Rita Lozornio vs Rudy's Mexican Restaurants

Case Number

24CV06176

Case Type

Hearing Date / Time

Mon, 04/28/2025 - 10:00

Nature of Proceedings

CMC; Motion: Protective Order; Memo of Points and Authorities; Declarations of Landon L Crawl and Alma Alvaro ISO

Tentative Ruling

Rita Lozornio v. Rudy’s Mexican Restaurants                           

Case No. 24CV06176

           

Hearing Date: April 28, 2025                                      

HEARING:              Motion For Protective Order

ATTORNEYS:        For Plaintiff Rita Lozornio: Zachary Z. Zermay, Zermay Law, APC

                             For Defendant AAC Corp dba Rudy’s Mexican Restaurants:  Charles J. Schmitt, Landon I. Crawl, Ford, Walker, Haggerty & Behar

TENTATIVE RULING:

The motion of defendant for a protective order is denied.

Background:

On November 4, 2024, plaintiff Rita Lozornio filed a complaint against defendant Rudy’s Mexican Restaurants (Rudy’s), alleging two causes of action for general negligence and products liability. As alleged in the complaint, on August 29, 2023, plaintiff, who was a customer of Rudy’s located in Carpinteria, California, purchased and ingested a taco which caused plaintiff to endure an episode of food poisoning. (Compl., ¶¶ Prod. L-1, L-3, GN-1 & Attachments Prod. L-7 & GN-1.)

On December 19, 2024, AAC Corp dba Rudy’s Mexican Restaurants (AAC) filed an answer to the complaint, generally denying its allegations and asserting eleven affirmative defenses.

On January 31, 2025, AAC filed a motion for a protective order regarding a first set of special interrogatories (the SI), requests for production (the RFP), and requests for admission (the RFA) (collectively, the written discovery) served on AAC by plaintiff.

In support of the motion, AAC submits a declaration of its counsel, Landon I. Crawl (Crawl), who contends that this action arises from plaintiff allegedly becoming ill as a result of eating tacos from AAC’s restaurant. (Crawl Decl., ¶ 3.) Crawl states that on January 16, 2025, his firm received the written discovery, copies of which are attached to the Crawl declaration as exhibit A. (Id. at ¶ 5 & Exh. A.) Crawl further states that, after reviewing the written discovery, his firm determined that “it would be inappropriate and very burdensome” for AAC to respond to the discovery “without at least some understanding” of the basis for plaintiff’s claims. (Id. at ¶ 6.)

Crawl asserts that on January 21, 2025, his colleague, Charles J. Schmitt (Schmitt), emailed plaintiff’s counsel, Zachary Z. Zermay (Zermay), stating that there is no evidence supporting the existence of a claim and that, without any basis for the claim, AAC’s counsel would seek a protective order. (Crawl Decl., ¶ 7 & Exh. B.) Zermay responded on January 22, 2025, stating that he did not understand the legal basis for a protective order and noting that plaintiff would provide a document production ahead of plaintiff’s discovery responses. (Id. at ¶ 8 & Exh. C.) In response to that communication from Zermay, Schmitt expressed a willingness to discuss the matter and asserted that plaintiff was seeking substantial, voluminous, and proprietary discovery without any evidence that an incident occurred, among other things. (Id. at ¶ 9 & Exh. D.)

Crawl further asserts that on January 22, 2025, Zermay emailed AAC’s counsel a link containing ten photographs which purportedly show plaintiff receiving emergency room treatment and what Crawl describes as a “heavily creased, faded, and nearly indecipherable receipt” from Rudy’s. (Crawl Decl., ¶ 10.) AAC’s counsel asked if plaintiff had any medical records, communications with the restaurant, or other information, in response to which Zermay stated he was trying to get medical records and bills from the hospital. (Id. at ¶ 10 & Exh. E.)

Crawl contends that the materials provided by plaintiff do not authenticate the incident at issue in this action, or link that incident to AAC. (Crawl Decl., ¶ 4.) Crawl further contends that, absent a proper basis suggesting that the alleged incident occurred, the written discovery imposes an undue burden on AAC. (Ibid.)

AAC also submits a declaration of Alma Alvaro (Alvaro), who states that she is the owner and operator of AAC “dba” Rudy’s in Carpinteria, California. (Alvaro Decl., ¶ 1.) Alvaro states that AAC’s first notice of someone becoming ill was the service of the complaint in this action. (Id. at ¶ 2.) Alvaro further states that AAC has no documentation in its possession suggesting the existence of any such incident and that AAC has not had any communications with any health department or city officials relating to any claim of food borne illness or that somebody became ill. (Id. at ¶ 3.)

Plaintiff opposes the motion.

Analysis:

A party responding to interrogatories, inspection demands, or requests for admission may “promptly” move for a protective order which must be accompanied by a meet and confer declaration under Code of Civil Procedure section 2016.040. (Code Civ. Proc., §§ 2030.090, subd. (a), 2031.060, subd. (a), & 2033.080, subd. (a).) (Note: Undesignated statutory references herein shall be to the Code of Civil Procedure unless otherwise stated.) The protective order may include that the discovery requests at issue “need not be answered”, that items or categories of items in an inspection demand “need not be produced or made available at all”, or that a response to discovery or inspection “be made only on specified terms and conditions.” (Code Civ. Proc., §§ 2030.090, subd. (b)(1) & (4), 2031.060, subd. (b)(1) & (4), & 2033.080, subd. (b)(1).) For good cause shown, the court may also “make any order that justice requires” to protect the responding party “from unwarranted annoyance, embarrassment, oppression, or undue burden and expense.” (Code Civ. Proc., §§ 2030.090, subd. (b), 2031.060, subd. (b), & 2033.080, subd. (b).)

The grounds for the present motion include that the written discovery is “voluminous”, is without evidentiary or foundational support, constitutes an improper “fishing” tactic, and would impose an undue burden on AAC. (Memo at p. 3.)

AAC does not dispute that it bears the burden of establishing good cause for a protective order. (Memorandum at p. 3, ll. 9-11; Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.) To meet this burden, AAC must show, with “factual specificity”, that “ ‘the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.’ [Citation.]” (Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 318; Williams v. Superior Court (2017) 3 Cal.5th 531, 549.)

Apart from unsubstantiated conclusions and general allegations of burden, wholly absent from the motion is any showing, with the requisite factual specificity, of good cause for the requested protective order. By way of example, AAC offers no reasoned factual argument showing that it possesses no discoverable information. AAC also fails to show, with reasoned argument including specific citations to the record, why it should not be required to respond to any particular request.

 Further, “some burden is inherent in all demands for discovery.” (West Pico Furniture Co. of Los Angeles v. Superior Court (1961) 56 Cal.2d 407, 418.) AAC has also failed to show, with reasoned factual and legal argument, why any expense or burden that it may incur by responding to the written discovery is of any greater concern in this particular case, or why any such expense or burden outweighs the benefits sought by plaintiff in propounding the written discovery.

Moreover, AAC does not cite, and the court is unaware of, any legal authority under which plaintiff is required to show good cause before it may propound the RFP. (Cf. Code Civ. Proc. §2031.310, subd. (b)(1); Glenfed Development Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117.) AAC also fails to explain why plaintiff is, at this stage of the proceedings, required to show good cause for the SI or RFA. (See, e.g., Code Civ. Proc., § § 2030.300 & 2033.290; cf. Code Civ. Proc., § 2031.310, subd. (b)(1).) In addition, the written discovery on its face show or suggest on the present record that plaintiff seeks to obtain discovery of matters which are not relevant to the allegations of the complaint or the subject matter of this action. (See, e.g., Crawl Decl., Exh. A at pdf p. 16 [SI requesting identity of witnesses] & 30 [RFA re AAC’s awareness of plaintiff’s complaint]; Code Civ. Proc., § 2017.010 [describing scope of permissible discovery].)

Furthermore, to the extent AAC contends that any particular SI, RFA, or RFP is in some respect objectionable, AAC fails to explain why it is precluded from asserting appropriate or valid objections to any particular request. (Code Civ. Proc., §§ 2030.210, subd. (a)(3) [authorizing objections to interrogatories]; Code Civ. Proc., § 2031.210, subd. (a)(3) [same re inspection demands]; Code Civ. Proc., § 2033.210, subd. (b) [same re admission requests].)

The examples provided above are intended to be illustrative but not exhaustive. AAC “may not simply dump … discovery materials … into the lap of the trial court.” (Overstock.com, Inc. v. Goldman Sachs Group, Inc. (2014) 231 Cal.App.4th 471, 511 [general discussion in context of motion to seal].) AAC appears to suggest, without legal support, that plaintiff must first show that the incident occurred before AAC is obligated to respond to any discovery in this action. Further, apart from the general and conclusory arguments further discussed above, AAC has wholly failed to meet its burden to demonstrate, on a point-by-point basis with respect to any particular request or issue, good cause for the blanket protective order as to all of the written discovery described above. For this and all reasons further discussed above, the court will deny the motion.

In the opposition to the motion, plaintiff appears to contend that the court should award to plaintiff costs incurred to oppose the motion. (Opp. at p. 3.) Subject to exceptions which do not apply here, the court “shall” impose a monetary sanction under section 2023.010 et seq. “against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order …, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., §§ 2030.090, subd. (d); 2031.060, subd. (h); 2033.080, subd. (d).)

Though the court would have, under the circumstances present here and considering the motion is wholly without merit, been inclined to impose a monetary sanction against AAC and its counsel, plaintiff also appears to assert that plaintiff refrains from seeking sanctions at this time. (Opp. at p. 2, ll. 6-8.) In addition, notwithstanding plaintiff’s ostensible request for an award of costs, plaintiff submits no evidence or information showing the amount of costs plaintiff incurred to oppose the motion. Therefore, the court is unable to determine a reasonable award. (Cornerstone Realty Advisors, LLC v. Summit Healthcare Reit, Inc. (2020) 56 Cal.App.5th 771, 791.) For these and all reasons discussed above, the court presently declines to impose sanctions against AAS and its counsel.