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Form Interrogatory 15.1 – The discovery delay tactics by the defense

How to take an offensive position when propounding written discovery

Every new case, we all serve Judicial Counsel Form Interrogatories. There are times when I wonder why I even bother. The defendant’s counsel never responds to some of the most basic requests for information. I have to write several meet-and-confer letters, followed by a motion to compel. The typical response is “discovery is in the investigation phase and just beginning. Defendant does not have enough information at this time to answer this request.” Give me a break! What do we do to combat this? How can we effectively prepare our cases for mediation or trial if we do not even know on what basis the defendant has made denials and what facts for the belief that the defendant may be entitled to assert certain affirmative defenses?

Getting a response to Form Interrogatory 15.1 is particularly problematic. The burden of proof on affirmative defenses rests with the Defendant. We often are confronted in meet and confer responses with the argument that “these defenses were asserted out of an abundance of caution and we have asserted them to preserve them.” This is not an appropriate response ever to any interrogatory. There must always be a factual basis to assert an affirmative defense in a pleading. Indeed, California Law mandates that claims and defenses asserted in any pleading be “warranted by existing law,” that “allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery,” that “denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.” (Code Civ. Proc., §128.7, subd. (b).)

In a recent case I was handling, I tested my theory that 128.7 does, in fact, apply, and a defendant cannot stand by the ridiculous proposition that it can assert whatever affirmative defenses it chooses despite having no factual support for these defenses. More importantly, we should all take a more offensive position when it comes to propounding discovery and making sure that we receive adequate and complete responses to our request.

My practice primarily consists of garden-variety personal injury cases: premises liability, car accidents and medical malpractice. In a typical answer, defendants assert a multitude of defenses, including: comparative fault, unclean hands, Witt v. Jackson, statute of limitations, negligence of others, that plaintiff failed to mitigate her damages, and that plaintiff is precluded from recovering non-economic because she failed to comply with the financial responsibility law, among other affirmative defenses. Many of the defenses are simply frivolous. But they are usually included in a typical answer.

Once you serve your summons and complaint on the defendant, you do not have to wait until the defendant answers to serve discovery. (Code Civ. Proc., § 2030.020.) However, I typically do. My first set of discovery I serve once the answer is received. I typically do not include Form Interrogatory 15.1 in Set One. I wait until after I have answered discovery and have provided copies of my client’s medical records to the defendant through discovery. What is more, by this time, the defendants have typically requested medical records by subpoena. By this time, any objection that they have not been able to complete the adequate discovery to respond to Form Interrogatories is complete nonsense.

The typical response to Form Interrogatory 15.1, contains a statement that “discovery and investigation are in the beginning stages” and some statement along the lines from the defendant that it is too early to respond to such a request. Defendants almost never follow the instructions contained by setting forth each denial and each affirmative defense. I recently had a defendant take the position that we would simply have to endure the discovery process and they would provide information once discovery was closed. This same attorney told me (and later the judge) that the defenses were asserted as a matter of right. There was not necessarily any evidence to support them. This attitude is typical of defendants’ counsel when responding to discovery. And yet there is no right to assert defenses without any support to do so.

Code of Civil Procedure section 2030.210, provides for the manner of a response to interrogatories, and sets forth only three appropriate responses to a question: an answer containing the information sought to be discovered; an exercise of the party’s option to produce writings; an objection to the particular interrogatory. (See id. at subsection (a).) “Discovery and Investigation are in the beginning stages” is not a legal objection as far as I know. Therefore, the defendant’s response is completely inadequate.

Code of Civil Procedure section 128.7

An attorney who presents a pleading, including a complaint or answer, a motion or any similar paper to the court makes an implied “certification” as to its legal and factual merit; and is subject to sanctions for violation of this certification.

(Code Civ. Proc., § 128.7; see Bockrath v. Aldrich Chem. Co. (1999) 21 Cal.4th 71 [86 Cal.Rptr.2d 846].) In fact, Code of Civil Procedure, section 128.7, subdivision (b), provides:

  1. It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
  2. The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.
  3. The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.

When a defendant’s attorney adds defenses that lack any factual or legal support that attorney is violating, not just the spirit, but the letter of law as set forth in Code of Civil Procedure section 128.7. The Court of Appeals explained this standard as it relates to the filing of a complaint in Bockrath, supra, 21 Cal.4th 71. There the Court held that “actual-belief standard requires more than a hunch, a speculative belief, or wishful thinking: it requires a well-founded belief.” This means that the defense attorney must also have facts to support allegations contained within the answer or a good-faith belief that such facts will be discovered.” (Bockrath, supra, 21 Cal.4th at 82 [86 Cal.Rptr.2d at 853].)

When a defendant states in discovery responses that they are entitled to plead defenses as a matter of right then later advocate this position in a motion, they are violating Code of Civil Procedure 128.7. Accordingly, this untenable position should be pointed out in your meet-and-confer letters before filing a motion to compel.

Boilerplate objections are subject to sanctions

Form Interrogatory 15.1 is a very straightforward question, which is approved by the judicial council. The interrogatory request that the defendant “[i]dentify each denial of material allegation and each affirmative defense in your pleadings…” and for each of these the defendant must state all facts, which support these denials and affirmative defenses, to state all witnesses who support these denials and affirmative defenses, and to identify each document that supports these denials and affirmative defenses. (See Judicial Council Form Interrogatory 15.1.) This question almost always prompts the defendant’s attorney to list a ton of objections, including that the question is irrelevant, vague and ambiguous, calls for speculation, calls for attorney work-product, and attorney client privilege. These same attorneys may also throw in some additional objections for good measure. These objections are boilerplate.

In and of itself, this is sanctionable conduct. (Korea Data Systems Co., Ltd. v. Superior Court (1997) 51 Cal.App.4th 1513, 1516 [59 Cal.Rptr.2d 925, 926].) Moreover, courts have held, with regard to discovery requests that it is not ground for objection that the request is ambiguous, unless it is so ambiguous that the responding party cannot in good faith frame an intelligent reply. (Cembrook v. Superior Court (1961) 56 Cal.2d 423, 430 [15 Cal.Rptr. 127, 131].)

Additionally, when responding to interrogatories, the answering party owes a duty to respond in good faith as best as it can. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783 [149 Cal.Rptr. 499, 509].) Defendant has a duty to answer interrogatories as completely and straightforwardly as possible given the information available to it. (Id., Code Civ. Proc. § 2030.220.) The duty to truthfully and fully respond has been described as follows, “Parties must state the truth, the whole truth, and nothing but the truth in answering written interrogatories.” (Guzman v. General Motors Corp. (1984) 154 Cal.App.3d 438, 442 [201 Cal.Rptr. 246, 249].)

“Where the question is specific and explicit, an answer which supplies only a portion of the information sought is wholly insufficient.” (Deyo v. Kilbourne, supra. 84 Cal.App.3d at 783 [149 Cal.Rptr. at 509].) Further, the responding party is required to provide information not only based on his own personal knowledge, but also on knowledge he may acquire through a reasonable inquiry. (Id. at 782.)

What is more, the scope of permissible discovery is broad. “The purpose of pretrial discovery is to obtain all of the facts relative to a claim or defense.” (Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 301 [4 Cal.Rptr.3d 883, 897].) For purposes of discovery, information is considered relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement thereof. (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546 [39 Cal.Rptr.2d 896, 901]; Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1611 [56 Cal.Rptr.2d 341, 347]; Stewart v. Colonial Western Agency (2001) 87 Cal.App.4th 1006, 1013 [105 Cal.Rptr.2d 115, 119].) These rules are applied liberally in favor of discovery. (Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 790 [183 Cal.Rptr. 810, 813].) Objections on the ground of overbreadth of undue burden lack merit unless “the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.020, subd. (a).)

These boilerplate objections must be addressed aggressively in your meet-and-confer letters and in the motion to compel. The objections are not made in good faith. These objections are meant to provide a basis to their lack of response. Purely frivolous objections should be brought to the court’s attention in your motion to compel.

Liberty Mutual Fire Insurance Company v. LcL Administrators, Inc. (2008) 163 Cal.App.4th 1093

The bottom line is defendants do not want to provide an answer to this simple and straightforward interrogatory. From the plaintiff ’s perspective this interrogatory is an important question. We need to know on what factual basis the defense is asserting its denials and affirmative defenses so that we can anticipate and be prepared to oppose dispositive motions and to adequately prepare for trial. More importantly, it is the defendant’s burden at trial to prove these affirmative defenses.

In my experience, courts will grant the motion to compel an actual response to Form Interrogatory 15.1. However, until recently there was not a case directly on point to address this specific discovery problem. Liberty Mutual Fire Insurance Company v. LcL Administrators, Inc. (2008) 163 Cal.App.4th 1093 fills this gap.

In Liberty Mutual the plaintiff filed a complaint for breach of contract and common counts. The defendant, LcL Administrators, filed an answer with 28 affirmative defenses. (Id. at 1095.) The plaintiff served Form Interrogatory 15.1 on the defendant. After two extensions, the defendant responded that “The statutory denials are based upon the authorization of the Code of Civil Procedure, and the belief that the contacts
of insurance were improperly implemented and interpreted by Plaintiff….” (Id. at 1096-1097.) Does this sound familiar?

Ultimately, the trial court granted the plaintiff ’s motion to compel and ordered the defendant to serve supplemental responses. (Id. at 1097.) Subsequently, the defendant provided two sets of supplemental responses. Each of these responses contained equally evasive responses – the defenses were made on information and belief and would be fully developed during discovery. (Id. at 1097-1098.) The trial court ultimately granted the plaintiff ’s motion to strike the answer and cross-complaint for defendant’s failure to comply with its obligations pursuant to the discovery statute and to follow the court’s order to provide supplemental responses. (Id. at 1099.)

Code of Civil Procedure section 2023.010 defines failing to respond to an authorized method of discovery, making an unmeritorious objection to discovery, making an evasive discovery response, opposing an unsuccessful motion to compel discovery, without justification and failing to meet and confer in person as a misuse of the discovery process. (See Code Civ. Proc., § 2023.010, subds. (d) – (i).) The Court of Appeal found that the defendant provided “evasive discovery responses that submitted to meaningful information and claimed throughout that information will be ‘developed’ by ‘future discovery….’” (Liberty Mutual Fire Insurance Company, supra, 163 Cal.App.4th 1102-1103.)

Conclusion

The Liberty Mutual Case demonstrates that evasive discovery responses are not acceptable. What is more, Form Interrogatory 15.1 must be responded to fully in any stage of discovery. If it is not fully responded to, and you are served with the standard boilerplate objections and evasive responses that we typically see, you should immediately begin the meet-and-confer process.

During the meet-and-confer process, refer to the case law cited within this article setting forth the reasons that the boilerplate objections to the discovery are an abuse of the discovery process. Require that the defense attorney to provide a full and complete response to each subpart of Form Interrogatory 15.1. This interrogatory is necessary for you to effectively prepare your case for trial.

Once you receive responses to this interrogatory early on in the discovery process, you are not finished. You must do a supplemental demand before discovery is closed in order to ensure that you have the most adequate positions of the defendant for your preparation for trial. Good luck.

Christa Haggai-Ramey is a sole practitioner in the West Los Angeles area. Ms. Haggai-Ramey has been practicing law since 2000 and has exclusively represented injured plaintiffs during her career. A considerable amount of her practice is also devoted to working for various small firms on a contract basis. Ms. Haggai-Ramey is on the Board of Governors for Consumer Attorneys of Los Angeles. She is also a member of Consumer Attorneys of California, American Association for Justice and the Los Angeles County Bar Association. Ms. Haggai graduated from Southwestern University School of Law, where she is now an Associate Adjunct Professor of Law.

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