Case Number: BC577648??? Hearing Date: May 20, 2016??? Dept: A
Oomens v The Cheesecake Factory Rest.
MOTIONS TO COMPEL FURTHER RESPONSES (2)
Calendar: 4
Case No: BC577648
Date: 5/20/16
MP: Defendant, The Cheesecake Factory Restaurants
RP: Plaintiff, Vera Oomens
RELIEF REQUESTED:
1. Order compelling Plaintiff to serve further responses to the Defendant?s form interrogatory 17.1; order imposing monetary sanctions of $1,710.
2. Order compelling Plaintiff to serve further responses to the Defendant?s request for admission; order imposing monetary sanctions of $1,710.
CHRONOLOGY:
Discovery Served: January 8, 2016
Responses Served: February 23, 2016
Motions Served: April 13, 2016 (Timely)
DISCUSSION :
This case arises from the Plaintiff?s claim that she suffered personal injuries when she slipped and fell on a spill on the Defendant?s premises. Trial is set for December 12, 2016.
The court?s calendar system indicates that a motion for summary judgment is set. However, a review of the Court reveals that no party filed a motion for summary judgment. Further, no party filed any opposition or reply papers to any motion for summary judgment. Since no motion was filed, the Court will take the motion for summary judgment off calendar.
The Defendant has filed two motions to seek further responses to its form interrogatory 17.1 and request for admission 36. The Defendant seeks relief under CCP sections 2030.300 and and 2033.290. These sections authorize the Court to order a party to serve a further response when the party?s response is evasive.
Both of these motions arise from the Plaintiff?s response to request for admission 36 because one motion requests a further response to request for admission 36 and the other seeks a further response to form interrogatory 17.1, which seeks facts regarding any response to a request for admission that were not an unqualified admission.
In request for admission 36, the Defendant requested that the Plaintiff admit that she did not observe any of the Defendant?s employees drop any substance on the floor prior to the subject incident in the area where she fell. The Plaintiff responded:
?Admit Plaintiff had no notice of the Defendant?s negligence?.
The Plaintiff?s response does not address the Defendant?s request for admission because the Defendant did not request the Plaintiff to admit that she had no notice of negligence. Instead, the Defendant?s request for admission sought an admission on whether the Plaintiff had observed an employee drop any substance on the floor. Since the Plaintiff did not serve a response that admitted or denied that she had seen an employee drop any substance on the floor, the Plaintiff?s response is evasive.
In her opposition, the Plaintiff argues that she ?unequivocally admitted everything requested and more?. This is not correct. The Plaintiff did not admit that she had not seen an employee drop any substance on the floor. Instead, the Plaintiff admitted that she had no notice of the Defendant?s negligence, which is not responsive to the text of request for admission 36. The Defendant sought to determine whether the Plaintiff was a percipient witness to conduct that is the Plaintiff?s theory, i.e., she slipped and fell on a substance that had been dropped by the Defendant?s employees. The Plaintiff did not admit that she had not seen anything dropped. Instead, she evaded this request by serving a response that she had no ?notice? of negligence. It cannot be determined with precision from her response what she may or may not have seen. Since the Plaintiff evaded the Defendant?s request, she should be compelled to serve further responses to request for admission 36 and form interrogatory 17.1.
The Plaintiff?s attorney argues that this request for admission must be intended to seek information regarding the Defendant?s defense of contributory negligence and he was drafting a response that addresses that defense. However, there is no legal authority allowing a party to serve a response based on the party?s speculation as to the intent of opposing counsel. Instead, the discovery procedures require only that the responding party serve a response to the actual text of the written discovery.
An analogous circumstance would be if the Defendant had asked a similar question at trial, i.e., ?Did you see an employee drop any substance on the floor??. If the Plaintiff had responded that she had no notice of any negligence, this response would be considered non-responsive and she would be directed to answer the question. Similarly, the Plaintiff?s response to request for admission 36 does not address the actual text of the Defendant?s request for admission.
Therefore, the Court will grant the Defendant?s motions and order the Plaintiff to serve further responses.
The Defendant requested that the Court impose monetary sanctions on the Plaintiff. Since the Plaintiff unsuccessfully opposed the Defendant?s motion, and caused the Defendant to incur unnecessary attorney?s fees and costs by serving an evasive response, there are grounds to impose monetary sanctions on the Plaintiff under CCP sections 2030.300 and 2033.290.
The Defendant?s attorney, Clifford Clancey, states in his declarations that he expects to spend a total of 13 hours on the two motions, that his rate is $300 per hour, and that the filing fee was $60 for each motion. A more reasonable amount of time to spend on the two motions is a total of 6 hours because the scope of the motions is small, i.e., one request for admission. This six hours can be apportioned equally to both motions. Further, a reasonable rate to bill for standard discovery motions is $250 per hour.
Accordingly, the amount of monetary sanctions is $810 per motion (3 hours at $250 per hour plus $60 filing fee).
RULING:
1. Order Plaintiff to serve further responses to the Defendant?s request for admission 36
: Impose monetary sanctions in the sum of $810.00.
2. Order Plaintiff to serve further response to Defendant?s request for admission 17.1 with regards to request for admission 36
: Impose monetary sanctions in the sum of $810.00.
Case Number: BC581489??? Hearing Date: May 20, 2016??? Dept: A
Dieckmann v Staebler
DEMURRER & FOUR MOTIONS TO COMPEL FURTHER RESPONSES
Calendar: 5
Case No: BC581489
Date: 5/20/16
MP: Defendants, Ronald Staebler and Jacqueline Staebler
RP: Plaintiffs, Earl Dieckman and Sirarpie Diratsouian
RELIEF REQUESTED:
1. Demurrer to first, second, third, fourth, and fifth causes of action in First Amended Complaint..
2. Strike sixteen portions from First Amended Complaint.
3. Order compelling Plaintiffs, Earl Drieckman and Sirarpie Diratsouian, to serve further responses to the Defendants? form interrogatories; order imposing monetary sanctions of $1,820.
4. Order compelling Plaintiff, Sirarpie Diratsouian, to serve further responses to the Defendants? requests for production; order imposing monetary sanctions of $1,820.
5. Order compelling Plaintiff, Earl Drieckman, to serve further responses to the Defendants? requests for admission; order imposing monetary sanctions of $1,820.
6. Order compelling Plaintiff, Sirarpie Diratsouian, to serve further responses to the Defendants? requests for admission; order imposing monetary sanctions of $1,820.
CHRONOLOGY:
Discovery Served: November 3, 2015
Responses Served: December 4, 2015
Motions Served: March 24, 2016 (Timely based on prior filing)
DISCUSSION:
This case arises from the Plaintiffs? claim that they suffered personal injuries when they were assaulted and battered by other tenants at the property they were renting from the Defendants.
This hearing concerns the following motions:
1) the Defendants? demurrer to the First Amended Complaint;
2) the Defendants? motion to strike portions from the First Amended Complaint; and
3) the Defendants? four motions to seek further responses to their written discovery.
1. Defendants? Demurrer and Motion to Strike
The Defendants argue that the causes of action lack sufficient facts and are uncertain. On May 9, 2016, the Plaintiffs filed a ?joint opposition? to state that after they discussed the issues in the Defendants? papers, they have elected to file a Second Amended Complaint. The Plaintiffs seek to amend their pleadings under CCP section 472. Section 472 authorizes a party to amend the complaint once without leave of Court. The Plaintiffs have used their right to amend the complaint when they filed their First Amended Complaint on March 24, 2016 without leave of Court. Accordingly, the Plaintiffs may not use CCP section 472 an additional time to amend their pleading.
The Plaintiffs are implicitly admitting that their causes of action are defective by stating that they will file a Second Amended Complaint to amend their causes of action. Therefore, the Court will sustain the Defendants? demurrers to each cause of action and grant the Plaintiffs? leave to amend. Since this will make moot the Defendants? motion to strike numerous portions of the pleadings, the Court will take the motion to strike off calendar.
It is worth noting that the Defendants incorrectly argue that the third cause of action for negligent infliction of emotional distress is not a recognized cause of action. The Defendants may review Thing v. La Chusa (1989) 48 Cal. 3d 644, in which the California Supreme Court expressly recognized a negligence claim to recover emotional distress. A cursory review of the LEXIS Shepard?s summary review numerous legal decisions, legal articles, and treatises that discuss the legal holdings in Thing v. La Chusa. The phrase ?negligent infliction of emotional distress? is a recognized method for identifying a negligence claim to recognize emotional distress and a cursory review of case law, legal authorities, secondary sources, legal journals, and law review articles reveals that negligent infliction of emotional distress or ?NIED? is in common use. See e.g., Keys v. Alta Bates Summit Medical Center (2015) 235 Cal. App. 4th 484, 488 (discussing a NIED claim?s requirements). When the Supreme Court uses unusual phrases like ?in the ballpark? or ?NIED? they seem to fall into popular usage.
The Defendants even cite to a case in which the Court noted that the phrase is in common use. Lawson v. Management Activities (1999) 69 Cal. App. 4th 652, 656 (noting that courts commonly use the acronym “NIED” for “negligent infliction of emotional distress”). The Court merely emphasized that this is a cause of action for negligence and not a separate species of tort.
Accordingly, there are no grounds for demurrer based on the Plaintiffs? use of the phrase ?negligent infliction of emotional distress?. The Plaintiffs? third cause of action is a recognized claim for negligence that seeks emotional distress. The fact that the Plaintiffs used the label, negligent infliction of emotional distress, which is a label commonly used in legal decisions and throughout the legal community, is not grounds to sustain a demurrer. Since the Defendants do not address the actual allegations in the cause of action, they do not show any basis supporting demurrer to this claim.
However, as noted above, the Plaintiffs have agreed to file a Second Amended Complaint. This discussion is offered so that if the Defendants decide to file another demurrer, they will focus on the allegations in the pleadings and not the nomenclature for the causes of action.
2. Motion to Compel Further Responses to Form Interrogatories
The Defendants seek relief under CCP section 2030.300. The Defendants seek a further response to form interrogatory 17.1, which seeks information on responses to requests for admission. The interrogatory has four subparts. The fourth subpart requests the responding party to identify all documents that support the request. The Plaintiffs served a response in which they cited to CCP section 2030.230 and stated that the documents may be examined at the law offices of Plaintiffs? counsel. However, section 2030.230 requires the responding party to specify the writings from which the answer may be derived or ascertained. Section 2030.230 requires this specification to be in sufficient detail to permit the propounding party to locate and to identify, as readily as the responding party can, the documents. The Plaintiffs? response does not specify the documents at all.
Accordingly, the Court will order the Plaintiffs to serve a further response to form interrogatory 17.1 that specifies the documents.
3. Motion to Compel Further Responses to Requests for Production
The Defendants seek relief under CCP section 2031.310. The Defendants seek further responses to requests for production 1 to 11. Under CCP section 2031.310, the motion shall set forth specific facts showing good cause justifying the production for inspection of any document described in the request for production or deposition notice. In law and motion practice, factual evidence is supplied to the court by way of declarations. Calcor Space Facility v. Superior Court (1997) 53 Cal. App. 4th 216, 224 (rejecting facts supporting the production of documents that were in a separate statement because the document was not verified and did not constitute evidence). In Calcor, the Court of Appeal issued a writ of mandate issue directing the trial court to vacate its order compelling the defendant to produce records because the plaintiff had failed to provide specific facts showing good cause for their production.
The same issue exists here. The declaration of the Defendants? attorney, Jonathan Ross, does not include any specific facts showing good cause for the inspection of the documents sought in the requests for production. Mr. Ross does not discuss the requests for production or explain, with specific facts, the need for the documents sought in each request for production. As noted above, the Court of Appeal in Calcor has found that the specific facts must be in a declaration and not in other documents.
Accordingly, the Court will deny the Defendants? motion to compel further responses to the requests for production.
4. Motion to Compel Further Responses to Requests for Admission (Earl Dieckman)
The Defendants seek relief under CCP section 2033.290. The Defendants seek further responses to requests for admission 4, 5, and 6 from the Plaintiff, Earl Dieckman. The Plaintiff served a response that includes the objection that the requests for admission are unclear, misleading, ambiguous, and confusing. Since the Defendants have filed a motion to compel further responses, the Plaintiff has the burden to justify each of their objections. Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221. Under CCP section 2023.010, making an unmeritorious objection fall within the definition of discovery misuse. The Plaintiff did not file any opposition papers and does not meet this burden.
Accordingly, the Court will order the Plaintiff, Earl Dieckman, to serve further responses without objections to requests for admission 4, 5, and 6.
4. Motion to Compel Further Responses to Requests for Admission (Sirarpie Diratsouian)
The Defendants seek further responses to requests for admission 1 to 9, 11 to 14, and 17 to 19 with regards to the Plaintiff, Sirarpie Diratsouian. The Plaintiff served a response that includes the objection that the requests for admission are unclear, misleading, ambiguous, and confusing. Since the Defendants have filed a motion to compel further responses, the Plaintiff has the burden to justify each of their objections. Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221. Under CCP section 2023.010, making an unmeritorious objection fall within the definition of discovery misuse. The Plaintiff did not file any opposition papers and does not meet this burden.
Accordingly, the Court will order the Plaintiff, Sirarpie Diratsouian, to serve further responses without objections to requests for admission 1 to 9, 11 to 14, and 17 to 19.
5. Monetary Sanctions
Finally, the Defendants requests a total of $5,460 in their three motions regarding the interrogatories and requests for admission. Under CCP sections 2030.300 and 2033.290, the Court may impose reasonable monetary sanctions on the Plaintiffs because they misused discovery.
The Defendants? attorney, Jonathan Ross, states that he expects to bill eleven hours at $160 per hour on each motion and that the filing fee is $60. This would be a total of 33 hours to prepare, draft, and appear on these three standard discovery motions. Based on the difficulty of the issues, a more reasonable amount of time to spend on each motion is four hours. Accordingly, the will amount of monetary sanctions for each motion is $700 (4 hours at $160 per hour + $60 filing fee).
RULING:
1. Sustain Defendants? demurrers to first, second, third, fourth, and fifth causes of action with leave to amend.
2. Take off calendar motion to strike numerous portions of pleadings.
3. Order Plaintiffs, Earl Drieckman and Sirarpie Diratsouian, to serve further responses to the Defendants? form interrogatories
: Impose monetary sanctions in the sum of $700.00.
4. Deny motion to compel Plaintiff, Sirarpie Diratsouian, to serve further responses to the Defendants? requests for production
5. Order Plaintiff, Earl Drieckman, to serve further responses to the Defendants? requests for admission
: Impose monetary sanctions in the sum of $700.00.
6. Order Plaintiff, Sirarpie Diratsouian, to serve further responses to the Defendants? requests for admission
: Impose monetary sanctions in the sum of $700.00.