Daniel Lopez v. Florentino Sanchez et al
MINUTES (IN CHAMBERS) by Magistrate Judge Kenly Kiya Kato: denying 22 Motion to Compel; denying 22 Motion for Discovery (SEE ORDER FOR DETAILS) (dts)
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
EDCV 16-1527-MWF (KKx)
Date March 7, 2017
Title Daniel Lopez v. Florentino Sanchez, et al.
Present: The Honorable KENLY KIYA KATO, UNITED STATES MAGISTRATE JUDGE
Attorney(s) Present for Plaintiff(s):
Attorney(s) Present for Defendant(s):
Order Denying Defendant’s Motion to Compel [Dkt. 22]
SUMMARY OF RULING
On February 2, 2017, Defendants Florentino Sanchez, Cecilia Sanchez, and Casa
Delicias, Inc. (“Defendants”) filed a Motion to Compel Production of Documents and Further
Responses to Interrogatories (“Motion to Compel”) and a Joint Stipulation. Defendants seek to
compel Plaintiff Daniel Lopez (“Plaintiff”) to (1) produce all documents in response to Requests
for Production Nos. 2, 4, 6, 8, and 9; and (2) respond to Interrogatory Nos. 9, 10, and 13 through
18. Defendants also request an award of attorney’s fees and costs in the amount of $4,800.00
and sanctions in the amount of $5,000.00. For the reasons set forth below, the Court (1)
DENIES Defendants’ Motion to Compel, and (2) DENIES Defendants’ request for attorney’s
fees and costs, and request for sanctions.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
On July 13, 2016, Plaintiff filed a Complaint against Defendants for damages and
injunctive relief for violations of the (1) Americans with Disabilities Act (“ADA”); and (2) the
UNRUH Civil Rights Act (“UNRUH”). ECF Docket No. (“Dkt.”) 1. Plaintiff, who is a
paraplegic and who uses a wheelchair for mobility, alleges he visited Defendants’ restaurant in
April 2015. Id. ¶¶ 1, 10. Plaintiff further alleges Defendants’ restaurant did not have accessible
parking spaces reserved for persons with disabilities and the transaction counter did not have a
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lowered portion for use by persons in wheelchairs. Id. Plaintiff alleges he “will return to
patronize the Restaurant as a customer once the barriers are removed.” Id. ¶ 24. On August 30,
2016, Defendants filed an Answer. Dkt. 12.
On November 4, 2016, Defendants served Requests for Production and Interrogatories.
Dkt. 22-1 at 1-82, Declaration of Yolanda Flores-Burt in support of Motion to Compel (“FloresBurt Decl.”), ¶ 2. On December 5, 2016, Plaintiff served responses to Defendants’ Requests for
Production and Interrogatories. Id. at 83-188, Declaration of Sara Gunderson in support of
Opposition to Motion to Compel (“Gunderson Decl.”), ¶ 2.
On December 15, 2016, Defendants’ counsel sent a letter to Plaintiff’s counsel requesting
supplemental responses. Flores-Burt Decl., ¶ 3, Ex. A. On December 21, 2016, Plaintiff
provided supplemental responses. Id. ¶ 5, Ex. B.
On December 27, 2016, Defendants’ counsel sent a second letter to Plaintiff’s counsel
requesting supplemental responses. Id., Ex. C. On January 3, 2017, Plaintiff served additional
supplemental responses along with a letter responding to the concerns set forth in Defendants’
counsel’s December 27, 2016 letter. Id. ¶ 6, Ex. D.
On January 11, 2017, Defendants’ counsel sent a third letter to Plaintiff’s counsel (a)
responding to Plaintiff’s counsel’s January 3, 2017 letter; (b) suggesting a Joint Stipulation for
Protective Order; and (c) requesting supplemental responses. Id., Ex. E. On January 12, 2017,
Defendants’ counsel sent Plaintiff’s counsel a letter responding to Plaintiff’s counsel’s January
11, 2017 letter, declining to provide further supplemental responses, and declining to enter into
Defendants’ proposed stipulated protective order. Id., Ex. F.
On February 2, 2017, Defendants filed the instant Motion to Compel and Joint
Stipulation. Dkt. 22. Plaintiff’s Opposition to the Motion to Compel is set forth in the Joint
Stipulation. Id. Neither party filed any supplemental briefs.
Federal Rule of Civil Procedure 26(b) provides that parties may obtain discovery
any nonprivileged matter that is relevant to any party’s claim or defense and
proportional to the needs of the case, considering the importance of the issues at
stake in the action, the amount in controversy, the parties’ relative access to
relevant information, the parties’ resources, the importance of the discovery in
resolving the issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit.
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Fed. R. Civ. P. 26(b)(1). Relevant information “need not be admissible in evidence to be
discoverable.” Id. A court “must limit the frequency or extent of discovery otherwise allowed”
if “(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from
some other source that is more convenient, less burdensome, or less expensive; (ii) the party
seeking discovery has had ample opportunity to obtain the information by discovery in the action;
or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P.
26(b)(2)(C). “The party moving to compel bears the burden of demonstrating why the
information sought is relevant and why the responding party’s objections lack merit.” Bluestone
Innovations LLC v. LG Elecs. Inc., No. C -13-01770 SI (EDL), 2013 WL 6354419, at *2 (N.D.
Cal. Dec. 5, 2013).
“Relevancy alone is no longer sufficient to obtain discovery, the discovery requested
must also be proportional to the needs of the case.” Centeno v. City of Fresno, No. 1:16-CV-653
DAD SAB, 2016 WL 7491634, at *4 (E.D. Cal. Dec. 29, 2016) (citing In re Bard IVC Filters
Prod. Liab. Litig., 317 F.R.D. 562, 564 (D. Ariz. 2016)). The amendments to the Federal Rules of
Civil Procedure effective December 1, 2015 emphasize that “[t]he parties and the court have a
collective responsibility to consider the proportionality of all discovery and consider it in
resolving discovery disputes.” Fed. R. Civ. P. 26 advisory committee notes (2015 amendments).
Thus, there is “a shared responsibility on all the parties to consider the factors bearing on
proportionality before propounding discovery requests, issuing responses and objections, or
raising discovery disputes before the courts.” Salazar v. McDonald’s Corp., No. 14-CV-02096RS (MEJ), 2016 WL 736213, at *2 (N.D. Cal. Feb. 25, 2016); Goes Int’l, AB v. Dodur Ltd., No.
14-CV-05666-LB, 2016 WL 427369, at *4 (N.D. Cal. Feb. 4, 2016) (citing advisory committee
notes for proposition that parties share a “collective responsibility” to consider proportionality
and requiring that “[b]oth parties . . . tailor their efforts to the needs of th[e] case”); Razo v.
Timec Co., Inc., No. 15-CV-03414-MEJ, 2016 WL 1623938, at *2 (N.D. Cal. Apr. 21, 2016)
(same). Moreover, “Rule 1 is amended to emphasize that just as the court should construe and
administer these rules to secure the just, speedy, and inexpensive determination of every action,
so the parties share the responsibility to employ the rules in the same way.” Fed. R. Civ. P. 1
advisory committee notes (2015 amendments).
Rule 37(a)(1) permits a party to move for an order compelling discovery, upon
certification that the movant has in good faith conferred or attempted to confer with the opposing
party in an effort to obtain the requested discovery without court action. Fed. R. Civ. P. 37(a)(1).
Additionally, under Rule 37(a)(5)(A), if a motion to compel is granted, or if the requested
discovery is provided after the motion was filed, the Court must require the party whose conduct
necessitated the filing of the motion to pay reasonable expenses, including attorney’s fees. Fed.
R. Civ. P. 37(a)(5)(A). However, the Court must not order payment if the nondisclosure was
substantially justified or if other circumstances make an award unjust. Id.
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DEFENDANTS’ MOTION TO COMPEL IS DENIED
DEFENDANTS’ REQUESTS AND INTERROGATORIES
Defendants’ Requests for Production seek copies of (1) all complaints filed by Plaintiff in
the last ten years and any judgements entered in those cases (Request Nos. 2, 4, 6); and (2) all fee
agreements between Plaintiff and attorneys who filed lawsuits on behalf of Plaintiff in the last ten
years (Request Nos. 8, 9). Defendants’ Interrogatories seek a list of the following for all cases
filed by Plaintiff for violation of the ADA and UNRUH in the last ten years: (1) defendants
(Interrogatory No. 9); (2) defendants’ addresses (Interrogatory No. 10); (3) attorneys who
represented Plaintiff (Interrogatory No. 13); (4) whether the case is resolved or pending
(Interrogatory No. 14); (5) witnesses who would support Plaintiff’s allegations (Interrogatory
No. 18); (6) damages paid to Plaintiff (Interrogatory No. 15); and (7) fees apportioned to
Plaintiff’s attorneys (Interrogatory No. 16). Defendants argue all of the above is relevant to their
Thirteenth Affirmative defense of unclean hands. JS at 6, 23, 32; Answer at 5.
In addition, Defendants’ Interrogatory No. 17 seeks a list of the dates Plaintiff visited any
of the defendants’ businesses that Plaintiff sued for violation of the ADA and UNRUH in the last
ten years. Defendants argue Interrogatory No. 17 is relevant to determining “Plaintiff’s standing
to bring this claim.”1 JS at 12.
PLAINTIFF’S RESPONSES AND OBJECTIONS
Plaintiff objects to production of the fee agreements, as well as listing the witnesses, dates
of visits, damages, and attorney’s fees on the grounds of privacy, attorney client privilege, and
attorney work product doctrine. See JS. Plaintiff provided Defendants with a case list for the
past ten years and argues the complaints and judgments as well as listing the defendants,
defendants’ addresses, attorneys who represented Plaintiff, and whether the case is pending or
resolved are equally available to Defendants from the public record of Plaintiff’s prior litigation.
Id. In addition, Plaintiff objects to each Request for Production and Interrogatory on the grounds
they are overbroad, unduly burdensome, and seek irrelevant information. Id.
In the Joint Stipulation, Defendants also state the damages paid to Plaintiff and fees
apportioned to Plaintiff’s attorneys, Interrogatory Nos. 15 and 16, are relevant to standing.
However, in their meet and confer correspondence, Defendants argue Interrogatory Nos. 15 and
16 are relevant to their unclean hands defense. Because this information appears duplicative of
the information sought in the Requests for Production, it appears Defendants intended to argue
damages and fees were relevant to the unclean hands defense. Nevertheless, as discussed below,
it does not appear this information is relevant to either standing or the unclean hands defense.
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As an initial matter, the dates Plaintiff visited the locations of defendants from other
litigation is not relevant to his standing to pursue this claim. The Ninth Circuit has made clear
“[t]he attempted use of past litigation to prevent a litigant from pursuing a valid claim in federal
court warrants our most careful scrutiny. This is particularly true in the ADA context.” D’Lil v.
Best W. Encina Lodge & Suites, 538 F.3d 1031, 1040 (9th Cir. 2008). In D’Lil, the court
reversed the District Court’s finding plaintiff lacked standing because the District Court found it
was not credible that plaintiff intended to return to the Best Western based on the extent of
plaintiff’s prior ADA litigation. Id. The court held plaintiff’s “past ADA litigation was [not]
properly used to impugn her credibility.” Id.; see also Molski v. Franklin, 222 F.R.D. 433, 437
(S.D. Cal. 2004) (noting “this Circuit’s deference towards ADA plaintiffs in interpreting the
Article III standing requirements”). Here, Defendants argue “Plaintiff must visit these
businesses that he has sued after the barriers are abated in order to maintain his status as a
Plaintiff.” Flores-Burt Decl., ¶ 6. However, whether Plaintiff can maintain his standing as a
plaintiff in other litigation is not relevant to whether he has standing to pursue the instant case.
See D’Lil, 538 F.3d at 1040. Therefore, it is not apparent to the Court, nor do Defendants
explain, how the dates Plaintiff visited defendant businesses sued in other litigation is relevant to
his standing to pursue this claim. Hence, Defendants’ Motion to Compel further response to
Interrogatory No. 17 is DENIED.
Next, beyond simply stating that they are relevant, Defendants do not provide any
explanation regarding how the remaining documents and information sought are relevant to their
defense of unclean hands. To the extent Defendants are trying to make the argument the
defendant made in Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1056 (9th Cir. 2007),
where the Ninth Circuit held the District Court’s finding plaintiff was a vexatious ADA litigant
was not clearly erroneous, the Court finds any information that may possibly be relevant is
equally and publicly available to Defendants. In Evergreen, the Ninth Circuit found the District
Court’s finding that plaintiff was a vexatious litigant was not unreasonable where (a) plaintiff’s
claims of injury were exaggerated because it was unlikely plaintiff suffered the same injuries,
often multiple times in one day, performing the same activities; and (b) plaintiff’s litigation
strategy was to harass businesses into cash settlements because only 1 of his roughly 400 ADA
cases had been tried on the merits. Id. However, the court emphasized “the simple fact that a
plaintiff has filed a large number of complaints, standing alone, is not a basis for designating a
litigant as ‘vexatious.’ We also emphasize that the textual and factual similarity of a plaintiff’s
complaints, standing alone, is not a basis for finding a party to be a vexatious litigant.” Id. at
First, it is not apparent to the Court, nor do Defendants explain, how Plaintiff’s fee
agreements with attorneys are relevant to Defendants’ defense of unclean hands.2 Hence,
In addition, the Court notes information such as fee and damage distributions that
would be included in settlement agreements is not relevant to standing. See Franklin, 222 F.R.D.
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Defendants’ Motion to Compel production of fee agreements (Request Nos. 8, 9) and responses
to interrogatories regarding fees apportioned to Plaintiff’s attorneys (Interrogatory No. 16) or any
damages paid to Plaintiff beyond what may be disclosed in the public records (Interrogatory No.
15) is DENIED.3
Second, while Defendants fail to make the argument, it appears there is a remote
possibility that complaints and judgments alleging violations of ADA or UNRUH sought in
Request Nos. 2 and 6, may be relevant to Defendants’ defense of unclean hands if they are able to
show the type of specific conduct proven in Evergreen.4 See Evergreen, 500 F.3d 1056.
However, parties “may not use discovery to obtain free copies of documents equally available
to” them. Jones v. Lundy, No. 1:03-CV-05980-AWI-LJO PC, 2007 WL 214580, at *1 (E.D. Cal.
Jan. 25, 2007). “A court may refuse to order production of documents of public record that are
equally accessible to all parties.” Franklin v. Smalls, No. 09-cv-1067, 2012 WL 5077630, at *17
(S.D. Cal. Oct. 18, 2012). The Court finds the ten-year scope of the request is overbroad and
Defendants have not provided any explanation for why they are unable to obtain copies of the
relevant documents themselves. See Eusse v. Vitela, No. 3:13-CV-00916-BEN, 2015 WL
4641870, at *3 (S.D. Cal. Aug. 4, 2015) (noting “a court may require the adverse party to
produce documents at cost where the documents are relevant, subject to production, and the
[moving party] is unable to obtain the documents on his own due to his indigence”) (citing
Haney v. Adams, No. 1:07–cv–1104, 2012 WL 6097084, at *2 (E.D. Cal. Dec. 7, 2012)). In
addition, the Court cannot fathom how copies of complaints or judgments that are not for
violations of the ADA or UNRUH sought in Request Nos. 4 and 6 would possibly be related to
Defendant’s unclean hands defense. Hence, Defendants’ Motion to Compel copies of
complaints and judgments (Request Nos. 2, 4, 6) is DENIED.
Finally, the Court finds Defendants’ Interrogatories seeking to require Plaintiff to list
information readily apparent from the face of the complaints that is only marginally relevant, if at
all, are unreasonably duplicative, see Fed. R. Civ. P. 26(b)(2)(C), and disproportionately
overbroad and burdensome, see id. 26(b)(1). Hence, Defendants’ Motion to Compel further
responses to Interrogatory Nos. 9, 10, 13, 14, 15, and 18 is DENIED.
IT IS THEREFORE ORDERED that (1) Defendants’ Motion to Compel is DENIED
as detailed above; and (2) Defendants’ requests for expenses and sanctions are DENIED.
at 438 (holding document request seeking information regarding the amount of settlements from
prior cases was not relevant to “any defense”).
Therefore, the Court declines to address Plaintiff’s privilege concerns.
The Court questions whether being a vexatious litigant would even support a defense of
unclean hands, because it does not prove Plaintiff has done anything wrong or improper in this
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