Judge Anne Hwang, Case Number: 22STCV40072, Date: 2024-02-05 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 December 23, 2022, Plaintiff Barbara Nunez (“Plaintiff”) filed a complaint for negligence and premises liability after allegedly tripping on a hole and falling at a construction site.

On May 9, 2023, Plaintiff served Defendant Siavash Mehdi Basseri (“Defendant”) with Demands for Production of Documents, Set One and Form Interrogatories, Set One. Untimely responses were served on July 12, 2023, but still contained objections and other deficiencies. The parties met and conferred, and Defendant served further responses on August 30, 2023 that still contained objections. On October 18, 2023, the parties appeared at an informal discovery conference (“IDC”), and after meeting and conferring notified the Court that the issues were resolved. Afterward, on October 27, 2023, Defendant served further responses without objections. The discovery was verified on November 9, 2023. However, Plaintiff argues the responses are still deficient. Defendant opposes and Plaintiff replies.

Plaintiff moves to compel further responses to Demands for Production of Documents, numbers 1, 2, 6, 31, 33 ,34, 40, 72, 76, 90, 93, and 95. Plaintiff also moves to compel further responses to Form Interrogatories, Set One, number 17.1. The responses at issue are Defendant’s second supplemental responses.

On October 18, 2023, the parties appeared for a scheduled Informal Discovery Conference (IDC) pursuant to the Court’s Eighth Amended Standing Order. However, the parties indicated the issues were resolved.

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).)

“A statement that the party to whom a demand for inspection, copying, testing, or sampling has been directed will comply with the particular demand shall state that the production, inspection, copying, testing, or sampling, and related activity demanded, will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.” (Code Civ. Proc. § 2031.220.) “If only part of an item or category of item in a demand for inspection, copying, testing, or sampling is objectionable, the response shall contain a statement of compliance, or a representation of inability to comply with respect to the remainder of that item or category.” (Code Civ. Proc. § 2031.240(a).)

“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.)

Here, Plaintiff moves to compel further responses to Demands for Production of Documents, numbers 1, 2, 6, 31, 33, 34, 40, 72, 76, 90, 93, and 95.

Number 1 broadly asks for production of documents relating to Plaintiff. Here, Defendant responded: “Responding Party refers to its first production of documents. Responding Party is also producing with this written response its surveillance footage, including 4 photographs and 4 videos taken during surveillance of August 26, 2022, and December 10, 2022, December 17, 2022, and December 22, 2022.”

Number 6 broadly asks for documents referring to communications about the incident. Defendant responded: “Following a diligent search and reasonable inquiry, Responding Party has no responsive documents within his possession, custody or control. Responding Party does not recall sending any written communications other than to his insurance company or counsel.”

Plaintiff argues these responses are incomplete because Plaintiff “finds it hard to believe” that Defendant does not have other responsive materials. There is no evidence presented to support Plaintiff’s argument.[1]

This requests broadly asks for production of documents relating to the incident.

Plaintiff argues the inability to comply is inadequate. Here, the second supplemental responses do not state that a diligent search and a reasonable inquiry has been made.

Therefore, the motion to compel further responses to number 2 is granted. Defendant is ordered to provide further responses that fully comply with Code of Civil Procedure section 2031.230.

These requests ask for production of documents relating to employee training materials, employee safety policies, safety policies for third-parties, subsequent remedial measures, fall protections at the incident site, actions taken as a result of Plaintiff’s injuries, text messages and WhatsApp messages regarding the incident, and written correspondence surrounding the subject hole.

Here, the responses state Defendant has previously provided responsive materials and that no others are in its possession or control, after conducting a diligent search. Therefore, the responses are code compliant. While Plaintiff argues that Defendant’s response that it “is unaware of any other documents that existed” is evasive, the statement sufficiently asserts that no more documents exist.

Code of Civil Procedure section 2030.300(a) provides that “on receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply:¿

(2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate.¿

The motion must be accompanied by a meet and confer declaration. (Code Civ. Proc. § 2030.300(b)(1).) “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 propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories.” (Code Civ. Proc. § 2030.300(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 a further response to interrogatories, 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. § 2030.300(d).)

Here, Plaintiff moves to compel further responses to Form Interrogatories, Set One, number 17.1.

Number 17.1 asks: “Is your response to each request for admission served with these interrogatories an unqualified admission? If not, for each response that is not an unqualified admission: (a) state the number of the request; (b) state all facts upon which you base your response; (c) state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of those facts; and (d) identify all DOCUMENTS and other tangible things that support your response and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or thing.”

Request for Admission (“RFA”), number 10, states: “Admit that YOU have never provided any warnings to Plaintiff BARBARA NUNEZ regarding the SUBJECT HOLE prior to the INCIDENT.” Defendant responded, “Deny.” Defendant’s second supplemental response to Interrogatory 17.1 states the following:

“a) 10 b) Responding Party provided written notice to all the residents of the construction project, which is required by the City of Los Angeles. About 20 days prior to their actual work being started, Responding Party posted letters on the door of each of the tenants about the work being done. The tenants were advised they had twenty days to object to the construction work with the City of Los Angeles. No one objected to the work being done and none of the residents complained about the holes before the incident. Additionally, each day before the workers left the jobsite, they covered the holes with plywood and nailed them down until the next morning when they uncovered them to perform additional work. c) Siavash Basseri, Wilbert Garcia. d) Construction Notice dated 12/4/20 provided.”

RFA number 16 states: “Admit that Plaintiff BARBARA NUNEZ was not comparatively at fault in causing the INCIDENT.” Defendant supplemental response was: “Deny.” Defendant’s second supplemental response to Interrogatory 17.1 states the following:

“a) 16 b) Responding Party provided written notice to all the residents of the construction project, which is required by the City of Los Angeles. About 20 days prior to their actual work being started, Responding Party posted letters on the door of each of the tenants about the work being done. The tenants were advised they had twenty days to object to the construction work with the City of Los Angeles. No one objected to the work being done and none of the residents complained about the holes before the incident. Additionally, each day before the workers left the jobsite, they covered the holes with plywood and nailed them down until the next morning when they uncovered them to perform additional work. c) Siavash Basseri, Wilbert Garcia. d) Construction Notice dated 12/4/20 provided with this discovery response.”

Plaintiff argues that 17.1(b) lacks specific facts in support of Defendant’s denial, because the construction notice does not adequately warn of the subject hole and also does not show facts of Plaintiff’s comparative fault. However, Interrogatory, number 17.1 merely asks for factual support of Defendant’s denial. It appears this factual support has been provided and the Court declines to assess the merits of the evidence at this stage. The motion to compel further number 17.1 is denied.

Therefore, the Court DENIES Plaintiff Barbara Nunez’s motion to compel further responses to Demand for Production, Set One, Numbers 1, 6, 31, 33, 34, 40, 72, 76, 90, 93, 95.

The Court GRANTS Plaintiff Barbara Nunez’s motion to compel further responses to Demand for Production, Set One, Number 2. Defendant Siavash Mehdi Basseri shall serve a further verified response within 14 days.

The Court DENIES Plaintiff Barbara Nunez’s motion to compel further responses to Form Interrogatories, Set One, number 17.1.

[1] In response, Defendant appears to be arguing that other documents may be responsive but have been fully disclosed with regard to other, more specific requests. However, to the extent that other documents are responsive to RPD Number 1, Defendant should provide a revised response regardless of whether the documents themselves have already been produced.

[2] The Court notes that the moving party should have engaged in a meaningful IDC, as required by the Eighth Amended Standing Order for Procedures for PI Hub Cases. The issues raised herein are the sort of issues ideally suited for an IDC. Counsel is admonished that continued failure to comply with the Court’s orders may be taken into account in considering whether monetary sanctions are warranted.

DEPT:	32
HEARING DATE:	February 9, 2024
CASE NUMBER:	22STCV40072
MOTIONS:	(1) Compel Further Responses to Demands for Production of Documents, Set One (2) Compel Further Responses to Form Interrogatories, Set One
MOVING PARTY:	Plaintiff Barbara Nunez
OPPOSING PARTY:	Defendant Siavash Mehdi Basseri