Preview
1 LEE A. SHERMAN, Esq. (SBN 172198)
SARAH C. VARISCO, Esq. (SBN 320200)
2 CALLAHAN, THOMPSON, SHERMAN
& CAUDILL, LLP
3 2601 Main Street, Suite 800
Irvine, California 92614
4 Tel: (949) 261-2872
Fax: (949) 261-6060
5 Email: lsherman@ctsclaw.com 1/12/2021
svarisco@ctsclaw.com
6
Attorneys for Defendant,
7 XI FIN LIN, LISA LIN LIAO,
LIN LI, DA QING ZHENG, &
8 AMAZING WOK
9 SUPERIOR COURT OF CALIFORNIA
10 COUNTY OF SAN MATEO
11
RON EICHMAN Case No.: 20-CIV-02474
12
JUDGE: Hon. Nancy L. Fineman
13 DEPARTMENT: 4
Plaintiff, COMPLAINT DATE: 6/15/2020
14
vs. SEPARATE STATEMENT IN SUPPORT
15 OF DEFENDANT AMAZING WOK’S
XI FIN LIN, LISA LIN LIAO, LIN LI, DA MOTION TO COMPEL RESPONSES
16 QING ZHENG, AMAZING WOK; DOES 1 AND FURTHER RESPONSES TO
TO 20 SPECIAL INTERROGATORIES, SET
17 ONE
18 March 9, 2021
Defendant. Date: February 16, 2021
19 Time: 8:30 a.m.2:00 pm
Dept.: 4
20
[Filed concurrently with Motion to Compel
21 Further Responses; the Declaration of Sarah
C. Varisco and [Proposed] Order]
22
DISCOVERY CUT OFF: NONE
23 MOTION CUT OFF: NONE
MSC DATE: NONE
24 TRIAL DATE: NONE
25
26
27
28
-1-
DEFENDANT’S NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES AND FURTHER
RESPONSES TO SPECIAL INTERROGATORIES, SET ONE
1 Pursuant to California Rules of Court, Rule 3.1345, Defendant Amazing Wok hereby submits
2 the following Separate Statement setting forth Defendant’s special interrogatories, Plaintiff’s
3 responses, and any supplemental responses, and the factual and legal reasons in support of
4 Defendant’s motion to compel a further response.
5 Definitions
6 For the purposes of these interrogatories, DEFENDANT as used herein means the
7 Propounding Party, AMAZING WOK.
8 For the purposes of these interrogatories, COMPLAINT shall refer to the Complaint filed in
9 this matter on June 15, 2020 in the Superior Court of California, County of San Mateo, barring the
10 case number 20-CIV-02474.
11 For the purposes of these interrogatories, “YOU,” “YOUR,” or “PLAINTIFF,” means the
12 Ron Eichman, the person that is responding to this discovery request, and her agents, representatives,
13 and any other person acting on her behalf.
14 For the purposes of these interrogatories, “PERSON” or “PERSONS” means and includes
15 any individual, corporation, organization, association, partnership, limited partnership, firm, joint
16 venture, governmental body, agency, governing board, department, division, or any other entity.
17 For the purposes of these interrogatories, “IDENTIFY,” when used in reference to a
18 PERSON, means to state each PERSON’S name, home address, home telephone number, business
19 address, and business telephone number. “IDENTIFY,” when used in reference to a DOCUMENT,
20 means to state the title the DOCUMENT bears, to IDENTIFY the PERSON who authored the
21 DOCUMENT, and to describe the document with sufficient particularity to allow it to be requested
22 in a demand for production of documents.
23 Interrogatories
24 SPECIAL INTERROGATORY NO. 10:
25 If YOU contend that YOU have suffered any general damage as a result of the INCIDENT,
26 state with specificity all FACTS which support that contention. (For purposes of these
27 interrogatories “FACTS” shall mean information to support your contention, witnesses with
28 knowledge of the facts to support your contention and the identity of documents that support your
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DEFENDANT’S NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES AND FURTHER
RESPONSES TO SPECIAL INTERROGATORIES, SET ONE
1 contention.)
2 RESPONSE TO SPECIAL INTERROGATORY NO. 10:
3 Plaintiff went with his parents to the Amazing Wok to meet his sister and in laws, his sister
4 and his brother in law were already at the table in the restaurant, they were seated at the large circular
5 table in the middle of the restaurant. Plaintiff let his father and mother in through the front door,
6 they went to the right of the table, client ultimately went to the left side of the table where he slipped
7 on a puddle of clear liquid in the common area of the restaurant causing him to slip and fall down
8 due to a dangerous condition. Directly after the incident, Plaintiff’s sister told Plaintiff that she
9 witnessed a waitress spill some glasses of ice water on the floor two minutes or so before and had
10 not put anything down to clean it up. There were no warning signs, no signage placed alerting of a
11 spill, and there was no staff present to alert the client to the hazardous material on the floor. After
12 the fall, Plaintiff had to be helped up by restaurant employees, then restaurant employees put down
13 towels to absorb the liquid Plaintiff slipped on. Plaintiff was able to eat his meal but he was in pain,
14 his knee was bothering him tremendously. Later that evening Plaintiff’s pain became unbearable,
15 and he proceeded to the emergency room where he was evaluated, given pain medication, crutches,
16 and scheduled for an appointment with an orthopedic specialist, where they diagnosed him with a
17 medial meniscus tear. Plaintiff required surgery and months of healing, which gravely impacted his
18 mobility, health, and his overall well-being. As a result of this incident, Plaintiff still suffers from
19 residual pain, residual nerve pain, stiffness, difficulty standing for long periods, difficulty walking.
20 In addition, he has experienced diminished strength, agility, vitality, and mental anguish.
21 SUPPLEMENTAL RESPONSE TO SPECIAL INTERROGATORY NO. 10:
22 Plaintiff went with his parents, Paul Eugene Eichman and Daisy Eichman to the Amazing
23 Wok to meet his sister and in laws, his sister, Laura Goodwin, and his brother in, Dennis Goodwin,
24 law were already at the table in the restaurant, they were seated at the large circular table in the
25 middle of the restaurant. Plaintiff let his father and mother in through the front door, they went to
26 the right of the table, client ultimately went to the left side of the table where he slipped on a puddle
27 of clear liquid in the common area of the restaurant causing him to slip and fall down due to a
28 dangerous condition. Directly after the incident, Plaintiff’s sister told Plaintiff that she witnessed a
-3-
DEFENDANT’S NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES AND FURTHER
RESPONSES TO SPECIAL INTERROGATORIES, SET ONE
1 waitress spill some glasses of ice water on the floor two minutes or so before and had not put
2 anything down to clean it up. There were no warning signs, no signage placed alerting of a spill,
3 and there was no staff present to alert the client to the hazardous material on the floor. After the fall,
4 Plaintiff had to be helped up by restaurant employees, then restaurant employees put down towels
5 to absorb the liquid Plaintiff slipped on. Plaintiff was able to eat his meal but he was in pain, his
6 knee was bothering him tremendously. Later that evening Plaintiff’s pain became unbearable, and
7 he proceeded to the emergency room where he was evaluated, given pain medication, crutches, and
8 scheduled for an appointment with an orthopedic specialist, where they diagnosed him with a medial
9 meniscus tear. Plaintiff required surgery and months of healing, which gravely impacted his
10 mobility, health, and his overall well-being. As a result of this incident, Plaintiff still suffers from
11 residual pain, residual nerve pain, stiffness, difficulty standing for long periods, difficulty walking.
12 In addition, he has experienced diminished strength, agility, vitality, and mental anguish.
13 DEFENDANT’S POSITION:
14 A. Amazing Wok Has Grounds To File A Motion To Compel As Plaintiff’s Discovery
15 Responses Are Unverified and Plaintiff’s Responses are Evasive and Incomplete
16 Code of Civil Procedure section 2030.210(a) requires that a party to whom interrogatories
17 have been propounded respond in writing under oath. (emphasis added.) Unverified responses are
18 tantamount to no response at all. (See Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.)
19 Pursuant to Code of Civil Procedure section 2030.290(b), if a party to whom interrogatories are
20 directed fails to serve a timely response, the party propounding the interrogatories may move for an
21 order compelling response to the interrogatories. (See also Sinaiko Healthcare Consulting, Inc. v.
22 Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403, stating “the trial court may
23 intervene when a party ‘fails to serve a timely response.’”) Furthermore, “a party that fails to serve
24 a timely response to the discovery request waives ‘any objection’ to the request, ‘including one based
25 on privilege’ or the protection of attorney work product. (Id. at 403-404.) Moreover, a party moving
26 to compel responses is not subject to a 45-day time limit. (Id. at 404.) Thus, a “propounding party
27 can move the trial court for an order compelling a party to respond to the discovery request. (Id.)
28 Here, Plaintiff failed to provide a verification form with either his original discovery
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DEFENDANT’S NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES AND FURTHER
RESPONSES TO SPECIAL INTERROGATORIES, SET ONE
1 responses or his supplemental responses. (Varisco Declaration at Exs. D and M.) As such, Plaintiff
2 has failed to timely respond to Amazing Wok’s requests and Amazing Wok has grounds to move
3 for verified responses pursuant to Code of Civil Procedure section 2030.290(b). Therefore, Amazing
4 Wok requests this Court order Plaintiff to provide full and complete verified responses to Amazing
5 Wok’s Special Interrogatories, Set One.
6 Pursuant to Code of Civil Procedure section 2030.300(a), a party may move for an order
7 compelling a further response if that party believes an answer to an interrogatory is evasive or
8 incomplete. When responding to interrogatories, a party must respond to each interrogatory
9 separately and state either an answer containing the information sought, an exercise of the party’s
10 right to produce writings, or an objection. (Code of Civil Procedure section 2030.210(a).) Generally,
11 a responding party “may not respond to interrogatories just by asserting its ‘inability to respond.’”
12 (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390,
13 406.)
14 Additionally, Code of Civil Procedure section 2030.220 states:
15 Each answer in a response to interrogatories shall be as complete and straightforward as the
information reasonably available to the responding party permits. If an interrogatory cannot
16 be answered completely, it shall be answered to the extent possible. If the responding party
17 does not have personal knowledge sufficient to respond fully to an interrogatory, that party
shall so state, but shall make a reasonable and good faith effort to obtain the information by
18
inquiry to other natural persons or organizations, except where the information is equally
19 available to the propounding party.
20 When responding to discovery, a party “cannot plead ignorance to information which can be
21 obtained from sources under his control. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 782,
22 superseded by statute and rule stated on other grounds in Guzman v. General Motors (1984) 154
23 Cal.App.3d 438.) This includes information known to a party’s lawyer, even if the party has no
24 personal knowledge of such facts. (Smith v. Superior Court in and for San Joaquin County (1961)
25 189 Cal.App.2d 6, 11-12.)
26 Furthermore, “[a]n interrogatory may relate to whether another party is making a certain
27 contention, or to the facts, witnesses, and writings on which a contention is based. An interrogatory
28 is not objectionable because an answer to it involves an opinion or contention that relates to fact or
-5-
DEFENDANT’S NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES AND FURTHER
RESPONSES TO SPECIAL INTERROGATORIES, SET ONE
1 the application of law to fact, or would be based on information obtained or legal theories developed
2 in anticipation of litigation or in preparation for trial.” (Code of Civil Procedure § 2030.010.)
3 “Discovery necessarily serves the function of ‘testing the pleadings,’ i.e., enabling a party to
4 determine what his opponent’s contentions are and what facts he relies upon to support his
5 contentions. (Burke v. Superior Court of Sacramento County (1969) 71 Cal.2d 276, 281.) “To say
6 that ‘contentions’ are not a proper subject of interrogatories is to subvert the whole theory of the
7 (discovery) rules to make it more difficult for a party to find out what the case against him is about.”
8 (Id.) As such, a party can be required to disclose whether they make a particular contention as to the
9 facts or as to the issues in the matter. (Id. at 281-282.) Discovery may not be employed to elicit an
10 opponent’s legal reasoning or theories. (Id. at 284.)
11 Interrogatories 10-12, 14-15, 17-18 and 20-35 all ask Plaintiff to state facts to support his
12 contentions. (Varisco Decl. at ¶9-Ex. D.) For these interrogatories, “facts” is defined to include
13 information to support Plaintiff’s contention, witnesses with knowledge of these facts and the
14 identity of documents that support his contention. (Id. at ¶5 Ex. A.) In his response to Interrogatories
15 10-12, 14-15, 17-18 and 20-35 Plaintiff failed to list any witnesses and identify any documents
16 supporting his contentions. (Id. at Ex. D.) As such, Plaintiff has failed to fully and completely answer
17 the Interrogatory as required by Code of Civil Procedure section 2030.220. Moreover, these
18 Interrogatories are relevant as they address claims and allegations raised by Plaintiff in his
19 Complaint. Plaintiff cannot make an allegation and then refuse to support it. As such, Plaintiff must
20 supplement his responses to Interrogatories 10-12, 14-15, 17-18 and 20-35 to include any witnesses
21 and the identity of documents that support his contentions as requested in the Interrogatory.
22 Two of Plaintiff’s causes of action are for negligence and premises liability. Plaintiff’s
23 refusal to provide a verified and code compliant response to Special Interrogatories numbers 10-12,
24 14-15, 17-18, and 20-35 hampers Amazing Wok’s ability to defend itself and gather relevant
25 information regarding Plaintiff’s claims and Amazing Wok’s defenses. As Plaintiff’s responses are
26 evasive and incomplete, Amazing Wok has grounds to bring this instant motion and this Court has
27 authority to compel Plaintiff to provide full and complete responses, with a verification form, to
28 Special Interrogatories numbers 10-12, 14-15, 17-18, and 20-35.
-6-
DEFENDANT’S NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES AND FURTHER
RESPONSES TO SPECIAL INTERROGATORIES, SET ONE
1 SPECIAL INTERROGATORY NO. 11:
2 If YOU contend that YOU have suffered physical injuries as a result of the INCIDENT, state
3 with specificity all FACTS which support that contention, including a description of each injury,
4 when each injury first occurred, the causal relation between the INCIDENT and each physical injury.
5 RESPONSE TO SPECIAL INTERROGATORY NO. 11
6 Plaintiff went with his parents to the Amazing Wok to meet his sister and in laws, his sister
7 and his brother in law were already at the table in the restaurant, they were seated at the large circular
8 table in the middle of the restaurant. Plaintiff let his father and mother in through the front door,
9 they went to the right of the table, client ultimately went to the left side of the table where he slipped
10 on a puddle of clear liquid in the common area of the restaurant causing him to slip and fall down
11 due to a dangerous condition. Directly after the incident, Plaintiff’s sister told Plaintiff that she
12 witnessed a waitress spill some glasses of ice water on the floor two minutes or so before and had
13 not put anything down to clean it up. There were no warning signs, no signage placed alerting of a
14 spill, and there was no staff present to alert the client to the hazardous material on the floor. After
15 the fall, Plaintiff had to be helped up by restaurant employees, then restaurant employees put down
16 towels to absorb the liquid Plaintiff slipped on. Plaintiff was able to eat his meal but he was in pain,
17 his knee was bothering him tremendously. Later that evening Plaintiff’s pain became unbearable,
18 and he proceeded to the emergency room where he was evaluated, given pain medication, crutches,
19 and scheduled for an appointment with an orthopedic specialist, where they diagnosed him with a
20 medial meniscus tear. Plaintiff required surgery and months of healing, which gravely impacted his
21 mobility, health, and his overall well-being. As a result of this incident, Plaintiff still suffers from
22 residual pain, residual nerve pain, stiffness, difficulty standing for long periods, difficulty walking.
23 In addition, he has experienced diminished strength, agility, vitality, and mental anguish.
24 SUPPLEMENTAL RESPONSE TO SPECIAL INTERROGATORY NO. 11:
25 Plaintiff went with his parents, Paul Eugene Eichman and Daisy Eichman to the Amazing
26 Wok to meet his sister and in laws, his sister, Laura Goodwin, and his brother in, Dennis Goodwin,
27 law were already at the table in the restaurant, they were seated at the large circular table in the
28 middle of the restaurant. Plaintiff let his father and mother in through the front door, they went to
-7-
DEFENDANT’S NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES AND FURTHER
RESPONSES TO SPECIAL INTERROGATORIES, SET ONE
1 the right of the table, client ultimately went to the left side of the table where he slipped on a puddle
2 of clear liquid in the common area of the restaurant causing him to slip and fall down due to a
3 dangerous condition. Directly after the incident, Plaintiff’s sister told Plaintiff that she witnessed a
4 waitress spill some glasses of ice water on the floor two minutes or so before and had not put
5 anything down to clean it up. There were no warning signs, no signage placed alerting of a spill,
6 and there was no staff present to alert the client to the hazardous material on the floor. After the fall,
7 Plaintiff had to be helped up by restaurant employees, then restaurant employees put down towels
8 to absorb the liquid Plaintiff slipped on. Plaintiff was able to eat his meal but he was in pain, his
9 knee was bothering him tremendously. Later that evening Plaintiff’s pain became unbearable, and
10 he proceeded to the emergency room where he was evaluated, given pain medication, crutches, and
11 scheduled for an appointment with an orthopedic specialist, where they diagnosed him with a medial
12 meniscus tear. Plaintiff required surgery and months of healing, which gravely impacted his
13 mobility, health, and his overall well-being. As a result of this incident, Plaintiff still suffers from
14 residual pain, residual nerve pain, stiffness, difficulty standing for long periods, difficulty walking.
15 In addition, he has experienced diminished strength, agility, vitality, and mental anguish.
16 DEFENDANT’S POSITION:
17 A. Amazing Wok Has Grounds To File A Motion To Compel As Plaintiff’s Discovery
18 Responses Are Unverified and Plaintiff’s Responses are Evasive and Incomplete
19 Code of Civil Procedure section 2030.210(a) requires that a party to whom interrogatories
20 have been propounded respond in writing under oath. (emphasis added.) Unverified responses are
21 tantamount to no response at all. (See Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.)
22 Pursuant to Code of Civil Procedure section 2030.290(b), if a party to whom interrogatories are
23 directed fails to serve a timely response, the party propounding the interrogatories may move for an
24 order compelling response to the interrogatories. (See also Sinaiko Healthcare Consulting, Inc. v.
25 Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403, stating “the trial court may
26 intervene when a party ‘fails to serve a timely response.’”) Furthermore, “a party that fails to serve
27 a timely response to the discovery request waives ‘any objection’ to the request, ‘including one based
28 on privilege’ or the protection of attorney work product. (Id. at 403-404.) Moreover, a party moving
-8-
DEFENDANT’S NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES AND FURTHER
RESPONSES TO SPECIAL INTERROGATORIES, SET ONE
1 to compel responses is not subject to a 45-day time limit. (Id. at 404.) Thus, a “propounding party
2 can move the trial court for an order compelling a party to respond to the discovery request. (Id.)
3 Here, Plaintiff failed to provide a verification form with either his original discovery
4 responses or his supplemental responses. (Varisco Declaration at Exs. D and M.) As such, Plaintiff
5 has failed to timely respond to Amazing Wok’s requests and Amazing Wok has grounds to move
6 for verified responses pursuant to Code of Civil Procedure section 2030.290(b). Therefore, Amazing
7 Wok requests this Court order Plaintiff to provide full and complete verified responses to Amazing
8 Wok’s Special Interrogatories, Set One.
9 Pursuant to Code of Civil Procedure section 2030.300(a), a party may move for an order
10 compelling a further response if that party believes an answer to an interrogatory is evasive or
11 incomplete. When responding to interrogatories, a party must respond to each interrogatory
12 separately and state either an answer containing the information sought, an exercise of the party’s
13 right to produce writings, or an objection. (Code of Civil Procedure section 2030.210(a).) Generally,
14 a responding party “may not respond to interrogatories just by asserting its ‘inability to respond.’”
15 (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390,
16 406.)
17 Additionally, Code of Civil Procedure section 2030.220 states:
18 Each answer in a response to interrogatories shall be as complete and straightforward as the
information reasonably available to the responding party permits. If an interrogatory cannot
19 be answered completely, it shall be answered to the extent possible. If the responding party
20 does not have personal knowledge sufficient to respond fully to an interrogatory, that party
shall so state, but shall make a reasonable and good faith effort to obtain the information by
21
inquiry to other natural persons or organizations, except where the information is equally
22 available to the propounding party.
23 When responding to discovery, a party “cannot plead ignorance to information which can be
24 obtained from sources under his control. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 782,
25 superseded by statute and rule stated on other grounds in Guzman v. General Motors (1984) 154
26 Cal.App.3d 438.) This includes information known to a party’s lawyer, even if the party has no
27 personal knowledge of such facts. (Smith v. Superior Court in and for San Joaquin County (1961)
28 189 Cal.App.2d 6, 11-12.)
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DEFENDANT’S NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES AND FURTHER
RESPONSES TO SPECIAL INTERROGATORIES, SET ONE
1 Furthermore, “[a]n interrogatory may relate to whether another party is making a certain
2 contention, or to the facts, witnesses, and writings on which a contention is based. An interrogatory
3 is not objectionable because an answer to it involves an opinion or contention that relates to fact or
4 the application of law to fact, or would be based on information obtained or legal theories developed
5 in anticipation of litigation or in preparation for trial.” (Code of Civil Procedure § 2030.010.)
6 “Discovery necessarily serves the function of ‘testing the pleadings,’ i.e., enabling a party to
7 determine what his opponent’s contentions are and what facts he relies upon to support his
8 contentions. (Burke v. Superior Court of Sacramento County (1969) 71 Cal.2d 276, 281.) “To say
9 that ‘contentions’ are not a proper subject of interrogatories is to subvert the whole theory of the
10 (discovery) rules to make it more difficult for a party to find out what the case against him is about.”
11 (Id.) As such, a party can be required to disclose whether they make a particular contention as to the
12 facts or as to the issues in the matter. (Id. at 281-282.) Discovery may not be employed to elicit an
13 opponent’s legal reasoning or theories. (Id. at 284.)
14 Interrogatories 10-12, 14-15, 17-18 and 20-35 all ask Plaintiff to state facts to support his
15 contentions. (Varisco Decl. at ¶9-Ex. D.) For these interrogatories, “facts” is defined to include
16 information to support Plaintiff’s contention, witnesses with knowledge of these facts and the
17 identity of documents that support his contention. (Id. at ¶5 Ex. A.) In his response to Interrogatories
18 10-12, 14-15, 17-18 and 20-35 Plaintiff failed to list any witnesses and identify any documents
19 supporting his contentions. (Id. at Ex. D.) As such, Plaintiff has failed to fully and completely answer
20 the Interrogatory as required by Code of Civil Procedure section 2030.220. Moreover, these
21 Interrogatories are relevant as they address claims and allegations raised by Plaintiff in his
22 Complaint. Plaintiff cannot make an allegation and then refuse to support it. As such, Plaintiff must
23 supplement his responses to Interrogatories 10-12, 14-15, 17-18 and 20-35 to include any witnesses
24 and the identity of documents that support his contentions as requested in the Interrogatory.
25 Two of Plaintiff’s causes of action are for negligence and premises liability. Plaintiff’s
26 refusal to provide a verified and code compliant response to Special Interrogatories numbers 10-12,
27 14-15, 17-18, and 20-35 hampers Amazing Wok’s ability to defend itself and gather relevant
28 information regarding Plaintiff’s claims and Amazing Wok’s defenses. As Plaintiff’s responses are
- 10 -
DEFENDANT’S NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES AND FURTHER
RESPONSES TO SPECIAL INTERROGATORIES, SET ONE
1 evasive and incomplete, Amazing Wok has grounds to bring this instant motion and this Court has
2 authority to compel Plaintiff to provide full and complete responses, with a verification form, to
3 Special Interrogatories numbers 10-12, 14-15, 17-18, and 20-35.
4 SPECIAL INTERROGATORY NO. 12:
5 If YOU contend that YOU have suffered emotional distress as a result of the INCIDENT,
6 state with specificity all FACTS which support that contention, including a description of the
7 emotional distress, when the emotional distress first occurred and the causal relation between the
8 INCIDENT and the emotional distress.
9 RESPONSE TO SPECIAL INTERROGATORY NO. 12:
10 Plaintiff went with his parents to the Amazing Wok to meet his sister and in laws, his sister
11 and his brother in law were already at the table in the restaurant, they were seated at the large circular
12 table in the middle of the restaurant. Plaintiff let his father and mother in through the front door,
13 they went to the right of the table, client ultimately went to the left side of the table where he slipped
14 on a puddle of clear liquid in the common area of the restaurant causing him to slip and fall down
15 due to a dangerous condition. Directly after the incident, Plaintiff’s sister told Plaintiff that she
16 witnessed a waitress spill some glasses of ice water on the floor two minutes or so before and had
17 not put anything down to clean it up. There were no warning signs, no signage placed alerting of a
18 spill, and there was no staff present to alert the client to the hazardous material on the floor. After
19 the fall, Plaintiff had to be helped up by restaurant employees, then restaurant employees put down
20 towels to absorb the liquid Plaintiff slipped on. Plaintiff was able to eat his meal but he was in pain,
21 his knee was bothering him tremendously. Later that evening Plaintiff’s pain became unbearable,
22 and he proceeded to the emergency room where he was evaluated, given pain medication, crutches,
23 and scheduled for an appointment with an orthopedic specialist, where they diagnosed him with a
24 medial meniscus tear. Plaintiff required surgery and months of healing, which gravely impacted his
25 mobility, health, and his overall well-being. As a result of this incident, Plaintiff still suffers from
26 residual pain, residual nerve pain, stiffness, difficulty standing for long periods, difficulty walking.
27 In addition, he has experienced diminished strength, agility, vitality, and mental anguish.
28 ///
- 11 -
DEFENDANT’S NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES AND FURTHER
RESPONSES TO SPECIAL INTERROGATORIES, SET ONE
1 SUPPLEMENTAL RESPONSE TO SPECIAL INTERROGATORY NO. 12:
2 Plaintiff went with his parents, Paul Eugene Eichman and Daisy Eichman to the Amazing
3 Wok to meet his sister and in laws, his sister, Laura Goodwin, and his brother in, Dennis Goodwin,
4 law were already at the table in the restaurant, they were seated at the large circular table in the
5 middle of the restaurant. Plaintiff let his father and mother in through the front door, they went to
6 the right of the table, client ultimately went to the left side of the table where he slipped on a puddle
7 of clear liquid in the common area of the restaurant causing him to slip and fall down due to a
8 dangerous condition. Directly after the incident, Plaintiff’s sister told Plaintiff that she witnessed a
9 waitress spill some glasses of ice water on the floor two minutes or so before and had not put
10 anything down to clean it up. There were no warning signs, no signage placed alerting of a spill,
11 and there was no staff present to alert the client to the hazardous material on the floor. After the fall,
12 Plaintiff had to be helped up by restaurant employees, then restaurant employees put down towels
13 to absorb the liquid Plaintiff slipped on. Plaintiff was able to eat his meal but he was in pain, his
14 knee was bothering him tremendously. Later that evening Plaintiff’s pain became unbearable, and
15 he proceeded to the emergency room where he was evaluated, given pain medication, crutches, and
16 scheduled for an appointment with an orthopedic specialist, where they diagnosed him with a medial
17 meniscus tear. Plaintiff required surgery and months of healing, which gravely impacted his
18 mobility, health, and his overall well-being. As a result of this incident, Plaintiff still suffers from
19 residual pain, residual nerve pain, stiffness, difficulty standing for long periods, difficulty walking.
20 In addition, he has experienced diminished strength, agility, vitality, and mental anguish.
21 DEFENDANT’S POSITION:
22 A. Amazing Wok Has Grounds To File A Motion To Compel As Plaintiff’s Discovery
23 Responses Are Unverified and Plaintiff’s Responses are Evasive and Incomplete
24 Code of Civil Procedure section 2030.210(a) requires that a party to whom interrogatories
25 have been propounded respond in writing under oath. (emphasis added.) Unverified responses are
26 tantamount to no response at all. (See Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.)
27 Pursuant to Code of Civil Procedure section 2030.290(b), if a party to whom interrogatories are
28 directed fails to serve a timely response, the party propounding the interrogatories may move for an
- 12 -
DEFENDANT’S NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES AND FURTHER
RESPONSES TO SPECIAL INTERROGATORIES, SET ONE
1 order compelling response to the interrogatories. (See also Sinaiko Healthcare Consulting, Inc. v.
2 Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403, stating “the trial court may
3 intervene when a party ‘fails to serve a timely response.’”) Furthermore, “a party that fails to serve
4 a timely response to the discovery request waives ‘any objection’ to the request, ‘including one based
5 on privilege’ or the protection of attorney work product. (Id. at 403-404.) Moreover, a party moving
6 to compel responses is not subject to a 45-day time limit. (Id. at 404.) Thus, a “propounding party
7 can move the trial court for an order compelling a party to respond to the discovery request. (Id.)
8 Here, Plaintiff failed to provide a verification form with either his original discovery
9 responses or his supplemental responses. (Varisco Declaration at Exs. D and M.) As such, Plaintiff
10 has failed to timely respond to Amazing Wok’s requests and Amazing Wok has grounds to move
11 for verified responses pursuant to Code of Civil Procedure section 2030.290(b). Therefore, Amazing
12 Wok requests this Court order Plaintiff to provide full and complete verified responses to Amazing
13 Wok’s Special Interrogatories, Set One.
14 Pursuant to Code of Civil Procedure section 2030.300(a), a party may move for an order
15 compelling a further response if that party believes an answer to an interrogatory is evasive or
16 incomplete. When responding to interrogatories, a party must respond to each interrogatory
17 separately and state either an answer containing the information sought, an exercise of the party’s
18 right to produce writings, or an objection. (Code of Civil Procedure section 2030.210(a).) Generally,
19 a responding party “may not respond to interrogatories just by asserting its ‘inability to respond.’”
20 (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390,
21 406.)
22 Additionally, Code of Civil Procedure section 2030.220 states:
23 Each answer in a response to interrogatories shall be as complete and straightforward as the
information reasonably available to the responding party permits. If an interrogatory cannot
24 be answered completely, it shall be answered to the extent possible. If the responding party
25 does not have personal knowledge sufficient to respond fully to an interrogatory, that party
Preview
1 LEE A. SHERMAN, Esq. (SBN 172198) SARAH C. VARISCO, Esq. (SBN 320200) 2 CALLAHAN, THOMPSON, SHERMAN & CAUDILL, LLP 3 2601 Main Street, Suite 800 Irvine, California 92614 4 Tel: (949) 261-2872 Fax: (949) 261-6060 5 Email: lsherman@ctsclaw.com 1/12/2021 svarisco@ctsclaw.com 6 Attorneys for Defendant, 7 XI FIN LIN, LISA LIN LIAO, LIN LI, DA QING ZHENG, & 8 AMAZING WOK 9 SUPERIOR COURT OF CALIFORNIA 10 COUNTY OF SAN MATEO 11 RON EICHMAN Case No.: 20-CIV-02474 12 JUDGE: Hon. Nancy L. Fineman 13 DEPARTMENT: 4 Plaintiff, COMPLAINT DATE: 6/15/2020 14 vs. SEPARATE STATEMENT IN SUPPORT 15 OF DEFENDANT AMAZING WOK’S XI FIN LIN, LISA LIN LIAO, LIN LI, DA MOTION TO COMPEL RESPONSES 16 QING ZHENG, AMAZING WOK; DOES 1 AND FURTHER RESPONSES TO TO 20 SPECIAL INTERROGATORIES, SET 17 ONE 18 March 9, 2021 Defendant. Date: February 16, 2021 19 Time: 8:30 a.m.2:00 pm Dept.: 4 20 [Filed concurrently with Motion to Compel 21 Further Responses; the Declaration of Sarah C. Varisco and [Proposed] Order] 22 DISCOVERY CUT OFF: NONE 23 MOTION CUT OFF: NONE MSC DATE: NONE 24 TRIAL DATE: NONE 25 26 27 28 -1- DEFENDANT’S NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES AND FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET ONE 1 Pursuant to California Rules of Court, Rule 3.1345, Defendant Amazing Wok hereby submits 2 the following Separate Statement setting forth Defendant’s special interrogatories, Plaintiff’s 3 responses, and any supplemental responses, and the factual and legal reasons in support of 4 Defendant’s motion to compel a further response. 5 Definitions 6 For the purposes of these interrogatories, DEFENDANT as used herein means the 7 Propounding Party, AMAZING WOK. 8 For the purposes of these interrogatories, COMPLAINT shall refer to the Complaint filed in 9 this matter on June 15, 2020 in the Superior Court of California, County of San Mateo, barring the 10 case number 20-CIV-02474. 11 For the purposes of these interrogatories, “YOU,” “YOUR,” or “PLAINTIFF,” means the 12 Ron Eichman, the person that is responding to this discovery request, and her agents, representatives, 13 and any other person acting on her behalf. 14 For the purposes of these interrogatories, “PERSON” or “PERSONS” means and includes 15 any individual, corporation, organization, association, partnership, limited partnership, firm, joint 16 venture, governmental body, agency, governing board, department, division, or any other entity. 17 For the purposes of these interrogatories, “IDENTIFY,” when used in reference to a 18 PERSON, means to state each PERSON’S name, home address, home telephone number, business 19 address, and business telephone number. “IDENTIFY,” when used in reference to a DOCUMENT, 20 means to state the title the DOCUMENT bears, to IDENTIFY the PERSON who authored the 21 DOCUMENT, and to describe the document with sufficient particularity to allow it to be requested 22 in a demand for production of documents. 23 Interrogatories 24 SPECIAL INTERROGATORY NO. 10: 25 If YOU contend that YOU have suffered any general damage as a result of the INCIDENT, 26 state with specificity all FACTS which support that contention. (For purposes of these 27 interrogatories “FACTS” shall mean information to support your contention, witnesses with 28 knowledge of the facts to support your contention and the identity of documents that support your -2- DEFENDANT’S NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES AND FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET ONE 1 contention.) 2 RESPONSE TO SPECIAL INTERROGATORY NO. 10: 3 Plaintiff went with his parents to the Amazing Wok to meet his sister and in laws, his sister 4 and his brother in law were already at the table in the restaurant, they were seated at the large circular 5 table in the middle of the restaurant. Plaintiff let his father and mother in through the front door, 6 they went to the right of the table, client ultimately went to the left side of the table where he slipped 7 on a puddle of clear liquid in the common area of the restaurant causing him to slip and fall down 8 due to a dangerous condition. Directly after the incident, Plaintiff’s sister told Plaintiff that she 9 witnessed a waitress spill some glasses of ice water on the floor two minutes or so before and had 10 not put anything down to clean it up. There were no warning signs, no signage placed alerting of a 11 spill, and there was no staff present to alert the client to the hazardous material on the floor. After 12 the fall, Plaintiff had to be helped up by restaurant employees, then restaurant employees put down 13 towels to absorb the liquid Plaintiff slipped on. Plaintiff was able to eat his meal but he was in pain, 14 his knee was bothering him tremendously. Later that evening Plaintiff’s pain became unbearable, 15 and he proceeded to the emergency room where he was evaluated, given pain medication, crutches, 16 and scheduled for an appointment with an orthopedic specialist, where they diagnosed him with a 17 medial meniscus tear. Plaintiff required surgery and months of healing, which gravely impacted his 18 mobility, health, and his overall well-being. As a result of this incident, Plaintiff still suffers from 19 residual pain, residual nerve pain, stiffness, difficulty standing for long periods, difficulty walking. 20 In addition, he has experienced diminished strength, agility, vitality, and mental anguish. 21 SUPPLEMENTAL RESPONSE TO SPECIAL INTERROGATORY NO. 10: 22 Plaintiff went with his parents, Paul Eugene Eichman and Daisy Eichman to the Amazing 23 Wok to meet his sister and in laws, his sister, Laura Goodwin, and his brother in, Dennis Goodwin, 24 law were already at the table in the restaurant, they were seated at the large circular table in the 25 middle of the restaurant. Plaintiff let his father and mother in through the front door, they went to 26 the right of the table, client ultimately went to the left side of the table where he slipped on a puddle 27 of clear liquid in the common area of the restaurant causing him to slip and fall down due to a 28 dangerous condition. Directly after the incident, Plaintiff’s sister told Plaintiff that she witnessed a -3- DEFENDANT’S NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES AND FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET ONE 1 waitress spill some glasses of ice water on the floor two minutes or so before and had not put 2 anything down to clean it up. There were no warning signs, no signage placed alerting of a spill, 3 and there was no staff present to alert the client to the hazardous material on the floor. After the fall, 4 Plaintiff had to be helped up by restaurant employees, then restaurant employees put down towels 5 to absorb the liquid Plaintiff slipped on. Plaintiff was able to eat his meal but he was in pain, his 6 knee was bothering him tremendously. Later that evening Plaintiff’s pain became unbearable, and 7 he proceeded to the emergency room where he was evaluated, given pain medication, crutches, and 8 scheduled for an appointment with an orthopedic specialist, where they diagnosed him with a medial 9 meniscus tear. Plaintiff required surgery and months of healing, which gravely impacted his 10 mobility, health, and his overall well-being. As a result of this incident, Plaintiff still suffers from 11 residual pain, residual nerve pain, stiffness, difficulty standing for long periods, difficulty walking. 12 In addition, he has experienced diminished strength, agility, vitality, and mental anguish. 13 DEFENDANT’S POSITION: 14 A. Amazing Wok Has Grounds To File A Motion To Compel As Plaintiff’s Discovery 15 Responses Are Unverified and Plaintiff’s Responses are Evasive and Incomplete 16 Code of Civil Procedure section 2030.210(a) requires that a party to whom interrogatories 17 have been propounded respond in writing under oath. (emphasis added.) Unverified responses are 18 tantamount to no response at all. (See Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.) 19 Pursuant to Code of Civil Procedure section 2030.290(b), if a party to whom interrogatories are 20 directed fails to serve a timely response, the party propounding the interrogatories may move for an 21 order compelling response to the interrogatories. (See also Sinaiko Healthcare Consulting, Inc. v. 22 Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403, stating “the trial court may 23 intervene when a party ‘fails to serve a timely response.’”) Furthermore, “a party that fails to serve 24 a timely response to the discovery request waives ‘any objection’ to the request, ‘including one based 25 on privilege’ or the protection of attorney work product. (Id. at 403-404.) Moreover, a party moving 26 to compel responses is not subject to a 45-day time limit. (Id. at 404.) Thus, a “propounding party 27 can move the trial court for an order compelling a party to respond to the discovery request. (Id.) 28 Here, Plaintiff failed to provide a verification form with either his original discovery -4- DEFENDANT’S NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES AND FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET ONE 1 responses or his supplemental responses. (Varisco Declaration at Exs. D and M.) As such, Plaintiff 2 has failed to timely respond to Amazing Wok’s requests and Amazing Wok has grounds to move 3 for verified responses pursuant to Code of Civil Procedure section 2030.290(b). Therefore, Amazing 4 Wok requests this Court order Plaintiff to provide full and complete verified responses to Amazing 5 Wok’s Special Interrogatories, Set One. 6 Pursuant to Code of Civil Procedure section 2030.300(a), a party may move for an order 7 compelling a further response if that party believes an answer to an interrogatory is evasive or 8 incomplete. When responding to interrogatories, a party must respond to each interrogatory 9 separately and state either an answer containing the information sought, an exercise of the party’s 10 right to produce writings, or an objection. (Code of Civil Procedure section 2030.210(a).) Generally, 11 a responding party “may not respond to interrogatories just by asserting its ‘inability to respond.’” 12 (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 13 406.) 14 Additionally, Code of Civil Procedure section 2030.220 states: 15 Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits. If an interrogatory cannot 16 be answered completely, it shall be answered to the extent possible. If the responding party 17 does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by 18 inquiry to other natural persons or organizations, except where the information is equally 19 available to the propounding party. 20 When responding to discovery, a party “cannot plead ignorance to information which can be 21 obtained from sources under his control. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 782, 22 superseded by statute and rule stated on other grounds in Guzman v. General Motors (1984) 154 23 Cal.App.3d 438.) This includes information known to a party’s lawyer, even if the party has no 24 personal knowledge of such facts. (Smith v. Superior Court in and for San Joaquin County (1961) 25 189 Cal.App.2d 6, 11-12.) 26 Furthermore, “[a]n interrogatory may relate to whether another party is making a certain 27 contention, or to the facts, witnesses, and writings on which a contention is based. An interrogatory 28 is not objectionable because an answer to it involves an opinion or contention that relates to fact or -5- DEFENDANT’S NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES AND FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET ONE 1 the application of law to fact, or would be based on information obtained or legal theories developed 2 in anticipation of litigation or in preparation for trial.” (Code of Civil Procedure § 2030.010.) 3 “Discovery necessarily serves the function of ‘testing the pleadings,’ i.e., enabling a party to 4 determine what his opponent’s contentions are and what facts he relies upon to support his 5 contentions. (Burke v. Superior Court of Sacramento County (1969) 71 Cal.2d 276, 281.) “To say 6 that ‘contentions’ are not a proper subject of interrogatories is to subvert the whole theory of the 7 (discovery) rules to make it more difficult for a party to find out what the case against him is about.” 8 (Id.) As such, a party can be required to disclose whether they make a particular contention as to the 9 facts or as to the issues in the matter. (Id. at 281-282.) Discovery may not be employed to elicit an 10 opponent’s legal reasoning or theories. (Id. at 284.) 11 Interrogatories 10-12, 14-15, 17-18 and 20-35 all ask Plaintiff to state facts to support his 12 contentions. (Varisco Decl. at ¶9-Ex. D.) For these interrogatories, “facts” is defined to include 13 information to support Plaintiff’s contention, witnesses with knowledge of these facts and the 14 identity of documents that support his contention. (Id. at ¶5 Ex. A.) In his response to Interrogatories 15 10-12, 14-15, 17-18 and 20-35 Plaintiff failed to list any witnesses and identify any documents 16 supporting his contentions. (Id. at Ex. D.) As such, Plaintiff has failed to fully and completely answer 17 the Interrogatory as required by Code of Civil Procedure section 2030.220. Moreover, these 18 Interrogatories are relevant as they address claims and allegations raised by Plaintiff in his 19 Complaint. Plaintiff cannot make an allegation and then refuse to support it. As such, Plaintiff must 20 supplement his responses to Interrogatories 10-12, 14-15, 17-18 and 20-35 to include any witnesses 21 and the identity of documents that support his contentions as requested in the Interrogatory. 22 Two of Plaintiff’s causes of action are for negligence and premises liability. Plaintiff’s 23 refusal to provide a verified and code compliant response to Special Interrogatories numbers 10-12, 24 14-15, 17-18, and 20-35 hampers Amazing Wok’s ability to defend itself and gather relevant 25 information regarding Plaintiff’s claims and Amazing Wok’s defenses. As Plaintiff’s responses are 26 evasive and incomplete, Amazing Wok has grounds to bring this instant motion and this Court has 27 authority to compel Plaintiff to provide full and complete responses, with a verification form, to 28 Special Interrogatories numbers 10-12, 14-15, 17-18, and 20-35. -6- DEFENDANT’S NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES AND FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET ONE 1 SPECIAL INTERROGATORY NO. 11: 2 If YOU contend that YOU have suffered physical injuries as a result of the INCIDENT, state 3 with specificity all FACTS which support that contention, including a description of each injury, 4 when each injury first occurred, the causal relation between the INCIDENT and each physical injury. 5 RESPONSE TO SPECIAL INTERROGATORY NO. 11 6 Plaintiff went with his parents to the Amazing Wok to meet his sister and in laws, his sister 7 and his brother in law were already at the table in the restaurant, they were seated at the large circular 8 table in the middle of the restaurant. Plaintiff let his father and mother in through the front door, 9 they went to the right of the table, client ultimately went to the left side of the table where he slipped 10 on a puddle of clear liquid in the common area of the restaurant causing him to slip and fall down 11 due to a dangerous condition. Directly after the incident, Plaintiff’s sister told Plaintiff that she 12 witnessed a waitress spill some glasses of ice water on the floor two minutes or so before and had 13 not put anything down to clean it up. There were no warning signs, no signage placed alerting of a 14 spill, and there was no staff present to alert the client to the hazardous material on the floor. After 15 the fall, Plaintiff had to be helped up by restaurant employees, then restaurant employees put down 16 towels to absorb the liquid Plaintiff slipped on. Plaintiff was able to eat his meal but he was in pain, 17 his knee was bothering him tremendously. Later that evening Plaintiff’s pain became unbearable, 18 and he proceeded to the emergency room where he was evaluated, given pain medication, crutches, 19 and scheduled for an appointment with an orthopedic specialist, where they diagnosed him with a 20 medial meniscus tear. Plaintiff required surgery and months of healing, which gravely impacted his 21 mobility, health, and his overall well-being. As a result of this incident, Plaintiff still suffers from 22 residual pain, residual nerve pain, stiffness, difficulty standing for long periods, difficulty walking. 23 In addition, he has experienced diminished strength, agility, vitality, and mental anguish. 24 SUPPLEMENTAL RESPONSE TO SPECIAL INTERROGATORY NO. 11: 25 Plaintiff went with his parents, Paul Eugene Eichman and Daisy Eichman to the Amazing 26 Wok to meet his sister and in laws, his sister, Laura Goodwin, and his brother in, Dennis Goodwin, 27 law were already at the table in the restaurant, they were seated at the large circular table in the 28 middle of the restaurant. Plaintiff let his father and mother in through the front door, they went to -7- DEFENDANT’S NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES AND FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET ONE 1 the right of the table, client ultimately went to the left side of the table where he slipped on a puddle 2 of clear liquid in the common area of the restaurant causing him to slip and fall down due to a 3 dangerous condition. Directly after the incident, Plaintiff’s sister told Plaintiff that she witnessed a 4 waitress spill some glasses of ice water on the floor two minutes or so before and had not put 5 anything down to clean it up. There were no warning signs, no signage placed alerting of a spill, 6 and there was no staff present to alert the client to the hazardous material on the floor. After the fall, 7 Plaintiff had to be helped up by restaurant employees, then restaurant employees put down towels 8 to absorb the liquid Plaintiff slipped on. Plaintiff was able to eat his meal but he was in pain, his 9 knee was bothering him tremendously. Later that evening Plaintiff’s pain became unbearable, and 10 he proceeded to the emergency room where he was evaluated, given pain medication, crutches, and 11 scheduled for an appointment with an orthopedic specialist, where they diagnosed him with a medial 12 meniscus tear. Plaintiff required surgery and months of healing, which gravely impacted his 13 mobility, health, and his overall well-being. As a result of this incident, Plaintiff still suffers from 14 residual pain, residual nerve pain, stiffness, difficulty standing for long periods, difficulty walking. 15 In addition, he has experienced diminished strength, agility, vitality, and mental anguish. 16 DEFENDANT’S POSITION: 17 A. Amazing Wok Has Grounds To File A Motion To Compel As Plaintiff’s Discovery 18 Responses Are Unverified and Plaintiff’s Responses are Evasive and Incomplete 19 Code of Civil Procedure section 2030.210(a) requires that a party to whom interrogatories 20 have been propounded respond in writing under oath. (emphasis added.) Unverified responses are 21 tantamount to no response at all. (See Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.) 22 Pursuant to Code of Civil Procedure section 2030.290(b), if a party to whom interrogatories are 23 directed fails to serve a timely response, the party propounding the interrogatories may move for an 24 order compelling response to the interrogatories. (See also Sinaiko Healthcare Consulting, Inc. v. 25 Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403, stating “the trial court may 26 intervene when a party ‘fails to serve a timely response.’”) Furthermore, “a party that fails to serve 27 a timely response to the discovery request waives ‘any objection’ to the request, ‘including one based 28 on privilege’ or the protection of attorney work product. (Id. at 403-404.) Moreover, a party moving -8- DEFENDANT’S NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES AND FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET ONE 1 to compel responses is not subject to a 45-day time limit. (Id. at 404.) Thus, a “propounding party 2 can move the trial court for an order compelling a party to respond to the discovery request. (Id.) 3 Here, Plaintiff failed to provide a verification form with either his original discovery 4 responses or his supplemental responses. (Varisco Declaration at Exs. D and M.) As such, Plaintiff 5 has failed to timely respond to Amazing Wok’s requests and Amazing Wok has grounds to move 6 for verified responses pursuant to Code of Civil Procedure section 2030.290(b). Therefore, Amazing 7 Wok requests this Court order Plaintiff to provide full and complete verified responses to Amazing 8 Wok’s Special Interrogatories, Set One. 9 Pursuant to Code of Civil Procedure section 2030.300(a), a party may move for an order 10 compelling a further response if that party believes an answer to an interrogatory is evasive or 11 incomplete. When responding to interrogatories, a party must respond to each interrogatory 12 separately and state either an answer containing the information sought, an exercise of the party’s 13 right to produce writings, or an objection. (Code of Civil Procedure section 2030.210(a).) Generally, 14 a responding party “may not respond to interrogatories just by asserting its ‘inability to respond.’” 15 (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 16 406.) 17 Additionally, Code of Civil Procedure section 2030.220 states: 18 Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits. If an interrogatory cannot 19 be answered completely, it shall be answered to the extent possible. If the responding party 20 does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by 21 inquiry to other natural persons or organizations, except where the information is equally 22 available to the propounding party. 23 When responding to discovery, a party “cannot plead ignorance to information which can be 24 obtained from sources under his control. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 782, 25 superseded by statute and rule stated on other grounds in Guzman v. General Motors (1984) 154 26 Cal.App.3d 438.) This includes information known to a party’s lawyer, even if the party has no 27 personal knowledge of such facts. (Smith v. Superior Court in and for San Joaquin County (1961) 28 189 Cal.App.2d 6, 11-12.) -9- DEFENDANT’S NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES AND FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET ONE 1 Furthermore, “[a]n interrogatory may relate to whether another party is making a certain 2 contention, or to the facts, witnesses, and writings on which a contention is based. An interrogatory 3 is not objectionable because an answer to it involves an opinion or contention that relates to fact or 4 the application of law to fact, or would be based on information obtained or legal theories developed 5 in anticipation of litigation or in preparation for trial.” (Code of Civil Procedure § 2030.010.) 6 “Discovery necessarily serves the function of ‘testing the pleadings,’ i.e., enabling a party to 7 determine what his opponent’s contentions are and what facts he relies upon to support his 8 contentions. (Burke v. Superior Court of Sacramento County (1969) 71 Cal.2d 276, 281.) “To say 9 that ‘contentions’ are not a proper subject of interrogatories is to subvert the whole theory of the 10 (discovery) rules to make it more difficult for a party to find out what the case against him is about.” 11 (Id.) As such, a party can be required to disclose whether they make a particular contention as to the 12 facts or as to the issues in the matter. (Id. at 281-282.) Discovery may not be employed to elicit an 13 opponent’s legal reasoning or theories. (Id. at 284.) 14 Interrogatories 10-12, 14-15, 17-18 and 20-35 all ask Plaintiff to state facts to support his 15 contentions. (Varisco Decl. at ¶9-Ex. D.) For these interrogatories, “facts” is defined to include 16 information to support Plaintiff’s contention, witnesses with knowledge of these facts and the 17 identity of documents that support his contention. (Id. at ¶5 Ex. A.) In his response to Interrogatories 18 10-12, 14-15, 17-18 and 20-35 Plaintiff failed to list any witnesses and identify any documents 19 supporting his contentions. (Id. at Ex. D.) As such, Plaintiff has failed to fully and completely answer 20 the Interrogatory as required by Code of Civil Procedure section 2030.220. Moreover, these 21 Interrogatories are relevant as they address claims and allegations raised by Plaintiff in his 22 Complaint. Plaintiff cannot make an allegation and then refuse to support it. As such, Plaintiff must 23 supplement his responses to Interrogatories 10-12, 14-15, 17-18 and 20-35 to include any witnesses 24 and the identity of documents that support his contentions as requested in the Interrogatory. 25 Two of Plaintiff’s causes of action are for negligence and premises liability. Plaintiff’s 26 refusal to provide a verified and code compliant response to Special Interrogatories numbers 10-12, 27 14-15, 17-18, and 20-35 hampers Amazing Wok’s ability to defend itself and gather relevant 28 information regarding Plaintiff’s claims and Amazing Wok’s defenses. As Plaintiff’s responses are - 10 - DEFENDANT’S NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES AND FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET ONE 1 evasive and incomplete, Amazing Wok has grounds to bring this instant motion and this Court has 2 authority to compel Plaintiff to provide full and complete responses, with a verification form, to 3 Special Interrogatories numbers 10-12, 14-15, 17-18, and 20-35. 4 SPECIAL INTERROGATORY NO. 12: 5 If YOU contend that YOU have suffered emotional distress as a result of the INCIDENT, 6 state with specificity all FACTS which support that contention, including a description of the 7 emotional distress, when the emotional distress first occurred and the causal relation between the 8 INCIDENT and the emotional distress. 9 RESPONSE TO SPECIAL INTERROGATORY NO. 12: 10 Plaintiff went with his parents to the Amazing Wok to meet his sister and in laws, his sister 11 and his brother in law were already at the table in the restaurant, they were seated at the large circular 12 table in the middle of the restaurant. Plaintiff let his father and mother in through the front door, 13 they went to the right of the table, client ultimately went to the left side of the table where he slipped 14 on a puddle of clear liquid in the common area of the restaurant causing him to slip and fall down 15 due to a dangerous condition. Directly after the incident, Plaintiff’s sister told Plaintiff that she 16 witnessed a waitress spill some glasses of ice water on the floor two minutes or so before and had 17 not put anything down to clean it up. There were no warning signs, no signage placed alerting of a 18 spill, and there was no staff present to alert the client to the hazardous material on the floor. After 19 the fall, Plaintiff had to be helped up by restaurant employees, then restaurant employees put down 20 towels to absorb the liquid Plaintiff slipped on. Plaintiff was able to eat his meal but he was in pain, 21 his knee was bothering him tremendously. Later that evening Plaintiff’s pain became unbearable, 22 and he proceeded to the emergency room where he was evaluated, given pain medication, crutches, 23 and scheduled for an appointment with an orthopedic specialist, where they diagnosed him with a 24 medial meniscus tear. Plaintiff required surgery and months of healing, which gravely impacted his 25 mobility, health, and his overall well-being. As a result of this incident, Plaintiff still suffers from 26 residual pain, residual nerve pain, stiffness, difficulty standing for long periods, difficulty walking. 27 In addition, he has experienced diminished strength, agility, vitality, and mental anguish. 28 /// - 11 - DEFENDANT’S NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES AND FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET ONE 1 SUPPLEMENTAL RESPONSE TO SPECIAL INTERROGATORY NO. 12: 2 Plaintiff went with his parents, Paul Eugene Eichman and Daisy Eichman to the Amazing 3 Wok to meet his sister and in laws, his sister, Laura Goodwin, and his brother in, Dennis Goodwin, 4 law were already at the table in the restaurant, they were seated at the large circular table in the 5 middle of the restaurant. Plaintiff let his father and mother in through the front door, they went to 6 the right of the table, client ultimately went to the left side of the table where he slipped on a puddle 7 of clear liquid in the common area of the restaurant causing him to slip and fall down due to a 8 dangerous condition. Directly after the incident, Plaintiff’s sister told Plaintiff that she witnessed a 9 waitress spill some glasses of ice water on the floor two minutes or so before and had not put 10 anything down to clean it up. There were no warning signs, no signage placed alerting of a spill, 11 and there was no staff present to alert the client to the hazardous material on the floor. After the fall, 12 Plaintiff had to be helped up by restaurant employees, then restaurant employees put down towels 13 to absorb the liquid Plaintiff slipped on. Plaintiff was able to eat his meal but he was in pain, his 14 knee was bothering him tremendously. Later that evening Plaintiff’s pain became unbearable, and 15 he proceeded to the emergency room where he was evaluated, given pain medication, crutches, and 16 scheduled for an appointment with an orthopedic specialist, where they diagnosed him with a medial 17 meniscus tear. Plaintiff required surgery and months of healing, which gravely impacted his 18 mobility, health, and his overall well-being. As a result of this incident, Plaintiff still suffers from 19 residual pain, residual nerve pain, stiffness, difficulty standing for long periods, difficulty walking. 20 In addition, he has experienced diminished strength, agility, vitality, and mental anguish. 21 DEFENDANT’S POSITION: 22 A. Amazing Wok Has Grounds To File A Motion To Compel As Plaintiff’s Discovery 23 Responses Are Unverified and Plaintiff’s Responses are Evasive and Incomplete 24 Code of Civil Procedure section 2030.210(a) requires that a party to whom interrogatories 25 have been propounded respond in writing under oath. (emphasis added.) Unverified responses are 26 tantamount to no response at all. (See Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.) 27 Pursuant to Code of Civil Procedure section 2030.290(b), if a party to whom interrogatories are 28 directed fails to serve a timely response, the party propounding the interrogatories may move for an - 12 - DEFENDANT’S NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES AND FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET ONE 1 order compelling response to the interrogatories. (See also Sinaiko Healthcare Consulting, Inc. v. 2 Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403, stating “the trial court may 3 intervene when a party ‘fails to serve a timely response.’”) Furthermore, “a party that fails to serve 4 a timely response to the discovery request waives ‘any objection’ to the request, ‘including one based 5 on privilege’ or the protection of attorney work product. (Id. at 403-404.) Moreover, a party moving 6 to compel responses is not subject to a 45-day time limit. (Id. at 404.) Thus, a “propounding party 7 can move the trial court for an order compelling a party to respond to the discovery request. (Id.) 8 Here, Plaintiff failed to provide a verification form with either his original discovery 9 responses or his supplemental responses. (Varisco Declaration at Exs. D and M.) As such, Plaintiff 10 has failed to timely respond to Amazing Wok’s requests and Amazing Wok has grounds to move 11 for verified responses pursuant to Code of Civil Procedure section 2030.290(b). Therefore, Amazing 12 Wok requests this Court order Plaintiff to provide full and complete verified responses to Amazing 13 Wok’s Special Interrogatories, Set One. 14 Pursuant to Code of Civil Procedure section 2030.300(a), a party may move for an order 15 compelling a further response if that party believes an answer to an interrogatory is evasive or 16 incomplete. When responding to interrogatories, a party must respond to each interrogatory 17 separately and state either an answer containing the information sought, an exercise of the party’s 18 right to produce writings, or an objection. (Code of Civil Procedure section 2030.210(a).) Generally, 19 a responding party “may not respond to interrogatories just by asserting its ‘inability to respond.’” 20 (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 21 406.) 22 Additionally, Code of Civil Procedure section 2030.220 states: 23 Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits. If an interrogatory cannot 24 be answered completely, it shall be answered to the extent possible. If the responding party 25 does not have personal knowledge sufficient to respond fully to an interrogatory, that party