Judge Anne Hwang, Case Number: 22STCV15320, Date: 2024-01-04 Tentative Ruling

PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit. The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely. Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court.

On May 9, 2022, Plaintiff Cielo Guzman (“Plaintiff”) filed a complaint against Defendants Dial Transport Inc. (“Dial”) and Venerando Bautista (“Bautista”) for damages related to a motor vehicle accident.

On December 27, 2022, Defendant Bautista propounded Requests for Production of Documents, Set One on Plaintiff. Plaintiff served verified responses on August 7, 2023. (Joseph Decl. ¶ 4.) Bautista now moves to compel further responses to numbers 5, 8–11, 13, 17, 19–20, 23, 26, 29, 32, 34, 45–55.

Defendants also bring a separate motion to compel initial responses to Requests for Production of Documents, Set One, propounded by Defendant Dial.

On December 4, 2023, the parties appeared for a scheduled Informal Discovery Conference (IDC) pursuant to the Court’s Eighth Amended Standing Order. Prior to the IDC being held with the Court, Plaintiff disconnected and did not participate. Therefore, because Defendants, as the moving parties, complied with their obligation, the IDC requirement has been met. (Min. Order, 12/4/23.)

Code of Civil Procedure section 2031.310(a) provides that on receipt of a response to a request for production of documents, the demanding party may move for an order compelling further responses if:¿

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

Code of Civil Procedure section 2031.320(a) provides that “[i]f a party filing a response to a demand for inspection, copying, testing, or sampling under Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280 thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that party's statement of compliance, the demanding party may move for an order compelling compliance.”

“Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand.”¿ (Code Civ. Proc., § 2031.310(c).)¿¿¿

The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc. § 2031.310 (h).)

Request for Production, Set One, numbers 5, 8, 13, 17, 19–20, 23, 26, 29, 34, 45–55 request documents related to psychological care, psychiatric treatment, communications to any defendant in the complaint, medical insurance policies, documents and bills from medical providers, visual recordings of Plaintiff’s injuries as a result of the incident, journals of the incident, fitness club memberships following the incident, social media posts related to the incident, reports related to the incident, prior or subsequent personal injury claims, documents provided to insurance companies related to the claim, disability payments, communications to or payments by Medicare or Medi-Cal regarding the incident, and payments to any health insurance for injuries related to the incident.

Plaintiff responded with various objections followed by: “Subject to and without waiving the foregoing objection, Responding Party responds as follows: After a diligent search and reasonable inquiry in an effort to comply with this demand, Responding Party is unable to comply with this demand because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the Responding Party. Discovery and investigation are ongoing, and Responding Party reserves the right to supplement this response.”

“A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.” (Code Civ. Proc. § 2031.230.)

“If the responding party objects to the demand for inspection, copying, testing, or sampling of an item or category of item, the response shall do both of the following:

(1) Identify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made.

(2) Set forth clearly the extent of, and the specific ground for, the objection. If an objection is based on a claim of privilege, the particular privilege invoked shall be stated. If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted.”

In opposition, Plaintiff argues the responses are code-compliant.[2] The Court disagrees. These responses do not specify why Defendant is unable to comply but simply lists all of the possible reasons. The Court orders Plaintiff to serve code-compliant responses to these requests for productions. (See Code Civ. Proc. §§ 2031.230, 2031.240.)

Request for Production, Set One, numbers 9–11 and 32 request documents related to past earnings.[3]

Plaintiff responded with various objections, followed by: “Subject to and without waiving the foregoing objection, Responding Party responds as follows: Responding Party will comply and produce all documents to the extent said documents are in the possession, custody, or control of the Responding Party. Said documents are attached hereto as Exhibit “A”. Discovery and investigation are ongoing, and Responding Party reserves the right to supplement this response.”

Defendant argues no documents regarding the loss of earnings claim have been produced.

Plaintiff is ordered to produce the documents within these requests. (Code Civ. Proc. § 2031.320.)

Defendants request $1,530 in monetary sanctions representing a $255 hourly rate for three hours preparing the motion and one hour drafting a reply. (Joseph Decl. ¶ 8.) Sanctions are mandatory against the unsuccessful party that makes a motion to compel further discovery. However, because the declaration states that four hours were spent on this motion, the Court will award $1,020 in monetary sanctions (4 hours of attorney time at an hourly rate of $255).

Defendants also move to compel initial responses to Requests for Production of Documents propounded by Defendant Dial.

Under Code of Civil Procedure Section 2031.300, if a party fails to serve a timely response to a demand for inspection, the party making the demand may move for an order compelling response to the demand. (Code Civ. Pro § 2031.300 (b).) The party who fails to serve a timely response to a demand for inspection waives any objection to the demand unless the court finds that the party has subsequently served a response that is in substantial compliance or party’s failure was the result of mistake, inadvertence, or excusable neglect. (Code Civ. Proc. § 2031.300 (a)(1)- (2).)

Courts shall impose a monetary sanction against any party who unsuccessfully makes or opposes a motion to compel a response to a demand for inspection unless the party acted with substantial justification or other circumstances make the imposition of the sanction unjust. (Code Civ. Proc. § 2031.300 (c).) Here, Defendants contend that Plaintiff failed to respond to Requests for Production, Set One, propounded by Dial on December 27, 2022. (Joseph Decl. ¶ 3, Exh. 2.)

In opposition, Plaintiff argues it served code-compliant, verified responses on February 21, 2023. (Hawatmeh Decl. ¶ 8, Exh. A.) However, Plaintiff does not attach proof that the responses were verified on February 21, 2023.

Therefore, because responses have not been served, the motion to compel is granted.

Therefore, the Court GRANTS Defendant Venerando Bautista’s motion to compel further responses to Request for Production of Documents, Set One, numbers 5, 8–11, 13, 17, 19–20, 23, 26, 29, 32, 34, 45–55. Plaintiff shall serve further responses within 10 days.

The Court GRANTS Defendant Dial Transport Inc.’s motion to compel initial responses to Request for Production of Documents, Set One. Plaintiff must serve verified responses, without objections, within 10 days.

The Court further GRANTS Defendants’ request for monetary sanctions against Plaintiff and Plaintiff’s counsel in the reduced amount of $1,020. Said monetary sanctions are to be paid to counsel for Defendants within 30 days of the date of this order.

[1] The Court notes that Plaintiff’s opposition was due on December 20, 2023, but was filed on December 22, 2023. It is therefore untimely. However, the Court, in its discretion, will consider the opposition.

[2] Plaintiff argues that responses were served that respond to numbers 19 and 20. (See Opp., 5–6.) However, although the declaration of counsel references an attachment, no responses are attached as an exhibit. Defendants’ reply does not confirm that amended responses were served.

[3] In the Sur-Reply filed by Plaintiff on December 28, 2023, Plaintiff argues she has waived her loss of earnings claim. (Sur-reply, 2.) However, she did not make this argument in the opposition. Plaintiff provides no proof or declaration that the loss of earnings claim is waived. Therefore, without proof or a representation by Defendants that the claim is waived, Plaintiff must provide further responses.

DEPT:	32
HEARING DATE:	January 4, 2024
CASE NUMBER:	22STCV15320
MOTIONS:	(1) Compel Further Responses to Requests for Production of Documents, Set One; (2) Compel Initial Response to Requests for Production of Documents, Set One
MOVING PARTY:	Defendants Dial Transport Inc. and Venerando Bautista
OPPOSING PARTY:	Plaintiff Cielo Guzman