Judge: Anne Hwang, Case: 22STCV19086, Date: 2023-11-07 Tentative Ruling

Case Number: 22STCV19086    Hearing Date: January 23, 2024    Dept: 32

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. 

TENTATIVE RULING

BACKGROUND

On June 10, 2022, Plaintiffs Ramela Ouzounian Beer, Michael Beer, and James Beer, a minor by and through his guardian ad litem, Ramela Beer, filed a complaint against Defendants Mohammad Reza Danesh and Mona Fard for injuries related to a motor vehicle accident.

On April 3, 2023, Plaintiff served Defendant Mona Fard (“Defendant”) with Request for Production, Set One. An unverified response was served May 19, 2023. Counsel met and conferred and Defendant served a further response on August 1, 2023. Plaintiff still maintained that the responses were insufficient and filed this motion.

This motion was originally scheduled for October 25, 2023. However, the Court, on its own, continued the motion to December 12, 2023 to allow the parties to attend an Informal Discovery Conference (“IDC”) on November 27, 2023. (See Min. Order, 10/16/23.) After the IDC was held, the Court continued the motion to the present date and ordered Plaintiff to file a supplemental motion advising the Court of remaining issues by January 8, 2024. (Min. Order, 12/12/23.)

On January 8, 2024, Plaintiff filed a supplemental brief stating that the sole remaining issue is the response to Request for Production, Number 9.

MEET AND CONFER

On November 27, 2023, the parties appeared for a scheduled Informal Discovery Conference (IDC) pursuant to the Court’s Eighth Amended Standing Order. Therefore, the IDC requirement has been met. (Min. Order, 11/27/23.)

ANALYSIS

Compel Further Responses

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:¿ 

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(1) A statement of compliance with the demand is incomplete.¿ 

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

(3) An objection in the response is without merit or too general.¿¿ 

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.” 

“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.)

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“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, Number 9 asks for “True and correct copies of all cellular device records related to YOUR use of a cellular device from fifteen minutes prior to the INCIDENT through fifteen minutes after the INCIDENT.”

In Plaintiff’s supplemental motion, she states that following the IDC, Defendant filed an insufficient response. Prior to the IDC, Defendant’s response to number 9 was the following:

“Objection, Invasion of privacy, calls for speculation, lacks foundation, assumes facts not in evidence, not reasonably calculated to lead to the discovery of admissible evidence.”

However, on December 7, 2023, Defendant served the following response:

“Objection, Invasion of privacy, calls for speculation, lacks foundation, assumes facts not in evidence, not reasonably calculated to lead to the discovery of admissible evidence.

Without waiving said objections: Responding party is the process of attempting to access phone records pursuant to this request; responding party is making diligent effort pursuant to the Code to seek these records and their possible existence. Once such records are obtained, they will be forwarded to plaintiff.”

(Akargian Decl. ¶ 3, Exh. 1.)

Plaintiff argues that despite this response on December 7, 2023, on January 8, 2024, responses had not been served. Plaintiff submits a January 8, 2024 email correspondence between the parties indicating that Defendant may have received a new phone number and was still in the process of obtaining the records. Defendant’s counsel indicated he would provide a supplemental response in the next few days after speaking with Defendant. (Id. ¶ 4, Exh. 2.)

            The parties have not filed anything indicating that further responses were served. Defendant did not file an opposition to Plaintiff’s supplemental motion. Therefore, since Defendant responded it was making a diligent effort to obtain the phone records, Defendant must provide a further response either agreeing to produce said records or a response complying with Code of Civil Procedure section 2031.230.

Plaintiff did not request monetary sanctions in the original motion or supplemental motion. Therefore, the Court declines to award sanctions.

CONCLUSION AND ORDER

Therefore, the Court GRANTS Plaintiff Ramela Ouzounian Beer’s motion to compel further responses to Request for Production of Documents, Set One, number 9. Defendant Mona Fard shall serve a further response within 15 days.

Plaintiff to provide notice and file a proof of service of such.