code Civ. Proc., § 2030.090, subd. (b)(1)); that, contrary to the representations made in a declaration of necessity, the number of special interrogatories is unwarranted (Code Civ. Proc., § 2030.090, subd. (b)(2)); that the response to the interrogatories be made only on specified terms and conditions (Code Civ. Proc., § 2030.090, subd. (b)(4)); that the set of admission requests, or particular requests in the set, need not be answered at all (Code Civ. Proc., § 2033.080, subd. (b)(1)); that, contrary to the representations made in a declaration of necessity, the number of admission requests is unwarranted (Code Civ. Proc., § 2033.080, subd. (b)(2)); that all or some of the items or categories of items in the demand need not be produced or made available at all (Code Civ. Proc., § 2031.060, subd. (b)(1)); and that the inspection, copying, testing, or sampling be made only on specified terms and conditions. (Code Civ. Proc., § 2031.060, subd. (b)(4).)

Generally, the party moving for a protective order bears the burden of demonstrating good cause for the order by explaining and justifying its objections to the discovery requests at issue. (See Fairmont Ins. Co. v. Super. Ct. (2000) 22 Cal.4th 245, 255 citing Goodman v. Citizens Life & Cas. Ins. Co. (1967) 253 Cal.App.2d 807, 819.)

However, if the responding party seeks a protective order on the ground that the number of special interrogatories or requests for admission is unwarranted, the propounding party bears the burden of justifying the number of special interrogatories or requests for admission. (Code Civ. Proc., §§ 2030.040, subd. (b) [special interrogatories], 2033.040, subd. (b) [requests for admission].)

B. Objection to the SI, RFA, and RPD Based on Over Breadth

Defendant objects to many of the SI, RFA, and RPD on the ground that they are overbroad as to time because they seek information and documents from as far back as 1997 and, in some cases, are unlimited as to time. Defendant further objects to several of the RPD as overbroad with regard to scope because they do not describe the documents sought with reasonable particularity. Defendant therefore requests a protective order providing that: the discovery be limited to information related to events and transactions that took place from the fiscal year 2008-2009 to the present; and Defendant need not respond to RPD Nos. 1-11, 54, 55, 57, 59, 61, and 63-71, or that Plaintiffs re-phrase these requests to sufficiently describe the documents requested.

Discovery is allowed for any matters that are not privileged, relevant to the action, and reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.010.) The “relevance to the subject matter” and “reasonably calculated to lead to discovery of admissible evidence” standards are applied liberally with any doubt generally resolved in favor of discovery. (Colonial Life & Acc. Ins. Co. v. Super. Ct. (1982) 31 Cal.3d 785, 790.) Moreover, for discovery purposes, information is “relevant to the subject matter” if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement thereof. (Gonzalez v. Super. Ct. (1995) 33 Cal.App.4th 1539, 1546.)

1. Overbroad as to Time

Defendant objects to SI Nos. 1-11, 18-39, 53-63, 70-71, 75-76, 88-108, 121-142, 155-176, 189-212, 225-248, and 261-262, RFA Nos. 27-37 and 44-73, and RPD Nos. 12-19, 20-52, 72-81, 101-12, and 107 to the extent that they seek information from fiscal year 1997-1998 until fiscal year 2007-2008.

Defendant also objects to SI Nos. 52, 72-74, and 81-87, and RPD Nos. 1-11, 97-100, 103, 106, and 108-109 because they are not limited as to time.

a. SI Nos. 1-11, 18-39, 53-63, 70-71, 75-76, 88-108, 121-142, 155-176, 189-212, 225-248, and 261-262, RFA Nos. 27-37 and 44-73, and RPD Nos. 12-19, 20-52, 72-81, 101-12, and 107

SI Nos. 1-11, 18-39, 53-63, 70-71, 75-76, 88-108, 121-142, 155-176, 189-212, 225-248, and 261-262, RFA Nos. 27-37 and 44-73, and RPD Nos. 12-19, 20-52, 72-81, 101-12, and 107 seek information, admissions, and documents that pertain to events and circumstances that occurred during the time period from fiscal year 1997-1998 until fiscal year 2007-2008.

Defendant argues that Government Code section 911.2 requires that claims for money be made against it within one year of the accrual of the claim. (Mem. Ps & As., p. 3:20-28, 4:1-16.) Defendant asserts that since Plaintiffs filed their claim on 4 November 2013, they are “barred from seeking a refund of fees paid more than one year prior to the date of their claim.” (Mem. Ps & As., p. 4:16-20.) Defendant contends that it follows that information pertaining to events or circumstances prior to 4 November 2012, are not relevant to this case because Plaintiffs may not challenge the fees paid prior to that date. (Mem. Ps & As., p. 4:20-22.) Defendant points out that given the broad scope of discovery it “offered to respond to discovery of information from as early as Fiscal Year 2008-2009,” but information from before that time would not be reasonably calculated to lead to the discovery of admissible evidence.

Conversely, Plaintiffs persuasively argue that Defendant is attempting to compel litigation of its statute of limitations defense and this discovery motion is not the appropriate means to adjudicate such an issue.

While Defendant may be correct that Government Code section 911.2 applies in the instant case and bars Plaintiffs’ claim for refund of the fees and charges imposed by Muni Water prior to 4 November 2012, the issue is clearly in dispute.

Plaintiffs contend that they may seek recovery for violations dating back to 1997 under an exception to the statute of limitations, the continuing violation doctrine. (Opp’n., p. 4:25-28, 5:1-16.) The continuing violation doctrine essentially tolls the statute of limitations if the wrongful conduct alleged commenced at a time now barred by the statute of limitations, but continued until a date not barred. (See Wyatt v. Union Mortg. Co. (1979) 24 Cal.3d 773, 786 [statute of limitations on continuing tort (conspiracy) cause of action does not begin to run until the commission of the last overt act].) Plaintiffs argue that the California Supreme Court has recognized that the continuing violation doctrine could apply in situations where an illegal tax has been continuously imposed and, thus, the doctrine applies in the instant case. (Opp’n., p. 5:17-25.)

Furthermore, Plaintiffs assert that regardless of the applicability of the continuing violation doctrine, Government Code section 911.2 does not apply to their claims for declaratory and injunctive relief. (Opp’n., p. 6:1-5.) This issue is also one that is in dispute as Defendant maintains that the longest possible statute of limitations for plaintiffs claim for declaratory relief is four years under Code of Civil Procedure section 343.

Whether the continuing violation doctrine applies in the instant case, as an exception to the statute of limitations imposed by Government Code section 911.2, is an issue that cannot be resolved on discovery and the Court does not purport to rule upon the same. Plaintiffs clearly allege in their complaint that Defendant’s illegal conduct began as early as 1997. Plaintiffs are entitled to conduct discovery regarding those allegations regardless of whether they ultimately prevail on their claims or Defendant ultimately succeeds on its statute of limitations defense.

Accordingly, Defendant’s over breadth objection is overruled with respect to SI Nos. 1-11, 18-39, 53-63, 70-71, 75-76, 88-108, 121-142, 155-176, 189-212, 225-248, and 261-262, RFA Nos. 27-37 and 44-73, and RPD Nos. 12-19, 20-52, 72-81, 101-12, and 107. As such, Defendant is not entitled to a protective order providing that the discovery be limited to information related to events and transactions that took place from the fiscal year 2008-2009 to the present.

b. SI Nos. 52, 72-74, and 81-87, and RPD Nos. 1-11, 97-100, 103, 106, and 108-109

SI Nos. 52, 72-74, and 81-87, and RPD Nos. 1-11, 97-100, 103, 106, and 108-109 ask Defendant for a variety of information and documents and are not limited in any way with respect to time.

Defendant argues that the SI and RPD are overbroad by virtue of Plaintiffs’ failure to include a time limitation in the requests. Conversely, Plaintiffs argue that the fact that they do not associate a limiting time period with each request does not make the SI or RPD per se unreasonable. (Opp’n., p. 8, fn. 2.)

i. SI Nos. 52, 72-74, and 81-87

SI No. 52 asks Defendant to describe in detail the method used to calculate “the cost of operating Muni Water each fiscal year.” SI Nos. 72-74 ask Defendant to identify studies addressing the relationship between the fees collected and the costs of providing Muni Water services. SI Nos. 81-87 ask Defendant to define terms as they are used in annual operating budgets.

As Plaintiffs note in their complaint, Defendant purchased Muni Water in 1961. Thus, in absence of a time limitation, SI Nos. 52, 72-74, and 81-87 ask Defendant for responsive information dating back almost fifty years in time. Plaintiffs allege that Defendant’s illegal conduct began in 1997 and, thus, the method used to calculate annual budgets, studies addressing the relationship between fees and costs, and terms used in annual budgets prior to that time are irrelevant to the instant case.

Therefore, Defendant’s over breath objection with regard to SI Nos. 52, 72-74, and 81-87 has merit and is sustained. The Court finds that Defendant is entitled to a protective order providing that it need only respond to SI Nos. 52, 72-74, and 81-87 to the extent those requests ask for information from 1997 to the present.

ii. RPD Nos. 5-11, 97-100, 103, 106, and 108

RPD Nos. 5-11 request all documents that reflect the meanings of terms used in annual operating budgets. RPD Nos. 97-100 request all maps, resolutions, and complaints received by Defendant pertaining to water rate increases and the misuse of Muni Water Revenue. RPD Nos. 103, 106, and 108 request all documents identifying the purpose of the water utility fund, explaining “late fee” transfers from the water utility fund, and the use of Muni Water revenue to balance the budget.

As noted above, Defendant purchased Muni Water in 1961, and RPD Nos. 5-11, 97-100, 103, 106, and 108 effectively request documents about maps, resolutions, complaints, and budgets made since that time. Since Plaintiffs’ complaint only alleges that Defendant’s illegal actions began in 1997, any information prior to that time is irrelevant.

Thus, Defendant’s objection based on over breadth has merit with respect to RPD Nos. 5-11, 97-100, 103, 106, and 108. As such, Defendant’s objection is sustained with regard to RPD Nos. 5-11, 97-100, 103, 106, and 108, and the Court finds that Defendant is entitled to a protective order providing that it need only respond to RPD Nos. 5-11, 97-100, 103, 106, and 108 to the extent those requests ask for information from 1997 to the present.

iii. RPD Nos. 1-4 and 109

RPD No. 109 requests all documents that Defendant’s identified in their responses to the SI and is therefore appropriately limited. Similarly, RPD Nos. 1-4 requests all documents which reference a 2007 report and thus and responsive documents that exist necessarily do not pre-date 2007.

Therefore, Defendant’s objection with respect to RPD Nos. 1-4 and 109 lacks merit and, accordingly, is overruled.

2. Overbroad as to Scope

Defendant objects to RPD Nos. 1-11, 54-55, 57, 59, 61, and 63-71 on the ground that they do not describe the documents sought with reasonable particularity and are therefore overbroad with regard to scope.

Defendant asserts that the RPD are overbroad because they seek “‘all documents reflecting’ various definitions of terms [. . .] or calculations.” (Mem. Ps & As., p. 9:9-12.) Defendant argues that the terms “all documents” are overbroad because all documents in its possession may be maintained by numerous departments and divisions within the City. (Mem. Ps & As., p. 9:14-18, 22-23.) Defendant also argues that the term “reflecting”’ is “broadly defined” and if “plaintiffs simply seek definition of terms, the discovery method used is unwarranted” because the requests could encompass a vast range of documents which may be “only tangentially related to the definitions plaintiffs purportedly seek.” (Mem. Ps & A., p. 9:18-23.)

Defendant’s argument is without merit. The RPD are not overbroad because they are limited to documents reflecting: the meaning of terms as they are used in Defendant’s budget or audits; accountings, budgets, and draft budgets; and how Defendant calculated specific rates of return, late fees, and overhead amounts. Furthermore, the types of documents sought are described with reasonable particularity because they are limited by subject matter to documents describing or reflecting calculations performed by Defendant and the definitions of terms used in budgets. Similarly, while the term “reflecting” may encompass a large amount of documents, it clearly describes with reasonable particularity that the types of documents sought are those that reflect any of the responsive information.

The fact that responsive documents may be in the possession of numerous departments does not make the requests as drafted overbroad or mean that the documents have not been described with reasonable particularity. Similarly, the fact that the requests may encompass documents that are only tangentially related to the information sought does not mean that the requests are overbroad or that the documents have not been described with reasonable particularity, as discovery is relevant so long as it is reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.010.)

Accordingly, Defendant’s objection is overruled. As such Defendant is not entitled to a protective order providing that it need not respond to RPD Nos. 1-11, 54, 55, 57, 59, 61, and 63-71, or that Plaintiffs re-phrase these requests to sufficiently describe the documents requested.

C. Objection to Plaintiffs’ Counsel’s Declarations of Necessity

Defendant objects to Plaintiffs’ counsel’s declarations of necessity submitted in support of the SI and RFA on the ground that they do not adequately explain the need for the discovery requests in excess of the 35-limit. Defendant therefore requests a protective order providing that Plaintiffs’ counsel’s declarations in support of the SI and RFA are insufficient to justify the number propounded in excess of 35, implying thereby that it need not respond to those requests in excess of the 35-limit.

A party may request that any other party admit 35 matters that do not relate to the genuineness of documents as a matter of right. (Code of Civ. Proc., § 2033.030, subd. (a).) If more than 35 requests for admission are sought, the propounding party must serve a “declaration of necessity,” and any party who attaches a valid declaration of necessity may request a greater number of admissions. (Code of Civ. Proc., § 2033.050.) A greater number of requests for admissions is warranted by a showing of the complexity or the quantity of the existing and potential issues in the particular case. (Code of Civ. Proc., § 2033.040, subd. (a).)

Similarly, a party may propound by right 35 special interrogatories that are relevant to the subject matter of the pending action. (Code of Civ. Proc., § 2030.030, subd. (a)(1).) If more than 35 special interrogatories are sought, the propounding party must serve a “declaration of necessity,” and any party who attaches a valid declaration of necessity may propound a greater number of special interrogatories. (Code of Civ. Proc., § 2030.040.) A greater number of special interrogatories is warranted by a showing of: (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 the 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. (Code of Civ. Proc., § 2030.040, subd. (a).)

As the propounding party, Plaintiffs have the burden of justifying the number of SI and RFA in excess of the 35-limit.

Here, Plaintiffs served declarations of necessity from their counsel which stated that the number of SI and RFA is warranted under Code of Civil Procedure sections 2030.40, subdivision (a) and 2033.040, subdivision (a) “because of the length of time the City has been illegally imposing water charges that exceed the cost of providing water services and the complexity of issues of the case.” (Tolentino Dec., Exs. B, E.)

Defendant argues that Plaintiffs’ counsel’s statements are inadequate and conclusory because they simply quote the language provided for in the relevant statutes and summarize allegations in the complaint.

Conversely, Plaintiffs argue that the declarations comply with the Code of Civil Procedure because they explain the need for the number of special interrogatories and requests for admission propounded. They also argue that they further explained the need for the information sought by the SI and RFA to Defendant’s counsel during multiple meet and confer conversations.

Plaintiffs assert that while the SI and RFA are arguably voluminous, the subject transactions and charges at issue are numerous, have been continuous, and span a seventeen-year period.

In support of their argument, Plaintiffs point out that RFA Nos. 1-16 ask Defendant to admit the genuineness of documents and therefore do not count toward the 35-limit. RFA Nos. 27-91 ask Defendant to admit that specific transfers of funds were used for purposes other than to maintain and/or improve Muni Water and that fees and charges collected during specific fiscal years exceeded expenses. The remaining RFA concern Proposition 218 and information found on Defendant’s website.

Similarly, SI Nos. 1-51, as amended by Plaintiffs, ask Defendant to identify the number of employees working for Muni Water and the person in charge of preparing the overall Muni Water budget during specific fiscal years. SI Nos. 52-69, 71, 75, 88-262 ask Defendant to identify specific costs, funds, and fees and describe how those amounts were calculated for each fiscal year at issue in the complaint. SI Nos. 77-87 ask Defendant to define various terms as they are used in audits and budgets. The remaining SI ask Defendant to identify any studies analyzing the relationship between the fees collected by Muni Water and the actual cost of providing services.

The Court finds that the declarations of necessity are code-compliant because they state reasons why the number of SI and RFA are warranted, which include the lengthy amount of time the City has been imposing fees and charges on water use and the complexity of issues. Plaintiffs expanded upon the reasons provided in the declarations of necessity in their meet and confer correspondence and opposition papers and explained that the fact that there are numerous transactions and budget line items during each of the seventeen fiscal years at issue warrants the number of discovery requests.

Accordingly, this objection is overruled and Defendant is not entitled to a protective order providing that Plaintiffs’ counsel’s declarations in support of the SI and RFA are insufficient to justify the number propounded in excess of 35.

D. Objection to the RFA as Compound, Conjunctive, and/or Disjunctive

Defendant objects to RFA Nos. 17, 19-21, and 23-93, arguing that they are improper under Code of Civil Procedure section 2033.060, subdivision (f) because they are compound, conjunctive, and/or disjunctive. Defendant requests a protective order providing that it need not respond to those requests on that basis.

Plaintiffs state in their opposition that RFA Nos. 17, 19-21, and 23 “were withdrawn by [them] during the meet and confer process.” (Opp’n., p. 11:4-6.) Accordingly, only RFA Nos. 24-93 are at issue.

Code of Civil Procedure section 2033.060, subdivision (f), provides “[n]o request for admission shall contain subparts, or a compound, conjunctive, or disjunctive request.” This rule is primarily intended to prevent evasion of the statutory limit on the number of requests that one party may propound to another by structuring questions so as to require more information than could be obtained by a limited number of separate questions. (See Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1287-1289, 1291 [interpreting a similar statutory provision regarding special interrogatories].) Thus, while discovery requests which embrace two discrete matters are by and large impermissible, the use of subparts will be tolerated to the extent that each discovery request embraces only a single subject. (Id. at p. 1291.)

With regard to RFA Nos. 24-93, Plaintiff argues in a conclusory manner that they are “compound, conjunctive, and/or disjunctive” and “thus are improper,” without providing further explanation. (Mem. Ps & As., p. 8:19-22.)

Here, while some of the RFA include the words “and” or “or,” they are not improper. For example, RFA Nos. 24-26 ask Defendant to admit that various actions taken with respect to Muni Water “fees and charges” are illegal “under Proposition 218 and the California Constitution.” (Tolentino Dec., Ex. D, p. 5:7-19.) Plaintiffs persuasively argue that the use of the word “and” at two places in these RFA does not violate Code of Civil Procedure section 2033.060. Each of the RFA at issue involves only a single subject and is not structured so as to require more information than could be obtained through a number of separate questions.

Accordingly, this objection is overruled and Defendant is not entitled to a protective order providing that it need not respond to RFA Nos. 17, 19, 20, 21, and 23-93, on that basis.

E. Objection to the RPD on the Ground that Documents Sought are Equally Available to Both Parties

Defendant objects to RPD Nos. 82-85, 87-88, 94, and 98 on the ground that they seek documents that are equally available to Plaintiffs. Defendant argues that the RPD seek documents such as legislative history, public comments, amendments, and drafts of city ordinances which are equally available to Plaintiffs. (Mem. Ps & As., p. 10:15-18.) Defendant requests a protective order providing that it does not need to respond to these requests on that basis.

Plaintiffs argue that the equally available objection is an exception to the rule that a responding party must make a reasonable effort to obtain whatever information is sought although it is not within its personal knowledge or is outside of its custody or control. (Opp’n., p. 132-6.) Plaintiffs contend that Defendant cannot avail itself of this objection because it “authored the responsive documents and has them in its custody.” (Opp’n., p. 13:3-8.) In support of their contention, Plaintiffs cite Bunnell v. Super. Ct. (1967) Cal.App.2d 720, 723-24.

First, the case of Bunnell v. Super. Ct. does not stand for the proposition that a party cannot object to discovery on the ground that the information sought is equally available to the opposing party, when that information is in their custody or possession. In fact, Bunnell v. Super. Ct. undermines Plaintiffs’ position. The Court of Appeal in that case found that the trial court abused its discretion in requiring further answers to interrogatories when the responsive information was in deposition and trial transcripts that were in both parties’ possession. (Bunnell v. Super. Ct., supra,) Cal.App.2d at p. 723.) In its decision, the Court of Appeal noted that “the purpose of the Discovery Act is to permit a party to prepare himself for trial, not to require one party, at his expense, to prepare the case for his opponent.” (Id.)

Second, Defendant’s argument with respect to RPD Nos. 82-85, 87-88, and 98 is well-taken as the documents requested, such as legislative history, public comments, minutes of City Council meetings, amendments, and city ordinances, are matters of public record and, therefore, are equally available to Plaintiffs.

With regard to RPD No. 94, the request asks for all audits of Muni Water finances and it is not apparent to the Court that such documents are a matter of public record or would otherwise be equally available to Plaintiffs.

Accordingly, Defendant’s objection with respect to RPD No. 94 is overruled. Furthermore, Defendant’s objection with regard to RPD Nos. 82-85, 87-88, and 98 is sustained. As such, Defendant is entitled to a protective order providing that it does not need to respond to RPD Nos. 82-85, 87-88, and 98, on that basis. Defendant is not entitled to a protective order as requested with respect to RPD No. 94.

F. Objection to the SI, RFA, and RPD as Oppressive and Unduly Burdensome

Defendant generally objects to the SI, RFA, and RPD propounded by Plaintiff on the grounds that they are oppressive and responding to them would be unduly burdensome. Defendant requests a protective order stating that it need not answer any of the SI, RFA, or RPD on that basis.

“[S]ome burden is inherent in all demands for discovery.” (West Pico Furniture Co. v. Super. Ct. (1961) 56 Cal.2d 407, 418.) A party claiming that requested discovery is unduly burdensome must make a particularized showing of facts demonstrating hardship e.g., specific facts as to how much work, time, and expense would be required to respond and/or produce responsive documents. (Id. at p. 417-418; Contra, Mead Reinsurance Co. v. Super. Ct. (1986) 188 Cal.App.3d 313, 318 [review of documents would require 5 claims adjusters, working full time for six weeks each].) In ruling on the objection, the court should balance the purpose and need for the information against the burden that production entails, including costs. (West Pico Furniture Co. v. Super. Ct., supra, 56 Cal.2d at p. 418.)

Defendant argues that the SI, RFA, and RPD propounded by Plaintiff are oppressive and that responding to them would be unduly burdensome because they “seek information about events, calculations, and identification of line items as long ago as 1997.” (Mem. Ps & As., p. 10:23-25.) Defendant points out that Plaintiff requests information about “discrete issues,” such as “the amount of [. . .] [and] method for calculating [. . .] ‘direct overhead’, ‘indirect overhead’, and ‘rate of return,’” for from 1997 to the present. (Mem. Ps & As., p. 10:25-28.) Defendant asserts that “[l]ocating and reviewing the City’s records from seventeen different fiscal years would be unduly burdensome, particularly when, as discussed above, information from most of these years are of no relevance or may be obtained by Plaintiffs themselves.” (Mem. Ps & As., p. 11:10-13.)

Defendant estimates that “[i]t would take approximately 85 days of City staff time to locate, identify, and review documents potentially responsive to Plaintiff’s requests for a single line item.” (Mem. Ps & As., p. 11:13-15.) In support of this assertion, Defendant submits the declaration of its counsel, Elisa Tolentino (“Ms. Tolentino”). Ms. Tolentino declares that she is “informed and believe that for each fiscal year, it would take approximately 40 hours to locate, review, and identify documents that are responsive to Plaintiffs’ request for information pertaining to ‘overhead’ calculations.” (Tolentino Dec., p. 5-7.) She further declares that to “locate, review and identify documents for this single line item for the seventeen-year period requested by Plaintiffs would take approximately 85 days of staff time.” (Tolentino Dec., p. 3:7-9.)

Plaintiffs contend that Ms. Tolentino’s declaration is insufficient to support Defendant’s objection based on undue burden because it does not state how Defendant would locate, review, and identify documents that are responsive to Plaintiffs’ requests. (Opp’n., p. 13:25-28, 14:1-2.) Plaintiffs also assert that the declaration is insufficient because it does not state any of the facts underlying the conclusion that it would take 85 staff days to locate, review, and identify responsive documents, such as where and how the records are maintained, what specific data would need to be gathered, and the process that would be used to recreate a single line item. (Opp’n., p. 14:2-5) Finally, they argue that the declaration is insufficient because Ms. Tolentino’s statements are made on information and belief and such statements are afforded no evidentiary value.

The Court agrees that absent a showing of facts by Defendant as to how it would locate, review, and identify documents that are responsive to Plaintiffs’ requests, where and how the records are maintained, what specific data would need to be gathered, and the process that would be used to recreate a single line item, Defendant has not adequately supported its assertion that it would take it 85 staff days to respond to Plaintiff’s request for a single budget line item for the subject time period.

Moreover, Plaintiffs’ argument that Ms. Tolentino’s statements in her declaration are insufficient to substantiate Defendant’s claim of undue burden is well-taken. In Goodman v. Citizens Life & Casualty Ins. Co. (1967) 253 Cal. App. 2d 807, the plaintiffs noticed a deposition to be held in Kansas City, Missouri. (Id. at p. 818-820.) Defendant then noticed a motion to compel the plaintiffs to pay defense counsel’s travel expenses to attend the deposition. (Id.) The motion was supported solely by a declaration of a member of the firm representing defendant, stating that it would be necessary for him to travel from Los Angeles, California, to Kansas City, Missouri, to represent the defendant at the taking of said deposition and stating on information and belief the anticipated expenses for the trip. (Id.) Over the plaintiffs’ opposition, the motion was granted and the plaintiffs were ordered to pay $ 200.00 for such expenses. (Id.)

The Court of Appeal found that the attorney’s statements in his declaration were insufficient to support an award of expenses because “[s]tatements in a declaration on information and belief are of no evidentiary value.” (Goodman v. Citizens Life & Casualty Ins. Co., supra, 253 Cal. App. 2d at p. 820 citing Tracy v. Tracy (1963) 213 Cal.App.2d 359, 362.) The Court of Appeal opined that “although the trial court [. . .] had some discretion in determining what constitutes annoyance, embarrassment, or oppression, the granting of an order imposing expenses upon the plaintiffs in the absence of any facts tending to prove annoyance, embarrassment, or oppression was an abuse of its discretion.” (Id.)

Here, Ms. Tolentino’s statements in her declaration are made upon information and belief and therefore are of no evidentiary value. As such, the Court cannot make a finding of undue burden in the absence of any facts tending to prove the same.

Accordingly, Defendant’s undue burden objection is overruled and Defendant is not entitled to a protective order stating that it need not answer any of the SI, RFA, or RPD on that basis.

Conclusion and Order

Defendant’s motion for a protective order is GRANTED IN PART and DENIED IN PART.

Defendant’s motion is DENIED with respect to Defendant’s request for an order providing that: (1) all discovery be limited to information related to events and transactions taking place from the fiscal year 2008-2009 to the present; (2) counsel’s declarations in support of Plaintiffs’ special interrogatories and requests for admission are insufficient to justify the excessive number of SI and RFA propounded by Plaintiff; (3) Defendant need not respond to RPD Nos. 1-11, 54, 55, 57, 59, 61, and 63-71, or in the alternative, that Plaintiffs re-phrase these requests; and (4) Defendant need not respond to RFA Nos. 17, 19, 20, 21, and 23-93.

Defendant’s motion is GRANTED with respect to Defendant’s request for an order stating that it need not provide a response to RPD Nos. 82-85, 87-88, and 98, and the Court finds that Defendant is also entitled to an order providing that it need only respond to SI Nos. 72-74 and 81-87, and RPD Nos. 5-11, 97-100, 103, 106, and 108 to the extent that the requests ask for information and documents from 1997 to the present.