Judge Wesley L. Hsu, Case Number: 22STCV04999, Date: 2023-04-26 Tentative Ruling

DEFENDANT TOYOTA MATERIAL HANDLING, INC.’S MOTIONS TO COMPEL FURTHER DISCOVERY RESPNSES

RESPONDING PARTY(S): Plaintiffs Aniceto Jimenez Vidal, Jr. and Pauline Moreno Vidal

TENTATIVE RULING: (1) Motion to Compel Plaintiff Aniceto Jimenez Vidal, Jr.’s Further Responses to Special Interrogatories, Set One is GRANTED as to Special Interrogatory Nos. 9, 30, 31, 32, 33, 35, 36, 37, 38, and 39. The motion is DENIED in all other respects.

(2) Motion to Compel Plaintiff Aniceto Jimenez Vidal, Jr.’s Further Response to Requests for Admissions, Set One is DENIED.

(3) Motion to Compel Plaintiff Aniceto Jimenez Vidal, Jr.’s Further Response to Form Interrogatories, Set One is DENIED.

(4) Motion to Compel Plaintiff Pauline Vidal’s Further Response to Requests for Production, Set One is GRANTED as to Request Numbers 4-5 and 10-11, and DENIED in all other respects.

(5) Motion to Compel Plaintiff Aniceto Jimenez Vidal, Jr.’s Further Response to Requests for Production, Set One is DENIED as untimely.

(6) Motion to Compel Plaintiff Pauline Vidal’s Further Responses to Special Interrogatories, Set One is DENIED as untimely.[1]

On February 9, 2022, Plaintiffs Aniceto Jimenez Vidal, Jr. (“Aniceto”) and Pauline Moreno Vidal (“Pauline”) (collectively, “Plaintiffs”) filed this action against Defendants GE Appliances, GE Appliances – Decatur, LLC, Haier US Appliance Solutions, Inc., and Toyota Material Handling, Inc. (“TMH”), and Does 1 to 40. Plaintiffs allege causes of action for negligence, negligent products liability, strict products liability, and loss of consortium. Plaintiffs allege that Aniceto was injured at work on April 10, 2020 in connection with a forklift. Plaintiffs allege that Aniceto was working at the time for non-party Integrated Distribution Services, Inc. dba Dart Logistic Services (“Dart”). Plaintiffs allege the forklift that injured Aniceto was defectively designed because it is electric and completely silent, and lacked rearview mirrors, sensors, alarms, lights, and other safety devices to alert the operator of pedestrians in the area to and alert bystanders or persons working in the area.

On July 5, 2022, Defendant TMH propounded its first set of written discovery requests to Plaintiffs.

Over the next few months, the parties met and conferred regarding alleged defects in the Plaintiffs’ responses to TMH’s written discovery requests and granted mutual extensions regarding deadlines for supplemental responses and for motions to compel further responses.

On December 16, 2022, Plaintiffs served verified supplemental responses to some but not all of the discovery requests at issue.

On January 6, 2023, TMH filed and served motions to compel further responses regarding Aniceto’s written discovery requests, i.e., Form Interrogatories, Set One, Special Interrogatories, Set One, Requests for Admissions, Set One, and Requests for Production, Set One.

On January 9, 2023, TMH filed motions to compel further responses regarding Pauline’s written discovery requests, i.e., Requests for Production, Set One, and Special Interrogatories, Set One.

The propounding party may bring a motion to compel further responses to a demand for production if the propounding party deems that production is deficient, incomplete, or contains meritless objections. (CCP § 2031.310(a).) The legal burden to justify refusing or failing to provide discovery lies with the objecting party. (Coy v. Superior Court (1962) 58 Cal.2d 210, 220).

The motion must be accompanied by a good-faith meet-and-confer declaration. CCP § 2031.310(b). “A determination of whether an attempt at informal resolution is adequate . . . involves the exercise of discretion.” (Stewart v. Colonial W. Agency (2001) 87 Cal.App.4th 1006, 1016). “The history of the litigation, the nature of the interaction between counsel, the nature of the issues, the type and scope of discovery requested, the prospects for success and other similar factors can be relevant. Judges have broad powers and responsibility to determine what measure and procedures are appropriate in varying circumstances.” (Id.)

Defendant TMH moves to compel Aniceto to provide further responses to TMH’s first set of Form and Special Interrogatories, and Requests for Admissions. TMH also moves to compel Pauline to provide further responses to TMH’s first set of Requests for Production of Documents and Special Interrogatories.

TMH served the original requests on Plaintiffs on July 5, 2022. Plaintiffs provided verified responses on August 22, 2022. Over the next few months, the parties met and conferred regarding Plaintiffs’ responses to TMH’s discovery requests and provided multiple extensions for Plaintiffs to provide supplemental responses and for TMH to move to compel further responses. The parties ultimately agreed for Plaintiffs to provide supplemental responses on December 16, 2022, and that TMH’s deadline to move to compel further responses for the discovery requests at issue was January 6, 2023. (Lavigne Decl., ¶¶ 3-14.)

Two of the six motions presently before the Court were not timely filed, namely the motion to compel Aniceto to provide further responses to Requests for Production, Set One, and the motion to compel Pauline to provide further responses to Special interrogatories, Set One. The mutually agreed upon deadline for filing these six motions to compel was January 6, 2023. (Lavigne Decl., ¶ 14, Ex. Y.) However, these two motions were filed on January 9, 2023, and are therefore untimely, (CCP §§ 2030.300(c), 2031.310(c); Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1409.) Accordingly, the Court will DENY TMH’s motion to compel Aniceto to provide further responses to Requests for Production, Set One, and TMH’s motion to compel Pauline to provide further responses to Special interrogatories, Set One on the basis that they were not timely filed.

Motion to Compel Further Responses to Special Interrogatories, Set One (Aniceto)

TMH seeks to compel further responses to Special Interrogatories Numbers 7-11, 13-15, 17, 30-39, 55, 58, and 60, but TMH’s separate statement only addresses Special Interrogatories Numbers 7-11, 30-39, and 55. TMH’s motion also addresses Special Interrogatories Numbers 19 and 21-29, but none of those are identified in the notice or addressed in the separate statement either. California Rules of Court, Rule 3.1345(a)(2) requires a separate statement for a motion to compel further responses to interrogatories. (CRC Rule 3.1345(a)(2).) Thus, the Court will only address those interrogatories addressed in TMH’s separate statemen.

TMH contends that Aniceto responded to nearly all of TMH’s special interrogatories with general, boilerplate objections that need to be removed. TMH also contends that Aniceto’s objections based on privilege are inadequate because they do not contain enough factual information regarding the merits of Aniceto’s privilege and work product objections. TMH further contends that Aniceto’s objections based on premature disclosure of expert opinion are not well-taken because Aniceto does not offer any facts to show how this privilege is applicable.

Regarding Special Interrogatories Numbers 7-11, TMH contends that Aniceto’s responses were improper in light of his boilerplate objections. As to Special Interrogatories Numbers 30-35, TMH argues that in addition to Aniceto’s boilerplate objections, it is also improper for him to plead ignorance. For Special Interrogatories Numbers 36-39, in addition to boilerplate objections, it is improper for Aniceto to refuse to respond based on his own failure to obtain information, such as inspecting the forklift.

In opposition, Aniceto argues that TMH’s declaration submitted in support of this motion fails to comply with the meet and confer requirements provided under Code of Civil Procedure section 2016.040. Aniceto then argues that his objections were not boilerplate, but were made in good faith. Aniceto further argues that his responses comply with Code of Civil Procedure section 2030.210 and are not evasive. Finally, Aniceto contends that TMH has failed to satisfy the requirements of Code of Civil Procedure section 2030.300 for a motion to compel further responses, which is sanctionable, but does not actually request the imposition of sanctions.

In reply, TMH contends that they met and conferred in good faith, that Aniceto’s objections need to be withdrawn, and that Aniceto needs to provide substantive responses without frivolous objections.

The Court finds that the parties adequately met and conferred before TMH brought this motion.

While TMH has shown what appear to be boilerplate objections, not all of them are improper. All that is required for an attorney-client privilege objection in response to an interrogatory is that the privilege is clearly asserted. (CCP § 2030.240(b).) Aniceto has done so here. The additional details TMH is referring to in its moving papers are for requests for production of documents under Code of Civil Procedure section 2031.240(c)(l), not special interrogatories.

Moreover, some of the requests are compound, conjunctive, or disjunctive in violation of Code of Civil Procedure section 2030.060. Special Interrogatory Number 9 is a verbose request that contains the disjunctive term “or” and the conjunctive term “and” that covers multiple subjects. Special Interrogatory Number 10 also suffers from the same problems since it is based on Special Interrogatory Number 9. Special Interrogatory Number 11 is also a verbose request using multiple instances of the disjunctive “or”. Furthermore, the Court agrees that some of these special interrogatories seek information that would fall within the domain of an expert witness, such as how the product should have been designed to better prevent the risk of injury to someone like Aniceto. (See CCP § 2034.210.) But, to the extent the requests do not implicate expert opinion, Aniceto needs to respond. Accordingly, the Court will GRANT TMH’s motion as to Special Interrogatory Number 9 and DENY Numbers 7-8, and 10-11.

The Court agrees that Aniceto’s responses claiming ignorance an inability to recall are improper per Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783. It should be noted that Aniceto did not claim an inability to recall in response Special Interrogatory Number 34 and did provide a substantive response. The Court does not find anything within Special Interrogatories Numbers 30-35 that is remotely vague, ambiguous, or overly broad. Thus, the Court will GRANT TMH’s motion as Special Interrogatory Numbers 30-33 and 35.

With respect to Special Interrogatory Numbers 36 and 38, the Court agrees that they implicate the domain of expert opinion, but to the extent they do not, Aniceto should provide a substantive response in place of the current responses which are evasive. For Numbers 37 and 39, Aniceto’s objections were not necessarily improper, but his responses are evasive as they do not respond to the substance of the requests. Accordingly, the Court will GRANT TMH’s motion with respect to Special Interrogatory Numbers 36-39.

For Special Interrogatory Number 55, the Court finds that Aniceto’s response is sufficient, as it addresses the substance of the request, despite the objections asserted. Thus, the Court will DENY TMH’s motion with respect to Special Interrogatory Number 55.

Considering the foregoing, the Court rejects Aniceto’s argument that TMH has failed to make the proper showing necessary for a motion to compel further responses.

Motion to Compel Further Responses to Requests for Admissions, Set One (Aniceto)

TMH contends it is entitled to further responses from Aniceto to TMH’s Requests for Admissions, Set One, Request Numbers 2-5, 10-13, and 26-29. TMH again contends that Aniceto has provided improper boilerplate objections that need to be removed and have the same defects with respect to privilege and expert opinion. TMH contends that such improper boilerplate objections require Aniceto to provide further responses to Request Numbers 2-5 and 10-13. TMH’s motion does not otherwise address Request Numbers 26-29, but they are addressed in the separate statement.

In opposition, Aniceto again argues that TMH’s motion fails to satisfy the meet and confer requirements of Code of Civil Procedure section 2016.040 and that Aniceto’s objections were made in good faith. Aniceto further argues that his responses to Request Numbers 2-5 and 10-13 comply with Code of Civil Procedure section 2033.220(c) and that TMH’s request for an offer of proof is improper. Aniceto again otherwise contends TMH has failed to make the required showing for a motion to compel further responses under Code of Civil Procedure section 2033.290(a) and (b).

The Court finds that the parties adequately met and conferred before TMH brought this motion.

The Court also finds again that not all of Aniceto’s objections are necessarily improper. All that is required for an attorney-client privilege in response to a request for admission is that the privilege is clearly asserted. (CCP § 2033.230(b).) Aniceto has done so here. The additional details TMH is referring to in its moving papers are for requests for production of documents under Code of Civil Procedure section 2031.240(c)(l). The Court also agrees that some of these requests seek information that would fall within the domain of an expert witness. (See CCP § 2034.210.)

As for Aniceto’s responses after the objections, the Court finds that Aniceto’s responses to Request Numbers 2-5 and 10-13 comply with Code of Civil Procedure section 2033.220(c). The Court does agree with Aniceto, however, that a motion to compel further responses to requests for admission does not necessarily entitle the moving party to “an offer of proof” as TMH has requested. The Court also agrees that Request Numbers 26-29 are problematically phrased in violation of Code of Civil Procedure sections 2033.060(f), which prohibits compound, conjunctive, and disjunctive requests for admission. Each of these discovery requests uses “and/or”, which renders the requests ambiguous and uncertain, as the subjects of reasonable instruction, training, or supervision are not necessarily the same thing. (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1291 [compound objections apply when the discovery request covers more than a single subject]).

The Court therefore will DENY TMH’s motion to compel further responses to Requests for Admissions, Set One.

Motion to Compel Further Responses to Form Interrogatories, Set One (Aniceto)

TMH seeks to compel further responses to Form Interrogatories, Set One, Interrogatory Number 17.1 as it pertains to Requests for Admissions Numbers 2-5, 10-13, and 26-29. TMH again contends that Aniceto has asserted improper boilerplate objections, which is particularly improper in response to Form Interrogatories which are prepared by the Judicial Council.

Aniceto reiterates arguments from his opposition to the motion to compel further responses to Requests for Admissions, Set One, namely that TMH’s motion fails to satisfy the meet and confer requirements of Code of Civil Procedure section 2016.040 and that Aniceto’s objections were made in good faith. Aniceto further argues that his responses to Form Interrogatory Number 17.1 as it pertains to Request Numbers 2-5, 10-13 and his supplemental responses as to Request Numbers 26-29 substantially comply with Code of Civil Procedure section 2030.210. Aniceto again otherwise contends TMH has failed to make the required showing for a motion to compel further responses under Code of Civil Procedure section 2033.290(a) and (b). Aniceto also argues that TMH’s issue regarding Aniceto’s statements of inability to admit Request Numbers 2-5 and 10-13 are not a legally recognized basis for a motion to compel.

In reply, TMH contends that they met and conferred in good faith, that Aniceto’s are not code-compliant, that Aniceto’s objections need to be withdrawn, and that Aniceto needs to provide code-compliant responses.

The Court finds that the parties adequately met and conferred before TMH brought this motion.

Regarding Aniceto’s objections, the Court again finds not all of Aniceto’s objections were improper for the reasons set forth above with respect to Requests for Admissions, Set One, even though this set involved a Judicial Council form. Considering that Form Interrogatory Number 17.1 is necessarily based on Requests for Admissions, Set One, any issues that those requests may have had would also arise here. Thus, the Court does not find it categorically improper for Aniceto to have raised those objections in response to Form Interrogatory Number 17.1. The Court also incorporates by reference its analysis from above for Requests for Admissions, Set One regarding the issues raised there.

The Court agrees that Aniceto bears the responsibility for conducting a reasonable investigation to respond to discovery requests. (See § 9. How to respond to discovery requests, O'Connor's California Practice * Civil Pretrial Ch. 7-A § 9 (2023 ed.).) However, it is unclear if he has not conducted a reasonable investigation. This action was filed only 14 months ago and no trial date is currently set. Aniceto’s responses to Form Interrogatory Number 17.1 indicate that he attempted to obtain discovery from TMH but to no avail. (Separate Statement, Form Interrogatory No. 17.1, Requests for Admissions Nos. 10-13, subd. (b), p. 5, ll. 2-6.) It appears there is room for additional discovery on these matters, so the Court declines to compel further responses on this basis.

Motion to Compel Further Responses to Requests for Production, Set One (Pauline)

TMH seeks to compel Pauline to provide further responses Requests for Production, Set One, Request Numbers 1, 3-6, 10-11, and 15. TMH contends that Pauline has asserted improper boilerplate objections that must be withdrawn. For Request Number 1, TMH contends that Pauline’s responded incompletely over boilerplate objections. TMH also contends that Pauline’s assertions of attorney-client privilege and attorney work product doctrine were improper because they failed to provide sufficient information to assess the privilege claims and that she failed to provide a factual showing regarding premature disclosure of expert opinion.

Regarding Request Numbers 3-4 and 6, TMH contends Pauline has no valid objection here and must respond. For Request Numbers 10-11, TMH contends that the documents requested are not work product and are not privileged. As to Request Numbers 5 and 15, TMH contends that Pauline’s boilerplate objections are not well taken and that her objections regarding documents related to her medical history are improper because they clearly relate to her medical consortium claim.

In opposition, Pauline argues that TMH’s declaration submitted in support of this motion fails to comply with the meet and confer requirements provided under Code of Civil Procedure section 2016.040. Pauline then argues that the motion fails to set forth specific facts showing good cause justifying the discovery sought by the demand. Pauline further argues that her objections were not boilerplate, but were made in good faith. Pauline further argues that her responses comply with Code of Civil Procedure section 2031.310. Finally, Pauline contends that TMH’s motion fails which constitutes a misuse of the discovery process and is sanctionable.

In reply, TMH contends that they met and conferred in good faith, that good cause exists to compel further responses, and that Pauline needs to withdraw her objections and provide code-compliant responses.

The Court finds that the parties adequately met and conferred before TMH brought this motion.

The Court finds that Pauline’s objection of overly broad is well taken for Request for Production Number 1. The wording of this request is extremely broad by asking Pauline to produce all documents that support her claim for loss of consortium. Pauline’s offer to produce any documents appears to have been a gesture of good will in an effort to compromise with TMH and narrow the scope of documents to be produced in response to this request.

Regarding Request Number 3, Pauline’s objections of lack of relevance and not reasonably calculated to lead to the discovery of admissible evidence are well taken. It is unclear how copies of birth certificates of the Plaintiffs’ children would in any way assist TMH in assessing Pauline’s claim for loss of consortium. The loss of consortium claim pertains to Pauline’s relationship with Aniceto, not her children. However, the Court takes issue with Pauline’s assertion of privacy followed by a claim that the documents do not exist. (Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal.App.4th 976, 991 n. 5 [ethically improper to assert a privilege over a document that does not exist].)

For Request Number 4, the Court agrees with TMH that Pauline’s objections are improper. There is nothing vague, ambiguous, or overly broad about this request. By asserting a claim for loss of consortium, Pauline has put her marital relationship with Aniceto within the realm of discoverable matters. Thus, documents evidencing whether Plaintiffs have ever been separated during their marriage are relevant. Additionally, it is improper for Pauline to assert attorney-client privilege and attorney work product doctrine but then claim the documents do not exist. (Bihun, supra, 13 Cal.App.4th at p. 991 n. 5.)

For Request Number 5, the Court agrees with TMH that Pauline’s objections are improper. Pauline put her marital relationship with Aniceto within the realm of discoverable matters by bringing a loss of consortium claim. Pauline specifically alleges having incurred damages of loss of “love, companionship, comfort, affection, society, sexual relations, and/or solace of her husband, Plaintiff ANICETO…” (Compl., ¶57.)

For Request Number 6, Pauline’s objections of lack of relevance and not reasonably calculated to lead to the discovery of admissible evidence are well taken. It is unclear how Pauline’s prior marriages, if any, have any bearing on her loss of consortium claim. However, the Court again takes issue with Pauline’s assertion of privacy and attorney-client privilege and attorney work product doctrine followed by a claim that the requested documents do not exist. (Bihun, supra, 13 Cal.App.4th at p. 991 n. 5.)

For Request Numbers 10 and 11, while the Court agrees that Pauline had a proper basis for asserting premature disclosure of expert opinion and attorney-client privilege and attorney work product doctrine, she did not comply with the requirements for asserting attorney-client privilege or attorney work product doctrine. Privilege objections in response to a document demand require the responding party to provide sufficient information for the propounding party to assess the privilege. (CCP § 2031.240(c).) Pauline did not provide any such information for TMH. Additionally, there is nothing vague, ambiguous, or overly broad about this request. Thus, to the extent that expert witness information and materials are not subject to disclosure, Pauline will have to produce all other responsive documents.

For Request Number 15, the Court finds that Pauline’s objections on the basis of lack of relevance and not reasonably calculated to lead to the discovery of admissible evidence are well taken. It is unclear how Pauline’s health insurance card, or lack thereof, has any bearing on her loss of consortium claim.

Accordingly, the Court will GRANT TMH’s motion as to Request Numbers 4-5 and 10-11, and will DENY in all other respects.

None of the parties have requested sanctions in connection with these discovery motions. Therefore, the Court will not award any.

(1) Motion to Compel Plaintiff Aniceto Jimenez Vidal, Jr.’s Further Responses to Special Interrogatories, Set One is GRANTED as to Special Interrogatory Nos. 9, 30, 31, 32, 33, 35, 36, 37, 38, and 39. The motion is DENIED in all other respects.

(2) Motion to Compel Plaintiff Aniceto Jimenez Vidal, Jr.’s Further Response to Requests for Admissions, Set One is DENIED.

(3) Motion to Compel Plaintiff Aniceto Jimenez Vidal, Jr.’s Further Response to Form Interrogatories, Set One is DENIED.

(4) Motion to Compel Plaintiff Pauline Vidal’s Further Response to Requests for Production, Set One is GRANTED as to Request Numbers 4-5 and 10-11, and DENIED in all other respects.

(5) Motion to Compel Plaintiff Aniceto Jimenez Vidal, Jr.’s Further Response to Requests for Production, Set One is DENIED as untimely.

(6) Motion to Compel Plaintiff Pauline Vidal’s Further Responses to Special Interrogatories, Set One is DENIED as untimely.

[1] Defendant Toyota Material Handling, Inc. also reserved two other motions to compel further responses for April 26, 2023, i.e., Reservation ID Nos. 707172309882 and 359125258932, but has not filed any motions in connection with those reservations.