Back

The Civil Discovery Act (Cal. Code Civ. Proc. 2030.300

March 30, 2022

California

,

United States of America

Issue

Can a party move to compel additional responses to discovery requests because the responses were factually devoid?

Conclusion

The Civil Discovery Act, codified at Cal. Civ. Code § 2016.010, et seq., provides specific remedies for evasive or incomplete discovery responses. (Saxena v. Goffney)

Specifically, Cal. Code Civ. Proc. § 2030.300(a) sets out that a party can move for an order compelling a further response to an interrogatory if any of the following apply: (1) an answer to a particular interrogatory is evasive or incomplete; (2) an exercise of the option to produce documents under Cal. Code Civ. Proc. § 2030.230 is unwarranted or the required specification of those documents is inadequate; or (3) an objection to an interrogatory is without merit or too general. (Cal. Code Civ. Proc. § 2030.300, Saxena v. Goffney, Cornell v. Berkeley Tennis Club, Bayramoglu v. Nationstar Mortg. LLC, Sinaiko v. Pacific Healthcare Consultants)

Similarly, Cal. Code Civ. Proc. § 2031.310(a) sets out that a party may move for an order compelling further response to a demand for inspection, copying, testing, or sampling if any of the following apply: (1) a statement of compliance with the demand is incomplete; (2) a representation of inability to comply is inadequate, incomplete, or evasive; or (3) an objection in the response is without merit or too general. The motion must set forth specific facts showing good cause justifying the discovery sought by the demand. (Cal. Code Civ. Proc. § 2031.310, Sinaiko v. Pacific Healthcare Consultants)

Additionally, Cal. Code Civ. Proc. § 2033.290 sets out that a party can move for an order compelling further responses to requests for admission if either or both of the following apply: (1) an answer to a particular request is evasive or incomplete; or, (2) an objection to a particular request is without merit or too general. (Cal. Code Civ. Proc. § 2033.290, St. Mary v. Superior Court)

Law

In Saxena v. Goffney, 71 Cal.Rptr.3d 469, 159 Cal.App.4th 316 (Cal. App. 2008), the California Court of Appeal for the Fourth District explained that the Civil Discovery Act, codified at Cal. Civ. Code § 2016.010, et seq., provides specific remedies for evasive or incomplete discovery responses. Specifically, Cal. Code Civ. Proc. § 2030.300(a) provides that a party propounding an interrogatory may file a motion to compel a further response (at 482-483):

We note Thoren "does not stand for the proposition that evidence may be excluded based on the mere failure to supplement or amend an interrogatory answer that was truthful when originally served." (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1325, 22 Cal.Rptr.3d 282); see also R & B Auto Center, Inc. v. Farmers Group, Inc. (2006) 140 Cal.App.4th 327, 356-357, 44 Cal.Rptr.3d 426. Nor does Thoren stand for the proposition that evidence may be excluded on the ground an interrogatory answer is evasive or incomplete. The Civil Discovery Act (§ 2016.010 et seq.) provides specific remedies for evasive or incomplete discovery responses. The imposition of an evidence sanction is not one of the remedies.

Section 2030.300, subdivision (a)(1), provides that the party propounding an interrogatory may file a motion to compel a further response where the answer received is "evasive or incomplete." And the failure timely to file a motion to compel a further response to an evasive or incomplete answer constitutes a waiver of any right to a further response. (§ 2030.300, subd. (c).) The prevailing party on a motion

[71 Cal.Rptr.3d 483]

to compel further responses is limited to an award of monetary sanctions. (§ 2030.300, subd. (d).) An evidence sanction is available only where the responding party "fails to obey an order compelling further response to interrogatories." (§ 2030.300, subd. (e).)

Cal. Code Civ. Proc. § 2030.300(a) provides that on receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if any of the following apply: (1) an answer to a particular interrogatory is evasive or incomplete; (2) an exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate; or (3) an objection to an interrogatory is without merit or too general. Cal. Code Civ. Proc. § 2030.300 also sets out the requirements to bring a motion to compel under subdivision (a) and possible sanctions related to such a motion to compel:

(a) On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply:

(1) An answer to a particular interrogatory is evasive or incomplete.

(2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate.

(3) An objection to an interrogatory is without merit or too general.

(b)

(1) A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040.

(2) In lieu of a separate statement required under the California Rules of Court, the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute.

(c) Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories.

(d) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.

(e) If a party then fails to obey an order compelling further response to interrogatories, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of, or in addition to, that sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).

In Cornell v. Berkeley Tennis Club, 227 Cal.Rptr.3d 286, 18 Cal.App.5th 908 (Cal. App. 2017), the California Court of Appeal for the First District explained that the plaintiff's responses provided a detailed recitation of the facts underlying her claims and were not factually devoid merely because she did not give further details about her condition. The defendant's failure to ask more pointed and specific questions, which they could have sought to do through a motion to compel a further answer, did not establish an absence of evidence (at 933-935):

Finally, the Club relied on Cornell's allegedly "factually devoid responses" to four interrogatories that it claims fairly requested evidence that her obesity has a physiological cause. The responses on which the Club relies were to form employment interrogatories requesting that Cornell (1) "identify each characteristic (for example, gender, race, age, etc.)" and

[227 Cal.Rptr.3d 306]

"state all facts" on which she based her discrimination claim; (2) "identify each characteristic (for example, gender, race, age, etc.)" and "state all facts" on which she based her harassment claim; (3) "state all facts" on which she based her claims of wrongful discharge in violation of public policy; and (4) "[n]ame and describe each disability alleged." In response to the first interrogatory, Cornell identified the characteristic on which she based her claims as "[d]isability—obesity" and gave a detailed, four-page recitation of the Club's allegedly unlawful behavior. She incorporated that response in her responses to the second and third interrogatories. Finally, she responded "[o]besity" to the fourth interrogatory. She later submitted amended responses that described in more detail the facts underlying her harassment and wrongful-discharge claims but continued to state her disability is "obesity."

[18 Cal.App.5th 934]

"If plaintiffs respond to comprehensive interrogatories seeking all known facts with boilerplate answers that restate their allegations, or simply provide laundry lists of people and/or documents, the burden of production will almost certainly be shifted to them once defendants move for summary judgment and properly present plaintiffs' factually devoid discovery responses." (Andrews, supra, 138 Cal.App.4th at p. 107, 41 Cal.Rptr.3d 229.) In Andrews, the defendant "propounded a series of special interrogatories which called for all facts regarding [the injured plaintiff's] exposure to asbestos from [the defendant's] products." (Id. at pp. 99, 104, 41 Cal.Rptr.3d 229.) In response, the plaintiffs stated that the injured plaintiff had been exposed to the defendant's products " ‘during his working career’ " and listed all his jobsite locations, duties, and dates of employment. (Id. at p. 104, 41 Cal.Rptr.3d 229.) The plaintiffs also stated " ‘that they ha[d] no further information responsive’ " to the interrogatories. (Id. at p. 105, 41 Cal.Rptr.3d 229.) Andrews concluded that the responses constituted "little more than general allegations against [the defendant] and [did] not state specific facts showing that [the injured plaintiff] was actually exposed to asbestos-containing material from [the defendant's] products" and that the defendant had therefore carried its initial burden in moving for summary judgment. (Id. at pp. 104, 107, 41 Cal.Rptr.3d 229.)

Cornell's responses to the first three interrogatories do not demonstrate that she lacked evidence to establish that her obesity has a physiological cause. The requests that she "identify each characteristic (for example, gender, race, age, etc.)" and "state all facts" on which her claims were based arguably did not call for more than a brief identification of her claimed disability. Her responses to these interrogatories, which otherwise provided a detailed recitation of the facts underlying her claims, are not "factually devoid" merely because she did not give further details about her condition. (Compare Andrews, supra , 138 Cal.App.4th at p. 104, 41 Cal.Rptr.3d 229.) Since the Club well knew that a physiological cause is required under Cassista , it could have propounded a follow-up interrogatory or moved to compel a further answer.

The fourth interrogatory, asking Cornell to "[n]ame and describe each disability alleged," arguably called for a more detailed description of Cornell's obesity and came close to requiring the identification of any physiological cause. Again, however, the Club never expressly asked about such a cause or otherwise referred to Cassista 's requirements, and the Club's "failure to ask more pointed and specific questions does not establish an absence of evidence." (Cassady v. Morgan, Lewis & Bockius LLP (2006) 145 Cal.App.4th 220, 244, 51 Cal.Rptr.3d 527.) In addition, although

[227 Cal.Rptr.3d 307]

Cornell responded that her disability was "[o]besity" without providing any further details, she also objected to the interrogatory on a number of grounds, including that it called for expert opinion. The Club could have sought to compel a further answer, which would have squarely raised Cassista, but the trial court was never asked to consider whether Cornell's responses or

[18 Cal.App.5th 935]

objections to any of the four interrogatories were sound. We are left with a record that was never fully fleshed out during discovery through more specific interrogatories or depositions of all three doctors who told Cornell her obesity is genetic.

Therefore, we conclude that the Club did not meet its initial burden by pointing to Cornell's deposition, Dr. Pierre's deposition, or the interrogatory responses. As a result, the trial court erred by granting summary adjudication of Cornell's disability-based FEHA claims on the ground that evidence of a physiological cause for her obesity was lacking. Accordingly, we turn to consider whether summary adjudication of those claims was nevertheless proper based on their other elements.

In Bayramoglu v. Nationstar Mortg. LLC, 51 Cal.App.5th 726, 265 Cal.Rptr.3d 453 (Cal. App. 2020), the plaintiffs responded to relevant special interrogatories by relying on Cal. Code Civ. Proc. § 2030.230 to produce documents in response to the interrogatories. The California Court of Appeal for the Third District held that the trial court wrongly found that the plaintiff's discovery responses were factually devoid. A plaintiff's factually devoid discovery responses may be used to shift the burden of production onto the plaintiff when the logical inference is that the plaintiff possesses no facts to support his or her claims; however, the Court could not infer an absence of facts merely because the plaintiffs relied on section Cal. Code Civ. Proc. § 2030.230. The Court explained that if the defendant believed the plaintiff's exercise of the option to produce documents under Cal. Code Civ. Proc. § 2030.230 was unwarranted, the proper remedy was for the defendants to move for an order compelling further responses pursuant to Cal. Code Civ. Proc. § 2030.300(a)(2) (at 732-734):

The relevant special interrogatories here, again, asked plaintiffs to state "all facts supporting" their causes of action for breach of contract, breach of the implied covenant of good faith and fair dealing, and violation of California's Unfair Competition Law. And in response to each, plaintiffs attempted to rely on section 2030.230, which provides: "If the answer to an interrogatory would necessitate the preparation or the making of a compilation, abstract, audit, or summary of or from the documents of the party to whom the interrogatory is directed, and if the burden or expense of preparing or making it would be substantially the same for the party propounding the interrogatory as for the responding party, it is a sufficient answer to that interrogatory to refer to this section and to specify the writings from which the answer may be derived or ascertained."

[51 Cal.App.5th 733]

Plaintiffs, believing they were abiding with this statute, began each of their responses by stating: "Pursuant to Cal. Code of Civ. Proc. Section 2030.230, Plaintiffs respond as follows: A compilation, abstract, audit or summary of the responding party's records is necessary in order to fully and completely answer this interrogatory. No such compilation, abstract, audit or summary presently exists, and the burden or expense of preparing it would be substantially the same for the interrogating party as for the responding party." Plaintiffs then, in each of their responses, told Nationstar that the answer to the interrogatory could be found in certain documents they identified, including, for example, a report from plaintiffs’ expert that purported to summarize Nationstar's conduct and explain how it "accord[ed] with standard industry practices."3

The trial court, however, found these responses inadequate. Because it believed "[plaintiffs] certainly should be able to state the facts upon which these claims are based," it declined to consider the various documents plaintiffs had cited and found their responses "factually devoid" as a result. And because it deemed their responses factually devoid, it found Nationstar met its initial burden on summary judgment by showing plaintiffs did not possess and could not reasonably obtain needed evidence to support their claims. (See Collin v. CalPortland Co. (2014) 228 Cal.App.4th 582, 587-588, 176 Cal.Rptr.3d 279 [a defendant may meet its initial burden on

[265 Cal.Rptr.3d 459]

summary judgment by showing, "through factually devoid discovery responses[,] that the plaintiff does not possess and cannot reasonably obtain needed evidence"].)

We find the court erred in doing so. Even assuming plaintiffs wrongly relied on section 2030.230, their mistaken reliance on that statute did not, in itself, show they lacked the facts necessary to support their claim. A plaintiff's "factually devoid" discovery responses may be used to shift the burden of production onto the plaintiff when the "logical inference" is that the plaintiff possesses no facts to support his or her claims. (See Gaggero v. Yura (2003) 108 Cal.App.4th 884, 892, 134 Cal.Rptr.2d 313 (Gaggero).) But we cannot infer an absence of facts merely because plaintiffs, relying on section 2030.230, told Nationstar that it could find the necessary facts in

[51 Cal.App.5th 734]

certain specified documents. And that is true, we find, even if plaintiffs’ reliance on section 2030.230 was misplaced. A simple example emphasizes the point. Suppose a defendant asked for all facts showing a plaintiff owned a house. And suppose, in response, the plaintiff cited to section 2030.230 and then told the defendant to see the attached grant deed and title history. The defendant might find the style of the plaintiff's response improper and a misapplication of section 2030.230, but could not, without first considering the referenced documents, say the "logical inference" is that the plaintiff possesses no facts to support his or her claim to the house. (See Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83, 81 Cal.Rptr.2d 360 [courts should not find a party's responses factually devoid "without stringent review of the direct, circumstantial and inferential evidence"].) So too here.

[...]

That said, we appreciate that Nationstar might have believed that plaintiffs improperly invoked section 2030.230 in their responses. But to the extent plaintiffs’ "exercise of the option to produce documents under Section 2030.230 [wa]s unwarranted," section 2030.300 describes what Nationstar could have done: move for an order compelling further responses. (§ 2030.300, subd. (a)(2) ["the propounding party may move for an order compelling a further response if the propounding party deems ... [a]n exercise of the option to produce documents under Section 2030.230 is unwarranted"].) Having declined to pursue

[265 Cal.Rptr.3d 460]

that remedy, however, Nationstar could not use plaintiffs’ misplaced reliance on section 2030.230 to satisfy its own burden of production on its motion for summary judgment.

In Sinaiko v. Pacific Healthcare Consultants, 55 Cal.Rptr.3d 751, 148 Cal.App.4th 390 (Cal. App. 2007), the California Court of Appeal for the Second District explained that if a propounding party is not satisfied with the response served by a responding party, the propounding party may move the court to compel further responses pursuant to Cal. Code Civ. Proc. § 2030.300 for interrogatories, or pursuant to Cal. Code Civ. Proc. § 2031.310 for inspection demands. The propounding party must demonstrate that the responses were incomplete, inadequate, or evasive, or that the responding party asserted objections that were either without merit or too general. Additionally, a party moving to compel further responses to an inspection demand must establish good cause justifying the discovery sought by the inspection demand (at 758-759):

Second, if a propounding party is not satisfied with the response served by a responding party, the propounding party

[55 Cal.Rptr.3d 759]

may move the court to compel further responses. (§§ 2030.3009 [interrogatories]; 2031.310 [inspection demands].) The propounding party must demonstrate that the responses were incomplete, inadequate or evasive, or that the responding party asserted objections that are either without merit or too general. (§§ 2030.300, subd. (a)(1)-(3); 2031.310, subd. (a)(1)-(3).) The propounding party must bring its motion to compel further responses within 45 days of the service of the response (§§ 2030.300, subd. (c); § 2031.310, subd. (c)), and must demonstrate that it complied *with its obligation to "meet and confer." (§§ 2016.040; 2030.300, subd. (b); 2031.310, subd. (b)(2).) In addition, a party moving to compel further responses to an inspection demand must establish "good cause justifying the discovery sought by the inspection demand." (§ 2031.310, subd. (b)(1).)

Cal. Code Civ. Proc. § 2031.310(a) provides that on receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling a further response to the demand if any of the following apply: (1) a statement of compliance with the demand is incomplete; (2) a representation of inability to comply is inadequate, incomplete, or evasive; or (3) an objection in the response is without merit or too general. The motion must set forth specific facts showing good cause justifying the discovery sought by the demand. Cal. Code Civ. Proc. § 2031.310 also sets out the requirements to bring the motion to compel under subdivision (a), guidelines as to the discovery of electronically stored information that is not reasonably accessible, and possible sanctions related to a motion to compel under subdivision (a):

(a) On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply:

(1) A statement of compliance with the demand is incomplete.

(2) A representation of inability to comply is inadequate, incomplete, or evasive.

(3) An objection in the response is without merit or too general.

(b) A motion under subdivision (a) shall comply with each of the following:

(1) The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand.

(2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040.

(3) In lieu of a separate statement required under the California Rules of Court, the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute.

(c) Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand.

(d) In a motion under subdivision (a) relating to the production of electronically stored information, the party or affected person objecting to or opposing the production, inspection, copying, testing, or sampling of electronically stored information on the basis that the information is from a source that is not reasonably accessible because of the undue burden or expense shall bear the burden of demonstrating that the information is from a source that is not reasonably accessible because of undue burden or expense.

(e) If the party or affected person from whom discovery of electronically stored information is sought establishes that the information is from a source that is not reasonably accessible because of the undue burden or expense, the court may nonetheless order discovery if the demanding party shows good cause, subject to any limitations imposed under subdivision (g).

(f) If the court finds good cause for the production of electronically stored information from a source that is not reasonably accessible, the court may set conditions for the discovery of the electronically stored information, including allocation of the expense of discovery.

(g) The court shall limit the frequency or extent of discovery of electronically stored information, even from a source that is reasonably accessible, if the court determines that any of the following conditions exists:

(1) It is possible to obtain the information from some other source that is more convenient, less burdensome, or less expensive.

(2) The discovery sought is unreasonably cumulative or duplicative.

(3) The party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought.

(4) The likely burden or expense of the proposed discovery outweighs the likely benefit, taking into account the amount in controversy, the resources of the parties, the importance of the issues in the litigation, and the importance of the requested discovery in resolving the issues.

(h) Except as provided in subdivision (j), the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.

(i) Except as provided in subdivision (j), if a party fails to obey an order compelling further response, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of, or in addition to, that sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).

(j)

(1) Notwithstanding subdivisions (h) and (i), absent exceptional circumstances, the court shall not impose sanctions on a party or any attorney of a party for failure to provide electronically stored information that has been lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system.

(2) This subdivision shall not be construed to alter any obligation to preserve discoverable information.

In St. Mary v. Superior Court, 223 Cal.App.4th 762, 167 Cal.Rptr.3d 517 (Cal. App. 2014), the California Court of Appeal for the Sixth District explained that if the propounding party believes the responses to requests for admission are deficient or any objections to the requests for admission are not well taken, they can make a motion to compel further responses under Cal. Code Civ. Proc. § 2033.290. Such a motion to compel further responses may be made within 45 days of service of the responses if the propounding party asserts that the particular answer or answers are evasive or incomplete or the objection or objections are without merit or too general (at 776-777):

If the propounding party believes that the responses to RFAs are deficient in some respect or that any objections thereto are not well taken, he or she may make a motion to compel further responses under section 2033.290. (See Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 618, 636, 65 Cal.Rptr.2d 532; Tobin, supra, 3 Cal.App.4th at p. 829, fn. 25, 4 Cal.Rptr.2d 736.) Section 2033.290 provides that such a motion to compel further responses may be made within 45 days of service of the responses (§ 2033.290, subd. (c)) if the propounding party asserts that the particular answer or answers are “evasive or incomplete” or the objection or objections are “without merit or too general” (id. subd. (a)). The court is required to impose sanctions upon the unsuccessful party or attorney for the party in connection with a motion to compel further responses, unless it finds that the “one subject to sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Id. subd. (d).) And if the responding party disobeys an order compelling further responses made under section 2033.290, the court is empowered to “order that the

[223 Cal.App.4th 777]

matters involved in the requests be deemed admitted” and/or impose monetary sanctions. (Id. subd. (e).) 19

Cal. Code Civ. Proc. § 2033.290(a) provides that on receipt of a response to requests for admissions, the party requesting admissions can move for an order compelling a further response if either or both of the following apply: (1) an answer to a particular request is evasive or incomplete; or, (2) an objection to a particular request is without merit or too general. Cal. Code Civ. Proc. § 2033.290 also sets out the requirements to bring the motion to compel under subdivision (a) and possible sanctions related to such a motion to compel:

(a) On receipt of a response to requests for admissions, the party requesting admissions may move for an order compelling a further response if that party deems that either or both of the following apply:

(1) An answer to a particular request is evasive or incomplete.

(2) An objection to a particular request is without merit or too general.

(b)

(1) A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040.

(2) In lieu of a separate statement required under the California Rules of Court, the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute.

(c) Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or any specific later date to which the requesting party and the responding party have agreed in writing, the requesting party waives any right to compel further response to the requests for admission.

(d) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response, unless it finds that the one subject to the sanction acted with substantial justifica

Alexsei publishing date:
140